Salina commission authorizes mayor to file appeal, allows Cozy Inn owner to finish disputed sign

SALINA, Kan. — The Salina City Commission on Dec. 16 authorized Mayor Mary Linkwitz to execute a stipulation and file a notice of appeal in litigation over whether the city can distinguish murals from signs, voting 5–0.

Todd Messenger, special counsel to the city from the law firm Fairfield and Woods, told the commission that a federal court’s recent summary‑judgment order held “because the definition of sign is unlawful, Salina cannot make any determination as to whether a display is a mural or a sign without violating the First Amendment.” Messenger said the city and the Cozy Inn’s lawyers, the Kansas Justice Institute, reached a negotiated path forward that the commission was being asked to approve.

Under the proposed agreement Messenger described, the city would file a notice of appeal in the Tenth Circuit and the parties would jointly ask the trial court to stay its order, allowing the Cozy Inn’s proprietor (referred to in the record as Mr. Howard) to complete the disputed sign during the pendency of the appeal. Messenger said both sides would waive claims for attorney’s fees and costs as part of the stipulation.

Messenger also explained a post‑appeal compliance framework: if the city prevails, Mr. Howard would have 180 days after final judicial proceedings to come into compliance with the city code in effect at that time, including options to seek a variance or other administrative relief. “So it’s not a take‑it‑down order. It’s a let’s work together towards compliance in that period of time,” Messenger said.

The city’s legal team projected not‑to‑exceed costs of about $50,000 to prepare and brief the appeal and attend court‑mandated mediation, with an additional not‑to‑exceed $20,000 if oral argument is granted. Messenger said plaintiff counsel had trimmed a previously filed fee request to roughly $100,000; the mutual waiver of fees was presented as an economic compromise that could reduce the city’s exposure.

Commissioners asked staff to work with Messenger on a public news release summarizing the agreement. After brief discussion, a commissioner moved to authorize the mayor to execute the stipulation and file the notice of appeal; the motion was seconded and the commission voted in favor, 5–0.

The decision begins the appellate process, which Messenger said would likely take roughly 18 to 24 months if the Tenth Circuit proceeds on a typical schedule. The commission recessed into executive session earlier in the meeting to consult with counsel under KSA 75‑4319(b)(2) and returned to public session to take the action. The meeting adjourned after the vote.