SALINA, Kan. — Salina, population 46,000, is an unlikely center of street art. Founded in 1858 as a trading post on a wagon trail, the city’s claim to fame today is its status as America’s Frozen Pizza Capital. A sprawling factory on the south end of town cranks out a quarter-million pies a day under the Tony’s and Red Baron labels. More than 1,200 people work there, making it the city’s largest employer.
But, improbably, Salina in recent years has also become the Mural Capital — of Kansas, at least.
In 2021 a privately-funded group called the Salina Kanvas Project commissioned an Australian street artist named Guido Van Helten to paint the hundred-foot-tall silos attached to a disused flour mill in the center of town.
Van Helten’s mural of children of different colors holding hands started a mural boom in Salina. The Kanvas Project has commissioned more than a dozen additional murals, and now walls all over the city are covered with colorful depictions of everything from butterflies to sunflowers. Since 2022, the city has held an annual mural festival in the fall.
Steve Howard thought the murals sprouting up around Salina were cool and decided to commission one of his own.
“I was inspired,” he said in an interview. “I thought I was contributing to Salina downtown.”
But then, he said, it all “went sideways.”
That’s because Salina city officials have determined the mural is an advertisement, not a mural, so it’s subject to regulation by the city code.
But Howard disagrees. He said it’s a work of art, and to prove his point he’s willing to take the case all the way to the U.S.Supreme Court if necessary.
A Cozy Restaurant
Howard owns a hamburger restaurant in downtown Salina called The Cozy Inn. True to its name, the Cozy is tiny. The area for customers is about 40 square feet. Seating is limited to six stools, and there’s a window for walk-ups.
It’s a local institution, in business for more than a hundred years, and famous for its sliders slathered in onions, as well as its pungent aroma. Howard insists the aroma isn’t as strong as it used to be, since he stopped slicing the onions in-house. Now he buys them pre-chopped.
Howard doesn’t offer his customers many choices. The only available toppings are pickles, ketchup, and mustard. No cheese. The only items on the menu besides burgers are bags of chips and canned sodas. On average, Howard sells 1,300 burgers a day at $1.79 each — plus tax.
The Cozy has been in business at this location since 1922. Steve Howard bought the business in 2007, after working in restaurants since his teens.
Gray-haired, sixtysomething, energetic, and outgoing, Howard can “talk to anyone about anything.” He habitually wears two different shoes.
“It’s a good conversation starter,” he said.
Hamburgers That Look Like UFOs
In November 2023, Howard hired a local artist named Colin Benson to paint a mural on the outside wall of the Cozy that faces a large parking lot. The fee was $500. They came up with a design depicting UFO-like hamburgers squirting ketchup and mustard, along with the epigram, “Don’t Fear the Smell! The Fun Is Inside!!”
Benson started painting the mural on the evening of Friday, November 3, 2023.
“There was about six hours' worth of work on here, and Monday morning I was told to stop,” Howard said. “And I was questioning why, because it's my wall.”
According to court documents and depositions, Brad Anderson, executive director of Salina Arts & Humanities, a municipal agency, noticed the mural going up on Sunday, November 5. He texted the city’s community and development services director, Lauren Driscoll, and the director of Salina Downtown, Leslie Bishop. Salina Downtown is a nonprofit organization that works closely with the city on projects in the Business Improvement District, which includes the Cozy.
Anderson informed Driscoll and Bishop that the mural was being painted and questioned whether it had gone through the Design Review Board, a city panel that oversees projects in the downtown area.
The next day, Monday, November 6, Lauren Driscoll and three other city employees — planning and zoning administrator Dean Andrew and two city planners, Dustin Herrs and Dustin Michelson — convened to determine whether the mural was subject to the city’s sign code. They determined it was.
“We sat down with code, pulled the definition, said, yep, it met those components,” Driscoll recalled in a deposition.
Later that day, Howard was informed of their decision and asked to stop work on the mural, which he agreed to do. He was told to apply for a sign permit, which he also did.
Salina city officials declined to comment.
“The city is not going to comment on the Cozy Inn situation because it is in litigation and that is our policy,” City Attorney Patrick Hoffman said in a voicemail message.
"To Announce, Direct Attention to, or Advertise"
The Salina city code defines a sign as a display “used to announce, direct attention to, or advertise.” Since the Cozy’s mural depicts hamburger-like UFOs and exclaims “The Fun is Inside!!,” city officials argue it directs attention to a commodity sold on the premises. They also said the mural “advertises hamburger, chopped onions, pickles, ketchup, and mustard” by depicting those images.
For these reasons, they said, it’s a sign, not a mural. Furthermore, they said the sign far exceeds the maximum size allowed by the code.
At a city commission meeting on November 13, 2023, Lauren Driscoll expanded on the city’s rationale for determining the Cozy mural was a sign.
“If a coffee house has a dove with an olive branch and it says the word ‘peace’ on the side of it, that’s not a sign because even though the word ‘peace’ is there, you’re not selling peace inside,” she said. “Where, if we had a steaming cup of coffee and a coffee pot on the side, those are things that draw you into the use of that building, even without a word, that illustration can suggest that commercial transaction.”
The city never responded to Steve Howard's sign-permit application. Court documents show the application was placed “on hold” pending “a comprehensive review of the sign regulations to see if there were any appropriate text amendments that could be made to accommodate The Cozy Inn sign.”
Howard tired of waiting and, in February 2024, he sued the city. He is not seeking monetary damages. He just wants permission to finish the mural depicting hamburgeresque UFOs.
“They traveled light years to get here,” he said. “Even aliens want a Cozy burger!”
The case has been working its way through the courts for two years now. Last fall, a federal judge ruled in the Cozy’s favor and said the city must allow the mural, but the city has appealed that ruling.
The Cozy is represented by Sam MacRoberts, a lawyer with the Kansas Justice Institute, which represents plaintiffs for free in cases involving what it calls “government overreach.”
MacRoberts said the Cozy mural is a work of art, that it’s whimsical, reflects Steve Howard’s personality, and is not subject to the city’s sign code.
“If a code is on paper but it still violates the Constitution, then that's an issue,” MacRoberts said. "It's a constitutional issue. In our view, the sign code violates the First Amendment.”
The problem, as MacRoberts sees it, is that the city’s ruling is based on the mural’s content: If it depicted flying pizzas instead of hamburgers, he argues, the city would be OK with it.
Generally, courts have allowed municipalities to regulate the size and placement of signs, but not the content.
“The main issue is when a city tries to distinguish a sign from a mural or art, then they have to look at the content of the message,” said David Hickey, vice president of advocacy for the International Sign Association, a trade group for the sign industry. “And that’s trouble.”
So far at least, public opinion in Salina seems to be in the Cozy’s favor.
Jon Blanchard is a landscape architect in Salina. He’s also a former mayor of the city, and he's been outspoken in his support of the Cozy. He said most Salinians are unhappy with how much money the city is spending on legal fees fighting the suit. The city had to hire a Denver law firm to represent it.
Blanchard said he filed an open records request last year and the legal fees were approaching $800,000.
"Ninety percent of the people think that it's really not worth the money,” he said.
Blanchard noted that the city gets about 2.5 cents in tax for every burger sold by the Cozy.
“At that number,” he said, “we would have to sell 26 million cozy hamburgers to satisfy the legal fees.”
That works out to 565 burgers for each Salinian.
“If we do happen to pull that off, we're gonna have a significant waistline gain in the city,” Blanchard said. “Health will probably go down, but we'll get that legal fee paid off.”
Outcome of Case Could Affect Many Municipalities
One thing both sides agree on is that this case could well reach the U.S. Supreme Court, which has never definitively ruled on what, precisely, defines a sign. When is it an advertisement and when is it art? And who should get to decide?
If the case reaches the high court and if the court rules against the city — two big ifs, to be sure — thousands of municipalities will be affected.
“This would require a lot of jurisdictions to go back to their local sign codes and adjust it, especially when it comes to murals, to make sure their language is legally compliant and content neutral,” said David Hickey of the International Sign Association.
The Cozy mural is still only partly finished. Steve Howard said he hopes it will be completed in the spring.
“I get to finish my mural with the understanding that if, for some reason, it gets overturned, then I'll paint over it,” he said.
I asked him how that would make him feel.
“I’ve got a Plan B.”
And what’s that?
“I can't tell you.”
Howard did tell me there’s been a silver lining to the controversy.
“My sales have gone up because people are coming to find out what the fuss is about,” he said. “So thank you, city of Salina.”
The city’s appeal is now before the U.S. Tenth Circuit Court of Appeals. If the appeals court’s ruling is appealed, the next stop would be the U.S. Supreme Court.
Matthew Algeo is the Morning Edition host for Kansas Public Radio.
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