The Salina City Commission voted unanimously Tuesday to approve a stipulation and authorize an appeal in the ongoing Cozy Inn vs. City of Salina lawsuit, setting a defined legal path forward while allowing the disputed sign at the Cozy Inn to be completed during the appeal process.
The 5–0 vote authorizes Mayor Greg Lenkiewicz to execute an agreement that pauses enforcement of a recent district court ruling while the case is appealed to the 10th Circuit Court of Appeals. The agreement also includes a waiver of attorney’s fees by both parties and establishes what would happen depending on the outcome of the appeal.
Background of the Case
Special Counsel Todd Messenger, representing the City of Salina, provided the commission with an overview of how the case developed and where it currently stands.
Historically, Salina regulated signs based on whether they were used to announce, direct attention to, or advertise, as defined in city code. Under that definition, murals were not regulated, which allowed Salina’s public art culture to develop over time.
“As a result of that definition, a robust and celebrated culture of public art grew, and the city became well known for its murals,” Messenger said. “I think the envy of many other cities in terms of the quality of the artwork.”
The lawsuit was filed February 19, 2024, by the Cozy Inn, represented by the Kansas Justice Institute. After extensive discovery, depositions, and legal briefing, both sides filed motions for summary judgment, asking the court to decide the case without a trial.
On November 19, the court issued its ruling, granting and denying parts of those motions.
What the Court Ruled
According to Messenger, the court’s ruling focused on the city’s definition of a sign.
“The court held, among other things, that 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,” he said.
Messenger noted that the practical effect of the ruling was unclear.
“On the same day the order was issued, Salina311 reported that the practical implications remain somewhat unclear,” he said. “Not surprisingly, the parties have an honest disagreement about what the order means.”
The Agreement Approved by the Commission
Following negotiations with the plaintiff’s attorneys, the city reached an agreement outlining a five-part plan.
Filing an Appeal
The city will file a notice of appeal to the 10th Circuit Court of Appeals seeking clarification on what constitutes a constitutional definition of a sign.
“This is now a case of national significance, not because of what’s on the wall at the Cozy Inn, but because the definition of sign is something that’s actually really important in terms of sign regulation,” Messenger said.
Completion of the Cozy Inn Sign
Under the agreement, Cozy Inn owner Mr. Howard may complete the sign currently at issue. The city will not require additional permits or take enforcement action related to the sign during the appeal.
Future Compliance if the City Prevails
If the city ultimately prevails on appeal, Mr. Howard would have 180 days after the case concludes to bring the sign into compliance with city code as it exists at that time. Options could include resizing the sign, removing it, or pursuing a variance or other administrative relief.
“This is not a take-it-down order,” Messenger said. “It’s a let’s work together toward compliance period.”
Attorney’s Fees Waived
Both sides agreed to waive claims for attorney’s fees and costs. Messenger said the plaintiff’s pending request for approximately $100,000 in attorney’s fees would be withdrawn.
“We think that’s an important concession,” he said. “They didn’t have to do that, and we respect that.”
Stay of the Court’s Order
The parties will jointly request that the court stay its ruling during the appeal. This allows the city to continue distinguishing between murals and signs while the appellate court reviews the case.
Messenger said this would allow events such as the Boom Festival to continue operating under existing practices during the appeal.
Kansas Justice Institute Response
Roberts said the Cozy Inn remains prepared to continue the legal fight if necessary.
“Salina’s decision to appeal means The Cozy’s artwork is at risk,” Roberts said. “We’re ready to keep fighting for Steve’s First Amendment rights, no matter how long it takes.”
Roberts said the case could ultimately reach the U.S. Supreme Court.
“Whether that’s at the Tenth Circuit or the United States Supreme Court, we’re going to make sure those burger-esque UFOs stay flying at The Cozy,” he said. “We’ve been consistent since day one. Salina’s code, and the way it was enforced, was plainly unconstitutional.”
Roberts added that he is confident the Cozy Inn will prevail.
“We’re confident that, no matter how long it takes, Steve’s rights will be vindicated once and for all,” he said.
Cost and Timeline of the Appeal
Messenger estimated the appeal would cost no more than $50,000 through briefing and court-mandated mediation, with an additional up to $20,000 if oral argument is granted.
“As an economic proposition, the cost of the appeal would actually be less than the cost of paying the plaintiff’s attorney’s fees,” Messenger said.
If oral argument is scheduled, it would likely take place in Denver or Salt Lake City before a three-judge panel. A final decision is expected in 18 to 24 months, though timing is not guaranteed.
Commission Action
After the presentation, commissioners raised no follow-up questions. City staff indicated a public summary would be prepared for release.
The commission then voted unanimously to authorize the mayor to execute the stipulation and proceed with the appeal.
What This Means for Salina
In practical terms, the Cozy Inn sign may move forward, the city avoids immediate attorney-fee liability, and Salina’s mural and sign practices remain in place while the appeal proceeds.
“The hope is that through an appeal process, we can achieve some clarity and hopefully vindicate the city’s constitutional interests and its public art program,” Messenger said.
Salina311 will continue to monitor the case and report updates as the appeal moves forward.