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SALT LAKE CITY ORDINANCE
No. 31 of 2003
(Closing, vacating and abandoning a pedestrian access and passage easement
located on the former Main Street right of way)
AN ORDINANCE CLOSING, VACATING AND ABANDONING A PEDESTRIAN ACCESS AND PASSAGE EASEMENT LOCATED ON THE FORMER MAIN STREET RIGHT OF WAY BETWEEN NORTH AND SOUTH TEMPLE STREETS PURSUANT TO PETITION NO. 400-03-01.
WHEREAS, in April 1999 the City Council of Salt Lake City, Utah adopted Salt Lake City Ordinance No. 28 of 1999 closing a portion of Main Street between North Temple and South Temple Streets (hereinafter the "Main Street Property") conditioned on sale for fair market value, which Ordinance was amended in May 2000 by Salt Lake City Ordinance No. 29 of 2000;
WHEREAS, in accordance with Ordinance No. 28 of 1999, Salt Lake City Corporation (hereinafter the "City") and the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (hereinafter the "Corporation of the Presiding Bishop") executed an April 27, 1999 Special Warranty Deed (hereinafter the "Special Warranty Deed") in which inter alia (1) the City transferred its interest in the Main Street Property to the Corporation of the Presiding Bishop; (2) the City reserved an easement over and across the Main Street Property for pedestrian access and passage (hereinafter the "Pedestrian Easement"); (3) the City and the Corporation of the Presiding Bishop agreed that the reservation of the Pedestrian Easement did not create a public forum on the Main Street Property and was not intended to dictate whether the Corporation of the Presiding Bishop allowed or prohibited certain specified conduct enumerated in the Special Warranty Deed (hereinafter the “Restrictions”); and (4) the City also reserved easements for Emergency and Public Safety, Public and Private Utilities and the Preservation of a View Corridor (hereinafter collectively the "Other Easements");
WHEREAS, in November 1999, the First Unitarian Church and others filed suit against the City in the United States District Court for the District of Utah (hereinafter the "Federal Lawsuit") challenging, among other things, the Restrictions in the Special Warranty Deed and the Corporation of the Presiding Bishop subsequently intervened in the Federal Lawsuit;
WHEREAS, in October 2002, the United States Court of Appeals for the Tenth Circuit (hereinafter the “Court of Appeals”) held that the Pedestrian Easement created a public forum for purposes of the First Amendment to the United States Constitution and that the Restrictions in the Special Warranty Deed were unconstitutional;
WHEREAS, the Court of Appeals concluded in its decision that the First Amendment prohibited the City and the Corporation of the Presiding Bishop from guaranteeing public access through the Pedestrian Easement while at the same time prohibiting expressive activity on the Pedestrian Easement;
WHEREAS, in its decision the Court of Appeals further suggested that two of the City's permitted options were: (1) to retain the Pedestrian Easement and adopt reasonable time, place and manner restrictions on protected expressive activities; or (2) to relinquish the Pedestrian Easement so that the Main Street Property became entirely private;
WHEREAS, the Court of Appeals noted in its opinion that the City and the Corporation of the Presiding Bishop disagreed over the impact of the Court’s decision that the Restrictions in the Special Warranty Deed were unconstitutional, with the City contending that such a decision would eliminate the Restrictions, but not the Pedestrian Easement reserved by the City, and the Corporation of the Presiding Bishop contending that the City would lose the Pedestrian Easement;
WHEREAS, following the decision of the Court of Appeals, the City and the Corporation of the Presiding Bishop continued to disagree on the impact of the Court’s decision on the City's reservation of the Pedestrian Easement;
WHEREAS, the Court of Appeals’ decision resulted in much controversy and divisiveness in the community;
WHEREAS, in order to resolve the legal dispute over the Pedestrian Easement between the City and the Corporation of the Presiding Bishop and to bring an end to the divisiveness in the community, Mayor Ross C. "Rocky” Anderson proposed on December 16, 2002 that the City and the Corporation of the Presiding Bishop settle potential legal claims regarding the existence and the extent of the Pedestrian Easement on the following basis (hereinafter the "Settlement Proposal"):
(1) the Pedestrian Easement would be extinguished;
(2) the Special Warranty Deed would be amended to provide that the right of reverter in the Deed would be extinguished if a court deems restrictions on conduct or other expressive activity imposed by the Corporation of the Presiding Bishop unconstitutional by reason of the right of reverter;
(3) the City and the Corporation of the Presiding Bishop will each pay one-half of all costs and attorneys fees assessed in favor of the plaintiffs against the City in the Federal Lawsuit;
(4) there would be no agreement by the City and the Corporation of the Presiding Bishop regarding any restrictions on conduct or other expressive activities on the Main Street Property;
(5) the Corporation of the Presiding Bishop would donate to the City a certain parcel of land consisting of approximately two acres near the Sorenson Center in Glendale (hereinafter the “Glendale Property”) for the construction of one or more facilities by the City;
(6) the Alliance for Unity would commit to raise at least $4 million, which, combined with $1 million pledged by James Sorenson, will be used for the completion of facilities by the end of 2005 on or near the Glendale Property;
(7) The Corporation of the Presiding Bishop also would participate financially in the development of the facilities; and
(8) The City potentially would partner with others to provide programs at the facilities;
WHEREAS, on January 8, 2003, Mayor Anderson filed Petition 400-03-01 with the Salt Lake City Planning Division to close, vacate and abandon the Pedestrian Easement pursuant to the terms and conditions outlined in the Settlement Proposal;
WHEREAS, presentations were made by the Mayor's Office to various community councils and community organizations and the following groups gave their advisory approval of the Settlement Proposal:
Downtown Alliance
Capitol Hill Community Council
West Salt Lake Community Council
Chamber of Commerce
Greater Avenues Community Council
Central City Community Council
People’s Freeway Community Council
WHEREAS, the City created a website to provide information to the public about the Settlement Proposal, to provide transcripts of the “Question and Answer” segments of the community council meetings and to receive additional public comment;
WHEREAS, on or about February 27, 2003, the Salt Lake City Transportation Division prepared a Pedestrian Impact Study of Part-Time or Full Time Closure of the Main Street Plaza to Through Pedestrians, (hereinafter the “Pedestrian Impact Study”);
WHEREAS, on March 23, 2003, the Transportation Advisory Board voted to support the Settlement Proposal, concluding in part that the impact on pedestrian traffic would be minor based in part on the Pedestrian Impact Study;
WHEREAS, the City Council has considered and rejects the recommendation by the Transportation Advisory Board that the Corporation of the Presiding Bishop maintain public access for pedestrians and bicyclists across the Main Street Property and the City Council itself makes no such recommendation or finding;
WHEREAS, in April 2003 the City Planning Staff issued its Report on Petition 400-003-01, recommending that the Planning Commission recommend to the City Council inter alia that the Pedestrian Easement be extinguished and the donation of the Glendale Property be accepted by the City;
WHEREAS, on April 9, 2003, following public comment, the Planning Commission voted 4 to 3 not to follow the Planning Staff recommendation;
WHEREAS, in accordance with legal requirements, the City Attorney's Office commissioned independent appraisals of the market value of the Pedestrian Easement and of the Glendale Property by J. Phillip Cook & Associates and such appraisals dated May 2, 2003 and April 8, 2003 respectively have been delivered to the City;
WHEREAS, by stipulation dated April 24, 2003, the City and the plaintiffs in the Federal Lawsuit stipulated as to the plaintiffs’ attorneys fees and costs on the terms and conditions stated therein (hereinafter the “Stipulation”);
WHEREAS, the City Council has held public work sessions concerning the Settlement Proposal on May 27, May 29, and June 3, 2003; has held a public hearing concerning the Settlement Proposal on June 3, 2003 which was continued to June 10, 2003; heard comments from numerous citizens during the "Public Comment" segment of many City Council Meetings; and received many other written and oral comments from citizens;
WHEREAS, the City Council enacts this ordinance pursuant to and in compliance with the applicable provisions of the Utah Code, including §§ 10-8-8 et seq. and of the Salt Lake City Code, including Chapter 2.58;
WHEREAS, the City Council acknowledges that the closure, vacation, and abandonment of the Pedestrian Easement means there would be no legally enforceable right of public pedestrian access or passage on the Main Street Property; that the Main Street Property would no longer be a part of the public pedestrian transportation grid; and that the Corporation of the Presiding Bishop as the private owner of the Main Street Property would have the right to deny access to the public if it so wished;
WHEREAS, the Settlement Proposal is consistent with the City’s primary objective in entering into the original transaction: the promotion of tourism and economic development;
WHEREAS, appropriation of funds for the construction of new community facilities will be approved by the City Council pursuant to standard procedure through which the City Council considers inter alia broad benefit to the City and operations and maintenance costs;
WHEREAS, based upon the information and evidence presented in the City Council public work sessions, public hearing, staff briefing, and “public comments”; the Planning Commission hearing; and the Community Council meetings; the City Council finds as follows:
(1) if, following completion of the transaction, the Corporation of the Presiding Bishop, as the private owner of the Main Street Property, decides to close the Main Street Property to pedestrian access and passage, the impact on pedestrian traffic would be minor;
(2) the City never intended in the original transaction that expressive activities would be preserved on the Main Street Property;
(3) the Court of Appeals decision has left the City with an unintended responsibility to regulate protected expressive activities on the Main Street Plaza, with the attendant risk of litigation;
(4) even after the closure, vacation and abandonment of the Pedestrian Easement and resulting closure of the public forum on the Main Street Property, there will be ample alternate public forum space available for protected expressive activities in the immediate vicinity of the Main Street Property along North and South Temple Streets as well as in other areas of the City;
(5) during 1998, the year prior to the original transaction, no free speech permits were requested from the City for the Main Street sidewalks between North and South Temple Streets;
(6) the continued existence of the Pedestrian Easement is not necessary for use by the public as a sidewalk or pedestrian thoroughfare and closure, vacation and abandonment of the Pedestrian Easement will not be adverse to the general public’s interest;
(7) there is a good faith legal dispute between the City and the Corporation of the Presiding Bishop over the impact of the Court of Appeals’ decision on their original agreement;
(8) the controversy over the impact of the decision by the Court of Appeals on the original agreement between the City and the Corporation of the Presiding Bishop has had an extremely divisive and harmful effect on the Salt Lake City community;
(9) the donation of the Glendale Property by the Corporation of the Presiding Bishop and the donations by the Alliance for Unity and James L. Sorenson will enable the City to construct new and expanded facilities that will provide significant benefits to the community;
(10) the benefit of new community facilities in Glendale, promotion of tourism, resolution of divisiveness in the community, and voluntary settlement of the legal dispute between the City and the Corporation of the Presiding Bishop provide sufficient public policy reasons for the closure, vacation and abandonment of the Pedestrian Easement, and the closure of the Pedestrian Easement will enable the City to accomplish those public policy purposes;
(11) accomplishment of these public policy purposes through closure, vacation and abandonment of the Pedestrian Easement outweighs the benefits of any alternatives to the closure of the Pedestrian Easement;
(12) there is good cause for the closure, vacation and abandonment of the Pedestrian Easement and such action will not be detrimental to the public interest;
(13) the closure, vacation and abandonment of the Pedestrian Easement according to the terms of (a ) a Settlement Agreement to be executed by the City and the Corporation of the Presiding Bishop substantially in the form of Exhibit A (the “Settlement Agreement”), and (b) a Deed Conveying Easement Rights and Amendment to Special Warranty Deed substantially in the form of Exhibit B (the “Amended Special Warranty Deed”) is in the best interests of the City as a whole,
NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah, that:
SECTION 1. The Pedestrian Easement located on the Main Street Property, which is more particularly described in Exhibit C attached hereto, be, and the same hereby is closed, vacated and abandoned and declared no longer needed or available for use by the public for any purpose whatsoever, including but not limited to use as a sidewalk or as a pedestrian thoroughfare upon fulfillment of the conditions provided in Section 3.
SECTION 2. Reservations and Disclaimers. The above closure, vacation and abandonment expressly does not affect and in no way limits: (1) the obligation of the Corporation of the Presiding Bishop to use and maintain the Main Street Property as a landscaped space; (2) the Emergency and Public Safety Easement reserved by the City in Section 1.1 of the Amended Special Warranty Deed; (3) the Public and Private Utilities Easement reserved by the City in Section 1.2 of the Amended Special Warranty Deed; and (4) the Preservation of View Corridor Easement reserved by the City in Section 1.4 of the Amended Special Warranty Deed.
SECTION 3. Conditions. This closure, vacation and abandonment are conditioned upon the closing of the transactions pursuant to the terms of a Settlement Agreement between the City and the Corporation of the Presiding Bishop substantially in the form of Exhibit A hereto and an Amended Special Warranty Deed substantially in the form of Exhibit B hereto.
SECTION 4. Transfer of Title. Title to the Pedestrian Easement shall remain with the City until the closing pursuant to the terms of the Settlement Agreement.
SECTION 5. Amendment of Prior Ordinances. To the extent necessary, Salt Lake City Ordinance No. 28 of 1999 and Ordinance No. 29 of 2000 shall be and hereby are amended consistent with the terms and conditions set forth herein. SECTION 6. Effective Date. This ordinance shall become effective on the date of its first publication and shall be recorded with the Salt Lake County Recorder.
Passed by the City Council of Salt Lake City, Utah this 10th day of June, 2003.
Bill No. 31 of 2003.
Published: June 18, 2003.