SALT LAKE CITY PLANNING COMMISSION MEETING
In Room 326 of the City & County Building
451 South State Street, Salt Lake City, Utah
Present from the Planning Commission were Chair Jeff Jonas, Arla Funk, Robert “Bip” Daniels, John Diamond, Tim Chambless, Prescott Muir, Laurie Noda and Jennifer Seelig. Kay (Berger) Arnold and Peggy McDonough were not present at this meeting.
Present from the Planning Staff were Planning Director Louis Zunguze; Deputy Planning Directors Brent Wilde and Doug Wheelwright; and Planner Joel Paterson.
A roll is being kept of all who attended the Planning Commission Meeting. Mr. Jonas called the meeting to order at 5:18 p.m. Minutes are presented in agenda order and not necessarily as cases were heard by the Planning Commission. Tapes of the meeting will be retained in the Planning Office for a period of one year, after which they will be erased.
Approval of the Minutes from Wednesday, March 26, 2003
Mr. Muir requested the following changes to the minutes:
Page 7, fourth paragraph, first and third sentences shall be corrected to read, “Mr. Daniels asked if Mr. Priskos had had any dialogue with the applicant. He had tried to purchase the property before the applicant and the applicant had subsequently tried”, etc.
Page 8, fourth paragraph, second sentence shall be corrected to read, “The ordinance is structured so that the only exception for the square foot”, etc.
Page 8, fifth paragraph, second sentence shall be corrected to read, “Mr. Muir then asked”, etc.
Page 9, ninth paragraph, fourth sentence shall be corrected to read, “If the pad site is appropriate, he wanted to see agreements to cross access rights and future abandonment of any problematic curb cuts.”
Page 24, second condition of approval shall be struck.
Page 29, fourth paragraph shall be corrected to read, “Mr. Muir directed the Commission’s attention to page 35 of the Master Plan for a city-wide conservation district overlay ordinance.”
Page 30, second paragraph, second sentence shall be corrected to read, “Mr. Jonas hoped some of the national businesses,” etc.
Motion
Mr. Muir moved to approve the minutes of March 26, 2003 as corrected. Ms. Noda seconded the motion. Ms. Seelig, Ms. Noda, Mr. Diamond, Mr. Muir, Mr. Chambless and Mr. Daniels voted “Aye”. Ms. Funk abstained. Ms. McDonough and Ms. Arnold were not present. Mr. Jonas, as Chair, did not vote. The motion carried.
REPORT OF THE DIRECTOR
Mr. Louis Zunguze reported that the Land Use Appeals Board held a hearing on April 2, 2003 regarding the appeal filed the against the Planning Commission’s approval of the one lot Foothill subdivision on 1085 East Bonneville Drive. The Land Use Appeals Board voted to reverse and remand the decision of the Planning Commission. There was an acknowledgement in the decision that there were some conflicts between the site development regulations and the zoning ordinance. The Land Use Appeals Board also indicated that the Planning Commission had acted appropriately in taking steps to resolve that conflict by initiating a petition to change one or both of the ordinances. However, their decision was based on the fact that they felt the Planning Commission should have waited for those changes to go through the process and have them adopted by the City Council before the case was reviewed. The matter will come back to the Commission after the changes have taken place and the ordinances are adopted.
Mr. Jonas felt the Commission had received direction from the City Attorney that they could proceed with the case. Mr. Pace said that was correct. The Land Use Appeals Board essentially acknowledged the legal difficulty, but felt it was an abuse of discretion to proceed prior to the City Council amending the ordinance.
CONSENT AGENDA – Salt Lake City Property Conveyance Matters:
a. Catherine J. Keate and Salt Lake City Public Utilities - Requesting to continue the revocable permit for use of a small portion (6 feet by 29 feet) of the Jordan and Salt Lake City Canal as part of Ms. Keate’s fenced back yard at 5996 Monte Carlo Drive. This project is located outside Salt Lake City Limits
b. LDT Enterprises, LLC and Salt Lake City Public Utilities - Requesting as part of the submittal for D&T Company – (subsidiary of LDT Enterprises) landscaping to use a portion of the Goggin Drain easement to allow a joint use driveway for access, a storm drain box and a connection for drainage to the Goggin drain at 3955 West 700 South in Salt Lake City
c. Salt Lake Baptist Association and Salt Lake City Public Utilities - Agreement to grant a new easement to the City for the continued operation and maintenance of the CWE #1 Drain at 1235 West California Avenue in Salt Lake City.
d. The Kostopulos Dream Foundation and Salt Lake City Public Utilities – Requesting to extend the term of an existing 40 year lease that commenced in 1963, to a 75 year lease for the City owned property in Emigration Canyon that is occupied by Camp Kostopulos. There is also an existing sublease that is being allowed by this lease for excess/employee parking for the Sante Fe. This portion of the lease will expire in May of 2009. (Staff – Ray McCandless at 535-7282)
Mr. Daniels wanted to know if the sublease mentioned in item “D” for Kostopulos Dream Foundation and Salt Lake City Public Utilities was would also be extended. Mr. Wheelwright said that would be included in the Planning Commission’s action.
Motion
Ms. Noda moved to approve the property conveyance matter as outlined in the agenda and the staff report. Ms. Seelig seconded the motion.
Ms. Funk, Ms. Seelig, Ms. Noda, Mr. Diamond, Mr. Muir, Mr. Chambless and Mr. Daniels voted “Aye”. Ms. McDonough and Ms. Arnold were not present. Mr. Jonas, as Chair, did not vote. The motion carried
LONG RANGE PLANNING ISSUES
Mr. Zunguze reminded the Commission that they would have a retreat at the end of the month and would handle any long range planning issues at that time.
Mr. Jonas then updated the members of the Commission about Frank Gray, a consultant hired by the City Council, was in town for a meeting the day before. Some of the Commission members were able to attend that meeting, after which there was a Chairman’s Meeting with City Council members. The Commission will be seeing the TOD ordinance come back for review. Mr. Gray and the City Council felt the Walkable Communities ordinance needed more work, so that will also come back to the Commission.
PUBLIC HEARINGS
Petition No. 400-03-01 by Mayor Ross C. Anderson requesting to close, vacate and abandon the public pedestrian access and passage easement across the Main Street Plaza located on the former Main Street right-of-way between North Temple and South Temple streets.
As part of their consideration, the Planning Commission will consider:
1. Declaring Salt Lake City’s interest in the public pedestrian access and passage easement as surplus;
2. Forwarding a recommendation to the City Council to close, vacate and abandon the pedestrian and passage easement for the purpose of selling the easement for fair-market value to the adjacent property owner, the Church of Jesus Christ of Latter-day Saints; and
3. Forwarding a recommendation to the City Administration to accept certain real property located at 1375 South and 1385 South 900 West as partial payment for the sale of the public pedestrian and access easement.
Mr. Jonas acknowledged to the audience that this issue had been before the City over the last number of years and was quite divisive. He hoped that the meeting tonight would help all concerned to listen to all sides and resolve the issue. He reminded the audience that the Commission was only empowered to make a recommendation to the City Council about the abandonment of the easement, and to the City Administration with regard to accepting the surplus property. He assured the audience the Commission would do its best to assimilate all the information given in the staff report and in any testimonies heard that evening. The Planning Commission deals with land use issues. They must decide whether closing, vacating and abandoning the easement is consistent with the planning goals of the City. The Commission’s recommendations will be passed on to the City Council and City Administration for their final action.
Unlike most matters that come before the Commission, there are no standards upon which to base a decision for this particular petition. The Commission can find guidance in various other analogous ordinances dealing with street closures and other matters. But ultimately, the Commission must use the testimony and presentations at this meeting to make their decision. Mr. Jonas said the Commission would try to be fair to all parties involved. Any requests from certain parties to meet individually with the Planning Commission, or Planning Commission subcommittees, have been respectfully declined. The Commission did request a meeting with the City Attorney to go into executive session to understand some of the legal issues. It was the City Attorneys’ advice that they opine on the matter and would answer the Commission’s questions in a public forum. Thus, City Attorneys Ed Rutan and Lynn Pace were in attendance at this meeting.
Mr. Jonas then announced the schedule the meeting would follow and asked that when the general public came forward that they restrict their comments to new information. He reminded them that personal attacks would not be tolerated. The Commission would attempt to forward a recommendation to the City Council and City Administration at the end of the meeting, but Mr. Jonas indicated he had made it clear to the City Council and the members of the Planning Commission that the Commission was under no obligation to do so.
Mr. Jonas invited Mayor Ross C. Anderson to make his presentation. Mr. Mayor noted the various reading materials which had been made available for all of the public meetings regarding the matter at hand. The reading materials, which were also available at tonight’s meeting, included a brochure entitled, “A Turning Point for Peace”, the Mayor’s narrative, “Meeting the Challenges of the Main Street Plaza Controversy”, and a description of the first proposal made.
Two proposals will be referred to tonight. The first proposal has been commonly referred to as a “Time, Place and Manner Proposal.” It also defined the easement in a far more restrictive manner than in the special warranty deed, where it simply refers to the easement as running across the property.
The second proposal is the subject of Mayor Anderson’s petition. The Mayor began a slideshow presentation with the goals of: 1) explaining the problem; 2) how the second proposal came about; 3) to outline the approach to the issue; 4) to detail key components of the proposal; 5) to explain the process undertaken for community consideration of the issue; 6) to answer any questions; and 7) to solicit further input and support for what he believes is by far the best and most viable proposal for a resolution of this matter.
The Mayor expressed his desire to end litigation and divisiveness, and his wish to leverage as much good as possible out of the situation. The prior Administration should be taken into account, as well as the prior Planning Commission. The prior Planning Commission did recommend the approval of the street closure with certain First Amendment restrictions, including that there be no demonstrations against the Church of Jesus Christ of Latter-Day Saints on the Plaza.
That recommendation, as well as the reliance on both sides that significant restrictions would be allowed resulted in a legal conflict. The 10th Circuit Court found that the restrictions on conduct, which go beyond what the First Amendment would allow on public property, and the guaranteed pedestrian access by means of the City’s retention of an easement were incompatible.
This dispute has been very costly to the community and has caused much divisiveness. The divisiveness has diminished since the second proposal was announced. Creativity and compromise is needed. Past and continuing litigation has been financially burdensome. There are future litigation risks. The issue has distracted many City employees from attending to other important issues. Without a compromise, the dispute could last for years. Things cannot remain where they are. A solution is needed to end the divisiveness and costs.
The Mayor expressed his unhappiness with the situation because a deal was entered into between two parties in good faith and one of the two parties did not get what it bargained for. The Constitutional implications of the agreement were not fully understood at the time. The Mayor’s guiding principle and approach is that regardless of anyone’s personal feelings about the initial deal, there is an ethical obligation to give effect, to the extent Constitutionally possible, to intentions of the parties who negotiated the agreement in 1999. A group of law experts, ethicists, community leaders, former City Council members, and leaders of several faiths who have agreed to meet with the Mayor about this issue to consider the ethical and legal implications all agreed that this guiding principle should guide any decision making. Every option was then explored to honor that fundamental ethical principle.
The severability clause in the special warranty deed allows the City the legal right to keep the easement, even if the restrictions were later deemed unconstitutional or unenforceable by a court of law. The Church of Jesus Christ of Latter-Day Saints disagrees with that interpretation of the severability clause. Reliance on the severability clause ignores the obvious inequity that the Church would never have invested over $20 million in real property to create a noisy protest zone adjacent to its most sacred place. The Church considers the Plaza to be a sacred place as well.
The first proposal suggests defining the easement in a way the special warranty deed never did, and imposing Constitutional time, place and manner restrictions on the easement. The easement is about 10 percent of the entire Plaza. The Church had private property owner rights over the other 90 percent of the Plaza. The time, place and manner restrictions would limit group demonstrations to gathering areas on the north and south ends. There was no way to Constitutionally limit certain conduct along the entire easement, including handing leaflets, carrying signs, engaging some discourse and problems with noise levels. The first proposal is no longer viable given the threats of litigation and the fact that it is not supported by the property owner. There was increased divisiveness in the community with no end in sight after the first proposal was announced.
The extinguishment of the easement was suggested as a resolution by the Court of Appeals. The impacts of the extinguishment would be that there would be no legal guarantee of public access and passage, and that the Church of Jesus Christ of Latter-Day Saints would have full control of the property as a private property owner. Church leaders have indicated that the Plaza will remain open to pedestrians.
Under the proposal, the Mayor has suggested that the reverter clause be modified. Currently there is an agreement between the Church and the City that the City could take back the Plaza if it is not used for its intended purpose. The courts could say that if the City has rights under the reverter clause, First Amendment rights attach in the same way that First Amendment rights attached to the Plaza because of the City’s retention of an easement. To avoid litigation, it is suggested that if the courts rule that the First Amendment applies to the Plaza because of the existence of the reverter clause, that clause will be extinguished.
Another condition of the second proposal is that the City and the Church will each pay ½ of legal fees and costs incurred by the plaintiffs in the litigation. The Plaintiffs are entitled to fees and costs because thus far they are the prevailing party. The City would normally be responsible for all the costs.
Condition Four of the proposal is that there would be no agreement by the City regarding any restrictions. The private property owner would determine all restrictions. The Mayor believed we should all expect prohibitions at least as restrictive as those set forth in the special warranty deed.
Condition Five of the proposal is that the Church would donate land in the Glendale area, close to the Sorenson Center, for the creation of a Unity Center and to allow the expansion of the Sorenson Center. The Mayor indicated on a map where the property is located. The Glendale location was suggested because the Sorenson Center is bursting at the seams. Many problems and needs have been identified and should be addressed in the area. The area to be served by the new facilities would expand beyond the area served by the Sorenson Center. Residing in the area are 11,500 young people, 2,000 single mothers, and 1,700 children not served by early childhood programs. 28 different languages are spoken. The health clinic in the area is in capacity and presently serves only residents of the 84104 zip code.
Condition Six of the proposal is that the Alliance for Unity commits to raise $5 million for the creation of the Unity Center. Already, Jim Sorenson has committed to a $1 million matching gift, including the value of property he owns in the area that would help facilitate the development. The Jon M. Huntsman family and the George S. and Deloras Dore Eccles Foundation have together agreed to match $1 million.
Condition Seven is that the Church of Jesus Christ of Latter-Day Saint Foundation will participate with a financial contribution to the project. This money will not come from personal tithes of the members of the Church, but rather from funding received from Church business entities.
The programs and partnerships for the facilities have not yet been decided. The Mayor is looking for approval of the transfer of the property and conveyance of the easement, after which a public process will ensue. The City will discuss with the community what their needs and wants are for the facilities. It is anticipated that among the kinds of uses for the facilities will be an expanded health care center, business development, possibly in conjunction with the College of Business at the University of Utah, a legal clinic, in conjunction with the University of Utah Law School, early childhood and infant programs, expanded after school summer, employment and arts education programs, fitness and recreation facilities, English language proficiency classes, technology education programs and community meeting rooms.
The City engaged in a lengthy public process with respect to the Mayor’s petition, and described all of the above information, including the two different proposals. Public meetings were held for two months, during which time votes were taken at most of the Community Council and organizational meetings. The Downtown Alliance, Salt Lake Area Chamber of Commerce, the Transportation Advisory Board, and the West Salt Lake, Greater Avenues, Central City and People’s Freeway Community Councils voted in favor of the second proposal.
The Mayor would like to see the proposal move rapidly now through the Planning Commission to be presented to the City Council in order to move forward with the second phase of the public process, which is to determine what programs and partnerships will come about at the new community center. The process for developing second phase plans would begin with community meetings this summer and move towards the beginning of construction by the winter of 2004 and 2005.
Mayor Anderson raised the question of whether the City was selling away First Amendment rights on the Plaza. That question has to be asked in the context of everything that has come before this proposal. If First Amendment rights were bargained away, it was at the time of the initial transaction. The Planning Commission recommended the street closure with restrictions, and the prior City Administration agreed to the list of restricted activities. That was the agreement between the two parties and the Mayor believes the City is duty bound to do everything it can to meet, as far as Constitutionally possible, the intentions of the parties.
The proposal will bring peace while creating a valuable new community resource. The Mayor expressed his appreciation for the conscientiousness of the Planning Commission in the matter, and the burden that they share in trying to do the best thing given all of the complicated ramifications. The Mayor’s last slide listed web site and email addresses for community input.
Mr. Chambless then asked the Mayor how many man hours had been dedicated to the issue. The Mayor did not know specific man hours, but stated that he went through two and a half months of personal hell himself. He dealt with a lot of bitterness and anger. He believes an enormous amount of time has been spent on the issue.
Mr. Chambless asked how much litigation has cost the City. The Mayor said he believed it would be in the $150,000 to $200,000 or more range. He said he was specifically referring to the Plaintiff’s fees and costs that would have to be paid by the City. Under the second proposal, those costs would be split with the Church. The money does not include the many hours spent by the City Attorney’s Office in the last three years.
Mr. Chambless referred to the 10th Circuit ruling and asked the Mayor how confident he was that the second proposal would stand up in court. The Mayor believed the City had looked carefully at the proposal and also asked the ACLU to meet with them and talk about concerns. The Mayor had read other cases and seen that Civil Libertarians have been pursuing a theory against private property owners with the result that the private property owners may refuse to guarantee public access on to their property. Some Civil Libertarians have demanded fences and/or walls, which the Mayor felt was a strange approach.
Mr. Chambless asked if the U.S. Supreme Court accepted this case, how that would interact with time frames and cost to the City. The Mayor said the City could be subject to a lot more fees and costs even if it came out in favor of the Church. Nothing much at that point would be solved. Time, place and manner restrictions would always be subject to some challenge. He believes the second proposal is the best means for bringing the matter to an end.
Ms. Seelig liked the plans for the Glendale facilities. She asked if the only way the Alliance for Unity and the Church of Jesus Christ of Latter-Day Saints will participate in the funding of the facility is if the easement is extinguished. The Mayor said the genesis of the proposal was a means to bring peace. It was his request. Part of the equation in terms of raising the rest of the money for the facility was to effectuate a resolution to a very divisive issue.
Mr. Muir asked why the linkage of the property exchange was coming before the Planning Commission. The Mayor said it would have been misleading not to lay out the entire proposal. Mr. Muir asked if the Commission felt more comfortable to act upon the easement extinguishing issue, but passed on the economic implications or property exchange, would it jeopardize the proposal at the City Council review. The Mayor believed it would not.
Mr. Daniels referred to some information in the literature which talked about the value of the easement. He asked if the value of the easement had been assessed as yet. The Mayor said it had not.
Mr. Daniels asked if the proposed Unity Center would be part and parcel of the Sorenson Center. The Mayor said there would be interaction between the two because they were close to each other. However, the Unity Center will be developed by the Alliance for Unity in conjunction with the City and other partners.
Mr. Daniels asked how much of the already committed $5 million was earmarked for the existing Sorenson Center and future expansion. The Mayor said none.
Mr. Jonas asked what the turning point was that made the Mayor abandon the first proposal. The Mayor said he had allowed for two gathering places for demonstrations on the Plaza in the first proposal. When the ALCU sent a letter to him saying that to avoid litigation, the first proposal needed to allow for at least five people to demonstrate across the entire Plaza, he felt perhaps the first proposal should be taken off the table. Ironically, this letter arrived on the same day five preachers were on the Plaza yelling down a wedding party and rudely refusing to move for the wedding party to have photographs taken in front of the temple. He believed even before this incident that there was an increase in divisiveness in the community over the issue. The rejection by the Church of the first proposal was another reason he felt the second proposal was needed.
Mr. Jonas asked for clarification about the protesters being allowed on the Plaza under the first proposal. He asked if only single individuals could demonstrate across the Plaza, and if groups were only allowed in the designated gathering points. The Mayor said the City had been advised that there was no Constitutional way to prevent people singly walking along the easement with signs, leaflets and expressing themselves. He said some people could be very disruptive, rude and obnoxious.
Mr. Jonas asked why the Mayor did not get rid of the reverter clause all together. The Mayor said if it did not cause legal problems, it ought to be in place so that the property is used for the purposes agreed upon. Mr. Jonas was concerned the reverter clause would continue the divisiveness. The Mayor disagreed. The reverter clause simply says if the property is not used as promised, it could revert back to the City.
Mr. Jonas thanked the Mayor and invited Planner Joel Paterson to speak next. Mr. Paterson reviewed the petition as written in the staff report. The Planning Commission is being asked to make a decision on three issues:
1. Forwarding a recommendation to the City Council to close, vacate and abandon the pedestrian and passage easement for the purpose of selling the easement for fair-market value to the adjacent property owner, the Church of Jesus Christ of Latter-day Saints (LDS Church);
2. Declaring Salt Lake City’s interest in the pedestrian access and passage easement as surplus; and
3. Forwarding a recommendation to the City Administration to accept certain real property located at 1375 South and 1385 South 900 West as partial payment for the sale of the public pedestrian and access easement.
The City Council passed an ordinance to close the Plaza section of Main Street in April 1999. Subsequent to the closure, a special warranty deed was prepared to transfer the property rights from the City to the Church of Jesus Christ of Latter-Day Saints. The warranty deed included the ability of the Church to restrict behavior on the Plaza. Also included in the special warranty deed were four easements:
1. Pedestrian Access and Passage Easement: The City retained an easement that allows pedestrians access and passage across the Main Street Plaza twenty-four hours a day subject to other conditions, limitations and restrictions on the expressive behavior of users of the easement (see Attachment 7 – Special Warranty Deed). The deed also states, “nothing in the reservation or use of this easement shall be deemed to create or constitute a pubic forum on the property”. This provision of the deed was found to be unconstitutional by the United States Court of Appeals for the Tenth Circuit (10th Circuit Court).
2. Emergency and Public Safety Easement: This easement retains the right of access and passage by emergency and pubic safety personnel and vehicles without limitation.
3. Public and Private Utilities Easement: This easement provides for the operation, maintenance, repair, alteration, replacement, enlargement and emergency access, of all existing pubic and private underground utility lines, including, without limitation, water, sewer, storm drain, telecommunications, electrical, gas, fiber optic and cable lines.
4. Preservation of View Corridor Easement: In order to preserve the view corridor to the Daughters of the Utah Pioneers Museum and to Ensign Peak, this easement prevents the LDS Church from erecting any occupied buildings on the property except for kiosks and information booths.
The Mayor’s proposal effects only the first easement for pedestrian access and passage. The other three easements will remain in place.
In November of 1999, a lawsuit was filed on behalf of several plaintiffs challenging the right of the City and Church to limit the behavior on the Plaza and limit First Amendment rights. The 10th Circuit Court ruled in October of 2002 that the agreement did violate the Constitutional rights of freedom of expression. The petition before the Commission is an attempt to satisfy the issues raised by the lawsuit.
The Mayor’s proposal has been presented to at least six community councils, including Capitol Hill, Avenues, Central City, People’s Freeway, Rio Grande, and West Salt Lake City. It was reviewed by the Salt Lake City Chamber of Commerce and the Downtown Alliance, both of which voted in support of the proposal. The Transportation Advisory Board reviewed the proposal in March of 2003 and voted in support of it.
As Staff reviewed the petition, they looked at the City’s master plans and found that the sale and closure of this portion of Main Street was first considered in 1962 as part of the City’s second century plan. That plan envisioned the enclosure of this street to help create a unified campus for the Church of Jesus Christ of Latter-Day Saints. Other master plans have supported this concept. There are many elements of these master plans that may be relevant to the closure of Main Street and the importance of providing or enhancing public access to open space, and improving the quality of urban design in the downtown area. None however, specifically address the issue of the closure of the pedestrian access easement across the Main Street Plaza. The master plans provide general guidelines and policy statements that may assist the Planning Commission in reviewing the petition. Staff finds that no City master plans specifically address the pedestrian access and passage easement. None of the master plans would preclude the Planning Commission from making a recommendation to vacate, close and abandon the easement.
The City Council has some policy guidelines concerning street closures. There are no specific policies to help guide the Commission or the Council in a situation calling for the closure of an easement. However, since the easement is over a remnant of a past City street that has since been closed, Staff is proposing that the Commission consider the City Council’s two policies for closing public streets. Those policies are:
1. There should be sufficient public policy reasons that justify the sale and/or closure of the public pedestrian easement, and it should be sufficiently demonstrated by the petitioner that the sale and/or closure of the easement will accomplish the stated public policy reasons.
The Mayor has outlined his proposal and the benefits anticipated from the petition.
Finding: Based on the previous discussion, there are sufficient public policy reasons that justify the sale and closure of the public pedestrian access and passage easement across the Main Street Plaza.
2. The City Council should determine whether the stated public policy or policies outweigh alternatives to the sale or closure of the easement.
The staff report included a list of several options that the City Attorney’s Office has identified that could be considered to satisfy the issues before the Commission. They are as follows:
1. Seek Further Judicial Review of the Court of Appeals Decision. The only sure way for both the City and the LDS Church to receive the full benefit of their bargain is if one or both of them prevail in an appeal of the decision by the Court of Appeals. At this point, however, there is no right to any additional appeals. Rather, any further judicial review must occur by petition, which may be granted or denied at the discretion of the reviewing court. If either the Court of Appeals, en banc, or the U.S. Supreme Court accepts the petition for further review and reverses the Court of Appeals panel decision, both the City and the LDS Church would be able to obtain the full benefit of their bargain pursuant to the terms originally contemplated between the parties.
A petition for review can be filed by any party. If such a petition is granted, the parties may present additional legal briefings and additional oral argument. Thus, regardless of which party petitions for further review, if such a petition is granted, the City should participate fully in that appeal in order to protect the City’s interests in maintaining the easement.
2. Outright Conveyance of the Easement to the LDS Church. The City could convey the public access easement to the LDS Church without reserving any legal right for public access to the property. As noted above, the Court of Appeals specifically indicated that such a conveyance of the property would eliminate the right to free speech on the property. (See Opinion p. 14.) This approach would give the LDS Church the benefit of its bargain (i.e. the ability to control conduct on the Plaza) but it would not provide the City with one of the benefits it was to receive, i.e., a legally enforceable right to public access. Without the easement, the City would not have a legal right to demand access to the Main Street Plaza. In addition, although the City’s conveyance of the easement to the LDS Church would provide the benefit of the bargain to the LDS Church, it would do so only at the expense of the benefit promised to the City.
3. Conveyance of the Easement to the LDS Church Subject to a Possibility of Reverter (or Right of Entry). The Court of Appeals held that the City’s public access easement was a sufficiently significant property interest that free speech rights attached to it. The Court might rule differently if the City retained a less significant interest. Therefore, the City could convey the easement to the LDS Church, subject to a possibility of reverter if the LDS Church does not allow public access across the property.[2] If continued public access were not allowed, the easement could revert to the City at the City’s option, or the City could sue the LDS Church for specific performance. The advantage of this arrangement would be that the City would divest itself of all ownership in the property, except for the possibility of reverter (or right of entry).
It is fairly well established that the conveyance of property subject to a possibility of reverter is nonetheless a conveyance of the property in fee. See Helvering v. Hallock, 60 S.Ct. 444, 458 (1940) (“a possibility of reverter is traditionally defined as the interest remaining in a grantor who has conveyed a determinable fee.”) See also Sine, Handbook of the Law of Future Interests, § 13 (2nd Ed. 1966) (a possibility of reverter “cannot be a reversion because the grantor has conveyed an estate in fee simple…”) In addition, the possibility of reverter is not a vested real property interest. Id.
In analyzing whether the City’s easement was a “significant enough” property interest for free speech rights to attach, the Court of Appeals noted that government condemnations of easements are takings under the Fifth Amendment that entitle the condemnee to compensation. That was evidence that an easement is a “significant” property interest. (See Opinion at 15-16.) In contrast, courts have also held that generally a possibility of reverter is not a significant enough property interest to require compensation under the Fifth Amendment in the event of government condemnation. See Midwestern Developments, Inc. v. City of Tulsa, Oklahoma, 374 F.2d 683 (10th Cir. 1967) (applying Oklahoma law); and First Reformed Dutch Church of Gilboa, N.Y. v. Crosswell, 206 N.Y.S. 132 (N.Y. App. Div. 1974).
In its opinion the Court of Appeals indicated that if the City did not wish to preserve free speech on the property, “it must relinquish the easement so the parcel becomes entirely private.” (See Opinion at p. 14.)
If the transaction were restructured so that the City conveyed the property to the LDS Church, subject only to a possibility of reverter if the LDS Church did not allow continued public access, it could be argued that the LDS Church would then hold title to the entire property in fee and that the property had now become “entirely private.”
It is not clear if the decision of the Court of Appeals was based upon the particular mechanism by which the City preserved public access (easement vs. possibility of reverter), or upon the prior history of this property and the fact that the property continues to function as a public thoroughfare. Thus, if by virtue of the City’s restrictions on use, the property continues to function as a public thoroughfare, the mere fact that the City has assured that continued public use by virtue of a possibility of reverter, rather than through an easement, may not be significant enough to change the Court’s analysis.
Although the exercise of this option would provide much for which the City and the LDS Church bargained (restrictions on speech and a conditional assurance of public access), it would surely be challenged for the same reasons that the original transaction was challenged. In addition, under this option, the City would not receive exactly the same as what it had bargained for under the initial transaction because the assurance of access through a public easement would be enforceable by any member of the public. In contrast, the assurance of continued access through a possibility of reverter would likely be enforceable only by the City, and would depend upon the inclination of any particular City administration to enforce it.
4. Conveyance of the Easement to the LDS Church With an Executory Interest in Favor of a Third Party. The City could convey the easement to the LDS Church subject to an executory limitation that if continued public access is not allowed the easement would then vest in a third party, or the third party could sue the LDS Church for specific performance. Under these scenarios, the City would have relinquished all rights in the easement, which would then render the property entirely private.
However, the property would continue to serve the same function (i.e. continued thoroughfare access). In addition, since the purpose of this executory limitation would be for the benefit of the public, one might argue that the transfer of the right to divest from the City to the third party should not alter the court’s analysis of this issue. In its opinion, the Court of Appeals indicated that if property is regulated or burdened by the government, the mere fact that it is privately owned may not eliminate the public forum status of the property. See Opinion, pp.7-8. See also Evans v. Newton, 382 U.S. 296 (1966), (property which continued to serve the same public function under private ownership as it had previously served under public ownership (i.e. a public park), was not insulated from constitutional requirements.)
5. Non-Severability Clause. The City could structure one of the alternatives discussed in paragraphs 3 or 4 above together with a non-severability clause providing that if the restrictions on speech and conduct intended by the parties are held to be unconstitutional by a court of competent jurisdiction, the City’s possibility of reverter on the property would immediately cease and the property would vest in the LDS Church, without any rights retained by the City at all.[3] The purpose of this approach would be to discourage challenges to the transaction, by the risk that if a challenge were successful, the right to public access would automatically be extinguished. It is unclear how a court might respond to such a non-severability clause.
However, the addition of such a “poison pill” clause would significantly alter the nature of the original transaction. The severability clause in the Special Warranty Deed specifically preserves the City’s public access easement, regardless of the constitutionality of the proposed restrictions on speech and conduct. If a non-severability clause were included, the continued existence of the City’s easement would then be dependent upon the constitutionality of those restrictions.
6. Time, Place and Manner Restrictions. The Court of Appeals decision clearly indicated that the City could impose content-neutral time, place and manner restrictions on speech on the easement and suggested that the City could, at least to some degree, take into account the nature of the adjacent properties in formulating those restrictions. (See Opinion p.14.) Many such restrictions on the use of public sidewalks already exist in the City Code. However, if the City wishes to impose additional time, place and manner regulations, it must have governmental interests justifying such restrictions. In addition, the formulation of such regulations would not eliminate the right of free speech on the property.
7. Maintain the Status Quo. In attempting to ensure that the City and the LDS Church both receive, as nearly as constitutionally possible, the benefits of their bargain, it must be noted that the parties anticipated the risk that the restrictions on conduct and other expressive activities might be deemed unconstitutional. For that reason, they agreed to the severability clause contained in paragraph 6.2 of the Special Warranty Deed. The terms of the Deed clearly reflect that the parties intended the easement to remain in force, even if the restrictions were deemed to be unconstitutional. Thus, if there is no means of keeping the challenged restrictions in effect, other than abandoning the legally enforceable right of public access, the only means of achieving the agreement of the parties is to maintain the status quo, with appropriate time, place and manner restrictions as discussed above.
Of the options described above, only three appear to be three viable:
• Option 1 – Seek Further Judicial Review. The City could wait to determine what further decisions may be issued by the courts. The LDS Church has petitioned the United States Supreme Court to review the decision of the 10th Circuit Court. The City has filed a brief in support of that petition. There is no guarantee that the Supreme Court will accept the petition, or if it were accepted, what the Supreme Court would decide.
• Option 2 – The Current Proposal. This option includes the benefits the City will receive from selling the easement. As described above, these benefits include the potential to bring peace to the community, as well as the development of the Unity Center, expansion of the Sorenson Multi-Cultural Center and the ability to provide additional needed services in the community.
• Option 6 –Time, Place and Manner Restrictions. As discussed on page 3 of this report, the Mayor considered this option and chose not to pursue it because the LDS Church would not support it, the potential for litigation and a perceived lack of political support. Pursuing this option would not guarantee the City’s ability to expand the Sorenson Multi-Cultural Center or add the needed programs in Glendale.
After reviewing and evaluating the options available, the Mayor chose to petition the City Council to vacate, close and abandon the pedestrian access and passage easement (see Option 2).
Finding: All of the other alternatives leave the problems (divisiveness) unresolved, and this proposal is the only one that would give the City the resources necessary to develop the Glendale facility. Thus, Staff finds that the benefits of this option outweigh the other alternatives.
Staff based their recommendation based on the review of the City’s land use, urban design, and access and policy guidelines, and the potential community benefits associated with the proposed vacation. Staff finds that there are no significant adverse impact on the existing land use and design policies and guidelines. The Transportation Advisory Board found that the possible impact to the transportation system if the Church did close public access to the Plaza would be minor.
Based upon the analysis and findings presented in this report, Staff recommends that the Planning Commission:
1. Forward a recommendation to the City Council to close, vacate and abandon the pedestrian and passage easement for the purpose of selling the easement for fair-market value to the adjacent property owner, the Church of Jesus Christ of Latter-day Saints.
This recommendation is subject to Salt Lake City receiving remuneration equivalent to the fair-market value of the Main Street Plaza pedestrian access and passage easement as determined by an appraisal acceptable to Salt Lake City Property Management Division.
2. Declare Salt Lake City’s interest in the pedestrian access and passage easement surplus.
3. Forward a recommendation to the City Administration to accept certain real property located at 1375 South and 1385 South 900 West as partial payment for the sale of the public pedestrian and access easement.
Ms. Funk said she felt the first two recommendations made in the staff report were the most pertinent. The third recommendation was not pertinent to the decision about whether giving up the easement damages the City. Mr. Paterson said that based on a recent court decision in the state, the Planning Commission must make a recommendation to the Administration whether or not to accept any property either bought or sold. It is the responsibility of the Planning Commission to make a recommendation before the property can be accepted.
Mr. Chambless asked Mr. Paterson to clarify the 1962 master plan’s proposed closure to separate the Capitol Hill area from the central downtown business district. Mr. Paterson said the master plan envisions the closure of Main Street to create a cohesive campus for the Church. It also viewed some benefits coming out of that, such as providing a buffer from the central business district to the downtown residential neighborhoods to the north.
Mr. Chambless said almost every major city has a street called Main Street, which is metaphorically thought of as the heart and soul of a city. To effectively block a main street thoroughfare to the capitol of the state from the downtown central business district of the largest city seemed to be working at cross purposes. Mr. Paterson said the policy makers and other elements which created the master plan found benefits to providing urban design amenities downtown. The LDS temple and campus is perhaps the largest tourist generator in the state. There are other avenues of passage through this area into and out of the Capitol Hill area. Another policy the master plan envisioned was creating and protecting open space. To that end the City worked to develop the City Creek Park. The City policy makers have found over time that there are benefits to closing the segment of Main Street.
Mr. Chambless asked Mr. Paterson to clarify if there was a precedent for closing an easement, but not one for closing a street. Mr. Paterson said for closing an easement such as this, the City was using the City Council’s street closure policies. It is not uncommon for the City to vacate easements. Typically easements that are vacated are public utility easements on a subdivision plat, which do not require a public process to close. All that is required is a notice from the people who have interest in the easement, and a letter agreeing to the extinguishment of the easement from the public utility provider. In this case, Main Street was a public right-of-way. It is a contentious issue and the City felt a public process was warranted.
Ms. Seelig asked if the Glendale Community Council was a part the of the West Salt Lake Community Council? Mr. Paterson said the Glendale area is within the West Salt Lake Community Council.
Ms. Seelig asked if there are public access easements that exist across private property in Salt Lake City now – property that was once public. Mr. Paterson said there are a great number of easements now that the City owns crossing privately owned land. Some of the land used to be publicly owned, for example some of the areas in the Foothills above the Capitol. The Ensign Downs area was once owned by the City, and the City owns a number of access easements over that property to provide access to the Foothill trails. The City owns pedestrian easements downtown – for example at the Gateway Mall. There is an easement that goes through the lobby of the Union Pacific Depot. Rio Grande Street is not a public street, but there is a pedestrian access easement across that as well.
Mr. Jonas said a number of references to provisions of community plans mentioned in the staff report appear to be in conflict with the proposal. Mr. Paterson said most of the policies are fairly general. None specifically address the proposal. The staff report mentions that it is not uncommon to have conflicting statements in a master plan for certain proposals. Those are guidelines for the Commission and City Council to consider and the benefits for or against a proposal and then to make a value judgment. Mr. Paterson maintained that Staff believed there are no provisions in the master plans that would prohibit the Commission from making a decision to vacate, close and abandon the easement.
Mr. Jonas invited a representative of the Church of Jesus Christ of Latter-Day Saints to come forward and speak. He asked the remaining number of presenters to restrict their comments to 10 minutes or less.
Mr. Alan Sullivan, an attorney representing the Church of Jesus Christ of Latter-Day Saints, spoke next. He read the staff report earlier in the week, and stated that the Church supports the Mayor’s proposal for the same reasons that the Planning Commission staff does, and one other reason as well. The Church agrees with the Planning Commission staff that this proposal promises to provide the Glendale Community, and indeed the City, with a valuable public asset that is needed and will benefit people for generations to come. This is a golden opportunity to capitalize on the interest in the issue and to resolve the issue. The Mayor’s proposal should end the divisiveness and contention that has troubled the community since the 10th Circuit Court’s decision was issued in October 2002.
The Church also believes the proposal honors the parties’ original intention in a very significant way. The parties specifically agreed in the special warranty deed that Main Street Plaza would not be a public forum. Under the Mayor’s proposal there will remain no plausible argument to support the existence of a public forum. The parties to the original transaction also agreed that there would be a guaranteed right of public access and passage. That would now be extinguished, and the Mayor’s proposal honors the parties’ intentions by providing the City with a very significant set of elements of consideration in return for the public right of access and passage. The Church would provide 2.17 acres of land in Glendale, and has agreed to pay ½ of the taxable legal and attorneys fees that would otherwise be taxed 100 percent to the City. The Alliance has agreed to raise $5 million in donations to provide funds for the construction and development of the Glendale Center.
Mr. Sullivan has been to every Community Council meeting on this issue. The Community Councils have not taken the issue lightly. There has been a very significant degree of support for the Mayor’s proposal. People view this as a way of bringing the community together, and the Church agrees. The Church of Jesus Christ of Latter-Day Saints urged the Planning Commission to support the Mayor’s second proposal.
Mr. Chambless then asked Mr. Sullivan’s opinion on whether the second proposal would withstand the legal scrutiny it may experience if appealed to the 10th Circuit Court. Mr. Sullivan said the short answer to that question is yes. The City has fashioned a solution designed to avoid Constitutional challenge.
Mr. Chambless asked if Mr. Sullivan was confident that a land trade would resolve possible questions with regard to the First Amendment. Mr. Sullivan said yes. The First Amendment issue arises because the City owns a public access and passage easement over Main Street Plaza. The 10th Circuit Court itself suggested that one of the ways to eliminate a First Amendment forum is for the City to extinguish the easement. The only way the City can extinguish the easement is in return for adequate consideration. The Church believes the City will be receiving ample consideration under the Mayor’s second proposal.
Mr. Chambless asked if Mr. Sullivan agreed that a public sidewalk constitutes a traditional public forum. Mr. Sullivan said yes. He hoped it was very clear in the Mayor’s proposal that there would be no right of public access and passage if the proposal is approved and executed. It is essential to avoid any Constitutional question to extinguish the easement, since that was the foundation for the 10th Circuit decision that there was a public forum. The Church will necessarily have to retain the right to exclude anyone from Main Street Plaza. However, Mr. Sullivan wanted to make it very clear that the Church built the Plaza to welcome the public.
Mr. Chambless asked if a particular dress code would be enforced. Mr. Sullivan said he doubted that.
Ms. Noda raised the issue of walling off the Plaza and referenced a casino case called “Venetian vs. the Local Executive Board of Las Vegas.” This case would indicate the Plaza would have to be walled to prevent a public forum. She asked for Mr. Sullivan’s analysis of the case. He said the Church disagrees, because the Church under the Mayor’s proposal would have the right to exclude anyone as private property owners. In the Venetian case, it was a public sidewalk along Las Vegas Boulevard. The important point was that the Venetian did not have the right under the legal transaction that occurred there to prevent the public from walking over the sidewalk. The Church has no intention of walling off the property.
Ms. Noda said that would not prevent the ACLU from suing under the Venetian standard. The Mayor’s proposal does not end the threat of litigation. Mr. Sullivan said one could never prevent people from suing. However, he believes the Mayor’s proposal will eliminate any plausible threat of litigation that would succeed under the First Amendment or the Establishment Clause.
Ms. Noda noted that since the ACLU would most likely sue, this proposal would not end the divisiveness. Mr. Sullivan believed a substantial majority of the community wanted the divisiveness to end and are satisfied with the Mayor’s proposal. He submitted to the Commission that there was absolutely no solution to the Plaza problem that would make everyone happy, and would not result in some threat of litigation.
Ms. Noda asked about the Church’s position on time, place and manner restrictions. Mr. Sullivan said the Church opposes time, place and manner restrictions as a solution to the problem. It is the Church’s position that time, place and manner restrictions on Main Street Plaza would invite protest, not alleviate it. It would create the protest venue of choice in the state and every dissenter on every issue would choose Main Street Plaza to protest along the entire 660 feet. This was not the original intended use for the Plaza by either party. It was intended all along to be a place of quiet and serenity that was suitable to the Church’s most sacred sites.
Ms. Noda asked if Mr. Sullivan was aware that other cities have imposed time, place and manner restrictions on public sidewalks. He said he was sure those restrictions had been implemented all over the country in different contexts.
Ms. Noda asked if Mr. Sullivan was present for the Glendale Community Council meeting on the issue. He said he was. Ms. Noda asked what the vote was at that meeting. Mr. Sullivan clarified that it was the West Salt Lake Community Council, of which Glendale is a part, and that the vote was 38 for the proposal, 19 opposed, and six abstentions.
Mr. Diamond asked what, if any, proposals the Church brought to the City to offer solutions to the issue. Mr. Sullivan said the Church did not come up with a separate proposal, believing that this was something that had to be generated from the City. The Mayor came up with a logical proposal that would work for everyone.
Mr. Jonas asked if it was Mr. Sullivan’s legal opinion that there was no way the Church could provide any kind of guaranteed access. Mr. Sullivan said no. No one suspected at the time of the original transaction that a public easement would create a First Amendment forum. The intent of the parties usually governs. To avoid the risk of that happening again, both the City and Church believe the public easement must be extinguished as suggested by the 10th Circuit Court.
Mr. Jonas asked if the Church understood that a significant problem in the community would be created if the easement was extinguished, and the Church in the future decided to stop access to the Plaza. Mr. Sullivan said the Church was aware it would create a problem for itself, and what the public relations consequences would be if it were to stop access to the Plaza. He clarified again that by extinguishing the easement the Church would have legal authority to exclude anyone it wished and would retain the right to prevent public access. However, he repeated that the Church’s purpose of building the Plaza was to invite the public to that location.
Mr. Jonas invited a representative of the First Unitarian Church to speak next. None came forward. Mr. Jonas then invited a representative of the Sorenson Center to speak.
Mr. Rick Graham, Director of Public Services for Salt Lake City, spoke next. He manages the youth programs for the City. The Sorenson Center is the one and only youth center operating in the City. As a department head who is heavily involved in support the needs of the City’s youth, he believes the Sorenson Center is a wonderful facility that meets a variety of at-risk and community needs. The facility has now become too small, and there are waiting lists for programs. The City has anticipated for several years that the facility needs to be expanded. Some fund raising contacting had already been accomplished before the Mayor’s proposal for the Unity Center. There is great need in the Glendale community. Therefore, the Sorenson Center supports the Mayor’s proposal.
Mr. Jonas said he had read the West Salt Lake Community felt there was a dearth of programs for the elderly, and the Sorenson Center was focused solely on the youth. Mr. Graham said that was one of the deficiencies at the Center. The Center was built with the priority of serving the City’s youth in mind. As the Center has expanded, some programs have been offered to the elderly. The vision and goal of the Center is to meet all of the community’s needs, including the elderly.
Mr. Chambless asked to what extent language was a problem at the Center, specifically those who had not yet master English. Mr. Graham said there was a problem with that in the community in general. One school in the area has students speaking 28 different languages. There are some employees at the Center who speak a few of the languages. Communication is a problem, but a recreation center can break down language barriers and still have wonderful activities to connect with the kids.
Mr. Jonas invited a representative of the ACLU to speak. Mr. Steven Clark, former legal director of the ACLU of Utah, spoke next. He is now an attorney in private practice. He was the principle architect of the lawsuit which went to the 10th Circuit Court. He said that peace was not always an absolute good. Sometimes divisiveness and even more advanced forms of contention are necessary to truly resolve issues. He suggested that the Mayor’s proposal would bring an illusion of peace. He supports a community center on the west side. He does not think a center on the west side and the Main Street Plaza conflict should be connected in any way.
Mr. Clark said the Planning Commission met three years ago to consider the very issues that are now being discussed. The Commission foresaw several issues and identified a straightforward way of dealing with them. The Commission said that if Main Street was sold, a reservation of easement should be retained by the City. The Commission felt this was critical because the City master plans stated that pedestrian access in the heart of downtown was essential. The first condition of the original transaction was that an easement be retained. The City Council repeated the condition in it’s ordinance as well.
The Commission also foresaw the Constitutional issues that subsequently arose. A second condition was imposed on the sale of Main Street; the property had to be regulated like a public park. This meant existing city ordinances that regulate time, place and manner of First Amendment expression would be applied on Main Street Plaza. Although the Church expressed no opposition to this, the condition ultimately was not made part of the deal. The inconsistency of the City demanding public access, and the Church’s insistence to regulate conduct on the Plaza resulted in the lawsuit.
The ACLU supports the concept of time, place and manner regulations on the Main Street Plaza. First Amendment activity can co-exist even with the most vigorous use of the Main Street Plaza as a pedestrian thoroughfare. It is not always pretty. However, Mr. Clark thought the protesters during the Church’s General Conference managed to co-exist with Plaza users and there was a chance to exchange views.
Mr. Clark said the land swap proposal will do anything but buy peace. It does not address the fundamental legal issue that the Plaza remain open to public and pedestrian access 24/7. Main Street is a traditional public forum that has historically been open to First Amendment activity. The ACLU’s position is that you cannot artificially strip away the First Amendment protections that normally attach to public space simply by conveying title to the property to a private property owner. The courts will look at the property in light of whether it was a historic public forum and if it continues to have the attributes, appearance and function of a traditional public forum. Mr. Clark believes that is the case today and will continue to be the case even if the land swap goes forward. The only way to address the public accessibility problem is to put up walls and fences.
Mr. Clark believes another legal problem with the land swap proposal is that it raises the specter that the City is going out of its way to accommodate the justifiable concerns of the LDS Church about not being subject to critical speech. There is no legal obligation for the Commission or any other body in the City to solve any situation on the Main Street Plaza. The parties already agreed that the restrictions would fall but the easement would stand if a court found the restrictions on speech unconstitutional. The City has every legal right to retain the easement and regulate it in accordance with time, place and manner. The ACLU believes that for the City to try to accommodate the Church’s concerns about offensive speech is a further Constitutional violation that involves the Establishment Clause.
In summary, Mr. Clark said the Commission should not allow the easement to be vacated because there is no public policy basis to do that. The second proposal does not solve the existing problems and creates additional problems and most surely will lead to additional litigation.
Mr. Jonas asked if the Planning Commission at the time of the original transaction included a provision in the conditions about not creating a place for a public forum and protest. Mr. Clark said no. None of the legal document that came to the Planning Commission contained any suggestion that the parties would try to strip the property of its traditional First Amendment status.
Mr. Chambless asked Mr. Clark if the second proposal could survive legal scrutiny by a three judge panel or full 10th Circuit Court in Denver. Mr. Clark said no. He respectfully disagreed with both the Mayor and Mr. Sullivan. He believed it would not be a difficult case. Long standing Supreme Court precedent would indicate that the more a private property opens up its property to invite the public in, the less it can complain about the consequences of Constitutional protections that attach to that openness.
Mr. Chambless asked if a public pedestrian sidewalk equaled a traditional public forum. Mr. Clark said certainly one like the Main Street Plaza sidewalk, which is at the heart of the downtown pedestrian grid. The Court has held that not every sidewalk is a traditional public forum, such as those that have very limited use.
Mr. Chambless referred to Mr. Clark’s former affiliation with the ACLU and asked him to speak for himself as a potential litigate on his views about time, place and manner. Mr. Clark said time, place and manner is the time honored means of balancing competing interests. The Mormon faithful have the right to engage in worship activities and to come and go from their facilities unimpeded by protesters. Rather than shut down First Amendment rights to provide protection, the Courts have held that more narrowly tailored and carefully reasonable regulations must be enacted.
Mr. Chambless asked where we draw the line on offensive speech, both spoken and unspoken or obnoxious behavior. Mr. Clark said that was a vexing question in the law, but that the First Amendment protects even offensive speech. It is the price we all pay so that we can express our own views. The test for the community is to see if it is mature and strong enough to withstand the degree of disagreement that the First Amendment protects and encourages.
Mr. Jonas asked Mr. Clark to respond to Mr. Sullivan’s characterization of the time, place and manner as creating a protest venue of choice. Mr. Clark said churches have never learned the lesson that one makes something incredibly attractive by prohibiting it. The Church created that situation on Main Street, in Mr. Clark’s opinion, by creating an attractive Plaza. Mr. Clark believed that on a daily basis nobody would be flocking to the Plaza to protest. He believed the Church should say it was not going to make a big deal about it, and in a few years peace would evolve by itself.
Mr. Jonas asked Mr. Clark if it was the ACLU’s position that the only way to Constitutionally restrict protesting on the Plaza was to eliminate access to it. Mr. Clark said the only way to strip a property like Main Street of its time honored status as a traditional First Amendment forum is literally to shut it off to public access. Walls and/or fences would be the only thing that would clearly cut off the traditional First Amendment protections.
Mr. Daniels had heard of a situation on the Plaza where a protester refused to move so that a wedding couple could have their picture taken in front of the temple. He asked Mr. Clark what he would suggest to this couple as recourse in a situation like that. Mr. Clark said that people cannot, in the exercise of their First Amendment rights, impede someone else from crossing the Plaza. Not having all the information about the couple’s problem on the Plaza, however, he could not say if their rights were violated. He said the bottom line, unfortunately, is that when people insist on being jerks, sometimes our only recourse as citizens is to ignore them and/or remove ourselves to another place.
Mr. Jonas invited a representative for the Alliance for Unity to speak next.
Mr. Ron Moffat, an attorney representing the Alliance for Unity, spoke next. The Alliance for Unity is a 501C3 charitable organization. It was organized in May of 2002 by Mayor Anderson and Jon Huntsman. It consists of 18 business, religious, media and community leaders from very diverse backgrounds. Its mission statement is to foster a more unified community by addressing community divisions that are based on religious, political and ethnic differences. The on-going tensions surrounding the Main Street Plaza certainly fit within those criteria.
The Alliance for Unity supports Mayor Anderson’s proposal and believes that extinguishing the easement will provide a solution to the divisiveness that has plagued the Main Street Plaza. It will also confer a significant asset on the community that the Alliance believes will be a benefit to many members of the community for many years.
The Alliance is committed to raise $4 million, in addition to the $1 million of cash and land that has already been pledged by James Sorenson, for construction of the Glendale Unity Center. Based on its on-going fundraising activities to date, the Alliance is highly confident that it will be able to meet its financial commitment.
Mr. Chambless asked Mr. Moffat what his view was with regard to the future of the second proposal if it is litigated to the 10th Circuit Court. Mr. Moffat said his expertise was in mergers and acquisitions, and therefore had no opinion about the legal merits of the proposal.
Mr. Diamond asked Mr. Moffat how the Alliance would move forward with the Sorenson Center if the land swap was not part of the second proposal. Mr. Moffat said the Alliance supports the second proposal, and its members have not discussed alternative proposals, although there have been extensive discussions within the Alliance about how best to resolve the issue. Mr. Diamond asked if the Sorenson Center expansion and Alliance for Unity Center was contingent upon the land swap. Mr. Moffat said yes, because the funds that have been raised thus far were raised specifically to fund the Mayor’s proposal.
Mr. Jonas asked if the Alliance had any projects going before May 2002. Mr. Moffat said yes, there have been a number of community projects, such as preparing hygiene kits for use by the Salvation Army. The Alliance continues to look for additional projects to support in terms of meeting their mission statement.
Mr. Jonas invited representatives from the various community councils to speak next.
Ms. Catherine Gardner, with the Capitol Hill Community Council, spoke next. She expressed appreciation to the Commission for all that they do to help their neighborhood. The Capitol Hill Community Council has not voted as yet on the Mayor’s second proposal. They have had two meetings on the proposal so far, and will have another meeting on April 16, 2003. Ms. Gardner suspects that the Captiol Hill Community Council will support the proposal, but stated that this was only a guess on her part.
Mr. Diamond asked what the Capitol Hill neighborhood felt about having the easement and the ability to walk through the Plaza downtown. Ms. Gardner said her community council had voted in favor of closing Main Street during the original transaction. She thinks people have been pleased with how attractive the Plaza looks.
Mr. Diamond reiterated the goal of walkable communities downtown, and asked how Ms. Gardner felt about the potential to lose pedestrian access through the Plaza. She said she mostly drove, so she didn’t have an opinion on that.
Mr. Jonas what the effect of closing automobile traffic on Main Street had been on the Capitol Hill neighborhood. Ms. Gardner said she felt there was more traffic on State Street.
Mr. Jonas invited anyone from the Central City Community Council to speak. None were forthcoming. He then invited anyone from the People’s Freeway Community Council to speak.
Ms. Samantha Francis, People’s Freeway Community Council Chair, spoke next. Her community had heard the proposal from the Church and Mayor’s Office last Wednesday and had voted unanimously in support of the second proposal. She stated that there had been a lot of impact on her community as a result of the Main Street closure. The divisiveness over the Plaza has caused a lot of problems between the different religions in her neighborhood. She is not in favor of building walls and fences around the Plaza.
Mr. Jonas invited anyone from the Avenues Community Council to speak. None were forthcoming, however a resident of the Avenues who had attended the meetings volunteered to speak.
Mr. Roger Davis, 178 North Harold Street, Salt Lake City, Utah, 84116, spoke next. He was born a block from the Main Street Plaza, and so has a vested interest in the area. He has found that the majority of people in the Avenue meetings regarding the proposal have voted in favor of it. He asked the Commission to hear the voice of the people as their elected officials. A wall around the Plaza is not a representation of the people. He urged the Commission to go ahead with the second proposal.
Mr. Jonas clarified that the Commission members are neither elected or hired officials – none of them get paid for their time and efforts. He asked for the results of the voting in the Avenues Community Council. Mr. Davis said it was 63 in favor, 6 opposed and 4 opted to do nothing.
Mr. Chambless asked if Mr. Davis felt antipathy towards lawyers and judges dictating the decisions for the Plaza. Mr. Davis said yes, because the will of the people has been clearly stated. Mr. Chambless said controversial issues usually become legal issues. Once in court, the decision making is out of the hands of officials. Mr. Chambless asked Mr. Davis if he believed in the law and legal system. Mr. Davis said yes. However, we have a representative form of government, and to decide against the proposal would mean the people were not being represented as they should be. Mr. Chambless said the public meeting they were participating in was part of the beauty and fulfillment of the First Amendment. Mr. Davis continued to hope that the will of the people will be what finally takes place.
Ms. Seelig asked for clarification on the term “the will of the people”. She asked if Mr. Davis meant those people participating in the community council meetings. Mr. Davis said yes.
Mr. Jonas invited anyone from the West Salt Lake Community Council to speak. None were forthcoming. He then invited anyone from the Rio Grande Community to speak. None were forthcoming. Mr. Jonas then invited anyone from the Downtown Alliance to speak. None were forthcoming. Mr. Jonas then invited anyone from the Chamber of Commerce to speak. None were forthcoming.
Mr. Jonas then invited a representative from the Transportation Advisory Board to speak. Mr. Kevin Young, Transportation Planning Engineer for the City’s Transportation Division, spoke next. Mr. Young spoke on behalf of the Transportation Advisory Board. At the March 3, 2003 meeting of the Transportation Advisory Board, the Board heard a presentation from the Mayor’s Chief of Staff regarding the second proposal. Further discussion ensued regarding the Plaza and the vacation of the easement. There was much concern regarding pedestrian and bike access across the easement and what would happen if it were to be closed. After much discussion, the Board adopted a motion to approve Mayor Anderson’s proposal to extinguish the easement and develop the Glendale plan. The Board felt that possible impact regarding pedestrian and bike access would be minimal if the Plaza were to close. However, the Board strongly recommended that the Church of Jesus Christ of Latter-Day Saints maintain public access. The Transportation Advisory Board met again on April 7, 2003 and approved the minutes of the previous meeting.
Mr. Jonas asked about the results of a study done of flows of people traveling north and south along the Plaza. Mr. Young said during a three day period the Transportation Division had people observing the Plaza between 6:45 a.m. and 6:30 p.m. The results were that the south movement was higher than the north, with approximately 340 people traveling southbound. About 210 traveled northbound. Mr. Young believed the reason for the difference in flow was because the buses let people off on North Temple, and pick them up on State Street. Approximately 37 bicyclists used the Plaza over the three day period.
Mr. Jonas invited representatives from the City Attorney’s Office to speak next. Mr. Ed Rutan, City Attorney, and Mr. Lynn Pace, also of the City Attorney’s Office, then addressed the Commission. Mr. Jonas asked Mr. Rutan to summarize what he had heard so far and give the Commission his opinion on those matters.
Mr. Rutan said the Mayor had highlighted the key legal issues in his presentation. Mr. Rutan wished to review the issues in greater detail. He had identified nine different issues to discuss. First, Mr. Rutan said many people in Salt Lake City feel that when the prior transaction was reached there was not adequate public discussion or understanding of all of the implications. For the second proposal, the City has tried hard to make full public disclosure, and to encourage full public discussion and full public understanding of all of the implications of the proposal. Mr. Rutan personally attended all of the City Council meetings.
Second, Mr. Rutan addressed the question of linkage of the various aspects of the proposal to the Planning Commission process. The Mayor’s December 16th proposal made it clear that if all we were talking about was the extinguishment of the easement in return for consideration equal to the fair market value of that easement, the City is not interested in doing the deal. It is not a land-for-land deal. On one hand, the City is going to extinguish the easement, and by law the City must receive at least fair value of the easement. But the Mayor’s proposal calls for a significantly expanded community facility. Because the expanded community improvement is the critical driver of why the City is willing to consider extinguishing the easement, the Planning Commission has to make the linkage by looking at the entire proposal.
Mr. Pace said to keep in mind that under State law, even if the City just wanted to buy the property in Glendale, that proposal would have to come to the Planning Commission for consideration before the City could acquire the property.
The third point Mr. Rutan addressed concerned the question about the prospect for future legal challenge of the proposed transaction. When people speak of potential challenges to the proposed transaction, they speak in terms of two legal grounds – one is a free speech challenge and the other is an establishment clause challenge, both under the First Amendment. The establishment clause is the provision in our Constitution that provides for separation of Church and State.
He spoke of the establishment clause in terms of safe harbors, or areas where the City knows it is on safe ground based on prior Supreme Court decisions. The first safe harbor is that there is a secular purpose for doing the transaction. The secular purpose is the community center facilities. If the purpose of the City were to protect the LDS Church from criticism by people exercising their free speech rights, there would be a Constitutional issue. However, the purpose of the City is driven by the community center.
The other safe harbor is that the City is following the standard procedures followed in any property transaction of this nature. The LDS Church is not being cut any slack in any way in the process. City Council meetings, Planning Commission meetings, and City Council meetings, as well as an appraisal of the value of the easement, are all part of the process. The appraisal being done on the value of the easement is in the process of being completed and will be available soon. It will be posted on the website.
Mr. Rutan did not believe Mr. Clark’s statement that the City had absolute rights to the easement under the 10th Circuit Court decision was entirely accurate because there is a dispute with the LDS Church over the impact of the 10th Circuit decision on the severability clause. The City believes that because of the Court’s decision and the severability clause, the City now owns the easement and the restrictions regarding activity on the Plaza in the special warranty deed are invalid because they have been determined to be unconstitutional. The Church believes that as a result of the Court’s decision, it is not just the restrictions that were invalidated, but also the easement – so that the property actually belongs in its entirety to the Church. Mr. Rutan does not agree with the Church’s position and believes if it went to court the City would prevail. That result could not be guaranteed, however, and Mr. Rutan believes it is always good idea to “settle when you are strong”. This is the right time for the City to settle the dispute. Mr. Rutan did not believe that anyone challenging on the establishment clause issue would prevail in court.
Mr. Rutan then addressed the issue of free speech, using safe harbors as a starting point. The course that the City is pursuing is one that the 10th Circuit Court itself suggested. The Court identified two possible solutions to the issue: 1) maintain public access and restrict with time, place and manner; or 2) transfer the easement to the Church so that the property became purely private. The City is pursing the second suggestion. Mr. Rutan repeated again that the extinguishment of the easement would mean that there is no guaranteed right of public access, because the property would be owned in its entirety by the Church. The Church would then have all the legal rights of any other private property owner.
Mr. Rutan then addressed the Venetian Casino case. The fundamental basis for distinguishing that case from the situation at hand is that in the Venetian Casino case, the 9th Circuit found that there was an express agreement by the Casino with the City of Las Vegas that public access would continue to be provided. There is no such agreement in the Mayor’s proposal. There is no agreement that there will be any kind of public access. That is entirely a matter of choice for the private property owner. Mr. Rutan believed that was a critical distinction between the two cases. The other distinction is that the City is in the 10th Circuit, not the 9th Circuit. The 10th Circuit Court of Appeals has said that extinguishing the easement is a permissible avenue to take.
Mr. Rutan pointed out, in the context of the First Amendment argument, a statement made by Justice Kennedy of the Supreme Court in one of the cases: No one has ever understood the public forum doctrine to preclude a City or other branch of government from closing a public street or public sidewalk if it finds that it is in the public interest to do so. If a City does that, it loses its public forum status. Mr. Rutan said this is a situation where the public authorities can make a decision that it is in the public interest of Salt Lake City to extinguish the easement in exchange for the community facilities. Public forum analysis does not bar a city from making that kind of weighing of the public interest.
Mr. Rutan indicated that the City had contacted the ACLU regarding further discussions of the Constitutional issues involved in this case. In preliminary discussions, the ACLU’s view was that all the parameters of the transaction were not yet clear, so the City agreed to wait until the proposal was fleshed out in more detail as part of the public process. Mr. Rutan hoped the City was now at a point where more discussion with the ACLU can take place.
Mr. Rutan discussed the reverter clause next. He said the reason the City does not want to stike the reverter clause because there are three other easements being retained. The view corridor easement is the most important. If the Church were to violate that view corridor easement by putting up a 10 story building Main Street Plaza, that would trigger the right of reverter and send the property back to the City. It is a significant deterrent to the LDS Church to not violate that easement.
Mr. Rutan discussed restrictions as well. He said it was fundamental that everyone understand what the transaction said. The special warranty deed of the first proposal contained specified restrictions on expressive activity. The second proposal contains no agreement. The City will not be involved in making decisions about conduct on the Plaza. That will be entirely the province of the private property owner, or the LDS Church.
Mr. Rutan then referred to the Transportation Advisory Board’s recommendation. During the Board’s meeting and discussion about the proposal, Mr. Rutan pointed out to them that they had to understand their recommendation could have no legal effect whatsoever. The Board said they understood that.
In order to stay within the safe harbors already pointed out, Mr. Rutan stated again that the City cannot have any involvement in determining restrictions which may or may not be imposed on the Plaza.
The last of the issues Mr. Rutan addressed regarded pedestrian access. When the original transaction was proposed, no study was done of pedestrian traffic. The assumption was that access would be guaranteed as a part of the transaction. The only studies done were on vehicular traffic. This time around, given the structure of the second proposal, the City has to address the fact that the LDS would have the legal right to close the Plaza to pedestrian access. Because of that, a traffic study was done to assess what the impact would be if a closure took place. The study set forth in objective terms the actual numbers of people using the Plaza for through access, and then assessed what the impact would be depending on where the pedestrian was coming from and going to. Mr. Rutan said it was not his role as an attorney to assess the significance of any impacts on pedestrian traffic. The data is available to the Commission and City Council to determine impact if the Plaza should be closed.
Mr. Pace then clarified that the original transaction closing Main Street occurred four years ago in April of 1999. There has been some discussion regarding Condition No. 15 recommended by the Planning Commission. Mr. Pace said the transcript from the Planning Commission meeting clearly indicated that the property should be maintained like a public park but no protest should be allowed on that space against the LDS Church. The minutes for that meeting reflected that the property should be maintained as a public park, but left out the restriction on protesting.
Mr. Pace said that under State law, there is a provision that gives cities the authority to close or vacate public streets, or portions thereof. It has been the opinion of the City Attorney’s Office that this public access easement, as a remnant of the original Main Street right-of-way, needs to follow the same process as a street closure.
Mr. Jonas explained that he and Arla Funk had met the day before with the Chair and Vice Chair of the City Council and were made aware that there have been other legal opinions with regard to time, place and manner restrictions. He asked Mr. Rutan to express his opinion about time, place and manner restrictions going forward without legal challenge. Mr. Rutan said it should be recognized that there is a strong chance of legal challenge to time, place and manner restrictions. They are complicated and controversial.
Ms. Funk asked Mr. Rutan his opinion of the time frame involved if time, place and manner restrictions were challenged in court. Mr. Rutan said it was difficult to speculate on that because there were too many variables. He did say, however, that there is no such thing as quick litigation in society today. Ms. Funk then asked if the likelihood of the Courts finding against the proposal would be lessened if time, place and manner restrictions were used. Mr. Rutan said both of the proposals would have their legal risks.
Mr. Pace said that all present would acknowledge that there is no course of action that will make everyone happy. No matter what course of action the City takes, there is the possibility or threat of litigation. Mr. Pace recommended that the Commission set aside the possibility of litigation and focus on what the Commission believes is best for the City.
Ms. Funk clarified with Mr. Pace that the Commission’s policy decision tonight would be a land use issue.
Mr. Chambless asked Mr. Rutan if most cities in the country utilize time, place and manner restrictions. Mr. Rutan said that was probably true. They would not necessarily have a set of time, place and manner restrictions developed to deal with a precise set of circumstances such as those associated with the Main Street Plaza. But there would be generalized restrictions, such as impeding pedestrian traffic flow. They would not necessarily have provisions focusing on balancing the exercise of free speech and freedom of religion in a wedding and how the two would get resolved.
Mr. Chambless said most cities have a Main Street and utilize time, place and manner standards. Mr. Rutan said he did not know if most Main Streets across the country had a situation like Salt Lake City where there is a single owner possessing the entirety of one block on both sides. Mr. Chambless said Salt Lake City’s Main Street connected the State Capitol with the central downtown business district. Mr. Rutan suggested that it was actually State Street that connected the Capitol Building with downtown.
Mr. Chambless said if the Plaza were closed the public would be expected to walk two blocks out of their way. Mr. Rutan said the analysis in the traffic study would indicate that it would depend on where a pedestrian was starting out and where he was going.
Mr. Chambless asked Mr. Rutan if a person wearing an offensive tee shirt with profanities and a religious message on it could expect to be stopped on the Plaza. Mr. Rutan said no. That was protected by the First Amendment, as directed by the 10th Circuit Court at this time.
Ms. Noda asked if extinguishing the easement would close off the Plaza to the person wearing the offensive tee shirt. Mr. Rutan said the Church, as a private property owner, would have the right ask that person to leave.
Mr. Chambless then asked Mr. Rutan where the line should be drawn regarding how a private property owner could restrict a person’s manner of dress. Mr. Rutan said the City could not be involved in that. Again, it is up to the private property owner to draw the line.
Mr. Chambless asked if physical fences and wall would be necessary to close off the area. Mr. Rutan that issue had been raised and merited further discussion. The fundamental issue that comes up in the establishment clause is whether there has been sufficient differentiation between what is public property and what is private property so that a reasonable person would understand where one ends and the other begins. Mr. Rutan believed a reasonable person would understand the Plaza to be Church property because of the prominent structures on either end of the Plaza, with the Church’s name displayed, and signage talking about the property of the Church. There is also a differentiation in the pavement type. There are cases indicating that a fence would be obvious to everybody with no misunderstandings. But Mr. Rutan believes there is a strong argument that the current design of the Plaza would put a reasonable person on notice that it was the Church’s property.
Mr. Chambless said he thought walking through the Plaza was like walking through a park. Mr. Rutan said, yes that was true once you were in the middle of the Plaza, but to get in you have to pass the above-mentioned structures and signs. Internal signage within the Plaza also point to destinations owned by the Church.
Mr. Chambless again asked who would decide who passes through the area. Mr. Rutan again said if the proposal was passed, the Church would decide as the private property owner.
Ms. Noda then asked about prior use. The area was once a public sidewalk. She said the Venetian case was talking about historically the public character of the previous sidewalk and the similarity to and interconnection with the City’s network of public sidewalks. The Plaza was once part of Main Street’s main thoroughfare, and is still the quickest route to get to North Temple for many pedestrians. Mr. Rutan agreed that the 9th Circuit Court looked at the historical use of the property in Las Vegas and at the pedestrian traffic grid issue. But the 9th Circuit Court did not say that those two factors by themselves were sufficient to justify the holding. The holding was based on all three of those factors. The third factor was the presence of an express agreement by the casino with the City of Las Vegas that public access would be provided.
The 2nd Circuit decision involving Lincoln Center gives much greater play to the context of the easement or walkway in the overall setting of Main Street Plaza and its religious context. If the 2nd Circuit looked at the second proposal, it would probably be fine with it. Mr. Rutan also believes the 10th Circuit Court would be fine with the second proposal because they had already said extinguishing the easement was an option.
Ms. Noda said was a given that Main Street was used historically for public access to North Temple and is primarily part of the public sidewalk network. Mr. Rutan said the point is that public forum doctrine does not preclude a city from deciding that it is in the public interest to close a street or a sidewalk. If the City decided it was more important to keep the sidewalk open and maintain public access, than it was to obtain the benefits of the expanded community center proposal, than the City would not do the deal.
Ms. Noda said that was ultimately up to the City Council to make that decision. Ms. Noda said the Commission could make a finding that pedestrian access was too important to give up. Mr. Rutan said that was an important question for public policy makers to be asking themselves.
Ms. Seelig asked Mr. Rutan to explain in lay terms what the severability clause does and why it was put in as part of the agreement. Mr. Rutan said it is standard legal practice to include a severability clause in a contract to address eventualities that may occur that are different from what you were assuming to be the case when you did the transaction. A severability clause tells the parties what to do if any of the terms in their original transaction is found to be unenforceable.
Ms. Seelig asked how no one anticipated a lawsuit, then, from the original transaction. She said the mere fact that the severability clause was in the transaction says that eventualities do occur. Mr. Rutan said severability clauses give direction when an unanticipated situation comes up. The City’s view of the severability clause is that the only part of the City’s original transaction that was found to be unenforceable were the restrictions on conduct on the easement. The 10th Circuit decision did not invalidate the reservation of the pedestrian easement itself. As a result of the severability clause, the City believes it can keep their reserved easement, but the restrictions are invalid. Again, the LDS Church does not agree with that interpretation. They believe the restrictions and the reservation of the easement were invalidated by the 10th Circuit decision.
Mr. Zunguze reminded the Commission that time, place and manner restrictions are exercised by virtually all cities, not only in the United States, but throughout the world. For example, cities have parking requirements that address time, place and manner. They tell you how long you can park, where you can park, and how you can park. Signage is another example. The cities can say how long you can have your signage (time), in what districts you can have your signage (place), and size of signage (manner). That is one of the fundamental authorities the Commission has from a land use stand point to bring order to uses that would potentially conflict.
Mr. Diamond asked if there were easements on both the east and west side of Main Street Plaza. Mr. Rutan said the City did not entirely know the answer to that question. The easement reserved in the special warranty deed was described in terms of function for pedestrian access and passage.
Mr. Pace said at the time the transaction was approved, the Plaza design had not been finalized. The City wanted an access way through there, but no one knew at the time where it would be on the ground. The special warranty deed gave substantial latitude for that easement corridor to be located or moved. It explicitly gave the property owner the right to exclude pedestrians from flower gardens and places that were not intended for pedestrian passage. After the Plaza was built there were two north/south corridors roughly where the old sidewalks were, and a number of interlocking walkways. The City does not think the easement covers the reflecting pool or the landscaping. The 10th Circuit’s opinion seemed to focus on the two north/south corridors. Nevertheless, the easement was undefined.
Mr. Diamond asked how the City arrived at the value of the easement being 10 percent of the property. Mr. Rutan reminded the Commission that there was a dispute between the City and Church about whether the City even owns the easement, and a potential dispute of how to resolve exactly where the easement is. The nature and extent of use would be factors in a dispute. The Mayor’s proposal was a settlement proposal. There could be potential valuation issues in that context.
Mr. Pace said that in order to consummate the first proposal, it required the consent of both parties to define where the easement was. If the Church did not consent, the City would be forced to enact time, place and manner restrictions without the ability to define where the easement is. That removes the ability to make functional restrictions.
Mr. Diamond asked if the location of the easement has ever been defined. Mr. Pace said no.
Mr. Muir appreciated the City Attorneys’ clarification and articulation of the issues. He asked how we would avoid future claims for acquiescent rights. Mr. Rutan asked if by “we” Mr. Muir was referring to the City or to an individual. Mr. Muir said he was referring to an individual. Mr. Rutan said then that would be the burden of the private property owner.
Mr. Muir wondered if after the Commission forwarded their recommendation to the City Council, and a subsequent claim against the adequate compensation side of the issue were to occur, the Council could move forward with extinguishing the easement, and deal with the claim accordingly without it having to come back to the Commission. Mr. Rutan said it was certain that the City must receive fair value in this transaction, which is why appraisals are being done for the value of the easement, and the value of the property being offered by the Church. The City will also look at the benefit of the Church paying ½ of the Plaintiff’s fees. This will help determine adequate consideration for the sale of the easement.
Mr. Muir asked if that meant the proposal would potentially be pending until the monies are raised for the community center. Mr. Rutan said that for a variety of reasons it may well be in the City’s interest not to close the transaction until the City received the full range of consideration that is a part of the deal. Mr. Rutan believed the overall value of the City because of the expanded community center will be significantly in excess of the market value of the easement.
Mr. Muir was more concerned about moving the proposal forward with little risk that it would come back to the Commission. Should the deal fall apart, and another deal was struck, if these issues are linked, it would have to come back to the Commission. Mr. Rutan said he believed that was true, but said that when the Commission makes recommendations in normal transactions, it traditionally includes the requirement that the City receive fair value for what it is giving up. Mr. Muir asked if that would be enough of a condition to convey that discretion on to the City Council. Mr. Rutan said if there was an objective appraisal that said the value of the easement was $10, and the objective data is that all the things the City is getting in return is only $6, he as the City Attorney would have an obligation to say the City could not do the deal. The City Council would not have the discretion to say the deal could be done anyway.
Mr. Muir said public rights were being traded off, which were a greater value than an appraised value. Mr. Rutan said there were certainly considerations that are very difficult to assign financial value, such as pedestrian access and the value of the expanded community center.
Mr. Jonas asked if Mr. Rutan believed that part of the fair market consideration would be any donations received for the community center. Mr. Rutan said it potentially could be. The legal circumstances under which the donations were made would have to be examined before Mr. Rutan could give an unqualified answer to that question. There are a number of pieces of consideration coming from the Church that might make the question academic. They are giving the 2 acres of land, paying ½ of Plantiff fees, and making a further donation from their business operations. He believes those items will probably exceed the fair market value of the easement itself. If they did not, contributions by third parties are a potential source of contribution that could be counted towards the fair market value that has to be received.
Mr. Pace said the Planning Commission was being asked to consider if the proposal is good for the City – to exchange the easement for the community center. The anticipation is that the value of the community center will be significantly in excess of the value of the easement. The Planning Commission is not being asked to consider if the City would be willing to trade the easement for something less.
Mr. Jonas asked how the ability to protest and have a public forum on property affects land use, and how the intent of the parties affects the Commission’s decision on the public interest. Mr. Pace said ordinances closing streets contain a declaration that the property is not necessary for use by the public. It does not mean no one was using the street or that no one would be inconvenienced. It means that a greater good is being accomplished by closing the street. There are always people who are not in favor of street closures. The process the Commission is being asked to evaluate at this meeting is not much different from what they evaluate every time they look at a street closure.
In terms of the value of protest rights, that is one of the multitude of rights that exist on a public forum, street or sidewalk. Mr. Pace believed it was unfortunate that this meeting’s discussion has focused on the free speech rights. It was not intended to be the primary purpose of the property.
In terms of how the intent of the parties bear into the issue, Mr. Pace said the 10th Circuit ruled that the intent of the parties alone does not govern. The Commission can still take into account what the City originally intended when it closed the street, and how that can be accomplished today. The Commission has to decide what the City might want more – public access or the serenity and peaceful environment that was contemplated at the time of the closure.
Mr. Jonas thanked the Mr. Rutan and Mr. Pace. Mr. Rutan said his goal that the legal implications of the proposal had been discussed in full and in public had been achieved at this meeting.
Mr. Jonas announced that each of the members of the general public wishing to speak would be allotted three minutes. He then opened the hearing up to the general public.
Roger Thompson spoke next. He expressed appreciation to the Commission for their services. He was on the City Council when the original transaction took place. At the time, there was an attempt to have public access, but none that would be offensive. There was some question on the record when it came from the Commission to the City Council about Condition Number 15 that was left off the record regarding the property having the same restrictions as a park. He believed the first transaction had been through a thorough public process and that most people were in favor of it. When the Council voted for the original transaction, they were made aware that Condition 15 had been left off the record. The same issue was visited a year later, and the Council passed it again. He believed the Commission had the choice of making a policy decision of whether the City wants peace and quiet or public access. He is in favor of the Mayor’s proposal.
Craig Galli, 201 South Main, Suite 1800, Salt Lake City, Utah 84111, spoke next. He supports the Mayor’s proposal. He believed the Mayor personally agonized over what would be the best resolution for the community. He thanked the Mayor for his efforts. The proposal is a great compromise. He visited the Conference Center during General Conference and saw that numerous people found adequate opportunity on existing public sidewalks to exercise their First Amendment Rights. He quoted Brigham Young’s advice to let every person feel the same interest for the public good as he does for his own to bring prosperity to the City.
Polly Hart, 355 North Quince Street, Salt Lake City, Utah 84103, spoke next. She is a trustee of the Capitol Hill Community Council. She is an avid pedestrian and uses the Main Street Plaza. She thought it ironic that the Commission was considering extinguishing an easement, and that Mr. Jonas had earlier announced that the City was hiring a consultant to increase the walkability of the City. She said, “I guess that went over your head.” Both the Central Community and the Capitol Hill Community master plans stress increasing walkability. Closing the Main Street Plaza would reduce the Capitol Hill residents 1/3 of their choices to get downtown. She said one could not put a value on access. She had met a woman who had been denied access to the Plaza for wearing a tee shirt that said, “I believe in 3.2% tithing and 10% beer.” This woman had been asked not to walk across the Plaza. By this, Ms. Hart believed that restrictions already exist on the Plaza.
Mr. Jonas said he assumed the “I guess that went over your heads” comment Ms. Hart had made was related to the members of the Commission, and he took great offense at that. Ms. Hart apologized.
Karen Derrick, 784 Northview Drive, Salt Lake City, Utah, 84103, spoke next. She is a former member of the Board of Education Salt Lake City School District. She has lived in the City for over 30 years and disagrees that Main Street is a historic main thoroughfare. She believes State Street is the main street because has always been easier to traverse. She spoke in favor of the proposed community centers. Riley Elementary is in the area, and combined with the proposed centers, a great triad of opportunity would be created for the community. She said 79 languages are spoken in the Salt Lake City School District. The residents need more opportunities. Poverty is a big problem for at risk children. She urged the Commission to support the Mayor’s proposal.
Gary R. Anderson, 1174 East 1300 South, Salt Lake City, Utah, 84105, spoke next. He is fully in favor of First Amendment rights. He spoke of a relative of his that was accosted by a protester on the Plaza at Christmas time. He did not think this was a valid interpretation of First Amendment rights. The present situation on the Plaza offers serious potential problems. There is very little control or enforcement of any behavior. He is in support of Mayor Anderson’s second proposal.
Mr. Daniels pointed out that at the time the protester accosted Mr. Anderson’s relative, the protester ceased to be a protester and became an assailant. Mr. Anderson said there was no one on the Plaza to report the assailant to.
Timothy Clark, 1483 General Drive, Salt Lake City, Utah, 84116, spoke next. He is a professional speaker and author. This is an emotional issue. It is important to look at the overall perspective of the City being able to honor its contracts. The City has to be trusted that it will honor its agreement. The intents of both parties need to be considered.
Bill Hadfield, 1427 Westminster Avenue, Salt Lake City, Utah, 84105, spoke next. He referred to the special warranty deed and said he had not heard anyone refer to subchapter 6, miscellaneous provisions 6.3 amendments: “Although guarantor may allow use of the pedestrian access easement reserved in section 1.2 by the general public, it is understood and agreed that this instrument, including the severability clause which is contained in the instrument, and the easement reserved herein can be amended, modified or terminated by the written agreement between guarantee and Salt Lake City Corporation alone without the joiner or consent of any other person or entity. Any written amendment or modification of this instrument executed by guarantee and by Salt Lake City Corporation shall become binding immediately on all users and easement reserved herein.” Mr. Hadfield said this part of the special warranty deed should be considered.
Mr. Hadfield then said that in 1993 the City conveyed Ramona Avenue between 400 and 500 East to the Catholic Church. The Catholic Church built a building on Ramona Avenue. Mr. Hadfield asked Mr. Clark why that did not become an issue of First Amendment rights. Mr. Clark responded that it was because the Catholic Church had built a building on it and it could not be walked on anyway. Mr. Hadfield believed that if the City could convey one street’s easement to a private or religious institution, it could convey another. To cloak this particular piece of property in the name “Main Street”, even though it has never been a venue for protest, and thereby give it some special sanctity is not consistent in principle.
Mr. Chambless said the Ramona structure had walls and doors that were locked. Mr. Hadfield said that was true, but the underlying principle was private property and the willingness of the City to convey the easement. Mr. Chambless then said there was a long history of street closures done in the City for the purpose of building a structure over what had previously been a street. Mr. Hadfield then asked if the Plaza was not a structure. Mr. Chambless said it looked more like an urban park. He was more concerned about First Amendment questions.
Bonnie Mangold, 326 Almond Street, Salt Lake City, Utah, 84103, spoke next. She said Main Street was her auto route of choice for 30 years until it was closed, and was now one of her pedestrian routes. The master plans referenced in the staff report are all, except for the Capitol Hill and Central Community plans, dated before the Main Street sale. Of course they make no reference to the Main Street easement. All the plans make statements about the desire for walkability, pedestrian orientation and access. She does not understand how these references can be interpreted to either support or oppose the Mayor’s proposals. She said the Capitol Hill plan does not support the loss of the easement. Losing guaranteed access would not heal divisiveness. The Transportation study said the impact to the public should access be lost would be minor, but we don’t know what the future holds and what significance that loss could assume. If the easement goes, it will make a difference to those who would lose guaranteed access.
Jan Bartlett, 164 South 900 East, Salt Lake City, Utah, 84102, spoke next. He would like to get back to the original intent. The first proposal wanted to clarify and preserve the easement, guarantee pedestrian access, achieve what both of the parties intended in 1999, and to protect the public right of access. The second proposal has an entirely different focus. It identifies conflict, divisions and divisiveness in the community as the primary problem. He believes this is the intent of the second proposal. It is described as a compromise. Five of the eight points in the proposal have no reference to the original intent of the original agreement. The Church will get 100 percent of what it wants and the people will lose their rights at the abandonment of the easement. He has ideas on where people should be allowed to demonstrate on the Plaza.
Wayne Cannon, 1553 East Yale Avenue, Salt Lake City, Utah, 84105, spoke next. He has lived in Salt Lake City since 1975. He spoke in favor of the second proposal. He has seen the LDS Church do many things to help the downtown community. He believes the Planning Commission can in good conscience do something that follows through on the original intent. He referenced a trip he took as a teenager to St. Marks Cathedral in Venice and was asked to put a handkerchief on his head as part of the tradition and religion. He was not offended at that, and believes it is not unreasonable for a private property owner to have some idea about decorum and dress. The Church has allowed access to its properties for a very long time. Mr. Cannon believed the Commission need not worry about pedestrians losing access, using common sense and decorum that one would have on any other religious site.
Garland Dennett, 1156 East Blaine, Salt Lake City, Utah, 84105, spoke next. He said that prior to the construction of the Plaza, Main Street was not a demonstration zone. The Church provided records to the ACLU and Court of the number of cases where people have protested on Main Street for the last 30 years. There have virtually no instances, because most of the public was at the north and south gates of Temple Square. The Church inadvertently created a protest zone by creating a lovely Plaza, taking down the walls around the temple and trying to create a sense of access and openness. Mr. Dennett said the value of the First Amendment being lost did not exist prior to the construction of the Plaza. Regarding access, Temple Square north and south gates are used by hundreds of people every day. He is confident that any misunderstandings that have occurred in Temple Square are easier to resolve than the attitude of some of those coming to the Plaza today to protest. There are a lot of public places in Salt Lake City open to public protest. There is, however, a lack of a public place where he can take his family and know he will not be harassed by protesters. He believes it is in the interest of the City to create such a place. If people continue to have experiences with protesters like they have had over the last six months, which will increase during the summer, more people will avoid the Plaza. Mr. Dennett supports the Mayor’s proposal.
Susan Dennett, 1156 East Blaine, Salt Lake City, Utah, 84105, spoke next. She is an Eighth Grader. She did not understand why men come down to the Plaza to yell and call her names. She said they carry huge signs with very mean words and try to make her think that she is a bad person. They told her that her father is a liar. She would prefer the men to stop yelling and take the time to sit down and talk with her. She hoped the Commission would allow the Church to have the Plaza, so that there can be a peaceable place to sit down and talk. She told the Commission that there decision would not only affect the adults, but the children also.
Kalo Feao, 6671 West 3830 South, Salt Lake City, Utah, 84128, spoke next. She is an accountant speaking as a concerned citizen. She is a Tongan descendent who moved to the United States in 1967 for better education and better way of life. She said all our ancestors came from different countries for freedom of speech, or freedom to make choices. She believes in the rights and freedoms of the United States. However, she did not understand why certain people feel so strongly about going to a peaceful and serene place, such as the Plaza, to express themselves with blow horns and passing out leaflets to those who simply want to come and enjoy the peaceful atmosphere. She also believes there are other places in the City to demonstrate. She has witnessed contention on the Plaza. Everyone has the right of free speech, but she was grateful for a place like the Plaza, located in the middle of the City, where she can sit and feel peace. She would feel the same whether it was the property of the Church or the City. She supports the Mayor’s second proposal.
Robert Fillmore, 1484 Ambassador Way, Salt Lake City, Utah, 84108, spoke next. He thanked the Commission for their efforts. He was impressed with the Mayor’s efforts to decipher what the original intent was of the deal in 1999. The original decision was that the public would have access but the Church would be able to control it. He pointed out the benefits of the Glendale project. He said the value of the project to young people far exceeds the rights of those being able to protest on the Plaza. Everyone should realize from a practical standpoint that the Church is not going to close the Plaza. He has heard deplorable language being used by protesters on the Plaza. He believes most of the protesters are from out of state. He supports the Mayor’s second proposal.
Autumn F. Cook, 241 North Vine Street, #405E, Salt Lake City, Utah 84103, spoke next. The issue, as she sees it, is access. She uses the Plaza as a thoroughfare regularly. She appreciates being able to run her errands without taking a car. Freedom of access through the Plaza is very important to her. It defies all logic to conclude that the Church would deny access to any ordinary person passing through the Plaza. She fully supports the Mayor’s proposal to extinguish the easement and create a Unity Center.
Chris Gonthier, 3769 West 4700 South, Salt Lake City, Utah, 84118, spoke next. He said it was not a question of benefits, but of legality. Limiting groups gathering on the easement violates freedom of religion. If wedding parties want to take their pictures outside on the easement, they have no greater rights than anyone else. He feels his rights are being violated. He is all for freedom of speech, but agrees that grabbing people is out of bounds. He said we need to stop trying to define and categorize what is said and how it is said. He is against the Mayor’s proposal.
For the record, Mr. Jonas then read Mr. Brad Beck’s statement saying that the Church should control the access on the Plaza.
Mark Edwards, 318 East 1700 South, Salt Lake City, Utah 84115, spoke next. He talked about a fortune cookie that said, “Find a peaceful place where you can make plans for the future.” To plan for the future, a person needs goals. One needs a dream before one can have a goal. Our community’s goals have changed over time, and every day we can have an experience in maturing and improving. We need to maximize every minute for the greater potential good for our common community. We should be bold, daring, kind and trusting.
Steve Burt, 950 East 100 South, #3, Salt Lake City, Utah 84102, spoke next. He said the meeting had been very productive. Salt Lake has closed a lot of streets. He cannot stand on the stairs of the Catholic structure on Ramona Street and protest. He believes that Main Street has not been the main street of the City. He felt the discussions had been turned way too far into a First Amendment issue. The 10th Circuit Court gave us the way out of the dilemma by suggesting the extinguishment of the easement. The Church has allowed public access to the Church Office Building square for many years and never had a problem. If access is the only problem, we should trust the Church to allow it. Protesting has become too much of an issue. He is in favor of the Mayor’s second proposal.
Jorge Riveros, 369 East 900 South, #197, Salt Lake City, Utah 84111, spoke next. He came to the United States 20 years ago. He wants the Commission to be fair. Other Churches have been given street closures and easements. The Olympics resulted in many foreigners visiting the Plaza and saying that Salt Lake was a different place where they felt quietness and peace. The ACLU would like to continue this issue forever. They should be more worried about the basic rights of the citizens. Hospitals have quiet places to help heal the physical. There should be such a place for the spirit as well. He supports the mayor’s proposal.
Maureen J. Frikke, 425 North West Capitol Street, Salt Lake City, Utah, 84103, spoke next. She appreciated Steve Clark’s review of the history of the issue because we are now looking at the fruit of the poison tree. She said when the initial transaction took place the people were told the Plaza would be a park. There was an appearance of collecting public opinion. The City policy makers disregarded the public process, and she feels like the people were lied to. Therefore, going to the courts was necessary. She has heard the second proposal presentations three times and thinks the Mayor’s only concern is to make the Church happy. She said Mr. Rutan did not stay after the public meeting to discuss the presentation with the people.
Ms. Funk responded to Ms. Frikke that a public park was never promised to the people. It was a recommendation from the Planning Commission to the City Council. The City Council looks over the Planning Commission’s recommendations and choose the ones they want to do. The final draft of the first transaction did not promise a public park. Until the legislation is written, there is no promise made.
Jonas Rodrigues, 1601 Fox Park Drive, Salt Lake City, Utah, 84088, spoke next. He has been in the United States for 20 years. He wished to be bold in his comments, saying the ACLU is accustomed to practicing the tactics of stirring up divisiveness and turning communities against each other to accomplish an agenda for different reasons than the issue at hand. Their real intent is to avenge and punish the LDS Church because of its stands on other issues like same sex marriage, boy scouts not allowing gay leaders, etc. Before the ACLU and the HRC, the community was bound with trust and friendship. Mr. Rodrigues believes everyone knows the LDS Church is committed to its work and would never close the Plaza to the public. Because of the ACLU and HRC’s selfish agendas, we are all discussing the rule of law to settle differences. HRC is the largest lobbying firm in the world, and is using the ACLU, the strongest law firm in America, to intimidate millions of people.
Paul Moore, 1406 Claybourne, Salt Lake City, Utah, 84106, spoke next. He wanted to offer a third proposal. There is a Plaza on the top and a parking lot beneath. The Plaza is architecturally different and has a different function from the parking lot below. The property has two levels with two functions. The easement is a third use of the Plaza. His solution is to provide unrestricted access on a third level to those who would want to cross the property. There would be physical separation for those who want to enjoy the peace of the Plaza. There would be no need for land swaps or easement extinguishments, we could just simply build a physically, architecturally area for the easement.
For the record, Mr. Jonas read a statement from Linda Braithwaite, 8 Hillside Avenue, #405, Salt Lake City, Utah, 84103. She lives on Main Street and walks through the Plaza almost daily. She supports the Mayor’s proposal. It is time to end the contention. She trusts the LDS Church will allow open access to the Plaza. We need a safe and peaceful place downtown without harassment. The LDS Church has been more than generous in its efforts to solve the problem. We need the community service that has been offered.
Beverly Cooper, 211 East Roundloft, Salt Lake City, Utah, 84103, spoke next. She expressed sadness that there are only two choices, and it appears the City will be sued on either choice. The Commission does not have enough information, i.e. the location of the easement and appraisal of its value. She is opposed to the second solution because of the lack of information. She does not think the Glendale property is a compromise. It is a separate issue, and she does not know why it is part of the solution. She did not think you could put a value on her rights.
Sandra Rodrigues, 1601 Fox Park Drive, Salt Lake City, Utah, 84088, spoke next. She is originally from Brazil and said she was a protester herself. She believes in free speech, which is why she came to the United States. She referred to the HRC organization which is gays and homosexuals rights. She said the Unitarian Church sued the LDS Church because they wondered if the homosexuals and lesbians would be able to hold hands and kiss on the Plaza. She said it took courage from the Mayor to stand up for what is right and bring this issue to a close. She did not believe the main issue was about free speech or the First Amendment. It is an HRC agenda that they use to promote their rights. The ACLU would not be involved in the issue if it was not about homosexual and lesbian rights. The Church as shown great generosity. People should stop having vengeance and revenge against the LDS Church. Children need to be protected.
Abraham Rodrigues, 1601 Fox Park Drive, Salt Lake City, Utah, 84088, spoke next. He supports the Mayor’s proposal because everyone wins. He urged the Commission to support the proposal.
John McConkie, 1811 Springfield Road, spoke next. He encouraged the Commission to fulfill their responsibility to create better places and promote policies that will help to do that. He does not feel this is an issue over First Amendment rights, but about the transfer of property and whether that is right or wrong. He felt it was more important to look back at the original intent four years ago. It is a question of integrity and whether the City was willing to uphold its decisions and stand by its commitments. He questioned whether providing a place that has a forum for the kinds of protests seen recently on the Plaza is creating a better place for the City. The citizens should be able to decide whether Main Street is the main street, or some other street. He supports the Mayor’s second proposal.
Nancy Saxton, 164 South 900 East, Salt Lake City, Utah, spoke next. She said she realized the power that was in the Commission’s hands. She trusted the Commission to see the importance of the decision they were making for the citizens of Salt Lake City. She said it was the Planning Commission that originally raised the issues that were overlooked and disregarded by the Administration, Attorneys and City Council. She urged the Commission to continue to ask the right questions. There were actually three proposals from the Administration. The Administration said it was going to exercise the reverter clause immediately after the 10th Circuit Court decision. Then the next proposal about time, place and manner was announced, which Ms. Saxton said was never put out to the public or discussed politically or legally. Then the final proposal was announced. Ms. Saxton believes the LDS Church Corporation has great integrity and that it is very clear what their intentions are. However, when you give away the Constitution, you do not get it back. She has a right to walk away from those exercising their First Amendment rights. She does not have to listen, but they have a right to say it. She does not support the Mayor’s proposal, but believes a middle ground can be reached. First Amendment rights need to be preserved.
For the record, Mr. Jonas read a statement from Tyler Lamprecht, 150 South 800 East, #D7, Salt Lake City, Utah, 84102. The Church invested $20 million to beautify the downtown area. In return for this investment it should be granted the right to maintain the integrity of the original purpose of the improvements. It is open to all citizens, and all that is asked is that the property be respected physically and verbally. In summary, the Church should be granted complete ownership of the property in question.
Taniela Fiefia, 1887 West 500 North, Salt Lake City, Utah, spoke next. He is a resident of the West side. He told the Commission of an experience he had on the Plaza where a protester pushed Mr. Fiefia because he did not want to read a leaflet. He believes if the City chooses time, place and manner restrictions, it can expect problems on the Plaza because of the protesters for many years to come. He also does not believe the issue is just about freedom of speech. The City has an obligation in the public interest and common good, including what the West side needs.
Mr. Fiefia is an attorney and believes time, place and manner will bring problems because the location of the easement has never been defined. There will be much litigation over that issue.
Mr. Fiefia said there was also freedom of association in the Constitution that is defined as peaceful assembly.
Mr. Chambless asked Mr. Fiefia if he felt the second proposal would withstand the legal logic of the 10th Circuit Court. Mr. Fiefia said yes it would. The League of Cities across the nation is likely to file a friendly brief in support. The Churches are likely to file a friend of the court brief. There is strong public sentiment in support of the proposal. Mr. Chambless asked Mr. Fiefia to explain why he personally believes the proposal would withstand legal scrutiny. Mr. Fiefia said because of the differences between the 9th and10th Circuit, and the makeup of the Supreme Court will favor the City’s position.
For the record, Mr. Jonas read a statement from Ray Whitchurch, 227 Douglas Street, Salt Lake City, Utah, 84102. The proposal alleviates significant division within the City, while maintaining property rights. He supports the Mayor’s second proposal.
For the record, Mr. Jonas read a statement from J. Mark Gibb, 1934 Princeton Avenue, Salt Lake City, Utah, 84108, spoke next. He believes the proposal to extinguish the easement should be adopted. He also believes the reverter clause should be extinguished.
Keith Ridgway, 673 6th Avenue, #10, Salt Lake City, Utah, 84103, spoke next. He identified himself as a Latter-Day Saint of the Church of Jesus Christ. He wished to be honest about the issue, and said it had little to do with pedestrian access or Constitutional rights. It had everything to do with opportunists’ agendas against the owners of the property on both sides of the Plaza and its members, so they can secure a pretended right to abuse the members in the very center of their religious sanctuary. He asked who really believed the Church would restrict the public’s privilege to walk across the Plaza as long as individuals show respect for the property owner and its guests. He asked why a private property owner should be made to grant privileges to the likes of Brian David Mitchell or others like the protesters that appeared on Conference weekend. The Church leases property for the Salt Palace and Symphony Hall for $1 a year. Mr. Ridgway asked what the fair market value to the City is for that lease.
For the record, Mr. Jonas read a statement from Terri DeJohn, 2693 East Comanche Circle, Salt Lake City, Utah, 84108. She supports the Mayor’s second proposal.
For the record, Mr. Jonas read a statement from Julia Hopkins, 1521 Canterbury Drive, Salt Lake City, Utah, 84108. She supports the Mayor’s proposal.
Sandra P. Roundy, 623 East Milton Avenue, Salt Lake City, Utah, 84105, spoke next. She is on Board of the Liberty Wells Community Council. She thinks the St. Joseph’s Villa on Ramona Avenue is a great asset to the neighborhood. She addressed what she felt was best for the City. She thought tourism was important for the City, and that the Church generates much tourism. The Plaza enhances the Temple Square pull for tourism. She is in favor of the Mayor’s second proposal and hoped the Commission would consider that it is the best thing for the City.
For the record, Mr. Jonas read a statement from Clair Hopkins, 1521 Canterbury, Salt Lake City, Utah, 84108. She supports the Mayor’s proposal.
For the record, Mr. Jonas read a statement from James Furner, 1633 East Parkway Avenue, Salt Lake City, Utah, 84106. He supports the Mayor’s proposal.
For the record, Mr. Jonas read a statement from Carrie Lamprecht, 150 South 800 East, #D7, Salt Lake City, Utah, 84102. She feels it is in the best interest of our community to find immediate resolution to this issue. Main Street should be given to the Church to be private owners. It is in the best interest of the community to focus on the harmful elements of the community such as loss of businesses downtown. We should embrace the beneficial gift.
For the record, Mr. Jonas read a statement from Stephen Frey, 2978 South 1400 East, Salt Lake City, Utah, 84106. He is in support of the Mayor’s second proposal.
For the record, Mr. Jonas read a statement from Mark Christensen, 2722 South Glenmare Street, Salt Lake City, Utah, 84106. The Mayor’s second proposal appears to be the most logical solution and the most satisfactory and fair for all.
For the record, Mr. Jonas read a statement from Pam Fillmore, 1484 South Ambassador Way, Salt Lake City, Utah, 84108. She supports the Mayor’s proposal for the City to relinquish the easement in exchange for land by the Sorenson Center.
For the record, Mr. Jonas read a statement from Steve DeJohn, 2693 East Comanche Circle, Salt Lake City, Utah, 84108. Millions visit Salt Lake City. The Church of Jesus Christ of Latter-Day Saints’ campus is one of those main attractions. As a resident of Salt Lake City, one who works for a business headquartering in Salt Lake City, he has the privilege of traveling around the nation on business and inviting customers to come to our City. Those customers previously have expressed their enjoyment of walking around the Church campus. However, the protesters and violators of peace and tranquility will no doubt deter any future visitors, and/or violate their enjoyment of our fine city.
For the record, Mr. Jonas read a statement from Ken Foster, 2840 Commonwealth, Salt Lake City, Utah, 84109. He supports the Mayor’s second proposal in spite of the threat of the ACLU’s lawsuit.
For the record, Mr. Jonas read a statement from Sam Clark, 1687 Devonshire Drive, Salt Lake City, Utah, 84108. He supports the Mayor’s second proposal.
For the record, Mr. Jonas read a statement from Liz Clark, 1687 Devonshire Drive, Salt Lake City, Utah, 84108. She supports the Mayor’s second proposal.
Randy Baker, 1109 Harvard Avenue, Salt Lake City, Utah, 84105, spoke next. He thanked the Commission for their time. He grew up on Main Street. He is grateful to live in America and have freedom of speech. He expressed concerned that when people were allowed to express themselves in an obnoxious manner, the rights of those who want peace are ignored. He asked the Commission to consider that.
Mr. Jonas then closed the public hearing and brought it back to the Commission for discussion.
Mr. Daniels said if the Commission was going to recommend a deal, they need to know what they are giving and what they are getting. He felt it was virtually impossible to know that until they knew the value of the easement. The easement could be worth more than what the Church has invested in the property. Mr. Daniels wanted to make sure it was a fair deal. He also said the issue was more than just land-use; there was also freedom of speech, what the public wants and the value of the public’s right-of-way. He preferred not to make a decision at this meeting because he did not feel he had the information he needed.
Mr. Jonas said it was not in the Commission’s purview to look at issues relative to valuation of property. Valuation issues are done within the Property Division and the Attorney’s Office.
Mr. Pace said the City will insist on getting fair market value for the easement. Assuming that, the Commission should decide if it is a good policy decision to accept the proposal or not.
Mr. Jonas said the concept that has come up about what is in the public interest is a new one for the Commission because there is no set of standards to apply to this case. There is an issue of fairness, and the intent of the parties is important. Whatever may have happened in the public process, the documents that came out of the public process were a warranty deed signed by both parties. Both parties seemed to indicate the same intent.
Ms. Funk also felt the Commission should look at the intent of the original parties. The intent of the law, as it was originally established, was to administer the word “justice”. The Commission should look at what is fair and right. It was not the intent of either party that free speech be allowed on the Plaza. If free speech is given away by giving away the easement, it is warranted in this situation. The Commission has the opportunity to solve a problem at this meeting. Because other cities do time, place and manner restrictions does not mean it is good or that it should be done in this situation. The Commission needs to judge for itself.
It is clear to Ms. Funk that the two things to measure are: 1) what is the better good of the City; and 2) as a Planning Commission, what is an appropriate use of this land, and does giving away the easement change its development use function. Looking at the number of people deprived of free speech on one block, versus the thousands of people benefited by the Unity Center, Ms. Funk cannot conclude that the easement should be retained. The function of the land is not altered by giving away the easement.
Motion
Ms. Funk moved that the Planning Commission approve Petition 400-03-01 by Mayor Ross C. Anderson, requesting to close, vacate and abandon the public pedestrian access and passage easement across the Main Street Plaza located on the former Main Street right-of-way between North Temple and South Temple streets. Ms. Funk referred to the staff report as the support for this motion, as well as the testimony heard at this meeting. She quoted a sentence in the staff report saying, “Staff finds that there is no significant adverse impact on existing land use policies and guidelines.” The motion includes recommendations 1-3 of the staff report, with the finding that it is in the better good of the City to abandon the easement and to develop the Unity Center as it has been outlined.
Recommendations
1. Forward a recommendation to the City Council to close, vacate and abandon the pedestrian and passage easement for the purpose of selling the easement for fair-market value to the adjacent property owner, the Church of Jesus Christ of Latter-day Saints.
This recommendation is subject to Salt Lake City receiving remuneration equivalent to the fair-market value of the Main Street Plaza pedestrian access and passage easement as determined by an appraisal acceptable to Salt Lake City Property Management Division.
2. Declare Salt Lake City’s interest in the pedestrian access and passage easement surplus.
3. Forward a recommendation to the City Administration to accept certain real property located at 1375 South and 1385 South 900 West as partial payment for the sale of the public pedestrian and access easement.
Mr. Jonas asked if the Planning Commission should separate out considerations 1-3 of the petition. Mr. Pace said that would be significant. If Ms. Funk wants to approve the motion as a package deal, it needs to be dealt with that way. Ms. Funk could also accept a friendly amendment to her motion.
Ms. Funk preferred the package deal motion. Mr. Muir seconded the motion.
Mr. Jonas invited discussion on the motion. Mr. Muir spoke in support of the motion. In terms of decoupling the issues, the Mayor’s comments as well as Mr. Rutan indicate that the issue of the public interest in terms of receiving the good will of the Unity Center in exchange for obviously a loss to the City is persuasive. He is convinced that it makes sense to unify the issues.
Mr. Muir does not believe there are a lot of places in the City for public forum. The blocks are large, so the loss of a street is significant. However, the idea of closing this portion of Main Street has been talked about for 40 years, initiated with the second century plan. In the 80’s the City started encouraging the Church to look more seriously about investing in their campus, because it is one thing that does distinguish Salt Lake. Four or five million visitors come to the City every year. It is a good idea. Outside observers, who probably didn’t respect or understand some of the cultural issues faced in Salt Lake, also brought similar ideas to the City. The will of the public finally convinced the Church to embrace the notion of a campus and to proceed with substantial investment in that regard. Then to bait and switch on the Church after encouraging them all these years is disingenuous.
Mr. Muir also believes the Plaza has become a special place and needs to be respected. To respect the importance of the zone, certain concessions need to be made. Mr. Muir thinks the proposal offers a reasonable exchange and is in the public interest. He does not believe the Commission is being too hasty.
Mr. Daniels said that with his clarification from Mr. Pace and his chastisement by Mr. Jonas, he was more than willing to vote in favor of the motion because he sees great value coming to the west side where he resides. He sees greater value there than what will be given up on the Plaza. He supported the motion.
Ms. Seelig said she also resides on the west side. She was not in favor of the motion. She felt guaranteed pedestrian access through an important part of the City was the most important element to be considered. To her, the easement physically manifests a commitment to diversity in belief systems which she wants to continue.
Ms. Noda concurred with Ms. Seelig. She appreciated all the time that has been invested in the issue. It has not been easy for either party. For Ms. Noda, the question of what is being given up is ultimately what the issue comes down to. The earlier Planning Commission wished to keep it public. The easement creates public forum issues, but there is a certain amount of free speech protection that goes with that. Ms. Noda felt the time, place and manner restrictions are the better way to go, and should be given more consideration. The City should come up with reasonable time, place and manner restrictions that would be workable. She looks at the issue in terms of the First Amendment. She understands the original intent of parties. She thinks Main Street is important in terms of the City’s overall plan and design. If the Capitol Hill master plan never envisioned a Main Street closure, there are some issues that relate to the master plan and how walkable the city will be.
Ms. Noda believes there is enough language, especially in the Venetian case, to lead her to think there will be further litigation with the second proposal. She believes the divisiveness will not end with the second proposal. Time, place and manner restrictions may be challenged, but if crafted carefully, there is less risk.
The First Amendment is a hallowed principle and a hallmark of a civilized society. A reasonable exchange of ideas is desired. Some recent conduct on the Plaza should be regulated through time, place and manner. Bullhorns and pedestrian impediment can be disallowed. To a certain extent, dissent has to be allowed. Such is the hallmark of a mature society.
Mr. Jonas clarified that the previous Planning Commission desired access across the Plaza, but intended to give up that First Amendment right for protest. Clearly, all parties to the original deal desired no protesting on the Plaza. Mr. Jonas said the Commission had to look at their plans and decide how the loss of that access easement would affect the plans. To Mr. Jonas the loss of the easement is not a death knell. It is certainly impactful, but not nearly as impactful as closing off the automobile access to the property.
The most important thing to Mr. Jonas is that the will of the people has been heard. The vast majority support the Mayor’s proposal.
Mr. Chambless shared Ms. Noda’s perceptions. He talked about balance and compromise, fairness and justice. After listening to everyone, he realized we were all working towards a common goal to make the community a better community. The original process was flawed and not as public as it should have been. It should have been expected that the matter would be litigated. Mr. Chambless has read the 10th Circuit Court ruling and believes whatever decision is made will be appealed back to court. The First Amendment was not considered four years ago. Mr. Chambless does not wish to see the Main Street Plaza walled up. He believes the first proposal was closer to a solution than the second. Time, place and manner restrictions are probably the best way to be able to answer the First Amendment questions and maintain the present beauty of the Plaza. He thinks it is important that the Capitol Hill area be able to communicate with the central business area. He will not support the motion. He liked Paul Moore’s proposal.
Ms. Funk reminded him that Mr. Moore’s proposal violates the view corridor easement.
Mr. Diamond was concerned about the campus idea of the Church. He cannot imagine any more walls around Temple Square. He believes it is important to intertwine the fabric between people’s religious beliefs. To close the easement would risk in the future of a continuation of a wall that runs from State Street to 400 West. A campus is something that invites people in. Helping the dialogue between cultures and beliefs will create a stronger community.
Mr. Diamond also did not like the tie of the Unity Center to the Mayor’s proposal. The Unity center should happen regardless of the Plaza situation. He will not support the motion.
Ms. Seelig said she was frightened by the idea of a public policy and land use policy in which public property rights are abandoned because of conflict.
Mr. Jonas called for a vote. Ms. Funk, Mr. Muir and Mr. Daniels voted “Aye”. Mr. Diamond, Ms. Seelig, Ms. Noda and Mr. Chambless voted “Nay”. Ms. Arnold and Ms. McDonough were not present. Mr. Jonas, as Chair, did not vote. The motion failed.
There being no further business to discuss, the Planning Commission meeting adjourned at 11:41 p.m.