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Would S.L. give up its plaza easement?
Maybe, if ACLU wins court ruling, city attorney says

If a court were to overthrow an easement maintained by Salt Lake City in its sale of a section of Main Street to The Church of Jesus Christ of Latter-day Saints, the city probably would feel compelled to abandon part or all of the easement and simply let the church use the property as it wished.

That's according to Salt Lake City attorney Roger F. Cutler, responding to demands by the American Civil Liberties Union, which has been challenging restrictions that apply to the block-long segment.On April 13, the Salt Lake City Council approved sale of the segment to the church for $8.1 million. The section, amounting to 2 acres, will be the site of a new pedestrian plaza and underground parking garage. The parking area will house 600 stalls, with completion scheduled in about a year.

Under an easement retained by the city, the public will be allowed 24-hour access to the plaza. But the church has the right to place restrictions on that use, such as a ban on alcohol, tobacco and lewd behavior.

The Utah branch of the ACLU challenged the sale and said the city had no right to close off public property without retaining its status as a public forum. Use as a public forum includes speech-making and picketing.

Cutler disagreed with the ACLU's position that the street had to remain a public forum, even after the sale.

"In fact, the clear law is exactly to the contrary," Cutler wrote to the ACLU's Steven C. Clark on June 9. A 1998 ruling in Nevada, relying on a Supreme Court case, holds that the nature of public property used as a traditional public forum can be changed so it is no longer a public forum, Cutler wrote.

Cutler also rejected the ACLU's contention that there was something underhanded about the way the city decided on the terms of the easement.

"Contrary to your declaration, the definition of what property interests were retained by the city was not 'secret' nor 'clandestinely' determined," he wrote. "A review of the minutes of the City Council will reveal that the easement conditions were before it and discussed in an open meeting."

The city has passed no ordinance about regulating the new pedestrian mall and will not manage its use, Cutler wrote. The easement that the city has merely defines a limited property interest by the public in preserving the view and going on and off the property.

Cutler said the city has no intention of refunding or renegotiating the sale price.

The purchase has been fully consummated by both parties, and the city has no legal right or ability to require any change in its terms, Cutler wrote.

"In the unlikely event that litigation resulted in a ruling that the easement . . . is a free speech forum, the city may be morally or legally compelled to refund most of the $8.1 million," because the church's property rights could be diminished by such a ruling, he added.

"Rather than face that prospect, the city may be compelled by circumstances to quitclaim the easement to the purchases and, thereby, sever any of the public's legal relationship to these two areas." In other words, it could abandon the easement and allow the church to use the property however it wishes, without the guarantees in the easement.

The city considers the matter closed, Cutler added.

In a Deseret News interview Friday, Cutler said the money from the sale is included in the city's proposed 1999-2000 budget and will be appropriated when the final budget is adopted.

If a court were to rule that because of the easement the city had to maintain the public's right of free speech in the property even after the sale, that would be "a substantial diminution of property rights," he said.

He emphasized that such a ruling is unlikely. But if it did, it would mean that the easement incorporates what is legally called a mutual mistake of facts, with both parties operating under a misimpression.

"Rather than give the money back we would consider modifying the easement," by giving up part or all of its terms, he said. However, Cutler said these concerns are speculative, as no court has made such a ruling.