If a lawsuit challenging the legality of Salt Lake City Mayor Rocky Anderson's proposed community center solution for the Main Street Plaza directly follows City Council approval, the mayor or the LDS Church could opt out of the deal.
As part of the plaza settlement presented to the Salt Lake City Council on Tuesday, the city and The Church of Jesus Christ of Latter-day Saints have agreed to a provision that allows either Anderson or the Corporation of the Presiding Bishopric to void the deal if a suit comes within 35 days.
However, while including the option, the settlement holds out that the mayor and the bishopric — if both agree — could go forward with the deal despite such a suit.
The plan calls for a two-acre parcel owned by the LDS Church to be given to the city for a west-side community center in exchange for the city's easement across the Main Street Plaza. The land on Salt Lake City's west side would be developed by the Alliance for Unity, which would seek to raise $5 million for a service center.
Anderson said Tuesday he would have to consider the circumstances of a suit before deciding whether he would back away from the deal. That was the same reaction church attorney Alan Sullivan had when asked if a suit within the 35-day window would affect the church's attitude toward the agreement.
Anderson did say he expects that plaza conduct, dress and activity will be even more strictly controlled by the LDS Church following his proposed deal than it was before the 10th Circuit Court of Appeals ruled restrictions were invalid on the church's plaza if the city maintained a public-access easement there. Previously, the church had banned smoking, swearing, proselytizing, skateboarding and a host of other activities, some with First Amendment implications.
The American Civil Liberties Union continues to say it likely will sue if the community center proposal is adopted by City Council vote, slated tentatively for June 5.
Dani Eyer, executive director of the ACLU of Utah, said in an interview Tuesday that a suit against the community center plan could be easily constructed within 35 days. In fact, Eyer said national ACLU attorney Mark Lopez and former ACLU of Utah attorney Stephen Clark — the architect of the first suit that tangled the initial plaza deal — already have been working on the framework of a second suit. The ACLU has even considered introducing a draft suit to the City Council before its scheduled vote, Eyer said.
Speaking from the ACLU's New York headquarters, Lopez said city leaders could expect legal action.
"Frankly, I don't believe the ACLU is going to walk away from this," Lopez said. "The scenario that's marching forward Tuesday, if that's adopted and implemented, the consensus view is that this is an end run around the 10th Circuit decision, and a cynical end run around the 10th Circuit's decision at that."
Lopez said there are still significant requirements on the plaza, like the mandate for the church to maintain a "view corridor," which forbids the church from constructing any buildings or large structures on the plaza. By keeping the plaza off limits for most major construction it gives the appearance that the plaza is part of the public pedestrian thoroughfare and thus subject to the First Amendment, Lopez said.
Anderson countered Tuesday that the view corridor was "for aesthetic purposes and visibility purposes only" and was not designed to make the plaza inviting for pedestrians. He stressed that the church could cut off all pedestrian access on the plaza if it so chose.
If a suit did come within 35 days, and if it was formidable enough to force Anderson or LDS Presiding Bishop H. David Burton to terminate the deal, the $5 million raised for the community center in Glendale could be lost since those funds are contingent on the deal's being finalized.
City Attorney Ed Rutan said the 35-day window was put in place in case someone challenged the deal because city leaders forgot to "dot any I's or cross any T's." However, he said that if a more substantial suit were brought, challenging the deal on constitutional grounds, the parties could reconsider their commitment to the deal.
As for the seven-member City Council, three members — Dave Buhler, Carlton Christensen and Van Turner — have said they will support the community center plan. Council member Nancy Saxton has said she won't support the deal. Three others remained undecided Tuesday.
Saxton said Anderson's community center plan is just placing the city in a circle that will lead to further plaza litigation.
Turner, on the other hand, praised the deal and said he was shocked that high-ranking members of the community would donate money to help his west-side neighborhood, which often feels picked on.
"This kind of offer has never come to our neighborhood, ever," he said. "We're seeing people come to our neighborhood that we've never seen before."
When the city sold the section of Main Street between South Temple and North Temple streets to the church in 1999, it retained a public-access easement across the proposed plaza. In response to a lawsuit brought by the ACLU, the 10th Circuit Court of Appeals ruled in October that the easement created a free-speech forum, similar to what exists on public sidewalks.
The LDS Church — which didn't like the decision because it paid $8.1 million for the land and the ability to restrict some activities there — has appealed that ruling to the U.S. Supreme Court, which has not said whether it will take the case.
Some City Council members have expressed interest in waiting to vote on the plaza matter until the high court decides whether it will take the case. Others, and Anderson, say the community needs a solution now after already having waited more than seven months since the 10th Circuit's ruling.
E-mail: bsnyder@desnews.com