With a public hearing set for Tuesday and a vote on Mayor Rocky Anderson's proposed community center solution to the Main Street Plaza controversy tentatively slated two days later, the Salt Lake City Council is racing toward what it hopes will be the resolution to a four-year controversy that has shaken the city to its core.
However, many interested observers, including at least one council member and the American Civil Liberties Union, don't see a solution at all. Instead, they say that more controversy will come from Anderson's planned solution, leading to further division, no peace and yet more contention over the plaza.
And if litigation over the plaza is still under way 4 1/2 years after the city originally sold a block of Main Street to The Church of Jesus Christ of Latter-day Saints in 1999, a new plaza lawsuit could take just as long to wend through various courts, further feeding the controversy that has enveloped this city.
"It's like we're doing a big circle instead of moving forward," council member Nancy Saxton said.
Indeed, there are similarities between the present and 1999.
For starters, there is a deal on the table that some see as unconstitutional, though the City Attorney's Office — as it did in 1999— says it is solid
legally.
That proposal would give the LDS Church the city's public access easement on the plaza, thus potentially restricting public access and free speech there, in exchange for church-owned land in the city's Glendale neighborhood, where a community center would be built. The center would be constructed with a $4 million donation from the Alliance for Unity and a $1 million gift from billionaire Jim Sorenson.
For and against
The City Council, which is largely LDS, seems ready to support the deal. The ACLU has sworn to bring more litigation if it goes through.
As in 1999 when the original sale of Main Street occurred, there is significant community opposition to this proposal — and complaints that City Hall is kowtowing to the LDS Church.
And as in 1999, there is significant support for the proposal — and complaints that those who are against the plan aren't really against the merits but really just hate the LDS Church.
Saxton is the lone council member who has stated she will vote against Anderson's plan.
Three council members — Dave Buhler, Carlton Christensen and Van Turner — say they will vote for it.
Three other members — Jill Remington Love, Dale Lambert and Eric Jergensen — remain quiet about their leanings.
Lambert did say he has reached a decision but will not say what it is. He would like to vote on Anderson's plan in short order — if not this Thursday, then within the next few weeks.
"I believe I have the information I need," Lambert said. "I'm prepared to make decisions about which directions we should move."
Strings attached
This week the council discovered there is at least one major string attached to the $4 million the Alliance for Unity raised to facilitate Anderson's proposal.
The catch? Anderson's deal to cede the city's plaza easement to the LDS Church in exchange for land and a community center in Glendale has to be closed before Sept. 30.
"If the closing does not happen by Sept. 30, they are not obligated to provide the money," City Attorney Ed Rutan said.
That means the City Council — if it wants to accept the gift and build the Glendale center — will not be able to wait for the U.S. Supreme Court to rule on the plaza appeal, if the high court does decide to take up the case.
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 plaza, which the church built across Main. 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 expected to be able to restrict some activities there — appealed the decision to the Supreme Court.
To wait, or not
The high court did discuss the plaza appeal at a private conference May 15 but has not indicated whether it will hear the case.
Saxton, for one, wants to wait until the court makes its decision on the appeal.
"I urge the council to not take a vote until a decision has been entered by the Supreme Court," she said.
If the high court does take the case it would likely be well over a year before it was heard and decided.
The September deadline, then, is highly relevant.
But many council members don't see a need to wait. And last week the council reaffirmed its commitment to hold a public hearing on the plaza on Tuesday, after the alliance and Sorenson sent letters to Rutan outlining the conditions of their donations.
The letters noted that there were few strings attached to the donations, but that the funds had to go to developing a community center and expanding the nearby Sorenson Multicultural Center in Glendale. The one major exception was the September deadline.
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"The Supreme Court case could really go on for a year or more," Christensen said. "I don't feel like we necessarily have to wait and would be willing to go on with a decision. If you waited past the Sept. 30 deadline we'd lose the money."
A key Boston case
As for the church, it has consistently said it prefers a "local solution" to the plaza controversy rather than waiting for a Supreme Court decision.
But ACLU attorneys say the deal is steeped in legal trouble, on issues such as separation of church and state and free speech. There are other concerns, such as how the cash-strapped city will pay to operate the community center and what kind of services will be available there.
The free speech issue is based in case law, beginning with a 1970s case involving a group of animal rights activists who sued the owner of Boston's Faneuil Hall Marketplace for the right to protest there.
In that case, the 7th U.S. Circuit Court of Appeals held that even though Faneuil Hall was owned and leased by a private organization, it remained a public forum because the marketplace — dating back to colonial times — "was an area traditionally used for public assembly, was dedicated to public use and was indistinguishable from the surrounding public streets and sidewalks."
The key issue, as in the plaza case, was that the disputed walkways serve as paths for the walking public beyond those simply visiting the owner's property or business.
As the 7th District ruled in the Faneuil Hall Marketplace case, "many pedestrians wholly uninterested in the marketplace's offerings cross its lanes daily in traveling to the waterfront."
Pedestrian access
That also seems to be the case on the plaza in Salt Lake City.
A study by the mayor's Transportation Advisory Committee found that 544 pedestrians used the plaza as a thoroughfare on a daily basis. And that was in winter.
Such pedestrians are in addition to those who use the plaza to reach LDS Church destinations, which border the plaza on either side.
So even though the plaza is owned privately by the church, a court could still consider it a public forum because the plaza is used for pedestrian access.
The City Council has once again hired University of Utah law professor John Martinez to give a "second set of eyes" to see if the land-swap proposal will pass legal muster.
Rutan says the deal will stand a legal challenge; representatives of the ACLU disagree.
In its ruling, the 10th Circuit Court of Appeals suggested that the city could solve the problem by giving away its easement.
"If it wants an easement, the city must permit speech on the easement," the court stated. "Otherwise, it must relinquish the easement so the parcel become entirely private."
A city divided
Following the 10th Circuit Court's ruling, the city erupted in animosity between people who wanted to maintain free speech and public access on the plaza and those who wanted the city to relinquish the easement and thus total control over the property.
One Deseret News/KSL-TV poll showed the sides split down religious lines, with a majority of LDS Church members supporting the church's stance and a majority of people of other faiths and those without a religious faith supporting unrestricted access and free speech on the plaza.
The City Council office and the mayor's office received thousands of letters, phone calls and e-mails about the issue, and one council meeting erupted into a verbal fight when Anderson accused Buhler, the council chairman, of leaning a certain way on the plaza because he is LDS.
"That was just a wild time between October and December," Buhler said. "It was crazy."
Love said she thinks there is less interest in the plaza these days, and she has spoken with people who were once vehemently against ceding the city's easement who now just want the controversy to end.
E-MAIL: bsnyder@desnews.com