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Justices decline Salt Lake Plaza appeal

City Council, LDS Church moving forward with deal

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WASHINGTON — Any flicker of hope the U.S. Supreme Court would resolve the Main Street Plaza dispute — and thereby reconcile a litany of contradictory lower-court rulings that have vexed local governments across the country — was doused Monday when the high court refused to hear an appeal by The Church of Jesus Christ of Latter-day Saints.

Deseret News graphicDNews graphicTimeline: Main Street PlazaRequires Adobe Acrobat.

Church and city officials called Monday's action disappointing but entirely expected given that the Supreme Court agrees to hear so few cases and because it may have appeared to the high court the dispute has already been resolved with a "land-for-peace" deal approved June 10 by the Salt Lake City Council.

"We felt all along like we were making the right decision (to sell the easement to the church)," Salt Lake City Councilman Eric Jergensen said. "Even if the Supreme Court (agreed to hear the appeal), it is two or three years out anyway."

And few were willing to wait that long for resolution.

"My feeling was there was a compelling civic need and a civic opportunity, and we decided to take that opportunity and move forward," Jergensen added.

That opportunity came in the form of a deal brokered by Salt Lake Mayor Rocky Anderson whereby the church would get the easement — along with the legal authority to restrict public access and speech — and the city would get church-owned land in Glendale for a community center. The deal also calls for $5 million in private contributions, mostly from philanthropists James Sorenson and Jon Huntsman, to build the center.

Von G. Keetch, attorney for the LDS Church, said a "top priority all along" was local resolution to the dispute. "We are gratified that the City Council has now passed (the trade), and we hope will it be finalized."

The council's approval of the deal was formally published June 18. Under terms of the agreement, the deal does not "close" for 35 days from that time.

"Hopefully, that will be the end of it," Keetch said. "We just hope the community can come together with that."

The Supreme Court's decision in no way affects the current deal for the public easement.

But with 30 days left in the countdown, there is still plenty of time for opponents of the deal to file a lawsuit — something that triggers an option whereby the closing can be delayed to examine the pending litigation.

The American Civil Liberties Union, which originated lawsuits over the plaza on behalf of the First Unitarian Church, said it is still mulling whether to challenge the new trade.

Without comment, the high court let stand Monday a 10th Circuit Court of Appeals decision that sided with the ACLU, which had challenged the 1999 sale of a block of Main Street to the LDS church for $8.1 million. The church turned the block into a park with reflecting pools and gardens.

But the appeals court ruled that a pedestrian easement retained by the city remained a "public forum" where protests must be allowed. The LDS Church was hoping to reverse that ruling with a hearing before the Supreme Court.

"To me it was never a hard case," said Mark Lopez, an ACLU attorney in New York, who hailed the high-court decision as a protection of freedom of speech. "As long as the city obtained and kept that right of way and it continued to look, act and smell like a public place, they had to treat it like one" and allow protests.

Councilwoman Nancy Sexton, the only one not to vote in favor of the compromise, said she doubts the ACLU will file a new lawsuit, saying "all the burdens of proof have been met by the council, the mayor and all of the entities," and "if they were going to file a lawsuit they would have it ready to go."

City officials say they are abiding by the 10th Circuit ruling, which outlined two approaches whereby the city and church could resolve the constitutional problems. One was to enact "time, place and manner" regulations, and the other was to make the easement entirely private.

To enact regulations on where, when and what kind of speech would be allowed "is an invitation for constant litigation and controversy over how those regulations are enforced," Councilman Dave Buhler said.

Gene Schaerr, one of the LDS church's lawyers in Washington, said the "way the land deal is structured in Salt Lake City and the way the 10th Circuit decision was written, it is very likely that the land deal will survive any legal attacks . . . If necessary, we will defend ourselves" against more lawsuits the ACLU says it is considering.

Dani Eyer, executive director of the ACLU of Utah, said her office is "seriously evaluating" filing another lawsuit. The church-city deal "raises so many issues. Is it government accommodation of private discrimination?"

"We believe a responsible government would have abided by the Court of Appeals decision, and allowed and regulated speech there," Lopez added.

City Council members say they weren't counting on a hearing when they voted 6-0 with Saxton's abstention to approve a deal trading the public easement to the church for a new community center on the west side of Salt Lake City.

"I concluded, as did five others on the council, that it was really better to address this issue on a local basis rather than wait and see what the court did," said Buhler.

But the high court decision leaves the issue of public easements on private land up in the air. In the those states covered by the 10th Circuit Court of Appeals, "the ability of governments to retain or obtain public easements through private property will be significantly hampered" because buyers and sellers may not want the public protests that come along with them, Keetch said."Municipalities and property owners alike are at real risk, not knowing what the law requires." Denial of the church's petition, he added, "by no means indicates agreement with the 10th Circuit ruling."

On his way out for some nighttime door-to-door campaigning Monday, Anderson added that the city and the church are moving forward with plans for the community center, regardless of the Supreme Court action. "Now comes the really exciting and positive part of identifying what exactly will go into this project."

The National League of Cities and the National Association of Counties wrote, "Until the 10th Circuit issued its decision in this case, local government had every reason to believe that private landowners who agreed to convey such limited-purpose (pedestrian) easements could retain the authority to restrict expressive activity on their property. That is no longer true."

The Venetian Casino Resort in Las Vegas was an unlikely ally of the LDS Church in its case. It had urged the Supreme Court to accept the case because it had been sued for trying to stop a labor union protest on a sidewalk it had purchased from the city — a case with a legal parallel to Main Street Plaza.

Sexton said she was a little surprised the Supreme Court did not hear the case because of the many First Amendment issues at stake. "The Supreme Court gets to pick and choose the creme de la creme, and they chose not to hear this case," she said.

And that does nothing to resolve the basic issue of public easements on private property.

"From a public policy standpoint, there is a lot of ambiguity out there with regard to easements," said Councilman Carlton Christensen. "It would be nice to resolve this issue. The city holds easements over other private lands, and those questions still linger."

"By not accepting the case, it will will require cities to take a long hard look at how they approach public easements over private property," agreed Jergensen. "I hope it doesn't throw cold water on public-private partnerships." In light of the court's decision, does the City Council feel validated in its decision to go ahead with a settlement to resolve the issue? "I don't think the Supreme Court validated anything," Jergensen said. "We felt we were making the right decision, and we felt validated the night we made that decision."

Contributing: Diane Urbani

E-MAIL: spang@desnews.com; lee@desnews.com