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Maple Mountain suit going forward

MAPLETON — The City Council has opted against a suggestion by U.S. Rep. Chris Cannon, R-Utah, and will continue litigation involving a civil rights suit filed by resident Wendell Gibby — at least for now.

Attorney Andrew M. Morse, who works for Utah Risk Management Mutual Association, the city's insurance carrier, advised the council at a recent closed session to follow normal litigation procedures because Gibby's lawsuit isn't ready to mediate. Closed sessions are allowed under Utah's open meeting law to discuss litigation issues.

Gibby and the city have been at odds in recent years over public access across some 120 acres Gibby owns on Maple Mountain.

Gibby has complained about the city's failure to keep trespassers off the land and vandalism of a gate and fence he constructed to keep people out.

The city maintains there is a historic public easement across the property that needs to be maintained and has filed an eminent domain suit to enforce the easement. A court ruling is pending. The city says the easement is part of the Bonneville Shoreline Trail system and needs to be protected. They say the easement is also critical for fire protection and emergency services access to the area.

Gibby's suit followed the city's failure to respond to a July 28 deadline on his offer to sell the land for $8 million, a price he believes reflects the land's true value.

Mayor Dean Allan said the deadline was missed due to difficulties in getting council members together to discuss the offer and review funding sources. The Trust for Public Land, a national conservation organization, had indicated a willingness to help the city find the needed funds.

Earlier this year Gibby was found guilty in Mapleton Justice Court of illegally plowing under the trail and other grading operations on the land, which includes a relatively flat bench and is in a critical environment zone that prohibits disturbing the soil without a permit.

Gibby was ordered to restore the trail but has appealed the justice court decision to the 4th District Court. Gibby's attorney has recently filed a motion to dismiss the case on constitutional grounds.

"It's way too early to go down that road (to mediate)," Morse told the Deseret Morning News.

Cannon arranged for U.S. District Judge David Sam to mediate the civil rights case in an effort to resolve the dispute in a simple and less costly fashion, said Joe Hunter, the congressman's chief of staff.

Allan refused to comment on the decision, and City Manager Bob Bradshaw said all communications are being left to Morse.

"Anything I say would be detrimental to the case," Allan said.

Morse said he needs to look at the claims being made in the suit to determine if there is any validity before proceeding with efforts aimed at a negotiated settlement.

"There is a way to do it if the case was ready," Morse said.

Under the land's current zoning, Gibby could build up to 23 estate-size homes if his subdivision plans were approved. He said he would like to rezone the land and add another 24 homes to the project.

In recent years, the city has been working to limit development on Maple Mountain to preserve its pristine environment. The city established a process that provides a transfer of development rights certificate to mountain property owners. Owners are allowed to sell those certificates to developers who can use them to create higher density subdivisions in other areas of the city. Certificates bring about $25,000 each on the open market.

David Nemelka, a former state legislator who lives adjacent to the land, has also urged Gibby to mediate his claims. He suggests that Gibby exchange the trail easement, which abuts Forest Service land, for other Gibby-owned property located higher up on the mountain for use in the trail system. He says that land is more suited for hiking and would keep the disputed land available for development. Nemelka said he believes Gibby and the city could work out a plan for emergency access while moving the trail easement off the property.

"Both sides should be flexible. They should give some and get some," Nemelka said.

Developing Gibby's property would create more traffic past Nemelka's southend south-end home, a prospect he dislikes, yet he is sympathetic toward Gibby.

"I think the city was aggressive in the beginning. That criminal lawsuit was unfair. It's become a tar baby. Nobody can win. Let's not go to war," Nemelka said. "I'm optimistic. I still think the best answer is a settlement."


E-mail: rodger@desnews.com