PROVO — The Utah Supreme Court paved the way Friday for the completion of a road that will divide the property of a Utah County resident.
Newell Johnson's family appealed to the state's top court, seeking to stop Utah County from using its power of eminent domain to take a strip of land through his property for Provo, which wants to build a street to connect Canyon Road and University Avenue near the Riverwoods shopping area.
Previously, Provo had tried to use eminent domain to take the land, only to have the same Utah Supreme Court rule that the city could not do so.
The court ruled the city didn't have jurisdiction because Johnson's property is technically not in Provo but on a 26-acre island of unincorporated Utah County land within the city.
The city and county then made a deal to have the county condemn the land and take it for Provo. Provo agreed to pay for construction and maintenance of the proposed county road connecting two city streets.
This time, the five high court justices unanimously rejected the Johnson family's appeal of a 4th District Court ruling that approved the deal.
"While circumventing (our) decision was clearly an objective of the agreement, it was not the only objective of the condemnation action," Justice Matthew Durrant wrote in the court's decision. "Utah County has a substantial interest in minimizing traffic congestion within its boundaries. Citizens of Utah County, as well as Provo city, will benefit from the road.
"The fact that Utah County waited until Provo city discovered it could not condemn the property, and the fact that Provo city will be paying the expenses are more indicative of prudent fiscal management than bad faith. It would be folly for the county to have its taxpayers pay to condemn and construct this road where Provo city is ready and willing to cover that expense."
Provo first sought to take the land in 2002 and reached agreements with other landowners who controlled other portions of the new road at 4800 North. The city began construction, and the lower portion of the road, winding up the hill toward Canyon Road below the Johnson property, has waited to be paved for a couple of years. The road now will go through while the sides determine how much the city must pay Johnson's family for the land, Provo deputy city attorney David Dixon said.
"This ruling is great news," Dixon said. "We've been litigating this for about four or five years, so we're glad to have a final resolution. It's not final in the sense we have to still have a hearing on the value. At least the road is going to go forward this summer. I'd estimate probably close to 60 days for start of construction. It's in the budget for next fiscal year," which begins July 1.
Attorneys for the two sides argued their cases in November. The Johnson family was represented by Dayle Jeffs, who questioned whether the county could loan its eminent domain power to the city.
By the time the ruling was released Friday, Jeffs had left town for the Memorial Day holiday. Messages left for Johnson family members were not returned.
Provo city attorneys now could find themselves in court arguing over the value of two pieces of property the city has successfully obtained through eminent domain. Provo took possession of the Travelers Inn, 495 W. Center, on Monday and began the process of demolition. That property will be part of a new center for performing arts.
Unless the city and the landowners agree to mediate or negotiate a settlement, a judge or jury will decide how much the city will pay for the properties.
"We've got two of them going now," Dixon said. "We hope they don't come out on the high end. The ball's in their court to ask the judge for a trial date."
Jeffs previously told the Deseret Morning News the city has the land appraised at about $280,000 while the Johnsons had an appraisal that valued it at more than $550,000.
The project would leave a wedge of land on one side of the new road that is 60 feet wide at one end and dwindles to nothing at the other end.
"You've left a piece of ground that can't be built upon," Jeffs said. "The property that is left doesn't have the same development potential."
E-mail: twalch@desnews.com