Deseret News, Dec. 19, 2002
http://www.deseretnews.com/
By Brady Snyder
The American Civil Liberties Union for Utah may attempt to force the LDS Church to put a fence around the Main Street Plaza.
“The irony is — depending on how this goes — that we might be the ones pressing them to put up gates and make this thing look like it’s more private and actually have less public access,” said Dani Eyer, executive director for the ACLU for Utah.
And in another plaza twist, The Church of Jesus Christ of Latter-day Saints could be required to spend several hundred thousand dollars, in addition to the 2.1 acres of land it is offering in exchange for Salt Lake City’s public access easement across the Main Street Plaza. The additional cash may be needed to satisfy Utah’s constitutional bans on gratuitous transfers of property between a government and a church.
Mayor Rocky Anderson proposed a plaza resolution Monday that calls for the LDS Church to give the city 2.12 acres (according to Salt Lake County surveying records) of land near the Sorenson Multi-Cultural Center in Glendale. The land is valued at $93,600, according to the county assessor’s office. As part of Anderson’s proposal, the Alliance for Unity would raise $5 million for a building where the University of Utah and Intermountain Health Care would offer free legal, business and medical advice as well as educational opportunities for children and adults. The LDS Church Foundation would also contribute financially to the project.
In exchange, the city would give up its public access easement on the Main Street Plaza. That easement has been valued at up to $500,000, LDS Church attorney Von Keetch said.
By Utah law, any church would need to pay or trade fair market value for any city property. If the easement is worth $500,000, it might be against Utah law for a government to give a $500,000 property interest to a church in trade for a $93,600 piece of land.
“That seems like a large discrepancy to me in the value,” ACLU attorney Janelle Eurick said.
That said, Anderson’s compromise will likely remedy the situation because it calls for the LDS Church Foundation to contribute financially to the development of a new service center on the land abutting the Sorenson Center. Given the price discrepancy between the church’s land and the city’s easement, that donation would have to be equal to or more than the difference between the easement’s value and the church property’s value.
“Specific dollar values for the plaza easement, for the church land near the Sorenson Center and for donations from The Church of Jesus Christ of Latter-day Saints Foundation are among a number of details yet to be finalized,” church spokesman Dale Bills said.
According to the assessor’s office, the 2.04 acres where the plaza sits is worth $3.6 million. That’s a far cry from the $8.1 million the LDS Church paid for the land back in 1999.
Staffers in the assessor’s office note, however, that since the land is owned by a church and is not taxed, they aren’t focused on keeping the assessed value current so their number could be undervalued. Still, it would appear that the church has already paid a high cost.
Anderson insists his proposal is much more than a property swap and notes the LDS Church Foundation has already committed to a monetary contribution to the compromise.
The City Council will continue to work through the public process, possibly including more public comment, en route to making a plaza decision, Council Chairman Dave Buhler said. The council can either vote to approve Anderson’s new proposal, take no action or approve Anderson’s time, place and manner restrictions for the plaza that were proposed last week prior to formulation of the proposed compromise.
The ACLU is still pondering a legal challenge to Anderson’s proposed land swap. A lawsuit could come even if the city gives away its plaza easement, as Anderson proposes, and holds no right of public access across the land.
However, such a lawsuit would put the ACLU — a champion of public access and free speech — in a strange position since the suit might force the church to gate the plaza and thus create more limited public access.
As they have examined Anderson’s latest plaza proposal, ACLU attorneys say they have uncovered some interesting case law. Eurick found a case from the 7th Circuit Court of Appeals in which a separation of church and state watchdog group sued the city of Marshfield, Wis.
Marshfield had erected a statue of Jesus Christ in a public plaza. When threatened with a suit, Marshfield sold the statue and the land directly around it to a private group. The city then argued the statue didn’t violate separation of church and state rules because the land was now owned privately.
However, the court ruled that a reasonable person wouldn’t know where the private land began and the public land stopped. The court then ordered the city to place a gate around the statue delineating between the private and public land. There is also the Venetian Casino case in Las Vegas where the casino’s sidewalks along Las Vegas Boulevard were ruled a public forum because a reasonable person couldn’t tell where the public sidewalk ended and the private walkway began.
Eurick maintains the Main Street Plaza situation is similar. The plaza is intertwined with the city’s transportation grid and has historically and is currently being used as a public walkway. Therefore, it might be hard for a reasonable person to know where the public sidewalk ends and the private plaza begins. To remedy the situation, if the ACLU brought suit, a court might suggest that the plaza be gated to avoid any misunderstanding that the land is now private.
When the city sold the block of Main Street 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 recently ruled that the easement creates a free-speech forum, similar to what exists on public sidewalks.
The church challenges the decision because it wants to control what happens on the land it paid $8.1 million to obtain, including restricting protests, demonstrations, leaflet distribution and some dress and speech.
The court suggested that the city either give its easement to the church — dissolving the right to public access and free speech — or craft time, place and manner restrictions for the plaza.