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(Salt Lake City) Mayor to Float Plaza Plan
The Salt Lake Tribune ^ | 12/6/2002 | HEATHER MAY

Posted on 12/06/2002 11:21:30 AM PST by Utah Girl

Salt Lake City Mayor Rocky Anderson will release his much-awaited proposed solution for the Main Street Plaza dilemma today.

While he won't divulge the proposal until 3 p.m., he acknowledged Thursday it doesn't satisfy the LDS Church, which is still calling for the city to relinquish its easement through the property and is placing its hope for a resolution with the U.S. Supreme Court or the City Council, which believes it can get rid of the easement.

"We've been working to the point of exhaustion on a proposal that I believed would bring everybody together and put this matter behind us," Anderson said. "I'm vastly disappointed that I won't be joined tomorrow by representatives of The Church of Jesus Christ of Latter-day Saints."

The Salt Lake Tribune has learned a part of the mayor's proposal is a definition of the easement's location, which was never outlined when the church and city negotiated the sale of Main Street between North Temple and South Temple in 1999. It appears the easement -- which is the public's right of way through the church-owned plaza and would be open to some free speech activities -- will run on the outside edges of the plaza, where traditional public sidewalks would go. Many people assumed all along those walkways on the east and west edges were the easement.

The proposal would leave the church in complete control of the center of the plaza, including the reflecting pool and seating area.

Anderson will also announce constitutional restrictions on free speech -- so-called time, place and manner regulations -- for the easement. The city may have found a way to prohibit demonstrations there, though it would probably have to allow people to pass out pamphlets.

Expectations for Anderson's announcement were high. The mayor had previously said his proposal would satisfy the LDS Church and civil libertarians. And the news release announcing today's news media conference says the proposition will "both protect the rights and interests of the public, and help create a peaceful atmosphere on the Main Street Plaza."

The mayor said he shared his plan with LDS Church officials but would not say what they said. Church spokesman Dale Bills said: "We have received Mayor Anderson's proposal and are reviewing it."

A church attorney called again Thursday for the city to give up the easement. "The simplest way to resolve this issue is for the church to provide 24-hour-a-day, 7-days-a-week access and the city to relinquish the easement so the church can control its property," said Alan Sullivan.

He said the church is hopeful council members will come to a resolution after they meet on Tuesday with former Mayor Deedee Corradini, LDS Presiding Bishop H. David Burton and others involved in the Main Street sale. The council will hold the "fact-finding hearing" at 5:30 p.m. to discuss the church and city's original intent. Church officials and some former city leaders say they always intended for the church to control behavior and speech on its plaza. The 10th U.S. Circuit Court of Appeals ruled the restrictions were unconstitutional because of the city's easement.

Anderson said he will not give up the easement. He suggested again that the church and city go to state court to resolve questions surrounding the easement and the severability clause. The mayor says the clause means that since the restrictions were held unconstitutional, the easement remains and is open to the First Amendment. The church disagrees.

Sullivan said the church isn't interested in going to court about the severability clause.

"The parties are still talking. Really, another lawsuit doesn't solve anything."


TOPICS: Constitution/Conservatism; Culture/Society; News/Current Events
KEYWORDS: ldslist
Sigh. So much for Rocky's self-aggrandizing statement on Tuesday of this week that his proposal would satisfy everyone. And there isn't even anything new in his proposal, we already knew where the public easements were, and we knew that Rocky would allow pamphleting (and proselytizing) on the SL Plaza. Now we're just waiting to hear the rules for demonstrations on the Plaza. Real special Rocky, you getting to decide what the LDS church can do with its property.
1 posted on 12/06/2002 11:21:30 AM PST by Utah Girl
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From today's Deseret News.

Church says no to Rocky plaza rules

Huntsman tries to mediate and is still hopeful

Salt Lake Mayor Rocky Anderson pledged that his time, place and manner restrictions for the Main Street Plaza would solve the plaza problems, but the LDS Church has rejected the restrictions, saying the rules don't adequately protect its property rights.

Image
Alan L. Sullivan

Meanwhile, the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints retained prominent attorney Alan Sullivan to fight Anderson over dueling interpretations of a severability clause, negotiated in the contract that deeded a block of Main Street to the church three years ago.

Wednesday, Sullivan sent a letter to Anderson and new City Attorney Ed Rutan restating the church's position that — given the severability clause — the city's easement on the plaza no longer exists. Sullivan previously represented AT&T in a lawsuit disputing ownership of the Salt Lake Tribune.

Anderson's restrictions were to be made public at a 3 p.m. press conference at City Hall today. However, Presiding Bishop David H. Burton and other church officials received a preview of Anderson's restrictions this week and decided the restrictions weren't adequate.

The sneak peek was delivered by billionaire Jon Huntsman Sr., who said he spent the past six days working as mediator between Bishop Burton and Anderson, who drafted the restrictions along with Rutan.

Still, even with Huntsman — founder of the Huntsman Cancer Institute, owner of Huntsman Chemical Corp., philanthropist, LDS Church member and personal friend to Anderson — working as mediator, an accord between the city and church couldn't be reached.

Which begs the question: If Huntsman, with all his credentials, couldn't mediate a solution, who can?

Huntsman maintains he is still the right man for the job. He just needs more time.

"We're just getting started. We're going to work this thing through, and it's going to come out fine for everybody," Huntsman said via telephone from Washington, D.C., Thursday. "I have a great love and respect for my faith and, at the same time, I have a great fondness for my friends in the community not of my faith and I get along with all of them, so if I can help in some way, I desire to do that."

The Main Street Plaza dispute has divided Utah and Salt Lake City along religious lines, with a majority of LDS members supporting their church and a majority of members of other faiths supporting Anderson, according to a recent Deseret News poll.

In 1999, the city sold a block of Main Street, now a pedestrian plaza, to the church but retained a public access easement across the plaza. The 10th Circuit Court of Appeals recently ruled that the easement creates a free-speech forum, similar to what exists on public sidewalks.

That decision irked the church since it paid $8.1 million for the land and the ability to control what happens there, including restricting protests, demonstrations, leafletting, 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. Anderson said that since the city bargained for the public access easement, he won't give away that public right.

Hence, his time, place and manner restrictions, which can prohibit things like protesting at late hours or using overly large signs. The rules will also define the easement.

Huntsman said he worked "virtually around the clock" for the past six days trying to mediate a resolution. He was first given a copy of Anderson's time, place and manner restrictions nearly a week ago. He then took that document to Bishop Burton.

"Jon and I are longtime friends," Anderson said. "I wanted to share my proposals with him, expecting, of course, that he would pass the proposal on to church officials."

Over the next six days Huntsman went back and forth between city and church, trying to negotiate an agreement. Throughout the negotiations, Huntsman said, each side made some concessions to find some middle ground.

"As someone who is trying desperately to bring them together, I have to say that both sides made some concessions," Huntsman said.

In the end, however, there wasn't enough middle ground to appease the church.

"I've tried carefully to review them with Bishop Burton and his associates, and the time, place and manner restrictions that Rocky presented were not acceptable to the LDS Church," Huntsman said.

Anderson said he "bent over backwards" to accommodate the church's wishes through his restrictions and Huntsman's mediation. The mayor said the church seemed unwilling to settle on any solution other than the city giving up its easement on the plaza.

He also wondered why the church is so insistent that the city give up the easement if it really believes the easement no longer exists, as outlined in Sullivan's letter. The mayor reiterated his earlier offer that the church and city should have a 3rd District Court judge give a declaratory judgment deciding whether the easement does exist.

In his letter, Sullivan said such a declaratory judgment "would be premature."

Anderson says the church seems unwilling to seek a compromise.

"It concerns me that I have never received any suggestions or proposals regarding a resolution of this on the part of the church other than an insistence that the easement simply be conveyed," Anderson said.

Huntsman signed on as mediator in his capacity as co-chairman of the Alliance for Unity. Anderson is the other co-chairman of the group of 18 Salt Lake community leaders who work to unify the city across religious and cultural lines.

Huntsman had hoped to strike a deal between the city and church and then have that deal ratified by the alliance today, just before the mayor's time, place and manner restrictions were made public. However, a special 2:30 p.m. meeting of the Alliance was canceled Thursday as Huntsman realized the deal wasn't going to happen.

"At this point we haven't made as much progress as I'd have hoped to. But we've certainly put in enormous amounts of time and effort and hours on both sides, and we're going to keep working until we can help solve the problem," Huntsman said.

Today, a church spokesman downplayed the idea that it had been in extended negotiations with Anderson about time, place and manner restrictions.

"We received the mayor's proposals late Wednesday, which is the first time we had seen them. They are in no way a result of negotiations with the church. There have been no negotiations between the church and the mayor," spokesman Dale Bills said. "While we have said all along that the church has serious reservations about this 'time, place and manner' approach, we feel that as a courtesy to the mayor we should wait until he has made his proposals public before we comment."

Elder Lance B. Wickman of the Quorums of Seventy has said that any protesting, demonstrating or leafletting on the plaza is unacceptable.

Meanwhile, Anderson is growing seemingly weary, besieged by countless e-mails, letters and phone calls from angry people calling for the city to give its easement to the church. Through all the anger Anderson said he has lost faith in many LDS people.

"There have been so many mean-spirited, cruel, personal shots taken at me because of my position that promises and written agreements need to be honored," Anderson said. "It's taken a terrible toll. I physically feel the hatred and bitterness directed at me personally . . . the e-mails, the phone calls, the calls by stake presidents to get people to come to public meetings to speak out. . . . I have to wonder sometimes about people who hold themselves out to be religious when they can so maliciously attack another human being for doing what he thinks is the right and honorable course. . . . I'm getting absolutely pummeled."

Huntsman believes Anderson is being honorable, as is the church. Both parties are doing what they feel is the right and honest thing. The separation is a legitimate difference of opinion, Huntsman said.

"I really feel everything will work out well," Huntsman said. "I believe both parties are honorable and honest."

2 posted on 12/06/2002 11:27:12 AM PST by Utah Girl
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I received this from FReeper lady lawyer. If you are interested, please call and make your opinion known. I have already called, and passed this number onto my family and friends.

*********************************************************
I've just learned that there is a phone number we can call to make our wishes known to the City Council on the Main Street conflict. The number is (801) 535-7600. At the prompt, select 1 if you are in favor of the city's position; select 2 if you are in favor of the Church's position.

As of yesterday 3000 votes had been cast in favor of Rocky Anderson, and only 300 votes had been cast in favor of the Church.

Because this number hasn't been widely circulated, it almost looks like it has been done on purpose so the Church won't get enough votes.

I just made the call myself, and I would encourage you all to do the same. Even if you don't live in Salt Lake City you can express your opinion.

Pass this on to as many people as you can.

3 posted on 12/06/2002 11:29:22 AM PST by Utah Girl
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A clarification on the above post, lady lawyer received that information in an email to her, and passe the email onto me. Thanks!
4 posted on 12/06/2002 11:32:21 AM PST by Utah Girl
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To: Utah Girl
Thanks for the heads up!

Lotsa options on that number - even an email address.

5 posted on 12/06/2002 11:39:24 AM PST by jo6pac
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To: jo6pac
Good, I'm glad you found the article, I was just going to ping you.
6 posted on 12/06/2002 11:41:43 AM PST by Utah Girl
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To: *LDS_list
http://www.freerepublic.com/perl/bump-list
7 posted on 12/06/2002 11:44:45 AM PST by Libertarianize the GOP
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To: Utah Girl
Thank you for the info. I've called and stated my opinion and emailed friends and family about the phone #.
8 posted on 12/06/2002 11:47:46 AM PST by zlala
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To: Utah Girl
Have you posted it on the Utah freepers page (don't know what else it's called).
9 posted on 12/06/2002 11:49:58 AM PST by zlala
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To: Utah Girl
I am not Mormon, but I'm sure on you guys' side in this. LDS negotiators should emulate Steve Wynn in Vegas. He usually knows how to get his way - and when he does, all benefit. Politicians should leave stuff like this to the people who know what they are doing!

(Thanks for posting. I'm kinda following this.)
10 posted on 12/06/2002 11:53:04 AM PST by JudyB1938
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To: JudyB1938
You are welcome for the post. It is frustrating, to say the least, to have this issue staring us in the face for many years to come.
11 posted on 12/06/2002 12:24:07 PM PST by Utah Girl
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To: JudyB1938; zlala; jo6pac; lady lawyer; All
Here is more information on the plan from Rocky. His "compromise" is not. Leafletting on the WHOLE plaza? Could he stick his fingers in the eyes of the LDS church any more???

And lady lawyer, isn't this breaking the First Amendment in a big way? The city of SL, well, the mayor is deciding that leaflets can be passed out by anyone on property owned by a church. Ugh, I'd better be quiet and take a walk, this is really pushing my buttons. I'm not having Christian thoughts about Rocky, I'm sure he'd be real disappointed in my lack of niceness.

Rocky plan would allow protest area

Church rejects rules; Huntsman still mediating

Salt Lake Mayor Rocky Anderson this afternoon was to announce proposed "time, place and manner restrictions" that would create designated protest zones but allow leafleteers complete access on Main Street Plaza.

The LDS Church has rejected the restrictions, saying the rules don't adequately protect its property rights. Elder Lance B. Wickman of the Quorums of Seventy has previously said that any protesting, demonstrating or leafletting on the plaza is unacceptable.

The American Civil Liberties Union was presented with an early copy of the restrictions and said it is happy - for the most part - with the rules, which govern protests and demonstrations on the plaza, ACLU attorney Janelle Eurick said.

Specifically, Eurick said Anderson's rules limit protests to two five-by-24 foot "protest zones" on the southeast and northeast corners of the plaza.

Individual leafleteers, however, are given free rein to wander throughout the plaza, Eurick said. The rules also ban noise levels that rise above certain decibels, but Eurick said those noise bans didn't rise above the level already banned on the city's public sidewalks.

Anderson had pledged that his time, place and manner restrictions for the Main Street Plaza would solve the plaza problems.

However, the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints retained prominent attorney Alan Sullivan to fight Anderson over dueling interpretations of a severability clause, negotiated in the contract that deeded a block of Main Street to the church three years ago.

Wednesday, Sullivan sent a letter to Anderson and new City Attorney Ed Rutan restating the church's position that - given the severability clause - the city's easement on the plaza no longer exists. Sullivan previously represented AT&T in a lawsuit disputing ownership of the Salt Lake Tribune.

Anderson's entire 17-pages of restrictions were to be made public at a 3 p.m. press conference at City Hall today. However, Presiding Bishop David H. Burton and other church officials received a preview of Anderson's restrictions this week and decided the restrictions weren't adequate.

12 posted on 12/06/2002 12:49:27 PM PST by Utah Girl
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To: Utah Girl
Warranty Greed Agreement

LOL! Has Rocky's computer been hacked?

13 posted on 12/06/2002 1:08:24 PM PST by jo6pac
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To: jo6pac
I'm just wondering if the good citizens of SLC and Utah are all trying to access Rocky's website all at once. I can't get there.... What did it say?
14 posted on 12/06/2002 1:11:17 PM PST by Utah Girl
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To: Utah Girl
Page title = warranty greed agreement between SLC and the Church of Jesus Christ
15 posted on 12/06/2002 1:14:44 PM PST by jo6pac
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To: jo6pac
That's a pretty good one. Rocky just about had a heart attack when the LDS church mentioned buying the public easement from SLC. It would solve some of the city's financial shortfalls.
16 posted on 12/06/2002 2:20:21 PM PST by Utah Girl
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From lds.org, a letter from the LDS church's attorney in this matter. He's good. I even understand severability clauses, kind of.

*******************************************************

The following letter, delivered this week to City Attorney Ed Rutan, addresses one of the issues that Mayor Anderson has raised repeatedly. This is the so-called "severability clause" included in the Special Warranty Deed that transferred ownership of the new Church Plaza property from Salt Lake City to The Church of Jesus Christ of Latter-day Saints.


 

December 4, 2002

BY HAND DELIVERY

Ed Rutan, Esq.
Salt Lake City Attorney
451 South State Street, Room 505
Salt Lake City, Utah84111

Re: Main Street Plaza

Dear Mr. Rutan:

This firm has been asked to represent the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints in relation to the current dispute over Salt Lake City's pedestrian access and passage easement on Main Street Plaza.I have been asked by H. David Burton, the Presiding Bishop of the Church, to address the legal issues raised in Mayor Anderson's letter to him of November 15, 2002, and other legal issues recently raised by the Mayor in the press.

1.The Severability Clause

We respectfully disagree with the conclusion in Mayor Anderson's letter to Bishop Burton that, as the result of the court's decision in First Unitarian Church vs. Salt Lake City, 308 F.3d 1114 (10th Cir. 2002), Main Street Plaza is burdened with an unrestricted public access easement.Specifically, we disagree with the conclusion that the severability clause in Section 6.2 of the Special Warranty Deed (April 27, 1999) from the City to the Church transformed what was, by agreement, a limited easement for pedestrian access and passage into an unlimited easement.The severability clause, of course, has not yet been triggered because the courts have not yet "finally" determined the parties' rights, as required by the severability clause itself.Until all appeals from the Tenth Circuit's decision are exhausted, there will be no final determination of the constitutionality of the restrictions on the City's easement.More importantly, however, we do not believe that the Special Warranty Deed's severability clause would be interpreted to give the City rights for which it never bargained.

Our disagreement with Mayor Anderson's interpretation of the severability clause stems from two related facts. 

First, the restrictions on the easement were an essential part of the parties' agreement.The Church would not have purchased the relevant block of Main Street, and the City would not have been able to sell it to the Church, if the restrictions on public access had been absent from the Special Warranty Deed.In Mayor Anderson's public statement of October 22, 2002, he correctly observed what is clear from the public record — that "the restrictions on conduct and other expressive activities" were among the "essential terms of the agreement between the parties." 

Second, the City's pedestrian access and passage easement cannot be separated from the restrictions on the easement without doing violence to the intent of the parties.In other words, the Special Warranty Deed's easement and restrictions constituted mutually dependent promises and operated as an integrated whole; they were a single, essential term of the transaction.The City retained no more than a restricted easement.The Church made it clear that it would not buy the property unless the restrictions applied; the City agreed to the limited easement on that basis. 

Under these circumstances, the Special Warranty Deed's severability clause could not reasonably be interpreted to enlarge the City's easement.Severability clauses have never, to our knowledge, been interpreted to allow parts of an essential provision of an agreement to survive other parts of the same essential provision, especially where, as here, the result would be an inequality of the benefits or burdens between the parties.In the present situation, a court may well hold that the restricted pedestrian access and passage easement (including the restrictions) is severable from the conveyance of real estate to the Church, but we do not believe that a court would hold the restrictions themselves, standing alone, to be severable from the easement which they limited.

Severability clauses are common in contracts and deeds.Their purpose is to make sure that the intent of the parties is carried out, even if non-essential parts of the deal are held to be unenforceable.They provide a mechanism for the survival of the remaining terms of the contract if the essential purposes of the contract can still be realized.In deeds, they ensure that the underlying conveyance does not fail even if non-essential conditions are unenforceable. 

Such clauses cannot, however, be used to violate the intent of the parties, or to sever mutually dependent obligations."[A] severability clause is but an aid to construction, and will not justify a court in declaring a clause as divisible when, considering the entire contract, it obviously is not.The crucial question is whether the clauses to be severed are essential to the contract.Essentiality depends on the intent of the parties."Eckles vs. Sharman, 548 F.2d 905, 909 (10th Cir. 1977) (internal quotation and citation omitted).

Since the City's pedestrian access and passage easement and the restrictions on that easement operated together as an integrated, essential term, we believe it is extremely unlikely that a court would hold that the Church is now burdened with an unrestricted easement to which it did not agree, and never would have agreed, in the first place.Many cases have confirmed this conclusion.See, e.g., John R. Ray & Sons, Inc. v. Stroman, 923 S.W. 2d 80, 86–88 (Tex. Ct. App. 1996) ("[The severability clause] does not have the effect of making an otherwise dependent contract into one whose terms are independent and divisible."); AMB Property, L.P. v. MTS, Inc., 551 S.E. 2d 102, 105 (Ga. Ct. App. 2001) ("[S]evering an essential term of the contract is not allowed."); Eckles v. Sharman, 548 F.2d at 909.

These and other authorities confirm the more general principle that severability — with or without a severability clause — depends upon the intent of the parties.In Utah, contract provisions can only be severed if "the primary purpose of the contract could still be accomplished following severance."Sosa v. Paulos, 924 P.2d 357, 363 (Utah 1996).See also Management Services Corp. v. Development Associates, 617 P.2d 406, 408 (Utah 1980);Parents Against Drunk Drivers v. Graystone Pines Homeowners' Association, 789 P.2d 52, 56 (Utah App. 1990).The Restatement (Second) of Contracts provides that terms constituting "an essential part of the agreed exchange" may not be severed, and "[w]hether the performance is an essential part of the agreed exchange depends upon its relative importance in the light of the entire agreement between the parties."Restatement (Second) of Contracts §184(1) & cmt. a (1981).In the same vein, courts refrain from enforcing severability clauses where the result would lead to a material imbalance in the exchange between the parties with respect to essential terms.See, e.g., Zerbetz v. Alaska Energy Ctr., 708 P.2d 1270, 1282–833 & n.19 (Alaska 1985).

We note that in First Unitarian, the Tenth Circuit did not decide how the severability clause should be interpreted, or what consequences its decision would have on other terms of the 1999 transaction.The Tenth Circuit merely noted that the City and the Church disagreed on the issue.See First Unitarian 308 F.3d at 1126 n.8.

We believe, in short, that resort to the severability clause does not solve the problem faced by the parties.The clause cannot be interpreted to contravene the clear intent of the parties.More importantly for present purposes, the severability clause should not prevent the parties from endeavoring to find a fair middle ground for resolution of the present dispute.Rather than debating legal issues, we respectfully submit that the parties should seek ways in which the City and the Church could honor the parties' original intent, without violating the requirements of the First Amendment. 

2. Litigation Concerning the Severability Clause

News reports last weekend suggested that the City and the Church might seek a declaration of the Third District Court for Salt Lake County concerning the correct interpretation of the severability clause.I have been asked to advise you that the Church believes that any such suit for declaratory relief would be premature.As you may know, the Church intends to seek an appeal of the Tenth Circuit's decision in First Unitarian.Beyond that, the parties are still attempting in good faith to resolve their differences;we are hopeful that they will be able to agree on a way to honor the parties' intent and, at the same time, comply with the requirements of the First Amendment.Under these circumstances, we believe little would be gained by initiating another law suit now. 

If the parties are unable to resolve their differences, we respectfully suggest that, rather than filing a new law suit, the City join with the Church in petitioning the Supreme Court for review of the First Unitarian decision.We call upon the City to defend its agreement with the Church. 

If you have any questions concerning the Church's positions outlined above, please let me know.


Very truly yours,

Snell & Wilmer
Alan L. Sullivan


ALS:kb

cc: Members of the Salt Lake City Council:

David Buhler, Chair (by hand delivery)
Carlton J. Christensen, Vice-Chair (by hand delivery)
Van Blair Turner (by hand delivery)
K. Eric Jergensen (by hand delivery)
Nancy Saxton (by hand delivery)
Jill Remington Love (by hand delivery)
Dale Lambert (by hand delivery)

Honorable Ross C. ("Rocky") Anderson (by hand delivery)


17 posted on 12/06/2002 2:31:45 PM PST by Utah Girl
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Rocky's speech from this afternoon. My mother just called and said that the LDS church will have a response at 5 pm this afternoon.

**************************************************************
The following is the text of Mayor Rocky Anderson's statement proposing what he believes is the best solution possible to solve the Main Street Plaza controversy.

We are currently hosting about 5,000 municipal officials from around the nation at the National League of Cities Congress of Cities. Last night, the delegates to the Congress were spell-bound by an extraordinary performance of the Mormon Tabernacle Choir at the magnificent Conference Center. During that performance, President Gordon B. Hinckley spoke to the municipal officials, graciously acknowledging the responsibility they have and the tremendous job they do on behalf of cities across the nation.

The generosity of The Church of Jesus Christ of Latter-day Saints in providing that free concert – and in providing a significant financial contribution toward the cost of putting on the Congress – was typical of what The Church of Jesus Christ does every day in this community, and around the world.

Growing up, I had occasion to work on a stake farm and was well aware of the remarkable ways in which The Church of Jesus Christ cares for its own members in times of need. But only since I have been Mayor have I learned the extent of the humanitarian services provided throughout our community and in many nations by The Church of Jesus Christ. I have canned apple sauce at the Cannery, and I have toured the Humanitarian Center, learning about the astounding efforts of The Church of Jesus Christ to provide clothing, medical supplies, and other necessities to those in need around the world. Many in this community are unaware of much of the good that is done because, in so many ways, The Church of Jesus Christ follows the admonition in the Book of Matthew that when you give to the needy, do not let your left hand know what your right hand is doing.

As Mayor – and as an almost-life-long resident of Utah – I am grateful for the spirit of generosity taught and practiced by The Church of Jesus Christ of Latter-day Saints. It is that spirit of generosity that also has led such great people like Jon Huntsman to contribute hundreds of millions of dollars to make this world a better place. And it is the ethic of treating well the “least of these” that has led many of us in this community to dedicate ourselves to helping those who are most vulnerable and least powerful.

In response to such generosity and high-mindedness, I, like so many others, would like to say “Yes” to any request made by The Church of Jesus Christ. It seems like the least I – and our community – could do. I certainly understand the sentiments of those who recently have said, “The Church of Jesus Christ does so much for this community. Just give them the easement so they can control their own property at the Main Street Plaza.”

Believe me, I wish it were that easy. These have been an incredibly difficult six weeks, with much misunderstanding – and far too much divisiveness. For any role I have played in that, I apologize.

As a community, we are faced with a difficult situation because of an inherent conflict in an agreement reached by The Church of Jesus Christ and the prior administration. That agreement included (1) an easement to be held by Salt Lake City, assuring a perpetual right of pedestrian passage through the Main Street Plaza, and (2) extensive restrictions on conduct and other expressive activities on the Plaza. As explained by the United States Court of Appeals for the Tenth Circuit, a governmental entity like Salt Lake City cannot constitutionally guaranty public access and, at the same time, permit such extensive restrictions on the right to freedom of expression. Because of that conflict, the Court declared some of the restrictions to be unconstitutional.

This community is divided among those who believe that the City should simply convey the easement to The Church of Jesus Christ so the Church will own the property outright and be able to control conduct on the Plaza as it sees fit, and those who advocate for the City to keep the easement. The advocates of the latter position refer to a “severability clause” in the written agreement signed by The Church of Jesus Christ and former Mayor Corradini, which provides that if the restrictions are deemed unconstitutional, everything else is to remain the same. We read that clause to mean that although the restrictions have been declared to be in violation of the First Amendment, the City is still to retain the easement.

Neither of those resolutions would fulfill the expectations of the parties concerning crucial elements of the initial agreement. First of all, as Roger Cutler, the City Attorney who negotiated and drafted a significant portion of the agreement, stated to a federal judge, the easement was crucial to the City. As Mr. Cutler stated, the agreement would not have been entered into by the City “but for” the provision reserving the easement to the City. That provision was consistent with promises made to the public that perpetual pedestrian access would be assured. Mr. Cutler also stated to the federal judge that under the severability clause, the City was to continue holding the easement even if the restrictions on conduct were declared to be unconstitutional. On the other hand, it seems abundantly clear that The Church of Jesus Christ would not have entered into the deal had it not been assured of being able to restrict certain conduct and other expressive activities.

This does not have to be a win-lose situation for anyone. And it certainly does not have to be a matter that festers, creating divisiveness along religious lines. We can work this matter out, fairly and reasonably, so that (1) the constitutional requirements are met, (2) an easement, guaranteeing public access and passage, is retained by the City, and (3) to the extent constitutionally permissible, restrictions will be imposed that will assure that the Plaza will be a place of peaceful, tranquil beauty.

We present this proposal not only to the City Council, which has the power to approve an ordinance enacting this plan, but also to the people of Salt Lake City and everyone who uses and enjoys the Main Street Plaza. We hope for a thorough, respectful, and open discussion of this proposal, and we urge support of this plan as a means of reuniting our community behind the principles we all share in common – (1) our commitment to the Constitution, (2) our dedication to keeping our promises and written agreements, and (3) our respect for the beliefs and rights of others.

The first element of this proposal is the clear definition of the boundaries of the easement held by the City. These boundaries are not described in the Warranty Deed, signed by the City and The Church of Jesus Christ. However, the deed specifically stated that the easement was meant to provide for “access and passage only.” The entire Plaza need not be included in the City’s easement to preserve this access and passage. Therefore, we propose that only the relatively narrow east walkway on the plaza be included in the City’s easement. This small walkway, about the size of a normal city sidewalk, is more than enough to ensure that pedestrians will always have guaranteed passage through the Plaza.

With this definition of the easement, The Church of Jesus Christ will have free and clear title to the vast majority of the plaza (approximately 90%), and will have the ability to regulate conduct just as any private property owner would on its own property. Also, that walkway is furthermost from Temple Square.

Salt Lake City government has a significant interest in preserving the beautiful, peaceful setting provided by the Main Street Plaza. Not only do millions of tourists visit the area each year, but also many Downtown workers and residents seek respite at the Plaza each day. The City also has an interest in protecting the rights of people to exercise their right to the free practice of religion, including weddings and other Temple-related activities in and around the Main Street Plaza.

To achieve these interests and to ensure that pedestrian passage is not impeded, we propose that group gatherings on the easement be limited to two fairly small gathering areas on the north and south ends of the easement. While demonstrations will be restricted on all other parts of the easement, leafleting and other peaceful individual expressive activities will be allowed. To preserve unimpeded views and the beauty of the Plaza, signs and placards carried on the easement will be limited to a small but reasonable size.

In addition to limiting group gatherings, strict limitations will be imposed on noise levels on the plaza. The goal of these restrictions is to protect the peace of those on adjacent properties, including Temple Square, as well as those seeking to enjoy the tranquility of the Plaza itself.

Finally, we propose that the easement be subject to all the time, place, and manner restrictions currently imposed on other city sidewalks. These regulations include prohibitions on loitering, disturbance of religious services and activities, disturbing the peace, posting bills and signs, and obstructing pedestrian access.

Together, these regulations provide a comprehensive solution to the conflicts that have arisen with respect to the Plaza. This plan achieves almost all of what the parties bargained for when they signed the Special Warranty Deed in 1999. It is a carefully structured compromise solution that essentially meets the concerns of all parties. No one gets 100% of what they want – but that is a result of the fact that the essential terms of the initial deal are not constitutionally compatible. The plan protects the public right to access and passage, by means of a legally enforceable easement, one of the two major goals of the original agreement. This proposal also provides substantial protections for the peace and tranquility of the Plaza, limiting, to the extent constitutionally possible, disruptions and disturbances on the Plaza. All this is accomplished without betraying the promises that were made to the people of this City and without significant risk of further court challenges.

I am committed, as I have been from the very beginning, to give effect to the parties’ intentions, so far as constitutionally possible. Here, we have proposed that the easement be defined in an extremely limited manner, that we impose restrictions on conduct and other expressive activities on that easement to the extent we are constitutionally able, and that we maintain the promises made to the people of Salt Lake City that there will be a perpetual right of pedestrian passage through the Plaza. We are pleased to discuss this matter further and are open to any ideas, so long as we (1) stay true to the promises that there would be a perpetual easement through the Plaza, (2) promote the peacefulness of the Plaza, and (3) honor the protections of religious liberty and freedom of expression contained in the First Amendment to the United States Constitution.

Whether we agree or disagree as to this proposal – or as to any of the matters relating to the Plaza – I call upon everyone in this community to be kind, respectful, and more compassionate toward those who hold other views. People of good will and reason can come together and resolve this matter in a way that is honorable – in a way that can bring our community together – and in a way that takes into fair account the interests in maintaining a perpetual right of pedestrian passage through the Plaza, the constitutional requirements, and the clear intentions of the parties that the Plaza be a place of peaceful beauty – a place where we can all find safe and tranquil refuge.

18 posted on 12/06/2002 3:18:50 PM PST by Utah Girl
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From the KSL.com lead story (with a graphic even!) And Rocky's proposal is still not even a compromise. People can still demonstrate on the Plaza (albeit to a couple of confined areas), and there is the ability to pass out leaflets (read: religious pamphlets among other things) on the WHOLE plaza. I don't think so. The good part of this proposal is that the west side of the Plaza remains under the church's control, which is the area right be th reflecting pool and the temple.
**********
Salt Lake City Mayor Rocky Anderson has made what he believes is the best proposal possible to solve the Main Street Plaza controversy.

Salt Lake City Mayor Rocky Anderson has made what he believes is the best proposal possible to solve the Main Street Plaza controversy.

This afternoon, he unveiled a four-step plan that he says will meet the needs of the Church of Jesus Christ of Latter-day Saints and still be constitutionally correct.

Anderson says the original deal between the city and the church never specifically defined what the "easement" is. So he proposes a walkway about the size of a normal sidewalk along the entire east side of the plaza.

On the north and south ends of the easement, he proposes small protest zones where groups can gather.

People could still pass out literature in the rest of the plaza, as long as they abide by noise and disturbance regulations.

Anderson believes his plan gives both the city and the church almost all of what they bargained for back in 1999, when the deal was made.


Specific components of the plan include:

Anderson says no plan will make all parties involved 100 percent happy, but this plan achieves nearly all of their goals.

The Church of Jesus Christ of Latter-day Saints constructed the plaza on what was a stretch of Main Street between North and South Temple Streets.

The issue of a public easement through the plaza has been an issue all along.

The ACLU and others have sued in court saying the Constitution provides for free speech in a public area.

The LDS Church wants to restrict certain things on the plaza such as protesters, the use of foul language and smoking.

Most recently, the Tenth Circuit Court of Appeals in Denver has ruled that freedom of speech must be guaranteed at the site.

Mayor Anderson's newest proposal is an attempt to make both sides happy.

19 posted on 12/06/2002 3:28:39 PM PST by Utah Girl
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More from KSL.com. Reporting is done by Keith McCord.

***************************************
The mayor offers a plan to solve the battle over the Main Street Plaza, but the controversy seems far from finished.

Mayor Rocky Anderson says his plan is a "win-win" situation -- a four-part proposal that he says will address the needs of the Church of Jesus Christ of Latter-day Saints and still be constitutionally correct.

"This does not have to be a win-lose situation for anyone. And it certainly does not have to be a matter that festers, creating divisiveness along religious lines," Anderson says.

But was anything really new proposed here?

Yes and no. We've heard some of this before, but the mayor has refined some of his definitions.

LDS Church officials got a look at the plan yesterday, and word is, they still don't like it. The mayor, however, went public with the plan today to generate more discussion.

"These have been an incredibly difficult six weeks, with much misunderstanding, and far too much divisiveness," Anderson says. "For any role I have played in that, I apologize."
With that, Anderson outlined his plan to bring all sides together on the Main Street Plaza issue.

He says the original deal between the city and the LDS Church never specifically defined what the "easement" is. So he proposes a walkway about the size of a normal sidewalk along the entire east side of the plaza.

"With the definition of the easement, the Church of Jesus Christ will have free and clear title to the vast majority of the plaza, approximately 90 percent, and will have the ability to regulate conduct just as any private property owner would on its own property," Anderson says.

On the north and south ends of the easement, the mayor proposes small protest zones where groups can gather.

People could still pass out literature in the rest of the plaza, as long as they abide by noise and disturbance regulations.

Anderson believes his plan gives both the city and the LDS Church almost all of what they bargained for back in 1999, when the deal was made.

"No one gets 100 percent of what they want, but that is a result of the fact that the essential terms of the initial deal are not constitutionally compatible," he says.

As we said earlier, the LDS Church has rejected the restrictions, saying the rules don't adequately protect its property rights.

Shortly after the mayor's announcement, News Specialist John Daley spoke with Alan Sullivan, the LDS Church's attorney.

"The city has a legitimate expectation that the public has a right to enter the property and pass over it and make use of it," Sullivan says.

"We don't think the parties intended for there to be protesters, hecklers. The deal would not have gone forward if that had not been the case,"
he says.

20 posted on 12/06/2002 4:53:30 PM PST by Utah Girl
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To: CubicleGuy; Logophile; T. P. Pole; Utah Girl; White Mountain; rising tide; scottiewottie; ...
Here is the LDS church's response to Rocky Anderson's proposals that he released earlier this afternoon. There is also a letter from H. David Burton, presiding Bishop. I'll also include a link to the complaints and incidents reports.

And one last comment from me. The Church Administration block has been open to the public for decades, and has allowed access through that area. The Main Street Plaza would be the same, allowing the public to walk through the area without a public easement. I do not understand why this is such a big issue with Rocky Anderson.

A CRITIQUE OF THE MAYOR'S PROPOSED TIME, PLACE AND MANNER RESTRICTIONS

  1. No relation to the original bargain
- The mayor's proposal does not give the Church what it paid for. The parties to the 1999 transaction did not intend for there to be a free-speech corridor or protester bull pens on Church property, nor did they intend for the police to have to regulate harassment, intimidation, and noise levels on the plaza.
- The mayor's proposal would not protect the peaceful atmosphere of the plaza, on which the Church has insisted from the beginning. Just the opposite:
  1. Complicated and subjective
- The mayor's proposal is cumbersome, complicated, confusing, and highly subjective, with the result that it will be difficult or impossible to enforce. Just two examples:
  1. Future uncertainty
- A future city council could change these time, place, and manner restrictions to make them even more onerous without even asking the Church.
- The mayor's plan is a complicated and unsatisfactory approach to the problem. We propose instead that the city give up the easement and that the Church allow continuous and perpetual public access to the plaza, in accordance with the parties' original bargain.

**************************************************
Letter to Mayor Anderson from H. David Burton, Presiding Bishop

December 6, 2002

To: Honorable Ross C. "Rocky" Anderson, Mayor; David Buhler, Chairman; Carlton J. Christensen, Vice-Chairman; Van Blair Turner; K. Eric Jergensen; Nancy Saxton; Jill Remington Love; and Dale Lambert

VIA HAND DELIVERY

City & County Building
451 South State Street, Rooms 304 & 306
Salt Lake City, Utah 84111

Dear Mayor Anderson and Council Members:

This community needs your help. There is no question that the segment of Main Street sold to the Church for more than $8 million and developed by the Church into a beautiful mall connecting Temple Square and the Church administrative complex has become something neither the Church nor the city contemplated when they entered into the transaction in April 1999. Instead of a place of peace, the plaza has become a source of controversy and contention.

Ironically, the parties intended just the opposite. They wanted the plaza to be a beautiful place of quietude and contemplation, truly an oasis in the midst of a bustling city. What was intended as an enhancement of the quiet splendor of the Salt Lake Temple has now become a platform for hecklers harassing those visiting the temple, including young couples going there to be married, and a haven for others distributing anti-Church literature, "buttonholing" visitors or simply panhandling. Such behavior undermines the purpose of the plaza in direct contradiction of what the parties intended.

Mayor Anderson has now proposed an ordinance that would regulate the "time, place and manner" of such behavior on the easement. We believe that the Mayor's plan would lead to more - not less - controversy. Essentially, his proposal would codify the very activities on the plaza that the Church finds objectionable. Not only does it expressly permit organized protests and demonstrations in "bull pen" areas at either end of the plaza, but the ordinance also would allow all other forms of speech activity normally permitted on a public sidewalk on the rest of the easement. Sign-carrying, soliciting, street-preaching and even heckling would be permissible along the length and breadth of the easement, provided these activities remained within certain noise levels, did not obstruct the flow of foot traffic and complied with other ordinances regulating speech activities on a city sidewalk. And, realistically, how would these regulations governing an easement across the Church's property be enforced without a constant police presence, not to mention the continuing specter of potential disagreements between Church and city officials over the interpretation of the ordinance? This ordinance carries the seeds of ongoing confrontation, argument and strife - the very antithesis of the plaza. Such a pathway of controversy cannot be the road to peace.

We respectfully submit that there is a way to resolve this perplexing problem: The easement must be extinguished. The Church remains committed to working with the city to find a solution that assures public access to the plaza while keeping it free of contention. In point of fact, the Church has always intended that there be open public access to the plaza - with or without an "easement." As an additional gesture of good will, the Church is willing to agree that there will be no organized missionary proselyting on the plaza. It would be a quiet, welcoming sanctuary to all wishing to savor its serenity.

This matter is a community issue, and it deserves to be resolved by the community. The Church pledges its best efforts to finding such a resolution and invites you, as the elected representatives of the people of this community, to link arms with it in doing so. As always, we express our great appreciation to each and all of you for the service that you render.

Sincerely,

H. David Burton
Presiding Bishop
****************************************
Church Plaza protestors (video clips)
Plaza Incidents Report from Nov 27, 2002 to Nov 30, 2002
Sounds bites from Alan Sullivan, the LDS church's attorney

21 posted on 12/06/2002 5:12:32 PM PST by Utah Girl
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To: Utah Girl
Here's a little bump to the thread.
22 posted on 12/06/2002 5:36:25 PM PST by JudyB1938
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To: Utah Girl
You know if that was a "Buddhist Temple or a Mosque" Rocky and the ACLU would be singing a different toon!

And send these disrupters packing!

23 posted on 12/06/2002 6:27:39 PM PST by restornu
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To: Utah Girl
Here's my idea. Take this so-called easement and wall it up, complete with a roof. This would give the passage agreed to. Then put in your own gate to the rest of the area, and restrict the passage there. Let anybody who wants it access to the tunnel, and preserve the peace elsewhere.

I guess that you'd have to build some kind of underpass or overpass to get across. Maybe an escalator to the second floor of the building across the street.

What do you all think?

24 posted on 12/06/2002 7:31:46 PM PST by T. P. Pole
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To: T. P. Pole
No, that defeats the purpose of the Main Street Plaza. It would cut off the Church administration block (where the Joseph Smith Memorial Building and Church Office building is.) I think the idea of an overpass is a good idea though. This is such a mess. I'm waiting for the late local news to come on.
25 posted on 12/06/2002 8:56:45 PM PST by Utah Girl
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I just watched the late news. Pretty discouraging, they also showed part of a tape of a protestor using a megaphone, calling the early LDS church leaders whoremongers, etc. Nice, especially on the night that the Christmas lights were turned on Temple Square. Such a mess, Rocky needs to give it up. This is the report from KSL-TV this evening, on their late broadcast.
*******************************************
The mayor calls for a compromise, but his latest proposal to resolve the dispute over the Main Street Plaza looks like it, too, is headed for a dead end.

"No one gets 100 percent of what they want," says Salt Lake City Mayor Rocky Anderson.

The mayor's proposal aims at severely limiting the possibility of public disturbance on the plaza, but it does not give complete control over the street to the Church of Jesus Christ of Latter-day Saints.

And because of that, it seems to be drawing mixed reviews.

Simply stated, the mayor's plan gives the LDS Church 90 percent of the easement on the Main Street Plaza.

But he also proposed that the sidewalk farthest from Temple Square be a public easement, which includes group gathering areas where protests would be allowed.

But tonight, the LDS Church says, no deal.

Optimists might see the mayor's annoucment as an opening to resolve the bruising fight over Main Street.

But the reality is, tonight there's no compromise.

Anderson began his much-awaited proposal by praising the "spirit of generosity" of the LDS Church, and offering an olive branch.

"These have been an incredibly difficult six weeks, with much misunderstanding and far too much divisiveness. For any role I have played in that, I apologize," Anderson says.

He says the original deal between the city and the LDS Church never specifically defined what the "easement" is.

So he proposes a walkway about the size of a normal sidewalk along the entire east side of the plaza.

"With the definition of the easement, the Church of Jesus Christ will have free and clear title to the vast majority of the plaza, approximately 90 percent, and will have the ability to regulate conduct just as any private property owner would on its own property," Anderson says.

On the north and south ends of the easement, the mayor proposes small protest zones where groups can gather. People could still pass out literature in the rest of the plaza, as long as they abide by noise and disturbance regulations.

Anderson believes his plan gives both the city and the LDS Church almost all of what they bargained for back in 1999, when the deal was made.

After hearing the mayor's proposal, the two primary antagonists had decidely different reactions.

"I'm confident that through the public process, it's possible to end up with regulations that everyone can agree on. I'm afraid we're headed back to court," says Stephen Clark, attorney for the ACLU.

"The city has a legitimate expectation that the public has a right to enter the property and pass over it and make use of it. We don't think the parties intended for there to be protesters, hecklers. The deal would not have gone forward if that had not been the case," says Alan Sullivan, attorney for the LDS Church.

On Tuesday, a meeting will be held by the Salt Lake City Council, designed to explore the original intent of the parties in the deal.

Then there will be a chance for the public to weigh in. That date is Tuesday, December 17.

There has also been a lot of discussion behind the scenes about the plaza between the mayor and LDS Church leaders. KSL interviewed the man who has been the go-between for both parties, Utah businessman Jon Huntsman Sr.

Anderson and Huntsman have been friends for a long time, and have worked on various projects together.

For the past week or so, Huntsman has been going back and forth between the mayor's office and the LDS Church Office Building, playing the role of "mediator."

This afternoon, he attended a meeting with the LDS Church First Presidency, then met with Mayor Anderson before the mayor held his news conference.

Huntsman declined an on-camera interview, but he told the Deseret News that he's been working almost around the clock trying to come up with a resolution.

He is optimistic, telling newspaper reporters, "We're going to work this thing through and it's going to work out fine for everybody."

Huntsman did tell us that both sides had made some concessions, but for now, there is still no conclusion to the dilemma. No word either on whether Mr. Huntsman has more meetings planned.

26 posted on 12/06/2002 9:53:59 PM PST by Utah Girl
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