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12/17/2002 - Minutes (2)
PROCEEDINGS OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH TUESDAY, DECEMBER 17 , 2002 The City Council of Salt Lake City, Utah, met in a Work Session on Tuesday, December 17, 2002, at 5:30 p.m. in Room 326, City Council Office, City County Building, 451 South State Street. In Attendance: Council Members Carlton Christensen, Eric Jergensen, Nancy Saxton, Jill Remington Love, Dave Buhler, Dale Lambert and Van Turner. Also in Attendance: Mayor Ross C. "Rocky" Anderson; Rocky Fluhart, Chief Administrative Officer; David Nimkin, Mayor's Chief of Staff; Ed Rutan, City Attorney; Cindy Gust- Jenson, Executive Council Director; Janice Jardine, Council Planning & Policy Analyst; Russell Weeks, Council Policy Analyst; Michael Sears, Council Budget & Policy Analyst; Steven Allred, Deputy City Attorney; Alison Weyher, Community and Economic Development Director; Archie Archuleta, Administrative Assistant for Minority & Community Affairs; David Dobbins, Community and Economic Development Business Services Director; Roger Cutler, Former City Attorney; Alan Sullivan, Legal Counsel for the Church of Jesus Christ of Latter-Day Saints; and Pam Johnson, Deputy City Recorder, were present. Councilmember Buhler presided at and conducted the meeting. The meeting was called to order at 5:30 p.m. AGENDA ITEMS #1. REPORT OF THE EXECUTIVE DIRECTOR, INCLUDING REVIEW OF COUNCIL INFORMATION AND ANNOUNCEMENTS. View Attachment No announcements were discussed. See File M 02-5 for a copy of the City Council announcements. #2. DISCUSSION WITH FORMER CITY ATTORNEY ROGER CUTLER REGARDING THE MAIN STREET PLAZA. View Attachment Mr. Cutler said the Main Street easement issue was complex. He said misconception had created controversy. He said the public felt the Church of Jesus Christ of Latter Day Saints (L.D.S. ) had misrepresented their intentions. He said the reality was the easement was a City sponsored initiative. He said the original plan was to close Main Street to 300 South, create a pedestrian mall and cover the entire area with a canopy. Mr. Cutler said in 1962, the City passed an ordinance vacating the street prior to an easement being issued. He said under State Statute the law presumed that the fee title to the road belonged to the abutting property owner. He said the roadway easement was superimposed on top. He said when the Main Street easement was vacated it lifted the public right-of-way and the property line defaulted to the center of the street. He said in 1974 the process changed to the one the Council currently used. He said now the City closed a street, had the land appraised, and it was sold for fair market value. He said in 1962 the easement was not given to the Church. He said the City had a different process. Mr. Cutler said former Mayor Deedee Corradini's Administration wanted to resolve the 40 year old Main Street proposal. He said the administration felt the timing was because the former Mayor was not a member of the Church and was not running for re- election. He said the property sale was sold as a Mayoral Initiative and for the full appraised value. He said not until after the sale was announced were restrictions discussed. He said all restrictions required prior to the sale being finalized were placed by the City, not the L.D.S. Church. 02 - 1 PROCEEDINGS OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH TUESDAY, DECEMBER 17 , 2002 Mr. Cutler said one main issue was pedestrian convenience. He said Temple Square was the largest tourist attraction in the State. He said the City stipulated Temple Square operate like the Hotel Utah block. He said the only stipulation the Church had was that Temple Square not be a free speech arena. He said the church did not want platforms to be available for negative forums. He said most of the community' s concerns were addressed as stipulations of the sale. He said during negotiations, the idea of a reverter clause came up. He said the clause stipulated if all conditions of the sale were not upheld, the property would revert back to the seller. He said the L.D.S. Church agreed to the clause because they felt the sale was in the best interest of the City. Councilmember Lambert asked if there was any discussion with the Church about whether the City's conditions should not be met. Mr. Cutler said no discussion took place because each party was comfortable with the restrictions. Councilmember Turner asked how much it would cost the City to buy the easement back from the Church. Mr. Cutler said the L.D.S. Church paid almost $5 million an acre for the land. He said the Church assumed the easement was included in the purchase, so the amount of the easement alone had not been calculated. Councilmember Saxton asked if the original agreement could be amended. Mr. Cutler said two parties could always amend an agreement, but one party alone could not terminate the agreement. Councilmember Saxton asked if the City had been involved in other such land sales. Mr. Cutler said one example was the closure of 100 South. He said the Council had tried to back out of the agreement and they were sued. Councilmember Saxton asked how the monies from this property sale were spent. Ms. Gust-Jenson said nearly all of the City' s capital improvements for that year were funded from those monies. Councilmember Christensen asked if this issue would make the City reevaluate how land sales were done. Mr. Cutler said future land purchases made it important to honor the intent of this agreement. He said there was an implied covenant in every contract. He said it would be disastrous to be known as a public entity that did not honor those covenants. He said if first amendment issues were part of each issue, it would limit those willing to sell easements to the City. Mayor Anderson said he stated to Mr. Cutler that the City should honor the implied covenant of the land sale to the L.D.S. Church. He said easement restrictions were put into the agreement at the last minute and were not discussed during the public process. Mr. Cutler said the City made all the concessions and the Church agreed to them. #3. RECEIVE A BRIEFING AND HOLD A DISCUSSION REGARDING THE TIME, PLACE AND MANNER PROPOSAL FOR THE MAIN STREET PLAZA. View Attachment Mayor Anderson and Ed Rutan briefed the Council on the proposal allowing continued public access on the Main Street Plaza, with designated gathering areas. Mr. Rutan said the Mayor' s proposal addressed the fact that the special warranty deed did not define the physical location of the easement for pedestrian access and passage. He said the proposal would make the easement the equivalent of the sidewalk on the east side of Main Street. He said about 90% of the land would remain the property of the Church. He said the time, place and manner restrictions only applied on the remaining 100. He said the crosswalk would still be governed by existing time, place and manner restrictions on all public sidewalks. He said the Mayor' s new proposal for the easement, was based on the 10th Circuit Court's ruling. He said to meet requirements the restrictions had to be content neutral and the City had to pursue a legitimate government interest. He said the restrictions had to meet that interest and there had 02 - 2 PROCEEDINGS OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH TUESDAY, DECEMBER 17 , 2002 to be an alternate means of communication. Councilmember Love asked how enforcement would be handled. Mr. Rutan said if people left the unrestricted area, it would be considered civil trespassing and Church security could enforce the law. He said enforcement on the public easement would be handled by the Salt Lake City Police Department. He said noise issues, such as usage of bullhorns, would require special permitting. He said the City/County Health Department would enforce noise amplification. He said permits would not be required for pamphlets and other literature distributed in the unrestricted area. Councilmember Jergensen said the area proposed for the time, place and manner restrictions curved and the boundaries were uneven. He said it would be hard for the public to know when they were trespassing. Mr. Rutan said some areas were widened to allow for additional pedestrian access. He said there were ways to physically delineate public property from private property without destroying the beauty of the open space. Councilmember Lambert said it seemed time, place and manner restrictions were a source of continual litigation. Mr. Rutan said any First Amendment concerns became litigation challenges. Mayor Anderson said the City had received a letter from the American Civil Liberties Union (ACLU) which raised concerns not there before. He said the ACLU was not receptive to the proposed restrictions. He said they wanted small groups to be allowed to demonstrate on the entire easement. Councilmember Buhler said both the administration and the Council Members wanted all options discussed publicly. Councilmember Christensen asked if the City became liable for property damage on the public easement. Mr. Rutan said the City was not liable for damages done by demonstrators. Councilmember Saxton said the free speech area was smaller than the pedestrian easement. Mr. Rutan said the area proposed for the restrictions was created so pedestrian could walk around a gathering area easily. He said that was also the reasoning behind the signage size restrictions. He said a 3' by 3' size sign would not impede pedestrian traffic and sightseer views. Councilmember Turner asked how spontaneous protesting groups, not familiar with the time, place and manner restrictions would be accommodated. Mr. Rutan said the permit requirement would be waived if City Offices were closed or if the protest was truly spontaneous. He said the group would still need to be within the gathering area. #4. DISCUSSION WITH ALLAN SULLIVAN, LEGAL COUNSEL TO THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, REGARDING THE MAIN STREET PLAZA. Mr. Sullivan said the Church had not done a serious study of the constitutionality of the time, place and manner restrictions because the proposal was not a compromise. He said from the beginning of negotiations in 1988, the Church wanted to create a protest free zone. He said this proposal would require the Church to surrender the plaza to the type of behavior the City had assured the Church they would not be subject to. He said by creating gathering areas on either end of the plaza, it would become an attractive nuisance for protests. Mr. Sullivan said the proposed ordinance which outlined time, place and manner restrictions was too vague, and enforcement issues would be subjective. He said no one would be sure what would or would not be allowed in the 660 foot gathering or protest zone. He said the proposed ordinance stated persons should not make unreasonable noises on the easement. He said what was unreasonable to him might not be unreasonable to someone else. He said the Church was concerned about security enforcement in a place designed for peaceful reflection. He said the potential for 02 - 3 PROCEEDINGS OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH TUESDAY, DECEMBER 17 , 2002 violent altercations would be increased when the plaza was crowded. He said the Church was justifiably concerned about safety issues. He said a protest zone was not considered by either of the negotiating parties. The meeting adjourned at 6:52 p.m. pi 02 - 4 OYd2r • SAO I A'<L G IN CVO 'i I masa OI A OFFICE OF THE CITY COUNCIL Salt Lake City Council AGENDA City Council Chambers City& County Building 451 South State Street,Room 315 Salt Lake City,Utah Tuesday,December 17, 2002 7:00 p.m. 5:00 p.m., some Council Members may dine together in Room 125 at the City & County Building. (The room is open to the public.) A. WORK SESSION: 5:30 p.m.,Room 326, City&County Building,451 South State Street (Items from the following list that Council is unable to complete in Work Session from 5:30-6:55 p.m.will be addressed in a Work Session setting following the Consent Agenda.) 1. Report of the Executive Director, including review of Council information items and announcements. 2. The Council will hold a discussion with former City Attorney Roger Cutler regarding the Main Street Plaza. 3. The Council will receive a briefing and hold a discussion regarding the time,place and manner proposal for the Main Street Plaza. 4. The Council will hold a discussion with Allan Sullivan, legal counsel to the Church of Jesus Christ of Latter-day Saints,regarding the Main Street Plaza. B. OPENING CEREMONY: 1. Pledge of Allegiance. 2. The Council will approve the December 3, December 10 and December 12, 2002 minutes. C. COMMENTS: 1. Questions to the Mayor from the City Council. 2. Comments to the City Council (Comments are taken on any item not scheduled for a public hearing, as well as on any other City business. Comments will be limited to one or two minutes, as determined by the City Council.) 451 SOUTH STATE STREET, ROOM 304, SALT LAKE CITY, UTAH 841 1 1 TELEPHONE: 801.535-7600, FAX: 801-535.7651 171p necvcco PnPew Salt Lake City Council Agenda Tuesday,December 17,2002 D. PUBLIC HEARINGS: 1. Ordinance: Main Street Plaza Accept public comment and consider adopting an ordinance,resolution or motion relating to previously adopted ordinances closing a portion of Main Street between North Temple and South Temple Streets. (Comments will be limited to one or two minutes, as determined by the City Council.) (P99-14) Staff Recommendation: Consider options. E. NEW BUSINESS: (None.) F. UNFINISHED BUSINESS: (None.) G. CONSENT: (None.) H. ADJOURNMENT: Dated: December 13, 2002 By Deputy City Recor r STATE OF UTAH ) : ss. COUNTY OF SALT LAKE ) On the 13th day of December 2002,I personally delivered a copy of the foregoing notice to the Mayor and City Council and posted copies of the same in conspicuous view, at the following times and locations within the City&County Building,451 South State Street, Salt Lake City,Utah: 1. At 5:00 p.m. in the City Recorder's Office,Room 415; and 2. At 5:00 p.m. in the Newsroom,Room 315. Deputy City Recorde 2 Salt Lake City Council Agenda Tuesday,December 17,2002 Subscribed and sworn to before me this 13th day of V - -mber 41 NOTARY PUBLIC s c6'r` Ash STATE OF UTAH /� ,�_ € v My CommissApril8 Expires Notary Public residing i tie a e of Utah 20 ion 06 • ;y PAMELA M.JOHNSON 451 South State St.Room 415 Satt Lake city, iltah 84111 Approval: CQ 44��� Executi e Direct r Access agendas at http://www.ci.slc.ut.us/council/agendas/default.htm .A sound system for the hearing impaired is available and headphones can be obtained for all public meetings upon four hours advance notice. Arrangements can be made for sign language interpreters;please allow 72 hours advance notice. TDD Number 535-6021. Assistive listening devices are available on Channel I. Large type and#2 Braille agendas are available upon 72 hours advance notice. *Final action may be taken and/or adopted concerning any item on this agenda. After 5:00 p.m.,please enter the City&County Building through the east entrance. Accessible route is located on the east side of the building. In accordance with State Statute, City Ordinance and Council Policy,one or more Council Members may be connected via speakerphone. 3 ROSS C. "ROCKY" ANDERSON REDEVELOPMENT AGENCY DAVID J. OKA CHIEF ADMINISTRATIVE OFFICER OF SALT LAKE CITY EXECUTIVE DIRECTOR December 12, 2002 Mr. Van Turner, Chairperson Depot District Taxing Agency Committee City and County Building, Room 304 451 South State Street Salt Lake City, Utah 84111 RE: Annual Report for Depot District Project Area Dear Mr. Turner: As part of the approval of the Depot District Redevelopment Project Area, the Taxing Agency Committee requested that the Redevelopment Agency of Salt Lake City prepare an annual report. This report is to cover the Agency's activities in the Depot District from November 1, 2001 to October 31, 2002. The Depot District Redevelopment Project Area covers the area from North Temple to 400 South Street and 400 West Street to the I-15 Interstate. Historically, the area has been used as part of the City's industrial and railroad corridor. With the reconstruction of I-15 off-ramps and the consolidation of rail lines along 700 West Street, the improved accessibility of the area has made investment more desirable. The Agency's tax increment for the Depot District for the fiscal year running from July 1, 2001 to June, 30, 2002 was $388,019 which was received in March 2001. For the 2001/2002 fiscal year, the Agency has requested$2,688,626. Attached are three spreadsheets which show how the RDA has budgeted funds from the Depot District Tax Increment, Project Area, Program Income, Central Business District, and City-Wide Housing Funds to promote development with the project area. Following is a brief description of the projects which have been funded. 1) The Road Home. The Agency has provided two allocations to assist in renovation of the homeless shelter located at 201 South Rio Grande Street. In 1999/2000, The Road Homeless received a$10,000 grant to prepare a plan to relocate the entrance to the men's shelter to the 500 West side of the building. The Road Home applied for and received an additional $263,000 allocation from the Agency's Program Income Fund to assist in construction of the alternative entrance. The project is under construction at this time and should be completed by the middle of January 2003. 2) "Quiet Zone" Construction. Over two fiscal years, the Agency allocated a total of $1,100,000 to pay for the construction of street crossing improvements. These 451 SOUTH STATE, ROOM 418, SALT LAKE CITY, UTAH 841 1 1 TELEPHONE: 801-535-7240 FAX: B01-535.7245 Mr. Van Turner Page 2 December 12,2002 improvements if constructed as required by the Federal Railroad Administration would make it possible for Union Pacific to stop blowing horns at the 500 North, 400 North, 300 North, South Temple/600 West, 100 South and 200 South intersections. It is anticipated that the final rule will be finalized in March 2003. Construction drawings have been prepared by the Salt Lake City Engineering Division and reviewed by the Utah Department of Transportation and Union Pacific Railroad. Construction of the improvements will begin as soon as the rules are finalized by the Federal Railroad Administration. 3) Bridge Projects. Artspace completed the construction of 62 tax-credit housing units plus the Multi-Cultural Forum and approximately 10,000 square feet of ground floor retail space in September 2001. The Agency contributed$1,159,900 to the project. 4) City Front Housing Project. Neighborhood Housing Services is constructing a mixed-use project on the old Rancho Lanes site located on North Temple and 600 West Street. They are building approximately 155 one-and two-bedroom housing units with associated parking and a small amount of retail on the first floor of the building. In order to assist in the project, the Agency transferred the $750,000 loan provided to Prowswood to assist in the land acquisition and provided an additional $465,000 to assist in the construction of structured parking for the project. 5) Gateway Project. The Gateway Associates development opened on November 1, 2001. The first phase includes approximately 330 one-and two-bedroom tax-credit housing units; 650,000 square feet of retail space; and 500,000 square feet of office space. The Agency has executed an Owner Participation and Reimbursement Agreement which would allocate 50%of the tax increment generated by the project over the next 20 years to assist in the development with a cap of$16.5 million plus interest on reimbursements to be made. The Agency assisted with the acquisition of two small, but critical parcels of land. 6) Loans. A. The Agency provided a$775,000 short-term loan to assist in the development of the Fuller Paint Building located on the northwest corner of 400 West and 400 South from the Revolving Loan Fund. The loan has been repaid. B. The Agency provided a$350,000 loan to Cytozyme, 134 South 700 West, who invested approximately $700,000 in anew research and development, manufacturing, and warehouse building along the western edge of their property. Mr. Van Turner Page 3 December 12,2002 C. Planning and design work for the Intermodal Hub site located at the southwest corner of the intersection of 600 West and 200 South is currently underway. The Agency loaned$2,250,000 to help pay for the relocation of AMTRAK to the site. The loan was repaid in June 2001. In addition$77,000 was allocated to evaluate the feasibility of rehabilitating one or more of the historic warehouses on the site from the Program Income Fund. The final report on the warehouse condition and feasibility was received in February 2001. Salt Lake City is in the process of selecting an architect to develop the design and construction drawings for the hub project. 7) 500 West Park Block Project. The 500 West Park Blocks involves the construction of a major linear open space in the Depot District. The plans call for the construction of new streets, curbs, gutters and sidewalks, and putting electrical transmission and distribution lines underground in order to make the construction of a 100-foot wide public park area between the north and south bound lanes from 50 South to 200 South Streets possible. The cost of the first phase of the development was approximately $9,000,000 and is being paid with a combination of federal funds from HUD and EDA, Special Improvement District bonds currently being paid back by the adjacent property owners, City General Fund monies, Class C Road funds, and an Agency contribution. The project was completed in November 2001. The second phase of the 500 West Park Blocks from 200 to 400 South is nearing completion. The $2,500,000 cost was paid for with a combination of MBA Bond, Class "C" Road Funds, and RDA monies. The completion of this important public infrastructure project has provided green space for The Road Home,Northgate and Bridge Project housing projects. Agency financial assistance included the following: A. The Agency provided$300,000 for the burial of Union Pacific signalization lines on 500 West from the Program Income Fund. The project was completed in August 2001. B. The Agency has provided $200,000 for burial of Utah Power and Light transmission and distribution lines along 400 West from 100 to 200 South Streets from the 98A Public Improvement Bond Fund. 8) Living Planet Aquarium. In May 2002 the Agency acquired approximately four acres of property which may be used for construction of an aquarium. The property is located on the northwest corner of the intersection of 500 West and 400 South Streets. The Agency spent $3,787,000 of Program Income and Depot District funds. The Agency has agreed Mr. Van Turner Page 4 December 12,2002 to hold the property for up to three years while the aquarium raises funds. If the aquarium is not successful, the Agency will resell the property for other purchases. 9) Administrative Costs. Over the past three years, the Agency has paid$58,327 for administrative costs from the Depot District Tax Increment Proceeds. These costs primarily include salaries, benefits, office expenses, and legal expenses related to specific Depot District Projects. 10) TRAX Extension. Salt Lake City applied for and was allocated $200,000 to prepare construction drawings for reconstruction of the street, curb, gutter and sidewalk on 200 South Street from 400 West to the Intermodal Hub (approximately 600 West). The drawings will include the provision to construct a light rail extension at some time in the future. In order to encourage development in the interim,the Agency developed several programs which allow owners and developers to receive reimbursement of tax increment collected over time or grants to finance projects. A brief description of these programs is included on the Agency's website (www.slcrda.com). In order to fund the grant and loan programs,the Board of Directors has allocated a portion of the Agency's Program Income, City-Wide Housing and Project Area Housing Funds. The Agency and City have also applied for and received approximately $2,674,000 in federal grants for public improvements planned for the area. EPA Brownfields Showcase Project/Funding. In 1996, Salt Lake City received a$200,000 grant from the U.S. Environmental Protection Agency (EPA)to evaluate environmental conditions in the Gateway District at`Brownfields"properties. Brownfields is the name coined for sites or areas of land that have actual or perceived contamination and an active potential for redevelopment or reuse. The goal of this project was to help property owners better understand conditions on their land and any associated legal liability as well as to streamline the process of cleanup where needed. The city received an additional $300,000 environmental assessment grant when it was designated a federal `Brownfields Showcase Community"in 1998. The EPA funding has been used to look at the history of all properties in the Gateway District for the potential for environmental problems and to sample soil and ground water at 18 properties where access was volunteered by the owner. The results of this assessment indicate that certain properties may need cleanup or a site management plan to address environmental conditions for planned uses, but that contamination is not continuous or highly concentrated across the District in the areas sampled. An additional $100,000 has been received for testing during the 2000/2001 fiscal year. RDA staff is currently working with property owners to arrange for sampling this spring and summer. Mr. Van Turner Page 5 December 12,2002 The City and Agency have begun working on bringing City Creek back to the surface and running it through the Depot District and ultimately to the Jordan River. The Army Corp of Engineers has allocated funds to do a full feasibility and design study for the City Creek project. The EPA has allocated funds to do a Phase II environmental report on the site. The Agency is also working with Union Pacific Railroad to do a Phase II environmental report for the Folsom Avenue rail corridor in anticipation of constructing the City Creek Project. Permission has been granted to do the testing and should be completed by the end of December 2002. Staffs priority for the next year will be to begin looking at property acquisitions which will make way for development within the Depot District, work with Salt Lake City on prioritizing public infrastructure funding for streets, sidewalks, curb and gutter improvements, and continue to market the Depot District Programs to interested developers and property owners. Please feel free to contact our offices at any time if you have questions or would like additional information. Best regards, David J. Oka— Valda E. Tarbet Executivv'Director Deputy Director Enc. cc: Taxing Entities Redevelopment Agency Board of Directors 11-Dec-2002 oTEPOT DISTRICT TAX INCREMENT TACHMENT TO TAXING AGENCY COMMITTEE REPORT DEPOT DISTRICT BUDGET Tax Increment Projection (1998-2022) 166,666,667 Allocation to Agency 0.75 125,000,000 Housing Funds 20% 25,000,000 20% 25,000,000 Redevelopment Activities 65% 81,250,000 75% 93,750,000 Administrative Expenses 15% 18,750,000 5% 6,250,000 1 125,000,000 125,000,000 Actual Budgets % DD Depot District Other RDA % All Budgets Tax Increment Funds Total Budgets Housing Funds 14% 487,602 2,135,000 2,622,602 24% Redevelopment Activities 84% 2,954,618 5,423,650 8,378,268 76% Administrative Expenses 2% 58,327 0 58,327 1% 3,500,547 7,558,650 11,059,197 Fiscal Year 1999/2000 2000/2001 2001/2002 2002/2003 Total Ilikax Increment Received 83,165 331,741 388,019 2,688,626 3,491,551 Interest Income 1,201 2,295 2,500 3,000 84,366 334,036 390,519 2,691,626 Housing Projects Quiet Zone Constructi 64,366 318,736 383,102 Men's Shelter 10,000 10,000 Gateway Associates 94,500 94,500 Redevelopment Activities Property Acquisition 370,519 970,224 1,340,743 TRAX Extension 200,000 200,000 Gateway Associates 980,625 980,625 State Tax Overpayment 2,500 2,500 5,000 City Creek Project 428,250 428,250 Administration 10,000 15,300 17,500 15,527 58,327 84,366 334,036 390,519 2,691,626 3,500,547 Fiscal Year 1999/2000 2000/2001 2001/2002 2002/2003 Total CBD Project Area 1,102,900 1,102,900 Project Area Housing Funds 728,000 728,000 City-Wide Housing Funds 500,000 500,000 Program Income Funds 1,845,750 2,250,000 1,000,000 5,095,750 2,948,650 500,000 2,978,000 1,000,000 7,426,650 Housing Projects Quiet Zone Construction 500,000 500,000 Men's Shelter 263,000 263,000 Bridge Projects 907,000 907,000 City Front Housing Project 465,000 465,000 Redevelopment Activities Property Acquisition 693,750 2,250,000 1,000,000 3,943,750 500 West Park Blocks 568,000 568,000 Children's Museum 200,000 200,000 Bridge Projects 252,900 252,900 Intermodal Hub 327,000 327,000 Administration 0 2,948,650 500,000 2,978,000 1,000,000 7,426,650 Statement of Mayor Ross C. "Rocky" Anderson Regarding Main Street Plaza Proposal December 6, 2002 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. 2 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 guarantee 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 3 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. 4 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. 5 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 6 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 7 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. 8 Proposed Solution Regarding Main Street Plaza Presented by Mayor Rocky Anderson December 6, 2002 Significant Govern mental In Furthered Interests '.` �,��_•-�..:.�_�,�_.. �,. _z';�. s Furt by This Plan: �:-r��`�,��f,: - �,;•�n �•�:� ;,.,, 3iLa naX�fk "f:�,:_'.d�:�:.i"•:: xy~i'...' • Preserving the unique,peaceful setting provided by the Main Street Plaza R `T 1 ` • Encouraging and preserving tourism related to Temple Square and the Main Street Plaza -- = Relief • Protecting the rights of people to exercise their right to the free practice _ Society a Building of religion, including religious weddings and other Temple-related activities in and around the Main Street Plaza • Protecting the right of visitors to be left alone and to enjoy peace and tranquility on the Main Street Plaza,free of harassment and intimidation Major Components of the Solution: Temple Defined „My Step 1:Define City Easement on Plaza ' =:= `=' _ • The original Warranty Deed signed by the City and the Church of Jesus .i _ , Christ of Latter-day Saints did not specify the boundaries of the"access and passage only"easement on the plaza. • _ Joseph Smith By clarifying the easement,the City can preserve an easement across the Memorial east side of the plaza to protect access and passage,while providing that r Building the Church of Jesus Christ shall have free and clear title to the vast •x majority of the Playa. -. Theregulate • Church of Jesus Christ will be free to behavior on • public limitedeasement. everything but theease • `zK _..,_ Lam; .. Step 2:Limit Group Gatherings on Easement .9.4. • To prevent pedestrian access from being impeded and to preserve a LEGEND Ell peaceful environment on the square,group gatherings,demonstrations, % o Ea and protests will be allowed only two designated °i in areas at the north and south ends of the easement(see diagram). • Leafleting and some other peaceful individual expressive activities will be permitted on the entire easement, as required by the Constitution. Step 3: Regulate Noise Levels • Noise levels from demonstrations or individuals will be strictly limited to levels appropriate to the surrounding properties and uses. Step 4:Subject Easement to Time, Place, and MannerRestrictions applied to other city sidewalks • All regulations that apply to city sidewalks—including restrictions on loitering,disturbance of religious services or activities, disturbing the peace,posting bills,and obstructing pedestrian access—will be made applicable to the easement. Benefits of the Plan: 1. Achieves almost all of what the parties bargained for. 2. Protects the public right of access and passage by means of a legally enforceable easement,an essential part of the original agreement. 3. Creates limitations and restrictions in line with the Constitution of the United States,decreasing the likelihood of further court challenges. 4. Accomplishes everything possible to protect the peace and tranquility of the plaza within the bounds of the Constitution and the promises made to the people of Salt Lake City. Proposal by Mayor Rocky Anderson for a Solution Regarding the Main Street Plaza DRAFT—December 6, 2002 Time, Place and Manner Restrictions for Easement SALT LAKE CITY ORDINANCE No. of 2002 (Enacting Time, Place, and Manner Regulations of Free Expression on the Pedestrian Access and Passage Easement Adjacent to the Main Street Plaza) AN ORDINANCE ENACTING CHAPTER 14.50 OF THE SALT LAKE CITY CODE,RELATING TO TIME, PLACE,AND MANNER REGULATIONS OF FREE EXPRESSION ACTIVITIES ON PEDESTRIAN ACCESS AND PASSAGE EASEMENT ADJACENT TO THE MAIN STREET PLAZA. WHEREAS, in a Special Warranty Deed dated April 27, 1999, Salt Lake City reserved an easement for pedestrian access and passage across the Main Street Plaza between South Temple and North Temple; and WHEREAS, the United States Court of Appeals for the 10th Circuit ruled, in First Unitarian Church of Salt Lake City v. Salt Lake City, 308 F.3d 1114(10th Cir. 2002), that such easement constitutes a traditional public forum for free speech activities; and WHEREAS, the Special Warranty Deed did not designate the geographical boundaries of the Easement; and WHEREAS, in order to clearly define the geographical boundaries of the Easement reserved by the City, the City has executed and delivered to the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints a quitclaim deed conveying any and all of the City's right, title, and interest in property comprising the Main Street Plaza, except for a pedestrian access and passage easement as described in the quitclaim deed; and WHEREAS, the City deems it necessary and desirable to subject free speech activities on the easement to reasonable content-neutral time, place, and manner regulations; and WHEREAS, the City deems it necessary and desirable to subject the use of the easement to certain other regulations that apply to public sidewalks and other public places; and WHEREAS, the Main Street Plaza is a unique setting in Salt Lake City, adjacent to Temple Square and certain religious buildings, and the City has a significant governmental interest in preserving that unique setting by maintaining good order, tranquility, and unimpeded views on the Main Street Plaza; WHEREAS, the City has a significant governmental interest in encouraging and preserving tourism in the City, including tourism related to Temple Square and the Main Street Plaza, and the City finds that certain speech behavior will hurt tourism near the Main Street Plaza; and WHEREAS, the City finds that many people exercise their right to the free exercise of religion, including religious weddings and other Temple-related activities,in and around the Main Street Plaza, and the City has a significant governmental interest in protecting the right of people to practice their religion without undue interference; and WHEREAS, the City deems it necessary and desirable that visitors to the Main Street Plaza have the right to be left alone and to enjoy peace and tranquility on the Main Street Plaza and to be free from harassment and intimidation. NOW,THEREFORE,be it ordained by the City Council of Salt Lake City, Utah: SECTION 1. That Chapter 14.50 of the SALT LAKE CITY CODE shall be, and the same hereby is, enacted to read as follows: 2 ARTICLE I. GENERAL PROVISIONS 14.50.010 Definitions. A. "A-weighted sound pressure level" means the sound pressure level as measured with a sound level meter using the A-weighting network. The standard notation is "dB(A)" or "dBA." B. "Decibel" means a logarithmic and dimensionless unit of measure often used in describing the amplitude of sound. Decibel is denoted as "dB." C. "Demonstration" means any formation,procession or assembly of two or more persons upon the Plaza with the purpose,or result, of publicly demonstrating or communicating any message. D. "Device" means any mechanism which is intended to produce,or which actually produces,noise when operated or handled. E. "Easement"means the pedestrian access and passage easement owned by the City across the Plaza. F. Emergency vehicle" means a motor vehicle used in response to a public calamity or to protect persons or property from an imminent exposure to danger. G. "Emergency work" means work made necessary to restore property to a safe condition following a public calamity,or work required to protect persons or property from an imminent exposure to danger. H. "Noise" means any sound that is unwanted or that causes or tends to cause an adverse psychological or physiological effect on human beings. I. "Noise disturbance" means any sound that annoys or disturbs reasonable persons with normal sensitivities,or that injures or endangers the comfort,repose, health, hearing, peace and safety of other persons. J. "Percentile sound pressure level" means tenth percentile noise level; the A-weighted sound pressure level that is exceeded ten percent of the time in any measurement period(such as the level that is exceeded for one minute in a ten-minute period) and is denoted "L10." K. "Plainly audible noise" means any noise for which the information content of that noise is unambiguously transferred to the listener, such as but not limited to understanding of spoken speech, comprehension of whether a voice is raised or normal, or comprehension of musical rhythms. L. "Plaza"means the area located between South Temple and North Temple streets and adjacent to Main Street, except for the public sidewalks. 3 M. "Property boundary" means an imaginary line exterior to any enclosed structure, at the ground surface, and its vertical extension, that separates the real property owned by one person from that owned by another person. N. "Sound device or apparatus" means any radio device or apparatus, or any device or apparatus for the amplification of any sounds from any radio, phonograph or other sound-making or sound-producing device, and/or any device or apparatus for the reproduction or amplification of the human voice or other sounds. O. "Sound level meter" means an instrument, including a microphone, amplifier, RMS detector and intergrator, time averager, output meter and/or visual display and weighing networks, that is sensitive to pressure fluctuations. The instrument reads sound pressure level when properly calibrated and is of Type 2 or better as specified in American National Standards Institute Publication S1. 4-1971 or its successor publication. P. "Sound pressure"means the instantaneous difference between the actual pressure and the average or barometric pressure at a given point in space due to sound. Q. "Sound pressure level"means twenty times the logarithm to the base ten of the ratio of the RMS sound pressure to the reference pressure, which shall be twenty micropascals,denoted LP or SPL. R. "Use or operate any sound device or apparatus" means to use or operate, or cause to be used or operated, any sound device or apparatus in front or outside of any building,place or premises,or in or through any window,doorway or opening of such building,place or premises, abutting on or adjacent to the Easement where the sounds therefrom may be heard on the Easement. 14.50.020 Signs, Placards and Banners. No signs,placards, or banners shall be permitted on the Easement, except those made of cardboard,posterboard,or cloth,having dimensions no greater than three feet in width, three feet in length, and one-quarter inch in thickness. 14.50.030 Unreasonable Noises. Persons shall not make unreasonable noises on the Easement outside of the gathering areas described in Section 14.50.050 that can be heard in a private place. ARTICLE II. GATHERING AREAS 14.50.040 Designated Gathering Areas. A. No Demonstrations Outside of Designated Gathering Areas _ It shall be unlawful to participate in a demonstration on the Easement outside of the designated gathering areas specified in Subsection 14.50.040(B). 4 B. Location of Areas 1. A five-foot by 24-foot gathering area will be located on the southeast corner of the Main Street Plaza, with its southern boundary being [five feet] north of the northern edge of the City sidewalk on the north side of South Temple Street, and its eastern boundary being [two feet] west of the west wall of the Joseph Smith Building. 2. A five-foot by 24-foot gathering area will be located at on the northeast corner of the Main Street Plaza, with its northern boundary being [five feet] south of the southern edge of the City sidewalk on the south side of North Temple Street, and its eastern boundary being [two feet] west of immediately west of the eastern edge of the Easement. C. Permits to Use the Areas 1. Subject to Section D below regarding certain short-term free expression activities,persons desiring to demonstrate in a gathering area must apply for and obtain a permit from the City's special events coordinator. An applicant must request a particular block of time for the demonstration. The City shall provide a form of application and permit. 2. Subject to the following limitations,blocks of time will be allocated to groups on a first-in-time basis,based on when the City receives their fully executed applications. 3. Each group using a gathering area must designate a group coordinator in the application for a permit to use the gathering area. The group coordinator must keep a copy of the permit on site at all times during the demonstration, and the permit is subject to inspection by any police officer or authorized official of the City. The group coordinator shall be responsible for assuring that the demonstrators in the group comply with these regulations and other applicable laws, and follow all directions of law enforcement personnel. 4. The group coordinator must identify himself/herself to an on-site police officer prior to the start of the demonstration, if such an officer so requests. 5. Demonstrators must abide by all applicable federal, state and local laws. 6. Demonstrators must respect the constitutional rights of individuals who choose to ignore their demonstration or offer of literature. 7. Demonstrators may not engage in activities that obstruct or impede pedestrians or vehicles, or harass bystanders with physical contact or intimidation. 8. Demonstrators may not tie,nail, or otherwise physically attach any banners, signs, pictures, instructional materials, symbols, or other personal property to any City property within the Easement area. 5 9. The demonstrators are responsible for clearing the site at the end of the demonstration, including removing all signs, leaflets, candles, or other materials. 10. Noncompliance with these guidelines will result in revocation of the permit and the participants may be required to leave the gathering area. D. Applicability of Chapter 3.50, Salt Lake City Code 1. Except as otherwise provided in this chapter, the provisions of Chapter 3.50, Salt Lake City Code, including the appeal procedures, shall apply to free expression activities occurring on the Plaza. 2. If it is not reasonably possible to obtain a permit for a short-notice free expression activity, a permit is not required. However, such activities may only occur in a designated demonstration area that is not in use for another demonstration and may not unreasonably interfere with the movement of police, fire, ambulance, or other emergency vehicles or the provision of public health, safety, and welfare services so as to create an immediate clear and present danger to public health, safety, or welfare. Furthermore, such activities may not obstruct or impede vehicular or pedestrian travel or violate City ordinances related to parking,vehicular traffic,or pedestrian crossings. E. Grounds for Denial of Permit 1. In addition to the grounds listed in § 3.50.110(A), (B) and(C),Salt Lake City Code, and subject to subsection(2)below, a permit shall be denied if the special events coordinator makes any of the following findings: a. A prior application has been received for the same time and place, and both demonstrations cannot be accommodated. In such case, the City shall offer to the applicant a reasonable alternative location or time for the proposed demonstration,if such location and time is available. b. The proposed demonstration presents an imminent clear and present danger to the public safety, good order, or health. c. The proposed demonstration is of such a nature or duration that it cannot reasonably be accommodated in the particular area applied for. In such a case, the special event's coordinator shall offer an alternate site for the demonstration. d. The application proposes activities contrary to the provisions of this chapter or other applicable laws or regulations. 2. If the special events coordinator makes any of the findings listed in subsection(1),he or she may conditionally grant the application subject to modifications _ or conditions designed to eliminate the problems indicated by those findings. Any applicant who receives such a conditional approval and proceeds with the demonstration 6 shall be deemed to have agreed to the modifications or conditions contained in such approval 3. Unless one of the grounds listed in Section 3.50.110(A), (B) or(C), Salt Lake City Code, or listed in paragraph(1) above, exists, the City shall grant the requested permit. A denial of a permit application may be appealed in the manner provided in Chapter 3.50, Salt Lake City Code. Following such appeal, an applicant dissatisfied with the result of the appeal may seek judicial remedies. ARTICLE III. SOUND DEVICES AND APPARATUS 14.50.050 Findings and Use Restrictions. It is hereby declared that to use or operate any sound device or apparatus is detrimental to the health,welfare and safety of the inhabitants of the City, in that such use or operation diverts the attention of pedestrians in the Easement thus increasing pedestrian traffic hazards and causing injury to life and limb. Such use or operation disturbs the public peace and comfort, and the peaceful enjoyment by the people of their right to use the Easement, and disturbs the peace, quiet and comfort of the neighboring inhabitants. 14.50.060 Permit-When Required- Conditions. It is unlawful for any person to use or operate any sound device or apparatus unless such person shall have first obtained a permit issued by the City license office in the manner prescribed in this Article, and unless such person shall comply with the provisions of this Article and the terms and conditions prescribed in such permit. 14.50.070 Exceptions. The provisions of this Article shall not apply to the use or operation of any sound device or apparatus by any church on or within its own premises in connection with the religious rites, celebrations, ceremonies,or other religious activities of such church. 14.50.080 Permit-Application. Each applicant for a permit to use or operate a sound device or apparatus shall file a written application with the City license office at least ten(10)days prior to the date on which such sound device or apparatus is to be used or operated. Such application shall describe the specific location in which such sound device or apparatus is proposed to be used or operated, the day and hour or hours during which it is proposed to be used or operated, the volume of sound which is proposed to be used, measured by decibels or by any other efficient method of measuring sound, and such other pertinent information as said City license office may deem necessary to enable it to carry out the provisions of this Article. 7 a 14.50.090 Permit- Issuance Restrictions. / A. The City license office shall not issue any permit to use or operate a sound device or apparatus: 1. In any location within five hundred feet(500') of a school, courthouse or church during the hours of the school, court or worship, respectively, or within five hundred feet(500')of any hospital, nursing home or similar institution; 2. In any location where the City Chief of Police shall, upon investigation, determine and advise the license office that the conditions of pedestrian traffic are such that the use of such a device or apparatus will constitute a threat to the safety of pedestrians; 3. In any location where the City Chief of Police shall, upon investigation, determine and advise the license office that conditions of overcrowding or other physical conditions are such that the use of a sound device or apparatus will deprive the public of their right to safe,comfortable, convenient and peaceful enjoyment of the Easement; 4. In or on any vehicle or other device while it is in transit; or 5. Between the hours of eight o'clock(8:00)P.M. and nine o'clock(9:00) A.M., unless a special permit has been issued by the Mayor for the use of such sound device or apparatus pursuant to the provisions of Section 9.28.070 of this Code, or its successor. B. No licensee shall cause or permit to be emanated or emitted from the sound device or apparatus any obscene language or sounds, or any fighting words,or any words or sound that would present a clear and present danger of obstructing the orderly movement of traffic, the peaceable passage or presence of persons to, over, or upon the Easement, or cause or contribute to disorderly or unlawful conduct. 14.50.100 Permit- Contents - Location of Activity. A. The City license office shall not deny a permit to any applicant who complies with the provisions of this Section, except for one or more of the reasons specified in subsection 14.50.090A, or its successor, or to prevent overlapping in the granting of permits. B. Each permit issued pursuant to this Article shall prescribe the specific location in which such sound device or apparatus may be used or operated thereunder, the exact period of time for which such apparatus or device may be operated in said location, the maximum volume of sound that may be employed in such use or operation,and such other terms and conditions as may be necessary, for the purpose of securing the health, safety,comfort, convenience, and peaceful enjoyment by the people of their right to use the Easement,protecting the health,welfare and safety and inhabitants of the city, and securing the peace, quiet and comfort of the neighboring inhabitants. 8 14.50.110 Violation - Penalty. Any person who shall violate any provision of this Article, upon conviction thereof, shall be punished as set forth in Section 1.12.050 of this code. ARTICLE IV. NOISE CONTROL 14.50.120 Declaration of Policy. It is declared to be the policy of Salt Lake City to prohibit the making, creation or maintenance of excessive, unnecessary, unnatural or unusually loud noises on the Easement that are prolonged,unusual or unnatural in their time,place and use, and are a detriment to the public health, comfort,convenience, safety,welfare,prosperity, and peace and quiet of the residents of the city. 14.50.130 Sound Level-Measurement Method. Sound level measurements shall be made with a sound level meter using the "A" weighting scale, in accordance with standards promulgated by the American National Standards Institute or other reasonable standards adopted and tested by the city-county health department. 14.50.140 Noises Prohibited. A. General Prohibitions. In addition to the specific prohibitions outlined in subsection B of this section and Section 14.50.160 of this Article, or its successor, it is unlawful for any person to make, continue, or cause to be made or continued any noise disturbance on the Easement. B. Specific Prohibitions. The following acts are declared to be in violation of this Article: 1. Radios, Television Sets, Musical Instruments and Similar Devices. a. Using, operating or permitting the use or operation on the Easement of any radio receiving set, musical instrument, television,phonograph, drum or other machine or device for the production or reproduction of sound, except as provided for in subsection B2 of this section, in such a manner as to violate Section 14.50.160, or its successor, or cause a noise disturbance; b. The operating of any such device between the hours of nine p.m. and seven a.m. the following day or,between the hours of nine p.m. and nine a.m. when the following day is a Sunday or legal holiday, in such a manner as to be plainly audible at the property boundary of the source; 2. Public Loudspeakers. Using or operating a loudspeaker or sound-amplifying equipment in a fixed or movable position or mounted upon any sound vehicle in or upon 9 the Easement for the purpose of commercial advertising,giving instructions,directions, talks,addresses,lectures,or transmitting music to any persons or assemblages of persons in such a manner as to violate Section 14.50.160,or its successor,or cause a noise disturbance unless a permit as provided by Section 14.50.170,or its successor,is first obtained. 14.50.150 Exempt Uses and Activities. The following uses and activities shall be exempt from noise level regulations in this Article: A. Noise of safety signals,warning devices and emergency pressure-relief valves; B. Noise resulting from emergency work,as determined by the director of the city-county board of health or such director's designee; C. Any noise resulting from activities of temporary duration permitted by law for which a license or permit has been approved by the director of the city-county health department in accordance with Section 14.50.170,or its successor. 14.50.160 Permitted Noise Levels. Maximum Permissible Sound Levels.It is a violation of this Article for any person to operate or permit to be operated on the Easement any stationary source of sound in such a manner as to create a ninetieth percentile sound pressure level(L90)of any measurement period(which shall not be less than ten minutes unless otherwise provided in this chapter)which exceeds the limits set forth below,when measured at the boundary or at any point within the Easement: Weekdays and Saturdays 9 p.m.-7 a.m.7 a.m.-9 p.m. 50 dB(A) 55 dB(A) Sundays and Holidays 9 p.m.-9 a.m.9 a.m.-9 p.m. 50 dB(A) 55 dB(A) 14.50.170 Permit for Relief from Restrictions-Conditions. A. Applications for a permit for relief from the noise restrictions in this Article on the basis of undue hardship may be made to the city-county health department. Any permit granted by the director of the city-county health department or his or her authorized representative shall contain all conditions upon which the permit has been granted,including but not limited to the effective dates,any time of day,location,sound pressure level,or equipment limitation. B. The relief requested may be granted upon good and sufficient showing: 10 1. That additional time is necessary for the applicant to alter or modify such applicant's activity or operation to comply with this Article; or 2. That the activity, operation or noise source will be of temporary duration and cannot be done in a manner that would comply with this Article; and 3. That no reasonable alternative is available to the applicant. C. The director of health may prescribe any reasonable conditions or requirements deemed necessary to minimize adverse effects upon a community or the surrounding neighborhood. 14.50.180 Enforcement Responsibility. The city-county health department shall have primary,but not exclusive, enforcement responsibility for this section as it relates to stationary sources,and joint enforcement responsibility with appropriate law enforcement agencies as it relates to vehicular sources. 14.50.190 Violation-Penalty. Any person who shall violate any provision of this Article, upon conviction thereof, shall be guilty of a Class B misdemeanor. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. 14.50.200 Violation-Additional Remedies. Violations of this Article, or its successor, are deemed and declared to be a nuisance, and as such may be subject to summary abatement by means of a restraining order or injunction issued by a court of competent jurisdiction. ARTICLE V—OTHER NOISE PROHIBITIONS 14.50.210 Radios,Television Sets,Tape Players, Compact Disk Players, Musical Instruments and Similar Devices. A. It is unlawful for any person to use, operate or permit the use or operation of any radio receiving set,musical instrument,television,phonograph, drum, or other machine or device for the production or reproduction of sound: 1. On the Easement at any time so as to be plainly audible fifty feet(50')(15.25 meters) from the device. Permits to exceed the limits of this Section may be issued for special events on the Easement by the Chief of Police or the Director of the Salt Lake City-County Health Department. 11 14.50.220 Measurement of Sound Level. Sound level measurement shall be made with a sound level meter using the A- weighting scale in accordance with those standards promulgated by the American National Standards Institute, or any other procedure adopted and tested by the City departments charged with enforcing this Article. 14.50.230 Enforcement and Evaluation of Testing. Any violation of this Article shall constitute disturbing the peace. The Police Department shall enforce the provisions of this Article. ARTICLE VI. OTHER REGULATIONS 14.50.240 Pedestrians Obstructing the Easement Prohibited. Persons shall not obstruct or prevent the free use of the Easement by other persons. 14.50.250 Posting Bills Prohibited. It is unlawful for any person, acting for himself or herself, through an agent, or for such agent, to print, paint, write, mark,paste, or in any way post up any notice, card, advertisement or other device upon any tree,post,pole, device or standard, upon the Easement at any time, except as may be provided by law. SECTION 2. That Chapter 11.12.020 of the SALT LAKE CITY CODE shall be, and the same hereby is, amended to read as follows: 11.12.020 Disturbing the Peace. A. A person is guilty of disturbing the peace if such person: 1. Refuses to comply with the lawful order of the police to move from a public place or public easement; 2. Knowingly creates a hazardous condition; 3. Intending to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof: a. Engages in fighting, violent, tumultuous or threatening behavior, 12 b. Uses words that are intended to cause acts of violence by the person to whom the words are addressed, c. Makes unreasonable noises in a private place that can be heard in a public place, d. Maliciously or wilfully disturbs the peace or quiet of another or of any public place by making an unreasonably loud noise or by discharging firearms, or e. Obstructs vehicular or pedestrian traffic, except as allowed pursuant to the provisions of chapter 3.50 of this code. B. "Public place," for the purpose of this section, means any place to which the public or a substantial group of the public has access, and includes, but is not limited to, streets,highways,public easements, and the common areas of schools,hospitals, apartment houses, office buildings,transport facilities, places of worship, and shops. C. Disturbing the peace is a class C misdemeanor if the offense continues after a request by a person to desist. Otherwise it is an infraction. SECTION 3. That Section 11.12.030 of the SALT LAKE CITY CODE shall be, and the same hereby is, amended to read as follows: 11.12.030 Disrupting a Meeting or Procession. A. A person is guilty of disrupting a meeting or procession if, intending to prevent or disrupt a lawful meeting, procession or gathering, he/she obstructs or interferes with the meeting,procession or gathering by physical action, verbal utterance, or any other means under circumstances that could cause a breach of the peace. B. "Procession" includes,but is not limited to, a gathering of persons in association with a wedding, funeral,parade, or other non-recurring event subject to Chapter 3.50, Salt Lake City Code. BC. Disrupting a meeting or procession is a class B misdemeanor. SECTION 4. That Section 11.12.045 of the SALT LAKE CITY CODE shall be, and the same hereby is, enacted to read as follows: 11.12.045 Unlawful Acts in or About Places of Worship: A. It is unlawful for any person to annoy, disturb, or otherwise prevent or attempt to prevent the orderly conduct of religious services or activities at any place of worship. 13 B. It is unlawful for any person to annoy, disturb, assault, or molest any person attending a religious service or activity at any place of worship. SECTION 5. EFFECTIVE DATE. That this ordinance shall take effect on the date of its first publication. Passed by the City Council of Salt Lake City, Utah, this day of 2002. CHAIRPERSON ATTEST: CHIEF DEPUTY CITY RECORDER Transmitted to the Mayor on Mayor's Action: ❑Approved ❑Vetoed MAYOR ATTEST: CHIEF DEPUTY CITY RECORDER (SEAL) Bill No. of 2002 Published: G:\Ordinance 02\Main Street Plaza time,place,manner regs2-clean.doc 14 ACLU American Civil Liberties Union of Utah Foundation, Inc. 355 North 300 West#1 • Salt Lake City, UT 84103 • (801) 521-9862 phone (801) 532-2850 fax ♦ aclu@xmission.com • www.aciuutah.org Salt Lake City Council City& County Building Room 304 451 South State Street Salt Lake City, UT 84111 December 17, 2002 RE: Main Street Plaza Dear Council Members, The ACLU of Utah would like to take this opportunity to comment on Mayor Anderson's proposed time, place and manner restrictions for the public easement on the Main Street Plaza. We do so in writing so that others may use the time allotted for public comments at the hearing. The issue of what the City should do in the wake of the Tenth Circuit's ruling has been clouded by fervent emotions on all sides of the debate. Although public sentiment is robust, sound public policy must be based on objective facts. Those facts show that Salt Lake City's foremost concern dating back to 1999 was to preserve twenty-four hour public access and passage across the Main Street Plaza. A City report prepared before the first Planning Commission hearing on February 4, 1999 stated: "A perpetual easement for 24-hour public access must be retained by the City from North Temple to South Temple within the existing street right-of-way. The easement should be designed and improved so as so maintain, encourage and invite public use." That requirement came from the Transportation Advisory Board, of which Council Member Jergensen was a member at the time. The requirement that the City retain a public easement became the very first condition to the Planning Commission's March 4, 1999 recommendation that the City Council approve the sale of Main Street. It then became the very first condition of the Ordinance that the City Council approved on April 13, 1999. It is therefore not surprising that, when questioned by Judge Ted Stewart about the easement, Mr. Cutler stated unequivocally that the easement was a"critical element" of the transaction. He said: "This transaction would not have occurred from the city's point of view but for"the easement. Mr. Cutler repeated that position to the Tenth Circuit Court of Appeals. Relying on such statements, the Tenth Circuit observed that "the City has contended throughout this litigation that the City would not have agreed to the sale 'but for' the easement." So this, too, should be clear: if the City Council decides to convey the easement to the church, it will do so not because of, but in spite of, the important public policy reasons that required that the City reserve the easement in the first place. 1 y ' United States courts have made clear that the only way to regulate First Amendment activities on property where public access and passage is guaranteed, such as the public easement in this case, is to enact reasonable, content-neutral time,place and manner regulations. Time, place and manner regulations are important tools for cities facing the problem of managing competing uses of traditional public fora. The ACLU of Utah generally supports Mayor Anderson's proposed time, place and manner restrictions. However, we would like to raise the following concerns about the proposal. First, the proposal requires demonstrations, defined as of two or more persons communicating a message, to be located in one of two designated gathering areas. Designated demonstration areas have historically been used only when demonstrations are very large in size and therefore limiting the space for demonstrations is required to balance competing uses of the property. Provided that small groups are not interfering with pedestrian traffic flow, the ACLU believes such groups should be allowed to demonstrate anywhere on the easement. Limiting demonstration outside the designated gathering areas to a procession of one appears to be arbitrary and unconstitutionally restrictive,because it is unreasonable to assume that groups of two,three, four or five people will interrupt traffic flow. Therefore, we recommend defining demonstration to include large groups of protesters, the number of which will considerably interrupt traffic flow on the easement. Revising the definition of demonstration will also table one of our other major concerns with Mayor Anderson's proposal. The ACLU believes that no distinction should be drawn between peaceful leafleting and other peaceful First Amendment activities, such as canvassing for signatures, picketing, carrying banners, and the like. Those persons should have the right to enter the easement without being confined to a designated area. If the demonstration definition is changed to a larger number, most of these activities fall free of the permit/designated demonstration area requirements. Second, there are two very suspect grounds for denial of a permit in part E of the Mayor's proposal. Section'E part b1 and d2 are vague and overly broad reasons to deny a permit. The United States Supreme Court in Shuttlesworth v. City of Birmingham, found almost identical reasons for denying a First Amendment permit to be unconstitutional because the restrictions vested too much discretion in government officials to choose who could and could not speak. Because of the potential of a somewhat charged atmosphere on the Main Street Plaza, we feel these grounds for denial of a permit are highly suspect and could be used to silence speech that is disfavored by the government (or worse,by the church). Therefore, we ask that these grounds for denial of a permit be removed from the proposal. Finally, much has been said about the potential for the ACLU to challenge the proposed time, place and manner restrictions. Assuming the council amends the proposal to comport with the constitutional requirements above, it is highly unlikely the ACLU will litigate this issue. I state I Part b states"The proposed demonstration presents an imminent clear and present danger to the public safety,good order or health." 2 Part d states"The application proposes activities contrary to the provisions of this chapter or other laws or regulations." 2 this with reservation, and if problems arise when the system is implemented, we will take another hard look at the issue. However, as during the Olympics, we are confident that the City will implement the proposal in an equitable manner. We are also very supportive of the utilization of the appeals process outlined in Salt Lake City Code Chapter 3.50 in the Mayor's proposal. That appeals process was very useful during the Olympics and staved off many potential lawsuits at that time. To conclude, it would be contrary to the parties' written agreement to vacate the public easement and deny public access and passage to the plaza. That access and passage was a critical element from the City's public policy perspective. Because all parties' interests can be protected by reasonable, content-neutral, time place and manner regulations, the ACLU respectfully submits that the City Council's own standards require that it not convey the easement, but pursue the alternative of reasonable, content-neutral time,place and manner regulations. Indeed, if the City Council were simply to relinquish the easement in the absence of any legal obligation or other apparent public policy justification for doing so,the City Council would create a basis for further litigation challenging the City's action on constitutional grounds. Please feel free to contact me if you have any questions regarding our analysis of the Mayor's proposal at 521-9862 x 103. Sinc e , Jane e . Eurick Staf Attorney 3 Si'l. L J�l ��; Y�,;©;� � 11101 OFFICE OF THE CITY COUNCIL Deeda Seed Council Member,District Four j� 451 South State Street,Room 304 '`ECE/VED Salt Lake City,Utah 84111 ea)/ • Home: 364-4015 June 11, 1999 Office: 535-7600 j I Roger Cutler City Attorney A T T ORA Salt Lake City Corporation EY OFF 1Cr 451 South State Street LL Salt Lake City, Utah 84111 Dear Mj. utler: I was deeply, deeply disturbed by your comments quoted in the June 11 issue of The Salt • Lake Tribune about the potential loss of the public easement crossing the planned plaza on Main Street. Your statement that the City would abandon the public easement to the LDS Church if a court required revision of the deed's restrictions raises several questions, particularly since the City Attorney's Office serves the dual role of legal counsel to the City Council and the Administration. First, is what you were quoted as saying in the news article the Administration's position on the future of the public easement? Second, what authority does the City Council have to review the Administration's action if the Administration decides to abandon the easement? Third, what authority does the City Council have to reconsider the sale of Main Street if the Administration decides to abandon the easement? In my view your assertion that the City would not return the purchase price of the property because the money already has been spent is speculation on a budget matter that ultimately rests with the City Council. Throughout the rushed and abbreviated process to consider the sale of the section of Main. Street, a public easement was always part of the proposed agreement. I question whether the sale would have been approved without it. Furthermore, it offends me that you would suggest the City's response to a ruling by a court of the United States— if the matter ever goes to trial —would be to ignore the ruling instead of complying with a lawful ruling that you by oath have pledged to uphold. Finally, I fear that if the City ever abandoned the easement, the sale and the plaza would not become symbols of public, ecumenical openness but rather symbols of promoting a narrow, parochial interest. As I said during debate on this issue, I was concerned that the process and appearance of property sale seemed to have crystallized the differences among the City's residents instead of crystallizing what we all hold in common. 451 SOUTH STATE STREET, ROOM 304, SALT LAKE CITY, UTAH 641 1 1 TELEPHONE: 1301.535-7600, FAX: 601-535-765 1 1�1 wee.r.m a.yea I hope that all the parties involved in this matter can meet and iron out their differences before they find themselves in court. It is a reasonable hope. It is reasonable that a solution can be found. In the meantime, please provide me with a written response to my three questions. I look forward to discussing the matter with you personally. S. erely, M. eed City Council Member • District 4 DMS/raw Cc: City Council Members Mayor Corradini H. David Burton. Office of the Presiding Bishopric, Church of Jesus Christ of Latter-day Saints .. l - N ' `Downtown Alliance =__:: t SALT LAKE CITY ibj di tee r- 238 South Main Street •• "_ ' 4 Salt Lake City,Utah 841oi 1 4"'. t:801.359.5118 �t:�� f:801.359.5136 _i '/') "fit www.downtownslc.org ,:;; ' i-'--t \ ,_ December 17, 2002 DEC 1 7 2002 Honorable Ross " Rocky" Anderson Mayor Salt Lake City 451 South State Street Salt Lake City, Utah Mr. David Buhler Salt Lake City Council Chairman 451 South State Street • Salt Lake City, Utah Dear Mayor Anderson and Councilman Buhler; The creation of the Main Street Plaza between North and South Temple is one that the Downtown Alliance was involved in when the plans were brought to the attention of our Board of Trustees in late 1998 and early 1999. The Downtown Alliance Board of Trustees endorsed the original plans by the City and the Church of Jesus Christ Of Latter-Day Saints to close Main Street and construct a pedestrian plaza as an economic development and design enhancement to our downtown. It was our understanding that since the LDS Church was buying the property, it would be given control and management of the space. We also requested of Salt Lake City that the funds derived from the sale of the Plaza be earmarked for further Main Street redevelopment efforts, since the Plaza improvements were considered as the first step in a redevelopment plan for Main Street. The vision for the Main Street Plaza has been shaped and influenced by many planning goals and studies over the past several decades including the Second Century plan, Rudat, and the Downtown Master Plan, all of which encouraged further pedestrian amenities downtown, reinforcement of our major visitor attractions, and enhanced aesthetic and design improvements to make our city more livable. These goals have received widespread and continuous support from the downtown community over the years, and we believe the Main Street Plaza helps accomplish those goals. In order to support what we believe is the intention of the original agreement, to move forward on other pressing city issues, and to honor long-held planning and urban design goals in downtown Salt Lake City, we encourage Salt Lake City to convey the Main Street Plaza easement to the LDS Church. business vision Page 2 As representatives of businesses and property owners in downtown Salt Lake City, we are distressed over the divisiveness that this issue has created, and believe it is harmful to our efforts to attract businesses, conventions, public investment, customers, shoppers, and visitors to our city. We understand the strong feelings and opinions that people have about the matter, and respect those who take a different view. However, we should put the issue in a broader planning, urban design, and community development context. The 10`h Circuit Court seemed to suggest a way for the City to resolve the constitutional issues in this case by reverting the easement to the LDS Church, and we concur with that opinion. Building a sense of community in a polarized city is a delicate balancing act requiring consensus, flexibility, accommodation, negotiation, trust, and balance. We hope that all parties use your skills in those areas to allow the long held downtown planning goals of Salt Lake City to be achieved, and move our City forward to address other challenges. Sincerely, The Downtown Alliance Board of Trust Ws ETHEL C. HALE 436 East Eighth South Street Salt Lake City, Utah 84111 ethelhale@juno.com December 15, 2002 HAND CARRY Respectfully submitted to Salt Lake City Councilmembers and to the Office of Mayor Rocky Anderson. ( Open letter. ) A LAY OPINION ON TWO LEGAL CONTROVERSIES (Based on a newspaper report re "Plaza" cases, 2nd and 10th Circuit Courts) "Attorneys for the Church of Jesus Christ of Latter-day Saints will use the 2nd U.S. Circuit Court of Appeals November decision banning union protesters from Lincoln Center's plaza. . . " (The Salt Lake Tribune, December 14, 2002, p.B1) To evaluate whether the Main Street Plaza (S.L.C. ) owned by the Church of Jesus Christ of Latter-day Saints ( "The Church" ) has a history of being a protest site, it is necessary to ask, have the owners of the Plaza been the subject of protests? The entire Temple Square should be considered as the site of demonstrations and protests, even though the protestors occupied mainly the public sidewalk on each side of the south gate of Temple Square, taking care not to block the entrance. Protests against various policies and doctrines of The Church have been constant for at least 40 years that I know of. To compare, have the owners of the Lincoln Center in New York City been targets of protest? The Tribune report cited above, does not elaborate on the facts of the Lincoln Center in the 2nd Circuit case, but does strongly establish that the salient actions were union-organized workers protesting only their employment conditions elsewhere. There was no grievance related to the owners of Lincoln Center. (Observers could incorrectly surmise that Lincoln Center was the target entity. ) It must be relevant that The Church. does not want to prohibit all demonstrating from the Main Street Plaza: They want to retain their own right to proselytize and leaflet there in the peace and quiet. T it t5 15 et `/hew Gala of -t-c 414,dt. .144 531,1-- 1) , _two/ T' erk._ W. PAUL WHARTON - G -- 436 EAST EIGHTH SOUTH STREET SALT LAKE CITY,UTAH 84111 December 11, 2002 The words spoken to the City Council on December 10, 2002,illustrate why we treasure the written word: recollections vary; nuances shift; circumstances impinge. Lawyers explain it this way: "parol evidence": oral or verbal evidence, that which is given by word of mouth; the ordinary kind of evidence,given by witnesses in court. "parol evidence rule": when parties put their agreement in writing, all previous oral agreements merge in the writing and a contract as written cannot be modified or changed byparol evidence,in the absence of a plea of mistake or fraud in the preparation of the writing. - BLACK'S LAW DICTIONARY, 1968 edition, page 1273 (emphasis added) Bargainers of closely equal power and influence, advised by highly trained and experienced counsellors, can "hammer out" or"nail down" with exactitude their agreements. Well-drafted writings rarely end up in court. So what happened when Salt Lake City and the LDS Church negotiated the sale/purchase of a block of Main Street? It was no "oversight" that no description locates the easement: these parties, or one of them, left much out of the deed "just in case" - in case a party wants to restructure the deal after the fact. Jokes about lawyers shed light only in darkness created by intentional obfuscation. Highlights of the "testimony" (it wasn't really testimony - no one was sworn): Former mayor Corradini wanted only to "make a deal" - she seems to have no understanding how the language of the deed was chosen; she seems not to have cared what it might mean; she was not interested in details. Former councilmember Seed responded quickly,with feeling- clear recollections; no embellishment, no obscuring; no withholding-just direct words. The Church bought a block of Main Street subject to an easement. The City sold that block but retained the easement, a right for all to stroll along the way. That was the bargain. The City has conveyed title of other streets ("vacated" them) without holding an 2 easement- quite a different bargain. In the light of the constitution focussed by the 10th Circuit decision,we see clearly: The Church,while acquiescing to the easement, still hoped it had not compromised its quest for total control over the land. But the court held otherwise: public easement and private restriction are incompatible. The rights of the people should not be compromised to give realization to the Church's hidden agenda. The Church will have nearly all of what it seeks by abiding the decision of the court with time place and manner restrictions. The City and the people will lose what was retained if the easement is relinquished. And no amount of money can compensate for lost rights. Truly, Comments on Plaza Issue: We can all appreciate the legal, religious, and political frustration the plaza easement issue is creating to Mormons and non-Mormons alike in our growing and changing city. However, this dilemma is no more contained by the persistence of Mormons wanting their way no matter what or those persons simply trying to exploit a temporary circus-like atmosphere to convey some personal but protected right of expression or message. Now the Mayor proposes to give and take on a done deal he not long ago found contractually and constitutionally binding on the City. This is not a tit for tat type issue for anyone's political future especially when the West side's unmet needs are used as a pretense to justify such a proposition. As far as I am concerned, the Mormon church leadership its members, this Mormon city council, and Mormon philanthropy represented by recent Unity for Alliance involvement should be doing for this City or west side community without condition of any plaza easement issue irregardles.. What is needed is a cooling off period for all parties on both sides of this heated debate. This Council needs to hear and start representing the dual interests of us all on this matter. We did not get that shake with the previous administration and Council members. Unfortunately, given the recent circumstances involving the Mormon leadership with their rallying cries and legal threats it is non-Mormons like myself who will probably be weighing a person's religious affiliation as a factor in future City council and Mayoral elections. So I won't be holding my breath. John M. Renteria P.0.2257 SLC UT 323-3921 Legal as.-t:•ts of Street Preaching http://www.frontternet.neU—avtruth/legal.ht; SUPREME COURT RULINGS ON STREET PREACHING AND PUBLIC SPEECH IN GENERAL U.S. Iowa, 1969: Undifferentiated fear or apprehension of disturbance is not enough to overcome right to freedom of expression. U.S.C.A. Const. Amend. I (Tinker v. Des Moines Independent Community School Dist. 89 S. Ct. 733, 393/ U.S. 5O3/21 L. Eid. 2d. 731). Also, see identical ruling, Federal District Court, Texas, 1969: (Calbillo v. San Jancinto Junior College, 305 F. Supp. 857, cause remanded 434 F. 2d. 609, appeal after remand 446 F. 2d. 887). Federal Court of Appeals, Florida, 1972: Hostile audience is not basis for restraining otherwise legal first amendment activity. U.S.C.A. Const. Amend. I (Collie v. Chicago Park Dist., 460 F. 2d. 746). Federal Court of Appeals, Florida, 1974: Public expression of ideas may not be prohibited merely because ideas are themselves of offensive to some of their hearers. West's F.S.A. 877.03; U.S.C.A. Const. • Amend. I (Wiegand v. Seaver, 504 F. 2d. 303). Federal Court of Appeals, Indiana, 1974: Freedom of expression (does not mean freedom to express only approved ideas; it means freedom to express any idea. (Perry v. Columbia Broadcasting System, Inc. 499 F. 2d. 797). Federal Court of Appeals, District of Colubia, 1977: The Constitution mandates that access to the streets, sidewalks, parks, and other similar public places for purpose of exercising first amendment rights cannot be denied broadly and absolutely. U.S.C.A. Const. Amend. I (Washington Mobilization Committee v. Cullinane, 566 F. 2d. 107, 184 U. S. App. D. C. 215). United States District Court, E.D. Wisconsin, April 30, 1970: An ordinance that proscribes conduct that tends to "disturb or annoy others" is both vague and overbroad. I he constitutionally protected exercise of free expression frequently causes a disturbance, for the very purpose of the first amendment is to stimulate the creation and communication of new, and therefore, often controversial ideas. The prohibition against conduct that tends to disturb another would literally make it a crime to deliver an unpopular speech that resulted in a "disturbance." Such a restriction is a clearly invalid restriction of constitutionally protected free expression. (Gardner v. Ceci, 312 F. Supp. 5 16/see also Landry v. Daley, 280 F. Supp. 968, N.D. 1 1 1. 1968). Federal District Court, Tennessee, 1978: The fact that persons might express their religious views at some place other than the public streets, sidewalks, and other areas of the city does not have any consequence in determining the validity of permit requirements with respect to the use of such public areas. U.S.C.A. Const. Amend. I (Smith v. City of Manchester, 460 F. Supp. 30). Federal Court of Appeals, Virginia, 1982: Reasonable time, place, and manner restrictions on free expression and their enforcement cannot he based on content of speech thereby restricted. A compelling governmental interest unrelated to speech must he served by restriction on speech. Ordinance containing restrictions on free expression must be drawn with narrow specificity to be no more restrictive than necessary to secure such interest. ul _ ,,,,,,,,,,, ,,.,n n• egal aspects of Street Preaching http://www.frontiernet.nett—avtruth/legal.htr Adequate alternative channels of communication must be left open by restrictions on free expression. Davenport v. City of Alexandria, Virginia, 683 F. 2d. 853, on rehearing 710 F. 2d. 148. Also, see Salahuddin v. Carlson, 523 F. Supp. 314.). Federal Court of Appeals, Virginia, 1973: The first amendment protects from state interference the expression in a public place of the unpopular as well as the popular and the right to assemble peaceably in a public place in the interest and furtherance of the unpopular as well as the popular. U.S.C.A. Const. Amend. I (National Socialist White People's Party v. Ringers, 473 F. 2d. 1010). Federal Court of Appeals, Virginia, 1972: Government may not favor one religion over another. U.S.C.A. Const. Amend. I (U.S. v. Crowthers, 456 F. 2d. 1074). U.S., Arkansas, 1968: The freedom of religion provision of the first amendment forhids alike the preference of a religious doctrine or the prohibition of a theory which is deemed antagonistic to a particular dogma. The state has no legitimate interest in protecting any or all religions from views distasteful to them. U.S.C.A. Const. Amend. I (Epperson v. State of Arkansas, 89 S. Ct. 266). Federal Court of Appeals,Texas, 1972: "Controversy" is never sufficient in and of itself to stifle the views of any citizen. U.S.C.A. Const. Amend. I (Shanlcy v. Northeast Independent School Dist., Bexar County, Texas, 462 F. 2d. 960). U.S, California, 1971: As a general matter, the establishment clause of the first amendment prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherence of any sect or religious organization. U.S.C.A. Const. Amed. I (Negre v. Larsen, 91 S. Ct. 828). Passing out tracts is LEGAL Constitution Declaration of Independance Passing"i racts is Legal http://www.frontiernet.nct/—avtruth/Icgaltracts.htn PASSING TRACTS IS LEGAL Chief Justice Hughes, U.S. Supreme Court, held; (Lovell vs. City of Griffen, Ga., Vol. 58, #12, - 4/15/38) "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. Liberty of circulation is as essential to the freedom as liberty of publishing. Indeed, without circulation, the publication would be of little value." Similarly, U.S. Supreme Court Justice Black, in 1943 decided: "We think the judgment (against two tract distributors) must be reversed because the Dallas ordinance denies the appellant (the wrongfully accused woman) the freedom of press and religion guaranteed to her by the First and Fourteenth Amendments of the federal Constitution...One who is rightfully on a street which the state has left open to the public carries with him there, as elsewhere, the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature, as well as the spoken word." LOUD SPEAKERS PERMITTED The U.S. Supreme Court, 6/7/48, "Saia vs. NY." Legalized use of loud speakers in public places. Cities may, by local ordinances, control excessive noise, and time and place (public places like parks should be left open) but cannot ban loudspeakers, or censor "annoying ideas." This is your constitutional right, and the Supreme Court said that no local police should make persons lose time in court to prove a right which is already theirs. STREET MEETINGS: NO PERMIT NEEDED ACCORDING TO U.S. SUPREME COURT Justice Roberts, U.S. Supreme Court, in Nov. 1939 decided: "The freedom of speech and of the press secured by the First Amendment against abridgment by the U.S. is similarly secured to all persons by the Fourteenth Amendment, Section One, against abridgment by a state. Although a municipality may enact regulations in the interest of the public safety, health, welfare, or convenience. These may not abridge the individual liberties secured by the constitution to those who wish to speak, write, print, or circulate information or opinions. We hold a municipality cannot require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval." Justice Black in 1946, also similarly held these rights also extend to company owned towns and Federal Villages. U.S. Supreme Court Justice Douglas on 7/22/48 held that "subjecting the right to hold street meetings to the discretion of city officials, or the payment of a fee, interfered with the constitutional rights of free speech and free assembly." Amendment 1 (Adopted 1791) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances. Amendment 14 Section 1 (Adopted 1868) All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or 1of2 2/21/2t)02. 12:19 1 lssing 7—:Cts is Legal http://www.frontiernet.net/—avtruth/legaltracts.htn enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any persons of life, liberty, property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. * ��. k k it it 01" * * k't • RED WHITE & BOOM RED - "Come now, and let us reason together, saith the LORD: though your sins be as scarlet, ... though they be ted like crimson, " (Isaiah 1:18). Our sins according to the Bible, the Word of God, are."red as scarlet and crimson." Because of the fall. of Adam and Eve in the garden, man's blood is tainted and is corrupt because of sin. "Wherefore, as 1 IF JESUS CAME TO YOUR HOUSE Lois Blanchard, Gainsville, Fla. If Jesus came to your house to spend a day or two--- If He came unexpectedly, I wonder what you'd do. Oh, 1 know you'd give your nicest room to such an honored Guest, And all the food you'd serve to Him, would be the very best, And you would keep assuring Him you're glad to have Him there-- - That serving Him in your own home Is joy beyond compare. But--- when you saw Him coming, would you meet Him at the door With arms outstretched in welcome to your Heav'nly Visitor? Or would you have to change your clothes before you let Him in, Or hide some magazines and put the Bible where they'd been? Would you turn off the radio and hope He hadn't heard And wish you hadn't uttered that last, loud, hasty word? Would you hide your worldly music and put some hymn books out? Could you let Jesus walk right in, or would you rush about? „,,A) ef, December 13, 2002 �� �° �� C n h a- �, ci Salt Lake City Council ti 451 South State Street ',�• ,)41Aj Salt Lake City, Utah 84111 Dear Council Member; The following issues and/or red flags were raised for me, and I hope for you, as a result of last Tuesday's meeting. 1. Former Mayor Corradini stated that: the LDS Church made clear to us they wouldn't want protests... Who is the "us” in that statement and who is the LDS Church? Is "us" the people identified during legal proceedings(see Interrogatory No. 2) as follows: "Mr. Reid initiated various discussions of this proposal with Mayor Corradini at her executive staff meetings which included, among others, Roger Black, Kay Christensen, Roger Cutler, Tim Harpst and Billl Wright." Is Mr. Reid the LDS Church?Was he representing the City or the Church? 2. Council Member Lambert asked former Mayor Corradini what efforts were made to inform the public of restrictions. She responded with: the understanding was there all along — was talked about through these meetings. If that was an answer to the question, then I guess the answer is'none'. 3. Council Member Jergensen asked Bishop Burton when did the manner and dress restrictions come into the picture. Bishop Burton's response was not an answer to that question. 4. Keith Christensen was asked when did the Condition #15 disappear. He didn't say that he didn't know,which certainly could have been the case, but responded with words to the effect that: we knew all along that#15 wasn't acceptable. Did the entire Council know that#15 wasn't acceptable, did they know it existed or did Mr. Christensen have information that other Council members did not have?Ordinance#28 reads "This partial street closure is also conditioned upon compliance with all of the conditions identified by the Salt Lake City Planning Commission, a modified summary of which is attached hereto as Exhibit "B"." Not until Ordinance#29 was that changed to read "Compliance with the fourteen conditions identified in the Modified Summary of Conditions..." 5. Roger Thompson was asked about the severability clause and how did he understand it. He said words to the effect that: because they didn't see the Special Warranty Deed he wasn't particularly aware of it. The Ordinance#28 which they passed indeed did not contain the various clauses found in the Warranty deed, however the Reservation of Easement document of 4/9/99 does contain the Severability clause. In the later Ordinance#29, it is asserted(in multiple places) that this Reservation of Easement Document had been made known to and was reviewed by the Council 1 Members before their April 13 vote. Does this conflict simply mean that Mr. Thompson's memory is unclear on that point, or that perhaps not all Council Members saw the document, or that there was inadequate time to study it, or??? 6. Council Member Jergensen asked Bishop Burton what was the compelling reason behind this transaction for the Church. He responded that: it was to have a beautiful plaza between two blocks the Church holds sacred Corradini had previously stated that: the underground parking construction drove the time table. In our community meetings and Planning Commission meetings there was much discussion of other options rather than closing all lanes of traffic. These ideas were not rejected out-of-hand by Bill Wright and Mark Mascaro, though ultimately all were rejected in favor of zero car lanes. There was mention of the impact on the underground structure if the surface had to support traffic. The plaza itself was not presented to the public as the overriding goal;rather it was presented as a benefit to the City, a public plaza, which also would unite the two blocks of the Church Campus. Was the plaza most important or was the maximizing of the underground parking more important with entry/exit on North Temple?(Again, no artist renditions or other visuals were shown to the public of the massive parking structure facade and gaping hole that is all one sees driving from the North down Main Street.) 7. Corradini stated that: it was her understanding that: the plaza would function like the Administration square. Bishop Burton in answer to Council Member Christensen's question as to what are the conditions for the Administrative square replied that: there is no screening process. Since then it has been confirmed for me that the restrictions on the Administration block are as in Temple Square. Exactly what does screening process mean?There clearly has been a "screening process" on the Plaza(at least until the Court decision). How do restrictions differ, if at all, and what exactly was Corradini's understanding? Unresolved Issue According to Interrogatory#2 the initial discussions were between Stuart Reid and Bishop Burton and later meetings were between Stuart Reid, Mayor Corradini and her executive staff, including Bill Wright. Also according to Interrogatory#2, following the December announcement of the sale, Bishop Burton, Kerry Nielsen and Mark Mascaro met with various Council members and indicated to them that the property "would function similar to the LDS Church administration block". Mark Mascaro, then, (as well as Bill Wright), was certainly aware of the restrictions desired by the Church. At the public process meetings Mark Mascaro did the bulk of the representation for the Church concerning the proposal. He and Bill Wright answered the questions concerning potential restrictions. Mascaro represented the plaza as being a very public place where everyone would be welcome. At no time during the meetings which I attended did he say that restrictions would be like on Temple Square or the Administration block. He did say they would be of the nature of what would apply to any public place. Bill Wright suggested they would be like a Public Park or other public place. The original version of the Planning Commission's #15 condition provided the exact restrictions that had been represented to the public and the Planning Commission as being needed. 2 We need to know the when,who and why of the strategy that was used to sell the proposal to the public. Bill Wright and Mark Mascaro are the ones who carried it out. Was it spontaneous? Was it ever discussed as how best to present this to the public so as to get support? Who might have discussed it and when? Divisiveness won't heal on this issue of the Main Street Plaza without first having the whole truth. We did not get that last Tuesday night. Former Mayor Corradini also said that: our intention was to benefit the City. If that was the original intent for the City, and a solution is to be based on the original intentions, then clearly giving up the benefit to the City of perpetual public access is not a viable solution. I believe however that a solution just based on these original intentions, muddied as they are, is too narrow a solution. That has locked thinking into the two solutions suggested by the 10th Court, neither of which seems acceptable to more than about fifty percent of our population. We must do better than that. For example, I would not be content with giving up the easement. At the same time I appreciate the point that the LDS Church and LDS groups should not be or feel harassed. Some of the offensive behavior which has been described is in fact illegal, not protected by any "right" and should be prosecuted. Harassment should not go either way. On a personal note, I feel profiled and watched when I walk through the Plaza. Why?Perhaps I do not fit the "right" image. I have no need to scream at anyone. I do have a need to walk through that block, sometimes late at night after work. (I play in the Utah Symphony and I walk in my "grubbies" not my Symphony clothes.) I do not like that I end up feeling like an intruder. There is nothing public about the controls that overlay that space and in my view there is nothing peaceful in that. I feel betrayed by the dichotomy between the perception created for the public and the reality created by the controls. Loss of the easement would be a further betrayal of trust. Understandably the people who have been disturbed or harassed with anti-Mormon words and behavior feel equally upset. In conclusion, and particularly in light of the City Attorney's legal opinion, let us please take the time to find a solution that will work for everyone(or at least for all but the handful who have created all the trouble and will no doubt continue somewhere, somehow, spewing forth their messages of hate). Perhaps it will take more time than the Council is comfortable with. Please be willing to sit in that discomfort until the solution is found. Sincerely, 4?/-7v0..44.: /rce y4 Bonnie Mangold(Trustee Capitol Hill Neighborhood Council) cc: Mayor Anderson 3 12-14-2002-PLAZA Salt Lake City Council 451 South State Street Salt Lake City, Utah 84111 Dear Council Members, A lot of feelings have been expressed and many more will be expressed concerning the Main Street Plaza that may take years for this city to recover from. Hopefully they may end soon. Mayor Anderson has made a proposal that is unacceptable to the Church; however with some modifications it might become acceptable. Why not amend Mayor Anderson's proposal by restricting any demonstrations, picketing,drinking,smoking,using drugs, foul language, immodest dressing, inappropriate behavior, passing out anti-Mormon literature,and all the other things the Church wants to avoid on its property for two or three days before,during, and after each annual and semi-annual General Conference of the Church of Jesus Christ of Latter-day Saints?Perhaps such a proposal would be acceptable to both the City and the Church. I personally would prefer that if demonstration must be allowed that they only be permitted at each Main Street Entrance for eight or ten feet into the Plaza so once people are in the Plaza they don't have to be abused or confronted by demonstrators. If ACLU and the First Unitarian Church will not accept such a proposal,then it is obvious that their agenda is not the constitutional right of Free Speech but the right to harass the Church of Jesus Christ of Latter-day Saints. I personally would prefer that the case be taken to the Supreme Court because I think the Church would win the case and get all they bargained for and perhaps much more. According to this morning's Deseret News the new Salt Lake City attorney, Ed Rutan, and three other city attorneys offered legal opinions stating that the City Council does not have the right to give up the easement. It makes you wonder what their real agenda is? A few days ago I composed an article concerning the Main Street Plaza which may shed light on their agenda. It is attached for your consideration. Sincerely yours, Charles W. Bytheway 865 Lucy Avenue Salt Lake City,Utah 84104 972-1958 ti 12-1 1-02-PLAZA-2 For some 20 years many American read with interest about a court case between Peter Roberts and Sears in which Mr. Roberts eventually received an$8.5 million settlement. This case has weighed on my mind because of similarities between the contract signed by Mr. Roberts and Sears and the contract Salt Lake City entered into when it sold the Main Street Plaza property to the Church of Jesus Christ of Latter-day Saints. I wish to point out these similarities. While Mr. Roberts was working for Sears in 1964,he invented a quick release socket wrench and then sold the rights to the patent to Sears for$10,000. It was argued in the court that Sears deliberately underestimated the tool's sales potential. It is a known fact that the tool made Sears millions of dollars. According to Mayor Rocky Anderson,a contract is a contract and the terms of that contract have to be abided by. Why then did Mr. Roberts receive$8, 490,000 more than the signed contract?It appears that Sears deliberately misrepresented its sales potential. The Main Street Plaza property was sold to the Church for$8.1 million, not because the Church wanted to buy it but because the City wanted to make Salt Lake City the capital of Intermountain tourism according to J. W. Gallivan. The Church agreed to purchase the property at the fair market value if they could control the conduct on the Plaza and if there would not be any demonstrations,picketing or protests on the property. Easements to the property reduced the value of the property to about$3.24 million according to Mayor Deedee Corradini; however,the Church still paid the full market value. It can be argued that those people who were against the sale of the property to the Church deliberately insisted on the easements as a means of ensuring that public access would eventually result in the First Amendment rights of freedom of speech along with the right to protest and demonstrate. It can also be argued that the City knowingly took financial advantage of the Church because of the easements and by their unwillingness to offer to assist in the operation and maintenance of the Plaza. It appears that the City lawyers deliberately misrepresented the impact the easements would have on the agreement between Mayor_Corradini and the Church. It is obvious to me that a great injustice has been done and the City is obligated to fix it, 100 percent. It is very difficult to create the great tourist attraction that was envisioned by the planners if picketers,protesters, foul language, smoking and drinking,drugs, any form of dress, and other forms of conduct are allowed on the Plaza. It should be remembered that the Plaza is private property and the Church did this for our great city. The easements were intended for the purpose of allowing the public to conveniently walk through the Plaza. In Proverbs 3:27 it says, "Withhold not good from them to whom it is due,when it is in the power of thy hand to do it." Charles W. Bytheway 865 Lucy Avenue Salt Lake City, Utah 84104 801-972-1958 December 17, 2002 To Mayor Anderson and the City Council of Salt Lake City: Benjamin Franklin made a significant contribution to the establishment of this free nation. It has been well spoken of him that he put "right" before "rights." That which was in the public's best interest was priority with him. When has The Church of Jesus Christ of Latter-day Saints ever denied presence on or passage through Temple Square to anyone who is behaving themselves? We can safely trust continuation of the same, coupled with reliable maintenance and security, to the enlargement of Temple Square made possible by the purchase of the plaza. It is already in place and available. Whether it be Utah citizens, visitors, guests, tourists or an organization, we all have need for protection against destructive and degrading influences, whether they be threats to life and property or destructive to good health and moral values that should apply to whatever form the threatening expression may take. Can any reasonable person expect that people will come here in ever- increasing numbers to see and experience that which is found in abundance most everywhere else and is becoming alarmingly more difficult to avoid? Salt Lake City has something better to offer! Given adequate awareness of what is involved here, I am fully confident that a vast majority of our present electorate would join in calling upon the Mayor of Salt Lake City and the City Council to provide The Church of Jesus Christ of Latter-day Saints with the right to govern and manage the property of what used to be Main Street between North and South Temple. Doing so, with no strings attached, is the only true and lasting solution and will serve the best interests of this community and everyone involved, residential or otherwise. The Church has earned that trust and proven themselves worthy of it. Respectfully submitted, )1/..e,-1,161t ecetv&gd2 Wendell H. Rawlings 185 North West Temple St. #604 Salt Lake City, Utah 84103 Phone: 363-1714 ROGER F. CUTLER ��\ t=��`a�W1jII CVi 11 �^© D e �I� .Ir►��.,i��. ►�� D E E D E E C D R RA D I N T CITY ATTORNEY LAW DEPARTMENT raAvala June 16, 1999 Salt Lake City Council ATTORNEY-CLIENT 304 City & County Building PRIVILEGE Salt Lake City, UT 84111 Re: Main Street Sale: Deeda Seed's Questions and Objections to City Attorney's Reply to the ACLU Dear Chairman Christensen and Council Members: You undoubtedly have received Council Member Seed's June 11, 1999 correspondence to me. It expresses numerous concerns and requests a response to three questions. In light of the questions asked and the criticism implied, I thought it most appropriate to respond to the entire Council. A. Historical Background. The Main Street sale has generated a good deal of publicity and threats of litigation by the ACLU. Those threats required legally based and factual analyzed replies. Apparently, these responses have caused Deeda's letter to be written. To better understand my response, a brief historical background may be helpful. The decision and recommendation to sell this one block section of Main Street was not done at the initiation of the City Attorney's office. To the contrary, it is a matter-that has been under discussion, to my personal knowledge, from the early 1970's. For example, during the administration of Jake Garn there was substantial pressure applied to Salt TAke City to close Main Street in the South Temple/North Temple vicinity as an air quality control measure for downtown. Later, as part of the Second Century Master Plan of 1962, a recommendation was made that this area be closed to create a church campus or that an underground viaduct be constructed to create such a plaza. Again, in 1990 another study dealing with the Block 57 Master Plan recommended the closure and sale of this area to the LDS Church for a church campus. Subsequently, a formal petition was made by the Church in 1994 to buy this land, and the 1999 transaction has its historical roots to that old request and another petition filed in 1998. Thus, the suggestion of the sale's critics that this decision was a hasty and forced process is of doubtful historic accuracy. The 1998-99 process was a matter that was fully considered by the Planning and Zoning Commission and numerous public hearings were held 451 SOUTH STATE,ROOM 505,SALT LAKE CITY, UTAH 841 1 1 TELEPHONE: 801-535-7788, FAX:801-535-7640 I1 yIwcc.cco concerning the proposal. In our judgment, all legally required notice and hearing requirements were met or exceeded. During the 1999 sale process, several negotiating elements were pivotal: 1. It was essential that the public process meet all statutory requirements. In our view the public notices and hearing process substantially exceeded all minimum requirements required by law. 2. The concept of an easement was core to the conceptualization of adjusting competing interests. The reason for the easement, however, was to accommodate a title transfer, while preserving core public concerns and rights related to a view corridor and public access. These public rights were to include the right of ingress and egress through the site on a 24-hour basis. Concomitantly, the limited nature of the easement was intended to address the purchaser's primary concern that the reserved public rights did not create a public free speech forum. From the earliest stages of negotiation it was clear that the Church would not accept the tumult of public demonstrations and use of the property for protests against the Church. 3. The negotiated easement language was included in the materials given to the Council before it made its decision to close the street. The easement's terms clearly addressed the core positions essential to the City and those of primary concern to the purchaser. The Council discussed and, to my understanding, accepted the proposed easement, including its provisions definitively stating that the public access rights did not include use of the land as a free speech public forum. 4. The facts of the easement.were misrepresented by the Tribune. A misleading article asserted that the easement terms were clandestinely developed without Council knowledge and set the stage for a misunderstanding by the public and generated some criticism of the transaction. Therefore, for the second time in my twenty-five years as City Attorney, I made a formal objection to the editor of the newspaper and requested a retraction.' In sum, the City Attorney's office was the scribe, not the policy maker. A core element of the agreement between the City and the Church was the understanding that this easement would not cause the land to retain traditional public free speech forum status. That provision was not inadvertent. It was a core element of the agreement which, in our judgment, the City knowingly accepted. ` See letter of objection sent to Editor J. Shelledy dated May 19, 1999 and the Tribune's "correction" on May 20, 1999. See also this office's notation of the inadequacy of that retraction in our letter to Michael O'Brien(an attorney representing the Tribune)dated June 9, 1999. These letters were forwarded to the Council, but additional copies will be provided on request. 2 B. Public Purposes. It was and is this office's understanding that the closure of one block of Main Street was important to the City for a number of long range planning reasons, which had been a matter of consideration for at least 25 years. Those policy considerations included: (1) improvements in air quality in the downtown business district; (2) managing traffic flow of both pedestrians and vehicles; and (3) accommodating the impact of the largest tourist attraction in the State, which in 1999 attracted approximately 5,000,000 visitors with an expected increase to 10,000,000 in the next few years. Also, this closure had basic underpinnings in other long range planning desires of the City. For example, it furthered to a long term plan to create a green space corridor, with public and private partnershipping, connecting the Bonneville Shoreline Trail with the Jordan River Parkway and bringing City Creek to the surface as a public amenity. In short, this transaction was one stage of long range planning to improve and shore up the viability of the north end of the business corridor, protect surrounding neighborhoods from traffic impacts and accommodate the enormous tourist impact of the LDS Church's Temple block and other operations in this area of town. At the same time, it was to be accomplished without expense to the City and would provide to the City full fair market value of the land conveyed. The easement language and the transaction met or exceeded all of these objectives. C. Invitation to Breach Agreement. The ink had barely dried on the City's deposit slip for the $8.1 million purchase price when certain components of the community sought to take advantage of the transaction. They sought to create public clamor to force the Church to renegotiate the core element of the deal from their perspective. In doing so, the claim was made (in our judgment groundlessly) that the easement terms regarding the free speech forum were unconstitutional. That new claim employed a less than transparent appeal to anti-LDS Church sentiment in the community.2 The City did not sign a warranty deed, obligating the City to defend the title conveyed to the purchaser; however, it did execute a "Special Warranty Deed." As such and under implied covenants of good faith and fair dealing, the City has an obligation not to attempt to undermine the property interests intentionally conveyed to the purchaser for full value received. 2 See the ACLU's May 5, 1999 letter and the City Attorney's May 17, 1999 response. A copy of the City Attorney's response was previously forwarded to the Council, but additional copies will be provided if not conveniently available. 3 The decision to close the street and for the Mayor to execute the title transfer was a discretionary one. However, once having made the deal, it would be higJhly inappropriate for the City to participate in attempts to take back those rights, which it knew the purchaser was relying upon in entering into the transaction. This conclusion is particularly cogent where the concession sought would render the property substantially less valuable than what was bargained for and received, particularly where the change would frustrate its intended use of the land by the purchaser. In the context of this sale, accepting an invitation to participate in a suit against the Church or renegotiate it terms would, in my view, be not only a dishonorable business practice, but also contrary to the implied covenants of good faith and fair dealing. In addition, it would raise substantial questions concerning our integrity for future jointly advantageous projects. Thus, the June 9, 1999 response to the ACLU was written. That letter provoked considerable media play, but it apparently has had its intended sobering effect. I am informed that following that letter, the ACLU, confirmed to Rod Decker that it had no intention of filing suit. D. Response to Questions. With that background, I will provide a quick response to the three questions asked by Deeda. In my response I will summarize the law and rely on the previously forwarded letters to the ACLU and the Tribune; however, if the Council desires a more authoritative response, I will be pleased to provide one. Question 1: Does the Administration support the City Attorney's public statement to the ACLU that: (a) the retained public easement did not retain the land's status as a public free speech forum; and (b) in the unlikely event a court were to apply free speech public forum status to the property, the City would likely deed all or part of the easement to the Church? Answer: Yes. Question 2: If the Administration chose to quitclaim all or part of the easement to the Church, would the Council have authority to review that decision? Answer: Yes, but only as a procedural matter and it could not bar the transfer. Under the real property transfer section of applicable law, the Council has set up a procedure to review all proposed real estate transfers by the Mayor. Thus, any proposed deed would be noticed for Council review and a public hearing could be required, before the transfer was effectuated. Question 3: If all or part of the easement were quitclaimed to the Church, does the Council have the power to reconsiderthe closure of the Main Street property? 4 Answer: No. The power to vacate a public street is vested, by statute, in the Council. However, once that power has been exercised, it cannot be undone without a reacquisition of the property and a dedication of the land to street purposes. A specific example of probable judicial reaction to such an attempt was the closure and sale of a portion of First South to Mountain Fuel Supply Company. After it closed the street and sold it to Mountain Fuel, the City Commission3 re-thought the matter and desired to rescind the vacating ordinance. Mountain Fuel objected and sued. The Court ruled that once a street was vacated, the public's interest was lost and could not be reestablished by fiat of the legislative body. In my best judgment, the same result would obtain on Main Street if the council attempted to rescind its closure action. E. Remaining Issues. I regret that Deeda or any member of the Council would perceive that I exceeded my authorized and delegated responsibilities as City Attorney in fulfilling this assignment. In my view, that was and is not the case. Further, there is nothing in my communications with the Tribune, the ACLU or comments to other persons that would suggest disrespect or contempt for a possible adverse judicial ruling. I was simply explaining the City's available options as it attempted to abide by a court's ruling that the property was a public forum. I am quite confident that the City or the purchaser will be successful in defending the transaction, if it were challenged. However, in the unlikely event of an adverse decision, I pointed out the obvious: to honor its previous commitments to the material elements of the transaction, the City may be obligated to refund part of the purchase price or modify the easement to honor the purchaser's legitimate understanding and expectations. Nothing in that statement suggests anything other than the City following the dictates of a judicial ruling. The attached last two pages of my most recent letter to the ACLU set forth my actual statements. You will please note that I did not state categorically that the City would not refund money, if legally required, nor did I declare that the City would deed the easement to the Church. I did make predictions to cause those who may sue to weigh the cost/benefit ratios of litigation. With regard to Deeda's questions about authority, I did obtain the approval of the Administration and the letter expressed its views. I, also, made my assessment based on Council 1999-2000 budget decisions and its vote to close Main Street. If I am wrong regarding the majority position of the Council, or if my letter summary is materially at odds with the Council's view of this transaction, I suggest that those differences be discussed with the Mayor. After such a discussion, if a material policy difference still exists and the Council intends to take a different position than the Administration, I respectfully suggest that the 3 This event occurred before the 1980 change in City government. 5 Council hire separate counsel because under the Code of Professional Responsibility I will have a conflict of interest. I trust this letter adequately responds to the questions presented by Deeda. However, if the Council desires to meet in executive session under provisions of the Open Meetings Act, I will be pleased to discuss these matters in more detail. Of course, I am always happy to meet at any time with any Council Member or a group of less than a quorum. Sincerely, R ER F. CUTLER City Attorney RFC:ca Enclosure cc: Mayor Corradini 6 ROGER F.CUTLER SAL!L' �,'�v._:RV G,�`v1© '+A,1,01�`I OEEOEE CO RRADINT CIT.ATTORNEY LAW DEPARTMENT Mnrca June 9, 1999 Steven C. Clark American Civil Liberties Union of Utah Foundation, Inc. 355 North 300 West, Suite 1 Salt Lake City, Utah 84103 Dear Mr. Clark: This office is in receipt of your letter dated May 26, 1999, with copies forwarded to my client and the attorney for the purchaser of the subject property. We note with interest your propensity to dismiss as irrelevant and immaterial any facts which cut against your desired conclusions. However, we will resist the temptation to multiply words in a long rebuttal, but simply restate our conviction that ignoring factual reality is not helpful in predicting judicial rulings. Further, we will ignore the personal baiting of your letter. A. City Right to Vacate Street. Turning to the legal assertions of your recent letter, a major premise seems to be that vacating one block of a City street and selling the fee title was not a bona fide commercial transaction which resulted in this two acres of ground ceasing to be a "public forum." Rather, sound-bite language characterizes the transaction as selling sacred constitutional rights. Thus, it is suggested that governments have no power to vacate, close and sell a street, without the subject ground maintaining a free speech public forum status. That position finds no _ support in any law-that the ACLU has cited:or which we have found. In fact,the-clear law is exactly to the contrary. The 1998 ACLU case you - cited held that streets, incorporated into a city owned mail, ceased to be traditional public forums. In granting summary judgment against the ACLU, the Court relied on the U.S. Supreme Court and noted: . . .public property which fails within the definition of a traditional public forum can be changed or its uses altered to such an extent that it no longer retains its public forum status. -+_I SOUTH ST:T£,ROOM SOS.SALT LAKE CITY,UTAH Sat t t .c.ciae M Steven C. Clark June 9, 1999 Page -2- ACLU of Nevada v. City of Las Vegas, 13 F.Supp.2d 1064, 1074 (D.C.D.Nev. 1998) (emphasis added). That case affirmed the universally held legal position that a city can vacate a street on facts remarkably similar to those in the Main Street closure. (See, Id, at p. 1076). We also note with comfort that just three months ago, our 10th Circuit. also ruled that closed streets (incorporated in a pedestrian walkway of a performing arts complex) were no longer public forums. Thus, the Court approved-a ban on First Amendment picketing and leafleting, even though the property remained in city ownership and was used for ingress and egress.purposes. Hawkins v. City & County of Denver, 170 F.3d 1281 , 1287 (CA 10 1999). As the ACLU must know from its 1998 Summary Judgment loss to Las Vegas, statutory and case law is consistent in affirming that the government has the power to close, vacate and-sell property formerly used as a street and extinguish its previous free speech public forum status. Thus, the City finds your assertion to the contrary to be without legal foundation and must reject it. B. Easement. The alternative incorrect premise of your correspondence is the assertion that the easement retained by the City is a public forum, notwithstanding that the bargained consideration, changed character and use, and the express intent of the parties was to the contrary. We agree that a reviewing court would decide this issue based on a consideration of ail of the facts, intents and circumstances. However, we are _ confident that.these-will result in a ruling_in favor of the purchaser's rights of = =_ - ownership, as set forth in the terms of the documents demonstrating that it was. --- "- - - substantially more than merely a change by "fiat." Among other facts, these = _ _ circumstances and changes include: the expressed limits on the easement; the payment of full market value by the purchaser; the physical changes of materials, plantings, and land uses; the construction of barriers and structural changes; changes of the inter-relationships between the space with surrounding properties; the abundance of nearly alternative locations for demonstrations, leafleting or free speech activities; the clear demarcation of changed ownership; the change of use, and function from a sidewalk/street; and the incompatibility of free speech activities to the land's dedicated new purpose as a quiet and landscaped green •r • • Steven C. Clark June 9, 1999 Page -3- place. See ACLU of Nevada v. City of Las Vegas, supra, and Hawkins v. City of Denver, supra.' Based on all of these facts and circumstances, we must reject your assertion that the City's limited rights of ingress and egress make the land a traditional public forum. • • C. Process. Contrary to your declaration, the definition of what property interests were retained by the City was not "secret" nor "clandestinely" determined. A review of the minutes of the City Council will reveal that the easement conditions were before it and discussed in an open meeting. The.language clearly identified the limited terms of the retained easement and the fact that it was not to be a free speech forum. With this full knowledge, the City Council voted to close the street . and approved the Mayor deeding the land, subject to the easement_2 Thus, we reject ACLU's suggestion that there was some procedural error or irregularity in the closure of this street. • • D. Equal Protection: Alleged Police Power Delegation. Similarly, your assertion of a denial of equal protection or that the City improperly delegated. City police power to the purchaser is incorrect. The purchaser acquired fee title to the land, subject to•the easement. As an owner of real property, the purchaser has the right_to control.that.property within the parameters of existing law, subject to the:terms of the easement. There is nothing • in.the transaction:that:grants.the purchaser City police powers. Any power they. --- --have to declare trespass.or.seek civil or criminal redress is the same.as would be -- available to any other real property owner in this jurisdiction. Likewise, those • ' it is important to note that in this case, Denver retained ownership of the space; yet, the land lost its free speech forum status because of a change of use. In the Main Street.closure, title changed hands, in addition to the change of uses and character: 2 As previously discussedcin earlier letters, the Council, after receiving the Planning Commission recommendation, has the power to vacate streets. However, under our optional form of government, it is the Mayor who manages, sell and deals with real property. See 10-3-1 219, 1219.5 Utah Code Ann. and Martindale v. Anderson, 581 P.2d 1002, 1027 (Utah 1978). Steven C. Clark June 9, 1999 Page -4- persons who assert free speech rights under the easement can assert those as a claim of right directly against the purchaser as was done in the Faneuii Hail case. ' Please note that the City has passed no ordinance regulating this property, and will not manage its use. The retained easement merely defines a limited property interest vested in the public, mostly preserving a view corridor and rights of ingress and egress. Thus, in our view, your attempt to restructure this land transaction and reconstitute an easement (defining proPerty rights) into a City regulatory ordinance is misplaced. In the unlikely event a court were to rule that the retained easement is also a traditional public forum, that holding would not necessarily implicate the City police powers. Similar to all the cases you cite, private parties could assert their "rights" against the landowner who, arguably, will seek to preclude their claimed -use.of the land. In reality, it is only a remote possibility that such a future confrontation will involve the City, and then only: (a) in the context of a citizen's arrest for trespass; (b) by the property owner's complaint regarding criminal conduct; or (c) following acts of violence or property damage. E. City Response to Invitation to Renegotiate. I have conferred again with my client, and the City affirms that the transaction was an arms length, reasonable transfer of property interests to the. purchaser. In the City's view, the transaction was fair and served important public interests that justified the street closure and sale. In addition, this transaction has been fully consummated by both parties and, as such, the City has no legal right or ability to require a modification of the transaction. Therefore, the City is not interested.in opening negotiations nor-in refunding the purchase price. Hence, we decline your invitation to join in further negotiations on this matter. However, we certainly have no objection if you meet with the purchaser. Should the purchaser desire to amend the easement and grant the public additional rights as a free speech forum, the City would, of course, accept that additional benefit. Of course, the City is of the opinion that no free speech public forum status attaches to this property. Steven C. Clark June 9, 1999 Page-5- On the other hand, please be advised that the City is prepared to take whatever steps are necessary to defend its lawful authority to close, vacate and sell streets. The City, also, will vigorously defend its power to hold property, including easements for ingress and egress,to which free speech public forum status is not applicable. In addition, I can state with a degree of substantial certainty that the City has no intention of refunding or renegotiating with the purchaser the price of the subject property. To the contrary,it is more than probable that, if forced to choose, the City would elect to deed the easement to the purchaser, rather than face a remittitur of all or any of the purchase price°because of a claim of recession or deed reformation due to a mistake of fact and/or law on the forum status of this property. F. Summary. For the sake of clarity,please allow me to summarize the City's position: 1. The City sold the fee title to these two acres of ground on very favorable terms to advance important planning and public policy objectives. It validly terminated the area's status as a street, which concomitantly and intentionally terminated its designation as a traditional public forum. The government's right and power to vacate roads and obtain full market value is an important prerogative. It is one uniformly acknowledged by the U.S. Supreme Court and the 10th Circuit Court of Appeals. The City will vigorously defend its rights on this point through all appellate levels. 2. The purchaser of the land essentially donated the easement as a means of assuaging critic's concerns that the land may not be employed as planned. There was no rededuction in price for these substantial limits on ownership rights. If at your initiation, or otherwise,the purchaser decides to broaden the easement,the City will willing accept those additional public rights. However, it has no intent or right to request additional concessions on a completed and fair transaction. The City notes with interest that the Faneui/Ha//case you cite noted the negotiated value of an easement broad enough to include public forum status property at only $tO per year. Steven C. Clark June 9, 1999 Page -6- 3. From the beginning, an essential prerequisite of the purchaser's • proposal was that it would be able to control activities which would occur on the property so that these two acres could be reconstructed as a place of repose and dignity, compatible with their intended purposes. The easement was the legal vehicle to define what rights were and were not vested in th.e public. Those vested rights did not include the possible tumult of a public free speech forum. However, like all private property, the exercise of private property control is and will remain in the purchaser's hands, not the City's. 4. In the unlikely event that litigation resulted in a ruling that the easement (notwithstanding the intent of the parties) is a free speech public forum, the City may be morally or legally compelled to refund most of the 8.1 million dollars to reflect the market value of the very limited property rights actually. conveyed. Rather than face that prospect, the City may be compelled by circumstances to quitclaim the easement to the purchaser and, thereby., sever any of the public's legal relationship to those tw.o acres. Thank you for expressing your client's views. Although we do not uniformly agree, the ACLU's perspective is always valuable and considered. In this case, unless the purchaser desires to make further concessions and you or they so advise us, the City considers the matter closed. Sincere! �. F. C TLER City Attorney RFC:ca cc: Mayor Corradini Keith Christensen Marc:Mascaro