First Unitarian Church of Salt Lake v. Salt Lake, 01-4111.

• Citation: 308 F.3d 1114
• Decision Date: 09 October 2002
• Docket Number: No. 01-4111.,01-4111.
• Parties: FIRST UNITARIAN CHURCH OF SALT LAKE CITY; Utahns for Fairness; Utah National Organization for Women; Craig S. Axford, Plaintiffs-Appellants, v. SALT LAKE CITY CORPORATION, a municipal corporation, Defendant-Appellee, Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Defendant-Intervenor-Appellee, Association of Christian Schools International; Colorado Baptist General Convention; Colorado Catholic Conference; Community of Christ; Diocese of Colorado; Evangelical Lutheran Church in America; First Church of Christ, Scientist; General Conference of Seventh-Day Adventists; Islamic Society of Colorado Springs; Mid-America Union Conference of Seventh-Day Adventists; the Navigators; Rocky Mountain Conference of Seventh-Day Adventists; the Evangelical Covenant Church; the General Council on Finance and Administration of the United Methodist Church; Worldwide Church of God; Sutherland Institute; International Municipal Lawyers Association; National League of Cities; National Association of Counties; and Utah Association of Counties, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

308 F.3d 1114

FIRST UNITARIAN CHURCH OF SALT LAKE CITY; Utahns for Fairness; Utah National Organization for Women; Craig S. Axford, Plaintiffs-Appellants, v. SALT LAKE CITY CORPORATION, a municipal corporation, Defendant-Appellee, Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Defendant-Intervenor-Appellee, Association of Christian Schools International; Colorado Baptist General Convention; Colorado Catholic Conference; Community of Christ; Diocese of Colorado; Evangelical Lutheran Church in America; First Church of Christ, Scientist; General Conference of Seventh-Day Adventists; Islamic Society of Colorado Springs; Mid-America Union Conference of Seventh-Day Adventists; the Navigators; Rocky Mountain Conference of Seventh-Day Adventists; the Evangelical Covenant Church; the General Council on Finance and Administration of the United Methodist Church; Worldwide Church of God; Sutherland Institute; International Municipal Lawyers Association; National League of Cities; National Association of Counties; and Utah Association of Counties, Amici Curiae.

No. 01-4111.

United States Court of Appeals, Tenth Circuit.

October 9, 2002.

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Mark Lopez, American Civil Liberties Union Foundation, Inc., New York, N.Y. (Stephen C. Clark, American Civil Liberties Union of Utah Foundation, Inc., Salt Lake City, UT, with him on the briefs), for Plaintiffs-Appellants.

Roger F. Cutler (Steven W. Allred, Lynn H. Pace, and Boyd A. Ferguson, with him on the brief), Salt Lake City, UT, for Defendant-Appellee.

Von G. Keetch (Alexander Dushku, with him on the brief), Kirton & McConkie, Salt Lake City, UT, for Defendant-Intervenor-Appellee.

Before SEYMOUR, McWILLIAMS and HENRY, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiffs brought this action under 42 U.S.C. § 1983 challenging on First Amendment grounds the prohibition of expressive activity by Salt Lake City on a public pedestrian easement retained by the City after the sale of a portion of a downtown public street to a religious organization. The district court granted summary judgment to defendant. First Unitarian Church of Salt Lake v. Salt Lake City Corp., 146 F.Supp.2d 1155 (D.Utah 2001). Plaintiffs appeal and, for the reasons stated below, we reverse and remand.

I

The relevant facts set forth here are not in dispute. This case concerns a portion of Main Street in downtown Salt Lake City that the City closed and sold to the Church of Jesus Christ of Latter-Day Saints (LDS Church).¹ Main Street runs north-south through downtown Salt Lake City. The portion sold to the Church is bounded on the north by North Temple Street and on the south by South Temple Street. To the north lies a residential neighborhood. To the south is the City's business district, including two large shopping malls.

The LDS Church owns all the property on the two city blocks on the east and west sides of this portion of the former Main Street. On these blocks the Church maintains a number of important historical, administrative, and worship facilities. The west block is called "Temple Square" and contains the Mormon Tabernacle and the Salt Lake Temple; the east block houses the Church administration buildings. Temple Square and related attractions are an extremely popular tourist attraction.

In 1995, the Salt Lake City Corporation (City) sold the subsurface rights to this portion of Main Street to the LDS Church, which the Church eventually developed into an underground parking garage. That agreement also gave the Church a right of first refusal on the surface property, should the City ever decide to sell it. In 1996, the City considered closing this portion of Main Street to automobile traffic but leaving it open to pedestrians, and also considered selling the land to the Church for this purpose. The proposal was eventually dropped.

In 1998, the City again explored the possibility of closing a portion of Main Street and selling it to the Church for the construction of a pedestrian plaza. On December 1, 1998, the City and LDS Church held a joint news conference to announce "a proposal to develop an open-space pedestrian plaza" on Main Street between North and South Temple. Aplt. App. vol. I at 356 (LDS Church news release). The Church thereafter filed a petition with the City for street closure and plans with the City Planning Commission for a pedestrian plaza.

On April 13, 1999, the City Council approved the closure and sale of the Main Street block to LDS Church subject to certain conditions. In the process leading to approval, the Planning Commission recommended that the City Council approve the sale contingent on several conditions that reflected the Commission's concern with ensuring public access and allowing public expression on the pedestrian plaza. The suggestions included a recommendation that the City retain a perpetual pedestrian easement "planned and improved so as to maintain, encourage, and invite public use" and "[t]hat there be no restrictions on the use of this space that are more restrictive than is currently permitted at a public park." Aplt.App. vol. III at 1220 (emphasis added).

The ordinance the City Council adopted retained only some of these conditions. The first recommendation, that the City retain an easement for public use "planned and improved so as to maintain, encourage, and invite public use," was a condition of the ordinance as approved by the City Council. Id. vol. I at 191. In addition, the Council suggested during its meeting that the City retain a right of reverter to the property to ensure that the Church met these conditions, in particular providing public access. See id. vol. II at 401. However, the latter condition, that the plaza be regulated no more strictly than a public park, was omitted from the ordinance.

The City subsequently recorded a Special Warranty Deed and Reservation of Easement conveying the Main Street surface property to the Church. The reservation allows only non-speech conduct on the easement and also specifically prohibits a number of expressive activities. The reservation of easement reads:

1.3 Pedestrian Access and Passage: Subject to the conditions, limitations, and restrictions set forth in section 2 hereinbelow, Grantor reserves an easement over and across the surface of the Property for pedestrian access and passage only .... Grantee shall not erect any perimeter fences or gates on the Property along the North Temple or South Temple rights of way .... Grantor may allow the general public to use this easement for pedestrian access and passage only, but all use of this easement shall be subject to the conditions, limitations, and restrictions described hereinbelow.

Id. vol. I at 361. The reservation contains the following restrictions with respect to the use of the easement:

2.2 Right to Prevent Uses Other Than Pedestrian Passage: Nothing in the reservation or use of this easement shall be deemed to create or constitute a public forum, limited or otherwise, on the Property. Nothing in this easement is intended to permit any of the following enumerated or similar activities on the Property: loitering, assembling, partying, demonstrating, picketing, distributing literature, soliciting, begging, littering, consuming alcoholic beverages or using tobacco products, sunbathing, carrying firearms (except for police personnel), erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct, or otherwise disturbing the peace. Grantee shall have the right to deny access to the Property to persons who are disorderly or intoxicated or engaging in any of the activities identified above. The provisions of this section are intended to apply only to Grantor and other users of the easement and are not intended to limit or restrict Grantee's use of the Property as owner thereof, including, without limitation, the distribution of literature, the erection of signs and displays by Grantee, and the projection of music and spoken messages by Grantee.

Id. at 362. The reservation gives the LDS Church the right to exclude anyone who has previously engaged in any of the above conduct while using the easement (the "Habitual Violator" provision). The City also reserved utility easements, access for emergency and police vehicles, and a view corridor which restricts the erection of buildings on the plaza. Finally, as suggested by the City Council, the reservation contains a Right of Reverter providing that if "Grantee fails to use the Property for the purposes set forth herein, or fails to maintain the Property thereafter," ownership may revert to the City. Id.

At its own expense, the Church reconstructed the former street and sidewalks, making the area an attractive plaza that fits seamlessly into the Church's downtown campus. There are paved walking areas interrupted by planters, benches, and waterfalls, a large reflecting pool, and changes in grade. The Church uses the plaza for religiously-oriented exhibits, dissemination of information, and special events, as well as for the entrance to the Temple Square.

While the Church now refers to the area as an ecclesiastical park, prior to the sale when asked how it would further the public interest, the Church variously described the proposed Main Street Plaza as "a pedestrian-friendly area," "a funnel to the Crossroads and ZCMI Center shopping malls as well as the remainder of the downtown business district," and "a downtown pedestrian plaza," and stated the plaza would "provide a public environment," "enhance the urban fabric of the downtown area," "emphasize Main Street as a primary pedestrian walkway," and "assist Main Street, which is the heart of the shopping area, to become the most pedestrian oriented street in Salt Lake City." Id. vol. IV at 1584-89.

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