First Unitarian Church v. Salt Lake City Corp., 2:99-CV-912-ST.

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Writing for the CourtStewart
Citation146 F.Supp.2d 1155
PartiesFIRST UNITARIAN CHURCH OF SALT LAKE CITY; Utahns for Fairness; Utah National Organization for Women and Craig S. Axford, Plaintiffs, v. SALT LAKE CITY CORPORATION, a Municipal corporation, Defendant, Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, Intervenor.
Docket NumberNo. 2:99-CV-912-ST.,2:99-CV-912-ST.
Decision Date04 May 2001

R. Willis Orton, Von G. Keetch, Alexander Dushku, Kirton & McConkie, Salt Lake City, UT, for Corporation of Presiding Bishop of Church of Juses Christ of Latter-Day Saints.

Mark J. Lopez, Amer. Civil Liberties Union, New York City, Stephen C. Clark, Amer. Civil Liberties Union, Salt Lake City, UT, for Craig S. Axford.


STEWART, District Judge.

This matter came before the court on January 2, 2001, for hearing on Defendant City's and Intervenor's Motions for Summary Judgment and Plaintiffs' Motion for Partial Summary Judgment.


Plaintiffs want the right to stage demonstrations for the expression of their political and religious beliefs on property that was formerly Main Street between South Temple and North Temple and is now a privately-owned Church Plaza. Defendant City sold the disputed property (the Property) to the Intervenor, which now owns and maintains a Church Plaza on the Property. Plaintiffs seeks declaratory and injunctive relief that restrictions on the use of the City's retained pedestrian easement across the Church Plaza violate their rights under the First Amendment and to Equal Protection under the federal constitution and under the Establishment clauses of the U.S. and Utah constitutions. The parties all move for summary judgment. The court finds no material issues of fact and grants summary judgment against Plaintiffs and in favor of the City and the Intervenor.


Plaintiffs are the Unitarian Church, the Utah National Organization of Women, Utahns for Fairness and an individual, Craig Axford. The defendant is Salt Lake City corporation, seller of the surface rights to the portion of Main Street located between South Temple and North Temple. Intervenor is the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints (CPB), purchaser of the Property. The CPB is the property-holding corporation that conducts the temporal affairs of the Church of Jesus Christ of Latter Day Saints (LDS Church).

The Property consists of a parcel formerly containing the street and sidewalks of Main Street, between North Temple and South Temple streets. The Property is located between two city blocks owned by the CPB. The block to the west of the disputed Property is the well-known Temple Square, site of buildings of religious and historic interest. The block to the east is known as the Church Administration Block and contains buildings housing administrative functions of the LDS Church as well as buildings of historic interest. CPB's Ex. 5 Nielsen Aff. ¶ 7 and Maps 3, 5 and 6.

On April 13, 1999, the Salt Lake City Council, in a 5-2 vote, passed Ordinance No. 28 of 1999, which authorized the sale of the surface rights for the Property pursuant to several conditions and the Warranty Deed, including a pedestrian easement, as agreed to by the CPB and the City. In order to sell the surface rights to CPB for the express purpose of allowing CPB to build the Church Plaza, defendant City closed the portion of Main Street that formerly occupied the Property. Previously, in 1993, the CPB or the LDS Church acting through Reserve Property Inc., purchased the subsurface rights to the Property for the purpose of building a parking garage and held a right of first refusal for the surface rights. A parking garage was built under the Property shortly before construction began on the Church Plaza in May 2000. The Church Plaza was dedicated in October 2000.

On April 27, 1999, the City, acting through the Mayor, executed the Special Warranty Deed which contains a reservation of easement for pedestrian use. The Warranty Deed also preserves for the City an uninterrupted view corridor over the Property, a right of reverter, plus emergency and public safety easements and easements for public and private utilities.1

The Property's $8.124 million purchase price is the full market value without any reduction for the City's reserved easements, right of reverter or preservation of the view corridor. Cordova Aff. ¶¶ 18 and 20.

The pedestrian easement (hereinafter "easement") is expressly limited to pedestrian access: "an easement over and across the surface of the Property for pedestrian2 access and passage only;" provides the Property shall be available for access for such pedestrian "access and passage at all times, both day and night," and provides no perimeter fences shall be erected on the North or South Temple right of way. Special Warranty Deed at § 1.3. The easement provides the City (the Grantee) "may allow the general public to use this easement for pedestrian access and passage only" but all such use is subject to several conditions, which conditions form the basis of this lawsuit. Id. The Warranty Deed contains integration and severability clauses and specifically provides that the pedestrian easement can be modified or terminated by written agreement of the City and the landowner (CPB).

The Warranty Deed provides the pedestrian easement is expressly subject to the following conditions as follows:

2. Conditions, Limitations and Restrictions. Notwithstanding anything to the contrary in this instrument, the easements reserved herein are subject to the following conditions, limitations and restrictions:

* * * * * *

2.2 Right to Prevent Uses Other Than Pedestrian Passage. Nothing in the reservation of 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 alcohol 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.

2.3 Right to Exclude Habitual Violators. Grantee may prohibit and lawfully prevent access to the Property by individuals who: (a) have threatened or intentionally caused harm to leaders or members of the Church of Jesus Christ of Latter-day Saints; (b) have threatened or intentionally caused damages to buildings or property owned or used by the Grantee or by the Church of Jesus Christ of Latter-Day Saints; or (c) have on more than one previous occasion entered on the Property and engaged in activities identified in section 2.2 above.

3. Enforcement. Grantee may use all lawful means available to owners of private property to prevent any uses of the easements which are contrary to the provisions of this instrument.

Warranty Deed 1-3 (underlining in original, italicized emphasis added).



Plaintiffs seek declaratory judgement that the walkway areas of the Property are, like the city sidewalks formerly on the Property, a public forum where expression is protected by the First Amendment. They contend that despite the sale the walkways retain their status as a public forum and the City and the CPB could not alter that status by sale or by "fiat." Plaintiffs contend that the restrictions in the pedestrian easement contained in the Warranty Deed violate their rights under the state and federal constitutions and various federal civil rights statutes. Plaintiffs bring the following claims:

B. First Claim — First Amendment

Plaintiffs' First Claim is based upon the First Amendment protections for freedom of expression and association. Plaintiffs contend that the Property remains a public forum where their right to expression may not be restricted; that the provisions of the pedestrian easement are facially invalid restrictions on their ability to engage in expression on the Property; that the restrictions are vague, arbitrary and discriminatory; that the restrictions are government-sanctioned content and viewpoint discrimination because the restrictions favor the LDS Church and its beliefs and opinions. Plaintiffs contend the restrictions violate the First Amendment as made applicable by the Fourteenth Amendment; the Civil Rights Act of 1871 and 42 U.S.C. §§ 1983 and 1988.

C. Second Claim — Establishment Clause

Plaintiffs contend the City is violating the Establishment Clauses of the ...

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