Back to main story
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.
As a
community, we are faced with a difficult situation because
of an inherent conflict in an agreement reached by The Church
of Jesus Christ and the prior administration. That agreement
included (1) an easement to be held by Salt Lake City, assuring
a perpetual right of pedestrian passage through the Main Street
Plaza, and (2) extensive restrictions on conduct and other
expressive activities on the Plaza. As explained by the United
States Court of Appeals for the Tenth Circuit, a governmental
entity like Salt Lake City cannot constitutionally guaranty
public access and, at the same time, permit such extensive
restrictions on the right to freedom of expression. Because
of that conflict, the Court declared some of the restrictions
to be unconstitutional.
This
community is divided among those who believe that the City
should simply convey the easement to The Church of Jesus Christ
so the Church will own the property outright and be able to
control conduct on the Plaza as it sees fit, and those who
advocate for the City to keep the easement. The advocates
of the latter position refer to a “severability clause”
in the written agreement signed by The Church of Jesus Christ
and former Mayor Corradini, which provides that if the restrictions
are deemed unconstitutional, everything else is to remain
the same. We read that clause to mean that although the restrictions
have been declared to be in violation of the First Amendment,
the City is still to retain the easement.
Neither
of those resolutions would fulfill the expectations of the
parties concerning crucial elements of the initial agreement.
First of all, as Roger Cutler, the City Attorney who negotiated
and drafted a significant portion of the agreement, stated
to a federal judge, the easement was crucial to the City.
As Mr. Cutler stated, the agreement would not have been entered
into by the City “but for” the provision reserving
the easement to the City. That provision was consistent with
promises made to the public that perpetual pedestrian access
would be assured. Mr. Cutler also stated to the federal judge
that under the severability clause, the City was to continue
holding the easement even if the restrictions on conduct were
declared to be unconstitutional. On the other hand, it seems
abundantly clear that The Church of Jesus Christ would not
have entered into the deal had it not been assured of being
able to restrict certain conduct and other expressive activities.
This
does not have to be a win-lose situation for anyone. And it
certainly does not have to be a matter that festers, creating
divisiveness along religious lines. We can work this matter
out, fairly and reasonably, so that (1) the constitutional
requirements are met, (2) an easement, guaranteeing public
access and passage, is retained by the City, and (3) to the
extent constitutionally permissible, restrictions will be
imposed that will assure that the Plaza will be a place of
peaceful, tranquil beauty.
We present
this proposal not only to the City Council, which has the
power to approve an ordinance enacting this plan, but also
to the people of Salt Lake City and everyone who uses and
enjoys the Main Street Plaza. We hope for a thorough, respectful,
and open discussion of this proposal, and we urge support
of this plan as a means of reuniting our community behind
the principles we all share in common – (1) our commitment
to the Constitution, (2) our dedication to keeping our promises
and written agreements, and (3) our respect for the beliefs
and rights of others.
The first
element of this proposal is the clear definition of the boundaries
of the easement held by the City. These boundaries are not
described in the Warranty Deed, signed by the City and The
Church of Jesus Christ. However, the deed specifically stated
that the easement was meant to provide for “access and
passage only.” The entire Plaza need not be included
in the City’s easement to preserve this access and passage.
Therefore, we propose that only the relatively narrow east
walkway on the plaza be included in the City’s easement.
This small walkway, about the size of a normal city sidewalk,
is more than enough to ensure that pedestrians will always
have guaranteed passage through the Plaza.
With this
definition of the easement, The Church of Jesus Christ will
have free and clear title to the vast majority of the plaza
(approximately 90%), and will have the ability to regulate
conduct just as any private property owner would on its own
property. Also, that walkway is furthermost from Temple Square.
Salt Lake
City government has a significant interest in preserving the
beautiful, peaceful setting provided by the Main Street Plaza.
Not only do millions of tourists visit the area each year,
but also many Downtown workers and residents seek respite
at the Plaza each day. The City also has an interest in protecting
the rights of people to exercise their right to the free practice
of religion, including weddings and other Temple-related activities
in and around the Main Street Plaza.
To achieve
these interests and to ensure that pedestrian passage is not
impeded, we propose that group gatherings on the easement
be limited to two fairly small gathering areas on the north
and south ends of the easement. While demonstrations will
be restricted on all other parts of the easement, leafleting
and other peaceful individual expressive activities will be
allowed. To preserve unimpeded views and the beauty of the
Plaza, signs and placards carried on the easement will be
limited to a small but reasonable size.
In addition
to limiting group gatherings, strict limitations will be imposed
on noise levels on the plaza. The goal of these restrictions
is to protect the peace of those on adjacent properties, including
Temple Square, as well as those seeking to enjoy the tranquility
of the Plaza itself.
Finally,
we propose that the easement be subject to all the time, place,
and manner restrictions currently imposed on other city sidewalks.
These regulations include prohibitions on loitering, disturbance
of religious services and activities, disturbing the peace,
posting bills and signs, and obstructing pedestrian access.
Together,
these regulations provide a comprehensive solution to the
conflicts that have arisen with respect to the Plaza. This
plan achieves almost all of what the parties bargained for
when they signed the Special Warranty Deed in 1999. It is
a carefully structured compromise solution that essentially
meets the concerns of all parties. No one gets 100% of what
they want – but that is a result of the fact that the
essential terms of the initial deal are not constitutionally
compatible. The plan protects the public right to access and
passage, by means of a legally enforceable easement, one of
the two major goals of the original agreement. This proposal
also provides substantial protections for the peace and tranquility
of the Plaza, limiting, to the extent constitutionally possible,
disruptions and disturbances on the Plaza. All this is accomplished
without betraying the promises that were made to the people
of this City and without significant risk of further court
challenges.
I am committed,
as I have been from the very beginning, to give effect to
the parties’ intentions, so far as constitutionally possible.
Here, we have proposed that the easement be defined in an
extremely limited manner, that we impose restrictions on conduct
and other expressive activities on that easement to the extent
we are constitutionally able, and that we maintain the promises
made to the people of Salt Lake City that there will be a
perpetual right of pedestrian passage through the Plaza. We
are pleased to discuss this matter further and are open to
any ideas, so long as we (1) stay true to the promises that
there would be a perpetual easement through the Plaza, (2)
promote the peacefulness of the Plaza, and (3) honor the protections
of religious liberty and freedom of expression contained in
the First Amendment to the United States Constitution.
Whether
we agree or disagree as to this proposal – or as to any
of the matters relating to the Plaza – I call upon everyone
in this community to be kind, respectful, and more compassionate
toward those who hold other views. People of good will and
reason can come together and resolve this matter in a way
that is honorable – in a way that can bring our community
together – and in a way that takes into fair account
the interests in maintaining a perpetual right of pedestrian
passage through the Plaza, the constitutional requirements,
and the clear intentions of the parties that the Plaza be
a place of peaceful beauty – a place where we can all
find safe and tranquil refuge.
|
