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Craig Axford v. Salt Lake City Corporation | Complaint for Declaratory Judgement

12 April 2000 Published in Litigation Materials

Craig Axford v. Salt Lake City Corporation

STEPHEN C. CLARK (# 4551)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

Attorneys for Plaintiff

IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH

COMPLAINT FOR DECLARATORY JUDGMENT

Case No. 000902995

Judge Homer F. Wilkinson

CRAIG S. AXFORD, Plaintiff,

v.

SALT LAKE CITY CORPORATION and THE CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Defendants.

Plaintiff, by and through his attorneys of record, hereby alleges and complains as follows:

NATURE OF ACTION

1. This is an action for declaratory judgment pursuant to Rule 57 of the Utah Rules of Civil Procedure and Chapter 33 of Title 78 of the Utah Code. Plaintiff seeks to have determined a question of construction arising under Salt Lake City Ordinance No. 28 of 1999 (the “Ordinance”) and to obtain a declaration of rights, status and legal relations thereunder. Specifically, plaintiff seeks a declaration that the Ordinance requires compliance with 15 conditions precedent to the closure of the street that is the subject of the Ordinance, and that not all the conditions precedent have been fulfilled.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this matter, and venue is proper in this Court, pursuant to Utah Code Ann. § 78-33-1.

PARTIES

3. Plaintiff Craig S. Axford is a citizen of the State of Utah. Mr. Axford resides and pays taxes in Salt Lake City. Mr. Axford is a person whose rights, status or other legal relations are affected by the Ordinance within the meaning of Utah Code Ann. § 78-33-2, in that, among other things, before the adoption of the Ordinance he enjoyed unfettered access to the property covered by the Ordinance, and he will take pains to avoid using the public easement pertaining to the property until and unless all conditions of the Ordinance are fulfilled.

4. Defendant Salt Lake City Corporation (the “City”) is a municipal corporation of the State of Utah whose mailing address is 451 South State Street, Salt Lake City, Utah 84111.

5. Defendant Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints (the “CPB”) is a Utah corporation whose mailing address is 50 East North Temple, Suite 1800, Salt Lake City, Utah 84111.

FACTUAL ALLEGATIONS

6. On April 13, 1999, the Salt Lake City Council passed the Ordinance, by a vote of 5 to 2. A true and correct copy of the Ordinance is attached hereto as Exhibit A.

7. The Ordinance provides, in part, “[t]hat a portion of Main Street located between North Temple and South Temple Streets, which is the subject of Petition No. 400-98-79, and which is more particularly described on Exhibit ‘A’ attached hereto, be, and the same hereby is, closed and declared no longer needed or available for use as a street.” Id., Section 1.

8. The Ordinance further provides: “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’.” Id., Section 3.

9. On March 4, 1999, the City Planning Commission, by a vote of 7 to 1, approved a motion “to forward a positive recommendation to the City Council to hold a public hearing and adopt an ordinance to approve Petition No. 400-98-79 to close the right-of-way on Main street between North Temple and South Temple Streets, and that the excess right-of-way be declared surplus so the ownership may be transferred to the petitioner in exchange for fair-market value,” subject to 13 conditions listed in the staff report and two additional conditions. A true and correct copy of an excerpt of the Minutes of the March 4, 1999 City Planning Commission meeting is attached hereto as Exhibit B.

10. The final condition, number 15, to the Planning Commission’s approval stated: “That there be no restrictions on the use of this space that are more restrictive than is currently permitted at a public park.” Id., p. 16.

11. When the City Council voted to approve the Ordinance, the “modified summary” of conditions attached as Exhibit “B” to the Ordinance materially differed from the conditions identified by the Planning Commission, in that it listed only 14 conditions; condition 15, plainly set forth and underscored in the minutes of the March 4, 1999 Planning Commission meeting, was not listed on Exhibit “B”.

12. On April 27, 1999, the City executed a Special Warranty Deed (the “Deed”) between defendant Salt Lake City Corporation as Grantor and defendant Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints as Grantee. A true and correct copy of the executed deed is attached hereto as Exhibit C.

13. The Deed includes conditions, restrictions and limitations which, contrary to condition 15 identified by the Planning Commission, are more restrictive than is currently permitted at a public park in the City, in that, among other things, they purport to restrict plaintiff and members of the general public from engaging in lawful expression while permitting the CPB to engage in such expression; they are vague and overly broad and otherwise violate plaintiff’s rights under the United States and Utah Constitutions in purporting to allow the CPB, in its sole discretion, to prohibit “offensive,” “indecent” or “disorderly” speech; and they permit the CPB permanently to “exclude habitual violators” of those vague restrictions.

CAUSE OF ACTION
(For Construction of the Ordinance Under Utah Code Ann. § 78-33-2)

14. Plaintiff repeats and realleges the allegations in paragraphs 1 through 13 of this Complaint as if fully set forth herein.

15. An actual controversy has arisen and now exists between plaintiff and defendants. Plaintiff contends that the plain language of the Ordinance requires compliance with all 15 conditions identified by the Salt Lake City Planning Commission as a condition precedent to the partial closure of Main Street authorized by the Ordinance; that all conditions identified by the Planning Commission have not been complied with, as required by the plain language of the Ordinance; and that therefore the closure of the subject portion of Main Street cannot legally occur until and unless all conditions precedent have been complied with. On information and belief, defendants contend that the Ordinance does not require compliance with all conditions identified by the Salt Lake City Planning Commission, but only with so many of those conditions as were listed in the “modified summary” of the conditions attached as Exhibit “B” to the Ordinance, and/or that all conditions have been satisfied.

16. Pursuant to Utah Code Ann. § 78-33-2, plaintiff is entitled to a declaration of the rights, status and other legal relations under the Ordinance as prayed for below.

WHEREFORE, plaintiff demands the following relief:

1. That the Court construe the Ordinance in accordance with its plain language and with established rules of construction and declare that the Ordinance requires compliance with all 15 conditions identified by the Planning Commission as a condition precedent to the closure of the subject portion of Main Street pursuant to the Ordinance;

2. That the Court declare that not all 15 conditions to the closure of the subject portion of Main Street have been complied with;

3. That the Court declare that the closure of the subject portion of Main Street pursuant to the Ordinance cannot occur until and unless all 15 conditions precedent to the closure have been complied with;

4. That pursuant to Utah Code Ann. § 78-33-10 the Court award plaintiffs such costs as seem equitable and just; and

5. That the Court grant such other and further relief as it deems proper in the circumstances.

DATED: April 13, 2000.

By: Stephen C. Clark
ACLU of Utah Foundation, Inc.
Attorney for Plaintiff