Court ruling reaffirms Mapleton eminent domain: Provo UT Daily Herald, 3/14/07

By Jeremy Duda

A long-running dispute between a Mapleton landowner and the city may be coming to an end.

In a 20-page ruling, a state court declared that Mapleton has the authority to exercise eminent domain to take a half-mile stretch of land on Maple Mountain, reaffirming a decision the court handed down more than a year ago. Landowner Wendell Gibby asked the court to reconsider its decision, arguing that the disputed land was his private property.

Now the two parties have to agree on a price. Gibby was out of the country on Tuesday, and his attorney didn't return phone calls.

The city had long asserted that the land was part of the Bonneville Shoreline Trail, which had been used by the public for decades, and that it should also be open for use by emergency vehicles. Gibby put up concrete barriers around the land, blocking access for both.

"The bottom line is that the court has just reaffirmed everything from a year earlier," said attorney Eric Johnson, who is representing the city. "The court has decided that it got it right the first time."

Gibby filed a motion for reconsideration last year, asking the 4th District Court to reverse its previous decision. Judge Derek Pullan heard arguments in late January, but did not issue a ruling until last week. The city received the ruling Monday night.

Mapleton filed a cross motion asking the court to grant it immediate occupancy, which would have allowed Mapleton to seize the disputed land for pressing needs before a value was determined in court. The court denied that request.

Mapleton may have won the battle, but the concrete barriers on Maple Mountain aren't going anywhere for now. The two parties must determine a fair value for the land before Mapleton can formally seize it.

"There's no compulsion from the court ruling to make him remove the jersey barriers at this stage until such time as we have agreed on the value of the taking," said City Manager Bob Bradshaw.

Bradshaw said the city and Gibby were trying to reach a settlement out of court.

"The city is still anxious to reach a mutual agreement away from court on the arrangements that would be acceptable to both parties," he said.

Out-of-court negotiations have gone on for quite a while. On Monday, before Mapleton received the court's ruling, Bradshaw said he expected the two sides to reach an agreement within a few weeks.

Bradshaw said the ruling changes the dynamic of those out-of-court negotiations.

"Now with this court ruling reaffirming the previous decision, that the city does indeed have the power to condemn the trail, it puts the (City) Council in a strong position," he said.

The eminent domain question may have been the focal point of Gibby's dispute with the city. But he still has three open lawsuits against Mapleton, Johnson said. One of those lawsuits, which was filed in federal court, has been stayed pending the outcome of Gibby's other lawsuits in state court.

One of the state court lawsuits was filed by Gibby after the city refused to rezone his land on Maple Mountain. The land is zoned as critical environment, which limits the number of structures Gibby can build there.

Another lawsuit in state court concerns Gibby's request for the city to widen a road that runs to the edge of his property.

Aside from those lawsuits and the trial to assess the value of Gibby's condemned land, another hearing may be in the works. The city has long argued that the disputed land is an official road due to a decades-long history of public use. Mapleton moved to condemn the land under eminent domain as a fallback to that argument, Johnson said.

"The oldest people alive in Mapleton can remember using that road," Johnson said.

If the court rules in Mapleton's favor that the road is a public right of way by virtue of historic use, the city will not have to pay Gibby for it.

Provo UT Daily Herald: http://www.heraldextra.com