If the county council approved it, it would send a message that "county zoning laws are more guidelines than rules," the attorneys said.
The letter outlined three particular concerns the group has with the project:
First, the church has asked to go straight to the county council for approval, instead of asking for a conditional use permit from the planning commission, which is the typical process. Under a so-called “legislative development agreement,” the planning commission would still review the application, but they would only serve in an advisory role to the council.
Wasatch County Manager Dustin Grabau told KPCW this is also the process for approving zoning changes or new subdivisions.
The attorneys for Dark Skies expressed skepticism the temple would qualify for a conditional use permit, and going the legislative route as the church requested would subvert the proper procedure.
The reason the attorneys are skeptical is because they say the temple may qualify as a "limited membership club," which is not allowed in a residential agricultural zone even with a conditional use permit.
The attorneys noted the services in the proposed temple would only be available to practicing members of the Church of Jesus Christ of Latter-day Saints who the church deems worthy.
Grabau told KPCW he didn’t think a court would conclude a temple is a club.
"County code is very clear that places of worship are all treated the same, regardless of limitations on who gets to participate in those places of worship," he said.
In speaking to the county council on Wednesday, June 21, deputy county attorney Jon Woodard advocated for the council to have the final say on the issue instead of the planning commission. He said it would give the county greater flexibility to ask questions about the project and improve it for the benefit of the county. He also said it would be a more efficient use of county resources.
"We think that modifying the land use code throughout the county in order to do what we think is best for this particular project probably wouldn't be super helpful because we aren't likely to have an application for a mosque come in the near future," he said.
Attorneys for the dark skies group also said the church’s proposal leaves the door open for secret amendments which would not be subject to public input or scrutiny. The proposed agreement says it may be amended "by mutual written consent as approved by the County Council." The attorneys said that could hypothetically allow the church and the county council to present one version of the agreement to the public, and then once that has passed, operate under a different agreement that was never made public.
Grabau told KPCW that concern was unfounded.
"That land use approval process requires public hearings," he said. "Because it's a land use document, it has to go through a land use approval process, even for amendments."
The bulk of the letter from the Dark Skies attorneys was devoted to the group’s third concern: The church invoked the Religious Land Use and Institutionalized Persons Act (or “RLUIPA”) to justify the steeples of the proposed temple, one of which would be as high as 210 feet. That’s well in excess of the 35-foot height maximum allowed for buildings in the residential agricultural zone.
RLUIPA prohibits local governments from discriminating against religious groups in land use decisions. But the attorneys offered several arguments why it didn’t apply in this case.
They said, for instance, that limiting the height of the towers would not interfere with the religious needs of the church, since it wouldn't impact the number of people who could be admitted to the temple, or the religious ceremonies performed inside. The attorneys also noted that the church operates other temples which are significantly shorter in height, like the one in Anchorage, Alaska, which is only 71 feet high.
Speaking to the council, church attorney Loyal Hulme said the planned temple isn’t as big as it could be to accommodate the needs of members in the Heber Valley area.
"We intentionally downsized this one, to help with some of the concerns that have been expressed," he said. "But we want to make sure that people understand that it's consistent with the needs."
Hulme also said that the height of the temples are an important aspect of faith for church members. The high spires are intended to draw their attention heavenward.
"These temples represent a symbol to the people in the area that they can look to to strengthen their faith, and think about those covenants that they make," he said. "So to discount the size, to discount the steeple, to discount these other things, is to discount the purpose of the temple."
Woodard said the Religious Land Use Act applies in this case and the legislative route reduces the county's legal risk.
"The RLUIPA law allows for attorneys fees, if the plaintiff being the religious institution successfully prevails," he said.
Hulme said the temple was consistent with county code, which says chimneys, flagpoles, church towers and other similar extensions of a building do not count towards its height.
When asked to comment on the letter from the Save Wasatch Back Dark Skies, Grabau said public input is helpful.
"It will likely be considered as we go through the approval process," he said of the letter.
He said the proposed development agreement is currently being reviewed by a committee made up of representatives from multiple county departments. When that committee and the church agree on a draft, it will be brought before the planning commission’s monthly meeting. Grabau said that will happen in August at the earliest.
The planning commission will then forward the proposal to the county council with their recommendation. The council will also hold a public hearing.
