Jeremy Duda

Questions over property ownership, mining rights and conservation abound in the multifaceted land dispute in Rock Canyon. Those questions, however, appear to be on hold while all parties wait for the Utah Supreme Court to hand down a decision in the case.

Richard Davis, one of the owners of the disputed 84.5-acre plot near the mouth of Rock Canyon, is hoping the Supreme Court will agree that he can challenge Provo city's 1978 annexation of the area. Davis didn't purchase the land until about 20 years later, but his attorneys argue that the statute of limitations on challenging annexations hasn't passed for him because Provo city has never assessed taxes on the property.

"Everybody's looking over their shoulder, saying 'What's the Supreme Court going to dofi' Because that has a huge impact with the rest of the issues," said Provo assistant city attorney Jim Wilde.

The annexation issue is just one of many in the land dispute, but until it is resolved there is unlikely to be any movement in the case. All parties involved, including Provo city and state Senate President John Valentine, R-Orem, are awaiting the outcome.

Aside from the looming state Supreme Court decision, there are two major issues that need a resolution in the Rock Canyon dispute -- who owns what land, and what the city will allow Davis to do with his share.

Since 2003, Davis has been locked in a legal battle with Greg Sperry, with whom he bought the disputed property. Sperry sold half of his share -- presumably a quarter of the land -- to Red Slab LLC, a company that was started by Valentine and associate Phil Lowry for the purpose of preserving the land. In 2004, Red Slab granted Provo city a conservation easement that gave the city the development rights to its property.

The conservation easement was meant to prevent mining or excavation on the land, which would keep Davis from carrying out his stated goal -- to remove and sell stone from the land as decorative rock. Davis sued, claiming that Sperry didn't have the right to sell his share of the land to Red Slab, according to Michael Zundel, an attorney representing Davis.

Sperry later sold the rest of his share in the land to Stephen and Loren Kapelow, who were going to sell to Red Slab. But the Kapelows later refused to close the deal with Red Slab, Valentine said. They later agreed to sell to Davis, triggering another legal dispute.

Red Slab's purchase of Sperry's land was essentially funded by Provo city, which agreed to pay the company $100,000 for a conservation easement, Valentine said. That money was used for Red Slab's initial purchase. Another similar deal was set up for the Kapelow land, but the money is still in escrow because of the legal questions surrounding the sale.

Davis received a mining permit from the state, but needs a conditional use permit from Provo city before he can quarry stone on the Rock Canyon property. Zundel said there is a lot of public sentiment that favors preserving the land, but such preservation would come at Davis's expense. The city, he said, is working to keep Davis from developing his property.

"What we would like to see is a fair resolution of the matter. If the public wants property, then the public ought to be willing to pay for it, and what I mean by that is Provo city, of course," Zundel said. "Everybody thinks because this is a beautiful piece of property enjoyed by the public, that it ought to just stay that way, and Mr. Davis just ought to bear ... the financial burden of not having access to this stone. That kind of seems a little un-American to me."

Over the past 100 years, Zundel said, probably millions of tons of the decorative, yellow-white rock has been removed from the area, as evidenced by its presence in yards across Provo.

In January, a 4th District judge in Provo ruled that Davis could remove one truckload and one trailer-load of rock -- only rock on the ground -- from the land to determine its usefulness.

The rock is valuable, and Zundel said they are working to determine what damages Davis may claim if he is not allowed to excavate.

Valentine said Red Slab has had discussions with Davis about purchasing his share of the land, but disagreements over the price have left those negotiations at a stalemate.

"We would still love to be able to purchase out Mr. Davis's interest and convey the entirety to the people for use as an open space easement," Valentine said.

Zundel disputed that quarrying would have a negative impact on rock climbing, hiking and other recreational uses in Rock Canyon.

Depending on the final outcome of Davis's case against Red Slab and Sperry, Red Slab could end up owning half of the property, a quarter of the property, or none of the property, Zundel said. Because the shares are undivided, who owns what has become a complicated issue.

The city's role in the conflict -- specifically, whether it will grant Davis the permits he needs to excavate rock -- will hinge on the Supreme Court's decision. If the court rules that Davis can challenge the 1978 annexation, and he successfully fights it, then he would likely end up applying to Utah County instead of Provo city for the permits.

"We think it's in the city limits," said Provo city attorney Robert West. "We'll see what the Supreme Court says."

The Supreme Court decision is the next big step, but it won't resolve everything, Wilde said. But even if the annexation question is only one aspect of the dispute, it seems that nothing else can go forward until that question is answered.

"Mr. Davis may ask for a conditional use permit to do grading or things like that, but to a certain extent, as long as the court has not decided whether the annexation was valid or not, then there's the issue as to whether the property is within the county boundaries or within the city boundaries," Wilde said.

West said the city is not trying to hinder Davis's attempts at excavation. What the city wants, he said, is for everyone's rights to be protected, for public safety to be protected and for Provo's ordinances to be obeyed in regards to potential development.

"I don't think we are trying to prevent him," West said. "What we're trying to say is we want our laws obeyed, we want the public protected, we want to accord Mr. Davis all of his rights."

West said the city is concerned with public safety issues that could arise from quarrying or other development, such as loose rocks in an area frequented by rock climbers. Davis recently finished a state-mandated reclamation project at the site that was necessitated by illegal mining in the area in 2003. Zundel said Davis allowed a company to mine in the area, but the company did not get the required permits from Provo city first.

"People use it all the time for rock climbing, they use it to hike up to the other parts of the mountain. The concerns was there at the mouth was that it left some kind of dangerous condition," West said.

But the issue of whether the city allows Davis to excavate stone on his property may not be resolved for a while. The ownership issues would have to come first, and depending on what the Supreme Court decides, Davis may not need permission from the city at all.

Of course, once the other issues have been put to rest, the city may grant Davis his desired permits after all, Zundel said. If not, then another lawsuit may be in the works.

"They have to take final action on our permit, and then we have to go through the administrative appeal process if that permit's denied and then as a final resort we go to the courts," Zundel said.

• Jeremy Duda can be reached at 344-2561 or jduda@heraldextra.com.