Deal breaker?

Getting court approval to take the land for a new baseball stadium will make the negotiations around financing look easy.

by Seth Gitell

DEAL MAKERS: House Speaker Tom Finneran (top), Senate president Tom Birmingham, and Boston mayor Tom Menino have a lot more to agree on than financing. Legislation on eminent domain won't be easy to pull together.

The Red Sox have only two weeks to go before their self-imposed July 31 deadline to put together a financing deal with city and state leaders for a new Fenway Park. That day also marks the end of this year's legislative session. Even if the parties involved agree on a last-minute deal, however, they still have to tangle with the issue of eminent domain. And that will make the machinations around a financing agreement look like a walk in the park.

Although there's been much talk about deals the team could cut with some property owners on the land they need -- namely, the Sage Hotel Corporation and Arthur D'Angelo of Twins Enterprises, who together own almost four acres of land that will become part of a new ballpark under the Sox' plan -- that still leaves more than six acres to be taken by eminent domain. (The offices of the Boston Phoenix would be displaced under this plan. See "Where We Stand," page 32.) Whether the Sox need to take all 10.5 acres or only a portion of them, it won't be easy.

Eminent domain refers to the government's authority to take private land for a public purpose. Such authority is limited by both the federal and state constitutions. The Fifth Amendment of the US Constitution reads, in part: "No person shall be . . . deprived of life, liberty or property, without due process of law." And Article 10 of the Massachusetts Constitution says: "No part of the property of any individual, can, with justice, be taken from, or applied to public uses, without his own consent." In order to take land, in this instance for a baseball park, legislators have a variety of options. City lawmakers could try to take the property without the help of state law, but for legal and practical reasons, the city and state will probably follow the example used in the convention center and draft legislation designating the agency with the most experience at land-taking -- the Boston Redevelopment Authority (BRA) -- to seize the needed acreage. That legislation must also attempt to demonstrate that the stadium constitutes a public purpose.

The mechanics of eminent domain have been treated lightly by the team and the Mayor's Office, but in fact there are three major obstacles to taking land in a bustling urban residential and retail district such as the Fenway. The first is legal -- a recent case in Springfield found that taking private land for a private enterprise (the enterprise in question was, in fact, a ballpark) doesn't fit the definition of "public purpose."

The second is the practical reality of time limitations. Writing the legislation needed to create a land-taking authority and bolster the Red Sox' case is no simple task. The document will probably be 30 to 50 pages long -- and there are only 12 business days before the end of the legislative session. (The stadium bill for the Patriots was much shorter, but it did not contain a land-taking component.) What's more, legislative aides and a spokesperson for the governor say that no one is working on such legislation. In other words, the legislature will have to craft the document amid the chaos of getting the budget approved and other last-minute business before it adjourns for the summer. The last obstacle is political: nine members of the 13-member Boston City Council must approve any eminent-domain action, and the Sox have few friends on the council.

The Springfield case, City of Springfield v. Dreison Investments, provides the legal ammunition to torpedo the Red Sox plans, says Boston attorney Dan Wilson, the founder of Save Fenway Park. "The Springfield case indicates that a ballpark for a professional baseball team is not a public purpose and, therefore, cannot be used to justify the use of eminent domain for land-takings," he says. Other opponents of the current ballpark scheme agree. In a memo that he wrote after the case for opponents of the ballpark plan, attorney Herbert Gleason, a former lawyer for the City of Boston, wrote: "Eminent domain may not be exercised nor may public money be spent on a stadium for the Red Sox unless doing so advances a `public purpose.' "

In any event, the Springfield precedent almost certainly precludes the City of Boston from trying to seize the land for the new ballpark on its own. In that case, Springfield sought to take land owned by three private owners to build a baseball stadium, which would have been owned by a not-for-profit corporation. The Springfield City Council approved an eminent-domain land-taking last September 22. The next day, the mayor approved the action. No state legislation was prepared. Hoping to pre-empt a legal challenge, Springfield filed a suit against the landowners with the Supreme Judicial Court (SJC), which in turn kicked the case down to Hampden County Superior Court Judge Constance Sweeney. Sweeney held that taking land for a baseball stadium did not meet the public-purpose standard.

Although Sweeney's decision is not considered direct precedent -- in other words, local Boston judges do not have to defer to it -- the judge's persuasive reasoning and reliance on long-standing Massachusetts case law mean that anyone involved with the Red Sox' effort for a new stadium will have to contend with it.

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Seth Gitell can be reached at sgitell@phx.com.