Deal breaker, continued

by Seth Gitell

OPPOSED: City Councilor Mike Ross, who represents the Fenway, has said he'll oppose land-takings for a new baseball park.

In her decision, Sweeney traced the history of eminent domain in Massachusetts. In the early part of the century, she wrote, eminent domain was limited to cases of direct public need -- schools, police stations, state hospitals, and the like. Massachusetts courts would not allow land-taking if it worked to the benefit of private individuals or businesses. Later, the courts relaxed that standard to encompass cases where benefit flowed primarily to the public -- even if there were incidental private beneficiaries as well. This gave the government the right, for example, to use public housing authorities to take private land to construct housing projects -- often with the help of specially designated corporations. Finally, the courts expanded this reasoning to apply to "public-private partnerships . . . designed to promote economic revitalization [in] blighted, decadent and substandard areas," according to Sweeney's opinion. Such partnerships were legal only with accompanying state legislation. (It was this line of reasoning that led to the demolition of the old West End -- a move now widely viewed as a mistake.)

Sweeney also recounted an attempt by the state House of Representatives in 1969 to pass legislation that would have allowed for land-taking to build a multi-use stadium in Boston in conjunction with a Worcester toll road. The House asked the Supreme Judicial Court whether it would be constitutional to build such a complex. The SJC rejected the legislators' plan on the grounds that it did not include adequate protection of the public's interest in the stadium. The justices did provide the legislature with the opportunity to rewrite the legislation "to include such statutory principles and standards as will make the construction and operation of the stadium and the arena for a public purpose."

Even more important, the 1969 case raised an important issue that will resonate now: the court said that to be considered legal, any plan to build a stadium must "guard against improper diversion of public funds and privileges for the benefit of private persons and entities." The Red Sox say they need a new ballpark to remain competitive and attract high-priced free agents. Those goals would benefit no one if not "private persons and entities." That's the legal obstacle the Red Sox are facing, and they should take heed from the 1969 case. After that SJC opinion, the Beacon Hill pols shelved their ambitious stadium plans.

What the Springfield case makes clear is that the land-taking legislation must be voluminous if it is to pass constitutional muster. Lawmakers must draft this lengthy document even as they haggle over infrastructure money and the public share of income from the stadium and parking garages. And they must do it by July 31.

If aides to the House Speaker and the Senate president are working on such legislation already, nobody knows for sure. Speaker Tom Finneran's office did not respond to calls seeking comment. Alison Franklin, an aide to Senate president Tom Birmingham, provided a carefully worded formal statement: "Though I cannot comment on the status of legislation relating to a potential Red Sox bill, legal and fiscal issues are being reviewed that could pertain to such a bill should one be filed. At this time, however, the focus of the Office of the Senate Counsel continues to be on legislation that has actually been filed and furthers the Senate President's higher priorities."

Local political observers say this suggests that Beacon Hill drones are busily drafting legislation legalizing the land-taking. "If I were giving an opinion, I'd feel a lot more comfortable if there were a special bill giving me the right to take the land," says Lawrence DiCara, the head of the real-estate department at the law firm Nixon Peabody and a former member of the Boston City Council.

But John Birtwell, press secretary for Governor Paul Cellucci, says work on such legislation has not begun. "Even if the mayor and the Red Sox were able to turn the pumpkin into a coach and the mice into footmen, it will take some time to make this come true," Birtwell says. "There is still the practical concern of having to draft appropriate legislation and making sure it passes muster. And, at least for this administration, we prefer to do it thoroughly, and the clock is ticking." Besides, he points out, it's difficult to start working out land-taking legislation when the financing deal has not yet been struck. "We haven't begun writing legislation for a proposal we have not seen," he says.

If Birtwell is in the know and is to be taken at face value, there is a legislative train wreck coming. Birmingham and Finneran will have to hammer out a complex legislative document in just days. This means all-nighters, secrecy, and lots of smoking on the Senate president's balcony -- in short, everything voters have come to know and hate about Beacon Hill.

The best precedent for the law that Finneran and Birmingham will have to write is 1997's Convention Center Law, Chapter 152 of the Acts of 1997. Printed out, the law has 35 typewritten pages and 29 sections. Much of the convention-center law tries to deal with exactly what the SJC brought up in 1969 -- the public interest inherent in constructing the building in question. It reads in part: "The development of convention and exhibition centers of sufficient size and having adequate facilities to attract and accommodate large national and international groups who wish to conduct conventions . . . is beneficial to the economic development of the commonwealth and its citizens."

The fact that the legislature will have to make such assertions carries some ironies. It means that Finneran, who has made a national reputation as an opponent of using public dollars to build sports stadiums, will have to sign off on language arguing that so much of what he has said over the years was wrong. In a debate about public financing of a new Fenway Park with Boston Globe columnist Will McDonough on a recent David Brudnoy Show on WBZ Radio, Finneran seemed to say that a baseball stadium would provide less public benefit than the convention center. His agreement to statutory language enabling the eminent-domain taking would contradict this.

To buttress their case, state leaders may try to determine that the area around Fenway Park is blighted. But the Fenway neighborhood is rapidly developing on its own (see "Fenway Neighborhood May Be too Expensive for the Red Sox," News and Features, May 26). The SJC may not warm to the idea of taking away one person's property in a hot neighborhood and giving it to another in the name of the public good.

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