Deal breaker, continued

by Seth Gitell

ON THE FENCE: Councilors Stephen Murphy (top) and Jimmy Kelly will probably support the Red Sox' plan for a new park in the Fenway.

In the meantime, opponents of the new ballpark continue to chip away at claims that revenues from a new park will return the public's substantial investment in the project. A recent MassPIRG study shows that the average attendance at baseball stadiums built since 1989 is only 71 percent of capacity. Even Baltimore's Camden Yards, the most trumpeted of the new baseball stadiums, is drawing only 87 percent of capacity. But the Red Sox are making their case -- and basing their financial projections -- on the assumption that they will enjoy 90 percent attendance figures. If they're off by just a few percentage points -- and it could be much worse (see the 50 percent attendance figures at Chicago's new Comiskey Park) -- the public interest surely will not be fulfilled.

Even if the legislature has secretly drafted the needed legislation and Beacon Hill leaders ram it through the legislature by July 31, the Red Sox face one last hurdle: the Boston City Council. One of the lesser-known powers of the council is approval over eminent domain -- city land-takings require approval from two-thirds of the councilors. "It's not clear that they will get the votes," says Councilor Michael Ross, who represents the neighborhood and opposes the plan. Councilors Francis "Mickey" Roache, Chuck Turner, Peggy Davis-Mullen, and Maura Hennigan are said to be leaning against it. Stephen Murphy and Paul Scapicchio are pushing their own scratch-card plan to finance the new ballpark. President James Kelly is on the fence, but leaning toward approving the deal.

Some observers have theorized that the state could do an end run around the city council by writing the legislation in such a way that council approval isn't needed. But the legislature will still need city-council approval for Boston's financial contribution to the project. Either way, nine of 13 councilors must sign off on the deal or it cannot go through.

What's more, even if the legislature drafts the legislation needed to get eminent-domain proceedings under way and the council approves the land-taking, that still doesn't mean the path has been paved to build a new park. Wilson, of Save Fenway Park, thinks the Red Sox will face further legal difficulties in proving that a new baseball park is in the public's best interest. "I don't see how they're going to do it," he says. "They tried that in the 1960s. They tried that in Springfield. It doesn't work. There must be guarantees that the plan is in the public interest. Not some nice language by the legislature."

Wilson's point is reinforced by Charles Ryan, the Springfield attorney who challenged that city's stadium plan. Ryan contends that it is not enough for the legislature to draft legislation to declare the baseball stadium a public purpose. Eventually, the SJC is likely to examine the specifics of the ballpark plan to see whether it really is in the public's economic interest. "The critical thing is that not only does every detail have to be spelled out, with every i dotted and t crossed, it has to be a good deal for the public. It has to be the kind of deal for the public that a reasonable investor would do for himself," Ryan says. "But the problem is, with the City of Boston, money. A reasonable investor doesn't loan $150 million just to get paid back $150 million. If you loan that kind of money, you want security and guarantees, and the prospect of making a sizable return. The SJC will look for that. It's got to be a good business deal from the city's point of view."

Boston mayor Tom Menino isn't moved by these concerns. "You've got to read the Springfield case. They didn't follow proper procedure," he says. "You follow procedure, you'll be okay."

But there's a difference between the proposed ballpark and Boston's most recent example of eminent domain, the convention center. That building will be run by the public -- the Convention Center Authority. In the case of the new ballpark, the Red Sox will continue to own the ballpark and run the club. That won't help the Red Sox in their attempt to push their deal through.

After the legislature is done with the ballpark law, it would be wise for them -- like their counterparts in 1969 -- to ask the SJC for an advisory opinion. If the SJC takes up the issue, its response could govern the eventual success or failure of landowners who challenge the eminent-domain taking on constitutional grounds.

Finally, even if the Red Sox can somehow get all the landowners who own property in the Fenway to sign off on the ballpark plan -- and that is unlikely -- the Red Sox still aren't out of the woods. Wilson and other opponents say the Red Sox could also face a legal challenge in the form of a "10 taxpayer" suit: Massachusetts taxpayers have the standing to challenge public money and land-takings for a new stadium. If the opponents initiate such a lawsuit, that could mean one long, hot summer for the old town team.

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