• Miyares and Harrington, LLP

The Red Sox and Eminent Domain: A Winning Combination

Die-hard Red Sox fans recall when the Red Sox were not terribly successful in reaching the pinnacle of Major League Baseball competition – the World Series. Their lack of success (ultimately, for 86 years), among other factors, caused the Boston Redevelopment Agency (now the Boston Planning and Development Agency) in 2003 to designate the area around Fenway Park as an urban blight. The Agency then exercised its eminent domain authority to take a 10 year easement over Yawkey Way which it sold to the Red Sox to use as an extension of Fenway Park’s concourse. By 2013, the Red Sox had won the World Series twice and arguably the area was no longer blighted. Nevertheless, the BRA exercised its eminent domain authority again to take a permanent easement over Yawkey Way and sold the exclusive use and control of the Way to the Red Sox on all home game days for so long as Major League Baseball games are played at Fenway Park. The BRA did not offer the easement rights to public bidders.

The plaintiff, a local attorney and business owner, sued claiming that he should have been given an opportunity to bid. He also claimed that the BRA exceeded its authority because the area was no longer blighted by 2013.

His complaint was dismissed for lack of standing, a ruling affirmed by the Supreme Judicial Court. Marchese v. Boston Redevelopment Authority, SJC-12659 (September 13, 2019). The plaintiff was neither an owner of, nor an abutter to, Yawkey Way. The sale of the easement rights was exempt from Ch. 30B, the Public Procurement Act, if it was pursuant to a plan approved by an appropriate authorizing agency. Contrary to the plaintiff’s argument, the SJC concluded that the exemption from the procurement statute was not limited to urban renewal plans. As the taking and the sale were pursuant to an approved demonstration project plan of the BRA, it met the criteria for exemption from public bidding.

With regard to the plaintiff’s claim that the area was no longer blighted in 2013, the SJC said that, even if that were true, invalidation of the 2013 taking would result only in reversion of the public way easement to the City. It was entirely speculative that the City would then have offered easement rights to bidders, that the plaintiff would have been the successful bidder, and that he could have obtained permission from the fee owners, one of whom is the Red Sox, to operate concessions. What is of particular interest is that the plaintiff was largely repeating the criticism lodged at the BRA by the State Inspector General. The IG had issued an opinion that the 2003 temporary taking could not be extended, and that a new taking required a finding that the area remained a blighted area in 2013. In that opinion, the IG had concluded that the BRA was required to open the easement rights to public bidders or obtain special legislation in order to ensure fair value was obtained. Of course, the BRA did neither. The IG further criticized the process as rushed, lacking informed judgment, and failing to ensure that the City got fair market value. The SJC did not need to address the IG’s criticisms by holding that the plaintiff lacked standing.



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