Inspector General: Sox Are Not Paying Enough for Yawkey Way

As reported in the Globe, Inspector General Gregory Sullivan, in a letter to the Boston Redevelopment Authority, has called for a better deal with the Red Sox when their current use agreement expires.

The letter can be found here (PDF).

It is a matter of record that the BRA’s takings as well as the licensing agreement were undertaken at the request of the Red Sox’s owners as a “demonstration project.” In the orders of taking, the BRA states it is exercising its power under M.G.L. c.121B §46(f), which allows an urban renewal agency “to develop, test and report methods and techniques and carry out demonstrations for the prevention and elimination of slums and urban blight.”

If the BRA were to seek future rights to Yawkey Way using the methods it employed in 2003, the BRA would have to declare Yawkey Way a blighted area and “detrimental to the safety, health, morals, welfare or sound growth” of the community. The OIG is concerned that such a declaration may expose the BRA to a legal challenge to the finding that Yawkey Way is a blighted area during Red Sox games, given the capital improvements made to the area during the demonstration period and the record of higher than expected revenues during game days.

The transfer of rights to Yawkey Way from the City Council to the BRA and then, in a further step, to a private business, may potentially be deemed unjustified upon judicial review. In 1969, the Supreme Judicial Court expressed skepticism that a bill permitting eminent domain in order to construct a sports stadium was a legitimate public use. In Opinions of the Justices, the SJC opined that the public agency empowered with eminent domain authority must impose “at least the fair market value of the privileges afforded” to the private beneficiaries of the takings (p. 798). In 2000 in the case City of Springfield et al. v. Dreison Investments Inc., a Superior Court case judge prohibited a proposed eminent domain taking in which “the primary beneficiary…was not the public.” (p. 141)

Prediction: This matter (which in theory only affects Boston) will make its way to Beacon Hill, where our fearless state legislators will cave completely and give the Sox whatever they want. To make it look good, they'll knock 10 or 20 percent off whatever the Sox propose, but the Sox will anticipate that in their proposal.

But on the bright side, I'm wrong about everything, so maybe the public good will trump the private business.