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MAHLER.

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KICK ME OUT OF THE BALLGAME:


THE BOSTON RED SOX, THE BRA,
AND THE TAKING OF YAWKEY WAY

Brian Mahler*
Abstract: Since the 1950s, American cities have broadly exercised their
urban renewal powers to revitalize neighborhoods that their municipal
redevelopment agencies have determined to be in blighted condition. The
Boston Redevelopment Authority (BRA) operates as the city of Bostons
urban renewal agency, having the power to buy and sell property, the power
to acquire property through eminent domain, and the power to grant tax
concession to encourage commercial and residential development.

In the fall of 2002, the Boston Red Sox petitioned the BRA designate a
portion of Yawkey Way, a public street running adjacent to Fenway Park, as
a Demonstration Project. The Red Sox paid a licensing fee and promised to
perform street maintenance and landscaping in exchange for the BRA
granting the team exclusive use of the block before and during home games.

This Note investigates whether this taking represented a legitimate


exercise of the BRAs urban renewal powers. The BRA had to find the block
of Yawkey Way blighted to effectuate its taking. A party contesting this
determination would likely not have standing based on a statute of
limitations. Further, a court finding standing would apply an arbitrary and
capricious scope of review and likely give judicial deference to the project.
A court could find bad faith if the financial windfall for the Red Sox proved
to be the dominant reason for the taking, though a court would not declare
the taking invalid if the action indirectly benefited the team while its primary
purpose was to revitalize the city of Boston.

* Candidate for Juris Doctor, New England School of Law (2008). M.A.,
Communications, Culture, and Technology, Georgetown University (2003); B.A., Art
History, University of California, Los Angeles (1997).

549
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550 NEW ENGLAND LAW REVIEW [Vol. 42:549

INTRODUCTION
For almost forty years, the Cask n Flagon, a venerable bar in Boston,
Massachusetts, has operated across the street from Fenway Park, home of
the Boston Red Sox baseball club.1 The team and its fans occupying the
ballpark have both accomplished historic feats in the early years of the
twenty-first century, with the 2004 team winning the Red Soxs first World
Series since 19182 and every home game selling out from May 15, 2003 to
the present day.3 In 2005, the Cask n Flagons owners decided to renovate
the bar to attract this additional foot traffic, installing an outdoor seating
area, contemporary windows, and high definition televisions.4 Newly
constructed bars surrounding have also emerged around Fenway Park,
including Boston Beer Works, also across the street from Fenway Park,5
and Game On!, built within the structural footprint of Fenway Park, and
featuring a two-level interior with numerous high-definition televisions
tuned to sports programming.6
Merchandisers operating near Fenway Park also market to baseball
fans, such as the Souvenir Store, located on Yawkey Way across from the
ballpark, whose owner boasts that the store manufactures and sells more
baseball caps than any competitor in the world.7 In addition, a nightclub
owner operating clubs on Lansdowne Street, which also borders Fenway

1. See About the Cask n Flagon, http://www.casknflagon.com/about.html (last visited


May 9, 2008).
2. See Dan Shaughnessy, YES!!! Red Sox Complete Sweep, Win First Series Since
1918, BOSTON GLOBE, Oct. 28, 2004, at A1, available at http://
www.boston.com/sports/baseball/redsox/articles/2004/10/28/yes/. Numerous books devoted
to the Red Sox ending the eighty-six year inter-generational drought between
championships soon followed. See, e.g., SETH MNOOKIN, FEEDING THE MONSTER: HOW
MONEY, SMARTS, AND NERVE TOOK A TEAM TO THE TOP (2006); BILL SIMMONS, NOW I CAN
DIE IN PEACE (2005).
3. See Brian MacQuarrie & Andrew Ryan, Sox Tickets? Suddenly Theyre Not So Hot,
BOSTON GLOBE, Aug. 31, 2006, at A1, available at http://www.boston.com/sports/
baseball/redsox/articles/2006/08/31/sox_tickets_suddenly_theyre_not_so_hot/ (reporting
that the Red Soxs slide into third place at the end of the 2006 season threatened the teams
consecutive sellout streak at Fenway Park); see also Amalie Benjamin & Gordon Edes,
Buchholz Bound for Some Bullpen Duty, BOSTON GLOBE, Sept. 5, 2007, at 7D, available at
2007 WLNR 17317368.
4. See Bella English, Its a New Ballgame at the Cask, BOSTON GLOBE, May 4, 2006,
Calendar p. 30, available at 2006 WLNR 7704665.
5. See Beer Works, Locations, http://www.beerworks.net/html/locations_fenway.html
(last visited May 9, 2008).
6. See Game On!: The Official Bar of Any Game Thats On!, http://
www.gameonboston.com/home.html (last visited May 9, 2008).
7. See Stan Grossfeld, Hats Off to Him, BOSTON GLOBE, Aug. 3, 2006, at C1, available
at http://www.boston.com/sports/baseball/redsox/articles/2006/08/03/hats_off_to_him/.
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Park, plans to transform the street into an entertainment and dining district
consisting of his two renovated concert halls and five restaurants operating
across from Fenway Park.8
Despite the popularity and emergence of these commercial
enterprises, the Boston Redevelopment Authority (BRA), the city of
Bostons planning and urban renewal agency, found the block of Yawkey
Way adjacent to Fenway Park to be blighted,9 or detrimental to the safety,
health, morals, welfare or sound growth of a community . . . .10 In January
of 2003, the BRA approved a redevelopment project that authorized a
limited taking of the street and leased the streets use to the Red Sox before
and during its eighty one regular season and possible playoff home
games.11 The privatization of this public city street, effectuated by the team
setting up turnstiles at each end and allowing only ticket-holders to enter,
functionally expands Fenway Parks concourse area outside of its limited
structural confines.12 This exclusive use of Yawkey Way generates the Red
Sox additional revenue, as the team and its corporate partners control and
profit on all food and merchandise sales within this area.13 In exchange for
its lease, the Red Sox pay the BRA a licensing fee and pledge to landscape
that portion of Yawkey Way and improve building facades and storefronts
that buttress the street.14
This Note investigates whether the BRAs taking of Yawkey Way
represented a legitimate exercise of its urban renewal powers. Part I
reviews the history of urban renewal in the United States, the meaning of
public use by state and federal courts, and the use of urban renewal as a
means of modernizing city neighborhoods.15 Part II considers urban
renewal in Boston, the establishment and powers of the Boston
Redevelopment Authority, and urban renewal case law in Massachusetts.16
Part III discusses the structural intimacy and restrictions of Fenway Park,
the movement for and opposition to the construction of a new ballpark, the
arrival of new ownership, and the Demonstration Project.17 Part IV
explores whether a party could successfully challenge the Yawkey Way

8. See Keith Reed, Lansdowne Street Clubs to Become Concert Hall, BOSTON GLOBE,
June 1, 2007, at 1C, available at http://www.boston.com/business/articles/2007/06/
01/lansdowne_street_clubs_to_become_concert_hall/.
9. See infra Part IV.C.
10. MASS. GEN. LAWS ch. 121B, 1 (2006).
11. See infra Part III.F.
12. See infra Part III.F.
13. See infra Part III.F.
14. See infra Part III.F.
15. See infra Part I.
16. See infra Part II.
17. See infra Part III.
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taking today. This Note concludes that a court would likely give judicial
deference to the BRA and uphold the Demonstration Project despite
evidence indicating that the taking neither benefits the public nor involves a
blighted area.18

I. URBAN RENEWAL IN THE UNITED STATES

A. Origins of Urban Renewal


Urban renewal has its roots in the rebuilding of Rome during the reign
of Augustus at the dawn of the Common Era.19 Augustus, Romes first
emperor, commissioned new temples and rebuilt old ones, constructed
new theaters, porticos, triumphal arches, altars, streets, and a huge
mausoleum using marble acquired through past conquests.20 These
edifices, both in their numerous quantity and uniform quality, demonstrated
the emperors political supremacy. In the mid-nineteenth century, Baron
Georges Haussmann compared his transformation of Paris to that of
Augustan Rome, which took place following the French Revolution of
1848 and coup detat of 1851 that established Louis Napoleon III as
Emperor of the Second Empire.21 Haussmann renewed Paris by razing
many closed-in quarters and remaking them as part of a greater whole; he
integrated the important public works of his agerailroads, sewers, water
supplyinto the city, he implanted a new commercial city into a decaying
urban fabric and gave it new life, he imposed patterns on Paris that had not
previously existed, and he permanently altered the citys appearance.22

B. Public Use as Interpreted by the States


In the United States, civic planners did not initiate large-scale urban
renewal projects until the twentieth century.23 Nonetheless, the legal
principles underlying these later projects fell under the province of the

18. See infra Part IV.


19. See JOHN W. STAMPER, THE ARCHITECTURE OF ROMAN TEMPLES: THE REPUBLIC TO
THE MIDDLE EMPIRE 105 (2005).
20. Id. Augustus is quoted as boasting: I found a city made of brick and I left it made
of marble. GREGORY S. ALDRETE, DAILY LIFE IN THE ROMAN CITY: ROME, POMPEII, AND
OSTIA 18 (2004).
21. See DAVID P. JORDAN, TRANSFORMING PARIS: THE LIFE AND LABORS OF BARON
HAUSSMANN 8 (1995).
22. Id. at 7. Pariss urban renewal came at the expense of many of the citys lower-class
occupants, forced out of central Paris and into the suburbs. See Architecture of Georges
Haussmann, http://gallery.sjsu.edu/paris/architecture/Haussman.html (last visited May 9,
2008).
23. See infra Part II.B.
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states, such as the acquisition of property by means of eminent domain


[t]he inherent power of a governmental entity to take privately owned
property, esp[ecially] land, and convert it to public use, subject to
reasonable compensation for the taking.24 When a citizen challenged the
taking of his land by a governmental entity, the local court had to define
public use to determine whether the taking was justified under the state
and federal constitutions.25 In Massachusetts, [t]he primary ideological
dispute that developed . . . was between the actual-use and public-
benefit schools.26 While the stricter actual-use school permitted
takings as long as the private beneficiary provided a service that was
accessible to the general public . . . [t]he more lenient public benefit
school . . . weighed whether the taking provided any benefit to the public,
including general economic benefits.27
By the twentieth century, the Massachusetts Supreme Judicial Court
had incorporated the broader meaning of public use into its eminent
domain decisions, deferring to the state legislature when finding that the
general public would receive some sort of benefit.28 For example, in the

24. BLACKS LAW DICTIONARY 562 (8th ed. 2004); see Michael Malamut, The Power to
Take: The Use of Eminent Domain in Massachusetts, 15 PIONEER INST. FOR PUB. POLY
RES., 8 (2000), available at http://www.pioneerinstitute.org/pdf/wp15.pdf.
25. See U.S. CONST., amend. V ([N]or shall private property be taken for public use,
without just compensation.); MASS. CONST. pt. I, art. X. In pertinent part, the
Massachusetts Constitution provides:
[N]o part of the property of any individual can, with justice, be taken
from him, or applied to public uses, without his own consent, or that of
the representative body of the people. . . . And whenever the public
exigencies require that the property of any individual should be
appropriated to public uses, he shall receive a reasonable compensation
therefor.
Id.
26. Malamut, supra note 24, at 5. Two cases of different eras illustrate these divergent
interpretations of public use. In 1891, the Massachusetts Supreme Judicial Court rejected
the expenditure of public money towards the construction of a memorial hall and public
library building that would also accommodate a private association. Kingman v. Brockton,
26 N.E. 998, 998 (Mass. 1891). In 1958, however, the court upheld the use of public money
to finance a municipal auditorium to host public events in addition to conventions that
would provide an incidental benefit to private citizens. Boston v. Merchs. Natl Bank of
Boston, 154 N.E.2d 702, 705 (Mass. 1958).
27. Malamut, supra note 24, at 5 (citing the emergence of railroads and their associated
costs for reasons compelling the use of eminent domains to take private land for private and
public use and benefit) (emphasis omitted).
28. See, e.g., Merchs. Natl Bank of Boston, 154 N.E.2d at 705-06; In re Opinion of the
Justices, 120 N.E.2d 198, 202 (Mass. 1954); Lowell v. City of Boston, 79 N.E.2d 713, 728
(Mass. 1948); Atty Gen. v. Williams, 55 N.E. 77, 77-78 (Mass. 1899).
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1939 case Allydonn Realty Corp. v. Holyoke Housing Authority,29 residents


of the city of Holyoke sought to restrain its housing authority, just
established by statute, from eliminating housing in substandard condition
and considered to be slums in order to construct new low-rent housing.30
The court, however, held that the redevelopment of the property constituted
a public use, since slums affect an entire community, lowering moral
standards, and increasing the cost to all of police, fire and health
protection, and that their elimination directly benefited all people.31
The court further found that the means and ends of slum clearance
coincided with the role of government. A civic project of this magnitude
was a matter not readily approached through private initiative but
demanding co-ordinated effort by a single authority, to be in line with the
purposes of promoting the public safety, health and welfare for which the
government of the Commonwealth was established.32 The court concluded
that [t]he real purpose of the statute is therefore the elimination of slums
and unsafe and unsanitary dwellings, and the provision by public funds of
low-rent housing is only a means by which the main object is to be
accomplished.33

C. Urban Renewal and the Federal Government

1. National Housing Shortages


In the early twentieth century, the federal government began to
undertake its own urban renewal projects.34 Federal participation can be
attributed to the significantly larger role in the economy taken by state and
federal governments that started in the Progressive Era at the turn of the
twentieth century and then expanded considerably during the Depression of
the 1930s and World War II.35 To address a national shortage in decent
and affordable housing during this period, Congress passed a number of
federal housing acts.36 The Housing Act in 1934 established the Federal
Housing Administration, which Congress hoped would stimulate the
housing market by insuring private mortgage loans on residential property

29. 23 N.E.2d 665 (Mass. 1939).


30. Id. at 666.
31. Id. at 668.
32. Id.
33. Id. at 669.
34. See Daniel B. Kelly, The Public Use Requirement in Eminent Domain Law: A
Rationale Based on Secret Purchases and Private Influence, 92 CORNELL L. REV. 1, 9-12
(2006).
35. Malamut, supra note 24, at 6-7.
36. See infra text accompanying notes 37-40.
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and thereby protecting lenders against loss.37 A second Housing Act in


1937 established the Public Housing Administration and the first national
housing program.38 The Act authorized this agency to grant loans to local
programs in order to subsidize the construction of low-rent public
housing.39 Not wanting to flood the market and depreciate housing values,
Congress stipulated in the Act that the construction of new public housing
units [had to] be matched by the removal of an equal number of
substandard dwellings from the local housing supply.40 While intended to
relieve national need for housing, the combined acts did not help those
lower income families most in need of housing.41 Further, these acts not
only reduced the national availability of low-income housing but also
recommended that certain racial groups not live where housing was
available.42

2. The Housing Act of 1949


The federal government sponsored its first urban renewal project
through the Housing Act of 1949, enacted to provide a decent home and a
suitable living environment for every American family.43 Title I of the Act
provided municipalities with federal money for the purpose of eliminating
blight, providing decent, safe, and sanitary housing, and contributing to
planned urban development.44 Congress also indicated that in addition to

37. See National Housing Act of 1934, Pub. L. No. 73-479, 48 Stat. 1246 (codified as
amended at 12 U.S.C. 1701 2000).
38. See United States Housing Act of 1937, Pub. L. No. 75-412, 50 Stat. 888 (codified
as amended at 42 U.S.C. 1401 2000).
39. Id.
40. Texas Low Income Housing Information Service, US Housing Act of 1937,
http://www.texashousing.org/phdebate/past5.html (last visited May 9, 2008).
41. United States Dept. of Housing and Urban Development, Housing and Urban HUD
Historical Background, http://www.hud.gov/offices/adm/about/admguide/history.cfm (last
visited May 9, 2008).
42. See Racial Provisions of FHA Underwriting Manual, 1938, http://
www.public.asu.edu/~wplotkin/DeedsWeb/fha38.html (last visited May 9, 2008)
(recommending that cities enact racially restrictive covenants and ensure that their schools
are not . . . attended in large numbers by inharmonious racial groups.).
43. Housing Act of 1949, ch. 338, 63 Stat. 413, 413-14; see also Robert E. Lang &
Rebecca R. Sohmer, Editors Introduction, Legacy of the Housing Act of 1949: The Past,
Present, and Future of Federal Housing and Urban Policy, 11 HOUSING POLY DEBATE 291,
291-93 (2000), available at http://www.fanniemaefoundation.org/programs/hpd/pdf/
hpd_1102_edintro.pdf.
44. Mark Yessian, Remarks at the Alliance of Boston Neighborhoods Meeting: The
Birth, Transformation, Death and Afterlife of the Federal Urban Renewal Program (Oct. 10,
2002), available at http://www.abnboston.org/publications/2002/1010-urbanrenewal.html
(quoting Housing Act of 1949, ch. 338, 63 Stat. 413, 413-14).
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the clearance of slum and blighted areas, the legislation comprehended the
development and redevelopment of communities and . . . the advancement
of the growth, wealth, and security of the Nation.45
Specifically, the Act required local agencies seeking federal aid to
furnish positive programs of encouraging and assisting the development of
well-planned, integrated residential neighborhoods, the development and
redevelopment of communities, and the production, at lower costs, of
housing of sound standards of design, construction, livability, and size for
adequate family life.46 Local agencies enjoyed broad discretionary powers
when fulfilling this federal mandate and implementing their redevelopment
plans, authorized by the Act to take land by eminent domain, do the
clearance, assemble land, and resell it to private developers; the federal
subsidy was the difference between the cost of that seizure and clearance,
and the proceeds from the resale of the land.47 The public received the
benefit of having blighted housing eradicated from their localities, while
the developers renewal of the urban area meant putting the land to a
productive use.48

3. Berman v. Parker
In 1954, the United States Supreme Court addressed the breadth of a
local agencys urban renewal powers in Berman v. Parker,49 considering
whether a redevelopment project in the nations capital qualified as a
workable program.50 The District of Columbia Redevelopment Land
Agency, established by Congress in 1945, sought to revitalize a section of
the city containing substandard housing and blighted areas . . . injurious to
the public health, safety, morals, and welfare under the doctrine of
eminent domain.51 The agency planned to clear and convey this entire city
parcel to a private developer under the auspices of urban renewal.52
However, its proposal not only called for the taking of a blighted residential
area, but an adjacent area occupied by department stores in operation as
well.53 The stores owners filed suit, claiming that the taking of their
properties violated the Fifth Amendment.54

45. 42 U.S.C. 1441 (2000).


46. Id.
47. Yessian, supra note 44.
48. See id.
49. 348 U.S. 26 (1954).
50. Id. at 28.
51. Id. at 28-29.
52. Id. at 30-31.
53. Id. at 31.
54. Id. at 28.
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The Court affirmed the agencys taking of both private residential and
commercial property for the public purposes offered, so long as the
properties owners were paid just compensation.55 According to the Court,
the legislative enactment of an urban renewal project calls for judicial
restraint when reviewing both the finding of a blighted area and the means
chosen by the government to remedy its condition.56
We deal . . . with what traditionally has been known as the police
power. An attempt to define its reach or trace its outer limits is
fruitless, for each case must turn on its own facts. The definition
is essentially the product of legislative determinations . . . .
Subject to specific constitutional limitations, when the legislature
has spoken, the public interest has been declared in terms well-
nigh conclusive. In such cases the legislature, not the judiciary, is
the main guardian of the public needs to be served by social
legislation . . . .57
The department store owners had contended that the taking of their
productive commercial properties in addition to the blighted residential
area for future use by private developers made the project a taking from
one businessman for the benefit of another businessman.58 The Court,
however, emphasized the projects public purpose, reiterating Congresss
determination that [t]he entire area needed redesigning so that a balanced,
integrated plan could be developed for the region, including not only new
homes but also schools, churches, parks, streets, and shopping centers.59
Urban renewal thus constituted a legitimate means for cities to convert
blighted residential units and adjacent commercial properties into modern
housing and institutional facilities for the purpose of attracting residents,
visitors, corporations, and their respective income.60

II. THE BOSTON REDEVELOPMENT AUTHORITY

A. Precursors to the BRA


Beginning in the 1950s, Boston redevelopers initiated a number of
urban renewal projects to improve the citys aesthetic and financial

55. Berman, 348 U.S. at 35-36.


56. Id. at 34-36; see also Masterman, Culbert & Tully LLP, Boston Mass., Fifty Years of
Massachusetts Urban Renewal, EMINENT DOMAIN BULLETIN, Mar. 2004, available at
http://www.mctlaw.com/march04.pdf.
57. Berman, 348 U.S. at 32.
58. Id. at 33.
59. Id. at 34-35.
60. See id.
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standing.61 In 1959, the Boston Planning Board facilitated the construction


of the Central Artery expressway through the heart of Boston to both
relieve downtown streets of incessant traffic jams and provide suburban
shoppers with a convenient way to enter and exit the city.62 To
accommodate its construction, the Planning Board acquired and
demolished sections of Chinatown and the North End that occupied and
buttressed the expressways future path.63 Furthermore, the expressway
also physically cut off the North End and waterfront district from the rest of
the city upon its completion.64
Local and state officials also sought to modernize the city of Boston
itself.65 While the 1954 National Housing Act emphasized slum prevention
and urban renewal rather than slum clearance and urban redevelopment, the
Act also allowed up to 30 percent federal funding for nonresidential and
industrial projects, provided that they were in line with a workable
program that laid out land-use plans, zoning specifications, relocation of
displaced residents, building codes, and citizen participation.66 Renewal,
however, implicitly mandated the clearance of certain neighborhoods
classified as slums in order to redevelop the area.67 In Boston, the West
End became one of the first neighborhoods targeted by the Boston Housing
Authority for such redevelopment.

61. See THOMAS H. OCONNOR, BUILDING A NEW BOSTON: POLITICS AND URBAN
RENEWAL 1950-1970, 81-86 (1993).
62. See id. at 83. Over time, however, the expressway became one of the most congested
highways in the United States, leading to protracted commutes, high accident rates, and
$500 million in annual congestion costs, while still segregating the North End and
waterfront neighborhoods from downtown Boston. MTA-Project Background, http://
www.masspike.com/bigdig/background/index.html (last visited May 9, 2008). In 1991, the
Massachusetts Turnpike Authority initiated the Big Dig as a solution to this
extraordinary traffic mess, tearing down the overhead highway and replacing it with an
underground expressway following the same path as its forbearer. Id. The Big Dig has led to
massive cost overruns, leaks caused by deficiencies in the waterproofing system, and even
death, when twelve tons of concrete fell from the ceiling of one of the tunnels and crushed a
car driving on the expressway, killing a woman inside. See Ken Maguire, Woman Killed
When Part of Ceiling Falls in Big Dig Tunnel, BOSTON GLOBE, July 11, 2006, at A1.
63. OCONNOR, supra note 61, at 84-85.
64. See id. at 86.
65. See Jeffry M. Diefendorf, Remarks at the Warren Center, Harvard University,
Conference on Reconceptualizing the History of the Built Environment in North America: I
Love that City, but which City?: Urban Change and Urban Identity in Basel, Boston, and
Cologne (Apr. 30, 2005), available at http://www.fas.harvard.edu/~cwc/builtenv/
Paper%20PDFs/Diefendorf.pdf.
66. OCONNOR, supra note 61, at 124.
67. See United States Housing Act of 1949, Pub L. No. 81-171, 63 Stat. 413.
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2. The West End


Bostons West End was once a downtown neighborhood near Beacon
Hill, and formed the subject of Herbert Ganss renowned work The Urban
Villagers.68 Local leaders in the 1950s considered the neighborhood a slum
consisting of narrow, crowded tenements, and streets congested with
people, traffic, and trash that was in need of aesthetic and financial
renewal.69 According to Gans,
the city fathers hoped to replace some of the low-yield areas with
high-rent buildings that would bring in additional municipal
income. Moreover, they believed that a shiny new
redevelopment project would replace its aged, tenement-
dominated skyline, and increase the morale of private and public
investors. This in turn would supposedly lead to a spiral of
further private rebuilding in the city.70
In 1957, the Boston Housing Authority received authorization to raze
and redevelop the West End.71 However, city and state officials soon
realized that the agency could not adequately manage both the citys public
housing and urban renewal programs.72 Instead, a stronger and more
vigorous hand was needed to pull together the various elements of the
citys redevelopment program and to establish Bostons role as a head-
quarters city.73

C. The Establishment of the BRA


The BRA came about by Massachusetts General Laws, chapter 121,
26QQ (the predecessor to the current chapter 121B 4), and a certificate
of organization signed by the secretary of state, pursuant to an approving
vote by the Boston City Council.74 In 1960, the Massachusetts legislature

68. See generally HERBERT J. GANS, THE URBAN VILLAGERS: GROUP AND CLASS IN THE
LIFE OF ITALIAN-AMERICANS (1962) (researching the history, culture, and livelihood of the
Boston West End tenement community ousted from their homes and businesses by urban
renewal and the construction of modern commercial and residential property in their wake).
69. See OCONNOR, supra note 61, at 128-30.
70. GANS, supra note 68, at 285.
71. See OCONNOR, supra note 61, at 126. As early as 1946, the Massachusetts
legislature had granted all of its cities and towns, except for Boston, the right to establish
urban renewal agencies. Morton H. Aronson, The Boston Redevelopment Authority: A
Quasi-Public Authority, 43 B.U. L. REV. 466, 470 (1963).
72. OCONNOR, supra note 61, at 126-27. The Boston Housing Authority had the
responsibility of managing almost 14,000 public housing units, leaving the agency little time
to undertake its urban development obligations. Aronson, supra note 71, at 470.
73. OCONNOR, supra note 61, at 126-27.
74. CYNTHIA M. BARR, BOSTON ZONING: A LAWYERS HANDBOOK 16 (2003)
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abolished the Boston Planning Board and reassigned its powers and
officers to the BRA.75 This legislation also transferred the Boston Housing
Authoritys redevelopment powers to the BRA, making the authority
responsible for city planning, zoning, and urban renewal.76

D. The BRAs Structure and Powers

1. A Quasi-Independent Public Agency


The BRA continues to play a major role in local governance, having
the power to plan, zone, and redevelop Boston as the City of Bostons
Planning and Economic Development Agency.77 A five-member board
heads the BRA, consisting of four members appointed by Bostons mayor
and subject to confirmation by City Council, and one member appointed by
the governor of Massachusetts through the Executive Office of
Communities and Development.78 Beyond these appointments, city
control over the BRA is a consequence of informal relations between city
officials and the directors of the BRA.79 While [c]ity councils elsewhere
in the state can adopt zoning amendments to constrain planning board
actions, the power to adopt and amend zoning code regulations in Boston
falls under the citys Zoning Commission, with the BRA serving as its
planning staff. 80 As a result, the Boston City Council has far less power to
control its planning agency than other cities in the state, a deficit magnified
by the fact that the BRA has the authority to develop and not just plan.81

2. Planning and Zoning Powers Under Article 80


As the citys planning agency, the BRA is responsible for citywide
comprehensive planning, special planning studies, transportation planning,
and zoning.82 The BRA carries out these functions under special
legislation passed by the Massachusetts legislature in 1956. This legislation
is chapter 665 of the Act of 1956, entitled An Act Authorizing the City of
Boston to Limit Buildings According to Their Use or Construction to

75. Id.
76. See id.
77. See Boston Redevelopment Authority, Zoning, http://www.cityofboston.gov/bra/
zoning/zoning.asp (last visited May 9, 2008).
78. BARR, supra note 74, at 17.
79. GERALD E. FRUG & DAVID J. BARRON, BOSTON BOUND: A COMPARISON OF BOSTONS
LEGAL POWER WITH THOSE OF SIX OTHER MAJOR AMERICAN CITIES 687 (2007),
http://www.tbf.org/tbfgen1.asp?id=3481.
80. See id.
81. See id.
82. BARR, supra note 74, at 16-17.
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Specified Districts, otherwise designated as the Enabling Act.83 In


contrast, zoning regulations for all other areas of Massachusetts are
governed by the Zoning Act, Massachusetts General Laws, chapter 40A.84
The Enabling Act established a Zoning Commission with the authority to
adopt city zoning regulations. This commission adopted a Zoning Code that
requires that the Boston Redevelopment Authority review, through a
public process, the design of real estate developments and their effect on
the surrounding community and the City as a whole, and requires
appropriate conditions for approval of such projects.85
Section 1 of the Article 80 of the Boston Zoning Code states that the
development review requirements aim to protect and enhance urban
design quality; to encourage the most appropriate use of land, and to
maintain and improve a healthy economy by augmenting the Citys
attractiveness as a place to live, to conduct business and to visit, among
other specified goals.86 Under Article 80, development review refers to four
separate types of review: (1) Large Project Review, (2) Small Project
Review, (3) Planned Development Area (PDA) Review, and (4)
Institutional Master Plan Review.87

3. Urban Renewal Powers Under Chapters 121A and 121B


In conjunction with its planning and zoning powers, the BRA also
acts as the citys urban renewal agency.88 The BRAs urban renewal
powers are delineated in chapters 121A and 121B of the General Laws of
Massachusetts.89 While chapter 121A projects are primarily conceived of
and implemented by the private corporations which will operate them,
chapter 121B projects are initiated and supervised by public agencies.90
Section 45 of chapter 121B provides the justification for urban renewal,
proclaiming that substandard, decadent or blighted open areas exist in
certain cities and towns in this commonwealth; that each constitutes a
serious and growing menace, injurious and inimical to the safety, health,

83. See 1956 Mass. Acts 665; see also BARR, supra note 74, at 17.
84. MASS. GEN. LAWS, ch. 40A (2006); BARR, supra note 74, at 7.
85. Boston Redev. Auth., supra note 77.
86. Boston Zoning Code and Enabling Act, art. 80-1 (1996), available at http://
www.cityofboston.gov/bra/zoning/downloadzone.asp.
87. Boston Redev. Auth., A Citizens Guide to Development Review Under Article 80
of the Boston Zoning Code, http://www.cityofboston.gov/bra/PDF/Documents/A%20
Citizens%20Guide%20to%20Article%2080.pdf.
88. Boston Redev. Auth., About the BRA, http://www.cityofboston.gov/bra/
HomePageUtils/about_us.asp.
89. See MASS. GEN. LAWS ch. 121A (2006); MASS. GEN. LAWS, ch. 121B (2006).
90. Boston Edison Co. v. Boston Redev. Auth., 371 N.E.2d 728, 739-40 (Mass. 1977).
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morals and welfare of the residents of the commonwealth.91


Section 1 of chapter 121B provides the definitions of the terms
decadent, substandard, and blighted open area.92 A decadent area is
an area which is detrimental to safety, health, morals, welfare or sound
growth of a community.93 The decadence may be caused by dilapidated
buildings on the land which are out of repair, physically deteriorated, unfit
for human habitation, or obsolete . . . or . . . have been torn down and not
replaced and under existing conditions it is improbable that the buildings
will be replaced.94 An area may also be decadent if its irregular lot sizes
or obsolete street patterns make it improbable that the area will be
redeveloped by the ordinary operations of private enterprise.95
Similarly, a substandard area is defined by chapter 121B, 1 as any
area wherein dwellings predominate which, by reason of dilapidation,
overcrowding, faulty arrangement or design, lack of ventilation, light or
sanitation facilities or any combination of these factors, are detrimental to
safety, health or morals.96 Finally, a blighted open area is a
predominantly open area which is detrimental to the safety, health, morals,
welfare or sound growth of a community because it is unduly costly to
develop it soundly through the ordinary operations of private enterprise.97
These excessive costs could arise from the excavation of rock or unsuitable
soil, waterproofing measures, faulty platting, a diversity in the ownership
of plots, deterioration of site improvements, or a substantial change in
business or economic conditions or practices.98
Section 46 of chapter 121B grants the BRA as an urban renewal
agency a number of powers, including the power to determine what areas
within its jurisdiction constitute decadent, substandard or blighted open
areas, and the power to prepare plans to clear those areas, engage in urban
renewal projects and enforce agreements contained in contracts, deeds, or
leases that the agency comprises a party.99 In particular, 46(f) confers
upon urban renewal agencies the power to develop, test and report
methods and techniques and carry out demonstrations for the prevention
and elimination of slums and urban blight.100

91. MASS. GEN. LAWS ch. 121B, 45 (2006).


92. MASS. GEN. LAWS ch. 121B, 1 (2006).
93. Id.
94. Id.
95. Id.
96. Id.
97. Id.
98. MASS. GEN. LAWS Ch. 121B, 1 (2006).
99. Id. 46(a).
100. Id. 46(f).
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While chapter 121B 48 stipulates that no project may be performed


unless and until (1) a public hearing relating to the urban renewal plan for
such project has been held . . . and (2) the urban renewal plan therefor has
been approved by the municipal officers and the department, 46(f)s
demonstrations do not qualify as projects warranting public review. 101
Furthermore, 47 provides that a person aggrieved by the urban renewal
agencys taking or acquisition may petition for judicial review by filing for
a writ of certiorari within thirty days of the agencys publication of the
challenged action. However, the presiding state court may only correct
errors of law.102

E. Chapter 121B Case Law


Local redevelopment agencies in Massachusetts have undertaken
innumerable urban renewal projects under chapter 121B to redevelop areas
determined to be decadent, substandard, or blighted.103 Occasionally,
individuals or corporations challenge an agencys taking of private or
public land, exemplified by three Massachusetts Supreme Judicial Court
cases: Boston Edison Company v. Boston Redevelopment Authority,104
Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Board of
Lawrence,105 and St. Botolph Citizens Committee, Inc. v. Boston
Redevelopment Authority.106 These cases distinguish the differences
between chapter 121A and chapter 121B projects, identify the courts scope
of review of urban renewal projects, address when a plaintiff has standing,
explain when an agency could find the area in need of renewal, and discuss
when an agency has acted in bad faith.107

1. Boston Edison Company v. Boston Redevelopment Authority


In 1977, Boston Edison Company challenged the BRAs approval
under chapter 121A of the construction of an energy plant, an office
building, and related facilities in the Fenway district of Boston.108 The
projects planners envisioned a private charitable corporation composed of
twelve Boston-based institutions operating and maintaining the energy
plant.109 The energy plant would be based within the boundaries of the

101. See Id. 48.


102. Id. 47.
103. See Yessian, supra note 44.
104. 371 N.E.2d 728, 733 (Mass. 1977).
105. 531 N.E.2d 1233, 1239-40 (Mass. 1988).
106. 705 N.E.2d 617, 619 (Mass. 1999).
107. See infra Part II.E.1-3.
108. Boston Edison Co. v. Boston Redev. Auth., 371 N.E.2d 728, 733-34 (Mass. 1977).
109. Id.
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564 NEW ENGLAND LAW REVIEW [Vol. 42:549

Fenway Urban Renewal Area,110 an area previously found decadent, which


resulted in federal approval of the Fenway Plan in 1967.111 This plan
provides for a forty-year period of urban renewal projects, and states as its
goals the stimulation of public, private, and institutional actions to upgrade
the area physically and economically.112 The energy plant resulting from
this project would provide electricity to the twelve participating private
institutions as well as free non-electric services to a nearby public
assistance housing project.113 Boston Edison, a public utility operating in
the city of Boston which included these institutions as part of its customer
base, challenged the BRAs approval of the project on a number of
grounds, including that the area of construction was not decadent or
blighted and that the energy plant did not constitute a public use as required
by state law.114

a. Standing
The Massachusetts Supreme Judicial Court first addressed whether
Boston Edison had standing to challenge the project. While recognizing
that the threat of competition is generally not a sufficient injury to confer
standing, the court distinguished Boston Edisons predicament from
earlier cases where the complaining party lacked standing.115 In those
cases, the plaintiffs challenged decisions allowing the operation of
establishments similar to their own which would compete with them for
business and thus possibly deprive them of revenue.116 In this case,
however, the BRAs proposal would not make the charitable corporation
and Boston Edison compete for consumers, but rather would eliminate
Boston Edison from the energy market within the project area, leading to a

110. The plan covers a large area of Boston, extending from the Riverway, on its
western boundary, to the Hynes Convention Center, on its eastern boundary, and includes
the entire Back Bay Fens and the Longwood Medical area. St. Botolph Citizens Comm.,
Inc. v. Boston Redev. Auth., 705 N.E.2d 617, 619 (Mass. 1999). Fenway Park, located north
of the Riverway, does not fall within these dimensions. See Fenway Cultural District Map,
http://www.fenwayculture.org/map.htm (last visited May 9, 2008).
111. See St. Botolph Citizens Comm., 705 N.E.2d at 619; Boston Edison Co., 371 N.E.2d
at 734.
112. St. Botolph Citizens Comm., 705 N.E.2d at 619. On December 15, 2004, the Boston
City Council approved extensions for a number of urban renewal programs, including the
Fenway Plan, until the year 2015. See Boston Redevelopment Authority, Press Release, City
Council Approves Urban Renewal Extensions, http://www.cityofboston.gov/bra/
press/PressDisplay.asp?pressID=253 (last visited May 9, 2008).
113. See Boston Edison Co., 371 N.E.2d at 733-34.
114. Id. at 735.
115. Id.
116. Id.
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direct and ascertainable loss.117 Therefore, the court decided not to deny
Boston Edison standing even though their claim concerned a loss of market
share.118
The court next considered whether Boston Edison qualified as a
person aggrieved under Statute 960, chapter 652, 13, the applicable
procedural vehicle for persons aggrieved by a BRA vote. 119 This statute
focuses on the powers of the administrative body as defined in the statute,
and . . . the manner in which the statute directs that those powers can be
exercised.120 According to the court, the BRA possessed extraordinary
powers that included the power to approve plans involving the
demolition of existing buildings and the resultant displacement of numbers
of persons and functioning enterprises and the power to grant exemptions
from taxation.121 The court concluded that a person who alleges a
substantial injury as a direct result of the BRAs action constituted a
person aggrieved and would be conferred standing.122

b. Scope of Judicial Review


The court next addressed the proper scope of judicial review of the
BRAs actions.123 While the BRA argued for the court to apply an
arbitrary and capricious standard, the court concluded that [t]he features
of c. 121A projects, both when considered independently and when
compared with those of c. 121B projects, indicate that the broader scope of
review provided by the substantial evidence test . . . is appropriate.124
Unlike chapter 121B projects, chapter 121A projects are privately
planned and initiated and are privately owned throughout their
existence.125 In addition, chapter 121A projects are subsidized by grants
of tax concessions that encourage private corporations to undertake
commercial and real estate development.126 Furthermore, an urban renewal
agency does not supervise every element of the unfolding project.127 If
these projects are to be constructed in Boston, they are only subject to

117. Id. at 736.


118. Id.
119. Boston Edison Co., 371 N.E.2d at 736 (quoting Dodge v. Prudential Ins. Co., 179
N.E.2d 234, 239 (1961)).
120. Id.
121. Id. (internal citation omitted).
122. Id. at 737.
123. Id. at 737-41.
124. Id. at 739.
125. Boston Edison Co., 371 N.E.2d at 739.
126. Id.
127. Id.
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566 NEW ENGLAND LAW REVIEW [Vol. 42:549

review and approval by the BRA and the mayor of the city of Boston.128
Accordingly, the court decided that the substantial evidence test,
requiring that an agencys findings must rest upon such evidence as a
reasonable mind might accept as adequate to support a conclusion,
represented the proper means of analyzing the BRAs approval of the
privately-initiated chapter 121A project.129
Conversely, publicly-initiated projects that fall under chapter 121B
are governed by the arbitrary and capricious standard.130 These types of
projects are initiated by the local redevelopment authority and must be
approved by the city council and an independent State agency, the
Department of Community Affairs.131 Further, these redevelopment
projects involve participation by public agencies, and no tax benefits are
offered to private groups.132 Therefore, agency decisions about chapter
121B projects constituted legislative, not adjudicatory, matters that called
for a lower standard of review.133

2. Benevolent & Protective Order of Elks, Lodge No. 65 v.


Planning Board of Lawrence
In 1988, landowners in the city of Lawrence, Massachusetts sought to
enjoin various agencies from taking their property by eminent domain for
use in a riverfront urban renewal project.134 The project consisted of
developing three parcels of land into: (1) a broad park fronting the
Merrimack River to be created by the Department of Environmental
Management; (2) an educational and recreational area to be controlled by
Emerson College; and (3) a new transportation connector to link the park,
the college campus, and downtown, to be constructed by the city.135 The
court acknowledged that Lawrence, as compared to other Massachusetts
cities, has had serious economic difficulties demonstrated by its rising
unemployment levels and welfare caseloads.136 The plans proponents
hoped that the project would provide a catalyst for development and
economic revival.137 The landowners, however, complained that the

128. Id.
129. Id. at 741 (quoting Bunte v. Mayor of Boston, 278 N.E.2d 709, 711 (1972)).
130. Id. at 740.
131. Boston Edison Co., 371 N.E.2d at 740.
132. Id.
133. Id. at 741.
134. Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Bd. of Lawrence,
513 N.E.2d 1233, 1236-37 (Mass. 1988).
135. Id. at 1237.
136. Id. at 1236-37.
137. Id. at 1237.
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agencies had failed to comply with the procedural requirements enumerated


in Massachusetts General Law chapter 121B.138

a. Jurisdiction and Scope of Review


The Massachusetts Supreme Judicial Court first reiterated that the
superior court has jurisdiction to review an agencys approval of an urban
renewal plan and the purposes for which the land at issue was taken.139 The
court noted that while chapter 121B does not expressly grant the Superior
Court jurisdiction to review the actions of the EOCD and local authorities,
this absence of an express grant does not immunize these actions from
judicial scrutiny.140 Nonetheless, the court held that its inquiry would be
less rigorous than the standard traditionally applied, acknowledging its
earlier determination in Boston Edison that the arbitrary and capricious
standard generally governs judicial review of the specific statutory findings
required by 48.141 The court reiterated that this lower scope of review
was appropriate since such projects require active participation by public
agencies and lack the tax benefits of c. 121A projects.142

b. Finding of Blighted Open Area


The court next addressed whether the local urban renewal agency
could legally take the property at issue by eminent domain, ruling that the
exercise of such power is improper unless the taking is for a public
purpose.143 According to the court, a public purpose included the
redevelopment [of] an area which is a blighted open area as defined by
G. L. c. 121B, 1.144 The court found that the trial judge could have
determined that the land at issue was blighted and open based on a
project area report produced by consultants for the local renewal agency.145
While acknowledging that chapter 121B does not define predominantly
open, the court referenced section 12.01 of the Massachusetts Regulations
Code, which articulated that a blighted open area eligible for Urban
Renewal is one which is not more than thirty percent (30%) built up,

138. Id. at 1236-37.


139. Id. at 1238.
140. Benevolent & Protective Order of Elks, 531 N.E.2d at 1238 (internal citation
omitted).
141. Id. at 1238-39 (quoting Boston Edison Co. v. Boston Redev. Auth., 371 N.E.2d 728
(Mass. 1977)).
142. Id. at 1239.
143. Id.
144. Id. (quoting MASS. GEN. LAWS ch. 121B, 1 (1986)).
145. Id. at 1240.
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568 NEW ENGLAND LAW REVIEW [Vol. 42:549

defined as land containing buildings or other improvements.146 In this case,


the court found less than twenty percent of the project area contained
buildings, qualifying the area as predominantly open.147
The court next considered whether the trial judge properly found that
conditions existing on the land made its character detrimental to the
safety, health, morals, welfare or sound growth of the community.148
Again referencing the consultants report, the court found substantial
evidence that the project area was in a condition detrimental to the city.149
The report cited the areas lack of sufficient street capacity to provide for
further development, ground materials that necessitated blasting or disposal
for their removal, and the failure of private enterprise to revitalize the
area.150 The urban renewal project would revitalize the city by improving
recreational facilities, educational facilities, and traffic patterns.151

c. Planning Boards Finding


The court also found that, in conformity with 48 of chapter 121B,
the urban renewal plan [was] based upon a local survey and conform[ed]
to a comprehensive plan for the locality as a whole.152 The local
development agency spent over three years developing its plan, acquiring
information from city departments, the Lawrence Housing Authority, the
LRA, neighborhood groups, and numerous social agencies in the Lawrence
area.153 In addition, the agency fulfilled the local survey requirement by
considering the consultants report, survey plans, and maps when preparing
its urban renewal plan.154 Therefore, the court agreed that that the area was
blighted and open, making the agencys taking of the area permissible
under the precept of eminent domain.155

d. Standing under Chapter 121B


While the Massachusetts Supreme Judicial Court affirmed the lower
courts finding that the agency properly found the contested area

146. Benevolent & Protective Order of Elks, 531 N.E.2d at 1240 (quoting 760 Mass.
Code Regs. 12.01 (1986)) (internal quotation marks omitted).
147. See id.
148. Id. (quoting MASS. GEN. LAWS ch. 121B, 1 (1986)).
149. Id. at 1241.
150. Id. at 1240-41.
151. Id. at 1241.
152. Benevolent & Protective Order of Elks, 531 N.E.2d at 1241 (quoting MASS. GEN.
LAWS ch. 121B, 48 (1986)).
153. Id. at 1242.
154. See id.
155. See id.
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appropriate for urban renewal, the court disagreed that the landowners did
not have standing in challenging the action.156 The court reaffirmed that
while chapter 121B does not provide persons aggrieved by urban renewal
agency decisions an explicit statutory right to appeal, [a] party has
standing when it can allege any injury within the area of concern of the
statute or regulatory scheme under which the injurious action has
occurred.157 While a landowners right to just compensation when their
land is acquired through eminent domain negates his or her right of
standing on the issue of the projects financial soundness, a landowner may
still challenge the finding that his or her property was eligible for urban
renewal.158 The court confirmed that [the] private rights most clearly
affected by proceedings under 48 are those of owners and tenants of land
in the project area.159 Nonetheless, the court affirmed the lower courts
ruling that sufficient evidence supported the local development agencys
finding that the project area was a blighted open area as defined by 121B
1.160

e. Bad Faith
The court finally addressed the landowners allegations that the
redevelopment agency acted in bad faith.161 While recognizing that
[t]here are certain motives or reasons that would be unlawful if they were
the dominant reasons for [a] taking,162 the court stated that [t]he taking
of land pursuant to a valid redevelopment plan is not void merely because
the disposition of that land indirectly benefits private individuals.163 In this
case, the court reasoned that the citys invitation to Emerson College to
relocate its campus to the project area did not amount to bad faith.164 The
city had attempted to redevelop the area and construct a riverfront park
years before officials learned of the colleges interest in moving its campus
from downtown Boston to a more expansive location.165 The court agreed
with the trial judges assessment that the predominant motive behind the
project was to eliminate a blighted open area and thus enhance the sound

156. Id. at 1242-43.


157. Id. at 1243 (internal quotation marks and citation omitted).
158. Benevolent & Protective Order of Elks, 531 N.E.2d at 1243.
159. Id. at 1243.
160. Id. at 1246.
161. Id. at 1246-47.
162. Id. at 1246 (quoting Pheasant Ridge Assocs. Ltd. P'ship v. Burlington, 506 N.E.2d
1152, 1156 (1987)) (alterations in original).
163. Id. at 1246.
164. Benevolent & Protective Order of Elks, 531 N.E.2d at 1246.
165. See id. at 1247.
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570 NEW ENGLAND LAW REVIEW [Vol. 42:549

growth of the city of Lawrence.166

3. St. Botolph Citizens Committee, Inc. v. Boston


Redevelopment Authority
In 1999, a neighborhood association challenged the Boston
Redevelopment Authoritys alteration to its Fenway Urban Renewal Plan to
accommodate the development of new residential units.167 The plan, in
effect until April 2007, called for the BRA to select twenty-three parcels
for acquisition and redevelopment.168 If a developer purchased property
located on one of these parcels, the developer had to act in compliance with
the planning and design requirements as well as floor area measurements as
specified in the plan.169 At the same time, BRA urban renewal plans, based
on their longevity, have provisions which provide for modification of the
plans after their initial approval to address changes in economic realities
and urban conditions.170
In this case, a hotel owner occupying one full parcel wanted to
convert his hotel into a residential apartment building.171 The owners
developer requested that the BRA amend the Fenway Plan by eliminating
the maximum floor area ratio requirement previously designated for this
site, and that it authorize an order of taking, exercising the BRAs eminent
domain powers, to acquire some small parcels (Sliver Parcels) owned by
the city for conveyance to the developer for inclusion in the project.172
Pursuant to Article 31 of the Boston Zoning Code (superseded by Article
80 in 1996), the BRA oversaw a Development Review Procedure that
comprised of public comments, an open public meeting, and consultation
with other municipal agencies before issuing an adequacy determination, a
decision similar to a municipal planning boards site plan review. 173

a. BRAs Adequacy Determination


The court first dismissed the associations claim challenging the
BRAs adequacy determination concerning the Fenway Plans

166. Id.
167. St. Botolph Citizens Comm., Inc. v. Boston Redev. Auth., 705 N.E.2d 617, 618,
620 (Mass. 1999); see also Boston Edison Co. v. Boston Redev. Auth., 371 N.E.2d 728, 734
(1977) (setting forth the criteria by which the Fenway plan might be approved).
168. St. Botolph Citizens Comm., 705 N.E.2d at 619.
169. Id.
170. Id.
171. Id.
172. Id. (internal citations omitted).
173. Id. at 619-20.
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modification.174 The court found that [i]n deciding whether an adequacy


determination should issue, the BRA is acting exclusively in its capacity as
the planning board for Boston.175 As the planning board, the BRA
examines a proposal to determine its feasibility and impact on the
surrounding community.176 After a favorable review process, the developer
must take additional steps before receiving final approval and receiving a
building permit from the inspectional Commissioner.177 Aggrieved persons
may only object to a developers plan by requesting that the Commissioner
deny the permit or by contesting the issuance of the permit.178 In dismissing
the Committees claim, the court held that the enumerated means of review
ensur[es] that an otherwise feasible project . . . will not be delayed by
possibly lengthy legal proceedings when the project is still at a preliminary
stage in the extensive process that must be completed before a G.L. c. 121B
urban renewal project can be approved in Boston.179

b. Standing
The court next determined that the Committee lacked standing in
regards to its remaining counts that concerned decisions of the BRA solely
in its capacity as an urban renewal agency under G.L. c. 121B.180 While
the Committee argued that the right to appeal chapter 121A projects should
also be applied to chapter 121B projects, the court reiterated the procedural
differences between privately-initiated and publicly-initiated projects
pursuant to their respective chapters.181 The court further stated that the
state legislature explicitly foreclosed a right of appeal from BRA
decisions in its capacity as an urban renewal agency.182
The court also rejected the Committees argument that the court had
granted all aggrieved persons the right of appeal in its earlier decision of
Benevolent & Protective Order of Elks Lodge No. 65 v. Planning Board of
Lawrence, where the plaintiffs were landowners whose property was taken
by eminent domain for an urban renewal project.183 Once again

174. St. Botolph Citizens Comm., 705 N.E.2d at 620.


175. Id. at 621.
176. See id.
177. Id. at 622.
178. Id.
179. Id. at 622.
180. St. Botolph Citizens Comm., 705 N.E.2d at 623.
181. Id.
182. Id.
183. Id. at 623-24; see also Benevolent & Protective Order of Elks, Lodge No. 65 v.
Planning Bd. of Lawrence, 531 N.E.2d 1233, 1242-43 (Mass. 1988) (holding that
lawndowners have standing to challenge the EOCDs finding determining that their land is
eligible to be taken for an urban renewal project by eminent domain); supra Part II.D.2
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572 NEW ENGLAND LAW REVIEW [Vol. 42:549

acknowledging that chapter 121B did not contain an explicit right of


appeal, the court reasoned that, in Elks Lodge, judicial review was
nevertheless proper because the plaintiffs were questioning the public
purpose for which their land was being taken, and claiming a violation of
their constitutional rights.184 In this case, however, the court held that the
Committee was neither challenging a taking. . . . [Nor] claiming a
violation of any constitutional right, but instead disputing modifications to
the established urban renewal plan and their subsequent approval by the
BRA.185 According to the court, almost all BRA decisions involving the
management of urban renewal areas were policy matters that fell outside
the range of judicial review.186

III. THE BOSTON RED SOX AND FENWAY PARK

A. A Lyric Little Bandbox of a Ballpark


In 2003, the BRA decided to issue an order for the taking of a portion
of Yawkey Way, a public street that runs alongside of Fenway Park, the
home ballpark of the Boston Red Sox.187 Fenway Park opened on April 20,
1912, and is the oldest ballpark still in active use in Major League
Baseball.188 The ballpark is the last park from the Golden Age of
baseball parks (1909-15). . . . [N]otable for their convenient urban
locations, a desire to place seats as close to the playing field as possible,
classical architectural detail, and larger (for their day) capacities.189
John Updike christened Fenway Park as a lyric little bandbox of a
ballpark, for its beguiling green hue and distinctive dimensions.190
Shoehorned within Lansdowne Street, Ipswich Street, Van Ness Street,
and Yawkey Way,191 the ballpark was built within an existing street

(discussing Benevolent and Protective Order of Elks, Lodge No. 65 v. Planning Bd. of
Lawrence).
184. St. Botolph Citizens Comm., 705 N.E.2d at 624.
185. Id.
186. Id.
187. See infra Part III.F.3; see also The Official Site of The Boston Red Sox: Ballpark:
Fenway A-Z Guide, http://boston.redsox.mlb.com/bos/ballpark/guide.jsp (last visited May
9, 2008).
188. Save Fenway Park!, The Significance of Fenway Park, http://
www.savefenwaypark.com/Significance.htm (last visited May 9, 2008).
189. Id.
190. Save Fenway Park!, Recent Renovation Related Articles, http://
www.savefenwaypark.com/news_detail.cfm?ID=268&SORTBY=ID%20DESC (last visited
May 9, 2008).
191. See The Official Site of the Boston Red Sox: Tickets: Seating and Pricing Chart,
http://boston.redsox.mlb.com/bos/ballpark/seating.jsp (last visited May 9, 2008).
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pattern, resulting in an oddly shaped footprint and a unique field


configuration.192 Fenway Parks structural uniqueness brings spectators
close to the game, as the grandstand seats closely wrap around the field,
while the outfield bleacher seats primarily consist of one level of seating.193
In contrast, more modern stadiums boast spacious foul territory between
the first and third baselines and the bordering seating areas, while also
having upper decks that provide for larger attendances and gate receipts.194
Although the Red Sox have recently completed minor expansions of
Fenway Park, such as adding seats both above the Green Monster (the
famous left-field outfield wall) and atop the right-field grandstand seats, the
ballpark only seats approximately 36,000 fans per game, making it today
one of the smallest seating ballparks in Major League Baseball.195

B. New Fenway Park


Although the Red Sox consistently had the most expensive tickets in
all of baseball,196 the teams ownership in the 1990s complained that the
physical limitations of Fenway Park cut into the teams value both on and
off the field.197 During this period, a number of teams had generated
increased revenues by moving into newer and larger facilities, leasing
luxury boxes to fans who could afford their expensive prices, and providing
better seating to additional fans.198 According to John Harrington, the Red

192. Save Fenway Park!, supra note 188.


193. See Boston Red Sox, Tickets: Seating and Pricing Chart, supra note 191.
194. Many cities and teams constructed multipurpose mega-stadiums . . . in the 1960s
and 1970s to accommodate 50,000-60,000 fans a game, such as the Kingdome in Seattle
and Jack Murphy/Qualcomm Stadium in San Diego. These multi-use stadiums are gradually
being replaced by retro ballparks, such as Camden Yards in Baltimore, Jacobs Field in
Cleveland, and PNC Park in Pittsburgh, that possess the intimacy of classic ballparks such
as Fenway Park and Wrigley Field, the latter built in 1914. While these newer ballparks are
smaller than their multipurpose predecessors, they all have a greater seating capacity than
Fenway Park. See Save Fenway Park!, supra note 188.
195. See The Official Site of the Boston Red Sox: Ball Park: Fenway Facts,
http://boston.redsox.mlb.com/NASApp/mlb/bos/ballpark/facts.jsp (last visited on May 9,
2008).
196. See Doug Pappas, The Numbers (Part One): Gate Receipts,
BASEBALLPROSPECTUS.COM, Dec. 7, 2001, http://www.baseballprospectus.com/
article.php?articleid=1294; see also Chris Isidore, Ticket Prices Going, GoingUp,
CNNMONEY.COM, Apr. 3, 2006, http://money.cnn.com/2006/04/03/news/baseball_tickets
/index.htm.
197. See Doug Pappas, The Emperor Has No Clothes, Part 5, BOSTON BASEBALL, Aug.
1999, available at http://roadsidephotos.sabr.org/baseball/bb99har-5.htm.
198. For example, the Baltimore Orioles moved into Camden Yards in 1992, the
Cleveland Indians moved into Jacobs Field in 1994, the Colorado Rockies moved into Coors
Field in 1995, while the Pittsburgh Pirates and Milwaukee Brewers were planning to move
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574 NEW ENGLAND LAW REVIEW [Vol. 42:549

Soxs principal owner at the time, the unavoidable realities of our beloved
but structurally obsolete Fenway Park required the team to own and
operate a new ballpark in order to remain both financially profitable and
athletically competitive.199
The Red Sox ownership announced its intention in 1998 to remain in
the Fenway neighborhood by building a new stadium directly across the
street from the original ballpark.200 Although the proposed site was
inhabited by a number of privately owned and established businesses, the
team hoped that the city would seize the land by eminent domain, demolish
the existing structures, and clear the land for construction.201 The Red Sox
forecasted that New Fenway Park would cost approximately $600
million, covering land acquisition, ballpark construction, infrastructure
improvements, and parking garages.202 Team ownership proposed to
finance the stadiums construction if the state of Massachusetts and city of
Boston contributed the remaining funds for land acquisition and
infrastructure improvements.203
The envisioned retro-chic new stadium would be a classic open-
air ballpark modeled after Fenway Park, recreating the intimacy and unique
dimensions, while providing . . . all the amenities of a modern facility.204

into their new ballparks. See Jacob Luft, In with the New: Recent History Favors Teams
with New Ballparks, CNNSI.COM, Feb. 12, 2001, http://sportsillustrated.cnn.com
/statitudes/news/2001/02/11/newstadiums_first/index.htm; see also Nathan R. Scott, Take
Us Back to the Ball Game: The Laws and Policy of Professional Sports Ticket Prices, 39 U.
MICH. J.L. REFORM 37, 42 (2005).
199. John L. Harrington, Op-Ed., Staying the Course on New Park, BOSTON GLOBE, Jan.
8, 2001, at A11, available at 2001 WLNR 2272254.
200. See Anthony Flint, Sox Appear Set to Swing Away on Fenway Plan, BOSTON GLOBE,
July 6, 1998, at A1. Red Sox ownership envisioned a replacement stadium similar in
design to the retro-style ballparks of Camden Yards in Baltimore and Jacobs Field in
Cleveland. It would have been built on 15.5 acres bounded by Yawkey Way, Brookline
Avenue, and Boylston Street, retained the old field dimensions and made to look like
Fenway. New Fenway Park, http://www.ballparks.com/baseball/american/bosbpk.htm (last
visited May 9, 2008).
201. See Richard Kindleberger, Red Sox Could Face Battle in Acquiring Properties Deals
Must Be Reached with 14 Land Owners, BOSTON GLOBE, May 17, 1999, at A7, available at
1999 WLNR 2443307; see also Dan Wilson & Paul Shannon, Op-Ed., The Only Solution:
Rebuild Fenway, BOSTON GLOBE, June 18, 2001, at A11, available at 2001 WLNR
2229800.
202. See ROB SARGENT, MAJOR LEAGUE STEAL: THE ECONOMIC FOLLY OF PUBLIC
SUBSIDIES FOR A NEW RED SOX STADIUM 3 (2000), http://www.fenwayaction.org
/darchive/mlsteal.pdf.
203. See id.; Richard M. Perlmutter, From Blueprints to Bricks: A Survey of Current
Baseball Stadium Financing Projects: Boston, 34 URB. LAW. 335, 339 (2002).
204. Perlmutter, supra note 203, at 336 (quoting architects of HOK Sport) (omission in
original).
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The stadium would welcome fans in from Yawkey Way, share the same
field dimensions as its predecessor, and have its own Green Monster
situated in left field, with the landmark CITGO sign above its horizon.205
At the same time, the stadium would fit 45,000 fans into its spacious
confines, some occupying one of the stadiums one hundred luxury
boxes.206

C. Opposition to the New Ballpark

1. Community Associations
While the Red Soxs proposal received support from civic groups,
such as the Greater Boston Convention and Visitors Bureau and the Greater
Boston Chamber of Commerce,207 a number of community associations
sprung up to protest the plan and its exorbitant social and financial costs.208
Save Fenway Park!, an association formed by preservationists and baseball
fans, extolled the historical significance of the ballpark, calling for the city
to preserve the unique character of Fenway Park while allowing for its
modernization and expansion to meet contemporary needs and respecting
the urban neighborhood surrounding the park.209 The Fenway Action
Coalition, a community activist group in the Fenway, argued that a massive
new stadium-shopping complex would exacerbate traffic control and
pollution problems and threaten the survival of the residential portions of
the neighborhood.210 These and other local and state organizations against
New Fenway Park formed a coalition called Citizens Against Stadium
Subsidies to challenge this potential abuse of government resources and
land-taking powers that perceivably benefited a private corporation at the

205. New Fenway Park, http://www.ballparks.com/baseball/american/bosbpk.htm (last


visited May 9, 2008).
206. Id.
207. Perlmutter, supra note 203, at 336-37.
208. See infra text accompanying notes 209-211.
209. Save Fenway Park!, Who We Are, http://www.savefenwaypark.com/about.cfm (last
visited May 9, 2008).
210. Fenway Action Coalition, Position Paper on a Proposed New Red Sox
Stadium/Megaplex (on file with author); see also Anthony Flint, Planning the Fragmented
Metropolis: Acting Regionally and Locally, in GOVERNING GREATER BOSTON: THE POLITICS
AND POLICY OF PLACE, 191, 205-207 (Charles C. Euchner ed., 2002).
Activists in the Fenway neighborhood opposed the project from the
start. . . . Neighbors complain that a larger stadium45,000 seats versus
the current 33,000would overwhelm an area already congested with
traffic generated by the Longwood Medical Area, Boston University and
Northeastern University, museums, and commuters and visitors.
Id. at 205.
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expense of the public.211

2. Legal Obstacles

a. 1969 Opinion of the Justices


The Red Sox also faced legal obstacles in obtaining public funds to
finance their private enterprise.212 While other states and their
municipalities built publicly-funded sports stadiums with little or no
judicial opposition, [p]ublic financing of new sports facilities in
Massachusetts runs into withering case precedent, constitutional
prohibition, and political hostility.213 The Massachusetts Supreme Judicial
Court, historically deferring to legislative determinations that an anticipated
public use of blighted private property justified its taking, refused to
extend this reasoning to the realm of professional sports stadiums.214
In its 1969 Opinion of the Justices, the court responded to the states
House of Representatives request to rule on the constitutionality of a bill
that would provide public funding to the Massachusetts Turnpike Authority
for the financing, construction, maintenance, repair, and operation of a
stadium complex and arena.215 The pending legislation pronounced an
acute . . . need for a large multi-purpose stadium that would benefit state
residents by hosting rallies, conventions, meetings, concerts, and
recreational activities, including shows, expositions, and professional and
amateur athletic events.216
Although the court found that the provision of such facilities . . . is
not as clearly and directly a public purpose as supplying housing, slum
clearance, mass transportation, highways and vehicular tunnels, educational
facilities, and other necessities, athletic facilities could serve a public
purpose if the expenditure of public funds, the extension of public
privileges, powers, and exemptions, and the use, rental, and operation of
the projects are adequately governed by appropriate standards and
principles set out in the legislation.217 However, if a stadium was
constructed and put to use to subsidize private organizations operated for

211. Randy Divinski, Saving Fenway Park, ELYSIAN FIELDS QUARTERLY: THE BASEBALL
REVIEW, available at http://www.efqreview.com/NewFiles/v17n4/treasures-savingfenway
(last visited May 9, 2008).
212. See supra and infra text accompanying notes 193-219.
213. Perlmutter, supra note 204, at 337.
214. Brian Adams, Note, Stadium Funding in Massachusetts: Has the Commonwealth
Found the Balance in Private vs. Public Spending?, 51 CATH. U. L. REV. 655, 673 (2001).
215. Opinion of the Justices, 250 N.E.2d 547, 547 (Mass 1969).
216. Id. at 558 (internal quotation marks and citations omitted).
217. Id.
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profit, then the facilities could not be said to exist for a public purpose,
despite the type of legislative declarations.218 In this case, the court found
that the bill failed to contain any procedural safeguards ensuring its public
use and that private entities would not predominantly use the publicly
funded stadium for their own financial benefit.219

b. City of Springfield v. Dreison Investments, Inc.


In the midst of the Red Soxs lobbying efforts for public financing, a
Massachusetts Superior Court decided City of Springfield v. Dreison Invs.,
Inc.,220 invalidating the city of Springfields use of eminent domain to
acquire private property for the construction of a new stadium.221 The
Springfield City Council first planned to condemn privately-owned
property located in its central business district for municipal purposes.222
The city then planned to lease the property to a non-profit corporation
without receiving any monetary compensation in return, followed by the
corporation constructing a stadium on the seized land for its minor league
baseball franchise.223
In finding that the private use of the stadium would prevail over its
public use, the court invoked the Supreme Judicial Courts absolute
prohibition of the potential private windfall that might result if the public
interest was not protected by having the facilities generally available to a
diversity of users on a fair basis, rather than being exclusively at the
disposal of the team.224
The city conceded that the taking was not made pursuant to chapter
121B.225 According to the court, public-private partnerships designed to
promote economic revitalization of blighted, decadent and substandard
areas meet public purpose requirements when the legislation that gave rise
to those partnerships provided appropriate controls and oversight to protect
the primacy of the public interest.226
In this case, the court found that the city had circumvented urban
renewal law by attempting to seize the land without adhering to chapter
121Bs notice, hearing, and finding requirements and then misrepresenting
the land as being in a decedent, substandard, or blighted condition. The

218. Id. (emphasis added).


219. See id. at 559-60.
220. 11 Mass. L. Rptr. 379 (Mass. Super. Ct. 2000).
221. Id. at 379.
222. Id. (internal quotation marks omitted).
223. Id.
224. Perlmutter, supra note 203, at 338.
225. Dreison Invs., 11 Mass. L. Rptr. at 396.
226. Id. at 401.
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578 NEW ENGLAND LAW REVIEW [Vol. 42:549

court also found that the corporation, rather than the city, would receive the
bulk of the economic benefits resulting for the taking, and concluded that
the city had acted in bad faith.227 As a result, the Springfield stadium was
never built.228 The new Fenway Park looked to suffer the same fate without
the state, city, and team all sharing the costs, along with the public
receiving some benefit from governmental expenditures.229

D. Massachusetts General Law Chapter 208


Political infighting among city and state leaders stalled the adoption
of a financial package sufficient to finance New Fenway Park.230 While
Boston Mayor Thomas Menino pushed for some public funding of the
project,231 House Speaker Finneran decried the use of any public funds for
private sports facilities when speaking in both the state and national
capital.232 On August 10, 2000, however, proponents of the project
celebrated when Governor Paul Cellucci signed into law Massachusetts
General Law chapter 208, entitled An Act Relative to the Construction
and Financing of Infrastructure and Other Improvements in the City of
Boston and Around Fenway Park.233 The Act codified the state
legislatures conviction that the construction within the city of Boston of a
new open air ballpark of sufficient size and with adequate support facilities
to attract, retain, and accommodate professional teams shall significantly
enhance the economic development and the general welfare of the

227. Id. at 405.


228. Adams, supra note 214, at 675.
229. See Perlmutter, supra note 203, at 338-39. House Speaker Thomas M. Finneran
vehemently opposed the use of taxpayer money for the construction of privately-owned
sports stadiums, almost resulting in the professional football team New England Patriots
moving from Foxboro, Massachusetts, to Connecticut. See id. The so-called Finneran
Principles guidelines limiting public investment in stadium projects to public
infrastructure improvements and demanding an established revenue stream to repay such
investmentswere endorsed by the legislature in May 1999. Id. at 339. The state
legislature drafted a statute authorizing the use of public funds to finance wide-scale
infrastructure improvements around a new football stadium. See The Patriots Nix Hartford,
Stay in Foxboro--Background, http://www.sportslawnews.com/archive/articles%201999
/Patriots1.html (last visited May 9, 2008). In turn, Patriots ownership decided to stay and
build a new football stadium across from its predecessor. See id.
230. See Meg Vaillancourt, Estimates Rise amid Wait for Sox Funds Plan, BOSTON
GLOBE, Feb. 9, 2000, at D1, available at 2000 WLNR 2269242.
231. See Meg Vaillancourt, Mayor Seeks Pact on Fenway Funding, BOSTON GLOBE, May
21, 2000, at A1, available at 2000 WLNR 2282459.
232. See Adams, supra note 214, at 682-83.
233. 2000 Mass. Acts 208. The Fenway bill took considerable time to complete due to
political infighting among state and city leaders. See Vaillancourt, supra note 230.
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commonwealth.234 The Act authorized the Economic Development and


Industrial Corporation of Boston to spend up to $100 million raised by state
bonds to finance transportation infrastructure improvements.235 The Act
also permitted the city of Boston to issue bonds to raise $140 million to
finance land acquisition, the relocation of persons and businesses currently
on the land, and environmental cleanup costs in preparation of building a
new ballpark.236

E. New Ownership and Opinions About Fenway Park


Although the Massachusetts legislature approved $100 million in site-
specific aid for infrastructure costs, the Red Sox ownership struggled to
acquire the $350 million in private financing to actually construct the
ballpark.237 In October 2000, the ownership decided instead to put the team
and its assets up for sale.238 In the frenzied auction that followed, it
became apparent that the franchise would command an astronomically high
price that could severely limit the ability of the new owners to service the
$350-$400 million of debt necessary to build the new Fenway.239
Furthermore, the Boston City Council in October 2001 voted 7-6 in favor
of a resolution that opposed any eminent domain land takings in the
Fenway neighborhood for a new stadium.240 Therefore, the commercial
property occupying the project area would have to be privately purchased
by the team rather than acquired by the city on its behalf.
In December 2001, John Henry and a team of investors agreed to pay
$700 million to buy the Red Sox, Fenway Park, and an 80% share of the
cable television New England Sports Network.241 Henrys bidding group
also pledged to spend $300 million to renovate the original Fenway Park
rather than build a new stadium and relocate the team.242 While the former
ownership had told fans and politicians the ballyard was crumbling and it

234. 2000 Mass. Acts 208, 1(a).


235. Id. 2, 5, 7, 8.
236. Id. 4-5.
237. See Meg Vaillancourt, High Bidder Could Force Sox to Move, BOSTON GLOBE, June
7, 2001, at C1, available at 2001 WLNR 2231622.
238. See Meg Vaillancourt, For Sale: Olde Towne Team, BOSTON GLOBE, Oct. 7, 2000, at
A1, available at 2000 WLNR 2279990.
239. Perlmutter, supra note 204, at 341; see also Beth Healy, Werner and Henry: Current
Owner Added to Bolster Lineup, BOSTON GLOBE, Dec. 10, 2001, at A16, available at 2001
WLNR 226003.
240. Save Fenway Park, Presidents Letter, http://www.savefenwaypark.com/FAQ.html
(last visited May 9, 2008).
241. Flint, supra note 210, at 205-07.
242. Cosmo Macero Jr., Owners-To-Be Consider Ballpark Options, BOSTON HERALD,
Dec. 22, 2001, at 22, available at 2001 WLNR 26955.
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580 NEW ENGLAND LAW REVIEW [Vol. 42:549

was neither practical nor financially feasible to renovate it, the new and
present owners realize Fenways quirks and storied past make it a
shrine . . . . They think they can shore up Fenways weaknesses, such as
limited seating capacity and cramped concession areas, without sacrificing
its strengths.243

F. The Yawkey Way Club

1. Application for Small Project Review and Demonstration


Project
On October 22, 2002, Larry Lucchino, President and CEO of the Red
Sox, submitted to the BRA an Application for Small Project Review /
Demonstration Project: Proposed 2003 Interim Ballpark Improvements. 244
The Red Sox termed these projects as a stand-alone, interim series of
improvements that are consistent with the existing capacity and physical
limitations of the park and provide an immediate upgrade to the fan
experience, without a material impact to the surrounding neighborhood and
businesses.245 These projects consisted of two components: (1) new
seating areas above the Green Monster outfield wall in left field and atop
the right field roof, and (2) the expansion of the ballparks concourse
area.246
According to the Red Soxs application, [t]he Fenway Park
concourse has the most limited area for fan amenities, concessions,
restrooms and circulation of any park in Major League Baseball.247 In
addition to wanting to expand the bleacher concourse area behind right
field, the team asked to use the block of Yawkey Way running from
Brookline Avenue at Gate A to Van Ness Street at Gate D as part of its
stadiums concourse during home games.248 This agreement would make
permanent a practice the team had tried out at the end of last season: using
portable turnstiles to restrict Yawkey Way to ticketholders before and
during home games and filling the street with Red Sox-sponsored
concession stands, entertainment, and exhibits designed to enlarge the
cramped concourse of the smallest ballpark in baseball.249

243. Scott S. Greenberger, New-Fenway Push by Former Owners Called Into Question,
BOSTON GLOBE, July 1, 2002, at A1, available at 2002 WLNR 2608041.
244. Application for Small Project Review / Demonstration Project, Boston Red Sox,
Proposed 2003 Interim Ballpark Improvements 1, 2 (Oct. 22, 2002) (on file with author).
245. Id. at 5.
246. Id. at 6-8.
247. Id. at 8.
248. See id.
249. Scott S. Greenberger, Red Sox, BRA Reach Deal on Yawkey Way, BOSTON GLOBE,
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2. Yawkey Way and chapter 121B 46(f)


The Red Sox asked the BRA to designate the portion of Yawkey Way
bordering Fenway Park as a Demonstration Project pursuant to chapter
121B 46(f), which authorizes 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.250 In exchange for
use of one block of Yawkey Way to bring the game to the street, and to
carry out the streetscape improvements, the Red Sox would make specific
repairs to Yawkey Way, including landscaping, lighting, and special
amenities.251 The team also promised improvements to [building] facades
and store fronts to present an attractive visual connection to the
improvements being proposed on Yawkey Way, agreeing to spend $2
million on these redevelopment projects.252
Local neighborhood associations protested the exercise of the BRAs
urban renewal power to seize the public street, including the Alliance of
Boston Neighborhoods (ABN), a federation of neighborhood associations
created to promote meaningful public process in planning, zoning,
development, licensing, transportation, and other common issues.253 On
November 22, 2002, the ABN wrote a letter to the BRA requesting that the
city authority fully disclose its intended actions and evidentiary showings
concerning the BRAs seizing of Yawkey Way.254 According to the ABN,
the taking would
eliminate City Councils control over . . . this City-owned
(i.e., taxpayer-owned) land;
take by eminent domain public land . . . already available
for public [use] . . . and turn it into a redevelopment parcel
for private use[;]
eliminate a public circulation route[;]
take City property without just compensation[;]
divert any revenues from sale or rent of the space from the
City treasure to the BRA; and

January 16, 2003, at B1, available at 2003 WLNR 3414585.


250. MASS. GEN. LAWS ch. 121B, 46(f) (2006); see supra Part II.D.3.
251. Save Fenway Park!, Yawkey Way, http://savefenwaypark.com/Improvements/
FenImpB2A.html (last visited May 9, 2008).
252. Id.; Kristen Lombardi, Slow Growth: The Sox Move to Take Yawkey Way, BOSTON
PHOENIX, Nov. 21, 2002, available at http://www.bostonphoenix.com/boston/
news_features/this_just_in/documents/02551578.htm.
253. Letter from Daniel Cushing, President, ABN, and Shirley Kressel, Vice President,
ABN, to John OBrien, Project Manager, BRA (Nov. 22, 2002), available at
http://www.abnboston.org/publications/2002/1122-yawkeyway.html.
254. Id.
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582 NEW ENGLAND LAW REVIEW [Vol. 42:549

establish a precedent for further takings of public ways for


the benefit of private corporations.255

3. Certificate of Approval, Order of Taking, and Licensing


Agreement
On January 16, 2003, the BRA approved the Red Soxs Yawkey Way
project and authorized its Directors to issue a Certificate of Approval
pursuant to Article 80, Section 80E of the Boston Zoning Code.256 The
BRA also adopted a resolution executing an Order of Taking for an
easement for limited purposes in a part of Yawkey Way.257 According to
the memorandum detailing the BRAs approval of the Red Sox 2003
Interim Ballpark Improvements, [t]he Order of Taking contemplated
herein provides for the taking of a game day easement for limited purposes
which will be licensed, or otherwise granted or transferred, to the Boston
Red Sox for use during game days only. 258
On February 12, 2003, the BRA and Boston Red Sox entered into a
License, Maintenance, and Indemnification Agreement.259 According to the
agreement, the Red Sox
shall have the right to temporarily close and have exclusive use,
occupation, and control of the portion of Yawkey Way . . . for
the installation of portable fencing, turnstiles and any other
structures or equipment associated with the Permitted
Activities . . . in connection with the utilization of the area as an
extension of the Fenway Park concourse area during all Red Sox
home games which require a ticket to Fenway Park.260
According to the agreement, the Red Sox may temporarily close this
block of Yawkey Way to the general public, or persons not having game-
day tickets, for up to four hours before the start of Red Sox home games
and re-open it within two hours of the final out, or by midnight if earlier.261

255. Id.
256. License, Maintenance and Indemnification Agreement by and between Boston
Redevelopment Authority and Boston Red Sox Baseball Club Limited Partnership 2
(February 12, 2003) (on file with author) [hereinafter License, Maintenance and
Indemnification Agreement].
257. Memorandum from Boston Redevelopment Authority Senior Staff to Boston
Redevelopment Authority Director (Jan. 16, 2003) (on file with author).
258. Id.
259. License, Maintenance and Indemnification Agreement, supra note 256, at 1.
260. Id. at 3.
261. Id. at 4; see also Stephen M. Mindich, Fenway Favoritism (Continued), BOSTON
PHOENIX, April 3, 2003, available at http://www.bostonphoenix.com/boston/news_
features/other_stories/documents/02798087.htm.
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By having exclusive dominion of the street block during these time periods,
the Red Sox may therefore prohibit other private companies from accessing
the street and serve as the sole seller of food, beverages, and baseball-
related merchandise (other than those commercial enterprises permanently
situated on this block of Yawkey Way, which may continue their normal
operations).262
Under the licensing agreement, the team would pay $165,000 for
2003, and then pay an annual license fee subject to annual percentage
adjustments, provided that no annual increase shall be greater than . . . five
percent (5%) or . . . the increase in the Consumer Price Index from the
previous License Year.263 The agreement specifies that all terms of the
license will continue through the final Red Sox game played during the
2013 major league season, including any playoff or World Series games.264

4. Pennant Publications
In August 2002, Pennant Publications, Inc., a publisher of baseball
periodicals and programs that it sold to Red Sox fans before every home
game, moved for a temporary restraining order and then sued the Red Sox,
the BRA, and the city of Boston over the Yawkey Way taking.265 In its
second amended complaint, filed on January 28, 2003, the publisher argued
that the BRAs taking was an illegal expansion of the agencys authority.266
The publisher argued that the privatizing of Yawkey Way violated its
constitutional rights by prohibiting it from selling their baseball programs

[T]o maintain its clubby atmosphere, the Yawkey Way Club will
prevent all but ticket holders from hanging out on this public
thoroughfare on game nights. That means the Sox have placed guarded
turnstiles at each end of the street. Pedestrians who want, or need, to
walk between Boylston Street and Brookline Avenue via the only
convenient route Yawkey Way will be impeded by guards wholl
stop those without tickets from simply walking down their street. Sox
officials point out that anyone without a ticket wanting to walk through
Yawkey Way will be allowed to do so with an escort.
Mindich, supra; see also Save Fenway Park!, Fenway Park Improvements 2004,
http://savefenwaypark.com/Improvements/YawkeyWay.html (displaying photographs of the
bustling privatized public street before the start of a Red Sox home game) (last visited May
9, 2008).
262. See License, Maintenance and Indemnification Agreement, supra note 256, at 3-4.
263. Id. at 2.
264. Id.
265. Second Amended Verified Complaint, Pennant Publns Inc. v. Boston Red Sox, No.
02-.11711REK (D. Mass. Jan. 28, 2003).
266. Id. paras. 11-18.
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584 NEW ENGLAND LAW REVIEW [Vol. 42:549

on the public street.267 Therefore, the Red Sox, a direct competitor of


Pennant Publications, would benefit as the publisher as the sole program
available for purchase on a city block bordering Fenway Park and two of its
entrance gates.268 The taking of the street was not for a public use, but
strictly for the private benefit of the baseball team. 269 The publisher also
contended that the BRAs taking of Yawkey Way was illegal since the
street is neither a slum nor an area affected by urban blight, as required by
chapter 121B 46(f). 270 However, on March 27, 2003, Pennant
Publications voluntarily dismissed its case against the team and the city.271

IV. CHALLENGING THE VALIDITY OF THE BRAS TAKING OF YAWKEY


WAY
While Pennant Publications voluntarily dismissed its action against
the Boston Red Sox and the Boston Redevelopment Authority, another
aggrieved party could seek to challenge the BRAs designation of
Yawkey Way as a Demonstration Project under Massachusetts General
Laws chapter 121B 46(f), and the taking of that property pursuant to this
determination.272 Chapter 121B 46 states that [a]n urban renewal agency
shall have all the powers necessary or convenient to carry out and
effectuate the purposes of relevant provisions of the General Laws.273
Section 46(f) gives the agency the power to develop, test and report
methods and techniques and carry out demonstrations for the prevention
and elimination of slums and urban blight.274
Chapter 121B 11 grants the BRA the right to take property by
eminent domain whenever the agency determines that is necessary to carry
out any purpose of the urban renewal statute.275 In this case, the BRA
determined that the taking of Yawkey Way was necessary for the
prevention and elimination of slums and urban blight and that its leasing
to the Red Sox for game-day use and year-round improvements would
renew the urban area.276 A court deciding to invalidate the taking would

267. Id. paras. 24, 31.


268. Id. para. 26.
269. Id. paras. 30, 32.
270. Id. para. 14.
271. Stipulation of Dismissal, Pennant Publns Inc. v. Boston Red Sox, No. 02-
.11711REK (D. Mass. Mar. 27, 2003).
272. MASS. GEN. LAWS ch.121B, 46(f) (2006).
273. Id.
274. Id.
275. Id. 11(d), 46(f).
276. Id. 46(f).
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2008] KICK ME OUT OF THE BALLGAME 585

have to decide whether the challenging party had standing,277 whether the
BRAs determination that the street was blighted, substandard, or decedent
was not arbitrary or capricious,278 and whether BRA acted in bad faith.279

A. Standing
A party challenging the BRAs taking of Yawkey Way must first
have standing. 280 Few parties may even meet this initial requirement, as
judicial review of an action taken by the BRA in its capacity as an urban
renewal agency is generally not available.281 Under 47, an aggrieved
person may obtain judicial review of an urban renewal agencys
determination that an area is decadent, substandard, or [a] blighted open
area.282 The allegedly aggrieved party must file a petition within thirty
days, following the BRAs publication of its notice to take the property,
asking the court to issue a writ of certiorari against the urban renewal
agency to correct errors of law.283 Furthermore, the Massachusetts
Supreme Judicial Court has determined judicial review to be proper when a
party alleges a substantial injury as a direct result of the BRAs action,
even absent an express right of appeal in the statute.284 A qualifying
aggrieved party must file a petition within thirty days after the BRA
approves the challenged taking.285
Pennant Publications, an independent publisher, had filed its second
amended complaint by January 28, 2003.286 The BRA approved the
Demonstration Project on January 16, 2003.287 Therefore, the publisher
satisfied the time requirement in the statute by filing his petition before
thirty days had passed following the BRAs approval of the taking.288 In the
present day, however, the statute of limitations has long expired, so that no
party would have standing to challenge the Demonstration Project as

277. See supra Part IV.A.


278. See supra Part I.V.B.
279. See supra Part I.V.C.
280. See Boston Edison Co. v. Boston Redev. Auth., 371 N.E.2d 728, 735 (Mass. 1977).
281. See id. at 735-37.
282. MASS. GEN. LAWS ch. 121B, 47 (2006); see Benevolent & Protective Order of
Elks, Lodge No. 65 v. Planning Bd. of Lawrence, 531 N.E.2d 1233, 1240 (Mass. 1988).
283. Ch. 121B, 47.
284. Boston Edison Co., 371 N.E.2d at 737-39.
285. Ch. 121B, 47.
286. Second Amended Verified Complaint, Pennant Publns, Inc. v. Boston Red Sox, No.
02-.11711REK (D. Mass. Jan. 28, 2003).
287. Memorandum from Boston Redevelopment Authority Senior Staff to Boston
Redevelopment Authority Director (Jan. 16, 2003), http://www.cityofboston.gov/bra/
pdf/documents/BRAMin1_16_03.pdf.
288. See ch. 121B, 47.
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586 NEW ENGLAND LAW REVIEW [Vol. 42:549

currently drafted and implemented today. Nonetheless, an opportunity to


challenge the BRA involvement with the Red Sox may arise as the city and
its urban renewal agency continue to redevelop the Fenway
neighborhood.289 The teams ownership may petition the BRA to expand
the project so that the team would renovate all four streets that surround
Fenway ParkYawkey Way, Van Ness Avenue, Ipswich Street, and
Lansdowne Streetin exchange for their exclusive game day use.290 The
BRAs approval of these potential Demonstration Projects would then
restart the statute of limitations during which an aggrieved person could
petition for judicial review.
Even if the statute of limitations had not yet expired, a Massachusetts
Superior Court would likely not confer standing to a person denied access
to the partitioned portion of Yawkey Way who did not have a financial
interest in operating on the street.291 For example, a baseball fan who
lacked tickets to the game but wanted to take part in the pre-game
festivities would not suffer any direct and ascertainable loss sufficient to
challenge the taking.292 Pennant Publications or a similar business,
however, may have standing on the basis that their prohibition from the
street substantially injures their livelihood.293 In Pennant Publications v.
Boston Red Sox, the magazine publisher asserted that it typically sold five
hundred magazines on Yawkey Way out of a total of 1500 sold at each
home Red Sox game.294 The publisher further contended [t]he Red Sox
program, a direct competitor . . . , [would] benefit since its magazines
[would] be the only program sold on Yawkey Way.295 The publisher
calculated that it would lose $81,000 in revenue over the course of the
season through lost program sales, not includ[ing] the loss of advertising
due to . . . lower sales projections,296 which a court could reasonably

289. See Ron DePasquale, Now Batting: Fenway Area Remake, BOSTON GLOBE, Sept. 30,
2006, available at http://www.boston.com/realestate/news/articles/2006/09/30/now_batting_
fenway_area_remake/.
290. As early as September of 2002, the Boston Phoenix, a free weekly magazine in
Boston, speculated whether the city would extend[] the arrangement closing Yawkey Way
to nearby Lansdowne Street. Seth Gitell, Yawkey Way Today, Lansdowne Street
Tomorrow?, BOSTON PHOENIX, Sept. 5-12, 2002, available at http://
www.bostonphoenix.com/boston/news_features/this_just_in/documents/02425195.htm.
291. Cf. Boston Edison Co. v. Boston Redev. Auth., 371 N.E.2d 728, 735-36 (Mass.
1977).
292. See id.
293. See id.
294. Second Amended Verified Complaint, para. 25, Pennant Publns, Inc. v. Boston Red
Sox, No. 02-.11711REK (D. Mass. Jan. 28, 2003).
295. Id. para. 26.
296. Id. para. 28.
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identify as a substantial loss.297


A court may still deny standing to a business wanting to temporarily
operate on Yawkey Way and financially impacted by the taking since the
business did not actually own the property taken by the BRA.298 Instead,
Yawkey Way belongs to the city of Boston, with the BRA, in quintessential
quasi-independent fashion, holding a limited easement which it licenses out
to a private party.299 A court could further recognize that the publisher
could sell his programs just outside of the turnstile gates as well as on the
other three streets framing Fenway Park, where a majority of sales took
place even before the taking of Yawkey Way.300 Therefore, a court would
likely only consider granting a similar business standing if and when the
Red Sox take some control of all four streets, including Yawkey Way, that
form a perimeter around Fenway Park.

B. Scope of Review
A court granting standing to a party challenging the Demonstration
Project would next determine what scope of review to apply. Massachusetts
state courts have historically ruled that chapter 121B urban renewal
projects are governed by the arbitrary and capacious standard since such
projects are initiated by public agencies and lack the tax benefits granted to
private parties under chapter 121A.301 Furthermore, the BRA justified its
taking of Yawkey Way and its licensing of the street to the Boston Red Sox
as pursuant to its powers under chapter 121B 46(f) to carry out
demonstration projects for the prevention and elimination of slums and
urban blight.302
Nonetheless, a court determining the legality of this taking could also
apply a higher scope of review, the substantial evidence test, based on its
resemblance to a project approved under chapter 121A.303 For example, the
Boston Red Sox privately initiated this plan that the ball club submitted its

297. See Boston Edison Co. v. Boston Redev. Auth., 371 N.E.2d 728, 735-36 (Mass.
1977).
298. See supra Part II.E.2.e.
299. See supra Part III.F.3.
300. See Second Amended Verified Complaint, paras. 20-26, Pennant Publns, Inc. v.
Boston Red Sox, No. 02-.11711REK (D. Mass. Jan. 28, 2003).
301. See Boston Edison Co., 371 N.E.2d at 739.
302. MASS. GEN. LAWS ch. 121B, 46(f); see also Tremont on the Common Condo.
Trust v. Boston Redev. Auth., No. 89482, 2002 Mass. Super. LEXIS 564, at *57 n.33
(Mass. Super. Ct. Sept. 23, 2002) (Presumably what makes this a demonstration project is
that it demonstrates a combination of private initiative with the focused use of public
authority (i.e., the BRAs exercise of its eminent domain power) in order to achieve the goal
of restoration of the Opera House.).
303. See supra Part III.E.1.b.
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588 NEW ENGLAND LAW REVIEW [Vol. 42:549

Application for Small Project Review / Demonstration Project to the


BRA in October of 2002. In addition, the ball club receives the bulk of the
benefits arising from this taking: while the public may minimally benefit
from improved lighting, landscaping, and store fronts along the street, the
Red Sox receive an economic windfall by having exclusive rights to all
food, alcohol, and merchandise sold on the street before and during home
games for a minimal licensing fee.304 As declared by the Supreme Judicial
Court, facilities could not be said to exist for a public purpose, despite the
type of legislative declarations, when a professional sports team receives
the full financial benefit of the taking at the expense and exclusion of the
public.305 Therefore, a court reviewing the taking and licensure of Yawkey
Way could apply the substantial evidence test, thereby giving less
deference to the BRAs determination of urban blight.

C. Improper Finding of a Blighted Area and Bad Faith


Under either standard of review, a party recognized as having
standing would contend that the taking of Yawkey Way was improper since
it was predominantly not for a public purpose.306 The taking of property to
eliminate urban blight as defined in chapter 121B 1 is a public
purpose.307 Chapter 121B 45 states that the acquisition of property for
the purpose of eliminating decadent, substandard or blighted open
conditions thereon and preventing recurrence of such conditions in the
area validates the taking of the property.308 Therefore, an urban renewal
project intended to eliminate blight within a designated area has a public
purpose as defined by the statute.309
A petitioner challenging this Demonstration Project would argue that
the designated portion of Yawkey Way is not in a condition detrimental to
the safety, health, morals, welfare, or sound growth of [the] community.310
While a court applying an arbitrary and capricious standard may defer to
the BRAs decision, a court applying a higher standard might find
substantial evidence in this case of an improper finding of a blighted area.
Most significantly, neither the Red Soxs application for a Small Project
Review and its Demonstration Project nor BRA memoranda reviewing and

304. See, e.g., City of Springfield v. Dreison Investments, Inc., 11 Mass. L. Rep. 379,
387, 391 (2000).
305. See In re Opinion of Justices, 250 N.E.2d 547, 558 (Mass. 1969) (emphasis added).
306. See Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Bd. of
Lawrence, 531 N.E.2d 1233, 1239 (Mass. 1988).
307. MASS. GEN. LAWS ch. 121B, 1 (2006).
308. Id. 45 (2006).
309. See id.
310. See id. 1 (2006).
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approving the application cites a report, study, or finding indicating, that


this stretch of Yawkey Way was a slum or by any means blighted.311
Moreover, any mention of blight would be suspect, since the street contains
productive commercial enterprises on one side,312 Fenway Park, owned and
well-maintained by the Red Sox, on the other side, and new construction
and businesses springing up throughout the Fenway neighborhood.313 A
court could therefore also conclude that the taking was done in bad faith,
with the Red Soxs financial benefit the dominant reason for the taking, as
the public receives no real benefit in the teams ability to constructively
expand its property rights beyond Fenway Parks structural confines and
prohibit non-ticket holders from accessing a traditionally bustling and
public street before and during home games.

CONCLUSION
The Boston Redevelopment Authority yields great legislative power
in determining what areas of the city require urban renewal. Although its
taking of a portion of Yawkey Way eliminated the City Councils control
over the city-owned land, constituted the transference of public land
already available for public use into a redevelopment parcel for private use,
diverted any sale or rent of the space from the city to the BRAs own
account, and stretched the definition of blight, its decision received
almost no judicial scrutiny. For the perceivable future, the Red Sox will
continue to control a public space before and during home games for its
own private use and benefit.

311. See Application for Small Project Review / Demonstration Project, Boston Red Sox,
Proposed 2003 Interim Ballpark Improvements (Oct. 22, 2002); Memorandum from Boston
Redevelopment Authority Senior Staff to Boston Redevelopment Authority Director (Jan.
16, 2003), www.cityofboston.gov/bra/pdf/documents/BRAMin1_16_03.pdf.
312. See supra text accompanying note 7.
313. The Official Site of the Boston Red Sox, Tickets: Seating and Pricing Chart,
http://boston.redsox.mlb.com/bos/ballpark/seating.jsp (last visited May 9, 2008).