Massachusetts government employees are far too fond of baseball. Three cities in the last five years have put forward plans for acquiring other people’s property and building baseball stadiums. One plan was overturned in a citizens’ referendum, another by a court. Boston is still holding out hope of condemning property for a new stadium, but the project is currently on hold. Boston in particular has a history of neighborhood devastation through eminent domain, particularly in the West End.300 Massachusetts as a whole uses eminent domain for private parties less than many of its neighboring states,301 but its cities still sometimes seek to excise stable local businesses with long-term employees in favor of the lure of upscale retail chain stores. The State has made some strides in the right direction. Its cities and redevelopment agencies should continue in this trend and eliminate the use of eminent domain for private parties.
Private Use Condemnations
The Boston Redevelopment Authority (BRA) used eminent domain to seize the historic Ames Building in order to help its owner break the leases of the building’s remaining tenants. In 1998, Intercontinental Real Estate Corp. bought the 14-story, 110-year-old granite and sandstone structure, which was once the tallest skyscraper on the East Coast. The hotelier wanted to convert the building into a boutique hotel. Inconveniently, the building happened to have tenants at the time of purchase. Two of those tenants—the D’Angelo Sandwich Shop and the Taylor & Partners architectural design firm—did not want to move. D’Angelo’s lease ran until 2012; Taylor’s until 2003. The landlord needed to get out of its long-term lease agreements in order to make financing for its proposed hotel more easily available.
A landlord who wants to terminate a long-term lease generally may do so either by buying out the tenant, by waiting until the lease is up, or by paying whatever early termination penalties are stated in the lease agreement itself. However, this landlord had politically powerful friends and managed to use its clout to get the local government to intervene, using its power of eminent domain, on the landlord’s behalf in this utterly private landlord-tenant dispute. In June 2001, the BRA agreed to condemn the building, which would automatically break the leases and clear title. Then the BRA would transfer the building right back to Intercontinental, minus those pesky leases. D’Angelo’s promptly filed suit challenging the forthcoming condemnation.303 The BRA did begin condemnation proceedings.304 However, before a decision in its lawsuit, D’Angelo’s reached a settlement with Intercontinental. The new hotel is currently under construction, and will open in 2003.305
Boston leaders have been trying for years to build a new baseball stadium that will replace the aging Fenway Park. In 1999, Red Sox team officials unveiled a $660 million plan to build a new Fenway on a 15-acre site adjacent to the old stadium. The plan provided that the team, the City and the State would share the cost of construction. In July 2000, Massachusetts Governor Paul Cellucci signed into legislation a bill calling the new Fenway a legitimate public purpose, and approving $100 million in state funding for infrastructure improvements around the new stadium. The bill also called on the Boston Redevelopment Authority and the Economic Development Industrial Corporation to spend $140 million acquiring dozens of properties needed for the project through eminent domain. The Red Sox would need to line up an additional $352 million in financing.306
The Fenway project has made little progress since then. Red Sox ownership put the team up for sale in the fall of 2000, essentially leaving the project’s future in the hands of the new owner. Meanwhile, the City has been reluctant to use eminent domain to take land for the stadium. State Attorney General Tom Reilly has serious doubts about whether state courts would agree with the legislature that the stadium serves a public purpose. In part, he fears that a state court may overturn any condemnations, based on a 1969 decision by the state Supreme Judicial Court that ruled an earlier plan for replacing Fenway was illegal because it required the taking of private land to benefit another private party. Red Sox officials had hoped to avoid using eminent domain by negotiating agreements with individual landowners but have not pursued trying to purchase the land.307
While the Red Sox ownership situation has been up in the air, the merchants and property owners around the proposed new stadium site have suffered. The City recently increased property tax assessments by 40 percent for the commercial buildings that occupy the stadium site, leading to huge tax increases for Fenway businesses. Moreover, the Red Sox have had little contact with Fenway property owners in the last year. Arthur D’Angelo, owner of Twins Enterprises and the largest single landowner on the site, says that has not heard from the team in a year and a half. Bill Sage, who owns a Howard Johnson hotel on the proposed ballpark site, said talks with a Red Sox real estate consultant went nowhere. Many owners have complained that they have been unable to convince companies to lease space around the proposed stadium site, even though the Fenway area is undergoing a vigorous revitalization. D’Angelo says he tried for months to lease out 40,000 square feet of office and retail space, but managed only to convince a high-tech firm to rent half the space, at less than half the going rate for space in the area. Other retailers and businesses have left the area altogether, creating the kind of “pre-condemnation blight” that often occurs when a large project threatens to move in, convincing property owners not to reinvest in their own property. Most Fenway area business owners would rather stay in the area, but they fear that the City’s actions will ultimately force them to sell out.308
In February 2002, the Red Sox were sold to an investment group headed by John Henry. As of yet, the new ownership has not taken any steps regarding a new ballpark. The nervous Fenway property owners continue to wait.309
Walter Lipsett’s Central Steel Supply Co. has survived 39 years of economic ups and downs, as well as a devastating fire. Now the business may be destroyed by a most unnatural force, namely the scheming by Somerville officials. Private developers have purchased most of the neighboring properties for the Assembly Square retail development, and now the City wants to seize the Central Steel facility as well as an adjacent taxi company and brick factory, in order to complete the developer’s land acquisition. Lipsett does not want to move, however, and has taken the City to court in order to prevent any condemnation from moving forward.310
In the mid-1990s, the City of Springfield began trying to lure a minor league baseball team to town. To achieve this goal, the City would need a new baseball stadium to house the team. Then-Governor William Weld pledged $10 million in state money for the stadium project, and the City formed Springfield Baseball Club LLC (SBC), a private, nonprofit corporation that would head up the process of finding a team willing to relocate to Springfield. However, no teams were available for sale, and when the City came to collect on Gov. Weld’s “promise,” they walked away empty-handed after learning that those funds had never been budgeted by the state, and that the state legislature adamantly opposed using taxpayer dollars to build stadiums for the purpose of benefiting privately owned baseball franchises.311
So Springfield Mayor Michael Albano cooked up a new scheme, in which attracting a baseball team would be an “all-consuming goal” of municipal action. Michael Graney, a friend of the mayor’s and head of the local economic development corporation, was put in charge of SBC,312 which would now own both the team and the proposed stadium once it was built.313 Finally, in 1998 SBC entered into a franchise agreement with the Northern League whereby the league awarded Springfield a baseball team in return for the City’s promise that a new stadium would be built before the start of the 2001 baseball season.314
SBC and Mayor Albano chose a location for the stadium, and worked out a plan for the stadium site. They chose a plot in downtown Springfield that contained three privately owned parcels. One was Northgate Center, which consisted of a strip mall and a four-story office building. The second parcel was a small piece of vacant land abutting the Northgate land. The third parcel was occupied by a manufacturing plant.315 Both the shopping center and manufacturer were thriving, and none of the three parcels were blighted or substandard.316 During the land acquisition process, Graney served a dual role in the negotiations, as head of both SBC and the City agency that would be exercising eminent domain if those negotiations failed.317
All three of the targeted owners refused to sell their land for the stadium project, so the City commenced actions to condemn the parcels. It had to move quickly in order to meet its obligations to the Northern League. The City could not declare the properties blighted, so it just said the public purpose was building a ballpark. The owners challenged the City in court.
In February 2000, a Massachusetts Superior Court judge issued a harsh ruling denying the stadium condemnations. Judge Constance Sweeney excoriated Springfield for its willingness to build a stadium “through whatever means possible,”318 for enlisting a self-dealing economic development director, and for using public money to build a private baseball stadium that would only benefit private interests.319 Judge Sweeney’s sharp rebuke of Springfield’s actions also has frustrated the Boston Red Sox’s plans for a possible new baseball stadium,320 and could serve as a springboard for overturning future land takings for privately owned stadiums nationwide.
In September 2000, the Worcester City Council voted to seize the Quinsigamond Baptist Church through eminent domain to make way for an expanded parking lot for the Webster First Credit Union. The 110-year old church was home to a mission that was created by area Baptists in the mid-1800s. It was owned by the Methodist Church across the street.321 Because it is an attractive building with a lot of history, Preservation Worcester, a local preservation society, came up with the funds needed to relocate the church to another nearby site and renovate the historic structure. The organization, which raised the money through private donations, had hoped to set an historical tone for future long-term revitalization of the Quinsigamond Village neighborhood.322 However, after condemnation, the building was owned by the City, which decided that the cost of maintaining the renovated church would be too high. Worcester officials began seeking other, more commercial uses for the building that would produce tax revenue.323 The bank got its parking lot. The Methodist Church lost its building, and the City will manage to have two private beneficiaries out of one condemnation.
*These numbers were compiled from news sources. Many cases go unreported, and news reports often do not specify the number of properties against which condemnations were filed or threatened.
†Massachusetts Judicial Branch (includes condemnations for traditional public uses).
300 See Michael Malamut, The Power to Take: The Use of Eminent Domain in Massachusetts, at 8 (Pioneer Institute for Public Policy Research Dec. 2000). This report can be obtained from the Pioneer Institute website at http://www.pioneerinstitute.org/pdf/wp15.pdf.
301 See generally, id.
303 Sarah Schweitzer, “BRA Plan to Seize Building Spurs Suit,” Boston Globe, July 28, 2001, at A1.
304 Paula Restuccia, “Hub Zoning Code Causes Contention,” Boston Herald, Jan. 25, 2002, at RE 39.
305 Thomas C. Palmer, Jr., “Small Hotels Add Up for City Boom Seen Helping Convention Center,” Boston Globe, Mar. 18, 2002, at A1.
306 Steve LeBlanc, “Fenway Deal Hinges on Question of Land Takings,” AP Wire, Aug. 15, 2000.
307 Cosmo Macero, Jr., “Reilly Doubts Sox Plan Is Legal,” Boston Herald, June 28, 2001, at Finance 35.
308 Scott Van Voorhis, “Stalled Park Keeps Fenway Neighbors in Limbo,” Boston Herald, July 9, 2001, at Finance 1.
309 Howard Ulman, “Closing Set for Wednesday, Changes to Follow,” AP Wire, Feb. 26, 2002.
310 Benjamin Gedan, “City Weekly/Somerville/News in Brief; Bottom Line: Help,” Boston Globe, Dec. 8, 2002, at City Weekly 12.
311 City of Springfield v. Dreison Investments, Inc., Nos. 1999-1318, 99-1230 & 00-0014, 2000 Mass. Super. LEXIS 131, at *25-26 (Mass. Super. Feb. 25, 2000).
312 Id. at *27-*29.
313 Id. at *32.
314 Id. at *35-*36.
315 Id. at *3.
316 Id. at *21.
317 Id. at *44-*45.
318 Id. at *27.
319 Id. at *138-*150.
320 See, e.g., Joan Vennochi, “Judge’s Decision Is Bad News for Red Sox,” Boston Globe, Apr. 18, 2000, at A11; Cosmo Macero, Jr., “Reilly Doubts Sox Plan Is Legal,” Boston Herald, June 28, 2001, at Finance 35.
321 Linda Bock, “Church May Become Village Center,” Telegram & Gazette (Worcester, MA), July 15, 2000, at A4.
322 “Just in Time; Historic Church Saved from Demolition,” Telegram & Gazette (Worcester, MA), Sept. 19, 2000, at A10.
323 “City Hopes Old Church Yields Taxes,” Telegram & Gazette (Worcester, MA), May 1, 2002, at B1.