Boston Accentuates the Negative to Accomplish the Positive, While the Watchdog Frets

If Olympic medals were awarded in legal gymnastics, the City of Boston would have grabbed the gold in 2003 for the way it helped the Red Sox.

First, the Boston Redevelopment Authority (BRA) declared Yawkey Way a “blighted area” in need of economic development.   Then it signed an exclusive, 10-year agreement with the Red Sox allowing the team to close Yawkey Way as a public street on game days and set up ticket gates and concession booths there.

Basically, the city said to the team’s owners: We know you need the money to keep the team competitive, so we don’t mind if you turn Yawkey Way into a corral.  If a glorified holding pen is what you need to peddle more high-priced goods to your beer-loving, free-spending fans, just do it!

I don’t know much about city planning or real estate.  But I’d be willing to bet you couldn’t find an officer of a redevelopment authority in any other city who’d testify that Yawkey Way definitely meets the legal definition of blighted.

It has been reported that the Sox paid the city about $200,000 in licensing fees last year for those temporary corrals on Yawkey Way and grossed about $2 million from items sold there.

Not surprisingly, the team wants to make that deal, which expires at the end of this baseball season, permanent.  Because of all the money it has made on Yawkey Way, the team realizes it will have to pay higher licensing fees to the city going forward.  There’s talk of tying the fees to a fixed percentage of gross sales.

BRA spokeswoman Susan Elsbree has said, “Of course, we’re going to try to get the best deal we can for the city and for taxpayers.”

No less an authority than the Inspector General of the Commonwealth has warned the BRA that it will be on thin ice if it hangs a new Yawkey Way deal on the old urban blight peg.

“If the BRA were to seek future rights to Yawkey Way using the methods it employed in 2003, the BRA would have to declare Yawkey Way a blighted area and ‘detrimental to the safety, health, morals, welfare or sound growth’ of the community,” said Inspector General Gregory Sullivan in a letter to BRA Director Peter Meade, dated February 16, 2012.  “The OIG (Office of Inspector General) is concerned that such a declaration may expose the BRA to a legal challenge to the finding that Yawkey Way is a blighted area during Red Sox games, given the capital improvements made to the area during the demonstration period (2003-13) and the record of higher than expected revenues during games days.”

The BRA later made it clear it did not agree with Sullivan.  Perhaps the agency was emboldened by the caveat offered by Sullivan himself.  My opinion “is not binding or dispositive,” Sullivan said in his 2-16-12 letter to Meade, and “interpretation of the relevant statutes pertaining to these matters is ultimately made by the judiciary.”

I love that lawyer’s word “dispositive.”   In this context, it means Sullivan did not dare to predict how the courts would actually rule on Yawkey Way.  It’s the cover-your-ass way we all do business in this world. 

Next time I tell my wife it will be OK if we delay fixing the gutter hanging off our roof, I’ll be sure to say my opinion is not dispositive.

The BRA’s alliance with the Red Sox was the subject, five years ago, of a fascinating article in the law review of the New England School of Law, a case study entitled, “Kick Me Out of the Ballgame: The Boston Red Sox, the BRA, and the Taking of Yawkey Way.”  The author, Brian Mahler, noted that a lawsuit challenging the agreement had been filed early on by Pennant Publications, a company selling programs near Fenway Park.  Pennant withdrew the suit before the courts could rule on it, and no further challenges ensued.  The agreement has thus never been adjudicated.

Mahler wrote, “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 Council’s 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 BRA’s own account, and stretched the definition of ‘blight,’ its decision received almost no judicial scrutiny.”

Now comes a lawyer from Revere, one Joseph P. Marchese, Jr., to complicate life for the Red Sox and the BRA.  Marchese submitted a letter to the BRA in May offering to pay roughly twice as much as the Sox have been to use Yawkey Way.  He indicated he would sublet space on the street to private food vendors. 

The BRA has not responded in any way to Marchese.  To steal a line from Howie Carr: If the phone don’t ring, Joe, you’ll know it’s Peter Meade.

Marchese reportedly owned a couple of restaurants in Everett 25-plus years ago.  He has “never operated an outdoor food court like the one currently run by the Sox (on Yawkey Way) in partnership with concession giant Aramark Corp.,” according to the Boston Globe.

Marchese may not be a serious candidate to replace the Sox and Aramark, but he undoubtedly knows his way around a courtroom.  I’m not saying Marchese would ever do this, but there are lawyers who’d be willing to set the stage now for a lawsuit against the city and team in the hope of getting money later from the Sox to go away.

Boston has been right all along to help the Red Sox.  I wish the city had an easier way to help the team than stretching the concept of blight beyond recognition.  The Red Sox are an institution in Boston, and in all of New England and beyond.  They are a unique social glue, a cultural phenomenon.

Equally important, the Red Sox are an economic powerhouse.  They generate spending by their devoted fans that boosts countless enterprises around Boston.  Thousands of low- and middle-income workers share annually in the Sox bonanza.   Just ask a doorman at a Boston hotel how much he misses in tips when the team doesn’t make the playoffs.

Finally, by giving the Sox a game-day exclusive on Yawkey Way, the city helps ensure the preservation and use of Fenway Park, the oldest, most charismatic park in the major leagues.  Tourists from around the world come to tour it when it’s not in use – to sit in the dugouts, to walk the outfield, to touch The Wall.  Only Chicago’s Wrigley Field rivals it in charm.

Fenway has one of the smallest seating capacities, 37,499, in the majors; the owners, therefore, need all the extras, like the concessions on Yawkey Way and the $165-per-ticket Green Monster seats over Lansdowne Street, to generate enough money to field a championship-caliber team.

If there were a way to do it, Boston should sell Yawkey Way to the Red Sox at fair market value, with the proviso that pedestrians and motorists be granted permanent use of the street and sidewalks when the team wasn’t playing.