Even as Data Delivers a Crushing Blow, the Idea of Taxachusetts Dies Hard

The Massachusetts Budget and Policy Center, an independent, non-partisan group of experts on state spending, released a report last week showing that the amount of Massachusetts taxes we pay as a share of our total personal incomes is below the national average.  

Based on data gathered by the U.S. Census Bureau, the report said, “The amount of state and local taxes paid in Massachusetts as a share of total personal income was 10.37 percent in FY 2011.  By this measure, Massachusetts had lower taxes than 20 other states and was below the national average of 10.56 percent.”

At 20 percent, Alaska is the state with the highest percentage of state and local taxes as a share of total personal income.  South Dakota has the lowest percentage, 7 percent.   

Had Massachusetts taxes been at the national average in FY 2011, state and local governments would have raised an additional $650 million in that fiscal year, according to the report, which may be found at:

http://www.masssbudget.org/report_window.php?loc=tax_rank_2013.html

In a press release announcing the report, the Massachusetts Budget and Policy Center said, “Measuring taxes in this way (as a percentage of personal income) provides the most accurate comparisons.”

Listen to most people today on the topic of taxes and you’ll hear that we pay too much and that our government wastes too much money.

There’s no objective definition of too much taxes or too much governmental waste, so it’s hard to refute that view.

You rarely if ever  hear someone say that, considering all the advantages we have as free citizens of Massachusetts and the United States, the price we pay in taxes is a pretty good deal overall.

This Massachusetts Budget and Policy Center report gives a boost to the pretty-good-deal-overall argument.  But don’t expect it to change many minds who are convinced otherwise. 

Feelings aren’t easily changed, especially when they've been held for a very long time.  And no one, least of all me, is ever going to enjoy the experience of paying taxes.

Tug of War on Ethanol Trains Is All About the Perception and the Rating of Risk

Part 2 of 2 Parts

Statistics show that freight railroads are a safe, dependable, economical and environmentally friendly way to ship all kinds of materials and products, including large volumes of hazardous materials we don’t want on congested interstate highways and densely packed urban streets. 

According to the Association of American Railroads, in 2010, 99.998 percent of hazardous material shipments by rail reached their destinations without a release caused by a train accident.  Rail hazmat accident rates have decreased 91 percent since 1980 and 38 percent since 2000, the association reports.

The safety record of the railroads is strong.  But it’s not powerful enough to overcome the fears of those who live, work and/or travel near the long-established railroad lines of eastern Massachusetts, which is an awful lot of people.  I learned that first-hand when lobbying recently for our client, the Massachusetts Railroad Association, the trade group composed of 11 of the state’s freight-hauling railroads.  On the association’s behalf, we appealed to legislators to reject Section 81 in the Senate budget in favor of the Section 162 in the House budget. 

Section 81 made it into the final version of the new Fiscal Year 2014 state budget produced by a six-member House-Senate budget conference committee in June; Section 162 did not. 

[NOTE: If Section 81 is enacted, it will become a de facto ban on delivering ethanol by rail to Massachusetts fuel terminals with ocean access.  This is a point I made in my previous post: “Governor Was Mulling Ethanol Shipments by Rail When Along Came that Train in Quebec,” July 20, 2013.]

After the conference committee budget was adopted on full votes in both branches, it was submitted to Governor Patrick for his review and approval.  Patrick vetoed Section 81 and suggested an alternative approach to state oversight of ethanol on the rails.  As of the date of this post, the clashing positions of the legislature and the governor on this issue have not been resolved; however, it looks like the legislature will override his veto of Section 81.

Interestingly, the rejected House measure, Section 162, resembled the alternative offered July 12 by the governor in that 162’s main thrust was to have the Massachusetts Emergency Management Agency develop a comprehensive ethanol transport response plan.

At the State House for the Massachusetts Railroad Association, we’d point out that transporting ethanol to blending facilities by truck or barge presents its own safety and environmental challenges.  And we’d politely suggest that accidents involving large tanker trucks on highways have to be taken into account.  

A legislator or a legislative aide would frequently respond along these lines:

“That may be, but the problem with a train accident, even though it may be a rare event, is the size and drama of it.  It usually involves the derailment of multiple train cars.  With ethanol trains, it’s multiple tank-loads.  There are explosions, big fires, evacuations of entire neighborhoods.  A tanker truck accident, by contrast, usually involves just one truck.  It’s bad, but not that many people are affected at one time.”

[NOTE: There have been accidents involving ethanol trains in other states but never one in Massachusetts.]

This is all about how we perceive and weigh risks.  And how we remember bad events. 

Thousands of people die every year in crashes involving large trucks.  In 2008, for example, there were 4,066 large truck accidents that resulted in a fatality and 66,000 that resulted in injuries, according to the National Center for Statistics and Analysis.  We tend to forget stats like that.

But we never forget disasters like the one in the Quebec town of Lac-Megantic on the night July 6.  Nor should we. 

Lac-Megantic is a tragedy of staggering proportions.  Knowing that some simple, common-sense precautions probably could have prevented it makes it even worse.  [Who signed off on parking a fully loaded freight train on a hill and leaving it untended for hours at night while the one-man crew went on break?]

Freight railroads will learn from Lac-Megantic, adopt new safeguards, and continue to play a crucial role in the economy of Massachusetts, the nation and the world.  They are too good at what they do, and too important in the larger scheme of our economy and our way of life, to become obsolete or to be legislated out of business.

Holman W. Jenkins, Jr., the “Business World” columnist at the Wall Street Journal said it best in his July 17, 2013 column, titled “Oil by Rail Is Here to Stay.” Jenkins wrote:

“The Lac-Megantic disaster may well boil down to a railroad industry that was unready for the opportunity that opened up in the past few years to carry large amounts of a hazardous substance on routes and lines laid down a century ago around which highly populated areas inevitably grew up…But Lac-Megantic will not prove a way station on the route to a carbon-free future.  More likely it will bring forth a serious campaign to make sure crude-by-rail is safe enough to become a permanent feature of a North American energy landscape being transformed by fracking.”

“Oil by Rail Is Here to Stay” may be found at:

http://online.wsj.com/article/SB10001424127887323848804578609681519319010.html

Governor Was Mulling Ethanol Shipments by Rail When Along Came That Train in Quebec

Part 1 of 2 Parts

Governor Deval Patrick was trying to do the right thing on July 12 when he vetoed a section of the newly enacted state budget that would block the transport of ethanol by freight railroads.  And the governor was heading in the right direction when he urged the legislature to: (a) consider a two-year moratorium on ethanol shipments by rail, and (b) direct the Massachusetts Emergency Management Agency to “develop a comprehensive ethanol transport response plan for all municipalities that accommodate the transport of ethanol by rail.”

But Patrick’s effort was probably doomed from the start by what had transpired six days earlier, hundreds of miles away, in the small Quebec town of Lac-Megantic. 

Late on Saturday night, July 6, the brakes gave way on an untended freight train parked on a hill outside the town.  There were 71 tanker cars in the train, each containing an estimated 30,000 gallons of crude oil.  If that figure is correct, there were more than 2 million gallons of crude on that train.  The oil came from wells in North Dakota and, after the train crew rested in Lac-Megantic, it would have traveled across the state of Maine to a coastal oil refinery in New Brunswick, Canada.

As it moved downhill, the driverless train picked up speed.  Within a minute or two, it reached the center of Lac-Megantic.  Travelling then at over 60 miles per hour, it jumped the tracks, exploded and burst into flames.  At least 50 townspeople were killed and 30 buildings destroyed in the resulting conflagration. The bodies of some victims, having been vaporized in the explosion or cremated in the fire, will never be recovered.  

Ethanol, the common name for ethyl alcohol, is used as a motor fuel when added to gasoline. It is the same kind of alcohol found in beer, wine and cocktails. Since it can be produced from crops such as corn and sugar cane, ethanol is a form of renewable energy.  Most vehicles in the United States now run on a gasoline-ethanol fuel mix. 

Over two years ago, the Global Petroleum Corp. started talking about bringing rail tanker cars filled with ethanol from the Midwest to its terminal on the Chelsea River, at the Revere-East Boston line.  The tankers would have to travel to Global via long-established rail lines in Cambridge, Somerville, Chelsea, Everett, Revere and East Boston, all heavily populated cities.  Federal law requires Global and other gasoline wholesalers to blend ethanol in the fuel they sell to gas stations, which in turn sell it to motorists.

Some citizens expressed immediate opposition to the Global plan, asserting that ethanol trains presented an intolerable risk of explosion and fire in the event of a derailment or a terrorist attack.  The opposition grew, eventually coalescing in a group called Stop Ethanol Train.

[Full Disclosure: Our firm, Preti Minahan Strategies, represents the trade group for freight railroads, the Massachusetts Railroad Association.  We are the freight railroads’ registered lobbyist in Massachusetts.]

This spring, both the Massachusetts House of Representatives and the Massachusetts Senate added outside sections to their respective versions of the state budget for Fiscal Year 2014 addressing the concerns of Stop Ethanol Train.  As it happened, the Senate language was much tougher on Global than the House’s. 

When a House-Senate conference committee took up the job of resolving the differences between the two budgets and producing a unified budget document for adoption by both branches, it had to choose either the House section on ethanol rail shipments or the Senate section.  It opted for the Senate section, which says in its entirety: 

“Section 81.  Section 14 of Chapter 91 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by adding the following paragraph:  An ethanol storage or blending facility that stores or blends or is intended to store or blend more than an average of 5,000 gallons of ethanol per day and is located within 1 mile of a census block that has a population density of greater than 4,000 people per square mile shall not be granted a license under this chapter.  For the purposes of this section, ethanol shall be defined as any mixture composed of not less than 30 percent alcohol.”

Global was the specific target, the only fuel company with a pending application for a Chapter 91 tidelands construction permit.  Global needed the permit before it could adapt its facility to accommodate ethanol shipments by rail.

If Section 81 becomes law, it will become in effect a permanent ban on delivering ethanol by rail to fuel terminals with ocean access.  That, of course, is the intent of the current legislature.

Right after the conference committee released its unified budget in late-June, Global announced it was withdrawing its Chapter 91 license application and abandoning the plan to bring ethanol to its local terminal by rail. 

There was no single reason why Global dropped the proposal, according to Edward Faneuil, who serves as the company’s executive vice president and general counsel.   “We’ve heard the input of the community and others,” Faneuil told the State House News Service on July 2.  “I think we elected to withdraw for a variety of reasons.”

I thought Global should have stayed in the game and appealed publicly to Governor Patrick to veto Section 81.  But when that runaway train incinerated the center of Lac-Meganntic, I thought Global’s decision to withdraw was perspicacious.  And when Patrick decided, post-incineration, to veto Section 81 and offer a more nuanced course of action to the legislature, I thought the governor was courageous.

In the part of his budget veto message dealing with ethanol, Patrick wrote:

“It is critical we ensure that ethanol and other hazardous materials are transported safely throughout the Commonwealth and that mitigation measures are in place in the event of an incident.  However, as currently drafted, Section 81 would interfere with marine terminal operations and potentially impact existing licenses throughout the state.  Consequently, I propose to amend the section to ensure it is more precisely tailored to effectuate its underlying purpose.  My amendment would prohibit for two years the addition of new routes of ethanol transport by rail in certain port areas, allowing time for the related safety issues to be more fully considered.”

Continuing on, the governor said that Section 81 “would not address the kinds of mitigation measures that are necessary in densely populated areas of the state, particularly environmental justice communities, through which ethanol passes by rail.”

Further, the governor said, “I propose to direct the Massachusetts Emergency Management Agency (MEMA) to develop a comprehensive ethanol transport response plan for all municipalities through which ethanol travels by rail.  Under my proposed amendment, MEMA would work with relevant local, state and federal officials to develop a comprehensive plan addressing areas such as safety, training, communications and essential infrastructure improvements, as well as any necessary mitigation measures.”

Given the way the legislature has been overriding the governor’s vetoes of late, there is little chance Patrick’s approach to ethanol trains will carry the day.

NEXT: The perception of risks has as much to do with setting policies as actual risks and actual events, if not more so.

MA Taxpayers Foot the Bill -- $9,400 a Day -- for Keeping Order at a Worcester Funeral Home

We all hope the Commonwealth Massachusetts never finds itself again in a quandary over what to do with the body of someone who has perpetrated a horrible and repulsive crime, as it was in the case of Tamerlan Tsarnaev, one of two brothers accused of setting off the bombs at the finish line of the Boston Marathon.

But if it does, I hope the Executive Office of Public Safety and Security places that body in a secure, out-of-the-way site, such as Fort Devens in Ayer or the Massachusetts Emergency Management Agency bunker in Framingham, until a final resting place for it can be found.

We don’t need a costly repeat of what happened in Worcester in early May. That’s when a courageous local undertaker, Peter Stefan, was left holding Tsarnaev’s body for five days because no cemetery could be found to accept it.  Angry protesters gathered outside the Graham, Putnam and Mahoney Funeral Parlor every day to demand that Tsarnaev’s body be removed from their city.  There were so many protesters, and they were so loud and demonstrative, that Worcester police had to be there the entire time to maintain order.

I can tell you how costly that police action was because the Massachusetts legislature just passed a budget for the new fiscal year.  It includes a one-time $47,000 reimbursement to the City of Worcester for the cost of those details.

Forty-seven thousand dollars.

That’s the cost of American citizens acting out in the 21^st century the ancient ritual of heaping disrespect on the corpse of an enemy, of elected officials pulling back from a politically radioactive situation, and of keeping safe a man who stuck his neck out for his trade. ("I'm burying somebody who is dead," said Stefan. "Everybody who is dead has the right to be buried.") Sadly, it is only one small cost of the homemade bombs of Marathon Monday.

Every such cost gives satisfaction and energy to those who hate the United States of America.   

We cannot forget September 11, 2001, nor would we want to. But how often do we recall that it cost al-Qaeda only $350,000 to mount the operation that destroyed the twin towers, slaughtered 2,996 innocent people, and set in motion the never-ending consequences of that horrible morning.

The tab is still open on 9/11.

McGee Has Shot at Making Father-Son History in Next Senate Leadership Transition

On an autumn morning in 1967, a person I know, a friend of a friend, was standing on a corner in Lynn, Massachusetts, shooting the breeze with some friends, when an encounter with a hard-charging member of the Massachusetts House of Representatives changed the course of his life.  For the purposes of this story, let’s call this friend of a friend “Robby.”

The state representative, Tom McGee, drove by this corner every morning on his way to the State House after holding informal “office hours” at Bill’s Lunch, a small local restaurant.  Anybody could approach McGee when he was having coffee at Bill’s and talk about anything on their minds, or ask for favors.  McGee got a lot of business done that way.

On the morning in question, McGee decided it was time to have a word with Robby.  He stopped his car and walked up to the group on the corner.

“Hello, Mr. McGee, how are you today?” Robby said.

“Good, Robby, good.  But I want to ask you something: What are you going to do with your life?”

“What do you mean, Mr. McGee?”

“You’ve been back from Vietnam now for what -- two, three months?  Every day I come by this corner and see you standing here with your friends, just hanging around.  I understand you had to take it easy for a while after everything that happened over there.  Fine.  But you can’t spend the rest of your life on this corner.”

“I don’t intend to, Mr. McGee.”

“What do you intend to do?”

“I’m not sure.  I was thinking of going back to school.”

“What do you want to study?”

“You remember I was a medic?”

McGee nodded.

“I was good at that.  I helped some people when they were really hurting.  I’d like to do something like that again, maybe be a physical therapist.  You know, help people come back from injuries.”

“What’s stopping you then?” said McGee. 

“I’m not sure I can get into this program I’m interested in.  It’s very selective.  Lots of people get turned down.”

“Where is it?”

“B.U.”

“I know some people there.  Let me see what I can do.”

McGee held both undergraduate and law degrees from Boston University, and was active in alumni affairs there.  In 1967, he was the Majority Whip, third on the House depth chart.

McGee took out a pen and a piece of paper, asked for Robby’s phone number, wrote it down, and started off again for Beacon Hill.

The following January, Robby entered Boston University.  He did well in his courses and hands-on work.  He eventually earned that PT degree he was dreaming about, and went on to a long and fulfilling career, including a stint as the owner of his own practice.  He made good money in most of those years and his family lived in a beautiful home in the suburbs.  Robbie and his wife raised two children, both of whom earned degrees from prestigious universities and are now doing well in their own careers.

“I don’t know if any of that would have happened if Tom McGee hadn’t spoken for me at B.U.,” said Robby.

Nothing could be more ordinary than a politician responding to a request for help from a constituent.  But how often do you hear of a politician going up to someone on a sidewalk, taking him by the hand, and asking, “What do I need to do to get you to a better place in your life?”  That’s more like missionary work.

McGee reached the political peak of his life in 1975, when he was elected Speaker of the House.  He served as Speaker for nine years, longer than anyone else.  Then he returned to the rank and file and stayed in the House for another six years. 

Last December, 21 years into retirement, Tom McGee gave up the ghost at the age of 88.  His death notice listed his military service, appropriately so, ahead of his political accomplishments.  He fought as a Marine in some of the fiercest battles in the Pacific during World War II.  Though he had a soft heart, McGee was tough as nails, ready always to fight for what he believed in. 

Since the death of Speaker McGee, I’ve sometimes found myself wondering if his son and namesake, State Senator Tom McGee of the Lynn-centered Third Essex District, might one day make Massachusetts history by becoming the only child of a former House Speaker to become President of the Massachusetts Senate.  It could happen.

Early in 2015, Therese Murray is scheduled to step down after serving four two-year terms as Senate President, the maximum allowed by Senate rules.

McGee is one of a handful of senators who are credible candidates to succeed her.  What he has going for him is a strong character and a first-class temperament.  He’s quiet, thoughtful, trustworthy and likeable as the day is long.  At age 57, he’s in his sixth Senate term.  As co-chair of the legislature’s Joint Transportation Committee, he recently played a key role in the enactment of a bill to fund badly needed improvements to the state’s transportation infrastructure – projects that will cost hundreds of millions of dollars over the next several years and have a long-lasting impact on the Massachusetts economy.  If you depend on the MBTA to get to work, or if you're concerned about the condition of the roads and bridges you drive on, you have to like what McGee has done in the upper branch.

No one is now campaigning for the Senate presidency, least of all McGee, but that does not at all discourage political observers from speculating on his chances and those of the other likely candidates. 

Three other contenders, Steve Brewer of Barre, Stan Rosenberg of Amherst and Dick Moore of Uxbridge, have to be rated ahead of McGee on the most-likely-to-succeed list.  Brewer is chair of Senate Ways and Means, a position that has been the launching pad for two of the last three Senate Presidents, Murray and Tom Birmingham.  Rosenberg formerly served as Senate President Pro Tem and is the sitting Majority Leader.  Moore, now President Pro Tem, has one of the longest resumes in the building.  All three are highly respected and well liked in the Senate.

IF he decides to seek the Presidency, McGee would have the hard-but-not-impossible task of moving through the Brewer-Rosenberg-Moore pack, as would other second-tier candidates, like Assistant Majority Leader Harriett Chandler of Worcester, Assistant Majority Whip Mark Montigny of New Bedford and Majority Whip Karen Spilka of Framingham -- should Spilka lose the 5^th Congressional seat race and remain in the Senate.  But with the election of a new Senate President some 19 months off, the dynamics of the race could easily change.

If the senator from Lynn doesn’t make the leap in early-2015, he could well have another shot at making history later. He won’t even be 60 years old at that point.  At that age, his father had almost a third of his life to live.  The clock and genetics could still favor the second Tom McGee.

Novel Written by Former Legislator Has Some Faint Echoes in the Hernandez Case

Everyone I saw this week was trying to get their arms around the idea that a New England Patriots star, a young receiver abruptly dropped from the team, could possibly be a multiple murderer.

The Aaron Hernandez story is the kind that stops you cold and runs off with your imagination. Even if you sincerely pause to think about the victims, you can’t resist talking about it. 

“Can you believe it?  I can’t believe it.”

I wish I bumped into Tim O’Leary, a former state representative, this week.  Based on a crime novel he wrote, O’Leary can definitely believe it, I’d say.

O’Leary’s book, “The Day Job,” published by Troy Book Makers (New York) in 2010, is entirely fictional.  It concerns the aptly named Tommy Hands, a former stand-out receiver for the Clemson Tigers.  Hands is drafted high up by the Patriots and goes on to star for New England over five seasons.  When he retires from the game, he settles in Massachusetts and remains in the public eye by capitalizing on his athletic fame, good looks, charisma and charm.  Eventually, he runs for governor and wins.

Beneath the attractive exterior, Hands is a dark, twisted, repulsive excuse for a human being.  Before the college all-star game in Hawaii, he murders a transsexual prostitute in a rage; next day, he plays the best game of his life.  His girlfriend tells him afterwards, “The people around me said they’ve never seen anyone play better.  You were amazing.  If I didn’t know better I’d think you scored some drugs.”

Murder becomes a performance-enhancing routine for Hands when he’s on the road with the Patriots.  Saturday nights he trolls skid row alleyways, deserted parks, and red light districts for random victims, men and women smaller and weaker than he is.  He pounces on them from behind and kills with his signature move, a single knife thrust to the heart.  Sunday afternoons, Hands is a demon on the field, making nearly impossible catches and game-saving runs.

As “The Day Job” begins, Hands is gearing up for re-election as governor.  The other main character in the book, Connor McNeill, is hired by an operative for the governor’s opponent, Moses Brady, to dig up some dirt on Hands.  McNeill turns to a bookie named Freddy for help in his opposition research.  This initiative spooks Hands and causes him to murder again and again in the hope of avoiding exposure.

A serial killer as governor? 

Yes, it’s not the most plausible premise.  But O’Leary, who writes by night and works by day as Deputy Director of the Beacon Hill-based Massachusetts Association for Mental Health, largely pulls it off.  He’s a witty, polished writer who makes it easy for a reader to suspend disbelief and stay with the story to its suspenseful, convincing end.  O’Leary writes some great lines, for example:

“Politics is one of the two professions where inexperience is considered a plus.  Prostitution is the other.”

“You know, campaigns would be more fun if we didn’t have to deal with candidates.”

“Professional football is the perfect betting game.  If I didn’t know better, I’d say gamblers invented it.”

“Doyle’s is a neighborhood bar that existed before neighborhoods became fashionable.”

“I think the human psyche is such that fear only consumes us for limited periods of time.  Eventually, something has to take its place.  That night, for Freddy and me, the something was a case of Budweiser.”

It’s doubtful a serial killer could ever become governor of Massachusetts, or even Florida.  But, by reminding us that it’s stupid to think a good athlete (or a good anything) must be a good human being, “The Day Job” is an excursion worth taking.

When considering a person blessed with rare athletic skill, wonderment and envy are natural reactions, and invariable corruptors of judgment.

NOTE: Tim O’Leary’s “The Day Job” is available at Amazon.com for as little as $14.

  

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.