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Boston’s Fenway neighborhood may not be home to the stately brick mansions and brownstone townhouses of Beacon Hill and the Back Bay, but is the neighborhood really blighted? The Red Sox’s best chance of building an affordable new ballpark in the shadow of Fenway Park may be by convincing the Boston City Council and the Massachusetts Supreme Judicial Court (SJC) of the area’s need for renewal. It will not be an easy sell. A group of Fenway area merchants has retained Jim Masterman, the past chairman of the American Bar Association Eminent Domain Committee, as counsel, indicating that they will seek top dollar for their properties. As a private, for-profit organization, the Red Sox need to sell the stadium venture as urban renewal to satisfy the “public purpose” stipulation of a land taking by eminent domain. That would allow the team to buy up Fenway properties at fair market value. In Allydonn Realty Corp. v. Holyoke Housing Authority (1939), the SJC found the taking of a blighted parcel of land by eminent domain for private development as subsidized housing qualifies as a suitable public purpose, Rich Bowen, the principal in charge of eminent domain legislation at Boston’s Kopelman & Paige, said last week. And in Berman v. Parker (348 U.S. 26, 1954), the U.S. Supreme Court ruled the taking of private land and the dispensing of it to a redeveloper, even for a uniquely for-profit purpose, is permissible, if the public purpose is satisfied by removing a blight from the area, says Masterman, now of Masterman, Kolbreth & Tully. Furthermore, the SJC said in Opinion of the Justices 1969 House Bill No. 5486 that the government could finance and construct with public and private funds a stadium on land taken by eminent domain if safeguards are in place to protect the public investment. THE ORIOLES EXAMPLE The Baltimore Orioles baseball club, for example, built the new Camden Yards stadium on an 85-acre parcel that the Maryland Legislature had taken by eminent domain a decade before construction began. The Orioles razed an unoccupied building in the blighted industrial sector of Baltimore where Babe Ruth endured a hardscrabble childhood. Boston City Councilwoman Maura Hennigan says that she would not approve such an eminent domain land taking in the Fenway until other, potentially less costly, parcels, like Suffolk Downs and Charlestown’s Schraft Building, are considered. “There are so many other options, we’re taking the most expensive avenue,” she says. Two weeks ago, the state legislature passed a bill authorizing $100 million in state funds for infrastructure aid and requesting $212 million from the city of Boston for land acquisition, site cleanup and a parking garage for the proposed $665 million ballpark project. Noting that the majority of city counselors are expressing verbal opposition to the Fenway proposal, Hennigan says she doubts the plan could win the two-thirds majority needed to approve an eminent domain land taking before a vote is scheduled, likely in September. “It’s not clear there is a public purpose,” Councilwoman Hennigan says. Recalling the land swaps that made construction of the Fleet Center possible in the 1990s, Wilbur Edwards Jr., of Boston’s McKenzie & Edwards and the immediate past chairman of the Massachusetts Bar Association Property Bar Section, says he suspects that city counselors will be amenable to finding a viable “public purpose” if the Sox sweeten the deal a bit. “In my estimation of Massachusetts government and politics, this is not going to be [so much] a classic eminent domain situation as a Boston political deal situation,” Edwards says. The SJC will not likely be as flexible in its definition of public purpose, however, Edwards says. Additionally, Masterman has indicated that his clients will fight any lower court ruling on a financial settlement they find unsatisfactory. With its mixture of warehouses, parking lots, arcades and the like, and with its proximity to the shabby section of Brookline Avenue, the area around Fenway Park slated for the construction of the new ballpark and parking garage could be called blighted, Edwards says. But the neighborhood as a whole is not particularly run down, nor does it have a high incidence of dangerous criminal activity, he said. Former Baltimore Sun baseball reporter Mark Hyman, now covering the business of sports for Business Week magazine, scoffs at the comparison between Ruth’s childhood stomping grounds and the Boston neighborhood where the slugger started his Major League career. “Camden Yards was not nearly as prosperous an area of town as the Fenway/Kenmore Square area of town,” Hyman says. Edwards says that he has thought of one way the Red Sox could sweeten the deal for the city. “They will say they’re going to bring the remains of Babe Ruth,” he quips.

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