Marchese v. Bos. Redevelopment Auth.

483 Mass. 149

130 N.E.3d 1222

Joseph P. MARCHESE

v.BOSTON REDEVELOPMENT AUTHORITY.

SJC-12659

Supreme Judicial Court of Massachusetts, Suffolk..

Argued May 9, 2019

Decided September 13, 2019

Justin Perrotta for the plaintiff.

Denise A. Chicoine (Shannon F. Slaughter also present), Boston, for the defendant.

Thaddeus A. Heuer, Boston, for Boston Red Sox Baseball Club Limited Partnership & another, amici curiae, submitted a brief.

Michael G. Bongiorno, Arjun K. Jaikumar, Julia A. Harvey, & Matthew W. Costello, Boston, for NAIOP Massachusetts, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.

KAFKER, J.

In 2000, before the Boston Red Sox's recent run of World Series championships, the viability of Fenway Park and the surrounding area as the long-term home of the team was a source of great concern to city planners, State legislators, the park's neighbors, and, of course, die-hard Red Sox fans. In August 2000, the Legislature declared the area surrounding Fenway Park to be a blighted area and authorized the construction of a new ballpark. Following fierce neighborhood opposition and a change in the Red Sox's ownership, however, plans were made to try to improve the existing Fenway Park and its environs.

One such fix concerned the park's concourse area, which, at the time of the contemplated upgrades, was notoriously limited, and indeed was considered the smallest of any ballpark in Major League Baseball. To facilitate improvements to this area of Fenway Park, in 2003, the Boston Redevelopment Authority (BRA)¹ exercised its eminent domain powers as an urban renewal agency pursuant to the demonstrations clause of the urban renewal statute, G. L. c. 121B, § 46 (f ), and executed a temporary ten-year taking of a limited easement over a portion of Yawkey Way² -- a public way adjacent to Fenway Park. The BRA then entered into a licensing agreement with the Red Sox, which granted the Red Sox exclusive use and control over Yawkey Way on all days that the Red Sox played a game at Fenway Park (home games) for a period of ten years.

In 2013, with this temporary taking set to lapse and the licensing agreement about to expire, the BRA executed a permanent taking of the Yawkey Way easement -- again pursuant to § 46 (f ) -- and subsequently sold the easement rights directly to the Red Sox for as long as Major League Baseball games are played at Fenway Park.

The plaintiff, a local attorney and business owner who had sought to acquire the Yawkey Way easement rights for himself, commenced a civil action in the nature of certiorari in the Superior Court, challenging the legality of the BRA's actions with respect to the Yawkey Way easement. In his complaint, he argued that the BRA exceeded the scope of its authority when it executed a permanent taking of the Yawkey Way easement pursuant to § 46 (f ) because the area was no longer blighted. He also argued that the BRA's actions caused him harm because he should have been allowed to bid on the Yawkey Way easement rights pursuant to the Uniform Procurement Act, G. L. c. 30B (procurement act). The parties filed cross motions for judgment on the pleadings, and the motion judge granted judgment for the BRA. The plaintiff now appeals, raising the same arguments that he made below, and we transferred the case to this court on our own motion.

Because we conclude that the plaintiff lacks standing to challenge the permanent taking of the Yawkey Way easement and the sale of the easement rights pursuant to G. L. c. 121B, § 46 (f ), we affirm.^{3 ,4}

Background. 1. The BRA and its authority. The BRA is an urban renewal agency. Mahajan v. Dep't of Envtl. Protection, 464 Mass. 604, 606, 984 N.E.2d 821 (2013). In this capacity, the BRA is vested with the authority under G. L. c. 121B to "effectuate the goals of urban renewal," id., which include the elimination of "decadent, substandard or blighted" areas and the promotion of the "sound growth of the community." G. L. c. 121B, § 45. To that end, the BRA guides "private sector development toward areas in need" through various means, including "land assembly, title confirmation, public financial assistance, and development and design controls." Mahajan, supra. See G. L. c. 121B, §§ 46 – 57A. The BRA is also tasked with "supervis[ing] the adoption and administration of urban renewal plans" -- detailed plans for urban renewal projects that are created for the purpose of redeveloping substandard, decadent, or blighted areas in Boston.⁵

St. Botolph Citizens Comm., Inc. v. Boston Redev. Auth., 429 Mass. 1, 3, 705 N.E.2d 617 (1999) ( St. Botolph ). See G. L. c. 121B, § 1 (defining urban renewal projects and urban renewal plans).

Perhaps the most "significant power granted to the BRA" to carry out the goals of urban renewal, however, is the power of eminent domain. Mahajan, 464 Mass. at 606, 984 N.E.2d 821. Section 11 grants the BRA the broad authority to "take by eminent domain ... any property, real or personal, or any interest therein, found by it to be necessary or reasonably required to carry out the purposes of [G. L. c. 121B], or any of its sections." G. L. c. 121B, § 11 (d ). One such section under G. L. c. 121B is § 46 (f ), which expressly authorizes the BRA to "develop, test and report methods and techniques and carry out demonstrations for the prevention and elimination of slums and urban blight."

It is the BRA's exercise of the eminent domain power pursuant to this section that gave rise to the issues presented in this case.

2. Factual background. We summarize the material facts, which are not disputed.⁶ Plans to replace Fenway Park with a new ballpark were under serious consideration as recently as the early 2000s. Indeed, in 2000, the Legislature enacted St. 2000, c. 208, entitled "An Act relative to the construction and financing of infrastructure and other improvements in the city of Boston and around Fenway Park," which included explicit findings that, as it existed at the time, Fenway Park was "inadequate for the purposes for which it was designed and a new ballpark is required to attract and retain those athletic events which shall promote the economic health of the commonwealth and encourage further private development." St. 2000, c. 208, § 1 (d ). The Legislature declared the area surrounding Fenway Park to be an "economic development area," which is defined under St. 1971, c. 1097, § 1 (e ), to be "any blighted open area or any decadent area" as those terms are defined by G. L. c. 121B, § 1.⁷ St. 2000, c. 208, § 4 (a ). A new ballpark, the Legislature found, would "significantly enhance the economic development and the general welfare of the commonwealth." St. 2000, c. 208, § 1 (a ).

Support for a new ballpark, however, was not universal. Local activists and organizations such as "Save Fenway Park" advocated for the preservation and redevelopment of the existing park, rather than the construction of a new one. Then, in 2002, a new ownership group purchased the Red Sox and the focus thereafter shifted from developing a new ballpark to reconfiguring and improving Fenway Park.

To that end, the Red Sox sought approval from the BRA to undertake a series of improvements to the park, including a modification to its seating structure and upgrades to its concourse area. In 2003, the BRA voted to designate the Red Sox's improvement proposal as a "demonstration project plan" under the demonstrations clause of G. L. c. 121B, § 46 (f ), which authorizes the BRA to "develop, test and report methods and techniques and carry out demonstrations for the prevention and elimination of slums and urban blight." As part of the plan, the BRA declared that "in order to protect against urban blight, the ... acquisition and transfer of adjacent areas to the existing Fenway Park are in the best interest of both the [BRA] and the City of Boston." The plan was approved and adopted by the BRA as a "demonstration project."⁸

To carry out the plan, the BRA, among other actions, executed a taking of certain surface easement rights over Yawkey Way for a period of ten years by using its eminent domain power under G. L. c. 121B, § 11 (2003 taking). These rights, however, were limited. The relevant portion of Yawkey Way is owned to the center line by three abutters: the Red Sox, Twins Realty Trust, and Twins Enterprise, Inc.⁹ The city of Boston (city), however, held a surface easement over Yawkey Way that allowed it to operate Yawkey Way as a public way. Accordingly, any proposed use of Yawkey Way beyond its operation as a public way would require the consent of the owners of the fee -- including the Red Sox.

When the BRA executed the 2003 taking of the Yawkey Way easement rights, its taking was limited to the rights held by the city -- specifically, the ability to operate Yawkey Way as a public way so that members of the public could traverse the street. The BRA then entered into a ten-year licensing agreement with the Red Sox, which provided, in pertinent part, that the Red Sox would be permitted to close Yawkey Way to the public for a certain period of time both before and after Red Sox home games in order to utilize the area as an extension of Fenway Park's concourse.¹⁰

Nearly a decade later, in late 2012, with the temporary taking of the Yawkey Way easement set to lapse and the licensing agreement between the BRA and the Red Sox set to expire, the Inspector General sent a letter to the director of the BRA stating that it was the opinion of his office that the licensing agreement between the BRA and the Red Sox could not be "renegotiated, extended or renewed under existing state law absent a new taking." The Inspector General further opined that before any new taking could occur, the BRA would have to "declare Yawkey Way a blighted area." The Inspector General warned, however, that such a declaration "may expose the BRA to a legal challenge ... given the capital improvements made to the area during the demonstration period and the record of...