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Superior Court Upholds Agreement Between Boston Red Sox and BPDA

Englander & Chicoine represented the Boston Redevelopment Authority, now known as the Boston Planning and Development Agency (“BPDA”), in a case recently decided by the Suffolk Superior Court, involving the right to operate concessions on Yawkey Way in the Fenway area of Boston.

Fenway Park has been the home of the Boston Red Sox since 1912. However, the fate of Fenway Park has been in question on more than one occasion.  As the oldest and smallest Major League Baseball park in continuous use in the United States, Fenway Park comes with its challenges.  Transportation and parking options have historically affected attendance figures and jeopardized the future of the Red Sox.

Plans to relocate the ballpark arose in the 1960s and resurfaced in the 1990s. As the new millennium began, legislation was passed declaring Fenway Park to be “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 …”  This legislation and the plans to relocate the stadium faced fierce opposition.  Upon the change in ownership of the Red Sox in 2002, these relocation plans soon turned into redevelopment plans to improve the existing park.

After September 11, 2001, Yawkey Way was closed to vehicular traffic on game days for safety purposes. In August 2002, the Red Sox petitioned the City’s Public Works Department to issue a permit for Yawkey Way to be utilized as an extension of the ballpark for Red Sox games only. The City allowed the petition and entered into a short-term licensing agreement that allowed the Red Sox to close off Yawkey Way as a public way except for ticket holders for up to four (4) hours before the games and up to two (2) hours after the games for that baseball season.

In the fall of 2002, the Red Sox filed an application with the BPDA seeking approval for improvements to Fenway Park needed to enhance the fan experience.  The Red Sox sought to construct the “Monster Seats” over Lansdowne Street and upgrade the concourses within the park, which had “the most limited area for fan amenities, concessions, restrooms and circulation of any park in Major League Baseball.”

The BPDA voted to approve the application for a ten-year term. The 2003 redevelopment efforts of the Red Sox and the BPDA proved fruitful. The Fenway Park neighborhood was revitalized over the ten-year period. Fenway Park became a popular tourist attraction with record attendance. The fate of Fenway Park was saved.

In 2013, the BPDA sought to continue the success attributable to the redevelopment efforts of the Red Sox and the BPDA. The BPDA conducted an eminent domain taking and sold the rights to suspend Yawkey Way as a public way to the Red Sox “for as long as major league baseball games are played at Fenway Park” in order to prevent urban blight and reoccurrence of the obstacles that the Red Sox and the City of Boston faced for decades.

An individual filed a case in court challenging the sale of these rights from the BPDA to the Red Sox. The individual sought to operate concessions on Yawkey Way as his private enterprise. However, in order to do this, he would be required to own all of the interests in Yawkey Way or have permission from the abutters of Yawkey Way to do so.  He sued the BPDA, but ran into a major obstacle, as argued by Englander & Chicoine: the BPDA did not own all of the interests in Yawkey Way – it only held a surface easement to operate a public way. The sale of these rights to the Red Sox allowed the suspension of Yawkey Way as a public way during event days at Fenway Park.

The Superior Court granted BPDA’s Motion for Judgment on the Pleadings, upholding BPDA’s eminent domain taking of the surface rights in Yawkey Way and the subsequent sale to the Red Sox. The Superior Court found that, “unlike in a typical situation where a governmental body solicits bids to dispose of commercial real estate […], the BPDA did not possess and therefore could not solicit bids for the exclusive right to control/use” Yawkey Way during events at Fenway Park. 

Perhaps even more important, the Superior Court ratified the BPDA’s expertise and authority, stating that the agency is tasked with taking the long view on urban renewal and has considerable latitude in articulating a public purpose in support of eminent domain takings.


Stay tuned… the case is currently on appeal.