Eminent Domain for Private Sports Stadiums: Fair Ball or Foul?

Article excerpt

I.   INTRODUCTION
II.  ANOTHER TRAGIC WEST SIDE STORY?
III. GOVERNMENT INVOLVEMENT IN SPORTS STADIUMS
IV.  IS ACQUIRING LAND FOR PRIVATE STADIUMS A PUBLIC USE?
V.   CITY AID FOR PRIVATE STADIUMS: A SOUND INVESTMENT?
VI.  CONCLUSION

I. INTRODUCTION

"Bread and circuses" have been the traditional offerings of government to restive urban citizens since the days of the Caesars. Today's American governors and mayors have lately begun to follow this path, allotting public funds and using the eminent domain power to acquire land for sports stadiums subsequently conveyed to profit-making business enterprises. Diverting public moneys for these uses might be legally and economically dubious at any time, but to do so when public schools, health, and transportation are perennially deprived of adequate resources seems especially wrong-headed. In particular, the use of the eminent domain power for these purposes, I submit, violates the "public use" mandate of the Constitution.

This Essay first describes two current battlegrounds concerning this issue--the proposals to build partially government-financed private stadiums on Manhattan's midtown West Side and in downtown Brooklyn. It then briefly explores the history of government financing and promotion of sports stadiums in the United States, which started in the 1920s and has gathered momentum in recent years. The Essay next examines whether exercising the power of eminent domain for private stadiums is a public use under the Constitution, and finally, whether municipal funding of private stadiums is beneficial or harmful to large but financially deprived cities.

II. ANOTHER TRAGIC WEST SIDE STORY?

The City of New York has long thirsted to place a major sports stadium on the West Side of Manhattan. In the 1990s Mayor Rudolph Giuliani brandished plans to move Yankee Stadium from its historic Bronx location to the area between Penn Station and the Hudson River. This foundered on the Yankees' management's insistence that the city foot most of the bill, as well as resentment over the team abandoning the Bronx. (1) Under current Mayor Michael Bloomberg, a proposal has been advanced to build a stadium for the National Football League's New York Jets (now in New Jersey), tied in with plans to enlarge the Javits Convention Center. (2) The city characterizes the stadium as a "multi-use facility" for "sports, exhibition, and entertainment events," including NCAA games, soccer matches, and concerts, in addition to Jets football. (3) The current plan envisages a 75,000-seat sports stadium that could be "reconfigured" into a hall or convention facility adjacent to the existing convention center and possibly used in the 2012 Olympics, should New York host the Games. (4) The city anticipates that the Jets will pay for the multi-use facility, except for its roof and the platform over the rail yards below it--its floor, in effect--which the Metropolitan Transportation Authority is to pay for. (5)

Opponents of the project have voiced concern over the facility's impacts on the area--particularly the increased traffic, poorer air quality, heightened noise, and potential land-use restrictions--together with its cost. Some are skeptical about the plan for the Jets to shoulder much of the expense, estimated at $1.4 billion. (6) According to the proposal, the Jets are to contribute $800 million and the city and state $300 million each. (7)

Proponents of the West Side stadium contend it will create employment--18,000 construction workers and 6,700 permanent employees, (8) Mayor Bloomberg has enthusiastically embraced it as "the centerpiece of the city's bid for the 2012 Olympics." (9) As noted, the overall proposal, priced at $2.8 billion, includes expanding the Javits Convention Center and extending the subway to reach these structures several long blocks west of the nearest existing mass transit.

West Side residents and their local elected officials appear hostile to the stadium, though they favor the subway improvements. …