Eminent domain for private sports stadiums: fair ball or foul?

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. Indeed, a poll of New Yorkers in March 2004 showed that 60 percent opposed and only 33 percent favored the stadium, while over 80 percent supported the Javits Center and transit proposals. (10) The City's Independent Budget Office has voiced concern over the City's reliance on short-term borrowing to finance its portion of the project at higher interest rates than conventional municipal bonds. (11) Similarly, the prestigious Regional Plan Association opposes the stadium, predicting it will result in "walling off the district from the river and creating both auto and pedestrian congestion ... deterring the long-term development of the district." (12) It favors high-density residential development over the rail yards. (13)

The entire project, encompassing the stadium, convention center expansion, and subway extension, is the subject of environmental review under the City Environmental Quality Review process, (14) based on New York's State Environmental Quality Review Act, (15) and a final generic environmental impact statement (FGEIS) has been jointly prepared by the City Planning Commission and Metropolitan Transportation Authority (MTA). (16) A suit to enjoin this process, alleging the FGEIS fails to properly weigh traffic, transit, and related impacts, has been dismissed as unripe. The court ruled the project's opponents may seek judicial review if the proposal is approved. (17)

Most recently, the MTA received offers for the air rights atop its rail yards in amounts far in excess of the Jets' offer. (18) In great need of funds for maintenance and improvements, the MTA can hardly spurn opportunities to obtain hundreds of millions more for its air rights and indeed is probably obliged to deal with the bidder that "will provide maximum available financial benefits, consistent with other defined objectives and requirements." (19)

The plans for Brooklyn encompass large-scale development by the Forest City Ratner Corporation. The Ratner Corporation seeks to use the eminent domain power of New York State's Empire State Development Corporation to acquire enough land for a basketball arena for the National Basketball Association's New Jersey Nets, owned by Bruce Ratner, along with 4,500 new apartments and 2.4 million square feet of office and retail space. The project would be built in part over the Long Island Rail Road terminal on Brooklyn's Atlantic Avenue, but would require the condemnation of private residences now occupied by more than 140 families. (20) Here, too, locals and their elected officials mostly oppose the project. Representative Major Owens advocates building the arena at the former Brooklyn Navy Yard, already owned by the city. (21) The Mayor supports this development as well as the West Side's, again tying it into the city's bid for the 2012 Olympic Games. (22)

III. GOVERNMENT INVOLVEMENT IN SPORTS STADIUMS

Sports stadiums were not always viewed as a subject for government promotion and sponsorship. Nearly all the historically well-known stadiums--Yankee Stadium, the Polo Grounds, Fenway Park, Comiskey Park, Wrigley Field--were built with private funds by the teams themselves. (23) The Los Angeles Coliseum, Chicago's Soldier Field, and a few other municipally owned stadiums were exceptions, uncontroversial at the time. (24) After World War II, when sports, especially professional football, became big business, this picture changed. A watershed moment was the Brooklyn Dodgers' 1958 move to Los Angeles after the City of New York turned down their demand for a municipally financed stadium. (25) Los Angeles provided a new stadium, and San Francisco followed suit, enticing the New York Giants. (26)

Since then, most new major-league stadiums have been municipally financed as cities--especially in the South and West--vied for teams. (27) To further this process, the Internal Revenue Code renders municipal bonds to finance stadiums tax-exempt even though they were to benefit a "private activity," by defining that term to exempt many stadiums. (28) This was plainly an end-run around the very reason municipal bonds are tax exempt: the "public purpose" of financing roads, schools, sewage plants, and other clearly public endeavors. (29) An attempt, sponsored by New York's Senator Moynihan, to repeal this exemption, failed in 1996 despite the Senator's plea: "Building new professional sports facilities is fine with me. But, please, do not ask the American taxpayer to pay for them." (30)

Assembling sites for huge sports stadiums in urban areas or their built up suburbs often requires acquisition of land through eminent domain. This raises an issue similar to the "private activity" provision for municipal bonds: Is the exercise of the eminent domain power to obtain land for privately operated stadiums a "public use"? Since that mandate is in the Constitution itself, in contrast to the bond tax exemption, Congress lacks the power to legislate it away.

IV. IS ACQUIRING LAND FOR PRIVATE STADIUMS A PUBLIC USE?

The Fifth Amendment explicitly limits the power of eminent domain, derived from English common law, to acquisitions for a "public use." (31) The Supreme Court has given a broad reading to "public use," holding in Berman v. Parker (32) that it supports a taking of viable commercial property within an area slated for urban renewal. (33) The Court later, in Hawaii Housing Authority v. Midkiff, (34) upheld the taking of land under Hawaii's unique land-use system, where nearly all residential property was owned by a few families to whom virtually every resident was obliged to pay ground rent. (35) The land taken by the state was then sold to its occupants to correct these historic inequities, described by the Court as the legislatively "perceived evils of concentrated property ownership." (36) Most recently the Court approved the condemnation of railroad track to be used by Amtrak, a private corporation created and subsidized by Congress to operate rail passenger service, despite the track being later conveyed to another private railroad. (37)

These cases sustained government acquisition of property for a public use although in some cases the eventual owners were private entities, because the public benefit was so abundantly clear. But what if the gain to the public is not so evident?

When governments exercise eminent domain to turn over the acquired property to a private company to achieve public benefits like employment, increased local property tax base, and recreation, the public use is not as clear. Indeed, courts have been divided as to whether those are public uses at all. The controversial 1981 decision of the Michigan Supreme Court in Poletown Neighborhood Council v. City of Detroit (Poletown) (38) sustained the City of Detroit's acquisition of a group of homes to be demolished so General Motors could build an assembly plant. (39) A divided court ruled that this taking of private homes to benefit a private corporation so as to increase employment in the rust belt city constituted a public use. (40) The court did suggest that "heightened scrutiny" was appropriate when eminent domain benefited private parties, but hardly wielded it. (41) The dissent aptly characterized the holding as placing a "judicial imprimatur upon government action taken under the policy of the end justifying the means." (42)

Vehemently and rightly criticized, (43) Poletown was recently overruled. In County of Wayne v. Hathcock, (44) the Michigan Supreme Court, rejecting the employment assertions that had carried the day in Poletown, overturned a taking to create a business and technology park. (45) Both decisions were grounded in the state constitution's "public use" mandate, which mirrors the Fifth Amendment. There was no dispute that augmented employment would benefit the public. However, the court ruled that the gains to private parties outweighed the public benefits, so the condemnation was not for a public use. The court found Poletown an "unabashed departure" from precedent and squarely overruled it. (46)

Acquiring land through eminent domain for a "multi-purpose" facility designed for "sports and entertainment" was upheld in Schreiner v. City of Spokane. (47) However, that case was not a constitutional public-use challenge; rather, it concerned a stadium to be owned and operated by the city. (48) In contrast, the eminent domain acquisition of land to be leased to a minor league baseball club for a stadium owned by the club was annulled in City of Springfield v. Dreison Investments, Inc., (49) which held that "the primary beneficiary of the City's contribution to the project was not the public." (50) The decision, though it discussed public use, largely turned on the improper diversion of city funds. (51)

Several courts have looked at the related issue of whether governmental funds for stadiums are gifts of public money, barred by many state constitutions. Most have sustained the use of those funds, even for stadiums to be leased to private teams. (52)

One court upheld eminent domain acquisition of land for an auto racetrack to be privately owned and operated, concluding it was a public use fostering "the development of recreational facilities and the facilitation of economic development." (53) Surely, this proves too much. What private use would not foster development?

The New York courts have been especially prodigal in defining "public use" to uphold eminent domain acquisitions. A city industrial development authority's condemnation of private property to be conveyed to a private shopping mall developer was upheld in Sun Co. v. City of Syracuse Industrial Development Agency, even though the developer paid compensation for the parcels it obtained, with the city agency just a matchmaker. (54) Three decades earlier the acquisition of the World Trade Center property by the Port Authority, a bi-state government agency, was sustained although the buildings' tenants were to be mainly private. The buildings, of course, remained in public ownership. The court ruled, "[O]nly 'portions' of structures otherwise devoted to project purposes [furthering port development] [were] to be used for 'the production of incidental revenue ... for the expenses of all or part of the port development project.' Thus considered it does not vitiate the public purpose of the development as a whole." (55) The dissent, in contrast, characterized the project and its authorizing statute as a "grant to the Port Authority [of] extensive and uncontrolled governmental power to condemn and manage private real property for private purposes." (56)

Similarly, the Connecticut Supreme Court has sustained an acquisition and conveyance of residential property by the City of New London to private developers in order to build a hotel, offices, and condominiums surrounding an industrial park. (57) The court concluded that "permitting and assisting municipalities to acquire and improve unified land and water areas ... for industrial and business purposes ... are public uses." (58) Fortunately, the United States Supreme Court has granted certiorari (59) and should overturn this extremely prodigal view of public use. The New London decision has already helped produce bizarre results. The City of Stamford, unsuccessful in trying to acquire a diner through eminent domain for a "redevelopment" project consisting of private apartment buildings, has recently fenced off the resistant diner's parking lot and waste bins in order to force it to capitulate. (60)

Not surprisingly, public use has been an issue in which municipalities employ their eminent domain power to benefit the casino business, an industry expanding even more rapidly than sports, but one whose profits are, by statute, often partly directed to education and similar public purposes. Nonetheless, a New Jersey court ruled that the State's Casino Reinvestment Development Authority could not condemn land for a casino hotel's future development, though constructing a hotel promptly would seemingly have been to the court a valid public use. (61) New Jersey does not use the heightened scrutiny even the Poletown court imposed when eminent domain is exercised to benefit private parties. (62) Mississippi's Supreme Court went even further and held that the burden is on the condemner to prove public use. (63) Finding that the property was to be conveyed to a private gaming company with no restrictions on its ultimate use, the court overturned a city's acquisition of waterfront land for a riverboat casino: "Because the use of [the] land will be at the whim of Harrah's, the private use of [the] property will be paramount, not incidental, to the public use and any public benefit from taking will be speculative at best." (64)

There is surprisingly little in the history of the Fifth Amendment's Takings Clause that sheds light on the boundaries of the public use requirement. As one legal scholar has noted, "neither in the Convention nor in the state ratifying conventions was the expropriation of property by government the subject of explicit debate." (65) Thus, "[d]ue to a scant and ambiguous historical record, the original intent of the Fifth Amendment Takings Clause cannot be known," relegating seekers of that intent to "the scholar's choice of emphasis." (66)

The idea that the power of eminent domain, a fundamental sovereign power of government, ought to have as "the first requisite [the] public advantage" can be traced back to Grotius's 17th century writings. (67) Early American 19th century decisions made clear that "the interest, or even the expediency, of the State" was a sine qua non for eminent domain. (68) The Supreme Court reminded us from the outset that it would be unconstitutional for "a legislative act to transfer the property of A to B." (69) These views were closely linked to the public trust doctrine and the overarching idea of public rights. (70)

As industrialization expanded in the 19th century, however, courts approved the exercise of eminent domain for a host of economically beneficial uses by private enterprises: railroads, milldams, water power for manufacturing, and irrigation of farmland. (71) This broader definition of public use was a manifestation of the markedly pro-industry attitude of the courts in the Lochner era. Here industry enlisted the government as an ally instead of resisting it as an adversary. (72) Of course, the use of eminent domain by railroad companies and electric and gas utilities bears a manifest public purpose, in clear contrast to private stadiums and industrial parks.

While Berman v. Parker sustained the use of eminent domain for urban renewal and took a broad view of legislative power--"[t]he role of the judiciary in determining whether [eminent domain] ks being exercised for a public purpose is an extremely narrow one'--it nonetheless upheld the use of eminent domain as part of a legislative plan to eliminate slums from a widespread urban area and replace them with a planned community. (73) But even this is worlds apart from government wielding the axe of eminent domain to seize private land for a shopping mall or a private company's stadium.

Although surprisingly scant precedent exists regarding government acquisition of property for privately owned sports stadiums, the better-reasoned view is that such acquisition does not fulfill a public use. To find a public use here would stretch the Berman and Midkiff holdings far beyond reason and the Constitution's intent. Even the discredited Poletown decision--now sensibly overruled--offered more support for its conclusion than the use of eminent domain to benefit private stadiums provides. This issue is interwoven with the economic, political, and land-use questions involving private stadiums built with municipal largesse.

V. CITY AID FOR PRIVATE STADIUMS: A SOUND INVESTMENT?

Political enthusiasm for using public funds and the eminent domain power to build stadiums for profit-making major league teams is based far more on wishful thinking than on economic reality. The support for this profligate subsidization when public schools, mass transit, and public health are in desperate need of municipal funds derives in large measure from the milking of sports fans' emotions and civic pride. The facts point in a different direction. Indianapolis, a mid-sized city, spent an astounding three billion dollars between 1974 and 1999 in attracting auto racing, basketball, and other sports' fans, with little economic gain. (74) In fact, unemployment there increased significantly relative to other Midwestern cities, despite these extraordinary expenditures. (75)

The record belies the oft-touted claim of increased employment from subsidized major-league stadiums. The City of Baltimore spent $200 million on its Camden Yards stadium. (76) Though the stadium remains in city ownership, the National Football League's Baltimore Ravens use it rent-free and receive half the revenue from non-football events held there. (77) The Congressional Research Service estimates that for every new position created by the move, taxpayers spent from $127,000 to $331,000. (78) Yet Camden Yards, built near Baltimore's main tourist attraction--its Inner Harbor, lined with seafood restaurants--is probably the best located of new downtown stadiums and has been aptly described as "an integral part of Baltimore's renaissance." (79)

Objective studies consistently show building sports stadiums to be a poor investment for cities. A stadium typically employs fewer than fifty people full-time, excluding the team's employees. (Many more work on occasions when a game takes place, of course.) (80) As one writer notes, "[f]ew would argue that professional sports teams pay enough in rent and concession incomes to reimburse their municipal landlords for the use of the municipal stadiums they inhabit." (81) A 1994 study showed only one of fourteen cities earned a return on its investment in a recently built sports stadium, (82) Proponents' euphoric views of these investments have been accurately described as a case of "believing is seeing." (83) Mayors and other municipal functionaries bask in their association with "the sports elite"--"a nice monument to one's administration." (84) The team owners' frequent threats to pull up stakes if not furnished with a new stadium have been compared to the 19th century railroads' threats to bypass towns whose bankers failed to invest in the companies' bonds. (85)

Part of the problem is that "[r]evenues derived from stadium-related activities ... have ... become team owners' main sources of profit," exempt from the leagues' mandates that profits from attendance and television royalties be shared among teams. (86) For this reason, "[l]uxury boxes are at the top of virtually every team owner's list of demands" (87)--accommodations priced far beyond what many urban fans can afford. (88)

Municipal funding for stadiums almost invariably involves the issuance of bonds, as do the plans for the government-funded portion of the proposed West Side Stadium. (89) As indebtedness increases, payments for debt service rise, requiring vast diversions of funds from education, transit, and other basic public needs. In addition, greater indebtedness usually impairs a municipality's credit rating, causing interest rates to climb further. (90) Indeed, New York City Comptroller William C. Thompson challenged the proposed West Side stadium on those grounds. (91) Proponents of stadium funding often argue that spending increases in the area help offset these burdens. But again, the evidence seems not to support that hope. Much revenue obtained at a new sports stadium is simply diverted from existing recreational activities. (92) And ironically, in all too many cases, city residents end up subsidizing suburban spectators. (93)

Some mayors have used a referendum to justify what might otherwise later be viewed as an imprudent use of city funds. This technique simply "allows politicians to wash their hands of the situation because the decision to attract, retain, or release the professional sports team was placed in the hands of the voters." (94) In the end, as the record shows, "higher levels of public funding demonstrate no evidence of improving the quality of life in a metropolitan area," a clear case of "rhetoric versus reality." (95)

VI. CONCLUSION

Two points stand out dramatically: first, whatever the legal justifications for multi-purpose, municipally-owned stadiums, they do not warrant the exercise of the eminent domain power, or the lavish outpouring of municipal funds diverted from public schools, transportation, health care, and police, for stadiums owned by, or leased to, private teams. The economic record fails to support this largesse, especially at a time when cities' needs continue to expand while state and federal aid is diminishing. In addition, it is time for the courts to cabin the power of eminent domain when used to benefit essentially private interests. The PoIetown era should have ended long ago, and the Supreme Court, as well as the states' highest courts have an opportunity--indeed, an obligation--to end it now.

(1) As Yankees, Nets Merge, Ruth's House May Get New Name, BOSTON GLOBE, Mar. 2, 1999, at D6; Frank Bruni, In the Bronx, Welcoming the World Series as a Reflection on Home, N.Y. TIMES, Oct. 16, 1996, at B3.

(2) METRO. TRANSP. AUTH., CITY OF NEW YORK, FINAL GENERIC ENVIRONMENTAL IMPACT STATEMENT: NO. 7 SUBWAY EXTENSION, HUDSON RIVER YARDS REZONING AND DEVELOPMENT PROGRAM ES-3 (2004) [hereinafter FGEIS], http://nyc.gov/html/dcp/html/hyards/eis.html.

(3) Id. at ES-7.

(4) Id.

(5) Id. at ES-8.

(6) Graham Rayman, Tax-Exempt Stadium Bonds a Possibility, NEWSDAY, July 16, 2004, at A17, available at 2004 WL 84871074.

(7) Michael Saul, It's West Side Glory, N.Y. DAILY NEWS, Mar. 26, 2004, at 2, available at 2004 WL 59137567.

(8) Michael Saul, W. Side Campaign Builds, N.Y. DAILY NEWS, May 18, 2004, at 20, available at 2004 WL 76394476.

(9) Id.

(10) Glenn Thrush, West Side Stadium Poll: Not With Taxes, NEWSDAY, Apr. 2, 2004, at A3, available at 2004 WL 75435595.

(11) CRAIN'S NEW YORK BUSINESS, Aug. 9, 2004, at 31.

(12) John Brennan, New Stadium for Jets Has a Key Opponent, REC. (Bergen Co., N.J.), July 20, 2004, at A4, available at http://www.northjersey.com/page.php?qstr= eXJpcnk3ZjcxN2Y3dnFIZUVFeXkyJmZnYmVsN2Y3dnFIZUVFeXk2NTU3NTgy.

(13) Id.

(14) Exec. Order No. 91, City of New York (1977); 62 RULES OF CITY OF NEW YORK, ch. 5.

(15) N.Y. ENVTL. CONSERV. LAW [subsection] 8-0101 to 8-0117 (McKinney 1997).

(16) See FGEIS, supra note 2.

(17) Hell's Kitchen Neighborhood Ass'n v. Dep't. of City Planning (N.Y. Sup. Ct. Sept. 27, 2004), N.Y.L.J., Sept. 27, 2004, at 18.

(18) Dave Anderson, Sports of the Times: Roman Numerals Are Factored in on West Side, N.Y. TIMES, Mar. 16, 2005, at D1.

(19) See N.Y. Pub. Auth. Law [section] 1265(6)(b)(iii) (McKinney 1999).

(20) Paul H.B. Shin, Nets' Foes to Protest Arena N.Y. DAILY NEWS, Mar. 28, 2004, at 5, available at 2004 WL 59137835; Bill Egbert, Counter Arena Plan, N.Y. DAILY NEWS, Apr. 26, 2004, at 29, available at 2004 WL 76392086.

(21) Egbert, supra note 20.

(22) Hugh Son, Arena Plan About Gold, Not Olympics, Say Foes, N.Y. DAILY NEWS, Aug. 25, 2004, at 52, available at 2004 WL 87438563.

(23) See Zachary A. Phelps, Stadium Construction for Private Sports: Reversing the Inequities Through Tax Incentives, 18 ST. JOHN'S J. LEGAL COMMENT. 981, 983 (2004).

(24) Id. at 983 n.9 (citing Andrew H. Goodman, The Public Financing of Professional Sports Stadiums: Policy and Practice, 9 SPORTS LAW. J. 173, 180 (2002)).

(25) Phelps, supra note 23, at 986; Mark Conrad, Can the Dodgers Ever Return to Brooklyn?, N.Y. L.J., Jan. 24, 1997, at 5.

(26) Phelps, supra note 23, at 986.

(27) Id. at 985-87.

(28) 26 U.S.C. [subsection] 103(a), 141 (2000). The 1986 amendment somewhat limited a 1968 law exempting a greater number of municipal bonds, but kept those for stadiums tax-exempt. Goodman, supra note 24, at 180-84.

(29) See PAUL R. MCDANIEL ET AL., FEDERAL INCOME TAXATION 323 (4th ed. 1998) (discussing the purpose of creating a tax exemption for municipal bonds).

(30) 142 CONG. REC. 24,194 (1996); see also Keith Negrin, If You Build It, They Might Stay: Unconscionability in Modern Sports Stadium Leases, 30 PUB. CONT. L.J. 503, 513 (2001) (describing Senator Moynihan's proposed bill to prevent the use of tax-exempt bonds to finance sports stadiums). The bill was H.R. 2740, 104th Cong. (1995). See id.

(31) U.S. CONST. amend. V. The Fifth Amendment applies to the states through the Fourteenth Amendment's Due Process Clause. Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1896).

(32) 348 U.S. 26 (1954).

(33) Id. at 35-36.

(34) 467 U.S. 229 (1984).

(35) Id at 232-33 (noting that while state and federal governments owned 49% of the State's land, 47% was owned by a total of 72 private landowners).

(36) Id. at 245.

(37) Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407 (1992).

(38) 304 N.W.2d 455 (Mich. 1981).

(39) Id at 457.

(40) Id. at 459.

(41) Id.

(42) Poletown, 304 N.W.2d at 465 (Ryan, J. dissenting).

(43) See, e.g., Jonathan N. Portner, The Continued Expansion of the Public Use Requirement in Eminent Domain, 17 U. BALT. L. REV. 542, 551 (1988).

(44) 684 N.W.2d 765 (Mich. 2004).

(45) Id. at 787-88.

(46) Id. at 785.

(47) 874 P.2d 883, 886-88 (Wash. App. 1994); see also City of Chattanooga v. Classic Refinery, Inc., No. 03A01-9712-CV-00552, 1998 WL 881862 (Tenn. App. Dec. 17, 1998) (suggesting municipal stadium public use).

(48) See Schreiner, 874 P.2d at 887-88.

(49) Nos. 19991318, 991230, 000014, 2000 WL 782971 (Mass. Super. Feb. 25, 2000).

(50) Id. at *47.

(51) See id. (discussing the process by which the taking occurred).

(52) See, e.g., N.J. Sports & Exposition Auth. v. McCrane, 292 A.2d 580 (N.J. Super. 1971), aff'd, 292 A.2d 545 (N.J. 1972); Bazell v. City of Cincinnati, 233 N.E.2d 864 (Ohio 1968); Martin v. City of Philadelphia, 215 A.2d 894 (Pa. 1966); King County v. Taxpayers of King County, 949 P.2d 1260 (Wash. 1997); Libertarian Party of Wisc. v. State, 546 N.W.2d 424 (Wisc. 1996). But see Opinion of Justices, 250 N.E.2d 547, 558 (Mass. 1969) (asserting the use of funds was invalid since such use had the "effect to subsidize private organizations operated for profit"); Dale F. Rubin, Public Aid to Professional Sports Teams--A Constitutional Disgrace: The Battle to Revive Judicial Rulings and State Constitutional Enactments Prohibiting. Public Subsides to Private Corporations, 30 U. TOL. L. REV. 393 (1999).

(53) State ex rel. Tomasic v. Unified Gov't of Wyandotte County, 962 P.2d 543, 553 (Kan. 1998) (citing Mid-Am. Pipeline Co. v. Lario Enters., Inc., 716 F. Supp. 511, 517-18 (D. Kan. 1989)).

(54) 625 N.Y.S. 2d 371, 378-79 (App. Div. 1995), appeal dismissed, 655 N.E. 2d 700 (N.Y. 1995).

(55) Courtesy Sandwich Shop, Inc. v. Port of New York Auth., 190 N.E.2d 402, 406 (N.Y. 1963) (internal citations omitted), appeal dismissed, 375 U.S. 78 (1963).

(56) Id. at 407 (Van Voorhis, J., dissenting).

(57) Kelo v. New London Dev. Corp., 843 A.2d 500 (Conn. 2004), cert. granted, 125 S. Ct. 27 (2004).

(58) Id. at 520.

(59) New London Dev. Corp., 125 S. Ct. 27.

(60) Alison Leigh Cowan, In Dispute, Stamford Fences In Popular Diner, N.Y. TIMES, Oct. 9, 2004, at B6; see also Aposporos v. Urban Redevelopment Corp. of City of Stamford, 790 A.2d 1167 (Conn. 2002).

(61) Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102, 111 (N.J. Super. Ct. Law Div. 1998).

(62) Township of West Orange v. 769 Assoc., LLC, 800 A.2d 86 (N.J. 2002).

(63) Mayor of Vicksburg v. C.N. Thomas, 645 So. 2d 940, 942 (Miss. 1994).

(64) Id. at 943.

(65) Harry N. Scheiber, The "Takings" Clause and the Fifth Amendment: Original Intent and Significance in American Legal Development, in THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 234 (Eugene W. Hickok, Jr. ed., 1991).

(66) Andrew S. Gold, Regulatory Takings and Original Intent: The Direct, Physical Takings Thesis "Goes Too Far," 49 AM. U. L. REV. 181, 182, 185 (1999).

(67) Id. at 219-20 n.217 (quoting GROTIUS, DE JURE BELLIS ET PACIS, book VIII, ch. 14, [section] 7 (1625)).

(68) West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 535 (1848) (upholding acquiring a private bridge for a public road).

(69) Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 658 (1829); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (noting that "[i]t is against all reason and justice, for a people to entrust a Legislature" with the power to enact "a law that takes property from A. and gives it to B").

(70) See Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 452-54 (1892) (articulating the public trust doctrine by holding that title to submerged land under navigable waters is held in trust for the people); Harry N. Scheiber, Public Rights and the Rule of Law in American Legal History, 72 CAL. L. REV. 217, 224 (1984) (discussing history and development of public rights in American jurisprudence).

(71) See, e.g., Chicago, Burlington, & Quincy R.R. Co. v. Wilson, 17 Ill. 123 (1855); Hairston v. Danville & W. Ry. Co., 208 U.S. 598 (1907); Scudder v. Trenton Del. Falls Co., 1 N.J. Eq. 694 (1832) (water power); Great Falls Mfg. Co. v. Fernald, 47 N.H. 444 (1867) (water power); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112 (1896); Clark v. Nash, 198 U.S. 361 (1904) (irrigation); see also AMERICAN LAW AND THE CONSTITUTIONAL ORDER: HISTORICAL PERSPECTIVES 132-41 (Lawrence M. Friedman and Harry N. Scheiber eds., 1988) (discussing eminent domain and citing these and additional cases).

(72) See Lochner v. New York, 198 U.S. 45 (1905); Allgeyer v. Louisiana, 165 U.S. 578 (1897); Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating attempts to regulate business practices on due process or federalism grounds).

(73) 348 U.S. 26, 32 (1954).

(74) Peter Sepulveda, Comment, The Use of the Eminent Domain Power in the Relocation of Sports Stadiums to Urban Areas: Is the Public Purpose Requirement Satisfied?, 11 SETON HALL J. SPORT L. 137, 145 (2001).

(75) Id. (noting that Indianapolis fell from second place in 1977 to fifth in 1989 in average per capita income among Midwestern cities).

(76) Id. at 146.

(77) Id.; Negrin, supranote 30, at 508-09.

(78) Sepulveda, supra note 74, at 146 (citing JON MORGAN, GLORY FOR SALE: FANS, DOLLARS, AND THE NEW NFL 312 (1997)).

(79) Kenneth L. Shropshire, Sports Facilities, Franetuses, Events and the American Urban Renaissance, 30 U. TOL. L. REV. 385, 391 (1999).

(80) Id.

(81) Dean V. Baim, The Rational Behavior Behind NFL Relocations, 30 U. TOL. L. REV. 443, 443 (1999).

(82) Id.

(83) Id. at 445.

(84) Id. at 450.

(85) Shropshire, supra note 79, at 388.

(86) Negrin, supra note 30, at 505. The National Football League, National Basketball Association, and National Hockey League have these profit-sharing requirements; the baseball leagues do not. Id.

(87) Id. at 507.

(88) This price gouging is not limited to luxury box sales: A recent report shows that a family of four spent $368 in 2004 to attend a Jets game and $362 at a New York Knicks basketball game. Charles V. Bagli, Federal Court Is the Next Stop in Jets-Cablevision Staduim War, N.Y. TIMES, Mar. 17, 2005, at B1. These figures include the cost of a frugal purchase of "four hot dogs, two caps, sodas, and beer." Id.

(89) FGEIS, supra note 2, at ES-8.

(90) Sepulveda, supra note 74, at 148-49.

(91) Charles V. Bagli, Plan for Financing West Side Development Is Called 'Extremely Risky', N.Y. TIMES, Oct. 21, 2004, at B1.

(92) Sepulveda, supra note 74, at 149; Baim, supra note 81, at 445.

(93) Shropshire, supranote 79, at 391.

(94) Lee Geiger, Cheering for the Home Team: An Analysls of Public Funding of Professional Sports Stadia in Cincinnati, Ohio, 30 U. TeL. L. REV. 459, 461 (1999).

(95) Brett Smith, If You Build It Will They Come? The Relationship Between Public Financing of Sports Facilities and Quality of Life in America's Cities, 7 GEO. PUB. POL'Y REV. 45, 57-58 (2001).

PHILIP WEINBERG *

* [c] Philip Weinberg, 2005. Professor of Law, St. John's University School of Law. The author is indebted to Alissa Picardi and Louis Gioia, St. John's University School of Law Class of 2006, for research assistance.