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April 9, 2008

Are sports facilities "public" recreation? Eminent domain supporters raise questions

Atlantic Yards Report

Is a basketball arena, open only to those citizens willing to pay hefty ticket prices, really a "public use?" Norman Oder looks to a policy paper by two advocates of eminent domain for answers.

An interesting contrast comes in a 2006 paper by two noted supporters of eminent domain and the U.S. Supreme Court's controversial 2005 Kelo vs. New London decision. They raise questions about just how public sports facilities are.

Kelo's Unanswered Questions: The Policy Debate Over the Use of Eminent Domain for Economic Development was written by Robert G. Dreher and John D. Echeverria of the Georgetown Environmental Law & Policy Institute of the Georgetown University Law Center.

Privileging sports facilities?

The relevant comments come in a caution about privileging eminent domain for specific uses, such as sports facilities:
One popular approach to reform already adopted in some states involves prohibiting various specific uses of eminent domain or, what amounts to the same thing, prescribing the allowed uses of eminent domain. This approach seeks to draw clear lines establishing when eminent domain can and cannot be used. The difficulty with this approach is that it turns out to be very difficult to make reasonable generalizations about when the use of eminent domain is appropriate. Apparently because professional sports teams tend to be popular, some enacted and pending legislation provides wide latitude for the use of eminent domain to develop sports stadiums. But, as a matter of principle, it is difficult to understand how one can distinguish between stadiums and other privately-owned public entertainment venues, such as movie theaters and theme parks. Moreover, it is hard to see why sporting arenas, which are accessible only by admission-paying customers, are considered more “public” than shopping centers, which may in a sense serve a lesser civic function, but at least are accessible to all without charge.
(Emphasis added)

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Posted by eric at April 9, 2008 9:56 AM