Bruce Abramson

Now and then a tale of true irony comes across my transom.  One such tale arrived in this morning’s San Francisco Chronicle, courtesy of columnists Matier & Ross. 
 
Fans of either football or stadium construction may know that our municipal government had a bit of a falling out with our local NFL franchise late last year. In November 2006, the San Francisco 49ers announced that negotiations over a new stadium site in San Francisco had failed, and that they would move the team to Santa Clara in 2012 (that’s about 40 miles away, just northwest of San Jose for non-locals).  They selected a stadium site between Paramount’s Great America amusement park and the Santa Clara Convention Center.  Needless to say, San Franciscans were not pleased.
 
Here’s where the irony starts.  It turns out that running across the entire length of the proposed stadium site—just beyond where the southern end zone would be—an 80-foot wide water right-of-way houses a pipeline carrying water from the Sierras to the Bay Area.  As part of the Hetch Hetchy system, it is a critical link in the water supply serving about 2.4 million urbanites and suburbanites.  It also falls under the ownership of the San Francisco Public Utilities Commission, an agency of San Francisco.  (Disclaimer: San Francisco is both a city and a county.  I am uncertain whether the PUC is a city or county agency.  If pressed, I would guess “county,” but I am entirely certain that the answer is irrelevant for present purposes). 

Under normal circumstances, that would be ironic enough.  In the words of one anonymous official, it is "unbelievable leverage for us. It's quite remarkable.''  In fact, it’s a Hail Mary play in the making.
 
There's another level to the irony, though, that, to the best of my knowledge, has yet to be explored.  Suppose that, rather than the SFPUC, some private entity owned that right-of-way. Clearly, the 49ers' asserted interest in the site would raise its value, and that owner would be able to negotiate a better price.  Suppose further, though, that the private owner in question was a football fan intent upon keeping the San Francisco 49ers in San Francisco.  Such an owner might refuse to sell at any price, effectively foreclosing the site from stadium construction and sending the team scurrying back—if not to San Francisco, then at least to somewhere other than Santa Clara.
 
It seems likely that the Santa Clarans who had cheered the team’s announced move might be displeased.  Fortunately, given the Supreme Court’s ruling in Kelo v. New London, and California’s recent rejection of Prop. 90—which would have repudiated Kelo, among other things —Santa Clara would have had an easy recourse. 

In the Kelo decision, the Supreme Court announced that there are no effective limits on eminent domain.  Any time that a municipal government announces that it has found a “public use” for private property, the municipality may simply seize the property in exchange for “just compensation.”  In Suzette Kelo’s case, the “public use” was development of the New London waterfront in an attempt to increase the town’s tax base.  It’s a pretty safe bet that building a stadium to attract an NFL franchise would cross this relatively low hurdle.  (Don’t worry too much about the water; I’m sure that the pipe can run beneath a stadium quite happily).
 
As a result, no private owner could interfere with the best laid plans of Santa Clarans and 49ers.  But how about a government agency—and in particular, an agency of a municipality scorned?  Can one municipality confiscate land within its own borders if the owner is a sister municipality? 
 
Maybe it’s just me.  Maybe I would find this story less amusing if I were a football fan; if I didn’t care about eminent domain; or if I understood why municipalities happily whore themselves to private businesses that happen to be sports franchises.  But from where I’m sitting, the fun is just beginning.

Bruce Abramson is the President of Informationism, Inc., a San Francisco-based consultancy. He blogs at The Informationist.