Daily Development for
Wednesday, November 5, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

PUBLIC LANDS; GOVERNMENT LEASES: Lessee of property owned by the County which is adjacent to the public right of way cannot remove vendors from the public right of way which encumber its property, as the public right of way does not change its character (i.e., become unencumbered, private property), when property is leased from County.

Kelly v. Buffalo Bills Football Club, 655 N.Y.S.2d 275 (S. Ct. 1997).

Erie County leased to the Buffalo Bills football team the stadium property in which the Bills played their games. Each Sunday, vendors would show up peddling merchandise and would crowd a public right of way which crossed over the the leased property adjacent to the stadium.

The Bills tried to ban the vendors from selling their merchandise, but the court held that peddling merchandise on streets and highways is lawful, and regulated by general statutes. Unless they caused a hazard or nuisance, they could not be removed. The court ruled here that the vendors' presence in right of way did not create a public safety hazard.

The Bills argued that as lessees of the stadium and right of way they were entitled to have the vendors removed as trespassers. The argument failed because it was premised on the notion that the public right of way "changed its character" and became the unencumbered private property of the Bills when they leased the entirety of the stadium from the County. The court rejected that premise because the County, as landlord, leased to the Bills the stadium area as encumbered by the right of way. The lessee status of the football team did not alter the status of the right of way.

Comment 1: Obviously it would have been in the Bills' interest to have had the public right of way vacated and then to have all relevant use, maintenance and operation relationships reconfigured as part of the overall stadium lease. Such an agreement could have preserved all of the relevant public benefits and interests, while discarding those that interfered with the purpose of both parties to permit the Bills to operate in tne best possible environment. The Bills attorneys probably were not the first to assume that it is unnecessary to so reconfigure public rights of way serving land that they acquire from a public agency.

Comment 2: The rights of the vendors here probably did not amount to free speech rights. But recent cases in Kansas City and elsewhere have held that panhandlers have a basic Constitutional free speech right on public streets. Buffalo is a little chilly for this kind of urban character, but undoubtedly other public stadiums would prefer to avoid them.

A basic question, not raised in this case, is whether property leased from a public agency remains public property so that denial of Constitutional free speech and religious liberty rights (among other interests) would be viewed as "state action." The editor is not familiar with the precedent here.

Any DIRTers who can contribute on this issue?

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