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Arena Opponents Never Say Die 

The new NBA owner has come to town, deals have been made, plans have been laid, the daily paper and uptown businessmen have gushed. Despite all that, though, foes of the arena haven't given up their fight to stop the city from breaking ground for an uptown sports facility. They've just changed tactics. Now they say they plan to fight the arena in court, and have secured the services of a nationally known conservative legal foundation located in Washington, DC to help them in their fight.Former City Councilmember Don Reid and Charlotte businessman John Sullivan say the group is studying legal strategies for suing the city, and potentially other parties, on behalf of at least 10 disgruntled Charlotteans who would act as plaintiffs in the suit.

At issue, they say, are a number of legal questions, including whether the $265 million arena deal between the city, the NBA and the owners of a new NBA team violates the North Carolina constitution, state statutes, and the city charter. Although those Creative Loafing spoke to were unwilling to disclose exactly what their legal strategy would be, they say it will likely focus on whether the deal confers privileges upon private parties without public benefit. A loosely connected city agency called the Coliseum Authority runs the current coliseum on Tyvola Road. The new arena deal allows the new NBA team to run the arena, including making decisions on who can use it when the team isn't playing, and reap virtually all the profits generated by the facility, including those from other events not affiliated with the NBA, such as the circus, rock concerts, or ice shows. The cost of constructing the facility will be paid for with proceeds from a tax on hotel stays and from the sale of property originally purchased with property tax money.

Reid says that aside from construction jobs that will be created to build the arena, the city hasn't stated any specific publicly beneficial economic impact the new arena will have.

The suit also may focus on whether the new NBA team that will occupy the arena can legally be allowed to run it according to the city charter. Reid and others CL spoke to say they're waiting for final documents pertaining to the arena agreement to be released to the public so they can study them and chart the best legal strategy. Exactly when the suit might be filed is unclear.

Suits like this one have ultimately failed both here and across the country, but members of the anti-arena group, including one local attorney, say that the unique way in which Charlotte's arena deal is structured leaves the door open for their lawsuit. So does a changed legal climate.

In 1996, the North Carolina Supreme Court overturned a ruling in a lawsuit based upon a similar theory. The suit, filed by Winston-Salem attorney William Maready, challenged whether it was constitutional for Winston-Salem and Forsyth County to use public money as an incentive to attract businesses. A lower court judge had ruled the practice illegal.

At the time, Democrats dominated the state Supreme Court and the vote to overturn the ruling ran along partisan lines. Today, Republicans hold a 6-1 majority on the court, which the group feels might give them a better chance of winning in the long run.

Another 1998 suit, filed by Charlotte businessman and former mayoral candidate Ed Peacock, challenged whether it was legal for the Coliseum Authority, a separate city body that ran the old coliseum, to share 50 percent of the profits from parking and concessions with the team. A judge later threw the suit out and although Peacock vowed an appeal, no appeal was ever made, so that suit never reached the state Supreme Court.

One member of the likely group of plaintiffs, an attorney, says the group expects to lose the case in lower court, but hopes the state's highest court might overturn that ruling. Everyone CL spoke to agreed that winning the case could be a long shot. Even if they didn't win, however, the suit could serve as a way to keep the arena issue before voters throughout 2003, which happens to be an election year for the city council. When councilmembers last ran in 2001, they told the public they had no intentions of bringing the arena issue back up after it failed by a decisive margin in a referendum held earlier that year. The body was back in session about a month before the council took the issue up again.

Councilmember Don Lochman, a vocal critic of the arena deal, was the only person on the city council who was willing to comment before the suit is filed.

"The people involved in this, they are not a fly-by-night organization," said Lochman. "It's something we should take seriously. It's a fair issue to those who feel the way they do."

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