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The capacity issue is due to fire dept. regulations. The seating is @ 38,500. It's reported as capacity of 40k to account for all souls in the building at capacity. It includes both teams, volunteers manning the concession booths, maintainance staff, police & security details & any other service staff.
That's probably the best explanation I"ve ever seen/read/heard. Somebody knows the actual "permanent" seating capacity - and it's less than 40k. That I'm sure of. I believe the actual number is 38,110. Don't ask me why that number sticks in my head. I'm also 99.999% sure that the planned 50,000 in the original design was to be 50,000 permanent, which would be the additional 11k and change in that third tier.
To respond to the Hartford skyline comment, I agree. I could care less about seeing the buildings of Hartford from the stadium. What's important - is how the winds and weather would be affected by closing in the ends. Those winds often give a major change in complexion of a game for our home field.