FUMO BACKS CITY’S AUTHORITY IN CASINO ZONING CASE

     HARRISBURG, November 2, 2007 – State Senator Vince Fumo (D-Philadelphia) filed a friend of the court brief today with the Pennsylvania Supreme Court, opposing the proposed Sugarhouse casino’s attempt to bypass the City of Philadelphia’s zoning process.

     From his perspectives as both the main author of the state slot machine law and the elected senator of the district containing Philadelphia’s two licensed casino locations, Fumo argued that Sugarhouse’s request to the Supreme Court to usurp city zoning authority is improper as well as premature, and is in direct contradiction to the General Assembly’s clear intent when enacting gambling legislation.

     HSP Gaming, LP, the licensee for the proposed Sugarhouse casino in the Fishtown neighborhood, is dissatisfied with the pace of the city’s zoning consideration and has petitioned the Supreme Court to require approval more quickly.

     “This is an unprecedented attempt to have the Supreme Court order a legislative body, City Council, to pass certain bills in a certain time frame, and it is entirely without merit under the state gaming act,” Fumo said.

     Submitting the brief was consistent with Fumo’s commitment to residents that the city be able to use its zoning authority to protect the quality of life in the communities near the casinos.

     “The city and the state will benefit from casino gambling – including significant wage tax cuts for workers and property tax cuts for seniors. But the people living near the casinos should not have to see their neighborhoods ruined for everyone’s else’s sake. They have very legitimate concerns and the city should be allowed to address those concerns through its zoning regulations,” Fumo said.

     In the brief, Fumo noted that the gaming legislation clearly states that the primary purpose of the law is to protect the public.

     “Though maximization of revenue was important to the commonwealth, it was not more important than its primary goal of protecting the public interest. . . . the legislature succinctly stated that the public interest and the protection of the public should be elevated above all other considerations when implementing the provisions of the Act,” the brief reads.

To listen to audio of Sen. Fumo discussing the brief, click here.

     Fumo also noted that the state gaming Act gives the Supreme Court direct jurisdiction to review final orders, decisions and determinations, but does not provide any authority for the court to review the pace at which the city conducts its zoning process. Nor does it require that gaming development proceed along any certain time line.

     In fact, construction has not yet begun on licensed casinos in Bethlehem and Pittsburgh. Several of the 14 licenses authorized by the 2004 gaming Act have not yet even been awarded by the state Gaming Control Board.

     Fumo also pointed out that nothing in the gaming Act prevents Sugarhouse or Foxwoods from considering alternative locations that would present fewer zoning obstacles. The law gives the Gaming Control Board the flexibility to modify licenses and approve relocation for good cause.

     When Sugarhouse and Foxwoods sought to postpone the payment of their required $50 million license fees to the state because the city had been slow to grant zoning approvals, the Gaming Board denied the request, saying that the casinos should have anticipated reasonable delays.

     Fumo’s brief also extensively discussed the history of local zoning authority in Pennsylvania’s gaming statutes. The original gaming Act as passed in 2004 pre-empted local zoning authority, vesting it solely with the state Gaming Control Board, but the Supreme Court ruled that provision to be unconstitutional. In 2006, when the General Assembly considered a bill containing several public policy amendments to the gaming law, Fumo proposed a provision that would again have delegated zoning authority to the state Gaming Control Board, but in a manner that mirrored the city’s land use standards. The Senate adopted the bill, 50-0. The House, however, changed that to a blanket pre-emption.

     Fumo played a lead role in a clear policy shift that saw the Legislature eventually agree to retain local zoning authority. Through a lengthy amendment process that followed the House vote, the House and Senate attempted to reconcile differences concerning the public policy issue of local zoning control, and to balance the interests of local governments in managing and controlling land development with the need of the commonwealth to strategically locate gaming facilities in a manner that maximizes revenue, and with the interests of casino licensees.

     During that process, Fumo announced that in response to concerns raised by the mayor of the city, by City Council members, and by local residents, that he no longer supported zoning pre-emption. Local zoning control ultimately was preserved in the bill.

     Thus, Fumo points out, the Legislature did not simply omit or fail to consider the question of local zoning rights; rather; it deliberated at length before deciding not to nullify local zoning authority.

     The brief also notes that Sugarhouse is seeking to expedite zoning decisions over property which it does not control. It cannot build its planned facility without acquiring riparian rights over land that is part of the Delaware Riverbed, and currently controlled by the state. The Legislature has so far rejected attempts to have those rights conveyed to Sugarhouse.

     Without legal possession of its development property, Sugarhouse’s claims of delay are both premature and highly speculative.
 

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To read the friend of the court brief in its entirety, click here.