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Friday, January 16, 2015

Tyre Casino Opponents Heading Back to Court

As all eyes were on the Gaming Facility Location Board as they voted unanimously to re-entertain the notion of a casino in what is considered to be the "true" Southern Tier region, casino opponents in Tyre are gearing up for another attempt to stop the Lago Casino which was recommended for a license for the region instead.  Despite the fact that Wilmorite has not yet been issued a license by the Gaming Commission (and apparently don't yet own the land), it is already building a retention pond in an area away from the main road.  Casino opponents are keeping an eye on the proceedings with a drone, and I received this photo along with a note declaring that Wilmorite is already "destroying some nice woodland and farmland."

As you may recall, the casino opponents suffered a resounding defeat in court when they first filed their Article 78 proceeding against the process by which the Town Board conducted the required environmental review (SEQRA).  I wrote here about the SEQRA process and some of the objections as to how it was conducted in Tyre; about the lawsuit here; and about the verdict, in vivid detail and with an appropriate amount of dismay, here.

Now, CasinoFreeTyre is back with an appeal to the New York State Court of Appeals, with some new legal help and a motion bolstered with new arguments, a multitude of case citations, and a bit of swagger.  It's a good read as far as these things go, so I've embedded it below for those of you who are interested.  For those of you who aren't, the opening paragraph, reprinted below the document, pretty much sums up the substance and spirit of the document.

At the dawn of the SEQRA era, State and local officials rushed through approval of the Carrier Dome at Syracuse University on the strength of a negative declaration of environmental significance.  This Court rejected such an obvious violation of SEQRA's mandates, and in doing so, created the "hard look" standard now embodied in the SEQRA procedures.  See H.O.M.E.S. v. New York State Urban Dev Corp., 69 A.D.2d 222 (4th Dep't 1979).  Now before this Court is a similarly rushed review, for a project of even greater scale than the Carrier Dome - a half-billion-dollar, 450,000-plus sq. ft. hotel and casino with 3,300 parking spaces, and related infrastructure - on the strength of a review notable for its acknowledgment of multiple significant potential adverse impacts, but absent any consideration of those impacts.  If Wilmorite's Lago Casino can pass muster with solely a negative declaration, then this Court should simply declare H.O.M.E.S. overturned and SEQRA repealed. 
(Of course, the Carrier Dome was ultimately built.)  Briefly, for those of you not inclined to dig back into the past posts linked to above, the Town Board, in Part 2 of the SEQRA forms, identified ten items as likely to result in "significant adverse environmental impacts," but then proceeded to gloss over each and every one in summarily dismissing them as concerns in Part 3.  The plaintiffs assert that the Board "failed to take a hard look at the relevant areas of environmental concern, failed to discuss what, if any, mitigation was contemplated to ensure the impact areas it identified as potentially significant would not be, never reviewed the criteria for determining environmental significance, and did not provide any basis for its determination whatsoever."  Again, further details on their complaints, as well as how this SEQRA process is totally stacked in favor of the "lead agency" conducting it (in this case the Town Board), - which is free to interpret the issues in a way that favors their agenda - in this post.

A few points from the injunction:

 - Particular emphasis is placed on the proximity of the casino site to the Montezuma National Wildlife Refuge, a "critical environmental resource," which is situated "in the middle of one of the busiest bird migration routes on the Atlantic Flyway."  It's home to six bald eagle nests; and includes habitats for several other endangered species, including the pied-billed grebe.

Cute little guy, eh?

 - The attorney for the Town Board openly admitted that the board failed to provide the required elaboration on Part 3.  She provided her own text a full month later, and it was sent to SEQRA-related agencies as an attachment to Part 3, even though it was never adopted by the Town Board; not to mention subject to public comment.  The document cites a past case in which the court declares that "post hoc rationalizations are not permitted."

 - The item of potential environmental impact that I've been most incredulous about is the one regarding community character; the fact that the Town Board could so casually dismiss the notion that a giant casino would profoundly affect the character of a tiny rural town.  The motion cites some past cases in which the court agreed with the plaintiffs in that regard, and notes:
The Casino Project Negative Declaration is as dubious as those annulled in the cases cited above - although those were for smaller projects.  The two-year construction of an approximately $450 million casino complex, with significant parking for vehicles and a more than 287,500 sq. ft. building footprint, holding over 450,000 sq. ft. of total space, on an 85-acre parcel of farmland in a rural, agricultural community, will have an "undeniable impact" on the aesthetics of the area.
  - The plaintiffs conclude that since they have demonstrated a "blatant failure" of the town to comply with SEQRA, they are "likely to succeed on the merits of this appeal;" and they request a preliminary injunction to halt construction that would cause them "irreparable harm."  They hope that the case will be heard no later than early next month.  We obviously wish them well.

 - Meanwhile, Jeff Gural/Tioga Downs is, thus far, the only party participating in the re-opened bidding for a casino in the southern part of the Southern Tier.  Still, Gural is going to have to sweeten his proposal, which was rejected in part because it was small in comparison to Lago; especially considering that he would only be adding on to an existing facility.  Guess that cuts both ways, and the fact that he could be up and running in a matter of months did not outweigh size in the minds of the Location Board members.  So, Gural is really piling on those amenities! 
The new proposal will feature more amenities: a second restaurant, a miniature golf course, batting cages and a climbing wall. [Albany Times-Union]
  Oh yeah, that should really do it! 

Look, the problem with this whole thing is obvious to me, and it has nothing whatsoever to do with a putt-putt course and how many extra tens of thousands Gural is willing to throw in here.  He's a polarizing guy to be sure, and I know a lot of people who will brook no dissent as to him being an evil man.  I don't necessarily agree; I think he's an interesting guy and more complex than the villain he's made out to be.  But here, he's tipped the process into the realm of the unacceptable and absurd.  When he was passed over for a license, Gural stomped his feet and whined quite loudly that he spent $600,000 or $800,000 or whatever the real figure was on supporting the governor's referendum and how dare he be rewarded like this.  So, what does the governor do; the same governor who has publicly pledged that he wouldn't interfere in this process?  And who has decried the influence of money in politics?  He writes to the board, asking them to reconsider, and they dutifully go along.  Now, Gural is awkwardly pandering to the board, and this promises to become a cat and mouse game of how little he can add on and still convince the board to recommend a license for him (if that decision has not already been made for them).

Wow, talk about appearance!  We always lament about how people in this state are able to buy influence and favor behind closed doors, but this is playing out right out in public.  Wah wah Andrew, I spent all this money to support you, so I want my license. Oh OK Jeff, sorry, I'll tell my buddies on the board to give you one, don't worry, sorry that this happened.  I mean, I think that they just can't give this guy a license under these circumstances.  Can you imagine all the foot-stomping we'll have  from the entitled in the future if Gural is ultimately rewarded for this kind of behavior with a casino?  And I'd like to produce the negative campaign ad should Cuomo ever decide to run for some kind of higher office.  Man.

 - Opposition to Nassau OTB's plans to build their slots parlor at the old Fortunoff store in Westbury is gathering momentum.  Here's yet another absolutely incredulous development that just does not reflect well on the governor and the process that he helped create.  You just can't go through months of a process that went out of its way to accommodate public comment (if not, as the Tyre casino opponents and spurned applicants know, to accommodate all of the interested parties), and then allow an entity like OTB to summarily and unilaterally declare and decide that they're going to build a casino - or a slots parlor or whatever you want to call it, it's all really the same - wherever they want.  You just can't.  And remember, this slots parlor was not even subject to the referendum vote - the governor's casino law provided for them even if the referendum went down.  So the residents of Westbury have had absolutely no say in this at any point in the process.  Man.


Dan said...

I live in Nassau County- This is the same county (Town of Hempstead) that couldn't get a deal to keep the NY Islanders from moving to Brooklyn in October. The Fortunoff site will only have 1000 machines & has plenty of parking. AQU has 5,000 machines.

It won't bring in crime & hookers all over the place as the locals pols claim. The politicians want the machines at Belmont but this will not happen since its 10 miles from Aqueduct. The local politics stink here.

Figless said...

Local politics stink everywhere, for the record.

Use to be something called public service, now the public serves the politicians.

Figless said...

And we have the nerve to call overseas third world countries corrupt.

Anonymous said...

You cant trust Mr. Gural, he discriminates in who and what horses can race at the Meadowlands Racetrack. Who is to say if the casino will be the same way?

Steve in NC said...

Hey, you and the cute duck are back!

Figless is spot on, too.

And I like this little I am not a robot box much better than the prior system.

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