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.

   Tyre Article 78 Appeal

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.

Odds and Ends, Briefly (Kind Of)

Greetings from the spectacularly beautiful island nation of Grenada!  As I'd mentioned, the Head Chef and I are away on vacation to mark a special occasion, and we still have several more days to go.  Once again, a happy, healthy and safe new year to all.  Just checking in with a few thoughts while I have a wireless connection, but will endeavor to be uncharacteristically succinct so I can get back to doing not much of anything at all.. 

Governor Cuomo lost his dad on the same day that he was inaugurated for his second term.  I wasn't much into state politics when Mario was governor, so, by far, I remember him most for his 1984 convention speech, and his flirtation with a presidential run.  His far less articulate son will never be the keynote speaker at a Democratic convention, and likely will never be anointed as the party's presidential candidate at one.  He has however done a graceful job of balancing his comments in the wake of the Eric Garner grand jury decision, the protests that it spurred, and the tragic and senseless cop killings that neither the protestors nor the mayor had anything to do with.  I could go on a bit here....but I'm on vacation, remember?  Having said that, one can surely understand why police officers would be inflamed by the mayor and police commissioner's deference towards Al Sharpton, who built his career by inflaming racial tensions with spectacular accusations when- and wherever he could get his then-fat face in front of a camera (at a time when that didn't come as easily as it does today).  Our buddy and longtime reader jk posted an article from the Post about the Reverend's involvement with bidders for the Aqueduct casino.

 - The governor's letter to the Location Board asking it to reopen the bidding for a casino in the real Southern Tier has the potential to open up a can of worms.  Ulster County Executive Michael Hein wants the board to re-consider a license for the Nevele. 

On a Tuesday letter to the Gaming Commission and its siting board, Hein, a strong supporter of the Nevele plan, wrote: “It is my strong belief, motivated by legislative intent and fairness, that the new round of applications includes the Catskills/Hudson Valley Region, not just the Eastern Southern Tier/Finger Lakes Region.” [Daily Freeman]

The Nevele was the only unsuccessful bidder in the Catskills/Hudson Valley region that was singled out in the board's final report; it noted that their financing was not complete.  Hein noted that, back in the day, competition in the Catskills "was not a detriment, but rather fostered broad commercial success among a network of resorts."  I imagine that Mohegan Sun and Louis Cappelli, rejected in their bid at the Concord, would share these sentiments as well.

This article, which I found at the Ithaca Journal site, is chock full of information about the tracks that are likely to be negatively affected by the controversial casino in Tyre; the non-Southern Tier selection in the Southern Tier region.  Could go on extensively about it if I wasn't....you know.  It's worth a read if you're interested in the subject.  In summary though: Finger Lakes is screwed.  In another example of something that those who wrote this law and created the gerrymandered Southern Tier region obviously didn't think about:  Finger Lakes, only 27 miles from where Lago is supposed to be built, will not have purses supported by the Lago casino at 2013 levels because it is in Region 6.  But Tioga Downs, which is nearly two hours away, will receive purse support because it's in the same Southern Tier region.  Go figure that one out.  Estimates as to how much business Finger Lakes will lose range from 21% (the study commissioned by Lago) to 50% (the track's estimate).  Guess we can figure the real damage will be somewhere in between.

 - Business is brisk for commercial real estate developers in Schenectady now that casino gambling is coming there. 

Among those looking to benefit are property owners on a stretch of Erie Boulevard west of the casino site that has a hodge-podge of businesses and buildings, some of which are run-down, empty or not fully utilized. [Biz Journals]

All well and good....but these folks are presuming that the casino customers are going to stray outside the gaming floor that the Rivers Casino will be doing their best to keep them at.  So, that's one of the many assumptions about these casinos that we'll just have to wait and see how they turn out.

 - Nassau OTB has settled on the old Fortunoff's building on Old Country Road in Westbury for its VLT parlor.   Those of you from my generation who grew up at the NY harness tracks know that Roosevelt was right there, so the location is more than just a bit ironic.  It's also infuriating to some residents of the area. 

Some local residents told Fox 5 it doesn't belong there and that they fear increased traffic and crime.  The issue has even taken to social media with a Facebook page called Stop the Casino at Fortunoff. It has more than 1,700 likes. [MYFOXNY]

That all sounds quite familiar from the recent casino bidding.  What is quite different though is that these residents didn't have a chance to express their concerns directly to the decision makers like those in the cities and towns targeted for casinos did (for whatever that was worth for those in Tyre).  So, you can't blame those opposed to this gambling facility for being outraged.

 - And finally, I noticed this photo essay in the Times.

Thoroughbred horse racing provides one of the great American spectacles: the magnificently chiseled athletes, the elemental contest of speed and power, the libidinal rush of personal fortunes won or lost by the margins of a split second.  The photographer Theo Zierock, who spent last winter shooting Aqueduct Racetrack in Queens, found none of that. What he found instead was a decaying building populated by lonely old men.

Well, first of all, I have to presume that "last winter" means a year ago.  So, in addition to its appearance at this time being totally random, there have been improvements made to the facility since then; so that it's a bit less of a dump now than it was then.  More importantly, it seems to me that if the photographer Theo Zierock really wanted to take photos of magnificently chiseled athletes, the elemental contest of speed and power, and the libidinal rush of personal fortunes won or lost by the margins of a split second rather than of lonely old men, he surely could have done so.

I myself have not been to the Big A since it opened in the fall; and, believe it or not, I can honestly say from this paradise that I don't miss it at all.  I wouldn't call it a boycott.  I just don't want to go there. 

When I first started writing this blog ten years ago this month, this was one of my favorite times of the year to go to the track in NY.  Forget the dismal inner track racing; I'd get there at 4 PM and spend the rest of the afternoon/early evening betting on races from Gulfstream, Fair Grounds, Oaklawn, Santa Anita, and just about whatever else was offered.  Can't say how many other people were there in the back rooms of the second floor of the clubhouse; but the atmosphere was crackling.  It was hardcore, but in a comfortable, if not elegant, setting.  Over the last decade, with the continued deterioration of the plant - particularly in my second floor hangout, where the only attention paid was the unfortunate decision to install those horrible desk units, which totally changed the ambiance for the worse- combined with the ease of wagering at home, it has become a place where I don’t particularly want to spend the afternoon.  I can't really remember the last time I walked in and wasn't wondering, within an hour, why the hell I was there.

I know, it's been prettied-and-cleaned up.  But a prettied-and-cleaned-up dump is still a dump. And the old haunts on the second floor is the pleasantly functional Longshots bar that they now want even NYRA Rewards members to pay $5 to enter.  I find that I just don’t want to pay that.  It's not that the five bucks is gonna make me broke.  I just don't want to pay it.  Nor do I want to pay for overpriced food and drink.  I'm just not interested in being an ATM for these guys in their pursuit of the mythical "profitable without slots" holy grail. 

As we've noted, this whole notion of being "profitable without slots" is just a number on a piece of paper that means nothing in the real world.  NYRA is dependent on slots revenue to support the purses that they use to compete with other slots states, and to promote their "big days," scheduled to be even bigger this year (oh joy).  The slots revenue earmarked for capital projects allows NYRA to modernize their facilities in ways that facilitate increased revenue, mutuel and otherwise.  And it no doubt helps to lessen the occurrence of maintenance and repair problems/emergencies that they'd have to pay for out of their operating expenses.  So the idea that a number on an income statement means that NYRA could truly be profitable without slots is a fictional one.  However, it is a number that will earn Chris Kay more bonuses and be highlighted on his resume when he moves on to his next gig.  I do think that Kay is earnest about wanting horse racing to prosper in New York.  But we also know that this is merely a step in his corporate career, and success, even if defined on his own terms, would be quite the feather in the cap.

None of the above is to belittle the pursuit of a NYRA that is able to prosper without the miserable machines next door, even though the political pressure to do so seems to have eased, at least for now. The last regime wanted to move in that direction organically, by replacing the void left by NYC OTB. This regime is doing so by trying to bleed the money from its customers.  Speak to you again soon.