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Lawyers for the city of Boston and the Massachusetts Gaming Commission met in court Thursday over Boston's lawsuit against the proposed Wynn Resorts casino in neighboring Everett.
Boston's lawsuit is a long, winding document that lays out multiple arguments and accusations against the gaming panel and Wynn Resorts.
The suit argues that Boston should be a host community to the casino — a designation that would give residents of the Charlestown neighborhood the opportunity to vote on the project, Boston more money for mitigation, and the city the power to kill the casino altogether.
But it also aims to revoke Wynn's gambling license, and bar the five state gaming commissioners from taking further action on the Greater Boston casino license. Here's much more on the suit and the long legal battle:
Boston As A Host Community
Boston reached a lucrative surrounding community agreement with Wynn's former competitor for the license, Mohegan Sun, which had sought a casino at Suffolk Downs. While the agreement did not give East Boston residents a vote on the proposed casino at the racetrack, it would have seen Mohegan pay Boston $18 million per year to start.
The city was unable to reach a similar deal with Wynn — with the mayor adamant that Boston be named a host community in any deal. The city argues that it is a host because right now the only way to access the Everett casino site is through roads owned by the city of Boston.
"The only way in and the only way out of the proposed Boston casino is through the city of Boston on a city of Boston road that is not zoned for a casino," Mayor Marty Walsh said on May 21, announcing that the city had expanded its original complaint, which was filed in early January.
That argument had earlier been rejected by the gaming commission in May 2014, when the city first made its case. Commissioner James McHugh cited the gaming legislation passed by lawmakers (including Walsh) in 2011: "The Legislature, in its wisdom, defined the host community in geographical terms, not in impact terms."
In other words, because the casino itself would not be located in Boston, Boston cannot be considered a host community, the commission decided.
The city also seeks to revoke Wynn's casino license, preventing the facility from ever opening. To that end, it's raised a number of issues dealing with permitting and acquisition deadlines that it says Wynn has failed to meet.
Charlestown's Busy Sullivan Square
Wynn is required by law to perform a short-term mitigation project in Sullivan Square, the Charlestown traffic circle that is expected to carry the majority of vehicle traffic to the casino.
The project, originally estimated by Wynn to cost $6 million, has increased to $10.9 million after meetings between Wynn and the Boston Transportation Department. That project would be fully funded by Wynn.
But the company has missed the deadline set by the gaming commission to apply for city permits to complete the project, something that was added to Boston's amended complaint as a reason for the Everett casino license to be revoked.
Wynn Everett President Robert DeSalvio, in a WBUR interview, admitted that Wynn has not filed its final application to the Public Improvement Commission, but said it has submitted documents as part of the permitting process. Part of the problem seems to be a lack of meetings between the two sides. While they met regularly early on — seven meetings in three months -- there was almost no contact after Boston filed its lawsuit in January, with just two meetings in June.
Asked if Boston could be intentionally delaying the process, knowing that Wynn must complete the project before it can open, DeSalvio said, "I certainly hope that nobody would be interested in holding up Sullivan Square. I mean, the residents of Charlestown, they deserve a fix to that road." He said delaying the construction project in Sullivan Square would not delay the construction timeline of Wynn's $1.6 billion casino.
Subpoenas And Threats Of Counter-Litigation
Boston has subpoenaed 11 people to support its lawsuit's claims, from former Transportation Secretary Richard Davey, to current and former members of the Massachusetts State Police.
Specifically, the city suggests that two former troopers working as private investigators for Wynn may have learned of a convicted felon's stake in the property Wynn acquired for the casino.
"The ramifications of the Alleged Incident, if proven, will be devastating," the city wrote in court documents. "First, Wynn will be directly implicated in improper and unlawful behavior during its own suitability investigation. Second, the Gaming Commission ... will be forced to revoke Wynn's conditional license because of Wynn's inarguable unsuitability under the Gaming Act."
Wynn's response was stern, calling the city's amended complaint "more a public relations piece than a legal document."
"Wynn did not employ the named investigators and Wynn has no knowledge [of the alleged incident]," lawyer Barry Langberg wrote in a letter to Walsh and city lawyers. "The suggestion that Wynn employees knew of and discussed such ownership interest is false and defamatory."
The result of the subpoena has yet to be seen, as Judge Janet Sanders granted a motion by the commission preventing any deposition of witnesses until a motion to dismiss the lawsuit was addressed.
Complaints Against The Gaming Commission
Boston also wants all five gaming commissioners to recuse themselves from taking further action on the casino license, accusing them of favoring Wynn throughout the process.
"The Commission manipulated the outcome of the hearing by withholding documents from the City that had direct bearing on Boston’s host community status, advocating on behalf of Wynn, and deliberating and predetermining the outcome outside the public hearing context, in violation of the Open Meeting Law and the Gaming Act," the city wrote in its original complaint.
Richard McGowan, a gaming expert with Boston College, says the city may have legitimate claims on that front.
"It looks like they've bent over backward for Steve Wynn," McGowan said in a telephone interview. "Maybe Wynn's proposal was by far the best, but it does appear that they've given him certain easy ways out."
McGowan points to the lack of a specific long-term plan to address increased traffic in Sullivan Square, the extension of a deadline for Wynn to acquire MBTA land it needs to build another access road to the site, and the lack of multiple estimates on how much it would cost for the company to clean up the former chemical site where its casino would be.
"They've taken everything on his word," McGowan said, meaning Wynn.
The commission, in a statement by spokeswoman Elaine Driscoll, denied the charge, saying it "made each license award based solely on a thoughtful, objective and exhaustive evaluation of each gaming proposal. The Commissioners remain committed to the participatory, transparent and fair process that has been the touchstone of the Commission's work."
A Motion To Dismiss ... Based On Size
The commission's motion to dismiss, which was denied Thursday by Judge Sanders, didn't go after the specifics of the complaint — but its size.
The amended complaint is 153 pages. With the 84 exhibits included, it balloons to nearly 4,000.
"The pleading weights 9.75 pounds, exclusive of the large cardboard box in which it was served," commission lawyers wrote in their motion. "For the Commission to simply to read (much less respond to) the Amended Complaint and its attachments in their entirety would take days."
The motion cited state law requiring lawsuits to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." It named three other cases that were dismissed for violating the "short and plain" rule, pointing out that all three of the dismissed cases combined "would result in fewer pages and fewer paragraphs than are contained in Boston's Amended Complaint."
Judge Sanders dismissed the motion on the grounds that it would slow down the process because it would essentially be ordering the city of Boston to rewrite its complaint.
What Does Boston Want?
Mayor Walsh's onerous relationship with Wynn Resorts has prompted widespread speculation about his ultimate goals.
"Remember he voted for the casino bill when he was in the Legislature," McGowan said. "So it'd be kind of interesting for him to explain why he's trying to put a roadblock up."
McGowan said Walsh may be seeking more money from Wynn — along the lines of the $18 million per year deal he signed with Mohegan Sun.
"I have a feeling that Wynn's going to back down and give Boston more money in the long run," the BC professor predicted.
But Walsh says he is not concerned about money.
"At this point it's not about mitigation," Walsh said. "It's about respecting the city of Boston. I think on many fronts, the city of Boston has been extremely disrespected."
A City Hall source said the mayor only accepted the $18 million a year deal with Mohegan because he believed he had no legal grounds to sue for host community status, settling instead for a lucrative cash deal.
With Wynn, the source said, Walsh firmly believes that Boston is a host community due to the only current entrance being part of city property.
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