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Foxwoods Casino does end run around zoning bills
By Ed Goppelt
Monday, 04/09/07
(1176154814598)
The same day Councilman Frank DiCicco introduced 9 bills designed to slow down the introduction of casinos in Philadelphia, Foxwoods Casino applied for a permit under existing zoning for its property in South Philadelphia. As a result, Foxwoods Casino will not have to abide by any of the bills introduced by DiCicco on January 23, 2007 according to a local lawyer. However, zoning attorney Bill Ewing said that the Foxwoods project would likely be stopped if voters approve the casino referendum scheduled for the May primary election.
The referendum would prohibit both City Council and the Dept. of Licenses and Inspections from taking any action to approve casinos within 1500 ft. of a home, school or church. The state Gaming Board considers the referendum illegal and sued last Thursday to remove it from ballot.
Ewing offered his legal opinion in response to a recently released agreement between Foxwoods and the City of Philadelphia. A February 7, 2007 letter from Foxwoods lawyer Jeffrey Rotwitt spells outs the terms of the deal: Foxwoods will not build its casino as part of the C3 commercial zoning district that includes Home Depot and Wal*Mart, but will build it according to the the City's new zoning rules for casinos--the so called Commercial Entertainment District or CED. In exchange, the City agreed to apply the rules as they existed on December, 2006, protecting Foxwoods from just the sort of changes proposed by DiCicco.
Rotwitt was mentioned last week in a front page Inquirer story regarding the indictment of a Haverford Township official over the redevelopment of 212 aces of public land. "[A] 36-page grand jury report lambastes the conduct of both Haverford officials and a well-known Philadelphia real estate lawyer, Jeffrey Rotwitt, a partner at Obermayer, Rebmann, Maxwell & Hippel L.L.P.," reported the Inquirer.
Among other things, DiCicco's bills would have removed licensed gambling as as permitted use under the City's Commercial Entertainment District or CED and rezoned Foxwoods' property at Columbus and Reed from Commercial to Residential. "What [Foxwoods] is getting out of the deal is not having to worry about complying with [DiCicco's] bills if they ever pass," Ewing told Hallwatch.
"I believe the courts would enforce the letter as a legally binding commitment if (1) the Foxwoods site is designated for CED zoning, and (2) the City agrees that no legal changes after 1/23/2007 will be applicable," Ewing said. "If those two conditions are met, the agreement would require Foxwoods to develop the property in compliance with CED zoning as it existed on 12/20/2006."
The deal depends on City Council's approving the CED designation for Foxwoods, a fact not lost on Councilman DiCicco. "While the City's Administration has certain rights and abilities, to make an agreement that Council will act in a specific way goes beyond their purview," said DiCicco.
But here again Foxwoods appears to have an ace in the hole. If its deal with the City falls through, Foxwoods stands a good chance of obtaining a zoning permit for its casino under the existing C3 zoning. The C3 district, while it doesn't explicitly name licensing gambling as a permitted use, comes close permitting "amusement arcades; athletic and drill hall, dance hall, theater, motion picture theater and other entertainment of guests and patrons as a main use." According to Ewing, a court might construe this phrase to permit licensed gambling if it is persuaded that the City is using zoning as a way to exclude a lawful use like casino gambling.
Would it have been possible for Foxwoods' attorneys to draft a zoning permit application for a $400 million project in less than a day? Brian Abernathy thinks it's "Not likely. But it wasn't a stretch for them to expect the Councilman to introduce legislation on the 23rd. Therefore, they may have prepared the application and waited to file until they knew what direction we were moving." Abernathy, a non-lawyer, says he drafted all nine bills.
Asked about his legal training, Abernathy said "I've written a number of the bills and resolutions that the Councilman has introduced and I don't think my competence has ever been questioned. Not to mention legislation is also reviewed by Law and Tech Staff."
Ewing thinks the Foxwoods lawyers could have drafted a permit application quickly because they would have already had prepared the plans and other supporting documents for the state Gaming Board. "Bills would be drafted by the planning or law dept. There are lots of sources where word could leak out to well-connected applicants," said Ewing.