Fumo v. City of Philadelphia

• Decision Date: 15 June 2009
• Docket Number: No. 207 EM 2007.,No. 208 EM 2007.,207 EM 2007.,208 EM 2007.
• Citation: 972 A.2d 487
• Parties: Senator Vincent J. FUMO, Representative Michael H. O'Brien, Senator Michael J. Stack, Representative John J. Taylor, Representative Michael P. McGeehan, and Representative Robert C. Donatucci, Appellants, v. The CITY OF PHILADELPHIA, Appellee. HSP Gaming, L.P., Appellee-Intervenor. City Council of the City of Philadelphia, Councilmember Frank DiCicco, Appellants, v. City of Philadelphia, Stephanie W. Naidoff, Appellees. HSP Gaming, L.P., Appellee-Intervenor.
• Court: Pennsylvania Supreme Court

972 A.2d 487

Senator Vincent J. FUMO, RepresentativeMichael H. O'Brien, Senator Michael J. Stack, RepresentativeJohn J. Taylor, RepresentativeMichael P. McGeehan, and Representative Robert C. Donatucci, Appellants, v.The CITY OF PHILADELPHIA, Appellee.

HSP Gaming, L.P., Appellee-Intervenor.

City Council of the City of Philadelphia, Councilmember Frank DiCicco, Appellants, v.City of Philadelphia, Stephanie W. Naidoff, Appellees.

HSP Gaming, L.P., Appellee-Intervenor.

No. 207 EM 2007.

No. 208 EM 2007.

Supreme Court of Pennsylvania.

Argued April 15, 2008.

Decided June 15, 2009.

Margaret O'Mara Murphy, Esq., Susan P. Shinkman, Esq., PA Department of Environmental Protection, Pittsburgh, for

Dept. of Environmental Protection, (207 EM 2007, 208 EM 2007).

Thomas E. Groshens, Esq.; Jennifer M. McHugh, Esq., West Conshohocken, Stephen A. Cozen, Esq., F. Warren Jacoby, Esq., Cozen O'Connor; Philadelphia; Scot Russel Withers, Esq., William H. Lamb, Esq., Lamb McErlane, P.C., West Chester; Charles J. Hardy, Esq., Thomas A. Sprague, Esq., Richard A. Sprague, Esq., Sprague & Sprague, Philadelphia; John M. Donnelly, Levine, Staller, Sklar, Chan, Brown & Donnelly, P.A., Atlantic City, New Jersey, pro hac vice, for HSP Gaming, L.P.(207 EM 2007).

Stella Ming Tsai, Esq., Brian Charles Vance, Esq., James W. Christie, Esq., Matthew H. Shusterman, Esq., Christie Pabarue Mortensen and Young, Philadelphia, for City Council of Phila. & Councilmember Frank DiCicco(207 EM 2007).

Catherine M. Recker, Esq., Robert Eugene Welsh, Jr., Esq., Welsh & Recker, P.C., Philadelphia; Christopher B. Craig, Esq., PA Senate Counsel Senate Democratic Appropriations Committee, Harrisburg, for V. Fumo; M. O'Brien; W. Keller; M. Stack; J. Taylor; M. McGeehan; R. Donatucci(207 EM 2007).

Anthony Michael Pratt, Esq., Robin Peduzzi Sumner, Esq., Amy B. Ginensky, Esq., David Vincent Dzara, Esq., Pepper Hamilton, L.L.P., Philadelphia; Richard Gerson Feder, Esq., Mark R. Zecca, Esq., Kelly Susan Diffily, Esq., City of Philadelphia Law Department, for City of Philadelphia(207 EM 2007).

Jennifer M. McHugh, Esq., West Conshohocken; Stephen A. Cozen, Esq., F. Warren Jacoby, Esq., Cozen O'Connor, Philadelphia; William H. Lamb, Esq., Scot Russel Withers, Esq., Lamb McErlane, P.C., West Chester; Charles J. Hardy, Esq., Thomas A. Sprague, Esq., Richard A. Sprague, Esq., Sprague & Sprague, Philadelphia; John M. Donnelly, Levine, Staller, Sklar, Chan, Brown & Donnelly, P.A., Atlantic City, New Jersey, Pro Hac Vice, for HSP Gaming, L.P.(208 EM 2007).

Stella Ming Tsai, Esq., Brian Charles Vance, Esq., James W. Christie, III, Esq., Christie, Pabarue, Mortensen & Young, P.C., Philadelphia, for City Council of Phila. & Councilmember Frank DiCicco(208 EM 2007).

Anthony Michael Pratt, Esq., Robin Peduzzi Sumner, Esq., Amy B. Ginensky, Esq., David Vincent Dzara, Esq., Pepper Hamilton, L.L.P., Philadelphia; Richard Gerson Feder, Esq., Mark R. Zecca, Esq., City of Philadelphia Law Department, Philadelphia; Kelly Susan Diffily, Esq., for City of Phila; Stephanie W. Naidoff(208 EM 2007).

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD and McCAFFERY, JJ.

OPINION

Chief Justice CASTILLE.

On December 26, 2007appellants former Senator Vincent J. Fumo, Representative Michael H. O'Brien, Senator Michael J. Stack, Representative John J. Taylor, Representative Michael P. McGeehan, and Representative Robert C. Donatucci(collectively, the "statelegislators") filed a "Petition for Review in the Nature of an Appeal From a Final Determination of a Political Subdivision Pursuant to 4 Pa.C.S. § 1506and53 P.S. § 14202."SeeNo. 207 EM 2007.On December 27, 2007, appellantsCity Council of the City of Philadelphia and Councilmember Frank DiCicco(collectively, "City Council") filed a "Petition for Review and Request for Injunctive Relief in the Nature of an Appeal of a Final Determination of a Political Subdivision Pursuant to 4 Pa.C.S. § 1506and53 P.S. § 14202."SeeNo. 208 EM 2007.HSP Gaming, L.P.("HSP" aka "SugarHouse") filed a Notice of Intervention in the appeals.

In both appeals, appellants seek review of the November 27, 2007 decision of the City of Philadelphia Department of Commerce("Commerce Department"), authorizing the issuance of a license to HSP to construct a portion of its gaming casino upon submerged lands sited in the Delaware River within the City of Philadelphia.In both appeals, HSP filed two Applications for Summary Relief, one asserting that appellants lack standing and the other asserting that HSP is entitled to a judgment in its favor as a matter of law.

For the following reasons, we conclude: (1) that the state legislators have standing to claim that the Commerce Department's issuance of the license was improper on the basis that the General Assembly, not the City, has the authority to license the use of the submerged lands in the Delaware River ("Claim I"); (2) that Claim I nevertheless is without merit, based on our decision in HSP Gaming L.P. v. City of Philadelphia,598 Pa. 118, 954 A.2d 1156(2008);(3) that the state legislators do not have standing to claim alternatively that former Commerce Director Stephanie W. Naidoff exercised the City's statutory licensing authority under Act 321 of June 8, 1907, P.L. 488, 53 P.S. § 14199("Act 321") unlawfully by permitting construction upon submerged lands and not requiring HSP to produce proper evidence of deed or title ("Claim II"); and (4) that City Council does not have standing to challenge the validity of HSP's submerged lands license on the grounds that the City lacked the power to grant the license.Accordingly, we deny Claim I and dismiss Claim II in the state legislators' Petition for Review, and we dismiss City Council's Petition for Review in its entirety.¹

On December 20, 2006, the Gaming Control Board awarded a Category 2 Slot Machine license in Philadelphia to HSP, pursuant to the Pennsylvania Race Horse Development and Gaming Act, 4 Pa.C.S. § 1101 et seq.("Gaming Act").The Gaming Board issued its Order and Adjudication on February 1, 2007.On March 2, 2007, Riverwalk Casino, L.P., an unsuccessful applicant for the license, filed a petition for review pursuant to 4 Pa.C.S. § 1204, challenging the Gaming Board's Order and Adjudication.On July 17, 2007, the Gaming Board's Order and Adjudication was affirmed by this Court.Riverwalk Casino v. Pa. Gaming Control Bd.,592 Pa. 505, 926 A.2d 926(2007).

In anticipation of the award of casino licenses in the City of Philadelphia, the City Council of Philadelphia had enacted an ordinance on February 23, 2006, adding Chapter 14-400 to the provisions of the Philadelphia Code that govern zoning and planning.The Ordinance created a zoning classification referred to as a Commercial Entertainment District("CED").Phila. Code§ 14-401(1).Under the CED ordinance, a plan of development is submitted to the Philadelphia Planning Commission for approval.After a plan of development is approved by the Planning Commission, it is submitted to City Council.

On March 26, 2007, HSP submitted a proposed Plan of Development to the Planning Commission.On May 22, 2007, the Planning Commission held a public hearing and approved HSP's Plan of Development.Notwithstanding the Planning Commission's approval, no action was taken by City Council on three bills comprising the CED legislation that previously had been introduced before City Council on May 24, 2007.

On October 25, 2007, HSP filed a Petition for Review with this Court, requesting that an order be issued directing the City of Philadelphia and City Council to comply with their statutory duties to implement the Gaming Board's decision to locate a casino at HSP's site in Philadelphia.On December 3, 2007, this Court entered a Per Curiam Opinion and Order declaring, inter alia, that HSP's Plan of Development was finally approved.HSP Gaming, L.P. v. City Council,595 Pa. 508, 939 A.2d 273(2007), reargument denied(Dec. 31, 2007).

During the pendency of the litigation, HSP submitted an application on October 29, 2007, to the Commerce Department for a license permitting construction or improvements on submerged lands pursuant to 53 P.S. § 14199(referred to herein as "Act 321") and Chapter 18-100 of the Philadelphia Code.Consistently with its approved Plan of Development, HSP requested permission to construct upon lands in the Delaware River immediately adjacent to the property for its casino.Act 321 provides:

Whenever any person or persons shall desire to construct, extend, alter, improve or repair any wharf, or other building in the nature of a wharf, or bridge, or other harbor structures, situate wholly within any city of the first class, such person or persons shall make application to the director, stating in writing the nature and extent of such proposed structure, extension, alteration, improvement or repair, and file in the office of the director the plans and specifications showing fully the proposed structure, extension, alteration, improvement or repair, and produce his or her deed or deeds, or other evidence of title, to the premises on which such proposed structure, extension, alteration, improvement or repair is to be erected or made,—where-upon, if such proposed structure, extension, alteration, improvement or repair will encroach upon the waterway, the director shall give notice of the time and place of hearing such application, to all parties interested, by advertising twice a week for two successive weeks, in two newspapers of general circulation published within the said city, and by posting notice upon the said premises; and if the director, upon such hearing, or without such hearing where such hearing is not required by the provisions hereof, shall approve such proposed structure, extension, alteration, improvement or repair, and the plans and specification submitted therefor, he shall give his assent to, and issue a license or permit to be recorded in his...