Keystone Redev. Partners LLC v. Pa. Gaming Control Bd. And, 2145 C.D. 2009
| Decision Date | 16 September 2010 |
| Docket Number | 74 C.D. 2010,No. 2145 C.D. 2009,2145 C.D. 2009 |
| Parties | Keystone Redevelopment Partners, LLC, Petitioner v. Pennsylvania Gaming Control Board and Philadelphia Entertainment and Development Partners, LP., Respondents |
| Court | Pennsylvania Commonwealth Court |
Keystone Redevelopment Partners, LLC, Petitioner
v.
Pennsylvania Gaming Control Board and
Philadelphia Entertainment and Development Partners, LP., Respondents
74 C.D. 2010
Commonwealth Court Of Pennsylvania
Argued: May 18, 2010
FILED: September 16, 2010
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
ROBERT SIMPSON, Judge.
We consider an issue of first impression: under what circumstances may a person who did not appeal the denial of its application for a gaming license become involved in subsequent administrative proceedings of a licensee. We hold that under the Pennsylvania Race Horse Development and Gaming Act (Act), 1 the circumstances for such a person to become involved are limited and involvement is subject to the discretion of the Pennsylvania Gaming Control Board (PGCB or Board).
In these consolidated appeals, Keystone Redevelopment Partners, LLC (Keystone), an unsuccessful applicant for one of the two Philadelphia (City)
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Category 2 slot machine licenses awarded in December, 2006, petitions for review from three orders of the Board. The first order granted current licensee Philadelphia Entertainment and Development Partners, LP's (Licensee) petition to extend time to make slot machines available (extension petition). The second order denied Keystone's petition to intervene in Licensee's extension proceeding. The third order denied Keystone's petition to re-open its and Licensee's initial licensing proceedings. For the reasons that follow, we quash Keystone's appeal to the extent it seeks review of the Board's extension order. Otherwise, we affirm.
In December, 2005, following the enactment of the Act, the Board received five applications for the two Category 2 slot machine licenses2 available in the City. Licensee sought to build Foxwoods Philadelphia, a casino complex located at 1449 South Columbus Boulevard between Reed and Tasker Streets, on the south Philadelphia waterfront. Keystone sought to build the Trump Street Casino in north Philadelphia near the intersection of Fox Street and Roberts Avenue. HSP Gaming LP (HSP), Riverwalk Casino (Riverwalk), and PNKPinnacle Entertainment (Pinnacle) sought licenses for riverfront casinos on North Delaware Avenue. At its December, 2006, public meeting, the Board voted to award the licenses for two riverfront locations: HSP's SugarHouse on North
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Delaware Avenue, and Licensee's Foxwoods on Columbus Boulevard. In February, 2007, the Board memorialized its award in a written decision. See PGCB Licensing Dec., 02/01/07; Reproduced Record (R.R.) at 61a-175a. In its decision, the Board noted, "[t]hose applicants not awarded a license have, under the mandates of the Act, been denied a license."3 Id. at 7; R.R. at 69a. See also id. at 113; R.R. at 175a (same). Significant for our disposition, Keystone did not appeal the Board's denial of its application.
In January, 2007, following the license award, Licensee submitted the requisite zoning and use registration permit applications to the City. However, Licensee encountered numerous obstacles in its attempt to construct its facility at the Columbus Boulevard site. First, in March, 2007, Riverwalk, one of the three unsuccessful applicants, appealed the Board's licensing decision. In July, 2007, the Supreme Court denied Riverwalk's appeal and affirmed the Board's decision approving licenses for HSP and Licensee. Riverwalk Casino, L.P., v. Pa. Gaming Control Bd., 592 Pa. 505, 926 A.2d 926 (2007).
Thereafter, in response to numerous and varied delays by local and municipal entities, Licensee filed several emergency petitions for review with the Supreme Court. In April, 2008, the Supreme Court granted Licensee's emergency
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petition directing the City to approve the necessary zoning for the Columbus Boulevard site. In early May, 2008, Licensee submitted a zoning and use permit application to the City. However, the City took no action on Licensee's zoning application.
On May 29, 2008, the Board issued Licensee its Category 2 slot machine license. Pursuant to Section 1210(a) of the Act (number of slot machines; initial complement), Licensee had one year from this date to commence operations by making a minimum of 1, 500 slot machines available for play. 4 Pa. C.S. §1210(a).
In July, 2008, Licensee filed a petition with the Supreme Court seeking appointment of a Special Master and enforcement of the Court's April, 2008, order directing the City to approve the necessary zoning for the Columbus Boulevard site. In October, 2008, the Supreme Court appointed Commonwealth Court Senior Judge Joseph F. McCloskey as Special Master. The Supreme Court also granted Licensee's request for enforcement of its April, 2008, order.
Meanwhile, in August, 2008, at Governor Edward G. Rendell's request, Licensee began meeting with state and local government officials regarding the possibility of moving its facility from the Columbus Boulevard site to a Center City site.4 In September, 2008, Licensee and officials initially
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discussed a possible relocation to the Gallery Complex at 11th and Market Streets. In early 2009, Licensee began considering relocation in the former Strawbridge Building at 801 Market Street. In April, 2009, Licensee appeared at a public meeting of the Board to provide a project update. At that time, Licensee confirmed it anticipated filing for permission to relocate to the Strawbridge site.
In January, 2009, Keystone filed a petition to re-open both its and Licensee's initial licensing proceedings, and for related relief. Keystone alleged Licensee, by considering other locations, abandoned its Columbus Boulevard site, which was a substantial factor in the Board's grant of the license; therefore, the Board should declare Licensee's license forfeited or abandoned. Keystone further requested the Board award it the license because it is the only remaining eligible and suitable applicant. Keystone averred Pinnacle and Riverwalk both sought North Delaware Avenue locations, and the Board previously decided to award only one North Delaware Avenue license, which went to HSP's SugarHouse.
In response, the Board's Bureau of Investigations and Enforcement (BIE) filed an answer and new matter denying Keystone's allegations. In its new matter, BIE averred Keystone lacked standing to file its petition to re-open. First, Board regulations provide that "[p]etitions may be filed by BIE, parties, applicants,
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licensees, permittees, persons registered or certified by the Board, and other persons authorized by the Board." 58 Pa. Code §493a.4(a). Keystone does not fall within any of these categories. In addition, BIE averred Keystone lacked standing because it: failed to show it was aggrieved or in any way harmed or affected by any Board decision; failed to intervene or participate in Licensee's or any other applicant's licensing proceeding; failed to appeal the Board's licensing decision denying its application; and, has no authority to request that the Board revoke Licensee's license. BIE further averred only its Office of Enforcement Counsel (OEC) is authorized to initiate license revocation proceedings. BIE also averred Keystone's petition to re-open was premature because Licensee never petitioned for relocation.
In addition, Licensee filed preliminary motions seeking to dismiss Keystone's petition to re-open. Like BIE, Licensee averred Keystone lacked standing and legal authority to re-open the initial licensing proceedings. Licensee averred Keystone, a former unsuccessful applicant, has no greater right than any other person to seek relief from the Board.
On May 22, 2009, seven days before the one-year period to commence operations expired, Licensee filed its extension petition under 4 Pa. C.S. §1210(a)5 seeking an additional 24 months to commence casino operations at
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the Columbus Boulevard site. Licensee averred it faced numerous obstacles beyond its control regarding development of the Columbus Boulevard site, including opposition from Mayor Michael A. Nutter and other City officials as to location, which made it difficult to obtain the necessary zoning permits and approvals. Licensee alleged these facts established good cause for the Board to grant Licensee additional time to open its casino.
In response, BIE filed an answer and new matter averring that Licensee failed to explain why it could not erect a temporary facility within a short period of time, and that Licensee failed to show good cause for an extension. BIE also objected to Licensee's extension request pending a full evidentiary hearing at which Licensee had to present documentation of its applications for all permits needed to begin construction, documentation of all government permits and approvals received, and documentation showing Licensee possesses all necessary funding or guarantees of funding necessary for construction of its project.
In June, 2009, Keystone petitioned to intervene in Licensee's extension proceeding and...
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