The Phantom Majority and What’s Left of Their Casino by Jack Conway

Two illusions predominate the thinking of casino supporters.  The first is that in spite of carefully documented, voluminous evidence to the contrary, they continue to have hallucinations of a ‘silent majority.’  Their second problem is that the casino they support doesn’t really exist anymore.  Willful ignorance has its price and these illusions are the currency of denial required to maintain support for a project based on a corrupt process, an inept Town Board, and the deceit of shysters who will tell you anything in order to tell you nothing.

Save East Greenbush submitted 856 pages of documentation of community opposition to the Gaming Commission.  There were 37 pages of narrative detailing the rationale for opposition, 228 pages of statements of opposition, a copy of the Article 78 lawsuit filed to annul the resolution of support (and amended to include a cause of action against Sue Mangold for conflict of interest), and, most importantly, a petition with 3,058 signatures.  This documentation was collected by hundreds of East Greenbush volunteers who gave of their own time, talent and money.  Despite efforts to disinform the public, none of this work was funded by outside entities, and in answer to Mr. Featherstonhaugh, not a single ‘Save person’ is from Saratoga.

Saratoga Casino & Raceway submitted 49 pages of documentation of community support.  There were 19 pages of statements of support and a petition with 678 signatures.  This, despite three glossy mailers, radio and TV ads, fraudulent public presentations, provision of free yard signs to supporters, and the support of both political machines in town.  The petitions were sent to Julie Miner of Saratoga C & R so anyone interested in where outside funding is coming from regarding this project has to look no further.  No funding yielded 3,058 signatures, unlimited funding 678.  But Ed Gilbert talks to residents every day and he can tell you they support the casino.  This is a phantom majority, not a silent one.  The truth is that a significant and growing majority of town residents oppose the casino.

Then there’s the question of the ever-shrinking project that this non-existent majority supports. In its original form, it featured a 300-room resort style hotel, a full complement of exciting dining options including fine dining, casual dining and buffets, multiple entertainment venues including a 1,700 seat entertainment space, 20,000 square feet of high-end retail and convenient parking, including two covered parking structures and surface lots.  Initial estimates projected 1,700 permanent jobs and 1,700 construction jobs.  This is the project that the Town Board voted to support. 

Unfortunately, these numbers have the same claim to truth as the notion that a majority of residents support the casino.  The 300-room resort hotel is now a 100-room three star boutique-style hotel.  20,000 square feet of high-end retail has been reduced to a 500 square foot Thruway-style gift shop.  One of the two covered parking structures is gone.  The 1,700 seat entertainment space is now a Special Events Hall that can seat 500 people. The multiple fine dining options have been reduced to single steak house.  The promise of 1,700 permanent and 1,700 construction jobs is now “approximately 1,000 permanent” and 825 construction jobs.  Since we know these numbers were massively inflated to begin with, there’s no reason not to assume the same now.

To summarize, the project has seen reductions of 67% in the number of hotel rooms, 41.2% in the number of permanent jobs, 51.5% in the number of construction jobs, 70.5% in seats in the entertainment venue, 50% in the number of covered parking structures, and an extraordinary 97.5% in retail space.  The golf course is gone.  This isn’t the world class destination resort sold to the Town Board, it’s a glorified racino with intractable zoning and environmental problems. 

It’s impossible to trust the anecdotal disinformation spewed by apologists trying to salvage the reputation of people whom they trusted to act in the public interest but failed to do so.  Casino developers are liars by definition.  But elected officials have an obligation to seek the truth and not pretend that this project is intact or that the sycophantic whining of their court followers is a valid measure of community support.

Save East Greenbush to ZBA

Here's the text of the letter, converted from .pdf.  I have not compared the files. 

The Town of East Greenbush Zoning Board of Appeals (ZBA) has been asked to interpret the Comprehensive Zoning Law of the Town of East Greenbush (Zoning Law). Specifically, as it applies to the PDD Application of Capital View Casino and Resort.  This referral requires the ZBA to interpret the Zoning Law.  In rendering its determination, it is imperative to note that the clear and unambiguous language of the Zoning Law must be given its full effect.

The resort amenities offered by Capital View Casino are all prohibited uses under zoning

It  is undisputed that the proposed Capital View Casino and Resort is located within the existing Residential Buffer (R-B) zoning district. The intended purpose of the Residential Buffer Zone is to support low-density agricultural , residential, and rural uses through preserving these areas as open space with low impact uses. See section 2.6.3 of the Comprehensive Zoning Law of the Town of East Greenbush. The allowed uses detailed in this section are specific, unambiguous,

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and clearly delineated. Those uses not delineated in section 2.6.3 of the Zoning Law are therefore prohibited in this zone.

The Zoning Law is rooted in the duly adopted comprehensive plan. In 2006, The Town of East Greenbush adopted the Town of East Greenbush: Land Use Plan Update and Zoning Study (Comprehensive Plan).  The Comprehensive Plan describes this area as "Rural East Greenbush" due to the primarily rural, scenic landscape character with low density people and housing.  See Comprehensive Plan iJ23. Further, the Comprehensive plan goes on to state the importance of the historic rural landscape is to the community. Id.  The recommendations of Comprehensive Plan are equally clear in that the Town needs to be protective of the rural character of the area. Comprehensive Plan iJ26.

The related amenities identified by Capital View Casino includes, but is not limited to a 100 room hotel, multi-level parking structure, dining areas, bars/night clubs, retail spaces, event rooms, spas, health clubs, and support facilities all of which are prohibited uses in this zone.  See section 2.6.3 of the Zoning Law of the Town of East Greenbush.

One of the basic principles of statutory construction is "that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inferenc must be drawn that what is omitted or not included was intended to be omitted or excluded."  See McKinney's Cons. Laws of NY, Vol I , §240.

The Comprehensive Plan provides very specific direction in the intent for the future development of this area.  The Zoning Law in furtherance of the Comprehensive Plan lists in no uncertain terms those particular uses that are permitted in the R-B zone. The allowed uses inthis zone are clearly limited to low intensity residential uses, period.  To permit an extensive commercial development in a residential zone is blatantly prohibited by the Zoning Law and will be challenged in court.

Planned Development Districts do not authorize the expansion of allowed uses

Section 2.9 of the Zoning Law provides for the use and regulation of Planned Development Districts in the Town.  Capital View Casino is attempting to circumvent the use restrictions contained in the R-B Zone. Their interpretation is contrary to the specific language contained in the Zoning Law.

In primarily residential districts, the allowed uses are limited to those residential uses as authorized in the underlying zone.  See Zoning Law section 2.9.4.D.01.  Nowhere in this section is there a grant of authority for the Town Board to adopt PDD legislation that would introduce hotels, bars/nightclubs, retail spaces, or the myriad of other intense commercial uses proposed in the Application.

Section 2.9 of the Zoning is contains very specific limitations on the permitted uses in the PD Districts . The PD Section of the Zoning Law is equally clear in furtherance of the allowed uses

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within the various residential versus commercial zones. Another principle of statutory construction is "where words of a statute are free from ambiguity and express plainly,.clearly and distinctly the legislative intent, resort may not be had to other means of interpretation." See  McKinney 's Cons. Laws of NY, Vol 1, §76. When examining statutes and particularly local laws, courts will not "thwart[ing] the intent of the legislative body as expressed." Westchester Cnty. Soc. for Prevention of Cruelty to Animals v. Mengel, 292 N.Y. 121, 126, 54 N.E.2d 329, 331 (1944).

PD Districts in residential zones are restricted to residential uses. The Capital View Casino application references how Zoning Law section 2.9.4.D.Ol(c) restating that "limited commercial" uses are permissible. What the Capital View Casino neglected to do was include the remainder of the sentence which states that limited commercial development must be "scaled to primarily serve the residents of the PD and which are in keeping with the scale and, size and traffic of neighborhood and its structures." Zoning Law section 2.9.4.D.Ol(c) (emphasis added).

Inexcusably the Capital View Casino neglects the crucial component of the sentence mainly the limited commercial use must primarily serve the residents of the PD.  Here, there are no residents of the PD as there is no residential component, which by definition is not allowed.  This is an intensive commercial use that is specifically prohibited by the Zoning Law.

Additionally, Capital View Casino attempts to rely on the NYS Upstate New York Gaming Economic Development Act of 2013 (the "Gaming Law"), as justification for rendering a determination contrary to the explicit language of the law. Please note, the Gaming Law has no impact on the local zoning regulations concerning the various resort amenities being offered by Capital View Casino. Section 1366 of the Gaming Law only deems the casino as an approved activity under the relevant zoning ordinance, not the appurtenant amenities. The Gaming Commission has ratified this opinion in their question and answers submitted to help guide applicants wherein it specifically states that § 1366 of the Gaming Law "does not preempt local zoning and land use regulations as to non-gaming activities and permitted uses of a proposed gaming facility." See response A.327,Applicant Conference Questions and Answers -May 2, 2014, copy attached.

The Capital View Casino's tortured reading of the Zoning Law does not magically alter the nature of their intended use. The R-B zone is limited to residential uses.  Furthermore, where an applicant wishes to utilizes a PDD in this zone, the allowed uses remain residential.  There is no justification in law or reason that would result in a different conclusion.

The resort amenities are subject to zoning

In order to have the ZBA agree with the interpretation offered by Capital View Casino, it would ultimately require the ZBA to not only interpret State Law, but to find that the entire casino resort is exempt from zoning.  The Zoning Board of Appeals' authority is limited to interpreting provisions of the Zoning Law.  See Zoning Law section 4.2.2.A.01 .  While the gaming may be a permitted use pursuant to the Gaming Law, nothing else relating to the project is exempt from zoning.  The Gaming Law draws this important distinction between the casino and the resort

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amemties.  Capital View Casino argument relating to permissible uses would require the ZBA to not only interpret the Gaming Law, which is impermissible in its own right, but to find that the Gaming Law supersedes the Zoning Law.

In response to the Capital View Casino's argument, the question before the ZBA is not whether the casino itself is an approved use, it is the resort amenities                                        the hotel, the restaurants, the bars, the retail, the storage, the parking, etc. that make up the entire resort. As referenced earlier, "gaming authorized at a location pursuant to this article shall be deemed an approved activity for such location under the relevant city, county, town, or village land use or zoning ordinances, rules, or regulations." N.Y. Rae. Pari-Mut. Wag. & Breed. Law § 1366. This designation does not extend to the ancillary resort uses that may be associated with a particular project. This interpretation was recently affirmed by the Court of Appeals by referencing the impact of this section and how it clearly preempts home rule zoning powers as it relates to casinos only. See Wallach v. Dryden, ---N.E.3d --- , 2014 N.Y. Slip Op. 04875, 7-8 (2014).

New York is a home rule state whereby local governments retain all powers to act where not expressly preempted by the legislature.  See N.Y. Const. art. IX, § 2; see also N.Y. Mun. Home Rule Law §  10.This too has been consistently upheld by the Court of Appeals, in holding that "legislation of State import does not impinge upon municipal home rule simply because it touches the matter[s]."  Uniformed Firefighters Ass'n v. City of New York, 50 N.Y.2d 85, 90, 405 N.E.2d 679, 680 (1980).  The Courts do not, and will not, broadly interpret a State Law to the exclusion of local regulation.

This is analogous to the manner in which mining is regulated in the State through the Mines Land Reclamation Law, whereby only the actual mining operation is preempted zoning regulations.  The interpretation that is being offered by Capital View Casino was similarly argued by mining operators.  The Court of Appeals responded in the seminal case on the manner that to find for the developer would "drastically curtail the town's power to adopt zoning regulations" and further it would preclude the Town from limiting what other uses should be permissible in a particular zoning district (see, 1 Anderson, NY Zoning Law and Practice, §§ 2.04, 2.05, 2.06, 2.09, 2.13 [3d ed]; see generally, Wambat Realty Coro. v State of New York, 41 NY2d 490). See also Wallach v. Dryden, ---N.E.3d --- , 2014 N.Y. Slip Op. 04875, 7-8 (2014). The Court of Appeals goes on to hold that "the statutes may be harmonized, thus avoiding any abridgement of the town's powers to regulate land use through zoning powers expressly delegated in the Statute of Local Governments § 10 (6) and Town Law § 261 (see, McKinney' s Cons Laws of NY, Book 1, Statutes §§ 370, 391, 398).  Frew Run Gravel Products. Inc.v. Town of Carroll, 71 N.Y.2d  126, 134, 518 N.E.2d 920 (1987).  The interpretation being requested by Capital View Casino would be in direct conflict with the well settled legal principles of statutory construction and preemption.

This is an important distinction as the Gaming Law was designed to encourage destination resort facilities. All regions are different, all proposals are different. The Howe Caverns gaming application contains waterparks and golf courses, similar to many of the proposals in Region 1. The interpretation argued by Capital View would mean that all of the waterparks, golf courses, restaurants, retail shopping, and any other amenity offered by an applicant would be exempt

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from local zoning. This is clearly contrary to the Gaming Law and outside the scope of the ZBA' s limited review.

Any proposed resort amenity and all design details are subject to local zoning.  As stated previously, the proposed amenities are prohibited under the current zoning and section 1366 of the Gaming Law does not and cannot alter this interpretation. The only way correct this would be for the Town Board to legislatively amend the Zoning Law.  The ZBA has no authority to amend the zoning through interpretation.

Re-writing the Zoning Law will have far reaching effects

The ZBA should tread wearily when considering the Capital View Casino's interpretation of the Zoning Law as it will have far reaching effects.  Zoning interpretations, such as the one being offered by the Capital View Casino, are not project specific.  Permitting intensive commercial uses within residential districts through PDD legislation would provide all future property owners in the Town's residential zoning districts with the same rights.  No longer would the residential districts be limited to the enumerated allowed uses that are in keeping the residential zones predominantly residential.  Any future developer would simply need to apply for a PDD and they would be able to propose any commercial use in the residentfal zones.  The net effect would be to delete section 2.9.4.D.01 from the Zoning Law entirely.  It would forever enable town-wide commercial development.

Conclusion

In closing, the courts have been very consistent when reviewing similar cases where an applicant convinces a municipal board to expand upon the specific language of a zoning law.  Enclosed with this letter is a copy of a case arising out of Washington County Supreme Court, where the municipality attempted to permit a soccer camp that was plainly contrary to the local zoning law, similar to what is before the ZBA.  In overturning the Zoning Board of Appeals decision, the court examined the express terms of the zoning law, and denied the "unfounded extrapolation of the ordinance" stating inclosing that the authority to amend the zoning law must be legislative and not ajudicial determination.

We urge the ZBA to thoroughly consider this matter and come to the inescapable conclusion that only residential uses are permitted in residential zones.  We the ZBA to interpret the Zoning Law based on the clear, unambiguous language contained therein that limits the allowed uses in the Residential Buffer Zone to low-density agricultural, residential, and rural uses designed to preserve these areas as open space through low impact uses.

Very truly yours,

Jeffrey R. Meyer, Esq. jmeyer@meyerfuller. com