Pennsylvania Gaming Control Board v. City Council of Philadelphia

928 A.2d 1255, 593 Pa. 241, 2007 Pa. LEXIS 1583
CourtSupreme Court of Pennsylvania
DecidedAugust 3, 2007
Docket55 EM 2007 and 56 EM 2007
StatusPublished
Cited by44 cases

This text of 928 A.2d 1255 (Pennsylvania Gaming Control Board v. City Council of Philadelphia) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Gaming Control Board v. City Council of Philadelphia, 928 A.2d 1255, 593 Pa. 241, 2007 Pa. LEXIS 1583 (Pa. 2007).

Opinions

[246]*246OPINION

CAPPY, C.J.

On December 20, 2006, under the Pennsylvania Race Horse Development and Gaming Act (“Gaming Act” or “Act”), 4 Pa.C.S. § 1101 et seq., the petitioner, the Pennsylvania Gaming Board (“Board”), approved two slot machine licenses for Intervenors, HSP Gaming, L.P. (“HSP”) and Philadelphia Entertainment and Development Partners, L.P., (“Philadelphia Entertainment”) in the City of Philadelphia (“Philadelphia” or “City”). As part of that decision, the Board approved the location of the licensed facilities that HSP and Philadelphia Entertainment proposed respectively to establish. On March 29, 2007, the City Council of Philadelphia (“City Council”) enacted an ordinance (the “Ordinance”) that submits a ballot question to Philadelphia’s qualified electors, asking them whether the Philadelphia Home Rule Charter should be amended to prohibit City Council and the City’s Department of Licenses and Inspections from taking certain actions that would permit the use of gaming within designated areas of the City. The Board filed the above-captioned petitions against City Council, Patricia Rafferty, in her official capacity as the Chief Clerk of City Council, the Philadelphia County Board of Elections, and certain Acting County Commissioners in their official capacity as members of the Philadelphia Board of County Elections (collectively, “Respondents”), seeking to permanently enjoin them from submitting the ballot question to the Philadelphia electorate on election day. We conclude that the Ordinance is contrary to the Gaming Act because it allows the electorate to consider and nullify the decision the Board made as to the location of licensed facilities in Philadelphia and direct City Council and the City’s Department of Licenses and Inspections to disregard those local laws by which the Board’s decision is to be implemented. Accordingly, we hold that the Board is clearly entitled to the relief it seeks, and order that Respondents are permanently enjoined from placing the question on the ballot.

[247]*247I

The following material facts as set forth in the Board’s Petitions for Review and Briefs and the Briefs of HSP and Philadelphia Entertainment are not disputed. In July of 2004, the General Assembly enacted the Gaming Act, a statute of statewide concern that provides for slot machine gaming at a set number of licensed facilities within the Commonwealth. 4 Pa.C.S. § 1102. The Act established the Board, and gives it the “general and sole regulatory authority over the conduct of gaming or related activities as described in this part.” 4 Pa.C.S. §§ 1201(a), 1202(a)(1). The Act defines the “[c]onduct of gaming” as “[t]he licensed placement and operation of games of chance under this part and approved by the [Board] at a licensed facilityf,]” and “[licensed facility” as “[t]he physical land-based location at which a licensed gaming entity is authorized to place and operate slot machines.” 4 Pa.C.S. § 1103. The Board is specifically empowered and obligated under the Act “to issue, approve, renew, revoke, suspend, condition or deny [the] issuance or renewal of slot machine licenses[,]” at its discretion. 4 Pa.C.S. § 1202(b)(12). The Act instructs the Board that the “location and quality of the proposed facility” is a factor that it may take into account when considering an application for a slot machine license. 4 Pa.C.S. § 1325(c)(1).

The Act provides for three types of slot machine licenses, designated by category. 4 Pa.C.S. § 1301. Each category permits an entity or person to apply to the Board for a license, and upon issuance, authorizes the placement and operation of slot machines at a licensed facility. Id. Under the Act, a Category 1 license authorizes the placement and operation of slot machines at existing horse racing tracks; a Category 2 license authorizes the placement and operation of slot machines in stand-alone facilities in cities of the first or second class or other tourism locations; and a Category 3 license authorizes the placement and operation of slot machines in resort hotels. 4 Pa.C.S. §§ 1302-1305. The Act states that [248]*248two Category 2 licensed facilities “shall be located by the [B]oard within a city of the first class.” 4 Pa.C.S. § 1304(b).1

As of December of 2005, the Board had received several applications for Category 2 licenses in Philadelphia. HSP and Philadelphia Entertainment were among the applicants. The applications that HSP and Philadelphia Entertainment respectively submitted identified and described the gaming facility each intended to establish in the City. The Board conducted public input hearings and public licensing hearings on the Philadelphia applications in April and November of 2006.

In March of 2006, the City enacted an Ordinance adding Chapter 14-400 to that part of the Philadelphia Code that governs zoning and planning. Chapter 14-400 is intended “to encourage the orderly development of major entertainment facilities,” and provides a regulatory framework for the establishment of “Commercial Entertainment District[s]” (“CEDs”) in Philadelphia. (Exhibits to the Petitions for Review at 7) Under Chapter 14-400, City Council designates a CED by ordinance in appropriate areas of the City. Upon CED designation, all underlying zoning classifications are superseded, and the owner of a lot in the CED may submit a plan of development to the City’s Planning Commission. The plan is reviewed for compliance with the regulations set forth in Chapter 14-400, which cover permitted uses, boundaries, height, off-street parking, signs, off-street loading, and design. Upon approval of the plan by City Council, the City’s Department of Licenses and Inspections is authorized to issue the necessary building and zoning permits. As to gaming facilities, Section 14-405 of Chapter 14-400 provides that “[n]othing in this Chapter shall limit the right of the Pennsylvania Gaming Control Board under the [Gaming] Act to identify the property on which it will permit a Category 2 licensed facility within the City[,]” and that “[n]othing in this Chapter shall be construed to prohibit any use that is exclusively regulated and [249]*249permitted by the Commonwealth under the [Gaming] Act.” (Exhibits to Petitions for Review at 8).

On December 20, 2006, the Board held a public meeting to vote on all pending applications for Category 1 and 2 licenses. The Board approved two Category 2 licenses in Philadelphia, for HSP and Philadelphia Entertainment. As part of this decision, the Board approved the locations of the facilities HSP and Philadelphia Entertainment respectively proposed. In the Adjudication of the Pennsylvania Gaming Hearing Board in the Matters of the Applications for Category 2 Slot Machine Licenses in the City of the First Class, Philadelphia the Board issued, the Board observed that the location of HSP’s proposed site is in an area of the City zoned for uses compatible with or analogous to gaming, and that the location of Philadelphia Entertainment’s proposed site is fully compliant with the requirements of a CED district. The Board also took note of the ordinances that Philadelphia adopted for the creation of CEDs where gaming facilities are permitted, and anticipated that the process outlined in the Philadelphia Code for creating them would move forward.2

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Bluebook (online)
928 A.2d 1255, 593 Pa. 241, 2007 Pa. LEXIS 1583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-gaming-control-board-v-city-council-of-philadelphia-pa-2007.