Can casinos expand gaming beyond their original footprint?

Wynn is making the case for an across-the-street expansion

IN FEBRUARY, Wynn Resorts proposed an entertainment complex across the street from its existing Everett casino, complete with a theater, bars and restaurants, a parking garage, and eventually additional hotels.

At the time, Wynn urged the Massachusetts Gaming Commission to consider the entertainment complex as something separate and apart from its existing casino, and therefore not subject to the regulatory oversight of the commission. The argument carried the day, and the commission gave Wynn the green light to move forward with its planning.

This fall Wynn returned to the Gaming Commission with a redraft of its original proposal. It now wants gaming at the entertainment complex, including a sports betting bar and restaurant and a 21,000-square-foot poker room. Wynn also wants to relocate its nightclub across the street to provide more gaming space at the existing casino.

The shift in thinking raises an interesting question for the Gaming Commission: Can a casino extend its gambling operation beyond its original footprint? If the answer is yes, how far beyond the original footprint can it go?

Lawyers involved in the process say the state’s gaming law is silent on the issue, which means the Gaming Commission will have to make a decision based on the available evidence.

Exhibit A is the vote by Everett in June 2013 in favor of the Encore Boston Harbor casino. The referendum, which followed precisely the wording of the state gaming law, asked voters if they approved of a gaming establishment at a property located off lower Broadway formerly known as the Monsanto chemical site. With 32 percent of the city’s voters casting ballots, the measure easily passed by a margin of 86.5-13.5 percent.

The Monsanto chemical site, located on the west side of Broadway, does not include the property to the east of Broadway where Wynn Resorts wants to build its new gaming/entertainment complex. But lawyers representing Wynn and Everett are urging the commission to look beyond the strict language of the referendum and think more broadly.

Wynn’s attorney, Tony Starr, said at a hearing in November that the host community agreement between Everett and Wynn Resorts makes reference to property “in and around” the project site that the casino operator may acquire in the future. Since the host community agreement was generally available to voters at the time of the referendum in 2013, he argues the voters gave their consent for an expansion of the casino beyond the former Monsanto chemical site.

Jonathan Silverstein, an attorney representing Everett, urged the Gaming Commission to think even more broadly. “The voters were not voting simply on a project,” he said. “They’re really looking at what this project will do for the city.”

Silverstein said voters backed the casino to spur new economic development, to encourage redevelopment of blighted areas, and to generate revenues for the municipality.  “Allowing this project to proceed will continue to accomplish all of these purposes,” he said, referring to the casino expansion east of Broadway.

He said expanding the casino across the street makes sense, but he suggested an expansion farther away might not. “I don’t think under the objective person’s standard that a normally reasonable person would think that a voter would vote in favor of a casino project on the west side of Broadway but not on the east side of Broadway,” he said.