Who is a member?
Our members are the local governments of Massachusetts and their elected and appointed leadership.
Chairman Stephen Crosby
Massachusetts Gaming Commission
84 State St., Boston
Dear Chairman Crosby and Members of the Commission,
On behalf of cities and towns across the Commonwealth, the Massachusetts Municipal Association appreciates the opportunity to offer comments regarding the Massachusetts Gaming Commission’s draft regulations 205 CMR 118.00 through 131.00, which pertain to the Phase 2 casino licensing process. These draft regulations, developed to implement the 2011 expanded gaming legislation, set forth parameters for prospective host and surrounding communities relative to casino development and operations. The MMA is offering several comments and recommendations to ensure the strongest possible policy framework for municipalities within the final regulations.
The licensing of three resort-casinos (Category 1) and one slots-parlor (Category 2) in Massachusetts will have unprecedented and long-lasting impacts on our communities, and we appreciate the thorough and methodical approach that the Commission has undertaken to draft regulations to create a clear set of requirements around the development process. We respectfully and urgently request that you give significant consideration and weight to all requests and recommendations submitted by the prospective host and surrounding communities relative to their specific concerns and suggestions to improve the draft regulations.
RFA-2 Administrative Proceedings
In Section 118.05: RFA-2 Public Hearing in Host Community, a requirement that a public hearing be held by the Commission in a prospective host community is outlined, including the opportunity for representatives of the prospective host and surrounding communities to make presentations. This is an important part of the application process and offers a valuable and transparent opportunity for discussion of local impacts that may result from the casino development, and of the role of the casino in the region. We applaud the Commission for making the hearing in the host community an essential part of the application process.
Phase 2 Application
In Section 119.01: Contents of the Application, the draft regulation lays out numerous application requirements relative to the role of the casino within the community and region, ranging from the inclusion of an executed host community mitigation agreement and any surrounding community mitigation agreements, to requisite studies on the local impacts of the proposed development, to proposals for cross-marketing with local businesses and an examination of the role of the casino as part of a local or regional economic plan. The MMA appreciates the consideration given to each of these important municipal concerns as major components of the casino application. Section 119.03: Evaluation of the Application by the Commission lists several similar factors relating to host and surrounding communities and local impact, and the MMA similarly appreciates their inclusion as key criteria for evaluation.
Host Communities
Prospective host communities have an extremely high stake in ensuring that the casino application and development process is designed in a way that is both timely and appropriate. The process requires a very substantial investment of municipal resources and expertise, and the final regulations adopted by the Commission must be consistent with the expressed needs of the communities.
We strongly urge the Commission to incorporate input from prospective host communities into the final regulations on issues including timetables, consistency with established municipal processes, ordinances and bylaws, and local control of the host community agreement process. Host communities will experience novel and long-lasting impacts from casino developments, and they are best positioned to anticipate how regulations around the application and development process may best support their particular needs. It is essential that the process unfold in a way that is responsive to the needs of these municipalities, and we thank you in advance for your careful consideration of their comments and inclusion of their recommendations.
Host Community Election Process
On April 18, the Commission adopted an emergency regulation creating a pathway to allow a host community to hold an election on whether the community shall permit the operation of a licensed gaming establishment at a specified site within the community, prior to the completion of the Commission’s investigation into the applicant’s suitability. The MMA commends the Commission for working with local officials on this issue in response to their request for the ability to proceed on a timeline practical for local government. We understand that the language of Section 124.02: Request for an Election will be updated to reflect the adoption of the emergency regulation in the final regulation to allow an election to be held prior to a final determination of suitability by the Commission, at a prospective host community’s discretion.
In Section 124.04: Preparing for the Election, the draft regulation indicates that the host community will publish an executed host community agreement, as well as a summary of the agreement to be approved by the city solicitor or town counsel, in a periodical of general circulation and on the official website of the municipality within seven days of the signing of the host community agreement by both parties. The MMA urges the Commission to allow a longer period of time, such as fourteen days at minimum, for the municipality to publish the host community agreement and summary. The period must ensure sufficient time for the drafting and legal approval of the summary by the municipality, and for the process of getting the agreement and summary published in a newspaper.
In Section 124.06: Reimbursing the Expenses of the Host Community Election, the draft regulation creates a process whereby a host community may seek reimbursement for costs incurred to hold the election, giving the community seven days post-election to submit an invoice of costs to the applicant, unless another period of time is agreed upon by both parties. The MMA recommends amending the number of days to submit an invoice to a minimum of fourteen, unless another period of time is agreed upon by both parties, to allow for adequate time for the municipality to compile the requisite documentation of costs.
Additionally, the draft language gives the applicant 30 days after the date of the election to reimburse the municipality; the MMA requests that the final language include 30 days or prior to the end of the municipal fiscal year, whichever is sooner, so as to disallow the possibility that a municipality may have to carry the costs into a new fiscal year.
Surrounding Communities
The draft regulation creates two pathways for surrounding community designation – through an executed agreement between the community and the applicant, or through a determination by the Commission subsequent to the petition of a community that does not have an executed agreement with the applicant.
In Section 125.01: Determination of Surrounding Communities and execution of mitigation agreements, (2) Surrounding Community Determination by Commission (b), the draft regulation enumerates several factors for the Commission’s consideration as it determines whether a petitioning community will be granted surrounding community designation. These factors include: impacts on transportation infrastructure; volume of trips on local, state, and federal roadways; impacts on transit ridership and parking; noise and environmental impacts during construction; increased traffic; impacts on public safety; increased demand on water and sewer systems; impacts from increased storm water run-off; stresses on a community’s housing stock; negative impacts on local, retail, entertainment and service establishments; increased social service needs; demonstrated impacts on public education; and any other factors that the Commission deems appropriate in reviewing the application. We commend the Commission for the enumerated impacts for consideration and for allowing non-enumerated impacts, if any, to be evaluated in the surrounding community determination process. This will allow for the unique context of a prospective surrounding community’s petition to be fully examined.
In Section 125.01: Determination of Surrounding Communities and execution of mitigation agreements, (2) Surrounding Community Determination by Commission (c), the draft regulation states that in determining whether a potential impact on a prospective surrounding community is a significant and adverse impact, the Commission may consider whether the impact will be different or greater than impacts on other communities geographically nearby. However, the MMA strongly urges the Commission to remove this language from the final regulation and exclude any similar comparisons of impacts as criteria in the surrounding community determination process. An impact that is both significant and adverse may be experienced in two or more prospective surrounding communities, to similar or varying degrees. Any subsequent mitigation measure for a significant and adverse impact should be proportional to the degree of the impact within the surrounding community. However, the fact that a significant and adverse impact may be experienced in several communities should in no way decrease the likelihood that any of the impacted communities will be designated as a surrounding community by the Commission.
In Section 125.01: Determination of Surrounding Communities and execution of mitigation agreements, (2) Surrounding Community Determination by Commission (d), the draft regulation states that the Commission may evaluate whether the positive impacts that result from the development and operation of a casino outweigh the negative impacts. We ask that this language be removed from the final regulation, as the balance of positive and negative impacts within a community should not factor into the Commission’s determination of status as a surrounding community. Furthermore, any potential positive impacts in a prospective surrounding community, such as number of residents finding employment at the casino or increased patronage of local businesses, would be difficult to quantify in a process that would be highly speculative at best and unwise at worst. The Commission should instead limit its deliberations to the adverse and significant impacts likely to be experienced by the community in making its determination.
Reopening of Mitigation Agreements
Section 127.00: Reopening Mitigation Agreements creates a process through which a signed host or surrounding community mitigation agreement may be reopened if a significant and material adverse impact on a community is triggered because (a) the applicant is granted a conditional license based on the EOEEA’s certificate on the applicant’s environmental impact report, or (b) the applicant is granted a conditional license subject to a permit approval that would likely cause a significant and material adverse impact on a host or surrounding community.
The MMA commends the Commission for its inclusion of triggering events as reasons for the reopening an agreement, and requests the addition of a third category of triggering events to consist of unforeseen events or circumstances resulting from casino construction or operation that cause a significant and material adverse impact on a host or surrounding community which is not included in the signed mitigation agreement. As with the procedure following the two triggering events included in the draft regulation, the two parties could voluntarily agree to reopen the agreement through a supplement or amendment, or the host or surrounding community could petition the Commission to mandate the reopening of the agreement if an impasse between the two parties is reached. Because casino gaming is a completely new industry in the Commonwealth, it is reasonable and responsible to create a pathway through which unforeseen impacts may be mitigated.
Thank you very much for the opportunity to comment on these significant issues. We appreciate the important work that the Commission has undertaken and the consideration that you and the members of the Commission are giving to the issues that impact municipalities. Once again, we strongly urge you to incorporate the recommendations of prospective host and surrounding communities into the final regulations, as they are best able to inform the creation of a regulatory framework that will not impose adverse impacts on their communities during the application and development process. If you have any questions or wish to receive further comment from us on any issue, please do not hesitate to contact Catherine Rollins of the MMA at (617) 426-7272 at any time.
Sincerely,
Geoffrey C. Beckwith
Executive Director, MMA