COUNCIL OF THE CITY OF PHILADELPHIA COMMITTEE ON LAW AND GOVERNMENT - - - Room 400, City Hall Philadelphia, Pennsylvania Friday, March 2, 2007, 10:15 a.m. - - - Bill 070112 - Providing for the submission to the qualified electors ofPhiladelphia of a proposed amendment to the Home Rule Charter relating to the location of licensed gaming facilities within the City as proposed by a petition presented to the Council and approved for submission to the electors by resolution. Resolution 070113 - Submitting to the electors of the City on an election date to be designated by ordinance an amendment to the Philadelphia Home Rule Charter relating to the location of licensed gaming facilities within the City as proposed by a petition filed with the Council. COUNCILMEMBERS PRESENT: William K. Greenlee, Chair Frank DiCicco Wilson W. Goode, Jr. Jack Kelly Frank Rizzo - - - V A R A L L O Incorporated Litigation Support Specialists 1835 Market Street, Suite 600 Philadelphia, Pennsylvania 19103 215.561.2220 215.567.2670 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 WITNESS Janice Woodcock, Executive Director..... City Planning Commission Romulo Diaz, Jr., City Solicitor........ 11 5 William G. Schwartz, Esquire............ 85 Philadelphia Entertainment Development Partners, L.P. Bob Sheldon, President, SugarHouse...... 92 Daniel Hunter, Casino-Free Philadelphia 110 Paul Boni, Environmental Law Attorney... 113 Charles Valentine, Fishtown resident.... 117 State Representative Thomas Blackwell... 130 James Paylor, Vice President............ 131 International Longshoremen's Association Karen Dinardi, Casino-Free Philadelphia 137 Lyndon LaRouche, Political Activist..... 138 S. Haney, Southwark Historic District... 141 * * * 3 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
Good morning, everybody. We're going to try to get started as soon as possible, as we have a lot of people to testify. Could I ask Mr. Boyle, the clerk of the committee, to please read the bill and resolution before us.
Ordinance 070112, an ordinance providing for the submission to the qualified electors of the City of Philadelphia of a proposed amendment to the Philadelphia Home Rule Charter relating to the location of licensed gaming facilities within the City as proposed by a petition presented to the Council and approved for submission to the electors by resolution; fixing the date of a special election for such purpose; prescribing the form of ballot question to be voted on; and authorizing the appropriate officers to publish notes and to make arrangements for the special election. 4 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Resolution No. 070113, a resolution submitting to the electors of the City on an election date to be designated by ordinance an amendment to the Philadelphia Home Rule Charter relating to the location of licensed gaming facilities within the City as proposed by a petition filed with the Council.
Thank you. For the record, a quorum exists. To my right, Councilman Goode; to my far left, Councilman Rizzo; and next to him, Councilman Savage. Just quick ground rules. Anybody that has written testimony that would like to just submit that testimony and paraphrase their remarks in the interest of time, it would be appreciated. But everything that is put in writing here will be made a part of the record, and all committee members will 5 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 be aware of that. I think we're going to start with the City Planning Commission as our first witness, and I think the City Solicitor will be along very shortly. (Witnesses come forward.)
Miss Woodcock, would you please identify yourself for the record -- good morning -- and proceed with your testimony.
Good morning, committee and Councilmen. My name is Janice Woodcock. I'm the Executive Director of the Philadelphia City Planning Commission. The item that we are here for today is a proposal to change the Philadelphia City Charter to limit the placement of a Category 2 licensed gaming facility within the City of Philadelphia. The proposed change would preclude any gaming facility from 6 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 locating within 1500 feet of the following: Any residentially-zoned district; Any residential home; Any institutional development district; Any churches, monasteries, chapels, synagogues, convents, rectories, religious-article stores, religious-apparel stores; Residential homes; Legally occupied dwellings or apartment buildings or a convention center/civic center; Any schools up to and including 12th grade and their adjunct play areas; Public playgrounds, public swimming pools, public parks, and public libraries. The GIS staff of the Planning Commission has prepared a graphic which demonstrates the practical effects of this proposal. It's over there on the 7 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 easel. Due to the technological difficulties, including all of the proposed uses in districts, the graphics show only areas within 1500 feet of residential districts, institutional development districts, schools, parks and libraries, and long-established churches and their adjunct facilities. A cursory glance at that graphic shows that this ordinance will preclude the placement of gaming facilities within most of the City of Philadelphia, with the notable exceptions of both the Philadelphia International Airport, the Northeast Airport, the Navy Yard, the area adjacent to the Betsy Ross Bridge, the lower Schuylkill River area, as well as the lower Delaware River area. If we then add the ten-mile radius around the existing Category 11 licensed gaming facilities as set forth 8 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 in the State-enabling legislation -- those are the circles on the map -- we can see that a large portion of those areas are precluded as well. We can review the remaining sites then to determine their suitability as gaming sites. Starting at the north, there's an area adjacent to the Betsy Ross Bridge, which includes a rail yard and a mix of commercial and industrial sites. We've got an aerial of that site for you to look at. This site is about 66 acres in size. About one third of this area has limited access to utility for development due to the railroad and floodway. The other two areas on the site permit residential homes as caretaker residences in G-2 industrial designing, and if there are residents at these sites, they would not be -- this entire site would not be eligible 9 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 for gaming. The Luzerne site, which we also have a picture of for you, is about acres in size. It falls 6 within an established industrial area 7 and includes a PECO transformer 8 station, which would make this site 9 undesirable for a gaming facility. 10 When you look at the configuration of 11 this site, the PECO site is right in 12 the middle. 13 The 25 acres is the same size 14 as the SugarHouse site, so by taking 15 the notch of the PECO site out of that, 16 this site becoming undevelopable. 17 The Tioga Marine Terminal 18 shown on the map is the strip of land 19 along the upper Delaware and consists 20 of tank farm and liquified gas 21 terminal, which would be not suitable 22 for gaming use. 23 This only leaves portions of 24 the South Delaware, which include 25 active port uses and the Navy Yard. 10 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 The Navy Yard. (Jeers.)
Please. A person has a right to their testimony. Thank you.
The Navy Yard has limited access and little opportunity for the synergy of use and tourism or economic development that is provided for in the enabling legislation. The overall effect of this ordinance, then, would be only to permit gaming facilities where they are less desirable for developers the, State, and the City. This concludes my testimony.
Okay. Thank you, Miss Woodcock. Just for the record, please reflect the presence of Councilman Kenney, Vice Chair of the committee, and Councilman Kelly. 11 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Are there any questions or comments from members of the committee? (No questions.)
Okay. Mr. Diaz, welcome. Please identify yourself for the record and proceed with your testimony.
Thank you. Good morning, Chairman Greenlee and members of the Law and Government Committee. I'm City Solicitor Romulo Diaz, Jr. I'm here to testify on Resolution No. 14 070113 and Bill No. 070112. To my knowledge, this is the first time that this Charter amendment provision of the Philadelphia Home Rule Act has been utilized, but the substantive issues presented today are much like the substantive issues presented by the bills I discussed with many of you at the Rules Committee hearing on February 21st. The Pennsylvania Race Horse and Gaming Act and the regulations 12 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 promulgated thereunder set forth a comprehensive regulatory framework for gaming. Section 1202 vests the Gaming Control Board with general and sole regulatory authority over the conduct of gaming or related activities. Section 1304(b)1 dictates that two casinos be licensed in Philadelphia and that each casino be located by the Gaming Control Board. Section 13-29 of the Gaming Act further makes clear that casinos cannot be relocated by any entity other than the Gaming Control Board. I interpret the relevant provisions of the Gaming Act to mean that the location of the Philadelphia casinos is a State decision. That decision is to be made by the Gaming Control Board pursuant to a delegation of authority from the General Assembly and in accordance with statutory criteria. The City must respect the 13 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Gaming Control Board's licensing decision and the City must exercise its local land-use controls in a manner that complements rather than conflicts with the State's regulatory framework. Based on the Planning Commission's analysis, it appears that the proposed Charter change would make extraordinarily large portions of the City off limits to gaming, particularly in combination with the State law requirement that no gaming facility is to be allowed within ten miles of casinos located at Philadelphia Park and Chester Downs. I believe that such a result is legally problematic. The Commercial Entertainment District zoning classification created by City Council last year on recommendation of the Philadelphia Advisory Task Force is a local regulatory framework that I believe is consistent with the comprehensive State 14 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 scheme. The CED framework will allow casinos and other future major entertainment developments to be undertaken in a responsible manner with reasonable standards and community input. Amendments to the CED classification or any other local land use authority must be structured to avoid conflict with the Commonwealth's requirements. To do otherwise would invite unnecessary litigation as well as legal and legislative challenges to local land-use control. This concludes my testimony. I appreciate the opportunity to appear before you today on this important issue and would be pleased to answer any questions you may have.
Thank you, Mr. Diaz. I guess it's sort of in here, but let me -- I know other members have questions, but I just have basically 15 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 one. If you were -- if we were going to ask your legal advice as far as what we're -- as far as this bill 6 and resolution before us, what would it be?
I thank you for that question because it gives me an opportunity to -- to explain that in many respects, this is a three- dimensional chess game that is underway. On the one hand, we have a licensing decision by the Gaming Control Board, which is not yet a final unappealable decision by the Gaming Control Board. The Supreme Court is expected to receive appeals with regard to these licensing decisions, and the deadline for that is next Monday, March 5th. In that context, the Supreme Court has not yet spoken about the adequacy of the decision rendered by the 16 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Gaming Control Board, nor have we seen the license conditions that the Gaming Control Board, in its February 1st opinion, indicated would be forthcoming. On the other hand, I look at the decision of the Pennsylvania Supreme Court which was rendered in 2005 which indicated, when it struck down the local land use preemption provision, Section 11 15-06 of the Gaming Control Act -- it was then in place. In striking it down, it had a footnote that made clear it believed that the legislative intent of Section 16 15-06 was to preempt any local land-use controls with regard to a licensing decision. Within that context, I believe that we have a responsibility to act in a way that -- that complements the decision to license two gaming facilities in Philadelphia at the locations that have been indicated by the Gaming Control Board in its 17 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 announcement of last December and in its February opinion. It would be my legal conclusion that the expansive nature of the exclusions of areas of Philadelphia for gaming purposes, particularly in light of that decision issued on February 1, would be overturned on appeal by the Pennsylvania Supreme Court. And it would be my advice that the expansive nature of these exclusions would -- would be something that I would not recommend to this committee. (Jeers.) (Heckling.) (Chairman Greenlee bangs gavel.)
Please, 18 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 please, please. Councilman Goode?
Thank you, Mr. Chairman. Good morning, Mr. Diaz. (Heckling.)
We'll get through this a lot faster if you let us conduct the hearing. We know your opinion on this. Thank you. (Heckling continues.)
My questions, similar to Councilman Greenlee's, are actually for legal advice. 19 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 The first question: Since this Charter amendment provision has never been used, it's safe to say that there is no case history or legal precedent; is that correct?
With regard to Philadelphia, that is my understanding, Councilman Goode. I do understand that there is a 1956 Supreme Court of Pennsylvania decision which indicates that the process is to be implemented by local jurisdictions in a way that's analogous to the election code process for challenges to election petitions. But there is no case law that I am aware of with regard to Philadelphia County. That is correct, sir.
And since there is no legal precedent, I am real curious as to your opinion of whether it makes a difference how this bill is originated? In other words, the fact 20 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 that there is no necessarily legislative intent coming from this body, per se, but legislative intent coming from the citizens; does that, in fact, make a difference legally?
I don't know that this was the purpose of your question, but let me indicate why that is an interesting question. I don't believe that the -- the lack of legislative intent would itself have legal significance, but the provisions related to the Home Rule Charter amendment by petition of 20,000 or more registered voters in Philadelphia does relate to different language in that particular provision for Charter changes. The provision indicates generally that with regard to Charter changes, which are instituted by City Council, that there is a different vote -- it's a two-thirds vote, for example -- and it is done by resolution 21 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 to frame the change of the Charter that is contemplated and by ordinance to --
Mr. Diaz, my question is a very simple question. Does it make a difference how this legislation originated? The fact that it came from the citizens as opposed to Council, does it make a difference legally?
Does it make a difference with regard to your testimony? In your testimony, you said that these bills present legal complications, legal complications because of other legislation that this Council has passed, other legislation 22 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 that the State legislature has passed, but the fact that State lawmakers and local lawmakers have initiated bills has nothing to do with the fact that the citizens have initiated this legislation. And does it make a difference that since the citizens initiated this, it doesn't -- I don't think that it necessarily is in conflict with legislative prerogative the State may have over a local legislative body. I'm not sure that the State has legislative prerogative over the citizens.
As a legal matter, I don't necessarily agree with the Councilman. The State regulates 23 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 citizens each and every day. The distinction --
The distinction -- if I may finish the answer, sir. The distinction, as I understand it, is procedural as to the Charter change approach, whether it goes via Council-implemented effort or as a consequence of a petition of Philadelphia voters. But I do believe, sir, that the standards that would be applied by the Pennsylvania Supreme Court in connection with any appeal that might be filed as a result of a Charter change that we are currently -- or that you are currently considering, I believe the standard would be the same. And I do believe -- it is my legal opinion and I do believe that the analysis that has been presented to the committee this morning by Janice 24 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Woodcock makes it clear that the licensing decision of the Gaming Control Board of February 1 could not be implemented; and moreover, that virtually all of the City -- not all, but substantially all of the City would be precluded from development for gaming purposes. And I believe, as your legal counsel, that the Supreme Court would find that extremely problematic, and the likelihood of our being able to sustain that change, I think, would be exceedingly difficult to achieve.
Mr. Diaz, I'm not trying to cut across your answers or not give you a chance to talk, but I am trying to get where I'm trying to go with this. And my point is that I understand how we can be preempted in terms of legislating locally by State law that already exists. I'm not sure how a ballot question can be preempted 25 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 if it is originated by the citizens. (Applause.) (Cheers.)
In fact -- in fact, Councilman, I have a case which I would be pleased to share with you that was decided by the Pennsylvania Supreme Court in connection with a citizen-initiated Charter change in which it is my understanding that, in fact, the Supreme Court found fatal flaws in the process; and the changes that were instituted were, in fact, not allowed to go into effect by the Pennsylvania Supreme Court. So I do not believe that the origin of the Charter change, whether by City Council or by citizens, registered voters in Philadelphia County, is a legal distinction that would be recognized by the Pennsylvania Supreme Court. (Heckling.)
Let me -- 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 let me get a little further into where I'm really going with this. Are the bill -- is the bill 5 and resolution itself unlawful? Not the outcome of it. But the bill and the resolution itself, is it unlawful?
Well, I think you've put your finger on why I have referred to this at various times as a "three-dimensional chess game" and also in terms of a continuum. (Jeers.) (Heckling.) (Chairman Greenlee bangs gavel.)
And the reason that I have done so is because it is not my belief that the proposed Charter change in and of itself is --
So the proposed Charter change, the bill and resolution itself, is not unlawful. What you're saying is -- 27 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
That the proposed Charter change is not in and of itself, I believe, illegal. It is the -- it is the practical result of that Charter change, given the kind of analysis, given the kinds of exclusions from gaming that I believe would result in a serious concern and perhaps a losing of posture in connection with this change.
So we've gotten through the first part of where I'm trying to go: The Charter change itself is not unlawful. The second part: Let's deal with Council's consideration of a Charter change. And since this is probably going to be a very litigious matter, I'm going to put something on the record on purpose. I'm going to say for the 28 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 records that I will vote for this Charter change, not -- (Applause.) (Cheers.)
Not in a way that conflicts with anything that's within State law, not in a way that conflicts with any other law that we have passed, but simply because this is a Charter amendment provision that has never been used. And I believe that we need to protect that type of citizen participation and that type of citizen empowerment. (Applause.) (Cheers.)
And if I say that as part of the legislative record, that that is the reason why I'm voting for it. While we are not required to ever say why we're voting for something, that's why I take issue with 29 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 whether it makes a difference or not how this legislation originated. This committee and this Council could very well say that we're just going to give the people their chance to have a vote. And -- and -- (Applause.) (Cheers.)
And that our purpose -- and that our purpose in doing so is not to undo anything that we've done and not to undo anything the State has done, but just simply because this is a Charter amendment provision. And as part of our own home rule authority, we believe that the provision was put in the Charter for a purpose -- to allow the people to have a say. (Cheers.) (Applause.)
Now, as a member of this committee and as a duly elected member of this Council 30 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 at-large, does that make a difference legally once I put that on the record?
My conclusion, sir, is it does not for the reasons that I expressed before. But I can tell you this: That in connection with my responsibilities as City Solicitor, as advisor to Council, and particularly the Chief Clerk of City Council, it was with that idea in mind that, when I reviewed as a preliminary matter the legal authority to file the petition, it was my determination that yes, people should be heard, this should be filed, and I did not raise a legal objection to the petition in its form at the time that the filing was -- was done on, I believe, February 22nd. Having said that, having had an opportunity for the filing, now having an opportunity for citizens to be heard, which is their right and -- and -- and presumably our 31 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 responsibility, it is my legal opinion that the difference in origin of the Charter change through a petition of 20,000 or more registered voters of the City of Philadelphia legally does not make a distinction in connection with the review by the Pennsylvania Supreme Court on the issue related to State preemption. It may make a difference, and I have attempted to explain the difference with regard to the procedures that are used. And surely, any appeal would cause the Supreme Court --
-- to review the adequacy of those procedures. But as a legal matter, the result, I believe, on the preemption issue is no different with a Charter change that emanates from City Council --
Mr. Diaz. 32 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
-- versus a Charter change that emanates from the registered voters of the City.
Mr. Diaz, even when we don't agree, I'm still glad that you're my lawyer 'cause you're a very smart lawyer and you anticipated my next question. My next question is: If the Chief Clerk signed off on this and if you signed off on this and this committee is signing off on this for the reason that it is a part of the Charter, a vehicle by which the Charter allows the people to have a say, do you actually believe that we can be sued for that? Or do you believe that the result of this legislation is a grounds for suit? In other words, it is legal for us to do this; you just don't believe we will reach the legal outcome that the citizens want.
Well, the -- and 33 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 thank you for your earlier comment. I'm always impressed by the level of work assignments that we get from your office as well, Councilman. But let me say that in connection with the -- whether the Councilmembers or Council itself might be sued, we live in a litigious society; we always assume that we might be sued. My issue, I believe, is that there is a process which is laid out in the Home Rule Act, which provides, I believe, for opportunities for both proponents and opponents to the Charter referendum that is initiated by petition to be heard in court. I do not believe that the filing of -- of the petition by the Chief Clerk, the acceptance for filing in and of itself is vulnerable to challenge. The Act provides that the Chief Clerk essentially has the 34 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 discretion to either engage in what we would call "a facial review" to see that if it appears to comport with the requirements and make a determination as to filing or to go behind the signatures and engage in an in-depth review. She did not do that, I don't think she was required to do that in-depth review. I think the procedural safeguards for both the opponents and the proponents of the petition are in the Act. They will be reviewed by the court, which has this matter as a result of the appeal filed yesterday.
And I'll be very brief now 'cause I know that other committee members have questions. So it is legal for us to go through this process; you just don't believe the outcome of this process results in what we want legally.
I'm sorry. The 35 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 last part of the -- results in what?
Well, if what we're trying to achieve is a legal -- a legally adequate ability to regulate gaming in Philadelphia through what I believe is a legally appropriate way through the CED that approach Council adopted last year, I do not believe the outcome, if this Charter change is adopted, would allow that -- would allow that result.
But if the purpose is for this committee and for this Council to put a question on the ballot in May, that is perfectly legal.
I believe that it is legal to put it on the Charter -- on the ballot for a Charter change. I think it would be unfortunate if, as a result of putting it on the ballot, the City were to lose all of its authority with regard to 36 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 land-use control. I think that would be a very unfortunate result. And if I may, Councilman, let me just read one sentence of the 2005 Pennsylvania Supreme Court decision. "We agree that Section 1506 clearly reflects the legislative intent to override local zoning and land use provisions to the extent that a licensed facility has been approved by the Board." Now that, provision was struck down by the Pennsylvania Supreme Court -- not because they indicated they had a problem with preemption, but because they believe that it was an inappropriate delegation of authority to the Gaming Control Board on other grounds. I think it is very clear, given the fight that occurred the last few months of 2006 in connection with whether to put back preemption language into the Gaming Act, I think that this 37 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 kind of a Charter change and the efforts that we're talking about --
But you realize that I have on purpose not dealt with the issue of what the result will or will not be but the process and whether the process that we're embarking upon now is legal. And that's really my primary question here. Is it legal for us to go through this process of a ballot question? And I believe the answer to that is yes. Now, in terms of the outcome of that ballot question and whether we reach a result and how that plays out in court, that's what we have lawyers for. (Applause.)
I would say, Councilman, that a very wise American 38 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 author wrote -- not an American author, a British author wrote in Alice in Wonderland -- (Heckling.) (Chairman Greenlee bangs gavel.) (Heckling continues.) (Chairman Greenlee bangs gavel.)
The author wrote, "Let the crime fit the punishment." And I think that, you know, most often, people would say you can't separate result -- (Heckling.)
Mr. Diaz , excuse me. People, we're going to be here a lot longer if you keep doing this, okay? He has the right, he's the City Solicitor, we have a lot of testimony. Please let the witness finish their testimony. Thank you. 39 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
The point I'm trying to make is this, Councilman: I believe that while I understand your desire to separate the process from the result, I think most people would say -- I would say that it is virtually impossible to separate the process from the result. (Jeers.)
And to the extent that I would conclude that the process is legal but the result illegal, it would be frankly not helpful to you for me to avoid giving you that advice, which is why in -- in respect of my responsibility to you and to this committee and to Council, I have attempted to be candid. At the same time I have been loyal to my responsibility to support Council in -- in its efforts to legislate.
Thank you. I'll come back. 40 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
Thank you very much. Thank you for your testimony. There's no need to applaud or stand up or yell because I'm going to say what Wilson has already said, and that is: I intend to vote for both this resolution and the bill -- (Applause.)
-- and all of the bills that Councilman DiCicco has put forth in an effort to slow this down or stop this process, and the reason -- (Applause.) (Cheers.)
And the sad part about this whole thing -- and you guys didn't create this and we guys didn't create this -- is that this process and discussion should have 41 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 taken place at the Gaming Control Commission with the -- (Applause.)
And the legislature should have given us the protections that we needed to have this discussion, because when good people went to Harrisburg to try to explain their concerns, they were shut off, they were given a minute or two minutes, whatever it was, to talk. The record was closed. And all of this is the result of the State Act, Act 71, that gave us gaming in the first place. So anything that we can do to throw a road block or a speed bump into the way of this juggernaut we're going to do here because we're trying to clean up -- (Applause.) (Cheers.)
Because all of us, with your opinion, whether 42 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 it conflicts with our opinion or not, all of us are trying to clean up a mess that was handed to us by the State legislature a while ago. (Applause.) (Cheers.)
Having said that, you guys have a unique opportunity this weekend to actually express your views to the people who gave you gaming, because State Representative Keller and Taylor, who both voted for gaming, are hosting a large group of legislators down at the Penn's Landing Hyatt this weekend, entertaining some legislators, which is a good thing to do. And all of those -- or most of those of those people who are there voted for gaming. So if you're concerned about the port's future, if you're concerned about your neighborhood's future, if you're concerned about the effect of gaming on our social situation here in 43 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Philadelphia, you can go down to Penn's Landing Hyatt starting this afternoon and sit in the lobby with your signs and engage legislators from Pennsylvania who actually gave you this problem in the first place. (Applause.) (Cheers.)
And I think -- I think that this forum is necessary because the State didn't give us an opportunity or the people an opportunity to express themselves, but that forum down there is where you should go to really tell them how you feel about this issue and how you feel about the future of this port and how you feel about the future of your neighborhood. Because, again -- I said this before and I know people criticized me because I'm trying to pass the buck, but I didn't vote on Act 71, Frank DiCicco didn't vote on Act 81, Wilson 44 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Goode, Bill Greenlee, Kelly, Savage, Rizzo didn't vote on Act 71. Keller and Taylor voted on Act 71, yes, and the rest of those legislators down there voted on Act 71, so if they care about the future of this port, they can go back to Harrisburg next week and fix this problem for us. We will do what we have to do -- (Applause.)
We will do what we have to do to protect this city as best we can; whether the Supreme Court allows us to do it or not remains -- as Wilson said, remains to be seen, but we will do everything we can to protect our city and protect our neighborhoods. But the people who are the culprits -- (Applause.)
But the 45 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 people who are the real culprits are down at the Penn's Landing Hyatt, and you should go visit them. Thank you. (Applause.) (Cheers.)
Thank you. Thank you, Mr. Chairman. Mr. Solicitor, I appreciate your work. And the fact is that you've gone before the Supreme Court before. The City -- this isn't the first time that you might have to face the Supreme Court, correct?
But you're actually kind of -- I don't know if you have a crystal ball, but you really don't know what the Supreme Court would do when this arrives at the Supreme Court, correct? 46 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
I think that's a fair -- fair -- a fair question and a fair summary. I have a strong sense of it based upon my review of the law, but obviously, I can't predict with a crystal ball.
So your speculation that this would have a bad outcome would not -- is not necessarily the case. I mean, based on your review of the law, what is before the Supreme Court and your recommending to us that this probably would not be -- and I don't want to put words in your mouth; maybe you can help me with what you said. But my point is that sometimes you have to take your shot, and going before the Supreme Court isn't necessarily -- (Applause.)
-- isn't necessarily negative. It could turn 47 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 out to be very favorable. It could support us, it could support everybody in this room. (Applause.) (Cheers.)
I think that is highly unlikely, but I'm not a member of the Supreme Court, and I suspect even a member couldn't see the ultimate decision. But if I could just add one more thing, Councilman. You know, my perspective is not one that is generated as a consequence of a desire, a need, or even a belief that the actions taken by the Gaming Control Board are to be justified by me or my office. My response is in connection with given the hand we have been dealt with, much along the lines as indicated by Councilman Kenney, how do I give 48 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 legal advice in a way that I believe would best protect the remaining land-use controls of the City, given the comprehensive regulatory framework of the Gaming Act. It's in that context only attempting to protect what we have that I have given the legal advice that I have and -- and based upon my review of the cases, I think it would be highly unlikely that we would prevail. But on the other hand, I don't have a crystal ball, as I have indicated previously.
Well, I'd just like to follow up on that. Have you come back at us -- again, I think that you still also have the responsibility, if we're heading in wrong direction, to come back in and say to us, are there ways for us to accomplish and, you know, you are our lawyer for Council and you're in a unique situation -- you represent the 49 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Administration also, the executive branch. But if you come back to us to make suggestions or recommendations how we can accomplish what we want in this Council and be accordance to the law.
Well, I -- in that context, Councilman, and thank you for raising that question, I haven't been asked previously. But I have indicated in prior testimony that essentially, this is a continuum in terms of, you know, chances of success on appeal versus certain defeat. In the certain defeat category, I think for the City of Philadelphia to say via Charter change or bills or whatever that there will be no gaming in the City of Philadelphia, I think, is a certain defeat decision. At the other end of the spectrum, to have exclusions for areas within the City that are inappropriate 50 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 for gaming but allows for the decisions reached by the Gaming Control Board to be implemented, I think, are in the sure-win category. And the farther we move from that sure-win category to excluding gaming from large areas of the City, I believe that our challenge, to be successful on appeal, gets more and more difficult. And so, if you are asking how I might frame advice in terms of what might be legally permissible, I would say that we need to open up as a consequence of the areas to be excluded from gaming, we need to open up larger areas of the City. And it is my opinion that, looking at that map of the City of Philadelphia and showing the few areas, the limited areas that are available under this Charter provision, this Charter change provision, I believe that that would be found ultimately 51 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 impermissible. But enlarging the areas where gaming would be permitted in the City and certainly to enlarge it in areas sufficient to incorporate those that have already been determined to be the locations for the two licensed facilities in the City of Philadelphia would be the general advice that I would give Councilmembers in order for us to be successful in retaining our land-use control authorities.
Excuse me, Councilman. I'm already losing my voice. Councilman Goode has a point of information.
Solicitor, several times in your comments just now, you've used the term "we." You said "we" need to open up the amount of sites that are available, and you 52 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 continue to use the word "we." Who is "we"?
I am speaking as a Philadelphian, sir, not as a member of Council. (Heckling.)
Excuse me. Just one second. I hear democracy mentioned a lot. Democracy is when everybody has the right to speak, okay? Mr. Diaz has the floor here. (Jeers.)
I speak -- thank you, Mr. Chairman. I speak not only in my individual capacity as a Philadelphian 53 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 and as the Philadelphia City Solicitor, not intended to be a representative of Council nor the Mayor nor any other institutions.
That's my point exactly. And excuse me, Councilman Rizzo.
Let's deal with the issue that maybe it's not "we," maybe it's not the Administration, maybe it's not the Council, maybe it's not you in your capacity or me in my capacity, but maybe it's the citizens who already signed the petition. (Applause.)
And maybe -- and maybe we're allowing their action to move forward and should not interfere with it. And so even comments using the term "we" basically interjects Council 54 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 and interjects the Administration, I believe, if you were speaking in that regard, into a matter that we don't necessarily need to interject ourselves. (Applause.)
I've already said for the record that I'm willing to let the petition to speak for itself without adding to it or taking away. Thank you.
I understand the point, but I would say this to you as your lawyer: That the discretion of City Council continues to reside with 55 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 City Council whether a Charter change emanates from a member or from a petition of registered voters. The decision to approve the resolution and to approve the bill 7 before you is one that only Councilmembers have a discretion to make a decision on. And so legally, there is no 11 distinction between the two processes as to that authority and responsibility and restriction.
And I'm voting for the petition to move forward and what I'm saying is that we don't have to use our discretion, we don't have to say why voting for it or not voting for it. A vote can just take place. And by the record, the record can reflect that we decide to let the actions taken through the petition process move forward. And so in effect, it is a completely different situation because 56 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 this bill did not originate in City Council, this bill or resolution, but originated from the citizens who had a petition, who used a Charter amendment provision that has never been used before, and so it is differently legally. And particularly if we state for the record -- not assuring what this has to do with beyond me -- that since it's never been used before, that we believe that we can allow this to move forward, which does not conflict with anything else that we've done in terms of past law-making, it does not conflict with anything the State has done, but it is, in fact, a process that allows people to speak. And that was the purpose, I believe, why it was in the Charter to begin with. (Applause.)
Thank you, Councilman. Councilman Rizzo's finished. 57 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 Councilman Kelly's been very patient. The Chair recognizes Councilman Kelly.
Thank you, Mr. Chairman. Mr. Diaz, let me just say that I absolutely respect your opinion.
You do a wonderful job, and it's an opinion which we in this Council have to take under advisement, and we take it very seriously before we take any action. But let me go back into what Councilman Kenney was saying, that according to your testimony here, you say Section 13-29 of the Gaming Act further makes clear that casinos cannot be relocated by any entity other than the Gaming Control Commission. So, therefore, no matter what action this Council takes -- whether it be this committee getting it out, the full Council voting on it, giving the 58 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 opportunity to citizens to vote, and they all vote against gambling, no 4 matter what happens, this is just nothing more than a holding operation, it's just an obstacle. Because what you're saying is, unless we change the Gaming Act 71, or specifically the Section 13-29, which really prohibits us from this Council to be any part of this decision-making, and this is what has to change for us to be included so that we could work with the people, with the different factions that are interested in this area, that gaming decision -- that gaming casinos are going to be located. And until that happens, nothing's going to change. And I just want to make that crystal-clear that unless we change -- and Councilman Kenney was absolutely correct: We had no part in this, no 24 part whatsoever. We were not allowed to make any decisions or 59 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 recommendations. I know Councilman DiCicco has been fighting for this, has been fighting for this and fighting against it and fighting against it. And sometimes I compare him to David and Goliath because I think he's trying to do the impossible here. We have -- there's a legislature that controls this thing from day one, and until we can get them to change and to change specifically this act, this Council is going to be not much help to anyone at this point. (Heckling.)
And I just want to make this crystal-clear before everyone here thinks that -- (Heckling.)
We can vote this out today, it's very possible, all right? (Applause.) (Cheers.) 60 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
But that doesn't -- but that will give you an opportunity -- that would give you an opportunity to vote and the people, the citizens of Philadelphia, to vote. And that's democracy. That's what the chairperson just says.
By saying that, that doesn't mean it's a done deal, and I just want to make sure that everyone here knows about it.
Just one point of information. And with all due respect to Councilman Kelly whom I respect: David won. (Applause.) 61 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
Point of information. Mr. Solicitor, you know, this is coming out of committee today, and -- (Applause.) (Cheers.)
And for the record, could you describe the process? It's on the ballot, it -- let's -- let's talk about successful, not successful. Could you describe legally what the process will do and, at the end of the vote, what it means?
Councilman Rizzo, the -- the Home Rule Act provides that there is a seven-day period after the filing of the petition with City Council for opponents with at least 100 registered voters to file a lawsuit in Common Pleas Court. That was done 62 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 yesterday, is my understanding, by opponents of the petition. From that point, the court has to give priority to disposition of the matter. It has to schedule a hearing on this opposing petition within ten days, and it has to take final action within days of the filing of the 10 opposing petition. That deadline would 11 be by, my calculation, Friday, March 12 16. 13 So were this resolution and 14 bill to be reported out of committee 15 today, it would be in advance of a court decision, which could very well find that the petition, as filed with City Council, is legally adequate and should proceed to the ballot; or it could find that that petition is legally inadequate and may not go on to the ballot for May 15. And, of course, there is a requirement that a decision to put it on the ballot must be decided no less 63 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 than 45 days before May 15. So there is a window for the court to take action before that 45-day time limit. And, obviously, we'll find out within the next two weeks what that decision is. Is that, I believe, what you were asking?
Let's go a little further. It gets on the ballot; let's tell the rest of the story. What happens? What's binding, what's not binding? What exactly will happen if it gets on the ballot and it's successful, the question?
If it is legally upheld -- that is, the petition to have this Charter change on the ballot is legally upheld by Common Pleas Court and any appeals thereafter, and let's say that it is on the ballot for May 15, let's say it is adopted, then I would assume that there would be a 64 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 legal action that would be instituted by those who would -- who would be in support of -- of gaming and who have the two licenses to appeal or take some legal action from that decision. It is not clear that, in fact, that would be -- that there would be a clear decision to -- to eliminate these two licensed facilities in Philadelphia. One could construct a scenario where this could go back onto the ballot and could be eliminated by a future electoral vote. But let us say that it is approved by ballot on May 15th, and as a consequence of that, when the plan of development for the two casino sites come before City Council, which is the current process that's envisioned by Commercial Entertainment Districts, and before that, when it comes to the Planning Commission and the City operating departments, it would be my belief that we would not be authorized 65 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 to issue the necessary approvals, nor would City Council be authorized to give the necessary approvals to the plan of development because this is a Charter change. Certainly by that time, there would be a clear legal controversy that would be subject to appeals. At that point, the Supreme Court would have original jurisdiction under the Gaming Act, and it would decide whether the City has the authority to have taken the action that it did or not.
All right. Councilman DiCicco is here. I'm sorry. I should have recognized him earlier. Councilman DiCicco?
Thank you. Thank you, Mr. Chairman. (Applause.) 66 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 (Cheers.)
Thank you. I've actually been called many things in my life, and no one ever referred to me as "David," but I'll take that as a compliment. I had a number of items I was going to speak on, but I'm going to narrow it down just to one or two questions, and then I have a brief statement to make. Miss Woodcock, thank you for testimony and good morning.
In your testimony, you referenced -- I think it's the paragraph before the last that is talking about all of the reasons why this legislation would pretty much prohibit gaming facilities in most of the City of Philadelphia. And you also referenced that this would only leave -- this 67 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 legislation leaves portions of the South Delaware. The South Delaware sites include active port uses and the Navy Yard. The Navy Yard has limited access and little opportunity for a synergy for tourism and economic development as provided by the gaming-enabling legislation. What is your definition of the boundaries? (Heckling.)
Councilman, would you repeat the last part of your question, please.
That's okay. In your testimony, you reference that if this legislation were to be placed on the ballot and were to be ultimately enacted, that we would have limited areas in sites in the City in which these casinos could be built. And you mentioned that the South Delaware sites, which are active 68 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 ports and include the Navy Yard, which has limited access and little opportunity for tourism or economic, development would ultimately be the site, or sites, where these casinos would be placed. Is that an accurate -- or could be.
Could be. What is your definition of the boundaries of the active port on the South Delaware?
I don't have the map for you today, but the -- they would be apparent if I had an aerial to show you.
The Navy Yard, obviously, could be considered an active port?
How far -- without having -- without having a 69 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 map, and you're familiar -- I know you're familiar --
-- with the South Delaware 'cause your involved in the Penn Praxis, which we started a while back.
How far north would you say the port is, where there is an active port, how far north of the City?
There are active port uses all the way up to the south side of the retail, new retail that's been built.
Then there's another site that deals with paper 70 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 products that is linked by rail that is further up in the riverfront --
Further north. So is it fair to say that the active port is further north than Washington Avenue, or could be as far north as Washington Avenue?
What I'm speaking about are the existing active port uses, not the -- not future possible --
No, no, active today. Do you know Pier 38 and 40, I believe it is, Councilman Kenney, are just north of Washington Avenue --
Yes. I just mentioned that. I called that the -- there was a paper storage facility.
So would it be fair to say that there's an 71 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 active port -- I'll use Queen Street as the northern area -- south to the Navy Yard?
With the exception of the existing retail uses such as Home Depot, Wal-Mart, those stores.
We understand there's retail there, but there is -- would you not agree that there's an active port or there's activity related to the port from Queen Street South to the Navy Yard?
Yes. Then why would it be that it's 72 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 acceptable for the Foxwoods site to be placed within an active port when you're suggesting that if this legislation were enacted, that the only sites would be the Navy Yard, and we shouldn't put it there because it's an active port.
In doing the analysis for this map, we were not recommending gaming sites.
But you're suggesting -- you're suggesting, unless I'm reading this wrong, that we should be careful, that ultimately, if this legislation were enacted and the ballot gets passed, and for some unknown reason, the State legislators are listening to us --
They haven't been here for the last two hearings. None of the people who gave us this legislation, as Councilman Kenney pointed out, that the Navy Yard 73 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 is a possible site that these casinos would be sited, and that would not be good because it's an active port.
Why is it not good at the Navy Yard? And I'm not advocating the Navy Yard.
But not just as detrimental to the port activities at the Foxwoods site.
Again, I'm not trying to avoid your question, Councilman, but the analysis that we prepared was to answer the question about the impact of the legislation, okay? (Heckling.)
The impact of the legislation is shown on the map where the red portions are. So, we are not -- it's a descriptive term for that area.
Well, 74 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 look, the legislation -- really, the heart of the legislation, and all of my colleagues I spoke to and Councilman Goode very eloquently said, this is all about the citizens of Philadelphia having a say in their destiny, deciding for themselves what they think is right. (Applause.)
What is their right as tax-paying citizens to determine the future of their neighborhoods and the destiny of their neighborhoods, and that's really what this is all about. I think, Mr. Chairman, although I'm not a member of your committee, I do appreciate the opportunity and the fact that you had these hearings today. I know that the majority of 75 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 the people here today are going to be speaking against the casinos, obviously, and in favor of this -- these bills coming out of this committee, and it's a clear indication from the comments of this committee that it's going to be voted out in the affirmative. And I don't mean to suggest that we don't appreciate the folks that are here and the time that you've spent not only today but a few weeks ago, when, I think, we put eight hours' worth of hearings in. You're probably going to testify, and your comments are going to be very similar to what they were a couple of weeks ago. I would take Councilman Kenney's recommendation that maybe this committee decides rather quickly to vote these out favorably, and let's all go down to the River. (Applause.) (Cheers.) 76 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113
Today, within the next hour, we all convene at the Hyatt and let our legislators -- in particular our local legislators -- who saw fit to do this on July 4th in the year 2004, somewhere around 2 o'clock in the morning, made a decision for our lives and our future, I say we all go down to the River today. Thank you. (Applause.) (Cheers.)
Councilman DiCicco, I certainly understand your feelings, and what you're saying makes sense. There have been other people who are on -- have a different opinion on this, who did ask to testify. I think we have to, if they want to, give them the opportunity, sir.
Maybe we 77 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 can give the opposing side first because we know what the other side is going to --
I understand, I understand, but I think, in all due respect, we have to do that, okay? Mr. Diaz, do you --
I just wanted to add one item if I may, Mr. Chairman, for the record. (Jeers.) (Chairman Greenlee bangs gavel.)
In connection with the Councilman's question to Miss Woodcock, I mean, clearly, I think, as she pointed out, she was using descriptive terms, but there is an issue that is, I think, worthy of putting forward. The master plan for the Navy Yard designates portions for residential housing, so even though the 78 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 red area which, is shown that incorporates the Navy Yard, today, were there residential development at the Navy Yard -- (Heckling.)
Please. (Heckling continues.) (Chairman Greenlee bangs gavel.)
Ma'am, ma'am, please. Let's give -- Mr. Diaz, please proceed. I apologize for the interruptions.
Ladies and gentlemen, please, please, please let the Solicitor speak. Thank you.
Thank you, Councilman. 79 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 The point I wanted to make is that were there to be residential development at the Navy Yard consistent with the current master plan for the Navy Yard, then that area which, is shown in South Philadelphia would then have a 1500-foot exclusion zone around that residential housing as well. Thank you.
I understand that, and I understand if -- and I'm not being sarcastic or disrespectful, but were there residents in the Navy Yard, I believe they would be here as well fighting to protect their interests. So, you know, it goes back to what we said a few weeks ago. It's really -- we're the last line of defense, if you will, and we're doing our best. As Councilman Kenney's pointed out numerous times, this was dumped on us, and we got to figure out a way in 80 3/2/07 LAW & GOV'T - RES. 070112, BILL 070113 which we can slow this process down. I started this process 4 months ago, met with community groups 5 for the last 15 months, and it's been 6 very clear, it has been very clear from 7 them that this is something that people 8 want to have at least a say in this 9 process, and we've been cut out of the 10 process up until this point. 11 And the citizens of 12 Philadelphia will now have an 13 opportunity to engage in a process to 14 determine the destiny of their lives 15 and the future of their neighborhoods. And that's all we're asking for. (Applause.)