Maine Superior Court nullifies Oxford Casino development permit

Tony Reaves/Sun Journal (file)

A view of the inside of the Oxford Casino before it opened, taken in June of 2012.

CLICK HERE TO WATCH A VIDEO OF THE CASINO IN ACTION

OXFORD — One year — nearly to the day — after the Maine Board of Environmental Protection issued a permit granting development of the Oxford Casino, the permit was nullified by Superior Court Justice Michaela Murphy.

The order — signed Wednesday and delivered by mail to parties of the suit Saturday — finds that BEP violated its own permitting rules. The casino’s permit has been remanded to the state Department of Environmental Protection for reconsideration.

That action should, according to Androscoggin River Alliance attorney Stephen Hinchman, force the closure of the casino.

According to Hinchman, state law prohibits the construction and operation of a business that “may substantially affect the environment without first having obtained approval for this construction” from the BEP. With no valid permit in effect, he said, “they’ll have to shut down.”

“The law is pretty clear that without a permit they can’t operate. And, presumably, if the department (DEP) doesn’t shut them down, the Gambling Control Board will.”

Attorney David Van Slyke, chairman of the environmental practice group at Preti Flaherty in Portland who represents casino owner Black Bear Development, disagrees with Hinchman’s interpretation.

“Our view is that this decision doesn’t require the casino to shut down. It deals with certain technical aspects of one of Black Bear Development’s BEP permits, a portion of site development that addresses project phasing,” Van Slyke said.

“We disagree with the (court) decision both legally and factually and, obviously, we’re still evaluating it at this time,” he said.

Van Slyke said his clients haven’t made any decision on how to proceed, and are still reviewing the decision. He intends to speak with officials at DEP and the Attorney General’s Office Monday, and would not comment on whether BB Development would appeal the court’s ruling. He maintains that the casino “permits were validly issued by the BEP and properly approved and reviewed by the Board of Environmental Protection.”

Contacted at her home, DEP Commissioner Patricia Aho, who had not seen yet seen the order, said she and her staff would “review the order on Monday and determine the appropriate review based on that order and our discussions, as well, with our licensing staff as well as the Attorney General’s Office.”

The Androscoggin River Alliance and 18 of its members filed their appeal of the BEP permit on Aug. 4 last year, about two weeks after the permit was issued. The group argued that the BEP was required to consider all three phases of the proposed casino project when issuing the permit, but only considered Phase I, that containing the 65,000-square-foot casino and parking lot. In making its application for permit to build Phase I, casino owners included some environmental impact information for Phases II and III, which are expected to include expansion of the gaming facility, additional parking, a parking garage, restaurants, a spa, pool, conference center, RV Park and skating rink, anticipating these phases would come before BEP for permitting in 2012 and 2015.

The river alliance, in filing its petition challenging the BEP permit, argued that casino owners, known as BB Development, were required to provide environmental impact analysis for all three phases of the project, not just the first phase, and that BEP was required to consider the full impact in granting the permit for Phase I. In making its case, the alliance argued that the first phase of the project was equivalent to building water supply and sewage treatment for 64 homes on the 97.3-acre property. Once all three phases were complete, the load would be the equivalent of 186 homes on the parcel, an increased environmental impact that the BEP should have considered in granting the initial permit as a matter of law.

However, according to the suit, “in its rush to permit the casino project, the applicant (BB Development) failed to conduct the studies necessary to affirmatively demonstrate that either Phase I or the full project proposal meets legal standards.” And, that rather than “correct these errors and omissions, the department (BEP) actually accelerated the permitting process,” granting the permit in “less than half of the 180-day statutory review period, despite ongoing staff concerns regarding the lack of data,” violating state law and its own rules in the process by not considering cumulative environmental impact of the entire project when complete.

In its reply to the alliance, BEP argued that the only application before the department for permit approval was the first phase of the casino “as a single, complete and stand-alone project,” and the permit was issued based on a comprehensive review of that application. BEP did not consider or approve any other or future development at the site.

The department relied on language in SLODA, Maine’s Site Location of Development Act, which provides that “in the absence of evidence sufficient to approve all phases of a proposed development, the Board may approve one or more phases of the development based on the evidence then available.” And, since the permit application before the department was limited to Phase I of the casino project, that’s the only evidence of environmental impact that was considered, developers argued.

Despite assertions of BB Development in its defense that the casino project only “might be followed by additional phases depending on what the market dictates,” Justice Murphy concluded that the project was always envisioned to be constructed in three phases based on written “phasing plan” maps for the project and testimony offered at public hearing that the Oxford Casino was to be a “5-year build-out in three phases.”

“While a casino can generally have an independent function as BB Development urges,” she wrote, “the resort and attendant buildings and infrastructure were clearly envisioned as part of a comprehensive plan” which should have been considered during the permitting process.

Even the name of the project, she wrote, “the ‘Oxford Resort Casino,’ not the ‘Oxford Casino,’ clearly reflects the future plans for the project.”

In her ruling, Murphy determined casino developers failed to submit “present plans for all phases of a development” that were available as required by state law, and that “individual phases may be approved only if the overall proposed development, as represented by the evidence then available,” would comply with SLODA (site) standards.

This is required, she wrote, because it “would be senseless, and contrary to the legislative intent, to allow applicants to circumvent” state law “by remaining silent about those long-term impacts that can be reasonably anticipated, and about which evidence is available” for multi-phase projects.

The court order remands the case to the state Department of Environmental Protection for “consideration of all evidence available before deciding whether to grant approval of this phase of development of the Oxford Resort Casino project,” forcing the BEP permitting process for Phase I — which is already operational — to begin anew.

According to Hinchman, whose firm is located in West Bath, his interpretation of the court order is that, “essentially, they’ll have to re-apply (for BEP permit) in the context of the full project, not just Phase I, and so the department will have to review the site with the carrying capacity at full build-out and in the context of the plan proposed by the developer” to ensure the site is capable of sustaining the level of environmental impact at full development.

Assessing impact is an important part of the permitting process, Hinchman explained, because otherwise once a permit is issued and a project development proceeds, “the decision to choose a more appropriate location is foreclosed and you end up mitigating impacts instead of avoiding impacts.”

“We’ve said that from the start,” he said, “way back before they put a spade in the ground. If it’s not legal, they shouldn’t be going forward. They went forward at their own risk.”

And, he said, “if the answer to a lawsuit is to build your project as quickly as you can and dare a court to shut you down, to pull your permit, that’s a monstrous game of chicken. I don’t think it’s a smart way to do business.”

Oxford Casino opened its 24-hour operation on June 5 and has been open continually since then.

Jim Boldebook and Robert Lally, who are both part of Oxford Casino’s ownership group, had not yet seen Murphy’s order and declined comment. A message left for owners Rupert and Suzanne Grover was not returned. Efforts to reach the five members of Maine’s Gambling Control Board on Sunday were not successful.

jmeyer@sunjournal.com

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Comments

MARK GRAVEL's picture

Don’t we see this type of

Don’t we see this type of behavior from banana republics when someone is searching for a kickback?

Dan Beggs's picture

and we wonder why business stays away from maine

this crap needs to stop this is why business says no way to maine these liberal environatzis have infiltrated the government and poisoned our state....REFORM NOW GOVERNOR LEPAGE

Amedeo Lauria's picture

Not build the Oxford casino?

Can someone let the Androscoggin River Alliance and Superior Court Justice Michaela Murphy know that the casino is already built up and running. These political games hurt Maine's economic image worldwide. Perhaps that is why they do it. Get ready for 200+ folks applying for unemployment benefits...a sad day indeed of the state of Maine. Even if it is adjudicated in the favor of the casino, this effort will leave a bad taste in the mouth of job creators. Chalk one up for the non-profits and their ilk. A quick Google search will show business folks that they should look elsewhere for economic development. This needs to stop...before we are all paid by EBT!

Amedeo Lauria's picture

Not build the Oxford casino?

Can someone let the Androscoggin River Alliance and Superior Court Justice Michaela Murphy know that the casino is already built up and running. These political games hurt Maine's economic image worldwide. Perhaps that is why they do it. Get ready for 200+ folks applying for unemployment benefits...a sad day indeed of the state of Maine. Even if it is adjudicated in the favor of the casino, this effort will leave a bad taste in the mouth of job creators. Chalk one up for the non-profits and their ilk. A quick Google search will show business folks that they should look elsewhere for economic development. This needs to stop...before we are all paid by EBT!

ERNEST LABBE's picture

Correction

Thats 400 FULL TIME jobs with benefits and decent wages. Can anyone guess why there are no good paying jobs in Maine. Look only to the people who ran the state for the last 40 years.

 's picture

at least one of the people on

at least one of the people on the state's gambling control board lives in the bangor area and was very supportive of table games at his area's casino, while being quite vocal on his wvom morning radio show against the oxford casino even existing. his name is george hale. is there anyone from oxford on the gambling board? can you say "conflict of interest"?

if you want back door dealing, look at bangor slots and casino. originally approved by full-state voters as allowing slot machines at an off track betting location. recently, they expanded their "small business" into a casino without the question going for full- state voter consideration (bangor area voters were allowed to vote on the expansion but on one else, and that was only because lapage got involved, otherwise they wouldn't have even had those voter approval). try and tell me that they weren't planning on adding table games from the start.

i think that there is probubly some backdoor politicking going on. bangor doesn't like competition.

Mike Lachance's picture

Gov't jobs elimination program..

Phase-2 of the casino is already underway. Woops... guess all those workers, contractors, sub contractors, finishers, sign companies, provisioners, etc etc. will have to "cancel" and look for other work... even those who have spent their own money and hired workers already.

Pathetic.

Maine's version of the EPA. Govt-run job killers.
It's time we streamline Gov't.

 's picture

Casino

Sounds like sour grapes from all the ones that wanted a casino here and didn't get it so now are gonna make it miserable for the one in Oxford. It was voted against having it here by law abiding citizens and not all the lawyers and courts that are making money on finding a way to fight against that casino or anything else they can dig their little minds into. We can't come up with laws or enforce them to protect us from illegal aliens or drug cartels coming into this country but you better get all your permits for garage sales or moving an ant pile or a birds nest or they will find you.

 's picture

Way to jump to conclusions,

Way to jump to conclusions, just because it says Androscoggin River doesn't mean it is from Lewiston. The Androscoggin River Alliance is there to preserve and continue rehabilitation of the Androscoggin River (which does include the Little Androscoggin River). Here is a picture that shows the entire Androscoggin watershed, which covers far more then just Lewiston, so before pointing fingers look into it.
http://www.cleanandroscoggin.org/images/10x13-ARA_Rev_4LowRes.jpg

WHO!

The Androscoggin River Alliance and 18 of its' members filed. I like to know the names within this Alliance. Who is the head instigater of this group; and who are the followers being lead around with leashes? Let the general public know who they are. Groups such as these should be placed in a time capsule and sent back to the frontier days to live. Could they survive? Would they survive? Trouble makers in those days were dealt with without reservations.

ERNEST LABBE's picture

Right on Frank

I want the name and address of every member of the Androscoggin River Alliance. I would guess most members live a lot closer to the Penobscot river, then they do the Androscoggin river.

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