Goodwin Gaming
June 5, 2014

Additional Environmental and Host Municipality Guidance on the New York RFA Process

By Abim Thomas and David Perechocky

Revised guidance on the SEQRA process

24-month time limit to begin upon conclusion of SEQRA review

SEQRA, or the State Environmental Quality Review Act, is a New York law mandating that projects receiving permits or licenses from state or local agencies require an environmental impact assessment, and would require mitigation if significant environmental impacts are identified.

The Board revised its guidance on the impact of SEQRA review on the application process.  The Board’s guidance states that gaming licenses will not be officially awarded by the Commission (and thus the 24-month time limit to commence gaming activities will not begin to toll) until after the SEQRA review is completed.

However, the Board still intends to submit its recommendations as to selection of the casino license winners to the Commission prior to the completion of the SEQRA process. Since speed to market is a factor in the application, the Board expects applicants to commence SEQRA review in a timely fashion.

The Commission will be an involved agency in the SEQRA process but will not be the Lead Agency

The Board also stated that the Commission will be an “involved” agency in the SEQRA process, meaning it will be actively involved in performing an environmental impact assessment of the proposed projects. However, the Board and Commission have already stated that they will not be the “Lead Agency” in the SEQRA process, meaning they will not be coordinating the actions of all involved agencies and they will not be overseeing any environmental impact statements, determining the significance of any impacts that are identified, or evaluating any mitigation plans that may be required. Local municipal agencies are expected to be the SEQRA Lead Agency for each project.

Acceptable and unacceptable host municipality resolutions

A prerequisite to submitting an application is that the host municipality has passed a resolution in support of the application.  The Board released guidance describing the form that the host municipality resolution must take.  An acceptable resolution would say:

“NOW THEREFORE BE IT RESOLVED, that in furtherance of the above goals, Municipality X hereby agrees to the location of Gaming Facility Y at premises within Municipality X”

Examples of unacceptable resolutions are:

(Overbroad) a resolution by a Municipality in support of a Gaming Facility located within a county or a resolution in support of a Gaming Facility located within a different Municipality.

(Ambiguous) a resolution by a host Municipality in support of any “reasonable,” “substantial,” “sensible” or “thoughtful” Gaming Facility located within a host Municipality.

The Board notes that 23 host municipalities had passed resolutions supporting gaming facilities in their region, but surprisingly, only three were deemed acceptable by the Board.

The acceptable host municipality resolutions are:

  • Village of Johnson City (supporting a casino at Traditions at the Glen Resort and Conference Center in the Southern Tier)
  • Town and Village of Liberty (supporting the Foxwoods Catskills Resort at the Grossinger Hotel and Country Club in the Catskills)
  • Town of Wawarsing (supporting the Nevele Resort, Casino & Spa in Ulster County, Catskills Region)

Since the guidance was published, at least three additional towns passed resolutions that appear to comply with the Board’s standards. These are:

  • Town of Blooming Grove (supporting a casino by OCCR Enterprises LLC (a joint venture between The Cordish Companies and Penn. National Gaming) in Orange County)
  • Town of Newburgh (supporting a casino by an affiliate of Saratoga Casino and Raceway in Orange County)
  • Town of Cobleskill (supporting a casino at Howe Caverns in Schoharie County near Albany)