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A copy of Boston's lawsuit against Wynn Resorts over the planned Everett casino.

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    QQIV

    C O M M O N WE A L T H O F M A S S A C H U S E T TS

    SUFFOLK, ss.

    SUPERIOR COURT DEPARTMENT

    OF THE TR I AL COUR T

    C I VIL A C T IO N N O .

    C IT Y O F B O S T O N ,

    Plaintf,

    V,

    WYNN MA, LLC,

    Defendant.

    )

    )

    )

    )

    ) COMPLAINT

    )

    )

    , , . - .

    *

    )

    .) o.

    INTRODUCTIO '

    ... . -- 7Y.>,- .:1 i

    J: r-

    ,I

    h ,

    1. The City of Boston ( Boston, or the City ) brings this action for

    declaratory relief challenging the decision of the S ecretary of the E xecutive O ffice of

    Energy and Environmental Affairs (the Secretary ) to grant Wynn MA, LLC ( Wym )

    cezificates determining that Wynn's environmental impact reports for its proposed

    project adequately and properly comply with the M assachusetts E nviromnental Policy

    Act, G.L.c. 30, 61, et seq. ( MEPA ), and its implementing regulations, 301 CMR

    11.00 (the MEPA regulations ).

    2. Wynn's final enviromnental impact report failed to disclose the full extent

    of the serious environmental impacts--in particular, impacts related to traffic--that will

    be caused by the construction and operation of its proposed project, and further failed to

    demonstrate that all feasible measures have been taken to avoid or minimize those

    impacts. Wynn's final environmental impact report thus violates MEPA and its

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    Charlestown that are currently bisected by the existing layout.

    6. The City's implementation of the plan envisioned in the Study is

    underway. Prior to the Secretary's certification of Wynn's final environmental report, the

    City had already commissioned surveying and traffic count work necessary to reach the

    25% design stage.

    7. Wyrm's project is fundamentally incompatible with the City's plans for its

    own streets. A central premise of the Study is the decrease of congestion and calming of

    traffic. Neither Sullivan Square's current configuration, nor its future iteration, can

    accommodate the influx of tens of thousands of additional cars per day generated by

    Wynn's proposed casino.

    8. Despite acknowledging the existence of the City's redevelopment plans

    for Sullivan Square, none of the traffic mitigation proposals in Wyml's environmental

    impact reports accommodate the City's plans. In fact, Wynn did not even present a long-

    ten'n plan for Sullivan Square to mitigate the casino traffic. Instead, Wynn proposed only

    interim mitigation measures that are grossly insufficient to mitigate the traffic impacts

    of its proposed project.

    9. The City has consistently expressed these concerns fi'om the outset of the

    MEPA process, commenting at every stage of Wynn's submissions of environmental

    impact reports. Despite numerous meetings between City officials and Wynn

    representatives, Wynn has consistently ignored the City's concerns, failing to fully

    disclose the environmental impacts of its project and fail ing to provide clear and d irect

    responses to the City's comments.

    10. More fundamentally, Wynn has simply failed to present any planlet

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    alone a feasible plan--to mitigate the traffic impacts of its proj ect in conformity with the

    City's plan to overhaul and reconfigure Sullivan Square.

    11. The Secretary's celification of Wynn's final environmental impact report

    was thus in error. Wynn has not complied with MEPA and its implementing regulations.

    If the Secretary' s decision is not declared to be invalid, Wynn's project will generate

    severe damage to the environment, causing the residents of Charlestown and the greater

    Boston area to suffer environmental impacts that will materially degrade their health,

    well-being, and quality of life.

    T H E P A R T IE S

    12. Plaintiff City of Boston is a municipal corporation located in the

    Commonwealth of Massachusetts with a principal place of business at 1 City Hall

    S quare, Boston, Ma ssachusetts 02201. The C ity of Boston is a political subdivision of

    the commonwealth as that term is used in G.L.c. 214, 7A.

    13. Defendant Wynn MA, LLC ( Wynn ) is a casino developer with a

    principal place of business at One Horizon Way, Everett, Massachusetts 02149. Wynn is

    a Person and a Proponent as those terms are defined and used in G.L.c. 30, 62 and

    G.L.c. 214, 7A.

    J U R IS D I C T IO N A N D V E N U E

    14. The Coul has subject matter jurisdiction pursuant to G.L.c. 214, 7A,

    G.L.c. 30, 61-62H, G.L.c. 212, 4, G.L.c. 231A, 1-2, and under Massachusetts

    common law.

    15. The Com has personal jtu'isdiction over Wynn pursuant to G.L.c. 223A,

    as Wynn conducts business and owns real propely in the Commonwealth.

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    16. Venue in Suffolk County is proper pursuant to G.L.c. 223, 9 and G.L.c.

    214, 7A.

    S T A T E M E N T O F F A C T S

    A,

    T H E M A S S A C H U S E T T S E N V IR O N M E N T A L P O L IC Y A C T

    17. MEPA mandates that all agencies, departments, boards, commissions and

    authorities of the commonwealth shall review, evaluate, and detelrnine the impact on the

    natural environment of all works, projects or activities conducted by them and shall use

    all practicable means and measures to minimize damage to the environment. G.L.c. 30,

    61. Damage to the environment includes, among other things, vehicle traffic, air

    pollution, noise and impact to transit operations. MEPA is intended to ensm'e

    environmental impacts are reviewed and addressed first, before any permitting or other

    action begins on a project.

    18. MEPA provides that [u]nless a clear contrary intent is manifested, all

    statutes shall be interpreted and administered so as to minimize and prevent damage to

    the environment. G.L.c. 30, 61.

    19. The Massachusetts Department of Transportation ( MassDOT ), the

    Massachusetts Bay Transportation Authority ( MBTA ), and the Massachusetts Gaming

    Commission ( MGC ) are all Agencies as that tel is defined by MEPA and its

    implementing regulations. G.L.c. 30, 62; 301 CMR 11.02(2).

    20. MEPA and the regulations promulgated thereunder by the Secretary

    require that the propon ent of any project that will need A gency A ction m ust notify the

    Secretary of its likely environmental impacts by filing an Environmental Notification

    Form ( ENF ). Agency Action is defined as any formal and final action taken by an

    Agency in accordance with applicable statutes and regulations that grants a Permit,

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    provides Financial Assistance, or closes a Land Transfer. 301 CMR 11.02(2).

    21. After the filing of the ENF, the Secretary then determines whether an

    E nvironmental hnpact R eport ( E IR ) is required for the project based on whe ther the

    project triggers certain review thresholds defined by MEPA's regulations. 301 CMR

    11.03. If the Proponent of a project is required to prepare an EIR, the Secretary

    prescribes a scope for the report that must properly analyze all damage to the

    environment in conformity with the terms provided by MEPA regulations. 301 CMR

    11.07. The EIR must use accepted methodology to analyze the project's impacts and

    then propose mitigation to minimize or avoid damage to the environment. The linchpin

    of an EIR's analysis is the consideration and analysis of all reasonable alternatives to the

    proposed project that would mitigate, minimize or avoid damage to the environment.

    G.L.c. 30, 61, 62A-62B, 301 CMR 11.07.

    22. Only if that EIR adequately and properly complies with MEPA and its

    implementing regulations may the Secretary celO dfy the EIR . If the E IR is not satisfactory

    and the Proponent wishes to continue with the project, the Proponent must file

    supplemental EIR s pursuant to a scope ordered by the S ecretary until i ts fi lings comply

    with MEPA and its regulations.

    23. Only after the Secretary issues a certificate on the EIR (or supplemental

    EIR as the case may be) may Agencies take Agency Action, including issuing Permits or

    closing Land Transfers, in furtherance of a project under MEPA jurisdiction. MEPA's

    regulations provide: Unless otherwise required by other applicable statutes or

    regulations, an A gency may not take Ag ency Action on a P roject that is subject to M E P A

    jurisdiction and meets or exceeds any review thresholds unless and until the Secretary has

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    determined that an EIR is not required or the Secretary has deten'nined that the single or

    final E IR is adequate and 60 D ays have elapsed following the publication of the notice of

    the availability of the single or final EIR in the Environmental Monitor. 301 CMR

    11.12(4)(a).

    24. Before taking any Agency Action, Agencies must issue detailed written

    findings documenting that all feasible measures have been taken to avoid or minimize

    [environmental] impact from the project. G.L.c. 30, {} 61.

    25. MEPA and its regulations strictly prohibit Proponents and any

    participating A gencies from segm enting, phasing, dividing, or delaying any com ponent

    of a Project to evade, defer or curtail MEPA review. G.L.c. 30, {} 61. To this end, the

    MEPA regulations instruct that a Proponent, any Participating Agencies, and the

    Secretary must present information in an EIR sufficient to analyze the environmental

    impacts for the entirety of the Project, including any likely future Expansion, and not

    separate phases or segments thereof. 301 CMR 11.01 (2)(c). The Proponent, any

    Participating Agency, and the Secretary shall consider all circumstances as to whether

    various work or activities constitute one Project, including but not limited to: whether

    the work or activities, taken together, comprise a common plan or independent

    undertakings, regardless of whether there is more than one Proponent... 301 CMR

    11.01(2)(c).

    26. MEPA and its implementing regulations also require a Proponent to file a

    Notice of Project Change with the Secretary any time there is any material change in a

    Project prior to the taking of all Agency Actions for the Project. 301 CMR 11.10(1).

    B. THE GAMING ACT

    27. In November 2011, the General Coul of the Commonwealth of

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    Massachusetts enacted, and the former Governor signed into law An Act Establishing

    Expanded Gaming in the Commonwealth, Mass. St. 2011, c. 194 (codified, in part, at

    G.L.c. 23K, et. seq.) (the Gaming Act ). The Gaming Act sets forth a comprehensive

    regulatory scheme, establishing strict parameters for, among other things, the issuance of

    gaming licenses to applicants.

    28. The Gaming Act sets forth specific criteria that an applicant must meet to

    be eligible to receive a gaming license. The Gaming Act tasks the MGC with fairly and

    impartially evaluating whether an applicant tbr a gaming license satisfies all of these

    statutorily enumerated criteria. G.L.c. 23K, 9-10, 12, 14-15, 18.

    29. The requirement that applicants for gaming licenses mitigate adverse

    environmental impacts is a dominant theme of the Gaming Act and the gaming license

    application process. Applicants are required to mitigate impacts to host communities

    and sun'ounding communities. The Gaming Act defines a host community as a

    municipality in which a gaming establishment is located or in which an applicant has

    proposed locating a gaming establishment. G.L.c. 23K, 2. A surrounding

    community is a municipality in proximity to a host community that is likely to

    experience impacts from the development or operation of a gaming establishment ...

    including municipalities for which the transportation infrastructure provides ready

    access to an existing or proposed gaming establishment. G.L.c. 23K, 2.

    30. For instance, the Gaming Act's Findings and Declarations state that a

    fundamental policy objective is that gaming license applicants shall demonstrate a

    dedication to comm unity mitigation, and sha ll recognize that the p rivilege o f l icensure

    bears a responsibility to identify, address and minimize any potential negative

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    consequences of their business operations. G.L.c. 23K, 1(8).

    31. To that end, the Gaming Act expressly prohibits the MGC from issuing a

    gaming license to an applicant unless the applicant demonstrates how it proposes to

    address host and surrounding community impact and mitigation issues and identifies the

    infrastructure costs of the host and sun'ounding communities incurred in direct relation to

    the construction and operation of a gaming establishment and commit to a community

    mitigation plan for those communities. G.L.c. 23K, 15(6)-(7).

    32. Before it can award a gaming license, the MGC must issue a statement of

    findings describing how a gaming applicant will advance the following objectives, among

    others: utilizing sustainable development principles and mitigating potential impacts

    on host and sun'ounding communities which might result from the development or

    operation ofthe gaming establishment. G.L.c. 23K, 18(8), (14).

    33. Mitigation oftraffic and other environmental impacts factors heavily into

    the Gaming Act's licensing requirements. The Legislature required that total

    infi'astructure improvements onsite and around the vicinity of the gaming establishment,

    including projects to account for traffic mitigation as determined by the commission,

    shall be completed before the gaming establishment shall be approved for opening by the

    commission. G.L.c. 23K, 10(c).

    34. Wynn submitted the final phase of its application for a gaming license on

    D ecember 31, 2013, and fi led updates and clarifications thereto until the M GC awarded

    the license no earlier than November 6, 2014. The license included several conditions

    and pursuant to MEPA regulations; it will be effective only when the MGC publishes its

    findings required by G.L.c. 30, 61.

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    C. ENVIRONMENTAl, IMPACTS OF WYNN'S PROPOSED CASINO

    35. Wynn's proposed project is a three-million (3,000,000) square-foot casino,

    resort, shopping, and entertainment complex (the Proposed Casino ). Wynn plans to

    build the Proposed Casino on a parcel formerly owned and operated by the Monsanto

    Chemical Company (the Wynn Parcel ) in Boston and Everett.

    36. The key features of the Proposed Casino include:

    (a) 4,580 gaming positions (slot machines, card tables and the like)

    across a 190,461 square foot Proposed Casino floor;

    (b) a 390-foot hotel tower with 629 hotel rooms spread over 621,774

    square feet (billed as the largest rooms in the Boston area);

    (c) a 37,068 square-foot convention center and entertainment space;

    (d) dozens of restaurants, bars, shops, and boutiques in a multi-stot

    mall totaling more than 107,000 square feet; and

    (e) a roughly 2,000,000 square-foot patron and employee multi-site

    parking complex, with over 3,000 parldng spaces.

    37. The Proposed Casino is a Project as that term is defined by MEPA and

    its implementing regulations. G.L.c. 30, 62. In connection with the Project, and as

    required by G.L.c. 30, 62A and 301 C M R 11.03, W ynn submitted to the S ecretary an

    Expanded Environmental Notification Form ( EENF ); a Draft Environmental Impact

    Report ( DEIR ); a Final Environmental Impact Report ( FEIR ); a Supplemental Final

    E nvironmental Impact Report ( SF E IR ); and a Second Supplemental Final

    Environmental Impact Report ( SSFEIR ) (the MEPA filings ).

    38. The Proposed Casino is poorly served by public transportation. It is

    located more than 1.2 miles from the nearest MBTA subway station, Sullivan Square on

    the Orange Line. It also is approximately about 1.5 miles and 3.1 miles, respectively,

    from the W ellington and Ma lden Center S tations on the O range Line, the two transit

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    stations from which Wynn will provide shuttle bus service for patrons and employees.

    39. Most ofthe vehicle traffic traveling to and from the Proposed Casino is

    projected to use Interstate 93.

    40. As a result of the lack of public transportation, the Proposed Casino will

    generate over 20,000 new vehicle trips per day during the week and over 23,000 daily

    trips on Saturdays. These new vehicle trips will cause substantial increase of air

    emissions in dense urban environments and environmental communities, and degrade the

    quality of life around the Proposed Casino, including in Boston, Everett, Medford and

    Somerville.

    A bout three-quarters (75% ) of the traffic, or more than 16,000 vehicles

    1.

    during peak demand, will travel tba'ough S ullivan Square and the R utherford A venue

    corridor in the Charlestown section of Boston. These Boston roadways lie between

    Interstate 93 and the Proposed Casino.

    42. Cun'ently, these roadways are graded at a Level of Service of F at many

    hours of the day, the worst traffic grade a roadway can receive. On information and

    belief, these local roadways are among the most heavily congested of their type in the

    Commonwealth.

    43. On information and belief, during construction of the Proposed Casino,

    there will be extensive off-site transportation of excavated soil laced with contaminants,

    including lead and arsenic. Th ere will be an estimated 76,500 dump truck trips

    (approximately 214 per day) tba'ough Sullivan S quare and the R utherford A venue

    con'idor in Charlestown to Interstate 93. These convoys calTying contaminated soil will

    travel in close proximity to schools, parks, playgrounds, and neighborhoods.

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    D . B O S T O N ' S P L A N F O R S U L L IV A N S Q U A R E A N D R U T H E R F O R D

    A V E N U E

    44. The public roads in Sullivan Square and the Rutherford Avenue con'idor

    ( C ity of Boston R oads ), over which more than 16,000 vehicles destined for the

    Proposed Casino will travel at peak times, are exclusively owned, controlled, and

    maintained by Boston. None are owned, controlled, or maintained by MassDOT, or any

    other federal, state, or municipal agency or entity.

    45. The City of Boston Roads include a tunnel passing underneath Sullivan

    Square (the Tunnel ). The Tunnel requires extensive maintenance, at considerable cost,

    to be kept open.

    46. As the sole and exclusive owner of the City of Boston Roads, the City

    alone has the legal responsibility for their maintenance, safety, and funding.

    47. The City also is the only lawful permitting authority for the City of Boston

    Roads. Any pelTnits required to change the layout, reconstruct, repair, open or in any

    way alter any of the City of Boston R oads mu st be issued by the C ity of Boston's Pu blic

    Improvement Commission. This requires an applicant to apply for and obtain the consent

    of several City agencies and a comprehensive review procedure with at least two public

    hearings.

    48. Beginning in 1997, well before the enactment of the Gaming Act, the City

    engaged in various studies to mitigate the severe traffic congestion in the neighborhoods

    in and around the City of Boston Roads. The most recent study is the December 2013

    S ullivan Square D isposition Study (the S tudy ) attached as E xhibit 1.

    49. The Study was a collaborative process with residents of Charlestown to

    'guide the upcoming revitalization of Sullivan Square and transform it into a

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    pedestrian-friendly neighborhood progranmaed for transit-oriented redevelopment and

    safe, walkable roadways. The Study concluded: Transitioning [the area] fi'om an

    intersection to drive through, back to its rightful place in the urban fabric of Charlestown,

    Sullivan Square is primed for reestablishment as a vital and walkable.., neighborhood.

    50. The multi-year planning process for the reconfiguration of the City of

    Boston Roads involved immmerable meetings and communications between City

    planning departments and Commonwealth agencies. Charlestown residents actively

    participated, including through co:mnent at many public meetings.

    51. Following the release of the Study, the City of Boston conducted further

    planning processes culminating in the City's commitment to construct the Charlestown

    community's preferred conceptual plan for reconfiguration of the City of BostonRoads

    (the City Plan ).

    52. The City Plan has since advanced through completion a 15% Design Plan,

    which provides the actual physical layout of the street grid for the C ity of B oston R oads.

    A copy of the 15% D esign P lan is attached as E xhibit 2. The C ity is actively advancing

    i ts plan to the 25 % design stage with federal funds ea:xnarked for the C ity Plan. In the

    summer and fall of 2015, the City conducted and continues to conduct road surveys of the

    C ity of Boston R oads and perform updated traffic counts to advance the City Plan.

    E . IN C O M P A T IB IL IT Y O F T IlE W Y N N P R O P O S E D C A S IN O A N D T H E

    C I T Y P L A N

    53. The Proposed Casino and City Plan are fundamentally incompatible. The

    Wynn Proposed Casino demands a dramatic increase in vehicular traffic, the vast

    majority of which will travel tba'ough S ullivan S quare and the R utherford A venue

    corridor in the C ity, while the C ity P lan calls for an appreciable decrease in traffic

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    congestion.

    54. Generally, the City Plan is $100+ million roadway improvement project

    that defines specific improvements to enhance the urban environment with greater

    pedestrian connectivity and new transit-oriented land development opportunities. The

    City Plan will remove existing roadway grade separations that form a ban'ier for

    pedestrian and bicycle travel east-west across Sullivan Square and Rutherford Avenue

    and introduce a traditional street grid system.

    55. The City Plan includes elimination of the Tunnel and reduction of lanes on

    Rutherford Avenue, from tbxee in each direction, to two in each direction. The Tunnel is

    a hulking, unattractive structm'e that, together with the Sullivan Square rotary, bisects the

    area. It is largely impassable to pedestrians and bicyclists and hinders commercial

    development. The Tunnel is inconsistent with the City's Complete Streets vision for its

    roadways and neighborhoods.

    56. The overarching vision of the City Plan is to enhance the entire area

    though a walkable, gridded city block layout. The grid system will include pedestrian-

    and bicycle-friendly stl eetscapes and sidewalk frontage that capitalizes on the new urban

    environment and proximity to public transportation at the Sullivan Square MBTA station.

    This is only accomplished by removing the Tunnel and the Sullivan Square rota2.

    57. The City Plan cannot accommodate traffic from the Proposed Casino.

    Based on projections for future development at the time of its adoption, the C ity Plan is

    designed to accommodate:

    (a) the 25,000 vehicles per day that culTently use the Sull ivan S quare

    rotary;

    (b) the 15,000 vehicles per day that now pass under Su llivan Squa re

    in the R utherford A venue T unnel;

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    (c) vehicle traffic associated with projected development approved

    at the time of the City's adoption of the City Plan (including

    A ssembly Squa re in Somerville); and

    (d) vehicle traffic associated with anticipated new development

    within the new urban environment in the area.

    58. There simply is no room for the more than 16,000 daily casino vehicle

    trips at peak times that the P roposed C asino will introduce into the Sull ivan Square and

    Rutherford Avenue corridor.

    59. The Proposed Casino, if it were permitted to proceed, would require that

    the Tunnel remain open and will create an overwhelming number of new traffic demands

    on the C ity of Boston R oads that will forever foreclose the op polunity for the C ity to

    implement the City Plan.

    F. PRE-LICENSURE MEPA FILINGS

    60. On May 31, 2013, Wynn submitted an Expanded Environmental

    Notification Form ( EENF ) pursuant to MEPA and its implementing regulations to the

    Secretary.

    61. Based on a preliminary traffic study, the EENF projected that the

    P roposed C asino would generate 29,384 total vehicle trips on F ridays and 35 ,754 vehicle

    trips on S aturdays. Notwithstanding the distance from the n earest M BT A stations to the

    site, and the gridlock within the area for Wynn's proposed fixed-route shuttle buses to

    navigate, the EE N F predicted that 10 percent of P roposed C asino patrons would an'ire by

    public transportation. The E E N F called for construction of 3,575 parking spaces at the

    Proposed Casino.

    62. The EENF noted The City &Boston has undertaken an extensive study

    of alternatives to improve traffic operations and safety at Sullivan Square, reconnect the

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    Charlestown neighborhood to the Mystic River waterfront, and improve pedestrian and

    bicycle access. If it is advanced, the preferred alternative that was selected by the city

    after extensive public outreach and comment will entail the removal of the cun'ent

    Rutherford Avenue underpass and the Sullivan Square traffic circle, and replacement of

    these facilities with a landscaped surface street grid controlled by a coordinated traffic

    signal system. The City is cun'ently soliciting proposals for consultants to advance the

    design of the improvements.

    63. In the EENF, Wynn did not address the incompatibility of the massive

    influx of traffic that it would introduce into the City of Boston Roads with the City Plan.

    The only mitigation measures that W ynn proposed for Sul l ivan S quare in the E E N F were

    (1) updating traffic signal timing at two intersections; (2) installing a traffic signal in one

    location; and (3) adding a lane to M ain S treet. Although all changes wou ld require

    permits from Boston's Public Improvements Commission, Wy:m's table of anticipated

    local permits in the EENF made no mention of these permits required from Boston.

    64. Boston commented on the EENF, noting that the Proposed Casino's

    potential project related traffic impacts in B oston will be significant and any propo sed

    strategies to mitigate these impacts may be incompatible with on-going planning effols

    by the C ity to enhance the urban environment in S ullivan Square and along R utherford

    Avenue. A true and accurate copy of the City's EENF Comments is attached as Exhibit

    3.

    65. Boston also commented that the existing site driveway serving the Wynn

    P arcel intersects Alford S treet (R oute 99) at the B oston-Everett city l ine, with half of the

    driveway cun'ently located in Boston and the other half in Everett. Boston commented

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    that W ynn provided no acknowledgm ent of either the C ity permits that would be required

    from the Public Improvement Commission to alter or close that roadway, or the zoning

    permissions that would be required to operate a Proposed Casino on property served by

    an access road that is a public way owned and controlled by Boston. Exhibit 3 at p. 2.

    66. Among other pelinent comments, the City questioned the 10 percent

    mode share predicated for public transit usage to the Proposed Casino where the distance

    to MBTA stations and required transfers and wait times between subway and shuttle

    will make it difficult to achieve a ten percent mode share. Twenty-five shuttle bus trips

    per hour would be requh'ed at peak times to accommodate Wynn's projected volume of

    patrons an'iving on the MBTA. That number of shuttle buses is impossible to navigate

    efficiently tba'ough rush hour traffic.

    67. The City also calculated that standard parking methodology dictates that

    the Proposed Casino requires 6,000 parking spaces, not including employee spaces.

    Consequently, the City cautioned that the 3,575 parking spaces planned at the time of the

    filing of the EE N F (now reduced to 2,930) was inadequate, and w ould cause traffic to

    spill onto Boston and Everett roadways, as patrons would need to locate street-side or

    other parking facilities. Exhibit 3 at 2-5.

    68. Lastly, the City comanented extensively on the Proposed Casino's

    incompatibility with the City Plan, writing in relevant part:

    In February 2013, the Boston Transpolation Depalment concluded a three-

    year long community process to develop .a new design for Sullivan Square

    and Rutherford Avenue. The proposed project does not take into

    consideration and is not compatible with improvements proposed in the

    redesign of these adjoining roadways in Boston. The E E N F (page 22) states

    that improvements proposed for Lower Broadway in Everett will be

    consistent with plans generated by the C ity of Boston for S ullivan S quare.

    However, Boston's Sullivan Square plans and Rutherford Avenue plans did

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    not anticipate development of a Proposed Casino resort generating nearly

    36,000 vehicle trips per day and m ore than 21,000 new vehicle trips per day

    on Boston's Alford Street just north of Sullivan Square and Rutherford

    Avenue.

    The key elements of Boston's redesign of Sullivan Square include

    replacement of the rotary and undelpass with a neighborhood-scaled

    network of surface streets and reducing Rutherford Avenue to two lanes in

    each direction with appropriate turn lanes. This design effectively

    distributes existing and projected traffic across a regular street grid. Traffic

    projections include a conservative five percent growth to 2030 and new

    traffic from Assembly Square development in Somerville.

    Th e W ynn p roject fails to recognize this future con strained traffic capacity

    at Sullivan Square. The traffic information provided in the EENF indicates

    that Saturday traffic volumes on Alford Street, which links the Proposed

    Casino resoa site with Sullivan Square and Rutherford Avenue will increase

    from 25,000 vehicles per day to 46,096 vehicles per day. Similarly, Friday

    volumes are expected to increase from 26,000 vehicles per day to 43,338

    vehicles per day. These expected increases, 67 percent on Friday and 84

    percent on Saturday, are more than six and eight times the increases

    considered in the current roadway design plans. These increases are clearly

    not consistent with, nor are they compatible with, the transportation plans

    developed for these principal Charlestown roadways. Furthermore, the

    traffic signal coordination improvements that the proponent does propose

    (page 4-18) only pel10emate existing deficiencies at Sullivan Square by

    failing to reconfigure the rotary itself.

    Exhibit 3 at 5.

    69. Because of this inherent incompatibility, Boston requested that the

    Secretary require that Wynn's DEIR demonstrate how the traffic generated by the

    project will be accomm odated assuming the new design and capacity for Sull ivan S quare

    and Rutherford Avenue in Charlestown. Exhibit 3 at 5. The City also asked the

    Secretary to require Wynn to include a viable strategy for shuttle bus service to/from

    Sullivan Square or decrease the assumed ten percent transit mode share. The City

    further requested the Secretary to require Wynn to contact the City of Boston to

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    understand the full scope of its right-of-way permitting jurisdiction relative to the

    proposed project and commence an extensive community process in Charlestown to

    discuss transportation impacts.

    70. The Secretary issued a Certificate on Wynn's EENF on July 26, 2013,

    providing a comprehensive scope for Wynn to complete in its DEIR. A true and accurate

    copy of the Secretary's Certificate on the EENF is attached as Exhibit 4.

    71. On December 16, 2013, Wynn submitted its DEIR to the Secretary. The

    D E IR projected the Wynn P roposed Casino to generate 21,552 net new weekday vehicle

    trips and 25,456 net new weekend vehicle trips, again with the overwhelming majority

    of those trips traveling through S ullivan S quare and the R utherford A venue corridor from

    Interstate 93.

    Again, Wynn projected in the DEIR that [g]iven the Project's proximity

    2.

    to the Orange Line, and the plan for frequent Proposed Casino shuttle service, it is

    estimated that 10% of patron trips will use the Orange Line. In the DEIR, Wynn

    announced an intention to construct water shuttle facilities in downtown Boston and at

    the Proposed Casino. Despite substantial infrastructure and engineering problems,

    including bridges with low clearance, speed restrictions in Boston Harbor, winter

    conditions, and significant distance, W ynn's D E IR projected that 3% of patron vehicle

    trips would travel to the Proposed Casino via water shuttle.

    73. Again, the Wynn DEIR acknowledged that Boston planned to remove the

    cun'ent Rutherford Avenue underpass and the Sullivan Square rotary, and [construct the]

    replacement of these facilities with a landscaped surface street grid controlled by a

    coordinated traffic signal system. W ynn noted that the City Plan was at the pre-25%

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    Design stage.

    74. The Wynn DEIR proposed identical traffic mitigation to that proposed in

    the E E N F with the mod est addition of an unspecified commitment to fund planning of the

    C ity P lan. The W ynn D E IR addressed none of the comments provided by Boston on the

    EENF.

    Boston also filed public comments on the W ynn D E IR , stating that

    5.

    W ynn's DE IR substantially overstated the capacity of the roadway system in S ullivan

    Square to provide overly optimistic traffic projections. For instance, the City explained,

    Wynn's DEIR assumed that Rutherford Avenue would continue to operate with a total of

    six lanes, where the City Plan calls for a downsizing to four lanes. The City further

    commented that Wynn's DEIR underestimated traffic volumes by using unaccepted

    methodology, and offered only a vague description of infrastructure improvements in

    Sullivan Square and the Rutherford Avenue con'idor without any plans or analysis of

    their feasibility and impact to address the concerns provided in its comments on the

    Wynn EENF. A true and accurate copy of Boston's comments on the DEIR are attached

    as Exhibit 5.

    The Secretary issued a C erti ficate on W ynn's D EIR on February 21, 2014,

    6.

    providing a further detailed scope of items for W ynn to address in its FE IR . The

    C ertificate determined that the traffic projections provided in the D E IR were de ficient

    and required additional data gathering, analysis, and assessment of alternatives and

    mitigation measures. The Certificate concluded that the deficiencies were most

    pronounced with the Sullivan Square traffic projections. A true and accurate copy of the

    DEIR Certificate is attached as Exhibit 6.

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    77. The Secretary included in the scope of the FEIR the following

    requirement: I note the many comments from municipalities expressing concern with

    the project's traffic impacts on development and infrastructure plans underway in Boston,

    Somerville, and Medford. These concerns are shared by MassDOT and the [Metropolitan

    Area Plalming Commission ( MAPC )] and I expect the Proponent will work with

    MassDOT, the sun'ounding cities, and MAPC on both short-term and long-term solutions

    to address the project's impacts while supporting municipal redevelopment visions,

    roadway design plans, and improved regional connections. Exhibit 6 at 28.

    78. The Secretary also required that the FEIR include a consensus with

    Boston regarding jurisdictional issues and the feasibility of proposed improvements to

    the City of Boston Roads. Exhibit 6 at 29.

    79. On June 30, 2015, Wynn filed its FEIR with the Secretary. The FEIR

    projected roughly equivalent peal: hour vehicle trips as the D E IR , once again with the

    overwhelming m ajority of those trips traveling tba'ough the C ity of Boston R oads.

    80. Without explanation or justification, the FEIR now stated that the

    projected mode share for patrons on the water shuttle was increased to 6% from the 3%

    that was shown in the DEIR. The mode share attributed to MBTA subway riders

    connecting via a fixed-route shuttle bus ride to the Wynn Proposed Casino remained at

    10% in the FE IR.

    81. Wynn included a mere four sentences out of its 1,227 pages of narrative to

    its proposed mitigation to the impacts on the City of Boston Roads. In relevant pa:,

    W ynn proposed that an unidentified party reconstruct C ambridge Street between its

    intersection with Ramp C-L and its intersection with Sullivan Square/Mafia Way.

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    Wynn then proposed to upgrade the traffic signal equipment at the intersections of 1-93

    Off-ramp (Ramp C-L) and Mafia Way and install new traffic signals at the intersection

    of Spice Street/MBTA Busway/Cambridge Street and Mafia Way/MBTA Busway.

    82. Wynn's FEIR addressed none of the comments provided by Boston on

    Wynn's prior MEPA filings, nor the Secretary's requirement that Wynn reach consensus

    with the City on mitigation plans for both short- and long-term time horizons compatible

    with Boston's roadway design plans.

    83. Again, Boston filed public comments on the Wynn FEIR. The City's

    comments included, among others, that: (1) the proposed resox development was

    incompatible with the C ity's plans for S ullivan S quare and R utherford Avenu e; (2)

    W ynn's proposal to add 12,000 vehicle trips per day through Sullivan Square wa s in

    direct conflict with the C ity's plan to de emph asize vehicular travel and promote

    alternative travel modes in this area; (3) the FEIR failed to address this issue or offer any

    plan for resolving the conflict between the City's plans and Wynn's; (4) the FEIR failed

    to analyze the projected future roadway conditions under the C ity's plans and offered

    mitigation only under the existing roadway system; and (5) the traffic mitigation plans

    submitted for the existing roadway system were inadequate and were developed without

    prior consultation with the Boston Transportation Department. A true and accurate copy

    of the City of Boston's comments on the FEIR are attached as Exhibit 7.

    84. On August 15, 2014, the Secretary issued a celificate on Wynn's FEIR,

    finding that it does not adequately and properly comply with MEPA and its

    implementing regulations. A true and accurate copy of the CexOfificate on the FEIR is

    attached as E xhibit 8.

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    85. The Secretary concluded that the FEIR's traffic projections were flawed

    and required new analysis with a more acceptable methodology. Exhibit 8 at 33-34.

    86. The Secretary concluded that the FEIR provided no meaningful mitigation

    measures to address the tens of thousands of Proposed Casino-bound vehicles trips in

    Sullivan Square and the Rutherford Avenue corridor and required Wynn, once again, to

    provide detailed infrastructure improvem ent plans and analysis of their com patibility with

    the City of Boston's objectives. The Secretary wrote:

    The City has expressed serious concerns regarding the project's impact on

    traffic in Sullivan Square and along the Rutherford Avenue Corridor. The

    SFEIR should document the relationship between the project's proposed

    mitigation and the plans for Rutherford Avenue. It should also identify

    whether interim improvements in Sullivan Square would impact the

    feasibility or cost of proposed design of Sullivan Square. I expect the

    Proponent will continue to work with MassDOT, the surrounding cities, and

    MAPC on both short-term and long-term solutions to address the project's

    impacts while supporting municipal redevelopment visions, roadway

    design plans, and improved regional connections.

    The SFEIR should include sufficiently detailed conceptual plans (preferably

    80-scale) for all newly proposed roadway improvements to verify the

    feasibility of constructing such improvements. The conceptual plans should

    clearly show proposed lane widths and offsets, layout lines, road

    jurisdictions, and the land uses (including access drives) adjacent to areas

    where improvements are proposed so that the feasibility of constructing the

    proposed improvements can be addressed.

    Exhibit 8.

    87. Although Wynn ignored the City's comments for more than two years, the

    project continued to advance through the MEPA process.

    G. THE MGC'S UNLAWFUL DELEGATION

    88. Less than one month after the Secretary published findings on the

    inadequacy of W ynn's environmental fil ings, on Septem ber 16 and 17, 2015, the M GC

    voted to detenuine to award the gaming license for the eastern Massachusetts region

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    ( Region A ) to Wynn at a future date.

    89. The MGC's vote ignored its own findings regarding Wynn's mitigation of

    traffic and environmental impacts, and the mandates of the Gaming Act that applicants

    provide complete and adequate plans for such mitigation. The MGC's own technical

    evaluation of the W ynn application concluded that:

    At Sullivan Square, however, the Applicant's proposed mitigation does not

    adequately ad&ess the existing operational issues nor the impacts from

    additional Proposed Casino-related traffic volumes expected to be using the

    roadway network. The Applicant is projecting that approximately two-

    thirds of site traffic is expected to travel through Sullivan Square, and thus

    the area is critical for traffic traveling to and from the project

    The analysis of the proposed mitigation is viewed as deficient and the

    overall mitigation at Sullivan Square is incomplete.

    90. Finding that Wynn's application was deficient and incomplete, the

    M GC 's evaluators stated that W ynn would be required to solve the problem of its

    incompatibility with the City Plan. The MGC explained:

    The C ity of Boston h as conducted a series of planning efforts over the past

    15 plus years to determine a preferred alternative for a long-term solution

    at Sullivan Square ... the Applicant's current mitigation plans did not

    include any discussion of a collaborative process between the Applicant and

    the City of Boston, and various other interested parties that would need to

    occur in order to move the process folard in determining a prefelTed long-

    term solution, and design and construction of that preferred solution. The

    Applicant has not committed be engaged in that process, nor has the

    Applicant committed any fimds for a portion of future planning, design, or

    construction of a long-term solution at Sullivan Square .... Furthermore,

    the A pplicant also has not identified any possible short-term improvements

    that could be impleme nted at the S ullivan S quare rotary intersections with

    Rutherford Ave, Main Street, or Alford Street.

    91. The MGC graded Wynn's mitigation proposals in its application as

    insufficient. It also determined that the architectural design was unappealing, strongly

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    urging Wynn to redesign the project.

    92. The MGC should have rejected Wynn's application for failure to meet a

    statutory prerequisite. Instead, it delegated the traffic mitigation analysis required by the

    Gam ing A ct to the S ecretary by imposing the following condition on W ynn's license:

    Wynn shall complete all mitigation, including traffic mitigation, required

    pursuant to the MEPA process for the Project and subsequent permitting

    including but not limited to the measures concerning impacts identified in

    the Secretary's celofificate, the F EIR dated June 30, 2014, the future SF EIR

    and the Secretary's certificate for the SFEIR and shall be responsible for all

    costs associated with such mitigation.

    Agreement to Award the Category 1 License in Region to Wynn MA, LLC, Summary of

    C onditions, 3(1), a true and accurate copy of which is attached as E xhibit 9.

    93. There is no attthority, statutory or otherwise, that allows a state agency to

    delegate responsibilities of its enabling statute made mandatory by the Legislature to an

    unrelated agency without commensurate organic authority.

    94. Consequently, the Secretary has not, and will not, determine the specific

    mitigation that the Gaming Act requires for Wyrm's Project. Nor has the MGC.

    95. The MGC also required, as a condition of Wynn's gaming license, that

    Wynn contribute $25 million toward construction of a long term traffic plan for

    Sullivan Square and the Rutherford Avenue con'idor, but only if Boston abandoned the

    City Plan and adopted an entirely new plan that accommodates increased Proposed

    Casino traffic. Exhibit 9 at 4.

    96. On September 17, 2015, the MGC executed an Agreement to award Wynn

    the Region A gaming license on November 7, 2015, even though the statutorily-required

    mitigation and the entire design of the Project were left unwritten and unclear.

    97. A gaming license is a Permit as that term is defined in MEPA and its

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    regulations, and the MGC has acknowledged as such in its regulations. 205 CMR 120.

    98. The MGC has determined that the license is conditional pursuant to its

    regulation at 205 CMR 120 and MEPA regulations. In certain instances, MEPA

    regulations permit an Agency to take interim action on a Project provided that it restricts

    the effects of such action fi'om taking place unless and until the Secretary has

    determined that [the EIR ] is adequate and 60 Days have elapsed. 301 C M R 1 1.02(2)(c).

    99. While in some instances Agency Action may be conditional on the

    Secretary's determination that an EIR is adequate, the Project in such cases must be

    sufficiently defined (and subject to far fewer post-Action deviations than here) to ensure

    that Agencies may effectively analyze the Project through the MEPA process.

    100. The MGC licensed a Project without a design or defined mitigation. In

    essence, the MGC licensed an operator rather than a project. The project later changed

    materially in fundamental respects following licensure.

    101. In reality, the gaming license awarded to Wyrm was not remotely

    conditional. On November 7, 2015, the effective date of the so-called conditional

    license, Wynn paid a non-refundable $85,000,000 licensing fee to the Commonwealth.

    On information and belief, Wynn then secured a bond in an amount proportional to the

    total capital investment proposed for the Proposed Casino and executed an Agreement to

    accrue more than $1.2 billion in debt financing for the Proposed Casino. On infolrnation

    and belief, Wynn hired personnel, solicited proposals for contractors to work on elements

    of the Proposed Casino, and held several job fairs.

    102. Further, the award of the license to Wynn changed the rigor of the review

    that state and municipal agencies applied to Wynn's proposals ttn'ough the remainder of

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    the MEPA process because they viewed the construction of the Proposed Casino as a

    foregone conclusion.

    H. POST-LICENSURE MEPA FILINGS

    103. On February 17, 2015, Wynn submitted its SFEIR to the Secretary. The

    SFEIR introduced numerous material changes to the Project. In keeping with the MGC's

    instruction, Wynn provided schematic designs, plans, and renderings for a wholesale

    redesign of the Proposed C asino and Ho tel T ower. W ynn did not file a Notice of P roject

    C hange for this vastly different Project, as required by M E P A regulations.

    104. The new Proposed Casino Project now featured 4,580 gaming positions,

    compared to 4,160 in the FEIR. Wynn's MEPA filings acknowledge that gaming

    positions are the primary driver of traffic to casinos, more than any other feature.

    105. Additionally, the Proposed Casino now would include 629 hotel rooms

    (compared to 504 in the FEIR), 3,400 parking spaces (compared to 3,700 in the FEIR),

    while certain non-gaming entertainment, retail, and food and beverage space would be

    eliminated. Additionally, connectivity from the public indoor space the Proposed

    Casino's outdoor open m'eas would no longer be at the same grade; instead, the open

    space and public areas would be on different elevations and building floors.

    106. The SFEIR projected approximately 25,000 vehicle trips at peak travel

    times, and continued to project modes share at the same levels as the FE IR (10% on the

    MBTA, and 6% on water transportation).

    107. The SFEIR proposed several new improvements in Sullivan Square,

    including modifications to additional intersections. However, these traffic improvements

    required:

    (a)

    the continued maintenance of and funding for the T unnel (rather

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    than its elimination as called for in the C ity P lan);

    (b) modifications from the City's plan to introduce a traditional

    street-ga'id in Sullivan Square; and

    (c) the addition of substantial vehicle capacity (thus increasing, not

    decreasing traffic).

    108. Boston provided extensive comments on the SFEIR and an engineering

    analysis of the mitigation proposal offered by W ynn in the SF E IR . A true and accurate

    copy of Boston's comments is attached as Exhibit 10.

    109. After a detailed technical review, the City commented that Wynn's

    proposal was inconsistent with and antithetical to the City's planned use of its streets in

    Charlestown because it proposes a dramatic increase--rather than decrease--in traffic

    in Sullivan Square. Exhibit 10 at 1. The City's analysis concluded that Wynn's plan

    also would jeopardize the health, safety, and welfare of Boston's citizens and that the

    City would be forced to deny permits for the plan proposed in the SFEIR. Exhibit 10 at

    1. The C ity concluded that W ynn's proposed mitigation would actually make m atters

    worse; causing spillback effects from the new signals that will only worsen traffic

    conditions. Exhibit 10 at 3.

    110. The City also pointed out that Wym's plans required right of way

    acquisitions from other palsies, but that W ynn had not identified plans to comp lete those

    transactions nor provided an analysis of the impacts. Exhibit 10 at 3. Among many other

    flaws in the proposal, the C ity observed that W ynn's own analysis projected vehicle

    back-ups onto the Interstate 93 mainline, beyond the off-ramp, on Friday afternoon peak

    times, creating a commuting nightmare for the general public.

    111. The City's comments and technical review concluded that: MEPA must

    recognize that the issues w e have identified are not m inor design details that can be

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    deferred until later in the project entitlement process. They are issues of feasibility,

    viability, and compatibility, which by your own policies [the FEIR Celificate] must be

    addressed before releasing the project from the MEPA process, and, we believe, should

    have been resolved before granting the gaming license to the Proponent. Exhibit 10 at

    2.

    112. Lastly, the City noted that by Wynn's own methodology, the parking

    spaces necessary at similar urban resort casinos--at similar distance from mass transit--

    were determined to be 1.01 spaces per gaming position. With the increase of hundreds of

    gaming positions in the SF EIR , W ynn should have accounted for 4,626 parldng spaces

    according to its own analysis, yet inexplicably decreased parking to 3,400 spaces. The

    City of Boston predicted that this excess parking demand will log-jam City streets.

    Exhibit 10 at 5.

    113. On April 3, 2015, the Secretary issued a Certificate on Wynn's SFEIR

    concluding that it did not adequately and properly comply MEPA and its implementing

    regulations. A true and accurate copy of the Certificate on the SFEIR is attached as

    E xhibit 11. The S ecretary provided a scope for the S SF EIR , which required W ynn to

    establish a process for integrating the City's long-term plans for Sullivan Square and

    R utherford Ave nue and the impacts of P roposed C asino traffic. E xhibit 11 at 34.

    114. Wynn submitted its SSFEIR to the Secretary on July 15, 2015. A true and

    accurate copy of the relevant excerpts of the S S FE IR is attached as E xhibit 12.

    115. For the fourth time, the SSFEIR included no proposal to integrate the City

    Plan into its (inadequate) proposal for mitigation of the Proposed Casino's traffic impacts

    on S ullivan S quare and the Rutherford Avenue corridor. The S S FE IR ignored the

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    Gaming Act's requirement that projects to account for traffic mitigation as detelrnined

    by the commission, shall be completed before the ganfing establishment shall be

    approved for opening by the commission. G.L.c. 23K, 10(c).

    116. The SSFEIR traffic projections do not provide sufficient data for MEPA to

    make a determination that Wynn will have complied with this provision of the Gaming

    Act. Nor is there sufficient data in the SFEIR for the MGC to issue its required Section

    61 findings that W ynn has taken all steps to avoid or minimize damage to the

    environment.

    117. Wyxm used a flawed test to determine whether mitigation is necessary at a

    given intersection. It reviewed whether the level of service degrades based on a 2023

    projection of traffic conditions without the Project (No-Build), compared to the 2023

    projection that assumes that the Project is built (Build (2023) with Mitigation) with the

    proposed mitigation.

    118. The Build 2023 Condition that the Proponent studied will be reached five

    years after Opening, while G.L.c. 23K, 10(c) requires complete mitigation at the time

    of O pening (2018). E ven assum ing the em pirical validity of the P roponent' s traffic

    projections, a comparison between the 2013/14 E xisting C onditions to the Build (2023)

    with Mitigation Condition studied in the SSFEIR and SFEIR shows significant

    degradation of traffic conditions at critical intersections.

    119. Notwithstanding the repeated flaws of Wynn's MEPA filings, the

    S ecretary issued a certificate on A ugust 28, 2015 finding that the SS FE IR adequately

    and properly complies with MEPA and its regulations. A true and accurate copy of the

    SSFEIR Celificate is attached as Exhibit 13.

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    120. The SSFEIR Certificate, did not, however, conclude that Wynn's proposed

    mitigation for Sullivan was adequate. Rather, the Secretary required that MassDOT

    publish Section 61 Findings in the Environmental Monitor and accept public comments.

    Exhibit 13 at 3. MassDOT's Section 61 Findings must address and resolve the

    feasibility and constructability of proposed improvements for Sullivan Square, including

    control of necessary right-of-way, carefully review intersection improvements around and

    within Sullivan Sq uare to minimize queuing a nd confirm that vehicular storage capacity

    is adequate, and evaluate safety of proposed right-on-red traffic movements. Exhibit 13

    at3.

    121. Additionally, the SSFEIR Certificate requires the MGC to hire a

    consultant to make a public presentation at a MGC meeting and provide

    recommendations regarding additional conditions that should be added to the draft

    Section 61 Findings. Exhibit 13 at 3-4. The MGC then must solicit written comments

    on the draft S ection 61 F indings and hold a public hearing. Th e M GC 's Final Section 61

    Findings must be incorporated as a condition of Wyrm's gaming license.

    122. On September 10, 2015, Boston filed its Notice of Intent to Challenge the

    Secretary's decision pursuant to G.L.c. 30, 62H and 301 CMR 11.14. A true and

    accurate copy of the N otice of Intent is attached as E xhibit 14.

    I. WYNN'S ACCESS PROBLEMS

    123. As early as the EENF (and in all subsequent comments to Wynn's MEPA

    fi lings), the Boston com mented that the only access to the W ynn P arcel is via Horizon

    Way, which is comprised of public (Alford Street in the City of Boston) and private land

    located in both Boston and Everett.

    124. The City of Boston Zoning Ordinance prohibits the use of any land in

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    Boston for access to the Proposed Casino. In addition, the use of a Boston roadway for

    the Proposed Casino's access provided Boston with significant regulatory rights under

    the Gaming Act and other statutes that Wynn has sought to avoid.

    125. The fire and police chiefs of Everett also have determined that secondary

    access to the Wynn Parcel, potentially via some polion of the land owned by the MBTA,

    is critical to providing adequate and necessary public safety to the [W ynn P arcel]

    (emp hasis in original). T hey have conclude d It is imperative that such public safety

    concerns be addressed as soon as possible to avoid a potentially catastrophic occurrence

    on the CUlTent planned site. A true and accurate copy of this Letter is attached as Exhibit

    15.

    126. On information and belief, Wynn also required a secondary point to the

    Wynn Parcel for tractor trailers, service vehicles, shuttle buses, and other commercial

    vehicles. It would be impractical for those larger commercial vehicles to share a point of

    access with patrons.

    127. Therefore, beginning early in the planning for the Proposed Casino, Wynn

    alluded, in vague detail, to two separate plans:

    (a) A plan to acquire certain parcels from private parties to

    reconstruct the Wynn Parcel's primary access via Horizon Way

    to avoid any use of land within the City of Boston.

    (b) A plan to acquire celain parcels of land from the MBTA and at

    least one private party to construct a secondary access road to the

    Wynn Parcel for emergency and commercial vehicles selwicing

    the Proposed Casino.

    J. THE WYNN-MBTA LAND DEAL FOR SECONDARY ACCESS

    128. The MBTA owns a large tract of land in the City of Everett known as the

    E verett S hops Parcel (the E verett S hops ). The E verett S hops is adjacent to the site for

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    the Proposed Casino.

    129. Th e Eve rett S hops P arcel is the primary and single most important

    location to MBTA bus and subway operations. It is at the Everett Shops that the MBTA:

    (a) services and repairs buses and rail cars;

    (b) makes parts for MBTA rail cars and buses;

    (c) stores out-of-service buses and rail cars; and

    (d) houses materials and equipment the MBTA uses to operate and

    maintain its fleet of trains and buses.

    130. The MBTA's activities on the Everett Shops are essential to the MBTA's

    operations.

    131. In or around the beginning of January of 2013, Wynn and the MBTA

    began meeting in private to discuss Wynn's acquisition of the Everett Shops. At a

    meeting on January 16, 2013, M BT A officials instlaacted W ynn that open space on the

    Everett Shops site was critical to operations.

    132. In April of 2013, MBTA Operations objected to the sale of any part of the

    Everett Shops to Wynn due to the adverse impacts on the MBTA's maintenance and

    repair operations:

    Operations does not suppol giving up any propelS3, on the Everett campus.

    Even in this revised plan, we will still lose critical bus storage area. In

    addition, if you recall, the green line extension program required the closing

    of the Water St. tire facility this spring. The permanent location for the

    entire tire shop operations is planned to be on the Everett campus. If this

    land acquisition goes through, we will be required to give up much needed

    garage maintenance bay space at another bus maintenance facility for this

    important function.

    Operations requests that the Authority stand firm in its position with the

    City of Everett.

    133. In late 2013, Wynn and the MBTA continued their discussions regarding

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    the M BT A 's possible sharing of access to the E verett Shops with W ynn for its secondary

    emergency and service vehicle entrance. They also discussed Wynn's possible

    acquisition of land to reconstruct the MBTA's entrance from Broadway to the Everett

    Shops.

    134. At that time, in an internal e-mail, the MBTA's Chief Mechanical Officer

    again strongly objected to the conveyance of land to W ylm, concluding that it would

    interfere with MBTA operations and create dangerous conditions at the Everett Shops:

    The Authority now gets no real benefit from this proposal, cash does not

    benefit us in Operations. There is an unsafe condition that is created at the

    back corner of the property with this proposal. I am sure we will be

    overruled, but that is our opinion.

    135. O n August 13, 2014, the M BT A convened another meeting to discuss the

    W ynn proposal, and noted that no analysis had been provided by W ynn to determine the

    extent of the detrimental impacts of sharing access to the Everett Shops with the

    Proposed Casino. However, the MBTA raised significant concern over at least two

    issues. The meeting notes state that: [Wynn] should address frequency of shuttles,

    dwell time, and how that interacts with MBTA and How will intersection of alternative

    driveway and MBTA yard be controlled? Need data on trip generation from shifts at

    136. On August 15, 2014, MassDOT provided a comment letter on Wynn's

    F E IR . The letter stated that W ynn must be required by the Secretary to provide further

    information and analysis in a SF E IR so that the M BT A could first determine whether o1'

    not this proposal would adversely affect critical transit operations at its maintenance and

    operations facility. This analysis was required before the Land Transfer could occur

    under 301 CMR 11.12(4)(a), but sti l l has not occurred.

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    impacts of the Land Transfer on MBTA operations and use of the Everett Shops Facil ity.

    144. Wynn and the MBTA executed an Escrow Agreement that places the

    Deed to the Everett Shops parcels with a private escrow agent at least until the Secretary

    certified the SSFEIR and 60 days elapsed from the notice of availabil ity of the SSFEIR in

    the Environmental Monitor. The Escrow Agreement does not void the prior conveyance

    of the Everett Shops parcels to Wynn. Wynn always has remained the record owner of

    the Everett Shops parcels in the Registry of Deeds.

    K. IMPACTS TO MBTA OPERATIONS

    145. The SSFEIR concluded that the Land Transfer would have no impact on

    M BT A O perations and would not impede the M BT A 's intended use of the E verett S hops.

    T he S ecretary certified this analysis.

    146. However, the Land Transfer stands to substantially and adversely impact

    MBTA operations in at least the following ways:

    (a)

    (b)

    the loss of critical bus storage area ;

    the inability of the Everett S hops to accom modate the relocation

    of the MBTA's Water Street tire facility that is displaced by the

    Green Line Extension, which will cause the loss of garage

    maintenance bay space at the Everett Shops or other MBTA

    properties;

    (c)

    (d)

    (0

    (e)

    the loss of numerous employee parldng spaces that will need to

    be made up elsewhere on the Everett Shops property and cause

    further loss of maintenance and repair space;

    the inability of trailers towing disabled buses to make turning

    movements in certain areas of the property;

    the loss of access for larger vehicles to several cmTently used

    loading docks at the E verett Shops property;

    an unsafe condition that is created at the back corner of the

    Everett Shops property;

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    (g)

    the ability of critical M BT A maintenance and op erations vehicles

    to timely access the Everett Shops where access is tba'ough a

    controlled intersection with Wynn's secondary access point;

    (h)

    the dangerous and disruptive conflicts of emergency vehicles

    (which by their nature must overtake MBTA maintenance

    vehicles) and E verett Shop s traffic;

    (i)

    the dangerous and disruptive conflicts of Wynn resort shuttle

    buses, delivery vehicles and other traffic and MBTA

    maintenance vehicles, including wait times needed for Everett

    Shops traffic, queues, and safety conditions;

    J

    the controlled nature of the Everett Shops' new access driveway,

    which before was uncontrolled and exclusively for the use of

    MBTA vehicles; and

    (k) the ability of Wynn to use the MBTA's current entrance before a

    replacement is constructed is also provided by Agreement.

    147. None of these impacts are analyzed, or even addressed, in Wynn's

    SSFEIR despite the Secretary's SFEIR Certificate requiring such analysis. Nevertheless,

    the Secretary certified the SSFEIR.

    LEGAL CLAIM

    C O U N T 1 : D E C L A R A T O R Y J U D G M E N T

    (Wynn's Final Environmental Impact Report

    Fails to Comply with G.L.c. 30, 61 to 62G)

    148. The City of Boston realleges and incorporates by reference the allegations

    contained in paragraphs 1 through 147 of this Com plaint.

    149. T his Com is authorized to issue binding declarations of the rights, duties,

    status, and other legal relations of parties under statutes and administrative regulations,

    including determinations of questions of construction or validity, in any case in which an

    actual controversy has arisen. G.L.c. 231A, 1 and 2.

    150. This Court also is empowered to issue binding declarations under G.L.

    c. 231A , 1 and 2 to enjoin and determ ine the legality of the adm inistrative practices

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    and procedures of any state agency alleged to be in violation of the laws of the

    Commonwealth of Massachusetts.

    151. An actual controversy has arisen between the City of Boston and Wynn

    regarding whether the Secretary's Certificates on Wyml's environmental impact reports

    violate MEPA and its implementing regulations, and are thus invalid.

    152. Pursuant to G.L.c. 214, 7A, this Court may determine whether damage

    to the environment is OCCUlTing or is about to occur and may restrain the person causing

    and about to cause such damage if the damage constitutes a violation of a statute or

    regulation, the major purpose of which is to prevent or minimize damage to the

    environment.

    153. The major purpose of G.L.c. 30, 61-62I and its implementing

    regulations is to prevent and minimize damage to the environment.

    154. Wynn, as the Project Proponent, violated MEPA and its implementing

    regulations by:

    (a)

    failing to provide plans for adequate mitigation of Sullivan

    Square and the Rutherford Avenue corridor in conformity with

    the Secretary's Certificates on the EENF, DEIR, FEIR and

    SF EIR;

    (b)

    (c)

    (f)

    (e)

    (d)

    failing to provide an adequate disclosure of impacts;

    failing to identify necessary land acquisitions for the Project and

    analyze the impacts;

    failing to identify required Agency Actions for the Project and

    analyze the impacts;

    failing to use generally methodology for calculating traffic

    projections; parldng storage, trip distribution and transportation

    mode share;

    failing to use a methodology for calculating traffic projections

    that enables the Secretary and the M GC to determine compliance

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    with G.L.c. 23K, 10(c), requiring complete mitigation by

    O pening of the Proposed Casino;

    (g) failing to provide meaningful response to comments; and

    (h) failing to comply with the Secretary's Certificates.

    155. The Secretary's Certificates that Wynn's environmental impact repols

    adequately and properly comply with MEPA, are invalid. They violate MEPA and its

    implementing regulations because:

    (a)

    they failed to ensure that all feasible measures have been taken to

    avoid or minimize damage to the environment caused by Wynn's

    proposed casino;

    (b) Wynn's analysis of interim Sullivan Square Plan remained

    inadequate;

    (c)

    the MGC, as the lead permitting authority, failed to comply with

    its own permitting and licensing requirements by delegating

    determination of mitigation required by G.L.c. 23K, 10(c),

    15(a)(6), 18(8) & 18(14)) to ME PA ;

    (d)

    they required MassDOT to further demonstrate feasibility and

    constructability of Wynn's plans and confirm that vehicular

    storage capacity is adequate instead of requiring W ynn to file a

    supplemental EIR ;

    (e) they ignored the demonstrated incompatibility of Wynn's

    mitigation with City's plan; and

    they refused to acknowledge and address that the City of Boston,

    and not MassDOT, regional stakeholders, the MGC, or any other

    agency or entity, is the sole lawful permitting authority for

    roadways and infrastructure in Sullivan Square and the

    Rutherford Avenue corridor and has the sole responsibility for

    the safety and maintenance of the those roadways and assets.

    156. The Secretary's Celificates on Wynn's environmental impact reports

    were unsupported by substantial evidence, arbitrary and capricious, an abuse of

    discretion, and othelise not in accordance with law.

    157. Pursuant to G.L.c. 231A, 1 and 2, it is appropriate for this Court to

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    issue a binding declaration regarding the validity of the Secretary's Certificates on

    Wyml's Proposed Casino.

    158. As a result of the Secretary's Certificates, Wynn is about to cause damage

    to the environment under G.L.c. 214, 7A for reasons that include, but are not limited

    to, the matters set folh in the N otice of Intent attached as E xhibit 14 and incorporated by

    reference herein.

    P R A Y E R S F O R R E L I E F

    W H ER E FO R E, the City of Boston respectful ly requests that the Court:

    1. As to Count 1, enter a declaratory judgment that the Secretary's

    Certificates on Wynn's environmental impact reports are invalid under G.L.c. 30, 61-

    62I and its implementing regulations, and restrain Wynn from causing damage to the

    environment; and

    2. Grant the City of Boston such other and fresher relief as may be just and

    proper,

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    D E M A N D F O R JU R Y T R IA L

    P laintiff C ity of Boston dem ands a trial by jury on all issues and claims so triable.

    R espectfully subm itted,

    C IT Y O F B O S T O N

    Eugene L. O'Flaherty

    Corporation Counsel

    By its attorneys,

    :]omas C . Frongiil,, BBO ,2(Io. 180690

    Ariel I. Raphael, BBO No. 670788

    C aroline K. Simons, BBO N o. 680827

    F IS H & R I C H A R D S O N P . C .

    One Marina Park Drive

    Boston, Massachusetts 02210

    Tel: (617) 542-5070

    [email protected]

    [email protected]

    [email protected]

    DATED: September 28, 2015