BILOXI -- Plans for a casino west of Interstate 110 on the Back Bay in Biloxi can progress after an appeal of the Biloxi Council's rezoning decision was dismissed because the appeal was filed past deadline.
Wayne Hengen, attorney for the owners of the potential casino site, said Judge Lawrence Bourgeois ruled last week in Gulfport the circuit court did not have the jurisdiction to hear the appeal that was filed beyond the required 10 days.
"The other side can try to appeal that to the Supreme Court," Hengen said. But he said the dismissal of the appeal allows the property owners to move forward and ask the Mississippi Gaming Commission to rule on whether it is a legal casino site.
The appeal was filed on behalf of neighbors who oppose the land being used for a casino. The Biloxi Council voted last Oct. 15 to change the zoning on the 19-acre site west of Interstate 110 on the Back Bay.
Another zoning decision by the Biloxi Council is being appealed by Waffle House.
The council voted 5-2 on Oct. 22 to deny a zoning change, from single family residential to neighborhood business, for a half-acre site owned by Aureus Investment Group. The property is at the corner of Myrtle and First streets in East Biloxi, between Golden Nugget and Palace casinos and close to the Biloxi Maritime & Seafood Museum and Waterfront Park that are under construction.
Following the vote, Mayor A.J. Holloway sent a memo to the council members saying, "To deny the zoning change does not seem to be a good economic development progress toward revitalizing East Biloxi and I strongly disagree with the decision."
Holloway said there clearly has been a change in the character of the neighborhood -- there are no houses on the block since Hurricane Katrina and the surrounding property already is zoned NB.
The Biloxi Planning Commission voted 11-1 to recommend the council approve the zoning change.
Robert Schwartz, attorney for Waffle House, claims in his appeal to the Harrison County Circuit Court that the council's decision was arbitrary, capricious and unreasonable. In his brief, Schwartz said Waffle House plans to invest $1.3 million, nearly twice the cost of a normal Waffle House and create 30 to 40 jobs.
The zoning request went to the council for what was to be the first reading on Oct. 22.
"However, rather than appearing at a first reading, Waffle House walked into an ambush orchestrated by City Councilman George Lawrence, in a backroom deal made with the 'majority property owner' in the area, Golden Nugget," Schwartz said.
The appeal said Lawrence met with representatives of the Golden Nugget prior to the council meeting, and said Golden Nugget wants to build high-end condominiums and restaurants in the area and does not want to have a Waffle House in the middle of the property.
Schwartz said Lawrence owns property directly across the street from the proposed Waffle House site.
"It's much ado about nothing," said Britt Singletary, attorney for Palace Casino. He said that even if Lawrence had refrained from voting, the outcome would have been the same since the vote was 5-2.
The city will file a brief in response to the appeal. Michael Cavanaugh, attorney for Palace Casino, said he will ask the court to file a brief in support of the city. Singletary will do the same on behalf of Golden Nugget.