Did proposed casinos in Biloxi and Diamondhead get site approval? The ruling is in.
After a 2-year battle to appeal the decision of the Mississippi Gaming Commission, the answer again was no to developers who want to build casinos on the Coast.
Special Circuit Court Judge Christopher Schmidt handed down his rulings to the three appeals Tuesday.
He twice upheld the Gaming Commission’s denials of site approval for RW Development for a casino on the Biloxi Strip at U.S. 90 and Veterans Avenue in Biloxi in March 2017 and again in July 2017.
He also denied the appeal of Diamondhead Real Estate for a site near the Bay of St. Louis.
The Gaming Commission ruled at a March 2017 meeting that neither property met state regulations for a legal casino. The Commission also ruled against the RW site in 2008 and the Diamondhead site in 2014.
Gerald Blessey and Michael Cavanaugh, attorneys for RW Development, appealed the decision in March 2017 and Cavanaugh also represented Diamondhead Real Estate in its appeal.
At a hearing before Schmidt in September, Blessey claimed the Gaming Commission’s decision to deny site approval is a change of public policy to use regulations to shut down competition for existing casinos.
“Protecting them (the casinos) from competition is not their duty,” Blessey said.
He said the Gaming Commission in not “absolute power” and the court should “check and balance” the decision to deny a legitimate site.
The developers still could appeal the decision to the state Supreme Court.
RW Development
Had Schmidt overturned the Gaming Commission’s ruling, it could have opened up property for casinos all along the beach.
The Gaming Commission first ruled in 2008 that RW Development, owned by Ray Wooldridge, doesn’t have control of the property all the way to the water’s edge. A strip of public beach exists between the developer’s land and the water and along much of the Coast of Harrison County.
Blessey said the key issue in this case was the meaning of the high water line in the state’s regulations and whether it is the seawall or the current shoreline.
The Gaming Commission explained its 2017 ruling by saying that in this location, the toe of the seawall is not the mean high water line.
“The Commission was correct in 2008 and again in 2017 that the Public Trust Tidelands Boundary Line is not interchangeable with the mean high water line,” Schmidt said in his ruling. “Therefore the decision was in accordance with the law.”
Schmidt also dismissed Blessey’s claims over the actions of the Gaming Commission and Executive Director Allen Godfrey, who Blessey said were biased against additional casinos.
The ruling said Godfrey conducted the application process with fairness and conformity with the rules.
“The executive director is further aided by the fact that an entirely different, three person commission unanimously came to the exact same conclusion in 2008,” Schmidt said.
RW second appeal
Soon after being turned down in March 2017, RW Development returned to the Gaming Commission for site approval and was denied again on July 27, 2017. The developer also appealed this decision.
Schmidt ruled that the commission was in its authority in finding that RW failed to submit evidence that it owned or leased property to the water’s edge.
RW enjoys the same rights to use the beach for swimming and boating that are granted to the general public and are not exclusive to RW, the ruling said. The company would need to obtain a lease of the public trust tidelands from the Secretary of State, who Schmidt said “has the sole discretion to determine whether granting such a lease is within the best interest of the tidelands.”
RW said it would develop piers, pavilions and other family attractions over the water and they would be an integral part of a casino resort. But a lease wasn’t part of the July 2017 site approval request.
“Whether or not the Secretary of State of the Department of Marine Resources would be willing to give the necessary leases and permits to RW for constructing piers or wharves was not considered by the (gaming) commission,” Schmidt said.
In July 2019, the Biloxi Council considered leasing the waterfront to RW Development so the company could rebuild the city pier at Veteran’s Avenue, but Secretary of State Delbert Hosemann stepped in and said the city doesn’t have the authority to lease waterfront that is part of the tidelands trust.
Diamondhead Real Estate
The Gaming Commission ruling in Diamondhead also said the developer doesn’t have control to the water’s edge, in this case the Bay of St. Louis.
The site is north of a man made canal, with several hundred feet of “salt marsh” between the canal and the Bay of St. Louis.
“The location of the mean high water line in the marshlands of the St. Louis Bay is evidently not a simple question,” Schmidt said as he upheld the commission’s decision.
The appeal also questioned whether Gaming Commission Chairman Al Hopkins should have asked for the recommendation of the executive director before voting on site approval. Godfrey recommended denial of the application and the commission voted unanimously to accept his recommendation.
Schmidt said the Mississippi Supreme Court has defined the process for site approval, and it requires that the executive director make a recommendation.
In his ruling Schmidt said the Gaming Commission process was fair and within the legal requirements, and said an entirely different commission came to the exact same conclusion on site approval as in 2014.
“The Gaming Commission’s decision was supported by ample evidence and was not arbitrary or capricious,” he ruled.
