Judge denies casino appealPublished 12:10am Friday, June 1, 2012
NATCHEZ — An Adams County Circuit Court judge has upheld the Natchez Board of Aldermen’s February approval of the third amendment to the city’s lease with Roth Hill casino developers.
Judge Forrest “Al” Johnson on Thursday denied Natchez resident Neil Varnell’s appeal on the record to the board’s decision. Johnson said in his court order that his responsibility was to, with a “very limited scope of review,” determine whether the city had the authority to approve the third amendment, whether it was supported by substantial evidence, was arbitrary and capricious or violated some statutory or constitutional right.
The aldermen voted 5-1 at a specially called meeting on Feb. 15 to approve the amendment. Ward 6 Alderman Dan Dillard voted against the amendment.
The amendment was proposed by Natchez Casino OpCo, formerly Natchez Gaming Enterprises, and first presented to the aldermen on Jan. 18. The aldermen unanimously voted to deny the amendment at a specially called meeting on Feb. 2.
The aldermen met four more times in February to discuss and revise the amendment before finally approving it. The aldermen spent nearly six hours during those meetings in closed-door executive sessions discussing the amendment with city officials and Scott Andress, the outside attorney the city hired to advise them on the amendment.
Varnell’s chief complaint in the appeal, according to Johnson’s order, was that the city’s lease with casino developers was null and void because default of the lease by Natchez Casino OpCo was not cured in the specified 30-day period. Any action of the board — including the board’s adoption of the second amendment to the lease adopted on April 12, 2011, and subsequent third amendment — was therefore null and void.
Court documents state the board directed Natchez City Attorney Everett Sanders at its Feb. 22, 2011, meeting to notify casino developers they had defaulted in the agreement with the city because they had not made substantial progress toward getting approval to proceed with development from the Mississippi Gaming Commission.
Natchez OpCo submitted a brief of amicus curiae, meaning “friend of the court,” regarding the appeal to Johnson. Briefs of amicus curiae are submitted by someone who is not a party to the litigation, but who believes that the court’s decision may affect its interest.
Natchez OpCo argued the city’s lease did not automatically terminate after Natchez OpCo failed to cure the default of the lease within the 30-day period. Instead, Natchez OpCo argued, the city had the right to repossess the casino property and terminate the lease, which it did not exercise.
Johnson agreed in his order and noted that the lease states that in the event of the default of the lease by Natchez OpCo, the city “may pursue all rights and remedies available…including the right to repossess the property and terminate the lease.”
Johnson said he cannot find that the city’s actions violated any of the limited grounds for review set out by the court.
“The city could have certainly taken a different course of action, but chose through its officials not to,” he said.
Johnson said that he is mindful that the court is not to substitute its own judgment for the judgment that is exercised by city officials. He also said that residents such as Varnell are likewise not entitled to have their judgment substituted through legal action, “no matter how well intentioned and reasoned.”
“That is why we have elected representatives and vest them each election cycle with the discretion, within broad legal limits, to make the tough decisions that they do,” Johnson said.
Natchez OpCo also argued Varnell had no right to appeal because he did not prove that his property near the Roth Hill site would be adversely affected by the third amendment to the casino’s lease.
Johnson found that Varnell did, in fact, have the right to appeal. In the order Johnson said citizens who regularly attend public meetings, openly question actions of elected officials and even seek legal remedy for actions of governmental entities “may at times seem a nuisance to such officials and governmental bodies.”
“But they are an important part of the positive fabric of our democracy and are as essential and desirable to a community and jobs and commerce,” Johnson said.
Varnell also made several other arguments, which Johnson said were not based on valid reasoning, that the aldermen’s action regarding the lease after notifying Natchez OpCo was void.
Johnson said all complaints of actions of the city prior to the third amendment were not properly presented before the court, and there is no jurisdiction to go back and review them because there was no timely appeal of the prior actions.
Natchez OpCo currently has a pending $50 million lawsuit against Varnell alleging Varnell filed a “meritless appeal to delay and cloud the legal certainty of the lease sufficiently to make it difficult, if not impossible, for Natchez OpCo to obtain (a) clear title to the Roth Hill site,” according to court documents.
Varnell now has the option to appeal Johnson’s ruling to a higher court.
Work at the casino site as been ongoing since late 2011 and is on schedule for the casino to open Dec. 21.