FBT Everett Realty, LLC v. Massachusetts Gaming Commission (Lawyers Weekly No. 09-042-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3481 BLS 1 FBT EVERETT REALTY, LLC vs. MASSACHUSETTS GAMING COMMISSION MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT This is a claim for damages by plaintiff, FBT Everett Realty, LLC (“FBT”), arising from an alleged taking of property by the Massachusetts Gaming Commission (“Commission”). FBT’s amended complaint asserts three counts: Count II (“Per Se Taking”), Count III (“Regulatory Taking”), Count IV (“Impairment of a Contract Right”).1 All three counts claim that as a result of conduct by the Commission, FBT is entitled to compensation under either the Massachusetts Declaration of Rights or the United States Constitution, or both. The Commission moves to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). BACKGROUND The amended complaint alleges the following facts, accepted for this motion as true. FBT was the owner of a parcel of land (the “parcel”) in Everett, Massachusetts. On December 19, 2012, FBT entered into an Option Agreement with Wynn MA, LLC concerning the possible sale of the parcel to Wynn. Wynn anticipated applying for approval from the 1 Count I of the amended complaint has been dismissed, as described in the Background section of this memorandum. 1 Commission to build and operate a casino gambling facility on the parcel. Under the Option Agreement, Wynn agreed to pay FBT $ 100,000 per month for the right to purchase the parcel for $ 75 million in the event that Wynn was awarded the Category 1 destination resort casino license. The Option Agreement granted to Wynn “the option, but not the obligation, to purchase [the parcel]” from FBT. Amended Complaint, Ex A. In connection with Wynn’s application to the Commission, FBT agreed to “reasonably cooperate with [Wynn] with respect to any information it reasonably requires to complete the Casino Application and respond to any such inquiries throughout the licensing process.” Id. In November 2011, the Legislature enacted the Massachusetts Gaming Act, which is codified at G.L. c. 23K. The Act establishes the Commission as the agency to implement and regulate casino gambling. The Act, and the regulations promulgated thereunder, establish a two phase application process for a Category 1 license. The first phase is known as the “Request for Application Phase 1.” In this phase, the applicant is required to make disclosures regarding itself and affiliates. The Investigations and Enforcement Bureau (“IEB”) of the Commission then conducts an investigation of the applicant and provides findings and recommendations to the Commission regarding the suitability of the applicant and its affiliates and business associates. Only those applicants found suitable to receive a license may proceed to the second phase of the process, known as Request for Application Phase 2, […]

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