Image courtesy of Elkus Manfredi Architects

The Gaming Commission’s decision whether to exercise oversight of the development that Wynn Resorts is planning across the street from its Encore Boston Harbor casino in Everett will have to wait a few more weeks.

Gaming regulators appear poised to rule that the proposed development should not fall under their jurisdiction, but on Thursday punted a final vote on the matter until Wynn provides more details and commission staff has a chance to draft conditions that could be imposed on Encore to ensure the commission’s concerns with the development are addressed.

Chairwoman Cathy Judd-Stein said she expects that it will be a “couple of weeks” before the issue comes back before the Gaming Commission.

As the first phase of its development along Broadway in Everett, Wynn is planning 20,000 square feet of restaurant space, a 999-seat live entertainment venue, a 2,200-space parking garage and a 400-foot pedestrian bridge to connect the new development to the $2.6 billion casino that opened in 2019. Later phases of the development are expected to include two hotels, a brewery or brewpub and more.

Over the course of a two-plus hour meeting, the four commission members agreed Thursday that the proposed development satisfied the first three criteria necessary for it to be considered part of the casino’s official gaming establishment: it consists of non-gaming structures, it is related to the casino’s official gaming area and it would be under common ownership and control of the gaming licensee.

But there was no clear consensus when commissioners began discussing the fourth and final criterion — whether the Gaming Commission has a regulatory interest in including the development as part of the casino’s gaming establishment.

“I think what this exercise has shown is that we recognize that we might be overreaching if we determine that there were a regulatory interest,” Judd-Stein said.

Determining regulatory interest is “a highly discretionary decision” that is intended to help “ensure the integrity of gaming in the Commonwealth through strict oversight,” the commission’s general counsel and its chief of community affairs wrote in a memo to commissioners.

The memo details potential regulatory interests: “[T]he requirement that employees working in certain areas are licensed and registered (or exempted from such requirements) … ensuring that the Commission has knowledge of the flow of money through the structure; ensuring alcoholic beverage service is controlled under the gaming beverage license; ensuring that impacted live entertainment venue mitigation issues are addressed; and whether there is an interest in the Commission being able to conduct regulatory oversight, investigations, surveillance, and security operations at the property.”

Tony Starr, an attorney at Mintz Levin who represents Wynn Resorts, told the commission Thursday that the development’s restaurants, retail outlets and event space are intended to be leased out to third parties and that “extending the regulatory authority into these third party-operated venues across the street, we think, would deter some of the ancillary development that I believe the commission would like to see.”

Commissioner Gayle Cameron said she does not think there is a regulatory interest in overseeing the proposed development, and commissioners Eileen O’Brien and Brad Hill both said they wanted more detail on aspects of Wynn’s plans before they would be comfortable saying the commission has no regulatory interest.

Instead of voting on the question Thursday as the commission’s agenda contemplated, commissioners agreed to have their staff begin drafting potential conditions that could be imposed on Encore’s gaming license to ensure that concerns about security, the size of live entertainment venues and other issues are addressed without bringing the development under the Gaming Commission’s jurisdiction.

“I’m looking for some of those details to make a final determination as to whether or not I feel the commission has a regulatory interest,” O’Brien said. “Because I can see aspects that could be, but then I can also see license conditions that could sufficiently answer those. And I’m troubled by the fact that we’re here and we don’t have some of those questions answered, specifically about the pedestrian bridge.”

Commissioners had previously zeroed in on exactly where the proposed pedestrian bridge would connect to the casino, and O’Brien and Hill both pointed to security on the walkway as one area where they’re looking for more detail from Wynn. They also raised concerns about the 999-seat entertainment venue and whether restaurants or other amenities would be positioned in such a way that attendance at events in the venue would climb above 999 people.

Hill also said he wanted more information on the plan for security in the proposed parking garage, which was not discussed in detail Thursday.

“The fact that people are leaving their kids in the car to go gamble is something that’s so concerning to me. And the fact that it actually happens — and I’ve been shown that it does — we really haven’t gotten good answers about what’s going to be happening in the garage,” Hill said. “So I too would like to have some of those concerns addressed before making a final decision.”

Live Entertainment Concerns

As the Gaming Commission began its debate Thursday, the agency’s top lawyer said he does not think Encore Boston Harbor has been violating state law by hosting live entertainment for between 1,000 and 3,500 guests in its ballroom, as local theaters have alleged. The issue of events in the existing casino ballroom is not directly related to the commission’s consideration of the Broadway development but it was raised by several groups during the public comment period.

State law merely bans casino operators from building entertainment venues with seating for between 1,000 and 3,500 people, but does not bar casinos from hosting events for crowds of that size, Gaming Commission General Counsel Todd Grossman said. The restriction already came into play with Wynn’s proposed development when the company downsized the planned entertainment venue from about 1,800 seats to 999 seats to comply with the law.

“The language is plain on its face that it only prohibited such a venue from being built. There is no other place in the law that expressly or by implication limits either the number of patrons who may attend any event or the number of seats that may be set up for an event held at a gaming establishment,” Grossman said.

Last week, representatives from Medford and the Chevalier Theatre there accused Encore Boston Harbor of already violating the law by holding and planning events in its ballroom with seating for between 1,000 and 3,500 patrons. They also pointed to a planned March 17 fight night at Encore that appeared to have seating for more than 1,500 people as a possible violation.

“I will tell you — I don’t say this to be over aggressive or to be a jerk or anything else — but I will tell you if we find out that they are going to have those kinds of events again, one of the things that my clients are going to consider is to have me file something in Superior Court for injunctive relief on that,” Dan Rabinovitz, an attorney for the city of Medford, said during a public hearing last week.

Grossman said he had reviewed the issue previously and that the commission itself has never taken action against an operator for hosting certain events. He said the commission as a body has never addressed the issue because “there has never been a petition, that I’m aware of anyway, submitted based upon a live case in controversy.”

“And certainly if that were ever to happen, the commission would review the issue directly,” he said.

Regardless of when the Gaming Commission returns to the issue of oversight and votes on whether the development will be part of the gaming establishment, the planned development will still have other hurdles to clear. For example, it is also subject to a local planning process in Everett and must also go through a Massachusetts Environmental Policy Act (MEPA) review process.

Future phases of the development, including the current plan to eventually build two hotels in the area, will also have to come back before the commission for a similar discussion, a commission official said.