In the Gutter

Chuck Gardner

City Life
February 27, 1997

    On March 4th the Sands casino-hotel will attempt to convince the Clark County Commission to allow the Sands to seize private control of the sidewalk on Las Vegas Boulevard. If they succeed, it won't be the first time and it may not be the last that powerful casino interests will have twisted the commission into corrupting public rights.

    On February 18th the County Commission heard a request by the Sands for approval of a "pre-development" agreement which would allow the Sands to begin its expansion prior to final approval of its plans. The Sands' proposal would allow the Sands to build its new casino hotel without a publicly owned sidewalk along Las Vegas Boulevard. Instead of the publicly owned sidewalk there now, the sidewalk would be privately owned and controlled by the Sands.

    The question was postponed until March 4th because the district attorney's office was unable to answer the single pertinent question: What are the legal implications of private control over a public sidewalk? They've only had six years to think about it.

    Sidewalks have been given away before, although only in Las Vegas, only on the Las Vegas Strip and only to the largest casino developers. In 1991 and 1992 the MGM Grand and Mirage Inc., convinced the Clark County Commission to "privatize" the sidewalks in front of their establishments. In their pre-development agreements both promised to dedicate the sidewalks to public ownership for public use and access. Both times the promise was broken or retracted at the last minute.

    The casinos know that they will ultimately lose in court should anyone ever have enough money and energy to drag this thing to the highest levels. Until then, which could be never, they will get away with whatever they can for as long as they can. Mirage, Inc. has private security guards patrolling "its" sidewalk and will continue to dictate its use. Mirage has also built theater bleachers on "its" sidewalk, forcing hundreds of people every night to walk in the street between the busses and taxicabs. Some day a court might decide that this is not only unconstitutional, but unconscionable. Until then, everyone who wishes to stay within public right-of-way will just have to walk in the gutter.

    On February 18th, a commissioner asked deputy district attorney Chris Figgins to explain what the rights of the public would be under the Sands pre-development agreement. He couldn't. Commission Chairperson Yvonne Atkinson Gates denied that "privatization" was even occurring. Commissioner Myrna Williams seemed to feel that, since this agreement was at least better than the last two, at least according to Figgins, it was good enough for her.

    All the commission has to do to get a definitive answer is require the Sands, like every other developer -- except the MGM and Mirage - to dedicate a public sidewalk to public ownership.

    When the sidewalk along Tropicana Avenue was privatized in favor of the MGM in 1991, it was agreed that the sidewalk would be for public access and that the MGM would record an easement granting the right of public use. Instead, the MGM recorded a declaration of private ownership and a list of restrictions. The document is called an "easement," but here's what it says:

  • The MGM "retains full rights inherent to the ownership of private property, to the full extent permitted by the Fifth and Fourteenth Amendment to the United States Constitution."
  • The MGM may "evict, expel, or revoke the permission to use the Easement...."
  • "The easement shall not be used as a public forum for the organized dissemination of information of a political, commercial, economic or sectarian nature."
  • "No solicitations, picketing or hand-billing activity, for any purpose whatsoever, may be conducted upon the Easement."
  • "(T)he Easement remains the private property of the Grantor, and is not dedicated to public use...."

    When Figgins saw the restrictive declaration, he wrote a letter to the attorney for the MGM saying that the MGM breached its agreement with the County and that the MGM should not even think about enforcing this attempt to restrict public rights. He showed this letter to me in the spring of 1994 when, as a deputy attorney general, I was researching these issues. I suggested to him and others in his office that the only way to settle the question would be for the district attorney to file a quiet title action, i.e., ask a court to determine that the MGM, as Figgins pointed out in his letter, violated the pre-development agreement. The response: "Oh, no, it's too political and we're not getting involved."

    Figgins' letter never saw the light of day.

    When the idea was first publicly presented to the County Commission by the MGM in 1991, then commissioner Jay Bingham gushed about what a wonderful thing it would be if the county and the casinos no longer had to contend with constitutional rights on the sidewalks. Since the County was in the "public sector" and the MGM was in the "private sector," the MGM could do what the County could not do, i.e., violate what would otherwise be people's constitutional rights once it "owned" the sidewalk.

    The MGM's first exercise of its new-found power was to cause union picketers to be arrested for trespassing on "its" sidewalk.

    One of the first things Steve Wynn did with "his" sidewalk in front of Treasure Island was ask the Planning Commission for permission to extend his pirate show theater all the way out to the curb with bleachers. When he originally appeared before the Board of County Commissioners with the Treasure Island plans, on January 22, 1992, Commissioner Christensen asked Wynn about the traffic problem he might create with the show. Wynn replied: "That's my job. I not only intend to do it, I intend to do it enthusiastically. I intend to break my neck to do it and if people are so fascinated and transfixed by all this that they can't stand it, they've got to stop and look, then I will have been successful and someone else will have to worry about the traffic...."

    Asked by then commissioner Don Schlesinger to explain the "legal hardship" that is required by law before he could be allowed to build so close to Spring Mountain Road, Wynn responded: "That's the way I designed it, Commissioner...." Despite protests by the county's professional staff, the commission unanimously gave him everything he wanted.

    The result: hundreds of people transfixed and thousands of others forced to walk in the street to get around the theater and the bleachers. After members of the transportation committees of the state Senate and Assembly saw videos of mothers pushing baby strollers in the traffic, a narrow, substandard, sidewalk was added below the bleachers, taking space from an already congested Las Vegas Strip. Even more people now walk in the street than before, and Wynn's security force even patrols this second sidewalk.

    Although the county had abandoned its responsibilities, the State of Nevada held a recorded easement that declared that the sidewalk was "for the purpose of providing free, ample, unrestricted, and unencumbered pedestrian access along Las Vegas Boulevard for public use, as if such access were being provided on public right-of-way." The easement was air-tight and threatened to undermine what Wynn tried to accomplish.

    The day of the court hearing challenging his claim of ownership, Wynn's attorneys suddenly appeared with a quitclaim deed. On March 20, 1995, state Attorney General Frankie Sue Del Papa approved a quitclaim revoking the public easement and giving the state's right-of-way to Wynn. The timing was no coincidence. About $3.5 million worth of property rights was given away on personal signatures without authorization by the Board of Transportation, as required by law, and without the public hearing required by law. The attorney general is the state official with the responsibility for enforcing the public hearings laws.

    Last week the County Commission wanted to know from Mr. Figgins whether the language in the Sands pre-development agreement was better than the language in the MGM and Treasure Island agreements. Mr. Figgins said that it was. Both the MGM and Treasure Island pre-development agreements, however, required full dedication of public sidewalks to public ownership and control. Without notice to the public, this all disappeared prior to the final development hearings. The public knew nothing until it was over.

    Some members of the commission stated that they don't want another MGM-type situation. Perhaps they're not aware that the only thing standing in the way of curing the MGM problem is courage. All the commission has to do is ask a court to remove the unlawful declaration of private ownership which, as Mr. Figgins has acknowledged, is a breach of the MGM pre-development agreement. All that stands in the way of curing the Treasure Island fiasco is to ask the court to nullify the illegal quitclaim, since it was done without authorization and without a public hearing.

    If the goal, as Commissioner Erin Kenny appears to believe, is the protection of civil rights on public sidewalks, the only solution is to have public sidewalks. What on earth does she think the Sands wants its security guards to enforce on "its" sidewalk? The Constitution?



Sidebar

    Chuck Gardner was a deputy attorney general for seven years until his research of the MGM sidewalk episode was leaked to the press in May of 1994. Asked to resign by attorney general Frankie Sue Del Papa over the episode, he refused. Del Papa then fired him. He has since been in private practice.