The question of skilled gaming machines in the city of Danville has moved from local governing bodies and commissions into the circuit court.

On Thursday, the city attorney’s office filed appeals in Danville Circuit Court of three December decisions by the board of zoning appeals that overturned the recommendations of the zoning administrator, thus allowing three businesses to operate skilled gaming machines without a special use permit.

The appeals request that the court reverse the board of zoning appeals decisions while also blocking each business from operating the gaming machines for the next 90 days.

According to the appeals petition, the board members based their decisions on the wrong definition from a wrong section of city code.

“The BZA abused its discretion by considering an irrelevant and immaterial factor, the definition of the term ‘amusement parlor,’” assistant city attorney Ryan Dodson wrote in the petition.

Under Dodson’s argument, the board should have based its decision on the city’s zoning ordinance, which holds that “commercial recreation facilities” require a special use permit, regardless of the number of machines inside. As it currently stands, the Danville zoning ordinance does not define the term “commercial indoor recreation,” though that is something that city staff and officials are working to specifically define.

Instead, the board focused on the term “amusement parlor” as provided in the city’s code of ordinances, which allows a business to operate fewer than four table games without regulations.

Additionally, Dodson argues in his appeals that the board infringed on the city’s judicial authority by ruling, in effect, that facilities with fewer than four machines don’t require a special use permit.

“The BZA exceeded its quasi-judicial authority when it intruded upon the purely legislative powers of the city. ... The BZA decision was clearly erroneous as it amounted to legislating in violation of both the City Charter and state law,” the petition reads.

All of this comes after these skilled gaming machines have flooded the state in the past year, and lawmakers are struggling to keep up. A lawsuit is underway against the commonwealth attorney in Charlottesville from several game manufacturers after the city banned such machines.

Several bills regarding the taxation of skilled gaming machines are being considered in the Virginia General Assembly, including one bill backed by Gov. Ralph Northam — it would impose a 35% tax on gross profits and create a limit of five machines per location. In addition to the tax and limits, the bill, which was introduced by Del. Lamont Bagby, D-Henrico, would also give the director of the Virginia Lottery the ability to provide and revoke licenses regarding “the manufacturing, distributing, hosting, and playing of electronic gaming devices.”

More than 32 other Danville businesses — the majority of which are convenience stores — have attempted to obtain special use permits to operate skilled gaming machines, a process that has dragged on for months as city officials attempt to define indoor recreation. So far, nearly every case has bounced back and forth between the planning commission, which has backed, tabled and opposed permit requests, and the city council, which has generally sent back those requests.

Only two companies have been able to obtain special use permits from city council: Kickback Jack’s and The King's Cudgel.

The issue first reached the board of zoning appeals in October when it heard cases from five establishments arguing special-use permits were not necessary to operate a few skilled gaming machines.

The board concurred with the zoning administrator’s opposition for two cases, effectively shooting down those requests. The remaining three cases elicited tie votes, which set up the December vote.

In that meeting, attorney Fielding Douthat, of Virginia-based Woods Rodgers Attorneys at Law, argued for the three businesses that the machines were an accessory or incidental use for the stores and therefore don’t require any extra permitting. This led to a vote 4-1 allowing skilled gaming machines at each business, negating the need to obtain a special use permit. The three business are Liberty Sunrise and Carter’s Quick Shop, both on West Main Street, and Skyview, located on South Boston Road.

Douthat said he has not yet seen the city’s court appeal.

“We’re disappointed because we think the board of zoning appeals decision is correct,” he told the Register & Bee.

As for the two stores that had requests denied in October, Douthat also has filed appeals in circuit court, each one focusing on the customary and incidental use of the machines.

On the issue of the board of zoning appeals appearing to issue contradictory votes on seemingly similar cases, Chairman Gus Dyer said the board has consistently had at least one member missing from their meetings, which is why the votes have swung different directions in different months.

In other words, members have voted consistently, but the outcome appears to change depending on who is present.

“The composition of the board changes meeting to meeting … that’s why it may appear that the board are being inconsistent,” he said.

The board of zoning appeals is a seven-member, quasi-judicial body with members appointed by the Danville Circuit Court.

In the cases that have come before the board over the last several months, Dyer has voted in favor of allowing the skilled gaming machines without a permit, simply because the businesses sought to operate three or fewer machines.

This includes the most recent meeting on Friday where another business’ application was denied in a 3-2 vote.

Ayers reports for the Register & Bee. Reach him at (434) 791-7981.

Ayers reports for the Register & Bee. Reach him at (434) 791-7981.

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