Riparian moratorium could be tested

April 25

By Kellie Patrick
For PlanPhilly

The debate over who will get the right to build along Philadelphia’s riverfront has spun off a challenge about who controls access to those rights.

Governor Rendell called for a moratorium on giving developers permission to build on this valuable, state-owned property – called riparian land – a year ago so that government officials could review the process by which riparian rights are granted and increase the money the state gets in return.

But State Rep. Michael O’Brien says Rendell’s moratorium is bogus, because the governor has no say over who gets riparian rights. O’Brien says that is the legislature’s job. And he intends to prove it within the next two months by introducing legislation that would grant riparian rights for a residential project on Pier 35 ½.

“This is the basic separation of powers. This is Pennsylvania Government 101,” said O’Brien spokeswoman Mary Isaacson. “Some powers exist within the executive branch, some within the legislative. That doesn’t change because the governor wants a certain type of development on waterfront.”

The riparian lands along the Delaware River in Philadelphia are bordered by the bulkhead – or the place where a bulkhead would be – and the edge of the federally controlled shipping channel.

In Pennsylvania, the granting of riparian rights has always required an act of the legislature.  Essentially, a separate law is passed for every instance in which the rights are granted.

By long-standing tradition, only a legislator whose district includes the property in question introduces the bill.

Frequently, the state issued 99-year, $1 leases for those given these rights.

All of this used to occur without many people paying much attention. But last year the state sited two casinos on Philadelphia’s waterfront. And those proposed casinos – including SugarHouse in O’Brien’s district – need riparian rights to build to the specifications they have planned.

The riparian moratorium was called to give staff from the governor’s office, the State Department of General Services and the Department of Environmental Protection a chance to review the way riparian rights have been doled out.

They are looking at “the entire process,” according to General Services spokesman Edward Myslewicz, and the review was not spawned just by the casinos, but by a belief that they are creating and will continue to create increased interest in riverfront development.

Myslewicz has said in previous interviews that the review could include the home-legislator tradition.

Isaacson has said her office has been told the state is looking at establishing true market value for the property so that it can charge more than $1 per lease, and might also be examining whether to sell the rights outright in some cases.

Myslewicz has also said that no one at his department can offer much detail about the review process until its findings are ready for the legislature to consider. And that the moratorium will continue until the review is over.

On Wednesday, he could not say much about O’Brien’s legislative challenge to the moratorium, either. He could not say whether the moratorium could withstand a legislative challenge, or whether it could be amended to allow certain kinds of development.

He gave a short statement: “We look forward to Rep. O’Brien’s proposal and we hope it can lead to a good discussion on a proposed policy.”

O’Brien has pledged not to introduce riparian legislation on SugarHouse’s behalf unless developers can work out agreements with the neighborhood associations – something that won’t happen anytime soon, since an alliance of associations has pledged not to negotiate with the casinos.

But other developers also want to use riparian lands for their projects – including Donald Trump, who plans to include public access to the river with his residential project. Trump has nearly reached agreements with the neighborhood associations, Isaacson said, and when he does, O’Brien will introduce the legislation.

“The governor can chose not to sign a bill, but Mike can move forward with the process – as it is his right to do,” Isaacson said. “He is not bound by the governor.”

“The governor called for a temporary suspension of (granting) riparian rights along the waterfront to help protect the quality of life for the neighborhooods along the river,” said Rendell spokesman Chuck Ardo. “He looks forward to working with the legislature in crafting legislation that addresses the issue.” 

Isaacson said it is the lack of agreement with the neighborhood associations – not the Governor’s moratorium – that  keeps O’Brien from floating a bill for SugarHouse.

Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

It will take 126,000 members this year for great news and programs to thrive. Help us get to 100% of the goal.