Riparian rights-fight details emerge

July 19

By Kellie Patrick
For PlanPhilly

The plans Foxwoods Casino officials presented to the Philadelphia Planning Commission this week showed a small but significant modification: A promenade that once jutted into the Delaware River has been pulled inland.

The proposed walkway no longer cantilevers across the bulkhead and over the state-owned, riverbed property, said Foxwoods’ attorney Jeffery B. Rotwitt.  And that, he said, means Foxwoods no longer needs the legislature to grant the casino operation a riparian lands lease.

Why the change?

Activists, politicians and others who want to stop the casinos, prevent them from building on the current sites or glean concessions that would benefit neighborhoods or the city had been holding on to the casino’s need for a riparian lease as a bargaining chip. The casinos could not move forward as originally planned without a legislator introducing a new law granting the developers riparian rights. And if long-standing tradition holds, it would have to be a lawmaker who represents the district the casino sits in.

So far, no legislator has introduced such a bill.

 “We were dealing with people who we don’t think are friends of the project, who are trying to hold us hostage, so why bother to do it?” Rottwit said in a phone interview Thursday. “We snipped (the jutting portion of the promenade) off. We brought it back in.”

But Mary Isaacson, spokeswoman for State Rep. Michael O’Brien, says the riparian issue is still very much in play.

She said she is not convinced that Foxwoods’ amended plan does not include riparian lands. She said she has seen old photos in which there are piers where there is now land. “They own the dirt on top, but not the riparian lands beneath,” she said.

At the Planning Commission meeting, Isaacson said she was also speaking for Rep. William Keller who represents the district where the Foxwoods site sits. She promised a court injunction would be sought to stop the Foxwoods’ project if it gets the needed city approvals without resolving the riparian rights issues.

“We’re going to need to have independent surveys done,” she said. Isaacson said she is suspicious of Foxwoods’ own surveys.

Said Rotwitt: “Let her do it – let her hire someone. Be our guest.”

Isaacson also said Foxwoods should have to once again go before the Gaming Control Board, since the current plan is different from the one they approved. She plans to recommend to O’Brien that the gaming oversight committee – on which he sits – talk to the Gaming Control Board about this issue.

Rotwitt said Foxwoods has kept the Gaming Control Board apprised of changes in its plans, and that if the board thought another hearing was necessary, they would have called one.

Originally, Foxwoods planned to build a finger pier that stretched out into the Delaware, he said. That idea was abandoned not for political reasons, but financial ones. The cost of building such a space, and then running heat and other utilities out to it, was too great, Rotwitt said – especially considering the rental fees that the restaurants using the space would have generated.

The pier was pared down to the projecting promenade, which was recently abandoned to avoid the riparian rights issues.

Rotwitt said the at-times heated riparian discussion at the planning committee meeting was pure politics. “We’ve had it surveyed. This is a non-issue. It’s black letter law. It’s undisputed.”

But Isaacson was pleased when the planning commission put off voting on the Foxwoods proposal due to confusion over the riparian issue.

So was Brian Abernathy,  spokesman for City Councilman Frank DiCicco – although he and Isaacson got into a heated argument at the planning meeting.

Abernathy said he believes Foxwoods has presented its latest plan in good faith, but there is too much confusion about riparian boundaries to “take it as fact yet.”

DiCicco, in whose district both casinos sit, has been trying to persuade Foxwoods to avoid this and other site issues by building on another site. Abernathy said he was “not willing to discuss” whether the councilman had suggested any alternate sites in particular.

As an incentive, DiCicco has said he would try to get Foxwoods city and state money for the trouble of changing locations, in part to compensate the developers for money they invested in planning for the current site.

Foxwoods is so far unwilling to take the bait.

Instead, it is awaiting a court decision that could significantly speed up the construction process.

Under current circumstances, even if the riparian issue goes away and the planning commission approves the Foxwoods plan, the casino still needs City Council to change the zoning of its proposed location to allow for gambling.

But six weeks ago, Foxwoods asked the Pennsylvania Supreme Court to override council’s authority and make the zoning change.

Rotwitt expects a ruling toward the end of August. Construction would begin “10 days after we get either the zoning change from the city or a Supreme Court decision.”

Meanwhile, SugarHouse – the other casino planned for Philadelphia’s waterfront – has already passed muster with the planning commission.

But a large percentage of  the SugarHouse plan depends upon the receipt of riparian rights. O’Brien has said he would introduce such legislation for SugarHouse only if it reaches agreements with the neighborhood associations in the community, and the associations have agreed not to negotiate with the casinos.

O’Brien has introduced riparian rights legislation for two other projects, however. Bills to grant rights to NCCB Associates – which hopes to build a residential condo tower on Pier 53 – and Donald Trump’s VTE Philadelphia — which wants to build a residential tower on Pier 55 and ½ — were passed by the House early this month and will be considered by the Senate when the assembly’s recess ends this fall.

Isaacson said the riparian boundaries for these properties are not in dispute. “The Department of General Services reviewed the surveys and there are not any questions,” she said.