What are riparian rights?

By Kellie Patrick
For PlanPhilly

From the early 1900s, when islands were removed to make way for longer piers and bigger ships, to the current debate over casinos, decisions to grant control of the land beneath and beside the Delaware River have played a pivotal role in Philadelphia’s history.
 
Within the coming months, the governor’s office, the state Department of General Services and the legislature will meet to review the way Pennsylvania grants leases on this watery buffer zone.

Although both the Foxwoods and SugarHouse casino concerns want to acquire the leases before building their gambling-venue visions, spokesmen for both casino companies say they can and will build even without these rights.

At the same time, some city and state leaders, as well as river ward neighborhood associations, think withholding riparian rights will slow down construction and provide time for other tactics that could delay or prevent the casino operations.

It was the casino issue that first got Caryn Hunt interested in learning how the state gives permission to use this property – called riparian land. Hunt, a member of Casino-Free Philadelphia and a candidate for city council, said her research led her to conclude that the riparian rights issue is larger than casinos.

 “I’m interested in how riparian lands have been used in land deals for awhile now, not just in relationship to the casinos,” she said.

The way Hunt sees it, riparian lands belong to the people of Pennsylvania, and so the process by which the right to use them is granted should be transparent, and the public should have a say.

WHERE IS RIPARIAN LAND?
At the most basic level, Hunt has found it difficult to determine even where the riparian boundaries lie.

Along the Delaware in Philadelphia, riparian land is not always under water. Its eastern boundary is the pier head line – the line that marks the boundary of the shipping channel, beyond which no pier can be built. Its western boundary is the bulkhead line. A bulkhead is a retaining wall built along the bank, but the bulkhead line is trickier than that. Sometimes, there is no bulkhead, but the line is at the place where one would be or once was. Other times dry land now stretches beyond what used to be the river’s edge.

Some of this fill occurred naturally as the river deposited sediments, said Bill Ward, an educator at the Independence Seaport Museum. But often, wet or swampy land was filled in when the needs of business called for that, he said.

Philadelphia was much smaller in William Penn’s time. “It was Vine Street to South Street and river to river,” Ward said. The way to grow was eastward. “As you needed more space, you just kept filling it in. Wetlands, marshes, creeks, you just kept filling them in.”

In the 1880s, Delaware Avenue was 25 feet wide, and sailing ships that came in had to pull in their bowsprit – a piece of wood sticking off the front end of a ship. “Sometimes it would go over Delaware Avenue to the buildings on the other side,” Ward said. By the 1890s, the transition to steam ships was underway, and they were bigger still – 400 or 500 feet long compared to sailing ship’s 300 feet, Ward said.

Philadelphians used to spend summers picnicking and swimming on Smith’s and Windmill islands. But those bigger ships needed longer piers, Ward said, and there was no room for longer piers, the islands and the navigation channel. So in 1893, the islands were destroyed.

The railroads owned much of the waterfront. If they needed more room to load coal or other cargo, they built out piers and filled in the swamp, Ward said.

So finding the shore-side boundary isn’t always easily done just by looking, said Philadelphia City Planning Commission Director Janice Woodcock. For example, she said, the SugarHouse site contains a significant amount of land that never gets wet, but is classified riparian. Even the map in her office that shows the bulkhead and pier head lines is only a guideline, Woodcock said, and she is careful not to refer to it as a riparian map. Deeds must be closely examined, she said, and properties surveyed.

REVIEWING THE RIPARIAN TRADITION
The riparian boundaries are just one hazy part of riverfront development, and perhaps one of those most easily cleared up.

The upcoming Harrisburg meeting, the date for which has not yet been set, is part of a complete review of “the entire process and how it functions,” said Department of General Services spokesman Edward Myslewicz.
Up to this point, the commencement of the riparian leasing process has been based not in law, but tradition.
  
The state legislature must essentially pass a separate law every time these rights are granted, and it has always been left up to the legislators whose districts contain the desired land to introduce that legislation. Although nothing in the law prevents another legislator from taking that step, they don’t.

“It’s customary that nobody else introduce legislation with regard to land issues in anyone else’s district. That’s the tradition,” said Mary Isaacson, spokeswoman for State Rep. Michael O’Brien, whose district includes the proposed SugarHouse site.  O’Brien has told SugarHouse that “if they can get a community agreement, he will introduce riparian rights for them,” Isaacson said.

Such an agreement seems unlikely with seventeen riverfront community groups agreeing not to negotiate with the casinos until at least March 5, said Daniel Hunter, Casino-Free Philadelphia’s spokesman.

But couldn’t another legislator break with tradition and make the introduction, since no law bars it?

Yes, Isaacson said, but it would be unlikely to get out of the State Government Committee, since O’Brien is a member and Rep. Babette Josephs (182nd District, Philadelphia) chairs it.

Last fall, State Sen. Vince Fumo introduced legislation that would have eliminated the need for any legislator to call for the granting of riparian rights. It failed. But some observers surmise the state will re-examine this issue during its review, and perhaps recommend changing the process so that a business would seek riparian rights via the Department of General Services.

Myslewicz did not have specific information about this, but said the legislator-driven portion of the current process would likely be looked at since the review is all-encompassing.

“NOT VITAL, JUST DESIRABLE”
Spokesmen for both Philadelphia casinos say Foxwoods and SugarHouse will open along the Delaware, whether or not they can build on riparian land.

While it is frustrating for Foxwoods to have invested so much time and money without this issue being settled, Foxwoods attorney Jeff Rotwitt said the first phase of construction will begin in late spring or early summer. That first phase, which will take 18 to 20 months to complete, is on non-riparian land, he said. Other sections could be built once approval was granted, or alternate plans could be used so riparian rights are not needed at all.

“It’s not vital, not necessary, just desirable,” Rotwitt said.  “The impact is our retail component. It would be less exciting, less large, and less of a signature facility than it otherwise could be.”

Since the goal for legalizing the casinos is to increase tourism and generate money for the city and the state, Rotwitt predicts that the riparian rights will be granted. “We think the right thinking person, when they cut through the current hysteria, will see that,” he said.

SugarHouse spokesman John Miller also said the casino he speaks for would be better with riparian rights, but would go on without them. He would give no further comment.

But Rotwitt, the planning commission’s Woodcock and O’Brien aide Isaacson, say that SugarHouse will have a difficult time without the waterside lands.

“Unfortunately, SugarHouse doesn’t have luxury we do – we don’t need riparian rights, they do,” Rotwitt said.

Without the riparian lands, it does not seem as though SugarHouse can fit onto the parcel of land it owns and meet zoning requirements, including those for parking, Isaacson said. “I don’t think they have enough room without riparian.”

“Their site is more constrained without having the riparian rights,” said Woodcock.

Right now, no business is being granted any riparian rights. Governor Rendell announced a moratorium in April, and it won’t be lifted until after the state’s study of the riparian rights process is completed.

 “It was important that we put a hold on conveying these waterfront rights in part so that we don’t negatively impact (Pennsylvanians who live near the water) or the infrastructure,” Myslewicz said. The state has not set a timetable to complete its study.

Hunt has found instances when the state granted the use of riparian land for 99 years, for $1, and she wonders whether higher lease payments should be charged. The state is thinking about that, too, said Joanne Phillips, director of real estate for the Department of General Services.

Woodcock sees the riparian rights moratorium as an opportunity for the city to pass local zoning laws that would foster better riverfront development – casino and otherwise. She wants to strengthen current city zoning so that new waterfront development would require a set-aside of land for public use. In some other cities, she said, developers must go further and actually build the section of trail that goes through their property to a set standard, and maybe that could happen here.

Some of this would be set by establishing a commercial entertainment district – the district that would allow casinos within the city.  Language has been drafted, but “it has yet to be introduced as a rezoning proposal by City Council,” Woodcock said. SugarHouse and Foxwoods cannot submit their official proposals until there is a zone for casinos.

 “It’s getting to be crucial that it does happen if the casinos are to stay on schedule,” she said.

COMMERCIAL ENTERTAINMENT DISTRICT
But while Woodcock wants to use the time provided by the riparian rights moratorium to make sure the city and its residents get as much as possible from waterway development, many others are using the time to keep fighting the casinos. And the commercial entertainment district zoning ordinance is one of their tools.

 “The Councilman has no intention of introducing the CED legislation, period.” said Brian Abernathy, aide to Frank DiCicco. Both casinos sites are in DiCicco’s district.

“As soon as we did it, it would allow the gaming operators to apply for permits (city permits) and by doing that, it pushes the process on a much faster pace.”

Instead of introducing the CED legislation, DiCicco will suggest eight pieces of zoning legislation that “specifically goes after how much control the city does have” over casinos, Abernathy said.  The eight “all have varying degrees of opposition,” he said. “One bill says we can’t have gaming anywhere in the city of Philadelphia.”

Abernathy is not sure that there is enough support for all of them to even make it out of committee for a Council vote. But if Council ever votes to block gaming from the city “it would end up in court very quickly.”

And once again, that’s the idea.

“Part of the goal on Wednesday (see attached ordinances that will be submitted) has to be to get in front of a judge the issue of did the state overstep its boundaries,” Abernathy said.

On another front in the casino battle, city residents have submitted a petition calling for a referendum on barring casinos from residential neighborhoods. The city must validate both the signatures and the constitutionality of the question. This, too, would likely end up in court.

At some point, if the casinos win all the legal battles over their licenses, “they can apply to the zoning board of adjustments for a use variance for gaming, and then go ahead and build,” Abernathy said. “They have, I would say, a relatively easy case to build for hardship – that the state has granted permission, but the city is not allowing them to build.”

But this would also be another hurdle, and another opportunity for public input, he said.

Is there a time when it makes sense to stop fighting the casinos, and start working with them to ensure Philadelphians get the best possible casinos for their waterfront?

Yes, Abernathy said. “If we lose, we’ve got to make sure we don’t lose empty handed. There is a breaking point. It’s like when you get out on a frozen lake and hear the cracks in the ice. We haven’t heard any cracks yet.”

Kellie Patrick formerly covered education for The Philadelphia Inquirer.

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