By John Davidson
For PlanPhilly

Can Foxwoods Casino legally build on its 30-acre waterfront site in South Philadelphia without securing a lease from the Pennsylvania General Assembly? Foxwoods says it can; two local state lawmakers don’t think so.

At issue is how much of Foxwoods’ property can be considered riparian land—the area between dry land and a flowing body of water, including submerged land—and whether legislators will grant the company a lease.

The riparian question was hotly contested during a House Gaming Oversight Committee meeting held Tuesday at Independence Seaport Museum.

Although the meeting was technically limited to a discussion about riparian rights and a proposed 1,500-foot buffer between casinos, churches, schools and residences, state representatives Michael O’Brien and William Keller, both of Philadelphia, repeatedly complained about non-existing casino traffic analyses and a perceived general lack of answers to their questions.

Bill Keller points out Foxwoods boundaries

They also insisted that about half of Foxwoods’ 30-acre site is riparian land and therefore requires a lease from the General Assembly.

Foxwoods representatives contend that more than 20 acres of the site are not riparian land and that revised building plans, submitted to the Philadelphia Planning Commission in July, do not encroach on the riparian zone.

According to state law, riparian lands are held in public trust, and in order to build on them legislators must create a new law granting the developers riparian rights. As far as O’Brien and Keller are concerned, Foxwoods might own the dirt on top but not the riparian land underneath.

“Our contention is that the river has flowed into your property and you need an act of the legislature to build,” Keller said to Foxwoods representatives Tuesday. “I keep asking questions and there are no answers coming back. This has to be straightened out.”

But the casino company disagrees. Foxwoods attorney Jeffrey Rotwitt replied to Keller that the riparian issue has “no impact on our project … We’re not seeking riparian interests.”

While outlining Foxwoods’ revised site plan for committee members, Rotwitt explained Foxwoods had planned to build a finger pier that stretched out into the Delaware but scrapped the idea because of the high cost. Phase One of the revised site plan, Rotwitt said, calls for construction on a 20-acre plot that does not, according to Foxwoods, encroach on state riparian land. Phases Two and Three of construction might make use of riparian land if the state made it available, but it would be a question of demand. “We might never get to phases two and three,” Rot Witt said.

O’Brien and Keller think only about 16.5 acres of Foxwoods’ 30-acre site are non-riparian. Citing a definition of riparian land as “where the river once flowed,” Keller showed a map of the Philadelphia waterfront in the 1830s with a current satellite photo of the Foxwoods site superimposed on it. Half the property was underwater. “This is what we’re going to be arguing about I guess for years to come,” Keller said. “Nothing can be done or built without an act of the legislature.”

There was some confusion during the hearing about how to define riparian lands and what would constitute an encroachment. Effective storm water and sewage removal from Foxwoods’ waterfront property, Keller said, would require encroaching on state riparian land; if Foxwoods didn’t build structures they would at least have to run pipes onto the land. “You have to do some digging and developing on riparian land, and they don’t have the right to do that,” Keller said.

Foxwoods’ opinion is that riparian lands begin at the federal bulkhead line, established by the Secretary of War in 1940. About 20 acres of Foxwoods’ property lie west of that line. “We think you misstate the law,” Rotwitt said. “Your rights begin at the bulkhead line.”

Rep. Daylin Leach (D-Montgomery), an attorney by trade, asked Rotwitt why Foxwoods chose the federal bulkhead line of 1940 as the line separating riparian from non-riparian lands. “Do you have any case law? You must be relying on something,” he said before citing a 1919 riparian rights case that drew a distinction between manmade and natural changes to the riverbed. Leach then requested Foxwoods provide him with some case law as soon as possible.

Also before the committee Tuesday morning was State Department of General Services Secretary James Creedon, who along with several Department of Environmental Protection managers and attorneys was unable to explain to lawmakers the licensing process for submerged lands or provide information on riparian land definitions.

“I would request the DEP withhold issuing any permits until we determine where riparian lands lie,” O’Brien said.

Earlier this year, O’Brien sponsored two separate riparian leases, both of which defined “the entirety of the site” as riparian land. In the case of Foxwoods, he said, the entire site might not be riparian, but at least part of the 20 acres on which Foxwoods is planning to build certainly are.

During a recess, O’Brien made it clear that even if Foxwoods requested a lease to build on state riparian lands, the General Assembly won’t grant it. “Foxwoods has known they have a riparian rights problem for a long time now; they’re lying through their teeth,” he said. “A riparian lease will never get out of committee.”

House bill could put squeeze on casinos

The House Gaming Oversight Committee reconvened Tuesday afternoon for a hearing about legislation that would establish a 1,500-foot buffer zone between casinos and any school, church, playground or residence—something slots operators say would effectively squeeze casinos out of Philadelphia.

The law (HB 1477) is sponsored by Rep. Babette Josephs of Philadelphia, who drafted the measure after the State Supreme Court struck an anti-casino referendum from the May 15th primary. The law is essentially a state version of the referendum. “I’m following the State Supreme Court, which said the city cannot undo what the state has done,” Josephs told the committee Tuesday afternoon. “The court directed us that if we wanted to create a buffer zone, the state would have to do it.”

The oversight committee heard testimony from supporters and opponents of the bill, including casino representatives, a friend of Penn Treaty Park, a panel from the Delaware River Neighborhood Alliance, pro-SugarHouse group Fishtown Action, Casino Free Philadelphia and good government group Hallwatch, which proposed several alternative gaming sites in the city. 

John Davidson writes and produces digital video for digphilly.com, an NBC Universal Web site launching March 23. Davidson was a general assignment reporter for the Times Leader in Wilkes-Barre.