AT HEARING, FUMO TO ARGUE THAT
STATE CONTROLS RIVER RIGHTS
PHILADELPHIA, November 15,
2007 – The state has sole legal authority to permit the construction of a
gambling facility on submerged lands within the Delaware River, state Senator
Vince Fumo (D-Philadelphia) will tell the city Commerce Department during a
hearing today at the Pennsylvania Convention Center.
Any attempt to bypass the state Legislature and grant
riparian rights to a casino developer would be contrary to law and would
probably subject the city to unnecessary litigation, Fumo wrote in a letter sent
to City Solicitor Romulo Diaz. Of the two 1907 statues that underlie the case
for city authority over riparian rights, one has been repealed and the other
does not apply to anything other than harbor structures, which clearly would not
include a casino.
“The attempt to use a 100-year-old statute to
circumvent legislative authority over the conveyance of submerged lands distorts
the 1907 law far beyond any recognition. It is irresponsible for the city to
pursue this course of action,” Fumo wrote. “Sugarhouse selected a site it did
not control. Now it has to live with the consequences of that decision.”
If the city were to grant riparian rights, it could
prove to be a significant financial windfall for the casinos, Fumo pointed out.
Under the city code, casinos could pay far less than the amount that the State
Department of General Services would charge for a 99-year lease, or a price that
the state Legislature might establish. It would also deny the Legislature the
opportunity to set terms and conditions upon the use of the waterfront property.
Further, it would also set a precedent for other waterfront development, whereby
the state would forfeit its long-standing control of riparian rights.
“Relatively small sums of money for the conveyance of
riparian rights would go to the city, rather than state taxpayers being properly
compensated for land that state taxpayers own,” Fumo said.
In the memorandum submitted to Diaz, Fumo notes that it
is a well established matter of state law that such commonwealth-owned property
cannot be sold or exchanged, nor shall any easements, rights of way or other
interest be granted, without the specific authority of the state General
The traditional means of riparian rights conveyance is
for the General Assembly to pass legislation, authorizing the state Department
of General Services to negotiate a lease. The General Assembly has, on several
occasions, refused to do so in the case of the proposed Sugarhouse and Foxwoods
casinos in Philadelphia.
Sugarhouse won a license for one of the two slot
machine facilities authorized for Philadelphia under the 2004 state gaming act.
Sugarhouse, however, chose to apply for the license at a Fishtown neighborhood
location, despite currently controlling only 11 of the 22 acres on which it
proposes to build its casino. The other 11 are part of the Delaware River bed
and are owned by the state.
Sugarhouse has publicly suggested that a 1907 law gives
the city Commerce Department, through its antecedent, the Department of Wharves,
Docks and Ferries, the right to grant permission for construction into the
riverbed without state authorization.
A 1978 state law, however, effectively repealed that
right, for the purpose of providing a uniform system for regulation of state
waterways. Though a supplemental 1907 act appears to give similar authority to
the city as the repealed statute, it clearly applies only to wharves, piers,
ferries, docks or other harbor structures – a category that does not include
casinos -- and it does not permit construction “into the river,” as stated in the
repealed 1907 act.
“Since the passage of the 1978 law, the city has never
approved a non-wharf-related structure into the riverbed,” Fumo said. “To change
that policy now would end the long-standing practice of the General Assembly
enacting legislation to convey the rights to riparian land, and it would almost
surely be decided in court.”
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Click here to see
a copy of the letter to Solicitor Diaz
Click here to see a copy of the legal analysis