This Land Is Your Land

The riparian debate rages.

by Caryn Hunt

The PennPraxis vision for the riverfront seeks greater public access to the Delaware, but as Councilman James Kenney put it at a recent hearing, how do we balance public desires with the desires of private developers? Inherent in the question is the confusion surrounding private versus public lands.

A map of the Delaware shows piers, condo towers and private parcels — the result of 200 years of growth and conversion from industrial to other uses. The city has retained little on this river, in contrast to the Schuylkill side. Hardly considered until now is that contiguous to these properties is a strip of submerged land, "riparian land," that is held in trust by the state for the people. It belongs to you and me. Over the years land has been filled in and bought and sold, but that doesn't diminish the public's rights in these lands.

In a case before the state Supreme Court, city and state legislators are currently disputing who has granting authorities when it comes to building on riparian lands. At issue is whether or not the SugarHouse casino can begin to be built. Control of riparian land is significant for both the Foxwoods and SugarHouse projects. SugarHouse acknowledges that a British Revolutionary War-era fort of interest to local historians was once on their property, but only on the western edge, and that its remains were obliterated by the construction of Penn Street. But if that's the case, then their entire property sits atop state-owned river bottom.

What constitutes riparian land? What are their boundaries? The answers aren't straightforward. Low water line, arbitrary line, bulkhead line — it'll give you a headache to try to sort them out and even scholars disagree. For amateur historian and real estate attorney Hal Schirmer, the demarcations are beside the point because they don't determine ownership. He says a 1777 survey describes the boundary between public and private lands along the Delaware; it's roughly the eastern edge of Delaware Avenue. "Anything east of Delaware Avenue has been filled in and is fair game for the legislators," says Schirmer. And he believes the public's rights in these lands is well-established. If he's correct, the entire Foxwoods site may be sitting atop state-owned lands.

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Sarah Thorp, executive director of Delaware River City Corporation, sees utility in thinking of riparian lands as public property. "It's not as public as something that's flat-out owned ... but it is public land and we can use it to negotiate with. It has immense public value."

There are other questions: In the case of SugarHouse and Foxwoods, what is the state doing granting public property? What rights do the public have in determining what happens to these lands? The House State Government Committee, whose majority chair is state Rep. Babette Josephs, is delving into these matters in ongoing public hearings. The next one is scheduled for May 13 in Harrisburg.

Property owners may have to get used to the idea that building rights may not automatically be transferred to them. As Thorp pointed out, it's crucial to work with developers and the Planning Commission to achieve long-term riverfront goals.

While legalities are being argued before the Supreme Court and the General Assembly, more than anything a shift in thinking is needed: Riparian lands are public lands. The city can use them to negotiate for setbacks and other public space or to swap for river land elsewhere. It can require the public good be considered in each and every development along the river. This is within its rights because the land is already public.

Caryn Hunt is a Philadelphia writer and community activist.