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Jennifer M. McHugh, Esq. Cozen, Esq. Warren Jacoby, Esq. Lamb, Esq. Sprague, Esq. Hardy, Esq. Anthony Michael Pratt, Esq. Ginensky, Esq. Zecca, Esq. This appeal presents the following issues: 1 whether the City of Philadelphia has the authority to issue a license authorizing construction on submerged lands under the Delaware River pursuant to Act of June 8, , P. For the reasons that follow, we hold that the City did indeed have the authority to issue the license that is the subject of this dispute, and that the City's attempted revocation of the license so issued was invalid.

On March 2, , Riverwalk Casino, L. Riverwalk Casino v. Gaming Control Bd. Notwithstanding the Planning Commission's approval, no action was taken by City Council on three bills relating to the Plan of Development. HSP Gaming, L. City Council, Pa. During the pendency of the litigation, HSP submitted an application on October 29, to the City of Philadelphia Department of Commerce "Commerce Department" for a license permitting construction or improvements on submerged lands pursuant to Act and Chapter of the Philadelphia Code.

HSP requested permission to construct upon lands in the Delaware River immediately adjacent to the property for its casino. Such permission is required because a riparian land owner that is, an owner of property abutting a river has title to the property up to the low-water mark of the river, while the Commonwealth retains title below the low-water mark.

See United States v. Salt Mfg. Philadelphia is a city of the first class, and Act is implemented by Section of the Philadelphia Code, which states:. In accordance with the provisions of Act , HSP submitted the following documents as part of its Application: 1 the Plan of Development that was approved by the City Planning Commission on May 22, ; 2 a copy of the foundation permit set of drawings for the Phase I casino building and ten-story parking garage; 3 a copy of the schematic design documents for the south valet parking lot during Phase I, the riverfront promenade and greenway, and the future phases of the casino and entertainment complex; and 4 a Submerged Lands Application binder including, inter alia, the consolidated metes and bounds description of the site, the metes and bounds description of the site areas for which the submerged lands license was requested, a public participation and public access summary, the ownership history for the site, a copy of the recorded Memorandum of Agreement of Sale, and a Survey and Consolidation Plan.

Diaz, Jr. City Solicitor Diaz provided a history of the Commerce Department's authority to issue licenses for submerged lands within the City of Philadelphia, and advised Councilman DiCicco that it was his opinion that the City indeed had the authority to issue such licenses under Act Naidoff, conducted a public hearing on HSP's application.

HSP submitted affidavits of publication of the requisite public notice, as well as documentation regarding the posting of notice on the site. The Gaming Advisory Task Force was created to assist the City in its "efforts to assure that the casino developments was [sic] done in a manner that balanced the needs of casino operators with those of the impacted communities and the City as a whole.

On October 27, , the Gaming Advisory Task Force issued a final report detailing the challenges and opportunities of gaming in Philadelphia, which was adopted by the City. Wilkerson testified that after the Gaming Control Board awarded the Philadelphia gaming licenses in December of , the administration worked with the two successful applicants over eleven months to ensure that the casinos were developed in a manner consistent with the Gaming Advisory Task Force's recommendations and the comprehensive goals of the Commercial Entertainment Districts "CEDs" under Chapter of the Philadelphia Code.

She further stated that the Planning Commission supported the granting of the submerged lands license, by way of approving the rezoning as a CED, the Plan of Development, and the design of the project. Robert F. Murray of the Department of Licenses and Inspections testified that HSP had provided the information and forms that were required to be submitted as part of its request for a foundation permit, with the exception of prerequisite approval from the Department's Zoning Unit and the Philadelphia Water Department, which were not part of that application.

At the public hearing, the Department of Commerce also entertained statements by proponents and opponents of casino development, including City Councilman DiCicco, regarding their opinions of the impact of the licensed gaming facility on use of the waterfront, tourism, convention center business, job creation, community benefits, residential development, traffic, and neighborhood concerns.

State Representative Michael H. Fumo attempted to raise questions regarding the Commerce Department's authority to issue a riparian license; State Representative William Keller submitted a written statement on the issue.

With respect to the statements of those who had expressed opinions in favor of or opposed to the authorized casino development, Commerce Director Naidoff noted that such opinions were not relevant to the task before her:.

Turning to her authority to issue the requested license, Commerce Director Naidoff stated that, "[w]hile certain witnesses questioned the legal authority of the City to consider the instant application Commerce Director Naidoff determined that the advertising and posting of the premises had been completed as required, and that HSP had demonstrated sufficient evidence of equitable title to the premises.

She concluded that HSP's application had sufficiently detailed the nature and extent of the proposed structures, extension, alteration, improvement or repair at the premises. Consistently with her findings, Commerce Director Naidoff authorized the issuance of the license for "the use of submerged lands from the low water mark to the end of the permitted development at the easternmost point of the Plan of Development approved by the Planning Commission.

The license was subject to specific requirements, including: 1 the obligation that construction commence within 6 months, 2 payment of the applicable license fee, and 3 construction in accordance with HSP's approved Plan of Development. Pursuant to Phila. Commerce Director Naidoff stated that the fee would be calculated on the amount of money that HSP expected to spend on the development of the project over the Applicant Submerged Lands.

The total construction costs were calculated as follows:. Stack, Representative John J. Taylor, Representative Michael P. McGeehan, and Representative Robert C. That Petition is docketed at No. HSP filed notices of intervention in both appeals. Shortly after the appeals were filed, the Honorable Michael A. Nutter was sworn in as the Mayor of the City of Philadelphia on January 7, The notice stated:. On March 19, , this Court directed that the appeals docketed at Nos.

The City noted that it had taken three different positions on its authority to issue the submerged lands license and its authority to revoke the license while appeals were pending. The City further stated that its filings in the matters docketed at and EM did not reflect its most recent position on the issues. The City asserted that consolidation of the three matters would provide this Court with a complete view of the City's changing positions, including its latest position, which was that position taken in 28 EM On April 11, , this Court entered an order holding the City's application pending disposition of the matters docketed at EM and EM Oral argument was then heard in Nos.

The City's request to consolidate the three matters is now hereby granted, in order to provide for a comprehensive consideration of the different positions taken by the City during the pendency of the various appeals, and in order to facilitate a speedy and global resolution of the question concerning the submerged lands license. The City asserts that this Court does not have jurisdiction over HSP's appeal from the revocation notice. The City contends that HSP's appeal should have been filed with the common pleas court pursuant to Section 19 of Act Appeal from decision of director; petition to common pleas; notice; hearing; costs , which provides in relevant part that:.

City of Philadelphia, Pa. PEDP's permit application was not made under the framework set forth in Chapter of the Philadelphia Code that had been adopted in anticipation of gaming. PEDP had sought review of the notice of refusal by the Zoning Hearing Board, but had requested that a scheduled hearing be continued.

PEDP requested that an order be entered reversing the Department's notice of refusal and directing that the permit be issued. The City of Philadelphia asserted that the notice of refusal was not final or reviewable under Section because the Department's issuance of the notice of refusal to PEDP was subject to review by the Zoning Hearing Board under the Philadelphia Code. This Court determined that the Department's notice of refusal was not a final order, determination or decision of a political subdivision or local instrumentality within the meaning of Section , because the relevant provisions of the Philadelphia Code provided for a two-step permitting process, and PEDP had not completed the second step of the process.

We stated:. Because the Department's issuance of the notice of refusal was only the first step in the process required to be followed, we quashed PEDP's appeal. In contrast to the zoning provisions of the Philadelphia Code analyzed in PEDP I, the separate and distinct provisions of Act and the Philadelphia Code governing applications for a submerged lands license do not establish a two-step procedure for review by the Department of Commerce.

Pursuant to Section of the Gaming Act, however, this Court is vested with exclusive appellate jurisdiction of HSP's appeal from the revocation notice as the appeal has been taken from a final order of a political subdivision or local instrumentality involving the "construction or occupancy, including location, size, bulk and use of a licensed facility.

Before we consider whether the City's revocation notice was valid, we must first address the predicate issue of whether the City had the authority to issue a license authorizing construction on submerged lands of the Delaware River pursuant to Act HSP asserts that the General Assembly in Act granted the City specific authority to license the use of submerged lands in the Delaware River within the confines of the City. HSP also contends that the City's specific authority was neither explicitly nor implicitly repealed by the enactment and amendment of what is now the Dam Safety and Encroachments Act, 32 P.

In response, the City, as noted, has taken three different positions respecting its power to issue submerged lands licenses under Act In its response to Senator Fumo's appeal from the Commerce Director's November 27, decision at EM , the City vigorously defended its authority and the Commerce Director's decision. The City asserted that Act had delegated to the director of the City's Department of Wharves, Docks and Ferries the authority to "issue a license or permit for the erection and making" of any "proposed structure, extension, alteration, or improvement or repair that will encroach upon [the Delaware River]" in Philadelphia and that the Department of Commerce undertook that authority after the City's transition to home rule in In the appeal filed by City Council at EM , the City, under the new mayoral administration, filed a motion requesting an extension of time to file a response.

The City was granted an extension until January 28, In its motion, the City stated that the revocation was not based upon a belief that the City lacked the authority to issue such a license. On February 11, , this Court entered an order denying the City's motion to dismiss.

The City now cites two intervening enactments by the General Assembly passed on February 22, , during the pendency of this litigation. See Pa. Act H. The City says that this legislation was proposed "in direct response to the City's issuance of the riparian license to HSP. The City thereby suggests that it had, and presently has, no authority to issue submerged lands licenses under Act , while arguing, in the alternative, that the revocation notice should be upheld if this Court were to determine that the City did retain such authority.

The question of the vitality of the authority conferred in Act is thus properly and fully joined in this appeal. The issue of the City's authority under Act is a matter of statutory construction. With respect to Act of , the only question is what power that statute purported to confer upon Philadelphia relevant to issuing submerged lands licenses. That question is resolvable by looking to the plain language of the statute. Prior to enactment of a comprehensive statute specifically devoted to statutory interpretation, of course, it was well-established that courts should look first to the plain language of a statute to ascertain legislative intent.

See, e. Catawissa R. With respect to the later enactments argued in this appeal, the SCA controls. In this case, the plain and unambiguous language of Act makes clear that the General Assembly delegated power to the City to issue submerged lands licenses. Moreover, it is equally clear, by application of fundamental precepts of statutory construction, that no intervening Act removed that power, nor did the General Assembly's recent expression during the pendency of this litigation operate to undo the authority the City enjoyed when it acted in November of On June 8, , the General Assembly enacted several statutes addressing riparian law in Pennsylvania.

The Acts, which were numbered , , , and , abolished the Board of Wardens of the Port of Philadelphia. Act specifically authorized the director of the City's Department of Wharves, Docks and Ferries to issue licenses permitting encroachments on the waterways and construction on submerged lands. The Act continued a long tradition of delegating to Philadelphia control over the Delaware River waterfront within the City. By Ordinance of July 8, , the City enacted legislation regulating and determining the fees for licenses or permits issued by the Department of Wharves, Docks and Ferries.

The ordinance, which was amended in and , was later codified in Section of the Philadelphia Code. The Code provided:. The Office of Attorney General stated as follows:. Attorney General's Official Opinion No. Of course, the Opinion of the Attorney General does not control the question of statutory construction presented to this Court. Statutory construction is peculiarly the function of the Judiciary.

We cite the Attorney General's view only because it is consistent with the plain language of the statutory construct, at the time the Opinion was rendered. The Dam Safety Act specifically repealed those provisions of Act relating to the authority of the Navigation Commission to issue licenses for submerged lands along the Delaware River outside of Philadelphia.

The repealer and savings clause reads as follows:. More significantly for purposes of the dispute sub judice, the Dam Safety Act did not expressly purport to repeal any of the provisions of Act , the separate Act governing riparian issues in Philadelphia.

Thus, while the Dam Safety Act altered the regulatory structure for the Delaware River abutting Delaware and Bucks Counties, it did not, by its terms, affect the General Assembly's existing, specific grant of authority to the City under Act Matthews v.

Lomas, Pa. Womer v. Reese, Pa. The well-established principles regarding implied repealer have been incorporated into the SCA.

Section of the SCA relating to implied repealer by later statute states:. The Dissenting Opinions advert to the "inconsistency" they perceive between the Dam Safety Act and Act , which implicates both the general repealer and subsection c of the SCA. The question of whether a statute has been impliedly repealed by a later statute is exclusively a question of legislative intent. Kelly v. State Sys. The reason for such a restriction is obvious: absent irreconcilability, a judicial finding of implied repeal would essentially rewrite the legislation.

In Pennsylvania Turnpike Commission v. The Court further stated that "[t]here may, indeed, be an implied repeal of a legislative enactment. But it can arise only where the language used in the later statute necessarily discloses an irreconcilable repugnancy between its provisions and those of the earlier statute so inconsistent as to not admit of any fair consonant construction of the two. The fact that the Dam Safety Act included a generic general repealer beyond the principle of implied repeal always available under the SCA does not provide any added weight in favor of finding an implied repeal of the never-mentioned Act As the Commonwealth Court has noted, "a general repealing clause is not typically considered an implied repeal because it does not declare what the inconsistency is, but rather, it simply limits any implied repeal to only those acts that are inconsistent.

Consequently, a general repealing clause is, in many ways, an express limitation on the ability to find implied repeal. Contractors Ass'n v. Commonwealth, A. Commonwealth v. Meyers, Pa. And yet, the General Assembly did not purport to identify and repeal any portion of Act Moreover, the Legislature did not even repeal and displace Act in its entirety.

Thus, while Sections 7 and 8 of Act were repealed, other provisions of Act , unrelated to encroachments into navigable waterways, remained.

It would be incongruous to interpret the Dam Safety Act as explicitly repealing Sections 7 and 8 of Act and leaving intact the remainder of that Act, but intending to implicitly repeal Section 10 of Act via the general repealer clause. There is no irreconcilable repugnancy between the provisions of the Dam Safety Act and Act , which was always specific to Philadelphia.

It is perfectly logical for the Legislature to treat different areas of the Commonwealth differently, and to leave intact the licensing authority specific to Philadelphia. Indeed, the General Assembly routinely makes distinctions between political subdivisions based upon their size, location, and perceived special needs.

For some perceived problems, it may be logical and sensible to have a one-size-fits-all legislative scheme. But the issue before us is not to identify and approve the best of legislative schemes.

The question is irreconcilability for purposes of implying an expression of legislative intent to repeal that which the Legislature did not undertake to repeal expressly. In our judgment, a finding of implied repeal here would be in derogation of not only the well-established principles governing implied repeals, but also of the General Assembly's specific, express grant of authority to the City of Philadelphia to issue submerged lands licenses.

Although we ultimately are not persuaded by the contrary construction offered by the Dissenting Opinions, their view may well be deemed a plausible one supported by resort to other factors. And, in this analysis requiring reconciliation where possible, we respectfully disagree with Mr.

Justice McCaffery's suggestion that the scope of the Dam Safety Act and the general repealer provision compels but one conclusion. This Court has noted that, "[n]o legal system dependent upon the salutary assumption that persons know the law could persist absent a concomitant assumption that those who are inclined to find the law are capable of doing so according to general, easily found, and clear principles of construction.

Magliocco, Pa. Finding an implied repealer here requires quite a high degree of investigation and sophistication. Moreover, the suggestion of implied repeal premised upon a perceived overarching, statewide licensing role for the DEP does not survive closer scrutiny of what an implied repeal would achieve. Thus, Section 15 designates the DEP as the executive agency with the authority to issue submerged lands licenses for projects of 25 acres or less that meet certain enumerated public purposes, as follows:.

In the Brief for Amicus Curiae filed in Fumo v. City of Philadelphia, the DEP stated that the appeal from the City's issuance of the submerged lands license to HSP "disputes the authorization to occupy submerged lands on one site on the Delaware River in Philadelphia, for a project that does not fall within the scope of the Department's Submerged Lands License Program.

Thus, the DEP the presumed statewide entity responsible for overseeing a unitary statewide regulatory scheme appears to read the statutory construct as not reposing exclusive licensing authority within the DEP. Given that implied repealers are disfavored, the fact that the relevant state agency is not asserting exclusive authority under the Dam Safety Act supports a finding that there was no intention to repeal Act The statutory construct, in short, appears to be nuanced, not monolithic, and this weighs in favor of the conclusion that no implied repeal, affecting what had always been a power particularly reserved for that portion of the Delaware River in Philadelphia, was clearly intended.

It is not inherently inconsistent for the General Assembly to delegate authority to the DEP to review projects meeting certain statutory requirements, while maintaining the General Assembly's specific delegation of authority to a political subdivision, such as the City under Act We deem the absence of an express repeal of the City's authority under Act to be a reflection that the General Assembly intended that its settled, existing delegation of authority to the City remain intact.

Section Subsections a and d are forward-looking, while subsections b and c speak to "existing" dams, water obstructions or encroachments. Subsection b governs those structures that were constructed pursuant to a permit under Act or Act , while subsection c governs those structures, subject to the same Acts, where the owner does not hold a permit.

The provisions essentially "grandfathered" in such existing structures whether permitted or licensed or not , but mandated 1 that those without a permit must apply for and will automatically receive one, and 2 that, going forward, all such "projects" must comply with the Dam Act's operating, maintenance, monitoring and other requirements. Again, the permit requirement of Section 6 does not refer to licenses or permits subject to, or issued in compliance with, Act We cannot assume that the absence of any such reference was a result of ignorance or mere oversight by the General Assembly.

As is, it is reflective of, and consistent with, the General Assembly's intention not to repeal Act when the Dam Safety Act was passed. The permit requirement provision, which never referred to Act , did not eviscerate Act The City's latest position says that the two statutes passed by the General Assembly on February 22, , which granted submerged lands licenses to property owners for residential developments in the City of Philadelphia, change matters.

The leases authorized under the Acts would be subject to immediate termination "should any portion of any parcel be used" for that purpose. Section 2 of each of the Acts included an identical "Affirmation of exclusive authority of General Assembly," which stated that: "[t]he General Assembly hereby affirms its existing, sole and exclusive authority to consider and specifically authorize the conveyance of any title, easement, right-of-way or other interest in Commonwealth-owned lands Notably, in his signing statement approving the statutes, Governor Edward G.

Rendell addressed the legislative "affirmation," and the pending litigation, as follows:. Of course, the proper interpretation of statutory provisions for purposes of resolving a controversy brought before the courts is a matter entrusted to the Judiciary.

Moreover, the statement of a later legislative body, concerning the intended meaning and scope of an enactment passed by legislative predecessors, is entitled to no particular deference-particularly when the legislation at issue is over a century old in the case of Act or three decades old as in the case of the Dam Safety Act and its amendment. The current legislative declaration is even less persuasive since it appears that it was intended, at least in part, to influence the decision in pending appeals, including an appeal brought by individual members of the Legislature.

The intent of the legislature must be determined as of the time the original act was passed. Joseph Lead Co. Potter Twp. Furthermore, in Sphere Drake Insurance Co. Philadelphia Gas Works, Pa. Supreme Court Justice Scalia's observation that "[a]rguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously, not even in a footnote.

Of course, the General Assembly may react to litigation or to court decisions and change the law going forward. But the General Assembly cannot arrogate the authority of the Judiciary to interpret legislation to control the outcome of cases pending before the courts. Thus, the legislative enactments, whatever their intent, simply have no effect on this Court's interpretation of the meaning and vitality of the never-repealed Act at the time the City acted upon it, in November of Accordingly, we conclude that the City was correct when it asserted originally that the Commerce Director plainly had the power under Act to authorize issuance of the submerged lands license on November 27, For the following reasons, we conclude that the revocation notice was invalid.

In its Petition for Review, HSP asserts that the revocation notice was void ab initio because: 1 it was issued while appeals from Commerce Director Naidoff's November 27, decision were pending before this Court; 2 the doctrine of estoppel prohibits the City from reversing its position supporting the issuance of the license and that the City had the authority to issue the license; 3 the revocation notice is unreasonable and an abuse of discretion as it was based on grounds extraneous to Act , and there is no evidence that Commerce Director Naidoff issued the license in error; and 4 even assuming, arguendo, that the license was issued in error, HSP has a vested right in the license.

Respecting its revocation notice, the City asserts that, under Act , it had the power to revoke the license in its discretion. The City argues that support for its proposition that the license issued to HSP is revocable may be found in an excerpt from the Attorney General's Official Opinion No.

We do not believe that the Attorney General's Opinion supports the City's assumption of a broad power of revocation. The excerpt cited by the City must be examined in the context of the issue addressed by the Attorney General, as well as the statement that immediately precedes the excerpt:. The City construes the Attorney General's phrasing out of context. As the context reveals, the Attorney General was contrasting the license authorized by the Act with other, greater property interests.

The Attorney General's Opinion stated that the licensing procedure before the City's Director of Commerce authorizes the construction of obstructions below the low-water mark by a riparian land owner, and that "[i]t is the riparian right of the owner in conjunction with a license that legalizes the existence of an obstruction. Commonwealth, Pa. The Attorney General observed that "historically no interest greater than a license has been intended to pass to riparian owners along the Delaware River and its navigable tributaries for construction of obstructions below the low-water mark.

Viewed in context, we understand the modifier "revocable" to be a recognition that no authority existed to award a permanent property interest in the riverbed. In any event, even if the Attorney General's Official Opinion could be construed to support the City's argument that it has some power of revocation, the Opinion would be persuasive only to the extent it was grounded in some existing authority recognizing that power.

Presumably, an authority issuing a license could condition its issuance, and even reserve a power of revocation, or impose a temporal limitation. Notably, the City does not argue that the submerged lands license it issued in November of reserved a power of unilateral, unconditional, "discretionary" revocation. Nor has the City identified any provision of Act , of the Philadelphia Code, or of any other authority, that recognizes the broad power of revocation it insists upon.

For the City to prevail in the circumstance presented here, we would have to recognize a virtually unlimited power. In this case, the City purported to revoke the license after the licensing proceedings had been completed, the Director of Commerce had approved the issuance of the license, and after the period to file an appeal from the approval had passed. The revocation was issued after a reliance interest had arisen in favor of the licensee.

The revocation also was issued after appeals had been filed from the Commerce Director's decision to issue the submerged lands license, while the appeals were pending, and it was issued without notice or a hearing. In summary, Act authorized the City to issue the license in this case. We recognize that there has been a change in the executive office in Philadelphia; but the view of the current Director of Commerce for the City does not affect or undermine the legitimate exercise of the authority reposed in the former Director of Commerce.

Based upon the foregoing, we conclude that the City's Department of Commerce had the authority under Act to issue the November 27, submerged lands license to HSP, and that the City's January 24, "Notice of Revocation of License Issued in Error" was invalid. Accordingly, we hold that the license so issued is valid. Accordingly, I respectfully dissent. To support its central argument that the City was authorized by the General Assembly to grant it a license to encroach into the Delaware River, HSP relies on Act of As noted by the majority, however, shortly after the Attorney General issued his Opinion stating that the City retained such authority, the Legislature passed the Dam Safety and Encroachments Act of the "Dam Safety Act".

According to its express terms, the Dam Safety Act's purposes are to provide for state regulation of all water obstructions and encroachments in the Commonwealth in order to protect the health, safety, and welfare of the people and property; to protect the natural resources and environmental rights secured by the state Constitution and conserve the water quality, natural regime and carrying capacity of watercourses; and to assure proper planning, design, construction, maintenance, and monitoring of water obstructions and encroachments, in order to prevent unreasonable interference with water-flow and protect navigation.

See 32 P. See id. Thus, the General Assembly enacted the Dam Safety Act to provide for a uniform system by which encroachments into all waterways of the Commonwealth are to be overseen and regulated at the state level. Indeed, the act was passed a mere three months after the issuance of the Opinion of the Attorney General, making it reasonable to suppose that it represented a reaction to that opinion designed to provide for a comprehensive state-wide system of regulation of water encroachments throughout the Commonwealth.

Not only did it absolutely repeal Sections 7 and 8 of Act , see 32 P. This reservation of authority is consistent with the legislative objectives of the act as outlined above. The majority observes that the Dam Safety Act repeals portions of Act absolutely, but does not similarly repeal Act The majority concludes from this that the Legislature intended to leave Act completely unaffected. See Majority Opinion, op.

However, the general repealer clause contained in the Dam Safety Act states that "[a]ll other acts or parts of acts inconsistent herewith are hereby repealed to the extent of such inconsistency. It seems evident to me anyway that Act is inconsistent with Section 6 a of the Dam Safety Act, at least to the extent Act would otherwise allow the City unilaterally to license HSP to build out into the Delaware River beyond the low-water mark.

Therefore, Act was nullified by the general repealer clause at least to this extent. The majority notes that, under the Dam Safety Act, Act licensees but not Act licensees may dispense with the Section a permit requirement. The majority concludes that this reflects a legislative intent not to "eviscerate" Act