by Pete Mazzaccaro

John Thain was all set to begin work on a new Rita’s Water Ice franchise at Chestnut Hill Plaza, 7630 Germantown Ave., the former location of TLA Video.

He had received approval from the Chestnut Hill Community Association, the nearby neighbors of the plaza and had even agreed to a detailed covenant with the CHCA to be sure that litter was dutifully swept from the plaza’s lot.

But on Dec. 19, Thain said he received a letter from the Trolley Car Diner informing him that the business’ owners planned to enforce a deed restriction for the property that had been established many years ago to prevent a fast-food franchise from opening in the property.

That covenant was struck between the plaza’s owners and neighbors and contains language that gives any neighbor within 750 feet of the property the right to object to the opening of a fast-food franchise.

“This covenant was written to the benefit of home owners, “Thain said in an interview with the Local. “It was so they wouldn’t have to endure smell or noise. It’s not for the benefit of a commercial enterprise, certainly not one in Mt. Airy.”

Thain said he had agreed to go into arbitration with the Trolley Car Diner but that he is running out of time. If he’s not able to open in time to start the season in April, the business won’t be able to stay open at all. It’s the nature of a seasonal business.

“At a certain point, if we don’t open by a certain date, we won’t be able to open at all,” Thain said, “The landlord has a right to get a tenant in there. “

Ken Weinstein, owner of the Trolley Car Diner, denied that pursuing the deed restriction was anticompetitive. He said he believed the CHCA should have enforced the deed restriction.

“We’re doing the neighbors and the landlord a favor,” he said. “If they won’t enforce the deed restriction, we will.”

Weinstein said he had received numerous calls from residents who didn’t want to see a Rita’s in the neighborhood.

“We really don’t need another chain coming here and sucking up local dollars,” he said.

Asked if there was any possibility he might reach an agreement with Thain and Rita’s, Weinstein said that if they could show it wasn’t indeed a fast-food establishment – meaning the deed restriction would not apply – he’d be fine with it.

Thain believes, however, that Weinstein’s strategy is simply to delay Rita’s long enough for it to fail. He said the establishment is clearly not fast food – it is defined differently by insurance providers and the city health department as “frozen desert,” a category of business with different risks and health standards than fast food.

“We have a dark building, that’ll be putting medical facilities in there,” Thain said. “We’re bringing in a clean family operation that brings 300 to 400 families a day. We’re being blocked. Any logical person knows Rita’s isn’t just another fast-food restaurant.”

Weinstein said he was surprised that Thain had spoken to the Local. He had, before the Local called, assumed that arbitration was working.

“We had a good meeting and I was waiting to hear more,” Weinstein said.

“I know I tried to be a good citizen,” Thain said. “It’s finally gotten to the point where if we can’t deal with it with our lawyers, lets get it out there to the point of public opinion,”

“Everybody wanted a clean business to come here and bring people in here every day” Thain said. “I was just shocked that another business has tried to block us. Between Weavers Way and this, it seems as if Mt. Airy is trying to tell Chestnut Hill how to run their businesses.”

  • Sam

    oh jeez. let there be water ice.

  • Local Business Lover

    I support a great local business over a chain store any day. It’s why I frequent Weaver’s Way Coop and Food For All over a Whole Foods…or why I support Trolley Car Ice Cream Shoppe and Bredenbeck’s over a Rita’s. Whether we’re talking Mt. Airy or Chestnut Hill, I love both of these neighborhoods because they seem to strongly support local business over chains. Maybe that is changing…and so would my preference of where to support.

    • Seth Itzkowitz

      Last time I checked, Weavers Way is a chain with two locations (down from three).

      • Anonymous

        Agreed, but there is no restrictive covenant where they are located that prohibits them from operating. There is a restrictive covenant at the Chestnut Hill Plaza that prohibits Rita’s from operating there. Different story!

      • Anonymous

        Agreed, but there is no restrictive covenant where they are located that prohibits them from operating. There is a restrictive covenant at the Chestnut Hill Plaza that prohibits Rita’s from operating there. Different story!

  • Tracy

    Curious View of Rita’s as a “chain” to be avoided. It started outside the Nabisco plant as a lunch cart type thing and one of the workers there convinced the owner to franchise it and Brian opened up the first one on Frankford Ave and then in Croyden. It took off after that and it is only a couple of decades old.

    Ken Weinstein shares: “We really don’t need another chain coming here and sucking up local dollars,”

    This is a Philadelphia success story – why don’t we want a successful local chain coming in and offering something people stand in long lines to enjoy a mile down the road in Wynmoor on Willow Grove Ave? Why don’t we want a vibrant chain in the Delaware valley to do well and expand here? It is now the #1 Italian Water Ice franchise in the country and headquartered twenty miles away, we shouldn’t like that why?

    • Robin

      Rita’s is a chain and we don’t need more chains in our neighborhood. There is a good reason why there is a deed retraction, to prevent sales by a fast food chain.

  • Anonymous

    It looks to me like Chestnut Hill is trying to grab business from Mt. Airy. Why else would they try to put a similar type fast food chain in a building nearest to the Trolley Car that prohibits this type of use. There are lots of vacant commercial properties in Chestnut Hill that could house a Rita’s.

    • Banannas

      It ain’t Chestnut Hill!!!! It’s Mt Airy fighting it!

      • Tracy

        Chestnut Hill is not looking to pirate Mt. Airy – a good local business is trying to open a store in a vacant building. Do all people looking into opening a store in Chestnut Hill have to first do a Mt. Airy business impact study per category of goods and services? This is absurd. Why this is a fight is an utter mystery to me… Who doesn’t want more ice cream and water ice walking distance to neighborhoods…

        • Anonymous

          Tracy… you are missing the point of this story and situation. Rita’s can locate in any vacant building in Chestnut Hill or Mt. Airy but they are legally prevented from locating at the Chestnut Hill Plaza. The absurdity of this situation is that Rita’s is trying to do something that is legally prevented by a recorded restrictive covenant. Rita’s should move on and find a legally allowed location! No impact study is necessary.

          • Tracy

            I am missing the absurd premise that Rita’s is a fast food chain, were it you would have a valid point instead of this great stretch of a technicality predicated on obviously miss-assigning what Rita’s does and sells…

  • Banannas

    Of course! The opposition is coming from Ken, The WHINER, Weinstein!

  • Seth Itzkowitz

    If Pat’s and Geno’s can get along why, not the Trolley Car and Rita’s? Competition is good for everyone — if the Trolley Car is worried then they are not doing something right.

    As for Rita’s being a local success story — that’s true but the controlling owner is Falconhead Capital, a New York-based investment firm so some profit is being sucked out of the area.

  • Anonymous

    Let me see…. The CH Community Association refuses to enforce a deed restriction that they negotiated 30 years ago. They claim that Rita’s water ice is not a “fast food chain.” It is fast, water ice is food and Rita’s is a chain, all according to their web site. Why would anyone listen to CHCA again if they don’t enforce agreements that they made in the past. And why weren’t all neighbors within 750 feet of the proposed Rita’s site told that the CHCA was meeting on this issue.

    • Tracy

      The gas station up the road sells ice cream and water ice in their small freezer. It is fast. It is a chain. Using your syllogistic logic, and I don’t recommend it, one can argue that Sunocco station must too be a “fast food chain”…. This is an absurd stretch to try and keep honest and good competition out…. I imagine that when the fast food provision was agreed to it was done in good faith, this seems everything but that…

      • Anonymous

        Tracy… you are not getting it. The gas station doesn’t have a restrictive covenant on their property and are, therefore, allowed to sell whatever they want. The Chestnut Hill Plaza has a clear restriction on the property that prohibits a Rita’s. Rita’s can locate in any one of the many vacant Chestnut Hill properties that do not have deed restrictions.

        • Tracy

          I do get it. Rita’s water ice is not fast food. I was at the meeting when John Thain addressed the issue and nobody in the packed room thought it was fast food either. He enumerated the distinctions with licensing, insurances and such. This is not a new stretch, I remember when an Applebes was fought in I think Bucks County by a competitor because having the curbside dining made it “auto-centric” hence fast food. That argument lost as it should have. People have tried to classify pizza places as fast food if they lacked enough seating thus had a tremendous amount “take out” being their stretching of the definition. People have tried to get coffee shops classified as such because of the speed of service. These tries, like you here, stretch the definition to having no meaning. People of good will that want to be fair generally see though this and the ridiculous syllogism you offered. Water ice is food… So is a soft pretzel, a soft pretzel sold from a 7-11 does not make a 7-11 a fast food restaurant either by any reasonable, good faith approach to the term. It is a convenience store like Rita’s is a frozen desert store — neither are Burger King and everybody knows that.

          In the article Thain makes this case: “He said the establishment is clearly not fast food – it is defined differently by insurance providers and the city health department as “frozen desert,” a category of business with different risks and health standards than fast food.”

          If your answer to this is: “The Rita’s Site says it is food served fast” — please stop replying with the header conveying that I do not understand this issue as it is you making the absurd leap here.

  • Anonymous

    This covenant was drafted in part by the CHCA. As stated in their guidelines, the CHCA’s area of responsibility ends well before the Trolley Car property lines and was never intended to protect the Trolley Car Diner. Further, this document never intended to be used as a tool to stave off competition.
    I do not take lightly the effort of every independent retailer who makes the entire Germantown Ave commercial district so special. Retail in 2012 requires that you prepare yourself to fight for every sale. The tools of the successful main street retailer are the quality of their product, the commitment to customer service, the ability to create a special shopping experience and the reputation of the business owner. I’m sure Mr. Weinstein possesses all these tools and does not need to turn to antiquated documents to protect the Trolley Car Diner.

    • John

      Reilly represents Chestnut Hill business interests and that’s fine. However, Rita’s Water Ice is fast food plain and simple. Dairy Queen started out selling only ice cream and now it sells all types of fast food. This is about keeping fast food out of Chestnut Hill and Mount Airy. I wonder is Ms. Reilly and the other business leaders would object if Mr. Thain wanted to open in the 8400 block of Germantown Avenue. I’m tired of the mentality that allows the lower/southern end of Chestnut Hill to be a dumping ground for these types of businesses. Mount Airy and Chestnut Hill are in this together. We are neighbors and Mr. Weinstein is right about this.

  • Petehoskins

    From either a legal perspective or a planning perspective I weigh in on the side of the Trolley Car Diner. I’m not sure it is right or legal to hang your hat on the fact that the Diner is across the line from Chestnut Hill if it is still within the distance of the restriction in the recorded deed restriction. It certainly does not make good sense to make it sound like CHCA does not care since the Diner is in Mt. Airy.
    About planning, I think the strongest point against allowing the Rita’s franchise at that location is that is a seasonal use of a permanent retail space. I don’t recall seeing a lot of Rita’s situated in prime retail locations sitting empty more than half the year. I am not against chains altogether and miss some of the clothing stores and bookstore we just lost, but when we have gems such as the Trolley Car Diner we should give them strong consideration as local family-based businesses.
    I think that, of all retailers in the area, few have done more to support the communities of Chestnut Hill AND Mt. Airy than Ken Weinstein.

  • Bob

    I am a developer who has partnered with Ken Weinstein for 15 years on various real estate projects. Most of these projects have brought small, independent businesses as tenants to formerly vacant buildings. In turn we have generated community development impact in neighborhoods seeking a stronger local economy – both in our home base of Mount Airy, and in Germantown, East Falls, Bella Vista, and downtown Norristown.

    The issue of Rita’s coming to Chestnut Hill Plaza boils down to two key issues for me – that a community association protected itself with a restrictive covenant, and that neighborhoods benefit less from bringing in seasonal, chain businesses.

    First, CHCA protected itself when the center was originally built. According to what I’ve read, a recorded restrictive covenant on the property prohibits “the sale of food or beverages by a fast food chain…”, and Rita’s certainly fits my definition of a fast food chain.

    Neighborhood groups put a lot of effort into protecting itself when they negotiate restrictive covenants with developers. I can only guess that CHCA felt strongly that fast food chains were a pattern it wanted to avoid as it helped guide business development along lower Germantown Avenue. Over the years we have been asked by a myriad of community groups and municipalities to agree to restrictions – which we negotiate in good faith, and which we maintain for years. No one has ever allowed us to walk away from those restrictions.

    Second, Mount Airy and Chestnut Hill don’t need more chains. Instead, we need small businesses that are locally, independently owned. We especially don’t need seasonal businesses that are only open part of the year and are shut down the rest of the time; Rita’s will be a vacant property for 4 months out of the year.

    Chains pull profits out of our community, by buying goods and services through centralized corporations. Locally owned businesses reinvest in the communities in which they operate. I have never heard or read about the former Rita’s on Stenton Avenue giving back to our community. Locally owned ice cream shops like Trolley Car Diner and Bredenbeck’s Bakery are constantly showing support for our community.

    • Hsmithey2001

      Amen!

    • Guest

      I’m all in favor of “independently owned and operated” businesses. Do you realize that each Rita’s outlet is independently owned and operated? The Rita’s in Chestnut Hill will be owned by Mr. Thain, who himself lives in Chestnut Hill. He’s a local resident who will be providing local jobs. How is this different than Trolley Car? If the argument is that profits from the manufacture of the frozen treats go to a corporation located outside our community, then tell me which is “worse”: profits from the ice cream sold at Trolley Car going to Nestle Corporation (a multinational conglomerate being boycotted by Oxfam and Save the Children) or profits going to Rita’s which has its headquarters 15 miles away, and which provides local jobs and tax revenue to the state of PA that Nestles does not).

      • Local_Foodie

        Check your facts Guest…. I called Trolley Car tonight to find out that they have never sold Nestle’s ice cream. Instead they offer Nelson’s Ice Cream which is a local brand made in Royersford, PA. You should be spreading love, instead of spreading lies!

        • Guest

          again? okay…

          My facts are based on Trolley Car Diner’s own website:

          http://trolleycardiner.com/din

          Go to their Menus section and select “Ice Cream.” It says verbatim:

          “Choose from 16 delicious flavors of Edy’s ice cream”

          Edy’s is manufactured by a wholly-owned subsidiary of Nestle Corporation.

          Maybe you should ask the person at Trolley Car who told you that they never sold Nestle’s ice cream why Trolley Car’s own website says that is what they sell instead of accusing me of spreading lies.

    • http://www.facebook.com/people/Rick-Johnson/100000190455903 Rick Johnson

      Sure the jobs they create and the taxes they pay are so bad for communities.

  • kate

    I fell in love with Chestnut Hill/Mt Airy for it’s charm and small businesses who truly care about their community. 10 years ago Trolley Car Diner was an ugly vacant Roy Rogers. Today its a vibrant family friendly restaurant that gives back to the community (both Mt Airy and Chestnut Hill) in so many ways. When Penn Dot ripped up Germantown Avenue and threatened the livelihood of businesses (both Mt Airy and Chestnut Hill), Ken stood up and organized the fight to keep the businesses alive. I doubt Rita’s would have done the same.

    Not enforcing the deed restriction by allowing Rita’s at this location would set a terrible precedent. If Rita’s closes, whats going to stop a Roy Rogers or Burger King from following? We need to support local, independently owned businesses such as Trolley Car Diner and Brendenbecks who care about Northwest Philadelphia.

  • George

    It seems a shame for all of us that the arbitration agreed to was not allowed to proceed. I would hope that such a process would have cleared up the question as to whether Rita’s is a fast food establishment. If it is, then the CHCA would owe John Thain an apology and would have to withdraw its permission. If it is not, then indeed we have another example of a chain competing with a local business, a competition which it will be up to us locals to “vote on” through our purchases. Personally I would prefer a 12-month-a-year business there, and “buying local” is something that I try to do.

  • dan

    it is always a shame that we have to spend our time reacting to these type of issues in our community. While we want to continue to see good viable business in our area grow and employe our kids, I would rather see the support go to the Trolley that has been open for over 10 years and employs many of our local residents and continues to give back to the community. Rita’s regardless of whether is a fast food chain or not will sit close for six months and will not be employing anyone. At least at the Diner those who work the ice cream shop have jobs all year around.

  • Bpteutsch

    Sounds like Rita’s is trying to do an end run rather than move forward with the agreed-upon arbitration. Rita’s doesn’t add much to the neighborhood – they’re only open part of the year and are a low end product. And of course they’re a chain. I don’t understand how the CH assn can classify it any other way.

  • Noah

    Why is anybody fighting FOR a chain to go into Chestnut Hill? Last I checked, a lot of CH is the eye-sore that it is because when the isht hit the fan in 2008-09, every chain pulled out of the neighborhood. When a chain like Rita’s sees it’s margins drop by a half a percent, they pull out, plain and simple. I refuse to see that happen again, let alone fight for it…

    I prefer a business owner who EVOLVES with the tough times to keep business like the Diner has done, and is INVOLVED in the community by giving back.

    • Tracy

      There are lots of reasons, depends on the chain. This one grew right out of Philadelphia and Bucks County, I am always rooting for local businesses like that. They have raised millions for Alex’s Lemonade Stand, they have special franchise opportunities for veterans who served over seas, they have many things to like about them. I actually just like their products and think it will be a great fit… I don’t know how many Rita’s closed in 2008-9, none of the many near where I work did. Where does this certainty come from with the margin numbers? To imagine Rita’s will close because Borders did is a bit of a leap is it not…

      • Noah

        Just looking at a map, the 3 closest Rita’s to CH have closed or changed along Stenton Ave and in Wyndmoor. I too am a fan of water ice, Tracy, and stop at Rita’s on occasion, so I’m not just hating on the brand. However, I’m not such a big fan to have so many options so close by with Rocco’s, the Trolley Car Diner and Bredenbeck’s…

        And, do not make light of the Gap that franchises have left by pulling out of Chestnut Hill…pun intended. Borders is not the only one. Express, Talbot’s, Melting Pot, the Ford dealership (happily for that one) have all pulled out over the years, mostly because they took a shotgun approach to renting in the first place. Some had longer runs than others, but they were all the first to get out when the going got tough.

        • Tracy

          If you are posing local owned and operated is better for the Ave then I agree 100% – but if one were to extend the argument that Iron Hill is less desirable than the empty Gap store that is boarded up I disagree. If the Trolley Car opened there too, or a Rollers, which is walking distance for my twins, then I would go there in a second. But the option currently before us is a good franchise owned by a local resident versus and empty building. If they stay for a few years and generate money and jobs and leave at the next downturn that would be a bummer, but do we want it empty until someone local comes along and fits the ideal and not the very good? I forget who said it well earlier, let there be water ice…

          • Anonymous

            I think it is premature to state that the Chestnut Hill Plaza will be vacant long term. We should give the property owners a chance to rent it to a business which does not violate the restrictive covenant. I agree that a chain is preferable to a long term vacancy but Chestnut Hill can and must do better. Let’s give the owners a few more months to find a business that sticks with us long term and has all the benefits that a locally owned independent brings!

          • Tracy

            The trouble is – that is a hope and not a plan. Rita’s is a plan. And you are claiming as a given, as does Mr. Weinstein, that Rita’s is fast food hence a violation of the covenant. I don’t see it that way, it is totally illogical to me and the CHCA ruled that way as well, and correctly in my view… If a locally owned business were clamoring, “I want that space, here is my plan” and the land loard agreed too that is something else but hoping “Chestnut Hill can and must do better” as we block a good store makes no sense to me… I suppose we agree to disagree…

          • Anonymous

            Yes, we are going to have to agree to disagree. I appreciate your level headed discussion, however. The shame of it is that binding arbitration would have proven whether you or I are correct but Thain did not wait for that agreed upon process to work.

          • Anonymous

            Yes, we are going to have to agree to disagree. I appreciate your level headed discussion, however. The shame of it is that binding arbitration would have proven whether you or I are correct but Thain did not wait for that agreed upon process to work.

    • Guest

      I think part of the reasons the chains left was that the bridge at CH college reopened, more easily allowing NW Philadelphians to the shopping and parking opportunities in the Plymouth Meeting area. Not to mention lower taxes.

  • guest

    I am a Philly girl through and through and could never see myself coming out against “wudder” ice, I find myself doing that exact thing. However, this is not about wudder ice, this is about neighborhood and communities deciding for themselves what they want for their community to thrive and prosper. And the neighbors have the deed restriction on their side. I am strong believer and supporter of local businesses. Additionally, I have seen the devastation of chain stores coming to a thriving shopping district only to devastate it years later, ie South Street. Alternatively, I have seen areas thrive under the multitude of small local businesses, ie Italian market. Come see for yourself and take a tour of South Street (empty storefronts) and the Italian market (crowed and thriving stands), and afterwards please enjoy some delicious wudder ice at John’s at 7th and Christian Streets.

  • Tracy

    I feel bad that Ken Weinstein here is being done a pretty big disservice. His argument, from what one can read from this article, is that this is not about being anti-competitive. Taking him at his word – and why would anyone not – he feels the CHCA should see this as fast food franchise that violates the restriction and he is responding as a concerned citizen looking out the interests of the neighbors who have reached out to him and asked for his help as a well know community leader. If he were making the case the Trolley Car Diner is a better business, run by better people, and far better for the neighborhood especially if it is free from outside competitors — that case would be nakedly self serving, unseemly, not pro neighborhood development, and 100% at odds with what he actually, in fact said to the Local about this matter. So why then are people that love the diner (who doesn’t) and admire the owner (who doesn’t) going around seemingly taking hi