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.”

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