Rita's won't be coming to the Hill this year.

by Pete Mazzaccaro

John Thain, a Rita’s Water Ice franchisee who planned to open a new location at Chestnut Hill Plaza in the former home of TLA Video, said he has canceled the project after Trolley Car Diner owner Ken Weinstein challenged his right to operate the store based on a decade’s old restrictive covenant.

“I have to pull the plug,” he said. “The good news is I’m not going out of business because of this, but I’d rather have spent the money [in architects and legal fees] on a charity.”

Thain, a former Chestnut Hill resident, had secured the endorsement of both the Chestnut Hill Community Association and the Chestnut Hill Business Association in December of last year. Neighbors of the property had signed off on an exemption to a restrictive covenant that expressly forbade the leasing of any part of the property at 7630 Germantown Ave. to a fast food franchise.

The CHCA’s Land Use Planning and Zoning committee reviewed that covenant and decided Rita’s deserved an exemption because it was only serving water ice and after Thain agreed to a number of provisions to keep the lot and nearby property quiet and clean.

Long after that, however, Weinstein informed Thain that he planned to pursue legal action against Thain based on a restrictive covenant. Although nearby neighbors had approved the Rita’s opening, the covenant granted legal standing to any resident or business within 750 feet of the property.

“Every legal expert I talked to said we could definitely overturn that covenant,” Thain said. “But it’s a matter of timing. It might take until June or July. I think Weinstein knew this and he’s getting the result he expected.”

Weinstein was clear that he never actually filed anything. He admitted to making the threat but said that was the extent of any “legal actions” on his part. He also said that he has received resounding encouragement and support from people who believed, as he did, that a seasonal chain business was not good for the neighborhood.

Weinstein, however, said he did not consider news that Thain was withdrawing his plans a victory in any way.

“We won’t have a victory until we find a long-term, suitable tenant for that space,” he said. “We didn’t need a tenant that would have been closed four months out of every year.”

Weinstein dismissed charges that he only threatened legal action because he was concerned the Rita’s would offer stiff competition to his ice cream business.

“I know there’s plenty of room in the neighborhood for multiple restaurants and ice cream businesses,” he said. “The thing is I was the only person within 750 feet who could challenge Rita’s.”

Thain said he believed that one good thing to come out of the situation is that the CHCA and CHBA will reconsider restrictive covenants up and down Germantown Avenue and revue any existing ones to see if they still make sense.

“I though the CHCA and CHBA did a remarkable job,” he said. “People have said that it’s tough to do business in Chestnut Hill, but I think those organizations, especially the LUPZ, put a lot of hard work and thought into the process.”

Thain said that, even though the failed bid to open in Chestnut Hill Plaza cost him $10,000, what he’s mostly disappointed about is losing the opportunity to open a new franchise this year. He has the rights to Rita’s franchises in Northwest Philadelphia and believes there’s a good opportunity in Chestnut Hill.

“I’ve done the research,” he said. “I have identified a market here. If another space becomes available I will open. Ken might feel he staved off the competition, but it’s only temporary.”

  • Tracy

    What a shame… So we have seen many things play out in this saga. Neighbors who skipped publicized meetings that other neighbors attended – bemoaned the CHCA did not listen to the any neighbors somehow. People with strong opinions against franchises and stores that are eight month a year: “seasonal” triumph in seeing a former chain store to remain closed, having been so closed for years already. (I am still wondering the virtue of a vacant store closed every December versus a vibrant seasonal one closed on purpose for the same period. Makes one dislike those mid-fall marauding shopping mall Santa stands all the more as Visigoths who horde said malls only to leave the store center vacant right after New Year’s – leaving an empty mall in the wake of economic activity only to happen again year in and out to unsuspecting communities all around us…) We got to see some claim, “ this or any competition” to the Trolley Car water ice world is akin to a community staph infection, fallen virtue, or rooting for the aliens against Will Smith in “Independence Day.”

    I am still taking Mr. Weinstein at his word here, as we all should, as he shares now and in the Local and in the past he was not trying to block competition. His friends and supporters have called for the opposite, a position I am relieved he would not publically espouse as what a dishonorable way to “grow” (not) a community…

    There does seem to be an injustice here though – Mr. Weinstein could have made his objections clear in the public meetings. There were many. He could have engaged in the neighborhood advocacy he feels necessary in this run up to the water ice season. He shares here: “The thing is I was the only person within 750 feet who could challenge Rita’s.”
    That statement is as true today as it was in December when the DRC and the public were engaged discussing the covenant and zoning issues. It was true for the rest of the winter as well. Mr. Weinstein could have raised his standing and concerns to a community desperate and grateful to learn them. It might have helped Mr. Thain or any business respond or reconsider the enterprise. It would certainly help prospective businesses in the future to see how zoning and neighbor concerns are done out in the open and in the public. None of this was done, the opposite, the sad opposite was done instead.

    Mr. Thain claims this is mere sabotage, timing, not being challenged via the process but rather blocked according to a summer desert industry profit scales according to the season or something. I doubt anyone can fault his feeling this way, but again, knowing another’s true motivation is impossible – especially and adversary in a matter.

    Yet Mr. Thain availed himself of the process of working with the community and spent ten grand in doing so. Mr. Weinstein threatened Mr. Thain having not engaged in the open process with action, depriving him of income, and wasting his due diligence/investment. This is all too bad. Say one is right, another is wrong – but we are back to square one. The store is closed, a fantastic business model born from Philadelphia is blocked, an entrepreneur lost money, and the neighbors lost jobs, goods and services — and what does this look like to others not wanting to be the next Mr. Smith goes to Chestnut Hill…

    • Yvonne Haskins

      Tracy’s comment is longer than the article…hmmm, I wonder why all the hue and cry about a water ice place found to be in violation of a deed restriction. It’s not clear what is the “injustice” she speaks of when the only issue is whether Chestnut Hill Community Association should ignore deed restrictions when enough neighbors vote to do so. Sometimes the law is not to our liking…but as a civil society, do we just condone attempts to ignore, overturn or rewrite it? Especially in this case, where the intent of the law is merely to restrict “fast food” operations, why is there such a hoopla to change the law to allow fast food operations. Why bad mouth Ken Weinstein who had every right to challenge occupancy by a fast food place? Chestnut Hill should understand that placing a deed restriction on a property is very serious business…and, despite what Thain says, very difficult to get around unless its something against the law (like no black people can occupy this land). I say we get over it and move on to something better…and certainly not fast food.

      • Tracy

        Excuse me? You share: “water ice place found to be in violation of a deed restriction” — Found by whom? When? In 19118? All news and records do not comport to that. Who made such a finding?

        You share: “the only issue is whether Chestnut Hill Community Association should ignore deed restrictions when enough neighbors vote to do so” — Who made that the ONLY issue – or an issue for that matter? No neighbors, myself included asked for such a vote, where does the mandate come from especially since neighbors were there providing consent – concerns – and were a part of the process? All concerns were invited, a full discussion of the deed, fast food, all of this was aired with the neighbors that attended.

        You share: “Why bad mouth Ken Weinstein who had every right to challenge occupancy by a fast food place?”

        Who did that? Not me. Fast food is not the issue at all any more… The fast food issue was publicly aired, this idea Rita’s was classified anywhere on earth as such much less in the CHCA hearings is the pure fiction… I never said anything bad about anyone save the whole thing is a sad commentary on what happens when businesses try to open doors in 19118…. You amplify that sentiment, sadly, I think…

  • Local_Foodie

    Tracy… you ignore the real issue here. Rita’s is not legally allowed to locate at the Chestnut Hill Plaza because of a 20 year old restrictive covenant on the property. Everything else you discuss is irrelevant, although it is interesting.

    If Thain wants to help himself, he should find another property in Chestnut Hill where he can legally open and operate.

    • Tracy

      Thanks for sharing what I ignored… Except, I was at the meetings where the covenant was discussed with the DRC, the CHCA who participated in drafting it, and neighbors concerned about it… Nobody ignored this. Well, those that did not participate in the process did, are you such a person, and it is OK if you are as such things are hardly mandatory attendance wise?

      The “real issue” was fully vetted in public – unlike your conclusion that wildly presupposes it was not – and must not have been by those not doing it – though reported in the Local and many places anyway dispelling this certitude of yours… You have decided, among others, this is a settled legal matter, but where? In the court of Local_Foodie – presiding judge un-named, gavel caliber undefined? Outside the process entirely from what I can gather…

      Since my thoughts are irrelevant, but gratefully, as pride of authorship allows, nonetheless interesting — how does one advise Mr. Thain to find a property where he can legally operate outside the rulings of some Local_Foodie — after all he just used the public zoning process? What a dope. He was given the legal go ahead. Why should that matter. He was challenged after and outside the process, what is to make anyone imagine it can not happen again with any location? What if someone wants to sell a bagel sandwich in 19118? Should it cost another ten grand to find out how is that remarkable feat possible since adding fruit juice to water ice is a calamity — worse a violation of a settled precedent that a Local_Foodie_Arlen_Spector type might pose as super duper precedent? Ridiculous? You bet, I am part of the problem for caring and attending, wonder how many more will think twice about being part of the process going forward… The whole thing is a shame, mostly for Mr. Thain with money in the game, the balance for the community — as look at the process…

      • local_foodie

        Tracy… you just don’t understand! Rita’s is allowed to open in any C2 commercially zoning property that does not have a restrictive covenant prohibiting fast food chains. C2 encompasses most of Chestnut Hill so Thain has the right to open in almost any other commercial building. A vote by CHCA does not give him the legal right to do anything without the unanimous consent of every property owner within 750 feet of the CH Plaza. Please read the entire restrictive covenant before you give out more opinions. It is very self explanatory. No “fast food chains” are allowed at the CH Plaza ever! Any property owner within 750 feet of the CH Plaza can enforce the covenant.

        Thain needs to live by the same rules everyone else has to live by. He should stop blaming others for the misinformation he received from the CH Plaza property owners. Move on!

        • Tracy

          Gee, shame I again just do not understand… You share: “No “fast food chains” are allowed at the CH Plaza ever!” Well. No kidding. You don’t need the explanation point for any ones benefit, nobody on earth thinks otherwise, nor argued as such. And thanks for the direction I am to follow as you also share: “before you give out more opinions”…. Think I will respond anyway…

          I understand what everyone in the room understood on many occasions. Rita’s water ice is no more a “fast food chain” that the Trolley Car Diner is. It was explained a dozen ways to Sunday. Tax classifications, department of health, insurance classifications, the study with the city zoning Mr. Thain presented from his counsel — nobody in these meetings disputes the covenants existent nor was in any way confused as to the contents. No reasonable person felt through and at the end of the process that Rita’s is a fast food chain, no unreasonable person did either. Nobody is missing your presumably obvious point, you simply do not have a valid point. And nobody needs to do any more homework to opine as such.

          You would have it that somehow the CHCA did not address the fast food chain issue, the covenant, does not understand the C2 issues here or elsewhere, that concerned neighbors likewise did not and that fast food as an issue was somehow missed only to be caught later like some forensic discovery in Law and Order righting a horrible wrong. I get it. I wish you did too.

          A business, silent within the radius until the last minute, came forward at the end to make a point that a frozen desert shop is a McDonald’s for all intensive purposes despite how utterly ridiculous that contention is… You provide agreement as though that ludicrous notion is incandescent. And even though it is as intellectually weak as imagining the Sunoco gas station up the road is a grocery store because they sell milk and eggs there as well — it was enough to stall a man making a case for a business in public that another tried to stop in private… The saga is a sad one, does not speak well for the community or process, why are you adding to it…

          Mr. Thain played by the rules and in public, I hope he does not just “move on” but rather tries again as I hope others do as well despite the mistreatment they get from people circumventing the process — for I hope, not selfish reasons. And I am still taking Mr. Weinstein at his word he acted in total good faith too as I have no facts to think otherwise. That does not make this lost ten grand whole or the neighborhood any less deprived of this good business… As I said before, what a shame…

  • Plecoptera

    Ken only cares about his own personal interests and not the communities. He has lost me as a patron. What a jerk.

    • Noah

      And Rita’s builds communities? Don’t you realize what you’re complaining about, and what you’re fighting for? It’s a Rita’s; a national chain, one who’s ownership is no longer located in the state, and one who doesn’t support any nearby businesses. A least the Diner partner’s with just about every business within the zip code.

      I agree with Yvonne, it’s about following the rules, or getting them legally overturned. You may not see Rita’s as fast food, but you bet the next Tac0 Bell or KFC will, when they try to use it as precedent to move into this area. And then where’s your community?

      • Mike

        That makes no sense. Taco Bell and KFC could see whatever they want, but they wouldn’t be allowed to open there because that’s a breach of the covenant. Have you even read the covenant? The original signatories who still live in their houses all approved of the Rita’s. Since they were party to the original agreement, clearly they didn’t think Rita’s was ‘Fast Food’ and in violation of the agreement they entered into. Trolley Car wasn’t even in existence when this was signed. Nobody who was party to this opening thought or classified Rita’s as a fast food restaurant, so let’s just call the opposition based off of this covenant what it is – a trojan horse to a deeper agenda of not allowing chains they don’t like to open up in the neighborhood, at the opposition’s discretion (I notice Iron Hill, -gasp- a local chain, is doing quite well since it opened a few months ago). If you have all these great ideas for what the neighborhood needs, namely locally-owned businesses (assuming you live in the neighborhood), you’re welcome to put your own capital at risk and open a business, just as Mr. Thain was willing to do. Tracy is absolutely right – this is a shame, both for Mr. Thain and for the message it sends to other prospective businesses folks who want to open up in our neighborhood.

  • Tesia

    I think the outcome is as it should be. Now let’s get a business in there that we actually need and have a lack of in the neighborhood, instead of a seasonal redundancy.

  • Mike

    Cool! I love looking at empty storefronts!

  • Frank Castle

    Wow ! I never thought I would see the day when a puffed up stuffed shirt from Mt.Airy could or would be able to play “business poker” with a Chestnut Hiller and win ! I personally would have loved to see Mr. Thain open his RITA’s WATER ICE STORE. It’s a shame that ONLY 250 yards separate the two busineses. Two and a half (2 1/2) football fields ! Weinstein should be ashamed of himself ! RITA’S is not the enemy. COMPETITION BREEDS COMPETITION! The FREE MARKET ALWAYS PREVAILS except when WHINER’S like WEINSTEIN muck up the playing field. Ever since Germantown ave. was closed for construction the TROLLEY CAR OWNER has used this paper as his political & personal soapbox to voice his complaints. Do everybody a favor (at least in CHESTNUT HILL) adopt the popular phrase that is famous in Las Vegas, but change Las Vegas to Mt. Airy. “What happens in Mt. Airy stays in Mt. Airy.” This way, hopefully, businesses that are a MERE 2 and 1/2 FOOTBALL FIELDS AWAY won’t get their “business feelings” hurt.