Court overturns ZBA ban on proposed Roxborough Wendy’s drive-thru

 Wendy's now has clearance to build a restaurant with a drive-thru at this intersection in Roxborough. An appeal could be coming, though. (NewsWorks, file art)

Wendy's now has clearance to build a restaurant with a drive-thru at this intersection in Roxborough. An appeal could be coming, though. (NewsWorks, file art)

After an appeal, a fast-food restaurant won the highly-contested right to include a drive-thru in their Roxborough building plans.

In June, attorneys for developers Anthony and Frank Giovannone presented an appeal in the Court of Common Pleas in response the Zoning Board of Adjustment’s January ruling regarding their desire to build a Wendy’s at Ridge and Roxborough avenues.

On Aug. 5, Judge Nina Wright Padilla overturned the ZBA’s decision to forbid a drive-thru at the proposed restaurant. Padilla’s one-page order did not indicate the rationale behind her decision.

With this ruling, the would-be restaurateurs can now incorporate a drive-thru, described by representatives of Wendy’s as a necessary ingredient in their business’s marketing strategy.

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The legal background

Under the original Jan. 28 ruling by the ZBA, a special exception — akin to a variance — was granted to the Giovannones. It allowed them to build the restaurant, but denied their request to install a drive-thru window.

At community meetings, and in sworn testimony before the ZBA, representatives for Wendy’s stressed that the restaurant would not be built without a drive-thru window. They cited estimates that suggested up to 75 percent of customers would be car-driving impulse buyers.

The ZBA’s decision was considered a victory for civic leaders who organized opposition to the proposed restaurant. In response, Carl Primavera, attorney for the Giovannones, initiated an appeal process.

At June’s appeal hearing, Primavera argued that the ZBA reached an incorrect decision with regard to the drive-thru window, citing case law that requires objectors — in this case, the community — to demonstrate detrimental effects to the health, safety and welfare on their neighborhood.

Characterizing the community members’ testimony as “anecdotal” and “emotional,” Primavera concluded that the verdict reached by the ZBA was not supported by the testimony.

On Thursday, Primavera told NewsWorks that he and his clients were pleased with the decision, and were ready to move forward with their plans for the site, which once featured the historic Bunting House.

He also expressed a willingness to work with residents to fine-tune plans.

“We’ll have to wait and see what the [residents] have in mind, and then make something that’s agreeable to them,” Primavera said.

Community reaction pending

Hal Schirmer, attorney for the Central Roxborough Civic Association, said that the determination on whether to pursue higher judicial review in Commonwealth Court remains in the hands of the membership of the CRCA, who are scheduled to meet on Sept. 4.

Schirmer rebuffed the notion that the community wasn’t able to provide expert commentary on the conditions of their neighborhood.

“The neighbors know the traffic patterns,” he said. “It doesn’t take a weatherman to see which way the wind blows.”

CRCA President Don Simon signaled a willingness to continue fighting the restaurant.

“As far as I’m concerned,” Simon said, “we will take this appeal to the Commonwealth Court where, according to [Schirmer], we stand a better chance of being heard.”

Should the community choose to move forward with an appeal, Schirmer indicated that the Commonwealth Court often “skips over” the decisions of the Common Pleas courts, and stated that it was rare for the original ZBA ruling to be overturned at the state level.

Asked his opinion of this analysis, Primavera said that each case is judged on its own merits.

He observed that this was a case involving special exceptions — as opposed to zoning variances — meaning there is a much lower burden for the applicant to meet.

“With special exceptions, the tremendous assumption is in favor of the applicant,” he said. “There was a lot of opposition [to the project], as well as a lot of support, and I think the zoning board tried to cut the baby in half.”

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