It’s your move, John. That’s where things stand in the current deadlock between John Thain, who wants to open a Rita’s Italian Ice shop at the bottom of Chestnut Hill, and Ken Weinstein, the owner of the nearby Trolley Car Diner in Mt. Airy. Weinstein is threatening to take Thain to court if he tries to open.
“At this point we’re trying to figure out (our) next steps,” said Thain. “We could open in two weeks if it wasn’t for this,” he added.
The Chestnut Hill businessman said he may submit his building permit applications, a move that he thinks may force Weinstein to “go on the offensive.” Thain said he believes he has the upper hand on the legal front since he has the backing of the Chestnut Hill Community Association and five neighbors who are listed as part of a restrictive covenant involving the property location.
At issue is whether a Rita’s in the Chestnut Hill Plaza would violate an agreement the building’s owner reached with the Chestnut Hill Community Association (CHCA) that bans fast-food restaurants from moving in.
The legal fight
Should the fight continue to the next level it would wind up in the Court of Common Pleas of Philadelphia, according Brad Begelman, Chair of the Real Property Section of the Philadelphia Bar Association. There, Weinstein could seek a preliminary injunction against development. An injunction is a judge’s court order which would require the halt of prohibited activity.
After that there would be another court proceeding to obtain a permanent injunction.
“Typically it’s the community association that has that right, so it’s a little unusual in my experience to have an individual land owner in the nearby vicinity that has that right.” Begelman observed. He noted that it is possible for Weinstein to win an injunction “because he is a beneficiary” of the covenant. However, the probability of that outcome is uncertain since the CHCA is supporting the project.
The Restrictive Covenant
The crux of the legal argument is the interpretation of a restrictive covenant for the property. The covenant, written in 1990, prohibits certain business on the property such as pet stores, butcher shops, laboratories, auto service centers and “fast food” chains. The terms and conditions of the agreement mention fast food restaurants McDonald’s,Taco Bell and Dominos Pizza “by way of example but without limitation.” A proviso also states that “no present lease will be amended to permit such use.” A take-out food or beverage business is also prohibited unless in “conjunction with a bonafide restaurant.”
The covenant states that any property owner within 750 feet of Chestnut Hill Plaza has the right to seek its enforcement. The Trolley Car Diner is within those boundaries. “Rita’s is clearly a fast food chain,” Weinstein emphasized. “The Chestnut Hill Community Association can approve this, but they’re just looking the other way.”
Thain believes competition is the real reason Weinstein is fighting his proposed Rita’s franchise. “I’m convinced of it,” he declared. The Trolley Car Diner sells water ice and ice cream from a stand on its property. Weinstein divulged that water ice purchases comprise a third of his seasonal sales, but insisted that competition is not an issue.
Thain explained that he was drawn to the 7630 Germantown Avenue site because he saw it as an opportunity to fill one of the many long standing vacancies in his neighborhood. He has lived in Chestnut Hill for the past seven years. The store is one of four which had been previously occupied by the local TLA video chain, which closed its doors in January 2011. Thain admitted that traffic along Cresheim Drive was a major plus for the spot.
He mentioned that his other three franchises have been welcomed into the communities of Roxborough and Wyncote. Thain noted that as a job creator he currently employs “60 kids and five full-time employees.” Rita’s Water Ice is a seasonal business and closed during the months of December and January.
Plans for the Chestnut Hill Rita’s Water Ice would feature indoor service and seating. Unlike other Rita’s franchises, there will be no take-out service window. Thain also agreed to a condition requiring removable outdoor seating to prevent after-hours loitering.
Thain said he would like the opportunity to operate his franchise in a free market society where consumers decide with their purchasing dollars whether his business is right or wrong for the location. Weinstein maintains he just wants everyone to play by the same rules, “If we don’t enforce our deed restrictions, why bother negotiating them?” he remarked.
Long time area residents may best remember Thain as past owner of the former Goat Hollow Tavern in West Mt. Airy which operated for 17 years before being sold to owners of the short-lived Angie Brown’s. Thain proudly considers the Goat Hollow to have been “the best business to represent the personality of Northwest Philadelphia.” In November, Weinstein purchased the tavern which has been vacant for more than three years. He told NewsWorks that a long term lease has been signed and expects the tenant to open for business later in the year.