Roxborough Wendy’s drive-thru battle continues at court hearing

Local developers had their day in court Wednesday, arguing that they should be allowed to build a drive-thru restaurant on Ridge Avenue in Roxborough.

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 the intersection of Ridge and Roxborough avenues.

Under the Jan. 28 ruling, a special exception — akin to a variance — was granted to the Giovannones, allowing them to build the restaurant but denying a request to install a drive-thru window.

Ongoing friction

At a community meeting, 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 held 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.

Carl Primavera, attorney for the Giovannones, told NewsWorks in January that an appeal was likely. Several months later, Primavera was in the courtroom of Judge Nina Wright Padilla.

Wendy’s argument

Citing the Bray vs. ZBA of Philadelphia case, Primavera said that representatives for the restaurant presented evidence addressing the specific requirements for special exceptions, and testimony to allay  parking and traffic concerns.

According to Bray, the objectors — not the applicants — must demonstrate the detrimental effects to the health, safety and welfare of the proposed usage on their neighborhood.

Primavera characterized the community members’ testimony as “anecdotal,” “emotional” and, thus, irrelevant to zoning matters.

“They protest too much,” said Primavera, paraphrasing Shakespeare.

Specifically citing language in their decision that “the Board was not persuaded that [drive-thru traffic] would not have a detrimental impact on congestion of the public street,” Primavera concluded that the verdict reached by the ZBA was not supported by the community’s testimony.

From the community

Hal Schirmer, attorney for the Central Roxborough Civic Association, suggested that in granting approval for the restaurant, the ZBA issued the desired special exception, but didn’t approve all conditions the applicants sought.

For context, Schirmer produced visual aids indicating that by a sample of Board of Revision of Taxes data, 83 percent of take-out restaurants in similarly zoned areas are “mom-and-pop sandwich shops.”

In contrast, most Wendy’s restaurants in Philadelphia are found in car-dominated areas near large four-lane highways.

Schirmer said that the purpose of the ZBA is ensure projects meet city code requirements. With that, he said, the ZBA has discretion to weigh the evidence put before it and weigh the credibility of that evidence.

“They did their job and said, ‘Yes,'” Schirmer observed. “That’s within the Zoning Board’s discretion.”

At the close of the hearing, Padilla issued no statements from the bench suggesting a chronology for the consideration of the appeal. Attorneys predicted a probable timeline of a month.