Rita's, Trolley Car Owners Seek Arbitration

Is Rita’s Water Ice fast food? This question, in November and December, is back on the table.

A restrictive covenant that details acceptable uses for storefronts in Chestnut Hill Plaza rules out fast food for the location.

While the CHCA voted that , one neighbor is challenging that decision, and it could mean no Rita’s.

Ken Weinstein, owner of the , is looking to an arbitrator to answer the question. The diner also has a stand serving ice cream and water ice. Weinstein and John Thain, would-be owner of the once and future Rita’s, have agreed to binding arbitration on the matter. But the discussions, according to Thain, are at a standstill.

The Covenant

The restrictive covenant was drafted in 1980 by the CHCA to protect neighbors of the Plaza, which is located at West Mermaid Lane and Germantown Avenue. The document was written in collaboration with those neighbors and their attorneys.

Among other establishments, the document specifically rules out fast food restaurants from becoming a tenant in the space.

At CHCA meetings, including a , the issue was discussed and, with support from neighbors on West Mermaid Lane, approved. But the covenant includes all neighbors within 750 feet of the property line, which includes the Trolley Car Diner.

Weinstein, however, did not learn of the proposed Rita’s until after it was approved.

“I have to say I’m pretty surprised,” Weinstein said. “Even though they knew about the deed restriction, they did not include all neighbors within 750 feet.”

The Challenge

“Even though Chestnut Hill Business Association and Community Association, and [Land Use, Planning and Zoning] said that is not fast food, but is frozen dessert, [Weinstein] wants to challenge it. We offered arbitration, which they did agree to,” Thain said.

Weinstein said that it is within his right, under the covenant, to challenge whether or not Rita’s is fast food, and therefore not permissible. Weinstein reached out to Thain and the associations early in January to argue his case.

“I’ve heard from lots of people that they do not want a Rita’s at that site, for many reasons. One is that it is a chain, and chains suck money out of the neighborhood. We need more independent businesses,” Weinstein said.

Both Thain and Weinstein said that early talks were amicable, and that arbitration was an agreeable solution to the dispute.

Since then, however, the discussions have stalled. Thain said that the two sides cannot agree on a type of arbitration, whether testimony should be given. Weinstein said that Thain’s team have not responded to choosing an arbitrator.

The Deadline

Thain has a deadline in mind, because after a certain point, it is no longer cost-effective to open this spring.

“If it goes on without progress another week or two, frankly, the project will die a natural death,” Thain said.

He added, “I feel I’ve tried. I don’t see the process working. The community needs to know that if this place doesn’t open, it’s not because I didn’t try or the community didn’t want it. It’s because someone was trying to block us through the protective covenant.”

He hopes to move on to the next step this week, so that the process can be completed, and, with a favorable ruling from an arbitrator, Rita’s could still open by mid-May.