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Rita's, Trolley Car Owners Seek Arbitration

Rita's Water Ice is being challenged at the Chestnut Hill Plaza location.

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.

Pete Hoskins February 08, 2012 at 07:43 PM
Enough of the personal attacks and bashing of fine communities like Chestnut Hill and Mt. Airy. Having lived in both over the past 40+ years I see both communities as mutually beneficial in many ways far beyond the many retail establishments we share. We would all do better to have more vibrancy at the bottom of the Hill's plaza, but a seasonal Rita's seems like bad planning to me. Within a few blocks we have gems in Bredenback's and the Trolley Car Diner, each of which have been outstanding year-round providers of family food and dessert. In this case, I think Ken Weinstein has a sound legal argument (using the word "antiquated" is not a good reason to forget valid deed restrictions). More than the legal argument, though, I think that Ken Weinstein deserves to be considered an important part of our common community.
Bob Kaufman February 08, 2012 at 09:46 PM
I am a developer who has partnered with Ken Weinstein for 15 years on various real estate projects. Most of these projects have brought small, independent businesses as tenants to formerly vacant buildings. In turn we have generated community development impact in neighborhoods seeking a stronger local economy – both in our home base of Mount Airy, and in Germantown, East Falls, Bella Vista, and downtown Norristown. The issue of Rita’s coming to Chestnut Hill Plaza boils down to two key issues for me – that a community association protected itself with a restrictive covenant, and that neighborhoods benefit less from bringing in seasonal, chain businesses. First, CHCA protected itself when the center was originally built. According to what I’ve read, a recorded restrictive covenant on the property prohibits “the sale of food or beverages by a fast food chain…”, and Rita’s certainly fits my definition of a fast food chain. Neighborhood groups put a lot of effort into protecting itself when they negotiate restrictive covenants with developers. I can only guess that CHCA felt strongly that fast food chains were a pattern it wanted to avoid as it helped guide business development along lower Germantown Avenue. Over the years we have been asked by a myriad of community groups and municipalities to agree to restrictions – which we negotiate in good faith, and which we maintain for years. No one has ever allowed us to walk away from those restrictions.
Bob Kaufman February 08, 2012 at 09:47 PM
The second half of my comment: Second, Mount Airy and Chestnut Hill don’t need more chains. Instead, we need small businesses that are locally, independently owned. We especially don’t need seasonal businesses that are only open part of the year and are shut down the rest of the time; Rita’s will be a vacant property for 4 months out of the year. Chains pull profits out of our community, by buying goods and services through centralized corporations. Locally owned businesses reinvest in the communities in which they operate. I have never heard or read about the former Rita’s on Stenton Avenue giving back to our community. Locally owned ice cream shops like Trolley Car Diner and Bredenbeck’s Bakery are constantly showing support for our community.
Kate February 08, 2012 at 09:58 PM
I fell in love with Chestnut Hill/Mt Airy for it's charm and small businesses who truly care about their community. 10 years ago Trolley Car Diner was an ugly vacant Roy Rogers. Today its a vibrant family friendly restaurant that gives back to the community (both Mt Airy and Chestnut Hill) in so many ways. When Penn Dot ripped up Germantown Avenue and threatened the livelihood of businesses (both Mt Airy and Chestnut Hill), Ken stood up and organized the fight to keep the businesses alive. I doubt Rita's would have done the same. Not enforcing the deed restriction by allowing Rita's at this location would set a terrible precedent. If Rita's closes, whats going to stop a Roy Rogers or Burger King from following? We need to support local, independently owned businesses such as Trolley Car Diner and Brendenbecks who care about Northwest Philadelphia.
Betsy Teutsch February 09, 2012 at 02:27 PM
Sounds like Rita's is trying to do an end run rather than move forward with the agreed-upon arbitration. Rita's doesn't add much to the neighborhood - they're only open part of the year and are a low end product. And of course they're a chain. I don't understand how the CH assn can classify it any other way.
amy kunkle February 09, 2012 at 03:39 PM
From a small business owner who just almost lost her business, I have to chime in here. I whole heartedly agree that what we need in Mt. Airy and Chestnut Hill are more small, independently owned businesses. We do the most for the community, we know are customers and we need the profits to stay vested. I was just given a second chance by this community and my customers and Ken is one of the people who helped me. Bottom line, we don't need more chains sucking the profits from our small businesses. Local, independent business owners reinvest in the community. Let's help our local businesses stay strong and grow so that our community is strong and stable!
Sheila Ballen February 09, 2012 at 03:45 PM
I am a Philly girl through and through and could never see myself coming out against “wudder” ice, I find myself doing that exact thing. However, this is not about wudder ice, this is about neighborhood and communities deciding for themselves what they want for their community to thrive and prosper. And the neighbors have the deed restriction on their side. I am strong believer and supporter of local businesses. Additionally, I have seen the devastation of chain stores coming to a thriving shopping district only to devastate it years later, ie South Street. Alternatively, I have seen areas thrive under the multitude of small local businesses, ie Italian market. Come see for yourself and take a tour of South Street (empty storefronts) and the Italian market (crowed and thriving stands), and afterwards please enjoy some delicious wudder ice at John’s at 7th and Christian Streets.
Noah February 09, 2012 at 03:47 PM
Why is anybody fighting FOR a chain to go into Chestnut Hill? Last I checked, a lot of CH is the eye-sore that it is because when the isht hit the fan in 2008-09, every chain pulled out of the neighborhood. When a chain like Rita's sees it's margins drop by a half a percent, they pull out, plain and simple. I refuse to see that happen again, let alone fight for it... I prefer a business owner who EVOLVES with the tough times to keep business, like the Diner has done, and is INVOLVED in the community by giving back.
Jane Piecuch February 09, 2012 at 05:25 PM
It is so sad to read folks quibbling about who lives where and in what zip code a business exists. The northwest will only thrive if Chestnut Hill and Mt Airy folks all together live and shop in our shared northwest community and create unique dining and shopping experiences for outsiders to enjoy. Chains don't qualify as unique. If folks want a Rita's water ice or other offering they already know to go to the one on Willow Groove in Wyndmoor. Stop thrashing individuals and personalizing arguments. Its ridiculous and immature. Focus on rules and watching who tries to skirt them.
Elise Rivers February 10, 2012 at 01:59 AM
As the owner of Community Acupuncture of Mt. Airy, my focus has always been on how to be of service to community in multiple ways, not just strictly in the realm of business. I'd like to see more of that attitude come to the area, rather than less. To me, the border between Chestnut Hill and Mt. Airy when it comes to these things is non-existent. I see us as one big neighborhood when it comes to patronizing establishments along Germantown Avenue. Chains detract from charm to be sure, but more importantly, are well known to spend far fewer dollars investing back into the community from which they take their dollars. Ken Weinstein and the Trolley Car have a long history of serving and investing in the community and we are all the better for it. I can personally vouch for Ken's integrity, working side by side with him on the board of the Mt. Airy Business Improvement District. He wants what is best for the community and is willing to work for that, both for profit and as a volunteer. There's not many business leaders I know who have such an established track record in doing so. I think we can do better than Rita's. Selling as their only product artificially flavored and colored sugar water, even if people will buy it, is to my mind, no service at all. It seems to me that selling this kind of food (fast or not) does not indicate regard for the health and welfare of the people of this neighborhood.
Tanisha February 10, 2012 at 01:45 PM
One of the reasons I moved to the Northwest area was because of the strong local business identity. The Northwest community is a reflection of how well a community can do when the dollars are kept in the community. As someone who lives, works, shop and banks in the Northwest area my water ice dollars goes Trolley Car and Wired Bean.
DE Fisher February 10, 2012 at 06:13 PM
Look around the city specifically at locations were Rita's once operated. Ride by Wissahicon and Hunting Park where it was once Rita's then Rocco's and now abandoned. As community and neighbor's we need to learn when people come waving promises and money that have not invested nor live in our community. Trolley Diner has committed to the area for 10yrs with investment and commitment. The tireless energy Ken Wienstien brings to community project's not related to personal income or gain but loyalty to the community where he lives. We should show the same loyalty for the year round service the Diner will continue to provide and not the seasonal Rita's that may not come back after the season ends. Lets not harp on the fast chain issue or the Chestnut Hill/Mt. Airy divide that business person Thain is trying to hide behind. Let's stay loyal to what is right.
Marc Stier February 10, 2012 at 07:41 PM
I was very disappointed to see the Chestnut Hill Community Association, which for years has insisted on following rules of community development to a T, overlook a deed restriction it insisted on in 1980, in supporting a fast-food chain restaurant opening at Chestnut Hill Plaza. The only reason to doubt that Rita’s serves fast food is that, having tasted its product, I’m dubious about calling it “food.”. I was also disappointed to the CHCA fail to follow its own rules for notifying neighbors of its decisions. It is bad policy to override one’s own rules and legal requirements. It’s even worse to support a seasonal, chain fast-food restaurant in one’s community. Good development—the kind of that has made both Chestnut Hill and Mt. Airy so strong—is rooted in locally owned, independent small businesses that take pride in and contribute to its neighbors and that reinvest its profits in the community. I urge the CHCA to reconsider its decision. And failing that, I urge Mr. Thain to settle this through arbitration. And one more word of advice directly to Mr. Thain, who has said “it seems as if Mt. Airy is trying to tell Chestnut Hill how to run their businesses.” Be careful what you say, Mr. Thain. The site at which you want to open is next door to Mt. Airy. Half of the TLA customers were from Mt. Airy. If your business should open, you are going to need those customers. And in Mt. Airy we don’t take kindly to business people who insult us.
Locofoodie February 11, 2012 at 03:42 AM
Local Foodie, Wow, you have a grasp of many details that you choose to interpert only to the benefit of The Trolley Car's attempt to restrict free trade and the CHCA's right to define a covenent they drafted for the benefit of Chestnut Hill and near residedntial neighbors. Stand up and remove your cloak of anonimity and expose yourself and your character. Local Foodie you are obvisiously a partner, family member or Mr. Weinstein himself. The CHCA, original neighbors and landlord have all unimiously supported the Rita's proposal. Why do you feel that it is your responsiblilty to overrule their support in order to "protect" their interests? Mr Weinstein based on your great insight to protect the interest of others ... you may be better suited to resolve far larger issues that plague our community and the world at large.
Locofoodie February 11, 2012 at 04:01 AM
Ms. Reilly, Your comments on building a business communtiy are very well received. As an East Falls resident, we too are striving to meet the challenge of establishing our business corridor. We welcomed Mr Weinstein and he was supported with over $200,000 of public funding. To hear that he is now seeking to invoke restraint to development in a neighboring community is repulsive! To take the funding and support of one community while undermining the efforts of another is reprehensible. Let this be the start of an East Falls boycott to send a message to Mr Weinstein .
Danielle Klotkowski February 11, 2012 at 02:18 PM
While we may all have differing opinions on this matter please let me set the record straight on some facts about Rita's Italian Ice Franchise Company as well as the local franchisees. First, like Iron Hill Brewery, Rita's is a "local chain" based in Trevose , PA, started by Philadelphia firemen. Rita's Italian ice is made on premises, fresh daily. The local franchisee's, one of whom is my husband, currently operate 3 locations in Roxborough, Manayunk, and Wyncote. They employ over 50 local residents and are invloved in the communities in which they operate. Yes, we do deal with some large purveyors as I am sure other CH and Mt Airy businesses do, but daily we purchase fruit and philadelphia soft pretzels from local vendors. The Manayunk location opens for the season this Friday, February 17. I invite you to stop by to see our well maintained store and grounds, sample a product, be welcomed by our friendly customer service and ask any questions you may have regarding our business. Danielle Klotkowski
Mary Gulivindala February 11, 2012 at 02:29 PM
There is a fine line here. I moved here in 2008. Since then there has been a rapid decline of business closing. This is hurting the morale of the community. I see it. I work on the hill and live at the bottom. I understand the desire to sustain a unique local small owned business community that supports the charm of the neighborhood. That is why I choose the part of the city. However, Not everyone can afford high end merchandise. Especially families with children. I live blocks from Bredenbeck's and my kids are there at least 3 a week. It is expensive. Yes, I hear you, just say no. Continuing on now, Chestnut Hill is looking dreary. It needs people. There is enough water ice to go around and I welcome Rita's. Is anyone else vying for the property or is it going to sit there and collect dust like the other unoccupied spaces? Financially there is no compete between the Trolley Car and Bredenbeck's. They have loyal customers and will continue to do just fine. If the true concern is to not allow chain stores on the hill, then close Starbucks. We are living in a complete different economy than five years ago. Both sides are valid but consider the enterprise, Rita's is family friendly and not a tatoo shop, perspective please.
Mary Gulivindala February 11, 2012 at 02:33 PM
Most importantly is the voice of residents. I don't have $50. to join CHCA. Does that mean I don't have a choice in developing the "community", apparently yes, even though I live here, educate my children here, support the owners to the best of my ability here, work here and pay my taxes. It's Rita's Water Ice people. I vote yes to Rita's.
Linda Slodki, President and Cofounder of MAAG February 13, 2012 at 03:26 PM
We were surprised to read the stories about John Train, the franchise owner of Rita’s Water Ice. We can’t speak to the issues of fast food vs. frozen dessert. But we can speak to building community, wanting harmonious and good business practices, and building business that benefits the community. Ken Weinstein has been, and continues to be, a pioneer in this community, throughout the Northwest, Mt. Airy, Germantown, and Chestnut Hill. His vision is one of bringing more visitors and business to our communities while making the Northwest a better place to live. Did he have a right to be invited to the community meeting around Rita’s? We think so. Did he have a right to privacy while continue a binding arbitration meeting with Mr. Train—you bet! When new businesses open in the Northwest, you are living off the community successes that people like Ken Weinstein (and may we add, Weavers Way) have created. Mr. Train, to us, creators of a community center for the arts for the entire Northwest, it doesn’t matter where you live. It’s about doing the right thing.
Lora L February 13, 2012 at 09:07 PM
As a customer of the Trolley Car Diner and being a local business owner, we nned to keep local business alive by keeping local dollars local and spending them at locally owned businesses that care about the community! Say NO to Rita's!
Dexter Thornbrockton February 16, 2012 at 10:02 PM
Stop the petty bickering. Rita's may not be the epicurian answer to the Chestnut Hill elite, The Trolley Car Diner may not be elegant enough for the same elite. We are an all inclusive society, why can't we all just get along. I go to Rita's on WIllow Grove Avenue all the time. I can walk to this location. GO RITA'S !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Charles February 17, 2012 at 02:58 PM
...Because the water ice at the Trolley Car Diner is not really that good. My wife and I are Mt. Airy residents and we live close-by. We like the diner and we walk around the corner to eat there regularly. We are not ice cream people, so we tried the water ice there on several occasions over the past few years. Unfortunately, we have been disappointed each and every time. In comparing the two, we definitely prefer Rita's. It's is a more tasty and satisfying product...and if we don't have to drive over to Roxborough or up to Wyncote...all the better.
Charles February 17, 2012 at 03:02 PM
Wawa Corporation pulled the Wawa store out of the Hill....not the Association or the residents.
Charles February 17, 2012 at 03:04 PM
There is room for both. We live around the corner and prefer Rita's over the water ice the Diner offers. If we don't have to drive over to Roxborough or up to Wyncote...all the better.
Charles February 17, 2012 at 03:14 PM
...and you, Ms. Siodki are the authority on what is right? I am a 40+ year resident of Mt. Airy...and I live around the corner from the Diner. In fact, I patronize it frequently. But, I DON'T think what Ken is doing it is the "right thing."
Charles February 17, 2012 at 03:19 PM
Sounds like he was speaking of individual Mt. Airy business interests Marc....not the residents. I'm not insulted.
Charles February 17, 2012 at 03:32 PM
My wife and I are Mt. Airy residents and we live close-by. We like the diner and we walk around the corner to eat there regularly. We are not ice cream people, so we tried the water ice there on several occasions over the past few years. Unfortunately, we have been disappointed each and every time. In comparing the two offerings, we definitely prefer Rita's. It's is a more tasty and satisfying product...and if we don't have to drive over to Roxborough or up to Wyncote...all the better.
Roxborough Resident February 19, 2012 at 08:37 PM
First of all John Thain lived in Mt. Airy before most of the people posting about this ever heard of Mt. Airy. He was part owner of the old Goat Hollow Tavern and grew up in Mt. Airy. Second, this is not a fight over development this is a fight over who can sell more water ice. Third, if you don't like Rita's water ice, don't eat it.
Sonny Sixkiller March 30, 2012 at 02:23 PM
Weinstein, if he had his way, would monopolize every peice of real estate from Creshim Valley Road to Gowan Ave. Back to the 750 feet! Let's do the math. there is 3 feet in a yard...therefore by simple multiplication we get 250 yards. Ok, now let's say you stand on the goal line at Lincoln Financial field where the Phila Eagles play football. Pretend you put the Trolley Car Diner on that spot. Now walk to the end of the field...100 yards....now walk another 100 yards....now walk another 50 yards....at this spot we'll put the proposed Rita's Water Ice location. At the half way mark, let's put up a bridge/ railway trestle, stone walls, a couple of roads, a flower market, a 3 story building on the corner, and you pretty much have what is in between RITA's Water Ice location in CHESTNUT HILL and the Trolley Car Diner in MT. AIRY. Forrest Gump said it best...."STUPID IS STUPID DOES." Weinstein behavior is unacceptable and he should be exposed by the business recruiter, Ms. Reilly, the CHBA and the CHCA for his tactics. It is very obvious that the man does not play well with others!
Sonny Sixkiller March 30, 2012 at 02:40 PM
Excuse yourself...better yet, step off your high horse and watch what you say. Your rude, crude remarks only accentuate the platform you stand on to utter your nonsensical rhetoric. Mr. Thain hasd the endorsements of all those concerned...the decades old variance was overrdden and approved by the principles involved. Further more, the only "bug on the windshield" was the K. Weinstein of the Trollry Car Diner. Complaining about 750 feet! 250 yards! Two and a half football fields. You cannot see either business from either direction! It is a joke! But fear not my outspoken Mt. Airyite...The next business that goes there might just have the legal resources to tell people like Weinstein to go pound sand. Oh, and if YOU don't like it, stay on your own side of Creshim Valley Road.

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