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.

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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