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Subway restaurant decision reversed after ‘plea for reconsideration’ (Update)

February 15, 2012

The Zoning Board of Adjustment has changed its mind and given the go ahead for a Subway restaurant to be located in a vacant storefront at 4533 Baltimore Ave.

The Board voted on Feb. 1 to approve the Subway, reversing a decision it made last month to deny the application because of concerns of nearby neighbors about additional traffic in the alley behind the proposed location.

The Board’s decision followed a “plea for reconsideration” from the Spruce Hill Community Association and the Subway franchisee’s attorney. In a letter to the Board dated mid January, Barry Grossbach, who heads a committee that considers zoning issues for the SHCA, wrote that the Subway would provide a stable tenant for the storefront property and that the Association was “at a loss” about the previous decision to deny Subway a take-out certificate that would enable it to open.

The Subway would be the first chain restaurant on that section of Baltimore Avenue, where many businesses are locally owned.

“‘Mom and Pop’ businesses are often operating at the margins and while they remain the central and cherished fabric of our neighborhood commerce, we are always fearful that what is here today might be gone tomorrow,” Grossbach wrote. “Subway … promised a degree of stability that any corridor would welcome.”

More than a dozen nearby residents wrote letters to the Board to voice their opposition to the Subway, including state Rep. James Roebuck, who lives on 46th Street.

“I live a block from this location and I too share these concerns about the impact a Subway would have on my community,” he wrote.

Appeals of the decision can be filed until March 2.

63 Comments For This Post

  1. James Says:

    While I have no problem with the Subway… that seems sketchy at first glance.. looking forward to getting more info.

  2. Cynic neighbor Says:

    Looks like Subway finally figured out the right people to bribe…

  3. Daniel Says:

    The last time I purchased a sandwich from subway’ I felt ill.

  4. Kelly Says:

    Do you have any update on the Philly Flavors looking for approval for the spot at 46th and Baltimore? Thanks!

  5. Sean Dorn Says:

    It was ridiculous under the terms of the actual zoning code to deny them the variance. If you want the zoning code to be changed to regulate chains vs. non-chains write to City Council and ask them to rewrite the code.

    Making zoning decisions a contest of who shouts the loudest instead of the universal application of the law ultimately hurts small operators more than chains because most small operators can’t afford lawyers to fight it through the courts.

    A more rational zoning process is always a win for small businesses in the long run.

  6. Sean Dorn Says:

    Also in terms of traffic in the alley why not just put up a chain, or couple of orange cones? Seems like a non-problem with a whole lot of cheap and easy solutions.

  7. Paige Says:

    I’d also like to know of any new info concerning the Philly Flavors at 46th!

  8. James Says:

    @Sean, I actually agree, though I’m disappointed that the re-evaluation seems to have been slipped in under the radar? I would have rather them made the unpopular decision in front of the critics than do something less transparent to the community. I’d love more info on that part one way or the other though before we go screaming corruption, etc.

  9. Jay Says:

    One surefire way to halt the Subway, assuming that it opens, is to not frequent it. I pledge not to go there, and if others in the community did the same, then they would be forced to close. I, too, do not like the intrusion of a chain restaurant on Baltimore Ave. and if we were to educate the community about supporting local businesses instead (and making better food choices) then they wouldn’t have a solid customer base. Vote with your feet, and educate others to do so as well, if the zoning board ruling isn’t satisfactory.

  10. Jay Says:

    Personally, I don’t understand why people choose to eat at fast-food, chain restaurants. Subway might not be as unhealthy to ourselves and our environment as, say, McDonald’s–but it surely isn’t the diet miracle that Jared and the marketing machine claim it is! And I have concerns about the economics and sustainability of such businesses–they don’t treat their workers nearly as well as locally-owned businesses and they purchase and transport bulk-processed, preservative-laden food.

  11. Franklin Says:

    Looking forward to the WalMart at 50th and Baltimore next.

  12. Beth Says:

    I often wonder how many of the Subway haters have ever eaten at a burrito at Chipotle, a sandwich at Bain’s Deli, or dinner at any Stephen Starr restaurant.

  13. Sean Dorn Says:

    You are all going to have to come up with a different word because FWIW, franchises like Subway are indeed “locally owned”. Each franchise owner owns their store. They just sign an agreement to buy their ingredients from corporate and to kick back a certain percentage of what they take in for national marketing and employee benefits.

    Here’s their benefits.
    http://www.job-applications.com/subway-benefits/

    Local franchise owners can and do often donate to local charities and neighborhood activities. Just like mom-and-pops.

    Supporting local business is important because local small businesses buy more of their supplies locally and the money recirculates directly into the local economy but they also often can’t buy the same benefits for their employees often because they don’t have a big enough “pool” to get a decent deal from insurance companies. Or so it has been and will be till Healthcare Reform comes online.

  14. Sean Dorn Says:

    I’d pass on Walmart but I personally would happily take a “chain” Shoprite or “chain” True Value hardware franchise or a “chain” locally owned franchise shoe store or a “chain” Apple store, etc. You get the point.

  15. Sean Dorn Says:

    There are many things people buy which I don’t understand why they like it. That does not give me the right to make it against the law for them to be able to buy it where they would like to. Its generally not OK to enforce your choice on others by taking away their right to choose for themselves.

  16. Pete Stathis Says:

    The issue is that a fast food chain is inappropriate for our neighborhood. This is a quaint little hood, off the beaten tracks of Center City, or the University. This isn’t Route 38, it’s Baltimore Avenue. That shop is gonna be right next to people’s houses. Big, single family, settle-down-and-raise-your-kids houses. We shouldn’t have to wake up every morning and look out our window at a fast food giant’s logos. It’s an invasion and a slap in the face of the people who have settled down here. Local business owners care about the neighborhood in ways that franchisers don’t. I understand that the owners of this franchise don’t even live in the state, let alone our neighborhood or city. I’ve been a part of this neighborhood for 25 years and I’m very sad to see this happening to it.

  17. Sherry W Says:

    I also live on that back alley. If Subway attends to their trash and makes an attempt to encourage customers not to park or stand cars in the alley I have no real objections.

    I agree with Sean, if we didn’t want chains, we should have been proactive about it before. We can’t decide not to obey the codes as they are now. We live on a commercial corridor. If you didn’t want to have businesses in your yard, you moved to the wrong block. This attitude is why we have a nasty empty lot up the street and don’t have a place we can all enjoy like Philly Flavors.

  18. Anon Says:

    Pete Stathis, excellent parody post! You may be the next Bender!

  19. Sean Dorn Says:

    No frankly it is not your perogtive to decide what is “appropriate” for what someone else does with their private property, anymore that it is your perogative to decide what is “appropriate” for someone else to do in their bedroom, or to decide what religion they follow. Those are all fundamental Constitional rights that should not be infringed upon lightly. It is every bit as obnoxious for you to presume to be the absolute arbitrator over someone else’s property rights as it is to presume to be the absolute arbitrator over someone else’s First Amendment rights.

    Zoning is sort out when one person’s right to earn a living runs directly into someone else’s rights. Its not to ask people what the “like”.

    “That does not appeal to me” is a poor excuse for taking a dump on the Constitution.

  20. Schnarf P. Butkiss Says:

    I can’t wait to see the larger than life Spiral Q “footlong” puppet leading the demonstration in front of the store the day it opens as mothers fall to their knees, rending their shirts, gnashing their teeth and screaming “BUT WHAT ABOUT THE CHILDREN?!”
    Meanwhile, their unattended strollers careen off down the alley causing a neighbor kid to crash his bike and skin his knee.

    But what’s this? The Subway manager has emerged. The object of such culinary scorn, such neighborly derision. He’s carrying a yellow and white cup of ice and several napkins. He kneels at the boy’s side sending a gasp of horror through the crowd. He dabs the blood from the boy’s knee and pours the ice into a plastic sandwich bag he’s pulled from his pocket. The kid takes the bag of ice and holds it firmly to his knee and squeaks a timid, “thanks, mister.”

    A cheer roars out from the crowd who now pours into the store and orders meatballs and veggies and tuna galore! The footlong puppet now dances a jig instead of angrily marching.
    And as the protesters cum patrons filter out the door on their way home, each of them taking care to avoid drag racing down the alley, they toss their sandwich wrappers to the breeze. For who could care about pollution on a day like this? Neighbors and merchants coming together to celebrate their commonalities. Do we not all bleed blood? Do we not all need sustenance and a livelihood? We do indeed.

    For the record, I don’t give two shits about Subway, pickle, pies or alleys.

  21. Sim Jonathan Says:

    it is not a contitutional right to own a business or rent a building. Clearly you are not a lawyer. This makes for a hilarious thread because you defend it but a similar buisness with cards and funny shirts would have you out of business.

    The people who oppose this live near this and the people who support it do not live near it. The owner is not a local owner he is not from here. When he is absentee and there is trouble see where you find him.

  22. I. M. Delighted Says:

    Mr. Butkiss, that is a tremendously amazing and apt piece of writing. A not-so-subtle portrait of an area of the city that needs a little perspective. If this much energy went into supporting our neighborhood, I might feel safe actually walking to the Subway. Remember all those muggings? But if it happens south of Baltimore, it doesn’t matter, eh? Just as long as the traffic patterns are ok?

  23. Really??? Says:

    1) you’re all invaders, not just subway. if you weren’t born & raised here just stop already. you pushed out the original residents, gentrified the neighborhood & have the nerve to be angry that gentrification = subway & not just your inane strollers & overpriced cafes. you should all be like sean dorn & embrace your sky-rocketing home values & displacement of poor people (just don’t lie like you actually care about the constitution).

    2) subway actually hires people of color. not the “well spoken” ones who went to your college that you feel comfortable inviting into your house. the west of 52nd st, under-educated, poor ones that actually NEED this type of job. so, get over yourselves, it’s not all about this idyllic faux suburban landscape you wanna see when you look out the window of a house large enough to house 4 families of people with less income than you.

  24. mdschill Says:

    Really???, neighborhoods change, and so do their residents. Those houses were not originally built for poor people, or to house four families. Since they were built there have been a number of shifts of the neighborhood demographic, and poor people have lived in them, and some of them have been converted to multi-family apartments. Times change. Populations shift.

  25. Sean Dorn Says:

    Actually the fifth amendment which starts with guaranteeing the accused to a Grand jury investigation before being put on trial for serious crimes ends with “[no person] shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    The government is not allowed to take or limit people’s ability to use their private property as they fit “without due process of the law”. That means if you want to limit the ability of chains to open, you actually have to pass a law that lays out how that works and what the exact legal mechanisms are for you taking away a landlord’s ability to rent his store to whoever the freak he wants to rent it to. And those rules have to be fairly and universally applied in every case, throughout the city. Not just making up the law in this case because you don’t like X brand of sandwich shop. “Due process of the law” means the rules have to be laid out in advance in the law in advance and not made up willy nilly when a bunch of people yell about it.

    Philadelphia does not have a single provision in its zoning code for limiting chains currently. So if you want to legally resitrct their right to open you have to get City Council to pass it as a law and have that law apply the same in every case. Thats what “due process of the law” means.

    The US Consitituion is wonderful document, really some of you should give it a read sometime.

  26. Charles Says:

    Permit me to be blunter than mdschill in response to “Really???”:
    Spare us your nativist crap. It takes hardly any thought at all to think of myriad examples of “you weren’t born here therefore you don’t belong here” which I suspect you wouldn’t endorse. Obviously gentrification has been as problematic in this neighborhood as anywhere else, but the way to discuss it is not to dismiss anyone who wasn’t born here.

    But then again, I’ve only lived in the neighborhood for twelve years and — shudder — I’m also a foreigner. So you can disregard my opinion.

  27. Real World Says:

    While I am not a fan of Subway, I think they have right to be there given the laws in place. As a small business owner, I would be concerned if the zoning board started opposing projects because they were small or big businesses. Yes, this time people opposed big business, but next time it might be small business. Laws cut both ways. I agree with the decision to grant them the certificate.

  28. Really??? Says:

    mdschill: you’re correct, “Times change. Populations shift.” and with that comes Subways, so the whiners can give it a rest.

    Charles: spare me your crap responses unless you actually want to read my post. here, i’ll parapharse it for you “stop whining about Subway since you’re all new gentrification to this block & therefore brought this store on yourselves.” not “you don’t belong here”. everything and everyone belongs right where their money puts them, including Subway. enjoy! and keep your kids out the damned street 🙂

  29. Charles Says:

    Forgive me for getting hung up on the “you’re all invaders” part. Mea culpa.
    Unless your emoticon is sarcastic, in which case I’m still mad at you.
    That’s a joke.

  30. Sean Dorn Says:

    Maybe he meant all you non-Leni Lenape are invaders because certainly all the houses, the trolley line – those all sprung up spontaneously from the ground and the neighborhood has always had the exact same demographics from when it was built out in the 1890’s. Nor should it ever be allowed to change from what it was 120 years ago.

  31. Sean Dorn Says:

    Psst that was sarcasm.

  32. Sim Jonathan Says:

    No clearly not a lawyer but I am glad you can use Google. Your referenced items have nothing to do with local bodies and citizen rights to establish business. These are opportunities. That means that one can apply and not necessarily be guaranteed the place/position/what has been offered.

    You say you would welcome Shopright but guess what you do not get to decide by your own defense and admission of the “constitution.” and when you are put out of business by chains I guess you will be a martyr for our liberties.

    It is clear that the Baltimore franchise knows how to influence the system and that is okay for you but the neighbors on that block (not you) cannot use their influence without judgement. It is clear that the decision to deny was made in plain sight and was reversed behind closed doors. You should not fear a public that has concerns you should fear a board that makes decisions in private.

  33. SF Says:

    SJ – thanks for your comment…I think you make a good point about the question of transparency in a city with a long history of corruption…

    SHCA – thanks for being the champion of national chains on baltimore ave…I truly appreciate how you’ve gone above and beyond to do the work of Subways lawyers for them…and thanks, most of all, for paving the way for baltimore ave landlords to continue to demand inflated rental prices so that only those ‘locally owned’ (and by local, I mean anywhere along the eastern seaboard apparently) franchises of national chains can afford the rents…

  34. Sean Dorn Says:

    Aaargh the slow response time for comments is killing me.

    I see Jonathan Sims, local architect extroirdinaire, has posted some incredibly clever zinger aimed at me about how I can’t possibly know the due process clause of the Constitution from a hole in the ground. But I can’t read it yet. I’m sure its frightfully witty, whatever it is.

    Anyhoo, nope I certainly can’t claim to have invented the connection between the “due process” clause and zoning law but its hardly the “path untravelled” as its a very, very common issue with zoning laws and zoning decisions being overturned. Courts fairly consistently toss out zoning decisions where the reason a variance is denied has nothing to do an already established public safety or quality of life issue. Its also used to overturn decisions where the same criteria applied to one case have not been applied consistently throughout the municipality.

    Mr. Sim’s comment seems to make reference to using Google and I suggest he spend a quick few minutes perusing the results of a search for “due process” combined with “zoning” and see what comes up.

    Cheers

  35. Sean Dorn Says:

    To be 100% clear, the concerns raised about the alley had (in my opinion) no specific rational connection to Subway vs. any other type of business or existing take-out food businesses already in operation on that same block. You can’t deny them simply because they are a chain because thats not something covered by Philadelphia’s zoning code. Procedural due process. The concerns about the alley are in no rational way specific to a Subway vs. any other type of business or indeed other businesses already in operation on the block. Substantive due process.

    The ZBA reversed because their initial bowing to public pressure over something not in the actual zoning code would not have passed even an initial smell test in court.

    The more that zoning is about rational application of the law, the better it is for small businesses to have a chance in this town. Full stop.

    If having some truck with the law being enforced uniformly and in a constitutional manner is going to make me a “martyr”, I guess I’ll take that risk.

  36. Anon Says:

    Baltimore Avenue is not a curated commercial corridor. If you want to pick what kind of store goes in a particular building, buy the building and be the landlord.

  37. guy Says:

    if the people in the (ANY)neighborhood and community dont want a chain business in their neighborhood, they can and will oppose it by any means necessary. Its an OBVIOUS problem for baltimore avenue and it sickens me that some of you CHOOSE ignorance on this issue. NO we dont want a chain on BALTIMORE, there are lots of small business offering sandwiches in the area … WE DONT NEED IT. STAY OUT !

  38. gal Says:

    guy, I guess you are speaking for all the guys in the community. I say WE NEED IT. COME!

  39. guy Says:

    really? you NEED a subway? its garbage. its non ethical and its just gross. why wouldnt you choose to support local business? sure a local guy would run subway but your supporting a national chain. A percentage of the revenue they receive will go to the national franchise which will help them open more subways and hurt small business everywhere. How is this not a DUH type situation.

  40. Franklin Says:

    I think it’s hilarious that small businesses–or anyone for that matter– support this. Stand on some high and mighty view of rights and oversight committees or what have you. Defend locally owned franchises. Well guess what, it is not locally owned and operated and once it is open there WILL be problems and you WILL NOT get the owner, the landlord, the cops, or the neighborhood association to do anything about it. The fact that SHCA represented the interests of the neighbors in the first meeting and then pleaded against the neighbors in a letter disgusts me. I will be sure to cancel my lifetime membership.

    When South Street started to go commercial, some thought it was good–that it would “clean up” the far ends of the street and improve safety. It did not. There are as many transient businesses and empty storefronts now as there ever were on South Street and the area is no more safe than it was 20 years ago. The rents are through the roof in the adjacent commercial areas as well.

    The same happened in Old City 10 or 15 years ago. The small markets up and left, residents are gone, and crime is through the roof.

    Mark my words when you are cleaning up their trash on the streets, waking to the blaring of trolley horns for (more) double-parked cars, and you feel like moving for the stale smell of fake break being made. Enjoy your dollar stroll foot-longs!

  41. Lisa Marie Says:

    I think we should have a west philly local commenter’s masquerade ball! Something like this:

    *****

    Dress up as your favorite divisive community issue. (limit 1) Sorry, you cannot be both gentrification and racism—please pick one. Anyone who correctly guesses the commenter-posting screen name of another guest will be entered in a drawing for a FREE SQUIRREL!

    Open bar for the first 25 attendees only (bring proof of residence & a hair from your first-born child–line begins at 7am the day before).

    Live entertainment will be provided by musical talent Off-leashed & Unapologetic.

    Proceeds from this event will benefit those unfairly persecuted by the Philadelphia police for illegally engaging in the drug trade.

    Please, no subway sandwiches without proper constitutional documentation.

  42. Amara Says:

    Dibs on dressing up as a lost cat.

  43. Estelle Says:

    I want dibs on Over-Priced-Snobby-Cafe

  44. Paul Says:

    This argument is not only ridiculous, it clearly ignores those of us in the community who received Subway gift cards from their girlfriends’ grandmothers for Christmas and who, up until this point, have had nowhere to use them. Shame on you.

  45. Christina Says:

    Dibs on being a house that angrily faces businesses and business signage but is situated on a street that’s been a commercial corridor for a century (instead of situating itself on a side street).

  46. Tim Says:

    Would anyone like to join me in going as Kenyatta and Marquis Lloyd?

    (Oops. Did I say Marquis’s name?)

  47. E.L. Says:

    I’m slightly disturbed by the decision being reversed behind closed doors. That wasn’t right, regardless of the outcome.

  48. Anonymous Says:

    @Kelly and Paige, the near neighbors to that building have successfully opposed food businesses at that location before, including a Rita’s. I imagine the Philly Flavors looked into, realized what kind of opposition they could expect and how much money they’d have to throw down the drain fighting it and said f that. That’s the danger of driving away a business because “you” (not necessarily you, Kelly and Paige) “don’t like it” – it makes the businesses you DO want less likely to consider the neighborhood.

  49. Sean Dorn Says:

    I wonder what Malcolm X would really think about misusing zoning to block a brand of sandwich shop you don’t like being elevated to the same level of importance as human rights for African-Americans with the “by any means necessary” quip.

    My guess is he’d probably find it a bit offensive.

  50. Sean Dorn Says:

    Having a good argument why you personally would choose not to give X business your money is not a good argument why noone else should be allowed to choose differently. I like chocolate not vanilla icecream, we must stop vanilla from being sold by any means necessary.

  51. guy Says:

    its plain as day.
    big business hurts small business. we want to support small business and not big business.
    small business support the local economy.
    big business wants the quickest and fastest profit possible.
    subway doesnt live in philly or care about philly or spends its money in philly.(i am referring to the franchise owners and majority of the revenue created from their sandwhich shops.)
    one is clearly good, and one is clearly bad.
    not every small business is a good thing to support and not every big business is a bad thing to support. but generally speaking this is how i and i assume all that oppose this feel.

    i dont know where you’re going with the malcom x talk?
    sounds a little off topic?

    if by chocolate you mean a nice local family run business
    and by vanilla you mean greedy big business

    then yes, F vanilla.
    😉

  52. 49er Says:

    guy, have you wondered what big business were before they became big business

  53. guy Says:

    GEE ,I WONDER WHERE THOSE BIG BUSINESS DID GET THEIR START?!!!??
    what great insight. thanks for bringing that to the table. we all benefitted greatly from that striking revelation you dropped on us.

  54. mdschill Says:

    tired of people spelling Malcolm X without the second “l”.

    even the signs for Malcolm X Park are misspelled.

    sigh.

  55. Sean Dorn Says:

    Somebody is still not getting the distinction between “I really hate opera” and “the government should permanantly sew everyone who sings opera’s mouth shut”. Although as they say “It’s as plain as day.”

  56. guy Says:

    its not the same sean. its nothing close to that.
    people are making the decision whether or not they want a type of business there for whatever reason they deem important.

    its not vanilla vs chocolate or i like opera and you dont or any other ridiculous metaphor you are trying to use.

    “if by chocolate you mean a nice local family run business
    and by vanilla you mean greedy big business
    then yes, F vanilla.”

    this is a decision that is made by the majority of the people in the neighborhood for whatever reason they feel is important to them.

    its not a fascist government banning chocolate ice cream from the earth. thats just plain silly!

    i dont like pedicures, do i care that there is a small local nail salon on the corner? no.

    i dont like franchise restaurants, do i care that there could be a subway or mcdonalds next door? yes! for many reasons, there are plenty of local food business here already. its not something the neighborhood needs. on top of plenty of other reasons of why its a bad idea.

    how is this hard to understand?

    hows this for a metaphor?
    if a known pedophile or rapist or racist was looking into moving in next door. wouldnt you like to know that you and your neighbors could come together and say we dont want that. not in our hood.?

    im not saying subway and rapists are the same….but its the same notion. the people can and should come together and have a direct say in what happens around them. by vote, by council meeting,by petition by any means necessary.

  57. Anonymous Says:

    Guy, you came so close to Godwin’s Law. Please try again.

  58. guy Says:

    i had to wiki that one…haha.

  59. Anonymous Says:

    Of course you would have to wiki it, you don’t know that the phrase “By any means necessary” originates from Malcolm X. Wiki that, moron.

  60. guy Says:

    how does this help your viewpoint , how does this discredit my viewpoint?
    you want to have a discussion where one side can sway the other ?or call names and be ignorant?
    is it not acceptable to use the phrase by any means necessary in any other context?
    you want to pick a part my comments to try to discredit my opinion and the opinion of many? or have some sort of discussion?

  61. Bill Greene Says:

    the thing that makes me uneasy about the kind of anti-chain zoning we’re talking about (although i would love there to be no chain stores anywhere on ‘my’ part of Baltimore Ave) is that that kind of language has traditionally been used to keep out ‘the other’, those that are not like us. i realize that Subway is far from being a persecuted minority, but any kind of anti-chain law would have to figure out a way to not open the door to anti-whoever-we-don’t-like laws.

  62. Sean Dorn Says:

    Well Bill Greene you have hit a gold mine there.

    The argument that bending zoning law should be “the rules are whatever the most number of people yelling on the day of the hearing” are the exact same ones that the islamaphobes opposed to the so-called “Ground Zero mosque” put forward. Its the same type of arguments that exclusive suburbs put up to arbitrarily block applications they deem as attracting “the wrong kind of element”, read race. Whenever you say “not in my neighborhood” but are unwilling to address the subject as a city wide issue reliant on the uniform application of the law, you are inherently being elitist.

    If you don’t address the issue in terms of fair city-wide laws but in terms of “I don’t care where, just not in neighborhood, just because I said so” you are precisely opening the door for arbitrary zoning decisions that are all about trying to keep “those kind of people out of my neighborhood.”

  63. Mister Brownstone Says:

    $5 footlongs all day long!!!!

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