Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, May 2, 1995                   TAG: 9505020134
SECTION: VIRGINIA                    PAGE: C-3   EDITION: METRO 
SOURCE: KIMBERLY N. MARTIN STAFF WRITER
DATELINE:                                 LENGTH: Medium

SALEM JUDGE RULES IN WENDY'S FAVOR

He has been renting out the two single-family homes since 1989 hoping someone would rent to own, but thanks to the proximity of Electric Road and its noise, no one did, Wilson said.

So when Wendy's of Western Virginia approached him about buying his land to put a hamburger joint at Midland Road and Electric Road - its back yard would run onto his Highland properties - he thought he had found the answer to his problems.

But then he went to the city, where officials couldn't agree if his idea was viable or not. Monday, a Salem Circuit judge finally ruled in his favor.

After lamenting having to get involved in legislative affairs, Judge Roy B. Willett said Salem City Council's decision not to rezone the parcel of land from residential to commercial use was "arbitrary, capricious and unreasonable."

Salem's Planning Commission had voted 3-2 to recommend the rezoning in July; but after hearing from area residents, Salem City Council unanimously rejected allowing the fast-food haven in what City Attorney Stephen Yost called "a jewel of a neighborhood."

Ed Powers agreed.

He has lived on Highland since 1979 and is afraid that having the fast-food chain across the street would destroy his neighborhood. And Powers hasn't been shy about voicing his concerns. He took them to the Planning Commission, council and court.

"It's going to devalue my property," Powers said Monday. And it will bring "all the problems that goes along with this type of business - trash and traffic."

Yost added that while much of the surrounding area had changed, the neighborhood itself had not.

Edward Natt, attorney for Wendy's, didn't agree.

"Twenty-nine of 37 homes in the neighborhood abut, adjoin or are adjacent to some commercial or industrial development," Natt said.

But Yost argued that although the area's other commercial properties are on the fringes of residents' back yards, the land Wendy's is eyeing would put the restaurant "right next door. This would be a major intrusion into the neighborhood."

Also, in the city's comprehensive plan, Wilson's land is to be zoned industrial in the future, not commercial.

"A comprehensive plan is particularly important in a locality that has no place to grow like Salem," Yost said.

Willett was not convinced.

"The city widened one block of Midland, allowed Hardee's to take up residence right across the street. .. The city has carved out commercial uses all around this property," Willett said.

Yost said he is not sure if council will exercise its right to appeal Willett's decision to the Supreme Court.