ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, June 8, 1996 TAG: 9606090038
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: S.D. HARRINGTON STAFF WRITER
A Virginia Supreme Court decision Friday said Salem City Council was acting reasonably when it denied a rezoning request to allow a Wendy's fast-food restaurant to be built off Virginia 419.
The case resulted from a 1994 decision by Salem City Council that a Wendy's at the northeast corner of Virginia 419 and Midland Road would not be in the best interest of an existing residential neighborhood, nor the future plans of the city to use the land for industry.
Wendy's of Western Virginia Inc. and landowner Gary Wilson then challenged council's decision in Salem Circuit Court, arguing that the area already has become commercialized and it has caused problems with Wilson's selling his property.
Wilson has been trying since 1989 to sell his two single-family homes that lie on the approximately 1-acre site.
But because of increased commercial and industrial development along the busy highway, no one was interested in living there. The houses are being rented, but even prospective tenants have been turned off by the location, Wilson said.
Across from the houses is a bank. To the east is an industrial park, and to the west are a Hardee's fast-food restaurant and an auto parts store.
Wilson said he has had plenty of opportunities to sell to commercial developers. And in 1994, he agreed to sell his property to Wendy's.
They petitioned the city in June 1994 to rezone the land from residential to business use.
The Planning Commission recommended the rezoning. But City Council denied the request after hearing from nearby residents who opposed the restaurant. Council also said the restaurant would not be in line with the industrial site the city wants to see there.
Wendy's appealed to the state courts. In May 1995, Circuit Judge Roy B. Willett ruled that council's decision was "arbitrary, capricious and unreasonable."
Salem appealed that ruling. Both parties argued the case before the state Supreme Court last month.
In his written opinion, Justice A. Christian Compton said that based on past Virginia Supreme Court decisions, a decision by a legislative body such as Salem City Council is reasonable if the issue is "fairly debatable."
"An issue is fairly debatable if, when measured by quantitative and qualitative tests, the evidence offered in support of the opposing views would lead objective and reasonable persons to reach different conclusions," Compton wrote.
Based on that definition, the court ruled that "the city's legislative action in denying the rezoning petition was reasonable, not arbitrary and capricious."
The ruling brings the case to a close; it cannot be appealed further.
But Wilson said he is not satisfied and if he finds another commercial buyer, he will petition for a rezoning again and challenge the decision in court if council denies a rezoning.
"The City of Salem has done an injustice - not only to me, but to the rest of the neighborhood," Wilson said. "Salem wants that land for an industrial park. ... I think they sort of misled the people."
Salem's attorney, Stephen Yost, said he is happy for the residents in that area who opposed the rezoning. And he is glad that the city's comprehensive land-use plan - which labels the property for future industrial use - will be able to be carried out in the future.
"Wendy's is a good corporate citizen in Salem," Yost said. "This is just one where we disagreed."
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