City Council v. Wendy's of Western Virginia, Inc.

Present: All the Justices

CITY COUNCIL OF THE
CITY OF SALEM
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 951493 June 7, 1996

WENDY'S OF WESTERN VIRGINIA,
INC., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Roy B. Willett, Judge

In this land use controversy, we consider whether the trial court

erred in ruling that a local governing body's denial of a rezoning

petition was arbitrary and capricious.
The pertinent facts are undisputed. The subject property is

1.048 acres of land in the City of Salem presently carrying a R-2

(single family, residential) zoning classification. The property is

situated at the northeast corner of the intersection of Route 419

(Electric Road), a north-south, multi-lane street divided by a median,

and Midland Road, a two-lane, east-west street.

The property is comprised of two parcels, each improved with

single-family dwellings, 1139 Highland Road and 1133 Highland Road,

respectively. Highland Road is a north-south residential street

parallel to Route 419 intersecting Midland Road at a point

approximately 300 feet east of Route 419.

Access to the subject property is from Midland Road to 1139 and

from Highland Road to 1133. The property slopes from Highland Road

"as it goes from east to west" toward Route 419 so that "when it gets

to 419 it's from 12 to 15 feet below grade." There is no access to

the property from Route 419.

In June 1994, appellee Wendy's of Western Virginia, Inc., filed
with the City of Salem a petition seeking rezoning of the property for

use as a restaurant. Asserting it has an option to purchase the

property from the owner, appellee Gary Andrew Wilson, Wendy's sought a

change to a B-3 (business) classification.

Following a public hearing, the City's planning commission

recommended approval of Wendy's request by a 3-2 vote. Subsequently,

following another public hearing, Salem's city council unanimously

denied the request.
In August 1994, Wendy's and Wilson (collectively, the owner)

filed the present motion for a declaratory judgment against appellant

City Council of the City of Salem (the City) seeking a declaration

that the City's action was invalid. The owner asserted the City's

denial was arbitrary, capricious, and unlawful because the existing R-

2 zoning designation for the property is an unreasonable

classification and the proposed B-3 classification is reasonable.

Further, the owner asserted there is no valid basis in law for denial

of the rezoning request, the proposed use complies with the City's

long range land use plan, and the proposed use is consistent with

other rezonings in the area in recent years. Generally denying the

allegations, the City responded that the owner is not entitled to the

relief sought.

Following an ore tenus hearing at which the litigants presented

testimonial and documentary evidence, the trial court ruled in favor

of the owner. In a May 1995 final order, the court declared the

City's denial of the rezoning petition "arbitrary and capricious in

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that the evidence presented established that the existing R-2 zoning

is unreasonable and that the proposed zoning to B-3 is reasonable

. . . and that there was no land use reason to deny the rezoning

request." We awarded the City this appeal.

Initially, we shall review the applicable principles of law. The

action of city council denying the owner's petition was legislative

action, presumed to be reasonable. The presumption, while not

conclusive, stands until surmounted by evidence that the legislative

action was unreasonable. The litigant attacking the legislative act

has the burden to establish unreasonableness. Board of Supervisors of

Fairfax County v. Pyles, 224 Va. 629, 637, 300 S.E.2d 79, 84 (1983).

Legislative action is reasonable if the matter in 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. Id. at 637-38, 300 S.E.2d at 84.

The following test is employed to determine whether the

presumption of reasonableness should stand or fail. "If the

presumptive reasonableness of zoning action is challenged by probative

evidence of unreasonableness, the challenge must be met by evidence of

reasonableness. If such evidence of reasonableness is sufficient to

make the issue fairly debatable, the legislative action must be

sustained; if not, the presumption is defeated by the evidence of

unreasonableness and the legislative act cannot be sustained." Board
of Supervisors of Fairfax County v. Jackson, 221 Va. 328, 333, 269

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S.E.2d 381, 385 (1980) (citing Board of Supervisors of Fairfax County

v. Snell Constr. Corp., 214 Va. 655, 659, 202 S.E.2d 889, 893 (1974)).

Upon appellate review of a trial court's ruling that the refusal

of a rezoning request was arbitrary and capricious, we accord the

court's finding, as in other cases, a presumption of correctness. But

we also give full credit to the presumption of validity of the

challenged legislative action and then, meshing the presumptions, we

examine the record to determine whether the evidence sustains the

court's finding. Pyles, 224 Va. at 638, 300 S.E.2d at 84.

The dispositive question in the present appeal is whether the

reasonableness of the existing zoning on the subject property is

fairly debatable. We hold that it is, and reverse.

We will assume the owner presented probative evidence of the

reasonableness of the proposed B-3 zoning and of the unreasonableness

of the existing R-2 zoning. The property, used for years as rental

property, is located in a 40-acre residential subdivision known as

Fairfield. The subdivision, north of Midland Road along Highland Road

and Easton Road, farther to the east, consists of 37 single-family

dwellings and one apartment complex. All the residential dwelling

parcels are zoned R-2, but the City's Comprehensive Plan, adopted in

1993, on its Future Land Use map, calls for the residential area on

Highland and Easton Roads to become industrial.

The owner presented evidence of the considerable commercial and

industrial development in the area surrounding Fairfield beginning in

1985 and continuing to the present time. Since 1989, no one has

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expressed interest in buying the subject property for residential

purposes, although several parties have considered purchasing it for

commercial uses. The City recently widened Midland Road within the

right of way so that the travelled portion is 10-12 feet from the side

of the dwelling at 1139 Highland Road. A former lessee testified

about the noise and vibration created there by trucks travelling on

Midland Road to and from a large, nearby industrial park established

by the City east of Fairfield. Wilson, the fee owner of the subject

property, opined that "the best use for the property is commercial

because this entire area has just become dormant."
The owner also presented evidence showing the various commercial

and industrial uses existing at, as well as in the vicinity of, the

Route 419-Midland Road intersection, which is controlled by traffic

signals. On the southeast quadrant of the intersection is a bank

branch office. On the southwest quadrant is a motor vehicle parts

retail store and warehouse. On the northwest quadrant is a

restaurant.

In the vicinity of the intersection to the southeast is located

the Intervale Industrial Park, with "large industrial uses." Some

distance to the northwest from the intersection is a tire plant.

Farther north of the intersection on the west side of Route 419 is an

equipment maintenance and sales facility. Almost directly across from

that facility on the east side of Route 419 in Fairfield is an office

building, which "backs up to the homes" on Highland Road. Farther

north of the office building on the east side of Route 419 is a

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convenience market and gasoline service station situated within 50 to

60 feet of a residential dwelling on Highland Road.

Through testimony of an expert witness in planning and zoning,

the owner showed that the subject property "is not suitable for

residential use." Elaborating, the expert said the Highland Road

neighborhood "has been stressed by outside development taking place on

its periphery." He testified the "area is caught between two

competing uses, industrial and commercial" that "will make it

unattractive for residential use." The expert concluded that the

owner's proposed use would be "an appropriate use of that property if

the property were vacant."
Responding to the owner's evidence of unreasonableness, the City

offered evidence that the existing zoning classification is

reasonable. This evidence principally came from two expert witnesses,

one being the City's director of planning and development.

The City showed that the single-family dwellings on Highland and

Easton Roads comprise "a viable residential community." One expert

said that "it's old, it's beautiful, tree lined, well kept, nice, it's

quiet, it seems like a little secret pocket of residential that very

few people know about." The other expert described the area:
"The housing stock is quite traditional for the 1950s
to early sixties time frame, there are mature trees on site,
the integrity of the housing stock is good, the appearance
of the yards is good, the sense and feel that one gets when
traveling by car, the sense that one gets and feels when
standing along Highland Road after you turn off Midland and
only going just a lot or two is that one is in a residential
area.

"The area does not appear to be suffering from any
stress relative to dilapidated housing, does not appear to

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 be suffering from a preponderance of for sale or rent signs.
There does not appear to be a lack of pride in the home
ownership, the properties are improved by way of painting
and appearance, again all indications it strikes me . . .
that this is a residential area of some standing in terms of
length of time, and an area that has obviously maintained
its integrity in both appearance and value."

More than 34 residents of the area signed a petition against

rezoning the subject property, a majority having lived there for over

15 years with eight having lived there for over 40 years. Disputing

the owner's evidence that the residential area is "stressed," one

expert pointed out that the "houses are all occupied, they have always

been occupied, they sell, they sell for higher than they are

appraised, [and] the property values have continued to go up despite

419." The dwellings on the subject property currently produce monthly

rentals of $485.00 and $495.00, with the owner receiving more rent in

1995 than was received in 1994 on 1139 Highland Road.
The City's evidence showed that many of the commercial uses in

the vicinity of the subject property are under a "RB" zoning

classification, "the least intensive type commercial use." Noting

that the City is "out of land" that can be developed for industrial

use, the City's director of planning and development stated that

"eventually," but not "at this very moment," the Fairfield area will

become "an industrial area, not a commercial area." This fact is

recognized in the City's comprehensive plan, the witness pointed out.

He also opined that any transition from residential to industrial

uses should be accomplished by a rezoning directly from R-2 to an

industrial classification rather than "going through a commercial type

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development" by rezoning the area "one piece at a time."

The City's experts both opined that the present R-2 zoning is

reasonable. The rezoning request is not conditional and, according to

the evidence, if the request is granted any other

B-3 use "as set forth in the zoning ordinance could go there." Thus,

the experts predicted, if the subject property is rezoned B-3 "to be

converted to Wendy's, a drive thru, fast-food establishment, . . . it

would put an inordinate pressure on the adjoining properties along

Highland and . . . could lead to a domino-type effect or a mushroom

effect whereby there would be other requests to go commercial," which

would be "very difficult to deny." Such a result would interfere with

the City's "enviable" practice of "piecing together industrial

properties" and developing them as a unit.
The foregoing recitation of the pertinent facts points plainly to

the disposition of this appeal. Clearly, the owner's challenge to the

City's legislative action has been met by evidence of reasonableness

of the existing zoning sufficient to make the issue fairly debatable.

In denying the rezoning request, the City properly endeavored to

protect an existing, established, and stable residential neighborhood.

In addition, the City elected to adhere to the standards of its

comprehensive plan, a matter within the council's discretion. See

Board of Supervisors of Loudoun County v. Lerner, 221 Va. 30, 37, 267

S.E.2d 100, 104 (1980).

In our view, the evidence fails to support the trial court's

ruling. On the contrary, we are of opinion that the evidence offered

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in support of the parties' opposing views would lead objective and

reasonable persons to reach different conclusions. Thus, we conclude

that the City's legislative action in denying the rezoning petition

was reasonable, not arbitrary and capricious.

Furthermore, it will be remembered we have assumed the proposed

B-3 zoning to be reasonable. But when, as here, the existing zoning

and the proposed zoning are both appropriate for the property in

question, the legislative body has the prerogative to choose the

applicable classification, not the property owner or the courts.

Jackson, 221 Va. at 335, 269 S.E.2d at 386. Accord County Bd. of

Arlington County v. Bratic, 237 Va. 221, 229, 377 S.E.2d 368, 372

(1989).

It thus follows that the trial court usurped the legislative

prerogative in annulling the Salem city council's action.

Accordingly, the judgment of the trial court will be reversed, and

final judgment will be entered here dismissing the motion for a

declaratory judgment.
Reversed and final judgment.

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