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 
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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 R2 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.