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Condemnation of couple's Roanoke property to proceed

The Roanoke Times
January 10, 2010
By Sarah Bruyn Jones

Their lawyer had argued that Carilion's lack of interest in the piece of land should change a November ruling to condemn it.

The revelation that Carilion Clinic is not interested in the privately owned property adjacent to its growing medical park won't stop the condemnation of the property.

In a ruling Tuesday, Roanoke Circuit Court Judge William Broadhurst rejected a motion by the lawyer for B&B Holdings LLC and Stephanie and Jay Burkholder to reconsider the condemnation of their Reserve Avenue property.

Joe Waldo, the Burkholders' attorney, argued that the condemnation of the property would create blight instead of eliminating blight. The government is seeking to take the property and use it for economic development.

The Roanoke Redevelopment and Housing Authority's attorney, Mark Loftis, argued that Carilion's lack of interest had no relevance to the issue of determining if the property could be condemned.

Waldo said that by forcing the Burkholders to sell and with no plan in place to develop the land, the property would sit vacant, resulting in a loss of tax revenue and a loss of jobs. Currently the flooring business Surfaces Inc. operates on the site, employs about 10 people and supports about 40 independent subcontractors.

"The property is going to be taken without any useful purpose," Waldo argued during court. Broadhurst sided with the housing authority, noting that the law does not require there to be a specific design in place for the use of a condemned property.

He said even if the new evidence of Carilion's lack of interest presented by B&B was true, it wouldn't have changed his November ruling that the government had the legal authority to condemn the property under Virginia's eminent domain laws.

"Frankly I just don't see it would make any difference," he said during a hearing on the motion.

Stephanie Burkholder said she was disappointed in the judge's decision, but vowed to keep fighting for her property.

"This is not going to weaken our resolve to fight for the right thing in court," she said. "We're going to continue on and hopefully we will prevail."

The Burkholders have said they will take the fight to the Virginia and U.S. supreme courts if they have to.

With the Roanoke court's decision the case will proceed to a three-day jury trial in March to determine how much the housing authority will have to pay the Burkholders for the land.

Prior to filing the condemnation lawsuit the housing authority had offered $1 million for the B&B property, but the Burkholders rejected it, saying it was not a fair price.

The Burkholders have argued that Carilion and the city of Roanoke plotted behind closed doors to take the land for what is now Carilion's Riverside Center and then pressured the housing authority to do their bidding. In its agreement with the city to buy and develop the former industrial area, Carilion had said it would buy the Burkholder and other properties to build its Riverside business park, which now includes the Virginia Tech Carilion School of Medicine.

In his November ruling Broadhurst said the housing authority was right in determining the 3-acre Burkholder property was part of a blighted redevelopment area and therefore could be taken by eminent domain.

While ruling against the Burkholders in November, Broadhurst acknowledged that city officials tried to influence the housing authority.

"This conduct clearly suggests to the court that the city was responding to pressure from Carilion," Broadhurst wrote. "This overreaching, coupled with the city's participation in status meetings [about the project] gives substance" to the claims raised by the Burkholders.

But, he said, ultimately the blight determination was justified.

After Broadhurst's November decision, Carilion officials said that they were never interested in and didn't need the Burkholder property, but would honor the agreement in place with the city. The fallout over Carilion's lack of interest in the property led the city council to enter the fray. In December, the council voted 4-2 to proceed with the condemnation.