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Couple Want Riverside Condemnation Case Revisited

The Editorial Board
August 26, 2010
By GoDanRiver.com

The owners of a Reserve Avenue property have another backer in the fight to keep their land.

A land condemnation dispute at Carilion Clinic's medical park may be headed back to court.

The case already was headed toward a court process to set a price the government must pay to take Jay and Stephanie Burkholder's land. But before that happens, the Burkholders said through their attorney Friday that they want a judge to consider that Carilion does not want their land after all.

Officials with the health care system made such statements after a judge ruled that the Burkholders' land would be awarded to the Roanoke Redevelopment and Housing Authority for a redevelopment project.

Under that ruling, the Burkholders would be forced to sell their land to the housing authority in a condemnation proceeding. It was assumed that Carilion would then buy the land and develop it.

But recently, Carilion spokesman Eric Earnhart said the company has no interest in the property.

Now, Norfolk attorney Joe Waldo, who represents the landowners, said the judge should look at this case again.

His argument is that housing authority's condemnation and expected sale to Carilion of a 3-acre tract of land, presently housing a flooring business on Reserve Avenue, would have an unintended effect.

"Newly discovered evidence, not disclosed by the Roanoke Redevelopment and Housing Authority, will demonstrate that the result of the condemnation and forced sale to Carilion of the Respondent's property will result in the creation of blight, not an elimination of blight; a loss of tax revenue, not an increase in tax revenue; a loss of jobs, not an increase in jobs," he wrote in a motion filed Friday in Roanoke Circuit Court.

Waldo contends that the housing authority should have disclosed that Carilion did not plan to develop the property. Earnhart has said Carilion likely would buy it to honor a contract with the city.

Also, an Arlington-based public interest law firm has joined the fray, saying that it intends to back the Burkholders if the case reaches the Virginia Supreme Court.

The Burkholder property soon will be acquired through eminent domain by the housing authority, which determined years ago that the area was blighted.

Still, Waldo contends that the housing authority should have provided a clear plan for redevelopment of this land.

But the court did not require this kind of plan, said Mark Loftis, a Roanoke attorney, in response to Waldo's motion.

"None of this has anything to do with the basis for the court's opinion or with the ability of the housing authority to take the property through the plan," he said.

Furthermore, the housing authority will not leave the site vacant, Loftis said. Redevelopment eventually will occur.

"It's not being acquired so that we can keep it vacant," he said.

Jay Burkholder would not comment Friday on the court motion. But he said he is "very thrilled" to have an additional legal backer, the Arlington-based Institute for Justice, a firm that follows eminent domain cases.

The firm represented homeowners in the 2005 Kelo v. New London case in the U.S. Supreme Court, which ruled that cities can condemn private property and sell it to private groups for economic development purposes.

Dana Berliner, senior attorney at the Institute for Justice, said her firm contacted Waldo about the Burkholder case.

"The case raises issues that are important not just in Virginia but across the country," she said.

The Burkholder case "is a perfect example of a particular kind of abuse of power destroying someone's business or taking someone's property away for no reason at all."

Staff writer Laurence Hammack contributed to this report.