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Lawyers Ask for Carilion Land Case to be Reconsidered?

WDBJ News Channel 7
December 11, 2009
By Keith Humphry

The losing side always wants a "do over."  And that's what the lawyers who lost the Reserve Avenue condemnation case in Roanoke are hoping for.

On Friday they filed a motion to re-open the case, so the judge can consider, what they say is "newly-discovered evidence." This follows reports that Carilion has no plans for the property. 

The property at the center of this eminent domain dispute is 217 Reserve Avenue.  The flooring store "Surfaces" sits on the edge of Carilion's 30-acre Riverside Center.  Eminent domain is the right of the government to take private property, with monetary compensation, without the owner's consent.  This process first became law via the 5th Amendment to the U.S. Constitution.   

Stephanie and Jay Burkholder bought the land ten years ago, mere months before the Roanoke Redevelopment and Housing Authority quietly set about acquiring land for Carilion within a larger 110 acre redevelopment area. 

Unless the judge stops the process, a jury will decide in March how much the city will have to pay the Burkholder's for their three-acre parcel. 

"You know it's about the money, but it's about the principle for me.  I've always been a fighter," said Stephanie Burkholder.

The Roanoke Redevelopment and Housing Authority sued the Burkholders, citing "public use," believing the land would be necessary to complete what started out being called the Carilion Biomedical Institute. 

"You know a true public use; a road, a school or a park or something is a little easier to swallow.  But to condemn it and then resell it to another private entity is," said Jay Burkholder.  "I just don't think they're going to get away with this," said Stephanie.

The taking of private land by the government is bound to come up before the general assembly in the coming session. It was the subject of a bill in 2007.  That time the chief patron was a fellow by the name of Ken Cuccinelli.

"You guys got an interesting situation there," said Cuccinelli.

The Attorney General-elect is well aware of what happened in Roanoke. He says state law didn't go far enough, that it certainly failed to protect the Burkholder's property rights.  He's says it'll take a Constitutional Amendment.

"I, and nobody else, is against the kind of work Carilion is doing.  What we're against is the collusion between the private sector and government to overpower a few individuals using the force of law," said Cuccinelli.

Carilion insists it was never interested in the Burkholder's property.  Like the old flour mill Carilion acquired and demolished, and the scrap yard its in the process of buying, Carilion says it has no plans for the Burkholder's land.

"It's not property we need.  We have all the property we currently need and then some," said Eric Earnhart, spokesperson for Carilion.

Last month, Roanoke Circuit Judge Bill Broadhurst ruled for the housing authority, against the Burkholders, concluding "an unblighted parcel may...be taken as part of a redevelopment project if it is needed to adequately re-develop the area as a whole."  Though the judge found the Burkholder's property "was in fine condition," he concluded his hands were tied. 

State law requires the land owner to prove his property is not a blight on the neighborhood.  The owner also has to show why he should not be forced to give up his/her land for public use.

"I think what the government should have to prove, that what they're doing is a public use," said Cuccinelli.

"It's not our goal to be heavy-handed or go in and take anyone's property," said Earnhart.

The Governor-elect tells News7 he's on-board with the Constitutional Amendment.  And a majority of our viewers polled by SurveyUSA say they favor a Constitutional Amendment.

News7's Keith Humphry lays out the case on News7 at 6.