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Craftily Taken

December 04, 2009
By The Fredericksburg Free-Lance Star

A Roanoke couple get Kelo'ed

How much is "progress" worth? In Roanoke, the answer seems to be that it's worth trampling one of America's foundational principles: property rights.

Samuel Adams wrote, "Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can." Later, William Howard Taft said, "Next to the right of liberty, the right of property is the most important individual right guaranteed by the Constitution and the one which, united with that of personal liberty, has contributed more to the growth of civilization than any other institution established by the human race."

Yet of late, condemners--cities, housing and economic-development authorities, and the like--have been taking liberties with those rights, seizing private property for what they've decided is "the public good." Case in point: a cozy deal among the city of Roanoke, its housing authority, and the Carilion hospital system.

It would be hard to argue that the 100 or so acres Carilion eyed for expansion in the area around its Roanoke hospital was not mostly blighted. Or that the medical park envisioned for it would not be an improvement over the run-down businesses that occupied much of the area in question. But the alliance among the city, its largest employer, and the housing authority created a juggernaut that was hard for private-property owners to stop.

Most sold out, but for Stephanie and Jay Burkholder, fighting the eminent-domain proceedings against their three acres is a matter of principle. "It's not American, and I'm not going to accept it," Mrs. Burkholder said recently after Circuit Judge William Broadhurst ruled against them.

Judge Broadhurst decided that the housing authority properly ruled that most of the area was blighted and on that basis allowed the taking of the Burkholders' property. Legislation passed in 2007 requires that condemned property itself be blighted (which the Burkholders' is not), but the housing authority started the proceeding to take the land the day before that law took effect.

Although the judge unfortunately found against the Burkholders, the ruling was significant in that it acknowledged the backroom wheeling and dealing involving the city, the housing authority, and Carilion. "This conduct clearly suggests to the court that the city was responding to pressure from Carilion," the judge wrote. "This overreaching, coupled with the city's participation in status meetings [about the project] gives substance" to the Burkholders' claims.

Ironically, in a story published Dec. 2 in the Roanoke Times, Carilion officials say they are not interested in the Burkholders' property, now surrounded by clinic buildings. Yet the Roanoke Redevelopment and Housing Authority condemnation continues.

Why? Although sometimes public use (embodied by schools and highways) requires localities to "take" property, the practice of exercising eminent domain strictly for economic development is an abuse of power.

Virginians from James Madison and Thomas Jefferson on down have held property rights in the highest regard. The hanky-panky in Roanoke shows that enhancing their protection in the state constitution is imperative.