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AG: Roanoke proceedings 'tyrannical'

Special to Blue Ridge Business Journal
March 22, 2010
By Jim Babb

New attorney general, Ken Cuccinelli, points to Roanoke condemnation proceedings in his attempt to change the Virginia Constitution.

The stage is being set for a constitutional showdown over property rights in Virginia, and outrage over a Roanoke condemnation case has become a rallying cry in the campaign to limit government power to seize privately owned land.

Under the concept of eminent domain, government authorities can take private property for public use, even if the property owner does not want to sell the land. The condemnation process requires owners of the appropriated property to be compensated for their land. The process is governed by Virginia statutes.

Virginia Attorney General Ken Cuccinelli is leading the charge to enshrine private property rights in the Virginia Constitution. Cuccinelli, a conservative Republican, has a long-standing interest in personal property rights and championed legislation throughout his seven years in the Virginia Senate to limit the use of eminent domain.

In his push for constitutional change, Cuccinelli points to Roanoke condemnation proceedings as "the most recent, egregious violation of property rights under color of law."

The attorney general is referring to the condemnation of business property on Reserve Avenue in Roanoke owned by Stephanie and Jay Burkholder. The site is adjacent to the growing Carilion Clinic medical park. The Roanoke Redevelopment and Housing Authority identified the Burkholder property as a site to be acquired in its South Jefferson Redevelopment plan in 2001, and filed condemnation proceedings in June 2007.

A judge ruled in the fall that the condemnation was legal and could proceed, and a trial was held last week to determine how much the housing authority had to pay the Burkholders for the land. [Editor's note: The verdict had not been handed down as of press time. Check bizjournal.com for an update on the trial.]

The Burkholders are resisting the condemnation and say they're willing to appeal the case to the Virginia Supreme Court. But they appear to face an uphill battle because their case is governed by state laws that clear the way for the property acquisition by the housing authority. Before the condemnation, the Burkholders turned down a $1 million offer for their land, saying the housing authority had not offered a fair price.

An uncertain future faces Surfaces Inc., a flooring company that currently operates on the Burkholder property. The business employs about 10 people and supports about 40 independent subcontractors.

Cuccinelli said he is particularly irritated that there appears to be no clear plan for the redevelopment of the Burkholders' land. After the judge's November decision to allow the condemnation to proceed, Carilion officials said they didn't need the Burkholder property but would honor the agreement in place with the city. With the blessing of the Roanoke City Council, the housing authority pressed ahead with the condemnation.

Cuccinelli does not mince words when he speaks of the Roanoke condemnation. "I think it's legally criminal," he said. "It's immoral. I think it's tyrannical. It's horrific."

"I think it's a good sign that the attorney general of Virginia understands the importance of property rights," said Joseph Waldo, the Burkholders' attorney. Waldo said he supports the push for a property rights amendment in the state's constitution. "Property rights go hand in hand with freedom of the press, freedom of speech and freedom of religion," he added.

In an e-mail, housing authority attorney Mark Loftis noted, "The Circuit Court has carefully considered all of the issues, and has repeatedly ruled that the Roanoke Redevelopment and Housing Authority has acted in a legal and proper manner and that it is legally permitted to acquire the property through the use of eminent domain."

Loftis argued it is "contradictory" for the attorney general to decry the housing authority's condemnation proceedings while acknowledging their legality at the same time.

Nevertheless, property rights advocates have seized on the Roanoke condemnation case and argue that constitutional protections are needed to ensure that a similar condemnation never occurs again in Virginia.

Proposed constitutional amendments were introduced in both chambers of the Virginia General Assembly in the 2010 session. Because the process for changing Virginia's Constitution takes several years, legislative debate on the proposals was carried over until next year's session. That, however, is not stopping opposing sides from staking out their positions now.

"Property rights is not in our constitution and it should be," Cuccinelli said. "We have plenty of folks, including Republicans, that want government to be omni-powerful and they want to let local governments run amok over their citizens."

Lobbyist Randy Cook, who represents local governments through the Virginia Municipal League and the Virginia Association of Counties, said Virginia's 2007 condemnation statute provides important protections to property owners and argued that altering the constitution to include private property rights now is premature, unnecessary and risky.

"If you don't get the right language in the constitution, it could bring a lot of progress to a halt," Cook said. "No one likes the idea of an eminent domain proceeding because it's taking someone's property from them. But it was decided long ago that occasionally you have to do things for the greater good, for the benefit of the mass public, and that may not be welcomed by an individual citizen. And that's the essence of eminent domain."