Eminent Domain: Details Regarding Roanoke’s Kelo Redux

The seamier side of the story often gets left on the cutting-room floor. So the eminent-domain case related here a few days ago -- involving Roanoke's attempt to seize a building owned by a cou A. BARTON
HINKLE
ple of small business owners -- merits revisiting, in order to give a fuller picture.

The case, which looks remarkably like the Kelo v. New London case that united the political left and right in outrage four years ago, pits Roanoke authorities against Jay and Stephanie Burkholder, who own a building in part of the city targeted for redevelopment by Carilion Health Clinic. A lawyer for the city's housing authority says the city wants to condemn the building in order to eradicate blight. This despite the fact that the Burkholders' building was not found to be blighted itself; it merely sat in an area that was called blighted.

But documents related to the redevelopment project tell a rather different story. Consider a May 15, 2000, letter from Roanoke's City Manager to the CEO of Carilion Health System and the director of the Carilion Biomedical Institute (CBI).

Since Carilion announced the creation of the biomedical institute in 1999, wrote city manager Darlene Burcham, "the city of Roanoke has developed and refined the following proposal in response to the needs of CBI, Carilion Health System, technology based businesses, and the city. This proposal is truly exciting because it brings new uses to property that generates inadequate tax revenues located in an underutilized, floodplain area."

The letter goes on to flesh out the proposal, which was subsequently formalized in a performance agreeement between Roanoke and Carilion, with particulars such as these:

"Pursuant to the redevelopment plan, RRHA will acquire and clear all property contained in Areas 1 and 1A within thirty-six (36) months of the adoption of the redevelopment plan by Roanoke City Council. Carilion/CBI agrees to designate, no later than the date of adoption of the redevelopment plan, approximately five (5) acres within Area 1 as the site of its initial improvement . . . ."

"This Initial Site will be conveyed, immediately after clearing, by RRHA to Carilion/CBI for consideration in the amount of fair market value . . . ."

"[I]f Carilion/CBI, or other potential purchasers, from time to time request that specific parcels in Areas 1B, 2 and 4 be acquired, RRHA will immediately proceed to purchase and sell to Carilion/CBI or other potential purchasers said property within twelve (12) months thereafter."

"[S]uch written request by Carilion/CBI must also guarantee, through security acceptable to RRHA, the construction of a facility(ies) thereon within thirty-six (36) months of Carilion/CBI's purchase date."

"Carilion/CBI will prepare conceptual designs for public improvements within the public rights-of-way at their expense. The city will then design, bid, and construct, according to this plan . . . the proposed improvements . . . ."

"In return, the city requires that Carilion/CBI execute a performance agreement . . . providing at a minimum for the following: (1) Carilion/CBI agree that all tax-exempt properties under their control and located in the redevelopment shall pay full real estate taxes. (2) Carilion/CBI shall spend, within 24 months of the purchase date of the Initial Site, at least $10M on new real estate tax revenue producing capital improvements in Area 1 . . . .(5)Carilion/CBI shall (I) cause to be created within 60 months of the purchase of the Initial Site approximately 200 jobs within the redevelopment area . . . ."

Under current state law, localities can't condemn a building under cover of eliminating blight unless the structure is actually blighted (although the condemning authorities themselves would be the ones who get to make that initial determination).

It's not clear how happy local planners across the state are with such post-Kelo reforms. After the ruling a member of the Virginia Municipal League sneered at public sympathy for "the poster child of someone who just doesn't want to sell" his property to make way for a supposedly higher and better use. Attendees at a 2006 Urban Land Institute confab feared measures to rein in eminent-domain abuse would impede "important city-regeneration projects." Some planners evidently feel real life is like the computer game Sim City, and other people's property is theirs to manipulate as they please.

Roanoke plainly wanted to move existing property owners out of the redevelopment area so Carilion could move in. Maybe, in the abstract, that did represent the best interests of the city as a whole. But then -- in the abstract -- grabbing someone off the street and euthanizing him in order to harvest his organs and save five other lives might be in the best interests of society as a whole, too. It's still a pretty raw deal for the one being euthanized.

If we could read the secret history of our enemies, we should find in each man's life sorrow and suffering enough to disarm all hostility. --Henry Wadsworth Longfellow

Contact A. Barton Hinkle at (804) 649-6627 or .