Last week, after spending $600,000 on legal fees, Jay and Stephanie Burkholder gave up their fight to keep a three-acre commercial property that the Roanoke Redevelopment and Housing Authority wants to condemn. Although the seizure is supposedly aimed at alleviating "blight" and assisting the expansion of the Carilion Clinic, the property, which houses a flooring business, is in perfectly good condition, and the clinic does not even want the land. According to The Roanoke Times, "Carilion made a commitment to buy the property and has said it will honor that deal, but the health care provider does not have a need for the land." So the redevelopment authority, in the name of fighting blight, is seizing the decidedly unblighted site of a profitable business for a purpose that no longer exists, meaning it probably will sit vacant until the authority finds a new use for it. Why? Presumably just to teach the Burkholders (and other potential victims of eminent domain abuse) who is really in charge.
Among other things, notes Richmond Times-Dispatch columnist A. Barton Hinkle, the case shows that requiring "blight" to justify forcible transfers of property from one private owner to another is not much of a protection:
The Burkholders' property lies in an area that a consultant for the city said was blighted, although their own property was not blighted. In 2007, the General Assembly passed a law stipulating that a property must be blighted in order to be condemned for redevelopment purposes. Roanoke's housing authority filed to condemn the Burkholders' property two days before the law took effect.
In his ruling giving the green light to the condemnation, Roanoke Circuit Court Judge William Broadhurst seemed pained by the case. "Obviously desirous of having the [Carilion biomedical complex] located within its borders, the City approached RRHA and requested that it initiate an investigation into whether the area qualified for redevelopment due to blight," he wrote. He noted that the Burkholders' property was "in fine condition." He noted that "meetings were held periodically between representatives of the City, RRHA, Carilion, and some members of the evaluation team while the evaluations and inspections were underway."
Moreover, the Burkholders "produced documentary evidence of correspondence between the City Attorney's office and RRHA clearly suggesting that the City was pressuring RRHA to come up with findings that would correspond with the terms the City had reached with Carilion." All of this "gives substance to [the Burkholders'] accusation that the blight conditions found by RRHA did not exist."
But none of that mattered in the end, because according to the Supreme Court of Virginia, "all presumptions are in favor of the validity of the exercise of municipal power."
The 2007 law was part of the nationwide legislative response to Kelo v. New London, the wildly unpopular 2005 Supreme Court decision endorsing the use of eminent domain for economic redevelopment even in the absence of blight. But as I noted in a column last year, many of the post-Kelo reforms were mostly for show.
Hinkle argues that the presumption in eminent domain cases should favor the property owner. Citing Justice Clarence Thomas, he notes the "odd jurisprudential result" of the courts' habitual deference to the judgments of redevelopment authorities:
Courts would never defer to the other branches of government by letting them dictate what constitutes the constitutional grounds for searching a property, [Thomas] wrote. Yet they now defer almost wholesale when it comes to "the infinitely more intrusive step" of tearing one down.
Ilya Somin explored "The Limits of Anti-Kelo Legislation" in a 2007 Reason article. Bert Gall of the Institute for Justice, which represented the property owners in Kelo, offered a more optmistic view.