Fresh & Local
Tyranny and Eminent Domain
Column #48, Published Aug 17th, 2012

There is currently a food revolution going on. Locally grown food is making permanent inroads into the food we eat, and the way we think about food.

While I’m on the subject of tyranny and property rights, this would be a good time to mention that Virginians will be voting on a proposed constitutional amendment on the November ballot. Question 1 proposes amending Virginia’s constitution to protect private property from the abuse of eminent domain laws, and seizing property for private development.

To understand Question 1, you first have to understand the U.S. Supreme Court’s 2005 ‘Kelo’ decision, which was one of the worst court decisions in U.S. history.

The city of New London, Connecticut offered pharmaceutical giant Pfizer tax breaks, and in 1998, Pfizer built a waterfront research facility in New London. The city then decided that they needed to boost property tax receipts by developing the Fort Trumbull neighborhood around the Pfizer facility. They entered into an agreement with a private company, New London Development Corporation (NLDC), to develop 90 acres of the Fort Trumbull neighborhood.

But many of the owners of those 90 acres did not want to sell their property. Eminent domain allows governmental entities to take properties from homeowners for public use, so long as homeowners are granted due process and are justly compensated. But NLDC is a private company and this was for private use. No matter. The city simply claimed that “economic development” is really a public use. The city council transferred its eminent domain power to NLDC, and in October, 2000, NLDC initiated condemnation actions against the holdouts.

The holdouts, led by Susette Kelo, initiated a civil action seeking a declaration that New London's transfer of its eminent domain powers was unconstitutional, and claiming that their rights to equal protection and due process were violated.

The case went all the way to the Supreme Court, which in 2005, in a 5-4 decision, tragically ruled that economic development was a “public use” under the Fifth Amendment to the U.S. Constitution. Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

In her scathing decent, Sandra Day O'Connor wrote, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

CNN quoted the homeowners' lawyer, Scott Bullock, as saying, “Every home, church or corner store" would be vulnerable to being replaced by commercial development under the ruling, "since they produce more tax revenue.” Mr. Bullock should have included “every farm” in his list of the vulnerable.

Few people are aware of how this New London development story ended. When the tax benefits ran out in 2009, Pfizer closed the research facility. NLDC could not get financing for the development, and today the 90 acres is an empty field currently being used as a dump. The city of New London spent nearly $80 million and destroyed a neighborhood for this.

The Virginia Farm Bureau reports that the Kelo decision unleashed a wave of eminent domain takings. In response, since 2005, more than 40 states have passed laws that put limits on takings. Virginia passed a law in 2007 that strictly defines public use, but making it a Virginia constitutional amendment will strengthen it.

Please help protect property rights and vote ‘YES’ on Question 1.

Bryant Osborn and his wife Terry own Corvallis Farms in Culpeper County. His column on fresh and locally grown food runs every Friday. He can be reached at