65 
desirable place to build them is in the urbanizing areas of the Com- 
monwealth, where there currently exists such enormous growth. 
Moreover, the appropriate sites within these urbanizing areas are 
primarily vacant and unblighted. Thus, for the government to acquire 
the fee, or parts of the fee, for the desirable land, its actions must be 
predicated on something other than elimination of blight. 
There has been no case in Massachusetts where vacant, unblighted 
land has been acquired by government to be used for an urban de- 
velopment project like a new community. There have been, however, 
Massachusetts cases where vacant unblighted land has been acquired 
for actual public uses like parks,” schools,** hospitals, and roads. 
The land in these “actual public use’ cases is reserved for certain 
components which, although certainly necessary for any new com- 
munity, are not by themselves sufficient for a new community. That 
is to say, there are other land uses which (although perhaps not as 
vital to a new community as certain ‘actual public uses”) are none- 
theless necessary for successful development. This “less vital list’ 
includes such things as housing, offices, stores, and factories: In short, 
all of those things traditionally provided by the private sector. 
Thus, the prospects for new community development on unblighted 
vacant land do not, at this point in the analysis, loom too large. 
However, before submitting to the dicta of the cases cited above, it 
might be helpful to look briefly at the laws from the early 1930’s, the 
period which witnessed the genesis of judicial doctrines relating 
“Dublic purpose” to blighted land. 
The question of blight 
The first use of eminent domain to effect an end which was not 
literally a use by the public came with the early public ho sng pro- 
erams. In 1936, the New York Court of Appeals upheld a taking of 
land by the State for construction of low-income public housing. The 
court stated that the basic purpose of government is to protect the 
health, safety, and general welfare of the public; and that when a 
condition arises which threatens this, it is largely immaterial which of 
the powers government uses to effect a remedy, as long as the power is 
reasonably employed and fairly calculated to correct the evil.*® 
Ironically, imitial Federal efforts to take land for Federal low 
income housing encountered less success in the courts. In an early 
case, it was held that the Federal Government could not take land for 
slum clearance and construction of low imcome housing under the 
housing program of the National Industrial Recovery Act.*® This 
resulted in State condemnation of land for development of federally 
aided low income housing under the housing acts, which was upheld. 
While the purpose of the early renewal programs was to replace 
slums with low income housing, slum clearance itself was upheld as a 
sufficient public purpose even though the ultimate use was not low 
income housing or housing at all, but commercial facilities.” 
31 Wright v. Walcott, 238 Mass. 432, 131 NE 291 (1921). 
38 Byfield v. City of Newton, 247 Mass. 46, 141 NE 658 (1923). 
38 New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E. 2d 153 (1936). For a discussion of the 
evolution of public purpose doctrine in light of urban renewal efforts, see Morris, ““The Quiet Legal Revolu- 
tion: Eminent Domain and Urban Redevelopment,” 52 A.B.A.J. 355 (1966). 
40 United States vy. Certain Lands in the City of Louisville, 78 F. 2d. 684 (6th Cir. 1935). 
41 Oklahoma City vy. Sander, 94 F. 2d. 323 (10th Cir. 1938). 
42 Bowker v. City of Worcester, 334 Mass. 422, 186 N.E, 2d. 208 (1956). 
