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question. It would require the judiciary to take an additional step 
beyond the limits of its past decisions.°** 
New communities might be closely related to slum clearance projects 
or to elimination of substandard dwellings with replacement in the 
new community, but this would impose severe limitations on new 
community development. . 
The court has, apparently, continued to find that the function of 
the public purpose doctrine is to protect against undue governmental 
redistribution of property among individuals This would seem to im- 
ply that free market forces are the only determinate of distribution. 
The function of the doctrine could, however, be conceived of as allow- 
ing government to effect a more efficient allocation of resources than 
can be done by free market forces. This is the effect of welfare pro- 
grams, taxation, and of other government regulatory activities. In 
part, the justification is that the existence of slums, poverty, and other 
urban ills causes harm to the public welfare and the public is entitled 
not only to eliminate existing harm, but to prevent harm from occur- 
ring. Then, government ought to be able to employ the means neces- 
sary to accomplish these public purposes. 
The use of eminent domain to acquire land for new community 
development could greatly facilitate and encourage private developers. 
It could do this at relatively little cost to the public. The very existence 
of the possibility of ultimate condemnation can mitigate the proba- 
bility of its actual employment. Those who know that they will not be 
able to hold out forever are more likely to arrive at a reasonable price 
through negotiation. This alone could substantially reduce the 
extensive lead time period which is such a costly factor in the present 
financial equation. 
It could also provide an element of certainty to the developer when 
new community development is otherwise feasible. Under present 
conditions there is really no assurance at all that a developer will be 
able to acquire the sizable tract of land required. There is a very 
real risk that after he has acquired initial parcels of land his ‘‘secret 
will be out’’ (that he must acquire a given number of acres) and 
prices will rise.» Even if he decides to proceed with development at a 
reduced scale, adjoining landowners would reap the appreciated 
values largely due to the developers own investment of resources. 
However, if there are holdouts or if prices have risen exorbitantly 
high and if the land is not very close to urban fringes, so as to be 
susceptible to more traditional subdivision development, the developer 
stands to take a substantial loss, because even if the resale price is 
the same, the cost of carrying charges will be lost. This may provide 
a deterrent to one of the more romantic forms of new community—the 
independent new town. 
The State could, however, condemn land which could not be 
acquired through purchase and resell or lease it to developers. As a 
matter of public policy, the State should attach conditions to its use: 
for example, conditions which insure that a fair amount of low income 
housing be provided in all stages of development. 
54 See Morgan, “Certain Legal Problems Suggested by the Creation of New Towns in Massachusetts,’” 
Monograph published by Mass. Dept. of Community Affairs (1969). ; 
55 Typically, new community land use regulations require a minimum number of contigu- 
ous acres under unified ownership or control before development will be permitted. See 
Howard County, Md. zoning regulations. sec. 17. » aah 
