76 
another advisory opinion, the Massachusetts court, although osten- 
sibly reaffirming its earlier position that excess purchase was not 
a permissible Government activity, nevertheless, permitted land 
acquisition that clearly would not have been allowed at the turn of the 
century. The court was able to do this by altering its interpretation of 
what acts constitute a public use. In the case before them, the State 
legislature had empowered the Massachusetts Turnpike Authority to 
purchase substantially more land than was needed to build a highway. 
This (excess) land was to be used for garages, service stations, and 
restaurants on the restricted access turnpike. The Court held that the 
land was not “‘excess,”’ that the land was necessary for the operation of 
the turnpike, and that the acquisition was therefore permissible as a 
public purpose.” Interestingly, the court emphasized that its decision 
could have been made without the benefit of the 1911 constitutional 
amendment.* 
This decision permitted the turnpike authority to buy unblighted 
land that was ultimately leased to private businesses such as Howard 
Johnson Restaurants and Citgo Service Stations: In doing this, the 
court took a big step forward in the law relevant to new community 
development. However, the court took pains to limit the magnitude of 
this step when it stated: 
While land cannot ordinarily be taken by eminent domain for the purpose of 
renting and sale * * * this principle is inapplicable where, as here, the property 
rented and sold is thereby devoted to a public purpose.* 
Public use, as a legal concept, has many dimensions. It serves as a 
restrictive force in Government exercise of the powers of eminent 
domain and spending, and, apparently in Massachusetts, the extent 
of this stricture is equal for the exercise of both powers. Moreover, in 
exercising these powers, public use displays another of its dimensions 
and that is the treatment of present uses and future uses. 
But what significance do these statements have for new community 
development? For one thing, acquisition of land, although originally 
limited to actual public uses, has historically been expanded to cases 
where even though the uses are in fact private, the courts have per- 
mitted them by labeling their purposes as public. Furthermore (not- 
withstanding the fact that most of these public purpose cases have been 
confined to urban renewal projects, where the public nature of their 
purpose was determined by the blighted condition of the land) there 
have been some cases (e.g., the Turnpike Authority) where the acquisi- 
tion of unblighted land was allowed to be used for purposes that the 
courts called public even though it can be persuasively argued that they 
were more private uses than public uses. 
Thus, the permissability of acquiring unblighted land for new com- 
munity development will probably depend on whether the purpose 
can be demonstrated to be public. Furthermore, the favorable disposi- 
tion of the new community concept will also depend on a demonstra- 
tion that the proposed development is both specific and necessary. At 
least some degree of advance planning for future use must be shown, 
but the court in Carlor found that— 
It is not necessary that a political subdivision of the State have money on hand, 
plans and specifications prepared and all other preparations necessary for im- 
82 Opinion of the Justices, 113 N.E. 2d 452, 466-468 (1953). 
8 Tbid., 468. 
84 Thid., p. 468, citing the Salisbury case. 
