              This opinion is subject to revision before final
                   publication in the Pacific Reporter.

                               2014 UT 24

                                 IN THE
      SUPREME COURT OF THE STATE OF UTAH
                            ———————
             UTAH DEPARTMENT OF TRANSPORTATION,
                     Appellee and Plaintiff,
                                    v.
  MICHAEL M. CARLSON, JENNIFER CARLSON, JOSEPH SCOVIL, SALT
  LAKE COUNTY, a political subdivision of the State of Utah, and
                        JOHN DOES I-IV,
                  Appellants and Defendants.
                        ———————
                          No. 20120414
                       Filed June 24, 2014
                        ———————
                   Third District, Salt Lake
            The Honorable Todd M. Shaughnessy
                         No. 100901716
                        ———————
                           Attorneys:
   Sean D. Reyes, Att’y Gen., Nancy L. Kemp, Asst. Att’y Gen.,
                   Salt Lake City, for appellee
 Paul C. Drecksel, Justin P. Matkin, Salt Lake City, for appellants
                            ———————
     JUSTICE LEE authored the opinion of the Court, in which
   CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
            JUSTICE PARRISH, and JUDGE ORME joined.
    Having recused herself, JUSTICE DURHAM did not participate
                    herein; JUDGE ORME sat.
                            ———————

 JUSTICE LEE, opinion of the court:
  ¶1 This case presents the question whether the Utah Depart-
ment of Transportation (UDOT) has the authority to use the pow-
er of eminent domain to condemn private property in excess of
that needed for a transportation project. The condemnation at is-
sue involved a fifteen-acre parcel owned by Michael Carlson.
UDOT condemned the whole parcel despite the fact that it needed
only 1.2 acres for its planned project. In so doing, UDOT asserted
                         UDOT v. CARLSON
                       Opinion of the Court

an interest in avoiding litigation regarding Carlson’s severance
damages, citing Utah Code section 72-5-113 as the basis for its tak-
ing.
  ¶2 In the district court and on appeal, the parties’ arguments
have focused primarily on a statutory aspect of the question pre-
sented—whether section 113 authorizes UDOT’s condemnation of
excess property. Carlson has also proffered alternative, constitu-
tional grounds for questioning UDOT’s authority. Specifically, he
advocates for his interpretation of the statute on constitutional
avoidance grounds, and asserts that in any event UDOT’s taking
fails for lack of a “public use” as required under the Takings
Clause of the Utah or U.S. Constitution. UTAH CONST. art. 1, § 22;
U.S. CONST. amend. V.
  ¶3 The district court ruled in UDOT’s favor, but without ex-
pressly addressing the constitutional question. Thus, it granted
summary judgment for UDOT based on an express agreement
with UDOT’s construction of the statute (but only an implicit en-
dorsement of the constitutionality of the taking).
  ¶4 We reverse and remand. Although we agree with UDOT’s
statutory position and thus affirm that aspect of the district court’s
decision, we reverse and remand for further proceedings on the
constitutional question. That question—whether a taking of excess
property under Utah Code section 72-5-113 fails for lack of a
“public use” under the federal or state Takings Clause—is a seri-
ous one. Because we conclude that this issue was properly pre-
served and should have been addressed expressly by the district
court, we reverse and remand to allow that court to address this
question in the first instance.
                                  I
  ¶5 In 2010, the Utah Department of Transportation announced
a project involving the construction of a light rail line and expan-
sion of 11400 South in Draper, Utah. As a first step, UDOT initiat-
ed an eminent domain action against Michael Carlson, the owner
of parcels of property adjacent to 11400 South. 1

 1  In the original eminent domain action, Jennifer Carlson and Jo-
seph Scovil, tenants of a dwelling on one of the parcels of proper-
ty, were also named as parties. These individuals were subse-
quently relocated with UDOT’s assistance, however, and are no

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                       Opinion of the Court

  ¶6 Together, the parcels consist of approximately fifteen acres.
Although only 1.2 acres of the property were necessary for the
project, UDOT sought to condemn all fifteen acres. UDOT in-
voked Utah Code section 72-5-113 in support of its statutory au-
thority to “acquire” the full fifteen acres and subsequently to “sell
the remainder or . . . exchange it for other property needed for
highway purposes.” UTAH CODE § 72-5-113. It also asserted an in-
terest in avoiding the inconvenience and cost of litigating sever-
ance damages in connection with a partial taking of property.
  ¶7 Carlson stipulated that 1.2 acres of his property were nec-
essary for a public use, but opposed condemnation of the rest of
his land. As to Utah Code section 72-5-113, Carlson insisted that
UDOT’s right to “acquire” property was limited to voluntary ac-
quisition and did not extend to the power of eminent domain. In
addition, Carlson asserted that UDOT’s taking of excess property
unnecessary to the completion of a public project—and aimed
primarily at avoiding litigation over severance damages—was
both statutorily and constitutionally improper.
  ¶8 UDOT filed a motion for partial summary judgment. Alt-
hough the briefing and argument on the motion focused princi-
pally on the question of UDOT’s statutory authority to condemn
excess property, Carlson also raised constitutional concerns. First,
he advocated for his interpretation of section 113 on constitutional
avoidance grounds. Thus, Carlson urged the rejection of UDOT’s
statutory position on the ground that it raised serious questions
under the Takings Clauses of the Utah and U.S. Constitutions. Se-
cond, Carlson asserted an outright challenge to the constitutionali-
ty of UDOT’s condemnation of excess property. Specifically, he
insisted that UDOT had failed to “articulat[e] . . . a public use” for
the excess property in question, asserting that a mere interest in



longer parties to this action. Salt Lake County was also named as
a party, based on its interest in the property by virtue of property
taxes owed to the county. The county filed an answer to the com-
plaint, stating that it had no objection to the condemnation of the
property, and asked to be dismissed as a party in the case. Alt-
hough the district court never formally dismissed the county, it
had no further involvement in the proceedings below or this ap-
peal.

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                        Opinion of the Court

“avoid[ing] litigat[ion] about a claim for damages” is insufficient,
rendering the statute “[]constitutionally infirm” as applied here.
  ¶9 In response, UDOT asserted that the transportation project
in general qualified as a public use, and thus the only remaining
question was whether the amount of property taken was “neces-
sary” for that public use. On the question of the amount of prop-
erty taken, UDOT further asserted that section 113 granted it dis-
cretionary authority to decide whether the excess property was
“necessary” for its project.
  ¶10 The district court entered partial summary judgment for
UDOT. In so doing it expressly endorsed UDOT’s construction of
Utah Code section 72-5-113, holding that the statutory authoriza-
tion for UDOT to “acquire” excess property was not “ambiguous
in this context, and . . . includes condemnation.” In granting
UDOT’s motion, the district court must have rejected Carlson’s
constitutional arguments, but it did not address them in the ex-
press terms of its order.
  ¶11 Carlson filed a petition for interlocutory appeal, which we
granted. We review the district court’s summary judgment deci-
sion de novo. Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.
                                   II
  ¶12 The parties’ briefs on appeal mirror the content and focus
of their summary judgment papers. Thus, the principal focus of
the arguments on appeal concerns the statutory question whether
Utah Code section 72-5-113 authorizes UDOT’s taking of excess
property. Yet Carlson also raises constitutional grounds for rever-
sal, asserting both a constitutional avoidance basis for rejecting
UDOT’s statutory position and an outright constitutional chal-
lenge to the statute as applied.
  ¶13 We agree with and uphold the district court’s statutory
analysis but remand to allow the court to address Carlson’s con-
stitutional challenge in the first instance. First, we interpret section
113 as an express grant of legislative authority for UDOT to exer-
cise the power of condemnation to take excess property for the
purpose of avoiding the cost and inconvenience of litigation over
severance damages. Second, because we read the statute as pre-
scribing an express grant of such authority, we find no occasion
for invoking the canon of constitutional avoidance. And finally,
we reverse and remand to allow the district court to address Carl-

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                        Opinion of the Court

son’s constitutional challenge to section 113 as applied here, find-
ing that challenge to have been properly presented to the district
court but not addressed in its decision.
                     A. UDOT’s Statutory Authority
  ¶14 The transportation code enumerates the powers and re-
sponsibilities of UDOT. Where “an entire lot, block, tract of land,
or interest or improvement in real property is to be acquired by
the department and the remainder is to be left in a shape or condi-
tion of little value to its owner or to give rise to claims or litigation
concerning damages,” the code empowers UDOT to “acquire the
whole of the property and [to] sell the remainder or [to] exchange
it for other property needed for highway purposes.” UTAH CODE
§ 72-5-113.
  ¶15 The statutory question presented concerns the scope of this
provision. UDOT interprets it as an expansive grant of eminent
domain power that is dispositive of the statutory question pre-
sented. Because it reads “acquire” to encompass the exercise of
the power of condemnation, UDOT interprets this provision as an
express endorsement of the use of such power in the circumstanc-
es of this case—involving the acquisition of excess property for
the purpose of avoiding litigation over severance damages. Carl-
son’s construction is much narrower. He interprets “acquire” to
be limited to voluntary acquisition, as by purchase. And he urges,
alternatively, that UDOT’s expansive view would run afoul of the
restrictions on the “public use” grounds for condemnation in the
eminent domain statute, Utah Code section 78B-6-501. We find
Carlson’s construction untenable and thus endorse the reading
advanced by UDOT and adopted by the district court.
  ¶16 First, the plain terms of section 113 leave no room for the
limitation that Carlson attributes to it. The statute expressly
acknowledges UDOT’s power to “acquire” excess property, and
the ordinary sense of “acquire” is easily broad enough to encom-
pass the exercise of the power of eminent domain. To “acquire” is
“to come into possession, control, or power of disposal of often by
some uncertain or unspecified means.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 18 (2002); see also AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE 15 (5th ed. 2011) (“[t]o
gain possession of”); BLACK’S LAW DICTIONARY 26 (9th ed. 2009)
(“to gain possession or control of; to get or obtain”). That ordinary


                                   5
                         UDOT v. CARLSON
                       Opinion of the Court

sense of “acquire” admits of no apparent limitation. UDOT can
gain possession or control of property as much by condemning it
as it can through a voluntary exchange. And nothing on the face
of the statute suggests that UDOT’s prerogative of acquiring excess
property is limited to voluntary acquisitions. See Berrett v. Purser &
Edwards, 876 P.2d 367, 370 (Utah 1994) (noting the “cardinal rule
of statutory construction . . . that courts are not to infer substan-
tive terms into the text that are not already there”).
   ¶17 Indeed, Carlson’s limiting construction is further under-
mined by a related provision of the transportation code, Utah
Code section 72-5-103. That provision authorizes UDOT to “ac-
quire any real property . . . by gift, agreement, exchange, purchase,
condemnation, or otherwise” if “necessary for . . . state transporta-
tion purposes.” UTAH CODE § 72-5-103 (emphasis added). This
provision, when read in pari materia with section 113, confirms
that the transportation code’s use of “acquire” is in line with the
ordinary sense of the word set forth above. See Erlenbaugh v. Unit-
ed States, 409 U.S. 239, 243 (1972) (“The rule of in pari materia
. . . is a reflection of practical experience in the interpretation of
statutes: a legislative body generally uses a particular word with a
consistent meaning in a given context.”); Olsen v. Eagle Mountain
City, 2011 UT 10, ¶ 12, 248 P.3d 465 (“Our task . . . is to determine
the meaning of the text given the relevant context of the stat-
ute. . . .”).
  ¶18 Thus, we see no reasonable way to read section 113’s en-
dorsement of UDOT’s power to “acquire” excess property as lim-
ited to voluntary transactions. The ordinary sense of “acquire” is
not so limited, and related provisions of the transportation code
confirm that the legislature was using the term in this ordinary,
broad sense.
  ¶19 Second, we see no basis for reading section 113 as limited
by the terms of the eminent domain statute, Utah Code section
78B-6-501. Carlson asks us to view this provision as a comprehen-
sive catalog of all “public uses” for which the power of eminent
domain is authorized. And because that catalog does not express-
ly endorse the condemnation of excess property for the purpose of
avoiding litigation over severance damages, Carlson urges us to
deem it to override the endorsement of such a use of the eminent
domain power in section 113 of the transportation code. Carlson’s
position, in other words, is that the transportation code is subor-

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                        Opinion of the Court

dinate and subject to the eminent domain statute, and that the lat-
ter forecloses any endorsement of the taking of excess property set
forth in the former.
  ¶20 We find no room for that construction in the language and
structure of the governing statutes. The eminent domain statute
specifically enumerates a number of public uses for which the
power of condemnation is authorized, including for reservoirs,
bicycle paths, roads, dams, canals, railroads, cemeteries, etc. UTAH
CODE § 78B-6-501. But these enumerated public uses are not exclu-
sive. They merely establish a general starting point. That is clear
from the face of the eminent domain statute, which not only enu-
merates authorized public uses but also includes an open-ended
catchall—authorizing eminent domain for “all other public uses
authorized by the Legislature.” Id. § 78B-6-501(2).
  ¶21 That conclusion is confirmed, moreover, by the broader
context of the legislature’s authorization of eminent domain
across a wide range of statutory provisions. Thus, the legislature
clearly recognizes its prerogative of supplementing the public us-
es identified in the eminent domain statute, as it has enacted a
range of other provisions authorizing condemnation for public
uses beyond those enumerated in the public domain statute. As
with UDOT, the legislature has authorized other state agencies to
exercise broad powers of eminent domain. 2 And throughout the
code, it has authorized condemnation for specific public uses that
are not included in the eminent domain statute. 3

 2    See, e.g., UTAH CODE § 73-23-3(3) (“[T]he Division of Water Re-
sources . . . may acquire land or any other property right by any
lawful means, including eminent domain. . . .”); id. § 63C-7-202(8)
(“The Utah Communications Agency Network shall have the
power to . . . acquire, by gift, grant, purchase, or by exercise of em-
inent domain, any real property or personal property in connec-
tion with the acquisition and construction of a communications
network and all related facilities. . . .”); id. § 65A-11-1(4) (“The di-
vision [of Forestry, Fire, and State Lands] may . . . acquire any ad-
ditional lands, necessary for the control or the prevention of
. . . floods, either by purchase, exchange, lease, condemnation, or
gift.”).
 3See, e.g., UTAH CODE § 17C-2-601(1) (authorizing condemnation
by community development renewal agency for removal of

                                   7
                         UDOT v. CARLSON
                        Opinion of the Court

  ¶22 For all these reasons, the eminent domain statute cannot
properly be understood as the be-all, end-all of authorized “public
uses.” It is only a starting point, subject to supplementation by
further legislative enactments. We accordingly reject Carlson’s at-
tempt to limit the condemnation power set forth in the transporta-
tion code by the terms of the eminent domain statute. And we
therefore affirm the district court’s endorsement of UDOT’s statu-
tory authority to condemn excess property for transportation
purposes under Utah Code sections 72-5-103 and -113.
                    B. Constitutional Avoidance
  ¶23 The canon of constitutional avoidance is an important tool
for identifying and implementing legislative intent. Its premise is
a presumption that the legislature “either prefers not to press the
limits of the Constitution in its statutes, or it prefers a narrowed
(and constitutional) version of its statutes to a statute completely
stricken” by the courts. Richard L. Hasen, Constitutional Avoidance
and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181, 186.
Thus, when a court rejects one of two plausible constructions of a
statute on the ground that it would raise grave doubts as to its
constitutionality, it shows proper respect for the legislature, which
is assumed to “legislate[] in the light of constitutional limitations.”
Rust v. Sullivan, 500 U.S. 173, 191 (1991); see also Clark v. Martinez,
543 U.S. 371, 382 (2005) (justifying the canon as a “means of giving
effect to congressional intent, not of subverting it”).
  ¶24 Yet too-hasty invocation of the canon can easily undermine
legislative intent.4 Where possible, we decide cases “on the pre-

“blight” and for urban renewal); id. § 72-7-510 (authorizing emi-
nent domain for removal of nonconforming outdoor advertising);
id. § 23-21a-3 (“initiating the condemnation and purchase” of two
islands in the Great Salt Lake “for the protection and perpetuation
of the American white pelican”).
 4   See Richard L. Hasen, Constitutional Avoidance and Anti-
Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181, 189 (noting
that some invocations of the canon seem to “signal[] a Court that
is actively engaged in shaping law and policy, not acting modest-
ly”); United States v. Marshall, 908 F.2d 1312, 1318 (7th Cir. 1990)
(“The canon about avoiding constitutional decisions . . . must be
used with care, for it is a closer cousin to invalidation than to in-
terpretation.”); Judge Henry Friendly, Mr. Justice Frankfurter and

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                        Cite as: 2014 UT 24
                       Opinion of the Court

ferred grounds of statutory construction,” thereby avoiding anal-
ysis of underlying constitutional issues “unless required to do so.”
State v. Wood, 648 P.2d 71, 82 (Utah 1982). So if one of two pro-
posed interpretations of a statute can be eliminated as untenable,
we must reject it in favor of the one that more clearly advances the
intent of the legislature. Thus, for the constitutional avoidance
canon to even apply, “the statute must be genuinely susceptible to
two constructions”—a determination that is made “after, and not
before, its complexities are unraveled.” Almendarez-Torres v. United
States, 523 U.S. 224, 238 (1998) (emphasis added). 5
  ¶25 This is not a proper case for disposition by the canon of
constitutional avoidance. Because the legislature expressly author-
ized UDOT’s condemnation of Carlson’s excess property, we are
not in a position to repudiate that view of the statute on constitu-
tional avoidance grounds. Mere doubts about the constitutionality
of the legislature’s endorsement of UDOT’s condemnation of ex-
cess property are not enough to override the legislature’s intent.
The only viable basis for doing that would be an actual determi-
nation of unconstitutionality.
                 C. Carlson’s Constitutional Claim
  ¶26 That brings us to Carlson’s challenge to the constitutionali-
ty of section 113 as applied in this case. Although Carlson raised
this question in his briefs on appeal, UDOT essentially side-
stepped it. It did so on preservation grounds, asserting that Carl-
son failed to raise it below. Perhaps that response is understanda-
ble, as the briefs on appeal and below were focused principally on
matters of statutory construction and constitutional avoidance,
and the district court rested its decision on only the statute. But
our careful review of the record persuades us that Carlson’s con-
stitutional challenge was adequately preserved.
¶27 In the district court, the briefing and argument on the con-
stitutional issue were not extensive. But Carlson did invoke the


the Reading of Statutes, in BENCHMARKS 211 (1967) (explaining how
the canon can “have almost as many dangers as advantages”).
 5  See also Marshall, 908 F.2d at 1318 (“Canons are doubt-
resolvers, useful when the language is ambiguous and ‘a con-
struction of the statute is fairly possible by which the question may
be avoided.’” (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))).

                                 9
                        UDOT v. CARLSON
                       Opinion of the Court

federal and state Takings Clauses and cited authority for the
proposition that “private property cannot be taken by the gov-
ernment . . . except for purposes which are of a public character.”
Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239,
251 (1905). At oral argument on the summary judgment motion,
moreover, counsel for Carlson emphasized his client’s view that
“there has not been identified [a] public use of” the excess proper-
ty condemned by UDOT. Continuing, counsel explained Carl-
son’s constitutional challenge as follows:
      There’s [only] been an effort to avoid litigating
      about a claim for damages. . . . There’s been no ar-
      ticulation of a public use that they intend to put to
      this property. And they just don’t. What they’ve said
      is we can condemn it because section 72-5-113 gives
      us the unbridled authority to do so. And I would
      submit, Your Honor, that interpreted that way, the
      statute would be unconstitutionally infirm.
  ¶28 In response, the district judge confirmed his understanding
of Carlson’s argument, as follows: “[Y]our basic argument is to
the extent the statute grants condemnation authority beyond
what’s reasonably necessary for public use, it’s in violation of the
state constitution?” Carlson’s counsel agreed with that restate-
ment of Carlson’s claim.
  ¶29 We deem Carlson’s argument sufficient to have preserved
the important question of the constitutionality of section 113 as
applied in this case. We could accordingly reach it and resolve the
case on the basis of the briefing and argument before us on ap-
peal. Yet we decline to do so. Instead we reverse and remand to
allow the district court to address the issue in the first instance.
  ¶30 That course of action is preferable for a number of reasons.
First is the absence of any constitutional analysis in the decision
presented for appellate review. A lower court’s analysis is often
helpful to frame and contextualize the issues for the court on ap-
peal. That would appear to be the case here. Although the district
court’s decision to stop short of addressing the constitutional
question was perhaps understandable (in light of the parties’ fo-
cus on statutory questions), that decision was ultimately in error,
and prudence and comity counsel against our getting ahead of the
lower court on an issue of such significance.


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                       Opinion of the Court

  ¶31 Carlson’s constitutional claim raises difficult questions
without any clear answers in applicable precedent. The core ques-
tion is whether UDOT’s condemnation of excess property satisfies
the “public use” element of the federal and state constitutions. At
the federal level, that question has been cued up but not conclu-
sively resolved by the U.S. Supreme Court’s decision in Kelo v.
City of New London, 545 U.S. 469 (2005). Kelo reaffirmed the inde-
pendent vitality of the “public use” element of the federal Takings
Clause and marked its outer boundaries. See id. at 477–78 (explain-
ing that an underlying public purpose is a necessary element of
the analysis, holding that a municipality’s economic development
purpose was sufficient, but noting that a municipality would be
“forbidden from taking . . . land for the purpose of conferring a
private benefit on a particular private party”). But while Kelo de-
clared that purely private takings as well as takings with only a
“mere pretext of a public purpose” were unconstitutional, id. at
478, it ultimately “eschewed rigid formulas” for assessing public
use and instead “afford[ed] legislatures broad latitude in deter-
mining what public needs justify the use of the takings power,” id.
at 483. Our assessment of the case under this federal standard
could certainly benefit from further consideration on remand.
  ¶32 The state-law variant on the “public use” question is even
more wide open. In cases involving state takings provisions ap-
parently comparable to Utah’s, the courts have adopted a wide
range of standards of “public use.” In some states, the courts have
rejected the Kelo standard on the ground that the purpose or orig-
inal meaning of their state Takings Clauses is incompatible with
the notion that “an economic benefit to the government and
community, standing alone, does not satisfy the public-use re-
quirement.” 6 Other state courts have embraced a standard similar


 6  City of Norwood v. Horney, 853 N.E.2d 1115, 1123 (Ohio 2006)
(holding that “although economic factors may be considered in
determining whether private property may be appropriated, the
fact that the appropriation would provide an economic benefit to
the government and community, standing alone, does not satisfy
the public-use requirement of . . . the Ohio Constitution,” but
stopping short of articulating a test for identifying a public use in
contexts that are not purely economic); see also Cnty. of Wayne v.
Hathcock, 684 N.W.2d 765, 783 (Mich. 2004) (holding that con-

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                         UDOT v. CARLSON
                       Opinion of the Court

to Kelo’s as consistent with their state constitutional provisions,7
while still others have adopted a variation on Kelo. 8
  ¶33 We are reluctant to venture a view on this difficult question
without the benefit of a district court decision after further factual
development of the record. A remand is appropriate for that rea-
son alone.
  ¶34 There is also a second basis for a remand, and that is the
lack of any clearly articulated “public use” proffered by UDOT on
the record before us. Because the case has proceeded largely on

demning property to transfer it to a private entity is only accepta-
ble for one of three traditional “public uses,” where the economic
benefit is not merely incidental: (1) “where public necessity of the
extreme sort requires collective action,” such as building infra-
structure like railroads; (2) “where the property remains subject to
public oversight after transfer to a private entity”; and (3) where
the property is selected for condemnation because of “facts of in-
dependent public significance,” rather than the interests of the
eventual private owner, such as where condemnation and razing
of a blighted area is itself a public use, not the subsequent rebuild-
ing by a private entity (internal quotation marks omitted)).
 7  Mayor & City Council of Baltimore City v. Valsamaki, 916 A.2d
324, 353 (Md. 2007) (stating that “economic development [is] a
public purpose and constitutionally provides the City with au-
thorization to utilize its power of eminent domain in achieving
such development,” but finding the facts of the particular case
distinguishable and thus not qualifying as a public use).
 8    R.I. Econ. Dev. Corp. v. The Parking Co., 892 A.2d 87, 104 (R.I.
2006) (broadly defining public purpose as “public in nature [and]
. . . designed to protect the public health, safety, and welfare,” but
holding that this does not go so far as to encompass the condemn-
ing authority’s “desire for increased revenue” (citation and inter-
nal quotation marks omitted)); Hathcock, 684 N.W.2d at 786 (hold-
ing that the framers of the Michigan constitution did not intend
“public use” to include “incidental benefits to the economy,” rea-
soning that “[e]very business . . . contribute[s] in some way to the
commonwealth”); Sw. Ill. Dev. Auth. v. Nat’l City Envtl. L.L.C., 768
N.E.2d 1, 9 (Ill. 2002) (stating that although “economic develop-
ment is an important public purpose,” it cannot go so far as to
take one business’s property to allow another to expand).

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statutory grounds, UDOT appears not to have clearly articulated
its anticipated plans or purposes for the excess property at issue.
Such an articulation could be crucial to an evaluation of the viabil-
ity of UDOT’s taking under the public-use standard ultimately
adopted by the court. See Fallbrook Irrigation Dist. v. Bradley, 164
U.S. 112, 159–60 (1896) (“[W]hat is a public use frequently and
largely depends upon the facts and circumstances surrounding
the particular subject-matter in regard to which the character of
the use is questioned.”); Mayor & City Council of Baltimore City v.
Valsamaki, 916 A.2d 324, 351 (Md. 2007) (holding that eminent
domain was inappropriate even under a broad reading of “public
use” because “the evidence presented below of public use was
sparse”); Sw. Ill. Dev. Auth. v. Nat’l City Envtl. LLC, 768 N.E.2d 1, 8
(Ill. 2002) (“[E]ach case must turn on its own facts.” (internal quo-
tation marks omitted)). Thus, we deem it prudent and appropriate
to remand to allow for appropriate consideration of the constitu-
tional question presented in the district court.
  ¶35 Finally, under these circumstances a remand is not likely to
interfere with the goal of judicial economy. We could decide the
legal question now, but we would first need to call for supple-
mental briefing, as the question of the proper scope and applica-
tion of the doctrine of public use was not developed in detail in
the briefs on appeal. And after supplemental briefing and issu-
ance of an opinion articulating the applicable legal standard, we
still would likely have to remand the case to allow the district
court to apply the standard to the facts in the first instance. At that
point, moreover, another appeal would seem likely. With all that
in mind, the prudent, economical course seems to us to be a re-
mand of the entire matter now, to allow the district court to make
the legal, factual, and mixed determinations necessary to resolve
the public-use question together. That approach, in other words,
seems not only prudent in terms of teeing up the issue completely
for us, but ultimately more efficient to the final resolution of this
important question.
  ¶36 We accordingly reverse and remand to allow the district
court to determine the constitutionality of UDOT’s condemnation
of Carlson’s excess property under section 113. We leave to the
district court’s discretion the question whether and to what extent
to allow the parties to further develop the factual record and to
submit supplemental briefing on remand.


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 UDOT v. CARLSON
Opinion of the Court

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