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

201 4 UT 24

I N T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————— U TAH D EPARTMENT OF T RANSPORTATION , Appellee and Plaintiff

,

v.

M ICHAEL M. C ARLSON , J ENNIFER C ARLSON , J OSEPH S COVIL , S ALT L AKE C OUNTY , a political subdivision of the State of Utah, and J OHN D OES 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

——————— J USTICE L EE authored the opinion of the Court, in which

C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE N EHRING , J USTICE P ARRISH , and J UDGE O RME joined.

Having recused herself, J USTICE D URHAM did not participate herein; J UDGE O RME sat.

———————

J USTICE L EE , opinion of the court :
¶1 T his case presents the question w hether the Utah Depar tment of Transportation (UDOT) has the authority to use the po wer of eminent domain to condemn private property in excess of

that needed for a transportation project. The condemnation at i ssue 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 pl anned project. In so doing, UDOT assertedUDOT v. C ARLSON 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 ta king

.

¶2 In the district court and on appeal, the parties’ arguments have focused prim arily on a statutory aspect of the question pr esented

— whether section 113 authorizes UDOT’s condemnation of excess property. Carlson has also proffer ed alternative, constit utional ground s for questioning UDOT’s authority . Specifically, he
advocat es for his interpretation of the statute on constitutional
avoidance grounds , and assert s 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. U TAH C ONST . art. 1, § 22 ; U .S. C ONST . am end. V

.

¶3 The district court ruled in UDOT’s favor, but without e xpressly 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 e ndorsem ent 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 ser ious one. Because we conclude that this issue was properly pr eserved 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 20 10 , t he Utah Department of Transportation announced a project involving the construction of a light rail line and expa nsion of 11400 South in Draper, Utah

. As a first step

, UDOT initia ted 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 J oseph Scovil, tenants of a dwelling on one of the parcels of prope rty, were also named as parties. These individuals were subs equently relocated with UDOT’s assistance, however, and are no

2Cite as: 2014 UT 24
Opinion of the Court

¶6 Together, the parcels consist of approximately fifteen acres. Although only 1.2 acres of the property w ere necessary for the project, UDOT sought to condemn all fifteen acres. UDOT i nvok ed Utah Code section 72

- 5

- 113 in support of its statutory a uthority to “acquire” the full fifteen acres and subsequently to “sell
the remainder or .

. . exchange it for other property needed for highway purposes.” U TAH C ODE § 72

- 5

- 113. It also assert ed an i nterest in avoiding the inconv enience and cost of litigating seve rance damages in connection with a partial taking of pr operty.

¶7 Carlson stipulated that 1.2 acres of his property were ne cessary 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 a cquisition 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 a nd constitutionally improper

.

¶8 UDOT filed a motion for partial summary judgment . Al though the briefing and argument on the motion focused princ ipally 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. S econd, Carlson asserted an outright challenge to the constitutional ity of UDOT’s condemnation of excess proper ty. 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 proper ty by virtue of property taxes owed to the county. The c ounty filed an answer to the co mplaint, stating that it had no objection to the condemnation of the property, and asked to be dismissed as a party in the case. Al though the district court never formal ly dis missed the c ounty, it had no further involvement in the proceedings below or this a ppeal.

3UDOT v. C ARLSON 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 respons e , 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 “nece ssary” for that public use. On the question of the amount of pro perty taken, UDOT further asserted that section 113 granted it di scretionary 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 authoriz ation 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 e xpress terms of its order.

¶11 Carlson filed a petition for interlocutory appeal, which we granted. We review the district court’s summary judgment dec ision 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 reve rsal, asserting both a constitutional avoidance basis for rejecting UDOT’s statutory position and an outright constitutional cha llenge to the statute as ap plied.

¶13 We agree with and uphold the district court’s statutory analysis but remand to allow the court to address Carlson’s co nstitutional challenge in the first instance

. First, w e interpret section 113 as an express grant of legislative authority for UDO T to exe rcise the power of condemnation to take excess property for the purpose of avoiding the cost and inconvenience of litigation over

sev erance damages. Second, because we read the statute as pr escribing an express grant of such authori ty, we find no o ccasion for invoking the canon of constitutional avoidance. And finally,
we reverse and remand to allow the district court to address Car l4Cite as: 2014 UT 24
Opinion of the Court

son’s constitutional challenge to section 113 as applied here, fin ding 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 r esponsibilities of UDOT

. Where “ an entire lot, block, tract of land, or interest or improvement in real property is to b e acquired by the department and the remainder is to be left in a shape or cond ition 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 re mainder or [to] exchange it for other property needed for highway purposes.” U TAH C ODE § 72

- 5

- 1 1 3.

¶15 The statutory question presented concerns the scope of this provision. UDOT interpret s it as an expansive grant of eminent domain power that is dispositive of the statutory question pr esented

. Because it reads “acquire” to encompass the exercise of the power of condemnation, UDOT interprets this provision as an

ex press endorsement of the use of such power in the circumstan ces of this case

— involving the acquisition of excess property for the purpose of avoiding litigation over severance damages . Car lson’s construction is much narrower. He interprets “acquire” to be limited to voluntary acquisition, as by purchase. And he urges,
alternativel y, that UDOT’s expansive view would run afoul of the

restriction s 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 enco mpass 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

. ” W EBSTER ’ S T HIRD N EW
I NTERNATIONAL D ICTIONARY 18 (2002 ) ; see also A MERICAN H ERITAGE
D ICTIONARY OF THE E NGLISH L ANGUAGE 15 (5th ed. 2011) (“ [ t ] o gain possession of”) ; B LACK ’ S L AW D ICTIONARY 26 (9th ed. 2009) ( “to gain possession or con trol of; to get or obtain ” ). That ordinary

5UDOT v. C ARLSON Opinion of the Court

sense of “acquire” admits of no a pparent 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 su ggests that UDOT’s prerogative of acquiring excess property is l imited to voluntar y acquisition s

. 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 substa ntive terms into the text that are not already there”).

¶17 Indeed, Carlson’s limiting construction is further unde rmined by a related provision of the transportation code

, Utah

Code section 72

- 5

- 103 . That provision authorizes UDOT to “ a cquire any real property .

. . by gift, agreement, exchange, purchase,

condemnation , or otherwise” if “ne cessary for . . . state transport ation purposes.” U TAH C ODE § 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. Uni ted States , 409 U.S. 239, 243 (1972) (“The rule of in pari materia

. . . is a reflection of practical experience i n 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 giv en the relevant context of the sta tute.

. . . ”).

¶18 Thus, we see no reasonable way to read section 113’s e ndorsement of UDOT’s power to “acquire” excess property as li mited to voluntary transactions. The ordinary sense of “acquire” is not so limited, and rel ated 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 comprehe nsive catalog of all “public uses” for which the power of eminent
domain is authorized. And because that catalog does not expres sly endorse the condemnation of excess property for the purpose of avoiding litigation over severance damages, Carlson urges us to
deem it to overrid e 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 subo r6Cite as: 2014 UT 24
Opinion of the Court

din ate and subject to the eminent domain statute, and that the la tter 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. U TAH
C ODE § 78B

- 6

- 5 01. But these enumerated public uses are not excl usive. They merely establish a general starting point. That is clear from the face of the eminent domain statute, which not only en umerates authorized public uses but also includes an open

- ended
catchall

— authorizing eminent domain f or “all other public uses authorized by the Legislature.” Id

. § 78B

- 6

- 501( 2 ).

¶21 That conclusion is confirmed, moreover, by the broader

co n text of the legislature’s authorization of eminent domain across a wide range of statutory provisions. Thus, the legislature clearly recognizes its prerogative of sup plementing the public u ses identified in the eminent d omain sta t ute, as it has enacted a range of other prov i sions a uthorizing condemnation for public

uses b eyond those enumerated in the public domain st atute. As with UDOT, t he 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.

, U TAH C ODE § 73

- 23

- 3 (3) (“[T]he Division of Water R esources .

. . may acquire land or any other property right by any lawful means, including emine nt 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 e minent domain, any real property or personal property in conne ction with the acquisition and construction of a communications
network and all related facilities.

. . . ”); id. § 65A

- 11

- 1 (4) (“The d ivision [of Forestry, Fire, and State Lands] may .

. . acquire any a dditional lands, necessary for the control or the prevention of

. . . floods, either by purchase, exchange, lease, condemnation, or gift.”).

3 See, e.g., U TAH C ODE § 17C

- 2

- 601 (1) ( authorizing condemnation by community development renewal agency for removal of

7UDOT v. C ARLSON Opinion of the Court

¶22 For all these reasons, the eminent domain statute ca n not 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 a ttempt to limit the condemnation power set forth in the transport ation code by the terms of the eminent domain statute. And we

therefore affirm the district court’s endorsement of UDOT’s stat utory authority to condemn excess property for transportation

pur poses under Utah Code secti ons 72

- 5

- 103 and

- 113.

B. Constitutional Avoidance

¶23 Th e 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 Robert s Court , 2009 S UP

. C T

. R EV

. 1 81, 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 “l egislate[] 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 pr e-

“blight” and for urban renewal); id . § 72

- 7

- 510 ( authorizing em inent 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, Co nstitutional Avoidance and Anti

Avoidance by the Roberts Court , 2009 S UP

. C T

. R EV

. 1 81, 189 (noting
that som e invocations of the canon seem to “signal[] a Court that is actively engaged in shaping law and policy, not acting modes tly”); United States v. Mar shall , 908 F.2d 1312, 1318 (7th Cir. 1990) (“The canon about avoiding constitutional de cisions

. . . must be used with care, for it is a closer cousin to invalidation than to i nterpretation.”); Judge Henry Friendly, Mr. Justice Frankfurter and

8Cite as: 2014 UT 24
Opinion of the Court

ferred grounds of statutory construction,” thereby avoiding ana ly sis of underlying constitutional issues “unless required to do so.”

Sta te v. Wood , 648 P.2d 71, 82 (Utah 1982). So if one of two pr oposed 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 avo idance canon to even apply, “t he 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 T his is not a proper case for disposition by the canon of
constitutional avoidance. Because the legislature expressly autho rized UDOT’s condemnation of Carlson’s excess property, we are not in a position to repudiate that view of the statute on constit utional avoidance grounds. Mere doubts about the constitutionality of the legislature’s endorsement of UDOT’s condemnation of e xcess property are not enough to override the legislature’s intent. The only viable basis for doing that would be an actual deter m in a tion of unconstitutionality.

C. Carlson’s Constitutional Claim

¶26 That brings us to Carlson’s challenge to the constitutional ity of section 113 as applied in this case. Although Carlson raised this question in his briefs on appeal, UDOT essentially side

s tepped it. It did so on preservation grounds, asserting that Car lson failed to raise it below. Perhaps that response is understand able, as the briefs on appeal and below were focused principally on matters of statutory construction and constitutional avoid ance, and the district court rested its decision on only the statute. But
our careful review of the record persuades us that Carlson’s co nstitutional challenge was adequately preserved.

¶27 In the district court, the briefing and argument on the co nstitutiona l issue were not extensive. But Carlson did invoke the

the Reading of Statutes , in B ENCHMARKS 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 co nstru c tion of the statute i s fairly possible by which the question may be avoided.’” (quoting Crowell v. Benson , 285 U.S. 22, 62 (1932))).

9UDOT v. C ARLSON Opinion of the Court

federal and state Takings Clauses and cited authority for the proposition that “private property cannot be taken by the go vernment

. . . except for purposes which are of a public character.”
Madisonvil le 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] pub lic use of” the excess prope rty cond emned by UDOT. Continuing, counsel explained Car lson’s constitutional challenge as follows:

There ’ s [only] been an effort to avoid litigating about a claim for damages. . . . There’s been no a rticulation of a public use that they intend to put to this pro perty. 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

sta te constitution?” Carlson’s counsel agreed with th at restat ement 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 a ppeal. 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 o n a ppeal. 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’ f ocus 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.

10Cite as: 2014 UT 24
Opinion of the Court

¶31 Carlson’s constitutional claim raises difficult questions without any clear answers in applicable precedent. The core que stion is whet her 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 concl usively resolved by the U.S. Supreme Court’s decision in Kelo v. City of New London , 545 U.S. 469 (2005). Kelo reaffirmed the ind ependent vitality of the “public use” element of the federal Takings
Clause and marked its outer boundaries. See id . at 477

– 78 (explai ning 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 Ke lo d eclared 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 dete rmining what public needs justi fy the use of the takings power, ” i d.

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 t h e “public use” question is even more wide open. In cases involving state takings provisions a pparently 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 t he ground that the purpose or ori ginal 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 r equirement.” 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 pub lic

- use requirement of

. . . the Ohio Constitution,” but stopping short of art iculating 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 co n11UDOT v. C ARLSON 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 de cision after further factual development of the record . A remand is appropriate for that re ason 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 . Becau se the case has proceeded largely on

demning property to transfer it to a private entity is only accept able 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 infr astructure 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 i ndependent public significance,” rather than the interests of the eventual private owner, such as where condemnation and ra zing of a blighted area is itself a public use, not the subsequent rebuil ding 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 a uthorization to utilize its power of eminent domain in achieving such development

, ” but finding the facts of the particular case
di s tinguishable a nd 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 tha t this does not go so far as to encompass the condem ning authority’s “desire for increased revenue” (citation and inte rnal quotation marks omitted) ); Hathcock , 684 N.W.2d at 786 (hol ding that the framers of the Michigan constitution did not intend “public use” to include “incidental benefits to the economy,” re asoning 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 dev elo pment is an important public purpose,” it cannot go so far as to take one business’s property to allow another to expand).

12Cite as: 2014 UT 24
Opinion of the Court

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 viabi lity of UDOT’s takin g 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 subj ect

- matter in regard to which the character of the use is questioned.”); Mayor & City Council of Baltimore City v.

Valsamaki , 916 A.2d 324, 35 1 (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 qu otation marks omitted) ). Thus, we deem it prudent and appropriate to remand to allow for appropriate consideration of the constit utional question presented in the district court.

¶35 Finally, under these circumstances a remand is n ot likely to interfere with the goal of judicial economy. We could decide the legal question now, but we would first need to call for suppl emental briefing, as the question of the proper scope and applic ation of the doctrine of public use was not developed in detail in the briefs on appeal. And after supplemental briefing and iss uance 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 f irst 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 r emand of the entire matter now, to allow the district court to make the legal, factual, and mixed determina tions 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 W e accor dingly 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.

13UDOT v. C ARLSON Opinion of the Court

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14