The opinion
Smith, J. (concurring).
I concur in the result on constraint of Matter of Goldstein v New York State Urban Dev. Corp. ( 13 NY3d 511 [2009]). The finding of “blight” in this case seems to me strained and pretextual, but it is no more so than the comparable finding in Goldstein. Accepting Goldstein as I must, I agree in substance with all but section VI of the majority opinion.
Section VI is unnecessary to the result we reach. Once we have decided that the removal of urban blight provides a sufficient constitutional basis for the taking, and that the project is a “land use improvement project” within the meaning of the Urban Development Corporation (UDC) Act (L 1968, ch 174, § 1, as amended), there is no reason to consider UDC’s alternative argument that the taking may also be justified as one for a “civic project.” The majority gratuitously decides to reach this question—and then confuses matters by addressing only the statutory, not the constitutional, aspect of Empire State Development Corporation’s alternative argument.
The “civic project” issue would be significant in this case only if we rejected the idea that blight removal justifies the taking. But if we did reject the blight rationale, we would have to consider whether this taking can be characterized as being for “public use” on some other ground—an issue the majority does *263 not discuss. Rather, the majority discusses the statutory definition of “civic project” in a vacuum, as though there were no possible constitutional limitation on the breadth of that term. When we interpret a statute, we should at least consider whether the interpretation we adopt raises constitutional problems.
The statutory definition of “civic project” is “[a] project or that portion of a multi-purpose project designed and intended for the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes” (McKinney’s Uncons Laws of NY § 6253 [6] [d] [UDC Act § 3 (6) (d)]). The majority seems to read this definition as broadly as its literal language permits. It implies that any public or private activity that can fairly be called educational—or, by implication, cultural or recreational and so forth—will qualify a project as “civic.” Surely this approach will, in some imaginable cases, cause the statute to be unconstitutional as applied: would anyone seriously suggest, for example, that private tennis camps or karate schools (“educational” uses), or private casinos or adult video stores (“recreational” uses), qualify as “public” uses in the constitutional sense?
It is clear to me that attention to constitutional constraints would require a narrower reading of the term “civic project” than the one the majority adopts. Since the majority pays no attention to those constraints, I do not join section VI of its opinion.
Chief Judge Lippman and Judges Graffeo, Read, Pigott and Jones concur with Judge Ciparick; Judge Smith concurs in result in a separate opinion.
Order reversed, etc.