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Supreme Court of the State of New York. New York CountyMay 11, 2006
820 N.Y.S.2d 842 (N.Y. Misc. 2006)
820 N.Y.S.2d 8422006 N.Y. Slip Op. 51212


Decided May 11, 2006.

This is an Article 78 Proceeding brought by the Coalition of 9/11 Families, Inc. ("Coalition"), a not-for-profit corporation comprised primarily of family members of victims of the World Trade Center ("WTC") attack on September 11, 2001 ("9/11"). Petitioners request a judgment enjoining respondents from pouring a concrete slab on the footprint of the North tower of the WTC.

The Coalition was formed to express its members' views on plans to create a memorial to the tragic event as part of the redevelopment of the WTC site. Most of the individual petitioners lost a loved one in the attack, are board members of the Coalition, and are members of the Family Advisory Council of respondent Lower Manhattan Development Corporation ("LMDC"). In addition, four of the individual petitioners, were named as "Consulting Parties" for purposes of, inter alia, the historic preservation review of the project. The Historic Districts Council, Inc., was added as a petitioner, on consent, by amended petition.

The petitioners seek to enjoin the commencement of construction work on the foundation and footings package for the memorial on the ground that the respondents have failed to fulfill obligatory consultation and mitigation of the impact of the plans with respect to the slab floor of the North Tower of the former WTC, as required by Public Buildings Law ("PBL"), Article 4B, Section 63, and the Parks, Recreation, Conservation and Historic Preservation Law ("PRCHPL"), Section 14.09. Petitioners also assert that under PRCHPL Section 14.09, mitigation measures must be incorporated into the memorial project to the fullest extent practicable, rather than merely considered, and that respondents could, and therefore should, design the memorial in a manner that preserves the slab floor and allows an unobstructed view of it.

Essentially, petitioners believe the plan adopted amounts to the obliteration of sacred ground, the final resting place of many of the victims. They feel that it is wrong that the museum and memorial will interrupt the vast, open vista of the slab at bedrock, which they believe is the salient historical artifact of the site that must, as a matter of law, be preserved, and which, until recently, LMDC led them to believe would be preserved, if it were practicable. In petitioners' opinion, first-hand experience of the slab is a preferable way to commemorate what occurred than the construction of a memorial and museum.

The respondents are the Commissioner ("SHPO") of the New York State Office of Parks, Recreation and Historic Preservation ("SOHP"), the LMDC, and the Port Authority of New York and New Jersey ("PA"), although petitioners admit in their brief that they are not seeking any injunctive relief against the PA. The site is owned by the PA, pursuant to an interstate compact between the States of New York and New Jersey and authorized by the Congress of the United States. The LMDC is a public benefit corporation, which was created in the aftermath of 9/11 to coordinate the remembrance, rebuilding, and revitalization efforts in Lower Manhattan. LMDC is funded by the federal government, through a Community Development Block Grant from the United States Department of Housing and Urban Development, and is the agency responsible for conducting the environmental and historic preservation reviews for the redevelopment of the WTC site. The respondents oppose the petition on the grounds of the statute of limitations, laches, immunity of the PA from a suit for injunctive relief, and the inapplicability of the PBL and the PRHCL. They assert that the review of the plans under the National Historic Preservation Act ("NHPA"), Section 106, is sufficient to satisfy the requirements of PRCHPL. In addition, they argue that all consultation, consideration and mitigation required by law has not only occurred, but has been exceeded.

Petitioners' Memorandum of Law, dated April 3, 2006, p. 12.

LMDC is a subsidiary of the New York State Urban Development Corporation doing business as the Empire State Development Corporation.

The National Historic Preservation Act of 1966, 89 P.L. 665; 80 Stat. 915.

Petitioners' position is not shared by all interested members of the public. The Court granted, on consent, a motion of the Alliance for Downtown New York, Inc., the Tribeca Organization, BPCUnited, the West Street Coalition, and various individuals to submit an amici curiae brief in opposition to the petition. The amici, who include survivors of victims of the 9/11 attack, and residents and business owners who live and/or work in lower Manhattan, oppose the petition. In their brief, they refer to petitioners as "a small group of dissenters" and describe petitioners' resort to this Court in the name of historic preservation as a "travesty" that is attempting "to prevent our neighborhood and city from healing."

Temporary injunctive relief was not necessary, as the first phase of the construction included only cleaning and inspection of the slab floor. Since the petition was signed on March 11, 2006, the parties have continued to consult. There was a meeting of the consulting parties held on April 5, 2006, and it is anticipated that there will be another meeting in May. Id. at 21 and 23.

The slab floor that petitioners seek to preserve, referred to in the parties' submissions as the "footprint," the "bedrock," the "slab," or the "bathtub," is the cement floor of the North Tower that lies below grade within the perimeter of the truncated box beam columns, the remnants of the columns which demarcate the area where the North Tower once stood. The columns themselves were removed during the cleanup of the site and what remains are rectangles spaced approximately six to ten feet apart. See, Transcript of Oral Argument ("Tr. 1"), dated March 23, 2006, p. 38. The slab floor actually is composed of multiple slabs with gravel in between. Originally, it was the floor of a mechanical room under a multi-level garage, which was not visible to the public. Somewhat confusingly, the parties refer to the slab floor alone, the truncated box beam column remnants alone, and both of these elements combined as the "footprint" of the North Tower. For the sake of clarity, the Court will refer in this opinion to the floor at bedrock as the "slab" and the truncated box beam column remnants as the "column remnants." Located beneath the slab floor is the drainage system that served the WTC, which needs repair or replacement.

The basic elements of the memorial design have not changed since 2004. In January of 2004, LMDC announced the winner of an international competition to design the memorial to commemorate the victims of 9/11 and the February 26, 1993 bombing of the WTC. The Memorial Competition Jury selected a design by Michael Arad and Peter Walker entitled "Reflecting Absence." The concept includes a plaza with trees surrounding two voids to represent the twin towers at grade level. The voids are surrounded with walls, from which curtains of water cascade down to two pools of water, 200 by 200 feet, located at a second level thirty feet below grade called the balcony level, where visitors will see the names of the victims inscribed on the walls. From the balcony, looking up through the void, visitors will see the irregular, glass-faced spike of the freedom tower rising toward the sky. On the third and lowest level are the column remnants, a contemplation room, a vessel for unidentified remains, a medical examiner's office, a family room, and mechanical rooms. The western slurry wall of the WTC, a retaining wall that was built to hold back the Hudson River, will be exposed from the lowest level up to the height of the plaza, as well as visible through a curtain of water from the balcony. Portions of the slab, around some column remnants and the slurry wall, will be preserved. Id. at 38-39. It is anticipated that visitors will be able to view and walk to the lowest level, although the exact manner of access has not been decided. Id.

The construction on the lowest level will be on top of the disputed slab floor and will divide the area between the column remnants visually. Pouring new concrete on top of the slab was contemplated by the footings and foundation package work, as was the construction of footings for the support columns and shear walls which will support the structure. However, between the filing of the petition and the second oral argument of the petition, LMDC rejected the bids. See Transcript, dated April 26, 2006 ("Tr. 2), pp. 8-9. The new bid package excludes the footings for the shear walls on the slab, giving the parties more time to consult, id. at 25, but does include footings for the columns.

The affidavit of the memorial museum architect states that it was not possible to avoid building concrete footings on the slab in order to: 1) support the vertical and lateral loads from the weight of the pools, the plaza above, and the groundwater; 2) include the heating, ventilation, electrical and cooling infrastructure for the memorial and other parts of the development; 3) protect the site from explosive attack; 4) insure adequate under-slab drainage; and 5) provide the contemplation, family and medical examiner's rooms. Relocation of the pumps for the pools, which use gravity to re-circulate the water, would involve an "engineering premium" and "place piping runs into prominent public spaces of the Museum." See Affidavit of Carl F. Krebs, sworn to on April 19, 2006, ¶¶ 4-6; see also, Affidavit of Anne Papageorge, sworn to on March 22, 2006, ¶ 23. Petitioners' architect counters that the pumps and support features could be relocated, but admits that it would involve additional expense and that the current design "may be the most inexpensive and convenient location" for the mechanical elements. Affidavit of Robert J. Kornfeld, sworn to on April 4, 2006, ¶¶ 12 and 14.

Petitioners claim that at a meeting held on January 11, 2006, for the first time LMDC revealed plans showing that the slab would be compromised by pouring concrete over it and building shear walls and columns on top of it. However, it is clear from documentary evidence in the record that since the Spring of 2004, LMDC has clearly stated that the slab is not one of the historical elements that it would seek to preserve.

In February of 2004, LMDC, in coordination with other federal agencies, designated the WTC site as eligible for listing in the National Register of Historic Places. As the United States Department of Housing and Urban Development is partially funding the memorial project, the designation triggered historic preservation review obligations prior to the approval of the expenditure of federal funds, pursuant to 16 U.S.C., Section 470f, the codification of Section 106 of NHPA.

The coordinating federal agencies are the Federal Transit Administration and the Federal Highway Administration.

One of the procedural options available to an agency that is conducting a historic preservation review under NHPA is to enter into a Programmatic Agreement setting forth the historic preservation obligations involved in the project. 36 C.F.R. 800.14(b) (1)(iii). LMDC chose that option and, on March 25, 2004, it prepared a Draft Programmatic Agreement, which it sent to the consulting parties, including most of the petitioners. See, LMDC's Certified Administrative Record, dated April 19, 2006 ("Record"), Ex. 38. It requested comments by April 8, 2004. Record, Ex. 39. LMDC published notices asking for comments on March 26, 2004. Record, Ex. 40. The slab was not one of the historic elements listed in the Draft Programmatic Agreement. The LMDC received written comments on the Draft Programmatic Agreement in early April 2004, including one from Mr. Gardner. Record, Ex. 44.

On April 22, 2004, LMDC, the SHPO, and the Advisory Council on Historic Preservation ("ACHP"), the federal counterpart of the SOHP, entered into a Programmatic Agreement regarding the preservation of the historic elements of the site. Paragraph 3(a) of the Programmatic Agreement identifies the historic elements that would be subject to consultation concerning mitigation of impact as follows:

(1) portions of the western slurry wall on the WTC Site and (2) truncated box beam column bases outlining portions of the lower "footprints" of the former Twin Towers at the WTC Site (collectively, the "Memorial Access Commitments")

Notably, the Memorial Access Commitments do not mention the slab.

Paragraph 3(b) of the Programmatic Agreement promised that LMDC would provide the SHPO and the consulting parties with copies of "schematic drawings relating to the Memorial Access Commitments and/or illustrative plans (which may include renderings) for the Memorial . . . for review and comment," but it clearly limits the comments to the two Memorial Access Commitments, not the slab:

"Consulting parties" for Section 106 review is defined in 36 C.F.R. 800.2(c) as including the SHPO, subdivision (1), and individuals and organizations with a demonstrated interest and concern about the undertaking's effects on historic properties, subdivision (5).

It is understood, however, that in considering comments related to the Memorial Access Commitments, LMDC shall not be required to consider modifications to its proposed activities for any other portion of the Plan except as may be otherwise required by this agreement.

Indeed, the affidavit submitted by the State Historic Preservation Office in this case agrees that the slab was not identified as an historic resource subject to consultation. See Affidavit of Ruth Pierpont, sworn to on March 22, 2006, ¶ 9. In addition, paragraph 3(b) of the Programmatic Agreement specifically states that "[i]n view of the relevant security considerations, such plans [final plans for the Memorial] shall not be subject to further review under this Agreement once the review contemplated by this Stipulation 3(b) has been completed.

Paragraph 5 of the Programmatic Agreement, and Exhibit F thereto, identified five "Additional Remnants" of the WTC, which also do not include the slab that is the subject of the petition. In Paragraph 5, LMDC agreed to give the consulting parties at least thirty days to comment on preliminary design or illustrative plans relating to the Additional Remnants, as well as summaries of proposed mitigation measures relating to them.

On April 29, 2004, LMDC hosted a meeting of the consulting parties to discuss the Programmatic Agreement. Many of the petitioners attended it. Record, Ex. 52. Moreover, LMDC sent the additional materials presented at the meeting to the consulting parties and requested comments by May 24, 2004. Record, Ex. 53.

The LMDC received comments on the proposed removal of the slab in May of 2004. Record, Ex. 54. The SHPO approved the Programmatic Agreement that month. Record, Ex. 55.

In June of 2004, the LMDC issued a Record of Decision, which stated that LMDC had complied with its Section 106 responsibilities under NHPA, that it had afforded the ACHP an opportunity to comment, that it had taken into account the effects of the project on historic resources and properties, and that it had complied with the New York State Historic Preservation Act through Section 106 by consulting with the SHPO. Record, Ex. 57 (separately bound).

The New York Historic Preservation Act, McKinney's Session Laws 1980, Ch. 354, added Article 14 of the PRCHPL and Article 4-B of the Public Buildings Law, the statutes upon which petitioners rely.

Not only did the LMDC issue the above-described written decisions informing the public and petitioners that the slab was not one of the historic elements identified for consultation and potential mitigation, but almost immediately after "Reflecting Absence" was chosen as the winning design, the Coalition expressed its dissatisfaction with it. The Coalition, in a statement to the press on January 6, 2004, called "Reflecting Absence" an "uninspiring design" and said the "memorial design contest must begin anew." See Brief of Amici Curiae ("Amici Brief"), dated April 20, 2006, Appendix B. In fact, even before "Reflecting Absence" was chosen, Anthony Gardner was quoted in the New York Times, saying that he sought "the maximum access and preservation of the footprints." Amici Brief, Appendix D.

The dissatisfaction of the Coalition was its concern for the slab, which they refer to as the "footprint." At a consulting parties meeting on October 21, 2004, petitioner Anthony Gardner, who represents the Coalition as a consulting party to the LMDC, stated that "a lot of the families objected to the design that was selected." He added that although the families had begged the Jury at two meetings "to only select a design that went to bedrock . . . and preserve[d] the footprint," they "selected the Arad design, the one design out of eight that did none of those things." Record, Ex. 68, Transcript at 45. At the same meeting, Robert Kornfeld, the engineer who submitted an affidavit in support of the petition in this proceeding, stated that he was "concerned that the footprints are going to end up with a huge amount of program space being crammed in." Id. at 70.

At the February 10, 2005 consulting parties' meeting, Mr. Gardner complained that the design was "obliterating" the slab "with a series of rooms when it should really be open." Record Ex. 71, Transcript at 40-41. He expressed the opinion that the design should show "columns across the whole scale and span of the North Tower." Id. Color renderings of the design shown to the consulting parties, including several of the petitioners, at the February 10, 2005 meeting are included in Exhibit 71 of the Record. The renderings depict walls and rooms constructed on portions of the slab, under the pools and the balcony.

A. The Statute of Limitations and Laches

The statute of limitations in an Article 78 proceeding is four months. CPLR § 217. The statute begins to run when the person aggrieved by the determination receives notice of it. Biondo v. N.Y.S. Board of Parole, 60 NY2d 832 (1983).

The petitioners in this case received notice of the decision that the slab would not be subject to the consultation and mitigation they now seek, in April of 2004 when the ACHP, the SHPO and the LMDC adopted the Programmatic Agreement, which identified the historic elements of the WTC site that would be subject to historic preservation review. In fact, petitioners' attorney admitted during oral argument that the Programmatic Agreement contains respondents' determination that the slab wasn't accepted as an historic element, although petitioners always maintained that it should be:

THE COURT: For several years there was a review and petitioners are part of those meetings and consultations and different elements of the site were pointed out, were listed, were recognized as historic elements, but never was the slab foot print ever mentioned.

MR. LIPPES: That's not quite true, your Honor. The petitioners always included the foot prints as part of what they were concerned about as an historic element. It just wasn't accepted as such in the problematic [sic] agreement. In the meeting it was mentioned.

Tr. 2, p. 35 (emphasis supplied). Petitioner Gardner's comments at the October 2004 meeting and the renderings that were given to the consulting parties in February 2005, indisputably demonstrate that construction was planned on top of the slab and that petitioners knew of it.

Petitioners argue that the LMDC's decision never became final and binding because LMDC continues to apprise the consulting parties of developments as the construction is proceeding and listens to their comments. However, that consultation is voluntary. The historical review required by Section 106 was completed when LMDC and SHPO fulfilled their obligations under the Programmatic Agreement, as will be discussed in Part B of this opinion.

Consequently, the petition is barred by the statute of limitations. Nonetheless, were the Court to reach the merits of the petition, it would deny relief.

It is unnecessary to consider LMDC's laches argument in light of the Court's determination that the proceeding is barred by the statute of limitations.

B. Compliance with PRCHPL, Section 14.09

Subsection (2) of section 14.09 provides that:

When a project is being reviewed pursuant to section one hundred six of the national historic preservation act of 1966, the procedures of this section shall not apply and any review or comment by the commissioner and the board on such project shall be within the framework or procedures of the section one hundred six review.

See also, 9 N.Y.C.R.R. § 482.2(a).

Petitioners claim that respondents failed to provide sufficient consultation or mitigation required under Section 14.09 and that substantive mitigation is required under Section 14.09 which exceeds that required under Section 106. Those arguments are unavailing because section 14.09, on its face, refutes these claims. It is undisputed in the record that LMDC, as lead agency, and the SHPO, as a consulting party for the SOHP, participated in the review pursuant to Section 106 of NHPA

Section 106, codified as 16 U.S.C.S., Section 470(f), provides:

The head of any Federal agency having direct or indirect jurisdiction over a proposed . . . federally assisted undertaking in any State . . . shall, prior to the approval of the expenditure of any Federal funds on the undertaking . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under title II of this Act [ 16 USCS §§ 470i et seq.] a reasonable opportunity to comment with regard to such undertaking.

Under Section 106, a State agency official may be delegated legal responsibility for compliance with 106 in accordance with Federal Law, and the agency official must involve the consulting parties, which include the State Historic Preservation Officer. 36 C.F.R. 800.2.

All Section 106 responsibilities are fulfilled once the agency complies with the undertakings set forth in a programmatic agreement, which, in this case, did not include responsibilities involving the slab:

Compliance with the procedures established by an approved programmatic agreement satisfies the agency's section 106 responsibilities for all individual undertakings of the program covered by the agreement
36 CFR 800.14(b)(1)(iii).

Therefore, petitioners' insistence that some additional consideration is due with respect to the slab is disproved by the terms of the Programmatic Agreement. Under Section 106, there was never an obligation to consult or mitigate with respect to the slab once the Programmatic Agreement was adopted, and there was no obligation under Section 14.09 because the Section 106 review replaced it.

Finally, it has already been judicially determined, adversely to petitioners, that LMDC has fulfilled its Section 106 responsibilities. On February 8, 2005, in a federal action entitled Coalition of 9/11 Families v. Rampe, brought by the petitioners in this action and (one other individual) against, inter alia, LMDC and the PA, Judge Rakoff ruled that "defendants have come forward with undisputed facts that they have complied with . . . Section 106. . . ." See, 2005 WL 323747 (S.D.NY, 04 Civ. 6941 (JSR)).

In sum, LMDC has completed the consultation and consideration of mitigation required with respect to Section 106, which is all that is required under Section 14.09. Thus, respondents have complied with Section 14.09. Similarly the Court finds no violation of the Public Buildings Law.

C. Public Buildings Law, Section 63

Section 63 of the Public Buildings Law, provides that:

The commissioner of the office of general services or the chief executive officer of any state agency shall:

1. Consult with the commissioner of parks and recreation as early in the planning process as may be practicable when planning to demolish, alter or transfer any property under their jurisdiction listed on the state or national register or that has been determined to be eligible by the commissioner of parks and recreation to be eligible for the state register, for the purpose of exploring alternatives to demolition alteration or transfer.

The issue before the Court is one of first impression concerning the meaning of the phrase "under their jurisdiction."

Petitioners' position is that LMDC is a state agency with jurisdiction over the memorial, pursuant to PBL, Section 61(5), which defines a "state agency" as including "a public benefit corporation at least one of whose members is appointed by the governor." Further, petitioners interpret PBL, Section 63, as a mandate for a further historic preservation review.

Respondents counter that the property is owned by the PA, which is an interstate compact not subject to state laws unless New York and New Jersey adopt counterpart legislation.

Respondents also point to the legislative history of the SHPA, as proof that the PBL only comes into play when State property is involved. They urge that, in any event, the PBL was intended to utilize the review procedures of 14.09, which, in this instance, was a review under Section 106, and was more than adequate.

Unfortunately, none of the relevant statutes or precedent gives clear guidance to the Court.

Section 2 of the PBL, which is entitled "[p]ublic buildings," states that the commissioner of general services has supervision and control of public buildings of the State of New York. This implies that the provisions of the PBL are limited in their application to State-owned property, as respondents suggest.

The statutes that established the PA give it singular authority over development on its land that militates in favor of finding that it has jurisdiction of the memorial project. The PA is a public authority created by a compact between New York and New Jersey and approved by Congress, as required by the United States Constitution. Agesen v. Catherwood, 26 NY2d 521, 524 (1970), citing L. 1921, ch. 154, § 1; N.J.S.A., § 32: 1-1 et seq.; 42 U.S. Stat. 174; U.S. Const., art. I, § 10, subd. 3. The PA is independent of the direct control of either State acting without the concurrence of the other. Id. at 525.

The New York State Laws relating to the PA are contained in the Unconsolidated Laws of New York ("Uncons. L."), Section 6401 et seq. According to Section 6404, the PA has "the powers and jurisdiction hereafter enumerated." Section 7182 is entitled "Management; local laws; jurisdiction; subsidiary corporations," and it provides that "all details of the effectuation . . . of industrial development projects or facilities by the port authority shall be in its sole and absolute discretion." The definition of an "industrial development project or facility" in Section 7172 is broad enough to include the memorial, as it applies to any improvement, structure, facility or building located within the New York portion of the port district. The PA may also enter into cooperation agreements with states, agencies and local governments for the redevelopment of any part of any industrial development project or facility. Uncons. L., Section 7178. Given the complete control that the PA has over development on its land and the fact that New York State legislation alone cannot govern the operations of the PA, the project does fall under the jurisdiction of the PA, making the PBL inapplicable.

Moreover, it is clear from section 7105 that the PA is immune from suits for injunctive relief, which bars any relief against it in this case.

Alternatively, if the memorial project is under the jurisdiction of the LMDC, which certainly has reviewed and approved many aspects of the project, there is no further historic preservation review required under the PBL. Respondents are correct that Article 4-B of the PBL was adopted in 1980 as part of the SHPA, a single legislative package for historic preservation that included Article 14 of the PRCHPL and Article 5-K of the General Municipal Law, which relates to historic properties owned by local governments. McKinney's Session Laws of NY, L. 1980, c. 354.

In two places, the SHPA speaks of coordination of historic preservation efforts between differing levels of government. In Section 1, the legislative findings and declaration of purpose section, the Legislature said:

Within a cooperative context, the state government should exert leadership, accelerate its historic preservation programs and activities, give maximum encouragement and assistance to agencies and individuals undertaking preservation by private means, encourage and assist local government in local preservation programs and cooperate with the federal government in such programs.

Cooperation is referred to again in PRCHPL Section 14.09(2):

In order to avoid inconsistency or duplication in review functions, the commissioner shall establish procedures in accordance with other provisions of this section whereby reviews conducted under this section are coordinated with the reviews of project or plan proposals under other provisions of law and regulation.

In Matter of Ebert v. City of Ithaca, 119 AD2d 62 (3rd Dept. 1986), lv. den., 68 NY2d 612, the Court discussed the interplay between PBL 63 and PRCHPL 14.09 in reviewing the demolition of a building owned by the State University of New York, which had been declared a local landmark by the City of Ithaca. Under a local ordinance, no building so designated could be demolished without a permit from the City. The Third Department held that construing the SHPA as a whole, local government review was not required. In its discussion of the historic preservation review of buildings under New York State jurisdiction, the Court held that Section 63 compels consultation and "Section 14.09 contains more procedural and substantive detail as to the consultation process."

The Ebert Court relied upon 9 N.Y.C.R.R. 428.3, which provides as follows:

(a) If more than one State agency is involved in an undertaking which is subject to the review under this Part, a single consolidated review will be acceptable, provided that it encompasses all agency activities associated with the undertaking which are subject to review.

Under Ebert, Section 14.09 is the process for the review required by Section 63. Petitioners' construction of the two statutes would lead to redundant review, contrary to the policy underlying the SHPA. The procedure for the review under Section 63 is that prescribed by Section 14.09, which was obviated by the Section 106 review.

Finally, an agency's interpretation of its own regulations is entitled to deference if it is not irrational. Matter of Blossom View Nursing Home v. Novello, 4 NY3d 581, 594-595 (2005).

Here, the SHPO, which is part of the New York State Office of Parks, Recreation and Historic Preservation, has submitted a brief stating that there is no separate consultation with its agency under the PBL. Brief of Respondent N.Y.S. Office of Parks, Recreation, and Historic Preservation, dated April 19, 2006, pp. 18-19. The interpretation is not unreasonable as a matter of law.


The consultation and mitigation efforts involving the SHPO, which have already occurred in this case, have been exhaustive and far beyond anything required by law. The LMDC continues to involve the SHPO and the petitioners at every step of the process in what can only be described as a commendable and sensitive manner, despite the fact that the obligation to consult ended long ago. The Court sympathizes with the anguish that has fueled petitioners' quest for what they perceive as the ideal symbol of their loss. However, the historical review process was created for the situation we have here — where multiple parties have a stake in preserving resources we all deem precious. That process has been met. Accordingly, it is

ORDERED AND ADJUDGED, that the petition is dismissed with prejudice; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.