Matter of Sunoco, LLC v. New York State Off. of Parks, Recreation & Historic Places

a different result would not be unreasonable" (Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013] [citation omitted]).

The Commissioner "shall include in the state register all places he [or she] determines to be of significance after consultation with the [B]oard" (PRHPL 14.07 [1] [g]; see PRHPL 14.03 [2]). To aid in this determination, the Commissioner, in consultation with the Board, shall consider "[t]he quality of significance in American history, architecture and culture [that] is present in districts, sites, buildings, structures and objects that possess integrity of location, design, setting, materials, workmanship, feeling and association, and: (1) that are associated with events that have made a significant contribution to the broad patterns of our history; or (2) that are associated with the lives of persons significant in our past; or (3) that embody the distinctive characteristics of a type, period or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or (4) that have yielded, or may be likely to yield, information important in prehistory or history" (9 NYCRR 427.3 [a]). If the Commissioner decides that listing in the register is appropriate, he or she must issue a decision "with an appropriate finding in support, in writing" (9 NYCRR 427.5 [d]).

In this case, the Commissioner's findings are reflected in the December 2023 packet seeking a determination of the District's eligibility for listing in the national register. To that end, the District's boundary reflects the extent of Papscanee Island as it would have appeared in the 1600s, and it was "drawn to include the most intact and undeveloped cultural landscape that reflects the themes of Mohican history" from the pre-contact era through Dutch colonization. The District consists of over 500 acres that, as a whole, exhibits "1) extraordinary integrity; 2) abundant archaeological and historic resources spanning the late pre-contact through early colonial periods; and 3) central importance to the Mohican Community." The northern industrialized [*3]area was excluded from the District "due to a paucity of data resulting from development (primarily the installation of industrial infrastructure such as oil tanks) and the lack of the higher level of documentation required for asserting national level significance." As such, the Commissioner's approval of the boundary location in connection with his determination to list the District in the state register is rational and not arbitrary and capricious (see Matter of Lake George Assn. v NYS Adirondack Park Agency, 228 AD3d at 62). We agree with Supreme Court that, contrary to petitioner's characterization, the exclusion of parcels comprising the northern industrialized area from the District did not constitute a prior agency decision on similar facts, the departure from which must be adequately explained to be upheld (see Matter of Lyell Mt. Read Bus. Ctr. LLC v Empire Zone Designation Bd., 129 AD3d 137, 145 [3d Dept 2015]; compare Matter of Callanan Indus. v Rourke, 187 AD2d 781, 781, 783-784 [3d Dept 1992] [departure from determination rendered the previous month on similar facts annulled as arbitrary and capricious]). Petitioner further asserts that meaningful judicial review of its challenge to the District is impeded by the Commissioner's failure to address petitioner's parcel or petitioner's objections in his findings, requiring annulment on that basis (see Matter of Burnham v New York State Governor's Off. of Empl. Relations, 217 AD3d 1147, 1149-1150 [3d Dept 2023]). We are unpersuaded, as petitioner has not identified any authority mandating parcel- specific findings when including an owner's parcel within a historic district's boundaries, or, relatedly, that inclusion of a parcel within a historic district requires finding that the parcel would, by itself, meet the requirements for inclusion on the state and national registers (see Friends of St. Frances Xavier Cabrini Church v Fed. Emergency Mgt. Agency,

658 F3d 460, 465 [5th Cir 2011]).^FN3 Contrary to petitioner's view, respondents appropriately supplemented the administrative record with the affidavits of the Commissioner and Bradley Russell, an archaeologist employed by the Office who worked on the District's nomination and could attest to the information before the Board and the rationale for including petitioner's parcel in the District (see Matter of Hammonds v New York State Educ. Dept., 206 AD3d 1334, 1334-1335 [3d Dept 2022]). The Commissioner affirmed that petitioner's parcel, unlike those in the northern industrialized area, was "surrounded by agricultural land typical of the remainder of the District." Russell added, among other things, that petitioner's parcel is located proximate to several historically significant sites and natural resources, and, owing to that location and the amount of undisturbed ground on petitioner's parcel, it has the "potential to provide information important to our prehistory and history" (see 9 NYCRR 427.3 [a] [4]). Russell noted that petitioner's [*4]parcel has a smaller industrial footprint, is located in a less-industrial portion of the island and is surrounded by agricultural land consistent with what the island may have looked like in the past. Accordingly, although excluding petitioner's parcel from the District would not have been unreasonable, the decision to include it has a rational basis, is grounded in appropriate regulatory and statutory criteria and, as such, will not be disturbed (see PRHPL 14.07 [1] [b]; 9 NYCRR 427.3 [a]; Matter of Ward v City of Long Beach, 20 NY3d at 1043).

Nor must the District's listing in the state register be annulled because the Commissioner exceeded his authority in nominating the District to the national register. Generally, places considered for nomination on the state register should concurrently be considered for nomination on the national register, and both state and federal regulations should be followed (see Moody Hill Farms Ltd. Partnership v U.S. Dept. of the Interior, National Parks Serv., 205 F3d 554, 562 [2d Cir 1999], cert denied 528 US 874 [1999]). Where, as here, a majority of property owners within a historic district object to inclusion on the national register, the Commissioner cannot nominate the district to the national register but must still submit the nomination to the Keeper of the National Register for a determination of eligibility (see 36 CFR

60.6 [n]; 9 NYCRR 427.1 [b] [1]). The objections of property owners will not, however, bar a district's inclusion on the state register (see 9 NYCRR § 427.1 [b] [1]; [d]). Nomination to the state register is made using the standard national register forms (see 9 NYCRR 427.2 [b]). The record reflects that the Commissioner followed this procedure, including by indicating in a cover letter and on the national register nomination form itself that his "nomination" of the District was for an eligibility determination only (36 CFR 60.6 [n]). As such, petitioner's contention in this respect is baseless. We have examined the remainder of petitioner's arguments, and, to the extent not addressed above, we conclude they are without merit.

Clark, J.P., Ceresia, McShan and Powers, JJ., concur.