§ 10-4.329. Protection of cultural resources.

It is the intent of this section to provide for the protection and preservation of significant cultural resources and to provide for mitigation of adverse impacts to such resources.

(a)

Significant cultural resources. Significant cultural resources shall include: sites, buildings, districts, structures, and objects included in, or determined to be eligible for inclusion in, the National Register of Historic Places; National Historic Landmarks; archaeological or historic sites, buildings, districts, structures, and objects identified as significant archaeological or historic sites in the comprehensive plan or so designated by the Tallahassee Trust for Historic Preservation or its successor; buildings, structures, sites, objects and districts listed on the local register of historic places pursuant to section 10-6.709, and; human burial sites. Significant cultural resources shall also include those cultural resources that the county administrator or designee determines to be significant during the subdivision or site and development plan review process, environmental review process, environmental permitting process, or subsequent to initiation of site development activities. In determining the significance of cultural resources, the county administrator or designee shall seek guidance from the Florida Department of State's Division of Historical Resources (DHR), and may seek additional guidance from the State Historic Preservation Officer (SHPO), the Architectural Review Board (ARB), or the Historic Preservation Officer (HPO) designated by the Tallahassee Trust for Historic Preservation or its successor. The criteria to be applied in determining significance shall be based on those criteria used to determine eligibility for listing in the National Register of Historic Places (Code of Federal Regulations Title 36, Part 60, as amended) or those criteria set forth in section 10-6.709.

(b)

Disturbance of cultural resources. Development and other activities that could result in the disturbance of significant cultural resources are prohibited unless otherwise authorized by the county administrator or designee. As regards human burials, prohibited acts shall be those identified as constituting unlawful activities in F.S. §§ 872.02 and 872.05. Such acts include, but are not limited to, destruction or removal of gravestones, vandalizing or injuring tombs and burial sites, and disturbing or damaging an unmarked human burial. The prohibition against disturbing human burials addressed herein shall not apply to any person acting under the direction or authority of the division of historical resources of the department of state, to cemeteries operating under F.S. ch. 497, or any person otherwise authorized by law to remove or disturb a tomb, monument, gravestone, burial mound, or similar structure, or its contents or to any person otherwise authorized by law to disturb, destroy, or remove an unmarked human burial. The prohibition against disturbing other types of significant cultural resources shall not apply to activities performed by educational institutions or to activities performed by or under the direction of a certified archaeologist during the normal course of investigating, documenting, preserving, or restoring such resources.

(c)

Cultural resource protection plan. Any application for subdivision approval, application for site and development plan approval, application for conceptual or final PUD approval, or application for an environmental management permit that involves property containing an identified significant cultural resource or that involves property that may potentially contain a significant cultural resource shall include a plan for the protection of the resource. Prior to engaging in any development activity, and prior to removing, damaging, or destroying any significant cultural resource, the person proposing to engage in such activity and the owner of the land on which such activity is proposed shall first apply for and obtain an environmental management permit that includes a plan for the protection of the resource. Proposed cultural resource protection plans shall demonstrate to the satisfaction of the county administrator or designee that the plan will provide adequate protection of the resource. In most cases a cultural resource protection plan will involve either the preservation and protection of the resource by means of a conservation easement, a mitigation program whereby unavoidable impacts to the resource are minimized and mitigated, or further investigations during site development coupled with measures to protect significant cultural resources if discovered. These potential types of cultural resource protection plans are addressed in the following subsections:

(1)

Protection by conservation easement. A conservation easement, or other suitable means of protection in a form approved by the county attorney, shall be required for all on-site areas which contain significant cultural resources to ensure such areas will be protected and preserved, unless alternative mitigation measures are approved pursuant to subsection 10-4.329(c)(2). Conservation easements shall be dedicated in favor of the county and the easements shall encompass the cultural resources present plus a buffer if required. The determination of the required buffer, if any, shall be made by the county administrator or designee in consultation with appropriate authorities such as the DHR, SHPO, ARB, or HPO. A conservation easement shall be required to insure the on-site protection of areas containing human burials unless; the area is a cemetery operating under F.S. ch. 497, or; a cultural resource protection plan approved by the county administrator or designee provides for the relocation of the human remains to an active cemetery duly licensed by the state, relocation to another on-site or off-site location, or relocation to another acceptable repository. The relocation and subsequent internment of human remains at an on-site or off-site location other than a licensed cemetery shall require the establishment of a conservation easement encumbering the relocation-site. Nothing contained in a conservation easement established to protect areas containing human burials shall act to prohibit any person so entitled from exercising any rights secured by F.S. § 704.08 or any rights secured by the Native American Graves Protection and Repatriation Act of 1990.

a.

Ingress/egress easement required. Any development or subdivision project that involves establishment of a conservation easement to protect areas containing human burials shall also provide an ingress/egress easement by which relatives and descendants of the deceased can legally access the conservation easement area for purposes of visiting the area at reasonable times and in a reasonable manner. The ingress/egress easement shall extend from the conservation easement area to an existing public right-of-way or existing public access easement. Such an ingress/egress easement shall not be required if the conservation easement adjoins an existing public right-of-way or public access easement. An ingress/egress easement may also be required in situations involving the on-site preservation of other types of significant cultural resources or when a known significant cultural resource site is present on adjoining property. The necessity for providing such an access easement shall be determined by the county administrator or designee based upon the significance and value of the cultural resources involved and the need for the public to have access to these resources for visitation or research purposes.

b.

Management and maintenance requirements. When preservation and protection of significant cultural resources is proposed through establishment of a conservation easement or similar protective mechanisms, the county administrator or designee may also require the cultural resource protection plan to include provisions for the long-term management and maintenance of the cultural resources involved if such actions are deemed necessary to protect and preserve the integrity of these resources.

(2)

Protection through mitigation. If practicable project alternatives do not exist to avoid adverse effects to significant or potentially significant cultural resources, the cultural resource protection plan shall specify measures to minimize the adverse effects and to mitigate for the unavoidable effects. For purposes of this section, a "practicable" project alternative is one that does not cause an unreasonable and undue hardship on the use of the property, considering the significance and condition of the cultural resource. Mitigation measures shall be designed to preserve, reclaim, and compensate for as many of the values of the significant cultural resource as are adversely affected. Depending on the cultural resources involved, such mitigation measures can include, but are not necessarily limited to, data recovery, archaeological excavation, the recovery, analysis and documentation of features, archival studies, and other measures to assure preservation of significant elements of the resources disturbed, such as voluntary transfer to a public or nonprofit agency for duration purposes. All cultural resource protection plans involving mitigation require the preparation of a research design report and final report. These reports shall not be deemed complete until they are approved by the county administrator or designee.

(3)

Protection through further investigations. In some instances, appropriate investigations may be performed to ascertain the presence of cultural resources on a proposed development site and these investigations may conclude that the presence of significant cultural resources is unlikely. Despite these results, there may be cases where the county administrator or designee determines that there remains a reasonable probability that such resources could be present and that the proposed development could adversely impact these resources. A cultural resource protection plan shall be required in such cases. This plan shall provide for further investigation of any suspect areas during the initial stages of site development. It shall also provide a course of action to ensure adequate protection of significant cultural resources should they be discovered, as addressed in the preceding subsections.

(d)

Fortuitous finds and unmarked human burials. The following requirements apply to all site development activities:

(1)

If previously unidentified cultural resources are discovered or observed at development sites or during development activities following permit issuance, then project activities affecting those resources shall cease immediately. The developer, property owner, contractor, or agent thereof shall notify the county administrator or designee and the division of historic resources within two working days of the discovery. The county administrator or designee shall require an investigation be performed to assess the significance of the resources in accordance with subsection 10-4.329(a). If the county administrator or designee determines the cultural resources are significant pursuant to subsection 10-4.329(a), development activities in the area containing these resources shall not be resumed until such time that a cultural resource protection plan has been submitted to and approved by the county administrator or designee. The approved protection plan may restrict further development in the area containing the identified resources. If the county administrator or designee determines the resources are not significant, development activities can continue upon written notification issued by the county administrator or designee.

(2)

If any unmarked human burial is discovered or observed at development sites or during development activities following permit issuance, all activity that could disturb the burial site shall cease immediately. The developer, property owner, permittee, contractor, or agent thereof shall immediately notify the nearest law enforcement office and shall follow the notification procedures set forth in F.S. § 872.05. In addition, the county administrator or designee shall be notified within two working days of the discovery. Development activities in the area containing unmarked human burials shall not be resumed until such time that a cultural resource protection plan has been submitted to and approved by the county administrator or designee. The approved plan may prohibit further development in the burial site area. As used in this subsection, "unmarked human burial" shall have the same meaning as defined in F.S. § 872.05.

(3)

In cases where previously unidentified cultural resources are discovered or an unmarked human burial is discovered, the county administrator or designee will facilitate the county's final resolution of the matter in an effort to balance the interests of both the affected cultural resources and the development activities affected by such discoveries. The review and processing of such cases shall not be conducted in a manner that could jeopardize the foremost goal of protecting significant cultural resources.

(Ord. No. 07-20, § 2, 7-10-07; Ord. No. 12-07, § 7, 5-8-12)