PROTECTING SITES AT THE LOCAL LEVEL: THE RESPONSIBILITY AND THE LEGAL AUTHORITY TOWNS HAVE TO PROTECT THEIR ARCHAEOLOGICAL RESOURCES

Betsy Kearns

and

Cece Kirkorian

Introduction

Most archaeological sites lie undiscovered and unrecorded, thus both unappreciated and unprotected by the community whose cultural heritage they represent. They are especially vulnerable to the ravages of neglect and development activity. Communities can prevent the loss of their archaeological heritage by acknowledging and acting upon their responsibility to protect it. Indeed, many communities across the United States have implemented ordinances, regulations, and permit systems that act as an "archaeology alarm system" so that potentially valuable sites can be properly examined and professional archaeological management plans can be made as part of local decision-making processes.

By 1985 two town governments (Greenwich and Westport) in the State of Connecticut, in a pioneering attempt to preserve their archaeological resources, had instituted consideration of historical and archaeological factors as a function of their planning and zoning permit application processes. Both communities experienced frustration and difficulty in assembling data on local protection alternatives for cultural resources and in interpreting Connecticut's enabling statutes as they researched and drafted their archaeological preservation regulations. In order to encourage other towns to take similar, legally-defensible action and to provide the technical guidance heretofore unavailable to town governments, the Connecticut Historical Commission/State Historic Preservation Office (SHPO) published, with the assistance of the Department of the Interior, National Park Service, our guide, the Archaeological Resource Protection Handbook (Kearns and Kirkorian 1987). Intended for state-wide distribution to town planning boards, the Handbook presents various methods for local preservation action and examples of how communities throughout the country have successfully implemented preservation goals. Since 1987, 14 more Connecticut towns have instituted archaeological protection measures and at least seven more communities are in the process of adopting such measures. The Handbook, in part through the distribution efforts of the State Archaeologist, has been a catalytic force for these actions. The following discussion is based on the book, which was distributed to all of the nation's SHPO offices. Contact your state office in this regard.

Protection Methods Available to Municipalities

Fee Simple Absolute

The municipal ownership of a site, with conservation control deeded in perpetuity, is called "fee simple absolute" and is the only way to ensure permanent protection. All others must be considered temporary measures since they are dependent upon and subject to diverse and competing agendas. If a town decides to purchase land with archaeological resources there often are ways to obtain at least partial funding, such as matching-grant sources at the state level. The drawbacks to this method are that state or local funds may be insufficient to purchase more than one archaeological site in a town. Second, not all archaeological sites warrant the cost of purchase; and third, there are only a limited number of sites readily available for outright acquisition at any given time.

Conservation Easement

An easement is defined as an interest or right in property which is less then the full, or fee simple, interest. A property owner may be willing to donate land containing archaeological resources because of altruistic motives or because of the tax benefits of a charitable contribution. An easement is conveyed by a legal document and is written in deed form and filed with the official recorder of deeds. For tax purposes, conservation easements are typically assessed as the difference between the fair market value of the property before and after the grant of the easement. Acceptance of easements that guarantee the nondevelopment of parcels of land is consistent with many local "Master Plan" objectives.

The benefits of a conservation easement versus "fee simple absolute" acquisition include reduced town maintenance responsibility and liability for the land. Conservation easements involve the ownership of only those rights necessary to protect specific resources and the uses of the site that do not conflict with the easement remain vested in the landowner. In the drafting of an easement contract, it is vitally important that the guidance of both an attorney and a professional archaeologist be sought; each easement transaction will involve unique conditions specific to the resource and the property in question.

Once a town decides to actively encourage private preservation action, it should initiate a publicity campaign to increase the awareness of conservation easement donations, including legal and tax benefit information, and to apprise local law and real estate associations of the easement option. Various public conservation-minded organizations active in the community (e.g., Trust for Public Lands, and the Nature Conservancy, Inc.) may be eager to develop coordinated plans for easement donations and management control.

Zoning Regulation

Subdivision regulations often stipulate that development on parcels beyond a certain size include an "open space set-aside." The mandatory dedication of "open space" lands through subdivision review provides local officials with an opportunity to preserve archaeological resources. Without placing undue hardship on a developer, a town can work with the property owner to overlay the percentage of the development parcel that must become parkland with areas that are archaeologically sensitive. Passive recreational activities, e.g., nature and exercise trails, can be planned for this open space.

Cluster zoning, where the area of individual lots is reduced while the total number of dwelling units for the project remains the same, is gaining popularity in some areas. The land not used for house lots and drive-ways in cluster zoning is used for recreational purposes or kept as common open space. If such zoning is allowed, the local community and a responsible developer could take advantage of it to include any known or predicted areas of historic and prehistoric resources in the undisturbed common land, while directing construction activity to less sensitive portions of the development parcel.

Local Preservation Ordinance Is the Most Effective

How to Draft a Preservation Ordinance

In order to protect archaeological resources, a town or county government may develop an explicit mechanism within the framework of their established planning and zoning regulations that will guarantee consideration of archaeological factors. The most comprehensive and successful method of protection is an ordinance which mandates the pre-construction identification and consideration of design alternatives in regard to archaeological resources. A town can request a developer/property owner to supply a professional assessment of a parcel's archaeological sensitivity at the time other reports (e.g., wetlands analysis or traffic studies) are required. Consideration of archaeological resources should be integrated into local project review procedures so as not to burden the private developer with an over-extended review period.

When designing an ordinance that considers archaeological resources, as in creating any law, special care must be taken to ensure that it incorporates the full intent of the concern, does not conflict with laws already in place, and provides a reasonable and manageable working process for the people and actions it directs. Of concern to town counsels is the possibility that a local regulation may be challenged in court, with resulting time and monies required for defense. Federal and state courts have uniformly upheld state and local land-use programs as legitimate attempts to control environmental and growth-related problems. Many states have granted towns or similar local governmental entities the authority to legislate protection of historic resources, and in turn, state and federal courts have upheld a wide variety of environmental and historic preservation-related public objectives and regulatory approaches so long as they are fair and equitable.

Regardless of the source of an ordinance, whether the result of a voter-referendum action or not, the outcome of cases taken to court is usually based on the integrity and preciseness of the local law and its manner of enforcement. The jurisdiction of any local administrative authority must be understood; town actions to regulate federal and state-owned/administered land uses may often be preempted. Of primary concern is local alignment with state enabling statutes. To eliminate the potential for litigation on conflicting provisions, the language of the proposed law should precisely reflect the powers bestowed on local governments. A clearly worded "grandfather" clause can minimize the threat of litigation. Avoiding the potential for litigation altogether is not realistic, but when it does occur the courts will often place the burden of proving compliance with the statute on the applicant rather than the regulatory body.

Court reversal of locally established ordinances is often based on the grounds of (1) denial of equal protection; (2) denial of due process; or (3) uncompensated taking. To ensure the acceptance of an archaeological protection ordinance and to minimize the potential for an adverse court decision, a regulatory body should take the following three specific precautions: (1) everyone with a legitimate interest in the outcome of a permit decision should be afforded an opportunity to participate in the review process; (2) the administering body should develop "substantial evidence" on the record of its proceedings; and (3) the regulatory body should explicitly follow its own regulations in every detail.

How to Implement a Preservation Ordinance

Integrating the consideration of archaeological resources into the local review process should entail a well-designed program for the review of archaeological reports, for the determination of the relative significance of archaeological sites, and for enforcement of preservation guidelines. A town ordinance which mandates that pre-construction identification and consideration of design alternatives regarding archaeological resources be undertaken on private land (as well as town land) may require either the creation of or the designation of an appropriate town agency/staff to coordinate implementation of the ordinance. Ideally, the coordinator should be an archaeologist on the municipal payroll. Many cities, such as Philadelphia, New York City, Alexandria, Baltimore, Boston, and Wilmington have established the position of city archaeologist. In other cities (e.g., Tucson) an "on call" contract with an archaeologist assures the town of a professional consultant on an as needed basis.

Alternatively, there exist several creative strategies for obtaining technical archaeological assistance. The State Archaeologist and the State Historic Preservation Officer (SHPO) (this is a combined office in some states) should be tapped for as much guidance as possible. Federal agencies who might encourage involvement with the public/neighboring communities and their staff archaeologists might be able to assist local municipalities. A local government could divide the review and enforcement responsibilities between an individual who manages the daily office procedures and a part-time professional archaeologist who provides technical archaeological review. If qualified, a regular town planning and zoning or conservation commission staff member could be assigned the ordinance-related duties. Alternatively, an established historic district commission has state-empowered general advisory authority and might assume the coordinator role for the town. Several smaller communities could jointly employ a professional archaeologist, perhaps on a part-time basis. A nearby university or college could be a source for professional assistance on a limited budget. But unless a rigorous review process is instituted and upheld, the purpose of an archaeological preservation ordinance will not be attained.

How to Ensure Quality Archaeological Assessments

Specific guidelines for the level of documentary research and field investigation necessary to satisfy the town review board should be established and distributed to all interested parties (developers, contract archaeologists, review board). A concerted effort should be made to place an archaeologist or other well-qualified personnel on the town Planning and Zoning Commission since judging archaeological survey data may be one of the most difficult tasks of the local review board. Guidance may be requested from other agencies such as the SHPO, state or county archaeologist (e.g., in Pima County, Arizona) or an appropriate archaeological organization (e.g., the New York Archaeological Council and the Arkansas Archeological Survey). Professional archaeologists at nearby museums/colleges/universities may act as consultants to local governmental boards. Some states (e.g., Minnesota) have historical societies with established archaeological programs that might provide review assistance.

Archaeological work mandated on the local level can also contribute importantly to regional and state resource management. State historic preservation plans must consider all significant cultural resources. The SHPO needs to be kept abreast of local archaeological surveys so that its planning decisions can accurately reflect the current inventory of the state's resources. The local ordinance should require that copies of archaeological reports be forwarded to the appropriate SHPO and Office of State Archaeologist.

Obviously there is the probability that a locally-required archaeological survey will discover prehistoric or historic artifacts. A local museum or historical society is often not the proper repository for an archaeological collection since curatorial demands, storage requirements, and research activities can become too burdensome for a small organization. Town officials should actively encourage the donation of recovered materials to a state-designated repository.

Other Archaeological Protection Strategies

The time required to draft and enact an archaeological ordinance can be lengthy and it may meet with resistance from the local development community. Negative perceptions can be reduced if local citizens are exposed to municipal review and approval as a normal process. An initial public relations endeavor could be the proposed integration of archaeological considerations into an established architectural or historical design review committee. Certain municipalities (e.g. Wichita Falls, Texas) with extensive historic districts have included archaeological protection as one of the considerations of impact during the district review process. The Certified Local Government program, in place throughout the country and administered by the SHPOs, also provides a mechanism for archaeological consideration.

If a town or county government wishes to institute measures to protect archaeological resources prior to or instead of an ordinance, there are several possibilities. For example, earth mining can cause major disturbance to subsurface resources. A model Earth Removal Bylaw, formulated by the Massachusetts Southeastern Regional Planning District (Taunton, Massachusetts), includes a "Provision for the Safeguarding of Historic and Archaeological Resources." The California Environmental Quality Act enables local governments to regulate private land through discretionary permits. Larkspur, California took advantage of this Act and passed a law (1977) prohibiting the excavation or disturbance of any archaeological site without an investigation permit.

Another approach is relevant to those states having coastlines. Under federal and state Coastal Zone Management (CZM) policies, local planning and zoning agencies may have the authority to enact a plan review process when alteration/development is proposed for parcels in the coastal zone. Archaeological resource protection should become an integral factor in local CZM decision-making.

Some states, such as Florida, have enacted protective legislation for archaeological resources on locally designated landmark properties. In Dade County, Florida a nine-member preservation board is responsible for designating sites, districts, and archaeological zones that are significant in the county's history. Any proposed alteration to such a designated property cannot proceed without a permission certificate issued by the board (Dade County Ordinance No. 81-13).

Measures for a Resource-Threatening Emergency

When a town has not incorporated protective regulations into the planning and zoning review process, it has limited options if its cultural resources are threatened. Even if a town desires to establish an archaeological protection regulation, the required public hearing and approval process for such a regulation may take a considerable amount of time. Established archaeological programs in both Boston and Charleston took two years to implement. During such a lengthy process, threatened archaeological resources must be evaluated and protected on an emergency basis.

If a planning and zoning review board is confronted with the un-deniable need for archaeological protection and it has not yet instituted preservation regulations, it can still often require an archaeological assessment of the threatened parcel through the mechanism of "other documents." In standard review regulations is the category of "other documents" which can be requested of the applicant whenever such data is deemed necessary for an informed judgement.

Conclusion

Towns and cities have a responsibility to their cultural resources heritage. Historical and archaeological sites, often threatened by development proposals, are integral to the "public good." Accepting this responsibility and acting on the legal authority granted by the state legislature, municipalities can control the destruction of local archaeological sites through a variety of measures.

References Cited

Dade County, Florida, Ordinance No., 81-13.

Greenwich, Connecticut. Pursuant to Sectin 6-266(a)(19) of the Greenwich subdivision Regions, Guidelines for Archaeological Impact Statment Submission. Conservation Commission, Town Hall, Greenwich, CT 06836

Kearns, B. and C. Kirkorian (1987) Archaeological Resource Protection Handbook. Hartford: Connecticut Historical Commission/State Historic Preservation Office. A reference copy of the Handbook was distributed to all of the nation's SHPO offices; contact your particular state office in this regard.

Larkspur, California Larkspur Municipal Code 15.42, Ordinance 571-1977, Archaeological Investigation Permit.

Massachusetts Southeastern Regional Planning District (MARPD) Earth Removal Bylaw. Tauton, Massachusetts.

Westport, Connecticut Town Regulations: (1983) #44-1.8.4 Archaeological Report. Archaeologist, Town Hall, Westport, CT

Wichita Falls, Texas Code/Division 5, Design Review Commission.

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