Chapter 19.05 — ARCHAEOLOGICAL SITE REVIEW

Section

• 19.05.001 Declaration of purpose
• 19.05.002 Definitions
• 19.05.003 Prohibitions
• 19.05.004 Fraudulent transfers
• 19.05.005 Project review and archaeological assessments
• 19.05.006 Project approval
• 19.05.007 Site discovered during excavation or development
• 19.05.008 Issuance of site development approval
• 19.05.009 Issuance of archaeological excavation approval
• 19.05.010 Expiration
• 19.05.011 Appeals
• 19.05.012 Finality of decision
• 19.05.013 Enforcement

The intent of this chapter is to protect, preserve and show respect for Native American, Spanish, Mexican, Euroamerican and other archaeological sites and resources within the county of San Benito. There exist in the county areas known and yet to be discovered which contain significant cultural and archaeological sites which contain unique, irreplaceable, or religious resources significant to the history of the county and for the cultural heritage of the citizens of the county and state. This archaeological resource is fast disappearing as a result of public and private land development. It is the policy of San Benito County to preserve the county’s historic identity and integrity (Goal #7 Objective a of Land Use Element 1980). This chapter establishes regulations for the protection, enhancement, and perpetuation of archaeological sites in order to promote the public welfare, and to implement General Plan policy and state law. (1966 Code, § 5B-1) (Ord. 610, § 1)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section. ARCHAEOLOGICAL EXCAVATION APPROVAL. An approval issued by the County of San Benito pursuant to this

chapter to a qualified professional archaeologist, authorizing excavation of an archaeological site for scientific purposes or as a mitigation measure in order to preserve a sample of the remains, artifacts or other evidence. ARCHAEOLOGICAL/CULTURAL RESOURCE. Consistent with CEQA, Appendix K, an archaeological resource is one which: (1) Is associated with an event or person of: (a) Recognized significance in California or American history; or (b) Recognized scientific importance in prehistory. (2) Can provide information which is both of demonstrable public interest and useful in addressing scientifically consequential and reasonable archaeological research questions; (3) Has a special or particular quality such as oldest, best example, largest or last surviving example of its kind; (4) Is at least 100 years old and possesses substantial stratigraphic integrity; or (5) Involves important research questions that historical research has shown can be answered only with archaeological methods. ARCHAEOLOGICAL/CULTURAL SITE. Any mound, midden, cave, place of settlement, burial ground, ceremonial ground, mine, trail, rock art or other feature or location containing either human remains or artifacts of Native Californians. Any artifacts left by Spanish, Mexican, Euroamerican and the like settlers. Whenever the word SITE is used in this chapter, it means an ARCHAEOLOGICAL/CULTURAL SITE. ARCHAEOLOGICAL REPORT. A comprehensive investigation of an archaeological site prepared by a qualified professional archaeologist pursuant to this chapter. The purpose of the report is to determine the extent and significance of the site and to provide recommendations for mitigation measures. ARCHAEOLOGICAL SENSITIVE AREAS. Areas of the county designated on maps prepared by the Planning Department in consultation with professional archaeologists, where artifacts and/or human remains of Native American peoples are likely to exist. These maps shall be kept on file in the Planning Department and shall be available only to county planners and professional archaeologists. ARCHAEOLOGICAL SURVEY. A brief preliminary surface investigation or reconnaissance performed under the guidance of a qualified professional archaeologist for the purpose of determining the presence and/or extent of an archaeological site on a parcel for which a project is proposed. ARTIFACT. Material remains which provide significant evidence of the activities of a prehistoric culture or historic tribe, or Spanish, Mexican, Euroamerican and the like settlers. BURIAL. The placement of human remains in a grave inside or outside a burial park. CULTURAL SIGNIFICANCE. An archaeological site shall be deemed a site of “cultural significance” if it meets any of the criteria herein. DISCRETIONARY PROJECT. A project which requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances or regulations. GROUND DISTURBANCE. Development activity resulting in the manipulation of the terrain or of earth materials such as rock or soil including excavation, grading, placement of structures, trenching for utilities or foundations, but excluding agricultural activities. HUMAN REMAINS. The body, or any part thereof, of a deceased human being in any stage of decomposition. INTERMENT. The disposition of human remains by inurnment, entombment or burial. KNOWINGLY. A person who disturbs, excavates or causes to be disturbed or excavated an archaeological site shall be deemed to have done so “knowingly” if the person knew, or reasonably should have known, that the area contained artifacts, remains or other evidence of an archaeological site. MOST LIKELY DESCENDANT. A person who is a direct descendant of an identified Native American band or tribe indigenous to San Benito County. This determination is made by the state’s Native American Heritage Commission. PROPERTY OWNER. The record owner of any site subject to the provisions of the ordinance codified in this chapter. For purposes of this chapter, PROPERTY OWNER includes any known occupier of the site in question. QUALIFIED ARCHAEOLOGIST. A person who meets or surpasses basic requirements for education, research, analysis and report writing established as necessary for certification by the Society of Professional Archaeologists (SOPA). RECORDED ARCHAEOLOGICAL SITE. A known archaeological site which has been officially recorded with a recognized scientific archaeological body, such as the California Archaeological Inventory in Rohnert Park, California. (1966 Code, § 5B-2) (Ord. 610, § 2)

(A) It is unlawful for any person knowingly to disturb or cause to be disturbed or to excavate, or cause to be excavated, any archaeological site in violation of this chapter. (B) Except as provided in § 19.05.007 of this chapter, it shall be unlawful for any person knowingly to disturb, or cause to be disturbed or to excavate, or cause to be excavated, any archaeological site without, or in violation of the terms of a permit issued pursuant to this chapter. (1966 Code, § 5B-3) (Ord. 610, § 3)

It is unlawful for any person to place, install, plant or otherwise transfer to any property any artifacts, remains or other evidence, whether real or manufactured, of an archaeological site for the purpose of requiring the property owner to comply with the provisions of this chapter. (1966 Code, § 5B-4) (Ord. 610, § 4)

(A) Archaeological survey. (1) Prior to accepting an application as complete for any discretionary project which will result in ground disturbance, an archaeological survey shall be required as well as a search of records of recorded archaeological sites. In addition, an archaeological survey shall be required for any discretionary project which will result in ground disturbance within 500 feet of a recorded archaeological site. The archaeological survey shall be prepared according to procedures established by the Planning Director. (2) Based on the results of the archaeological survey, the Planning Director shall determine if a project site contains a site of cultural significance. If the site is determined to be culturally significant and if development of that project will result in disturbance of the site, then the Planning Director shall inform the property owner that an archaeological report must be prepared. (B) Archaeological report. An archaeological report shall be required prior to the issuance of any project permits or approvals when a project site contains a culturally significant site and when development of the project will result in the disturbance of that site. The report shall be written by a qualified archaeologist and shall include information as set forth in the county’s archaeological report guidelines available at the county’s Planning Department. (1966 Code, § 5B-5) (Ord. 610, § 5)

(A) Whenever an archaeological site is discovered during the review of a proposed project, any permit subsequently issued shall contain whatever conditions the decision-making body shall determine necessary to promote the purposes of this chapter. Such conditions shall be based on the archaeological report in consultation with the Native American Heritage Commission. (B) Conditions shall include, but not be limited to, the following: (1) All appropriate preservation or mitigation measures. Such measures shall include, but not be limited to, the following. The preferred alternative shall be division (B)(1)(a) below. (a) Preservation of the site through project design or restrictions on use and/or grading, such as restricting improvement and grading activities to portions of the property not containing the resource, or covering the site with earthfill to a depth where the site will not be disturbed by development as determined by a professional archaeologist; and/or (b) Excavation of the site by a professional archaeologist in order to preserve a sample of the human remains, artifacts or other evidence. The excavation may take place only as authorized by an archaeological excavation permit. (2) A provision that if previously undiscovered human remains are encountered during the course of excavation or development, the procedures of this chapter shall be followed. (3) A provision that the applicant pay the full costs of any preservation or mitigation measures required under divisions (B)(1) and (2) above. (1966 Code, § 5B-6) (Ord. 610, § 6)

(A) Presence of artifacts and/or human remains. Any property owner who, at any time in the preparation for or process of excavating or otherwise disturbing the ground, discovers any human remains of any age, or any significant artifact or other evidence of an archaeological site, shall:

(1) Cease and desist from all further excavations and disturbances within 200 feet of the discovery or in any nearby area reasonably suspected to overlie adjacent remains; (2) Arrange for staking completely around the area of discovery by visible stakes no more than ten feet apart, forming a circle having a radius of no less than 100 feet from the point of discovery; provided, however, that the staking need not take place on adjoining property unless the owner of the adjoining property authorizes the staking. The staking shall not include flags or other devices which may attract vandals; (3) Notify the Sheriff-Coroner of the discovery if human and/or questionable remains have been discovered. The Planning Director shall also be notified; and (4) Subject to the legal process, grant all duly authorized representatives of the coroner and the Planning Director permission to enter onto the property and to take all actions consistent with this chapter and consistent with Cal. Health and Safety Code § 7050.5 and Cal. Gov’t Code Chapter 10 (commencing with § 27460) of Part 3 of Division 2 of Title 3. (B) Human remains. In the event of discovery or recognition of any human remains in any location other than a dedicated cemetery, there shall be no further excavation or disturbance of the site or any nearby area reasonably suspected to overlie adjacent remains or artifacts. (C) Property inspection. Upon notification of the discovery, the Planning Director shall arrange for an inspection of the property and shall notify the coroner and the Native American Heritage Commission. (1) The Planning Director may use the services of a qualified archaeologist in making inspections and determinations on archaeological sites. The archaeological services shall be at the expense of the applicant for the project. The inspection shall take place within two working days of the notice to the Director of the discovery. The property owner and a representative of local Native Californian Indian groups designated by the Native American Heritage Commission as the most likely descendant shall be notified of the time of the inspection and both may accompany the Director and his or her representative at all times on the property. The purpose of the inspection shall be to determine whether the discovery is a site of archaeological/cultural significance and to make recommendations to the property owner and the person responsible for the excavation work regarding the treatment of the human remains and any associated grave goods. The inspection shall be made pursuant to Cal. Public Resources Code § 5097.98. (2) The Coroner shall determine whether the remains are subject to the provisions of Cal. Gov’t Code § 27491 or any other related provisions of the law concerning investigation of the circumstances, manner and cause of any death, and the recommendations concerning the treatment of disposition of the human remains in a manner consistent with Cal. Public Resources Code § 5097.98. The coroner shall make his or her determination within two working days from the time the person responsible for the excavation, or his or her authorized representative, notifies the coroner of the discovery or recognition of the human remains. (D) Resumption of the development. (1) If the aforementioned inspection has not taken place within three working days of notice of discovery to the Planning Director, ground disturbance of the property may proceed; except, however, that if human remains have been discovered, no excavation or development may take place until specifically authorized by the Coroner. (2) If the Planning Director determines, based on recommendations of those individuals with whom the Director consults pursuant to this section, that the discovery is not a site of cultural significance, the Director shall notify the property owner of the determination, and excavation or the development may resume. The notice, in either event, may be given orally but shall be confirmed to the property owner in writing. (E) Culturally significant sites. If the Planning Director determines that the discovery is a site of cultural significance, the Director shall notify the property owner that the site is of cultural significance and that an archaeological report must be prepared and completed within 90 days and no further excavation or development may take place except as authorized by an archaeological site development approval. The property owner may appeal the decision of the Planning Director as specified in § 19.05.011. (F) Recordation of sites. The Director shall ensure that all archaeological sites shall be recorded with and assigned a reference number by the California Archaeological Inventory. Copies of archaeological site records and reports shall be submitted to the California Archaeological Inventory for inclusion in the inventory. (1966 Code, § 5B-7) (Ord. 610, § 7)

(A) When the Planning Director has determined that a culturally significant site may have been discovered during excavation the Planning Director shall give notice to the property owner and shall require an archaeological site development approval prior to resumption of excavation. (B) The archaeological site development approval shall be reviewed and issued by the Planning Director or his or her designee following an administrative hearing to occur not later than 14 days following the completion of the archaeological report. Notice of the hearing shall be given to the property owner, the Native American Heritage Commission and a representative of the most likely descendants of the local Native American groups. Any approval notice shall contain conditions established by the Planning Director, in consultation with the Native American Heritage Commission, which

conditions are to be based upon the findings of an archaeological report. The conditions shall promote the purposes of this chapter. In establishing these conditions, the Director shall balance the need for preserving the site against the need to avoid unnecessary financial hardship to the property owner and all persons engaged in construction on the site. (C) In all cases, the archaeological site development approval shall authorize resumption of excavation within 30 days of the date of the aforementioned on-site inspection or receipt of the archaeological report. The date for resumption of ground disturbance may be extended up to 47 additional days by order of the Planning Commission upon application by an interested party. Notice of the application and the time for consideration of the application shall be given to the property owner by the Planning Department. An application for extension of the date of resumption of ground disturbance must be made within five days of the issuance of archaeological site development approval. The hearing shall be held before expiration of the 30-day resumption period. (1966 Code, § 5B-8) (Ord. 610, § 8)

(A) Any qualified professional archaeologist who proposes to excavate an archaeological site shall apply to the Planning Director for an archaeological excavation approval. Applications for archaeological excavation approvals shall be in a form approved by the Planning Director. (B) Every application for an archaeological excavation approval shall contain the following information: (1) The name, address and qualifications of the responsible archaeologist; (2) A description and map of the exact location of the site to be excavated; (3) A specific project termination date, not to exceed one year. Any written report required as a condition of the approval shall be filed with the Director within one year of issuance of the approval. This report shall be available for review only on a need to know basis, in order to keep known sites confidential. If the plan is to be made available to the general public it will not include the specific location of any archaeological resources. Confidential reports shall be noted as such on the cover; (4) A statement of the goals of the excavation project, and the methods and techniques to be employed in the excavation and analysis of the data and a research design as set forth in county guidelines available at the county’s Planning Department; (5) Plans to ensure that the artifacts and records will be properly preserved for scholarly research and public education, and that the Native American artifacts will ultimately be disposed of in a manner satisfactory to the Native American Heritage Commission or its designee; (6) A plan for disposing of any Native American human remains that are discovered on the site in a manner satisfactory to the native American Heritage Commission or its designee; and (7) A statement of reasons why excavation of the site will be of value to local Native American groups or to humankind generally. (C) Any archaeological excavation application shall be reviewed by the Planning Director or his or her designee. The approval shall contain whatever conditions the Planning Director, after consultation with local Native American Heritage Commission and/or the local historical society determines to impose in order to promote the purposes of this chapter. The conditions shall include but not be limited to an agreement to provide a list of all items removed, the date of removal and the present location of the items. The list shall be signed by the permittee. The Planning Department shall forward the list to the California Archaeological Site Inventory. The archaeological excavation approval may also include a provision requiring publication of the data and report according to current professional standards. (D) The Planning Director may issue the approval authorized by this section on an emergency basis, without requiring the detailed application form, the consultation process, and the written approval conditions provided for in divisions (A), (B) and (C) of this section whenever there exists, as to a specific site, an immediate and clear danger that artifacts, culturally significant materials or any information that might be derived therefrom, will be destroyed or lost due to natural or human causes before the normal archaeological approval process could be completed. All appropriate scientific methods shall be used during such emergency excavations, and any artifacts or materials recovered shall be disposed of as provided in division (B) of this section. (1966 Code, § 5B-9) (Ord. 610, § 9)

Unless otherwise specified, approvals issued pursuant to this chapter shall expire one year from the date of issuance if not exercised. (1966 Code, § 5B-10) (Ord. 610, § 10)

(A) Appellant; appeals body. Any interested party may appeal any decision of the Planning Director to the Planning Commission or any decision of the Planning Commission to the Board of Supervisors. For the purposes of this section the Planning Commission or the Board of Supervisors when acting as the body hearing an appeal shall be referred to as the “appeals body”. (B) Time for appeal; application; fee; grounds. Any appeal shall be filed with the appropriate appeals body not later than five days after the challenged decision. The appeal shall be made on an application form approved by the Planning Department, and accompanied by the required fee. The specific grounds for the appeal shall be stated. Omitted grounds shall not be considered and the appellant’s failure to state a ground constitutes a waiver of the right to subsequently raise the omitted ground. (C) Hearing; evidence. The appeal shall be a public hearing conducted de novo. The hearing shall commence at the next available meeting date of the appeals body after the filing of the appeal. In no event shall the hearing commence later than 60 days after the filing of the appeal. The hearing may be continued from to time at the discretion of the appeals body, but in no event shall the hearing be continued for more than 60 days, unless consented to by the property owner and the appellant, if other than the property owner. The appeals body shall consider any relevant, reliable evidence. The admission of evidence shall not be governed by the technical, legal rules of evidence. Rather, any evidence which may be relied upon by a reasonable person conducting serious business affairs shall be admitted. (D) Basis for decision. The appeals body shall state the basis for its decision. If the appeals body acts to reverse or modify the decision it reviews, it shall state the nature of the error requiring the reversal or modification. (E) Notice of appeal. The notice of appeal also shall be given to property owner if property owner is not the appellant. In all cases, a notice of appeal shall be published in a newspaper of general circulation at least ten days in advance of the commencement of the hearing. (1966 Code, § 5B-11) (Ord. 610, § 11)

Any initial decision made by the Planning Director or Planning Commission under this chapter is not final until the later date of either: (A) If no appeal is filed the expiration of the time for the filing of an appeal; or (B) If an appeal is filed, the date a final decision is made by the appeals body hearing a final appeal possible under this chapter. (1966 Code, § 5B-12) (Ord. 610, § 12)

(A) Violation; criminal penalties. Any person violating any provision of this chapter is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.03 of this code. (B) Violation; public nuisance. Any violation of this chapter is unlawful and a public nuisance and shall be abated, eliminated and enjoined as provided in Chapter 1.03 of this code. (C) Remedies; cumulative. Except as otherwise provided by law, the remedies in this chapter are cumulative and not exclusive. Nothing in this chapter is intended or shall be deemed or construed, to limit or impart the ability of the county, or any of its officers, agents or employees, to take any administrative or judicial action, otherwise authorized by law, to abate any public nuisance. Chapter 1.03 of this code is incorporated by reference as though its provisions were fully set forth herein. (D) Enforcement. The provisions of this chapter shall be enforced by the Director of Planning or his or her designee. (1966 Code, § 5B-13) (Ord. 610, § 13)