Loading...
HomeMy WebLinkAboutCOM 0666.018 2006-2008 Ham, Kim Christopher J• Yueu Mayor Director W 'ti•••....••°+~° Brad Kurolcawa, ASLA ~ or x~ LEED®AP ~II~~#~i Df ~Fx~TMii Deputy Director PLANNING DIEPARTMENT ]01 Pauahi Street, Sui[e 3 Hilo, Hawaii 96720-4224 (808) 961-8288 • FAX (808) 961-8742 r..> r-~ October 3, 2007 Honorable Pete Hoffinann Chair and Presiding Officer and Members of the County Council COUNTY COUNCIL 333 Kilauea Avenue, Second Floor Hilo, HI 96720 Dear Chair Hoffinann and Members of the County Council: SUBJECT: BILL 176 -CULTURAL RESOURCES COMMISSION This is for information of council, it is a memo to planning department staff which explains policies and practices for the treatment of historic sites in the land use process. Sincerely' CHRISTOPHER J. YUEN Planning Director CJY:pak Wpwin60/Chris07/Hoffmann -Bill 176 -Cultural Resources Commission Attachment Comm. No. ~ Ref. To: Ref. Date OCT~- Hawaii Cowty is an Equa! Opportwity Provider and Employer. ~~~r oe p~e Harry Kim r • • Christopher J. Yuen na•yor Director •f~•. ~h~0! M•w Roy R. Takemoto Deputy Director (ICuun#g n~ ~.ttfvtttt PLANNING DEPARTMENT 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720.3043 (808)961-8288 Fax(808)961-8742 MEMORANDUM N0.03-13 Apri121, 2003 TO: PLANNERS FROM: CHRISTOPHER J. YUEN l/~ PLANNING DIRECTOR SUBJECT: HISTORIC SITES U The purpose of this memo is to create guidelines for the treatment of historic sites in the land use approval process, including implementation of the conditions during the physical development of property. This memo will include an overview of the historic sites review process, a statement of what,the planning department will expect with new applications, and standard procedures to follow in rezonings, SMA permits, special permits, subdivisions, and grading petmits. Objectives. It is useful to understand the overall objectives of any policy. Our main objective in implementing a historic sites policy is to ensure the long-term protection of significant physical features created by Native Hawaiians, and by the other cultures in Hawaii's history, including the restoration, repair, and interpretation of those features, where appropriate. We will try to do this without unreasonable delay or expense to landowners who have significant sites on their property and who are seeking land use approvals. The protection of historic sites is official county policy through the provisions of the General Plan, "Historic Sites" element, including the following goals or policies: "protect and enhance the sites, buildings and objects of significant historical and cultural importance to Hawaii"; "The County of Hawaii shall require both public and private developers of land to provide a historical survey prior to the clearing or development of land when there are indications that the land under consideration has historical significance." Planners Page 2 April 21, 2003 Because of the importance of historic sites, particularly in preserving the Hawaiian history and culture, they must be regarded as a major element that must be addressed early in the land use planning process. Specific Objectives. More specifically, in the various stages of the land approval and development process, our goals are to: (1) Ensure that land has been properly surveyed for historic sites; (2) Ensure that the sites have been properly assessed for their significance; (3) Require the long-term preservation of significant historic sites, and where they cannot be preserved, that they be properly recorded; (4) Follow up to ensure that conditions imposed at the initial approval stage are carved out during the physical development of the property, including the subdivision stage. Outline of Historic Review Process. Legal Aspects. It is important to have a basic understanding of the current laws protecting historic sites. The primary laws covering historic sites are contained in Chap. 6E of the Hawaii Revised Statutes. Chap. 6E designates the DLNR as the lead agency for historic sites protection. Administratively, historic sites are handled within DLNR by the - State Historic Sites Preservation Division ("SHPD".) The statute has a very broad defmition of "historic property" as basically anything man-made more than fifty years old. Burial sites-anywhere human remains are found, other than established cemeteries, are also covered in Chap. 6E as a special type of historic property. A relatively few sites of special importance, on public and private land, are on the state or national register of historic places. These are protected bylaw to a limited extent: if the owner wishes to alter the site, the state has 90 days to initiate condemnation, allow the owner to proceed, or negotiate a mutually agreeable mitigation plan. SHPD must review and concur with any project that may affect historic properties on state or county land. It is illegal to damage or alter historic properties on public property without SHPD approval. The key provision for most of the things that the Planning Department does is sec. 6E-42, which requires that an agency that is considering a land use permit (such as the Planning Department), that may affect historic property, must allow SHPD the opportunity to "review and comment" on the application. Most of this memo specifically covers these Planners Page 3 April 21, 2003 "sec. 6E-42" projects, which include all of the permits, rezonings, subdivisions, and other land use approvals for private property that are handled by the Planning Department. Key Point: except for burials, on land use approvals for private projects, SHPD has only "review and comment powers." Actual protection of the sites depends upon there being conditions of approval that protect the site. Planning Department staff should understand that when we make the preservation of certain sites a condition of permit or rezoning, violation of that is a violation of a zoning condition, and will generally not be a violation of a state regulation, unless it involves a burial or a property on the register. Projects requiring an EIS now require a cultural assessment as part of the EIS. (See H.R.S. sec. 343-2). The cultural assessment may include treatment of historic sites, particulazly their cultural significance. Most land use applications before the Planning Department will not, however, require an EIS, and the EIS and cultural assessment do not in themselves create conditions of approval on land use permits, unless they aze incorporated into the permits. SHPD Review Process It is important to understand the SHPD review process to understand how we will = coordinate with this process in our actions. This can be described in the following stages, which apply to the sec. 6E-42 projects that we will typically review. The SHPD review process is described in their rules, Title 13, Chaps. 275-284, especially Chap. 284, which governs the sec. 6E-42 process. These rules, which have been followed by SHPD and the archaeological community for about 15 years, were finally adopted by the BLNR on Nov. 15, 2002. As of this writing, they have not been signed by the Governor and are not yet "official", however SHPD procedures generally follow these rules. The draft rules aze available on DLNR's website (follow the links to SHPD.) The draft rules may not be exactly the same that the BLNR approved. 1. Inventory. SHPD will first determine whether to require an azchaeological inventory survey. If SHPD does not believe there are historic properties, it will issue a "no effect" letter. The applicant can ask fora "no effect" letter and submit documentation supporting it. A "no effect" letter ends the historic sites review and protection process, except that we will include a standard condition concerning archaeological sites that are found during development (stop work in the vicinity, inform SHPD and planning, etc.) If an inventory survey is required, SHPD will eventually issue a letter approving the Planners Page 4 Apri121, 2003 inventory survey confirming that it believes that all sites have been found. An inventory survey can also result in a "no effect" letter if the archaeologist does not find any sites. 2. Evaluation of Significance. The inventory survey report will contain the private archaeologist's assessment of significance. SHPD will review and concur or request modifications. The end result should be an SHPD letter agreeing with the significance evaluation of the sites in question. There are five listed criteria in the SHPD rules: a. "Be associated with events that have made an important contribution to the broad patterns of our history; b. Be associated with the lives of persons important in our past; c. Embody the distinctive characteristics of a type, period, or method of construction; represent the work of a master; or possess high artistic value; d. Have yielded, or is likely to yield, information important for reseazch on prehistory or history; or e. Have an important value to the native Hawaiian people or to another ethnic group of the state due to associations with cultural practices - once carried out at the property or due to associations with traditional beliefs, events or oral accounts-these associations being important to the group's history and cultural identity." The General Plan, under the Historic Sites element, has a similar list of criteria under "Standards" (p.4), but also includes "one of a few of its age remaining", and "sites with a preponderance of original materials in context and complexes rather than single isolated sites unless they are of great significance" as criteria of significance. Obviously, there is a subjective element in the evaluation of significance. If there are sites, but they are not deemed significant, SHPD will issue a "no effect" letter. 3. Determination of Effect. This is a determination whether the project will have any effect on significant historical property. The typical land use approval will have some effect because potential and indirect effects must be considered. Planners Page 5 Apri121, 2003 4. Mitigation. If there is an effect, the applicant is expected to submit a "mitigation commitment." There are five types of mitigation. The ones we will most commonly see are "preservation" and "archaeological data recovery." "Preservation" means just that, but it will usually require some kind of mazking of the site and a suitable buffer, and establishment of an easement for the site. It may also include a prohibition against landscaping within the buffer and a requirement that the site be marked. If a site is deemed significant solely under "d", SHPD will usually authorize that the site can be destroyed either with no further work, or after "data recovery." "Data recovery" may mean a small test excavation in the floor of a cave, or it may mean that a wall or platform can be taken apart. After data recovery, the site can be destroyed. 5. Detailed Mitigation. There will typically be two phases of the mitigation plan: an "interim" plan, which is good for the construction period, and a "final" plan, which is the permanent mitigation. The "interim" plan may call for monitoring during construction. Sometimes the "interim" protection plan will be approved long before the final. For our purposes it is usually safe to assume that if a site is not protected in the interim plan, it will not be protected in the final plan. - 6. Verification. SHPD is supposed to verify that the mitigation plan has been implemented. For example, there should be a data recovery report by the azchaeologist. For private projects that may affect historic properties, and for which an inventory survey will be necessary, the private contract archaeologist will typically submit stages 1-4 to SHPD concurrently. The significance evaluation and proposed mitigation treatment will typically be contained in the inventory survey. The inventory survey, or sometimes a separate document, will usually have a table listing all the sites, the contract archaeologist's significance determination, and proposed mitigation (such as "preservation", "data recovery", or "no further work", which means that the site can be destroyed.) SHPD has a time frame for responding to each stage of the application. As staff, you should expect to see letters from SHPD concurring that (1) all historic sites have been found, and accepting the inventory report, (2) concurring with the assessment of significance, (3) concurring with the determination of effect, (4) concurring with the Planners Page 6 Apri121, 2003 mitigation commitments and (5) agreeing to the detailed mitigation plan. There will eventually be some verification that the mitigation plan has been implemented. Generally, SHPD does not actually have the power to make private landowners preserve non-burial historic sites. Preservation can be imposed by the county (or LUC) as a condition of zoning, based upon SHPD review and comment. As a matter of normal practice, the Planning Department will make compliance with the interim and final preservation plans approved by SHPD be a condition of approval for administrative permits and approvals, when there has been a historic sites review, and we will recommend compliance with the same as a standard condition for land use permits and approvals where the Department makes a recommendation to the Planning Commission or the Council. The County and LUC can also require preservation of sites that SHPD does not. We will ordinarily not do this but it may turn out in the course of the land use approval process that a particular site has more cultural significance than realized by SHPD (for example, if there is public testimony about its significance). The assessment of significance is not a science. When reviewing azchaeological reports, you will notice classifications by "type", such as "wall", "platform", "mound", and "terrace". You will also note classification by "function", such as "permanent habitation", "shrine", "boundary marker", and "agricultural feature." While archaeologists will sometimes differ on the "type" classification, it is relatively straightforward compazed to the "functional" classification, which is open to a great deal of interpretation, and will often color the significance assessment. For example, a site maybe significant under criterion "e" if the archaeologist thinks it is a shrine. We will generally defer to SHPD in determining the adequacy of an inventory survey, whether an inventory survey is needed, significance assessments, and other aspects of the historical review process that are more the province of specialists in archaeology and historic sites than planning, per se. Applications The purpose of this portion of the memo is to set out common expectations and requirements for the treatment of historic sites at each stage of our common types of land use approvals and applications. It is important to give a common understanding to applicants about what we expect. Also, because we have time frames as well, we need to Planners Page 7 ` Apri121, 2003 coordinate with the SHPD time frames. The following comments with respect to rezonings, SMA permits, and special permits, assume that there has been no prior historic sites review. 1. Rezonings and non-LUC boundary amendments The application should be accompanied by one of the following: 1. An archaeological inventory report, containing significance assessments, effect determinations, and proposed mitigation commitments. The report will have to be done pursuant to SHPD rules, but we will not require SHPD approval of the report, assessments, and mitigation before accepting the application for further processing. (These stages can take some time even when there is substantial agreement about what needs to be preserved.) 2. A "no effect" letter from SHPD. 3. A letter from the applicant to SHPD requesting a "no effect" letter, including supporting documentation, to which SHPD has not responded after 30 days (their time limit under their rules.) - If the applicant is relying upon #3, staff should review the documentation to see if the applicant has logically established the probability of "no effect". We have an independent obligation under the PASH and Ka Pa'akai court decisions to protect native Hawaiian cultural practices and resources, and we must still do this if SHPD has, for some reason, failed to act. Generally, the following are strong indications that there are no historic sites and we are safe in assuming "no effect": intensive cultivation, such as former sugar cane fields; prior bulldozing; chain dragging for pastures; urbanization (for example, requests for use permits in residential subdivisions); recent lava flows. We can also accept short letter reports from archaeologists who have made site surveys, less than full inventory surveys, to establish "no effect" under #3. (SHPD will sometimes rely on these in issuing a "no effect" letter.) On the other hand, previously undeveloped coastal property is likely to contain historic sites. If staff feels that there maybe historic sites present, and the applicant is relying upon #3, please bring the application to the director before accepting it as complete. We may require an inventory surveyor some further archaeological work as a condition of approval. Before we prepare our staff recommendation to the Planning Commission, we should have SHPD concurrence that the inventory survey has found all significant sites, and Planners Page 8 Apri121, 2003 concurrence on the significance assessments, effect determinations, and proposed mitigation. In most cases, the presence of historic sites alone will not cause us to recommend denial of a rezoning or redistricting, although it may be a factor. In the ordinary case, if we are otherwise going to recommend approval, we will handle the historic sites by way of conditions of approval. Our standard conditions will be as follows: 1. Prior to any land disturbance, that there be anSHPD-approved interim mitigation plan. 2. Prior to final subdivision approval, or plan approval for projects that may not result in subdivisions, that there be anSHPD-approved final mitigation plan. 3. That the applicant shall comply with all conditions of the interim and final mitigation plan. 4. That the sites listed for preservation on the mitigation commitment shall be preserved in place, with buffers as recommended on the interim or final mitigation plan, as the case maybe, and that they be 1 delineated as archaeological preservation easements on the final subdivision map, or in some other map if the project is not going to be subdivided. 5. That if any sites are found, construction shall cease, etc. 6. That "data recovery" sites can be converted to "preservation" sites (sometimes developers would prefer to do this because of the cost of data recovery.) 7. Burials shall be treated per an approved burial treatment plan. The applicant does not have to have the plan approved before the Planning Commission hearing, but we need to have the burials identified so that we know what the constraints will be on the development of the property. As previously stated, the plan will generally require the burials to be preserved in place, with buffers. There is a possibility that SHPD will not have approved stages 1-4 of the process by the time that we must make a recommendation to the Planning Commission for a rezoning. This can happened for a number of reasons, even though there should be enough time under the SHPD rules. If there has been an inventory survey, but SHPD has not Planners Page 9 Apri121, 2003 determined that it located all sites, we should generally ask the applicant to consent to a time extension, and if the applicant refuses, recommend disapproval. If the sites have been found, but there is disagreement between SHPD and the applicant over significance and/or mitigation, we should recommend mitigation per SHPD's recommendation. Sometimes it will be apparent from the correspondence between SHPD and the applicant that they have no real disagreement over what should finally be preserved, but there are technical problems that prevent the acceptance of the report. In those cases, we can go ahead with the standard conditions, and listing the applicant's preservation sites. We can recommend approval of the application on condition that the applicant conforms to a mitigation plan that will be approved in the future. At the stage of rezoning, we need to know what sites will be protected long-teen, and have some idea of the general buffers. The details of whether there will be interpretation of the site, or how data recovery will be done for those sites, does not have to be established at the time of rezoning. Special permits, SMA permits, and Use Permits. Same as rezonings, except that we will not require a "no effect" letter with the application if the project does not seem to call for any new land disturbance or activities that might negatively affect historic sites. The reason for this exception is that these permits often involve the conversion of existing land uses, such as B&B's in existing buildings, and hence should have "no effect". If we require the "no effect letter" with the application we will be delaying the application by at least a month. The applicant should at least request a "no effect" letter upon applying, so that we should.have one in hand by the time of making our recommendation. Subdivisions with Prior Historic Sites Review. If there has been a review of historic sites already, the final implementation of the protection of the sites must be done in the subdivision process, for those projects that result in subdivision. Naturally, if there is a "no effect" letter, nothing needs to happen during subdivision review, except for sites that may be discovered during construction. Subdivision section will have to review the rezoning ordinance, or SMA permit, if applicable, to determine whether there was a prior historic sites review and the conditions of approval. Planners Page 10 ~ Apri121, 2003 The subdivider should show the locations of preservation sites on the preliminary plat map (or an overlay) in sufficient detail so that we can be sure that we are not approving subdivision infrastructure such as roads that will impact the preservation sites. Tentative subdivision approval will include as a condition the finalization of other historic sites conditions, such as the completion of data recovery. The final plat map must show the preservation sites (including any data recovery sites that have been converted to preservation sites), and burials that are to be preserved in place, as easements on the map. The final plat map becomes the basis for the revised tax map, and our staff will use the map in reviewing applications for things like grading permits and building permits. It is unrealistic to think that staff will go into the files to review the archaeological inventory survey to determine whether historic sites might be impacted. The final plat map'is also notice to the eventual purchasers of the lot. At the time of final approval, staff should also check to make sure that the SHPD requirements for data recovery and other aspects of the mitigation plan have been completed. We must not let the subdivider pass these off to the purchasers of the lot. i Burials. - Burials have much more thorough legal protection than other types of historic properties. For "known" Native Hawaiian burials, including those discovered during archaeological surveys, any development that may affect the burial must have a "Burial Treatment Plan" approved by the Burial Council of the island. Before the Burial Council meets, there will be a newspaper notice asking for potential family members to come forward and take part in the decision. Typically, the Burial Council will require preservation in place, with buffers, unless completely impractical, such as a road alignment that cannot be changed. A known burial must be preserved in place unless the Burial Council authorizes otherwise. When a burial is "inadvertently" discovered, such as by a bulldozer operator during construction, SHPD can authorize removal, in consultation with the Burial Council. Work should stop in the immediate vicinity and SHPD must be informed. The remains can then be removed by SHPD and temporarily stored by SHPD. Then, there is a consultative process with the Burial Council and possible descendants over the eventual treatment. The Burial Council does not have the power to order reinterment in the same place for an "inadvertent" burial against the wishes of the landowner. Planners Page I1 Apri121, 2003 For applications where there are "known" burials, we will include a standazd condition that the applicant conform to an approved Burial Treatment Plan. Ideally, we would have this before final approval of an application. We can proceed if we do not, but in that case we have to assume that the final plan will require preservation in place, with buffers, and not approve construction that would be inconsistent with the probable final plan. Under Burial Council rules, burial sites can be declared "sensitive" and their location kept confidential. This poses a problem in our future review of building permits and grading permits. I will be writing to the Burial Council suggesting that the Planning Department handle these by making a notation in the tax maps, and that we then route building and grading permits that may affect them to SHPD for comment to make sure that the "sensitive" burial site will not be affected. Exceptions. There maybe situations that arise where applying the guidelines and principles stated above will cause undue hazdship or delay. There are times, for example, where final approval of a preservation plan maybe delayed by factors that do not affect which sites will be protected, such as a disagreement by SHPD over the analysis made by the private archaeologist. We will make some exceptions in such situations where we can do so without compromising the final objectives. Resources. SHPD has a "Bibliography" on the Web at http://mano.icsd.hawaii.~ov/-ckomoek/. Currently, it is "down" for maintenance, but when it is available, you can get a list of archaeological studies that have been done on a parcel, by TMK. The studies themselves are available in SHPD's library at Kapolei. SHPD also has a statewide inventory of historic sites, on the Web through their links (under DLNR), but unfortunately, it has not been kept up for the island of Hawaii. Finally, there is a list of all historic properties on the national and state registers. CJY:pak Wpin60/Chris/Historic sites memol.doc cc: Lester Ishado, Esq. Patricia O'Toole, Esq. Ivan Torigoe, Esq. Mike Kagami, Esq. Ms. P. Holly McEidowney, Acting Administrator. DLNR, Historic Preservation Division