**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]{.underline} (Kearns and
Kirkorian 1987). Intended for state-wide distribution to town planning
boards, the [Handbook]{.underline} 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]{.underline}, 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]{.underline} 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]{.underline}, 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]{.underline}. Conservation Commission, Town Hall, Greenwich,
CT 06836

Kearns, B. and C. Kirkorian (1987) [Archaeological Resource Protection
Handbook. Hartford]{.underline}: Connecticut Historical Commission/State
Historic Preservation Office. A reference copy of the
[Handbook]{.underline} 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]{.underline}.

Massachusetts Southeastern Regional Planning District (MARPD) [Earth
Removal Bylaw]{.underline}. Tauton, Massachusetts.

Westport, Connecticut Town Regulations: (1983) #44-1.8.4 [Archaeological
Report]{.underline}. Archaeologist, Town Hall, Westport, CT

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