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HomeMy WebLinkAboutAgenda Packet 10/10/2006 CITY OF A TASCA DERO CITY COUNCIL AGENDA Tuesday, October 10, 2006 7:00 P.M. City Hall Council Chambers 6907 EI Camino Real Atascadero, California REDEVELOPMENT AGENCY: 6:30 P.M. • CLOSED SESSION: (Immediately Following Redevelopment Agency Meeting) 1. PUBLIC COMMENT- CLOSED SESSION 2. CALL TO ORDER a. Conference with negotiator over real property. (Govt. Code Sec. 54956.8) Negotiator: City Manager Wade McKinney Property: 8300, 8350 & 8400 Toloso Road 3. ADJOURN 4. CLOSED SESSION REPORT REGULAR SESSION: 7:00 P.M. PLEDGE OF ALLEGIANCE: Council Member Clay ROLL CALL: Mayor O'Malley Mayor Pro Tem Pacas • Council Member Clay Council Member Luna Council Member (Vacant) COMMUNITY FORUM: (This portion of the meeting is reserved for persons wanting to address the Council on any matter not on this agenda and over which the Council has jurisdiction. Speakers are limited to five minutes. Please state your name for the record before making your presentation. The Council may take action to direct the staff to place a matter of business on a future agenda. A maximum of 30 minutes will be allowed for Community Forum, unless changed by the Council.) APPROVAL OF AGENDA: Roll Call COUNCIL ANNOUNCEMENTS AND REPORTS: (On their own initiative, Council Members "may make a brief announcement or a brief report on their own activities. Council Members may ask a question for clarification, make a referral to staff or take action to have staff place a matter of business on a future agenda. The Council may take action on items listed on the Agenda.) 1. Council Member Luna — The Atascadero Colony Days Committee S rejection of Oppose Wal-Mart's application to participate in the Colony Days Parade. A. CONSENT CALENDAR: (All items on the consent calendar are considered to be routine and non-controversial by City staff and will be approved by one motion if no member of the Council or public wishes to comment or ask questions. If comment or discussion is desired by anyone, the item will be removed from the consent calendar and will be considered in the listed sequence with an opportunity for any member of the public to address the Council concerning the item before action is taken.) 1. City Council Meeting Minutes — September 12, 2006 ■ City Clerk Recommendation: Council approve the City Council meeting minutes of September 12, 2006. [City Clerk] -- - - -- -2. --Conflict-of Interest--Code___Biennia-FReview_ -_ -_ --- ■ Fiscal Impact: None. ■ Recommendation: Council adopt the Draft Resolution, updating and amending the Conflict of Interest Code for the City of Atascadero. [City Clerk] • 3. Single-Family Planned Development#16/Zone Change 2005-0107 /2865 Ferrocarril Road (Tharp/Beck) ■ Fiscal Impact: None. ■ Recommendation: Council adopt on second reading, by title only, Draft Ordinance A approving Zone Change 2005-0107 based on findings. [Community Development] 4. City Hall Historic Consultant Contract Authorization ■ Fiscal Impact: Staff has not received a scope of work from the consultant due to the tight timelines. Staff is confident that the cost of the contract will not exceed $70,000. ■ Recommendation: Council authorize the City Manager to approve a contract for a consultant to prepare a Section 106 historic evaluation of City Hall. [Community Development] 5. Revised Temporary Road Closure — Winter Wonderland (Atascadero Main Street) • Fiscal Impact: $160.00 for the installation of Road Closed signs by Public Works staff. ■ Recommendation: Council approve the request by Atascadero Main Street for the additional road closures of Palma Avenue (from Traffic Way to West Mall) and Entrada Avenue (from EI Camino Real to Palma) for Winter Wonderland on December 1 st, 2006. [Public Works] 6. Temporary Road Closure/ Mobley's Board Shop ■ Fiscal Impact: $160.00 for the installation of Road Closed signs by Public Works staff. Recommendation: Council approve a request from Mobley's Board Shop to close a portion of Palma Avenue, from Traffic Way to Entrada, on Tuesday, October 31, 2006 from 1:00 p.m. — 11:59 p.m. [Public Works] B. PUBLIC HEARING: 1. Interim Urgency Ordinance Establishing a Moratorium on the Approval of "Site Condominiums" ■ Description: Temporary Ordinance establishing a moratorium for the approval of "site condominiums." ■ Fiscal Impact: None. ■ Recommendation: Council adopt the attached interim urgency Ordinance establishing a moratorium on the approval of "site condominiums. [City Attorney] • C. MANAGEMENT REPORTS: 1. Sprinkler Ordinance Review • ■ Fiscal Impact: None. ■ Recommendation: Council receive and file a management report reviewing the Sprinkler Ordinance. [Fire] 2. Request by San Luis Obispo County Board of Supervisors (SLOBOS) for Consent to Create a San Luis Obispo Tourism Business Improvement District (SLOTBID) ■ Fiscal Impact: None. ■ Recommendation: Council adopt Draft Resolution, authorizing the SLOBOS to create the SLOTBID, and grant the SLOBOS jurisdiction for all the purposes in connection with creation and operation of the proposed SLOTBID, with input from the lodging businesses and participating cities. [City Manager] 3. Informational Item: Dove Creek Development Required Improvements for the US 101/Santa Barbara Interchange ■ Fiscal Impact: None. ■ Recommendation: Informational item only, no staff recommendation at this time. City Staff is bringing this before the City Council to inform that home buyers in this Project may be prohibited from occupying their homes until this issue is satisfactorily resolved. [Public Works] 4. Historic Atascadero Printery Building Restoration Status Update • ■ Fiscal Impact: None. ■ Recommendation: Council receive and file report. [Community Development] D. COMMITTEE & LIAISON REPORTS: (The following represent standing committees. Informative status reports will be given, as felt necessary): Mayor O'Malley 1. County Mayor's Round Table 2. Finance Committee 3. Air Pollution Control District (APCD) 4. Economic Vitality Corporation, Board of Directors (EVC) 5. League of California Cities — Grassroots Network 6. Economic Opportunity Commission (EOC) 7. SLO Council of Governments (SLOCOG) / S.L.O. Regional Transit Authority (SLORTA) Mayor Pro Tem Pacas 1. Integrated Waste Management Authority (IWMA) 2. City/ Schools Committee • 3. Atascadero Youth Task Force Council Member Clay 1 . S.L.O. County Flood Control & Water Conservation District Water Resources . Advisory Committee 2. Nacimiento Water Purveyors Contract Technical Advisory Group 3. North County Water Purveyors Group 4. City/ Schools Committee Council Member Luna 1 . Finance Committee E. INDIVIDUAL DETERMINATION AND/OR ACTION: 1 . City Council 2. City Clerk 3. City Treasurer 4. City Attorney 5. City Manager F. ADJOURNMENT: Please note: Should anyone challenge any proposed development entitlement listed on this Agenda in court, that person may be limited to raising those issues addressed at the public hearing described in this notice, or in written • correspondence delivered to the City Council at or prior to this public hearing. Correspondence submitted at this public hearing will be distributed to the Council and available for review in the City Clerk's office. I, Shannon Sims, Deputy City Clerk of the City of Atascadero, declare under the penalty of perjury that the foregoing agenda for the October 10, 2006 Regular Session of the Atascadero City Council was posted on October 3, 2006 at the Atascadero City Hall, 6907 EI Camino Real, Atascadero, CA 93422 and was available for public review in the Customer Service Center at that location. Signed this 3rd day of October, 2006 at Atascadero, California. "S Shannon Sims, Deputy City Clerk City of Atascadero • City of Atascadero WELCOME TO THE ATASCADERO CITY COUNCIL MEETING The City Council meets in regular session on the second and fourth Tuesday of each month at 7:00 p.m., at the City Hall, Council Chambers, 6907 EI Camino Real, Atascadero. Matters are considered by the Council in the order of the printed Agenda. Copies of the staff reports or other documentation relating to each item of business referred to on the Agenda are on file in the office of the City Clerk and are available for public inspection during City Hall business hours at the Central Receptionist counter and on our website, www.atascadero.org. An agenda packet is also available for public review at the Atascadero Library, 6850 Morro Road. Contracts, Resolutions and Ordinances will be allocated a number once they are approved by the City Council. The minutes of this meeting will reflect these numbers. All documents submitted by the public during Council meetings that are either read into the record or referred to in their statement will be noted in the minutes and available for review in the City Clerk's office. In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City meeting or other services offered by this City, please contact the City Manager's Office or the City Clerk's Office, both at (805) 470-3400. Notification at least 48 hours prior to the meeting or time when services are needed will assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service. TO SPEAK ON AGENDA ITEMS Members of the audience may speak on any item on the agenda. The Mayor will identify the subject, staff will give their report, and the Council will ask questions of staff. The Mayor will announce when the public comment period is open and will request anyone interested to address the Council regarding the matter being considered to step up to the podium. If you wish to speak for, against or comment in any way: • You must approach the podium and be recognized by the Mayor • Give your name and address (not required) • Make your statement • All comments should be made to the Mayor and Council • No person shall be permitted to make slanderous, profane or negative personal remarks concerning any othero individual, absent or present • All comments limited to 5 minutes (unless changed by the Council) • No one may speak for a second time until everyone wishing to speak has had an opportunity to do so, and no one may speak more than twice on any item. If you wish to use a computer presentation to support your comments, you must notify the City Clerk's office at least 24 hours prior to the meeting. Access to hook up your laptop to the City's projector will be provided. You are required to submit to the City Clerk a printed copy of your presentation for the record. Please check in with the City Clerk before the meeting begins to announce your presence and turn in the printed copy. The Mayor will announce when the public comment period is closed, and thereafter, no further public comments will be heard by the Council TO SPEAK ON SUBJECTS NOT LISTED ON THE AGENDA Under Agenda item, "COMMUNITY FORUM", the Mayor will call for anyone from the audience having business with the Council to: • Please approach the podium and be recognized • Give your name and address (not required) • State the nature of your business This is the time items not on the Agenda may be brought to the Council's attention. A maximum of 30 minutes will be allowed for Community Forum (unless changed by the Council). TO HAVE ITEMS PLACED ON AGENDA All business matters to appear on the Agenda must be in the Office of the City Manager 14 days preceding the Counc� meeting. Should you have a matter you wish to bring before the Council, please mail or bring a written communication t the City Manager's office in City Hall prior to the deadline. To: Atascadero City Council and Wade McKinney, City Manager From: George Luna, Councilman Date: October 3, 2006 Re: The Atascadero Colony Days Committee rejection of Oppose Wal-Mart's application to participate in the Colony Days parade. Please include this for discussion and direction under Council Announcements and Reports at our October 10, 2006 meeting. I believe it is important that the representatives of the Committee explain "the real purpose of the celebration" and why the board believes an entry that they have not seen is in "direct opposition to the purpose and policies of the event" and why the Committee believes it"would tend to change the character or spirit of the celebration". The quoted words above are the Committee's own. • ITEM NUMBER: A- 1 DATE: 10/10/06 is 18 CITY OF A TASCADERO cm CITY COUNCIL DRAFT MINUTES Tuesday, September 12, 2006 CLOSED SESSION: 6:32 p.m. (Immediately following Redevelopment Agency Meeting 1. PUBLIC COMMENT—CLOSED SESSION: None 2. CALL TO ORDER a. Conference with legal counsel — Existing Litigation (Govt. Code Sec. 549569.9 (a) 1. City of Atascadero v. Pacific Gas and Electric 3. ADJOURN: 6:42 p.m. 4. CLOSED SESSION REPORT City Attorney Patrick Enright announced that the City Council met in closed session and gave further direction, but took no action. REGULAR SESSION: 7:00 P.M. Mayor O'Malley called the meeting to order at 7:00 p.m. and led the Pledge of Allegiance. Present: Council Members Clay, Pacas and Mayor O'Malley Absent: Council Member Luna CC Draft Minutes 09/12/06 Page 1 of 10 7 Others Present: Deputy City Clerk Grace Pucci. Staff Present: City Manager WadeMcKinney, Community Development Director Warren Frace, Public Works Director Steve Kahn, Police Chief John Couch, Community Services Director Brady Cherry, Deputy Public Works Director Geoff English, Associate Planner Kerry Margason, Assistant Planner. Callie Ford and City Attorney Patrick Enright COMMUNITY FORUM: " Pastor Johnny Johnson, Paradise Fellowship in Atascadero, ,led those present in prayer. Anne Ketcherside asked why the increase in the sales tax was pulled and whether it will be reconsidered after the election. Tom Comar, Oppose Wal Mart, spoke about the right of the community to determine the direction it will follow and asked how Walmart plans to address the concerns raised by the citizens of Atascadero, Mark Justin real estate appraiser spoke about the condominium conversion issue and submitted a summary of condominiums sales in Atascadero. (Exhibit A) Ann Hatch, representing the Atascadero Veterans Memorial Committee, described the "Faces of Freedom sculpture and also spoke about the wall that is proposed to list the citizens of Atascadero who served their country and are now deceased. David Broadwater clarified that he was not responsible for leaking the email between Council Member Luna and the City Manager to a local talk show host, and stated that the chronology of events generated by the City has been helpful in educating the citizens of Atascadero. Eric Greening spoke about the following topics: 1) use of applicable franchise fees to televise City Council meetings, 2) the importance of recognizing the sacrifices made in the past wars and questioned the maintenance of the flags proposed for the memorial, and, 3) suggested agendizing`an analysis of Measure J. Al Fonzi spoke in favor of recognizing the community's fallen veterans and in support of �oplasecfmem rr`afi. - =-- - - - - Joanne Main, Atascadero Chamber of 'Commerce Executive Director, urged everyone to vote in the upcoming election and announced that the Chamber is sponsoring a candidate's forum on October 11th, 7:30 a.m., in the City Council chambers. CC Draft Minutes 09/12/06 Page 2 of 10 Johnny Johnson spoke in support of the Mayor and city staff and in support of a Wal Mart for Atascadero. Tom Lewis asked veterans in the audience to raise their hands. Mayor O'Malley closed the Community Forum period. Council Member Clay responded to comments made during the Community Forum period. Mayor O'Malley addressed issues raised during the Community Forum period City Manager Wade McKinney reviewed the meeting with Kevin McCall from Wal Mart and Mr. Santiago of Pacific Meridian, and explained who attended. APPROVAL OF AGENDA: Mayor O'Malley announced that the presentation to Dennis Moresco and Item #13-2 have been continued to September 26t MOTION: By Mayor Pro Tem Pacas and seconded by Council Member Clay to approve the agenda as amended. . Motion passed 3:0 by a roll-call vote. COUNCIL ANNOUNCEMENTS AND REPORTS: Mayor O'Malley announced that Council Member Luna and he attended the League of California Cities annual meeting last week, and spoke about the Council's support for implementing a policy for providing very low income housing. Penny Rappa, Habitat for Humanity, stated they have an excellent opportunity for low income families in Atascadero and asked that the project be agendized as soon as possible. There was Council consensus to agendize Habitat for Humanity's project request on the October 10th Redevelopment Agency agenda. -- ---PR ES—E-NTAT1 ONS:- 1. Proclamation declaring September 21, 2006 "International Day of Peace." Mayor Pro Tem Pacas read the proclamation and presented it to Laurent Bernad who • expressed his gratitude for the city's recognition of the International Day of Peace. CC Draft Minutes 09/12/06 Page 3 of 10 9 Brandon Istenes stated this is a big step forward in striving for peace. 2. Commendation presented to Dennis Moresco. This item continued to September 26, 2006. A. CONSENT CALENDAR: 1 City Council Meeting Minutes — August 8, 2006 City Clerk Recommendation: Council approve the City Council meeting minutes of August 8, 2006. [City Clerk] 2. City Council Special Meeting Minutes -August 17, 2006 ■ City Clerk Recommendation: Council approve the City Council special meeting minutes of August 17, 2006. [City Clerk] 3. July 2006 Accounts Payable and Payroll ■ Fiscal Impact: $2,181,094.75. ■ Recommendation: Council approve- certified City accounts payable, payroll and payroll vendor checks for July 2006. [Administrative Services] 4. June 2006 Investment Report ■ Fiscal Impact: None. ■ Recommendation: Council approve the Investment Report for June 2006. [City Treasurer] 5. Final Map 2005-0105 (Parcel Map AT 04-0214) 7930 Santa Ysabel Ave. (TPM 2004-0062) (Mumford) ■ Fiscal Impact: None. ■ Recommendations: Council: 1. Accept Parcel Map AT 40-0214; and, 2. Reject, without prejudice to future acceptance, the offers of dedication for Public Utility Easement. [Public Works] 6. Final Map 2006-0133 (Tract 2793) 7665 (etc.) Navaioa Ave. (TTM 2005- 0080) (Otis) ■ Fiscal Impact: None. -` Recommendations. Councii- 1. Accept Final Map-2006-0133, Tract 2793; and, 2. Reject, without prejudice to future acceptance, the offers of dedication for Public Utility Easement and easement to Atascadero Mutual Water Company. [Public Works] CC Draft Minutes 09/12/06 Page 4 of 10 10 7. Charles Paddock Zoo Utility Corridor Project (City Bid No. 2006-010) ■ Fiscal Impact: $272,050.00 from .Proposition 40 State Grant Funds. ■ Recommendation: Council authorize the City Manager to execute an agreement with A-Jay Excavating, Inc. in the amount of $182,784.00 for construction of the Charles Paddock Zoo Utility Corridor Project. [Public Works] 8. San Marcos Road Acceptance Into City Maintained Road System ■ Fiscal Impact: There will be additional costs to the City if the City Council accepts San Marcos Road for maintenance. ■ Recommendation: Council approve the Draft Resolution accepting San Marcos Road from the intersection of Los Altos Road to 12170 San City Marcos Road (approximately. 5120 feet) into the C y Maintained Road System. [Public Works] 9. Temporary Road Closure - Calvar Chapel of Atascadero p V ■ Fiscal Impact: $160.00 per event for the installation of Road Closed signs by Public Works Staff. ■ Recommendation: Council approve a request by Calvary Chapel of Atascadero for the closure of Palma Avenue from East Mail to West Mail during an event in the Sunken Gardens on September 22, 2006. [Public Works] 10.Temporary Road Closure— Colony Days Parade Route ■ Fiscal Impact: Staff time required for traffic control and clean-up related to this event. ■ Recommendations: Council, approve Draft Resolution authorizing the following road closures for the annual Colony Days Parade and related events: ❑ EI Camino Real from Curbaril to Traffic Way, West Mail from ECR to Lewis Ave., Entrada Ave. from ECR to Lewis Ave., San Luis Ave. from Curbaril to Pueblo Ave., and Pueblo Ave. from San Luis Ave. to ECR on Saturday October 21, 2006 from 8:30 a.m. until 1:00 P.M.; ❑ Palma Avenue from East Mall to West Mall from 6:00 a.m. Friday October 20, 2006 to noon Monday October 23, 2006; ❑ East Mall from El Camino Real to Palma on Saturday October 21, 2006 at 6:00 a.m. to Sunday October 22, 2006 at 5:00 p.m. [Public Works} _- �1.Lanlri-Surveyirfa-Servi��s---- ■ Fiscal Impact: The costs of land surveying services are billed directly to the capital project accounts. ■ Recommendation: Council authorize City Manager- to enter into two additional ongoing contracts for contract land surveying services with firms on the "Land Surveying Services Qualified Firm List." [Public Works] CC Draft Minutes.09/12/06 Page 5 of 10 12.Consideration of a Construction and Demolition Debris (C&D) . Ordinance Title 8: Local Building Ordinance ■ Fiscal Impact: There will be additional staff time necessary to review recycling plans and determine compliance. ■ Recommendation: Council adopt on second reading, by title only, the Draft Ordinance A adding Chapter 13 to Title 8 of the Atascadero Municipal Code, requiring the mandatory recycling of construction and demolition debris. [Community Development] 13. San Andres PlannedDevelopment #25: ZCH 2005-0097 (Barre) ■ Description: Approval of Zone Change that would allow a 5-unit residential planned development in a currently developed site with a single-family residence that has been identified as a Colony Home. ■ Fiscal Impact: None. ■ Recommendation: Council adopt on second reading, by title only, Draft Ordinance A approving Zone Change 2005-0097 based on findings. [Community Development] 14.SLO Green Build Memorandum of Understanding ■ Fiscal Impact: The MOU has no end date and requires the City to pay SLO Green Build $2,000 annually. • Recommendation: Council authorize the Mayor to execute the attached the Memorandum of Understanding between the City of Atascadero and SLO Green Build. [Community Development] ] 15.Proposed Lake Park Design Guidelines ■ Fiscal Impact: None at this time. ■ Recommendation: Council review the proposed Lake Park Design Guidelines, provide staff with direction regarding modification of the guidelines, and adopt the guidelines. [Community Services] 16.Supplemental Law Enforcement Services Fund (SLESF) ■ Fiscal Impact: $100,000 to be paid for by SLESF grant funds. ■ Recommendation: Council designate 2006/2007 Supplemental Law Enforcement Services Fund (SLESF) monies for use in frontline Police services and equipment improvements. [Police] Mayor O'Malley announced that Item #A-8 has been amended as follows: Page 66, Draft Resolution, paragraph 5 to read: NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Atascadero, pursuant to the provisions of Section 1806 of the California Streets and Road to Proiect Boundary of PD 11 (approximately 5120 feet) is hereby accepted into the City maintained Road System. CC Draft Minutes 09/12/06 Page 6 of 10 12 Items pulled: Eric Greening, Item #A-15. MOTION: By Mayor Pro Tem Pacas and seconded by Council Member Clay to approve Items #A-1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16. Motion passed 3:0 by a roll-call vote. (Item #A-7 Contract No. 2006-031, Item #A-8 Resolution No. 2006-085, Item #A-10 Resolution No. 2006-086, Item #A-12 Ordinance No. 497, Item #A-13 Ordinance No. 498, Item #A-14 Contract No.2006-032) Item #A-15: Community Services Director Brady Cherry gave the staff report. Eric Greening asked for clarification on the paint color to be used for repainting of the Carden Gazebo when needed, and stated there is a continuing issue of the lake itself. David Main, project consultant, clarified that when needed, the Carden Gazebo would be repainted in the existing colors of the gazebo. MOTION: 'By Council Member Clay and seconded by Mayor Pro Tem Pacas to approve Item #A-15. Motion passed 3:0 by a roll-call vote. i B. PUBLIC HEARING: 1. Title 9 Planning and Zoning Text Amendment ZCH 2006-0117/ PLN 2006- 0110 Industrial Zoning Uses, Sign Ordinance & Exterior Lighting (City of Atascadero) ■ Fiscal Impact: None. ■ Recommendations: Planning Commission Recommends: Council: 1. Adopt Draft Resolution A certifying Proposed Negative Declaration 2006-0023; and, 2. Introduce for first reading, by title only, Draft Ordinance A approving Zone Change 2006-0117 based on findings. [Community Development] Community Development Director Warren Frace gave the staff report and, with Public Works Director Steve Kahn, answered questions of Council PUBLIC COMMENT Steve Martin, Executive Director Atascadero Main Street, spoke about the process for the sign ordinance recommendations. He stated the parking/signage within the site triangle is a common sense issue and he agrees with the recommendation. CC Draft Minutes 09/12/06 Page 7 of 10 13 Joanne Main, Executive Director Atascadero Chamber of Commerce, explained the reasoning behind the banner time frame, and spoke about how they had surveyed businesses around town. She urged enforcement of the ordinance. Mayor O'Malley closed the Public Comment period. MOTION: By Council Member Clay and seconded by Mayor Pro Tem Pacas to adopt Draft Resolution A certifying Proposed Negative Declaration 2006-0023; and, introduce for first reading, by title only, Draft Ordinance A approving Zone Change 2006-0117 based on findings, and with the exception that if parking will be allowed within the site triangle then the sign would be allowed to stay until the parking is removed, and for the first 90 days that this ordinance is in effect the fees for encroachment permits will be waived. Motion passed 3:0 by a roll-call vote. (Resolution No. 2006-087) 2. Interim Urgency Ordinance Establishing a Moratorium on the Approval of "Site Condom iniums"Site Condo Moratorium ■ Description: Temporary Ordinance establishing a moratorium for the approval of "site condominiums." ■ Fiscal Impact: None. ■ Recommendation: Council adopt the attached interim urgency ordinance establishing a moratorium on the approval of "site condominiums." [City Attorney] This item has been continued to September 26, 2006. C. MANAGEMENT REPORTS: 1. Annual Housing Report Calendar Year 2005 ■ Fiscal Impact: None. ■ Recommendation: Council receive and file the attached Annual Housing Report. [Community Development Community Development Director Warren Frace gave the staff report and answered questions of Council. PUBLIC COMMENT Eric Greening stated there is a lot of catch up to be done in the very low income category and he could not accept counting units in a housing shelter as low income units as these are transitional. CC Draft Minutes 09/12/06 Page 8 of 10 14 . Ellen Beraud, Planning Commission Chair, stated the Commission's concerns that the low and very low income housing goals have not been met, and wondered if Council would address allowing more dense planned developments in multi family zoning. Mayor O'Malley closed the Public Comment period. 2. City Council Strategic Initiatives Update ■ Fiscal impact: ■ Recommendation: This is an informational report; Council may want to refine the work on, or direction of, one or more of the initiatives. [City Manager] City Manager Wade McKinney gave the staff report and answered questions of Council. PUBLIC COMMENT Eric Greening expressed concern with emergency evacuation of the medically vulnerable population and asked if Atascadero has a list of these people. City Manager Wade McKinney stated that the Police and Fire Department are working on an ongoing basis on a special needs database. Mayor O'Malley closed the Public Comment period. D. COMMITTEE& LIAISON REPORTS: Mayor O'Malley 1. County Mayor's Round Table: Are speaking about sales tax issues. 2. Finance Committee: Working on issues related to inclusionary housing. 3. Air Pollution Control District (APCD): Involved in educational activities. 4. Economic Vitality Corporation, Board of Directors (EVC): Looking at regional activities to help local businesses; specifically looking at the wine industry at this time. 5. League of California Cities Grassroots Network: Active in protecting cities from state takeaways. 6. Economic Opportunity Commission (EOC): Concerned about funding for the homeless shelter. Cavncrl bf--Governments-(S--OCOG) /S-isr3 E. INDIVIDUAL DETERMINATION AND/OR ACTION: None • F. ADJOURNMENT: Mayor O'Malley adjourned the meeting at 9:07 p.m. to the next regularly scheduled meeting of the City Council on September 26, 2006. MINUTES PREPARED BY: Grace Pucci, Deputy City Clerk The following exhibit is available for review in the City Clerk's office: Exhibit A—Mark Justin,Atascadero Condo Sales Summary CC Draft Minutes 09/12/06 Page 10 of 10 16 ITEM NUMBER: A-2 DATE: 10/10/06 n leis i9 Atascadero City Council Staff Report - City Clerk Marcia McClure Torgerson Conflict of Interest Code - Biennial Review RECOMMENDATION: Council adopt the Draft Resolution, updating and amending the Conflict of Interest Code for the City of Atascadero. DISCUSSION: The Political Reform Act requires every local government agency to review its Conflict of Interest Code biennially (on the even years) to determine if it is accurate and, if needed, make any necessary amendments. The Conflict of Interest Code is a document that designates the positions within an agency that make or participate in making governmental decisions that may foreseeably have a material effect on any financial interest. The Code further sets out, in paragraphs called disclosure categories, the specific types of investments, business positions, interest in real property and sources of income that must be reported by the designated positions. The City Council is the Code-reviewing body for the City of Atascadero. The Political Reform Act requires that this Council adopt any amendments no later than December 30, 2006. This Conflict of Interest Code pertains only to the designated positions listed in Exhibit A. The following officials are exempt from this Code as they are otherwise required to file disclosure statements pursuant to State Law under Govt. Code 87200: Council Members, City Treasurer, Planning Commissioners, City Manager and City Attorney. The City Clerk and the City Attorney have reviewed the current Code. The proposed amendments to theon if ct oflnferest-odeincorpora e-the-basic provisions required by Government Code Section 87302 and comply with FPPC regulations. The revised list contains a list of designated positions that make or participate in making governmental decisions. The recommended changes-reflect the current staffing of the City of Atascadero. The recommended new language is indicated by underlining and the recommended deleted language is indicated by sti;ikeewt. No substantive changes have been suggested. 17 ITEM NUMBER: A-2 DATE: 10/10/06 FISCAL IMPACT: None. ALTERNATIVES: The Code must be updated. The Council is free to add positions to the Code or to suggest any other changes, so long as the changes comply with the Political Reform Act. Changing the disclosure requirements is not recommended. It is important that the current positions are accurately described. ATTACHMENTS: Draft Resolution Conflict of InterestCode 18 I ITEM NUMBER: A-2 DATE: 10/10/06 0 DRAFT RESOLUTION RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA, ADOPTING AN AMENDED CONFLICT OF INTEREST CODE WHEREAS, the Political Reform Act requires every local government agency to review its Conflict of Interest Code biennially (in even-numbered years)to determine if its accurate and up-to- date, or, alternatively,that the Code must be amended; and NOW, THEREFORE BE IT RESOLVED, by the City Council of the City of Atascadero as follows: SECTION 1. Resolution No. 2004-062, adopted on July 27, 2004,is hereby rescinded. SECTION 2. That the Conflict of Interest Code attached to this Resolution as Exhibit A be, and hereby is, adopted as the Conflict of Interest Code for the City of Atascadero. On motion by Council Member and seconded by Council Member the foregoing Resolution is hereby adopted in its entirety on the following roll call vote: AYES: NOES: ABSENT: ADOPTED: CITY OF ATASCADERO By: Tom O'Malley,Mayor ATTEST: -- -Marcia McClure-Torgerson,-C-:ltY'C—. City=Clerk - APPROVED AS TO FORM: Patrick L.Enright, City Attorney 19 ITEM NUMBER: A-2 DATE: 10/10/06 CONFLICT OF INTEREST CODE OF THE CITY OF ATASCADERO The Political Reform Act, Government Code Section 81000, et. seg., requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation, 2 Cal. Code of Regs. Section 18730, which contains the terms of a standard conflict of interest code. It can be incorporated by reference and may be amended by the Fair Political Practices Commission after public notice and hearings to conform to amendments in the Political Reform Act. Therefore, the terms of 2 Cal. Code of Regs. Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference and, along with the attached Appendix in which members and employees are designated and disclosure categories are set forth, constitute the conflict of interest code of the City of Atascadero. Designated employees shall file their statements with the City of Atascadero who will make the statements available for public inspection and reproduction (Gov. Code Section 81008). Statements for all designated employees will be retained by the City of Atascadero. 20 ITEM NUMBER: A-2 DATE: 10/10/06 DESIGNATED EMPLOYEES AND DISCLOSURE CATEGORIES The following positions entail the making or participation in the making of decisions which may foreseeably have a material effect on financial interests: Designated Position:2 Disclosure CategoN: Assistant City Manager 1 Assistant to the City Manager 1 City Clerk 1 Technology Director Deputy Executive Director of Redevelopment Agency 1 Public Works Director/City Engineer 1 Deputy Public Works Director 1 Associate Civil Engineer 1 Consultants' 1 Community Development Director 1 Deputy Community Development Director 1 Redevelopment Specialist 1 Director of Community Services 1 Building Official/ Fire Marshal 1 Planning Services Manager 1 Exempt Officials4 1 Administrative Services Director 1 Deputy Administrative Services Director 1 Fire Chief 1 Police Chief 1 Members of all permanent City Commissions, Boards 1 and Committees not otherwise required to file Conflict of Interest Statements Fire Battalion Chief 2 Fire Captain 2 Police Lieutenant 2 Police Sergeant 2 Ghief W to WateF n eFateF 2 2 In the event that State law or regulations regarding the filing of Conflict of Interest Statements should be amended, this Exhibit shall be changed to include the designated position and category of each official as required by said amendment. 3 Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitations. The City - __-il- _.-. -- Manager-may-determine-in--writing that-a-particular-eonsa{tant,althbt4h a- esignated-post#"tori''; rs -- -- -- hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirement described in this Section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The City Manager's determination is a public record and shall be retained for public inspection by the City Clerk in the same manner and location as this Conflict of Interest Code. 4 Exempt Officials include the Mayor, Members of the City Council, City Treasurer, Members of the Planning Commission, City Manager, and City Attorney, who are all otherwise required to file disclosure statements pursuant to State Law. 21 ITEM NUMBER: A-2 DATE: 10/10/06 CATEGORIES OF REPORTABLE ECONOMIC INTERESTS Designated Persons in Category "1" Must Report: All investments, interests in real property, income, and any business entity in which the person is a director, officer, partner, trustee, employee, or holds any position of management. These financial interests are reportable only if located within and subject to the jurisdiction of the City, or if the business entity is doing business or planning to do business in an area subject to the jurisdiction of the City, or has done business within an area subject to the jurisdiction of the City at any time during the two years prior to the filing of the statement. Designated Persons in Category "2" Must Report: (1) All investments in real property located within or subject to the jurisdiction of the City. (2) Investments in any business entity which within the last two years has contracted or in the future foreseeably may contract with the City. (3) Income from any source which within the last two years has contracted or in the future foreseeably may contract with the City. (4) His or her status as a director, officer, partner, trustee, employee, or holder of a position of management in any business entity which within the last two years has contracted or in the future foreseeably may contract with the City. 22 ITEM NUMBER: A-2 DATE: 10/10/06 82030. INCOME. (A) "Income" means (except as provided in subdivision B): A payment received, including but not limited to any salary, wage, advance, dividend, interest, rent, proceeds from any sale, gift, including any gift of food or beverage, loan, forgiveness or payment of indebtedness received by the flier, reimbursement for expenses, per diem, or contribution to an insurance or pension program paid by any person other than an employer, and including any community property interest in the income of a spouse. Income also includes an outstanding loan. Income of an individual also includes a pro rata share of any income of any business entity or trust in which the individual or spouse owns, directly,indirectly or beneficially, a 10 percent interest or greater. "Income," other than a gift, does not include income received from any source outside the jurisdiction and not doing business within the jurisdiction, not planning to do business within the having done business within the jurisdiction during the two years prior to the time any statement or other action is required under this title. (B) "Income" does not include: (1) Campaign contributions required to be reported under Chapter 4 (commencing . with Section 84100). (2) Salary and reimbursement for expenses or per diem received from a state, local, or federal government agency and reimbursement for travel expenses and per diem received from a bona fide educational, academic, or charitable organization. (3) Any devise or inheritance. (4) Interest, dividends, or premiums on a time or demand deposit in a financial institution, shares in a credit union or any insurance policy, payments received under any insurance policy, or any bond or other debt instrument issued by any government or government agency. (5) Dividends, interest, or any other return on a security which is registered with the Securities and Exchange Commission of the United States Government or a commodity future registered with the Commodity Futures Trading Commission of the United States Government, except proceeds from the sale of these securities and --- commodities#utures.- - -- --- -- -- -- - ---- - ----- -- -- — (6) Redemption of a mutual fund. (7) Alimony or child support payments. • (8) Any loan or loans from a commercial lending institution which are made in the lender's regular course of business on terms available to members of the public without regard to official status if: 23 ITEM NUMBER: A-2 DATE: 10/10/06 a Used,to purchase, refinance the purchase of, or for improvements to, the principal residence of flier; or (b) The balance owed does not exceed ten thousand dollars ($10,000). (9) Any loan from an individual's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, uncle, aunt, or first cousin, or the spouse of any such person, provided that a loan from any such person shall be considered income if the lender is acting as an agent or intermediary for any person not covered by this paragraph. (10) Any indebtedness created as part of a retail installment or credit card transaction if made in the lender's regular course of business on terms available to members of the public without regard to official status, so long as the balance owed to the creditor does not exceed ten thousand dollars ($10,000). (11) Payments received under a defined benefit pension plan qualified under Internal Revenue Code Section 401(a). (12) Proceeds from the sale of securities registered with the Securities and Exchange Commission of the United States Government or from the sale of commodities futures registered with the Commodity Futures Trading commission of the United States Government if the flier sells the securities or the commodities futures on a stock or commodities exchange and does not know or have reason to know the identity of the purchaser. 24 ITEM NUMBER: A-3 DATE: 10/10/06 n 1918- -1979 (ADS/ Atascadero City Council Staff Report Community Development Department Single- Family Planned Development #16 Zone Change 2005-0107, 2865 Ferrocarril Road (Tharp/Beck) RECOMMENDATION: Council adopt on second reading, by title only, Draft Ordinance A approving Zone Change 2005-0107 based on findings. DISCUSSION: The proposed project consists of a Zone Map Amendment to establish a Planned Development Overlay Zone #16 on the subject site with a corresponding Master Plan of Development (CUP) and vesting Tentative Tract Map that would allow a 5-lot clustered subdivision. The project site is currently developed with a single-family residence. On September 26, 2006, the City Council conducted a public hearing to consider establishment of a PD-16 overlay zone and application of the overlay zone change on the subject parcel. FISCAL IMPACT The proposed zone text amendment will be revenue neutral to the City. _ TTCNIENT -- Attachment 1: Draft Ordinance A 25 ITEM NUMBER: A-3 DATE: 10/10/06 ATTACHMENT 1e Draft Ordinance A DRAFT ORDINANCE A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA APPROVING ZONE CHANGE 2005-01079 AMENDING THE OFFICIAL ZONING MAP DESIGNATION OF APN 049-022-011 FROM RS (RESIDENTIAL SUBURBAN) TO RS / PD-16 (RESIDENTIAL SUBURBAN WITH PLANNED DEVELOPMENT OVERLAY #16) (2865 Ferrocarril Road/ Tharp/Beck) The City Council hereby finds and declares as follows: WHEREAS, an application has been received from Gary Tharp and Jim Beck (2865 Ferrocarril Road, CA 93422), Applicants, and Property Owners,to consider a project consisting of a Zone Change from RS (Residential Suburban) to RS / PD-16 (Residential Suburban with Planned Development Overlay #16) with the adoption of a Master Plan of Development, and a five-lot residential Tentative Tract Map on APN 049-022-011; and, WHEREAS, the site's General Plan Designation is SE(Suburban Estates); and, WHEREAS, the site's current zoning district is RS (Residential Suburban); and WHEREAS, an Initial Study and Draft Mitigated Negative Declaration 2006-0022 were prepared for the- project and made available for public review in accordance with the requirements of the California Environmental Quality Act(CEQA); and, WHEREAS, General Plan SE land use designation allows for the creation of lots of less than 2.5 acres when the lots are clustered to preserve open space and natural resources and Zoning Ordinance Article 28 allows Planned Development Overlay zones to be established to promote orderly and harmonious,development and to enhance the opportunity to best utilize special site characteristics; and, WHEREAS,the Planning_Commission has determined that it is in the best interest of the City to enact this amendment to the Official Zoning Map to protect the health, safety and welfare of its citizens by applying orderly development of the City; and, WHEREAS, the laws and regulations relating to the preparation and public notice of environmental documents, as set forth in the State and local guidelines for implementation of the California Environmental Quality Act(CEQA) have been adhered to; and, 26 ITEM NUMBER: A-3 DATE: 10/10/06 • 1 noticed Public Hearin upon the subject Zone WHEREAS, a timely and properly g P J Change application was held by the Planning Commission of the City of Atascadero at which hearing evidence, oral and documentary, was admitted on behalf of said Zoning amendments; and, WHEREAS, the Planning Commission of the City of Atascadero, at a duly noticed Public Hearing held on August 15, 2006, studied and considered Zone Change 2005-0107, after first studying and considering the Proposed Mitigated Negative Declaration prepared for the project, and, WHEREAS, the City Council of the City of Atascadero, at a duly noticed Public Hearing held on September 26,2006, studied and considered Zone Change 2005-0107, after first studying and considering the Proposed Mitigated Negative Declaration prepared for the project; and, NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF _ATASCADERO HEREBY ORDAINS AS FOLLOWS: SECTION 1. Findings for Approval of a Zone Change to the Official Zoning Map of Atascadero Designating a PD-16 Planned Development Overlay District. The City Council finds as follows: 1. Modification of development standards or processing requirements is warranted to promote orderly and harmonious development. 2. Modification of development standards or processing requirements will enhance the opportunity to best utilize special characteristics of an area and will have a beneficial effect on the area. 3. Benefits derived from the overlay zone cannot be reasonably achieved through existing development standards or processing requirements. 4. Proposed plans offer certain redeeming features to compensate for the requested modification. SECTION 2. Approval. The City Council of the City of Atascadero, in a regular session assembled on October 10, 2006, resolved to approve on second reading by title only, an ordinance that would rezone the subject site consistent with the following: L-_ Exhibit A._Zone_Change Map___ 27 ITEM NUMBER: A-3 DATE: 10/10/06 SECTION 3. A summary of this ordinance, approved by the City Attorney, together • with the ayes and noes, shall be published twice: at least five days prior to its final passage in the Atascadero News, a newspaper published and circulated in the. City of Atascadero, and; before the expiration of fifteen (15) days after its final passage in the Atascadero News, a newspaper published and circulated in the City of Atascadero. A copy of the full text of this ordinance shall be on file in the City Clerk's office on and after the date following introduction and passage and shall be available to any interested member of the public. INTRODUCED at a regular meeting of the City Council held on , and PASSED and ADOPTED by the City Council of the City of Atascadero, State of California, on by the following roll call vote: AYES: NOES: ABSTAIN: ABSENT: CITY OF ATASCADERO By: Tom O'Malley, Mayor ATTEST: Marcia McClure Torgerson, C.M.C., City Clerk APPROVED AS TO FORM: Patrick Enright, City Attorney 28 . ITEM NUMBER: A- 3 DATE: 10/10/06 Exhibit A: Official Zoning Map Change 2005-0107(Planned Development Overlay#16) Project Site i ff a ` ; Existing Designations: -General Plan: Suburban Estates -Zoning District: Residential Suburban Proposed Designations: -- -General-Plan:Suburlian-Estates----- --__ _— --- -- ---- — ---- ---- -Zoning District:Residential Suburban%PD-16 29 ITEM NUMBER: A-4 DATE: 10/10/06 n 191!1 1979 Atascadero City Council Staff Report - Community Development Department City Hall Historic Consultant Contract Authorization RECOMMENDATION: Council authorize the City Manager to approve a contract for a consultant to prepare a Section 106 historic evaluation of City Hall. DISCUSSION: The Atascadero City Hall was damaged in the 2003 San Simeon Earthquake. Staff is currently working with FEMA on funding the repair to the building. Since FEMA will not fund the entire cost of repairing the building, the City has applied for additional grants to repair the building. The City was approved for a $2 million CCFH grant earlier this year. One of the requirements for receiving the grant is to complete the CEQA process by January 2007. Since City Hall is a National Historic Register Building, all repair and restoration work must comply with Section 106 of the National Historic Preservation Act of 1966. In order for staff to prepare the CEQA document, a historic consultant needs to be retained to prepare a historic evaluation consistent with Section 106. To meeting the CCFH deadline, the historic consultant will be required to have completed their work by the first week of December 2006. Due to the extremely tight deadline imposed by CCFH, staff is requesting the Council waive the City's RFP process and authorize the City Manager to retain a historic consultant for an amount not to exceed $70,000. Staff has been in contact with Robert Bruce Anderson and Tom Hardy who specializes in working with the California State -- _- Historic P-e-ser-nation-Office (SHPO)-on-historic-evalua#ions. -Mr.-4-nderso-n is-available-- to s available to start work immediately and can meet the City's tight timelines for completing the work. 31 ITEM NUMBER: A-4 DATE: 10/10/06 FISCAL IMPACT: Staff has not received a scope of work from the consultant due to the tight timelines. Staff is confident that the cost of the contract will not exceed $70,000. ATTACHMENTS: 1. State of Qualifications Robert Bruce Anderson 2. Section 106 of the NationalHistoricPreservation Act 32 Robert Bruce Anderson Urban Conservation & Urban Design Robert Bruce Anderson provides consulting services to public agencies, private offices, and non-profit organizations on numerous kinds of projects and programs that involve identification, evaluation, rehabilitation and adaptive use of significant historic resources of the built environment. Services and Products • Research, evaluation and documentation of historic properties • Program design and management of historic resource surveys and inventories • Project compliance with state and federal historic preservation regulations • Application of The Secretary of the Interior's Standards for the Treatment of Historic Properties • Preparation and implementation of design guidelines and cultural resource management plans for adaptive use of historic structures and historic districts Illustrative Projects and Experience PRESIDIO OF SAN FRANCISCO NATIONAL HISTORIC LANDMARK DISTRICT • Section 106 Compliance Documents: Evaluation of Proposed Alterations and Additions to Letterman Pool and Letterman Gymnasium Historic Structures • Cultural Resources Management Plan: Documentation for Protection, Reuse, Removal and Recycling -of Historic Building Fabric of Letterman Pool and Letterman Gymnasium EAST BAY REGIONAL PARK DISTRICT • Historic Resource Evaluations: The Redwood Inn, Oakland; Ferry Point Pier and Terminal, Point Richmond; and Cottage and Gardens at Dry Creek Ranch, Union City • Section 106 Compliance Documents: Ferry Point Pier and Terminal, Point Richmond, and Alvarado Park, Richmond CALIFORNIA DEPARTMENT OF TRANSPORTATION, DISTRICT 4 • Historic Resource Evaluations: Transbay Transit Terminal, San Francisco, and Oliver Bros. Salt Co., Hayward • Historic Structures Report: Transbay Transit Terminal, San Francisco SAN FRANCISCO DEPARTMENT OF CITY PLANNING • Member, National Park Service Project Planning Team for the Golden Gate National Recreation Area • Project Planner, Adaptive Use of Forts Mason, Miley and Funston Professional Education and Accreditation in Historic Preservation MASTER OF CITY PLANNING,:;=;'University of Pennsylvania, Philadelphia, 1967 Introduction to Federal Projects and Historic Preservation Law, Seattle, 1983 Preparing Agreement Documents: Section 106 of the National Historic Preservation Act, Seattle, 1992 Practical Application of The Secretary of the Interior's Standards for the Treatment of Historic Properties; and Integrated Cultural Resource Management Plans: Preparation and Implementation, San Diego, 1999 33 ROBERT BRUCE ANDERSON January 2005 57 Post Street, No. 712 San Francisco,California 94104 (415) 981-4010 EDUCATION January, 1973: SalzburgSeminar in American Studies, Salzburg, Austria Fellow, Urban Planning Session May, 1967: University of Pennsylvania, Philadelphia, Pennsylvania Master of City Planning, Graduate School of Fine Arts University and. Mellon Scholarships June,1964: Pomona College, Claremont,California Bachelor of Arts, Philosophy Ghosts (Men's Honor Society) Bertha K. LeBus and. Appreciative Parents Scholarships EXPERIENCE September, 1988 -:Consultant,Urban Conservation& Urban Design, San Francisco,California City of Long Beach Redevelopment Agency and Willmore City Heritage Association, Willmore District Implementation Plan City of Flagstaff, 773e 2005 Plan for Soutbside: Strategies for Development City of Vallejo, Mare Island Sign Program, Appendix: C of Specific Plan for Mare Island City of San Jose Redevelopment Agency, Downtown San Jose Historic District Design Guidelines Town of Tiburon, Downtown Tiburon Design Guidelines City of Fremont, Special Assistant to Development & Environmental Services Department University-Oakland Metropolitan Forum: Adviser, Joint Community Development Program City of Palo Alto, Recommended Revisions to City's Historic Preservation Ordinance San Francisco YMCA, Cultural Resources Management Plan and Section 106 Compliance, Letterman Pool and Gym, Presidio of San Francisco National Historic Landmark District East Bay Regional Park District, Historic Resource Evaluations of The Redwood Inn, Oakland; Ferry Point Pier and Terminal, Point Richmond; Cottage and Gardens at Dry Creek Ranch, Union City; and. Section 106 compliance documents for Ferry Point Pier and Alvarado Park, Richmond, California Department of Transportation, District 4, Historic Resource Evaluations of Transbay Transit Terminal, San Francisco, and Oliver Bros. Salt Co., Hayward. County of Alameda, Castro 11'alley Central Business District Revitalization Program City of Fresno, Tower District Specific Plan.and Design Guidelines City of Fremont (Irvington District), Conceptual Design Plan, Streetscape Improvements Project and Design Development for the Gateways City of Oxnard, Downtown Design Recommendations and Meta Street Master Plan 1988, 1995 and 1996: Instructor,Department of City and Regional Planning, College of Environmental Design, University of California, Berkeley 1977-May, 1988:Vice President, Page,Anderson &Turnbull, Inc., Architecture and. Urban Design, San Francisco, California Developed and managed urban revitalization, urban design and cultural resource survey components of newly-established architecture and urban planning practice. Became a partner and owner of the firm, and assumed major responsibilities for daily operation of the office. Project manager portfolio consists of the following jobs and contract documents: (a) Port of San Francisco, Design Guidelines for Restoration and Adaptive Use of the Ferry Building; Survey of Cultural Resources: Piers 14-22 1/2, 7be Agriculture Building & The Fire Boat House; Preliminary Case Report:Promenade Development and Pier 16 Demolition. 34 (b) City of Pasadena, Design Guidelines and Zoning Overlay District jbr Old Pasadena and Downtown Pasadena. Urban Design Plan. (c) City of Alhambra, Conceptual Design Plan &Design Guidelines; Zoning Overlay District for Downtown Revitalization; Downtown Design Workshops; and Auto Row Alhambra.. (d) City of Sunnyvale, Murpb_y Avenue Development Program. (e) City of Whittier, Whittier Uptown Design Plan. (f) City of Santa Cruz, Pacific Avenue Design Plan. (g) City of San Luis Obispo, Downtown Improvement Manual. (h) Community Redevelopment Agency of Los Angeles, First Street Nortb Rehabilitation. (i) Pleasanton Chamber of Commerce, Downtown Pleasanton Revitalization. (j) State of Nevada, Procedures for Compiling a Statewide Inventory of Cultural Resources; and the Nevada State Historic Preservation Plan. (k) City of Austin, Texas, Recommended Revisions to the Zoning Ordinance,and the Austin Historic Preservation Plan. (1) Historic Preservation Council for Tarrant County, Texas, Tarrant County Historic Resources Survey. (m) Victoria Preservation, Inc., and City of Victoria, Texas, Introductory Guide to Victoria's Historic and Ambitectural Resources,Rehabilitation Manual, and Historic Preservation Program. (n) City of Amarillo, Texas, Amarillo Historic Building Survey. (o) Encanto Citizens Association (Phoenix, Arizona), Historic Resources Survey; and Encanto-Palrncroft National Register Historic District. Organized site visits and meetings for nine West Coast architects and urban designers in Berlin and six cities of the Federal. Republic of Germany, with program and financial support provided by Aspen Institute Berlin and the City of Berlin (May June, 1987). Initiated site visits and meetings with public officials and design professionals in nine cities of the Federal Republic of Germany, to obtain information and review programs regarding townscape design, urban conservation and commercial district revitalization (October, 1981). Consultant to Sullivans Cove Development Authority, to assess non-maritime revitalization opportunities for the inner harbor area of Hobart, Tasmania (August, 1981). 1977: Director of Comprehensive Planning,Department of Community Development, City of Santa Rosa, Santa Rosa,California Management of the Comprehensive Planning section within the newly-established Department of Community Development (a "super agency" comprised of the former Planning and Building Departments, Redevelopment Agency and Housing Authority). Project completions: (a) Planning Commission recommendations for total update of the Santa Rosa Area General Plan, consisting of eight separate elements, the Land Use Plan, and an Environmental Impact Report. (b) Development of automated procedures for conducting environmental assessment on a parcel-by-parcel basis throughout the Santa Rosa metropolitan area. (c) Planning Commission and Design Review Board recommendations for implementation of the Downtown Design Plan. 1975-76: Planning Director, City of Santa Rosa, Santa Rosa, California Management of programs;"personnel and budget of the Planning Department, and Secretary to the Planning Commission and Design Review Board. Specific responsibilities included: (a) Administration of all comprehensive and specific area planning programs' (b) Administration of all use permit, zoning reclassification, variance, environmental assessment and design review applications; tentative and final subdivision maps; annexation and prezoning recommendations; and General Plan referrals. (c) Administration of bi-weekly meetings of the Planning Commission and Design Review Board, requiring preparation of official hearing notices, agendas, case reports, resolutions and minutes. 35 1973 -75: Planning Officer, Bay Area Air Pollution Control District, San Francisco, California A senior management position to assist the Air Pollution Control Officer, the Deputy Air Pollution Control Officer and the District's 20-member Advisory Council with air quality planning for the nine-county Bay Area District. Primary responsibility consisted of examination and evaluation of District programs and operations, and identification of major planning issues. This included evaluation of policies and programs of the Environmental Protection Agency and the State Air Resources Board (e.g., Indirect Source Review, Transportation Management Plan, Air Quality Maintenance Plan); and potential future programs in air resource management. Other responsibilities included serving as District liaison to other regional agencies, and assisting the Air Polution Control Officer with the District's legislative program in Sacramento, especially on AB-1758 (codification of state statutes governing air pollution)and SB-1543 (emission allocations). 1972 - 73: Residence, travel and study of art, architecture and city planning in Western Europe, primarily Switzerland, Northern Italy and Bavaria 1967-72: Assistant to the Director of Planning, San Francisco Department of City Planning Day-to-day involvement in all major decisions of the Department. Specific responsibilities included administrative and technical assistance to the Director on matters of staff organization and management, particularly the Department's work program; preparation of special planning reports; legislative liaison with the Board of Supervisors,and program liaison with the Office of the Mayor and other city departments, and state and.federal agencies; public presentations representing the Department to community and neighborhood associations;.and recruitment and interviewing of professional personnel. Planning projects with major responsibility included: (a) Forts Mason, Miley and Funston, plan co-author, 1968. (u) South Bayshore Plan, implementation of shoreline element with Bay Conservation and Development Commission, San Francisco Port Commission and The Nature Conservancy, 1969-72. (c) Golden Gate National Recreation Area, National Park Service project planning team, 1970-71. _(d) The Urban Design.Plan for the Comprehensive Plan of San Francisco, project administration, 1971-72. (e) San Francisco Airport Access Project (BART extension from Daly City), organization and planning program, 1970-72. PAPERS , PRESENTATIONS AND CONGRESSES "Public Participation in the Planning Process"; Keynote Speaker and Workshop Chairman Congress of the Society of Polish Town Planners (TUP) Warszawa, Poland,June, 1993 Special Adviser to the 26th World Congress, "The Environment and The City", Warszawa Interviews with President Bendjedid, Algeria, newspaper Horizons and magazine Algerie Actualite Participation as U.S. Representative by Invitation of the Ministry of the Interior International Congress on Management of Major Algerian Cities Algiers, Algeria, Aprif, 1988 Organizer of San Francisco Exhibition,Berlin Modern Architecture "The Use of Historic Resource Surveys in Formulating Urban Planning Policies and Design Programs" Invited Speaker and Workshop Chairman Congress of the International Federation for Housing and Planning Sevilla, Spain, October, 1987 36 Lectures and Informal Consultations with Public Officials, Resident Professionals and University Faculty on the subjects of Urban Design and Urban Conservation United States Information Agency Alexandria, Egypt; and Jeddah, Dhahran and. Riyadh, Saudi Arabia September-October, 1987 "Recent Experiences in US Urban Renewal" and "Conflicts Between Conservation and New Development in the American City" Lecturer at the Institut fur Stadtebau and Wohnungswesen Munchen, Federal Republic of Germany, October, 1986 "Plan Implementation in the Marketplace: Some Recent Trends, Issues and Opportunities" Rapporteur, Congress of the International Society of City and Regional Planners Berlin, Federal Republic of Germany, August, 1985 "Potential Contributions of Planning and Urban Design to the Conservation of Monuments and Sites" 7th ICOMOS General Assembly Rostock and Dresden, German Democratic Republic, May, 1984 "San Francisco Revitalization Plans and Programs: A Case Report" World Congress of the International Federation for Housing and Planning Hamburg, Federal Republic of Germany, September, 1978 PROFESSIONAL ACCRED.ITATIONS AND AFFILIATIONS University of Nevada, Reno,"Preparing Agreement Documents: Section 106 of the National Historic Preservation Act", 1992; and. U.S. Office of Personnel Management, "Introduction to Federal Projects and Historic Preservation Law", 1983 American Institute of Certified Planners (AICP); Member, 1988-2000 International Society of City and Regional Planners (ISoCaRP); Vice President, 1988 - 1993 Association For Preservation Technology International International Council on Monuments and Sites (ICOMOS) Founding Director, The Foundation for San Francisco's Architectural Heritage REFERENCES Allan B. Jacobs University Professor Wurster Hall, University of California Berkeley, California 94720 (510) 642-4840 Marty Craddock Former Executive Director Historic Preservation Council for Tarrant County, Texas 4904 Dexter Fort Worth, Texas 76107 (817) 738-8037 Professor Emeritus Gerd Albers TU Munchen, Stadtebau u. Regionalplanung St,Jakobstrasse 9 D-82110 Germering Federal Republic of Germany (from US) 011 49 89 842-835 37 THOMAS REX HARDY, AIA QUALIFICATIONS Thomas Rex Hardy.,AIA, has worked in architecture since graduating with honors from U.C. Berkeley in 1977. He has been licensed by the state of California to practice architecture since 19,83. He worked in the office of Page&Turnbull in San Francisco from 1985 through 2001, specializing in the restoration and preservation of historic buildings.As associate of Page&Turnbull,San.Francisco's oldest preservation firm,Mr. Hardy worked on the oldest houses in Mountain View, Palo Alto and Atherton as well as many other significant and historic buildings in the Bay Area. He was the project historic architect for the restoration of the.Garden Caurt at-the Palace Hotel, and the rehabilitation of the historic United States Court of Appeals in San Francisco. He is the author of and contributor to numerous Historic Structures Reports and Historic.Resource Studies and is the designer of a new building in the Jackson Square National Historic District in San Francisco. He is currently in private practice in downtown San Francisco. He has worked on a vast number of historically significant buildings including work on the following projects: NATIONAL REGISTER OF HISTORIC PLACES STATE OR LOCAL LANDMARKS Beale Memorial Library,1400 Baker St, . 14.56 Edgewood Drive,Palo Alto,CA Bakersfield,CA . 1311Harrison Street,Oakland,CA it Flood Mansion.(P.U.Club),San Francisco,CA •_ 246 Grove Ave,Fremont,CA • Hanna-Honeycomb House,Palo Alto,CA . Fallon House,San Jose,CA • Haslett Warehouse,San Francisco,CA • Harris-Lass House,Santa Clara,CA it Jackson Square Nati,o.nal H:istaric District, _ Oakland Technical High School,CA San Francisco,CA • Patterson House,Fremont,CA • Charles&Kathleen Norris House,1247 Sea Ranch Barn,Sea Ranch,CA Cowper Street,Palo Alto,CA • Stanford University,CA • PG&E&Matson Buildings,San Francisca . Woodside Village Church,Woodside,CA +► Re.ngstorff House,Mountain View,CA • Sheraton-Palace Hotel,San Francisco,CA SAN FRANCISCO CITY LANDMARKS • Tecate Border Crossing Station,Southern California � 425Pacific Avenue,San Francisco,CA • U.S.Court of Appeals,San Francisco,CA * 835 Montgomery Street,San Francisco,CA • U.S.Courthouse,Los Angeles,CA • Crocker Fence,San Francisco,CA U.S. Post Office and Office Building,Hila,HI . Davies Firehouse,San.Francisco,CA • U.S.Courthouse,Phoenix,AZ • Flood Mansion (P.U.Club),San Francisco,CA • Washoe County Courthouse,Reno,NV • Mechanics' Institute,San Francisco,CA Watkins-Cartan HouseAtherton,CA . Musto Building,16'6.Grant Ave,San Francisco-.,CA • Ortman-Shumate Residence,San Francisco • Stern Grove Trocadero Clubhouse,San Francisco 333 Grant Avenue,San Francisco QUALIFICATIONS 38 N ' THOMAS REX HARDY, AIA EXPERIENCE WITH HISTORIC BUILDINGS NATIONAL REGISTER OF HISTORIC PLACES 541 Ramona Street,Palo Alto,CA Beale Memorial Library,1400 Baker St,Bakersfield,CA Flood Mansion,San Francisco,CA Green Gables,Woodside,CA Hanna-Honeycomb House,Palo Alto,CA Haslett Warehouse,San Francisco,CA Jackson Square National Historic District,San Francisco,CA Charles&Kathleen Norris House,1247 Cowper Street, Palo Alto,CA PG&E and Matson Buildings,San Francisco,CA Rengstorff House,Mountain View,CA Sheraton-Palace Hotel,San Francisco,CA Tecate Border-Crossing Station,Southern California U.S.Court of Appeals,San Francisco,CA U.S.Courthouse,Los Angeles,CA U.S.Past Office and Office:Building,Hilo,HI. U.S.Courthouse,Phoenix,AZ Washoe County Courthouse,Reno,NV Watkins-Cartan House,Atherton,CA STATE OR LOCAL LANDMARKS 1427.Chapin Avenue,Burlingame,CA 1456 Edgewood Drive,Palo Alto,CA 19go Cowper Street,Palo Alto Fallon House,San Jose,CA Harris-Lass House,Santa Clara,CA Oakland Technical High School,Oakland,CA Patterson House,Fremont,CA Sea Ranch Barn,Sea Ranch,CA Stanford University,CA Woodside Village Church,Woodside,CA SAN FRANCISCO CITY LANDMARKS 425 Pacific Avenue,San Francisca,CA 835 Montgomery Street,San Francisco,CA Crocker Fence,--S-anlFrancisco,CA Davies Firehous ,S-an Francisco,CA —- Flood Mansion,San Francisco,CA Mechanics' Institute,San Francisco,CA Musto.Building,166 Grant Ave,San Francisco.,CA Ortman-Shumate Residence,San Francisco,CA PG&E and Matson Buildings,San Francisco,CA Stern Grove Trocadero Clubhouse,San Francisco,CA U.S.Court of Appeals,San Francisco.,CA HISTORIG BUILDING EXPERIENCE 39 • PERSONAL THOMAS REX HARDY, AIA 510 Stoickto.n.St,No..1o1 San Francisco,California 941o8 (415) 837-0489 Registration:California 12683 (since 1982) Email: trhaia@sbcgloba{.net Web:www.arc-hitect.us.com EDUCATION U.C. Berkeley,1977 A.B.Architecture.,graduated with honors Malvern College,England 1969-1972 EXPERIENCE 2001 to present: THOMAS REX HARDY, AIA,San Francisco,CA Sole Proprietor 1985 to 2001: PAGE & TURNBULi,San Francisco,CA Project Architect,CAD Manager Associate,Principal 1984 to 1985: MOSHER/DREW/WATSON/FERGUSON,San Diego,CA Project Architect 1977 t0 1984: CLARK, STROMQUIST & SANDSTROM, Pala Alto,CA Project Architect,Associate of firm AWARDS California Historic Preservation Conference 1983 for-Renovation of Guest:House,at.the Hanna-,Honeycomb House, Stanford,California.1983 for Rehabilitation of Stern Grove 7rocaderoClubhouse, San Francisco,California.1988 AFFILIATIONS American Institute of Architects San Francisco Architectural Heritage Classical America California Preservation Foundation Bugatti Trust;Alfa Romeo Association Wilfiam Morris Society;- PUBLICATIONS, ocietyPUBLICATIONS, ETC. The Oberlin Book of Bandstands,Competition Entry, Preservation Preas,1987- RESUME 40 1 36 CFR PART 800--PROTECTION OF project planning. The goal of implementation of a program HISTORIC PROPERTIES(incorporating consultation is to identify historic alternative. The agency official may be amendments effective August 5,20041 properties potentially affected by the a State,local,or tribal government undertaking,assess its effects and seek official who has been delegated legal Subpart A--Purposes and Participants ways to avoid,minimize or mitigate any responsibility for compliance with adverse effects on historic properties. section 106 in accordance with Federal Sec. (b)Relation to other provisions of the law. 800.1 Purposes. act. Section 106 is related to other (1)Professional standards, Section 800.2 Participants in the Section 106 provisions of the act designed to further 112(a)(1)(A)of the act requires each process. the national policy of historic Federal agency responsible for the preservation. References to those protection of historic resources, Subpart B--The Section 106 Process provisions are included in this part to including archeological resources,to identify circumstances where they may ensure that all actions taken by 800.3 Initiation of the section 106 affect actions taken to meet section 106 employees or contractors of the agency process. requirements. Such provisions may shall meet professional standards under 800,4 Identification of historic have their own implementing regulations developed by the Secretary. properties. regulations or guidelines and are not (2)Lead Federal agency. If more 800.5 Assessment of adverse effects, intended to be implemented by the than one Federal agency is involved in 800.6 Resolution of adverse effects. procedures in this part except insofar as an undertaking,some or all the agencies 800.7 Failure to resolve adverse effects. they relate to the section 106 process. may designate a lead Federal agency, 800.8 Coordination with the National Guidelines,policies and procedures which shall identify the appropriate Environmental Policy act. issued by other agencies,including the official to serve as the agency official 800.9 Council review of Section 106 Secretary,have been cited in this part who shall act on their behalf,fulfilling compliance. for ease of access and are not their collective responsibilities under 800.10 Special requirements for incorporated by reference, section 106. Those Federal agencies protecting National Historic (c)Timing. The agency official must that do not designate a lead Federal Landmarks. complete the section 106 process"prior agency remain individually responsible 800.11 Documentation standards. to the approval of the expenditure of for their compliance with this part. 800.12 Emergency situations. any Federal funds on the undertaking or (3) Use of contractors. Consistent 800.13 Post-review discoveries. prior to the issuance of any license," with applicable conflict of interest laws, This does not prohibit agency official the agency official may use the services . Subpart C--Program Alternatives from conducting or authorizing of applicants,consultants,or designees nondestructive project planning to prepare information,analyses and 800.14 Federal agency program activities before completing compliance recommendations under this part. The alternatives. with section 106,provided that such agency official remains legally 800.15 Tribal, State and Local Program actions do not restrict the subsequent responsible for all required findings and Alternatives.(Reserved) consideration of alternatives to avoid, determinations. If a document or study 800.16 Definitions. minimize or mitigate the undertaking's is prepared by anon-Federal party,the Appendix A—Criteria for Council adverse effects on historic properties. agency official is responsible for involvement in reviewing individual The agency official shall ensure that the ensuring that its content meets section 106 cases section 106 process is initiated early in applicable standards and guidelines. the undertaking's planning,so that a (4)Consultation. The agency official Authority:16 U.S.C.470s. broad range of alternatives may be shall involve the consulting parties considered during the planning process described in paragraph(c) of this Subpart A-Purposes and Participants for the undertaking. section in findings and determinations made during the section 106 process. §800.1 Purposes. §800.2 Participants in the Section 106 The agency official should plan (a)Purposes of the section 106 process. consultations appropriate to the scale of process. Section 106 of the National (a)Agency official. It is the statutory the undertaking and the scope of Historic Preservation Act requires obligation of the Federal agency to fulfill Federal involvement and coordinated Federal agencies to take into account the the requirements of section 106 and to with other requirements of other effects of their undertakings on historic ensure that an agency official with statutes,as applicable,such as the properties and afford the Council a jurisdiction over an undertaking takes National Environmental Policy Act,the reasonable opportunity to comment on legal and financial responsibility for Native American Graves Protection and such undertakings. The procedures in section 106 compliance in accordance Repatriation Act,the American Indian this part define how Federal agencies with subpart B of this part. The agency Religious Freedom Act,the -:-meet_these statutory responsibilities. _official has approval_.authority for the_ _Archeological_Resources Protect_on Act _ The section 106 process seeks to undertaking and can commit the Federal and agency-specific legislation. The accommodate historic preservation agency to take appropriate action for a Council encourages the agency official concerns with the needs of Federal specific undertaking as a result of to use to the extent possible existing undertakings through consultation section 106 compliance. For the agency procedures and mechanisms to among the agency official and other purposes of subpart C of this part,the fulfill the consultation requirements of parties with an interest in the effects of agency official has the authority to this part. the undertaking on historic properties, commit the Federal agency to any (b) Council, The Council issues commencing at the early stages of obligation it may assume in the regulations to implement section 106, 41 2 provides guidance and advice on the (A) Tribal historic preservation preservation issues and resolve application of the procedures in this officer. For a tribe that has assumed the concerns about the confidentiality of part,and generally oversees the responsibilities of the SHPO for section information on historic properties. operation of the section 106 process, 106 on tribal lands under section (B)The Federal Government has a The Council also consults with and 101(d)(2)of the act,the tribal historic unique legal relationship with Indian comments to agency officials on preservation officer(THPO)appointed tribes set forth in the Constitution of the individual undertakings and programs or designated in accordance with the act United States,treaties,statutes,and that affect historic properties. is the official representative for the court decisions. Consultation with (1) Council entry into the section 106 purposes of section 106. The agency Indian tribes should be conducted in a process. When the Council determines official shall consult with the THPO in sensitive manner respectful of tribal that its involvement is necessary to lieu of the SHPO regarding undertakings sovereignty. Nothing in this part alters, ensure that the purposes of section 106 occurring on or affecting historic amends,repeals,interprets or modifies and the act are met,the Council may properties on tribal lands, tribal sovereignty,any treaty rights,or enter the section 106 process. Criteria (B) Tribes that have not assumed other rights of an Indian tribe,or guiding Council decisions to enter the SHPO functions.When an Indian tribe preempts,modifies or limits the exercise section 106 process are found in has not assumed the responsibilities of of any such rights. appendix A to this part. The Council the SHPO for section 106 on tribal lands (C)Consultation with an Indian will document that the criteria have under section 101(d)(2)of the act,the tribe must recognize the government-to- been met and notify the parties to the agency official shall consult with a government relationship between the section 106 process as required by this representative designated by such Federal Government and Indian tribes. part. Indian tribe in addition to the SHPO The agency official shall consult with (2) Council assistance. Participants regarding undertakings occurring on or representatives designated or identified in the section 106 process may seek affecting historic properties on its tribal by the tribal government or the advice, guidance and assistance from lands. Such Indian tribes have the same governing body of a Native Hawaiian the Council on the application of this rights of consultation and concurrence organization. Consultation with Indian part to specific undertakings,including that the THPOs are given throughout tribes and Native Hawaiian the resolution of disagreements, subpart B of this part,except that such organizations should be conducted in a whether or not the Council is formally consultations shall be in addition to and manner sensitive to the concerns and involved in the review of the on the same basis as consultation with needs of the Indian tribe or Native undertaking. If questions arise the SHPO. Hawaiian organization. regarding the conduct of the section 106 (ii)Consultation on historic (D)When Indian tribes and Native process,participants are encouraged to properties of significance to Indian tribes Hawaiian organizations attach religious obtain the Council's advice on and Native Hawaiian organizations. and cultural significance to historic completing the process. Section 101(d)(6)(B)of the act requires properties off tribal lands,section (c) Consulting parties. The following the agency official to consult with any 101(d)(6)(B)of the act requires Federal parties have consultative roles in the Indian tribe or Native Hawaiian agencies to consult with such Indian section 106 process. organization that attaches religious and tribes and Native Hawaiian (1) State historic preservation officer. cultural significance to historic organizations in the section 106 process. (i)The State historic preservation properties that may be affected by an Federal agencies should be aware that officer(SHPO) reflects the interests of undertaking. This requirement applies frequently historic properties of the State and its citizens in the regardless of the location of the historic religious and cultural significance are preservation of their cultural heritage. property. Such Indian tribe or Native located on ancestral,aboriginal,or In accordance with section 101(b)(3)of Hawaiian organization shall be a ceded lands of Indian tribes and Native the act,the SHPO advises and assists consulting party. Hawaiian organizations and should Federal agencies in carrying out their (A)The agency official shall ensure consider that when complying with the section 106 responsibilities and that consultation in the section 106 procedures in this part. cooperates with such agencies,local process provides the Indian tribe or (E)An Indian tribe or a Native governments and organizations and Native Hawaiian organization a Hawaiian organization may enter into individuals to ensure that historic reasonable opportunity to identify its an agreement with an agency official properties are taking into consideration concerns about historic properties, that specifies how they will carry out at all levels of planning and advise on the identification and responsibilities under this part, development. evaluation of historic properties, including concerns over the (ii) If an Indian tribe has assumed including those of traditional religious confidentiality of information. An the functions of the SHPO in the section and cultural importance,articulate its agreement may cover all aspects of tribal 106 process for undertakings on tribal views on the undertaking's effects on participation in the section 106 process, lands,the SHPO shall participate as a such properties,and participate in the provided that no modification may be _ consulting party-if the undertaking_takes-___ resolution of adverse-effects. It-is the made m the roles_af other-parties to the _- place on tribal lands but affects historic responsibility of the agency official to section 106 process without their properties off tribal lands,if requested make a reasonable and good faith effort consent. An agreement may grant the in accordance with§800.3(c)(1),or if to identify Indian tribes and Native Indian tribe or Native Hawaiian the Indian tribe agrees to include the Hawaiian organizations that shall be organization additional rights to SHPO pursuant to§800.3(f)(3). consulted in the section 106 process. participate or concur in agency (2)Indian tribes and Native Consultation should commence early in decisions in the section 106 process Hawaiian organizations_ the planning process,in order to beyond those specified in subpartB of (i) Consultation on tribal lands. identify and discuss relevant this part. The agency official shall 42 3 provide a copy of any such agreement to the relationship of the Federal Transportation Act. Where consistent the Council and the appropriate SHPOs. involvement to the undertaking. with the procedures in this subpart,the (F)An Indian tribe that has not (2)Providing notice and information. agency official may use information assumed the responsibilities of the The agency official must,except where developed for other reviews under SHPO far section 106 on tribal lands appropriate to protect confidentiality Federal,State or tribal law to meet the under section 101(d)(2)of the act may concerns of affected parties,provide the requirements of section 106. notify the agency official in writing that public with information about an (c)Identify the appropriate SHPO it is waiving its rights under§ undertaking and its effects on historic and/or THPO. As part of its initial 800.6(c)(1)to execute a memorandum of properties and seek public comment planning,the agency official shall agreement. and input. Members of the public may determine the appropriate SHPO or (3)Representatives of local also provide views on their own SHPOs to be involved in the section 106 governments. A representative of a local initiative for the agency official to process. The agency official shall also government with jurisdiction over the consider in decisionmaking. determine whether the undertaking may area in which the effects of an (3) Use of agency procedures. The occur on or affect historic properties on undertaking may occur is entitled to agency official may use the agency's any tribal lands and,if so,whether a participate as a consulting party. Under procedures for public involvement THPO has assumed the duties of the other provisions of Federal law,the under the National Environmental SHPO. The agency official shall then local government may be authorized to Policy Act or other program initiate consultation with the act as the agency official for purposes of requirements in lieu of public appropriate officer or officers. section 106. involvement requirements in subpart B (1) Tribal assumption of SHPO (4)Applicants for Federal assistance, of this part,if they provide adequate responsibilities. Where an Indian tribe permits,licenses and other approvals. opportunities for public involvement has assumed the section 106 An applicant for Federal assistance or consistent with this subpart. responsibilities of the SHPO on tribal for a Federal permit,license or other lands pursuant to section 101(d)(2)of approval is entitled to participate as a Subpart B-The section 106 Process the act,consultation for undertakings consulting party as defined in this part. occurring on tribal land or for effects on The agency official may authorize an §800.3 Initiation of the section 106 tribal land is with the THPO for the applicant or group of applicants to process. Indian tribe in lieu of the SHPO_ initiate consultation with the (a)Establish undertaking. The Section 101(d)(2)(D)(iii) of the act SHPO/THPO and others,but remains agency official shall determine whether authorizes owners of properties on tribal legally responsible for all findings and the proposed Federal action is an lands which are neither owned by a determinations charged to the agency undertaking as defined in§800.16(y) member of the tribe nor held in trust by official. The agency official shall notify and,if so,whether it is a type of activity the Secretary for the benefit of the tribe the SHPO/THPO when an applicant or that has the potential to cause effects on to request the SHPO to participate in the group of applicants is so authorized. A historic properties. section 106 process in addition to the Federal agency may authorize all (1)No potential to cause effects. If THPO. applicants in a specific program the undertaking is a type of activity that (2) Undertakings involving more than pursuant to this section by providing does not have the potential to cause one State. If more than one State is notice to all SHPO/THPOs. Federal effects on historic properties,assuming involved in an undertaking,the agencies that provide authorizations to such historic properties were present, involved SHPOs may agree to designate applicants remain responsible for their the agency official has no further a lead SHPO to act on their behalf in the government to government relationships obligations under section 106 or this section 106 process,including taking with Indian tribes, part. actions that would conclude the section (5)Addition a]consulting parties. (2)Program alternatives. If the 106 process under this subpart. Certain individuals and organizations review of the undertaking is governed (3) Conducting consultation. The with a demonstrated interest in the by a Federal agency program alternative agency official should consult with the undertaking may participate as established under§800.14 or a SHPO/THPO in a manner appropriate to consulting parties due to the nature of programmatic agreement in existence the agency planning process for the their legal or economic relation to the before January 11,2001,the agency undertaking and to the nature of the undertaking or affected properties,or official shall follow the program undertaking and its effects on historic their concern with the undertaking's alternative. properties. effects on historic properties. (b)Coordinate with other reviews. (4)Failure of the SHPOITHPO to (d) The public. The agency official should coordinate respond. If the SHPO/THPO fails to (1)Nature of involvement.The views the steps of the section 106 process,as respond within 30 days of receipt of a of the public are essential to informed appropriate,with the overall planning request for review of a finding or Federal decisionmaking in the section schedule for the undertaking and with determination,the agency official may i06 ptoaam::'Elie agency-official_shall______ any reviews=required-under-other --__ -- either p1oceed-tothe next_stepin_th_e - seek and consider the views of the authorities such as the National process based on the finding or public in a manner that reflects the Environmental Policy Act,the Native determination or consult with the nature and complexity of the American Graves Protection and Council in lieu of the SHPO/THPO. If undertaking and its effects on historic Repatriation Act,the American Indian the SHPO/THPO re-enters the section properties,the likely interest of the Religious Freedom Act,the 106 process,the agency official shall public in the effects on historic Archeological Resources Protection Act continue the consultation without being properties,confidentiality concerns of and agency-specific legislation,such as required to reconsider previous findings private individuals and businesses,and section 4(f)of the Department of or determinations. 43 4 (d)Consultation on tribal lands. (g)Expediting consultation. A sample field investigation,and field Where the Indian tribe has not assumed consultation by the agency official with survey.The agency official shall take the responsibilities of the SHPO on the SHPO/THPO and other consulting into account past planning,research tribal lands,consultation with the parties may address multiple steps in§§ and studies,the magnitude and nature Indian tribe regarding undertakings 800.3 through 800.6 where the agency of the undertaking and the degree of occurring on such tribe's lands or effects official and the SHPO/THPO agree itis Federal involvement,the nature and on such tribal lands shall be in addition appropriate as long as the consulting extent of potential effects on historic to and on the same basis as consultation parties and the public have an adequate properties,and the likely nature and with the SHPO. If the SHPO has opportunity to express their views as location of historic properties within the withdrawn from the process,the agency provided in§800.2(d). area of potential effects. The Secretary's official may complete the section 106 Standards and Guidelines for process with the Indian tribe and the §800.4 Identification of historic Identification provide guidance on this Council,as appropriate. An Indian tribe properties. subject. The agency official should also may enter into an agreement with a (a)Determine scope of identification consider other applicable professional, SHPO or SHPOs specifying the SHPO's efforts. In consultation with the State,tribal and local laws,standards participation in the section 106 process SHPO/THPO,the agency official shall: and guidelines. The agency official for undertakings occurring on or (1)Determine and document the shall take into account any affecting historic properties on tribal area of potential effects,as defined in§ confidentiality concerns raised by lands. 800.16(d); Indian tribes or Native Hawaiian (e)Plan to involve the public. In (2)Review existing information on organizations during the identification consultation with the SHPO/THPO,the historic properties within the area of process. agency official shall plan for involving potential effects,including any data (2)Phased identification and the public in the section 106 process. concerning possible historic properties evaluation. Where alternatives under The agency official shall identify the not yet identified; consideration consist of corridors or appropriate points for seeking public (3)Seek information,as appropriate, large land areas,or where access to input and for notifying the public of from consulting parties,and other properties is restricted,the agency proposed actions,consistent with§ individuals and organizations likely to official may use a phased process to 800.2(d). have knowledge of,or concerns with, conduct identification and evaluation (f)Identify other consulting parties. historic properties in the area,and efforts. The agency official may also In consultation with the SHPO/THPO, identify issues relating to the defer final identification and evaluation the agency official shall identify any undertaking's potential effects on of historic properties if it is specifically other parties entitled to be consulting historic properties;and provided for in a memorandum of - parties and invite them to participate as (4)Gather information from any agreement executed pursuant to§800.6, such in the section 106 process. The Indian tribe or Native Hawaiian a programmatic agreement executed agency official may invite others to organization identified pursuant to§ pursuant to§800.14(b),or the participate as consulting parties as the 800.3(f)to assist in identifying documents used by an agency official to section 106 process moves forward. properties,including those located off comply with the National (1)Involving local governments and tribal lands,which may be of religious Environmental Policy Act pursuant to§ applicants. The agency official shall and cultural significance to them and 800.8. The process should establish the invite any local governments or may be eligible for the National Register, likely presence of historic properties applicants that are entitled to be recognizing that an Indian tribe or within the area of potential effects for consulting parties under§800.2(c). Native Hawaiian organization may be each alternative or inaccessible area (2)Involving Indian tribes and reluctant to divulge specific information through background research, Native Hawaiian organizations. The regarding the location,nature,and consultation and an appropriate level of agency official shall make a reasonable activities associated with such sites, field investigation,taking into account and good faith effort to identify any The agency official should address the number of alternatives under Indian tribes or Native Hawaiian concerns raised about confidentiality consideration,the magnitude of the organizations that might attach religious pursuant to§800.11(c). undertaking and its likely effects,and and cultural significance to historic (b)Identify historic properties. Based the views of the SHPO/THPO and any properties in the area of potential effects on the information gathered under other consulting parties. As specific and invite them to be consulting parties. paragraph(a)of this section,and in aspects or locations of an alternative are Such Indian tribe or Native Hawaiian consultation with the SHPO/THPO and refined or access is gained,the agency organization that requests in writing to any Indian tribe or Native Hawaiian official shall proceed with the be a consulting party shall be one. organization that might attach religious identification and evaluation of historic (3)Requests to be consulting parties. and cultural significance to properties properties in accordance with The agency official shall consider all within the area of potential effects,the paragraphs(b)(1)and(c)of this section. written requests-of individuals-and --- agency_official-shall-t_ake thes-t-eps -{c)Evaluate historicc signcance._ - -- organizations to participate as necessary to identify historic properties (1)Apply National Register criteria. consulting parties and,in consultation within the area of potential effects. In consultation with the SHPO/THPO with the SHPO/THPO and any Indian (1)Level of effort. The agency and any Indian tribe or Native Hawaiian tribe upon whose tribal lands an official shall make a reasonable and organization that attaches religious and undertaking occurs or affects historic good faith effort to carry out appropriate cultural significance to identified properties,determine which should be identification efforts,which may properties and guided by the Secretary's consulting parties. include background research, Standards and Guidelines for consultation,oral history interviews, Evaluation,the agency official shall 44 5 apply the National Register criteria(36 (ii)If the SHPO/THPO objects accordance with the revised finding.If CFR part 63)to properties identified within 30 days of receipt of an the final decision of the agency is to within the area of potential effects that adequately documented finding,the affirm the initial agency finding of no have not been previously evaluated for agency official shall.either consult with historic properties affected,once the National Register eligibility. The the objecting party to resolve the summary of the decision has been sent passage of time,changing perceptions of disagreement,or forward the finding to the Council,the SHPO/THPO,and significance,or incomplete prior and supporting documentation to the the consulting parties,the agency evaluations may require the agency Council and request that the Council official's responsibilities under section official to reevaluate properties review the finding pursuant to 106 are fulfilled. previously determined eligible or paragraphs(d)(1)(iv)(A)through (D)The Council shall retain a record ineligible. The agency official shall (d)(1)(iv)(C)of this section.When an of agency responses to Council opinions acknowledge that Indian tribes and agency official forwards such requests on their findings of no historic Native Hawaiian organizations possess for review to the Council,the agency properties affected.The Council shall special expertise in assessing the official shall concurrently notify all make this information available to the eligibility of historic properties that may consulting parties that such a request public. possess religious and cultural has been made and make the request (2)Historic properties affected_If the significance to them. documentation available to the public. agency official finds that there are (2)Determine whether a property is (iii)During the SHPO/THPO 30 day historic properties which may be eligible. If the agency official review period,the Council may object to affected by the undertaking,the agency determines any of the National Register the finding and provide its opinion official shall notify all consulting criteria are met and the SHPO/THPO regarding the finding to the agency parties,including Indian tribes or agrees,the property shall be considered official and,if the Council determines Native Hawaiian organizations,invite eligible for the National Register for the issue warrants it,the head of the their views on the effects and assess section 106 purposes. If the agency agency.A Council decision to provide adverse effects,if any,in accordance official determines the criteria are not its opinion to the head of an agency. with§800.5. met and the SHPO/THPO agrees,the shall be guided by the criteria in property shall be considered not appendix A to this part.The agency §800.5 Assessment of adverse effects. eligible.If the agency official and the shall then proceed according to (a)Apply criteria of adverse effect. In SHPO/THPO do not agree,or if the paragraphs(d)(1)(iv)(B)and(d)(1)(iv)(C) consultation with the SHPO/THPO and Council or the Secretary so request,the of this section. any Indian tribe or Native Hawaiian agency official shall obtain a (iv)(A)Upon receipt of the request organization that attaches religious and determination of eligibility from the under paragraph(d)(1)(ii)of this cultural significance to identified Secretary pursuant to 36 CFR part 63. If section,the Council will have 30 days in historic properties,the agency official an Indian tribe or Native Hawaiian which to review the finding and provide shall apply the criteria of adverse effect organization that attaches religious and the agency official and,if the Council to historic properties within the area of cultural significance to a property off determines the issue warrants it,the potential effects. The agency official tribal lands does not agree,it may ask head of the agency with the Council's shall consider any views concerning the Council to request the agency opinion regarding the finding.A such effects which have been provided official to obtain a determination of Council decision to provide its opinion by consulting parties and the public. eligibility. to the head of an agency shall be guided (1)Criteria of adverse effect. An (d)Results of identification and by the criteria in appendix A to this adverse effect is found when an evaluation, part.If the Council does not respond undertaking may alter,directly or (1)No historic properties affected.If within 30 days of receipt of the request, indirectly,any of the characteristics of a the agency official finds that either there the agency official's responsibilities historic property that qualify the are no historic properties present or under section 106 are fulfilled. property for inclusion in the National there are historic properties present but (B)The person to whom the Council Register in a manner that would the undertaking will have no effect addresses its opinion(the agency official diminish the integrity of the property's upon them as defined in§800.16(i),the or the head of the agency)shall take into location,design,setting,materials, agency official shall provide account the Council's opinion before the workmanship,feeling,or association. documentation of this finding,as set agency reaches a final decision on the Consideration shall be given to all forth in§800.11(d),to the SHPO/THPO. finding, qualifying characteristics of a historic The agency official shall notify all (C)The person to whom the Council property,including those that may have consulting parties,including Indian addresses its opinion(the agency official been identified subsequent to the tribes and Native Hawaiian or the head of the agency)shall then original evaluation of the property's organizations,and make the prepare a summary of the decision that eligibility for the National Register. documentation available for public contains the rationale for the decision Adverse effects may include reasonably inspectiorior to approving,the - and evidence-of-consideration of the _ foreseeable effects caused by the -- -- - undertaking. Council's opinion,and provide it to the undertaking thatmay occur later in (i)If the SHPO/THPO,or the Council,the SHPO/THPO,and the time,be farther removed in distance or Council if it has entered the section 106 consulting parties.The head of the be cumulative. process,does not object within 30 days agency may delegate his or her duties (2)Examples of adverse effects. of receipt of an adequately documented under this paragraph to the agency's Adverse effects on historic properties finding,the agency official's senior policy official.If the agency include,but are not limited to: responsibilities under section 106 are official's initial finding will be revised, (i)Physical destruction of or damage fulfilled. the agency official shall proceed in to all or part of the property; 45 6 (ii)Alteration of aproperty, (1)Agreement with,or no objection been correctly applied.A Council including restoration,rehabilitation, to,finding.Unless the Council is decision to provide its opinion to the repair,maintenance,stabilization, reviewing the finding pursuant to head of an agency shall be guided by the hazardous material remediation and paragraph(6)(3)of this section,the criteria in appendix A'to this part.The provision of handicapped access,that is agency official may proceed after the Council will provide its opinion within not consistent with the Secretary's close of the 30 day review period if the 15 days of receiving the documented Standards for the Treatment of Historic SHPO/THPO has agreed with the finding from the agency official.The Properties(36 CFR part 68)and finding or has not provided a response, Council at its discretion may extend that applicable guidelines; and no consulting party has objected, time period for 15 days,in which case it (iii)Removal of the property from its The agency official shall then carry out shall notify the agency of such historic location; the undertaking in accordance with extension prior to the end of the initial (iv)Change of the character of the paragraph(d)(1)of this section. 15 day period.If the Council does not property's use or of physical features (2)Disagreement with finding. respond within the applicable time within the property's setting that (i)If within the 30 day review period period,the agency official's contribute to its historic significance; the SHPO/THPO or any consulting party responsibilities under section 106 are (v)Introduction of visual, notifies the agency official in writing fulfilled. atmospheric or audible elements that that it disagrees with the finding and (ii)(A)The person to whom the diminish the integrity of the property's specifies the reasons for the Council addresses its opinion(the significant historic features; disagreement in the notification,the agency official or the head of the (vi)Neglect of a property which agency official shall either consult with agency)shall take into account the causes its deterioration,except where the party to resolve the disagreement,or Council's opinion in reaching a final such neglect and deterioration are request the Council to review the decision on the finding. recognized qualities of a property of finding pursuant to paragraphs (c)(3)(i) (B)The person to whom the Council religious and cultural significance to an and(c)(3)(ii)of this section.The agency addresses its opinion(the agency official Indian tribe or Native Hawaiian official shall include with such request or the head of the agency)shall prepare organization;and the documentation specified in§ a summary of the decision that contains (vii)Transfer,lease,or sale of 800.11(e).The agency official shall also the rationale for the decision and property out of Federal ownership or concurrently notify all consulting evidence of consideration of the control without adequate and legally parties that such a submission has been Council's opinion,and provide it to the enforceable restrictions or conditions to made and make the submission Council,the SHPO/THPO,and the ensure long-term preservation of the documentation available to the public. consulting parties.The head of the property's historic significance. (ii)If within the 30 day review agency may delegate his or her duties (3)Phased application of criteria. period the Council provides the agency under this paragraph to the agency's Where alternatives under consideration official and,if the Council determines senior policy official.If the agency consist of corridors or large land areas, the issue warrants it,the head of the official's initial finding will be revised, or where access to properties is agency,with a written opinion objecting the agency official shall proceed in restricted,the agency official may use a to the finding,the agency shall then accordance with the revised finding.If phased process in applying the criteria proceed according to paragraph(c)(3)(ii) the final decision of the agency is to of adverse effect consistent with phased of this section.A Council decision to affirm the initial finding of no adverse identification and evaluation efforts provide its opinion to the head of an effect,once the summary of the decision conducted pursuant to§800.4(b)(2). agency shall be guided by the criteria in has been sent to the Council,the (b)Finding of no adverse effect. The appendix A to this part. SHPO/THPO,and the consulting parties, agency official,in consultation with the (iii)The agency official should seek the agency official's responsibilities SHPO/THPO,may propose a finding of the concurrence of any Indian tribe or under section 106 are fulfilled. no adverse effect when the Native Hawaiian organization that has (C)The Council shall retain a record undertaking's effects do not meet the made known to the agency official that of agency responses to Council opinions criteria of paragraph(a)(1)of this it attaches religious and cultural on their findings of no adverse effects. section or the undertaking is modified significance to a historic property The Council shall make this information or conditions are imposed,such as the subject to the finding.If such Indian available to the public, subsequent review of plans for tribe or Native Hawaiian organization (d)Results of assessment, rehabilitation by the SHPO/THPO to disagrees with the finding,it may within (1)No adverse effect. The agency ensure consistency with the Secretary's the 30 day review period specify the official shall maintain a record of the Standards for the Treatment of Historic reasons for disagreeing with the finding finding and provide information on the Properties(36 CFR part 68)and and request the Council to review and finding to the public on request, applicable guidelines,to avoid adverse object to the finding pursuant to consistent with the confidentiality effects. paragraph(c)(2)(ii)of this section, provisions of§800.11(c). (c),Consulting party review, If the (3-)Council review of findings. Implementation of the undertaking in agency official proposes a finding of no (i)When a finding is submitted to accordance-with the finding as adverse effect,the agency official shall the Council pursuant to paragraph documented fulfills the agency official's notify all consulting parties of the (c)(2)(i)of this section,the Council shall responsibilities under section 106 and finding and provide them with the review the finding and provide the this part. If the agency official will not documentation specified in§800.11(e). agency official and,if the Council conduct the undertaking as proposed in The SHPO/THPO shall have 30 days determines the issue warrants it,the the finding,the agency official shall from receipt to review the finding, head of the agency with its opinion as to reopen consultation under paragraph(a) whether the adverse effect criteria have of this section. 46 . 7 (2)Adverse effect. If an adverse in a memorandum of agreement to effects will be resolved,they shall effect is found,the agency official shall participate as a consulting party. execute a memorandum of agreement. consult further to resolve the adverse (3)Provide documentation. The The agency official must submit a copy effect pursuant to§800.6. agency official shall provide to all of the executed memorandum of consulting parties the documentation agreement, along with the §800.6 Resolution of adverse effects, specified in§800,11(e),subject to the documentation specified in§800.11(f), (a) Continue consultation. The confidentiality provisions of§800.11(c), to the Council prior to approving the agency official shall consult with the and such other documentation as may undertaking in order to meet the SHPO/THPO and other consulting be developed during the consultation to requirements of section 106 and this parties,including Indian tribes and resolve adverse effects. subpart. Native Hawaiian organizations,to (4)Involve the public.The agency (v)If the agency official,and the develop and evaluate alternatives or official shall make information available SHPO/THPO fail to agree on the terms modifications to the undertaking that to the public,including the of a memorandum of agreement,the could avoid,minimize or mitigate documentation specified in§800.11(e), agency official shall request the Council adverse effects on historic properties. subject to the confidentiality provisions to join the consultation and provide the (1)Notify the Council and determine of§800.11(c). The agency official shall Council with the documentation set Council participation. The agency provide an opportunity for members of forth in§800.11(g). If the Council official shall notify the Council of the the public to express their views on decides to join the consultation,the adverse effect finding by providing the resolving adverse effects of the agency official shall proceed in documentation specified in§800.11(e). undertaking. The agency official should accordance with paragraph(b)(2)of this (i)The notice shall invite the use appropriate mechanisms,taking into section.If the Council decides not to Council to participate in the account the magnitude of the join the consultation,the Council will consultation when: undertaking and the nature of its effects notify the agency and proceed to (A)The agency official wants the upon historic properties,the likely comment in accordance with§800.7(c). Council to participate; effects on historic properties,and the (2)Resolution with Council (B)The undertaking has an adverse relationship of the Federal involvement participation.If the Council decides to effect upon a National Historic to the undertaking to ensure that the participate in the consultation,the Landmark;or public's views are considered in the agency official shall consult with the (C)A programmatic agreement consultation. The agency official SHPO/THPO,the Council,and other under§800.14(b)will be prepared; should also consider the extent of notice consulting parties,including Indian (ii)The SHPO/THPO,an Indian tribe and information concerning historic tribes and Native Hawaiian or Native Hawaiian organization,or any preservation issues afforded the public organizations under§800.2(c)(3),to other consulting party may at any time at earlier steps in the section 106 seek ways to avoid,minimize or independently request the Council to process to determine the appropriate mitigate the adverse effects. If the participate in the consultation. level of public involvement when agency official,the SHPO/THPO,and (iii)The Council shall advise the resolving adverse effects so that the the Council agree on how the adverse agency official and all consulting parties standards of§800.2(d)are met. effects will be resolved,they shall whether it will participate within 15 (5)Restrictions on disclosure of execute a memorandum of agreement. days of receipt of notice or other information. Section 304 of the act and (c)Memorandum of agreement. A request. Prior to entering the process, other authorities may limit the memorandum of agreement executed the Council shall provide written notice disclosure of information under and implemented pursuant to this to the agency official and the consulting paragraphs(a)(3)and(a)(4)of this section evidences the agency official's parties that its decision to participate section. If an Indian tribe or Native compliance with section 106 and this meets the criteria set forth in appendix Hawaiian organization objects to the part and shall govern the undertaking A to this part. The Council shall also disclosure of information or if the and all of its parts. The agency official advise the head of the agency of its agency official believes that there are shall ensure that the undertaking is decision to enter the process. other reasons to withhold information, carried out in accordance with the Consultation with Council participation the agency official shall comply with§ memorandum of agreement. is conducted in accordance with 800.11(c)regarding the disclosure of (1)Signatories. The signatories have paragraph(b)(2)of this section. such information, sole authority to execute,amend or (iv)If the Council does not join the (b)Resolve adverse effects. terminate the agreement in accordance consultation,the agency official shall (1)Resolution without the Council, with this subpart. proceed with consultation in (i) The agency official shall consult (i)The agency official and the accordance with paragraph(b)(1)of this with the SHPO/THPO and other SHPO/THPO are the signatories to a section, consulting parties to seek ways to avoid, memorandum of agreement executed (2)Involve consulting parties. In minimize or mitigate the adverse effects, pursuant to paragraph(b)(1)of this -- - addition to he consulting arties_ {ii) he-a ency-offcialma use-c-tion. - -------- - -- -- -- -- — - - -- --- — identified under§800.3(f),the agency standard treatments established by the (ii)The agency official,the official,the SHPO/THPO and the Council under§800.14(d)as a basis for SHPO/THPO,and the Council are the Council,if participating,may agree to a memorandum of agreement. signatories to a memorandum of invite other individuals or organizations (iii)If the Council decides to join the agreement executed pursuant to to become consulting parties.The consultation,the agency official shall paragraph(b)(2)of this section. agency official shall invite any follow paragraph(b)(2)of this section. (iii)The agency official and the individual or organization that will (iv)If the agency official and the Council are signatories to a assume a specific role or responsibility SHPO/THPO agree on how the adverse 47 S memorandum of agreement executed shall consult to seek amendment of the agency official when it executes the pursuant to§800.7(a)(2). agreement. If the agreement is not memorandum of agreement. (2)Invited signatories. amended,any signatory may terminate (c)Comments by the Council. (i)The agency official may invite it. The agency official shall either (1)Preparation. The Council shall additional parties to be signatories to a execute a memorandum of agreement provide an opportunity for the agency memorandum of agreement. Any such with signatories under paragraph(c)(1) official,all consulting parties,and the party that signs the memorandum of of this section or request the comments public to provide their views within the agreement shall have the same rights of the Council under§800.7(a). time frame for developing its comments. with regard to seeking amendment or (9) Copies. The agency official shall Upon request of the Council,the agency termination of the memorandum of provide each consulting party with a official shall provide additional existing agreement as other signatories. copy of any memorandum of agreement information concerning the undertaking (ii)The agency official may invite an executed pursuant to this subpart. and assist the Council in arranging an Indian tribe or Native Hawaiian onsite inspection and an opportunity for organization that attaches religious and §800.7 Failure to resolve adverse public participation. cultural significance to historic effects. (2)Timing. The Council shall properties located off tribal lands to be a (a) Termination of consultation. transmit its comments within 45 days of signatory to a memorandum of After consulting to resolve adverse receipt of a request under paragraph agreement concerning such properties. effects pursuant to§800.6(b)(2),the (a)(1)or(a)(3)of this section or§ (iii)The agency official should agency official,the SHPO/THPO,or the 800.8(c)(3),or termination by the invite any party that assumes a Council may determine that further Council under§800.6(b)(1)(v)or responsibility under a memorandum of consultation will not be productive and paragraph(a)(4) of this section,unless agreement to be a signatory. terminate consultation. Any party that otherwise agreed to by the agency (iv)The refusal of any party invited terminates consultation shall notify the official. to become a signatory to a memorandum other consulting parties and provide (3)Transmittal. The Council shall of agreement pursuant to paragraph them the reasons for terminating in provide its comments to the head of the (c)(2)of this section does not invalidate writing. agency requesting comment with copies the memorandum of agreement. (1) If the agency official terminates to the agency official,the agency's (3)Concurrence by others.The consultation,the head of the agency or Federal preservation officer,all agency official may invite all consulting an Assistant Secretary or other officer consulting parties,and others as parties to concur in the memorandum of with major department-wide or agency- appropriate. agreement.The signatories may agree to wide responsibilities shall request that (4)Response to Council comment. invite others to concur. The refusal of the Council comment pursuant to The head of the agency shall take into any party invited to concur in the paragraph(c)of this section and shall account the Council's comments in memorandum of agreement does not notify all consulting parties of the reaching a final decision on the invalidate the memorandum of request. undertaking. Section 110(1)of the act agreement. (2) If the SHPO terminates directs that the head of the agency shall (4)Reports on implementation. consultation,the agency official and the document this decision and may not Where the signatories agree it is Council may execute a memorandum of delegate his or her responsibilities appropriate,a memorandum of agreement without the SHPO's pursuant to section 106.Documenting agreement shall include a provision for involvement, the agency head's decision shall monitoring and reporting on its (3) If a THPO terminates include: implementation, consultation regarding an undertaking (i)Preparing a summary of the (5)Duration. A memorandum of occurring on or affecting historic decision that contains the rationale for agreement shall include provisions for properties on its tribal lands,the the decision and evidence of termination and for reconsideration of Council shall comment pursuant to consideration of the Council's comments terms if the undertaking has not been paragraph(c)of this section. and providing it to the Council prior to implemented within a specified time. (4) If the Council terminates approval of the undertaking; (6)Discoveries. Where the consultation,the Council shall notify (ii)Providing a copy of the summary signatories agree it is appropriate,a the agency official,the agency's Federal to all consulting parties;and memorandum of agreement shall preservation officer and all consulting (iii)Notifying the public and making include provisions to deal with the parties of the termination and comment the record available for public subsequent discovery or identification under paragraph(c)of this section. The inspection. of additional historic properties affected Council may consult with the agency's by the undertaking. Federal preservation officer prior to §800.8 Coordination With the (7)Amendments. The signatories to terminating consultation to seek to National Environmental Policy Act. a memorandum of agreement may resolve issues concerning the (a) General principles. -amend-it.--If#he=Council-was not=a- -__-._—. undertaking-andits effects—on—historic __-j1)Early coordination.F_ederal signatory to the original agreement and properties. agencies are encouraged to coordinate the signatories execute an amended (b)Comments without termination. compliance with section 106 and the agreement,the agency official shall file The Council may determine that it is procedures in this part with any steps it with the Council. appropriate to provide additional taken to meet the requirements of the (8)Termination. If any signatory advisory comments upon an National Environmental Policy Act determines that the terms of a undertaking for which a memorandum (NEPA). Agencies should consider their memorandum of agreement cannot be or of agreement will be executed. The section 106 responsibilities as early as are not being carried out,the signatories Council shall provide them to the possible in the NEPA process,and plan 48 9 their public participation,analysis,and (i)Identify consulting parties either (3)Resolution of objections.Within review in such a way that they can meet pursuant to§800.3(f)or through the 30 days of the agency official's referral the purposes and requirements of both NEPA scoping process with results of an objection under paragraph statutes in a timely and efficient consistent with§800.3(f); (c)(2)(ii)of this section,the Council manner. The determination of whether (ii)Identify historic properties and shall review the objection and notify the an undertaking is a"major Federal assess the effects of the undertaking on agency as to its opinion on the action significantly affecting the quality such properties in a manner consistent objection. of the human environment,"and with the standards and criteria of§§ (i)If the Council agrees with the therefore requires preparation of an 800.4 through 800.5,provided that the objection: environmental impact statement(EIS) scope and timing of these steps may be (A)The Council shall provide the under NEPA,should include phased to reflect the agency official's agency official and,if the Council consideration of the undertaking's likely consideration of project alternatives in determines the issue warrants it,the effects on historic properties. A finding the NEPA process and the effort is head of the agency with the Council's of adverse effect on a historic property commensurate with the assessment of opinion regarding the objection.A does not necessarily require an EIS other environmental factors; Council decision to provide its opinion under NEPA. (iii) Consult regarding the effects of to the head of an agency shall be guided (2)Consulting party roles. the undertaking on historic properties by the criteria in appendix A to this SHPO/THPOs,Indian tribes and Native with the SHPO/THPO,Indian tribes and part.The person to whom the Council Hawaiian organizations,other Native Hawaiian organizations that addresses its opinion(the agency official consulting parties,and organizations might attach religious and cultural or the head of the agency)shall take into and individuals who may be concerned significance to affected historic account the Council's opinion in with the possible effects of an agency properties,other consulting parties,and reaching a final decision on the issue of action on historic properties should be the Council,where appropriate,during the objection. prepared to consult with agencies early NEPA scoping,environmental analysis, (B)The person to whom the Council in the NEPA process,when the purpose and the preparation of NEPA addresses its opinion(the agency official of and need for the proposed action as documents; or the head of the agency)shall prepare well as the widest possible range of (iv) Involve the public in a summary of the decision that contains alternatives are under consideration. accordance with the agency's published the rationale for the decision and (3)Inclusion of historic preservation NEPA procedures; and evidence of consideration of the issues. Agency officials should ensure (v)Develop in consultation with Council's opinion,and provide it to the that preparation of an environmental identified consulting parties alternatives Council.The head of the agency may • assessment(EA)and finding of no and proposed measures that might delegate his or her duties under this significant impact(FONSfl or an EIS avoid,minimize or mitigate any adverse paragraph to the agency's senior Policy and record of decision(ROD)includes effects of the undertaking on historic Official.If the agency official's initial appropriate scoping,identification of properties and describe them in the EA decision regarding the matter that is the historic properties,assessment of effects or DEIS, subject of the objection will be revised, upon them,and consultation leading to (2)Review of environmental the agency official shall proceed in resolution of any adverse effects, documents. accordance with the revised decision.If (b)Actions categorically excluded (i)The agency official shall submit the final decision of the agency is to under NEPA. If a project,activity or the EA,DEIS or EIS to the SHPO/THPO, affirm the initial agency decision,once program is categorically excluded from Indian tribes and Native Hawaiian the summary of the final decision has NEPA review under an agency's NEPA organizations that might attach religious been sent to the Council,the agency procedures,the agency official shall and cultural significance to affected official shall continue its compliance determine if it still qualifies as an historic properties,and other consulting with this section. undertaking requiring review under parties prior to or when making the (ii)If the Council disagrees with the section 106 pursuant to§800.3(a). If so, document available for public comment. objection,the Council shall so notify the the agency official shall proceed with If the document being prepared is a agency official,in which case the section 106 review in accordance with DEIS or EIS,the agency official shall agency official shall continue its the procedures in this subpart, also submit it to the Council. compliance with this section. (c) Use of the NEPA process for (ii)Prior to or within the time (iii)If the Council fails to respond to section 106 purposes. An agency official allowed for public comment on the the objection within the 30 day period, may use the process and documentation document,a SHPO/THPO,an Indian the agency official shall continue its required for the preparation of an tribe or Native Hawaiian organization, compliance with this section. EA/FONSI or an EIS/ROD to comply another consulting party or the Council (4)Approval of the undertaking.If with section 106 in lieu of the may object to the agency official that the agency official has found, during the procedures set forth in§§800.3 through preparation of the EA,DEIS or EIS has preparation of an EA or EIS that the _- 800:fi_if theeney official has notified— not the-standards-set-forth m___- - --effects-of an undertaking-oa istoric- in advance the SHPO/THPO and the paragraph(c)(1)of this section or that properties are adverse,the agency Council that it intends to do so and the the substantive resolution of the effects official shall develop measures in the following standards are met. on historic properties proposed in an EA,DEIS,or EIS to avoid,minimize,or (1)Standards for developing EA,DEIS or EIS is inadequate.If the mitigate such effects in accordance with environmental documents to comply with agency official receives such an paragraph(c)(1)(v)of this section. The Section 106. During preparation of the objection,the agency official shall refer agency official's responsibilities under EA or draft EIS(DEIS)the agency the matter to the Council. section 106 and the procedures in this official shall: 49 io subpart shall then be satisfied when agency official and the head of the the Council,determines to grant the either: agency.The Council shall also make the assistance,the agency official shall (i)a binding commitment to such determination available to the public comply with§§800.3 through 800.6 to proposed measures is incorporated in and any parties known to be interested take into account the effects of the (A)the ROD,if such measures were in the undertaking and its effects upon undertaking on any historic properties. proposed in a DEIS or EIS;.or historic properties. (d)Evaluation of Section 106 (B)an MOA drafted in compliance (c)Intentional adverse effects by operations. The Council may evaluate with§800.6(c);or applicants, the operation of the section 106 process (ii)the Council has commented (1)Agency responsibility. Section by periodic reviews of how participants under§800.7 and received the agency's 110(k)of the act prohibits a Federal have fulfilled their legal responsibilities response to such comments. agency from granting a loan,loan and how effectively the outcomes (5)Modification of the undertaking. guarantee,permit,license or other reached advance the purposes of the act. If the undertaking is modified after assistance to an applicant who,with (1)Information from participants, approval of the FONSI or the ROD in a intent to avoid the requirements of Section 203 of the act authorizes the manner that changes the undertaking or section 106,has intentionally Council to obtain information from alters its effects on historic properties, significantly adversely affected a Federal agencies necessary to conduct or if the agency official fails to ensure historic property to which the grant evaluation of the section 106 process. that the measures to avoid,minimize or: would relate,or having legal power to The agency official shall make mitigate adverse effects(as specified in prevent it,has allowed such significant documentation of agency policies, either the FONSI or the ROD,or in the adverse effect to occur,unless the operating procedures and actions taken binding commitment adopted pursuant agency,after consultation with the to comply with section 106 available to to paragraph(c)(4)of this section)are Council,determines that circumstances the Council upon request. The Council carried out,the agency official shall justify granting such assistance despite may request available information and notify the Council and all consulting the adverse effect created or permitted documentation from other participants parties that supplemental by the applicant. Guidance issued by in the section 106 process. environmental documents will be the Secretary pursuant to section 110 of (2)Improving the operation of section prepared in compliance with NEPA or the act governs its implementation. 106. Based upon any evaluation of the that the procedures in§§800.3 through (2)Consultation with the Council. section 106 process,the Council may 800.6 will be followed as necessary. When an agency official determines, make recommendations to participants, based on the actions of an applicant, the heads of Federal agencies,and the §800.9 Council review of section 106 that section 110(k)is applicable and that Secretary of actions to improve the compliance. circumstances may justify granting the efficiency and effectiveness of the (a)Assessment of agency official assistance,the agency official shall process. Where the Council determines compliance for individual undertakings. notify the Council and provide that an agency official or a SHPO/THPO The Council may provide to the agency documentation specifying the has failed to properly carry out the official its advisory opinion regarding circumstances under which the adverse responsibilities assigned under the the substance of any finding, effects to the historic property occurred process in this part,the Council may determination or decision or regarding and the degree of damage to the participate in individual case reviews the adequacy of the agency official's integrity of the property. This conducted under such process in compliance with the procedures under documentation shall include any views addition to the SHPO/THPO for such this part. The Council may provide obtained from the applicant, period that it determines is necessary to such advice at any time at the request of SHPO/THPO, an Indian tribe if the improve performance or correct any individual,agency or organization undertaking occurs on or affects historic deficiencies. If the Council finds a or on its own initiative.The agency properties on tribal lands,and other pattern of failure by a Federal agency in official shall consider the views of the parties known to be interested in the carrying out its responsibilities under Council in reaching a decision on the undertaking. section 106,the Council may review the matter in question. (i) Within thirty days of receiving policies and programs of the agency (b)Agency foreclosure of the the agency official's notification,unless related to historic preservation pursuant Council's opportunity to comment. otherwise agreed to by the agency to section 202(a)(6)of the act and Where an agency official has failed to official,the Council shall provide the recommend methods to improve the complete the requirements of section agency official with its opinion as to effectiveness,coordination,and 106 in accordance with the procedures whether circumstances justify granting consistency of those policies and in this part prior to the approval of an assistance to the applicant and any programs with section 106. undertaking,the Council's opportunity possible mitigation of the adverse to comment may be foreclosed. The effects. §800.10 Special requirements for Council may review a case to determine (ii) The agency official shall protecting National Historic -whether a foreclosure has-occurred. __ consider the-_Council opinion in Landmarks. __ __r The Council shall notify the agency making a decision on whether to grant (a)Statutory requirement. Section official and the agency's Federal assistance to the applicant,and shall 110(f)of the act requires that the agency preservation officer and allow 30 days notify the Council,the SHPO/THPO, official,to the maximum extent for the agency official to provide and other parties known to be interested possible,undertake such planning and information as to whether foreclosure in the undertaking prior to granting the actions as may be necessary to minimize has occurred. If the Council determines assistance. harm to any National Historic Landmark foreclosure has occurred,the Council (3)Compliance with Section 106. If that may be directly and adversely shall transmit the determination to the an agency official,after consulting with affected by an undertaking.When 50 11 • commenting on such undertakings,the requirements of the procedures in this (3)The basis for determining that no Council shall use the process set forth in subpart,if that documentation meets the historic properties are present or §§800.6 through 800.7 and give special standards of this section. affected. consideration to protecting National (c)Confidentiality. (e)Finding of no adverse effect or Historic Landmarks as specified in this (1)Authority to withhold information. adverse effect. Documentation shall section. Section 304 of the act provides that the include: (b)Resolution of adverse effects.The head of a Federal agency or other public (1)A description of the undertaking, agency official shall request the Council official receiving grant assistance specifying the Federal involvement,and to participate in any consultation to pursuant to the act,after consultation its area of potential effects,including resolve adverse effects on National with the Secretary,shall withhold from photographs,maps,and drawings,as Historic Landmarks conducted under§ public disclosure information about the necessary; 800.6. location,character,or ownership of a (2)A description of the steps taken (c)Involvement of the Secretary.The historic property when disclosure may to identify historic properties; agency official shall notify the Secretary cause a significant invasion of privacy; (3)A description of the affected of any consultation involving a National risk harm to the historic property;or historic properties,including Historic Landmark and invite the impede the use of a traditional religious information on the characteristics that Secretary to participate in the site by practitioners. When the head of qualify them for the National Register; consultation where there may be an a Federal agency or other public official (4)A description of the adverse effect. The Council may request has determined that information should undertaking's effects on historic a report from the Secretary under be withheld from the public pursuant to properties; section 213 of the act to assist in the these criteria,the Secretary,in (5)An explanation of why the consultation. consultation with such Federal agency criteria of adverse effect were found (d)Report of outcome. When the head or official,shall determine who applicable or inapplicable,including Council participates in consultation may have access to the information for any conditions or future actions to under this section,it shall report the the purposes of carrying out the act. avoid,minimize or mitigate adverse outcome of the section 106 process, (2)Consultation with the Council. effects;and providing its written comments or any When the information in question has (6)Copies or summaries of any memoranda of agreement to which it is . • been developed in the course of an views provided by consulting parties a signatory,to the Secretary and the agency's compliance with this part,the and the public. head of the agency responsible for the Secretary shall consult with the Council (f)Memorandum of agreement. undertaking. in reaching determinations on the When a memorandum of agreement is • withholding and release of information, filed with the Council,the §800.11 Documentation standards. The Federal agency shall provide the documentation shall include,any (a)Adequacy of documentation. The Council with available information, substantive revisions or additions to the agency official shall ensure that a including views of the SHPO/THPO, documentation provided the Council determination,finding,or agreement Indian tribes and Native Hawaiian pursuant to§800.6(a)(1),an evaluation under the procedures in this subpart is organizations,related to the of any measures considered to avoid or supported by sufficient documentation confidentiality concern. The Council minimize the undertaking's adverse to enable any reviewing parties to shall advise the Secretary and the effects and a summary of the views of understand its basis. The agency Federal agency within 30 days of receipt consulting parties and the public. official shall provide such of adequate documentation. (g)Requests for comment without a documentation to the extent permitted (3)Other authorities affecting memorandum of agreement. by law and within available funds. confidentiality. Other Federal laws and Documentation shall include: When an agency official is conducting program requirements may limit public (1)A description and evaluation of phased identification or evaluation access to information concerning an any alternatives or mitigation measures under this subpart,the documentation undertaking and its effects on historic that the agency official proposes to standards regarding description of properties. Where applicable,those resolve the undertaking's adverse historic properties may be,applied authorities shall govern public access to effects; flexibly. If the Council,or the information developed in the section (2)A description of any reasonable SHPO/THPO when the Council is not 106 process and may authorize the alternatives or mitigation measures that involved,determines the applicable agency official to protect the privacy of were considered but not chosen,and the documentation standards are not met, non-governmental applicants. reasons for their rejection; the Council or the SHPO/THPO,as (d)Finding of no historic properties (3)Copies or summaries of any appropriate,shall notify the agency affected. Documentation shall include: views submitted to the agency official official and specify the information (1)A description of the undertaking, concerning the adverse effects of the needed to meet the standard. At the specifying the Federal involvement,and undertaking on historic properties and reguest_afthe_agency_official__ar any of_ its_area_of potential_effects,including alternatives to reduce-or-avoid those_-_____the consulting parties,the Council shall photographs,maps,drawings,as effects;and review any disputes over whether necessary; (4)Any substantive revisions or documentation standards are met and (2)A description of the steps taken additions to the documentation provide its views to the agency official to identify historic properties, provided the Council pursuant to§ and the consulting parties. including,as appropriate,efforts to seek 800.6(a)(1). • (b)Format. The agency official may information pursuant to§800.4(b);and use documentation prepared to comply §800.12 Emergency situations. with other laws to fulfill the 51 12 (a)Agency procedures. The agency (d)Applicability. This section Archeological and Historic Preservation • official,in consultation with the applies only to undertakings that will be Act instead of the procedures in this appropriate SHPOs/THPOs,affected implemented within 30 days after the part and provide the Council,the Indian tribes and Native Hawaiian disaster or emergency has been formally SHPO/THPO,and the Indian tribe or organizations,and the Council,is declared by the appropriate authority. Native Hawaiian organization with a encouraged to develop procedures for An agency may request an extension of report on the actions within a taking historic properties into account the period of applicability from the reasonable time after they are during operations which respond to a Council prior to the expiration of the 30 completed;or disaster or emergency declared by the days. Immediate rescue and salvage (3)If the agency official has President,a tribal government,or the operations conducted to preserve life or approved the undertaking and Governor of a State or which respond to property are exempt from the provisions construction has commenced,determine other immediate threats to life or of section 106 and this part. actions that the agency official can take property. If approved by the Council, to resolve adverse effects,and notify the the procedures shall govern the agency's §800.13 Post-review discoveries. SHPO/THPO,any Indian tribe or Native historic preservation responsibilities (a)Planning for subsequent Hawaiian organization that might attach during any disaster or emergency in lieu discoveries. religious and cultural significance to the of§§800.3 through 800.6. (1)Using a programmatic agreement. affected property,and the Council (b)Alternatives to agency procedures. An agency official may develop a within 48 hours of the discovery. The In the event an agency official proposes programmatic agreement pursuant to§ notification shall describe the agency an emergency undertaking as an 800.14(b)to govern the actions to be official's assessment of National Register essential and immediate response to a taken when historic properties are eligibility of the property and proposed disaster or emergency declared by the discovered during the implementation actions to resolve the adverse effects. President,a tribal government,or the of an undertaking. The SHPO/THPO,the Indian tribe or Governor of a State or another (2)Using agreement documents. Native Hawaiian organization and the immediate threat to life or property,and When the agency official's identification Council shall_respond within 48 hours the agency has not developed efforts in accordance with§800.4 of the notification. The agency official procedures pursuant to paragraph(a)of indicate that historic properties are shall take into account their this section,the agency official may likely to be discovered during recbmmendations regarding National comply with section 106 by: implementation of an undertaking and Register eligibility and proposed (1)Following a programmatic no programmatic agreement has been actions,and then carry out appropriate agreement developed pursuant to§ developed pursuant to paragraph(a)(1) actions. The agency official shall 800.14(b)that contains specific of this section,the agency official shall provide the SHPO/THPO,the Indian provisions for dealing with historic include in any finding of no adverse tribe or Native Hawaiian organization properties in emergency situations;or effect or memorandum of agreement a and the Council a report of the actions (2)Notifying the Council,the process to resolve any adverse effects when they are completed. appropriate SHPO/THPO and any upon such properties. Actions in (c)Eligibility of properties. The Indian tribe or Native Hawaiian conformance with the process satisfy agency official,in consultation with the organization that may attach religious the agency official's responsibilities SHPO/THPO,may assume a newly and cultural significance to historic under section 106 and this part. discovered property to be eligible for the properties likely to be affected prior to (b)Discoveries without prior National Register for purposes of section the undertaking and affording them an planning. If historic properties are 106. The agency official shall specify opportunity to comment within seven discovered or unanticipated effects on the National Register criteria used to days of notification. If the agency historic properties found after the assume the property's eligibility so that official determines that circumstances agency official has completed the information can be used in the do not permit seven days for comment, section 106 process without establishing resolution of adverse effects. the agency official shall notify the a process under paragraph(a)of this (d)Discoveries on tribal lands. If Council,the SHPO/THPO and the section,the agency official shall make historic properties are discovered on Indian tribe or Native Hawaiian reasonable efforts to avoid,minimize or tribal lands,or there are unanticipated organization and invite any comments mitigate adverse effects to such effects on historic properties found on within the time available, properties and: tribal lands,after the agency official has (c)Local governments responsible for (1)If the agency official has not completed the section 106 process section 106 compliance. When a local approved the undertaking or if without establishing a process under government official serves as the agency construction on an approved paragraph(a)of this section and official for section 106 compliance, undertaking has not commenced, construction has commenced,the paragraphs(a)and(b)of this section consult to resolve adverse effects agency official shall comply with also apply to an imminent threat to pursuant to§800.6;or applicable tribal regulations and _public health-Or-safetyas a_result of �2)_If the agency official the- _ ___procedures and-obtain_the concurrence ,natural disaster or emergency declared SHPO/THPO and any Indian tribe or of the Indian tribe on the proposed by a local government's chief executive Native Hawaiian organization that might action. officer or legislative body,provided that attach religious and cultural if the Council or SHPO/THPO objects to significance to the affected property Subpart C-Program Alternatives the proposed action within seven days, agree that such property is of value the agency official shall comply with§§ solely for its scientific,prehistoric, §800.14 Federal agency program 800.3 through 800.6. historic or archeological data,the alternatives. agency official may comply with the 52 13 (a)Alternate procedures. An agency (1) Use of programmatic agreements. it expires or is terminated by the agency, official may develop procedures to A programmatic agreement may be the president of NCSHPO when a implement section 106 and substitute used: signatory,or the Council. Termination them for all or part of subpart B of this (i)When effects on historic by an individual SHPO/THPO shall only part if they are consistent with the properties are similar and repetitive or terminate the application of a regional Council's regulations pursuant to are multi-State or regional in scope; programmatic agreement within the section 110(a)(2)(E)of the act. (ii)When effects on historic jurisdiction of the SHPO/THPO. If a (1)Development of procedures. The properties cannot be fully determined THPO assumes the responsibilities of a agency official shall consult with the prior to approval of an undertaking; SHPO pursuant to section 101(d)(2)of Council,the National Conference of (iii)When nonfederal parties are the act and the SHPO is signatory to State Historic Preservation Officers or delegated major decisionmaking programmatic agreement,the THPO individual SHPO/THPOs,as responsibilities; assumes the role of a signatory, appropriate,and Indian tribes and (iv)Where routine management including the right to terminate a Native Hawaiian organizations,as activities are undertaken at Federal regional programmatic agreement on specified in paragraph(f)of this section, installations,facilities,or other land- lands under the jurisdiction of the tribe. in the development of alternate management units;or (iv)Notice. The agency official shall procedures,publish notice of the (v)Where other circumstances notify the parties with which it has availability of proposed alternate warrant a departure from the normal consulted that a programmatic procedures in the Federal Register and section 106 process. agreement has been executed under take other appropriate steps to seek (2)Developing programmatic paragraph(b)of this section,provide public input during the development of agreements for agency programs. appropriate public notice before it takes alternate procedures. (i)The consultation shall involve,as effect,and make any internal agency (2)Council review. The agency appropriate,SHPO/THPOs,the National procedures implementing the agreement official shall submit the proposed Conference of State Historic readily available to the Council, alternate procedures to the Council for a Preservation Officers(NCSHPO),Indian SHPO/THPOs,and the public. 60-day review period. If the Council tribes and Native Hawaiian (v)If the Council determines that finds the procedures to be consistent organizations,other Federal agencies, the terms of a programmatic agreement with this part,it shall notify the agency and members of the public. If the are not being carried out,or if such an official and the agency official may programmatic agreement has the agreement is terminated,the agency adopt them as final alternate potential to affect historic properties on official shall comply with subpart B of procedures. tribal lands or historic properties of this part with regard to individual • (3)Notice.The agency official shall religious and cultural significance to an undertakings of the program covered by notify the parties with which it has Indian tribe or Native Hawaiian the agreement. consulted and publish notice of final organization,the agency official shall (3)Developing programmatic alternate procedures in the Federal also follow paragraph(f)of this section. agreements for complex or multiple Register. (ii)Public Participation,The agency undertakings. Consultation to develop a (4)Legal effect. Alternate official shall arrange for public programmatic agreement for dealing procedures adopted pursuant to this participation appropriate to the subject with the potential adverse effects of subpart substitute for the Council's matter and the scope of the program and complex projects or multiple regulations for the purposes of the in accordance with subpart A of this undertakings shall follow§800.6. If agency's compliance with section 106, part. The agency official shall consider consultation pertains town activity except that where an Indian tribe has the nature of the program and its likely involving multiple undertakings and the entered into an agreement with the effects on historic properties and take parties fail to reach agreement,then the Council to substitute tribal historic steps to involve the individuals, agency official shall comply with the preservation regulations for the organizations and entities likely to be provisions of subpart B of this part for Council's regulations under section interested. each individual undertaking. 101(d)(5)of the act,the agency shall (iii)Effect.The programmatic (4)Prototype programmatic follow those regulations in lieu of the agreement shall take effect when agreements. The Council may designate agency's procedures regarding executed by the Council,the agency an agreement document as a prototype undertakings on tribal lands. Prior to official and the appropriate programmatic agreement that may be the Council entering into such SHPOs/THPOs when the programmatic used for the same type of program or agreements,the Council will provide agreement concerns a specific region or undertaking in more than one case or Federal agencies notice and opportunity the president of NCSHPO when area. When an agency official uses such to comment on the proposed substitute NCSHPO has participated in the a prototype programmatic agreement, tribal regulations. consultation. A programmatic the agency official may develop and (b)Programmatic agreements. The agreement shall take effect on tribal execute the agreement with the Cnuncaland the enc — ma _-- hands only n he nt thQ HPQ,—_Indian—_-- ----appr�rrate S O/THPO arid-the --- yg y nffi�ial Y negotiate a programmatic agreement to tribe or a designated represeative of agreement shall become final without govern the implementation of a the tribe is a signatory to the agreement. need for Council participation in particular program or the resolution of Compliance with the procedures consultation or Council signature. adverse effects from certain complex established by an approved (c)Exempted categories. project situations or multiple programmatic agreement satisfies the (1) Criteria for establishing.The undertakings. agency's section 106 responsibilities for Council or an agency official may . all individual undertakings of the propose a program or category of program covered by the agreement until undertakings that may be exempted 53 i 14 from review under the provisions of properties in accordance with section (5) Termination. The Council may subpart B of this part,if the program or 214 of the act, terminate a standard treatment by category meets the following criteria: (6)Legal consequences.Any publication of a notice in the Federal (i)The actions within the program undertaking that falls within an Register 30 days before the termination or category would otherwise qualify as approved exempted program or category takes effect. "undertakings"as defined in§800.16; shall require no further review pursuant (e)Program comments. An agency (ii)The potential effects of the to subpart B of this part,unless the official may request the Council to undertakings within the program or agency official or the Council comment on a category of undertakings category upon historic properties are determines that there are circumstances in lieu of conducting individual reviews foreseeable and likely to be minimal or under which the normally excluded under§§800.4 through 800.6. The not adverse;and undertaking should be reviewed under Council may provide program (iii)Exemption of the program or subpart B of this part. comments at its own initiative. category is consistent with the purposes (7) Termination.The Council may (1)Agency request The agency of the act. terminate an exemption at the request of official shall identify the category of (2)Public participation.The the agency official or when the Council undertakings,specify the likely effects proponent of the exemption shall determines that the exemption no longer on historic properties,specify the steps arrange for public participation meets the criteria of paragraph(c)(1)of the agency official will take to ensure appropriate to the subject matter and this section.The Council shall notify that the effects are taken into account, the scope of the exemption and in the agency official 30 days before identify the time period for which the accordance with the standards in termination becomes effective. comment is requested and summarize subpart A of this part.The proponent of (8)Notice.The proponent of the any views submitted by the public. the exemption shall consider the nature exemption shall publish notice of any (2)Public participation. The agency of the exemption and its likely effects on approved exemption in the Federal official shall arrange for public historic properties and take steps to Register. participation appropriate to the subject involve individuals,organizations and (d)Standard treatments. matter and the scope of the category and entities likely to be interested. (1)Establishment. The Council,on in accordance with the standards in (3)Consultation with SHPOs/THPOs. its own initiative or at the request of subpart A of this part. The agency The proponent of the exemption shall another party,may establish standard official shall consider the nature of the notify and consider the views of the methods for the treatment of a category undertakings and their likely effects on SHPOs/THPOs on the exemption. of historic properties,a category of historic properties and the individuals, (4)Consultation with Indian tribes undertakings,or a category of effects on organizations and entities likely to be and Native Hawaiian organizations.If historic properties to assist Federal interested. the exempted program or category of agencies in satisfying the requirements (3)Consultation with SHPOs/THPOs. undertakings has the potential to affect of subpart B of this part. The Council The Council shall notify and consider historic properties on tribal lands or shall publish notice of standard the views of SHPOs/THPOs on the historic properties of religious and treatments in the Federal Register. proposed program comment._ cultural significance to an Indian tribe (2)Public participation. The (4)Consultation with Indian tribes or Native Hawaiian organization,the Council shall arrange for public and Native Hawaiian organizations. If Council shall follow the requirements participation appropriate to the subject the program comment has the potential for the agency official set forth in matter and the scope of the standard to affect historic properties on tribal paragraph(f)of this section, treatment and consistent with subpart A lands or historic properties of religious (5)Council review of proposed of this part. The Council shall consider and cultural significance to an Indian exemptions.The Council shall review an the nature of the standard treatment and tribe or Native Hawaiian organization, exemption proposal that is supported by its likely effects on historic properties the Council shall follow the documentation describing the program and the individuals,organizations and requirements for the agency official set or category for which the exemption is entities likely to be interested. Where forth in paragraph(f)of this section. sought,demonstrating that the criteria an agency official has proposed a (5) Council action. Unless the of paragraph (c)(1)of this section have standard treatment,the Council may Council requests additional been met,describing the methods used request the agency official to arrange for documentation,notifies the agency to seek the views of the public,and public involvement, official that it will decline to comment, summarizing any views submitted by (3) Consultation with SHPOs/THPOs. or obtains the consent of the agency the SHPO/THPOs,the public,and any The Council shall notify and consider official to extend the period for others consulted.Unless it requests the views of SHPOs/THPOs on the providing comment,the Council shall further information,the Council shall proposed standard treatment. comment to the agency official within approve or reject the proposed (4) Consultation with Indian tribes 45 days of the request. exemption within 30 days of receipt, and Native Hawaiian organizations. If (i)If the Council comments,the _ and-thereafter-notify=the-relevant-agency_--- the-proposed:standard treatment has the agency__officialshalltake into account official and SHPO/THPOs of the potential to affect historic properties on the comments of the Council in carrying decision.The decision shall be based on tribal lands or historic properties of out the undertakings within the the consistency of the exemption with religious and cultural significance to an category and publish notice in the the purposes of the act,taking into Indian tribe or Native Hawaiian Federal Register of the Council's consideration the magnitude of the organization,the Council shall follow comments and steps the agency will exempted undertaking or program and the requirements for the agency official take to ensure that effects to historic • the likelihood of impairment of historic set forth in paragraph(f)of this section. properties are taken into account. 54 15 (ii)If the Council declines to into account in reaching a final decision been delegated responsibility for section comment,the agency official shall on the proposed program alternative. 106 compliance,the head of that unit of continue to comply with the government shall be considered the requirements of§§800.3 through 800.6 §800.15 Tribal,State,and local head of the agency. for the individual undertakings, program alternatives.(Reserved) (1)(1)Historic property means any (6)Withdrawal of comment. If the prehistoric or historic district,site, Council determines that the §800.16 Definitions. building,structure,or object included consideration of historic properties is (a)Act means the National Historic in,or eligible for inclusion in,the not being carried out in a manner Preservation Act of 1966,as amended, National Register of Historic Places consistent with the program comment, 16 U.S.C.470-470w-6. maintained by the Secretary of the the Council may withdraw the comment (b)Agency means agency as defined Interior. This term includes artifacts, and the agency official shall comply in 5 U.S.C.551. records,and remains that are related to with the requirements of§§800.3 (c)Approval of the expenditure of and located within such properties.The through 800.6 for the individual funds means any final agency decision term includes properties of traditional undertakings, authorizing or permitting the religious and cultural importance to an (f) Consultation with Indian tribes expenditure of Federal funds or Indian tribe or Native Hawaiian and Native Hawaiian organizations financial assistance on an undertaking, organization and that meet the National when developing program alternatives. including any agency decision that may Register criteria. Whenever an agency official proposes a be subject to an administrative appeal (2)The term eligible for inclusion in program alternative pursuant to (d)Area of potential effects means the National Register includes both paragraphs(a)through(e)of this the geographic area or areas within properties formally determined as such section,the agency official shall ensure which an undertaking may directly or in accordance with regulations of the that development of the program indirectly cause alterations in the Secretary of the Interior and all other alternative includes appropriate character or use of historic properties,if properties that meet the National government-to-government consultation any such properties exist. The area of Register criteria. with affected Indian tribes and potential effects is influenced by the (m)Indian tribe means an Indian consultation with affected Native scale and nature of an undertaking and tribe,band,nation,or other organized Hawaiian organizations. may be different for different kinds of group or community,including a native (1)Identifying affected Indian tribes effects caused by the undertaking. village,regional corporation or village and Native Hawaiian organizations.If (e)Comment means the findings and corporation,as those terms are defined any undertaking covered by a proposed recommendations of the Council in section 3 of the Alaska Native Claims program alternative has the potential to formally provided in writing to the head Settlement Act(43 U.S.C.1602),which affect historic properties on tribal lands, of a Federal agency under section 106. is recognized as eligible for the special the agency official shall identify and (f)Consultation means the process of programs and services provided by the consult with the Indian tribes having seeking,discussing,and considering the United States to Indians because of their jurisdiction over such lands. If a views of other participants,and,where status as Indians. proposed program alternative has the feasible,seeking agreement with them (n)Local government means a city, potential to affect historic properties of regarding matters arising in the section county,parish,township,municipality, religious and cultural significance to an 106 process. The Secretary's"Standards borough,or other general purpose Indian tribe or a Native Hawaiian and Guidelines for Federal Agency political subdivision of a State. organization which are located off tribal Preservation Programs pursuant to the (o)Memorandum of agreement lands,the agency official shall identify National Historic Preservation Act" means the document that records the those Indian tribes and Native Hawaiian provide further guidance on terms and conditions agreed upon to organizations that might attach religious consultation. resolve the adverse effects of an and cultural significance to such (g)Council means the Advisory undertaking upon historic properties. properties and consult with them. Council on Historic Preservation or a (p)National Historic Landmark When a proposed program alternative Council member or employee means a historic property that the has nationwide applicability,the agency designated to act for the Council. Secretary of the Interior has designated official shall identify an appropriate (h)bay or days means calendar a National Historic Landmark. government to government consultation days. (q)National Register means the with Indian tribes and consult with (i)Effect means alteration to the National Register of Historic Places Native Hawaiian organizations in characteristics of a historic property maintained by the Secretary of the accordance with existing Executive qualifying it for inclusion in or Interior. orders,Presidential memoranda and eligibility for the National Register. (r)National Register criteria means applicable provisions of law. (j)Foreclosure means an action the criteria established by the Secretary (2)Results of consultation. The taken by an agency official that of the Interior for use in evaluating the agency officialshallprovide summaries effectively precludes the Council from eligibility_of properties for the National of the views,along with copies of any providing commentss whic�the agency Register(36 CFR part 60) written comments,provided by affected official can meaningfully consider prior (s)(1)Native Hawaiian organization Indian tribes and Native Hawaiian to the approval of the undertaking. means any organization which serves organizations to the Council as part of (k)Head of the agency means the and represents the interests of Native the documentation for the proposed chief official of the Federal agency Hawaiians;has as a primary and stated program alternative. The agency official responsible for all aspects of the purpose the provision of services to and the Council shall take those views agency's actions. If a State,local or Native Hawaiians;and has tribal government has assumed or has demonstrated expertise in aspects of 55 16 historic preservation that are significant the section 106 regulations to authorities,such as the Native American to Native Hawaiians, participate in an individual project Graves Protection and Repatriation Act. (2)Native Hawaiian means any pursuant to the following criteria. individual who is a descendant of the However,the Council will not always aboriginal people who,prior to 1778, elect to participate even though one or occupied and exercised sovereignty in more of the criteria may be met. the area that now constitutes the State (c)Specific criteria. The Council is of Hawaii. likely to enter the section 106 process at (t)Programmatic agreement means a the steps specified in the regulations in document that records the terms and this part when an undertaking: conditions agreed upon to resolve the (1)Has substantial impacts on potential adverse effects of a Federal important historic properties. This may agency program,complex undertaking include adverse effects on properties or other situations in accordance with§ that possess a national level of 800.14(b). significance or on properties that are of (u)Secretary means the Secretary of unusual or noteworthy importance or the Interior acting through the Director are a rare property type;or adverse of the National Park Service except effects to large numbers of historic where otherwise specified. properties,such as impacts to multiple (v)State Historic Preservation Officer properties within a historic district. (SHPO)means the official appointed or (2)Presents important questions of designated pursuant to section 101(b)(1) policy or interpretation. This may of the act to administer the State include questions about how the historic preservation program or a Council's regulations are being applied representative designated to act for the or interpreted,including possible State historic preservation officer. foreclosure or anticipatory demolition (w)Tribal Historic Preservation situations;situations where the outcome Officer(THPO)means the tribal official will set a precedent affecting-Council appointed by the tribe's chief governing policies or program goals;or the authority or designated by a tribal development of programmatic ordinance or preservation program who agreements that alter the way the has assumed the responsibilities of the section 106 process is applied to a group SHPO for purposes of section 106 or type of undertakings. compliance on tribal lands in (3)Has the potential for presenting accordance with section 101(d)(2)of the procedural problems,This may include act. cases with substantial public (x)Tribal lands means all lands controversy that is related to historic within the exterior boundaries of any preservation issues;with disputes Indian reservation and all dependent among or about consulting parties Indian communities. which the Council's involvement could (y) Undertaking means a project, help resolve;that are involved or likely activity,or program funded in whole or to be involved in litigation on the basis in part under the direct or indirect of section 106;or carried out by a jurisdiction of a Federal agency, Federal agency,in a State or locality,or including those carried out by or on on tribal lands where the Council has behalf of a Federal agency;those carried previously identified problems with out with Federal financial assistance; section 106 compliance pursuant to§ and those requiring a Federal permit, 800.9(d)(2). license or approval. (4)Presents issues of concern to (z)Senior policy official means the Indian tribes or Native Hawaiian senior policy level official designated by organizations. This may include cases the head of the agency pursuant to where there have been concerns raised section 3(e)of Executive Order 13287. about the identification of,evaluation of or assessment of effects on historic Appendix A to Part 800--Criteria for properties to which an Indian tribe or Council Involvement in Reviewing Native Hawaiian organization attaches ----------Individual recticnL10fi_Cases — religious and-cultural significance; where an Indian tribe or Native (a)Introduction. This appendix sets Hawaiian organization has requested forth the criteria that will be used by the Council involvement to assist in the Council to determine whether to enter resolution of adverse effects;or where an individual section 106 review that it there are questions relating to policy, normally would not be involved in. interpretation or precedent under (b)General policy. The Council may section 106 or its relation to other choose to exercise its authorities under 56 ITEM NUMBER: A-5 DATE: 10/10/06 leis- � �9ye A�r'scai'>�tui Atascadero City Council Staff Report - Public Works Department Revised Temporary Road Closure Winter Wonderland (Atascadero Main Street) RECOMMENDATION: Council approve the request by Atascadero Main Street for the additional road closures of Palma Avenue (from Traffic Way to West Mall) and Entrada Avenue (from EI Camino Real to Palma) for Winter Wonderland on December 1st, 2006. DISCUSSION: On July 11, 2006 Council approved the closure of East and West Mall from El Camino Real to Palma Avenue and Palma Avenue from East to West Mall. Atascadero Main Street is requesting the additional closure of Palma Avenue (from Traffic Way to West Mall) and Entrada Avenue (from EI Camino Real to Palma) as indicated on the attached map. FISCAL IMPACT: $160.00 for the installation of Road Closed signs by Public Works staff. ATTACHMENTS: --- - Road Closure_Mar) -= - .57 ITEM NUMBER: A-5 DATE: 10/10/06 REVISED Z""T, EVISED .,. REQUEST PREVIOUSLY APP ROV Eh CLOSURE REQUEST FOIA F Ak D CLOSURE—Revised WINTER ONDEF LAND FRIDAY, DECEMBER 1 , 200 58. ITEM NUMBER: A-6 DATE: 10/10/06 .e ■o e ■ i9is � is a Atascadero City Council Staff Report - Public Works Department Temporary Road Closure Mobley's Board Shop RECOMMENDATION: Council approve a request from Mobley's Board Shop to close a portion of Palma Avenue, from Traffic Way to Entrada, on Tuesday, October 31, 2006 from 1:.00 p.m. — 11:59 P.M. DISCUSSION: ' close Palma Avenue from Traffic Wa Mobley's Board shop is requesting to cl Y to Entrada from 1:00 p.m. to 11:59 p.m. on Tuesday, October 31st for a Halloween Party. Staff is recommending approval with the following conditions: o Work directly with the Fire Department on emergency access issues o Provide $1,000,000 liability insurance with the City of Atascadero named as additional insured. o Provide private security acceptable to the City o Cleaning Deposit of $2,000 o Applicant to notify businesses affected by closure FISCAL IMPACT: $160.00 for the installation of Road Closed signs by Public Works staff. ATTACHMENTS: Road Closure Map 59 ITEM NUMBER: A-6 DATE: 10/10/06 I REQUEST FOR ROD CLOSURE MOBLEY'S BOARD SHOP TUESDAY, OCTOBER 31 , 2006 60 ITEM NUMBER: B -1 DATE: 10/10/06 ion 1979 � CADS Atascadero City Council Staff Report - City Attorney Interim Urgency Ordinance Establishing A Moratorium on the Approval of ".Site Condominiums" (Temporary Ordinance establishing a moratorium for the approval of "site condominiums' RECOMMENDATION: Council adopt the attached interim urgency Ordinance establishing a moratorium-on the approval of "site condominiums." DISCUSSION: Background: Within the past few months, the City of Atascadero has received applications and inquiries from developers interested in constructing condominiums with common airspace located outside the envelope of the buildings ("site condominium"). Normally, condominiums possess airspace within the confounds of the building, with property owners enjoying a property right in the airspace. Traditional condominiums have Home Owner Associations or other, forms of management to ensure resident safety and to overlook the upkeep and cleanliness of the property. Conversely, site condominiums sometimes have no management or weaker management than traditional condominiums. Additionally, site condominiums have the appearance of piecemeal development on subdivision lots. The issue of site condominiums was presented to the City Council on August 8, 2006, and the Council expressed interest in exploring ways to regulate these condominiums by reviewing the City's zoning code and subdivision ordinance. In June 2002, The City Council adopted a General Plan for the City and the Housing Element provides: "Policy 1.2: Encourage a variety of high quality housing types in multi- family areas" by "allow[ing] planned developments with detached units on individual lots or airspace condominiums on commonly owned lots." The Land Use, Open Space and Conservation Element provides: "Policy 2.1: Ensure that new development is compatible with existing and surrounding neighborhoods." 61 ITEM NUMBER: B- 1 DATE: 10/10/06 t of the Cit of Atascadero plans to review the City's zoning The Planning Department y code and subdivision ordinance to ensure compliance with Policy 1.2 of the Housing Element and Policy 2.1 of the Land Use, Open Space and Conservation Element in the General Plan. At the end of its study, the Planning Department will provide the Council with options for maintaining planned development within the City, including proposals for the regulation of site condominiums. The City Council may, pending a study of the contemplated zoning proposal, adopt a temporary interim ordinance, as an emergency measure. Interim ordinances enacting moratoria and other growth management measures are lawful exercise of the police power and do not amount to a temporary taking under the First English Evangelical Church v. County of Los Angeles (1987) 482 U.S. 304, 320 as long as they do not "go too far." In California, an interim moratorium ordinance must be adopted pursuant to Government Code section 65858, which prohibits approval of a new development plan so that a City may reevaluate its land use policies. The ordinance is lawful provided the period of delay is reasonable and there are valid governmental reasons justifying its adoption. (Tahoe-Sierra Preservation Council v. Tahoe Regl Planning Agency (2002) 535 U.S. 302, 353; First English Evangelical Church v. County of Los Angeles, supra at 320). An interim ordinance must be approved b a 4/5 vote of the Council, in this instance pp Y with only four council members, a unanimous vote. Interim ordinances remain in effect only 45 days unless extended for up to 22 months and 15 days, following notice and a public hearing. The ordinance must contain legislative findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or other applicable uses which are required in order to comply with a zoning ordinance, would result in a threat to the public health, safety, or welfare. Ten days prior to the expiration of the interim ordinance or any extension, the City Council must issue a written report describing the measures that have been taken to alleviate the condition which led to the adoption of the ordinance. 62 ITEM NUMBER: B - 1 DATE: 10/10/06 FISCAL IMPACT: None. ALTERNATIVES: 1. Modify and adopt the attached Ordinance; 2. Do not extend the moratorium and therefore, do not adopt the attached Ordinance; 3. Provide direction to Staff. ATTACHMENT: Interim Urgency Ordinance 63 ITEM NUMBER: B - 1 DATE: 10/10/06 Attachment 1: Draft interim Urgency Ordinance DRAFT ORDINANCE AN URGENCY ORDINANCE OF THE CITY OF ATASCADERO ADOPTING A MORATORIUM ON THE APPROVAL OR RECORDATION OF SITE CONDOMINIUM PLANS, AND DECLARING THE URGENCY THEREOF The City Council of the City of Atascadero DOES ORDAIN AS FOLLOWS: Section 1. Findings. The City Council finds as follows. A. The City's Housing Element to its General Plan provides as one of its goals that there is an adequate amount of rental housing in the City. Policy 1.2 of the Housing Element*requires that the Council "encourage a variety of high quality housing types in multi- family areas" by allowing "planned developments with detached units on individual lots or airspace condominiums on commonly owned lots." B. The City's Land Use, Open Space and Conservation Element to its General Plan provides in Policy 2.1 that the Council "ensures that new development is compatible with existing and surrounding neighborhoods." C. Conventional condominiums, the basis of Policy 1.2 of the City's Housing Element in the General Plan, are structures with privately owned airspace within the envelope of a building(s). D. In the last month,the City has seen a significant increase in the number of multifamily projects requesting permits for condominiums that include private airspace outside the envelope of the building ("site condominiums"). E. The City has received an application for a site condominium, and inquiries have been made about other similar site condominium plans within the City. F. If these site condominiums are constructed, there would be no usable common area; rather, there would be a cloud of "common" airspace hundreds or thousands of feet above the rooftops of these properties. G. The construction of site condominiums would create unplanned, piecemeal projects in multi-family zoned areas that resemble subdivision lots, without adhering to the subdivision process outlined in the Subdivision Map Act or City ordinances.. H. The Planning Department of the City of Atascadero plans to review and study the City's zoning code and subdivision ordinance regarding the preservation of traditional airspace condominiums. The-City's- Planning-Staff will also investigate options for regulating and developing site condominiums. I. Due to the foregoing, the City intends to continue to study the extent to which site condominiums are affecting the aesthetics and impacting planned development in the City. In the meantime, if a temporary moratorium on condominiums is not immediately imposed for up to 45 days, substantial piecemeal lots resembling subdivisions are likely to develop. Such unplanned development would defeat the intent and purpose of the City's General Plan policy of developing planned communities and providing airspace condominiums on commonly owned lots. 64 ITEM NUMBER: B- 1 DATE: 10/10/06 Section 2. Imposition of Moratorium The City Council hereby declares that a temporary moratorium on the review and/or approval of site condominiums is necessary in order to permit the city the time to conduct research and consider appropriate regulations, amendments and/or clarifications to protect the public health, safety, welfare and economic prosperity of the City. For the purposes of the moratorium, site condominiums are defined as condominiums that create an air space outside of the envelope of the building and where the common area is not located on the ground. Conventional interior air space condominiums are not subject to this moratorium. Section 3. While this Ordinance remains in effect, no permit, condominium plans, other applicable entitlement, which entails in whole or in part the approval of any site condominium projects within the City shall be approved, issued,or recorded with the County Recorder, except as specified in Section 13 below. Section 4. While this Ordinance remains in effect, no person, firm, partnership, association, corporation, company or organization of any kind shall seek entitlement for, in whole or in part, any site condominiums within the City, except as specified in Section 13 below. Section 5. Pursuant to the provisions of California Government Code. section 65858, this Ordinance is adopted as an urgency interim zoning ordinance and shall take effect immediately. The facts demonstrating the urgency that forms the basis for this ordinance are as follows: A. The City has most recently received applications seeking to record site condominiums; B. The approval or adoption of such site condominiums within the City of Atascadero would result in a threat to orderly development in a radical and fundamental manner. By their unique characteristics, site condominiums provide common airspace outside the envelope of the building, which affects open space to the point where the public health, safety, welfare, and economic prosperity of the City are significantly affected. Such projects may conflict with the City's policy, set forth in the General Plan, to establish cohesive development that is compatible with existing neighborhoods, and not piecemeal type lots throughout the City. It is thus necessary to establish a temporary moratorium to allow for: (1) research and study to determine how to address this use, the type of regulation that may be imposed on this use, and the potential impact this use may have on the City's neighborhoods; and (2) the preparation and presentation of any proposed ordinance, amendments or regulations to address this use; C. It is necessary that this Ordinance go into effect immediately in order to maintain the City's environment pending the outcome of the above-referenced research, study, and analysis, which may dictate the need to regulate site condominiums and which, in turn, will help the City Council better understand the detrimental effects, if any, should such site condominiums-be--allowed to proceed;D. It is necessary that this interim Ordinance remain in effect until the afore- referenced research, study, and analysis have been completed and the recommendations of Planning Department staff and the Planning Commission can be received and considered by the City Council and the City Council, in turn, can consider amendment of the City's zoning code and subdivision ordinance. Section 6. The City Council therefore finds that there is a current and immediate threat to the public health, welfare, and that the approval of additional site condominiums through the 65 ITEM NUMBER: B - 1 DATE: 10/10/06 issuance of permits authorizing such activities or recordation of such plans would result in a threat to, or breach of,that public health and welfare. Section 7. The City Council hereby finds that adoption of this Ordinance will not have the effect of denying' approvals needed for the development of projects with a significant component of multifamily housing. Section 8. Pursuant to Government Code Section 36937(b),this interim urgency Ordinance shall take effect immediately upon its passage and adoption. Section 9. Pursuant to Government Code Section 65858, this Ordinance shall expire 45 days following the date of its passage and adoption, unless its term is extended by action of the City Council in accordance with the procedures set forth in Section 65858, or at such earlier time as the City Council acts to repeal this Ordinance and replace it with a successor Ordinance. Section 10. At least ten days prior to the expiration period provided for in Section 9, the City Council shall issue a written report describing any measures taken to alleviate those conditions herein referenced which lead to the adoption of this Ordinance. Section 11. This Ordinance or a comprehensive summary thereof shall be published once in a newspaper of general circulation in the City of Atascadero within 15 days after its adoption. Section 12. The adoption of this interim ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to sections 15061(b)(3)and 15306 of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that such adoption may have significant effect on the environment; such adoption involves only feasibility and planning studies for possible future adoption of an ordinance that has not yet been prepared or adopted. In addition, the adoption of this interim ordinance is exempt from CEQA pursuant to Section 15262 of the CEQA Guidelines in that this ordinance involves only feasibility or planning studies for possible future actions by the City. Section 13.This Ordinance shall apply to all applications filed on or after August 8, 2006. Section 14. This Ordinance shall be liberally construed to accomplish its intended purposes. Nothing -contained in this Ordinance is intended to limit the continuation of lawful nonconforming uses or structures. Section 15. Severability. The City Council hereby declares that should any section,paragraph, sentence,phrase, term, or word of this Ordinance hereby adopted be declared for any reason to be invalid, it is the intent of the City Council that it would have adopted all other portions of this Ordinance irrespective of any such portion declared invalid. PASSED, APPROVED AND ADOPTED this day of , 2006, by the following vote on roll call: AYES: ABSTENTIONS: ABSENT: 66 ITEM NUMBER: B - 1 DATE: 10/10/06 • CITY OF ATASCADERO Tom O'Malley, Mayor ATTEST: Marcia McClure Torgerson, C.M.C., City Clerk APPROVED AS TO FORM: Patrick L. Enright, City Attorney 67 ITEM NUMBER: C- 1 DATE: 10/10/06 r 1918 � 19 8' Atascadero City Council Staff Report - Fire Department Sprinkler Ordinance Review RECOMMENDATION: Council receive and file a management report reviewing the Sprinkler Ordinance. DISCUSSION: Prior to September 1999 the Uniform Fire Code required all structures over 10,000 square feet to have sprinklers installed. In September 1999 the code was amended locally to require all structures over 5000 square feet or with an eight minute or greater response time to be constructed with fire sprinklers. The current ordinance, adopted October 2004, requires fire sprinklers be installed in all new construction. Additionally, all remodels, alterations or additions resulting in a 10% or more increase of total square footage and creating an increase of total square footage in excess of 3000 square feet, require fire sprinklers. Since the adoption of the current sprinkler ordinance in October 2004, 234 sprinkler systems have been installed. Of the 234 systems installed over the last two years 24 systems were installed in commercial buildings, 15 systems were installed in multi- family buildings, 180 systems have been installed in new single family residences and 15 systems (or 6% of all sprinkler systems) have been installed in additions or remodeled buildings. Lastly, fire sprinklers may be required on remodels regardless of the square footage of the structure. This condition generally occurs when the water system cannot produce -adequate-firs flows. ATTACHMENTS: Attachment A— Chart of Comparison Ordinances Attachment B — Sprinkler Facts & Myths 69 co c r > m O � o 0 O N M d 0 O_ 4S N N d d `1 m m `1 L N w p b co co 0 co Cd C C O U 0 o N c c C C c c c o"' E W a m m m m m m m m U m y mw 0 m = p Y w y °c' m w r m 2 0 a) CDQ) (D � a aa) a) mpo U) a) W. N N N m fA ID y m M (D O O N m Vl C N m O co y c6 c6 m �. co cz cc , c6 Rf. cV m Z = m N m m m m 0 m 0 m 0 O � m m co m m o d m U 3 E E E o U � W o � ai U U U U U o p,acU oE�= U� W a N � c C C C O O C:O O C C N S C 0 � C O O O O.� .L-+ y O ~ 0 c. E }L•o .L.. y0 LO 0 o•ter 0' Lo(D m C c..m0 `p. C N^ C m O O O O m cq O �D �+ N � _ m (C c c c c U c Cl) c c c.C'i cz C M m a. O.m O ,0 m O O O O X O T O O O c_0 O >,CO o'=' an v aTo amcC cC =o w a � m'0� ma�m cyr a E ° aaOi :6 C15 co aY cC cC A O cO c0 co CO co c p al L a co CO O aID T ' T -, C>:' T T-6 TOT..- O ap T+- To Tw U) Q Qa Q mQ Q Q �N 0 cl y O N t _ U) - L O. H co m N y N d c a c c c 0 cc v ° �i c n _a 9 ° (D m er Q. 0 w N r_ (D o a) aci m m m m aa :o v 0 (D fnN m W m � E m v m 3 m ; E 3 d a c c c c 0 c c _ 3 � m c o O 0.0O o o ° Y E ° m o o— o o c a o o LO Q Ln v o o � o m m c a co cmCD CA a E m vtz o c y c c caE c E y co c c v v v =o o v 0 o a -0m �v°ic3 aCD 0 a m N ro rn 2 i m m O f6 cz _ R E E E E m ��m E _ o o f o oLLc E ° U ° E'3•3 c 0 E 3 N V c - � m '� a _ L o� � O O O O O O 0 O O T T T O O m to O O O .�- O c C c LO Cm cn .� E U -m0 c0 m p cr m N O co c0 O U E O U N O O J co•O m m cz C ° E p ai E c c c c E U d d fA U)in c°n tm- Q 70 ITEM NUMBER: C-1 DATE: 10/10/06 Attachment B SPRINKLER FACTS & MYTHS: Fact: Automatic sprinkler systems have enjoyed an enviable record of protecting life and property for over 100 years. Yet, there are still common misunderstandings about the operation and effectiveness of automatic fire sprinkler systems. Fact: Over 200 U.S. communities have residential sprinkler laws. Roughly 100 of these communities are in California. In downtown Fresno for example, there has been fire damage of only $42,000 during a 10-year period in which its sprinklering law has been in effect. Myth: "Water damage from a sprinkler system will be more extensive than fire damage." Fact: Water damage from a home sprinkler system will be much less severe than the damage caused by water from fire-fighting hose lines or smoke and fire damage if the fire goes unabated. Quick response sprinklers release 8-24 gallons of water per minute compared to 50-125 gallons per minute released by a fire hose. Myth: "When a fire occurs, every sprinkler head goes off." Fact: Sprinkler heads are individually activated by fire. Residential fires are usually controlled with one sprinkler head. 90% of all fires are controlled with six or fewer heads and a study conducted in Australia and New Zealand covering 82 years of automatic sprinkler use found that 82% of the fires which occurred were controlled by two or fewer sprinklers. Myth: "A smoke detector provides enough protection." Fact: Smoke detectors save lives by providing a warning system but can do nothing to extinguish a growing fire or protect those physically unable to escape on their own, such as the elderly or small children. Too often, battery operated smoke detectors fail to function because the batteries are dead or have been removed. As the percent of homes in America that were "protected" with smoke detectors increased from zero to more than 70%, the number of fire deaths in homes did not significantly decrease. Myth: "Sprinklers are designed to protect property, but are not effective for life safety." Fact: Sprinklers provide a high level of life safety. Statistics demonstrate that there has never been any multiple loss of life in a fully sprinklered building. Property losses are 85% less in residences with fire sprinklers compared to those without sprinklers. The combination of automatic sprinklers and early warning systems in all buildings and residences could reduce overall injuries, loss of life and property damage by-at least50%.__ MYTH: "Sprinklers are unsightly." Fact: All residential sprinklers come in colors to match ceiling and wall colors and can be recessed or partially recessed. • 71 ITEM NUMBER: C- T DATE: 10/10/06 MYTH: "The sprinklers may go off accidentally." Fact: Loss records of Factory Mutual Research show that the probability of a sprinkler discharging accidentally due to a manufacturing defect is only 1 in 16 million sprinklers per year in service. MYTH: "Sprinkler heads will leak." Fact: Sprinkler systems are under the same pressure as the plumbing system but are tested at 2-3 times higher pressure during installation. MYTH: "Sprinklers are just too expensive to install." Fact: With the development of quick-response sprinkler systems which can be supplied by a home's domestic water supply, a 2,000 square-foot home under construction can be protected today by a system costing as little as $1 ,500 to $2,000 and an older home of comparable size can be retrofitted for about 50 percent. The cost is 1-2% of the home cost about as much as an upgrade to the carpeting. More importantly, there are numerous cost saving benefits of sprinkler systems, savings in construction code options and insurance discounts can often offset the cost of installation. MYTH: "Residential sprinklers don't save lives." Fact: The.evidence on this point is overwhelming. There has not been a single residential fire fatality in a residence with a sprinkler system in either Napa, California or Cobb County, Georgia since the inception of those programs. There has not been a single fire fatality in Prince George's County, Maryland in a-building-with a sprinkler system. Scottsdale, Arizona credits sprinkler systems with saving up_to 52 lives since the ordinance passed in 1985. Sprinkler Facts &Myths, source National Fire Administration & Home Fire Sprinkler Coalition 72 ITEM NUMBER: C-2 DATE: 10/10/06 RI ■! 1 ■ 1911 1-97-9 Atascadero City Council Staff Report City Manager's Office Request by San Luis Obispo County Board of Supervisors (SLOBOS) for Consent to Create a San Luis Obispo Tourism Business Improvement District (SLOTBID) RECOMMENDATION: Council adopt Draft Resolution, authorizing the San Luis Obispo Board of Supervisors to create the San Luis Obispo Tourism Business Improvement District, and grant the San Luis Obispo Board of Supervisors jurisdiction for all the purposes in connection with creation and operation of the proposed San Luis Obispo Tourism Business Improvement District, with input from the lodging businesses and participating cities. DISCUSSION: The lodging industry in concert with the San Luis Obispo County Visitors and Conference Bureau (VCB) is interested in establishing a countywide tourism Business Improvement District (BID) that will substantially increase tourism marketing programs for the destination. The tourism BID will raise funds for a specific purpose (tourism promotion), create a sustained tourism promotion budget, and enable a significant campaign to be launched that will increase visitor demand. The VCB believes that with an unprecedented number of new rooms proposed to be built countywide and occupancies slowly decelerating, the need for additional promotion has never been greater. This item initiates the BID formation process by asking the cities of the County to consent to join a countywide BID. Formal hearings on the actual formation of a BID will Jollow_at-thE County level-when thewmberof-cities -consenting has-been-established. -- The formal hearings are the opportunity for protests to be registered. The BID is a process set by State law (1989 Parking and 'Business Improvement Area Law) to allow businesses to raise funds for specific purposes that will benefit those businesses. It is not subject to Proposition 218 voting requirements that cover other forms of assessment districts. However, a BID proposal is subject to veto by written protest from a "proportional majority' of affected parties. Such a majority would be formed by the number of affected business owners who would pay 50% or more of the 73 ITEM NUMBER: C-2 DATE: 10/10/06 proposed assessment. This protest opportunity is available once each year for the life of the assessment in addition to the initial process. The County, acting as the lead agency, has approved the resolution of request to form the BID within the boundaries of the cities. The San Luis Obispo County VCB would contract with the County to develop and implement the marketing plan in concert with the lodging industry. The BID boundaries would encompass all lodging industry businesses (excluding RV parks) that are currently assessed Transient Occupancy Tax (TOT) of the County and all participating cities. The assessment would be set at 1% of the nightly room rental revenues and collected in similar fashion to TOT. The SLO County VCB staff and the lodging industry have spent many months consulting with lodging owners and believe that they have support from the industry, especially in Atascadero, for this proposal. The money raised through the assessment would be applied specifically for marketing purposes with the intent of increasing tourism and, therefore, revenues for the lodging industry and city and county. The BID assessment would be a legal government levy that can be audited and enforced in the same fashion as taxes such as the TOT. FINANCIAL CONSIDERATIONS BID law allows for an administrative fee to be charged to cover actual collection costs, up to 2 of the total amount collected by jurisdiction, so there should be no cost to the City in implementing such a program. The participating cities will collect the assessment and pass it on to the specific fund at the County for the SLO County VCB to access. The revenues raised by such a program will depend on the number of cities that choose to participate but are anticipated to be in the $1 million to $2 million per year range. INTENDED RESULTS: As per BID law, those businesses paying the assessment will benefit directly from the increased promotion that will take place as a result of a substantially larger tourism marketing program. As_tourism in Atascadero increases, so will the taxes paid by visitors in the form of sales tax and TOT, benefits the city will enjoy. The onus will be on the SLO County VCB to meet the expectations of the lodging industry paying the assessment. Measurements will be developed to track effectiveness of the programs to ensure the program's viability. The ultimate grade will be determined by the lodging industry as they determine whether or not the benefit is great enough to continue the assessment on an annual basis. FISCAL_IMPAC f _ None. { ATTACHMENTS: 1. San Luis Obispo County Board of Supervisors Resolution No. 2006-250 2. Petition to Establish the SLOTBID 3. Draft Resolution 74 IN THE BOARD OF SUPERVISORS COUNTY OF SAN LUIS OBISPO,STATE OF CALIFORNIA Tues day of July 18 20 06 PRESENT: Supervisors Harry L. Ovitt, Shirley Bianchi, Jerry Lenthall, James. R. Patterson and Chairperson K.H. 'Katcho.'. Achadjian ABSENT: None RESOLUTION NO. 2006-250 RESOLUTION REQUESTING CONSENT OF THE CITIES OF ARROYO GRANDE,ATASCADERO,GROVER BEACH,M,ORRO BAY,PASO ROBLES, PISMO BEACH,AND SAN LUIS OBISPO TO CREATE THE SAN LUIS OBISPO COUNTY TOURISM BUSINESS IMPROVEMENT DISTRICT (SLOCTBID) WHEREAS,the Board of Supervisors of the County of San Luis Obispo desires to begin the process to form the San Luis Obispo County Tourism Business Improvement District("SLOCTBID")pursuant to the Parking and Business Improvement Area Law of 1989,Streets and Highways Code section 36500 et seq.,to fund tourism.promotions and marketing programs.for the San Luis Obispo tourism industry;and WHEREAS,certain lodging business owners have requested that the Board of . Supervisors of the County of San Luis Obispo create the SLOCTBID for purposes of promotion of lodging businesses in San Luis Obispo County;and WHEREAS, the territory proposed to be included in the SLOCTBID lies within the boundaries of the Cities of Arroyo Grande,Atascadero,Grover Beach,Morro Bay, Paso Robles,Pismo Beach,and San Luis Obispo(the"Cities"),.as shown on the map attached hereto as Exhibit A and incorporated herein by such attachment;and WHEREAS,the lodging businesses located within the Cities which lie within the boundaries of the proposed SLOCTBID will,in.the opinion of the.Board of Supervisors, be benefited by the proposed improvements and.activities to be carried out,and the purpose sought to be accomplished.by the work can best.be accomplished by a single comprehensive scheme of work;and WHEREAS,consenting cities will participate in the SLOCTBID by collecting and transferring to the County of San Luis Obispo the SLOCTBID assessment applied to lodging businesses.-within-:their jurisdictions; NOW,THEREFORE,BE IT RESOLVED,by the Board of Supervisors.of the Countyof San Luis Obispo that: Section 1: The above recitals are true and correct: • Section 2: Consent of the Cities,through their City Council,is hereby requested to create the SLOTBII?,and to grant to the Board of Supervisors of the County of San Luis � 75 Obispo jurisdiction for all the purposes in connection with creation and operation of the proposed SLOTBID,with input from the lodging businesses and participating cities. i Section 3: The Clerk of the Board is hereby directed to transmit a certified copy of this Resolution to the City Clerk of the Cities of Arroyo Grande,Atascadero,Grover Beach,Morro Bay,Paso Robles,Pismo Beach,and:San Luis Obispo. PASSED AND ADOPTED at a regular meeting of the Board of Supervisors of the County of San Luis Obispo,State of California,held on this 18th day of.July=2006 by the following vote: AYES:Supervisors ovitt, Lenthall, Bianchi, Patterson, Chairperson Achadjian NOES: None ABSENT: None ABSTAINING:None K.H.ACHADJIAN Chairman of the Board of Supervisors ATTEST: JULIE L. ROD.EWALD Clerk of the Board of Sime imnq By: C.M. CHRISTENSEN Deputy Clerk - •••..+.•r..,�.�, [SEAL] S'tATESiFUJFtRMA as COUNTY OF SAN'lfllS OBISPO) 1,JULIE L.RODEWALD,County Cleric of the above APPROVED AS TO FORM AND LEGAL EFFECT: entkied Country,and Ex-Officio Clark of the Board of Suporvisorstbereof,do hereby oartIly the tore JAMES B LINDHOLM,JR. going to bei full,true aW comm copy of an order antsrod to 1110 nxlnulat of ta:q d of Super- CountyCounsel visors,and now rwsaWng of recard in my office. Wilms,my hand and seal of.said Board of supentiaors lids`i U,L2 d 2006 1stant County Couii 1Aik LRCS , Counly Cfork and Ex-Officlo Clerk Dated: ��2�/D6 <_ _ vfthoB�rdnfSu�svlaors RECEIVED 8974p1aeso.doc JUL 2 5 2006 CITY OF ATASCADERO 2 CITY MANAGER'S OFFICE 76 MEMORANDUM DATE: September 29, 2006 TO: Honorable Tom O'Malley,Mayor,City of Atascadero, and City Council Members Jerry Clay,George Luna and Becky Pacas FROM: Jonni Biaggini,Executive Director, San Luis Obispo County VCB CC: Wade McKinney, City Manager,City of Atascadero RE: Petition to Establish the San Luis Obispo County Tourism Business Improvement District In an effort to gauge the support of lodging properties in San Luis Obispo County for the formation of a tourism improvement district, the motels in Atascadero, in conjunction with the San Luis Obispo County Convention & Visitors Bureau (SLOCVCB), circulated the following petition to Atascadero lodging establishments. A tourism improvement district will provide economic benefit to Atascadero lodging establishments and tourism-related businesses.To date,petition signers represent 80% of transient lodging properties in the City of Atascadero. Petition to Establish the San Luis Obispo County Tourism Improvement District Dear Honorable Mayor and Members of the City Council of the City of Atascadero: • Our lodging property, in coordination with the San Luis Obispo County Convention & Visitors Bureau (SLOCVCB), supports the proposal to establish a Tourism Business Improvement District in San Luis Obispo County. A Tourism Business Improvement District(TBID)will enable us to establish an adequate and stable funding source to promote San Luis Obispo County as a tourism destination for year-round travel. We support the proposal of an assessment of 1%of the room rate per occupied room per night. The Tourism District is proposed for the County of San Luis Obispo's unincorporated areas and the Cities of Atascadero,Arroyo Grande,Grover Beach,Morro Bay,San Luis Obispo,Paso Robles and Pismo Beach. We understand these funds will be used exclusively for the tourism industry promotion in San Luis Obispo County. A Tourism District will provide economic benefit to lodging establishments, tourism related businesses,and the local jurisdictions in San Luis Obispo County. Please take this letter of support for a Tourism District under consideration. Thank you for your time. Sincerely, Best Western Colony Inn (75 rooms) Rancho Tee (27 rooms) JP Patel' Bhiku Patel Carlton Hotel (52 rooms) Atascadero Super 8 (27 rooms) Therese Corea Bhakta Dhansukh • 77 DRAFT RESOLUTION RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, STATE OF CALIFORNIA, GRANTING CONSENT TO THE COUNTY OF SAN LUIS OBISPO TO FORM THE SAN LUIS OBISPO COUNTY TOURISM BUSINESS IMPROVEMENT DISTRICT (SLOCTBID) WHEREAS, the County of San Luis Obispo is beginning the process to establish a San Luis Obispo County Tourism Business Improvement District (SLOCTBID) pursuant to the Parking and Business Improvement Area Law of 1989, Streets and Highways Code Section 36500 et seq., to promote tourism and the lodging businesses in San Luis Obispo County; and WHEREAS, the Board of Supervisors of the County of San Luis Obispo has requested consent to form the SLOCTBID in the cities of Arroyo Grande, Atascadero; Grover Beach, Morro Bay, Paso Robles, Pismo Beach, and San Luis Obispo with adoption of Board of Supervisors Resolution No. 2006-250, dated July 18, 2006; NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Atascadero that: Section 1: The above recitals are true and correct. Section 2• - . The City Council consents to the County of San Luis Obispo forming the San Luis Obispo County Tourism Business Improvement District, which District shall include the City of Atascadero. Section 3: The City Clerk is hereby directed to transmit a certified copy of this Resolution, to the Clerk of the County of San Luis Obispo Board of Supervisors. Section 4: This Resolution is effective upon its adoption. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Atascadero, State of California,held on this 10th day of October, 2006 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Tom O'Malley,Mayor ATTEST: Marcia McClure Torgerson, C.M.C., City Clerk 78 ITEM NUMBER: C-3 DATE: 10/10/06 ArA`SCAu�,D Atascadero City Council Staff Report- Public Works Department Informational Item: Dove Creek Development Required Improvements for the US 101/Santa Barbara Interchange RECOMMENDATION: Informational item only, no staff recommendation at this time. City Staff is bringing this before the City Council to inform that home buyers in this Project may be prohibited from occupying their homes until this issue is satisfactorily resolved. DISCUSSION: Background: The Dove Creek Project (Project) is a 280 unit residential/60,000 square foot commercial development located along EI Camino Reap and Santa Barbara Road. The City Council approve the project in 2003 by approving Mitigated Negative Declaration 2004-0085, Zone Change 2003-0049, Vesting Tentative Map 2003-0033 and Conditional Use Permit 2003-0099 (Master Plan of Development). The Project is currently owned by Centex Homes (Centex). A Traffic Impact Study (Study) was produced by Omni-Means to address Project traffic related impacts. The Study recommended signalizing the ramps at the US 101/Santa Barbara Road interchange. The Interchange signalization traffic mitigation measure was incorporated into the Project environmental document ---and--Conditions-of-App-rbval -T-he follow+ng=language=+s included i the=Conditions = of Approval• Traffic Mitigation: A Traffic Impact Study was produced for this project by Omni-Means. in the study there are recommended mitigation measures. Listed below are conditions to implement the mitigation measures: 79 ITEM NUMBER: C-3 DATE: 10/10/06 Santa Barbara Road/US 101 Interchange g The study found that the following Improvements are required for the interchange. Also list is the percent "fair Share" that this project is responsible for the improvement. These are to be installed prior to the first unit occupies or the first commercial building opened. These are improvements that are not identified as needed improvements in the City of Atascadero Circulation Element and the Growth Mitigation Program. Therefore, the growth mitigation fee does not cover the improvements. The developer may record a reimbursement agreement against future trip generation facilities to recoup a portion of the cost of construction. • Santa Barbara Road/US 101 SB Ramps: Install Traffic Signal (39.3%) ■ Santa Barbara Road/US 101 NB Ramps: Install Traffic Signal (52.4%) The above two signals shall be interconnected. The Santa Barbara/101 Interchange is in Caltrans' right-of-way, and signal installation requires Caltrans approval. Centex submitted a signal installation application to Caltrans in 2004. Caltrans subsequently denied the permit stating concerns related to potential interchange off-ramp traffic queuing. Centex is nearing completion of some of the Dove Creek homes. The Conditions of Approval require that the Santa Barbara Road interchange signals be installed prior to first home occupancy. City staff has been working with the Centex over the last two years to find a suitable alternative to signalization. City staff recently presented a proposal to Centex that would require the installation of interchange improvements that are identified in an upcoming City sponsored Interchange Operational Improvement Study. City staff obtained a preliminary report from our traffic engineering consultant that identified a roundabout as one suitable alternative. This information was provided to the Dove Creek. In addition, City staff presented draft Conditions of Approval changes that would allow the developers to install the improvements identified by our consultant and occupy a specific number of -homes-prior-to the instalfatton of-Ah improvements: Dove Creek indicated fhep� were interested in the option and staff was preparing to take this to the City Council on September 26th. Centex has since informed the City that they are no longer interested in aforementioned option. Centex now claim's that the requirement to signalize or install another improvement is waived because of Subdivision Map Act provisions related to control of offsite property (Caltrans). Centex believes that the 80 ITEM NUMBER: C-3 DATE: 10/10/06 Subdivision Map Act relieves them of the requirement since the City cannot require Centex to install improvements on another property that is not under Centex's control. The City Attorney does not agree with Centex conclusion that they do not have to install the signals, since Centex has entered into a Subdivision Agreement with the City to complete all the improvements required in the Conditions of Approval and bonded to guarantee them. Conclusion: City staff has informed Centex that we believe they are still obligated to mitigate traffic impacts identified in their Final Environmental and Condition of Approval documents. We informed Centex they will need to get City Council approval for all Condition of Approval changes, including occupancy requirements (See Attached Letter). ATTACHMENTS: Letter Dated September 14th to Centex Homes 81 eA r.,a CITY OF ATASCADERO PUBLIC WORKS DEPARTMENT 6907 EL CAMINO REAL,ATASCADERO, CA 93422 Telephone(805)461-5000 September 14, 2006 Centex Homes LA/Central Coast Division 735 Tank Farm Road San Luis Obispo,CA 93401 Subject: Tract 2626, Dove Creek US 101/ Santa Barbara Road Interchange Traffic Mitigation Attn: Grant Robbins, Land Division Manager Tract 2626 has been conditioned to mitigate the short and long term traffic impacts to the US 101/Santa Barbara Road Interchange. The project traffic impact report recommended installing synchronized traffic signals at the US 101 ramps on the bridge to mitigate the traffic impacts of Tract 2626. The tentative map and the Conditional Use Permit conditioned the project to install the signal prior to occupancy of any units in Tract 2626. Caltrans reviewed the proposed signal installation and denied the application on July 19, 2005. The reason for the denial was a concern with traffic queuing of traffic on the US 101 ramps. Centex has requested that the City allow occupancy of a number of homes while Centex gain approval from the City and Caltrans for alternate traffic mitigation. The City is very concerned about your Project's traffic impacts to the interchange. Please be aware that,the City Council must approve any alternate traffic mitigation and occupancy of any homes prior to the installation of the required mitigation. Therefore, the following items must be submitted to the City in order to place this item on the City Council agenda: ✓ The exact number of homes requested to be occupied prior to traffic mitigation installation and the estimateddates of occupancy. Submit'a marked up site map of the exact units and the estimated dates of occupancy. Include all on- site improvements required for access. ✓ A plan, describing steps to be taken to design and gain approval from Caltrans and the City for alternate traffic mitigation. The plan shall also include a time line. ✓ A Traffic Report addressing the short term impacts to the interchange with homes that are occupied by Dove Creek, Las Lomas and San Diego Road Condo's without traffic mitigation installed. 82 ✓ An updated frontage improvement installation schedule that includes the signal at EI Camino Real and Santa Barbara Road. For your information, Staff reports are due to the City Manager 20 days prior to a City Council Meeting. Staff will need the above information several days prior to this deadline in order to write the Staff Report. We have placed a spot on the October 10'" City Council Meeting for this item. Once again, this issue is of great concern to the City Council and Staff. The City is ready to work with you on this issue to resolve. Please call me if you have any questions. Steven B. Kahn, PE Public Works Director Xc: David Athey, Deputy Director of Public Works Warren Frace, Community Development Director Pat Enright, City Attorney File 83 ITEM NUMBER: C-4 DATE: 10/10/06 n 1918 � 19 9 Atascadero City Council Staff Report Community Development Department Historic Atascadero Printery Building Restoration Status Update RECOMMENDATION: Council receive and file report. DISCUSSION: The Atascadero Printery is a National Register Building that was constructed in 1916 by E.G. Lewis the founder of the Atascadero Colony (see attached building history). The building was designed by Bliss and Faville Architects and compliments the Italian Renaissance architecture of the Atascadero Administration building a block away. The Printery was damaged in the 2003 San Simeon earthquake and currently is deemed unsafe to occupy. A damage assessment and rehabilitation plan was prepared in September 2004 for the Printery by Pfeiffer Partners Architects. In early 2006, the ownership of the Printery was transferred from the City to Kelly Gearhart. A deed restriction was recorded against the property prior to transfer to ensure the Printery's protection and rehabilitation. This deed restriction was required by FEMA and the California State Historic Preservation Office (SHPO) prior to funding the alternative project to build the recreation center at Traffic Way Park. FEMA and SHPO required the following deed restrictions as mitigation: a. The Property shall remain as lots and parcels as currently configured with the contemplation of the Atascadero Municipal Code (code) and Sub ddvisionlVlap-Act ofAhe-State of-Califomra-(Map -- b. No action will be taken by the property in violation of the zoning of the Property or Map Act. c. The Printery shall be retained and restored. d. Design approval is required of all exterior work by the Community Development Director. 85 ITEM NUMBER: C-4 DATE: 10/10/06' e. The interior tapestry shall be maintained. f. The building must be occasionally made available to the public no less than annually. g. Any design, including elevations of any project, must be provided to the City of Atascadero. h. The property owner shall hereafter keep and maintain the Property in good condition and in compliance with the code. On April 19, 2006 the City received a Precise Plan and building permit application by the building's owner for the retrofit, rehabilitation and re-use of the historic Printery building as a ballroom for private community uses such as formal parties weddings, entertainment and related uses. The developer's plans include transforming property to the east of the site for vehicle parking and landscaping the remaining portions of the site. Landscaping would include turf areas, sidewalks, decorative paving, formal plantings and shade structures. The original 1915 construction of the Printery building would be rehabilitated to its original appearance using historic architectural drawings and existing materials, as feasible. Stucco and wood frame additions to the original Printery building are proposed to be demolished. Corrections to the Precise Plan and building permit were released to the applicant on June 13, 2006. One of the City's corrections is that a historic consultant needs to be retained to prepare a report for a CEQA document prior to any work occurring of the building. Because the Printery is a National Historic Register Building, this correction is required to comply with Section 106 of the National Historic Preservation Act of 1966 and CEQA (refer to attachment). In addition, Section 106 provides qualification standards for consultants who perform the work. Permit Correction 1. The proposed project involves a National Historic Register Building. All permits are subject to CEQA environmental review to determine if a significant impact to the historic resource would result. In order for staff to prepare the environmental document a historic analysis by a qualified historic professional will be required. As a Federal and State-registered historic resource, the proposed project will require professional and technical expertise regarding architecture, engineering, landscape architecture and historic preservation/rehabilitation consultation. Staff has established contact with the State Office of Historic Preservation (SHPO)to assist the City in this review process. Staff is also currently contacting historic resource consultants that are qualified to provide CEQA review and recommendations on the project. Please provide the City with a deposit so that the City can hire the consultant. Staff has met with the applicant a number of times over the summer of 2006 to discuss the need for a historic consultant. The-applicant-has---asked sta" t=to move-forward -- with issuing an RFP for this work at this time. No plan revisions or corrections have been resubmitted on the project to date. 86 ITEM NUMBER: C-4 DATE: 10/10/06 Current Building Condition: On September 28, 2006 staff conducted an inspection of the exterior and interior of the Printery with the owner, consistent with the requirements of the deed restriction. The owner had reported that vandals have broken into the building and caused damage. Staff found that graffiti had been sprayed in the building, and numerous windows and lights have been broken. The historic features of the building including the interior tapestries have not been damaged. The exterior of the building has been secured fenced with a security type tubular metal fence. The grounds are over grown with dead weeds. Exterior on 9/28/06:security fence and over grown vegetation 87 ITEM NUMBER: C-4 DATE: 10/10/06 41, SNOMPO r �q Exterior on 9/28/06:broken window where people appear to be entering Interior on 9/28/06: Recent graffiti on walls 88 ITEM NUMBER: C-4 DATE: 10/10/06 i j Interior on 9/28/06:historic tapestries are undamaged. I Interior on 9/28/06:Temporary shoring in place, note broken windows and lights. 89 ITEM NUMBER: C-4 DATE: 10/10/06 ATTACHMENTS: 1. Federal Regulation Section 106 Protection of Historic Properties 2 "The Printery" by Lon Allen 90 1 36 CFR PART 800 --PROTECTION OF project planning. The goal of implementation of a program HISTORIC PROPERTIES(incorporating consultation is to identify historic alternative. The agency official may be amendments effective August 5,20041 properties potentially affected by the a State,local,or tribal government undertaking, assess its effects and seek official who has been delegated legal Subpart A--Purposes and Participants ways to avoid,minimize or mitigate any responsibility for compliance with adverse effects on historic properties. section 106 in accordance with Federal Sec. (b)Relation to other provisions of the law. 800.1 Purposes. act. Section 106 is related to other (1)Professional standards. Section 800.2 Participants in the Section 106 provisions of the act designed to further 112(a)(1)(A)of the act requires each process, the national policy of historic Federal agency responsible for the preservation. References to those protection of historic resources, Subpart B--The Section 106 Process provisions are included in this part to including archeological resources,to identify circumstances where they may ensure that all actions taken by 800.3 Initiation of the section 106 affect actions taken to meet section 106 employees or contractors of the agency process. requirements. Such provisions may shall meet professional standards under 800.4 Identification of historic have their own implementing regulations developed by the Secretary. properties. regulations or guidelines and are not (2)Lead Federal agency. If more 800.5 Assessment of adverse effects. intended to be implemented by the than one Federal agency is involved in 800.6 Resolution of adverse effects, procedures in this part except insofar as an undertaking,some or all the agencies 800.7 Failure to resolve adverse effects. they relate to the section 106 process. may designate a lead Federal agency, 800.8 Coordination with the National Guidelines,policies and procedures which shall identify the appropriate Environmental Policy act. issued by other agencies,including the official to serve as the agency official 800.9 Council review of Section 106 Secretary,have been cited in this part who shall act on their behalf,fulfilling compliance. for ease of access and are not their collective responsibilities under 800.10 Special requirements for incorporated by reference, section 106. Those Federal agencies protecting National Historic (c)Timing. The agency official must that do not designate a lead Federal Landmarks. complete the section 106 process"prior agency remain individually responsible 800.11 Documentation standards. to the approval of the expenditure of for their compliance with this part. 800.12 Emergency situations. any Federal funds on the undertaking or (3) Use of contractors. Consistent 800.13 Post-review discoveries. prior to the issuance of any license." with applicable conflict of interest laws, This does not prohibit agency official the agency official may use the services • Subpart C--Program Alternatives from conducting or authorizing of applicants,consultants,or designees nondestructive project planning to prepare information,analyses and 800.14 Federal agency program activities before completing compliance recommendations under this part. The alternatives. with section 106,provided that such agency official remains legally 800.15 Tribal,State and Local Program actions do not restrict the subsequent responsible for all required findings and Alternatives.(Reserved) consideration of alternatives to avoid, determinations. If a document or study 800.16 Definitions. minimize or mitigate the undertaking's is prepared by a non-Federal party,the Appendix A—Criteria for Council adverse effects on historic properties. agency official is responsible for involvement in reviewing individual The agency official shall ensure that the ensuring that its content meets section 106 cases section 106 process is initiated early in applicable standards and guidelines, the undertaking's planning,so that a (4)Consultation. The agency official Authority: 16 U.S.C.470s. broad range of alternatives may be shall involve the consulting parties considered during the planning process described in paragraph(c)of this Subpart A-Purposes and Participants for the undertaking. section in findings and determinations made during the section 106 process. §800.1 Purposes. §800.2 Participants in the Section 106 The agency official should plan (a)Purposes of the section 106 process. consultations appropriate to the scale of process. Section 106 of the National (a)Agency official. It is the statutory the undertaking and the scope of Historic Preservation Act requires obligation of the Federal agency to fulfill Federal involvement and coordinated Federal agencies to take into account the the requirements of section 106 and to with other requirements of other effects of their undertakings on historic ensure that an agency official with statutes,as applicable,such as the properties and afford the Council a jurisdiction over an undertaking takes National Environmental Policy Act,the reasonable opportunity to comment on legal and financial responsibility for Native American Graves Protection and such undertakings. The procedures in section 106 compliance in accordance Repatriation Act,the American Indian this part define how Federal agencies with subpart B of this part. The agency Religious Freedom Act,the meet these statutory responsibilities. official has approval authority.for the_- Archeolo ical Resources Protection Act The section 106 process seeks to undertaking and can commit the Federal and agency-specific legislation. The accommodate historic preservation agency to take appropriate action for a Council encourages the agency official concerns with the needs of Federal specific undertaking as a result of to use to the extent possible existing undertakings through consultation section 106 compliance. For the agency procedures and mechanisms to among the agency official and other purposes'of subpart C of this part,the fulfill the consultation requirements of parties with an interest in the effects of agency official has the authority to this part. • the undertaking on historic properties, commit the Federal agency to any (b) Council. The Council issues commencing at the early stages of obligation it may assume in the regulations to implement section 106, 91 2 provides guidance and advice on the (A) Tribal historic preservation preservation issues and resolve application of the procedures in this officer. For a tribe that has assumed the concerns about the confidentiality of part,and generally oversees.the responsibilities of the SHPO for section information on historic properties. operation of the section 106 process. 106 on tribal lands under section (B)The Federal Government has a The Council also consults with and 101(d)(2)of the act,the tribal historic unique legal relationship with Indian comments to agency officials on preservation officer(THPO)appointed tribes set forth in the Constitution of the individual undertakings andprograms or designated in accordance with the act United States,treaties,statutes,and that affect historic properties. is the official representative for the court decisions. Consultation with (1)Council entry into the section 106 purposes of section 106. The agency Indian tribes should be conducted in a process. When the Council determines official shall consult with the THPO in sensitive manner respectful of tribal that its involvement is necessary to lieu of the SHPO regarding undertakings sovereignty. Nothing in this part alters, ensure that the purposes of section 106 occurring on or affecting historic amends,repeals,interprets or modifies and the act are met,the Council may properties on tribal lands. tribal sovereignty,any treaty rights,or enter the section 106 process. Criteria (B) Tribes that have not assumed other rights of an Indian tribe,or guiding Council decisions to enter the SHPO functions.When an Indian tribe preempts,modifies or limits the exercise section 106 process are found in has not assumed the responsibilities of of any such rights. appendix A to this part. The Council the SHPO for section 106 on tribal lands (C)Consultation with an Indian will document that the criteria have under section 101(d)(2)of the act,the tribe must recognize the government-to- been met and notify the parties to the agency official shall consult with a government relationship between the section 106 process as required by this representative designated by such Federal Government and Indian tribes. part. Indian tribe in addition to the SHPO The agency official shall consult with (2)Council assistance. Participants regarding undertakings occurring on or representatives designated or identified in the section 106 process may seek affecting historic properties on its tribal by the tribal government or the advice,guidance and assistance from lands. Such Indian tribes have the same governing body of a Native Hawaiian the Council on the application of this rights of consultation and concurrence organization. Consultation with Indian part to specific undertakings,including that the THPOs are given throughout tribes and Native Hawaiian the resolution of disagreements, subpart B of this part,except that such organizations should be conducted in a whether or not the Council is formally consultations shall be in addition to and manner sensitive to the concerns and involved in the review of the on the same basis as consultation with needs of the Indian tribe or Native undertaking. If questions arise the SHPO. Hawaiian organization. regarding the conduct of the section 106 (ii)Consultation on historic (D)When Indian tribes and Native process,participants are encouraged to properties of significance to Indian tribes Hawaiian organizations attach religious obtain the Council's advice on and Native Hawaiian organizations. and cultural significance to historic completing the process. Section 101(d)(6)(B)of the act requires properties off tribal lands,section (c)Consulting parties. The following the agency official to consult with any 101(d)(6)(B)of the act requires Federal parties have consultative roles in the Indian tribe or Native Hawaiian agencies to consult with such Indian section 106 process. organization that attaches religious and tribes and Native Hawaiian (1)State historic preservation officer. cultural significance to historic organizations in the section 106 process. (i)The State historic preservation properties that may be affected by an Federal agencies should be aware that officer(SHPO)reflects the interests of undertaking. This requirement applies frequently historic properties of the State and its citizens in the regardless of the location of the historic religious and cultural significance are preservation of their cultural heritage. property. Such Indian tribe or Native located on ancestral,aboriginal,or In accordance with section 101(b)(3)of Hawaiian organization shall be a ceded lands of Indian tribes and Native the act,the SHPO advises and assists consulting party. Hawaiian organizations and should Federal agencies in carrying out their (A)The agency official shall ensure consider that when complying with the section 106 responsibilities and that consultation in the section 106 procedures in this part. cooperates with such agencies,local process provides the Indian tribe or (E)An Indian tribe or a Native governments and organizations and Native Hawaiian organization a Hawaiian organization may enter into individuals to ensure that historic reasonable opportunity to identify its an agreement with an agency official properties are taking into consideration concerns about historic properties, that specifies how they will carry out at all levels of planning and advise on the identification and responsibilities under this part, development. evaluation of historic properties, including concerns over the (ii)If an Indian tribe has assumed including those of traditional religious confidentiality of information. An the functions of the SHPO in the section and cultural importance,articulate its agreement may cover all aspects of tribal 106 process for undertakings on tribal views on the undertaking's effects on participation in the section 106 process, lands,the SHPO shall participate as a such properties,and participate in the provided that no modification may be —consulting-party-if the-undertaking takes resolution of-adverse-effects.It is the -_ made in the roles_of other partiesto the - place on tribal lands but affects historic responsibility of the agency official to section 106 process without their properties off tribal lands,if requested make a reasonable and good faith effort consent. An agreement may grant the in accordance with§800.3(c)(1),or if to identify Indian tribes and Native Indian tribe or Native Hawaiian the Indian tribe agrees to include the Hawaiian organizations that shall be organization additional rights to SHPO pursuant to§800.3(f)(3). consulted in the section 106 process. participate or concur in agency (2)Indian tribes and Native Consultation should commence early in decisions in the section 106 process Hawaiian organizations. the planning process,in order to beyond those specified in subpart B of (i)Consultation on tribal lands, identify and discuss relevant this part. The agency official shall 92 3 provide a copy of any such agreement to the relationship of the Federal Transportation Act. Where consistent the Council and the appropriate SHPOs. involvement to the undertaking. with the procedures in this subpart,the (F)An Indian tribe that has not (2)Providing notice and information. agency official may use information assumed the responsibilities of the The agency official must,except where developed for other reviews under SHPO for section 106 on tribal lands appropriate to protect confidentiality Federal,State or tribal law to meet the under section 101(d)(2)of the act may concerns of affected parties,provide the requirements of section 106. notify the agency official in writing that public with information about an (c)Identify the appropriate SHPO it is waiving its rights under§ undertaking and its effects on historic and/or THPO. As part of its initial 800.6(c)(1)to execute a memorandum of properties and seek public comment planning,the agency official shall agreement, and input. Members of the public may determine the appropriate SHPO or (3)Representatives of local also provide views on their own SHPOs to be involved in the section 106 governments. A representative of a local initiative for the agency official to process. The agency official shall also government with jurisdiction over the consider in decisionmaking. determine whether the undertaking may area in which the effects of an (3) Use of agency procedures. The occur on or affect historic properties on undertaking may occur is entitled to agency official may use the agency's any tribal lands and,if so,whether a participate as a consulting party. Under procedures for public involvement THPO has assumed the duties of the other provisions of Federal law,the under the National Environmental SHPO, The agency official shall then local government may be authorized to Policy Act or other program initiate consultation with the act as the agency official for purposes of requirements in lieu of public appropriate officer or officers. section 106. involvement requirements in subpart B (1)Tribal assumption of SHPO (4)Applicants for Federal assistance, of this part,if they provide adequate responsibilities. Where an Indian tribe permits,licenses and other approvals. opportunities for public involvement has assumed the section 106 An applicant for Federal assistance or consistent with this subpart. responsibilities of the SHPO on tribal for a Federal permit,license or other lands pursuant to section 101(d)(2)of approval is entitled to participate as a Subpart B-The section 106 Process the act,consultation for undertakings consulting party as defined in this part. occurring on tribal land or for effects on The agency official may authorize an §800.3 Initiation of the section 106 tribal land is with the THPO for the applicant or group of applicants to process. Indian tribe in lieu of the SHPO. initiate consultation with the (a)Establish undertaking. The Section 101(d)(2)(D)(iii)of the act SHPO/THPO and others,but remains agency official shall determine whether authorizes owners of properties on tribal legally responsible for all findings and the proposed Federal action is an lands which are neither owned by a determinations charged to the agency undertaking as defined in§800.16(y) member of the tribe nor held in trust by official. The agency official shall notify and,if so,whether it is a type of activity the Secretary for the benefit of the tribe the SHPO/THPO when an applicant or that has the potential to cause effects on to request the SHPO to participate in the group of applicants is so authorized. A historic properties. section 106 process in addition to the Federal agency may authorize all (1)No potential to cause effects. If THPO. applicants in a specific program the undertaking is a type of activity that (2) Undertakings involving more than pursuant to this section by providing does not have the potential to cause one State. If more than one State is notice to all SHPO/THPOs. Federal effects on historic properties,assuming involved in an undertaking,the agencies that provide authorizations to such historic properties were present, involved SHPOs may agree to designate applicants remain responsible for their the agency official has no further a lead SHPO to act on their behalf in the government to government relationships obligations under section 106 or this section 106 process,including taking with Indian tribes. part. actions that would conclude the section (5)Additional consulting parties. (2)Program alternatives. If the 106 process under this subpart. Certain individuals and organizations review of the undertaking is governed (3)Conducting consultation. The with a demonstrated interest in the by a Federal agency program alternative agency official should consult with the undertaking may participate as established under§800.14 or a SHPO/THPO in a manner appropriate to consulting parties due to the nature of programmatic agreement in existence the agency planning process for the their legal or economic relation to the before January 11,2001,the agency undertaking and to the nature of the undertaking or affected properties,or official shall follow the program undertaking and its effects on historic their concern with the undertaking's alternative. properties.' effects on historic properties. (b)Coordinate with other reviews. (4)Failure of the SHPO/THPO to (d)The public. The agency official should coordinate respond. If the SHPO/THPO fails to (1)Nature of involvement.The views the steps of the section 106 process,as respond within 30 days of receipt of a of the public are essential to informed appropriate,with the overall planning request for review of a finding or Federal decisionmaking in the section schedule for the undertaking and with determination,the agency official may 106 process, Theagencyofficial shall any reviews required-under-other either proceed to the-next step in the seek and consider the views of-the authorities such as the National process based on the finding or public in a manner that reflects the Environmental Policy Act,the Native determination or consult with the nature and complexity of the American Graves Protection and Council in lieu of the SHPO/THPO. If undertaking and its effects on historic Repatriation Act,the American Indian the SHPO/THPO re-enters the section properties,the likely interest of the Religious Freedom Act,the 106 process,the agency official shall public in the effects on historic Archeological Resources Protection Act continue the consultation without being properties,confidentiality concerns of and agency-specific legislation,such as required to reconsider previous findings private individuals and businesses,and section 4(f)of the Department of or determinations. 93 4 (d) Consultation on tribal lands. (g)Expediting consultation. A sample field investigation,and field Where the Indian tribe has not assumed consultation by the agency official with survey.The agency official shall take the responsibilities of the SHPO on the SHPO/THPO and other consulting into account past planning,research tribal lands,consultation with the parties may address multiple steps in§§ and studies,the magnitude and nature Indian tribe regarding undertakings 800.3 through 800.6 where the agency of the undertaking and the degree of occurring on such tribe's lands or effects official and the SHPO/THPO agree it is Federal involvement,the nature and on such tribal lands shall be in addition appropriate as long as the consulting extent of potential effects on historic to and on the same basis as consultation parties and the public have an adequate properties,and the likely nature and with the SHPO. If the SHPO has opportunity to express their views as location of historic properties within the withdrawn from the process,the agency provided in§800.2(d). area of potential effects. The Secretary's official may complete the section 106 Standards and Guidelines for process with the Indian tribe and the §800.4 Identification of historic Identification provide guidance on this Council,as appropriate. An Indian tribe properties. subject. The agency official should also may enter into an agreement with a (a)Determine scope of identification consider other applicable professional, SHPO or SHPOs specifying the SHPO's efforts. In consultation with the State,tribal and local laws,standards participation in the section 106 process SHPO/THPO,the agency official shall;• and guidelines. The agency official for undertakings occurring on or (1)Determine and document the shall take into account any affecting historic properties on tribal area of potential effects,as defined in§ confidentiality concerns raised by lands. 800.16(d); Indian tribes or Native Hawaiian (e)Plan to involve the public. In (2)Review existing information on organizations during the identification consultation with the SHPO/THPO,the historic properties within the area of process. agency official shall plan for involving potential effects,including any data (2)Phased identification and the public in the section 106 process. concerning possible historic properties evaluation. Where alternatives under The agency official shall identify the not yet identified; consideration consist of corridors or appropriate points for seeking public (3)Seek information,as appropriate, large land areas,or where access to input and for notifying the public of from consulting parties,and other properties is restricted,the agency proposed actions,consistent with§ individuals and organizations likely to official may use a phased process to 800.2(d). have knowledge of,or concerns with, conduct identification and evaluation (f)Identify other consulting parties. historic properties in the area,and efforts. The agency official may also In consultation with the SHPO/THPO, identify issues relating to the defer final identification and evaluation the agency official shall identify any undertaking's potential effects on of historic properties if it is specifically other parties entitled to be consulting historic properties;and provided for in a memorandum of parties and invite them to participate as (4)Gather information from any agreement executed pursuant to§800.6, such in the section 106 process. The Indian tribe or Native Hawaiian a programmatic agreement executed agency official may invite others to organization identified pursuant to§ pursuant to§800.14(b),or the participate as consulting parties as the 800.3(f)to assist in identifying documents used by an agency official to section 106 process moves forward, properties,including those located off comply with the National (1)Involving local governments and tribal lands,which may be of religious Environmental Policy Act pursuant to§ applicants. The agency official shall and cultural significance to them and 800.8. The process should establish the invite any local governments or may be eligible for the National Register, likely presence of historic properties applicants that are entitled to be recognizing that an Indian tribe or within the area of potential effects for consulting parties under§800.2(c). Native Hawaiian organization may be each alternative or inaccessible area (2)Involving Indian tribes and reluctant to divulge specific information through background research, Native Hawaiian organizations. The regarding the location,nature,and consultation and an appropriate level of agency official shall make a reasonable activities associated with such sites. field investigation,taking into account and good faith effort to identify any The agency official should address the number of alternatives under Indian tribes or Native Hawaiian concerns raised about confidentiality consideration,the magnitude of the organizations that might attach religious pursuant to§800.11(c). undertaking and its likely effects,and and cultural significance to historic (b)Identify historic properties. Based the views of the SHPO/THPO and any properties in the area of potential effects on the information gathered under other consulting parties. As specific and invite them to be consulting parties. paragraph(a)of this section,and in aspects or locations of an alternative are Such Indian tribe or Native Hawaiian consultation with the SHPO/THPO and refined or access is gained,the agency organization that requests in writing to any Indian tribe or Native Hawaiian official shall proceed with the be a consulting party shall be one, organization that might attach religious identification and evaluation of historic (3)Requests to be consulting parties. and cultural significance to properties properties in accordance with The agency official shall consider all within the area of potential effects,the paragraphs(b)(1)and(c)of this section. .written requests-of individuals and- agency official shall take the steps (c)Evaluate historic sign Cance.__ - -- - -- - organizations to participate as necessary to identify historic properties (1)Apply National Register criteria. consulting parties and,in consultation within the area of potential effects. In consultation with the SHPO/THPO with the SHPO/THPO and any Indian (1)Level of effort. The agency and any Indian tribe or Native Hawaiian tribe upon whose tribal lands an official shall make a reasonable and organization that attaches religious and undertaking occurs or affects historic good faith effort to carry out appropriate cultural significance to identified properties,determine which should be identification efforts,which may properties and guided by the Secretary's consulting parties. include background research, Standards and Guidelines for consultation,oral history interviews, Evaluation,the agency official shall 94 5 apply the National Register criteria(36 (ii)If the SHPO/THPO objects accordance with the revised finding.If CFR part 63)to properties identified within 30 days of receipt of an the final decision of the agency is to within the area of potential effects that adequately documented finding,the affirm the initial agency finding of no have not been previously evaluated for agency official shall either consult with historic properties affected,once the National Register eligibility. The the objecting party to resolve the summary of the decision has been sent passage of time,changing perceptions of disagreement,or forward the finding to the Council,the SHPO/THPO,and significance,or incomplete prior and supporting documentation to the the consulting parties,the agency evaluations may require the agency Council and request that the Council official's responsibilities under section official to reevaluate properties review the finding pursuant to 106 are fulfilled. previously determined eligible or paragraphs(d)(1)(iv)(A)through (D)The Council shall retain a record ineligible. The agency official shall (d)(1)(iv)(C)of this section.When an of agency responses to Council opinions acknowledge that Indian tribes and agency official forwards such requests on their findings of no historic Native Hawaiian organizations possess for review to the Council,the agency properties affected.The Council shall special expertise in assessing the official shall concurrently notify all make this information available to the eligibility of historic properties that may consulting parties that such a request public. possess religious and cultural has been made and make the request (2)Historic properties affected_If the significance to them. documentation available to the public. agency official finds that there are (2)Determine whether a property is (iii)During the SHPO/THPO 30 day historic properties which may be eligible. If the agency official review period,the Council may object to affected by the undertaking,the agency determines any of the National Register the finding and provide its opinion official shall notify all consulting criteria are met and the SHPO/THPO regarding the finding to the agency parties,including Indian tribes or agrees,the property shall be considered official and,if the Council determines Native Hawaiian organizations,invite eligible for the National Register for the issue warrants it,the head of the their views on the effects and assess section 106 purposes. If the agency agency.A Council decision to provide adverse effects,if any, in accordance official determines the criteria are not its opinion to the head of an agency with 800.5. met and the SHPO/THPO agrees,the shall be guided by the criteria in property shall be considered not appendix A to this part.The agency §800.5 Assessment of adverse effects. eligible.If the agency official and the shall then proceed according to (a)Apply criteria of adverse effect. In SHPO/THPO do not agree,or if the paragraphs(d)(1)(iv)(B)and(d)(1)(iv)(C) consultation with the SHPO/THPO and Council or the Secretary so request,the of this section. any Indian tribe or Native Hawaiian agency official shall obtain a (iv)(A)Upon receipt of the request organization that attaches religious and determination of eligibility from the under paragraph(d)(1)(ii)of this cultural significance to identified Secretary pursuant to 36 CFR part 63. If section,the Council will have 30 days in historic properties,the agency official an Indian tribe or Native Hawaiian which to review the finding and provide shall apply the criteria of adverse effect organization that attaches religious and the agency official and,if the Council to historic properties within the area of cultural significance to aproperty off determines the issue warrants it,the potential effects. The agency official tribal lands does not agree,it may ask head of the agency with the Council's shall consider any views concerning the Council to request the agency opinion regarding the finding.A such effects which have been provided official to obtain a determination of Council decision to provide its opinion by consulting parties and the public. eligibility. to the head of an agency shall be guided (1)Criteria of adverse effect. An (d)Results of identification and by the criteria in appendix A to this adverse effect is found when an evaluation. part.If the Council does not respond undertaking may alter,directly or (1)No historic properties affected.If within 30 days of receipt of the request, indirectly,any of the characteristics of a the agency official finds that either there the agency official's responsibilities historic property that qualify the are no historic properties present or under section 106 are fulfilled. property for inclusion in the National there are historic properties present but (B)The person to whom the Council Register in a manner that would the undertaking will have no effect addresses its opinion(the agency official diminish the integrity of the property's upon them as defined in§800.16(i),the or the head of the agency)shall take into location,design,setting,materials, agency official shall provide account the Council's opinion before the workmanship,feeling,or association. documentation of this finding,as set agency reaches a final decision on the Consideration shall be given to all forth in§800.11(d),to the SHPO/THPO. finding. qualifying characteristics of a historic The agency official shall notify all (C)The person to whom the Council property,including those that may have consulting parties,including Indian addresses its opinion(the agency official been identified subsequent to the tribes and Native Hawaiian or the head of the agency)shall then original evaluation of the property's organizations,and make the prepare a summary of the decision that eligibility for the National Register. documentation available for public contains the rationale for the decision Adverse effects may include reasonably -inspection-prior-to-approving the _ and evidence of consideration of the __foreseeable_effects-caused_hy_the- _- undertaking. Council's opinion,and provide it to the undertaking that may occur later in (i)If the SHPO/THPO,or the Council,the SHPO/THPO,and the time,be farther removed in distance or Council if it has entered the section 106 consulting parties.The head of the be cumulative. process,does not object within 30 days agency may delegate his or her duties (2)Examples of adverse effects. of receipt of an adequately documented under this paragraph to the agency's Adverse effects on historic properties inding,the agency official's senior policy official.If the agency include,but are not limited to: responsibilities under section 106 are official's initial finding will be revised, (i)Physical destruction of or damage fulfilled. the agency official shall proceed in to all or part of the property; 95 6 (ii)Alteration of a property, (1)Agreement with,or no objection been correctly applied,A Council including restoration,rehabilitation, to,finding.Unless the Council is decision to provide its opinion to the repair,maintenance,stabilization, reviewing the finding pursuant to head of an agency shall be guided by the hazardous material remediation and paragraph(c)(3)of this section,the criteria in appendix A to this part.The provision of handicapped access,that is agency official may proceed after the Council will provide its opinion within not consistent with the Secretary's close of the 30 day review period if the 15 days of receiving the documented Standards for the Treatment of Historic SHPO/THPO has agreed with the finding from the agency official.The Properties (36 CFR part 68)and finding or has not provided a response, Council at its discretion may extend that applicable guidelines; and no consulting party has objected, time period for 15 days,in which case it (iii)Removal of the property from its The agency official shall then carry out shall notify the agency of such historic location; the undertaking in accordance with extension prior to the end of the initial (iv)Change of the character of the paragraph(d)(1)of this section. 15 day period.If the Council does not property's use or of physical features (2)Disagreement with finding. respond within the applicable time within the property's setting that (i)If within the 30 day review period period,the agency official's contribute to its historic significance; the SHPO/THPO or any consulting party responsibilities under section 106 are (v)Introduction of visual, notifies the agency official in writing fulfilled. atmospheric or audible elements that that it disagrees with the finding and (ii)(A)The person to whom the diminish the integrity of the property's specifies the reasons for the Council addresses its opinion(the significant historic features; disagreement in the notification,the agency official or the head of the (vi)Neglect of a property which agency official shall either consult with agency)shall take into account the causes its deterioration,except where the party to resolve the disagreement,or Council's opinion in reaching a final such neglect and deterioration are request the Council to review the decision on the finding. recognized qualities of a property of finding pursuant to paragraphs(c)(3)(i) (B)The person to whom the Council religious and cultural significance to an and(c)(3)(ii)of this section.The agency addresses its opinion(the agency official Indian tribe or Native Hawaiian official shall include with such request or the head of the agency)shall prepare organization;and the documentation specified in§ a summary of the decision that contains (vii)Transfer,lease,or sale of 800.11(e).The agency official shall also the rationale for the decision and property out of Federal ownership or concurrently notify all consulting evidence of consideration of the control without adequate and legally parties that such a submission has been Council's opinion,and provide it to the enforceable restrictions or conditions to made and make the submission Council,the SHPO/THPO,and the ensure long-term preservation of the documentation available to the public, consulting parties.The head of the property's historic significance. (ii)If within the 30 day review agency may delegate his or her duties (3)Phased application of criteria. period the Council provides the agency under this paragraph to the agency's Where alternatives under consideration official and,if the Council determines senior policy official.If the agency consist of corridors or large land areas, the issue warrants it,the head of the official's initial finding will be revised, or where access to properties is agency,with a written opinion objecting the agency official shall proceed in restricted, the agency official may use a to the finding,the agency shall then accordance with the revised finding.If phased process in applying the criteria proceed according to paragraph(c)(3)(ii) the final decision of the agency is to of adverse effect consistent with phased of this section.A Council decision to affirm the initial finding of no adverse identification and evaluation efforts provide its opinion to the head of an effect,once the summary of the decision conducted pursuant to§800:4(b)(2), agency shall be guided by the criteria in has been sent to the Council,the (b)Finding of no adverse effect. The appendix A to this part. SHPO/THPO,and the consulting parties, agency official,in consultation with the (iii)The agency official should seek the agency official's responsibilities SHPO/THPO,may propose a finding of the concurrence of any Indian tribe or under section 106 are fulfilled. no adverse effect when the Native Hawaiian organization that has (C)The Council shall retain a record undertaking's effects do not meet the made known to the agency official,that of agency responses to Council opinions criteria of paragraph(a)(1)of this it attaches religious and cultural on their findings of no adverse effects. section or the undertaking is modified significance to a historic property The Council shall make this information or conditions are imposed,such as the subject to the finding.If such Indian available to the public. subsequent review of plans for tribe or Native Hawaiian organization (d)Results of assessment. rehabilitation by the SHPO/THPO to disagrees with the finding,it may within (1)No adverse effect. The agency ensure consistency with the Secretary's the 30 day review period specify the official shall maintain a record of the Standards for the Treatment of Historic reasons for disagreeing with the finding finding and provide information on the Properties (36 CFR part 68)and and request the Council to review and finding to the public on request, applicable guidelines,to avoid adverse object to the finding pursuant to consistent with the confidentiality effects, paragraph(c)(2)(ii)of this section, provisions of§800.11(c). (c)Consulting party review. If the (3)Council review offindings, Implementation of the-undertakingin agency official proposes a finding of no (i)When a finding is submitted to accordance with the finding as adverse effect,the agency official shall the Council pursuant to paragraph documented fulfills the agency official's notify all consulting parties of the (c)(2)(i)of this section,the Council shall responsibilities under section 106 and finding and provide them with the review the finding and provide the this part. If the agency official will not documentation specified in§800.11(e). agency official and,if the Council conduct the undertaking as proposed in The SHPO/THPO shall have 30 days determines the issue warrants it,the the finding,the agency official shall from receipt to review the finding, head of the agency with its opinion as to reopen consultation under paragraph(a) whether the adverse effect criteria have of this section. 96 7 (2)Adverse effect. If an adverse in a memorandum of agreement to effects will be resolved;they shall effect is found,the agency official shall participate as a consulting party. execute a memorandum of agreement. consult further to resolve the adverse (3)Provide documentation. The The agency official must submit a copy effect pursuant to§800.6. agency official shall provide to all of the executed memorandum of consulting parties the documentation agreement,along with the §800.6 Resolution of adverse effects. specified in§800.11(e),subject to the documentation specified in§800.11(f), (a) Continue consultation. The confidentiality provisions of§800.11(c), to the Council prior to approving the agency official shall consult with the and such other documentation as may undertaking in order to meet the SHPO/THPO and other consulting be developed during the consultation to requirements of section 106 and this parties,including Indian tribes and resolve adverse effects. subpart. Native Hawaiian organizations,to (4)Involve the public.The agency (v)If the agency official,and the develop and evaluate alternatives or official shall make information available SHPO/THPO fail to agree on the terms modifications to the undertaking that to the public,including the of a memorandum of agreement,the could avoid,minimize or mitigate documentation specified in§800.11(e), agency official shall request the Council adverse effects on historic properties, subject to the confidentiality provisions to join the consultation and provide the (1)Notify the Council and determine of§800.11(c). The agency official shall Council with the documentation set Council participation. The agency provide an opportunity for members of forth in§800.11(g). If the Council official shall notify the Council of the the public to express their views on decides to join the consultation,the adverse effect finding by providing the resolving adverse effects of the agency official shall proceed in documentation specified in§800.11(e). undertaking. The agency official should accordance with paragraph(b)(2)of this (i)The notice shall invite the use appropriate mechanisms,taking into section.If the Council decides not to Council to participate in the account the magnitude of the join the consultation,the Council will consultation when: undertaking and the nature of its effects notify the agency and proceed to (A)The agency official wants the upon historic properties,the likely comment in accordance with§800.7(c). Council to participate; effects on historic properties,and the (2)Resolution with Council (B)The undertaking has an adverse relationship of the Federal involvement participation.If the Council decides to effect upon a National Historic to the undertaking to ensure that the participate in the consultation,the Landmark;or public's views are considered in the agency official shall consult with the (C)A programmatic agreement consultation. The agency official SHPO/THPO,the Council,and other under§800.14(b)will be prepared; should also consider the extent of notice consulting parties,including Indian (ii)The SHPO/THPO,an Indian tribe and information concerning historic tribes and Native Hawaiian or Native Hawaiian organization,or any preservation issues afforded the public organizations under§800.2(c)(3),to other consulting party may at any time at earlier steps in the section 106 seek ways to avoid,minimize or independently request the Council to process to determine the appropriate mitigate the adverse effects. If the participate in the consultation. level of public involvement when agency official,the SHPO/THPO,and (iii)The Council shall advise the resolving adverse effects so that the the Council agree on how the adverse agency official and all consulting parties standards of§800.2(d)are met. effects will be resolved,they shall whether it will participate within 15 (5)Restrictions on disclosure of execute a memorandum of agreement. days of receipt of notice or other information. Section 304 of the act and (c)Memorandum of agreement. A request. Prior to entering the process, other authorities may limit the memorandum of agreement executed the Council shall provide written notice disclosure of information under and implemented pursuant to this to the agency official and the consulting paragraphs(a)(3)and(a)(4)of this section evidences the agency official's parties that its decision to participate section. If an Indian tribe or Native compliance with section 106 and this meets the criteria set forth in appendix Hawaiian organization objects to the part and shall govern the undertaking A to this part. The Council shall also disclosure of information or if the and all of its parts. The agency official advise the head of the agency of its agency official believes that there are shall ensure that the undertaking is decision to enter the process. other reasons to withhold information, carried out in accordance with the Consultation with Council participation the agency official shall comply with§ memorandum of agreement. is conducted in accordance with 800.11(c)regarding the disclosure of (1)Signatories. The signatories have paragraph(b)(2)of this section, such information, sole authority to execute,amend or (iv)If the Council does not join the (b)Resolve adverse effects. terminate the agreement in accordance consultation,the agency official shall (1)Resolution without the Council. with this subpart. proceed with consultation in (i) The agency official shall consult (i)The agency official and the accordance with paragraph(b)(1)of this with the SHPO/THPO and other SHPO/THPO are the signatories to a section. consulting parties to seek ways to avoid, memorandum of agreement executed (2)Involve consulting parties. In minimize or mitigate the adverse effects. pursuant to paragraph(b)(1)of this addition to the consulting parties (ii)The agency official may use section. - - - identified under§800.3(0,the agency standard treatments established by the (ii)The agency official,the official,the SHPO/THPO and the Council under§800.14(d)as a basis for SHPO/THPO,and the Council are the Council,if participating,may agree to a memorandum of agreement. signatories to a memorandum of invite other individuals or organizations (iii)If the Council decides to join the agreement executed pursuant to to become consulting parties.The consultation,the agency official shall paragraph(b)(2)of this section. agency official shall invite any follow paragraph(b)(2)of this section. (iii)The agency official and the individual or organization that will (iv)If the agency official and the Council are signatories to a assume a specific role or responsibility SHPO/THPO agree on how the adverse 97 8 memorandum of agreement executed shall consult to seek amendment of the agency official when it executes the pursuant to§800.7(a)(2). agreement. If the agreement is not memorandum of agreement. (2)Invited signatories, amended,any signatory may terminate (c)Comments by the Council. (i)The agency official may invite it. The agency official shall either (1)Preparation. The Council shall additional parties to be signatories to a execute a memorandum of agreement provide an opportunity for the agency memorandum of agreement. Any such with signatories under paragraph(c)(1) official,all consulting parties,and the party that signs the memorandum of of this section or request the comments public to provide their views within the agreement shall have the same rights of the Council under§800.7(a). time frame for developing its comments. with regard to seeking amendment or (9)Copies. The agency official shall Upon request of the Council,the agency termination of the memorandum of provide each consulting party with a official shall provide additional existing agreement as other signatories, copy of any memorandum of agreement information concerning the undertaking (ii)The agency official may invite an executed pursuant to this subpart. and assist the Council in arranging an Indian tribe or Native Hawaiian onsite inspection and an opportunity for organization that attaches religious and §800.7 Failure to resolve adverse public participation. cultural significance to historic effects. (2) Timing. The Council shall properties located off tribal lands to be a (a)Termination of consultation. transmit its comments within 45 days of signatory to a memorandum of After consulting to resolve adverse receipt of a request under paragraph agreement concerning such properties. effects pursuant to§800.6(b)(2),the (a)(1)or(a)(3)of this section or§ (iii)The agency official should agency official,the SHPO/THPO,or the 800.8(c)(3),or termination by the invite any party that assumes a Council may determine that further Council under§800.6(b)(1)(v)or responsibility under a memorandum of consultation will not be productive and paragraph(a)(4)of this section,unless agreement to be a signatory. terminate consultation. Any party that otherwise agreed to by the agency (iv)The refusal of any party invited terminates consultation shall notify the official. to become a signatory to a memorandum other consulting parties and provide (3) Transmittal. The Council shall of agreement pursuant to paragraph them the reasons for terminating in provide its comments to the head of the (c)(2)of this section does not invalidate writing, agency requesting comment with copies the memorandum of agreement. (1) If the agency official terminates to the agency official,the agency's (3)-Concurrence by others.The consultation,the head of the agency or Federal preservation officer,all agency official may invite all consulting an Assistant Secretary or other officer consulting parties,and others as parties to concur in the memorandum of with major department-wide or agency- appropriate. agreement.The signatories may agree to wide responsibilities shall request that (4)Response to Council comment. invite others to concur. The refusal of the Council comment pursuant to The head of the agency shall take into any party invited to concur in the paragraph(c)of this section and shall account the Council's comments in memorandum of agreement does not notify all consulting parties of the reaching a final decision on the invalidate the memorandum of request, undertaking. Section 110(1)of the act agreement. (2) If the SHPO terminates directs that the head of the agency shall (4)Reports on implementation, consultation,the agency official and the document this decision and may not Where the signatories agree it is Council may execute a memorandum of delegate his or her responsibilities appropriate,a memorandum of agreement without the SHPO's pursuant to section 106.Documenting agreement shall include a provision for involvement, the agency head's decision shall monitoring and reporting on its (3) If a THPO terminates include, implementation. consultation regarding an undertaking (i)Preparing a summary of the (5)Duration. A memorandum of occurring on or affecting historic decision that contains the rationale for_ agreement shall include provisions for properties on its tribal lands,the the decision and evidence of termination and for reconsideration of Council shall comment pursuant to consideration of the Council's comments terms if the undertaking has not been paragraph(c)of this section. and providing it to the Council prior to implemented within a specified time. (4) If the Council terminates approval of the undertaking; (6)Discoveries. Where the consultation,the Council shall notify (ii)Providing a copy of the summary signatories agree it is appropriate,a the agency official,the agency's Federal to all consulting parties;and memorandum of agreement shall preservation officer and all consulting (iii)Notifying the public and making include provisions to deal with the parties of the termination and comment the record available for public subsequent discovery or identification under paragraph(c)of this section. The inspection. of additional historic properties affected Council may consult with the agency's by the undertaking. Federal preservation officer prior to §800.8 Coordination With the (7)Amendments. The signatories to terminating consultation to seek to National Environmental Policy Act. a memorandum of agreement may resolve issues concerning the (a)General principles. amend it. If the Council wasnot_a_ undertaking and itseffectsonhistoric (1)Early coordination.Federal--- - - signatory to the original agreement and properties. agencies are encouraged to coordinate the signatories execute an amended (b)Comments without termination. compliance with section 106 and the agreement,the agency official shall file The Council may determine that it is procedures in this part with any steps it with the Council. appropriate to provide additional taken to meet the requirements of the (8)Termination. If any signatory advisory comments upon an National Environmental Policy Act determines that the terms of a undertaking for which a memorandum (NEPA). Agencies should consider their memorandum of agreement cannot be or of agreement will be executed. The section 106 responsibilities as early as are not being carried out,the signatories Council shall provide them to the possible in the NEPA process,and plan 98 9 • their public participation,analysis,and (i)Identify consulting parties either (3)Resolution of objections.Within review in such a way that they can meet pursuant to§800.3(f)or through the 30 days of the agency official's referral the purposes and requirements of both NEPA scoping process with results of an objection under paragraph statutes in a timely and efficient consistent with§800.3(f); (c)(2)(ii)of this section,the Council manner. The determination of whether (ii)Identify historic properties and shall review the objection and notify the an undertaking is a"major Federal assess the effects of the undertaking on agency as to its opinion on the action significantly affecting the quality such properties in a manner consistent objection. of the human environment,"and with the standards and criteria of§§ (i)If the Council agrees with the therefore requires preparation of an 800.4 through 800.5,provided that the objection: environmental impact statement(EIS) scope and timing of these steps may be (A)The Council shall provide the under NEPA,should include phased to reflect the agency official's agency official and,if the Council consideration of the undertaking's likely consideration of project alternatives in determines the issue warrants it,the effects on historic properties. A finding the NEPA process and the effort is head of the agency with the Council's of adverse effect on a historic property commensurate with the assessment of opinion regarding the objection.A does not necessarily require an EIS other environmental factors; Council decision to provide its opinion under NEPA. (iii) Consult regarding the effects of to the head of an agency shall be guided (2)Consulting party roles, the undertaking on historic properties by the criteria in appendix A to this SHPO/THPOs,Indian tribes and Native with the SHPO/THPO,Indian tribes and part.The person to whom the Council Hawaiian organizations,other Native Hawaiian organizations that addresses its opinion(the agency official consulting parties, and organizations might attach religious and cultural or the head of the agency)shall take into and individuals who may be concerned significance to affected historic account the Council's opinion in with the possible effects of an agency properties,other consulting parties,and reaching a final decision on the issue of action on historic properties should be the Council,where appropriate,during the objection. prepared to consult with agencies early NEPA scoping,environmental analysis, (B)The person to whom the Council in the NEPA process,when the purpose and the preparation of NEPA addresses its opinion(the agency official of and need for the proposed action as documents; or the head of the agency)shall prepare well as the widest possible range of (iv) Involve the public in a summary of the decision that contains alternatives are under consideration. accordance with the agency's published the rationale for the decision and (3)Inclusion of historic preservation NEPA procedures; and evidence of consideration of the issues. Agency officials should ensure (v)Develop in consultation with Council's opinion,and provide it to the that preparation of an environmental identified consulting parties alternatives Council.The head of the agency may • assessment(EA)and finding of no and proposed measures that might delegate his or her duties under this significant impact(FONSI)or an EIS avoid,minimize or mitigate any adverse paragraph to the agency's senior Policy and record of decision(ROD)includes effects of the undertaking on historic Official.If the agency official's initial appropriate scoping,identification of properties and describe them in the EA decision regarding the matter that is the historic properties,assessment of effects or DEIS. subject of the objection will be revised, upon them,and consultation leading to (2)Review of environmental the agency official shall proceed in resolution of any adverse effects. documents, accordance with the revised decision.If (b)Actions categorically excluded (i)The agency official shall submit the final decision of the agency is to under NEPA. If a project,activity or the EA,DEIS or EIS to the SHPO/THPO, affirm the initial agency decision,once program is categorically excluded from Indian tribes and Native Hawaiian the summary of the final decision has NEPA review under an agency's NEPA organizations that might attach religious been sent to the Council,the agency procedures,the agency official shall and cultural significance to affected official shall continue its compliance determine if it still qualifies as an historic properties,and other consulting with this section. undertaking requiring review under parties prior to or when making the (ii)If the Council disagrees with the section 106 pursuant to§800.3(a). If so, document available for public comment. objection,the Council shall so notify the the agency official shall proceed with If the document being prepared is a agency official,in which case the section 106 review in accordance with DEIS or EIS,the agency official shall agency official shall continue its the procedures in this subpart. also submit it to the Council. compliance with this section. (c) Use of the NEPA process for (ii)Prior to or within the time (iii)If the Council fails to respond to section 106 purposes. An agency official allowed for public comment on the the objection within the 30 day period, may use the process and documentation document,a SHPO/THPO,an Indian the agency official shall continue its required for the preparation of an tribe or Native Hawaiian organization, compliance with this section. EA/FONSI or an EIS/ROD to comply another consulting party or the Council (4)Approval of the undertaking.If with section 106 in lieu of the may object to the agency official that the agency official has found,during the procedures set forth in§§800.3 through preparation of the EA,DEIS or EIS has preparation of an EA or EIS that the -800.6-if-the-agency official has notified -- notmetthe-standards-set forthin -- effects of-an-undertaking onhistoric -- -- in advance-the SHPO/THPO and the paragr— h(c)(1}-f this section or that properties are adverse,the agency Council that it intends io do so and the' the substantive resolution of the effects official shall develop measures in the following standards are met. on historic properties proposed in an EA,DEIS,or EIS to avoid,minimize,or (1)Standards for developing EA,DEIS or EIS is inadequate.If the mitigate such effects in accordance with environmental documents to comply with agency official receives such an paragraph(c)(1)(v)of this section. The Section 106. During preparation of the objection,the agency official shall refer agency official's responsibilities under . EA or draft EIS(DEIS)the agency the matter to the Council, section 106 and the procedures in this official shall: 99 10 subpart shall then be satisfied when agency official and the head of the the Council,determines to grant the either: agency.The Council shall also make the assistance,the agency official shall (i)a binding commitment to such determination available to the public comply with§§800.3 through 800.6 to proposed measures is incorporated in and any parties known to be interested take into account the effects of the (A)the ROD,if such measures were in the undertaking and its effects upon undertaking on any historic properties. proposed in a DEIS or EIS;or historic properties. (d)Evaluation of Section 106 (B)an MOA drafted in compliance (c)Intentional adverse effects by operations. The Council may evaluate with§800.6(c);or applicants. the operation of the section 106 process (ii)the Council has commented (1)Agency responsibility. Section by periodic reviews of how participants under§800.7 and received the agency's 110(k)of the act prohibits a Federal have fulfilled their legal responsibilities response to such comments. agency from granting a loan,loan and how effectively the outcomes (5)Modification of the undertaking. guarantee,permit,license or other reached advance the purposes of the act. If the undertaking is modified after assistance to an applicant who,with (1)Information from participants. approval of the FONSI or the ROD in a intent to avoid the requirements of Section 203 of the act authorizes the manner that changes the undertaking or section 106,has intentionally Council to obtain information from alters its effects on historic properties, significantly adversely affected a Federal agencies necessary to conduct or if the agency official fails to ensure historic property to which the grant evaluation of the section 106 process. that the measures to avoid,minimize or would relate,or having legal power to The agency official shall make mitigate adverse effects(as specified in prevent it,has allowed such significant documentation of agency policies, either the FONSI or the ROD,or in the adverse effect to occur,unless the operating procedures and actions taken binding commitment adopted pursuant agency,after consultation with the to comply with section 106 available to to paragraph(c)(4)of this section)are Council,determines that circumstances the Council upon request. The Council carried out,the agency official shall justify granting such assistance despite may request available information and notify the Council and all consulting the adverse effect created or permitted documentation from other participants parties that supplemental by the applicant. Guidance issued by in the section 106 process. environmental documents will be the Secretary pursuant to section 110 of (2)Improving the operation of section prepared in compliance with NEPA or the act governs its implementation. 106. Based upon any evaluation of the that the procedures in§§800.3 through (2)Consultation with the Council. section 106 process,the Council may 800.6 will be followed as necessary. When an agency official determines, make recommendations to participants, based on the actions of an applicant, the heads of Federal agencies,and the §800.9 Council review of section 106 that section.110(k)is applicable and that Secretary of actions to improve the compliance. circumstances may justify granting the efficiency and effectiveness of the (a)Assessment of agency official assistance,the agency official shall process. Where the Council determines compliance for individual undertakings. notify the Council and provide that an agency official or a SHPO/THPO The Council may provide to the agency documentation specifying the has failed to properly carry out the official its advisory opinion regarding circumstances under which the adverse responsibilities assigned under the the substance of any finding, effects to the historic property occurred process in this part,the Council may determination or decision or regarding and the degree of damage to the participate in individual case reviews the adequacy of the agency official's integrity of the property. This conducted under such process in compliance with the procedures under documentation shall include any views addition to the SHPO/THPO for such this part. The Council may provide obtained from the applicant, period that it determines is necessary to such advice at any time at the request of SHPO/THPO, an Indian tribe if the improve performance or correct any individual,agency or organization undertaking occurs on or affects historic deficiencies. If the Council finds a or on its own initiative.The agency properties on tribal lands,and other pattern of failure by a Federal agency in official shall consider the views of the parties known to be interested in the carrying out its responsibilities under Council in reaching a decision on the undertaking. section 106,the Council may review the matter in question. (i) Within thirty days of receiving policies and programs of the agency (b)Agency foreclosure of the the agency official's notification,unless related to historic preservation pursuant Council's opportunity to comment. otherwise agreed to by the agency to section 202(a)(6)of the act and Where an agency official has failed to official,the Council shall provide the recommend methods to improve the complete the requirements of section agency official with its opinion as to effectiveness,coordination,and 106 in accordance with the procedures whether circumstances justify granting consistency of those policies and in this part prior to the approval of an assistance to the applicant and any programs with section 106. undertaking,the Council's opportunity possible mitigation of the adverse to comment may be foreclosed. The effects. §800.10 Special requirements for Council may review a case to determine (ii) The agency official shall protecting National Historic whether foreclosure has occurred. consider the Council's opinion-in Landmarks. - ------- The-Council shall notify the agency making a decision on whethei to grant (a)Statutory requirement. Section official and the agency's Federal assistance to the applicant,and shall 110(f)of the act requires that the agency preservation officer and allow 30 days notify the Council,the SHPO/THPO, official,to the maximum extent for the agency official to provide and other parties known to be interested possible,undertake such planning and information as to whether foreclosure in the undertaking prior to granting the actions as may be necessary to minimize has occurred. If the Council determines assistance. harm to any National Historic Landmark foreclosure has occurred,the Council (3)Compliance with Section 106. If that may be directly and adversely shall transmit the determination to the an agency official,after consulting with affected by an undertaking.When 100 11 commenting on such undertakings,the requirements of the procedures in this (3)The basis for determining that no Council shall use the process set forth in subpart,if that documentation meets the historic properties are present or §§ 800.6 through 800.7 and give special standards of this section. affected, consideration to protecting National (c)Confidentiality. (e)Finding of no adverse effect or Historic Landmarks as specified in this (1)Authority to withhold information. adverse effect. Documentation shall section. Section 304 of the act provides that the include: (b)Resolution of adverse effects.The head of a Federal agency or other public (1)A description of the undertaking, agency official shall request the Council official receiving grant assistance specifying the Federal involvement,and to participate in any consultation to pursuant to the act,after consultation its area of potential effects,including resolve adverse effects on National with the Secretary,shall withhold from photographs,maps,and drawings,as Historic Landmarks conducted under§ public disclosure information about the necessary; 800.6. location,character,or ownership of a (2)A description of the steps taken (c)Involvement of the Secretary.The historic property when disclosure may to identify historic properties; agency official shall notify the Secretary cause a significant invasion of privacy; (3)A description of the affected of any consultation involving a National risk harm to the historic property;or historic properties,including Historic Landmark and invite the impede the use of a traditional religious information on the characteristics that Secretary to participate in the site by practitioners. When the head of qualify them for the National Register; consultation where there may be an a Federal agency or other public official (4)A description of the adverse effect. The Council may request has determined that information should undertaking's effects on historic a report from the Secretary under be withheld from the public pursuant to properties; section 213 of the act to assist in the these criteria,the Secretary,in (5)An explanation of why the consultation, consultation with such Federal agency criteria of adverse effect were found (d)Report of outcome. When the head or official,shall determine who applicable or inapplicable,including Council participates in consultation may have access to the information for any conditions or future actions to under this section,it shall report the the purposes of carrying out the act. avoid,minimize or mitigate adverse' outcome of the section 106 process, (2) Consultation with the Council effects;and providing its written comments or any When the information in question has (6)Copies or summaries of any memoranda of agreement to which it is been developed in the course of an views provided by consulting parties a signatory,to the Secretary and the agency's compliance with this part,the and the public. head of the agency responsible for the Secretary shall consult with the Council (f)Memorandum of agreement. undertaking, in reaching determinations on the When a memorandum of agreement is • withholding and release of information. filed with the Council,the §800.11 Documentation standards. The Federal agency shall provide the documentation shall include,any (a)Adequacy of documentation. The Council with available information, substantive revisions or additions to the agency official shall ensure that a including views of the SHPO/THPO, documentation provided the Council determination,finding,or agreement Indian tribes and Native Hawaiian pursuant to§800.6(a)(1),an evaluation under the procedures in this subpart is organizations,related to the of any measures considered to avoid or supported by sufficient documentation confidentiality concern. The Council minimize the undertaking's adverse to enable any reviewing parties to shall advise the Secretary and the effects and a summary of the views of understand its basis. The agency Federal agency within 30 days of receipt consulting parties and the public. official shall provide such of adequate documentation. (g)Requests for comment without a documentation to the extent permitted (3) Other authorities affecting memorandum of agreement. by law and within available funds. confidentiality. Other Federal laws and Documentation shall include: When an agency official is conducting program requirements may limit public (1)A description and evaluation of phased identification or evaluation access to information concerning an any alternatives or mitigation measures under this subpart,the documentation undertaking and its effects on historic that the agency official proposes to standards regarding description of properties. Where applicable,those resolve the undertaking's adverse historic properties may be applied authorities shall govern public access to effects; flexibly. If the Council,or the information developed in the section (2)A description of any reasonable SHPO/THPO when the Council is not 106 process and may authorize the alternatives or mitigation measures that involved,determines the applicable agency official to protect the privacy of were considered but not chosen,and the documentation standards are not met, non-governmental applicants. reasons for their rejection; the Council or the SHPO/THPO,as (d)Finding of no historic properties (3)Copies or summaries of any appropriate,shall notify the agency affected. Documentation shall include: views submitted to the agency official official and specify the information (1)A description of the undertaking, concerning the adverse effects of the needed to meet the standard. At the specifying the Federal involvement,and undertaking on historic properties and request of the agency official or any of its area of potential_effects,including _ alternatives to reduce or avoid those_- the consulting parties,the Council shall photographs,maps,drawings,as effects;and review any disputes over whether necessary; (4)Any substantive revisions or documentation standards are met and (2)A-description of the steps taken additions to the documentation provide its views to the agency official to identify historic properties, provided the Council pursuant to§ and the consulting parties. including,as appropriate,efforts to seek 800.6(a)(1). (b)Format. The agency official may information pursuant to§800.4(b);and • use documentation prepared to comply §800.12 Emergency situations. with other laws to fulfill the 101 12 (a)Agency procedures. The agency (d)Applicability. This section Archeological and Historic Preservation i official,in consultation with the applies only to undertakings that will be Act instead of the procedures in this appropriate SHPOs/THPOs,affected implemented within 30 days after the part and provide the Council,the Indian tribes and Native Hawaiian disaster or emergency has been formally SHPO/THPO,and the Indian tribe or organizations,and the Council,is declared by the appropriate authority. Native Hawaiian organization with a encouraged to develop procedures for An agency may request an extension of report on the actions within a taking historic properties into account the period of applicability from the reasonable time after they are during operations which respond to a Council prior to the expiration of the 30 completed;or disaster or emergency declared by the days. Immediate rescue and salvage (3)If the agency official has President,a tribal government,or the operations conducted to preserve life or approved the undertaking and Governor of a State or which respond to property are exempt from the provisions construction has commenced, determine other immediate threats to life or of section 106 and this part. actions that the agency official can take property. If approved by the Council, to resolve adverse effects,and notify the the procedures shall govern the agency's §800.13 Post-review discoveries. SHPO/THPO,any Indian tribe or Native historic preservation responsibilities (a)Planning for subsequent Hawaiian organization that might attach during any disaster or emergency in lieu discoveries. religious and cultural significance to the of§§800.3 through 800.6. (1) Using a programmatic agreement. affected property,and the Council (b)Alternatives to agency procedures. An agency official may develop a within 48 hours of the discovery. The In the event an agency official proposes programmatic agreement pursuant to§ notification shall describe the agency an emergency undertaking as an 800.14(b)to govern the actions to be official's assessment of National Register essential and immediate response to a taken when historic properties are eligibility of the property and proposed disaster or emergency declared by the discovered during the implementation actions to resolve the adverse effects. President,a tribal government,or the of an undertaking. The SHPO/THPO,the Indian tribe or Governor of a State or another (2) Using agreement documents. Native Hawaiian organization and the immediate threat to life or property,and When the agency official's identification Council shall respond within 48 hours the agency has not developed efforts in accordance with§800.4 of the notification. The agency official procedures pursuant to paragraph(a)of indicate that historic properties are shall take into account their this section,the agency official may likely to be discovered during recommendations regarding National comply with section 106 by: implementation of an undertaking and Register eligibility and proposed (1)Following a programmatic no programmatic agreement has been actions,and then carry out appropriate agreement developed pursuant to§ developed pursuant to paragraph(a)(1) actions. The agency official shall 800.14(b) that contains specific of this section,the agency official shall provide the SHPO/THPO,the Indian • provisions for dealing with historic include in any finding of no adverse tribe or Native Hawaiian organization properties in emergency situations;or effect or memorandum of agreement a and the Council a report of the actions (2)Notifying the Council,the process to resolve any adverse effects when they are completed. appropriate SHPO/THPO and any upon such properties. Actions in (c)Eligibility of properties. The Indian tribe or Native Hawaiian conformance with the process satisfy agency official,in consultation with the organization that may attach religious the agency official's responsibilities SHPO/THPO,may assume a newly- and cultural significance to historic under section 106 and this part. discovered property to be eligible for the properties likely to be affected prior to (b)Discoveries without prior National Register for purposes of section the undertaking and affording them an planning. If historic properties are 106. The agency official shall specify opportunity to comment within seven discovered or unanticipated effects on the National Register criteria used to days of notification. If the agency historic properties found after the assume the property's eligibility so that official determines that circumstances agency official has completed the information can be used in the do not permit seven days for comment, section 106 process without establishing resolution of adverse effects. the agency official shall notify the a process under paragraph(a)of this (d)Discoveries on tribal lands. If Council,the SHPO/THPO and the section,the agency official shall make historic properties are discovered on Indian tribe or Native Hawaiian reasonable efforts to avoid,minimize or tribal lands,or there are unanticipated organization and invite any comments mitigate adverse effects to such effects on historic properties found on within the time available. properties and: tribal lands,after the agency official has (c)Local governments responsible for (1)If the agency official has not completed the section 106 process section 106 compliance. When a local approved the undertaking or if without establishing a process under government official serves as the agency construction on an approved paragraph(a)of this section and official for section 106 compliance, undertaking has not commenced, construction has commenced,the paragraphs(a)and(b)of this section consult to resolve adverse effects agency official shall comply with also apply to an imminent threat to pursuant to§800.6;or applicable tribal regulations and public health or safety as a result of a (2)If the agency official,the procedures and obtain the concurrence .natural disaster or emergency declared SHPO/THPO and any Indian tribe or of the Indian tribe on the proposed by a local government's chief executive Native Hawaiian organization that might action. officer or legislative body,provided that attach religious and cultural if the Council or SHPO/THPO objects to significance to the affected property Subpart C-Program Alternatives the proposed action within seven days, agree that such property is of value the agency official shall comply with§§ solely for its scientific,prehistoric, §800.14 Federal agency program 800.3 through 800.6. historic or archeological data,the alternatives. agency official may comply with the 102 13 (a)Alternate procedures. An agency (1) Use of programmatic agreements. it expires or is terminated by the agency, official may develop procedures to A programmatic agreement may be the president of NCSHPO when a implement section 106 and substitute used: signatory,or the Council. Termination them for all or part of subpart B of this (i)When effects on historic by an individual.SHPO/THPO shall only part if they are consistent with the properties are similar and repetitive or terminate the application of a regional Council's regulations pursuant to are multi-State or regional in scope; programmatic agreement within the section 110(a)(2)(E)of the act. (ii)When effects on historic jurisdiction of the SHPO/THPO. If a (1)Development of procedures. The properties cannot be fully determined THPO assumes the responsibilities of a agency official shall consult with the prior to approval of an undertaking; SHPO pursuant to section 101(d)(2)of Council,the National Conference of (iii)When nonfederal parties are the act and the SHPO is signatory to State Historic Preservation Officers or delegated major decisionmaking programmatic agreement,the THPO individual SHPO/THPOs,as responsibilities; assumes the role of a signatory, appropriate,and Indian tribes and (iv)Where routine management including the right to terminate a Native Hawaiian organizations,as activities are undertaken at Federal regional programmatic agreement on specified in paragraph(f)of this section, installations,facilities,or other land- lands under the jurisdiction of the tribe. in the development of alternate management units;or (iv)Notice. The agency official shall procedures,publish notice of the (v)Where other circumstances notify the parties with which it has availability of proposed alternate warrant a departure from the normal consulted that a programmatic procedures in the Federal Register and section 106 process. agreement has been executed under take other appropriate steps to seek (2)Developing programmatic paragraph(b)of this section,provide public input during the development of agreements for agency programs. appropriate public notice before it takes alternate procedures. (i)The consultation shall involve,as effect,and make any internal agency (2) Council review. The agency appropriate,SHPO/THPOs,the National procedures implementing the agreement official shall submit the proposed Conference of State Historic readily available to the Council, alternate procedures to the Council for a Preservation Officers(NCSHPO),Indian SHPO/THPOs,and the public. 60-day review period. If the Council tribes and Native Hawaiian (v)If the Council determines that finds the procedures to be consistent organizations,other Federal agencies, the terms of a programmatic agreement with this part,it shall notify the agency and members of the public. If the are not being carried out,or if such an official and the agency official may programmatic agreement has the agreement is terminated,the agency adopt them as final alternate potential to affect historic properties on official shall comply with subpart B of procedures, tribal lands or historic properties of this part with regard to individual (3)Notice.The agency official shall religious and cultural significance to an undertakings of the program covered by notify the parties with which it has Indian tribe or Native Hawaiian the agreement. consulted and publish notice of final organization,the agency official shall (3)Developing programmatic alternate procedures in the Federal also follow paragraph(f)of this section. agreements for complex or multiple Register. (ii)Public Participation.The agency undertakings. Consultation to develop a (4)Legal effect. Alternate official shall arrange for public programmatic agreement for dealing procedures adopted pursuant to this participation appropriate to the subject with the potential adverse effects of subpart substitute for the Council's matter and the scope of the program and complex projects or multiple regulations for the purposes of the in accordance with subpart A of this undertakings shall follow§800.6. If agency's compliance with section 106, part. The agency official shall consider consultation pertains to an activity except that where an Indian tribe has the nature of the program and its likely involving multiple undertakings and the entered into an agreement with the effects on historic properties and take parties fail to reach agreement,then the Council to substitute tribal historic steps to involve the individuals, agency official shall comply with the preservation regulations for the organizations and entities likely to be provisions of subpart B of this part for Council's regulations under section interested. each individual undertaking. 101(d)(5)of the act,the agency shall (iii)Effect.The programmatic (4)Prototype programmatic follow those regulations in lieu of the agreement shall take effect when agreements. The Council may designate agency's procedures regarding executed by the Council,the agency an agreement document as a prototype undertakings on tribal lands. Prior to official and the appropriate programmatic agreement that may be the Council entering into such SHPOs/THPOs when the programmatic used for the same type of program or agreements,the Council will provide agreement concerns a specific region or undertaking in more than one case or Federal agencies notice and opportunity the president of NCSHPO when area. When an agency official uses such to comment on the proposed substitute NCSHPO has participated in the a prototype programmatic agreement, tribal regulations. consultation. A programmatic the agency official may develop and (b)Programmatic agreements. The agreement shall take effect on tribal execute the agreement with the -Council and the agency official may lands-only when the-THPO,_-Indian appropriate-SHPO/THPO- the- - negotiate a programmatic agreement to tribe or a designated representative of agreement shall become final without govern the implementation of a the tribe is a signatory to the agreement. need for Council participation in particular program or the resolution of Compliance with the procedures consultation or Council signature. adverse effects from certain complex established by an approved (c)Exempted categories. project situations or multiple programmatic agreement satisfies the (1)Criteria for establishing.The undertakings. agency's section 106 responsibilities for Council or an agency official may all individual undertakings of the propose a program or category of program covered by the agreement until undertakings that may be exempted 103 14 from review under the provisions of properties in accordance with section (5)Termination. The Council may subpart B of this part,if the program or 214 of the act. terminate a standard treatment by category meets the following criteria: (6)Legal consequences.Any publication of a notice in the Federal (i)The actions within the program undertaking that falls within an Register 30 days before the termination or category would otherwise qualify as approved exempted program or category takes effect. "undertakings"as defined in§800.16; shall require no further review pursuant (e)Program comments. An agency (ii)The potential effects of the to subpart B of this part,unless the official may request the Council to undertakings within the program or agency official or the Council comment on a category of undertakings category upon historic properties are determines that there are circumstances in lieu of conducting individual reviews foreseeable and likely to be minimal or under which the normally excluded under§§800.4 through 800.6. The not adverse;and undertaking should be reviewed under Council may provide program (iii)Exemption of the program or subpart B of this part, comments at its own initiative. category is consistent with the purposes (7)Termination.The Council may (1)Agency request. The agency of the act. terminate an exemption at the request of official shall identify the category of (2)Public participation.The the agency official or when the Council undertakings,specify the likely effects proponent of the exemption shall determines that the exemption no longer on historic properties,specify the steps arrange for public participation meets the criteria of paragraph(c)(1)of the agency official will take to ensure appropriate to the subject matter and this section.The Council shall notify that the effects are taken into account, the scope of the exemption and in the agency official-30 days before identify the time period for which the accordance with the standards in termination becomes effective, comment is requested and summarize subpart A of this part.The proponent of (8)Notice.The proponent of the any views submitted by the public. the exemption shall consider the nature exemption shall publish notice of any (2)Public participation. The agency of the exemption and its likely effects on approved exemption in the Federal official shall arrange for public historic properties and take steps to Register, participation appropriate to the subject involve individuals,organizations and (d)Standard treatments. matter and the scope of the category and entities likely to be interested. (1)Establishment. The Council,on in accordance with the standards in (3)Consultation with SHPOs/THPOs, its own initiative or at the request of subpart A of this part. The agency The proponent of the exemption shall another party,may establish standard official shall consider the nature of the notify and consider the views of the methods for the treatment of a category undertakings and their likely effects on SHPOs/THPOs on the exemption, of historic properties,a category of historic properties and the individuals, (4)Consultation with Indian tribes undertakings,or a category of effects on organizations and entities likely to be and Native Hawaiian organizations.If historic properties to assist Federal interested. the exempted program or category of agencies in satisfying the requirements (3)Consultation with SHPOsITHPOs. undertakings has the potential to affect of subpart B of this part. The Council The Council shall notify and consider historic properties on tribal lands or shall publish notice of standard the views of SHPOs/THPOs on the historic properties of religious and treatments in the Federal Register, proposed program comment. cultural significance to an Indian tribe (2)Public participation. The (4)Consultation with Indian tribes or Native Hawaiian organization,the Council shall arrange for public and Native Hawaiian organizations. If Council shall follow the requirements participation appropriate to the subject the program comment has the potential for the agency official set forth in matter and the scope of the standard to affect historic properties on tribal paragraph(f)of this section. treatment and consistent with subpart A lands or historic properties of religious (5)Council review of proposed of this part. The Council shall consider and cultural significance to an Indian exemptions.The Council shall review an the nature of the standard treatment and tribe or Native Hawaiian organization, exemption proposal that is supported by its likely effects on historic properties the Council shall follow the documentation describing the program and the individuals,organizations and requirements for the agency official set or category for which the exemption is entities likely to be interested. Where forth in paragraph(f)of this section. sought,demonstrating that the criteria an agency official has proposed a (5)Council action. Unless the of paragraph(c)(1)of this section have standard treatment,the Council may Council requests additional been met,describing the methods used request the agency official to arrange for documentation,notifies the agency to seek the views of the public,and public involvement. official that it will decline to comment, summarizing any views submitted by (3)Consultation with SHPOs/THPOs. or obtains the consent of the agency the SHPO/THPOs,the public,and any The Council shall notify and consider official to extend the period for others consulted.Unless it requests the views of SHPOs/THPOs on the providing comment,the Council shall further information,the Council shall proposed standard treatment. comment to the agency official within approve or reject the proposed f4)Consultation with Indian tribes 45 days of the request. exemption within 30 days of receipt, and Native Hawaiian organizations. If (i)If the Council comments,the and thereafter notify the relevant agency the proposed standard treatment has the agency official shall take into account official and SHPO/THPOs of the potential to affect historic properties on the comments of the Council in carrying decision.The decision shall be based on tribal lands or historic properties of out the undertakings within the the consistency of the exemption with religious and cultural significance to an category and publish notice in the the purposes of the act,taking into Indian tribe or Native Hawaiian Federal Register of the Council's consideration the magnitude of the organization,the Council shall follow comments and steps the agency will exempted undertaking or program and the requirements for the agency official take to ensure that effects to historic the likelihood of impairment of historic set forth in paragraph(f)of this section. properties are taken into account. . 104 15 (ii)If the Council declines to into account in reaching a final decision been delegated responsibility for section comment,the agency official shall on the proposed program alternative. 106 compliance,the head of that unit of continue to comply with the government shall be considered the requirements of§§ 800.3 through 800.6 §800.15 Tribal,State,and local head of the agency. for the individual undertakings. program alternatives.(Reserved) (1)(1)Historic property means any (6)Withdrawal of comment. If the prehistoric or historic district,site, Council determines that the §800.16 Definitions. building,structure,or object included consideration of historic properties is (a)Act means the National Historic in,or eligible for inclusion in,the not being carried out in a manner Preservation Act of 1966,as amended, National Register of Historic Places consistent with the program comment, 16 U.S,C.470-470w-6. maintained by the Secretary of the the Council may withdraw the comment (b)Agency means agency as defined Interior. This term includes artifacts, and the agency official shall comply in 5 U.S.C.551. records,and remains that are related to with the requirements of§§800.3 (c)Approval of the expenditure of and located within such properties.The through 800.6 for the individual funds means any final agency decision term includes properties of traditional undertakings. authorizing or permitting the religious and cultural importance to an (f)Consultation with Indian tribes expenditure of Federal funds or Indian tribe or Native Hawaiian and Native Hawaiian organizations financial assistance on an undertaking, organization and that meet the National when developing program alternatives. including any agency decision that may Register criteria. Whenever an agency official proposes a be subject to an administrative appeal. (2)The term eligible for inclusion in program alternative pursuant to (d)Area of potential effects means the National Register includes both paragraphs(a)through(e)of this the geographic area or areas within properties formally determined as such section,the agency official shall ensure which an undertaking may directly or in accordance with regulations of the that development of the program indirectly cause alterations in the Secretary of the Interior and all other alternative includes appropriate character or use of historic properties,if properties that meet the National government-to-government consultation any such properties exist. The area of Register criteria. with affected Indian tribes and potential effects is influenced by the (m)Indian tribe means an Indian consultation with affected Native scale and nature of an undertaking and tribe,band,nation,or other organized Hawaiian organizations. may be different for different kinds of group or community,including a native (1)Identifying affected Indian tribes effects caused by the undertaking. village,regional corporation or village and Native Hawaiian organizations.If (e)Comment means the findings and corporation,as those terms are defined any undertaking covered by a proposed recommendations of the Council in section 3 of the Alaska Native Claims program alternative has the potential to formally provided in writing to the head Settlement Act(43 U.S.C.1602),which affect historic properties on tribal lands, of a Federal agency under section 106, is recognized as eligible for the special the agency official shall identify and (f)Consultation means the process of programs and services provided by the consult with the Indian tribes having seeking,discussing,and considering the United States to Indians because of their jurisdiction over such lands. If a views of other participants,and,where status as Indians. proposed program alternative has the feasible,seeking agreement with them (n)Local government means a city, potential to affect historic properties of regarding matters arising in the section county,parish,township,municipality, religious and cultural significance to an 106 process. The Secretary's"Standards borough,or other general purpose Indian tribe or aNative Hawaiian and Guidelines for Federal Agency political subdivision of a State. organization which are located off tribal Preservation Programs pursuant to the (o)Memorandum of agreement lands,the agency official shall identify National Historic Preservation Act" means the document that records the those Indian tribes and Native Hawaiian provide further guidance on terms and conditions agreed upon to organizations that might attach religious consultation. resolve the adverse effects of an and cultural significance to such (g)Council means the Advisory undertaking upon historic properties. properties and consult with them. Council on Historic Preservation or a (p)National Historic Landmark When a proposed program alternative Council member or employee means a historic property that the- has nationwide applicability,the agency designated to act for the Council. Secretary of the Interior has designated official shall identify an appropriate (h)Day or days means calendar a National Historic Landmark. government to government consultation days. (q)National Register means the with Indian tribes and consult with (i)Effect means alteration to the National Register of Historic Places Native Hawaiian organizations in characteristics of a historic property maintained by the Secretary of the accordance with existing Executive qualifying it for inclusion in or Interior. orders,Presidential memoranda and eligibility for the National Register. (r)National Register criteria means applicable provisions of law. (j)Foreclosure means an action the criteria established by the Secretary (2)Results of consultation. The taken by an agency official that of the Interior for use in evaluating the agency-official shall provide summaries effectively precludes the Council from- o eligibility f properties for the_National of the views,along with copies of any providing comments which the agency Register(36 CFR part 60). written comments,provided by affected official can meaningfully consider prior (s)(1)Native Hawaiian organization Indian tribes and Native Hawaiian to the approval of the undertaking. means any organization which serves organizations to the Council as part of (k)Head of the agency means the and represents the interests of Native the documentation for the proposed chief official of the Federal agency Hawaiians;has as a primary and stated program alternative. The agency official responsible for all aspects of the purpose the provision of services to . and the Council shall take those views agency's actions. If a State,local or Native Hawaiians;and has tribal government has assumed or has demonstrated expertise in aspects of 105 16 historic preservation that are significant the section 106 regulations to authorities,such as the Native American to Native Hawaiians. participate in an individual project Graves Protection and Repatriation Act. (2)Native Hawaiian means any pursuant to the following criteria. individual who is a descendant of the However,the Council will not always aboriginal people who,prior to 1778, elect to participate even though one or occupied and exercised sovereignty in more of the criteria may be met. the area that now constitutes the State (c)Specific criteria. The Council is of Hawaii, likely to enter the section 106 process at (t)Programmatic agreement means a the steps specified in the regulations in document that records the terms and this part when an undertaking: conditions agreed upon to resolve the (1)Has substantial impacts on potential adverse effects of a Federal important historic properties. This may agency program,complex undertaking include adverse effects on properties or other situations in accordance with§ that possess a national level of 800.14(b). significance or on properties that are of (u)Secretary means the Secretary of unusual or noteworthy importance or the Interior acting through the Director are a rare property type;or adverse of the National Park Service except effects to large numbers of historic where otherwise specified. properties,such as impacts to multiple (v)State Historic Preservation Officer properties within a historic district. (SHPO)means the official appointed or (2)Presents important questions of designated pursuant to section 101(b)(1) policy or interpretation. This may of the act to administer the State include questions about how the historic preservation program or a Council's regulations are being applied representative designated to act for the or interpreted,including possible State historic preservation officer, foreclosure or anticipatory demolition (w)Tribal Historic Preservation situations;situations where the outcome Officer(THPO)means the tribal official will set a precedent affecting Council appointed by the tribe's chief governing policies or program goals;or the authority or designated by a tribal development of programmatic ordinance or preservation program who agreements that alter the way the has assumed the responsibilities of the section 106 process is applied to a group SHPO for purposes of section 106 or type of undertakings. compliance on tribal lands in (3)Has the potential for presenting accordance with section 101(d)(2)of the procedural problems.This may include act. cases with substantial public (x)Tribal lands means all lands controversy that is related to historic within the exterior boundaries of any preservation issues;with disputes Indian reservation and all dependent among or about consulting parties Indian communities. which the Council's involvement could (y) Undertaking means a project, help resolve;that are involved or likely activity,or program funded in whole or to be involved in litigation on the basis in part under the direct or indirect of section 106;or carried out by a jurisdiction of a Federal agency, Federal agency,in a State or locality,or including those carried out by or on on tribal lands where the Council has behalf of a Federal agency;those carried previously identified problems with out with Federal financial assistance; section 106 compliance pursuant to§ and those requiring a Federal permit, 800.9(d)(2), license or approval. (4)Presents issues of concern to (z)Senior policy official means the Indian tribes or Native Hawaiian senior policy level official designated by organizations. This may include cases the head of the agency pursuant to where there have been concerns raised section 3(e)of Executive Order 13287. about the identification of,evaluation of or assessment of effects on historic Appendix A to Part 800--Criteria for properties to which an Indian tribe or Council Involvement in Reviewing Native Hawaiian organization attaches Individual section 106 Cases religious and cultural significance; where an Indian tribe or Native (a)Introduction. This appendix sets Hawaiian organization has requested forth the criteria that will be used by the Council involvement to assist inthe Council to determine whether to enter resolution of adverse effects;or where an individual section 106 review that it there are questions relating to policy, normally would not be involved in. interpretation or precedent under (b)General policy. The Council may section 106 or its relation to other choose to exercise its authorities under 106 AtascadUlu's } Printery has . = been in this location since' 1t opened its ._ ness early in 1916:�The Toad:in•front ofth building Is.Olmeda Ave:l�Totice,..; uthe railroad spur track on the north end ,ofbuilding.; PIine un in in�l e�, ack=' ,ground rin er First ot =Ax, LeVAV civic center c s Ps Ile ings ro be completed The Printery building on Olmeda Avenue was the first to be completed by Atascadero's founder, E.G.Lewis. Lewis was a promoter of many things, from residential development to a number of busi- ness projects both in the east and our west in Cali- fornia.He needed a press at his disposal to let his followers know his next scheme. The first publication to come out of the new building was the Atascadero News, which made its debut on January-2, 1916 dry Although he began construction on the City Administration Building first(1914)it(The Printery)was actually the first of the civic center buildings completed and was ready for use late in 1915.The large brick structure still stands at the corner of Olmeda Avenue and West Mall. The Close up of front entrance to The Printery. building was originally owned by the Woman's 107 Institute, Holmes was known as a muralist Publishing Company,which Mr. Lewis started even before his arrival in Atascadero. He even in University City,MO. There he published the tually managed the Cloisters on Atascadero Woman's National Magazine,the Woman's Beach in Morro Bay for Lewis Colony Hold National Weekly and advertising brochures Ing Corporation.Holmes himself described the called`Bulletins. murals in the Printery as something to separate the building from its industrial roots.A visit- The main brick building you see today ing journalist said of Holmes' work,"Nowhere was quickly built in America is fora total cost of there anything $34,000,not in- .,,..Ial�pSt TOtogravure ® more beautiful eluding equipment. than the entrance ® i ® Within a very short to Atascadero's time The Printery complex was expanded by a Press Building—the entrance where an art- large stucco building that ran next to the main ist's power of painting dreams in tuneful color brick structure. There was also a long corru- sings its symphonic theme in your heart until gated metal shed used to store newsprint.And Illus- g p you forget the importance of even The Y g P there was also a smaller tin shed used to store Crated Review. ink. The entire printing facility cost a total of The largest rotogravure press complex $250,000,including the machinery and fur- west of the Mississippi River was installed in nishings, according to records maintained by the Atascadero plant. It was also the first roto- the Atascadero Historical Society. gravure press on the west coast. The last issue Artist Ralph Holmes,who was brought to of the Woman's National Weekly was pub- Atascadero by Lewis to head up the art depart- lished in Atascadero in 1916. ment,painted the murals on the entrance to the The first issue of the Atascadero News Printery. Although faded,those murals remain was printed in the building in January, 1916, there even today. Formerly of the Chicago Art and the premier issue of The Illustrated Review x � r t I c This picture of The Printery was taken from the top of the unfinished City Administration Building in November, 1915. 108 it �= y 4. u�.YEP, to "My' d rti. T 0 sic o • • ` � a ter: y , There was always a beehive of activity in Lewis'printing plant here in Atascadero. was printed in September of that same year. extended to the Review. The first subscription Lewis had hoped that The Illustrated Review price was 10 cents a year for this photo maga- would eventually have a circulation of more zine. Eventually the subscription price was in- than three million copies by the end of 1917. creased to $1 a year in 1919. Circulation neared In reality,the circulation never quite reached one million copies by 1917. You could buy The one million copies, but that is still a large Illustrated Review on newsstands in New York circulation for any periodical of its time. City. Pictures of World War I filled the many The Illustrated Review was somewhat a pages of the magazine. Circulation of The Illus- forerunner of the"Life Magazine"in that it trated Review began to drop in the early 1920s was long on pictures and short on text. The and publication ended in 1924. Review carried Toward the end pictures from Lewis converted The around the Illustrated Review world. into a 16-page tabloid- E.G. R sized newspaper and Lewis' brother, changed the name to George B. the California Rlus- Lewis,was _ Crated Review, and manager of The then finally the Atas- Printery. The cadero Illustrate Re- entire plant had view. "It is entirely about 125 peo- _ ___ — - --- - - - devoted to picturing -�Iere's Tfie Fnritery m more modern tunes. ple working California as it is," there to produce the numerous publications. Atascadero's founder wrote in one of his peri- The Illustrated Review began with an odic Bulletins,adding that,"a staff of photogra- existing mailing list that Lewis brought with phers,headed by J.L.Padilla, is constantly en- him from University City, MO. gaged in taking special photographs of Califor- Pre-paid subscriptions to the by then nia life, features,places and things of interest." out-of-print Woman's National Weekly were By 1923 a yearly subscription cost$1 and a life 109 r lr. Another early view of The Printery in about 1915 looking east.Dirt road leading to the building is West Mall. subscription$10. By that time the circulation had his office located here. was 30,000"life" subscribers. The first press run for the Atascadero Atascadero News and The Illustrated Re- News in January, 1916 was 100,000 copies. view weren't the only publications printed in In May, 1924,there was a massive lay- The Printery. off of Printery employees. Seven were kept For two years the Sunday rotogravure sup- on to print the Atascadero News,which had plement to the San Francisco Chronicle was produced in the Atascadero plant. The supple- ment was entirely designed, etched and printed locally.A rotogravure magazine was also published for the Los Angles r ; Sunday Times in Atascadero. y 3' The bindery department pro- " A duced the large ledgers for San , Luis Obispo County and the _ A" Colony Holding Corporation. Even the blank pages were line ruled using a large machine in The Printery. Other outside printing in- cluded color covers for Sunset . Magazine,many advertising brochures and the packaging , for the Pumpkin Flour Com- L pany, another Atascadero busi- ness. Upstairs in the building were the offices for manage- ment,photo filing and circula- tion.All the mailing labels, which were stamped on metal plates,were produced upstairs. George B. Lewis,manager, Press starts up for another printing of The Illustrated Review. 110 E By 1915 the semblance of a civic center was begin- ning to take shape.Here you see The Printery look- ing north standing in what today would be the junior high track.Off to the left,looking west,you see the City Administration Building taking nearing com- pletion.The dome is not yet in place.The city hall building wasn't completed until 1918. editorial offices in a building next door to the The old Atascadero News building which was main Printery structure. actually behind the Printery was knocked In 1925 the newspaper was sold to Ted down in about 1963. Bishop when Lewis was forced into involun- The large presses in The Printery were tary receivership by a group of his creditors. moved to Oakland in the mid 1920s. . The newspaper moved to its own building The building was sold to Frank Moran of in the 5600 block of El Camino Real in 1949. Seattle to serve as the southern satellite cam- 4 i 3 S' x � - a pn m - f A. loll f � tom' By 1920 The Printery was one of four civic center buildings you see pictured here. pus for an exclusive boy's prep school. and had to be shored up as a safety measure The Printery building was eventually used until repairs could be made. as a junior college and prep school for three But several years before the earthquake, different owners until it was purchased by the in 1994,the Masonic Temple Association Masonic Temple Association in 1950 from the gave the building to the City of Atascadero Colonel Benjamin Aldrich estate.In addition on the condition the city provide youth ser- to serving as the meeting place for the Atasca- vices there. For a variety of reasons,mostly dero Masonic Lodge up into the 21St Century, having to do with lack of finances to bring the building has also housed the Atascadero the building up to code,the city never util- Unified School District Office, and even ized the building and eventually returned the served as a substation for the San Luis Obispo building to the Masons in 2005. County Sheriff's Department. The building was added to the National A karate school occupied the old press Registry of Historic Places in 2004. floor area for almost two decades while a com- m i lit,At mercial photographer worked out of the room 00 on the southern end of the two-story building. jmM��� nite�; � 4 .bra s•iK-i w 0, ON= The space was both studio and living quarters � � � � „ for the photographer. �e � erg.k M t The 6.5 San Simeon Earthquake in De- tnpab` � tt4 ' cember, 2003 brought an end to public use of the building. The end walls were weakened A: �+- {{ -!y aMIN 112