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.
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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]
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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]
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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.
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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.
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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.
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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
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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
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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
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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
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(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
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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
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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.
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(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
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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;
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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.
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(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
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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
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• 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:
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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
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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
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(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
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(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