9J-2.043. Archaeological and Historical Resources Uniform Standard Rule (Transferred)

(1) Purpose. This rule establishes how the Department will evaluate archaeological and historical issues in the review of applications for binding letters, local government development orders, and DRI applications for development approval (ADA).

(a) The Legislature established Chapter 380, Florida Statutes, to facilitate orderly and well-planned development, and to protect the quality of life of the residents of Florida, by authorizing the state land planning agency to establish land management policies to guide local decisions relating to growth and development. Sections 186.002, 186.007, 186.009, and 187.101, Florida Statutes, establish the State Comprehensive Plan as the long-range, state land development policy guide to be considered in the DRI review process in order to ensure orderly growth in Florida, pursuant to subsections 380.06(3), (4), (12), (13), (14), (15), (25), and 380.065(3) Florida Statutes.

(b) Consistent with the land management policies delineated in the State Comprehensive Plan, it is the intent of the Department to set forth in this rule specific archaeological and historical site or property DRI review guideline standards and criteria.

(c) The statutory authority to promulgate and establish this rule is derived from subsections 380.032(2) and 380.06(23), Florida Statutes.

(2) Definitions. As used in this rule:

(a) “Acquisition” means the action of transferring fee simple interest in a parcel of land to a governmental or nonprofit conservation agency, land trust or historic preservation organization for the in perpetuity preservation of the land for the protection of a particular archaeological or historical site or property.

(b) “Adverse impact” means any result of a development action that would reduce the quantity or quality of a particular archaeological or historical site or property, or that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling or association for a particular archaeological or historical site or property covered by this rule.

(c) “Applicable Local Plan” or “Local government comprehensive plan” means a plan or element or portion thereof prepared, adopted, or amended pursuant to Part II of Chapter 163, Florida Statutes, as amended.

(d) “Applicable Regional Plan” means the Regional Planning Council’s adopted Strategic Regional Policy Plan pursuant to Section 186.508, Florida Statutes.

(e) “Applicable State Plan” means the State Comprehensive Plan.

(f) “Archaeological or Historical Site or Property” means, consistent with subsection 267.021(3), Florida Statutes, any prehistoric or historic district, site, building, object or other real or personal property of historical, architectural, or archaeological value; these properties or resources may include, but are not limited to, monuments, memorials, Indian habitations, ceremonial sites, abandoned settlements, sunken or abandoned ships, engineering works, treasure trove, artifacts, or other objects with intrinsic historical or archaeological value, or any part thereof, relating to the history, government and culture of the state.

(g) “Buffer” means an undisturbed or appropriately managed area that surrounds or is adjacent to a particular archaeological or historical resource that is utilized to minimize man-induced disturbances from interfering with the continued preservation and protection of the particular archaeological or historical site or property.

(h) “Department” means the Florida Department of Community Affairs.

(i) “Documented offsite” means the existence of a creditable occurrence record for an archaeological or historical site or property at a location outside of a project’s boundaries including, surveys, scientific publications, or other information from local, regional, state or federal agencies, but where the provision of such evidence is not the responsibility of the developer undergoing review.

(j) “Division of Historical Resources” means the Division of Historical Resources in the Florida Department of State.

(k) “Local government comprehensive plan” means a plan or element or portion thereof prepared, adopted, or amended pursuant to Part II of Chapter 163, Florida Statutes, as amended.

(1) “National Register of Historic Places” means, consistent with subsection 267.021(5), Florida Statutes, the list of historic properties significant in American history, architecture, archaeology, engineering, and culture, maintained by the Secretary of Interior, as established by the National Historic Preservation Act of 1966, as amended.

(m) “Non-profit Conservation Agency, Land Trust or Historic Preservation Organization” means an agency or organization whose purpose is the preservation of archaeological or historical sites or properties, and which is exempt from federal income tax under Section 501(c)(3) of the United States Internal Revenue Code.

(n) “Paleontological Site” means a location containing geological fossil remains of prehistoric plants or animals.

(o) “Preservation” means the protection and maintenance of the integrity of a particular archaeological or historical site or property from the adverse impacts of development.

(p) “Regional planning council” means a governmental body created pursuant to Chapter 186, Florida Statutes.

(3) Application.

(a) This rule shall be used by the Department to review archaeological and historical site or property issues in binding letters and applications for development approval (ADA), effective the date of this rule. Any development that meets or exceeds the significant impact thresholds identified in this rule shall be determined by the Department to have a significant impact on a state and regionally significant archaeological or historical site or property. This rule shall not apply to any application submitted to the Department prior to the effective date of this rule, where such an application has continued to remain pending and active, consistent with paragraphs 380.06(4)(d) or (10)(b), Florida Statutes.

(b) This rule shall be used by the Department to review archaeological and historical site or property issues in local government development orders. This rule shall not apply to any development order rendered to the Department after the effective date of this rule that approves, with or without conditions, an application that was submitted prior to the effective date of the rule and has continued to remain pending and active until the development order’s approval.

(c) A development order shall be determined by the Department to make adequate provision for the archaeological and historical site or property issues addressed by this rule, and shall not be appealed by the Department on the basis of inadequate protection of archaeological and historical sites or properties, if it contains the applicable protection standards and criteria set forth in this rule.

If a development order does not contain the applicable mitigation standards and criteria set forth in this rule, the Department shall have discretion to appeal the development order, pursuant to the provisions of Section 380.07, Florida Statutes. However, nothing in this rule shall require the Department to undertake an appeal of the development order simply because it fails to comply with the provisions of this rule. A development order failing to comply with the provisions of this rule will be addressed on a case-by-case basis by the Department as to whether it otherwise complies with the intent and purposes of Chapter 380, Florida Statutes. The Department will take into consideration the balancing of this rule’s provisions with the protection of property rights, the encouragement of economic development, the promotion of other state planning goals by the development, the utilization of alternative, innovative solutions in the development order to provide equal or better protection than the rule, and the degree of harm created by non-compliance with this rule’s mitigation criteria and standards.

(d) This rule shall apply to the specific archaeological and historical site or property issues delineated herein, and does not limit the ability of the Department to address other related issues, such as the presence of state and regionally significant paleontological sites, or consistency with the local government comprehensive plan. The avoidance of significant adverse impacts to state and regionally significant archaeological and historical sites or properties is the most desirable and first option that should be considered by regional planning councils and local governments in all development review and approvals. However, in some circumstances, adverse impacts to state and regionally significant archaeological and historical sites or properties will need to be addressed through appropriate mitigation.

(e) This rule shall not limit the ability of the Department to make a determination of significant impact or appeal a development order on the basis of inadequate, inappropriate, or inaccurate onsite archaeological or historical surveys carried out by the applicant or his agents, where the findings of such surveys are instrumental to forming the basis of information necessary to evaluate compliance with the application of this rule’s criteria and standards. However, if agreement was reached at a DRI preapplication conference regarding archaeological and historical survey assumptions and methodologies to be used in an ADA, then reviewing agencies may not subsequently object to these assumptions and methodologies, consistent with the provisions of paragraph 9J-2.021(1)(h), Florida Administrative Code.

(4) Determination of State and Regionally Significant Archaeological and Historical Site and Properties. Any archaeological or historical site or property determined by the Division of Historical Resources to be listed, or to be eligible for listing, in the National Register of Historic Places shall be deemed by the Department to be a state and regionally significant archaeological or historical site or property.

(5) Determination of a Significant Impact to State and Regionally Significant Archaeological or Historical Sites or Properties. A significant impact shall consist of any adverse impact to onsite or documented offsite state and regionally significant archaeological or historical sites or properties.

(6) Mitigation of a Significant Impact to State and Regionally Significant Archaeological or Historical Sites or Properties. It is the intent of the Department to set forth in this rule the archaeological and historical site or property conditions which, if included in a development order, would be deemed by the Department to comply with the requirements of Section 380.06, Florida Statutes, and would, therefore, not be the basis for the appeal of the development order by the Department on issues related to onsite or offsite state and regionally significant archaeological or historical sites or properties.

A development order shall be determined by the Department to make adequate provision for state and regionally significant archaeological or historical sites or properties and shall not be appealed by the Department on the basis of inadequate archaeological or historical site or property protection if, at a minimum, it contains the sets of conditions enumerated in paragraphs (a) and (b) below:

(a) ONSITE SITES OR PROPERTIES. All state and regionally significant archaeological or historical sites or properties occurring onsite shall be protected by either:

1. Onsite preservation, pursuant to the provisions of subsection (7) of this rule, coupled with compatible, adjacent onsite land uses and buffers that will ensure the avoidance of all adverse impacts of development on the archaeological or historical site or property; or

2. Mitigation, through any combination of preservation, rehabilitation, restoration, enhancement, data recovery and documentation agreed upon by the developer and the Division of Historical Resources for the protection of a particular archaeological or historical site or property, pursuant to the provisions of subsection (8) of this rule.

(b) OFFSITE SITES OR PROPERTIES. All state and regionally significant archaeological or historical sites or properties documented offsite shall be protected from a significant impact by onsite development through either:

1. Onsite protection, pursuant to the provisions of subsection (7), through compatible adjacent onsite land uses and buffers that will ensure the avoidance of all adverse impacts of development on the offsite archaeological or historical site or property; or

2. Mitigation, through any combination of preservation, rehabilitation, restoration, enhancement, data recovery and documentation agreed upon by the developer and the Division of Historical Resources for the protection of the particular offsite archaeological or historical site or property, pursuant to the provisions of subsection (8) of this rule.

(7) Onsite Preservation.

(a) ONSITE PRESERVATION DEVELOPMENT ORDER CONDITIONS. The development order shall specifically identify the location and size of the onsite land to be preserved, and shall include the means of legal restrictions upon the use of the preservation land. The development order shall state the onsite management practices that are necessary to preserve the particular archaeological or historical site or property, and shall include or require a management plan that ensures the continued management and protection of the preservation area from adverse impacts. The development order shall also require the establishment of a conservation easement on the preserved land, either by transfer of ownership to an appropriate management entity or by transfer of a lesser interest with an enforceable management plan, as described in subsection (9).

(b) SUBSEQUENT DEVELOPMENT. Development of an onsite preservation or special protection area previously set aside in an ADA or DRI development order for state and regionally significant archaeological or historical sites shall be allowed only if approved after review of a substantial deviation ADA, in compliance with subparagraph 380.06(19)(b)16., Florida Statutes, and only if an appropriate change from onsite preservation to mitigation, pursuant to the criteria and provisions of this rule.

(c) REVERSION CLAUSES. The development order shall not include a reversion clause that allows onsite preservation lands to revert back to a developer for development without appropriate mitigation of significant impacts, consistent with subsection (8) of this rule.

(8) Mitigation. The development order shall include as an exhibit enforceable under the terms of the development order, an executed Memorandum of Agreement (MOA) between the Division of Historical Resources and the developer. The MOA may include the local government of jurisdiction, and if offsite lands are involved, should include the offsite landowner when possible. The MOA shall specify the details of the combination of preservation, rehabilitation, restoration, enhancement, data recovery and documentation agreed upon by the parties that will ensure protection of the significant archaeological or historical site or property, prior to the allowance of any adverse impacts from any onsite development. The MOA shall include the location, type, and conditions of any land use restrictions, any land use activity prohibitions, or any management requirements necessary to protect the site or property from adverse impacts, the parties responsible for any monetary costs, the timeframes in which activities are to be undertaken, all study reporting contents and requirements, and any other necessary actions to be undertaken by one or more of the parties. Where there is a need to have a restriction upon the continued use and development of onsite lands to ensure the protection of significant archaeological or historical resources, then the means of these land use or activity restrictions shall be guaranteed legally through a conservation easement pursuant to the provisions of subsection (9) of this rule.

(9) Conservation Easements. Whenever a conservation easement is required by subsections (6), (7) or (8), the development order shall require the establishment of the conservation easement by either of the following methods:

(a) TRANSFER OF OWNERSHIP TO A MANAGEMENT ORGANIZATION. The development order shall state that, upon completion of the transfer of ownership to a management organization that complies with this rule, the developer shall have no further responsibility for the proper management of the preserved land, except for any terms agreed to in the conditions of ownership transfer. The development order shall require that the fee simple estate in the land to be preserved shall be transferred to a management organization by a Statutory Warranty Deed that meets all of the following criteria:

1. The warranty deed shall be to a local government, governmental agency, or a qualified non-profit conservation agency, Land Trust or Historic Preservation organization that has both the commitment and resources to manage and preserve the site in perpetuity, and that is willing to manage the preserved land as required by the development order; and

2. The warranty deed shall clearly designate the preservation area as lands to be managed and retained by the grantee for the continued protection of the archaeological or historical site or property requiring preservation, and shall include a conservation easement as authorized by Section 704.06, Florida Statutes, that prohibits all development and all use of the preserved land including those activities described in Section 704.06(1)(a) through (h), Florida Statutes, except for specific activities approved by the development order such as appropriate management, use, archaeological or historical interpretation or research, adaptive reuse, passive recreation or the clearing of exotic species, where such activities are consistent with the purpose for which the land is to be preserved; and

3. The warranty deed shall name the State of Florida as a benefiting party, shall allow it and any of its agencies access to the site upon request, and shall provide the State of Florida, and specifically the Department of Community Affairs or any successor agency, with the right to require restoration and the right of enforcement, including administrative or judicial relief pursuant to Section 380.11, Florida Statutes, or other proceedings in equity or at law, should the conservation easement be violated; and

4. The warranty deed which transfers the fee simple title shall include all owners of the preserved property, shall conform with Sections 689.02 and 689.03, Florida Statutes, and shall be free and clear of all reverter clauses and reservations unless a reverter or reservation is approved by the Department; and

5. The grantor of the statutory warranty deed shall provide proof of good title, including release or satisfaction of all mortgages and liens, to ensure that there are no interests in the preserved property superior to the grantees’ fee simple estate and the grantees right to manage and maintain the property in its natural state in perpetuity. Proof of good title shall be in the form of a title insurance commitment issued by a qualified title insurer agreeing to issue to the grantee, upon recording of the warranty deed, an Owner’s policy of title insurance insuring title of the grantee to the real property, with the title insurance premium to be paid by the grantor; and

6. The warranty deed shall be recorded by the developer in the Official Records of the county in which the preserved property is located within one year of the issuance of the development order, and prior to the commencement of any development onsite, except for development allowed pursuant to a subsection 380.032(3) or 380.06(8), Florida Statutes, development agreement with the Department;

OR

(b) TRANSFER OF A CONSERVATION EASEMENT ONLY. The development order shall require the establishment of a conservation easement on the land to be preserved that meets all of the following criteria:

1. The grantee accepting a conservation easement shall be a local government, governmental agency, or a qualified non-profit conservation agency, Land Trust or Historic Preservation organization that has both the commitment and resources to enforce the restrictions of the easement, and that is willing to enforce the restrictions of the easement; and

2. The conservation easement shall clearly designate the onsite preservation area as a perpetual easement area to be managed and retained for the continued protection of the archaeological or historical site or property requiring preservation, and shall prohibit all development and all use of the preserved land including those activities described in subsection 704.06(1)(a) through (h), Florida Statutes, except for specific activities approved by the development order such as appropriate management, use, archaeological or historical interpretation or research, adaptive reuse, passive recreation or the clearing of exotic species, where such activities are consistent with the purpose for which the land is to be preserved; and

3. The conservation easement shall name the State of Florida as a benefiting party with a third-party right of enforcement, shall allow it or any of its agencies access to the site upon request, and shall provide the State of Florida, and specifically the Department of Community Affairs or any successor agency, with the right to require restoration and the right of enforcement, including administrative or judicial relief pursuant to Section 380.11, Florida Statutes, or other proceedings in equity or at law, should the easement be violated; and

4. The real property instrument establishing the conservation easement shall include all owners of the preserved property, shall conform with the requirements of subsections 704.06(2) and (4), shall be recordable, and shall be free and clear of all reverter clauses and reservations unless a reverter or reservation is approved by the Department; and

5. The grantor of the conservation easement shall provide proof of good title, including release or satisfaction of all mortgages and liens, to ensure that there are no interests in the preserved property superior to the conservation easement and the grantee’s right to manage and maintain the property in its natural state in perpetuity. Proof of good title shall be in the form of a title insurance commitment issued by a qualified title insurer agreeing to issue to the grantee, upon recording of the conservation easement, a policy of title insurance insuring title of the grantee in the conservation easement on the real property, with the title insurance premium to be paid by the grantor; and

6. The conservation easement shall state whether the grantee has accepted responsibility for management of the preserved land. If the grantee does not accept site management responsibility, then the grantor shall be solely responsible for onsite management, and the management plan shall be incorporated into the conservation easement; and

7. The conservation easement shall require that the maintenance and management of the preserved area shall be biennially reported by the grantee for inclusion in the grantor’s biennial status report required by subsection 380.06(18), Florida Statutes; and

8. The real property instrument that establishes the conservation easement shall be recorded by the developer in the Official Records of the county in which the preserved property is located within one year of the issuance of the development order, shall allow re-recordation every twenty-five (25) years by any grantee or benefiting party, and shall be recorded prior to the commencement of any development onsite, except for development allowed pursuant to a subsection 380.032(3) or 380.06(8), Florida Statutes, development agreement with the Department.

(10) Construction of Rule. This rule shall not be construed to limit the ability of local governments to impose more stringent mitigative measures than those delineated in this rule, where such measures or policies are contained within local land development regulations, or a local government comprehensive plan.

(11) Effect of Areas of Critical State Concern. This rule shall be superseded by more stringent archaeological and historical site or property requirements for developments in designated Areas of Critical State Concern.

Specific Authority 380.032(2)(a), 380.06(23)(a), (c)1. FS. Law Implemented 380.021, 380.06, 380.065, 380.07 FS. History–New 3-23-94, Amended 2-21-01, 6-1-03.