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HomeMy WebLinkAbout2016-02-23; City Council; 22228; Adoption of City Council Policy 83 Tribal Cultural Resource ProtectionCITY OF CARLSBAD - AGENDA BILL 4 AB# 22,228 ADOPTION OF CITY COUNCIL DEPT. DIRECTOR MTG. 2/23/2016 POLICY 83 CITY ATTORNEY DEPT. TRIBAL CULTURAL RESOURCE PROTECTION CITY MANAGER CA 1 44.-- RECOMMENDED ACTION: Adopt Resolution No. 2016-042 approving a Council Policy For Improvement in the Treatment And Protection Of Tribal Cultural Resources by updating guidelines for the improved detection and protection of Tribal Cultural Resources within the City's jurisdiction and for preservation measures to maintain their permanence in protection. ITEM EXPLANATION: The treatment of cultural resources in the development of projects within the City is directed by State Law, the City's Cultural Resources Guidelines (1990), and the City's General Plan Policies 7-P.7 through 7-P.11: 7-P.7 Implement the City of Carlsbad Cultural Resources Guidelines to avoid or substantially reduce impacts to archaeological and paleontological resources. 7-P.8 During construction of specific development projects, require monitoring of grading, ground-disturbing, and other major earthmoving activities in previously undisturbed areas or in areas with known archaeological or paleontological resources by a qualified professional, as well as a tribal monitor during activities in areas with cultural resources of interest to local Native American tribes. Both the qualified professional and tribal monitor shall observe grading, ground-disturbing, and other earth-moving activities. 7-P.9 Ensure that treatment of any cultural resources discovered during site grading complies with the City of Carlsbad Cultural Resource Guidelines. Determination of the significance of the cultural resource(s) and development and implementation of any data recovery program shall be conducted in consultation with interested Native American tribes. All Native American human remains and associated grave goods shall be returned to their most likely descendent and repatriated. The final disposition of artifacts not directly associated with Native American graves shall be negotiated during consultation with interested tribes; if the artifact is not accepted by Native American tribes, it shall be offered to an institution staffed by qualified professionals, as may be determined by the City Planner. Artifacts include material recovered from all phases of work, including the initial survey, testing, indexing, data recovery, and monitoring. DEPARTMENT CONTACT: Celia A. Brewer 760-434-2891 FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED WITHDRAWN AMENDED CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF COUNCIL RECEIVED THE REPORT/PRESENTATION OTHER - SEE MINUTES 0 7-P.10 Require consultation with the appropriate organizations and individuals (e.g., Information Centers of the California Historical Resources Information Systems [CHRIS], the Native American Heritage Commission [NAHC], and Native American groups and individuals) to minimize potential impacts to cultural resources that may occur as a result of a proposed project. 7-P.11 Prior to occupancy of any buildings, a cultural resource monitoring report identifying all materials recovered shall be submitted to the City Planner. In the design and construction of development projects on private property and projects on City-owned properties, the City of Carlsbad Cultural Resources Guidelines and General Plan Policies 7-P.7 through 7-P.11 are implemented, and City staff, as the City's representative managing both projects on private and City owned properties, must implement their best professional judgment during the project review process to avoid or substantially reduce impacts to Tribal Cultural Resources, historical, archaeological, and paleontological resources by developing mitigation measures for appropriate treatment and protection of such resources. However, the City's Cultural Resource Guidelines (1990) require updating to ensure consistency with State law and the City's General Plan Policies, define a predictable and reliable means of approving projects, and ensure appropriate long term protection of Tribal Cultural Resources. The current process relying on unwritten methods to provide updates and assurances on the treatment of Tribal Cultural Resources can lead to inconsistent information in City files and contradictory actions. For example, the 2005 Carlsbad Municipal Golf Course EIR project description contained within it, among other things, the development of a golf course and the preparation of three (3) pads on three (3) separate City-owned parcels for future industrial use. The Carlsbad Public Financing Authority was the developer of the project and the City of Carlsbad was the lead agency. One of these pads was Lot 9 which was found to contain CA-SDI-8797 Locus C. During the creation of the development pad for Lot 9, CA-SDI-8797 Locus C was determined to contain CEQA significant cultural resources and included two (2) Native American burials. The adverse impact of the pad development project to CA-SDI-8797 Locus C was to be mitigated through a data recovery program consistent with the certified golf course EIR Mitigation Monitoring and Reporting Program (MMRP). However, that mitigation program was informally changed at some point, directing that CA-SDI-8797 Locus C would no longer be subjected to a data recovery, but instead was to be left it in place, covering it with cement. The Project Archaeologist requested that the cemented area be placed with an open space easement; however, City staff indicated to him that, while no future uses of the area were known at the time, the City was not prepared to place the site in an open space easement as the pad was being created for future development. Interested Tribal parties, among others, reasonably believed that the area of cultural resources would be placed within an Open Space Easement and would be preserved for perpetuity and future impacts would be avoided. It appears that there was no direct communication between the City and the Tribal parties regarding this change and the City never placed CA-SDI-8797 Locus C into an Open Space Easement. The indefinite commitment to permanently protect the area beneath the cemented area on Lot 9 led to divergent understanding between the City and local tribal representatives regarding the permanency of protection of resources beneath the cemented area. As a result, when the City later advertised for development opportunities on Lot 9, the property record showed no open space easement on the property, and the City proceeded with proposals for the development process that could include the cemented area. The development ultimately approved for Lot 9 (Westin Hotel and Timeshare Project SCH #20115041042) may cause a significant impact to the resources beneath the cemented area on Lot 9, which requires additional mitigation in the form of project re-design, treatment of the resources and avoidance of the burial sites. Local Tribal representatives have raised significant concerns about how this misunderstanding could have been avoided. Following the leasing and site planning for Lot 9, and multiple meetings with local Tribal representatives, including the San Luis Rey Band of Mission Indians, to address the treatment of onsite Tribal Cultural Resources and the absence of a protective Open Space Easement over the area of resources, it became apparent that the City was lacking a comprehensive policy and check system that would ensure mutual understanding between the City and local Tribal Representatives and appropriate follow up regarding the permanent protection of Tribal Cultural Resources. Such consistency and reliability is vital to good government to government relations with local Tribal representatives and necessary for the appropriate protection of Tribal Cultural Resources within City jurisdiction. By mutual agreement with the San Luis Rey Band of Mission Indians, the City staff determined that it is important for the City to develop a more comprehensive policy regarding consultation and treatment of tribal cultural resources for projects within the City's decision making authority. Policy No. directs the City staff to update the City Cultural Resources Guidelines to include specific direction for requirements and Tribal Consultation in the Treatment and Protection of Tribal Cultural Resource with California Native American tribes that are traditionally and culturally affiliated with the City and for preservation measures to maintain their permanence in protection. FISCAL IMPACT: Developing City Guidelines for Tribal Consultation will require additional funding for consultant services. Staff will return at a later date for Council approval and appropriation of funds. ENVIRONMENTAL IMPACT: The project is exempt from the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15308 — Actions by Regulatory Agencies for Protection of the Environment, which exempts actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment. EXHIBITS: 1. Resolution No. 2016-042 2. Council Policy No. Tribal Consultation in the Treatment and Protection of Tribal Cultural Resources RESOLUTION NO. 2016-042 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A COUNCIL POLICY FOR TRIBAL CONSULTATION IN THE TREATMENT AND PROTECTION OF TRIBAL CULTURAL RESOURCES WHEREAS, the City Council of the City of Carlsbad is furthering its commitment to preserving and protecting Native American cultural resources within its jurisdiction; and WHEREAS, the City of Carlsbad wants to strengthen communications with the California Native American tribes that are traditionally and culturally affiliated with the City, including the San Luis Rey Band of Mission Indians; and WHEREAS, the City of Carlsbad and California Native American tribes that are traditionally and culturally affiliated with the City San Diego, including the San Luis Rey Band of Mission Indians, will benefit from a mutual agreement regarding a procedure for early consultation; and WHEREAS, Policy No. 83 contributes to the protection of tribal cultural resources in the City to the fullest extent of the law and encourages meaningful consultation with the California Native American tribes that are traditionally and culturally affiliated with the City regarding their concerns about the City's actions, policies and procedures. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows that: 1. The above recitations are true and correct. 2. That the City Council Policy No. 83 is adopted as shown on Exhibit 3 of this resolution, to take effect on March 1, 2016. I/ /I I/ I/ I/ /1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BARBARA ENGLESON, Gy Clerk (SEAL) SBA0 •• ***** ** :".••• PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 23rd day of February 2016, by the following vote to wit: AYES: Council Members Hall, Wood, Schumacher, Blackburn, Packard. NOES: None. ABSENT: None. -41 Ze, / MATT HALL, Mayor ATTEST: C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YRIO: 6SBAD Policy No. 83 Date Issued: February 23, 2016 Effective Date: March 1, 2016 Resolution No. 2016-042 Cancellation Date: n/a Supersedes No. n/a Council Policy Statement Category: TRIBAL CULTURAL RESOURCE PROTECTION Specific Subject: Tribal Consultation and Treatment and Protection of Tribal Cultural Resources PURPOSE: It is the intent of the City Council that the City of Carlsbad recognize its responsibility to protect with improved certainty the important historical and cultural values of current Tribal Cultural Resources within the City limits and to establish an improved framework for the City's consultations with Native American Tribes that are traditionally and culturally affiliated with the City of Carlsbad including the San Luis Rey Band of Mission Indians. BACKGROUND: The City of Carlsbad is proudly home to California Native American Tribes that have been here for more than ten thousand years. The City is acknowledged by California Native American Tribes, archaeologists, ethnographers, and anthropologists to be rich in Tribal Cultural Resources. These Tribal Cultural Resources are significant for their traditional, cultural, spiritual and religious ties to the California Native American people living today and the cultural significance these resources have to the lives of California Native American Tribal people in the present. Currently, in the design and construction of development projects on private property and projects on City-owned properties, the City of Carlsbad Cultural Resources Guidelines and General Plan Policies 7- P.7 through 7-P.11 are implemented. In addition, during the project review process City staff, as the City's representative managing both projects on private and City-owned properties, must implement their best professional judgment to attempt to avoid or substantially reduce impacts to Tribal Cultural Resources, historical, archaeological and paleontological resources by developing mitigation measures for appropriate treatment and protection of such resources. However, the City's Cultural Resource Guidelines (1990) require updating to ensure consistency with State law and the City's General Plan Policies, define a predictable and reliable means of approving projects, and ensure appropriate long term protection of Tribal Cultural Resources. To meet these goals the City, within the areas of its authority, will establish improved guidelines for Native American tribal consultation and the protection of Tribal Cultural Resources in a way that is respectful to California Native American Tribes. POLICY: To the extent allowed under the authority of the City, the City shall guide all development projects on private property and projects on City-owned properties to be designed and constructed in a manner to avoid or substantially reduce impacts to Tribal Cultural Resources, as they are defined by State Law, and to establish and adopt preservation measures to maintain their permanence in protection. To facilitate this Policy, the City shall consult with California Native American tribes that are traditionally and culturally affiliated with the City, including San Luis Rey Band of Mission Indians, early in the design process of development projects on City-owned properties and early in the permit process of development projects on private property to avoid or substantially lessen potential adverse impacts to Tribal Cultural Resources that may occur as a result of a proposed project. The City shall Page 1 update its Cultural Resource Guidelines to incorporate State definitions of Tribal Cultural Resources, require consultation in the detection, treatment and protection of Tribal Cultural Resources for all Projects on City-owned lands and on private property to the full extent of the City's authority, ensure a complete understanding by project proponents, including the City and Tribal Representatives, of current and previous mitigation commitments for Tribal Cultural Resources, and provide improved protocols for ensuring the permanence of preservation mitigation measures. Page 2 of 2 SAN LUIS REY BAND OF MISSION INDIANS 1889 Sunset Drive • Vista, California 92081 760-724-8505 • FAX 760-724-2172 www.slrmissionindians.org February 23, 2016 Christer Westman Senior City Planner Planning Division City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 VIA ELECTRONIC MAIL Christer.Westman@carlsbadca.gov RE: REVISED POSITION REGARDING THE FINAL ENVIRONMENTAL IMPACT REPORT FOR THE CITY OF CARLSBAD'S WESTIN HOTEL AND TIMESHARE PROJECT Dear Mr. Westman: We, the San Luis Rey Band of Mission Indians (SLR) thank you for the opportunity to submit the following revised comments regarding the Final Environmental Impact Report (FEIR) for the City of Carlsbad's (City's) Westin Hotel and Timeshare (Project). SLR respectfully requests that our comments on the FEIR be accepted in the Administrative Record for this Project and reflect that SLR is no longer in opposition of the FUR, a position which differs from our previous comments submitted to the City on January 26, 2016. After arduous consultation efforts between the City and SLR regarding the implementation of culturally sensitive and culturally appropriate treatment measures for this particular Project's FEIR, and the City's renewed commitment to the protection and preservation of tribal cultural resources% SLR is satisfied with the mitigation measures proposed within the FEW, as memorialized in the City of Carlsbad Memorandum to the City Council from Christer Westman, Errata Sheet for Agenda Item #8, dated February 23, 2016. 1 See City of Carlsbad Resolution No. 2016-042 and City Council Policy No. 83. Final Environmental Impact Report For The Westin Hotel and Timeshare SLR Removal of Opposition to FEIR Page 1 of 2 In conclusion, the San Luis Rey Band of Mission Indians appreciates this opportunity to provide the City of Carlsbad with our revised comments on the Final Environmental Impact Report for the City of Carlsbad's Westin Hotel and Timeshare. We look forward to working with the City to guarantee that the requirements of CEQA are rigorously applied to this Project and all projects. We thank you for your continuing assistance in protecting our invaluable Luisa() cultural resources. Sincerely, Merri Lopez-Keifer Chief Legal Counsel cc: Mel Vernon, SLR Captain Carmen Mojado, SLR Secretary of Government Relations Terrie Robinson, General Counsel for the Native American Heritage Commission (via email) Celia Brewer, City Attorney for the City of Carlsbad (via email) Final Environmental Impact Report For The Westin Hotel and Timeshare SLR Removal of Opposition to FEIR Page 2 of 2 TESTIMONY OF MELVIN VERNON CAPTAIN OF THE SAN LUIS REY BAND OF MISSION INDIANS CITY OF CARLSBAD CITY COUNCIL HEARING RESOLUTION 2016-042 and CITY COUNCIL POLICY 83 February 23, 2016 Good evening. My name is Mel Vernon. I am the Captain of the San Luis Rey Band of Mission Indians. My fellow tribal members and I are descendants of Carlsbad's First People. Resolution 2016-042 and City Council Policy 83 are welcomed by my people as exemplary examples of this City's commitment to its First People and tribal cultural resources. We look forward to an improved relationship with the City of Carlsbad in the protection and preservation of our sacred tribal cultural resources and traditional cultural landscapes. The unfortunate events that brought about the City's renewed commitment to our sacred resources have caused our tribe great pain and distress. Any time a development threatens to desecrate our sacred places; our tribe is prepared to extinguish that threat. The City's commitment to adopt and follow Cultural Resource Guidelines that acknowledge the positive impact of requiring early tribal consultation during the permitting and planning processes, and requiring culturally sensitive and appropriate treatment for tribal cultural resources is applauded. Moreover, requiring enhanced ,rotections and preservation measures for tribal cultural resources reflects the City's commitment to eat tribal cultural resources through the tribal perspective- the perspective of the descendants of whose remains and sacred items are being unearthed. We commend the City for the adoption of Resolution 2016-042 and City Council Policy 83 and are hopeful that they may become the model for other local governments. In closing, I would like to thank the City Attorney, Celia Brewer, for her assistance in helping bring this matter to the forefront with the City Council. I would like to thank Deputy City Attorney Ronald Kemp, Senior City Planner Christer Westman, and outside counsel for the City, Ted Griswold each for their commitment to bringing the Resolution and the Council Policy to fruition. I understand it was not an easy task, and I would like to acknowledge their dedication in bringing an appreciation of the importance of incorporating a tribal perspective to the City's goal of preserving our tribal cultural resources. I would also like to thank San Luis Rey's Tribal Council in their tireless efforts in the protection and preservation of our ancestors' cultural heritage. A special gratitude for our tribal representatives, Cami Mojado, SLR's Cultural Resources Manager, Carrie Lopez, SLR's Senior Policy Advisor, and Merri Lopez-Keifer, SLR's Chief Legal Counsel, for their collective efforts and acts of perseverance. Thank you.