§ 24.10. Cemetery discovery and preservation.

(a)

Exemption for identification of burial grounds. The county coroner is exempt from the requirements of this article for the purposes of identification of burial grounds by probing, magnetometer, or such other processes recognized by the archaeological community.

(b)

Notification of disturbed burial ground.

(1)

Any person who knows or has reason to know that a human burial is being disturbed, destroyed, defaced, mutilated, removed, excavated, or exposed shall immediately notify the local law enforcement agency with jurisdiction in the area where the burial ground is located.

(2)

Any law enforcement agency, county department, or other source which finds evidence or receives a report that a burial ground has been located or disturbed shall notify the county coroner and the CCCPC.

(3)

When human remains are discovered, all land disturbing activities that may affect a burial ground shall immediately cease and the discovering party shall notify the local law enforcement agency and the medical examiner of the discovery. Within 48 hours, the medical examiner and local law enforcement shall determine whether or not the grave is part of a cemetery. If it is determined that the grave is part of a cemetery, then the county coroner shall undertake efforts to identify and preserve the burial ground. The property owner shall also be required to run an ad in the legal section of the Cherokee County legal organ to notify any interested parties of the cemetery discovery. If it is determined that it is not a cemetery site, then the local law enforcement agency, in conjunction with the medical examiner, shall be responsible for proper disposition of the remains. Once the county coroner has established the approximate boundaries of the burial ground, there shall be established a protective buffer not less than 50 feet and a six-foot high chain link fence with proper access from the development to the cemetery provided. An appeal of this determination may be made to the zoning board of appeals. No land disturbing activity shall resume without the express written authorization from the county coroner or his designee.

(4)

When the buffer requirement shall apply to a cemetery developed in connection with a church; the buffer requirement shall extend from the property line of the church property.

(5)

The above requirement shall not apply for those residential lots established for legacy purposes.

(c)

Prohibited acts.

(1)

It shall be a violation of this article to willfully disturb, destroy, deface, mutilate, remove, excavate or expose a burial place without first obtaining a permit pursuant to O.C.G.A. § 36-72-1 et seq., or as it may be amended from time to time, and following the requirements of this article.

(2)

It shall be a violation of this article to fail to report the discovery of human remains or to notify the local authority of the disturbance of a burial ground.

(3)

It shall be a violation of this article should any person or entity seeking a permit to disturb a burial place pursuant to O.C.G.A. § 36-72-1 et seq., as may be amended from time to time, and not follow the provisions of this article.

(4)

It shall be a violation of this article for any person or entity to fail to comply with the provisions of an approved permit.

(d)

Cemetery preservation application. Any person or entity seeking a permit to develop land on which a cemetery is located pursuant to O.C.G.A. § 36-72-4 shall first comply with the following:

(1)

An application shall be filed with the planning and land use department including the following information:

a.

Evidence of ownership of the land on which the cemetery or burial ground is located in the form of a legal opinion based upon a title search.

b.

A report prepared by an archaeologist stating the number of graves believed to be present and their locations such as can be determined from the use of minimally invasive investigation techniques, including remote sensing methods and the use of metal probes, which activities shall not require a permit.

c.

A survey prepared by or under the direction of a registered surveyor showing the location and boundaries of the cemetery or burial ground based on an archaeologist's report.

d.

A plan prepared by a genealogist for identifying and notifying the descendants of those buried or believed to be buried in such cemetery.

e.

A proposal for mitigation or avoidance of the effects of the planned activity on the cemetery or burial ground. If the proposal includes relocation of any human remains or burial objects, the proposal shall specify:

1.

The method of disinterment;

2.

The location and method of disposition of the remains;

3.

The approximate cost of the process; and

4.

The approximate number of graves affected.

(e)

Cemetery preservation process.

(1)

The application shall be submitted to the planning director for review and recommendations. The planning director shall be charged with making recommendations regarding the sufficiency of the application submitted as to the following:

a.

Notice of descendants.

b.

The plan for mitigation and avoidance.

c.

The disturbance and adverse effects on the cemetery or burial ground.

d.

The survey of the cemetery.

e.

The plans for disinterment and reinterment.

The planning director may consult with any county staff, committees or individuals that might have an interest in the application in order to prepare the recommendations.

(2)

The planning director shall make a written recommendation within 30 days to the board of commissioners or the superior court of the county, whichever may have jurisdiction.

(3)

Within 15 days after the board of commissioners is satisfied that all reasonable efforts has been made to notify descendants, as provided in O.C.G.A. § 36-72-6, the board of commissioners shall schedule a public hearing at which any interested party or citizen may appear and be given an opportunity to be heard. In addition to the notice required by O.C.G.A. § 36-72-6, notice of the public hearing shall be advertised in the legal organ of the county once a week for two consecutive weeks immediately preceding the week in which the hearing is held. The applicant shall be required to post notice signs at the nearest public road and the burial ground not less than 60 days prior to a public hearing to be conducted by the board of commissioners.

(4)

Within 30 days after the conclusion of the public hearing, the board of commissioners of Cherokee County shall notify the applicant in writing of its decision. The board of commissioners shall have the authority to deny the application, with written reasons therefore, to issue a permit adopting the application in whole or in part, or to issue a permit, which may include additional requirements to mitigate the proposed activity's adverse effects on the cemetery or burial ground, including, but not limited to, relocation of the proposed project, reservation of the cemetery or burial ground as an undeveloped area within the proposed development or use of land, and respectful disinterment and proper disposition of the human remains. The board of commissioners may adopt the applicant's proposal for mitigation.

(5)

The board of commissioners shall consider the following in making its determination:

— The presumption in favor of leaving the cemetery or burial ground undisturbed.

— The concerns and comments of any descendants of those buried in the burial ground or cemetery and any other interested parties.

— The economic and other costs of mitigation.

— The adequacy of the applicant's plans for disinterment and proper disposition of any human remains or burial objects.

— The balancing of the applicant's plans for disinterment with the public's and any descendant's interest in the value of the undisturbed cultural and natural environment.

— Any other compelling factors which the governing authority deems relevant.

(6)

Should any applicant or descendant be dissatisfied with a decision of the board of commissioners, he may file an appeal, within 30 days of such decision, in the county superior court. Until the expiration of time for appeal as set forth in O.C.G.A. § 36-72-11, the applicant shall not begin or resume activities which comply with the permit issued by the board of commissioners. If an appeal is filed, the applicant may begin or resume activities which comply with the permit only upon consent of the board of commissioners and the party seeking judicial review or upon the order of the reviewing court for good cause shown.

(7)

The county coroner shall be responsible for inspecting and determining whether the provisions of the permit have been properly completed.

(8)

Notwithstanding any provisions of this article to the contrary, when any agency, authority, or political subdivision of the state seeks to file an application for a permit under this article, the county superior court shall have exclusive jurisdiction over the permit application. The superior court shall conduct its investigation and determination of the permit in accordance with O.C.G.A. §§ 36-72-6 through 36-72-8, as may be amended from time to time.

(f)

Same fees. The fee for filing an application for a permit under this article shall be established by the board of commissioners pursuant to O.C.G.A. § 36-72-10, as may be amended from time to time.

(Ord. No. 2012-Z-002, Att., 7-24-12)