The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.

Abandoned cemetery means a cemetery which shows signs of neglect, including, without limitation, the unchecked growth of vegetation, repeated and unchecked acts of vandalism, or the disintegration of grave markers or boundaries and for which no person can be found who is legally responsible and financially capable of the upkeep of such cemetery.

Archaeologist means any person who is a member of or meets the criteria for membership in the Society of Professional Archaeologists and can demonstrate experience in the excavation and interpretation of human graves.

Burial ground means an area dedicated to and used for interment of human remains. The fact that the area was used for burial purposes shall be evidence that it was set aside for burial purposes.

Burial object means any item reasonably believed to have been intentionally placed with the human remains at the time of burial or interment or any memorial, tombstone, grave marker or shrine which may have been added subsequent to interment. Such terms also means any inscribed or uninscribed marker, coping, curbing, enclosure, fencing, pavement, shelter, well, stoneware, pottery, or other grave object erected or deposited incident to or subsequent to interment.

CCCPC means the Cherokee County Cemetery Preservation Committee.

Cemetery means any land or structure in this state dedicated to and used or intended to be used for interment of human remains. It may be either a burial park for earth interments or a mausoleum for vault or crypt interments or a combination of one or more thereof.

County coroner means a person elected pursuant to law as county coroner.

Descendant means a person or group of persons related to a deceased human by blood or adoption in accordance with O.C.G.A. § 19-1-1 et seq., as amended.

Genealogist means a person who traces or studies the descent of persons or families and prepares a probative record of such descent.

Human remains means the bodies of deceased human beings in any stage of decomposition, including cremated remains.

Notifying means to develop and implement a plan pursuant to O.C.G.A. § 36-72-5, as amended.

Preserve and protect means to keep safe from destruction, peril, or other adversity and may include the placement of signs, markers, fencing, or other such appropriate features so as to identify the site as a cemetery or burial ground and so as to aid in the preservation and protection of such cemetery or burial ground.

Considering the fact:

(1)

That this city has been richly blessed with the heritage and history of its people who are now deceased;

(2)

That many of these people, in their time, were native pioneers of the county who have played an integral part in making this city what it is today;

(3)

That many of those who have passed on have been memorialized with resting places in cemeteries, graveyards, and burial grounds that have been abandoned, desecrated, neglected, unmarked, and are threatened by unknowing development; and

(4)

That such abandoned, desecrated, neglected, and unmarked cemeteries, graveyards, and burial grounds are not a befitting tribute to such honorable citizens of the past;

therefore, it is the desire of the city council to provide for the preservation, protection, and maintenance of all such family and community cemeteries, graveyards, and 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.

(a)

Any person who knows or has reason to know that a human burial ground 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.

(b)

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 city clerk.

(c)

In any development consisting of two or more residential units, when human remains are discovered, all land-disturbing activities that may affect a normal burial ground shall immediately cease and the discovering party shall notify the local law enforcement agency and the medical examiner of the discovery. The developer shall also be required to run an ad in the legal section of the city legal organ to notify any interested parties. 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. 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 had to the city council. No land disturbing activity shall resume without the express written authorization from the county coroner or his designee.

(d)

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.

(e)

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

(a)

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. title 36, ch. 37, or as it may be amended from time to time, and following the requirements of this article.

(b)

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.

(c)

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. title 36, ch. 37, as may be amended from time to time, and not follow the provisions of this article.

(d)

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

Any person or entity seeking a permit pursuant to O.C.G.A. § 36-72-4 shall first comply with the following:

(1)

An application shall be filed with the CCCPC in a form to be approved by the city council but at a minimum 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 the 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.

(2)

The application shall be submitted to the CCCPC for review and recommendations.

(3)

The applicant shall be required to post the nearest public road and the burial ground not less than 80 days prior to a public hearing to be conducted by the CCCPC or the city council.

(4)

The city council shall be charged with determining the sufficiency of the application submitted as to the following:

a.

Notice of descendant.

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 re-interment.

(5)

Within 15 days after the city council is satisfied that all reasonable efforts have been made to notify descendants, as provided in O.C.G.A. § 36-72-6, and following receipt of any recommendations made by the CCCPC, the city council 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.

(6)

Within 30 days after the conclusion of the public hearing, the city council shall notify the applicant in writing of its decision. The city council 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 direct the issuance of 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 city council may adopt the applicant's proposal for mitigation.

(7)

The city council shall consider the following in making its determination:

a.

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

b.

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

c.

The economic and other costs of mitigation.

d.

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

e.

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.

f.

Any other compelling factors which the city council deems relevant.

(8)

Should any applicant or descendant be dissatisfied with a decision of the city council, he may file an appeal, within 30 days of such decision, in the 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 city council. If an appeal is filed, the applicant may begin or resume activities which comply with the permit only upon consent of the city council and the party seeking judicial review or upon the order of the reviewing court for good cause shown.

(9)

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

(10)

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 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—36-72-8, as may be amended from time to time.

The fee for filing an application for a permit under this article shall be established by the county pursuant to O.C.G.A. § 36-72-10.

(a)

Any violation of the provisions of this article by any person is hereby deemed to be a violation of a an offense. The zoning administrator, the county's code enforcement personnel, or any law enforcement officer of the county or city is hereby authorized and directed, upon discovery of any violation of any provision of this article, to issue a citation for the violator to appear before the appropriate court on a day and time certain to answer to the charges.

(b)

In addition to any other remedy provided in this article, the city may seek injunctive relief to cease and remove any violations of this article in the appropriate court against the appropriate person or entity.

(c)

Any violation of this article is hereby deemed to be a continuing nuisance and may be abated by an application for injunction or other proceedings allowed by law in the appropriate court.