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HomeMy WebLinkAbout1994-07-11 94-318 ORDINANCE©9f%JN4S 1 s1994 Date Tu17 11, Item No. 94-318 Items/Subject: Amending Land Development Code - 743 and 959 Broadway Responsible Montanans: planning Division Commentary: For Referral to Planning Board. Applicant is requeati� e contPastroare elsecgnge for property located at 743 and part of 759 Broadway from Bigg D 8ity Residential Mstriot to Gwetament and 1nstltutiorel Service District. peprcnum / nA Manager's comments: - - G d;,y Mavagn Anociate l Iniormetion Budget Approval: oinautDree Legal Approval: err ser ;m. Introduced For O passage F-1 First Reading Poge_pi_ 11 Referral to Plaz rag Board - utical Actn uoJuly 2501994 Date Item No.94-318 Amending Lend Development Code - 943 and 959 Broadway - Item/subject:. C.O. N 94-318 Responsible Department: Piarming Division Commentary: The Planning Bawd at its regularly scheduled meeting of July 19, 19%, held a public bearing on the above-noted contract zone charge request. John Tozer, the applicant, spoke in favor of the proposed change. No one spoke In opposition. The Planning Board voted 5 in favor' an8-0'apposed to e motion to recomaend to the City Council that the contract zone change request contained in C.O. M 94-318 be approved. ,stem nese Manager's Comments: CiIY MmwBn Associated lntormmior:pj„,Jiq%,ata/ ft1q1 Dudget Approval: u r 111 _14wore Legal Approval: fK S/�RenW /,1M ✓r�� K� nY solirirm mk P.- Introduced For ®Passage ❑ First Reading Page _ of ❑ Referral 94-318 eWlpmdto Cyanula Baldacci July ll, 1994 CITY OF BANGOR MLE.) @rbhLmtt; _.. (wending Lamd.Developsent Code._. ............... 743 and 759 Broadway .. _....... _... .............. _.... ............... Be k ordyiwd 6y Gw Lite CoumzU of W City WBawaor, aefoPow: 7PIAT the zoning boundary lies as established by the Zoning Nap of the City of Bangor dated October 28, 1991, as amended, be hereby further amended as follows: By changing parcels of land located at 743 and 759 Broadway (Tax Map No. R-41, Parcel No. 18 and part of Parcel No. 19B) from High Residential District to Government and Institutional Service District. Said parcels of land containing approximately 18,000 sq. ft. and being more particularly indicated on the map attached hereto and made a part hereof. PROVIDED, HOWEVER THAT, in addition to the mandatory conditions imposed by Chapter VIII, Article 2, Section 6.6 of the Ordinances of the City of Bangor, said change of sone is granted subject to the fallowing conditions: A. Pursuant to the Land Development Code, Article 20, a "C" bufferyard will be established and maintained along the northerly property line and existing vegetation will be maintained along the easterly property line. B. A free standing sign will be limited to 32 square feet. C. The building shall retain its residential character and to that end, there shall he no alterations of the exterior of the building which results in a change in appearance of its overall proportions or facade through such changes as altering the roof line, eaves line, or installing significantly larger windows. D. Neither the floor area nor the Cubic footage of the interior of the building as it exists as of the date of ,this contract shall be expanded. IN CITY COUNCIL July II 94-318 1994 } First Reading ORDINANCE Referredto Planning board TITLE,) Amending Land Development Code - CM RN 743 and 759 Broadway. IN. CITY COUNCIL July 25, 1994 Vote for Passage' 9 yes, Voting yes: (�1� Baldacci, Blanchette. Cohen, Leone o Popper, Shubert, Soucy, Stone, Sul an, Tyler. ZgPe ilke0 � Cvuc lLam CITY VERS �llzl��:r 94-318 0.. HDR TO G&ISD CONTRACT 90-318 7/1/93 APPLICATION FOR LAND DEVELOPMENT CODE AND NAP AMENDMENT TO: THE CITY COUNCIL AND DATE THE PLANNING BOARD OF BANGOR, MAINE:. NO. 1. I(WE) Tohn F. Tozer 2. of 943 Broadway Bangor, ME 04401 945-3555 Address City or Poet Office Telephone hereby petition to amend the Land Development Code of the City of Bangor, Maine by reclassifying frown Ron district to the O & 1W district for the Property outlined in red.on the maps attached hereto, which are part of this application, and described as follows: 3. ADDRESS OF PROPERTY (if any) TL3 Broadway end a mrti� of 959 BroaawAv Total Area (acres or square feet) 18.000 s _ ft 4. PROPERTY LOCATION (General location): Example - South aide of - State Street 400 yards. East of Pine Street Part of 19B 5. LEGAL DESCRIPTION OF PROPERTY - Assessors Nap No. R_41,Parcel 18 6. EXISTING USE: Dental Office 7. PROPOSED USE: Dental Office S. MANE AND ADDRESS OF OWNER OF RECORD: Name .inn.• s Tozer Address 741 Broadway. R,. or. M=ine 9. NAME AND ADDRESS OF CONTRACT OWNER (if such): 10. SIGNATURE OF OWNER OR CONTRACT OWNER: " /a/ .loom F Tine. n M n 11. REPRESENTATIVE OF APPLICANT: Baine (if applicable) - - Address 12. ATTACH ANY CONDITIONS PROPOSED FOR A CONTRACT ZONE REQUEST. RETURN FORE 6 DUPLICATE TPLANNING DIVISION, CITY HAL E.. Application fee I I I Processina Advertisina Total Zone Change (1/2 acre or less) .$281.75 $200.00* $481.75 'Zone Change (in excess of 1/2 acre) $451.00 $200.00* $651.00 Contract Zone Change $676.25 .. $250.00* $926.25 *Tao Ads Required PLEASE READ PROCESSING PROCEDURE ON REVERSE SIDE LAND DEVELOPMENT CODE AMENDMENTN CHANGE) PROCEDURES A. The Bangor Land Development code res: 1. Applications for zoning amendment must be filed in the Planning Division Office at City Hall (with necessary advertising and processing fees). 2.. A council Order containing the proposed zoning amendment must be drawn up by the Planning Office and placed on the Council Agenda. 3. A public hearing must be scheduled to be held by. the Planning Board on the proposed amendment (the City Council can take no action until after the Planning Board hearing and report). 4. A notice of the public hearing must be placed in a newspaper at least 10daysprior to the hearing and a notice must be mailed to owners of abutting property within 100 feet of the property subject to rezoning action. 5. A public hearing sign (picked -up in the Planning Office) must be posted on the proposed property 10 days prior to the Planning Board 'a public hearing. 6.At least three affirmative votes are necessary for Planning Board Recommendation ofthe zoning amendment. ]. After receipt of the Planning Board recommendation the City Council must act on the zone change request.' (However, a proposed amendment which has been disapproved by the Planning Board may only be enacted by a 2/3"vote of the City Council). C. Scheduling 1. A zone change request must be received by the Planning Office at least two weeks prior to the time of the Planning Board meeting at,which the hearing sill be held (because of the time required for placement of legal advertisements in the newspaper and initiation of the request on the City Council Agenda). 2. The Planning Boardmeats twice a month on the first and third Tuesdays at 7:30 p.m. and the City Council meets twice a month on the second and fourth Mondays at 7:30. p.m. (Except on holidays)..._. Notification You will receive notice of the public hearing held by the Planning Board. After the Planning Board has voted on its. recommendation to the City Council concerning your e 1 'regular meeting. You will rot receive formal notice of the City Council meeting. If you have any questions regarding the status of your application, you should contact the Planning Office, City Hall, 945-4400, Ext. 206. 94-318 Excerpt from Staff Memorandum for July 19, 1994 Planning Board Meeting Item . No ]i Contract zone Change - 743-753 Broadway - John E. Toeer - C.O. 0 94-318 a. General Description. Applicant requests a contract sone change from High Density Residential to Government and Institutional Service District for an existing property at 143 Broadway and a small portion of an abutting lot which is presently used for parking. The total area of the combined parcels is approximately 18,000 sq. ft. and the axisting building contains a residential use on the second floor and approximately 1,300 sq.. £t. of office space on the first floor. The proposal is to use the property as it is presently used for the dentist's office. The use was established under a variance granted by the zoning Board of Appeals in 1985 which carried a limit on the number of employees which could be housed on the ground floor of the building. The doctor needs to have additional employees and therefore is requesting a contract zone change to Government and Institutional Service. I. Land Use and Zoning Policy. The City's land use policy and zoning policy for this area have been reviewed several times recently. The area is proposed to be zoned as it is for High Density Residential. The land use policy for this area consists of a complex of commercial use from along Broadway from 1-95 to School Street and Husson Avenue and up Hillside Avenue. It calls for High Density Residential in the Husson Avenue area and over to Broadway from the Grandview Avenue intersection to the commercial area further in -town. There is a large complex of Government and Institutional Service use contemplated for the Husson College site and the existing high school property and the large church parcel further out Broadway. C. Urban Services. The area is adequately serviced and is well within the primary service area for this part of.the City. d, Existing conditions. The existing land use in the immediate area consists of several single-family uses on both sides of Broadway below Grandview Avenue, including both single- family and multi -family properties located immediately behind and further in -town (toward the commercial parcel on School Street) from the site. Directly across the street is a large government and institutional service use, the Rose Manor Nursing Home. The land to the rear of the residential uses on the cul-de-sac (of which this parcel is one) is presently vacant. The present use of the parcel, which is on the c of the cul-de-sac serving several residential propertiesinthe immediate area and Broadway, is for the existing dentist office with associated parking. The 94-318 contract conditions would require the maintenance of a •C" buffer yard along the northerly boundary of the site and the maintenance of extensive existing vegetation on the easterly property line between the site and a residential use located to the rear of the property from Broadway. The third condition would require the building to be maintained in its present exterior condition and would prohibit any change in the overall proportions of the building or alternation of any elements of the building to change it from its residential character. The final condition limits the floor area and the cubic footage of the building to the existing structure. e. Recommendation. The basic criteria for zoning is that it be consistent with the City's Comprehensive Plan. The property ------ in question is approximately at the junction of three different types of land use policyi- commercial, high_ density residential; and goverment and institutional services, although the commercial and high density residential land use policy is closest to the site in question. The zoning policy is for the existing zoning, which is high density residential, and were it not for the fact that there is an existing multi -use residential and office structure on the site, it would appear inappropriate to change the zoning. The close proximity of a government and institutional service use on the site directly across Broadway housing the Ross Manor nursing home (even though the property is not zoned goverment and institutional service) might provide a rationale for the imposition of such zoning on this parcel. It could be argued that with the contract conditions limiting the use and extent of the parcel, that the impact on the area of the zone change would be negligible. Staff feels that the contract conditions are appropriate to restrict an expansion of the existing activity, but has some reservations about the conclusion that this request is strictly in conformity with the policies of the City's Comprehensive Plan. 94-318 2. Execution by those parties with an interest in the affected property of an agreement providing for the implementation and enforcement of all the terms and conditions set forth above and the recording of said executed agreement i the Penobscot County Registry of needs by the property owner, a copy of said agreement being on file in the office of the City . Clerk and incorporated herein by reference In the event that said agreement i not s executed within ninety (90) days from the date of passage hereof, Ordinanceshellbecame null and void. yj tlNY 16 P7'Lb MEMORANDUM AiY DATsi May 25, 1995 T0: Russ McKenna, City Clerk FROM: Planning Division SUBJBCT: Original Copy of Contract Zoning Agreement for 743 Broadway Attached is the original copy of the Contract Boning Agreesmant between the City of Bangor. and aroadway-Dental_— Associates and John Tozer. P1'aase file this with C.O. % 94-318: OK5712 PGO64 03999G CONTRACT ZONING AGREEMENT THIS AGREEMENT is made as of Sapb 6 L , 1994, by and between the CITY OF BANGOR, a municipal corporation with a place of business located at 73 Harlow Street, in Bangor County of Penobscot, State of Maine and BROADWAY DENTAL ASSOCIATES, P.A., a Maine Partnership, with its principal place of business located in Bangor, County of Penobscot, State of Maine and JOHN E. TOZER, of Hampden, County of Penobscot, State of Maine; WITNESSETH: WHEREAS, Broadway Dental Associates, P.A. and John E. Tozer are the owners of record of a certain parcel of land situated in Bangor, County of Penobscot, State of Maine, said land being located at 743 Broadway and a Portion of 759 Broadway, and being identified on City of Bangor Assessor's Map No. R-41, as Lot 18 and a Portion of Lot 198. Reference may be had to deeds recorded in the Penobscot County Registry of Deeds in Volume 5467, Page 307 and Volume 3648, Page 243, for a more particular description of said land; and WHEREAS, pursuant to 38-A M.R.S.A. Section 4352 and Chapter VIII, Article 2, Sec. 6.6 of the Laws and Ordinances of the City of Bangor, application was made for a contract zone change, so-called, to reclassify esaid parcel of land (said parcel hereinafter being referred to a the subject premises") said parcel comprising a land area of approximately 18,000 sq. ft., all as set forth in Exhibit A attached hereto and incorporated herein by reference, from a High Density Residential District to a Government and Institutional Service District under the Land Development Code of the City of Bangor, said application proffering certain conditions o restrictions relating to the physical development and/or operation of the subject premises; and WHEREAS, subsequent to a public hearing on the matter, and after due consideration given to the recommendations of the Planning Board, the Bangor City Council adopted Council Ordinance 94-318, whereby it reclassified the subject premises from a High Density Residential District to a Government and Institutional Service District under the Land Development Code of the City of Bangor subject to certain restrictions and/or conditions, a copy of said Council Ordinance 94-318 and the restrictions and/or conditions contained therein being attached hereto as Exhibit B and incorporated herein by reference. NOW THEREFORE, in consideration of the reclassification of the subject premises from a High Density Residential District to a Government and BK57I2 PGO65 Institutional Service District under the Land Development Code of the City of Bangor, the parties hereto agree as follows: 1. Broadway Dental Associates, P.A. and Sohn E. Tozer, their successors and assigns, hereby covenant and agree that the use, occupancy and/or development of the subject premises, in addition to other applicable laws, ordinances, or regulations of the City of Bangor, shall be subject to the following restrictions and/or conditions on the physical development or operation of said property: A. Pursuant to the Land Development Code, Article 20, a "C" buf£eryard will be established and maintained along the northerly property line and existing vegetation will be maintained along the easterly property line. B. A free standing sign will be limited to 32 square feet C. The building shall retain its residential character and to that end, there shall be no alterations of the exterior of the building which results in a change in appearance of. its overall proportions or facade through such changes as altering the roof line, eaves line, or installing significantly larger windows. D. Neither the floor area nor the cubic footage of the interior of the building as it exists as of the date of this contract shall be expanded. 2. The Owners hereby agree that the above -stated restrictions, provisions, conditions, covenants, and agreements are made anessential part of this Agreement, shall run with the subject premises, shall bind the their s and assigns to or of said property o any part thereof s or any interesttherein, and any party in possession or occupancy of said property or any part thereof, and shall inure to the benefit of, and be enforceable by, the City of Bangor, by and through its duly authorized representatives, and the owner or owners of any abutting parcels of land. 3. The owners hereby agree that if they, or any person claiming under or through them, shall at any time violate or attempt to violate, or shall mit to perform or observe any one or more of the foregoing restrictions, provisions, conditions, covenants, and agreements, the City of Bangor and the abutting landowner(s) 'shall have the following remsedies, which may be exercised by the City of Bangor either jointly or severally: a. The City of Bangor shall have the right to prosecute solations of this Agreement in the same manner that it is authorized to prosecute violations under the Land Development Code of the City of Bangor in effect at the time of said solations. For the purposes herein, a violation of this Agreement shall be deemed s violation of said Land Development Code and shall be subject to the penalty provisions of said Code in effect at the time of violation. Each day that a violation is permitted to exist after notification of the same pursuant to said Code shall constitute a separate offense. BK5712 PG066 b. The City of Bangor and/or the owner or owners of parcels of land which abut the subject premises shall have the right to institute any and all actions or proceedings, including the right to enforce all the terms and provisions of this Agreement by injunction, legal and equitable actions and all other lawful process for the enforcement of the same. The Owners further agree that the failure of the City of Bangor or the owner or ars of abutting parcels to object to any violation, however long continued, or to enforce any restrictions, provisions, conditions, covenants, or agreements contained in this Agreement shall in no event be deemed a waiver of the right to do so thereafter as to the same breach or violation or as to any breach or violation occurring prior to or subsequent thereof. 4. The City of Bangor and the Owners hereby agree that the provisions of this Agreement shall remain in full force and effect until such time a the same may be modified, amended, repealed, and/or replaced upon their written agreement. It isexpressly understood by the parties hereto that anyc such change shall be in accordance with the laws of the State of Maine and the Land Development Code of the City of Bangor, shall be treated as an amendment to said Ordinance and shall be processed accordingly. 5. The parties hereto hereby agree that nothing in this Agreement shall be construed s s a to preclude the future exercise of the Bangor City Council's legislative authority relative to the zoning of the subject premises. In the event that the zoning of said premises is changed by the City Council, any a established under the provisions outline in paragraph 1, subparagraphs A.., B., C., and D., above, subject to the restrictions, provisions, conditions, covenants, and agreements contained in this Agreement, shall be allowed to continue as a nonconformity or a nonconforming whichever the c may be, in accordance with the provisions of the Land Development Code, as may be in effect at the time of said zone change, governing the same. 6. The parties hereto hereby agree, for themselves, their successors and assigns, to waive any and all rights to challenge the validity of Council Ordinance 94-318 or the terms of this Agreement. ]. The parties hereto hereby agree that if one of the restrictions, pro conditions, covenants, and agreements, or portions thereof, contained yin this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such determination shall not affect the validity of the remaining portions hereof. Provided, however, that parties hereto hereby further agree that in the event any of the contracted provisions contained in paragraph 1, subparagraphs A., B., C., and D, above, are invalidated or such other provision is invalidated so as to constitute a material change in the astrictions, provisions, conditions, covenants, and agreements negotiated by and between the parties, the City of Bangor or abutting land owners shall have the power to seek a reversion and/or change of the zoning of the subject premises to the current zoning classification as may.be in effect at the time of the processing of any such reversion and/or change. Said reversion and/or BK5712 PGO67 change may be initiated by a representative of the City of Bangor or an abutting property owner to the subject premises, shall be processed in accordance with the procedure established for an amendment to the Land Development Code in affect at the time, and shall be evaluated in accordance with the criteria established for the review of zone change applications. It being the intent of the parties hereto that the owner shall not be allowed to benefit from the zone change for the subject premises in the event that the City of Bangor or abutting landcwners are deprived of the conditions negotiated to minimize the negative externalties Of the requested rezoning. 8. Except as expressly modified herein, the use and occupancy of the subject premises shall be governed by and comply with the provisions of the Land Development Code Ordinance of the City of Bangor and any applicable amendments thereto or replacement thereof. IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the day and year first above written. xfr wlt e as wfy ess BROADWAY DENTAL ASSOCIATES, P.A. AR4r4 BY: ames M. Se e , Its vice esident CITY OF BANGOR City Manager BK5712 PG068 STATE OF MAINE Penobscot, as., 5 E'p%, pZ , 1994 Then personally appeared the above-named James M. Sevey and acknowledged the foregoing to be his free act and deed in his said capacity as Vice Present and the free act and deed of the said Broadway Dental Associates, P.A. 'Before me, /Odlni eo `1]A 01� 3 Printed Me Nam a- y Notary Public Attorney STATE OF MAINE Penobscot, as. 0Ep7-, a ,1994 Then personally appeared the above-named John E. Tozer and acknowledged the foregoing to be his free act and deed. Before me, Printed Narte:T� /E6 q�e�/�, Notary PublicAtA�6 _ __ _-.. STATE OF MAINE O 4``SEAt Penobscot, as. Then personally appeared the above-named Edward A. Barrett and acknowledged the foregoing to be his free act and deed in his said capacity as City Manager and the free act and deed of said City of Bangor. Before me, "I RL�\Ff. Printed Nam :,EITR/ /ty6 _ds�ic — — 9 Notary Public 94-318 2K5712 rc069 Aeeig a to0aaaaor Baldacci July Il, 1994 ..v CITY OF BANGOR (TITLE.) @WMIUMP------- ........ Amending Laaa_nayelolment code..... ................. rrm Be B eq%6W 6m Be CBy Comma of He CRm ofBsemr. ae I _. 'f HAT the zoning boundary lies as established by the Zoning Map of the .City of Bangor dated October 28, 1991, as amended, be hereby further amended as follows: 0 By changing parcels of land located at 743 and 759 Broadway (Tax Map No. R-41, Parcel NO. 18 and part of Parcel No. 19B) from High Residential District to Government and Institutional Service District. Said parcels of land containing approximately 18,000 sq. ft. and being more particularly indicated on the map attached hereto and made a part hereof. PROVIDED, HOWEVER THAT, in addition to the mandatory conditions imposed by Chapter VIII, Article 2, Section 6.6 of the Ordinances of the City of Bangor, said change of zone is granted subject to the following conditions: A. Pursuant to the Land Development Code, Article 20, a "C^ bufferyard will be established and maintained along the northerly property line and existing vegetation will be maintained along the easterly property line. B. A free standing sign will be limited to 32 square feet. C. The building shall retain its residential character and to that end, there shall be no alterations of the exterior of the building which results in a change in appearance of its overall proportions or facade through such changes as altering the roof line, eaves line, or installing significantly n larger windows. D. Neither the floor area nor the cubit footage of the interior of the all bang pant exists as of the date of this contract shall be expanded. IN CITY COUNCIL July 25., 1994 Vote for Passage 9 Yes, Voting Yes: " Baldacci,Blanchette,Cohen, pSb b%.lk So,4cy9. BCOne,Bu111Vav S Tyles OK5712 PG070 94-318 2. execution by those parties with an interest in the affected property of an agreement providing for the implementation and enforcement of all the terms and conditions set forth above and the recording of said executed agreement in the Penobscot County Registry of Deeds by the property owner, a copy of said agreement being on file in the office of the City Clerk and incorporated herein by reference In the event that said agreement is not s executed within ninety (90) days from the date of passage hereof, Ordinanceshallbecome null and void.