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HomeMy WebLinkAbout1991-05-13 91-199 ORDINANCE�an Om May 6, 1991 Item No. 91-199 Amending Zoning Ordinance - Outer Itaml&tEJxb Broadway Rtep IWDgp hamt planning Division CaimientmY: Fon Referrel to the Planning Board. The applicant is requesting a contract zone change for property located on Outer Broadway to use the parcel] of metal, plastics and paper goods. The for the recycling proposed change is from the Agricultural Zone to the Industrial 3 Zone. J ruum MBnvpV tp,Olnmpnb. , ri w�� q Aameuted Intormadon:0nyP - BUEpet AlpplWN, �f'�. Finaese pvtgar 1!%1?pMoM: N r _ � OS , �Fa Q Pitb st Rad RgdfnB ❑Rvlertal ' Cm I A m D" May 22, 1991 hum No. 91-199 umySwbiW: Amending Zoning Ordinance - Outer Broadway C.D. A 91-199 NapenrmN OpMmnL Planning Division Canmmmry: The Planning Board held a public hearing on the above noted contract zgme change at its regularly scheduled meeting of May 21, 1991. Paul Rudman, Esq. representing the applicant, spoke in favor o theproposed change and discussed the two contract conditions which made provision for an 8' high berm and put a limitation o the hours of operations from 6 a.m. to 9 p.m. Priscilla Boasted, the abutting property owner, spoke in opposition. to this zone change request. She told the Board that the proposed use was very noise, the hours of operation proposed were too long, and the truck traffic would ruin the street which had recently been repaved. . After considerable discussion, the Planning Board voted 4 to 1 in favor of a motion to amend condition No. 2 to limit the hours of operation to 6 a.m, to 8 p.m. The ,Board then recommended, by a vote of 5 to 0, that xhe C' y Council approve the zone change request as amen Menpnr'v Commmb: ( ILD tri.:IP n r�pdzll Y� Q,,�m.r�F�te.,,,F,.d.tiC�l a Y-0,Adl,tq Aa c�es�i�iLoHw��� cn.x.pga AaockW lnbrmauan:� - �� - J Sudset Approval Fumm pbwrw LvSM Appmvel. Ory SWrnw IVWused For au9all•- ❑FunWiny'- ❑Xe/erral Pap _ of 91-199 Assigned to Councilor Sullivan, Nay 13, 1991 CITY OF BANGOR (TITLE.) (Orbir=rei Amepding Zoning org nanca ........ ............... _.. __.. outer.Broadway _.... __... _. _..... Britordained by W City Cowwit of Din City olBasoar, as fo in THAT, the zoning boundary lines as established by the Zoning Map. flay City of Bangg�da� a c r mber�3.,�9JA,�s.�mended,—b filay further amended as follows: By changing part of a parcel of land located on Outer Broadway (Tax Map No. R-11, Part of Parcel No. 2 and Part of Parcel No. 2C) from Agricultural Zone to Industrial 3 Zone. Said parts of parcels containing approximately 6.68 acres 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 21, Section 11.3, Ordinances of the City of Bangor, said change of zone is granted subject to the following conditions: 1. The use and/or operation of the subject premises shall be subject to the following limitations and/or restrictions; A. The construction and maintenance of an 8 -foot high earthen berm along the southerly boundary line of Lot 2-A as depicted on Assessor a Map R-11. B. The limitation of outside processing to the hours of 6 a.m. to 9 p.m. 2. Execution by those parties with an interest in the affected property of an agreement providing for the implementation and enforce- ment of all the terms and conditions set forth above and the recording ofsaidexecuted agreement in the Penobscot County Registry of Deeds by the property owner, aor of said agreement being on file in the office f the City Clerk and incorporated herein by reference. In the event that said agreement is not so executed within ninety (90) days from the date of passage hereof, this -Ordinance shall become null and void.' In City Council May 13,1991 Received 1st reading fox+i. City Clerk IN CM COIMCTL NAY 29, 1991 PASSED AS A = 8 TEA 1 ABSENT VOTING YES BALDACCI•BRACO,COHPN, FHANISRL, SAHI.,SOSNAUDr STONEr SUILIVAN ABSENT SAWYER AMENDED UNDFM E CHANCE." PROM 6 AN TO 9 PN TO 6AM TO BPM AMENDED CCOOPPY ATTACHED ( CITY CLERK 9UA99 ORDINANCE l TITU,) Amending Zoning Ordinance natter Broadway 4?ZG;JP �1t IN CITY COUNCIL eN4 8 915 y�T .nay 29, 1991 91-199 Passed as Amended (AS AMENDED) A True COPY, Aligned to Councilor - Axoea{: d'"` TY OF BANGOR f '- CITY C (TITLE,) Mrbrin= mending zoning .ordinance ........ ._.-_. PG03{ Outer.. Broadway .......... ..._- _..._ Be to Moaned by Psi City Cnuaeit Odle Citi; at Be Nim, us ldkwe: THAT, the zoning boundary lines as established by the Zoning Map of the City of Bangor dated' September 23, 19]4, as amended, be hereby further amended as follows:. By changing parts of parcels of land located on Outer Boradway (Tax Map We. R-11, Part of Parcel No. 2 and Part of Parcel No. 2C), from Agricultural, Zone to Industrial 3 Zone. Saidparts -of parcels containing approximately 6.68 acres and being more particularly indicated on the map attached hereto and made a part hereof. - PROVIDED, HOWEVER -THAT, in additiontothemandatory Conditions i posed by Chapter VIII, Article 21, Section 11.3, Ordinances of the City of Bangor, said change of, 'zone is granted subject to the fol'lowing conditions: 1. The use and/or operation of the subject premises shall be subject to the following. limitations and/or restrictions: A. The construction and maintenance of an. 8 -foot high earthen berm along the southerl? boundary line of Lot 2-A as depicted on Assessor s Map R-11.- B. The limitation of outside processing to the haul o_ 6 a.m. to 8 p.m, 2. Execution by those parties with an interest in the zffcCted property of an agreement providing for theimplementation and enforce- ment of all the terms and conditions set forth above and the recording of said executed agreement in the Penobscot CountyRegistryof g_ 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 spout that said agreement is not so executed within ninety (90) days from the date of passage hereof, this Ordinance shall become null and void. - EXHIBIT. B M' PENOBSCOT-ssI 91 AUG 23 AN ATTTESSP � T='%ci 26 1.3 M IUl 91-199 MEMORANDUM DATE: September 24, 1991 TO: Russ McKenna, City Clerk PROM: Planning Division SUBJECT; Original Copy of Contract Zone Change Agreement C.O. P 91-199 (As Amended) Attached is the original Contract Zoning Agreement between the City of Bangor and Bangor Investment Company and Peter McAvoy for property located offouter Broadway. This agreement should be filed with C.O. p 91-199. _ If you have any questions, please give us a call. so Exe tive etre[ aty PGO 24 024250 CONTRACT ZONING AGREEMENT THIS AGREEMENT is made as of August 1 , 1991, by and between the CITY OF BANGOR, a municipal corporation with its place of business located at 73 Harlow Street, in Bangor, County of Penobscot, State of Maine and BANGOR INVESTMENT COMPANY, a Maine Corporation with its principal place of business being located at Searsport, County of Knox, State of Maine antl PETER McAVOY, Of Oaklard,.Caunty a+ Kennebec, State of Maine WITNESSETH: WHEREAS, Bangor Investment Company is the owner of record of a certain parcel of land located Off Outer Broadway in Bangor, County Of Penobscot, State of Maine, said land comprising 4.86 acresp and being identified on City of Bangor Assessor's Map No. R-11 as Lot 2, being a portion of the premises described in a deed recorded in the Penobscot County Registry of Deeds in Volume 1536, Page 179, and being more particularly descnibed on Exhibit A attached{ and WHEREAS, Peter McAvoy is the owner of record of a certain parcel of land in Bangor, County of Penobscot, State of Maine, adjoining the above-described land of Bangor Investment Company, and being identified On City of Bangor Assessor's Map No. R-11, as part of Lot 2C, and being a portion of the premises described in deeds recorded in Penobscot County Registry of Deeds in Volume 4662, page 123, and Volume 4662, Page 129 (said parcels of Bangor Investment Company and Peter McAvoy hereinafter being referred to as the "subject premises")p and WHEREAS, pursuant to 30-A M.R.S.A. Section 4352 (8) and Chapter Viii, Article 2, Sec. B and Article 21, Section 11 Of the Laws and Ordinances of the City of Bangor, application was made for a contract a change, -sailed, to reclassify the subject premises from an Agricultural Zone to n Industrial 3 Zone under the Zoning Ordinance of the City of Bangor, said application proffering certain conditions oprestrictions relating to the physical development and/or operation of nth subject premises; and WHEREAS, subsequent to a public hearing the matter, and after due consideration given to the recommendations of the Planning Board, the Bangor City Council adopted Council Ordinancp 91-199 (as amended), whereby it reclassified a portion of the subject premises from an Agricultural Zone to an Industrial 3 Zone under the Zoning Ordinance of the City of Bangor subject to certain restrictions and/up conditions, a copy of said Council Ordinance 91-199 (as amended) 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 an Agthe Zoneto an Industrial 3 Zane under the Ordinance o City oBangor, the parties hereto agree as follows-. BK4896 PG025 1. Bangor Investment Company and Peter MCAVOy (hereinafter collec- tively referred to as the "Owner"), their respective heirs, personal rapre- entatives, successors and assigns, hereby covenant and agree that the occupancy cand/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 fallowing restrictions and/or conditions on the physical development or operation of paid property, P. The construction and maintenance of an B -foot high earthen berm along the southerly boundary line of Lot 2-R as depict- ed on Assessor's Map R-11. A. The limitation of outside processing to the hours of 6 a.m. to a P.M. 2. The Owner hereby agrees that the above -stated restrictions, provi- sy conditions, covenants, and agreements a made a essential part of this Agre Agreement, shallwith the subject pro shall bind theowner, its and assigns to of said property o any part thereof or any interest s therein, and any party in possession or occupancy of said property o any part thereof, and shall inure top 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 Owner hereby agrees that if it, on any person claiming under r through it, shall at any time violate an attempt to violate, o shall omit to perform o observe any o more of the foregoing restrictions, o provisions, conditions, covenants, and agreements, the City of Bangor and the abutting landowner(s)shall have the following remedies, which may be exercised by the City of Bangor either jointly or severally: a. The City of Bangor shall have the right to prosecute viola- tions of this Agreement in the s r that it i autho- rized to prosecute violations under n the Zoning Ordinance of the City of Bangor in affect at the time of said viola- tions. For the purposes herein, aviolation of this Agree- ment shall be deemed a violation of said Zoning Ordinance and shall be subject to the penalty provisions of said ordi- nance in effect at the time of violation. Each day that a violation is permitted to exist after notification of the same pursuant to said Ordinance shall constitute a separate Offense. Id. The City of Bangor arid/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 Agree- ment by injunction, legal and equitable actions and all other lawful process for the enforcement of the same. The Owner further agrees that the failure of the City of Bangor or the Pwner or ownerof abutting parcels to object to any violation, however long continued, or to enforce any restrictions, provisions, conditions, e .4896 PG026 covenants, or agreements contained in this Agreement shall in no event be deemed awaiver of the right to do so thereafter as to the nam® brameh or solation or as to any breach or violation Occurring prior to subsequent thereof. 4. The City of Bangor and the Owner hereby agrees that the provisions of this Agreement shall remain in full force and effect until such time as the same may be modified, amended, repealed, and/or replaced upon their written agreement. It is expressly understood by the parties hereto that any such charge shall be in acortlance with the laws of the State of Maine and the Zoning Ordinance of the City of Bangor, shall be treated as an amendment to said Ordinance and shall be processed according- ly. B. The parties hereto hereby agree that nothing in this Agreement shall be construed so as 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 use established under the provisions outline in para- graph 1, subparagraphs A., and S., above, subject to the restrictions, provisions, conditions, covenants, and agreements contained in this Agree- ment, shall be allowed to continue as a nonconformity or a nonconforming whichever the case may be, in accordance with the provisions Of the Zoning Ordinance, as may be in effectat the time of said zone change, governing the some. 6. The parties hereto hereby agree, for themselves, their successors a and assigns, to w any and all rights to challenge the validityof Council Ordinance 91-199 (as amended) or the terms of this Agreement. T. The parties hereto hereby agree that if Onof the restrictions, provisions, conditions, covenants, and agreements, or portions thereof, contained in this Agreement eis for any reason hold invalid or uncoratitu- tional by any curt of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such determina- tion shall not affect the validity of the remaining portions hereof. Provided, however, that parties hereto hereby further agree that n the event any of the contracted provisions contained in paragraph s, subparagraphs A. and S., above, are invalidated or such other provision is validated s s to constitute a material changein the restrictions, provisions, conditi Ons,eants, and agreements negotiated by and be- tween the parties, the City of Bangor or abutting land owners shall have the power to seek a and/or change of the zoning nof the subject premises to the current zoning classification as may be in effect at the time of the processing of any such reversion e and/or change. Said r - sion arid/or charge may be initiated bya representative of the Cityofr Bangor or an abutting property owner to the subject premises, shall be processed in accordance with theprocedure established for an amendment to the Zoning Ordinance in affect at the time, and shall be evaluated i accordance with the criteria established for the review of acne change applications. It being the intent of the parties hereto that the. owner o Shall not be allowed to benefit from the x change for the subject pre- mises n the event that the City Of Sangar or abutting land owners are deprived of the conditions negotiated to minimize the negativeexternali- tles of the requested retuning. 894896 PG027 C. Except as expressly modified herethe and Occupancy of the subject premises shall be governed by and comply with the provisions of the Zoning 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. ,w...sawa 2 Witness Witness �x` A. Witness STATE OF MAINE PENSBSCOT . as-, SRN R INVESTMENT COMPANY By Its DULY ggAUTHORIZED OFFICER -04-4 /714 C C . Peter MCAj-oy CITY OF BANGOR B nn/ Bar A. Its Ci rett Its City Manager JULY 29, . 1991 Then personally appeared the above-named PETER HCAVOY and acknowl- edged the foregoing to be Elgfree act and dead. Befnre me, 164 Printed Namez?AIJI C eIJD1{JlB .fin_ Attorney at Law ..BK4896 PGO28 STATE OF MAINE Penobscot• as. At'4v'd 1(0 , 1991 Then personally appeared the above-named Edward A. Barnett and acknowl- edged the foregoing to be his free act and Geed in his said capacity as City Manager and the free act and deed of said City of Bangor. Before me, Pr d ntetl Name;me:TQZp2W 1a,:. CaM1e'f Notary Publicte tp�/a319 b Attarrey� MATiAGM✓SMf STATE OF t•!f!!pE as aayuy r , 1991 Therm —personally appeared the above-named HZ&e It.Y;rMAPE.A and "W acknowledges the foregoing to be NMfree act and deed in WSt said capaciy and the free act and deed of Bangor Investment Company. Before me, 'Q. ` ga — P Came; Sus Peace� My "E Attorney-aTs-'•1891' t/ C' -Schedule A - Property Description Bangor Investment Company Property Old Six Nile Palls Road - Bangor, Maine en4896 rcO29 A certain lot or parcel of land with the improvements thereon, situate in the City of Bangor, County of Penobscot, State of Maine, more particularly described as follows: beginning at an iron rad set an the Southwesterly line of the Old Six Mile Falls Road at the intersection of said road line with the easterly line of a 100 foot wide strip of land reserved by Banger and Aroostook Rairoad company from conveyance to Bangor Investment Company recorded in Penobscot County Registry of Deeds, volume 1536, Page 179: thence South 42106'30' East by and along the southwesterly line of Old Six Nile Falls Road a distance of 511.1 feet to an iron rod get ort the northerly corner of land described in a deed to John Stymiest at ux., recorded in Penobscot County Registry of Deeds, Volume 1323, Page 20; thence South 56057'30• West by said Stymiest land a distance of 202.9 feet to an n rod set; thence South 42106'30^ East by and along said Stymie8t land a distance of. 225.0 feet to a galvanized iron pipe. found marking the southerly -most corner of Said Stymiest land; thence North 56157'30" East by said Stymiest land a distance of 202.9 feet to anironrod set on the southwesterly line Of said old Six Nile Falls Road at its intersectionwith a brook marking the westerly boundary of land described in a Heed to Otha W. Corey at ux recorded in Penobscot County Registry of Deeds, Volume 1354, Page 410; thence southerly following the - centez of said brook a distance of 413 feet, more or less, to an iron rod set at the intersection of said brook with the southerly line described in the .deed to Bangor Investment Company recorded in Penobscot County Registry of Deeds, Volume 1536, Page 179; thence North 82959'00• West by and along the southerly line of Bangor Investment Company lend a distance of 335.0 feet to an iron rod on the southeasterly corner of land described in a deed to Brewer Junk and Scrap Company recorded n Penobscot County Registry of Deeds. Volume 4662, Page 123; thence North 7.19'30^ West by and along said land of Brewer Junk and Scrap Company a distance of 223.16 feet. to an iron rod; thence North 68.12'30^ West by and along said land of Brewer Junk and Scrap Company a distance of 04.77 feet to a iron rod; thence North 22117115" East by and along said land of Brewer Junk and Scrap Company a disatnce of 286.90 feet to an iron rod; thence North 67035'45^ West by and along said land of Brewer Junk and Scrap Company a distance of 129.0 feet to the easterly line of the 100 fent wide strip of land reserved by Bangor and Aroostook Railroad Company from a EXHIBIT A 40 896 -2- c Conveyance to Bangor Investment Company recorded in Penobscot County Registry of Deeds, Volume 1536, Page 179; thence North 7119'30^ East by and along the easterly line of said strip, a distance of 213.0 feet to the southwesterly line of a 10 foot wide strip Of land containing spur track ^C" as described in a deed from Bangor Investment Company to Bangor and Aroostook Railroad Company recorded in Penobscot County Registry of Deeds, Volume 1659, Page 170; thence South 29.09.300 East by and along said 10 foot strip a distance of 321.8 feet to a point; thence North 60.50`30" East by and along the southeasterly end of said SO foot strip, a distance of 10 feet to a point; thence North 29409'30" Neat along the northeasterly line of said la foot strip a distance of 335.3 feet to the easterly line of the 100 foot wide strip of land reserved by Bangor and Aroostook Railroad Company from a conveyance to. Banger Investment Company recorded in Penobscot County Registry of Deeds, Volume 1536, Page 179; thence North 7419.30• East by and along the easterly line of said 100 foot strip, a distance of 82.7 feet to the point of beginning. EXCEPTING AND RESERVING from the above described lot, the Premises described in a deed from Bangor Investment Company to Bertrand E. Blanchard recorded in Penobscot County Registry of Deeds, Volume 1862, Page 64 and Volume 1866, Page 259. The premises hereby conveyed contain 4.86 acres exclusive of reversionary interest, if .any, in the land within the right of way of Old Six Mile Falls Road adjoining the premises herein described. Bearings referenced herein area oriented to magnetic north, 1989, as determined by a. survey of the within 'described lot by Pliaga 6 Day, Land, Surveyors. - The premises herein described are conveyed subject to rights of WAY previously granted to Bertrand E. Blanchard by deeds recorded in Penobscot County Registry of Deeds, Volume 1862, Page 64, and Volume 1866, Page 159, and to Brewer Junk and Scrap Company -' recorded in Penobscot County Registry of Deeds, Volume 4662. Page 123. Also Conveying all of the Grantor's right, title and interest, if any, in and to the right of way reserved in the conveyance from Reuben N. Corey at al., to John Stymieat at ux., recorded in Penobscot County Registry of Deeds, Volume 1323, Page 20. For the Granter's source of title reference is made to a deed from Bangor and Aroostook Railroad Company cto Ror In trent Company dated June 1, 1956, recorded in Pao ty Registry Of Deeds, Volume 1536, Page 179. 1j°an q�F, 0. ` e y N51 \r 4h,0, 9f%e1 .q` O: 91-199 (AS AMENDED) Ae igmx1 to Com Baur CITY OF BANGOR (TITLE) @n)hUl1CCt Amending zoning Ordinance _-_............... . ............................... ae a ordaimd h:1he GWr Cowart o) W CiN o(E¢naw. ae PoHOm1: THAT, the zoning boundary. lines. as established by the Zoning Map of the City of Bangor dated September 23, 1974, as amended, be hereby further amended as follows: By changing parts of parcels of land located on Outer Boradwky (Tax Map No. R-11, Part of Parcel No. 2, and Part 0£ Parcel No. 2C) from Agricultural Zone to Industrial Zone. Said parts of parcels containing approximately 6.68 acres and being more particularly indicated on the mapattachedhereto and made a part hereof. PROVIDED, HOWEVER THAT, in addition to the mandatory conditions imposed by Chapter VIII, Article 21, Section 11.3,. Ordinances of the City of Bangor, said change of zone is grantedsubject to the following conditions: 1. The use and/or operation of the subject premises shall be subject to the following limitations and/or restrictions: A. The construction and maintenance of an 8 -foot high earthen berm along the southerly boundary'-lineof Lot 2-A as depicted on Assessora Map R-11. B. The limitation of outside processing to the hours of '6 a.m, to 8 P.M. 2. Execution by those partieswith an interest in the affected property of an agreement providing for the implementation and enforce- ment 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 1s not so executed within ninety (90) days from the date of passage hereof, this Ordinance shall became null and void. 91-199 CONDITIONS TO CONTRACT ZONE CHANGE REQUEST OF BANGOR INVESTMENT COMPANY 1. The construction and maintenance of an 8 -foot high earthen berm along the southerly boundary line of Lot 2-A as depicted on Assessor's Map R-11. 2. The limitation of outside processing to the hours of 6 a.m. to 9 P.M. Item No. 6: Contract Zone Change - Outer Broadway - Bangor Investment Company a. Applicant requests as ontract [ change from the Agricultural (A) Zoneto the Industrial 3 (1-3) Zone 40r a 6.7 acre parcel along Outer Broadway (Old Broadway). b. In 1974, the I-3 zone line w s drawn, arbitrarily: through n the center of a isting rail side metal recycling complex antl through themiddle of an existino buildinn. Half of the other half of the building and a additional storage building was a grandfathered n- ing u s n the A z The applicant proposes theT s z change i order to makethe onforming ,half of the property a conforming u and to expand the applicant's use to allow far the recycling o4 other metal, plastic and paper goods. This location i suited for this proposed metal recycling use because of os the existing railroad siding on the property. C. In order to reduce the impact onan s adjacent residential the applicant proposes to leave a SO ft. strip o agriculturally zoned land around the property and proposes the following conditions and limitations: 1. The construction and maintenance of an 8 -foot high earthen berm along the southerly boundary line of Lot -A as depicted on Assessor's Map R-11. 11. The limitation of outside processing to the hours of B a.m. to 9 p.m. d. This proposed zone change i consistent with the City's zoning policy. This z changewould correct a 1944 zoning o anomaly. Staff would e end that the planning Board recommend approval to the City Council for a I-3 Zone change.