Loading...
HomeMy WebLinkAbout1983-03-30 83-132 ORDER83-132 Introduced by Councilor Frankel, Larch 30, 1903 Realty Co., a Maines Corporation -..---------- ..-. ..... -- Bg fAe City Couvuid of the Cf of Beggar: ORDERED, TEAT wHERPAZ, under date of December 'l, 1982, a contract seeing agreement amade and entered into between the City of Bangor a municipal corporation on the one part and Philip G. Kelley and Pell Realty Co:, a Maine corporation, as owners, on the other, a copy of which agreement isrorded in the Penobscot County Registry of needs in Volume 3349, Page 298j and WHEREAS, Paragraph 2(a) of said contract expressly provides that no structure may be erected on Parcel B as described in said indenture; and WHEREAS, said w not aware of the fact that the provisions of the "Zoning Ordinance of the City of Ra,got" in its definition of terms defines structure in terms, as follows: "Anything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground, including but act limited t0, mebile homes, buildings, walls, fences, billboards, signs, piers, and fleets."; and WdEPERS, it was the 'expressed intent of the Ow rs to use the premi s for display Of automobiles necessitating erection of stanchions for lighting and intending, as well, to erect a display sign indicating the Ownership and purpose of the premises; and WM 4S, said intent was well known to the City of Raper as a contracting party thereto; and WHEPEAH, the owners by its use of the word "structure" Intended the word in its common and accepted usage as analogous to 'building" faller than as indicating anything constructed or erected on the premises; and WHEREAS, the inapplicability of the restricted definition in the ordinance is exempligied by the fact chat the contract (BY REQUEST) CITY OF BANGOR (TALE.) VI/pp )rba, Be4 rdr,g Cog[ t EonrM -.: Philip G. xellay and Tell Realty Co., a Maines Corporation -..---------- ..-. ..... -- Bg fAe City Couvuid of the Cf of Beggar: ORDERED, TEAT wHERPAZ, under date of December 'l, 1982, a contract seeing agreement amade and entered into between the City of Bangor a municipal corporation on the one part and Philip G. Kelley and Pell Realty Co:, a Maine corporation, as owners, on the other, a copy of which agreement isrorded in the Penobscot County Registry of needs in Volume 3349, Page 298j and WHEREAS, Paragraph 2(a) of said contract expressly provides that no structure may be erected on Parcel B as described in said indenture; and WHEREAS, said w not aware of the fact that the provisions of the "Zoning Ordinance of the City of Ra,got" in its definition of terms defines structure in terms, as follows: "Anything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground, including but act limited t0, mebile homes, buildings, walls, fences, billboards, signs, piers, and fleets."; and WdEPERS, it was the 'expressed intent of the Ow rs to use the premi s for display Of automobiles necessitating erection of stanchions for lighting and intending, as well, to erect a display sign indicating the Ownership and purpose of the premises; and WM 4S, said intent was well known to the City of Raper as a contracting party thereto; and WHEPEAH, the owners by its use of the word "structure" Intended the word in its common and accepted usage as analogous to 'building" faller than as indicating anything constructed or erected on the premises; and WHEREAS, the inapplicability of the restricted definition in the ordinance is exempligied by the fact chat the contract In City Council March ]A,1983 493-132 Indatinitly poatponed:' ORDER FTQ Title, Ci Clerk RB&9L31r�6.CantrAC49.Mi%. x1il pG Adley and Tell Realty Co. a Maine Corporation CH Introduced and filed by ' . ..........councilman expressly provides for filling and paving the area and erecting a line or equivalent fence between the subject premises and those abutting it; all of which changes are within the statutory definitions of "structure" and would constitute violations thereof. NOW THEREFORE, it is expressly covenanted and agreed: 1. That as used in the contract above herein referenced the word "structure" was not contemplated to include signs, light poles or stanchions, fences, curbings, fill, or surfacing but was intended to cover buildings falling within the definitions of "principal structure" or accessory structure" as defined in said Zoning Ordinance. 2. That the word "structure" be deleted from Paragraph 2(a) and the word buildings inserted in lieu thereof; 3. That, in all other respects, said contract shall continue in full force and effect as executed by the parties. 4. That a site plan indicating the proposed location of curbings, fencing, light poles or stanchions, and changes in grade resulting from fill and/or surfacing be submitted for approval and record by the appropriate officials of the city of Bangor as a condition precedent hereto. 5. That this enactment being had at the express request of the owners, enactment hereof is agreed to by the owners as automatically modifying the existing contract without requirement of execution of further documentation and that the owners undertake to cause a copy of the enactment resulting herefrom to be recorded in the Penobscot County Registry of Deeds, forthwith, this enactment to have no force or effect until effectuation of such recording. 42-i r f� 7� WHEREAS, under date of December ], 1982, a contract zoning agreement was made and entered into between the City of Bangor a municipal corporation on the one part and Philip G. Kelley and Tell Realty Co., a Maine corporation, as owners, on the other, a copy of which agreement is recorded in the Penobscot County Registry of Deeds in volume 3349, Page 298; and WHEREAS, Paragraph 2(a) of said contract expressly provides that no structure may be erected on Parcel B as described in said indenture; and WHEREAS, said owners were not aware of the fact that the provisions of the "Zoning Ordinance of the City of Bangor" in its definition of terms defines structure in terms, as follows: "Anything constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground, including but not limited to, mobile homes, buildings, walls, fences, billboards, signs, piers, and floats."; and WHEREAS, it was the expressed intent of the owners to use the premises for display of automobiles necessitating erection of stanchions for lighting and intending, as well, to erect a display sign indicating the ownership and purpose of the premises; and WHEREAS, said intent was well known to the City of Bangor as a contracting party thereto; and WHEREAS, the Owners by its use of the word "structure" intended the word in its common and accepted usage as analogous to "building" rather than as indicating anything constructed or erected on the premises; and WHEREAS, the inapplicability of the restricted definition in the ordinance is exemplified by the fact that the contract MEMORANDUM March 28, 1983 TO: Bangor City Council FROM: Tom Russell, Asst. City Solicitor RE: Council Order 83-132 Councilor Frankel, at the request of Michael E. Goodman, Esq., Attorney for Philip G. Kelley and Tell Realty Co., placed Council Order 83-132 on the Council Meeting agenda for the purpose of authorizing an amendment to the "Contract Zoning Agreement" entered into by Philip G. Kelley, Tell Realty CO., and the City of Bangor on December I, 1982. The Agreement was executed subsequent to the Council's adoption of Council Ordinance 82-253, as amended by substitution, on December 1, 1982. I have discussed the matter at length with Mr. Goodman, and irrespective of the merits of the proposed amendment, we have a difference of opinion as to the process by which the Agreement may be amended. The purpose of this Memorandum is to apprise the Council of that issue prior to Wednesday's meeting. Mr. Goodman has expressed the opinion that the Council is being asked to authorize the amendment of the contract, and that such an authorization may be accomplished by the passage of a council order. It is my opinion, however, that the Contract Zoning Agreement represents a unique form of contract, and must be handled within a specific procedural framework. In conjunction with the Zoning. Ordinance, this Agreement constitutes "the zoning" of the subject premises. Therefore, any change in the terms and conditions of the Contract Zoning Agreement represents a change in "the zoning" applicable to the parcel in question,. and should be processed as a zoning amendment inaccordance with the procedures set forth in the Zoning Ordinance. Since the contract zoning of the parcel was arrived at after a public notice and hearing on the matter and a recommendation by the Planning Board, it seems to me that any amendment relative to that contract zoning should also be subject to the same procedural requirements. Furthermore, Paragraph 5 of the Agreement provides as - follows: "The parties hereto hereby agree 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 written agreement of all the parties. it is expressly understood by the parties hereto that such a change on the part of the City o£ cannot shall be i accordance Wath the laws of the State of Maine the Zoninq Ordinance or the City or Bangor, shall be treated as n amendment to said Ordinance, and shall be processed accordingly." (Emphasis Supplied) In my opinion, that paragraph makes At clear that the Agreement cannot be amended unless processed as an amendment to the Zoning Ordinance. I will be present at the council meeting to answer any questions relative to this matter. to cc: Robert Miller John Lord Sandy Smith Michael Goodman, Esq. T.A.R. to cc: Robert Miller John Lord Sandy Smith Michael Goodman, Esq.