HomeMy WebLinkAbout1983-03-30 83-132 ORDER83-132
Introduced by Councilor Frankel, Larch 30, 1903
Realty Co., a Maines Corporation
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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.