HomeMy WebLinkAbout1982-10-13 82-253 ORDINANCE02-253
Introduced by Councilor Willey, Cctcber 13, 1982
CITY OF. BANGOR
(TITLE.) @rbh[6t1Cft Amending Zonmg_ordinance
..............
Be a ordairwd 6p aw Cat C&#%cU of aw Cit ofBanpor, as foitouw-
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 a parcel of land located at 685 Broadway (Tax Map R-41,
Parcel No. 27) from Commercial 2 Zone to Commercial 3 Zone. Said
parcel containing approximately 20,000 sq. ft. and being more
•particularly indicated on the map attached hereto and made apart
hereof.
The applicant has made application fora contract zone change under
the provisions contained in Article 21, Section 11 of the City of
Bangor Zoning Ordinance. The applicant proposes the following
conditions:
1) 'Mat no structure will be erected on the subject premises;
2) That the entire area will be properly filled, paved and
maintained and a line f shrubs maintained as betwe n the
immediately premises and those inediately abutting on he
southeast; ..
3) That the premises will be used for display of new a d used
motor vehicles all of which will be properly clean. nd aligned
in orderly fashion;
4) That no repairs will be instituted on the subject premises
rwill any conduct be permitted thereon, or with reference
to the vehicles thereon, which could prove offensive to
normal occupancy by any abutting owners, as7,to'odors o noise;
and
5) Cars to be displayed will be new, or used motor vehicles of a
quality equivalent to those historically and currently sold
by Kelley Pontiac,Inc. on the "home lot" immediately adjacent
to the subject premises.
82253
ORDINANCE
.` meneingy=n By OrdinAnte
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In City Gpun �t"ober 25:IP82
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In City toenail'Node`mber 8.1982
Consider next regular meeting
City Clerk
In City Council November 22,1982
Consider special :meting Decevbar
1,1982
- 3
IN CITY COUNCIL
December 1, 1982
Notion to amend failed to pass by the following
yes and w votes. Councilors voting yea: CIXe and
Soucy. Councilors voting no: Brom, Frankel, Jordan,
and Weymoubb. Councilors absent: Davis, Gass and villey.
Passed by the following yes and to votes. Cwncilora
Voting yes: Brown, Cox, Frankel,Jordan, Saucy and Weymouth.
Cwncilors absent: Davis, Gass and Willey. Amended by
5� te copy aid
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CITY Cle�rasf�_--
-'R CITY OF BANGOR
(TITLE.) MTDItta=, Amending Zoning. ordinance
1.
NO V ordainni by City C 'l of CW City ofaasmor, ae fdmm'
82-253
(AMENDED)
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 a parcel of land located at 685 Broadway (Tax Map R-41,
Parcel No. 2]) from Commercial 2 Zone to Commercial 3 Zone. Said
parcel containing approximately 20,,'D90 sq. ft. and being more
particularly indicated as Parcel B on the map attached hereto and made
a part hereof.
PROVIDED, HOWEVER, THAT said change of zone is granted subject tothe
following conditions:
I: Conditions applicable to the property located at 685 Broadway,
(Parcel B on the attached map):
a. No structure shall be erected on the subject premises.
b. The entire area of the subject premises shall be properly
filled, paved, and maintained and a fence shall be erected
and maintained as between the subject premises and those
immediately abutting on thesoutheast of the s Said
fence shall be no less than six feet'(6').'Sn height, except
that the portion of said fence within fifteen (15) feet of
the sidewalk on Broadway shallbeno less than two and one
half feet (2k') in height.
C. The premises shall be used only for the display of new and
used motor vehicles, all of which shall be kept properly
cleaned and aligned in an orderly fashion.
d. No repairs shall be instituted on the subjects
nor shall any conduct be permitted thereon, orPae
with
reference to the vehicles thereon, which could prove
offensive to normal occupancy by any abutting owners as to
odors or noise.
2
1/
e. In the event that the subject premises ceases to be used
for the display of new and used motor vehicles, the zoning
classification of said premises shall be eligible for a
version and/or change to the zoning classification of
the property located at or about 699 Broadway (Assessor's
Map R-41, Lot 26), said property being more particularly
indicated as Parcel Aon the map attached hereto and made
a part hereof. Said reversion and/or change may be
initiated by a representative of the City of Bangor or an
abutting landowner to the subject premises, shall be
processed in accordance with the procedure established for
an amendment to the Zoning Ordinance in effect at that
time, and shall be evaluated in accordance with the criteria
established for the review of zone change applications.
2, Conditionsp licable to the property located at 699 Broadway
(Parcel A on the attached map):
a. During business hours, no fewer than six parking spaces
shall be reserved and provided for customer parking, said
spaces to be located in front of the axisting building at
699 Broadway between said building and the public right-of-
way on Broadway.
3. Execution by those parties with an interest in the affected
properties of an .agreement providing for the implementationand enforce-
ment of all the terms and conditions set forth above, a copy of said
agreement being attached hereto and made a part hereof. In the event
that said agreement is not executed within sixty (60) days from the
date of passage hereof, this Ordinance shall become null and. void.
BE IT FORMER ORDAINED BY THE CITY COUNCIL OF. THE CITY OF BANGOR THAT
this Ordinance shall become effective upon the recordation of an executed
copy of the aforementioned agreement in the Penobscot County Registry of
Deeds or ten (10) days from the date of passage hereof, whichever is
later.—
/_ .. 82-253
(AMENDED)
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CONTRACT ZONING AGREEMENT
THIS AGREEMENT is made as of , 198 , by
and between the CITY OF BANGOR, a municipal corporation with a
place of business located in Bangor, County of Penobscot, State of
Maine, PHILIP G. KELLEY, a resident of Hampden, County of Penobscot
State of Maine, and TELL REALTY CO., a Maine corporation with a
place of business in Bangor, County of Penobscot, State of Maine.
For the purposes herein, Philip G. Kelley and Tell Realty Co.
shall be jointly referred to as the "Owners."
WITNESSETH:
WHEREAS, Philip G. Kelley is the owner of a certain
parcel of land situated in Bangor, County of Penobscot, State of
Maine, said land being located at or about 699 Broadway and
identified as Parcel A on Exhibit A attached hereto and incorpor-
ated herein by reference (said land hereinafter referred to as
Parcel A). Reference may be had to -a Warranty Deed of Lougee and
Frederick`s,"Inc. to Philip G. Kelley dated September 14, 1964,
recorded in the Penobscot County Registry of Deeds in Volume 1969,
Page 60, for a more particular description of Parcel A; and
WHEREAS, Kelley Pontiac, Inc. owns and operates an auto-
mobile dealership on Parcel in a Commercial Two (C-2) Zone under
the Zoning Ordinance of the City of Bangor, which use constitutes
nonconforming use under the provisions of said Ordinance; and
WHEREAS, Tell Realty Co. is the owner Of record of a
certain parcel of land situated in Bangor, County of Penobscot,
State of Maine, said parcel of land being located at or about 685
Broadway and identified as�Parcel B on the aforementioned Exhibit
A (said land hereinafter referred to as Parcel B). Reference may
be had to a Deed of S. G. Murray S Sons, a Maine
corporation with a place of business at Bangor, County of Penobscot
State of Maine, to Tell Realty Co. dated , 198
to be recorded in the Penobscot County Registry of Deeds, for a
more particular description of Parcel B; and
WHEREAS, pursuant to 30 M.R.S.A. 5 4962)1)(I) -and Chapter
VIII, Article 2, Sec. 8 and Article 21, Sec. 11 0£ the Laws and
'Ordinances of the City of Bangor, Philip G. Kelley, as ontract
made application for a contract zone change, so-called, to
reclassify Parcel B from a Commercial Two (C-2) Zone to a Commerciz
.Three (C-3) Zone under the Zoning Ordinance to allow for the
utilization of said Parcel in conjunction with the, automobile'
.dealership located on Parcel. A, said application proferring
certain conditions or restrictions relating to the physical
development and/or operation of said Parcel. B; and
WHEREAS, subsequent to public hearings on the matter and
after due consideration given to the recommendations
of the
Planning Board, the Bangor City Council adopted Council Ordinance
82-253 )as amended) whereby it reclassified Parcel B from a
Commercial Two (C-2) Zone to a Commercial Three (C-3) Zone under
the Zoning Ordinance of the City of Bangor subject to certain
restrictions and/or conditions, a copy of said Council Ordinance
82-253 )as amended) and the restrictions and/or conditions con-
tained therein being attached hereto as Exhibit B and incorporated
herein by reference.
NOW, THEREFORE, in consideration of the reclassification
of Parcel B from a Commercial Two (C-2) Zone to a Commercial
Three (C-3) Zone under the Zoning Ordinance of the City of Bangor,
the parties hereto hereby agree as follows:
1. Philip G. Kelley, for himself, his heirs, personal
representatives, successors and/or assigns, hereby covenants and
agrees that the use, occupancy and/or development of Parcel A shal
be subject to the following restriction and/or condition on the
physical developmentor operation of said property:
During business hours, no fewer .than six parking
spaces shall be reserved and provided for customer
parking, said spaces to be located in front of the
existing building.located on Parcel A between the
building and the public right -o£ -way on Broadway.
2. Tell Realty Co, for itself, its successors and assigns,
hereby covenants and agrees that the use, occupancy, and/or
development of Parcel B shall be subject to the following re-
strictions and/or conditions on the physical development or.
operation of said property:
a. No structure shall be erected on the
subject premises. I _
b. The entire area of the subject premises
shall be properly filled, paved, and
maintained and a. fence shall be erected
and maintained as between the subject
premises and those immediately abutting
on the southeast of the same. said fence
shall be no less -than six feet (61) i
height, except that the portion of said
fence within fifteen feet (151) of the
sidewalk on Broadway shall be no less than
two and one-half: feet (2}1) in height.
C. The subject premises shall be used only
for the display of new and used motor --
vehicles, all of which shall be kept
properly cleaned and aligned in an
orderly fashion.
d. N o repairs shall be instituted on the
subject premises,nor shall any conduct
be permitted thereon, b with reference
to the vehicles thereon,. which could prove
offensive to normal occupancy by any
abutting owners as to odors or noise:
e. 1n the event that the subject premises
ceases to be used for the display of new
and used motor vehicles,. the .zoning classi-
fication of said premises shall be eligible
for anand/or change to she zoning
Classification of the property located at o,
about 699 Broadway (Parcel A herein). Said
eversion and/or change may. be initiated by
a representative of the City of Bangor or an
abutting landowner to the subject premises,
shall be processed in accordance -with the
procedure established for an amendment to
the Zoning Ordinance in effect at that time,
and shall be evaluated in accordance with the
criteria established for the review of. zone
2
change applications. Furthermore, Tell
Realty Co. hereby covenants and agrees
that it, its successors or assigns, will
not abject to or oppose any reversion
and/or change hereunder.
3. The Owners hereby.. agree that the above -stated
restrictions, provisions, conditions, covenants, and agreements
are made an essential part of this Agreement, shall run with the
respective parcels herein described, shall bind the owners, their
heirs, personal representatives, successors, and assigns, to 0
of said property or any part thereof or any, interest therein, 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 represen-
tatives, and the owner or owners of .any abutting parcels of land.
4. 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 omit 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 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 violations of this Agreement
n the same manner that it is authorized
to prosecute violations under the Zoning
Ordinance of the City of Bangor in effect
at the time of said violations. For the
purposes herein„a violation of this
Agreement shall be deemed a violation of
said Zoning Ordinance and shall be subject
to the penalty provisions of said Ordinance
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.
b. The City of Bangor and/orthe owner or owners
of parcels of land which abut Parcels A and
B shall have the -right to institute any and
all actions or proceedings, including the
right to enforce all the terms and pro-
visions 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 owners of abutting parcels to object to any violation
however long continued, or to enforce any restriction, provision,
condition, covenant, o agreement contained in this Agreement shalin no t
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 violatioi
occurring prior or subsequent thereto.
S. 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 i
expressly understood by the parties hereto that such a change on
the part of the City of Bangor shall be in accordance 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 accordingly.
-3-
7
6. 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 Parcel B. In the event that the zoning of said Parcel
is changed by the City Council, the contracted use outlined i
Paragraph 2(c) above, subject to the restrictions, provisions,
conditions, covenants,
ants, and agreements contained in this Agreement
shall be allowed to continue a a nonconformity or nonconforming
use, whichever the case may be, in accordance with the provisions
of the Zoning ordinance, as may be in effect at the time of said
zone change, governing the same.
]. The parties hereto hereby agree, for themselves,
their successors and assigns, to waive any and all rights to
challenge the validity of Council Ordinance 82-253 (as amended)
or the terms of this Agreement.
8. The parties hereto hereby agree. that if one Of the
restrictions, provisions, conditions, covenants, and agreements,
r portions thereof, contained in this Agreement is for any reasa
held invalid or unconstitutional by any court of competent ,juris-
diction, such portion shallbe deemed a separate, distinct and
independent provision and such determination shall not affect the
validity of theremaining portionshereof.. I'
Provided, however, that the parties hereto hereby further
agree that in the event the contracted use provision contained in
Paragraph 2(c) above is invalidatedor such other provision is
invalidated so as to constitute a material change in the restrict
ions, provisions, conditions, covenants, and agreementsnegotiate(
by and between the parties, the City of Bangor or abutting land-
owners shall have the power to invoke the zoning classification
provisions contained in Paragraph 2(e) above, it being the intent
of the parties hereto that the Owner shall not be allowed to
benefit from the zone change for Parcel B in the event that the
City of Bangor or abutting landowners are deprived of the con-
ditions negotiated to minimize the negative externalities of the
requested rezoning.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the day and year first above written..
PHILIP G. -KELLEY' -
Witness
TELL .REALTY CO.
Witness Its President,.
CITY OF BANGOR
By
Witness - Its City Manager
-4-
front of Gulls
EXHIBIT 'A
1
(parcel dimensions aro approximate)
ez-253
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Application Fee - $35.00 Application Processing Fee - $70.00 Total a $4,J45.,40
APPLICATION FON ZONING ORDINANCE AND MAP A NM.D:NT 82-253
TO: THE CITY COUNCIL AND - DATE September 21, 1982
FOR PLANNING BOARD OF BANGOR, MAINE:
1. I (WE) Philip Q Kelley
2. of 699 Broadway Br Maine
945-9448
Address C ty or Post 0 1 ee
Telephone
hereby petition to amend the zoning ordinance of the City of
Lary0r, Mine by
reclassifying from C2na to the
a
the
property outlined re3�be nmpeattaebed iereto, wh eh
are part of
this
application, and described as follows:
3. ADDRESS OF PROPERTY (if any) 685 Broadway, Bangor
Total Area (acres or square feet) approxinetely 20,000
square feet
4. PROPERTY LOCATION (General Description): Exasple - South aide of State Street
400 Fie. Fast of Pine Street
North side of Breadway 150' east of the intersection with School Street.
5. LEGAL DESCRIPTION OF PROPERTY' _ Assessors Map No. R-41 Parcel 27
PENES and ROUNDS - (Attach a separate sheet)
6. EXISTING WE: C-2; burned out buildingprier to fire - carpet sales and installation
7. PROPOSED USE: z'imixydiv2ccar display A,61n� ,IA,
8. HARE AND ADDRESS OF OWNER OF RECORD: Name S.G. Murxgg Inc.
Address 685 Broadway, Bangor, Maine
9. NAVE AND ADDRESS OF CONTRACT OWNER (if such): Philip G. Kelley
10. SIGNATURE OF OWNER OR CONTRACT
Action for a acting change will be initiated with the Bangor City Council and
referred to the Banger Planning Board. Statutes require a Public. Hearing before the
Planning Board, after a public advertising (at least 10 days prior to sucb.public
hearing), for all changes to the zoning ordinance of the City of Bangor. The x -
endation of the Planning Board is then retained to the Bangor City Council for
final action.
*contract zone to allow car sales
Bangor, the center of Maine—the Gateuny to Maine's North Woods and Seashore Reorts
Please be advised that the Planning Board held a public
hearing on the above zone change request at its regular meeting
of October 18, 1982.
Due to the complexity of the contract zone change proposal
and concern for the zoning on the adjacent parcel which was to
be before the Board at its next meeting, the Boardvoted unanimously_
to continue this item to the next Planning Board Meeting.
ROONEY . M.•av
CITY NALL
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WANGOR. MAINE (WAR
JOHN AT LORD
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DEPARTMENT U P4.ANNINm Md COMMUNITY DEVELOPMENT
DATE:
October 19, 1982
T0:
The Honorable City Council
FROM:
The Planning Board
SUBJECT:
Amending Zoning Ordinance
685 Broadway
Council Ordinance No. 82-253
Please be advised that the Planning Board held a public
hearing on the above zone change request at its regular meeting
of October 18, 1982.
Due to the complexity of the contract zone change proposal
and concern for the zoning on the adjacent parcel which was to
be before the Board at its next meeting, the Boardvoted unanimously_
to continue this item to the next Planning Board Meeting.
GOODMAN & AORNREICH 82-353
ATTORNEYS AT LAW
21 MAW SWEET
m.L. x. rca"..aW )MAKER, MAINE am
September 22, 1982 szo M7.1802
Planning Board
City of Bangor
73 Barlow Street
Bangor, Maine 04401
Re: Philip G. Kelley
Dear Sirs:
In connection with the application of Philip G. Kelley for
contract zoning on the premises being purchased by him and located
at 685 Broadway, the applicant, proposes the following conditions
for approval of his request all Of which will be incorporated into
a proposed form of contract to be executed by him or his assigns:
1) That no structure will be erected on the subject
premises;
2) That the entire area will be properly filled, paved, and
maintained and a line of shrubs maintained as between the subject
premises and those immediately abutting on�the southeast;
3) That the premises will be used for display of new and
used motor vehicles all of which will be properly clean and
aligned in orderly fashion;
4) .That no repairs will be instituted on the subject
premises nor will any conduct be permitted thereon, or with
reference to the vehicles thereon, which could prove offensive to
normal occupancy by any abutting owners as to odors or noise;
5) Cars to be displayed willbe new, or used motor vehicles
of a quality equivalent to those historically and currently sold
by Kelley Pontiac, Inc. on the "home tot" immediately adjacent to
the subject premises.
Very truly yours,
Michael E. oodman
Attorney for Applicant
MEG1w
CA
alae of Pangor, gRawe
"GAL DEPARTMENT
om Nov. 4, 1982
Roten E. Miller
Our Solloimr
Memo Ta: Bangor City Council
S,Eleoc Council Ordinance 482-253
The above -indicated Ordinance is pending before the
Council, and will be in order for consideration at your next
meeting on November 8th. As you all are aware, this is the
first attempt to utilize a new State statute authorizing
"contract zoning" in special situations.
The Planning Hoard has approved in concepta proposed
agreement between the City and the applicant. However, the.
final details have not been worked out.
In my judgment, the item should net be rushed through
the legislative process without careful consideration and
deliberation. At the present time, Tom Russell isworking up
a proposed agreement for consideration by members of the staff
and legal counsel for the applicant. .Since this. agAeement will
probably serve,
a practical .matter,. as a model for future
agreements eofthis nature, it is important that we be given
sufficient time to prepare it.
In discussing the matter with Tom this morning,
ing, it
e
s my belief that w will not be able to give you aproposal
sc
which i acceptable to both the applicant and all affected
members ofthe staff by your meeting on November 8th. Therefore,
with your indulgence, I request that you continue the matter
until a subsequent meeting to permit the agreement to be worked
out in an orderly fashion.
If any member of the Council or others receiving a copy
of this Memo have any questions regarding this request, please
feel free to call me.
R.B.M.
to
cc: City Manager
John Lord
Tom Russell
Michael Goodman, Esq.
Bangor, the center of Maim—the Gaomay to Maim's North Woods and Seashore Roasts
DATE:
November 2; 1982
TO:
The Honorable City Council
FROM:
The Planning Board
SUBJECT:
Amending Zoning Ordinance
Contract Zone Change
Broadway
Council Ordinance No. 82-253
RODNEY 0, WHAT
CITY HALI.
GANAD
BANGOR. MAINE C4401
TEL. am,as7asa:
JOHN M, LORD
siN.i.a om...
Vq Of Partoar,
AAA
DATE:
November 2; 1982
TO:
The Honorable City Council
FROM:
The Planning Board
SUBJECT:
Amending Zoning Ordinance
Contract Zone Change
Broadway
Council Ordinance No. 82-253
Please be advised that the Planning. Board at its regular meeting
on November 1, 1982 took action on theabove item continued from its
regular meeting of October 18, 1982. After considerable exchange
with the applicant over the number and content of conditions to be
attached to the Zoning contract, the Board voted four in favor and
none opposed to recommend the zone change to the Council subject to
the revised conditions agreed upon at this meeting.
In order to complete this transaction there needstobe formal
contract drafted Which contains the agreed upon conditions. Mr.
Miller has prepared'a memorandum for the Council indicating the need
for and current status of the necessary zone contract to complete this
process.
r
January 5, 1983
T0: Russell McKenna, City Clerk
FROM: Thomas A. Russell, Assistant City Solicitor
RE: Contract Zoning Agreement
Please find attached hereto the original Contract Zoning
Agreement involving the properties located at 699 and 685 Broadway
(Owners: Philip G. Kelley and Tell Realty Co., respectively). Since
I anticipate that the City might be ultimately involved in a number
of contract zone
changes, I believe the original agreements should be
kept on file in your office.
T.A.R.
cc. Bob Miller
Sandy Smith
John Lord
sooK3349 fxE298
21473
CONTRACT ZONING AGREEMENT
THIS AGREEMENT is made as of December 7 , 198 2 , by
and between the CITY OF BANGOR, a municipal corporation with a
place of business located in Bangor, County of Penobscot, State of
Maine, PHILIP G. KELLEY, a resident of Hampden, County of Penobscot
State of Maine, and TELL REALTY CO., a Maine corporation with a
place of business in Bangor, County of Penobscot, State of Maine.
For the purposes herein, Philip G. Kelley and Tell Realty Co.
shall be jointly referred to as the "Owners."
WITNESSETH:
WHEREAS, Philip G. Kelley is the owner of a certain
parcel of land situated in Bangor, County of Penobscot, State of
Maine, said land being located at or about 699 Broadway and
identified as Parcel A on Exhibit Aattached hereto and incovper-
ated herein by reference (said land hereinafter referred to as
Parcel A). Reference may be had to a Warranty Deed of Lougee and
Frederick's, Inc. to Philip G. Kelley dated September 14, 1964,
recorded in the Penobscot County Registry of Deeds in Volume 1969,
Page 60, for a more particular description of Parcel A; and
WHEREAS, Kelley Pontiac, Inc. owns and operates an auto-
mobile dealership on Parcel A in a Commercial Two (C-2) Zone under
the Zoning Ordinance of the City of Bangor, which use constitutes
a nonconforming use under the provisions of said Ordinance; and
WHEREAS, Tell Realty Co. is the o of record of a
certain parcel of land situated in Bangor,Countyof Penobscot,
State of Maine, said parcel of land being located at or about 685
Broadway and identified as Parcel B on the aforementioned Exhibit
A (said land hereinafter referred to as Parcel B). Reference may
be had to a Warranty Deed of S. G. Murray b Sons, a Maine
corporation with a place of business at Bangor, County of Penobscot
State of Maine, to Tell Realty CO. dated December 7 , 1982
to be recorded in the Penobscot County Registry of Deeds, for a
more particular description of Parcel B; and
WHEREAS, pursuant to 30 M.R.S.A. 4 4962(1 (1) and Chapter
VIII, Article 2, Sec. 8 and Article 21, Sec. 11 Of the Laws and
Ordinances of the City of Bangor, Philip G. Kelley, as contract
owner, made application for a contract zone
change, so-called, to
reclassify Parcel B from a Commercial Two (C-2) Zone to a Coamercix
Three (C-3) Zone under the Zoning Ordinance to allow for the
utilization of said Parcel in conjunction with the automobile
dealership located on Parcel A, said application preferring
certain conditions or restrictions relating to the physical
development and/or operation of said Parcel B; and
WHEREAS, subsequent to public hearings on the matter and
after due consideration given to the recommendations of the
Planning Board, the Bangor City Council adopted Council Ordinance
82-253 (as amended) whereby it reclassified Parcel B from a
Commercial Two (C-2) Zone to a Commercial Three (C-3) Zone under
the Zoning Ordinance of the City of Bangor subject to certain
restrictions and/or conditions, a copy of said Council Ordinance
82-253 (as amended) and the restrictions and/or conditions con-
tained therein being attached hereto as Exhibit B and incorporated
herein by reference.
eooK3349 f*E?.99,
NOW, THEREFORE, in consideration of the reclassification
of Parcel B from a Commercial Two (c-2) Zone to a commercial
Three (C-3) Zone under the Zoning Ordinance of the City of Bangor,
the parties hereto hereby agree as follows:
1. Philip G. Kelley, for himself, his heirs, personal
representatives, successors and/or assigns, hereby covenants and
agrees that the use, occupancy and/Gr development of Parcel A shal
be subject to the following restriction and/or condition on the
physical development or operation of said property:
During business hours, no fewer than six parking
spaces shall be reserved and provided for customer
parking, said spaces to be located in front of the
existing building located on Parcel A between the
building and the public right-of-way on Broadway.
2. Tell Realty Cc, for itself, its successors
s and assigns,
n
hereby covenants and agrees that the u ccupancy, and/or
development of Parcel B shall be subject to the following re-
strictions and/or conditions on the physical development or
operation of said property:
a. No structure shall be erected on the
subject premises.
b. The entire area of the subject premises
shall be properly filled, paved, and
maintained and a fence shall be erected
and maintained as between the subject
premises and those immediately abutting
n the southeast of the same.
Said fence
shall be no less than six feet (6') in
height, except that the portion of said
fence within fifteen feet (15') of the
sidewalk on Broadway shall be no less than
two and one-half feet (2s,') in height.
C. The subject premises shall be used only
for the display of new and used motor
vehicles, all of which shall be kept
properly cleaned and aligned in an
orderly fashion.
d. N o repairs shall be instituted on the
subject premises, nor shall any conduct
be permitted thereon or with reference
to the vehicles thereon, which could prove
offensive to normal occupancy by any
abutting owners as to odors or noise.
e. In the event that the subject premises
ceases to be used for the displays£ new
and used motor vehicles, the zoning classi-
fication of said premises shall be eligible
for anand/or change to the zoning
classification of the property located at or
about 699 Broadway (Parcel A herein. Said
reversion and/or change may be initiated by
representative of the City of Bangor or an
abutting landowner to the subject premises,
shall be processed in accordance with the
procedure established for an amendment to
n
the Zoning Ordinance i effect at that time,
and shall be evaluated in
i accordance with the
criteria established for thereview of zone
-2-
=3349 w300
change applications. Furthermore, Tell
Realty Co. hereby covenants and agrees
that it, its successoxs
assigns, will
not object to or oppose any reversion
and/or change hereunder.
3. The Owners hereby agree that the above -stated
restrictions, provisions, conditions, covenants, and agreements
are made an essential part of this Agreement, shall run with the
respective parcels herein described, shall bind the owners, their
heirs, personal representatives, successors, and assigns, to 0
of said property o any part thereof orany interest therein, 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 represen-
tatives, and the owner or owners of any abutting parcels of land.
4. The Owners hereby agree that if they, orany person
claiming under or through than, shall at any time violate or
attempt to violate, or shall omit 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 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 violations of this Agreement
n the s matter that it is authorized
to prosecuteviolations under the Zoning
Ordinance of the City of Bangor in effect
at the time of said violations. For the
purposes herein, a violation of this
Agreement shall be deemed a violation of
said Zoning Ordinance and shall be subject
to the penalty provisions of said Ordinance
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.
b. The City of Bangor and/or the owner orowners
of parcels of land which abut ParcelsA and
B shall have the right to institute any and
all actions or proceedings, including the
right to enforce all the terms and pro -
ons 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
of abutting parcels to object to any violation,
however long continued, or to enforce any restriction, provision,
condition, covenant, or agreement contained in this Agreementshall
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 or subsequent thereto.
5. The parties hereto hereby agree that the provisions of
this Agreement shall remain in full force and effect until such
time s the same
may be modified, amended, repealed, and/or
replaced upon written agreement of all the parties. It i
expressly understood by the parties hereto that such a change an
the part of the City of Bangor shall be in accordance 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 accordingly.
-3-
tou33t9 ;:e3Qt_
6. The parties hereto hereby agree that nothing in this
Agreement shall be construed so as to preclude the future exerciss
of the Bangor City Council's legislative authority relative to the
zoning of Parcel B. In the event that the zoning of said Parcel
is changed by the City Council, the contracted u outlined i
Paragraph 2(c) above, subject to the restrictions, provisions,'
conditions, covenants, and agreements contained in this Agreement,
shall be allowed to continue as a nonconformity or nonconforming
use, whichever the case may be, in accordance with the provisions
of the zoning Ordinance, as may be in effect at the time of said
zone change, governing the same.
]. The parties hereto hereby agree, for themselves,
their successors and assigns, to waive any and all rights to
challenge the validity of Council Ordinance 82-253 (as amended)
or the terms of this Agreement.
S. The parties hereto hereby agree that if one of the
restrictions, provisions, conditions, covenants, and agreements,
r portions thereof, contained in this Agreement is for any r r
held invalid a unconstitutional by any court of competent juris-
diction, 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 the parties hereto hereby further
agree that in the event the contracted use provision contained in
Paragraph 2(c) above is invalidated or such other provision i
invalidated so as to constitute a material change in the restrict-
ions, provisions, conditions, covenants, and agreements negotiated
by and between the parties, the City of Bangor or abutting land-
owners shall have the power to invoke the zing classification
provisions contained in Paragraph 2(e) above, it being the intent
of the parties hereto that the Owner shall not be allowed to
benefit from the zone change for Parcel B in the event that the
City of Bangor or abutting landowners are deprived of the con-
ditions negotiated to minimize the negative externalities of the
requested rezoning.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the day and year first above written.
Witness
Witness
CITY OF BANGOR
BY
Witness I s Ci[ Nanag r
-4-
DOCK3349 8AA02
PENOBSCOT, as. qR4 7 , 198 Z
Then personally appeared the above-named PHILIP G. KELLEY
and acknowledged the foregoing to be his free act and deed in his
said capacity.
Before me,_
y;ffdd�NNoo/tta1L�ry Public
Attorney -at -Law
E OF MAINE
WCOT, ssqq, 1982
Then personally appeared the above-namedAv -
acknowledged the foregoing to be his free act and deed in his
capacity as President, and the free act and deed of said Tell
ty Co.
Before me,
Notary Public
Attorney -at -Law
OF MAINE
'COT, ss. Desew6et 7, 1982
Then personally appeared the above-named JOHN W. FLYNN
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,
Notary Public
Attorney -at -Law
-5-
front of bulll
Baof3349 fturv03
EXXIRIT 'A'
(pareal dimensions are approximate)
6�ala W29nied December 1,19S2
82-253-
(AMENDED)
CITY OF BANGOR
(TITLE) 00ina1tCEt. _.Amending Zoning_. Ordinance.......... _......
Be a ordained by the City Commit of the City ofBanyor, as f flows:
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 a parcel of land located at 685 Broadway (Tax Map R-41,
Parcel No. 27) from Commercial 2 Zone to commercial 3 Zone. Said
parcel containing approximately 20,000 sq. ft. and being more
particularly indicated as Parcel B on the map attached hereto and made
a part hereof.
PROVIDED, HOWEVER, THAT said change of zone is granted subject to the
following conditions:
1. Conditions applicable to the property located at 685 Broadway
(Parcel B on the attached map):
a. No structure shall be erected on the subject premises.
b. The entire aa of the subject premises shall be properly
filled, paved, and maintained and a fence shall be erected
and maintained as between the subject premises and those
immediately abutting on the southeast of the same. Said
fence shall be no less than six feet (6') in height, except
that the portion of said fence within fifteen (15) feet of
the sidewalk on Broadway shall be no less than two and one
half feet (W) in height.
C. The premises shall be used only for the display of new and
used motor vehicles, all of which shall be kept properly
cleaned and aligned in an orderly fashion.
d. No repairs shall be instituted on the subject premises
nor shall any conduct be permitted thereon, or with
reference to the vehicles thereon, which could prove
offensive to normal occupancy by any abutting owners as to
odors or noise.
EXHIBIT "B"
BBOB3349 BABE JO5
2.
a. In the event that the subject premises ceases to be used
for the display of new and used motor vehicles, the zoning
classification of said premises shall be eligible for a
reversion and/or change to the zoning classification of
the property located at or about 699 Broadway (Assessor's
Map R-41, Lot 26), said property being more particularly
indicated as Parcel A on the map attached hereto and made
a part hereof. Said reversion and/or change may be
initiated by a representative of the City of Bangor or an
abutting landowner to the subject premises, shall be
processed in accordance with the procedure established for
an amendment to the Zoning Ordinance in effect at that
time, and shall be evaluated in accordance with the criteria
established for the review of zone change applications.
2. Conditions applicable to the property located at 699 Broadway
(Parcel A on the attached map):
a. During business hours, no fewer than six parking spaces
shall berrved and provided for customer parking, said
spaces tobein front of the existing building at
699 Broadway between said building and the public right-of-
way on Broadway.
3. Execution by those parties with an interest in the affected
properties of an agreement providing for the implementation and enforce-
ment of all the terms and conditions set forth above, a copy of said
agreement being attached hereto and made a part hereof. In the event
eh at said agreement is not executed within sixty (60) days from the
date of passage hereof, this Ordinance shall become null and void.
BE IT FURTHER ORDAINED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT
this Ordinance shall become effective upon the recordation of an executed
copy of the aforementioned agreement in the Penobscot County Registry of
Deeds or ten (10) days from the date of passage hereof, whichever is
later.
True Copy A.ttest
(Minus Ixtdtits )
r /
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ty
eFneer)Wne ;y
RECEIVEDPENOB,Ss. OEC 7 1982 4 6 /1 m HE
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