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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 . BroVd ay @q 6 6b _ In City Gpun �t"ober 25:IP82 �E' F1.pi C?J ti' Cons ide9::Be xY-l.iR i�g Intrvbr®i mtl (tial dl - Y,<, 1 (l�ry _ itY nvay'.. Crux tLaan 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 �Q� 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) Y r r m C2, / e m 4 s C ! It 9 Q f � C2 < Mont of Eullaln9 S C2 .. - C r C2ro C3 (Darnel elmensions are approximate) 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 W O `C2 R4 V /Ya Od 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 ..., . WANGOR. MAINE (WAR JOHN AT LORD .•max r ams, n...i.aax.., wf �p Ov of P=%otr, Aaw 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 / �o ty eFneer)Wne ;y RECEIVEDPENOB,Ss. OEC 7 1982 4 6 /1 m HE Grp/ OF4 esmr, sx A/0 tY o nrrm ve ._......1 H ..m a 4....M., eM m vae.ai.3 SrJ