HomeMy WebLinkAbout2021-02-22 21-097 ORDINANCETitle, Ordinance
21-097 02/22/2021
CITY COUNCIL ACTION
Council Meeting Date: February 22, 2021
Item No: 21-097
Responsible Dept: Planning
Action Requested: Ordinance — District Map Change Map/Lot: R40/006 -E
Amending Chapter 165, Land Development Code, District Map, by changing the Parcel of Land addressed at
1109 Broadway from Shopping & Personal Service District (S&PS) Contract to Shopping & Personal Service
(S&PS)
Summary
This Ordinance would amend the Land Development Code by changing zoning at 1109 Broadway from
Shopping and Personal Services District to contract Shopping and Personal Services District. In 1987, Randall
and Audrey Gifford entered into a contract zoning agreement with the city to the Commercial 2 zone, now
known as Shopping & Personal Service District. The contract agreement included conditions on building
setback requirements, rear yard and side yard screening, hours of operation, and, limitations on drive-in
businesses.
Since this agreement, properties in the surrounding area have been re -zoned to a mix of S&Ps and General
Commercial districts including businesses that utilize drive thrus.
The Gifford's would like to put in a drive-through business, in part, in response to the change in consumer
preference for drive-through pick-up of goods during the pandemic. Also, drive-through service for ice cream
has become an ordinary and usual amenity for this business type.
Committee Action
Committee: Planning Board
Action
Staff Comments & Approvals
Meeting Date: March 2, 2021
For:
Against:
vv
City Manager City Solicitor Finance Director
Introduced for: First Reading and Referral
CITY COUNCIL ORDINANCE
Date: February 22, 2021
Assigned to Councilor: Fournier
21-097 02/22/2021
ORDINANCE, Amending Chapter 165, Land Development Code, District Map, by changing the Parcel of Land
addressed at 1109 Broadway from Shopping & Personal Service District (S&PS) Contract to Shopping &
Personal Service (S&PS)
WHEREAS, at present, drive-through business is not allowed for the property due to a 1987 contract
agreement;
WHEREAS, since 1987, there has been significant commercial zoning and property development in the area,
including drive-through businesses;
WHEREAS, the City has supported businesses modifying their service delivery to maintain safe social
distancing during the current pandemic;
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BANGOR AS FOLLOWS, THAT
Chapter 165 of the Code of the City of Bangor is amended as follows:
The Zoning District Map is hereby amended by changing the Parcel of Land located at 1109 Broadway
(Assessors Map R40, Lot 6-E) from Shopping & Personal Service District (S&PS) Contract to Shopping &
Personal Service (S&PS). As a result of this action, the associated contract dated April 7, 1987, for this parcel
may be eliminated.
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21-097
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CONTRACT ZONING AGREEMENT
THIS AGREEMENT is made as of April 7, 1987, by and between the
CITY OF BANGOR, a municipal corporation with a place of business
located at 73 Harlow Street, in Bangor, County of Penobscot, State
of Maine and RANDALL H. GIFFORD, JR. AND AUDREY M. GIFFORD, of
Farmington, County of Franklin, State of Maine
WITNESSETH:
WHEREAS, Randall H. Gifford and Audrey M. Gifford are the owners
of record of a certain parcel of land situated in Bangor, County of
Penobscot, State of Maine, said land being located at 1147 Broadway
and being identified on City of Bangor Assessor's Map No. R-40, as
Lot 6-A. Reference may be had to a deed recorded in the Penobscot
County Registry of Deeds in Volume 3997, Page 306 for a more
particular description of said land; and
WHEREAS, pursuant to 30 M.R.S.A. Section 4962 (2) (I) and
Chapter VIII, Artricle 2, Sec. 8 and Article 21, Sec. 11 of the Laws
and Ordinances of the City of Bangor, application was made for a
contract zone change, so-called, to reclassify said parcel of land
(said parcel hereinafter being referred to as the "subject prem-
ises") said parcel comprising a land area of approximately 52,500
sq. ft., all as set forth in Exhibit A attached hereto and incor-
porated herein by reference, from a Residential Four Zone to a
Commercial 2 Zone under the Zoning Ordinance of the City of Bangor,
said application proffering certain conditions or restrictions
relating to the physical development and/or operation of the subject
premises; and
WHEREAS, subsequent to a public hearing on the matter, and after
due consideration given to the recommendations of the Planning
Board, the Bangor City Council adopted Council Ordinance 87-87
whereby it reclassified the subject premises from Residential Four
Zone to Commercial Two Zone under the Zoning Ordinance of the City
of Bangor subject to certain restrictions and/or conditions, a copy
of said Council Ordinance 87-87 and the restrictions and/or con-
ditions contained therein being attached hereto as Exhibit B and
incorporated herein by reference.
NOW, THEREFORE, in consideration of the reclassification of the
subject premises from Residential Four Zone to Commercial Two Zone
under the Zoning Ordinance of the City of Bangor, the parties hereby
agree as follows:
1. Randall H. Gifford and Audrey M. Gifford, their successors
and assigns, hereby covenant and agree that the use, occupancy
and/or development of the subject premises, in addition to other
applicable laws, ordinances, or regulations of the City of Bangor,
shall be subject to the following restrictions and/or conditions on
the physical development or operation of said property:
BK3998 PG 15
21-097
FEBRUARY 22, 2021
a. Building set back requirements:
Front set back 50 feet
Side yard 20 feet
Rear yard 40 feet
b. Rear yard screening will be a minimum of 20 feet
deep and an evergreen nature and be at least 5 feet
in height at time of planting so as to provide a
dense visual barrier at all times of year.
c. Screening on the North-West sideline of the property
from 160' deep to a depth of 290' will be a minimum
of 20' wide and of an evergreen nature and be at
least 5 feet in height at time of planting so as to
provide a dense visual barrier at all times of year.
d. The hours of operation will be limited so as to
exclude opening to the public from 1:00 a.m. to 6:00
a.m.
e. The following characteristics of a drive -in -business
will be excluded from use:
1) Service directly to the customer in a motor
vehicle via a service window which eliminates
the need for a customer to exit the motor
vehicle.
2) Service directly to a motor vehicle either by
the customer or by an attendant with one or
more of the following: fuel, air, washing,
cleaning.
2. 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 subject
premises, shall bind the owners, their successors and assigns, to or
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 representa-
tives, and the owner or owners of any abutting parcels of land.
3. 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 landowners(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 in 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
BK3993 PG 1 16
21-097
FEBRUARY 22, 2021 csii"a' y
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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 restrictions, provisions,
conditions, covenants, or agreements contained in this Agreement
shall in no event be deemed a waiver of the right to do so there-
after as to the same breach or violation or as to any breach or
violation occurring prior or subsequent thereof.
4. The City of Bangor and the Owners 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 their written agreement. It is expressly
understood by the parties hereto that any such change 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.
5. The parties hereto hereby agree that nothing in this Agree-
ment shall be construed so as to preclude the future exercise of the
Bangor City Council's legislative authority relative to the zoning
of the subject premises. In the event that the zoning of said
premises is changed by the City Council, any use established under
the provisions outlined in paragraph 1, subparagraphs a, b, c, d,
and e, above, subject to the restrictions, provisions, conditions,
covenants, and agreements contained in this Agreement, shall be
allowed to continue as a nonconformity or a 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.
6. The parties hereto hereby agree, for themselves, their
successors and assigns, to waive any and all rights to challenge the
validity of Council Ordinance 87-87 or the terms of this Agreement.
7. The parties hereto hereby agree that if one of the restric-
tions, provisions, conditions, covenants, and agreements, or por-
tions thereof, contained in this Agreement is for any reason held
invalid or unconstitutional by any court of competent jurisdiction,
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 parties hereto hereby further agree
that in the event any of the contracted provisions contained in
paragraph 1, subparagraphs a, b, c, d, and e, above, are invalidated
or such other provision is invalidated so as to constitute a
material change in the restrictions, provisions, conditions,
covenants, and agreements negotiated by and between the parties, the
City of Bangor or abutting land owners shall have the power to seek
a reversion and/or change of the zoning of the subject premises to
the current zoning classification as may be in effect at the time of
the processing of any such reversion and/or change. Said reversion
and/or change may be initiated by a representative of the City of
Bangor or an abutting property owner to the subject premises, shall
be processed in accordance with the procedure established for an
amendment to the Zoning Ordinance in affect at the time, and shall
be evaluated in accordance with the criteria established for the
review of zone change applications. It being the intent of the
parties hereto that the owner shall not be allowed to benefit from
the zone change for the subject premises in the event that the City
nf RAnnnr or ahuttina land owners are deprived of the conditions
21-097
FEBRUA 22, 2021
8. Except as expressly modified herein, the use and occupancy
of the subject premises shall be governed by and comply with t e
provisions of the Zoning Ordinance of the City of Bangor and a
applicable amendments thereto or replacement thereof.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the day and year first above written.
Wi ess Randall H./Giffor{' , Jr. -
ess Audrey'..Giffor,/— 11
CITY QF, BANGOR
ev BY V
W ness Jo n W Fl
I s C ty Manager
STATE OF "*-
p}�n.�.�Li ss
cif,,, ( ,1987
Then personally appeared the above-named Randall H. Gifford and
Audrey M. Gifford and acknowledged the foregoing to be their free
act and deed.
Before me,' ;
u Printed Name:
Justice of the Peace -SEA
./Notary Public `�i�
Attorney at Law
WARY PUBLIC STATE OF FLORIDA
RY COMMISSION EXP. AUG. 7,1989
BONDED THRU GENERAL INS. 00.
STATE OF MAINE
21-097
87_d.FBRUARY 22, 2021
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March 9', 1987, A y, st
pity ,Clerk 6/
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CITYr
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6K998 PGJ7J
21-0
FEBRUARY 22, 2021
87-87
Introduced by Councilor Frankel, February 23, 1987
AmendingiZonn Ordinance
(TITLE,) x�rt�tnure,...................................................................................'.........................
1147 Broadway
....... ..._....... __.................................................................................._......................................... .......................... I .......... ....
Be it ordained by the City Council of the City of Bangor, as follows:
THAT the zoning boundary lines as established by the Zoning Map
-e-f the City of Bangor dated September 23, 1974, as amended be
hereby further amended as follows:
By changing part of a parcel of land located at 1147 Broadway
(Tax Map No. R-40, Part of Parcel No. 6-A) from Residential 4 Zone
to Commercial 2 Zone. Said part of a parcel containing approximately
52,500 sq. ft. and being more particularly indicated on the map
attached hereto and made a part hereof.
PROVIDED HOWEVER, THAT, in addition to the mandatory conditions imposed
by Chapter VIII, Article 21, Section 11.3, Ordinances of the City of
Bangor, said change of zone is granted subject to the following con-
ditions:
1. The use and/or operation of the subject premises shall be
subject to the following limitations and/or restriction.
a. Building set back requirements:
Front set back 50 feet
Side yard 20 feet
Rear Yard 40 feet
b. Rear yard screening will be a minimum of 20 feet deep
and of an evergreen nature and be at least 5 feet in
height at time of planting so as to provide a dense
visual barrier at all times of year.
C. Screening on the North-West sideline of the property
from 160' deep to a depth of 290' will be a minimum
of 20' wide and of an evergreen nature and
be at least 5 feet in height at time of planting so as
to provide a dense visual barrier at all times of
year.
d. The hours of operation will be limited so as to exclude
opening to the public from 1:00 a.m. to 6:00 a.m.
EXHIBIT B
BK3998 PG 1 U
21-097
FEBRUARY 22, 2021 2
e. The following characteristics of a drive -in -business
will be excluded from use:
1) Service directly to the customer in a motor vehicle
via a service window which eliminates the need
for a customer to exit the motor vehicle.
2) Service directly to a motor vehicle either by the
customer or by an attendant with one or more"
of the following: fuel, air, washing, cleaning.
2. Execution by those parties with an interest in the affected
property of an agreement providing for the implementation and enforce-
ment of all the terms and conditions set forth above and the recording
of said executed agreement in the Penobscot County Registry of Deeds by
the property owners, a copy of said agreement being on file in the
Office of the City Clerk and incorporated herein by reference. In the
event that said agreement is no so executed and recorded within ninety
(90) days from the date of passage hereof, this Ordinance shall become
null and void.
a
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PGJ, ?
21 9
87-F RUARY 22, 2021
RM-mulk
PROBSCOT. SS. RECD APR 7 1987 oQh.5C)m Ply
%.- EXHIBIT A
R I
Planning Division
Memorandum
To: Honorable Bangor City council
Cathy Conlow, City Manager
CC: Tanya Emery, Director of Community & Economic Development
Jeff Wallace, Code Enforcement Officer
From: Anne Krieg AICP, Planning Officer
Date: March 3, 2021
Regarding: Zone Change — 1109 Broadway — Map -Lot R40 -006-E - Contract
Shopping & Personal Service (S&PS) District to Shopping & Personal
Service District — R. Gifford Family Limited Partnership, applicant
Please accept this memorandum as the recording and explanation of the Planning Board
action on the above noted item at their requisite public hearing dated March 7, 2021.
Jon Whitten of Haley Ward Engineering Services represented the applicant. Lindsay
Skilling of Gifford's was also available on the Zoom call. Whitten presented their intention
to create a drive-in service for their business.
Questions arose from the Board regarding queuing space and traffic. The Board noted
that another drive in business across the street often queues out on Broadway.
City Engineer John Theriault spoke about the proposed improvements to the area,
specifically that there may be a center island that will prevent left had turns from the site.
He also noted that the traffic volumes are likely going to be similar to what they are
currently.
Upon answering minor clarifications questions, the Board unanimously passed a motion
to recommend to the City Council that the amendment ought to pass. The motion was
made by Meagher and seconded by Bazinet.
IN CITY COUNCIL
FEBRUARY 22,2021
COrd 21-097
Motion made and seconded for First Reading and Referral to Planning Board Meeting on March 2,2021
Vote: 9—0
Councilors Voting Yes: Davitt,Dubay,Fournier,Hawes,Nichols, Okafor, Schaefer, Sprague, Tremble
Councilors Voting No: None
Passed
'42' j Z;�
CITY C- LERW
IN CITY COUNCIL
MARCH 8,2021
Cord 21-097
Motion made and seconded for Passage
Vote: 9—0
Councilors Voting Yes: Davitt,Dubay,Fournier,Hawes,Nichols, Okafor, Schaefer, Sprague,Tremble
Councilors Voting No: None
Passed
O
CITCVCLERW