HomeMy WebLinkAbout1974-10-28 308 AB ORDER308 AB
Introduced by Councilor Eigney, october 28, 1974
CITY OF BANGOR
(11TIfJ (orber, Au[hprlving the City Manager u
.LaEnt..Into. S.ease..for ..Dog .. Round
BY tie City Cour it of Ike City of Bangor:
OEDEEE%
THAT the City Manager be authorized to enter into a lease with
Mrs. Beatrice L. Raskin for the use of buildings for a dog pound, and
BE IT FURTHER ORDERED that the City Manager be authorized to employ the
necessary attendants and expert monies necessary for operating expenses.
NOTE: The lease will be $100 per month, 3160 per month operating expense
and $600 per month for attendant services. The lease will be effective
In November 1974 and all expenditures will come from Account 34-02, Cade
Enforcement License Control budget.
T IN CITY COUNCIL
October 2e, 1974
Voted to consider next meeting
by the following Yes and no vote:
Councilors voting Yee: 6alaaoCi,
HallOu, xenderson, Needham and
Speirs. Cou,Qilors voting n
HigneY, 6roontae, Gees end Henderson.
CITY CIN
IN CITY COUNCIL
vember 13, 19979
Consider n3,c ting
CITY c
SN COUNCIL
November 25, 14/4
Amended by making the petition and
opinion of the City Solicitor a
part of the Osier. As amended,
passed.
clxz cIs r
MEW
O R D E R y47
Title,
Av"pr..City. meq{ges,to, enter, i^Sp.SRPse
for poj Pound
c�', GEIVED
p74 GCi 24 'Y 4: C5
MY CLEPR S OFFICE
-rtY Ci u'J.:-o II{'Kr
Introduced aa by p
Councilnci,
m�
OPINION
o f t h e
CITY SOLICITOR
To The Members of the Baup¢r City Council:
Subject: Proposed Use of Premises on Mount Hope Avenue for Dog Pound
I N T R DOCT ION
Pending on the Council Agenda is an order (No. 308 Aa) entitled
"Authorizing the City Manager to Enter into Lease for Dag Pound." At the
last regular meeting of the Unger City Council held on Wednesday, November
13, 1914, the Council requested that I make a formal opinion as to whether
the property In question would permit the use of the premises for a dog pound
within the intent of the Order. The following cnnatitutee my opinion in
expect to the proposed use based upon the facts as have been made available
to me at this time.
PACTS
Since my Memorandum to the City Manager, dated November 6, 1974,
I have had an
r
opportunity to review in greater detail the facts surrounding
the proposed use of the premises at 352 Mount Hope Avenue as the City's dog
pound. The facility in question was operated for several yeas by a D[.
Samuel T. "Skin as
amal hospital." It i my understanding that Dr.
Baskin a licensedveternarian who has conducted aentional veterinary
service on onv
ie
the premises, providing c and treatment for sick and injured
r
mals and animal boarding services. It i aide my understanding that because
of illness and physical incapacity, Dr. Raskin has not been able for nearly
two years to personally participate in the operation of the business. His
wife hadcntinued to provide boarding a tthe present, but has not
been able to provide c and treatment for sick or injured animals. It is
my understanding that this limitation in operations has resulted because she
Is not a licensed veterinarian.
information in the Inspection Office indicates that the area in
question w originally zoned "Agricultural" under the 1'940 City of Burger
Sonja& Ordinance. In 1951, Dr. Maple applied to the Building Inspector for
permission to atter the then existing riding stable on the premises for use
as an"Animal Hospital." His application was received by the Building
Inspector on October 15, 1951, and the permit was issued on October 26, 1951,
after appropriate advertisement in the Bangor Daily News. The 1940
Ordinance did not define the term 'animal hospital."
Between 1951 and 1954, the Council revised the zoning for the
area providing for 100 feet of frontage on the lot in question to be classified
as "Residents A.' The remainder of the property was designated a 'Open
Development." There is no indication that Dr. Sorkln's business changed o
was abandoned. In 1960, the Council again changed the zoning for the area
providing for a Residence A classification of the first 600 feet of the lot.
The Building Inspector's records also indicate that on September 20,
1961, Dr. Suakin applied to the Inspector for permission to
construct an animal
hospital on a lot adjacent to WL8Z4V Studios and across the street from his
existing premises. Apparently this application wasdeniedby the Bulldiag
Inspector but approved by the Board of Appeals upon a finding that the requested
would not be more detr natural and injurious to the neighborhood,.
Based upon the facts that have been made available to me, It appears that Or.
gaggle at some later date decided not to go through with his planned development.
On June 1, 1964, Dr. Kaskin again applied to the Building Inspector
for permission to relocate the barn on the subject premises approximately 100
feet back from its prior location. It is my understanding that the permit was
granted, although there is Some question because of lack of information on the
body of the application.
The adoption of o most recent Zoning Ordinance classifies the
entire area as "Residence I."
D18 CUSS ION
Before proceeding further, I wish to point out that there is sure
variance v
n the information that has been made available to relative to the
use made of the premises for the past twenty -odd years. In addition zoning
ordinances in effect in the City prior to the adaption of our
recent
legislation did not distinguish between the operations of aprofessional veteti-
narion service and the ordinary keeping of animals for agricultural or of bar
purposes.
As you all are
aware, the present Zoning ordinance (Chapter VIII)
a finally adopted bytheCity Council during this past fall, and became
effective on October 3, 1974. Thenew
ordinance divides the City late L6
zones (See Article 4), the location of which are shown on a map on file in the
office of the City Clerk.
"Zonfag is the division of ann
cipality into districts and the
prescription and application of different regulationsin each district"
Toulouse V. Board of Zoninx Ad'ua tment, 147 Me. 387, 393 (1952) "The justifi-
cation for the reed Lcc ions imposed by zoning statutes and ordinances given
is given as in the interest of health, safety, or the general welfare." Ibid.
Zoning bas been held to meet the constitutional requirements of both the
United States and Maine Constitutions. See Wright v. Michaud, 160 Me. 164
(1964). "County and municipal
cipal gov nments she it be governed by the
provisions of any zoning ordinance." 30 MRSA 14962 (1) (0)er
The premises inoquestion are zoned oFesidance 1 (R-1)," See
Article 6. The purpose of this z . to stabilize and protect the
essential characteristics of certain low density reside; tial areas of mostly
single-family dwellings or areas where Such development is desired to promote
and encourage a suitable environment for family life." Sec. 1, Article 6.
Unless otherwise provided Within Article 5, Wes permitted within
the R-1 zone
e limited to: (1) one family detached dwellings; (2) home
occupations or professions; or (3) accessory
e
ory u mariLy incidental to
and subordinate t one-famlLy dwellingsor homeo cvpatie;m or profession$.
The proposed use
of the premises obviously does not c within the first
permitted u It is my opinion that the proposed use
could not be classified
as a "home occupation r profession n though itwould be operated by Mrs.
Raskin, because of the restrictions found in Section 2 of Article 21. See also
the definition of Such We In Article 3. Finally, the proposed we is not a
accessory use within the meaning of the ordinance. See definition of accessory
usein Article 3, and restrictions found in Sec. 1-A, Article 21.
It is also my opinion that the proposed use
net be considered
as a'Specfal exception." See Section 3 (2), Article 6. R-1 zone only
provides for special exceptions for churches and nursing homes.
Our Zoning ordinance and nearly eery other zoning ordinance in the
country is primarily prospective In naturepermitting the continuance of
incompatible Wes so long as they are
otherwise maintained i accordance with
the law and a not abandoned. Such incompatible uses are
normally designated
"nonconforming a o
"permitted nonconforming u Provision for such
"grandfathering" is found in Article 2, Section 6 of our Zoning Ordinance.
Article 2, Section 6 provides in part that "he Lawful ueof any
building, , Lando a
water s existing at the a of the enactment
of this Ordinance are hereby permitted and my be c ncinaede although such us
does not conform with the provisions of this Ordinance, providing the following
onditionsemet;
(Emphasis ours) The conditions under which such
nonconforming a permitted to continue are found in Subsections (1) through
(6)of Section 66 r
Iwould suggest that the Council review these subsections.
It should be pointed out at this juncture that say use of the promises
s
prier to October 3, 1974, i not unequivocally permitted to be continued in the
future under Section 6. it must have been a "lawful usue
in other words a e
which wasnot prohibited Order the previously existing zoning in order to be
allowed to be continued. See the definition of "nob conforming use" in Article 3.
It is my opinion that the subject premises may be used for purposes
described in Council Order No. 308 AN only if such vee is found to be a continuance
of a previously existing permitted nonconforming U". unless such a
x
determination can be made, the existing provisionse
of the R-1 z cLeavly
prohibit such use of the Subject premises. If it is not found tobe a
permitted nonconforming us , the only apparent alternatives are far Mrs.
Hoskin and/or the City to seek a Variance it= the Board of Appeals (See
Article 24), Or to provide for a zone change.
As mentioned above, Dr. Raskin and his wife have operated a
no
anal hospital" on the premises since at least 1951. The zoning ordinance
to effect in 195L did not define "animal hospital," However, inasmuch a
the premises were then zoned "Agricultural", it appears that the keePing Of
animals for any purpose, whether for agricultural purponea or veterinary
purposes or for any other purposes, was permitted.
The L954 revision of the Zoning ordinance changed the "Agricultural"
classification to "Open Development", again permitting the keeping of animals
without
malswithout much restriction. It is not clear as to whether Dr. Raskin's business
a
became a permitted nonconforming use at that time, inasmuch as the first 100
feet of his lot were changed to Residence A. Animal hospitals were
t permitted
in a Residence A z However, , in 1960, when ail o most of the promises was
rezoned 'Residence A", it clearly became a permitted nonconforming use.
I have fond no indication that Dr. Hoskin's business has materially
changed or been altered since he first began his operations over 20 years ago.
The Only significant change came approximately two yearago when ill health
prevented his pex cal part to doer ion in the bus Ines a. The quest in that must
be resolved is whether the Otherwise permitted nonconforming use 'abandoned"
within the meaning of one new Zoning Ordinance o usly existing Legisla-
tion, to operate as a prohibition of the proposed we of the premises.
As mentioned above, i find no definition of "animal hospital" in
zoning legislation previously adopted. It is also my understanding that the
Plantral hospital" operated by Dr. Haek£n provided lot only strictly veterinary
services for sick or injured animals, but also boarding services for healthy
o
animals. Lacking any factual information [ the contrary. Imust conclude
that such use of the premises was permitted during his entire occupancy of the
premises.
During the past two yeas , I have been informed that his wife has
continued to operate the business,providing only boarding services. Is this
change material and substantial enough to Constitute an "aband Onment7"
Theoing legislation in effect prior to October 3, L974, required
essentially them
s standards for abandonment, to matt: One year, to prohibit
the continuance ofannforming use. Occupation of the premises for
purposes of providing strictly Veterinary services has Certainly been discon-
tinued for over one year. However, boarding services have been provided on
the premises until the present.
In my judgment, the changes of operation during the peat two years
have not been sufficiently significant as to prohibit the use of the premises
within the intent of Council Order 308 AS. This conclusion is based upon an
additional understanding that animals brought to the premises will merely be
headed and cared for, and there will be no sales or ether disposal of animals
conducted on the premises. It is my judgment that the proposed use does not
expressly or otherwise mater felly alter the use
of the premises, although
there likely will be larger numbers of animals on the premises thou have been
experienced during recent months. Such additional activity will not, in my
judgment, constitute an unlawful expansion of the nonconforming use.
"The Courts generally have construedzoning statutes o
ordinances requiring a substantial change or difference in character before
condemning a use as an
eunlawful extension of a non-nonfoxming use. A non-
conforming use cannot be limited by a zoning ordinance to the precise magnitude
thereof which existed at the date of the ordinance, and mare increase in the
volume of business done pursuant t onformin3 use by natural expansion
and growth of trade cannot be c nsidered a unlawful extension of that us ,
Frost v. Luray, 231 A.2d 441, 447 (Me. 1967). "An expansion or extensionin
the volude of business in pun of a c
- onforning use does not constitute
such a change of the a such a expansion or extension thereof as is within
the prohibition of the zoning ordinance o enabling act unless it amount
change in the character of the existing non-conforming
s- onforming us ibid.
where the original nature and purpose of the enterprise remain the make and
the n onforming use is not changed in character, mere increase in the around
Or intensity of the non -conforming; use
within the same area does not constitute
n improper expansion enlargementof such n onform£ng a Ibid. at 448.
It is my understanding that all boarding activities will take place within the
promises, and the building will not be expanded or altered.
In conclusion, I must add that the present discussion may be somewhat
premature. Section 3A (1), Article 23, requires the issuance of a Certificate
of occupancy by the Cede Enforcement Officer where aoonforming use is to be
maintained in the future. In addition, any dispute as to the interpretation of
the provisions of our Seeing Ordinance may be considered by the Board of Appeals.
See Article 24, Section 1 (2). "Tn determining whether an activity is within
the scope of a permitted non -conforming useconsideration meat be given to the
s
particular facts of the case, the terms of the particular ordinance, and the
effect which the increased uwill have on other property. Usually local boards
of appeal are entreated with the function of deciding, within prescribed limits
and consistent
istent with the a r
of illegal disc whether a regulation
appliesto a given situation, Land the manner of its application. In discharging
such responsibility, ordinarilylocal boards of appeal are endowed with a liberal
discretion and their action is subject to review by the Courts only to determine
whether it was unreasonable, arbitrary or illegal.' Frost v. Lundy. Ibid.
It is my opinion
and belief that the promisedat o about 352 Mount
Rope Ave may continue to be used by the waskins forpurposeof providing
ma
animal boarding services, but y not be used for purposes of providing car
and treatment of sick or injured animals. It i also myL
opinion that the
r
proposed a rangement .for boarding of animals impoucded by the Dog Control
Officer is permitted on the premises, providing that such use does not include
the sales or other disposal of such animals.
hespectfully submitted,
November 25, 1974 City Solicitor
PETITION
We, the undersigned, residents and tax payers of Mt.
Hope Avenue and surrounding streets in the City of Bangor, County
of Penobscot, State of Maine, which area has been designated as a
Residential One Zone (R-1), are hereby opposed to the granting of
the so-called Samuel Hoskin, O.V.M. property located on 352 Mt.
Hope Avenue, Bangor, County of Penobscot, State of Maine, as an
animal pound; or any lessee or sub -lessee using the said premises
for an animal pound.
L 5 0 72�A ti L
C
Jy//eukze t
7r as&
L ter'/ 0o
R
