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HomeMy WebLinkAboutPermit Miscellaneous 1989-11-13 (2) - . . "-' LAW OFFICES OF JOHNSON & KLOOS 767 WILLAMf:TTf; STREET, SUITE 203 ALLEN L. .JOHr~SON BILL KLOOS EUGENE, OREGON 97401 AREA CODE 503 TELEPHONE 687-1004 PAX 687-1021 November 13, 1989 , Don Hong 85857 l~t Street 1/ Eugene, Oregon 97405 I Dqn Hong 8900 River Land Drive Redding, CA 96002 I Re: Kanopy Kingdom Lease Rezoning Application Dear Mr. Hong: I represent Dennis Wingham, lessee under the enclosed agreement dated April 1, 1989. Under the agreement, Mr Wingham has leased the Kanopy Kingdom property at 1565 South "A" Street in Springfield. On Mr. Wingham's behalf, demand is hereby made that you cooperate fully in his efforts to secure a zone change from industrial to commercial in order to carry out the clear purpose of the enclosed lease. Specifically, demand is made that you promptly sign the application for the necessary zone change as required under the Springfield land use code. An application form is enclosed for your signature. If it is not returned to me by Friday, November .29, Mr. Wingham will consider you in default under the lease. As you know, the City of Springfield has notified both you and Mr. Wingham that the property is currently zoned industrial and is not zoned for the current commercial use. However, the City has also advised both of you that the property is shown as commercial on the Metro Area General Plan and that rezoning to commercial is therefore appropriate. The City plans to rezone the property to commercial as part of its general obligations to conform its zoning designations to its plan designations when it does its next round of general housekeeping amendments next year. Meanwhile, the city staff says that it is necessary and appropriate for you and Mr. Wingham to submit an application for an individual zone change in order to avoid enforcement proceedings. Under the city's regulations, the city cannot consider an application unless it is signed by the owner. Mr. Wingham has asked you to sign the application and you have refused. As a result, Mr. Wingham is exposed to liability for fines and other penalties. His business is in danger, and the purpose of the lease is being frustrated. iJ. . . Page - 2 Donald Hong Re: Dennis Wingham/Kanopy Kingdom November 13, 1989 I am enclosing copies of the City's October 6, 1989, letter (with enclosures) to Mr. Wingham under the name "Dennis Kanopy Kingdom." The letter states that the citation will be issued to the "resident and/or property owner." Under the circumstances, it is possible that that the citation will be issued to you alone, as Mr. Wingham has indicated his willingness to submit the requested application. However, we have no assurance of that from the City, and the effect on the business would be the same. In addition, you have an obligation under the lease to cooperate in securing the necessary governmental approvals to enable the purpose of the lease to be achieved. Failure to cooperate can excuse further performance by the lessee and subject you to substantial liability. I suggest you consult with an attorney and that you ask your counsel to review the following court cases on these issues: Stockburger v. Dolan, 14 Cal. 2d 313, 94 P2d 33 (1939); and McNally v. Moser, 210 Md. 127, 122 A2d 555 (1956); City of Portland v. George D. Ward & Associates, Inc., 89 Or App 452, review denied 305 Or 672 (1988); Best v. National Bank, 303 Or 557 (1987); and Goad v. Maxwell, 273 Or 553 (1979). Mr. Wingham regrets having to take this step. He sincerely hopes that this matter can be resolved quickly and amicably, and that the relationship can get back onto a sound footing. Sincerely, JOHNSON & KLOOS ~~ Allen L. John AU/me enc. ,__ '. cc: C "Cynthia L.Harmon ' Joseph Leahy, Springfield City Attorney Dennis Wingham