HomeMy WebLinkAboutPermit Miscellaneous 1989-11-13 (2)
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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
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Don Hong
85857 l~t Street
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Eugene, Oregon 97405
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Dqn Hong
8900 River Land Drive
Redding, CA 96002
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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.
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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
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Allen L. John
AU/me
enc. ,__ '.
cc: C "Cynthia L.Harmon '
Joseph Leahy, Springfield City Attorney
Dennis Wingham