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HomeMy WebLinkAbout02 LFD 08-008ITEM #2 Report to the Planning Commission DATE: OCTOBER 14, 2008 TUSTIN SUBJECT: LARGE FAMILY DAY CARE PERMIT (LFD) 08-008 APPLICANT: MARIELA BERRIOS MARIELA BERRIOS DAY CARE 14481 PINEBROOK DRIVE TUSTIN, CA 92780 PROPERTY OWNER: JOSE MARTINEZ 440 SOUTH PACIFIC STREET TUSTIN, CA 92780 LOCATION: 14481 PINEBROOK DRIVE ZONING: SINGLE-FAMILY RESIDENTIAL (R-1) GENERAL PLAN: LOW DENSITY RESIDENTIAL ENVIRONMENTAL STATUS: PURSUANT TO HSC SECTION 1597.46(b), A LARGE FAMILY DAY CARE HOME SHALL NOT BE SUBJECT TO THE PROVISIONS OF DIVISION 13 (COMMENCING WITH SECTION 21000) OF THE PUBLIC RESOURCES CODE [CALIFORNIA ENVIRONMENTAL QUALITY ACT] REQUEST: AUTHORIZATION TO ESTABLISH A LARGE FAMILY DAY CARE HOME AT AN EXISTING SINGLE FAMILY RESIDENCE, CARING FOR UP TO FOURTEEN (14) CHILDREN LFD 08-008 continuation October 14, 2008 Page 2 RECOMMENDATION That the Planning Commission adopt modified Resolution No. 4100 approving Large Family Day Care Permit 08-008, authorizing the establishment of a large family day care home caring for up to fourteen (14) children in an existing single-family residence located at 14481 Pinebrook Drive. BACKGROUND The applicant is requesting approval to establish a large family day care caring for up to fourteen (14) children at an existing single-family residence located within the Single- Family Residential (R-1) zoning district. Currently a small family day care home, caring for up to eight (8) children, is licensed by Community Care Licensing to operate at the residence. Health and Safety Code (HSC) Section 1597.45 states that small family day care homes are considered a residential use for the purposes of all local ordinances. HSC Section 1597.46 states that with respect to large family day care homes, a city shall not prohibit them on lots zoned for single-family dwellings. Pursuant to Tustin City Code Section 9223a6, large family day care homes are a permitted use in the Single- Family Residential (R-1) zoning district, subject to certain regulations. Therefore no additional zoning restrictions or business license may be imposed. Please refer to the Report to the Planning Commission dated September 23, 2008, for full details on the proposed project (Attachment A). At the September 23, 2008, public hearing the Planning Commission raised a question concerning the applicability of City zoning regulations regarding spacing and concentration of large family day care facilities. The subject item was continued to allow further time to research and address issues and recommendations discussed at the hearing. The Commission also directed staff to draft additional conditions of approval to ensure the safe operation of the facility. DISCUSSION Spacing and Concentration As outlined in the Report to the Planning Commission dated September 23, 2008, under state law a city may prescribe "reasonable standards, restrictions, and requirements concerning spacing and concentration relating to such homes" (HSC 1597.46(a)(3). At the public hearing, commissioners expressed concern over the proximity of the proposed large family day care home to W.R. Nelson School, which also operates a day care at the premises. Commissioner Thompson questioned whether the close proximity of the proposed day care home to the institutional day care facility that is operated at the school poses any conflict with the intent of the law to avoid an over-concentration of such uses. At that time, the Commission directed City staff and the City Attorney's office to research the issue. The City Attorney has prepared a memo reviewing the matter and concluding that any child care facility operated at the school is not LFD 08-008 continuation October 14, 2008 Page 3 considered a large family day care use and that a "Large Family Day Care Home may be located within 300 feet of the school" (see Attachment B). Staffing At the meeting of September 23, 2008, the Commission also asked for clarification regarding the number of caregivers that would be required as part of a large family day care home. Community Care Licensing staff has confirmed that an assistant caregiver would be required to be present at all times that the home was exercising the capacity of a large family day care home. When exercising the capacity of a small family day care home, only one (1) caregiver would be required to be present. Staffing ratios are regulated by Community Care Licensing as part of the day care license, and proposed Condition 3.7 of LFD 08-008 requires the applicant to obtain and maintain a current license for a Large Family Day Care home from the Community Care Licensing Agency. Proposed Condition 3.14 has been added to ensure that the staffing ratio provided at the home is consistent with the requirements of state law. Conditions of Approval At the public hearing on September 23, 2008, the Planning Commission suggested that additional conditions of approval be placed upon the project to ensure the safe operation of the facility. The following proposed conditions have been modified (shown in italics) and added to Resolution No. 4100, in response to the Commission's discussion at the hearing: Modified Condition 1.8: Large Family Day Care Permit 08-008 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director and/or City Engineer. The Community Development Director and/or City Engineer shall review the use to ascertain compliance with conditions of approval. If the use is not operated in accordance with this permit or is found to be a nuisance or negative impacts are affecting the surrounding tenants or neighborhood, the Community Development Director shall impose additional conditions to eliminate the nuisance or negative impacts, or may initiate proceedings to revoke the permit. Added Condition 3.14: The ratio of caregivers to children shall be consistent with the requirements set forth in Title 22, Division 12, Chapter 3 (Family Child Care Homes) at all times. Added Condition 3.15: The applicant shall conduct a client education program with all existing and new clients of the day care facility. This shall include an information sheet, to be reviewed and approved by the Community Development Department, to be signed by each client acknowledging the use restrictions on the project. The acknowledgements shall be kept on file by the applicant and be made available for review by the City at any time. LF~ 08-008 continuation October 14, 2008 Page 4 CONCLUSION Pursuant to Section 1597.46 of the California Health and Safety Code, a local agency may not deny an application for a large family day care business proposed within a lot zoned for single family dwellings. However, "reasonable" conditions could be placed upon the approval of a permit to ensure compatibility with the surrounding uses. The proposed project, as conditioned, appears to be in compliance with state and local laws regarding the operation of large family day care facilities. Therefore, staff recommends that the Planning Commission adopt modified Resolution No. 4100 approving Large Family Day Care 08-008 as conditioned (Attachment C). I'CC.U Reina Kapadia Associate Planner Elizabeth A. Binsack Community Development Director Attachments: A. Report to the Planning Commission, September 23, 2008 B. Memorandum to Planning Commission from City Attorney, September 29, 2008 C. Modified Resolution No. 4100 S:1Cdd1PCREPORll20081LFD 08-008 cont.doc Attachment A Report to the Planning Commission September 23, 2008 ITEM #4 TUSTIN Report to the Planning Commission DATE: SEPTEMBER 23, 2008 SUBJECT: LARGE FAMILY DAY CARE PERMIT (LFD) 08-008 APPLICANT: MARIELA BERRIOS MARIELA BERRIOS DAY CARE 14481 PINEBROOK DRIVE TUSTIN, CA 92780 PROPERTY OWNER: JOSE MARTINEZ 440 SOUTH PACIFIC STREET TUSTIN, CA 92780 LOCATION: 14481 PINEBROOK DRIVE ZONING: SINGLE-FAMILY RESIDENTIAL (R-1) GENERAL PLAN: LOW DENSITY RESIDENTIAL ENVIRONMENTAL STATUS: PURSUANT TO HSC SECTION 1597.46(b), A LARGE FAMILY DAYCARE HOME SHALL NOT BE SUBJECT TO THE PROVISIONS OF DIVISION 13 (COMMENCING WITH SECTION 21000) OF THE PUBLIC RESOURCES CODE [CALIFORNIA ENVIRONMENTAL QUALITY ACT] REQUE5T: AUTHORIZATION TO ESTABLISH A LARGE FAMILY DAY CARE HOME AT AN EXISTING SINGLE FAMILY RESIDENCE, CARING FOR UP TO FOURTEEN (14) CHILDREN LFD 08-008 September 23, 2008 Page 2 RECOMMENDATION That the Planning Commission adopt Resolution No. 4100 approving Large Family Day Care Permit 08-008, authorizing the establishment of a large family day care home caring for up to fourteen (14) children in an existing single-family residence located at 14481 Pinebrook Drive. BACKGROUND The applicant is requesting approval to establish a large family day care caring for up to fourteen (14) children at an existing single-family residence located within the Single- Family Residential (R-1) zoning district (Attachment A -Location Map). Currently a small family day care home, caring for up to eight (8) children, is licensed by Community Care Licensing to operate at the residence. Pursuant to Health and Safety Code (HSC) Section 1597.45, small family day care homes are considered a residential use for the purposes of all local ordinances. Therefore no additional zoning restrictions or business license may be imposed. Per Tustin City Code Section 9223a6, large family day care homes are a permitted use in the Single-Family Residential (R-1) zoning district, subject to certain regulations. A formal application for a large family day care facility is required to be submitted to the Community Development Department for homes caring for eight (8) to fourteen (14) children. LFD 08-008 September 23, 2008 Page 3 Health and Safety Code and Tustin City Code Section 1596 et seq. of the California Health and Safety Code (HSC) governs Family Day Care Homes with respect to zoning. The California State Legislature has found and declared that: Family day care homes operated under the standards of state law constitute accessory uses of residentially zoned properties and do not fundamentally alter the nature of the underlying residential uses. Family day care homes draw clients and vehicles to their sites during a limited time of day and do not require the attendance of a large number of employees or equipment. (HSC 1597.43) As a result, HSC Section 1597.46 disallows a city from prohibiting large family day care homes on lots zoned for single-family dwellings. As an alternative, the city may either: 1) Classify these homes as a permitted use of residential property for zoning purposes; 2) Grant a nondiscretionary permit to use a lot zoned for asingle-family dwelling to any large family day care home that complies with local ordinances prescribing reasonable standards, restrictions, and requirements concerning spacing and concentration, traffic control, parking, and noise control relating to such homes; or, 3) Require any large family day care home to apply for a permit to use a lot zoned for single-family dwellings. The use permit shall be granted if the large family day care home complies with local ordinances prescribing reasonable standards, restrictions, and requirements concerning spacing and concentration, traffic control, parking, and noise control relating to such homes. With respect to the City of Tustin, the Tustin City Code allows for large family day care homes under the third option described above and adopted standards contained in TCC Section 9223a6. As prescribed, Section 1597.46(a)(3) of the Health and Safety Code and Tustin City Code Section 9223.a.6 require notification of all property owners within a one hundred (100) foot radius of the exterior boundaries of the proposed large family day care home. The purpose of this notification is to allow property owners and/or other affected parties within the immediate proximity to comment and/or request a public hearing. No hearing on the application shall be held unless a hearing is requested by the applicant or other affected persons. On August 1, 2008, a notice of the proposed large family day care home was mailed to property owners within a one hundred (100) foot radius of the property. However, the original notice contained a typographical error regarding the address of the property. Therefore, a revised notice was mailed to the same list of property owners on August 5, 2008, referencing the error and the correct address of the subject property. The notice specified that, pursuant to HSC 1597.46.(2), the item would be considered by the Zoning Administrator on August 25, 2008, unless a request for a public hearing before the Planning Commission was received in writing by August LFD 08-008 September 23, 2008 Page 4 15, 2008. On August 15, 2008, two (2) letters, from Craig and Elizabeth Oberlin and from Toby B. Moore, were received requesting a public hearing before the Planning Commission (Attachment E -Submitted Correspondence). Public concerns are outlined in further detail under section "Public Input" below. DISCUSSION Site and Surroundings The property is improved with an existing single-story, single-family home with atwo-car garage. The projecfi site is located at the end of a cul-de-sac on Pinebrook Drive in the Single-Family Residential (R-1) zoning district. The property is surrounded by other single family residences to the north, south, and east; the property is bounded by Walnut Avenue at the west. W.R. Nelson School is located on the east side of Browning Avenue from the property. Children have access to the play room, dining room, kitchen, one (1) designated bathroom, and two of the three bedrooms, as designated by the applicant on the submitted plans (Attachment C). • The proposed hours of operation would be from 6:00 a.m. to 7:30 p.m.; The applicant has indicated that the day care would operate as follows (Attachment C - Submitted Plans): LFD 08-008 September 23, 2008 Page 5 • Parents drop off and pick up children at different times throughout the morning and afternoon; • Some children may be from the same family or walk to and from the site, thus drop-off and pick-up spaces needed for the day care may be fewer than fourteen (14) vehicles and would probably not occur at the same time; • One (1) non-resident is employed by the facility, does not own a car, and commutes to the site by bus. Zoning and Building Code Requirements Tustin City Code Section 9233a6 lists large family day care homes as a permitted use in the Single-Family Residential (R-1) zoning district, subject to certain regulations. The section is cited below, with an explanation as to how the proposed project meets the code requirement: TCC 9223a6(a): Prior to commencement of operation of any large family day care home, the applicant for a permit shall complete and submit an application to the Community Development Department. Information provided on the permit shall include: Name of operator; address of the home; and a list of property owners within a 100 foot radius of the exterior property boundary of the proposed day care home. Proposed Project: The applicant has provided the required information as part of the application. TCC 9223a6(b): Large family day care homes shall be operated in a manner not exceeding the noise level in the Tustin Noise Ordinance, nor shall such day care homes be allowed to operate in a manner that would constitute a nuisance to neighboring properties. A day care home shall by design, location, and layout avoid any potential noise which may constitute a nuisance to neighboring properties. Proposed Project: The Tustin Noise Ordinance limits all residential properties to an exterior noise standard of 55dB(A) between the hours of 7:00 a.m. - 10:00 p.m. and 50 dB(A) between 10:00 p.m. - 7:00 a.m. Proposed Condition 3.9 requires the applicant to comply with the Tustin Noise Ordinance at all #imes. Additionally, the rear yard of the residence is directly adjacent to Walnut Avenue, a primary arterial street; therefore, the noise produced by the children in the rear yard is not expected to exceed the noise produced on the adjacent roadway. TCC 9223a6(c): A permit shall not be granted for a large day care home that would be established within 300 feet of the exterior property boundaries of any existing licensed large family day care home. Proposed Project: Staff has verified, based on a list of current licensed large family day care homes provided by the Department of Social Services, Orange County Child Care Office, that there are no other large family day care homes licensed within three hundred (300) feet of the proposed site. LFD 08-008 September 23, 2008 Page 6 TCC 9223a6(d): All property owners within a 100 foot radius of the exterior property boundary of a proposed large family day care home, as shown on the last equalized County assessment roll, shall be notified of the intent to establish such a home. Proposed Project: An official notice was mailed to all property owners within the 100 foot radius on August 1, 2008. However, the original notice contained a typographical error of the address of the property. Therefore, a revised official notice was mailed to the same list of property owners on August 5, 2008, with the corrected information. TCC 9223a6(e): No hearing on the application for a permit shall be held by the Planning Commission unless a hearing is requested by the applicant or a property owner within a 100 foot radius of the exterior boundary of the proposed home. If no hearing is requested, the permit shall be granted if the large family day care home complies with the provisions of this Code. Proposed Project: The official notice that was sent to the applicant and property owners within the 100 foot radius on August 5, 2008, stated that the Zoning Administrator would consider the item on August 25, 2008, unless a request for a public hearing was made in writing and received by the Community Development Department by 4:00 p.m. on August 15, 2008. Two (2) letters requesting a hearing before the Planning Commission were received at the City on August 15, 2008. Therefore, the meeting before the Zoning Administrator was cancelled and the item was scheduled for the next available hearing before the Planning Commission. TCC 9223a6(t): Any day care home must comply with all regulations adopted and enforced by the State Fire Marshal and Orange County Fire Department. Proposed Project.• The Orange County Fire Authority has indicated that the agency will review the subject Large Family Day Care permit application as part of fire clearance for the Community Care Licensing process. Proposed Condition 3.8 requires the applicant to comply with all applicable state and local codes. TCC 9223a6(g): The play yard of the home must be enclosed by a minimum six-foot high fence setback from the required front yard. Proposed Project: The side and rear yard of the property is enclosed by wooden fencing and block wall that are at least 6'-0" in height, as shown on the submitted plans. However, upon inspection of the property, it was noted that the fence along the west side of the property needs to be repaired. Following the inspection, a Code Enforcement notice was sent to require the fence to be repaired immediately. Proposed Condition 3.10 also will require the property owner to maintain the fence on the property in good condition at all times. TCC 9223a6(h): The Planning Commission shall not grant a permit for a large family day care home for any location that has on the property a swimming pool as defined by Section 102 of the Uniform Swimming Pool Code, as adopted. LFD 08-00$ September 23, 2008 Page 7 Proposed Project: No pool or spa currently exists on the subject property and Proposed Condition 3.11 has been included to ensure that no pool or spa may be constructed or installed as long as a large family day care use exists at the property. TCC 9223a6(i): Any day care home must comply with the provisions of the State Uniform Building Code and City of Tustin Building requirements which apply to single family residences. Proposed Projecf: The proposed project has been reviewed and two (2) site visits have been conducted by City of Tustin Building Division staff and the existing structure appears to be substantially in compliance with the code in effect at the time of construction. TCC 9223a6(j): Any large day home must provide one (1) off-street parking space for each employee who is not a resident of the premises, and provide adequate drop-off and/or pick-up facilities on-site or immediately adjacent to the site as necessary to avoid interference with traffic and to promote the safety of children. Proposed Project: The applicant has indicated that the facility currently employs one (1) non-resident employee who commutes to the site by bus, and therefore does not require a designated parking space. However, Proposed Condition 3.2 requires that if needed, one parking space on the driveway of the property shall remain open and available for use for the outside employee. The remaining space on the driveway shalt be available for the dropping off and picking up of children. TCC 9223a6(k): An applicant for a large family day care home shall be licensed or deemed to be exempt from licensure by the State of California as a large family day care home. Proposed Project: Proposed Condition 3.7 would require the applicant to obtain and maintain a valid large family day care home license from the State of California and provide proof of such to the Community Development Department. At the time that the large family day care use is discontinued, the applicant shall notify the Community Development Department in writing. TCC 9223a6(!): Nothing contained in the provisions of this amendment shall preclude the revocation for cause of any permit granted for a large family day care home following proceedings conducted by the Planning Commission to determine if said use is operated in a manner detrimental to the health, safety or welfare of the community or surrounding properties. (Ord. No. 911, Sec. 3, 5-21-84; Ord. No. 991, Sec. 2, 8-3-87) Proposed Project: Proposed Condition 1.8 would allow review by the City if deemed necessary to ensure all conditions are complied with. Proposed Condition 3.13 allows for the project to be brought before the Planning Commission if the large family day care is not operated in compliance with local ordinances and conditions imposed. LFD 08-008 September 23, 2008 Page 8 Parking The applicant has indicated that the facility currently employs one (1) non-resident employee who commutes to the site by bus, and therefore does not require a designated parking space. However, in the event that the employee were to commute to the site in her own vehicle, or if a different employee were to be hired who commuted to the site in his or her own vehicle, a designated parking space would be needed. Proposed Condition 3.2 requires that if needed, one space on the driveway of the property shall remain open and available for use for the outside employee and that the remainder of the driveway shall remain open for the dropping off and picking up of children. Proposed Condition 3.5 also requires the residents of the property to park their personal vehicles within the existing two-car garage. Traffic In addition to the drop-off and pick-up schedule submitted by the applicant, proposed Condition 3.6 also requires drop-off and pick-up times of the children to be staggered by at least ten (10) minutes, to avoid multiple cars and pick-up/drop-off activity at any one given time. Not all 14 children are expected to arrive at the same time, as the applicant has indicated that some are from the same family and therefore come together, some live nearby and walk to the subject property, and some are picked up or dropped off by the applicant herself, therefore reducing the total number of trips for the facility. HSC Section 1597.46 states "the permit shall be granted if the large family day home complies with local ordinances, if any, prescribing reasonable standards, restrictions, and requirements concerning ... traffic control," not traffic impacts. Proposed Condition 3.12 requires the applicant to ensure that the day care operation complies with the California Vehicle Code and all local traffic control ordinances and posted traffic control devices. Noise Section 1597.46 of the Health and Safety Code states that any noise standards shall be consistent with local noise ordinances implementing the noise element of the General Plan and shall take into consideration the noise levels generated by children. The Tustin City Noise Ordinance limits exterior noise levels in residential areas between 7:00 a.m. and 10:00 p.m. to 55 dB(A). The potential increase in noise caused by eight (8) to fourteen (14) children is anticipated to be minimal. However, proposed Condition 3.9 would require the applicant to comply with the Noise Ordinance at all times. Environmental Review Pursuant to HSC Section 1597.46(b), a large family day care home shall not be subject to the provisions of Division 13 (commencing with Section 21000} of the Public Resources Code [California Environmental Quality Act]. Therefore, Section 15274 of the Guidelines LFD 08-008 September 23, 2008 Page 9 for the California Environmental Quality Act (CEQA) lists Family Day Care Homes as a statutory exemption. Public Input An official public notice was sent to all property owners within a 100 foot radius of the subject properly regarding the proposed project. In response, City staff received several phone calls/visits from neighbors inquiring about the project and voicing their opposition to the proposed large family day care. Additionally, four (4) pieces of written correspondence were received by the City (Attachment E -Submitted Correspondence). Two (2) of those letters requested a public hearing. The concerns expressed in these letters all express the neighbors' dissatisfaction over the impact that the proposed large family day care home will have on traffic, circulation, noise, and parking. However, as discussed earlier, state law prohibits local governments from denying large family daycare on lots zoned for single-family dwellings. Staff has explained to concerned parties that the City may only regulate the homes with regards to four (4) issues: 1) spacing and concentration, 2) traffic control, 3) parking, and 4) noise control related to such homes. Since the proposed project, as conditioned, does comply with reasonable local standards relating to the four listed criteria, state law maintains that the City shall grant the permit. Additionally, since family day care homes are exempt from CEQA, no further environmental analysis related to alleged traffic, noise, circulation and parking, as identified in the public comments, should be considered by the City prior to considering the project. The applicant has structured the large family day care operation to mitigate potential concerns with the proposed project. For example, two site inspections have been conducted to verify whether or not the proposed facility meets the requirements of the Tustin Zoning Code and California Building Code, and to ensure that the residents' two (2) vehicles can be parked inside the home's garage; revised plans have been submitted outlining the areas for parking of private vehicles and for dropping off and picking up of the children; and a schedule of the current children's arrival and departure times staggered by at least ten (10) minutes each has been produced by the applicant (Attachment C -Submitted Plans). The project has been conditioned to ensure the continued compliance with the identified mitigation measures for the successful operation of a large family day care home to provide an identified service need without jeopardizing the health, safety, or welfare of the surrounding neighborhood. Should the operation fail to meet these conditions, Section 9233a6(I) permits the "revocation for cause of any permit granted for a large family day care home, following proceedings conducted by the Planning Commission to determine if said use is operated in a manner detrimental to the health, safety or welfare of the community or surrounding properties." ANALYSIS It is staffs understanding that state law precludes the City of Tustin from denying any large family day care use that complies with local ordinances. The proposed large family day care use does comply with Tustin City Code requirements and as conditioned, will not be detrimental to the health, safety, morals, comfort, and general welfare of the persons LFD 08-008 September 23, 2008 Page 10 residing or working in the neighborhood or be injurious or detrimental to property or improvements in the vicinity or to the welfare of the City. A decision to approve this request can be supported by the following findings: 1. That the State of California Health and Safety Code Section 1597.43 states family day care homes operated under the standards of the state law constitute accessory uses of residentially zoned and occupied properties and do not fundamentally alter the nature of the underlying residential uses. 2. That the large family day care home complies with the intent of the State Legislature as stated within the Health and Safety Code which states, "family day care homes for children should be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development." Also, except as specifically provided for in the Health and Safety Code, any restrictions related to the use of single-family residences for family day care homes for the care of children are prohibited in accordance with Section 1597.40(a). 3. The proposed large family day care use, as conditioned, would not be detrimental to, or have a negative effect on surrounding properties. In that, the proposed use is consistent with the large family day care regulations in Section 9223 (a)(6) of the Tustin City Code, as follows: a) The proposed large family day care use, as conditioned, would be subject to maintaining an ambient noise level in accordance with the City of Tustin's Noise Ordinance and, therefore, the use would not have a negative effect on the surrounding properties. b) No other legally established large family day care homes exist within three hundred (300) feet of the subject property. c) The play yard area is enclosed with an existing minimum six (6) foot high fence. d) No swimming pool or spa currently exists on the site, and none shall be constructed as long as a large family day care is operating at the property. e) The subject property has been inspected by Building Division staff and the existing structure appears to be substantially in compliance with the building code in effect at the time of construction. f) As conditioned, one (1) space on the driveway of the property shall remain open and available for parking use of an employee who does not reside at the premises, if needed. LFD 08-008 September 23, 2008 Page 11 g) As conditioned, a minimum of one (1) space on the driveway of the property shall be provided for the drop off and pick up of children. Additional drop-off/pick-up area may be provided immediately adjacent to the site. In addition, implementation of staggered drop-off/pick-up times for clients will ensure sufficient loading area for children and prevent an overconcentration of vehicles at the site. h) The existing small family day care use at 14481 Pinebrook Drive has been licensed by the State of California. The proposed large family day care use, as conditioned, meets the local zoning requirements and would be subject to additional licensing and inspections by the State of California Department of Social Services. If at any time in the future the City is made aware and concurs that the large family day care is not operated in compliance with local ordinances and conditions imposed, the project may be brought before the Planning Commission for potential revocation proceedings to determine if said use is operated in a manner detrimental to the health, safety or welfare of the community or surrounding properties. CONCLUSION Again, pursuant to Section 1597.46 of the California Health and Safety Code, a local agency may not deny an application for a large family day care business proposed within a lot zoned for single family dwellings. However, "reasonable" conditions could be placed upon the approval of a permit to ensure compatibility with the surrounding uses. The proposed project, as conditioned, appears to be in compliance with state and local laws regarding the operation of large family day care facilities. Therefore, staff recommends that the Planning Commission adopt Resolution No. 4100 approving Large Family Day Care 08-008 as conditioned (Attachment F). Reina Kapadia Associate Planner Elizabeth A. Binsack Community Development Director Attachments: A. Location Map B. Land Use Application Fact Sheet C. Submitted Plans D. Health and Safety Code Section 1596 et seq. E. Submitted Correspondence F. Resolution No. 4100 S:1Cdd1PCREPORT120081LFD 08-0OS.doc Attachment B Memorandum to Planning Commission from City Attorney, September 29, 2008 LAW OFFICES OF WOODRUFF, SPR.ADL(N & SMART A PROFESSIONAL CORPORATION 666 ANTON BOUIEVARO, SUITE 1200 COSTA MESA, CA 92826-7870 (714}558-70D0 MEMORANDUM VIA E-MAIL AND FIRST CLASS MAIL TO: City of Tust' I Wing Commission FROM: City Attorn [7ATE: September 29, 2008 RE: Large Family Day Care Home within 300 Feet of the W.R. Nelson School Under the California Child Day Care Facilities Act (California Health and Safety Code section 1597.46(a)(3)), ause permit for a large family day care home must be approved if the home complies with City ordinances "prescribing reasonable standards, restrictions and reauirements concerning spacing, concentration, traffic control, parking and noise control relating to such homes...." Per the City's Zoning Code, a permit may not be granted for a large family day care home that would be established "within 300 feet of the exterior property boundaries of any existing licensed large family day care home." Tustin City Code § 9223a6(c). The Planning Commission requested a report back concerning whether the property's proximity to W.R. Nelson School would preclude approval of the request large family day care home. (This analysis will assume that the home is within 300 feet of the exterior boundary of the school.) The central issue is whether a school (ar after-school child care functions at the school) constitutes an "existing licensed large family day care home." If so, then the City Code would prohibit establishment of another large family day care home within 300 feet of the exterior property boundaries of that school property, thus barring the proposed use. If not, the proximity of the school and child-care functions at the school would not affect the pending application. The City's Zoning Code contains a definition of "Large Family Day Care Home". Tustin City Code § 9297. That definition reads as follows: "Large Family Day Gare Home" means a family dwelling unit, non- institutional in character, properly licensed by the County of Orange, which City ofi Tustin Planning Commission September 29, 2008 Page 2 provides day care only, far a maximum of twelve (12) children ages eighteen (18) years or younger, including the licensee's own children under the age of twelve." When construing the meaning of statutes and ordinances, one first looks to the ordinary meaning of the language of the statute. If the meaning is ambiguous (that is, susceptible to more than one reasonable interpretatian) then evidence of the legislative history and intent may be considered to determine the meaning. Applying that method to the definition, the plain language of the definition of Large Family Day Care Home does not apply to a school since such a Horne must be "a family dwelling unit, non-institutional in character...." There does not appear to be a reasonable interpretatian of "a family dwelling unit" that would encompass a school. Nor wauid an after-school day care #unction operated at a school qualify under that definition. These conclusions are also consistent with State Law expressly exempting from the Cdlifornia Child Care Facilities Act "extended day care programs operated by public or private schools". (Cal. Health & Safety Code § 1596.792(h).) As a result, the City Attorney concludes that the W.R. Nelson School (and any child care facilities operated at the school) is not a Large Family Day Care Home, and as a result, a Large Family Day Care Home may be located within 300 feet of the school. The Tustin Clty Code's definition of "large family day care home" was last revised by ordinance in 1984. Although that City ordinance appearsed to limit large family day care homes to 12 children, California Health and Safety Code section 1597.465, which was added in 1996 and amended in 2003, allows 12 children ar up to 14 children under cerkain circumstances. The provisions of the State law are expressly declared to prohibit restrictions on the use of single-family homes except as provided in the State law (Cal. Health & Safety Code § 1597.40(a)). Although there appear to be no court cases which have considered the issue, it appears likely that the State limitation of up-to-14 children will preempt the local limitation to 12 children. Attachment C Resolution No. 4100 RESOLUTION NO. 4100 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN APPROVING LARGE FAMILY DAY CARE (LFD) 08-008 TO AUTHORIZE THE ESTABLISHMENT OF A LARGE FAMILY DAY CARE HOME, CARING FOR UP TO FOURTEEN (14) CHILDREN AT THE EXISTING SINGLE-FAMILY RESIDENCE LOCATED AT 14481 PINEBROOK DRIVE The Planning Commission does hereby resolve as follows: The Planning Commission finds and determines as follows: A. That a proper application for a large family day care permit was filed by Mariela Berrios to authorize the establishment of a large family day care home, caring for up to fourteen (14) children, at the residence located at 14481 Pinebrook Drive within the Single-Family Residential (R-1 } zoning district. B. That the State of California Health and Safety Code Section 1597.43(x) states that large family day care homes operated under the standards of the State law constitute accessory uses of residentially zoned and occupied properties and do not fundamentally alter the nature of the underlying residential uses. C. That the proposed large family day care home complies with the intent of the State Legislature as stated within the Health and Safety Code which states, "Family day care homes for children should be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development." D. That pursuant to the Tustin City Code (TCC) Section 9223x6, large family day care homes are a permitted use in the Single-Family Residential (R-1) Zoning District, subject to certain restrictions. E. That Health and Safety Code Section 1597.46(x)(3) permits a local agency to apply "reasonable" restrictions related to the use of single-family residences for family day care homes to ensure compatibility with other uses in the vicinity. F. That the proposed use is consistent with the General Plan and Tustin City Code in that the property with a land use designation of "Low Density Residential" and zoning designation of "Single-Family Residential," which Planning Commission Resolution No. 4100 Page 2 provides for the establishment of large family day care homes, when in compliance with local ordinances. G. That the project, as proposed and conditioned, is in compliance with local ordinances. H. That all property owners within a 100 foot radius of the exterior property boundary of the site were notified of the intent to establish a large family day care home. Pursuant to TCC Section 9223(a)(6)(e) and Section 1597.46(a)(3) of the State Health and Safety Code, a hearing of the large family day care home is required by the Planning Commission if the applicant or property owner within 100 feet of the subject property requests such a hearing. That two letters requesting a hearing before the Planning Commission for the proposed large family day care were received on August 15, 2008 from Mr. Toby Moore, owner of 14451 Pinebrook Drive and Mr. and Mrs. Craig and Elizabeth Oberlin, owners of 14482 Pinebrook Drive. H. That a public hearing was duly called, noticed, and held on said application on September 23, 2008, by the Planning Commission. I. That, as conditioned, the large family day care use will not be detrimental to the health, safety, morals, comfort, and general welfare of the persons residing or working in the neighborhood or be injurious or detrimental to property or improvements in the vicinity or to the welfare of the City of Tustin in that: a) The proposed large family day care use, as conditioned, would be subject to maintaining an ambient noise level in accordance with the City of Tustin's Noise Ordinance and, therefore, the use would not be creating a nuisance to neighboring properties. b) No other legally established large family day care homes exist within three hundred (300) feet of the subject property. c) The play yard area is enclosed with an existing minimum six (6) foot high fence. d) No swimming pool or spa currently exists on the site, and none shall be constructed as long as a large family day care is operating at the property. Planning Commission Resolution No. 4100 Page 3 e) The subject property has been inspected by Building Division staff and the existing structure appears to be substantially in compliance with the building code in effect at the time of construction. f) As conditioned, one (1) space on the driveway of the property shall remain open and available for parking use of an employee who does not reside at the premises, if needed. g} As conditioned, a minimum of one (1) space on the driveway of the property shall be provided for the drop off and pick up of children and additional drop-off/pick-up area may be provided immediately adjacent to the site. In addition, implementation of staggered drop-off/pick-up times for clients will ensure sufficient loading area for children and prevent an overconcentration of vehicles at the site. h) The existing small family day care at 14481 Pinebrook Drive has been licensed by the State of California. The proposed large family day care use, as conditioned, meets the local zoning requirements and would be subject to additional licensing and inspections by the State of California Department of Social Services. If at any time in the future the City is made aware and concurs that the large family day care is not operated in compliance with local ordinances and conditions imposed, the project may be brought before the Planning Commission for potential revocation proceedings to determine if said use is operated in a manner detrimental to the health, safety or welfare of the community or surrounding properties. That Pursuant to HSC Section 1597.46(b), a large family day care home shall not be subject to the provisions of Division 13 (commencing with Section 21000) of the Public Resources Code [California Environmental Quality Act]. Additionally, per to Section 15274 of the Guidelines for the California Environmental Quality Act (CEQA) Family Day Care Homes are statutorily exempt. Since family day care homes are exempt from CEQA, no further environmental analysis related to traffic, noise, circulation and parking should be considered by the City prior to considering the project. The Planning Commission hereby approves Large Family Day Care (LFD) 08- 008 to authorize the establishment of a large family day care home, caring for up to fourteen (14) children, at the residence located at 14481 Pinebrook Drive, subject to the conditions contained in Exhibit A attached hereto. Planning Commission Resolution No. 4100 Page 4 PASSED AND ADOPTED by the Planning Commission of the City of Tustin, at a regular meeting on the 14th day of October, 2008. STEVE KOZAK Chairperson Pro Tem ELIZABETH A. BINSACK Planning Commission Secretary STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN I, ELIZABETH A. BINSACK, the undersigned, hereby certify that I am the Planning Commission Secretary of the Planning Commission of the City of Tustin, California; that Resolution No. 4100 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 14th day of October, 2008. ELIZABETI-I A. BINSACK Planning Commission Secretary EXHIBIT A LARGE FAMILY DAY CARE PERMIT (LFD) 08-008 CONDITIONS OF APPROVAL GENERAL (1) 1.1 The proposed use shall substantially conform to the submitted plans for the project date stamped September 23, 2008, on file with the Community Development Department, except as herein modified, or as modified by the Director of Community Development in accordance with this Exhibit. The Director of Community Development may also approve minor modifications to plans or use if such modifications are consistent with the provisions of the Tustin City Code and other applicable codes. (1) 1.2 This approval shall become null and void unless the use is established within twelve (12) months of the date of this Exhibit. Time extensions may be granted if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.3 Unless otherwise specified, the conditions contained in this Exhibit shall be complied with as specified for the project, subject to review and approval by the Community Development Department. (1) 1.4 Approval of Large Family Day Care 08-00$ is contingent upon the applicant and property owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk-Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department within ten (10) days of approval of Large Family Day Care Permit 08-008. (1) 1.5 As a condition of approval of Large Family Day Care Permit OS-008, the applicant shall agree, at its sole cost and expense, to defend, indemnify, and hold harmless the City, its officers, employees, agents, and consultants, from any claim, action, or proceeding brought by a third party against the City, its officers, agents, and employees, which seeks to attack, set aside, challenge, void, or annul an approval of the City Council, the Planning Commission, or any other decision-making body, including staff, concerning this project. SOURCE CODES (1) STANDARD CONDITION (2) CEQA MITIGATION (3) UNIFORM BUILDING CODE/S (4) DESIGN REVIEW *** EXCEPTIONS (5) RESPONSIBLE AGENCY REQUIREMENTS (6) LANDSGAPING GUIDELINES (7) PC/CC POLICY Resolution No, 4100 Exhibit A Large Family Day Care Permit (LFD) 08-008 Page 2 The City agrees to promptly notify the applicant of any such claim or action filed against the City and to fully cooperate in the defense of any such action. The City may, at its sole cost and expense, elect to participate in defense of any such action under this condition. (1) 1.6 Any violation of any of the conditions imposed is subject to the payment of a civil penalty of $100.00 for each violation, or such other amounts as the City Council may establish by ordinance or resolution, and for each day the violation exists, subject to the applicable notice, hearing, and appeal process as established by the City Council ordinance. (1) 1.7 The applicant shall be responsible for costs associated with any necessary code enforcement action, including attorneys' fees, subject to the applicable notice, hearing, and appeal process as established by the City Council by ordinance. (1) 1.8 Large Family Day Care Permit 08-008 may be reviewed on an annual basis, or more often if necessary, by the Community Development Director andlor City Engineer. The Community Development Director and/or City Engineer shall review the use to ascertain compliance with conditions of approval. If the use is not operated in accordance with this permit or is found to be a nuisance or negative impacts are affecting the surrounding tenants or neighborhood, the Community Development Director shall impose additional conditions to eliminate the nuisance or negative impacts, or may initiate proceedings to revoke the permit. (1) 1.9 Prior to commencing operation of a large family day care home, the day care home shall pass final inspection from the Community Development Department, and the operator shall obtain a business license, if a business license is required. BUILDING DIVISION (3) 2.1 All sleeping rooms shall be equipped with one (1) smoke detector inside and one (1) additional smoke detector in the common hallway(s) outside the sleeping area. (3) 2.2 All emergency egress windows for sleeping rooms shall be maintained at all times and shall not be blocked by furniture. USE RESTRICTIONS (1) 3.1 The maximum number of children cared for in the large family day care home shall be 14, or as defined by the State of California Health and Safety Code. Resolution No. 4100 Exhibit A Large Family Day Care Permit (LFD) 08-008 Page 3 (5) 3.2 If the applicant employs any persons not residing at 14481 Pinebrook Drive, the applicant shall provide one (1)off-street parking space for each employee not residing at the property. At least one (1) space on the driveway of the property shall remain open and available for parking use of an outside employee, if needed. (1 } 3.3 The hours of operation of the large family day care shall be limited to 6:00 a.m. to 7:30 p.m., Monday through Friday. (1) 3.4 A minimum of one (1 } space on the driveway of the property shall be provided for drop-off/pick up of children. Additional drop-off/pick-up area may be provided immediately adjacent to the site. (1) 3.5 The existing attached two (2) car garage shall be maintained and used for parking accommodation of vehicles of the residents of the home at all times. The City of Tustin shall be permitted to conduct a garage inspection to ensure compliance at any time. (1) 3.6 Drop-off and pick-up times for each child shall be staggered by at least ten (10) minutes to prevent an overconcentration of vehicles at the site at any given time. (5) 3.7 The applicant shall obtain and maintain a current license from the State Department of Community Care Licensing Agency for a Large Family Day Care home at the site. A copy shall be provided to the City prior to final inspection and commencing operation of a large family day care home. (1)(5) 3.8 The large family day care use shall operate within all applicable State, County, and Tustin City Codes. Any violations of the regulations of the Department of Community Care Licensing, as they pertain to the subject location, or of the City of Tustin, as they relate to the operations of a large family day care home, may result in the revocation of the subject Large Family Day care, as provided for by the Tustin City Code. (1) 3.9 Noise associated with the large family day care home operations shall not exceed the standards of the City of Tustin Noise Ordinance. (1)(3) 3.1D The existing six (6) foot high fence, wall and gate surrounding the play area shall be maintained in good condition at all times. (1) 3.11 While the property is operating as a large family day care home, no swimming pool, Jacuzzi/spa, or other water body shall be constructed on the property. Resolution No. 4100 Exhibi# A Large Family Day Care Permi# (LFD) 08-008 Page 4 (1) 3.12 The large family day care operation shall comply with the California Vehicle Code and local traffic control ordinances and traffic control devices at all times. (1) 3.13 If at any time in the future the City is made aware and concurs that the large family day care is not operated in compliance with local ordinances and conditions imposed, the project may be brought before the Planning Commission for potential revocation proceedings to determine if said use is operated in a manner detrimental to the health, safety or welfare of the community or surrounding properties. (5) 3.14 The ratio of caregivers to children shall be consistent with the requirements set forth in Title 22, Division 12, Chapter 3 (Family Child Care Homes) at all times. (*'~*) 3.15 The applicant shall conduct a client education program with all existing and new clients of the day care facility. This shall include an info sheet, to be reviewed and approved by the Community Development Department, to be signed by each client acknowledging the use restrictions on the project. The sheets shall be kept on file by the applicant and be made available for review by the City at any time. FEES (1) 4.1 Prior to commencing with the operation of the large family day care, the applicant shall pay the following fees. Payment will be required based upon the rate in effect at the time of permit issuance and are subject to change. A. Within forty-eight (48) hours of approval of the subject project, the applicant shall deliver to the Community Development Department, a cashier's check payable to the COUNTY CLERK in the amount of fifty dollars ($50.00) to enable the City to file the appropriate environmental documentation for the project. If within such forty- eight (48) hour period the applicant has not delivered to the Community Development Department the above-noted check, the statute of limitations for any interested party to challenge the environmental determination under the provisions of the California Environmental Quality Act could be significantly lengthened.