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HomeMy WebLinkAboutZOA 94-1 CITY OF PALM DESERT 1994 ORDINANCE NO. 742 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25.04.240, 25, 14.020, 25.16.020, 25.18.020, 25.20.02.0, 25.22.020, AND 25.24.020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25.04.307, 25.14.035, 25.15.0231 25.15.025, 25.16.035, 25.18.035, 25.20.035, 25.22.035, 25.24.027, AND 25.72.015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. WHEREAS, state law distinguish:xa between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" iu defined as any uhild day care facility other than a family day core home, and includes infant centers, pre-schools, and extended day care facilities. WHEREAS, "family day care homed" are defined as homes that regularly provide care, protection, and supervision to twelve (12) or fewer children in the provider's own home for periods of less than twenty-four (24) hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and pre-empts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3.6 of Division 2 of the California Health 6 Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes"; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six (6) or fewer children, including children under the age of ten (10) years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to seven (7) to twelve (12) children, inclusive, including children under the age of ten (10) years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use MU43124 for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the City and also authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six (6) or more children at any location other than their normal place of residence; and WHEREAS, the City Council recognizes the growing need for child day care facilities within the City and the preference of some parents for family day care homes; and WHEREAS, the City Council also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the City Council of the City of Palm Desert, California, DOES ORDAIN as follows: Section 1. That Section 25.04.240 of the Municipal Code is amended to read as follows: "25.04.240 Day Nursery. "Day nursery" (including preschool and nursery schools) has means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their normal place of residence. The term includes any facility meeting the definition of "day care center" contained in California Health and Safety Code Section 1596.76. " Section 2. That Section 25. 04.307 is hereby added to the Municipal Code and will read as follows: NSR43124 -2- "25.04.307 Family Day Care Home. "Family day care home" means a home which regularly provides care, protection, and supervision of twelve (12) or fewer children, in the provider's own home, for periods of less than twenty-four (24) hours per day, while the parents or guardians are away, and includes the following: (a) "Large family day care home" which means a home which provides family day care to seven (7) to twelve (12) children, inclusive, including children under the age of ten (10) years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which provides family day care to six (6) or fewer children including children under the age of ten (10) years who reside at the home, as defined in state regulations. The foregoing definitions shall be construed in a manner consistent with Chapter 3.4 of Division 2 of the California Health i Safety Code and any applicable case law." Section 3 . That Section 25.14.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "Z. Small Family Day Care Homes.00 Section 4 . That Section 25.14.035 is hereby added to the Municipal Code and will read as follows: "25.14.035 Large Family Day Care Homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 5. That Section 25.15.023 is hereby added to the Municipal Code as follows: "25.15.023 Principal Uses and Structures Permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes. " Section 6. That Section 25. 15.025 is hereby added to the Municipal Code to read as follows: "25.15.025 Large Family Day Care Homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. "_ NSR43124 -3- section 7. That Section 25. 16. 020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: "H. Small Family Day Care Homes-" Section 8, That Section 25.16.035 is hereby added to the Municipal Code and will read as follows: "25.16.035 Large Family Day Care Homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 9. That Section 25. 18.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "Z. Small Family Day Care Homss.10 Section 10, That Section 25.16.035 is hereby added to the Municipal Code and will read as follows: "25.18.035 Large Family Day Care Homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 11, That Section 25.20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: 11G. Small Family Day Care Homes.'° Section 12. That Section 25.20.035 is hereby added to the Municipal Code and will read as follows: "25.20.035 Large Family Day Care Homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 13 . That Section 25.22.020 of the Municipal Code is hereby amended to read as follows: "25.22.020 Permitted Uses. The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes. " Section 14 . That Section 25.22.035 is hereby added to the Municipal Code and will read as follows: NSR43124 -4- ".25.22.035 Large Family Day Care Homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 15, That Section 25.24.020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows: 00D. Small Family Day Care Homes.00 Section 16, That Section 25.24.027 is hereby added to the Municipal Code and will read as follows: "25.24.027 Large Family Day Care Homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 17, That Section 25.72.015 is hereby added to the Municipal Code and will read as follows: "25.72.015 Large Pamily Day Care Homes. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this Code. " Section 18, That Chapter 25.72A is hereby added to the Municipal Code and will read as follows: "Chapter 25.72A LARGE FAMILY DAY CARE HOME USE PERMITS Sections: 25.72A.010 Purpose. 25.72A.020 Application Process. 25.72A.030 Application Pee. 25.72A.040 Notice to Property owners. 25.72A.050 Decision by the Zoning Administrator. 25.72A.060 Appeal of Decision. 25.72A.070 Expiration of Permit. 25.72A.080 Review of Permit; Suspension or Revocation. 25.72A.090 Pre-existing Family Day Care Homes. 25.72A.100 violation; Public Nuisance and Misdemeanor. 25.72A.110 Exemptions. 25.72A.010 Purpose. The City Council adopts this Chapter pursuant to California Health & Safety Code Section 1597.46. Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentration, traffic NSR43124 -5- control, parking, and noise control relating to large family day care homes. Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and requirements. Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services. 25.72A.020 Application process. Applications for use permits to operate a large family day care home shall be made to the City's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant's own children under ten (10) years of age; (b) number of employees; (c) state license number. (d) proof that the applicant is in lawful possession and control of the real property proposed to be used as a large family day care home. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan (8'k x 11^) showing: location and dimensions of existing residence and other structures, including permanent outdoor play structures and equipment, and fencing; distance to property line; parking areas and number of spaces both on-site and off-site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extinguishers and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. 25.72A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant NSR43124 -(- to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the City's cost of administering the review and permit process. 25.72A.040 Notice to property owners. Not less than ten (10) days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed, use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a three hundred (300) foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision on the application unless requested by the recipient. 25.72A.050 Decision by the zoning administrator. After proper notice has been given to affected property owners pursuant to Section 25.72A.040, the zoning administrator or his or her designee shall render a decision on the application. Unless requested by the applicant or other affected person, no hearing shall be held on the application before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) ,Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home, subject to an application for an exception to said three hundred (300) foot distance which may, after a public hearing and notice to the adjacent property owners in accordance with Section 25.72A.040 above, cause the reduction to no more than one hundred (100) feet from another large family day care home. The foregoing spacing and concentration requirements shall not apply to large family day care homes which are already operating in the City on the date this Chapter takes effect. (b) Traffic control. The traffic circulation plan shall be designed to diminish traffic safety problems. Residences located on major arterial streets (as shown on the general plan circulation map) must provide a drop-off/pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in neighborhoods already identified as having traffic congestion problems. NSR43124 -7- (c) Parking. All homes used for large family day care facilities shall provide at least three (3) automobile parking spaces, nor more than one (1) of which may be provided in a garage or carport. Parking may be on-street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. (d) Noise control. operation of the facility shall comply with all provisions of Chapter 9.24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact if on- going problems exist. (e) Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. (f) Residency. The applicant must be a primary resident of the home that is proposed as a large family day care home. (g) Contact person. The current name(s) and telephone number(s) of the applicant, and all other operators if different from the applicant, of the family day care home shall be on file with the Department of Community Development at all times. (h) State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. (i) Building and Fire Code Compliance. Consistent with Section 1597.46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single-family residences, and with such additional standards as the State Fire Marshal from time to time adopt pursuant to Section 1597.46 (d) of the Health & Safety Code to promote the fire and life safety of children in family day care homes. (9-gg Title 22 of the California Code of Regulations. ) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing building and fire code provisions. However, a copy of the applicable state licensing evaluation report covering these issues may be found by the City staff to be sufficient. (j) Smoking Restricted. Consistent with Section 1596.795 of the Health & Safety Code,. smoking of NSR43124 -8- tobacco and other substances -- whether in pipe, cigar, or cigarette form -- shall not be allowed in the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. (k) Single-family Zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned or used for single-family dwellings under this ordinance. (1) Proof of Control. No use permit shall be issued unless the applicant can demonstrate legal authority and control over the real property proposed to be used as a large family day care home. 25.72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City's costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City will process the request for an appeal. If at the end of the appeal, the City's actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City's costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 25.72A.070 Expiration of Permit. If a large family day care home possessing a use permit ceases to operate for a period greater than three hundred and sixty (360) consecutive days or its state license expires, whichever occurs first, then its use permit shall be considered null and void. Permits are non-transferable. 25.72A.080 Review of Permit; suspension or Revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25.72A. 050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory KSR43124 -9- when the City receives six (6) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the Planning Commission may suspend or revoke the permit or may, in its discretion, impose additional reasonable standards and requirements consistent with state law, based on findings derived from testimony and evidence presented at the public hearing. 25.72A.090 Pre-existing Family Day Care Homes. Any large family day care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance, by filing with the City a copy of their existing license provided by the State of California. Such permits shall be issued by the City without further notice or hearing. Such homes may continue to operate during the City's processing and receipt of these applications. Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered a nuisance and be abated. 25.72A.100 Violation; Public Nuisance and Misdameanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in the City without a valid use permit as required by this Chapter is prohibited and is both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8.20 of this Code and any other applicable provision of state or local law. 25.72A.110 Exemptions. This Chapter shall not be construed as applying to uses which are exempt from local regulation pursuant Health & Safety Code Section 1596.792, subdivisions (d) , (e) , and (f) . M Section 19. In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect thirty (30) days after its adoption. MSR43124 -10- PASSED, APPROVED and ADOPTED this 14th day of July, 1994 , by the City council of the City of Palm Desert, California by the following vote, to wit: AYES: BENSON, CRITES, BELLY, SNYDER, WILSON NOES: NONE ABSENT: NONE ABSTAIN: NONE S. Y WILMN, Mayor ATTEST: SHEILA R. LLIGAN,,- ty Clerk City of Palm DesertjCalifornia KSR43124 -11- ,d Ci AL AGENDA PACKET SECTIGN M RECEIVED WETNG GATE (/i3 /9y '94 JUN 17 PC=Wood Rd. CITY CLERK'S OFE in Ca� ,hme 8.5994 Mayor S. R Wilson Inlay Roy City Hall Palm Desert. California Dear Mayor Wilson, The San Diego Courtly Family Day Caro Association provides support to aver eight hundred family child are providers. Our goal is to provide education and a support network to all providers.parents.and the communities, interested in the well being of children. We strongly encourage Family Child Care Providers to provide quality child are through continuing education and training. e City of Palm Desert aurenty requires,for a large family child are provider,a $1800-2300 W—mit fee WF a realize the permit fee is a standard for all businesses with at least one emp oyes,however, child are is not a standard business. Child are providers are in a IinMaci service business Once a child care provider has reached this or her apacily,for the snail or large Ikhense,they an not apand their business or their Profits to compensate for the continuing rise in costs to remain profitable. This results in many child are providers dimintinuing their child are service.diaaaagas small licensed provides from isiparnciirno to a large license, and a loss of potential new providers to meat their famly budget The A fordoble child cars is intpontar ht to paremrts strhgglag Costs of being a large family child carp provider are cwntinually rtsft l loerhsing,fts y. has imposed a SM.00 Iloensing fee,and a fingerprinting fee of 575.00 Par check At present,the impact of tusirms fear,m ung pertmd&lioertsing fees,and child abuse irdsu checics are reflected in the nswhg cost of child care. Furthermore, it is difBwlt to convince Unlicensed prrnnders to become licensed because of the high e>rperns and the bti den of paperwork and guidelines(over and above state licensing)required by law. On behalf of the S.D.C.F.D.C.A and our members residing in the County of San Diego, we ask you to moonwder your position for large family avid rye providers and exempt the large tboense from the business fee and. in the.beer futum also consider a use by right permit,with no tees or conditions attached These two requests will make a fte xbA difference towards promoting affordable, quality child are in your City. Thank you for taking the time to consider our position on this issue. Other cities, such as Encinitas,have taken a child are friendy stand and do see the treed for keeping Me cost of child are as low as possible for their commuridy. Please call me if you have any questicns eohcemeng our requests. 2�� Shy. S .— Debra Boles Legislative Chair San Diego County Family Day Care Association (819)753-8595 cc Sunshine Nu nt:on DW Dq rdm Dc O&FR 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE (619) 346-0611 FAX(619)341-7098 May 27 , 1994 Mr. and Mrs. Don Wallquist 74-397 Myrsine Avenue Palm Desert, California 92260 Dear Mr. and Mrs. Wallquist: This is in response to your letter of May 25, 1994 . At the present time the large family day care ordinance has not been enacted. The matter was continued from the council meeting of 12 May 94 to 23 June 94 . Enclosed you will find a copy of the May 12 council minutes and a strike out/insert copy of the ordinance being proposed as requested. Regarding the concern of your correspondence being made available to Ms . Reed; your correspondence on this issue becomes part of the public record and must be released on request. I cannot, however, state from who Ms . Reed may have requested copies of your correspondence. A public nuisance is not permitted to continue in the city. However, unfortunately it must first be determined whether a public nuisance exists as defined by law. An activity may be a nuisance or discomfort to one or more persons but not be a public nuisance. If the noise problem occurs again, please contact our code enforcement department and they will investigate immediately the problem to determine if our noise regulations are being violated. If they are appropriate action will be taken. Until the large family day care ordinance is established with appropriate regulations there is nothing more that can be done. The public hearing on this matter was continued to 7 :00 p.m. 23 June 94 and you can testify at that time. `tic? ReY[b0 veem MR. AND MRS. DON WALLQUIST MAY 27, 1994 Should you need further questions clarified, please feel free to call me. Very truly yours, N A. DI ASSISTANT CITY MANAGE / DIRECTOR OF COMMUNIT DEVELOPMENT /tm Enclosures cc: Jean Benson Dave Erwin Marshall Rudolph City Manager 2 LAW OIIIC" OF BEST, BEST 6 KRIE"R May 51 1994 �MQ88�IDS TO: Mayor and City Council Members, City of Palm Desert FROM: Marshall S. Rudolph, Deputy City Attorneyyy1ASVL� RE: Day Care ordinance -- Revised Attached hereto is a revised version of the day care ordinance originally considered by the planning commission and city council. Deletions are indicated by strikeouts (example) and insertions are indicated by redlining ( ) . revisions represent the consensus opinion or those who attended a meeting held by Councilwoman Benson to evaluate the original proposed ordinance. Those in attendance included representatives from City staff, the State Department of Social Services, and operators of day care homes in the City. At the meeting, some persons in attendance questioned the legality of the original proposed ordinance. The Council should understand that the statutes pursuant to which the Council is acting in regulating large family day care homes are not entirely precise in their wording, thereby allowing for varying legal interpretations. While reasonable minds can differ, the Council should know that the City Attorney's office believes the original proposed ordinance is both legally defensible and consistent with applicable state law. In fact, several other cities in California (including E1 Cerrito, Santa Rosa, and San Bruno) have adopted day care ordinances containing regulations that are similar if not identical to those contained in the original proposed ordinance. The revised ordinance is also legally defensible and consistent with applicable state law. Thus, in evaluating the proposed revisions, we advise that the Council concern itself only with determining which proposed regulations are reasonable and appropriate as a matter of policy. cc: Bruce Altman, City Manager Ramon Diaz, Planning Dir./Asst. City Manager Dave Erwin, City Attorney W51527 ORDINANCE NO. 742 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS _ 25.04.2401 25.14.020, 25.16.020, 25.18.020, 25.20.020, 25.22.020, AND 25.24.020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25.04.307, 25.14.0351 25.15.023, 25.15.025, 25.16.0351 25.18.0351 25.20.035, 25.22.035, 25.24.027, AND 25.72.015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. WHEREAS, state law distinguishes between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities. WHEREAS, "family day on homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider's own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3.6 of Division 2 of the California Health i safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes"; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of .1.0 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and KU43124 = _ JCl�ll ISI • D_ O-.7•t U•JJeiL .LtiJ . L11..J1.0 7V\1L1.L..1\ .. y u. acne. . ORDINANCE No. 742 WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the City _ and also authorizes cities to establish reasonable standards, restrictions, and requirements for conceration of on lrrgei family day cars homes concerning space parking, and noise control; and WHEREAS, the Pals Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines •day nursery' as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and vHEREAS, the City Council recognizes the growing need for child day care facilities within the City and the preference of some parents for family day care homes; and WHEREAS, -the city Council also recognizes the adverse impacts that such facilities can have on the Peace and tranquility of residential neighborhoods if not properly regulated in 's manner consistent with state law. NOW, THEREFDRE, the City Council of the City of Palm Desert, California, DOES ORDAIN as follows: Section ?. That Section 25,04.240 of the Municipal Code is amended to read as fcilcws: "25.04.240 Day Nursery. "Day nursery" (including preschool and nursery schools) has means any group of buildings, building or portion thereof, other than a family day cars hams, used primarily for the daytime care of children at any location other than their normal lace of residence. MOM No Section 2. That section 25.04.307 is hereby added to the municipal code and will read as follows: _ "25.04.207 Family day ears hems. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider's own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: =43124 -2- ORDINANCE NO. 742 (a) "Large family day cars home" which means a home which provides. family day care to 7 to 12 children per- ay, inclusive, including children under the age of 10 years who reside at the hoe, as defined in state regulations. _ (b) "Small family day Cara home" which means a home which provides family day care to six or fewer children Per day, including children under the age of 10 years who reside at the hoe, as defined in state regulations. co definitions 3.4 shall be Californiamanner consistent with Diiion of the Health i Safety Code and any applicable ,case law." Section 3. That Section 25.14.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care hoes.° Section 4. That section 25.14.035 is hereby added to the Municipal Code and will read as follows: "25.14.035 Large family day oars homes. Large family day care hoes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 5. That Section 25.15.023 is hereby added to the Municipal Code as follows: "25.15.023 Principal uses and structures pssaitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes-0 section 6. That Section 25.15.025 is hereby added to the Municipal Code to read as follows: 025.13*025 Large family day care homes. Large family day care hoes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 7, That Section 25.16.020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: "H. Small family day care homes-0 ORDINANCE NO. 742 Section 8. That Section 25.16.035 is hereby added to the Municipal Code and will read as follows: "2S.it.03S Large family day care house. _ Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 9, That Section 25.18.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes." Section 10, That Section 25.18.035 is hereby added to the Municipal Code and will read as follows: "2S.18.035 Large family day care house. permit Large family day core rsuant to Charter es 72A o are e trmit d subject to a use Section 11, That Section 25.20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: "G. Small family day care homes." Section 12, That Section 25.20.035 is hereby added to the Municipal Code and will read as follows: "25.20.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 13, That Section 25.22.020 of the Municipal Code is hereby amended to read as follows: 023.22.020 Permitted uses. The following uses shall be permitted in any R-1-M Single- Family/Mobile Some Residential District: A. Small family day care homes.° Section 14, That Section 25.22.035 is hereby added to the Municipal Code and will read as follows: "2S.22.03S Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." NSR43124 -4 OpMINMCE No. 742 Section 15, That Section 25.24:020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows: "D. Small family day care homes-0 - Section 16_._ That Section 25.24.027 is hereby added to the Municipal Code and will read as follows: "25.24.027 Large family day oar* house. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code.w Section 17. That Section 25.72.015 is hereby added to the Municipal Code and will read as follows: 025.71.015 Large family day oars homes. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by chapter 25.72A of this Code." Section 18, That Chapter 25.72A is hereby added to the Municipal Code and will read as follows: "Chapter 45.72A LARGE FAMILY DAY caRE R ME USX VZRXxTs sections: 25.721.010 Purpose. 25.721.020 application process. 25.721.030 application fee. 25.72A.040 Notice to property owners. 25.72A.050 Decision by the zoning administrator. 25.721.060 Appeal of decision. 25.721.070 Ezpiration of permit. 25.72a.os0 Review of permit; suspension or revocation. 25.72A.090 pre-azisting family day care homes. 25.72A.100 violation; public nuisance and misdemeanor. 25.72A.010 purpose. The City Council adopts this Chapter pursuant to California Health i Safety Code Section 1597.46. Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and .concentration, traffic control, parking, and noise control relating to large family day care homes. Its purpose is also to establish an economical process consistent with state law for_obtaining a _ ORDINANCE NO. 742 use permit to operate a large family day care home in conformance with such s standards, license,restrictions, and or requirements. Its purpose i otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services. 2S.72]L.020 application proosss. Applications for use permits to operate a large family day care home shall be made to the City's zoning administrator or his or her designer who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: the (a) applicant, including the applicant's own cildren to be cared f or hildren under 10 years of age; (b) number of employees; state license number. 0. �­M In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan (Sh x 11") showing: location and dimensions of existin residence and other structures, including Ming; play structures and equipment, ing; distance to property line; parking areas and number of spaces both on-site and off-site; access to and exits from the home; floors) on which day care is to be provided; traffic circulation; location of fire extinguishers and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. N943124 -6 JLJ.1 \ll ' U Ji V'JJ[LY W.J . •w.. 1•J. 1V• �W.n1\ VJ • — —. JCiC. + — ORDZNMC.E NO. 742 25.721.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the Cityls cost of administering the review and permit process. 25.72A.040 Notice to property owners, Not less than 10 days prior to the date an which the decision will be made an the application, the zoning administrator or hie or her designee shall give notice of the proposed use by mil or delivery to all owners shown on the last equalized assessment roll as Owning real property within a 300 foot radius of the exterior boundaries of the proposed large family day care, home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision on the application unions requested by the recipient. 25.721.050 Decision by the zoning administrator. After propernotice has been given to affected property owners pursuant to Section 25.72A.0300 the zoning administrator or his or bar designee shall render a decision on the application. unless requested by the applicant or other affected person, no hearing shall be held on the application before a decision is mads. The application shall be approved if all of the following standards and requirements are met: (a) Brace and concentration, properties proposed for use as large family day care hoses shall be located no Closer than three hundred (300) feat in all directions from another large family day care home In addition, no rasidential property in the City shall be bounded an more than one i side by a large--family day care hone. (b) Traffic control. The traffic circulation plan shall be, designed to diminish traffic safety Problems. Residences located on arterial streets (as shown on the general plan circulation map) must provide a drop-off/piak-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges =0124 -7- ORDINANCE N0. 742 to reduce congestion in neighborhoods already identified as having traffic congestion problems. (c) parking. All homes used for large family day care _ facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on-street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. (d) Noise control. Operation of the facility shall comply with all provisions of Chapter 9.24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices end - -- Owbakde -'--- '------, location of play areas, and placement of outdoor play equipment. sm!! Operate only between the hours--of 6eqq a or Sianage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. Contact person. The current name(s) and telephone number(s) of the applicant, and all other operators if different from the applicant, of the family day care home shall be on file with the department of community development at all times. State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. Anilding and Fire Code Comvliance. Consistent with Section 1597.46 of the Health Q Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single-family residences, and with such additional standards as the State_ Fire Marshal from time to time _ W4ztu -g- ORDINANCE N0. 742 adopt pursuant to Section 1597.46(d) of the Health i Safety Code to promote the fire and life safety of children in family day care homes. ($gg Title 22 of the California Code _ of Regulations.) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoiM build, and fire code rovisions. Smoking Restricted. Consistent with Section 1596.795 of the Health Q Safety Code, smoking of tobacco and other substances -- whether in pipe, cigar, or cigarette form -- shall not be allowed in the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. single-family zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. No use permit shall bewiffierjej of sau un esa e rea prof Y proposed us as a large family day care home. w,AMIbB =_—=:�:��h has---. 25.72A.060 Ippeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the city's costa, if any, of processing and conducting the. appeal. The amount of such costa shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City will process the request for an appeal. If at the and of the appeal, the City's actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City's costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. NU43124 -9- ORDINANCE N0. 742 25.721.070 Expiration of permit. If a large family day cars home possessing a use permit ceases to operate for a iod greater than kconSOCUtive days thenuse con ii er n e 25.721.080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the t chards 05o ll requirements of this Chapters especially Section 2 the zoning administrator may require atth public Permit thearinq o be reviewed by the Planning commission noticed public hearing to review the use permit is mandatory when the City receives six (6) substantiated complaints alleging violations of this Chapter. If the planning commission determine all o a P he standards has failed in a material way to comply and requirements of this Chapter, en e p arming commission may soap or revoke e p t or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter but consistent with state law, based on findings derived from testimony and evidence presented at the public hearing. 25.72s.090 Pre-existing family day cars homes. Any family day .care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such homes may continue to operate during the City°s processing of. their application(s) . ' L b ge neJ _ a 1 J _LJ_- J 41 JLL the /.JL shall: time tkl-� evaluating—speeing a__J,.. ---- hma Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25.72A.100. 25.72A.100 violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in the City without a valid use permit as -10- Msac3tzc ORDINANCE NO. 742 required by this Chapter is both a misdemeanor and a public nuisance. Tfte nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8.20 of this Code and any other _ applicable provision of state or local law. Section 19. In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City council declares that said provision is le and that the Council would have adopted the ordinance without�inclusion f that provision. cpctio 20. The City Clerk shall certify to the passage and adoption ofn this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED this day of r 1994, s by the City Council of the City of Palm Deert, Cal fora a by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: S. WY WILSON, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California PRELIlVE NARY MINUTES CITY COUNCIL MEETING MAY 129 1994 REGULAR PALM DESERT s s s s s s s t s s s s s s s s s s s s s s s s s a a a a a a a a a a a a a C. PRESENTATION OF CERTIFICATES OF APPRECIATION TO STUDENTS PARTICIPATING IN STUD&%4T GOVERNMENT DAY. No action was taken on this item because of the cancellation of Student Government Day. D. PRESENTATION BY MR. DENNIS DEVLIN, RELAY DIRECTOR OF THE 1ST ANNUAL PALM DESERT HIGH SCHOOL 24-HOUR RELAY CHALLENGE. Mr. Devlin showed a slide presentation of the 1st Annual Palm Desert High School 24-Hour Relay Challenge held on March 26th. He thanked the Council for its support and stated he was looking forward to the 2nd Annual event. XVIII. PUBLIC HEARINGS A. REQUEST FOR APPROVAL OF A ZONING ORDINANCE AMENDMENT ESTABLISHING "LARGE FAMILY DAY CARE" PERMITS AND SETTING A PERMIT FEE (Continued from the Meetings of March 10, April 14, and April 28, 1994). Mr. Diaz reviewed the staff report, noting the revised ordinance with changes by the City Attorney as a result of meetings held with child care representatives, staff, and the City Attorney. He added that both the original ordinance and the revised ordinance met State law. Upon question by Mayor Pro-Tem Crites, Mr. Diaz responded that he believed the revised ordinance had been given to the members of the committee. He added that the revisions were what the committee looked at. He noted that staff recommended continuance of this matter because Councilmember Benson is not present at this meeting, and she had been very instrumental up to this point. Mayor Pro-Tem Crites noted that the hearing was still open and invited testimony in FAVOR of or OPPOSED to this request. The following spoke in opposition because they had not received a copy of the revised ordinance, they were opposed to the regulations relative to traffic, parking of only four cars in front of the houses at a time, time limits(7:00 a.m. to 5:30 p.m. Monday through Friday), pla=ment of playground equipment in the yards, and limitations as far as where children may play in the yards. MS. SUSAN REED, 74-388 Myrsine Avenue, Palm Desert, stated that she was a member of the committee and had not received a copy of the revised ordinance. She noted she had a letter faxed to her today from legislative counsel in Sacramento. At the request of the Mayor, she submitted the letter to the City Attorney. MS. LAVONNE EDMONDSON, 74-672 Gary Avenue, Palm Desert, family day care provider licensed for 12. She said she felt Council should be more concerned with the traffic 17 PREME NARY MINUTES MAY IZ, 1994 REGULAR PALM DESERT CITY COUNCIL MEETING s s s s s s s s s s s s s s s s s s s s a s a a a a a a a a a a a a a a a a on Portola, Deep Canyon, Fred Waring, and Rutledge from 7:45 a.m. to 8:30 a.m. than worrying about four cars being parked in front of homes while parents are dropping off their children. MS. CANDICE BARNHOORN, 45-796 Sago Palm Lane, Palm Desert, President of CVFCCA. MS. YOLANDA SANCHEZ, 41-260 Dixon Drive, Hemet, President of Mid-County Child Care Association. MS. MARIANA ROSEN, 42-176 Ferguson Drive, Vice President of Mid-County Child Care Association, expressed concern that so many regulations would mean some of the parents would not be able to work and would, therefore, have to be on welfare. MS.LANA THOMAS RADFORD, 1129 E. Oakland Avenue, Secretary of the Mid-County Child Care Association. MS. DEBORAH A. CRABTREE, 4070 Linwood Place, Riverside, Riverside County Office of Education, opposed the ordinance as written. She said she was also part of the committee on the rewrites and had not received a copy of the revised ordinance. She added that the ordinance was not within State guidelines. MR. BUCK PRUETT, 76-800 Lancelot Court, Palm Desert. MS. KATHERINE NEMERGER, 37-530 Los Alamos Road, Murrieta. MS. CARRIE PARDUHN, 52-080 Avenida Alvarado, La Quinta, Vice President of the Coachella Valley Child Care Association. MS. JUDY SADLER, 73-780 Krug Avenue, Palm Desert, spoke as a licensed family day care provider and a member of the committee. She said day care providers were fully regulated by the State, and she felt the ordinance was unconstitutional and unenforceable. MS. ANNE SIMMON-YOUNG, 1092 Main Street, Fallbrook, spoke as a sponsor for day care providers. MS. SHARLENE GRIFFIN, 11929 Albion Way, Moreno Valley, member of the Moreno Valley Child Care Association. MS. THERESA EVOLA, 24479 Jonna Lane, Moreno Valley. MS. ENZA POSTLETHWAIT, 19350 Totem Court, Riverside. MS. LOLA WURTZ, 24845 Carolyn, Moreno Valley. MS. CALESTA STOKES DANIELS, 23793 Swan Street, Moreno Valley, member of the Moreno Valley Child Care Association. 18 PRELIMINARY M NUTES MAY 12, 1994 REGULAR PALM DESERT CITY COUNCIL MEETING s s a s s s s s s s s s * * * * * s * * * * a s s a a a o a a a a a a a a a With no further testimony offered, Mayor Pro-Tem Crites suggested that this matter be continued for a longer period of time than two weeks ui order to allow everyone sufficient time to review the revised ordinance and comment on the changes. Councilman Snyder moved to continue this matter to the meeting of June 23, 1994. Motion was seconded by Kelly and carried by a 3-0-2 vote, with Councilmember Benson and Mayor Wilson ABSENT. B. gEo= FOR TERMINATION OF A DEVELOPMENT AGREEMENT ASSOCIATED WITH A PROPOSED 22-UNrr SENIOR APARTMENT PROJECT ON .936 ACRES ON THE EAST SIDE OF SAN RAFAEL SOUTH OF CATALINA WAY, Case No. CUP 90-18 (John and Nancy Weber, Applicants). Mr. Diaz noted the report in the packets and offered to answer any questions. Mayor Pro-Tem Crites declared the public hearing g= and invited testimony in FAVOR of or OPPOSED to this request. MR. JIM SATTLEY, 74-050 San Marino Circle, spoke on behalf of the applicants and in favor of this request. With no further testimony offered, Mayor Pro-Tem Crites declared the public hearing closed. Councilman Kelly moved to waive further reading and pass to second reading Ordinance No. 742 rescinding Ordinance No. 623 terminating Senior Housing Development Agreement between the City and John and Nancy Weber. Motion was seconded by Snyder and carried by a 3-0-2 vote, with Councilmember Benson and Mayor Wilson ABSENT. XIX. ORAL COMMUNICATIONS - D None 19 M E M O R A N D U M CITY OF PALM DESERT RECEIVED MAY 2 4 1994 CDMMDRIfY DEVEEDPMERT DEPARTMENT C'N Of PALM DESERT To: Those Listed From: Jean Benson Councilmember Date: May 18, 1994 Re: PALM DESERT CHILD CARE ORDINANCE A meeting to discuss the City of Palm Desert' s Child Care Ordinance has been scheduled to be held on June 8, 1994, at 1:30 p.m. in the North Wing Conference Room at Palm Desert City Hall, 73-510 Fred Waring Drive, Palm Desert, California. Enclosed you will find a copy of the City of Palm Desert's new Child Care Ordinance, which includes the strike overs and changes agreed upon at the last meeting, which will be discussed at the June 8th meeting. If you have any questions, please do not hesitate to contact my office. I would appreciate your confirming your attendance at this important meeting with my secretary, Pat Scully at 346-0611. List: Dave Erwin Ray Diaz Paul Van Veen Doris Mechanick Debbie Crabtree Susan Reed Judy Sadler N M. BENSON NCILMEMBER LAW OFFICES OF BEST, BEST 6 KRL LR / May 5, 1994 ?�Q88ZID3m TO: Mayor and City Council Members, City of Palm Desert FROM: Marshall S. Rudolph, Deputy City AttornsY.INSVL� RE: Day Care Ordinance -- Revised Attached hereto is a revised version of the day care ordinance originally considered by the planning commission and city council. Deletions are indicated by strikeouts (example) and insertions are indicated by redlining ( ) . These revisions represent the consensus opinion or Mose who attended a meeting held by Councilwoman Benson to evaluate the original proposed ordinance. Those in attendance included representatives from City staff, the State Department of Social Services, and operators of day care homes in the City. At the meeting, some persons in attendance questioned the legality of the original proposed ordinance. The Council should understand that the statutes pursuant to which the Council is acting in regulating large family day care homes are not entirely precise in their wording, thereby allowing for varying legal interpretations. While reasonable minds can differ, the Council should know that the City Attorney's office believes the original proposed ordinance is both legally defensible and consistent with applicable state law. In fact, several other cities in California (including E1 Cerrito, Santa Rosa, and San Bruno) have adopted day care ordinances containing regulations that are similar if not identical to those contained in the original proposed ordinance. The revised ordinance is also legally defensible and consistent with applicable state law. Thus, in evaluating the proposed revisions, we advise that the Council concern itself only with determining which proposed regulations are reasonable and appropriate as a matter of policy. cc: Bruce Altman, City Manager Ramon Diaz, Planning Dir./Asst. City Manager Dave Erwin, City Attorney Assn r ORDINANCE NO. 742 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS _ 25.04.240, 25.14.020, 25.16.020, 25.18.020, 25.20.020, 25.22.020, AND 25.24.020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25.04.307, 25.14.035, 25.15.023, 25.15.025, 25.16.035, 25.18.0351 25.20.035, 25.22.035, 25.24.027, AND 25.72.015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. WHEREAS, state law distinguishes between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities. WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider's own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3.6 of Division 2 of the California Health i safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes"; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and M 43124 �y : J— O—.7•! O•J.7:•1L .fYJ1, OCJI..Y MILu:1�- . ') ui , a'w VcZt� ORDINANCE No. 742 wBEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the City _ and also authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care hones, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Kunieipal Code defines 'day nursery' as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the City Council recognizes the growing need for child day care facilities within the City and the preference of some parents for family day care homes; and WHEREAS, the City Council also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the City Council of the City of Palm Desert, California, DOES ORDAIN as follows: Section 1. That Section 25.04.240 of the municipal Code is amended to read as follows: "25.04.240 Day Nursery. "Day nursery" (including preschool and nursery schools) has means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their norstal lace of residence. Section 2. That section 25.04.307 is hereby added to the Kunicipal Code and will read as follows: 025.04.307 Family day ogre home. "Family day care hosts" means a home which regularly provides care, protection, and supervision of 12 or favor children, in the provider's own hosts, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: NUO124 -2- ORDINANCE NO. 742 (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per-&ag, inclusive, including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations. The foregoing definitions shall be construed in a manner consistent with Chapter 3.4 of Division 2 of the California Health i Safety Code and any applicable case law." Section 3. That Section 25.14.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes." Section 4. That Section 25.14.035 is hereby added to the Municipal Code and will read as follows: "25.14.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 5. That Section 25.15.023 is hereby added to the Municipal Code as follows: "25.iS.023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes." Section 6. That Section 25.15.025 is hereby added to the Municipal Code to read as follows: "25.15.025 Large family day cars homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 7. That Section 25.16.020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: "H. Small family day care homes." NU43124 -3- ORDINANCE NO. 742 Section 8. That Section 25.16.035 is hereby added to the Municipal Code and will read as follows: 045.16.035 Large family day oars homes. _ Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 9. That Section 25.18.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes." Section 10, That Section 25.18.035 is hereby added to the Municipal Code and will read as follows: "25.16.033 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section li. That Section 25.20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: "G. Small family day care homes." Section 12, That Section 25.20.035 is hereby added to the Municipal Code and will read as follows: "25.20.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 13. That Section 25.22.020 of the Municipal Code is hereby amended to read as follows: "25.22.020 Permitted uses. The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes." Section 14, That Section 25.22.035 is hereby added to the Municipal Code and will read as follows: "25.22.033 Large family day oars homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." X043124 -4- ORDINANCE NO. 742 Section 15, That Section 25.244020 of the Municipal Code is , hereby amended by the addition of subsection "D" as follows: "D. Small family day care homes." _ Section 16. That Section 25.24.027 is hereby added to the Municipal Code and will read as follows: "25.24.027 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 17, That Section 25.72.015 is hereby added to the Municipal Code and will read as follows: "25.72.015 Large family day care homes. The application procedures and review 'criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this Code." Section 18, That Chapter 25.72A is hereby added to the Municipal Code and will read as follows: "Chapter 25.72A LARGE FAMILY DAY CARE ROME USE PERMITS sections: 25.72A.010 Purpose. 2S.72A.020 application process. 25.72A.030 application fee. 23.72A.040 notice to property owners. 25.72A.050 Decision by the coning administrator. 25.72A.060 Appeal of decision. 25.72A.070 Expiration of permit. 25.72A.080 Review of permit; suspension or revocation. 2S.72A.090 Pre-existing family day care homes. 25.72A.100 violation; public nuisance and misdemeanor. 25.72A.010 Purpose. The City Council adopts this Chapter pursuant to California Health i Safety Code Section 1597.46. Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentration, traffic control, parking, and noise control relating to large family day care homes. Its purpose is also to establish an economical process consistent with state law for=Obtaining a _ PM43124 -5- ORDINANCE NO. 742 use permit to operate a large family day care home in conformance with such standards, restrictions, and requirements. Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services. 25.721.020 Application process. Applications for use permits to operate a large family day care home shall be made to the City's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant's own children under 10 years of age; (b) number of employees; (a) hews of operation and eutdeer playtime? 44+0 state license number. ir In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan (8k x 11") showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, an enc ng; distance to property line; parking areas and number of spaces both on-site and off-site; access to and exits from the home; floors) on which day care is to be provided; traffic circulation; location of fire extinguishers and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. N943124 -6- J1J\1 IJI ' V_ U-J9 V'VJNU I\ r.A • .. _• rLL luu LVlJ\ LI1� Yr 1. 0 YCdC ♦rF W 4. ORDINANCE NO. 742 23.7sA.o30 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the City's cost of administering the review and permit process. 25.72A.040 Notice to property owners. Not less than 10 days prier to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll an owning real property within a 300 foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision on the application unless requested by the recipient. 25.72A.050 Decision by the zoning administrator. After proper notice has been given to affected property owners pursuant to Section 25.72A.0408 the zoning administrator or his or her designee shall render a decision on the application. unless requested by the applicant or other affected person, no hearing shall be hold on the application before a decision is made. The application shall be approved if all of the following standards and requirements are not: (a) mace and concentration. properties proposed for use as large family day care hones shall be located no closer than three hundred (300) feet in all directions from another large family day care home than ad In addition, no residential property in the City shall be bounded an sore than one i side koyjkjarga family day cars bona. (b) Traffie control. The traffic circulation plan shall be designed to diminish traffic safety problems. Residences located on arterial streets (as shown on the general p an a raulation map) must provide a drop-off/pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges Np4]f2t -7- ORDINANCE NO. 742 to reduce congestion in neighborhoods already identified as having traffic congestion problems. (c) Parkin. All homes used for large family day care _ facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on-street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. (d) Noise control. Operation of the facility shall comply with all provisions of Chapter 9.24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices , location of play areas, and placement of outdoor play equipment. (e) Hours 9r_6MHfflt40jh Lwye family day ears homes shall: operate en1y between the hours of 609 avam- Sianage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. Contact person. The current name(s) and telephone number(s) of the applicant, and all other operators if different from the applicant, of the family day care home shall be on file with the department of community development at all times. State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. Building and Fire Code Compliance. Consistent with Section 1597.46 of the Health i Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single-family residences, and with such additional standards -. . . __. as the State_ Fire Marshal from time to time NSR43124 -g- ORDINANCE NO. 742 adopt pursuant to Section 1597.46(d) of the Health i Safety Code to promote the fire and life safety of children in family day care homes. (&M Title 22 of the California Code of Regulations.) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing buildin and fire code rovisions. Smoking Restricted. Consistent with Section 1596.795 of the Health i Safety Code, smoking of tobacco and other substances -- whether in pipe, cigar, or cigarette form -- shall not be allowed in the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. Single-family zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. +040 No use permit shall be ssue un essthe WO real" property propose o use as a arga amily day care home. - 25.72A.060 I►ppeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City's costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City will process the request for an appeal. If at the end of the appeal, the City's actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City's costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. MBR43124 -y ORDINANCE N0. 742 ti 25.72A.070 aspiration of permit. If a large family day care home possessing a use permit ceases to operate fora period greater than one hmdred _ consecutive days then i s use permit snall Be consMe—re-3—nuil and void. 25.721.080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25.72A.050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6) substantiated complaints alleging violations of this Chapter. if the planning commission determines that the holder has failed in a material way to comply with all of the standards and r iremento of this Chapter, en e p arming commission may suspendor revoke or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter but consistent with state law, based on findings derived from testimony and evidence presented at the public hearing. 25.72A.090 Pre-existing family day care homes. Any family day .care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such homes may continue to operate during the City's processing of. their application(s) . All other things bekny mpel, the date-emd Benee"twatio" of fa�aily day save homes Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25.72A.100. 25.721.100 violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in the City without a valid use permit as _ K=43124 -10- ORDINANCE NO. 742 required by this Chapter. is " both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8.20 of this Code and any other _ applicable provision of state or local law. k Section 19. In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED this day of , 1994, by the City Council of the City of Palm Desert, Cal fore a by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: S. ROY WILSON, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California NO1,3124 -il- PRELIM[I NARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING THURSDAY, MAY 12, 1994 s s s s s s s s s s s s s s s s s s s s s s s a s s a s a a a a a a a a a I. CALL TO ORDER IL PLEDGE OF ALLEGIANCE - Councilman Buford A. Crites M. INVOCATION - Councilman Walter H. Snyder IV. ROLL CALL res • Excused Absence: Mayor Pro-Tempore Buford A. Crites Councilmember Jean M. Benson Councilman Richard S. Kelly Councilman Walter H. Snyder Mayor S. Roy Wilson Also Present: Bruce A. Altman, City Manager David J. Erwin, City Attorney Mary P. Frazier, Deputy City Clerk Carlos L. Ortega, ACM/Director of Redevelopment Agency Ramon A. Diaz, ACM/Director of Community Development Richard J. Folkers, ACM/Director of Public Works Paul Shillcock, ACM/Director of Economic Development Paul Gibson, Director of Finance Joe Gaugush, Senior Engineer Bob Smith, Acting Director of Code Compliance Pat Conlon, Director of Building and Safety Catherine Sass, Community Arts Manager Ken Weller, Emergency Services Director John Wohlmuth, Environmental Conservation Manager V. CONSENT CALENDAR A. MINUTES of the Regular City Council Meeting of April 28, 1994. Rec: Approve as presented. PREMMARY NIINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 B. CLAIMS AND DEMANDS AGAINST THE CITY TREASURY - Warrant Nos. 46, 47, 48, and 49. Rec: Approve as presented. C. RESOLUTION NO. 94-52 - A Resolution of the City Council of the City of Palm Desert, California, Setting Forth its Findings and Authorizing the Destruction of Files from the Department of Building and Safety that have been Microfilmed (March 1994). Rec: Waive further reading and adopt. D. LETTER OF RESIGNATION from Ms. Diane S. Cox from the Planning Commission. Rec: Receive with sincere regret. E. REQUEST FOR APPROVAL of Five-Year Measure "A" Local Funds Program. Rec: By Minute Motion, approve the five-year Measure "A" Local Funds Program for the Riverside County Transportation Commission. F. REQUEST FOR APPROVAL of Design Change Order No. 2 to the Cook Street Extension Contract (No. C0742 , Project No. 660-94. Rec: By Minute Motion, approve Design Change Order No. 2 to the subject contract in the amount of $11,700.00 for the design modification of the extension of Cook Street at Frank Sinatra Drive (funds available from the Capital Project Reserve Fund, Account No. 400-4356-433-4001). G. REQUEST FOR AUTHORIZATION to Transfer Funds for Project Management Services (Contract No. C04403). Rec: By Minute Motion, authorize the transfer of $10,000 from Public Works Professional Services Account 110-4300-413-3010 to Account No. 110-4300-413- 3090 for the continuation of Contract No. C04403 through June 30, 1994. H. REQUEST FOR AUTHORIZATION to Advertise and Call for Bids for Stolinization at the Ironwood Park and Various Locations at the Civic Center Park (Contract No. C086501. Rec: By Minute Motion, authorize the City Clerk to advertise and call for bids for the subject project. 2 PRELIMINARY NENUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 s s s s s s s s s s s s s s s s s s s s s s s s s s a s a s a s a a a a s s I. REQUEST FOR AUTHORIZATION to Advertise and Call for Bids for the Street Maintenance and Repair Program (Contract No. C086601. Rec: By Minute Motion, authorize the City Clerk to advertise and call for bids for the Street Maintenance and Repair Program. J. REQUEST FOR AUTHORIZATION to Advertise and Call for Bids for Curb, Gutter, and Cross Gutter Repairs (Contract No. C08670 . Rec: By Minute Motion, authorize the City Clerk to advertise and call for bids for the subject project. K. REQUEST FOR AUTHORIZATION to Advertise and Call for Bids for the 1994 Slurry Seal Program (Contract No. C086801. Rec: By Minute Motion, authorize the City Clerk to advertise and call for bids for the subject program. L. REOUEST FOR APPROVAL of Administrative Services Agreement Relative to County Service Area 152 (NPDES), Contract No. C08690. Rec: By Minute Motion, authorize the Mayor and City Manager to execute an Administrative Services Agreement between the City of Palm Desert and the County of Riverside relating to CSA 152 - NPDES. M. REOUEST FOR APPROVAL of Painters Path Quitclaim Deed. Rec: By Minute Motion, authorize the Mayor to execute a Quitclaim Deed for the transfer of the City's interest in Painters Path. N. RESOLUTION NO. 94-53 - A Resolution of the City Council of the City of Palm Desert, California, Opposing Assembly Bill 122 Which Would Amend the Mobilehome Residency Law to Prohibit Cities and Counties from Adopting or Enforcing Rent Controls Within Mobilehome Parks. Rec: Waive further reading and adopt. Mr. Altman asked that Item E be held for separate discussion under Section IX, Consent Items Held Over, of the Agenda. Upon motion by Crites, second by Kelly, the Consent Calendar, with the exception of Item E, was approved as presented by unanimous vote of the City Council. 3 PRELINIINARY NIINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 129 1994 VI. ORAL COMMUNICATIONS - A None VIL RESOLUTIONS None VIIL ORDINANCES For Introduction: None For Adoption: A. ORDINANCE NO. 744 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING CHAPTER 10.64 OF THE PALM DESERT MUNICIPAL CODE RELATING TO PARADE PERMITS. Mr. Altman noted that no changes had been made since introduction of this ordinance, and he recommended adoption. Councilman Snyder moved to waive further reading and adopt Ordinance No. 744. Motion was seconded by Kelly and carried by unanimous vote. B. ORDINANCE NO. 745 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,CALIFORNIA, AMENDING SECTION 10.36.010 OF THE MUNICIPAL CODE RELATIVE TO ESTABLISHING SPEED ZONES (Ocotillo Drive between El Paseo and Grapevine Street). Mr. Altman noted that no changes had been made since introduction of this ordinance, and he recommended adoption. Councilman Crites moved to waive further reading and adopt Ordinance No. 74 . Motion was seconded by Kelly and carried by unanimous vote. 4 PRELIMINARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 C. ORDINANCE NO. 746 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA,AMENDING SECTION 10.36.010 OF THE MUNICIPAL CODE RELATIVE TO ESTABLISHING SPEED ZONES (Portola Avenue between Fred Waring Drive and Magnesia Falls Drive; Portola Avenue between Magnesia Falls Drive and Country Club Drive). Mr. Altman noted that no changes had been made since introduction of this ordinance, and he recommended adoption. Councilman Kelly moved to waive further reading and adopt Ordinance No. 146. Motion was seconded by Snyder and carried by unanimous vote. D. ORDINANCE NO. 747 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA,AMENDING SECTION 10.36.010 OF THE MUNICIPAL CODE RELATIVE TO ESTABLISHING SPEED ZONES (Monterey Avenue between Fred Waring Drive and Park View Drive; Monterey Avenue between Park View Drive and Country Club Drive). Mr. Altman noted that no changes had been made since introduction of this ordinance, and he recommended adoption. Councilman Snyder moved to waive further reading and adopt Ordinance No. 747. Motion was seconded by Kelly and carried by unanimous vote. E. ORDINANCE NO. 748 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTION 9.20.040 OF THE PALM DESERT MUNICIPAL CODE AND ADDING SUBPARAGRAPH(C) OF CHAPTER 9.20 OF TITLE 9 OF THE MUNICIPAL CODE RELATING TO HUMAN WASTE. Mr. Altman noted that no changes had been made since introduction of this ordinance, and he recommended adoption. Councilman Kelly moved to waive further reading and adopt Ordinance No. 748. Motion was seconded by Snyder and carried by unanimous vote. IX. CONSENT ITEMS HELD OVER E. REQUEST FOR APPROVAL of Five-Year Measure "A" Local Funds Program. Rec: By Minute Motion, approve the five-year Measure "A" Local Funds Program for the Riverside County Transportation Commission. Mr. Folkers noted the new Page 1 of the five-year program and stated that funding for the all-weather bridge at Monterey Avenue and Whitewater was at one time intended to be 5 PRELI IINARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 through the Redevelopment Agency; however, it will actually be done through Measure "A" funding, and the project had been moved up on the list. He said Items 1 and 2 of the report in the packet would be shifted to the next year. The projects to be funded for Fiscal Year 1994/95 would be the traffic signal at Gerald Ford Drive and Monterey Avenue, the all- weather bridge at Monterey Avenue at Whitewater Flood Control Channel, and the traffic signal and intersection improvements at Country Club Drive and Monterey Avenue. Councilman Kelly moved to, by Minute Motion, approve the five-year Measure "A" Local Funds Program for the Riverside County Transportation Commission, as amended by Mr. Folkers. Motion was seconded by Snyder and carried by unanimous vote. X. NEW BUSINESS A. PRESENTATION BY MS. DONNA K. McCUNE, BRANCH MANAGER OF THE PALM DESERT LIBRARY, RELATIVE TO CHANGES, ADDITIONS, AND UPGRADES INITIATED IN THE PAST YEAR AT THE PALM DESERT LIBRARY. Mrs. Ella Manor, representative to the Library Advisory Board, introduced Ms. Donna McCune, Branch Manager of the Palm Desert Library. Ms. McCune reviewed changes and upgrades initiated in the past year at the Palm Desert Library, including acquisition of a "Magazine Collection" microfilm reader/printer and attendant files from 1980 to present, addition of "Infotrac", a periodical directory, to the computerized public access catalogue, and upgrading of the reservation and renewal functions in the Library's automated circulation system. Councilman Kelly complimented Ms. McCune on the improvements to the Library. B. PRESENTATION BY THE PARENTS' CLUBS OF THE SCHOOLS OF PALM DESERT. MR. DAVID BURROUGHS, Teacher at Washington Charter School, addressed Council and introduced student Kristen Losher, a fifth grader at Washington School. Ms. Losher thanked the Council for its funding and support of the school. Washington School student Paul Friend presented each of the Councilmembers with a button which read "Palm Desert Loves Kids". Seven students from Abraham Lincoln School read the following speech to the Council: "We, the children of Abraham Lincoln Elementary School would like to thank you for your support. We are very proud to live in a city that cares so much about the education of its youth. Because of your generous grant, we have been able to enhance our cultural arts program with several music and theatrical performances throughout the year. We were also able to enrich our understanding of our environment by taking field trips to the California missions, San Diego Zoo, Sea World for whale watching, and the District Science Fair, just to name a few. Support also went towards our school Science Fair, the Annual Art Fair, our Reading Railroad read-a-thon, playground equipment, and the Talent Show. Portions of the 6 PRELEWNARY NUNUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 grant were also used for the completion of the beautiful new mural at the front of our school. Please accept this plaque as a token of our appreciation. Thank you very much, The students of Abraham Lincoln Elementary School, 1993-94." They then presented a plaque to the City Council. MS. KELLY CHAPPEL addressed Council as President of the Palm Desert Middle School Parent Teacher Association and introduced students Katie Blakely and Iona McMillin, who presented a collage to the Council in appreciation of the $8,000 funding which was planned to be used to purchase computers. MR. RAY HILL, Principal of Palm Desert High School, thanked the Council for its funding of $10,000 which was used to purchase computer equipment at the High School. He introduced student David Gudelunas, Editor-in-Chief of the Palm Desert Spirit newspaper. Mr. Gudelunas stated that they would be able, with the new computer, to do their own layout for the newspaper and save money by doing so. He presented the Councilmembers with T- shirts and copies of several issues of the Palm Desert Spirit. Mayor Wilson stated that as a long-time journalism professor, he was very impressed with the newspaper put out by the students. On behalf of the entire City Council, he thanked all of the individuals from the schools for their presentations. C. CONSIDERATION OF REQUEST BY D &F DEVELOPMENT FOR REIMBURSEMENT OF COSTS ASSOCIATED WITH CITY REQUESTED POST BUILDING PERMIT FRAMING CHANGES AND ONE FOOT PERIMETER WALL HEIGHT EXTENSION FOR A 23-UNIT ZERO LOT LINE SINGLE-FAMILY RESIDENTIAL PROJECT AT THE SOUTHWEST CORNER OF PORTOLA AVENUE AND SANTA ROSA WAY (Tract No. 27692). Mr. Diaz noted the report in the packets and offered to answer any questions. Councilman Kelly moved to, by Minute Motion, approve the request for reimbursement and appropriate $14,080 from the unobligated General Fund Reserves. Motion was seconded by Snyder and carried by unanimous vote. 7 PREL 41NARY DENUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 D. CONSIDERATION OF APPEAL OF AN ARCHITECTURAL REVIEW COMMISSION DECISION DENYING A REQUEST FOR SIGN APPROVAL OUTSIDE OF THE CENTER'S APPROVED SIGN PROGRAM, Case No. PP90-13 (DSL Service Company on Behalf of Payless ShoeSource, Appellant). Planner Steve Smith reviewed the staff report, .noting that Payless ShoeSource would be locating in Waring Plaza where Patrini currently is plus the vacant unit to the west formerly occupied by Zebra's Mane. He stated that the approved sign program for the center required reverse channel letter signs in the approved colors of two shades of blue, white, and burgundy. Tenants up to this point had all worked within this criteria. The appellant was requesting approval of internally illuminated channel letters, six new colors, and 84.75 square feet of sign area instead of the allowed 48 square feet. Since the Architectural Review Commission hearing of April 26, the appellant had indicated they would comply with the reverse channel letters and the allowable sign area but still requested approval of the additional colors. Staff's recommendation was that Council deny the appeal. Councilman Crites noted that Mr. Wendell Hindley had called him earlier to apologize for not being able to attend the meeting. A representative for Payless ShoeSource addressed Council and stated that they had reduced the sign size in order to comply with the code. He noted that there would actually be two stores, Payless ShoeSource and Payless Kids, thus the request for three signs. He said he felt they could live with the channel lettering but should be allowed to have the additional colors which are used for their stores throughout the country and are part of their identification. He added that yellow was the only major color change and that the other colors requested were only for one or two letters each. Councilman Crites stated that there is an adopted sign program for this center, and a number of other major chain stores in the center had identification issues and logo issues as well; they had met the requirements of the sign program and were successful. He said he would vote to uphold the recommendations of the Architectural Review Commission and staff. Councilman Kelly stated that the Council and staff had spent a lot of time on this center to make it something special. He said he felt it would be a mistake to change direction now. Councilman Snyder stated that it would be difficult for him to overrule a unanimous decision of the Architectural Review Commission. Councilman Crites moved to, by Minute Motion, deny the appeal for the reasons outlined in the staff report. Motion was seconded by Kelly and carried by unanimous vote. 8 PRELIMINARY AIINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 E. REQUEST FOR APPROVAL AND APPROPRIATION FOR THE PURCHASE OF THE RECOVERED STOLEN SCULPTURE "ONE ON ONE". Mr. Altman noted the memorandum in the packets from City Clerk Sheila Gilligan. Councilman Kelly stated he felt this was a great opportunity because when the sculpture is back on El Paseo, it will have a great story behind it. Councilman Kelly moved to, by Minute Motion, approve the request and appropriate $6,000.00 for settlement with Fireman's Fund Insurance Company, current owner of the sculpture. Councilman Snyder stated he felt credit should be given to the Sheriff's Department and the Crime Stoppers organization for tracking down this stolen sculpture and recovering it. Councilman Crites added that he also felt it was appropriate to thank City Clerk Sheila Gilligan and Community Arts Manager Catherine Sass for learning how to negotiate with insurance companies. Councilman Crites seconded the motion. The motion carried by unanimous vote. F. INFORMATIONAL ITEMS: 1. Colony CableVision of California Update. Mr. Ortega noted the report in the packets relative to cable complaints received for the period April 22 - May 2, 1994. 2. Drive-Thru at Lucky Shopping Center. Mr. Diaz noted the report in the packets and said he would be meeting tomorrow with the owner of the Center and representatives of Jack in the Box to discuss what applications must be processed through the City. He said if he was incorrect in what he wrote in his letter to the attorney for the center, Council may wish to process an amendment amortizing the existing drive-thru restaurant uses. He added that there were two drive-thru restaurant uses on the other side of Washington at the present time. Councilman Crites stated he had brought up this issue because after the annexation hearing someone who was in the audience had asked whether the City was going to do something about the proposed drive-thru restaurant. He said at that time he had felt comfortable advising that the City had never actively approved that facility because of issues about litter, etc. He said he had checked the next day, and this report was the result. He said he did not know if the City was too late to do something about it but that he would think that the past way in which the Council has 9 PRELUMINARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 looked at applications for this use should be good evidence to call an issue like that to the attention of staff and to perhaps seek clarification before blanket agreement. He said he did not want the perception out that our standards for the City change when it is something located out on Washington Street. Mayor Wilson stated that this was not the first time Council has given direction to staff that when annexations are being processed, the City will live with the various things that are in the permitting process. He said he felt that what staff had done here was consistent with direction given by Council in the past. Councilman Kelly asked where the process of approval was and whether this drive- thru restaurant had already been approved. Mr. Erwin responded that it was his understanding that this particular use was shown on the approved plot plan. He said they had not yet pulled a building permit; however, the current state of the law was basically that until such time as they have pulled a building permit, they legally do not have a vested right to move forward. Mr. Diaz stated that what staff would do, if Council concurred, was to determine that the drive-thru use is the land use issue, and the building design is a design issue. The building design would go through the Architectural Review Commission and could be conditioned to be screened and done in such a manner that in terms of visibility from Washington Street it would not appear to be a drive-thru. Councilman Crites added that he thought he had inquired at the time this area was discussed whether there would be uses in this center that would be in conflict with what the City would approve and, if so, the Council should know about it and talk about it. Nothing was ever discussed, and he assumed all along that there was nothing in there that would be a conflict. He said that in the future if a question is asked about whether there is anything that would raise a red flag, the Council should know about it. XI. CONTINUED BUSINESS A. CONSIDERATION OF CITY'S POSITION RELATIVE TO ASSEMBLY BILL 3255 (BORNSTEIN). Mayor Wilson stated this had been on the CVAG agenda and that he had to leave the meeting for a class prior to this item being discussed. Apparently it was continued for one month. Mr. Altman stated that it would be on the Technical Advisory Committee agenda tomorrow, and he asked for Council direction. Mr. Wohlmuth stated that the PM10 Technical Working Group of CVAG had recommended at the last meeting that AB3255 include having a permanent member from the Coachella 10 PRELIMINARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 129 1994 s s s s s s s s s s s s s s s s s s s s s s s s s s a a a s a a a a s s a a Valley on the South Coast Air Quality Management District. The Energy and Environment Committee today recommended that there be two representatives from the County, one from the eastern portion and one from the western portion. Councilman Kelly stated that because the bill had been sponsored by Assemblywoman Bornstein, he would like her reaction to this approach. Mayor Wilson stated that she had been given a two-hour briefing on the bill, and one of the issues brought up was the building industry's desire to have permanent representation from this area; at the Energy and Environment meeting today, they basically opposed the idea she had presented of trying to go into the Mojave District. They had researched it extensively and felt that the real issue was to get permanent representation from this area and felt it was far more important. Latest information was that her bill basically wants someone to fund the $40,000 study that most people feel is not necessary. He said the ARB had come out and said it did not want to pay that money, and they are the ones that are going to be targeted to pay the $40,000. Rather than take the risk of amending the bill that probably would be shot down by the ARB and other entities because no one wanted to pay for it, it would be better to focus her bill so it becomes a constructive bill that would do some good for the area by getting permanent representation. Councilman Kelly asked who would take the lead in working with Assemblywoman Bornstein to try to amend the bill. Mayor Wilson responded that this was just a recommendation from the Energy and Environment Committee. The TAC would review it tomorrow, and it would then go to the Executive Board. He added that he felt it would be appropriate to sound her out in the meantime prior to the Executive Board reviewing the matter. He said it might also be appropriate to suggest that Mr. Wohlmuth contact Ms. Bornstein with a report on what has happened so that it does not come as a surprise. Mr. Wohlmuth stated that a representative of the BIA was at the meeting; he discussed this idea with him briefly after the meeting, and he was willing to carry this forward to Assemblywoman Bornstein's office. He said he would work with the BIA representative to bring this to Ms. Bornstein's attention. 11 PRELI IINARY bIINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s Councilman Crites moved to, by Minute Motion, instruct the official representatives of the City to support the unanimous recommendation of CVAG's Energy and Environment Committee. Motion was seconded by Snyder. Councilman Kelly stated that he may well support the motion when he has more information, but at this time he did not feel he had enough to do so. Mayor Wilson called for the vote. The motion carried by a 3-1 vote, with Councilman Kelly voting NO. XII. OLD BUSINESS A. CONSIDERATION OF LETTER FROM CITY OF MODESTO REQUESTING THE CITY OF PALM DESERT'S.SUPPORT FOR A CHANGE IN THE STATE LAW TO ALLOW CITIES AND OTHER PUBLIC AGENCIES TO ADOPT ORDINANCES IMPOSING FINANCIAL RESPONSIBILITY ON BOTH THE PERPETRATOR AND PARENTS OF MINOR CHILDREN WHO COMMIT ACTS OF GRAFFITI VANDALISM. Mr. Altman noted that the Police Advisory Committee had asked that it be allowed to review this matter prior to the Council taking action. Councilman Crites moved to, by Minute Motion, refer this matter to the Police Advisory Committee for report and recommendation. Motion was seconded by Snyder and carried by unanimous vote. XIII. REPORTS AND REMARKS A. CITY MANAGER 1. REPORT Relative to the Employee Classification Study. Mr. Altman reported that staff was ready to put out the Requests for Proposal (RFD's) for this study, with the main focus to be to look at classifications, not salaries. He added that Council would receive copies of the RFP's. 12 PRELEW NARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 B. CITY ATTORNEY Mr. Erwin'requested that the City Council adjourn its meeting to 3:30 p.m. on Tuesday, May 24, 1994, for the purpose of holding a Closed Session to discuss the following: PUBLIC EMPLOYEE PERFORMANCE EVALUATION: The position title of employee being reviewed: City Manager PUBLIC EMPLOYEE PERFORMANCE EVALUATION: The position title of employee being reviewed: City Attorney PUBLIC EMPLOYEE PERFORMANCE EVALUATION: The position title of employee being reviewed: City Clerk C. MAYOR AND MEMBERS OF THE CITY COUNCIL o City Council Requests for Action: 1. Rgyuest for Direction Relative to the M.R.F. Site Selection. Mr. Wohlmuth reviewed the staff report relative to the Materials Recovery Facility (MRF) site, noting that such a site may be necessary in the Coachella Valley because of AB939 requirements for cities to reduce their waste and also because the Coachella Landfill is targeted to close in late 1995 due to environmental problems. He stated that the MRF Task Force had identified many sites and had ultimately voted on two sites, one in Indio near Interstate 10 on Van Buren Street, and the other located in Coachella near Avenue 52. He added that early in the site selection process, a site was identified in Palm Desert adjacent to the Southern Pacific Railroad line between Monterey Avenue and Cook Street; this was dropped in priority due to the high cost of land and anticipated infrastructure improvement costs to and around the site. He reviewed the advantages and disadvantages to locating a site in Palm Desert and asked for Council direction. Councilman Snyder stated he would like to continue the study on the two sites chosen in Indio and Coachella. Upon question by Councilman Crites, Councilman Kelly stated that a Materials Recovery Facility did not have to be a bad thing and that it could be done well. He suggested that the Council go and look at an MRF site before deciding. 13 PRELEW NARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 129 1994 Councilman Crites stated that he was not opposed to looking at this issue and that there might be substantial money in it. He said Palm Desert produces trash just like everyone else, and we should not send all our trash to the poorer areas. He said he would like to find out whether or not there would be acceptance of such a facility from the area of the community that could be impacted by it. Mayor Wilson stated that his understanding was that Indio and Coachella wanted an MRF station, and he expressed concern with Palm Desert getting into the picture as a competitive entity. Councilman Kelly added that the indians would be bringing in a proposal to put the MRF down by the Colmac site, and there was the possibility that we might need a transfer station somewhere else. He suggested that he and Mr. Wohlmuth be directed to keep an eye on the situation and keep going in the current direction. Council concurred. 2. Mayor's Request for Appointment to Thermal Airport Joint Powers Authority. Mayor Wilson noted his memorandum relative to appointing a Council representative to the Thermal Airport Joint Powers Authority. He stated that the first meeting was scheduled for Monday, May 16th, at which time officers would be elected. He nominated Councilman Snyder for this position. Councilman Crites moved to, by Minute Motion, appoint Councilman Snyder to serve as the City of Palm Desert's representative on the Thermal Airport Joint Powers Authority. Motion wa seconded by Kelly and carried by a vote of 3-0-1, with Councilman Snyder ABSTAINING. 3. Consideration of Peer Review of Sunline Regulatory Administration (SRA). Councilman Kelly stated he felt this was an excellent report. He asked for direction relative to the recommendation that the City of Palm Springs be the agency that would regulate the taxicab industry. Councilman Crites stated he did not understand the rationale for the proposed change since the SRA found nothing wrong with what was going on and no conflicts of interest. Councilman Kelly stated that in his opinion, for the amount of time we were in this (about a year and a half), an excellent job was being done. One of the major problems was the amount of the flag drop that pays for the regulation. The reason it was so high was because of startup costs which were mostly 14 PRELIlVE NARY M NUTES ' REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 s s s s a s s s s s s s s a s a s a s s a a s a s a a s a s a a a s a s s a attorney fees. He said he did not know why the City of Palm Springs would want to be the agency to regulate the taxicab industry, and he asked for comments from the Council. Councilman Crites stated that he agreed a better job needed to be done policing this. He said the two rationales for Palm Springs were that it had a police system and that it was the site of the airport. He said this was only one airport; Councilman Snyder had just become a member of a group working on another airport, and in times to come we will be in Thermal as well as Palm Springs. He said he did not think the recommendation made good sense although he felt Sunline and the people who worked on this deserved commendation. Councilman Snyder agreed with Crites and said he did not see any justification for changing at this time. He felt the program should be given the opportunity to continue and get better. Mayor Wilson agreed that this was a good report and showed that Sunline took on a very difficult task and straightened it out. He said the basic philosophy that kept coming up in the area of criticism was that Sunline was an operational entity rather than a regulatory entity and they are being made to take on another duty that is not really in the spirit of what they are doing. He said he would agree with Snyder and Crites that they are doing a good job and should continue, but if Palm Springs wants to take it over, he would have no problem. Councilman Kelly stated that his understanding of the Council's direction was to take a good look at what the City of Palm Springs is willing to do and see if it will work out. He commented that if someone takes it over just so we get rid of that perceived notion that it might be a conflict, then Sunline might go to work on a problem that we have that might be more detrimental to the cab industry than it is now because there is a problem with transportation between the hotels and the airport, and Sunline is reluctant to get into it because it regulates the cabs. He said if Sunline did not regulate the cabs, he would be the leader to put together a program that would get people back and forth between the hotels and the airport. o City Council Committee Reports: 1. Councilman Crites complimented City Clerk Sheila Gilligan and the City Clerk's Office for getting the Palm Desert Country Club annexation finalized so quickly. 15 PRELIMINARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s 2. Councilman Kelly reported that he had the privilege of representing the Coachella Valley and CVAG's Energy and Environment Committee in accepting a PM-10 award from the South Coast Air Quality Management District. Mayor Wilson stated that this was a very prestigious award that is not given lightly. He said it was very competitive and was given in recognition of local governments working together. XIV. ORAL COMMUNICATIONS - B None Mayor Wilson noted that the Student Government Day had been cancelled because of the lack of participation by Palm Desert High School students due to jobs, etc. He added that it would be held again next year. Upon motion by Crites, second by Kelly, and unanimous vote of the Council, Mayor Wilson recessed the meeting at 5:43 p.m. for dinner. Mayor Pro-Tern Crites reconvened the meeting at 7:00 p.m. XV. COMPLETION OF ITEMS HELD OVER FROM 4:00 P.M. SESSION None XVI. ORAL COMMUNICATIONS - C None XVH. AWARDS, PRESENTATIONS, AND APPOINTMENTS A. PRESENTATION OF PLAQUE OF APPRECIATION TO MS. DIANE COX FOR HER SERVICE ON THE CITY'S PLANNING COMMISSION. On behalf of the entire City Council, Mayor Pro-Tern Crites presented a plaque of appreciation to Ms. Diane Cox for her service on the City's Planning Commission. B. PRESENTATION OF PLAQUE OF APPRECIATION TO MR. GROVER NOBLES FOR HIS SERVICE ON THE CITY'S PROMOTION COMMITTEE AND SISTER CITY COMMITTEE. Mayor Pro-Tern Crites presented a plaque of appreciation to Mr. Nobles for his service on the City's Promotion Committee and Sister City Committee. 16 PRELEW NARY DHNUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 s s s s s s s s s s s s s s s s s s s s s s s s s s a a a a a s s a a a s a C. PRESENTATION OF CERTIFICATES OF APPRECIATION TO STUDENTS PARTICIPATING IN STUDENT GOVERNMENT DAY. No action was taken on this item because of the cancellation of Student Government Day. D. PRESENTATION BY MR. DENNIS DEVLIN, RELAY DIRECTOR OF THE 1ST ANNUAL PALM DESERT HIGH SCHOOL 24-HOUR RELAY CHALLENGE. Mr. Devlin showed a slide presentation of the 1st Annual Palm Desert High School 24-Hour Relay Challenge held on March 26th. He thanked the Council for its support and stated he was looking forward to the 2nd Annual event. %VIH. PUBLIC HEARINGS A. REQUEST FOR APPROVAL OF A ZONING ORDINANCE AMENDMENT ESTABLISHING "LARGE FAMILY DAY CARE" PERMITS AND SETTING A PERMIT FEE (Continued from the Meetings of March 10, April 14, and April 28, 1994). Mr. Diaz reviewed the staff report, noting the revised ordinance with changes by the City Attorney as a result of meetings held with child care representatives, staff, and the City Attorney. He added that both the original ordinance and the revised ordinance met State law. Upon question by Mayor Pro-Tem Crites, Mr. Diaz responded that he believed the revised ordinance had been given to the members of the committee. He added that the revisions were what the committee looked at. He noted that staff recommended continuance of this matter because Councilmember Benson is not present at this meeting, and she had been very instrumental up to this point. Mayor Pro-Tern Crites noted that the hearing was still open and invited testimony in FAVOR of or OPPOSED to this request. The following spoke in opposition because they had not received a copy of the revised ordinance, they were opposed to the regulations relative to traffic, parking of only four cars in front of the houses at a time, time limits (7:00 a.m. to 5:30 p.m. Monday through Friday), placement of playground equipment in the yards, and limitations as far as where children may play in the yards. MS. SUSAN REED, 74-388 Myrsine Avenue, Palm Desert, stated that she was a member of the committee and had not received a copy of the revised ordinance. She noted she had a letter faxed to her today from legislative counsel in Sacramento. At the request of the Mayor, she submitted the letter to the City Attorney. MS. LAVONNE EDMONDSON, 74-672 Gary Avenue, Palm Desert, family day care provider licensed for 12. She said she felt Council should be more concerned with the traffic 17 PREID41NARY NE NUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 on Portola, Deep Canyon, Fred Waring, and Rutledge from 7:45 a.m. to 8:30 a.m. than worrying about four cars being parked in front of homes while parents are dropping off their children. MS. CANDICE BARNHOORN, 45-796 Sago Palm Lane, Palm Desert, President of CVFCCA. MS. YOLANDA SANCHEZ, 41-260 Dixon Drive, Hemet, President of Mid-County Child Care Association. MS. MARIANA ROSEN, 42-176 Ferguson Drive, Vice President of Mid-County Child Care Association, expressed concern that so many regulations would mean some of the parents would not be able to work and would, therefore, have to be on welfare. MS. LANA THOMAS RADFORD, 1129 E. Oakland Avenue, Secretary of the Mid-County Child Care Association. MS. DEBORAH A. CRABTREE, 4070 Linwood Place, Riverside, Riverside County Office of Education, opposed the ordinance as written. She said she was also part of the committee on the rewrites and had not received a copy of the revised ordinance. She added that the ordinance was not within State guidelines. MR. BUCK PRUETT, 76-800 Lancelot Court, Palm Desert. MS. KATHERINE NEIBERGER, 37-530 Los Alamos Road, Murrieta. MS. CARRIE PARDUHN, 52-080 Avenida Alvarado, La Quinta, Vice President of the Coachella Valley Child Care Association. MS. JUDY SADLER, 73-780 Krug Avenue, Palm Desert, spoke as a licensed family day care provider and a member of the committee. She said day care providers were fully regulated by the State, and she felt the ordinance was unconstitutional and unenforceable. MS. ANNE SIMMON-YOUNG, 1092 Main Street, Fallbrook, spoke as a sponsor for day care providers. MS. SHARLENE GRIFFIN, 11929 Albion Way, Moreno Valley, member of the Moreno Valley Child Care Association. MS. THERESA EVOLA, 24479 Jonna Lane, Moreno Valley. MS. ENZA POSTLETHWAIT, 19350 Totem Court, Riverside. MS. LOLA WURTZ, 24845 Carolyn, Moreno Valley. MS. CALESTA STOKES DANIELS, 23793 Swan Street, Moreno Valley, member of the Moreno Valley Child Care Association. 18 PREIdMiNARY MINUTES REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 s s s s s s s s s s s s s s s s s s s s s s s s s s s a s s a s a s a s a s With no further testimony offered, Mayor Pro-Tem Crites suggested that this matter be continued for a longer period of time than two weeks in order to allow everyone sufficient time to review the revised ordinance and comment on the changes. Councilman Snyder moved to continue this matter to the meeting of June 23, 1994. Motion was seconded by Kelly and carried by a 3-0-2 vote, with Councilmember Benson and Mayor Wilson ABSENT. B. REQUEST FOR TERMINATION OF A DEVELOPMENT AGREEMENT ASSOCIATED WITH A PROPOSED 22-UNIT SENIOR APARTMENT PROJECT ON .936 ACRES ON THE EAST SIDE OF SAN RAFAEL SOUTH OF CATALINA WAY, Case No. CUP 90-18 (John and Nancy Weber, Applicants). Mr. Diaz noted the report in the packets and offered to answer any questions. Mayor Pro-Tem Crites declared the public hearing onen and invited testimony in FAVOR of or OPPOSED to this request. MR. JIM SATTLEY, 74-050 San Marino Circle, spoke on behalf of the applicants and in favor of this request. With no further testimony offered, Mayor Pro-Tem Crites declared the public hearing closed.* Councilman Kelly moved to waive further reading and pass to second reading Ordinance No. 74 rescinding Ordinance No. 623 terminating Senior Housing Development Agreement between the City and John and Nancy Weber. Motion was seconded by Snyder and carried by a 3-0-2 vote, with Councilmember Benson and Mayor Wilson ABSENT. XIX. ORAL COMMUNICATIONS - D None 19 PRELEW NARY MINUTES ' REGULAR PALM DESERT CITY COUNCIL MEETING MAY 12, 1994 %%. ADJOURNMENT Councilman Kelly moved to adjourn the meeting at 8:08 p.m. to 3:30 p.m. on Tuesday, May 24, 1994, for the purpose of conducting employee evaluations of the City Manager, City Attorney, and City Clerk pursuant to Government Code Section 54955. Motion was seconded by Snyder and carried by unanimous vote. Councilman Kelly noted that he would not be able to attend the Council meeting of May 26, 1994, and requested to be excused. Council concurred. BUFORD A.CRITES,MAYOR PRO-TEMPORE ATTEST: MARY P. FRAZIER, DEPUTY CITY CLERK CITY OF PALM DESERT, CALIFORNIA 20 / LAW O►►IC[f OF BEST, BEST 6 KRIE�- R May 5, 1994 MEMORANDUM TO: Mayor and City Council Members, City of Palm Desert FROM: Marshall S. Rudolph, Deputy City AttorneyVOS� RE: Day Care Ordinance -- Revised Attached hereto is a revised version of the day care ordinance originally considered by the planning commission and city council. Deletions are indicated by strikeouts (example) and insertions are indicated by redlining ( ) . These revisions represent the consensus opinion o {Bose who attended a meeting held by Councilwoman Benson to evaluate the original proposed ordinance. Those in attendance included representatives from City staff, the State Department of Social Services, and operators of day care homes in the City. At the meeting, some persons in attendance questioned the legality of the original proposed ordinance. The Council should understand that the statutes pursuant to which the Council is acting in regulating large family day care homes are not entirely precise in their wording, thereby allowing for varying legal interpretations. While reasonable minds can differ, the Council should know that the City Attorneys office believes the original proposed ordinance is both legally defensible and consistent with applicable state law. in fact, several other cities in California (including E1 Cerrito, Santa Rosa, and San Bruno) have adopted day care ordinances containing regulations that are similar if not identical to those contained in the original proposed ordinance. The revised ordinance is also legally defensible and consistent with applicable state law. Thus, in evaluating the proposed revisions, we advise that the Council concern itself only with determining which proposed regulations are reasonable and appropriate as a matter of policy. cc: Bruce Altman, City Manager vRamon Diaz, Planning Dir. /Asst. City Manager Dave Erwin, City Attorney NSR51527 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25.04.240, 25.14.020, 25.16.020, 25.18.020, 25.20.020, 25.22.020, AND 25.24.020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25.04.307, 25. 14.035, 25. 15.023, 25. 15.025, 25.16.035, 25. 18.035, 25.20. 035, 25.22.035, 25.24.027, AND 25.72.015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. WHEREAS, state law distinguishes between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities. WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider's own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3.6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes"; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and NSR43124 WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the City and also authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the City Council recognizes the growing need for child day care facilities within the City and the preference of some parents for family day care homes; and WHEREAS, the City Council also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the City Council of the City of Palm Desert, California, DOES ORDAIN as follows: Section 1. That Section 25.04.240 of the Municipal Code is amended to read as follows: "25.04.240 Day Nursery. "Day nursery" (including preschool and nursery schools) has means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their enrmal place of residence. ` � � Q:Yx.dysdY9b%cs..Ww4..»ii::Ya.A.o,Sww>...,Y'wAaaxw aka Section 2. That Section 25.04.307 is hereby added to the Municipal Code and will read as follows: "25.04.307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider's own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: NSR43124 -2- (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations. The foregoing definitions shall be construed in a manner consistent with Chapter 3.4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3. That Section 25. 14.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes." Section 4. That Section 25. 14.035 is hereby added to the Municipal Code and will read as follows: "25.14.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 5. That Section 25.15.023 is hereby added to the Municipal Code as follows: 1125.15.023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes. " Section 6. That Section 25.15.025 is hereby added to the Municipal Code to read as follows: "25.15.025 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 7. That Section 25.16.020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: "H. Small family day care homes. " NSR43124 -3- Section 8. That Section 25.16.035 is hereby added to the Municipal Code and will read as follows: "25.16.035 Large family dap care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 9. That Section 25.18.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes. " Section 10. That Section 25.18.035 is hereby added to the Municipal Code and will read as follows: "25.18.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 11, That Section 25.20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: "G. Small family day care homes. " Section 12, That Section 25.20.035 is hereby added to the Municipal Code and will read as follows: "25.20.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 13. That Section 25.22.020 of the Municipal Code is hereby amended to read as follows: "25.22.020 Permitted uses. The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes. " Section 14, That Section 25.22.035 is hereby added to the Municipal Code and will read as follows: "25.22.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " NSR43124 -4- Section 15, That Section 25.24.020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows: "D. Small family day care homes." Section 16, That Section 25.24.027 is hereby added to the Municipal Code and will read as follows: "25.24.027 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 17. That Section 25.72.015 is hereby added to the Municipal Code and will read as follows: 1125.72.015 Large family day care homes. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this Code. " Section 18. That Chapter 25.72A is hereby added to the Municipal Code and will read as follows: "Chapter 25.72A LARGE PAMILY DAY CARE SOME USE PERMITS Sections: 2S.72A.010 Purpose. 25.72A.020 Application process. 25.72A.030 Application fee. 25.72A.040 Notice to property owners. 25.72A.050 Decision by the zoning administrator. 25.72A.060 Appeal of decision. 25.72A.070 Expiration of permit. 25.72A.080 Review of permit; suspension or revocation. 25.72A.090 Pre-existing family day care homes. 25.72A.100 violation; public nuisance and misdemeanor. ` A 3 25.72A.010 Purpose. The City Council adopts this Chapter pursuant to California Health & Safety Code Section 1597.46. Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentration, traffic control, parking, and noise control relating to large family day care homes. Its purpose is also to establish an economical process consistent with state law for obtaining a NSR43124 -5- use permit to operate a large family day care home in conformance with such standards, restrictions, and requirements. Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services. 2S.72A.020 Application process. Applications for use permits to operate a large family day care home shall be made to the City's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant's own children under 10 years of age; (b) number of employees; state license number. signatures of- the !e9al owners ef the real property proposed to be used as a large framily day save %as of thel-P 'gFb�:cs"` Al In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan (8V x 11") showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, an '""fencing; distance to property line; parking areas and number of spaces both on-site and off-site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extinguishers and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. NSR43124 -6- 25.72A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the City's cost of administering the review and permit process. 25.72A.040 Notice to property owners. Not less than 10 days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within 'UT 00- foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision on the application unless requested by the recipient. 25.72A.050 Decision by the zoning administrator. After proper notice has been given to affected property owners pursuant to Section 25.72A.040, the zoning administrator or his or her designee shall render a decision on the application. Unless requested by the applicant or other affected person, no hearing shall be held on the application before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home and no eleser than sim hundred (600) feet in lineerr feet—aleng—a €rent}ng street €eeat another larye family day ears home. In addition, no residential property in the City shall be bounded on more than IMMONOW e famil da care home. "a<.�.w r � . 9� � ��� x -. �+2lb�k�2�dlr."at�. (b) Traffic control. The traffic circulation plan shall be designed to diminish traffic safety problems. Residences located on �� arterial streets (as shown on the general p an circulation map) must provide a drop-off/pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges NSR43124 -7- to reduce congestion in neighborhoods already identified as having traffic congestion problems. (c) Parkin, All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on-street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. (d) Noise control. Operation of the facility shall comply with all provisions of Chapter 9.24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices _ , location of play areas, and placement of outdoor play equipment. (e) Heerg of Large family Lours o f e.nn save homes shalloperate a.m. and 7"00 pom I Manday through Friday No outdoor play is allowed before 9MGG a a, or soaq - - {€} ? Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. { } R Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. Contact Rerson, The current name s and telephone number(s) of the applicant, and all other operators if different from the applicant, of the family day care home shall be on file with the department of community development at all times. {i-}�"` state licensing, All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. Building and Fire Code Compliance Consistent with Section 1597.46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single-family residences, and with such additional standards as the State Fire Marshal from time to time NSR43124 -8- adopt pursuant to Section 1597.46(d) of the Health & Safety Code to promote the fire and life safety of children in family day care homes. (See Title 22 of the California Code of Regulations. ) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing building and fire code rovisions " u� fk+LQ' Smoking Restricted. Consistent with Section 1596.795 of the Health & Safety Code, smoking of tobacco and other substances -- whether in pipe, cigar, or cigarette form -- shall not be allowed in the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. +1* Sinale-family zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. No use permit shall be issue un ess the M. ; . a :> b... .. : ;'".yam rear property propseto�e fuse<i s a arge family day care home ee 25.72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City's costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City will process the request for an appeal. If at the end of the appeal, the City's actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the city's costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. NSR43124 -9- 25.72A.070 Expirationd of permit. If a large family day care home possessing a use permit ceases to operate for a period greater than ene hundred 3..« aiG;,:¢ d° Y?�: :4 `.: ,<:2.3xsi's'% C days consecutive �C e Ac ? then Me use fermi s a Y be consirr ec nuancl voi �iq 25.72A.060 Review of permit; suspension or revocation. Upon determination by the . department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25.72A.050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the- City receives six (6) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, WNj ;.�<s!r.rcet �+5�tt�a`empal"�"�'" 0 wa a +9gaits � � �dcFf � t €6xarE #,.. TL..3i 9'3nOLp4,m;D.2.f:. ]S$u .•....a�n�' yL;` „L:u'L p armng commission may suspea�or"'revoI"ce die permit or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter but consistent with state law, based on findings derived from testimony and evidence presented at the public hearing. 25.72A.090 Pre-existing family dap care homes. Any family day care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such homes may continue to operate during the City's processing of their applications) . All ether things being equal, the date and time that a easpiete applioation is flied with the elty shaj-1 eeneentration of family day sere heses Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25.72A. 100. 25.72A.100 violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in the City without a valid use permit as NSR43124 -10- required by this Chapter is ..x < both a misdemeanor and a public nuisance. a nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8.20 of this Code and any other applicable provision of state or local law. • t:.bi6�..wb6.a.`G2uY3�'.?:<e:}k...<y"i::it>:<G.'< ' >u y.;'.:8:�" h.�<A'.•<...<x..ti'b'.�': �:2 G ...>J�.O£:i':.. .!%. "::X�>:i0}<>. .pper� Section 19. In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20, The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED this day of 1994, by the City Council of the City of Palm Desert, Cal3for� by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: S. ROY WILSON, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California NSR43124 11- CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM TO: City Manager FROM: Assistant City Manager/Director of Community Development DATE: May 24, 1994 SUBJECT: Legislative Counsel Opinion to Julie Bornstein With all due respect I strongly disagree with Ms . Hema Rao Anwar's opinion relating to our proposed large family day care ordinance. The state has not preempted local jurisdictions with regards to large family day care centers. In fact, the legislation specifically permits conditions to be placed on such facilities . The legislation, however, does require that any limitations be based on traffic, parking, noise control or concentration. Our limitations are based on traffic. Had the legislation wanted to permit 12 children at anyone time, the legislation would have so stated. This conclusion is based on the following: a. Legislators know what they want to say and say it. b. Traffic volumes for residential areas are based on a daily basis. The average trips per day for a single family residential home is 10 . Without any type of limitation each time a child is taken to and from, in this case a large day care center, two additional trips are added. Thus the potential for total disruption of a residential neighborhood is real: C. If the number of children are not controlled on a daily basis but merely at any one time, then what traffic volume is considered acceptable? I seriously doubt that the legislature was advocating hourly total turnovers. The memorandum simply assumes that no limitations are permitted because they were not specifically mentioned, then concludes that although the limitations are permitted based on traffic, etc. , the basic traffic generator (number of children per day) cannot be controlled. If legislative counsel 's memorandum or interpretation is correct then the legislature has provided for a meaningless, time consuming, money wasting process which evaluates and accomplishes nothing. I am sure the legislature did not have this intention. If that were the intent then a simple changing of six to 12 in the existing legislation would have been sufficient. Other jurisdictions have ordinances even more restrictive than the one proposed by staff . CITY MANAGER LEGISLATIVE COUNSEL OPINION MAY 24, 1994 Finally, the intent of residential care legislation should be recalled. The number of six or less for many residential care uses, not just child care, was established by the state because local jurisdictions were prohibiting any type of residential care facilities. The key foundation for this legislation was that care in a residential setting was necessary and beneficial . To retain the residential setting the legislature felt that six was the appropriate number. The question that should be asked is would anyone desire to reside on a street with a child care center with no real limitation on hours of operation or number of children taken care for in any 24 hour period. ON A. DIAZ ASSISTANT CITY AGER, DIRECTOR OF CO ITY DEVELOPMENT/PLANNING /tm cc: City Attorney Dave Erwin Marshall Rudolph 2 LAW OFFICES O/ BEST, BEST 6 KRIEG! May 17, 1994 MEMORANDUM TO: Mayor Wilson, Council Members Benson, Crites, Snyder and Kelly, City of Palm Desert L. FROM: Dave Erwin, City Attorney RE: Child Care Giver Regulations Dear Mayor Wilson and Council Members: Attached is a copy of the letter to Julie Bornstein that was handed to me at the Council meeting of May 12th. This is for the Council's information. DJE/vcd attachment cc: Bruce.Altman, City Manager, w/attachmentlffl %gplo�� � 3 m crn- m cn -° m Q n 3 0 T N -n G) O m rn BJE51943 Jea L Hartle Dwelo Poo AOMm M "R Keel Dim DHOW ,/�' Mr•Jn�AMrerr NXPAW J.K~ C•Rb Anrm CAWMLAO ft Jrrme L AYMO `` ('J Hmw J.Parr J'oe I AQ AMye Nhicw A.L" JeM T.BepebeYAr � � .- DeeeMA WMOmm� Joe J.ATW Prim• Le � ♦ PAMMm P.BMDm YRZnA K Le" JOM A•C=m mitt aeeeF 9oyr-VYy .iNmMrlaaw G 0"ok M _ .•. z.....:. Mn M.8NW10 ikiMOL LAp Room QOW DOI - _ Swn J.Bu®n Kee 4 yaw PAW Dade—:_'�c" 2wr LBPO Manton Mann JMnee A.MLA ���',' sm"cmm ~ Frm mm A WM Robert a kow ` '?' `eu CMnr B. Va L OkW _. Ben 6 Dim PM MOWAM Tray Q Fo+eo B _�I t .. - JeM1w A Del Uc 1A erneua Mew Par _. ..`• �.. . Qmpr y aw0 JOM A Mope 1lkneelfl Decal PrAneaa B.OMln Abel Wema CTMrornr tome Ma a.O> DOMAL NeWit "CON DeMPee BIWM FL FynM wmw Pee„ Sacramento, California CW,FV* MMnaMB.swr Om COOK SUft�1 Pex••a R DMa :tMO1 T.SOUM SUMOAD.CA WA-AM Detre Zmcn Q=Md WiUm K BMA tme)AA&W May 12 , 1994 Eam K dRW Jeaein L 8M09 TaMmpwr�BtBI3�-0MP AHm D.DAu 9W SWOO Mena Mettle Ha Me Ffwum Tory Am T.HAmnOrn JSR Thom &;m &Hai RIMW Tpo Thp K HNM Eiceber M.Wad PwenL m9m Awe B.WOONn Honorable Judie Bornstein La AM 40MM ThA D.WMMen 2179 State C�Lpitol DNW a azoMm Fam ]X Dav Care Homes — 017322 o.o�e.e Dear Mrs. Bornstein: QUESTION NO.-1 Maf the City of Palm Desert amend a zoning ordinance to prohibit a 1 censed large family day care center from having more than 12 chil ren per day? r OPINION No. 1 Th4 City of Palm Desert may not amend a zoning ordinance to prohibit 4 licensed large family day care center from having more than 12 `children per day. ANALYSIS NO. 1 Section 1596. 78 of the Health and Safety Codel defines a large family day care home as a home that provides family day care to 7 to 12 children, inclusive, including children under the age of 10 years yho .reside at the home, as defined in the regulations adopted by the State Department of Social Services to administer and enforce the California Child Day Care Facilities Act (Sec. 1596.70 and following) . Section 1597 .40 provides that the public Policy of the state is to provide children in family day care homes with the same environment as provided in a traditional home setting and that this policy is of statewide concern and occupies the field to 'the exclusion of municipal zoning, and other regulations, 'except as provided. 1 Hereafter all statutory references are to the Health and Safety Code, ;unless otherwise indicated. I .5�. i=.'i_-- :1' ._ ..�-.=__ci':R _,=itE�ri•�ht LVni+.a ic_ii _'- __. __ Honorable Julie Bornstein - p. 2 - 117322 Section 1597 . 46 does permit a city, if certain procedures are satisfied, to require any large family day care homes to apply for a permit to use a lot zoned for single-family dwellings and requires that the permit shall be granted if the home complies with any existing local ordinances prescribing reasonable standards, restrictions, and requirements concerning spacing and concentration, traffic control, parking, and noise control relating to these homes (see subd. (a) , Sec. 1597 .46) . We are informed that the City of Palm Desert, a general law city, islconsidering amendment of an ordinance to prohibit a large family* day care home from having more than 12 children'per day. In this regard, Section 102416 .5 of Division 12 of Title 22 of the California Code of Regulations provides that a family day care home shall have a maximum capacity of 12 children, provided that staffing ratios are maintained (see Sec. 1596.81) . Thus, the regulations allow for a maximum of 12 children at any time, if there is sufficient staff, yet the proposed city ordinance would restrict a family day care home to a maximum of 12 children per day. Itis a " . . , well established principle of constitutional law that local enactments which conflict with state legislation pf statewide concern must yield to the sovereignty of the state" (Mueller v. Brown, 221 Cal. App. 2d 319, 327) . It! cculd be argued that this requirement of limiting the number of children to 12 per day is within the city's prescribed zoning authority under section 1597.46 because the number of children entering and leaving the home impacts on the noise, parking, andtraffic in the area. However, since this requirement would be in Airect conflict with state law and the state has expressly preempted this area and declared it to be of statewide concern, we think that imposing a maximum of 12 children per day is beyond the city's zoning powers and the city must yield to the sovereignty of the state in this instance. Th4refore, we conclude that the City of Palm Desert may not amend a coning ordinance to prohibit a licensed large family day care center from having more than 12 children per day. QUESTION NO. 2 May a general law city restrict large family day care centers in residential areas through zoning ordinances? OPINION AND ANAjvSlg NO, Z As discussed in Analysis No. 1, Section 1597 .46 permits a general law city, if certain procedures are satisfied, to require any large family _day care home to apply for a permit to Honorable J lie Hornstein - p. 3 - 017322 use a lot z ned for single family dwellings, and requires the city to grant th permit if the home complies with certain requirements, including those concerning spacing and concentrati n, traffic control, parking, and noise control. W are informed that the City of Palm Desert is, in addition to the amendment of the zoning ordinance discussed in Opinion and Analysis No. 1, also considering imposition of other requirements on family day care homes pursuant to 'its zoning authority i cluding requirements relating to the days and hours of operation, Ind the time periods during which the children may play outside. W think the extent to which the city may restrict' family day are homes in this regard depends upon whether the restriction and requirements concerning spacing and concentrati n, traffic control, parking, and noise control directly cc flict rather than incidentally affect state regulation of family d y care homes. I this regard, a statute is to be construed so as to harmonize it!s various parts within the legislative purpose of the statute as whole (People v. .glack, 32 Cal. 3d 1, 5; Wells v. exMaceptio r ing gity o a statute afie narrow Cal.constru, 788) . Moreover, Y (City Qf. National City V. , 33 Cal. 2d 635, 636) . Since the express legislative urposs is to occupy the field to generally exclude municipal zo ing, building and fire codes, and regulations governing th use of occupancy of family day care homes, we think that the axc ption provided in Section 1597.46 to allow the city to issue conditional use permits to large family day care homes would be nar owly construed by a court to prohibit direct conflict with state lfcensure and regulation. This, we think. that the authority of a general law city to restrict arge family day care homes in residential areas through zoni g ordinances would be narrowly construed in light of the states Preemption of this area, and that any restrictions imposed by a ,city could only incidentally affect, and not directly conflict wit4, the state regulation of family day care homes in residential Ireas. Very truly yours, I Hion M. Gregory Legislative Counsel By Hema Rao Anwar HRA:tfh Deputy Legislative Counsel I I ' Miscellaneous Planning-Related Laws ZONING OF FAMILY DAY CARE HOMES (Excerpts from Chapter 3.4 and 3.6,Division 2 of the Health and Safiety Code) 1596.70. This chapter and Chapters 3.5 (commencing with Section 1596.90), and 3.6 Title (commencing with Section 1597.30) may be cited as the California Child Day Care Facilities Act. (Added by Slats.1984. Cit.1615.Amended by Slats.1985,Ch.1064.) 1596.71.The provisions of this chapter apply to Chapters 3.5 (commencing with Section Applicability 1596.90)and 3.6(commencing with Section 1597.30). (Added by Slats.1984, Ch. 1615.) 1596.72.The Legislature finds all of the following: Legislative intent .(a) That child day care facilities can contribute positively to a child's emotional, cognitive,and educational development. (b) That it is the intent of this state to provide a comprehensive, quality system for licensing child day care facilities to ensure a quality day care environment. (c) That this system of licensure requires a special understanding of the unique characteristics and needs of the children served by day care facilities. (d)That it is the intent of the Legislature to establish within the State Department of Social Services an organizational structure to separate licensing of child day care facilities from those facility types administered under Chapter 3(commencing with Section 1500). (e)That good quality child day care services are an essential service for working parents. (Added by Slats.1984, Ch. 1615.Amended by Slats. 1985,Ch. 1064.) 1596.73.The purposes of this act are to: Purpose (a) Streamline the administration of child care licensing and thereby increase the efficiency and effectiveness of this system. (b)Encourage the development of licensing staff with knowledge and understanding of children and child care needs. (c) Provide providers of child care with technical assistance about licensing require- ments. (d)Enhance consumer awareness of licensing requirements and die benefits of licensed child care. (e)Recognize that affordable,quality licensed child care is critical to the well-being of parents and children in this state. (Added by Slats.1984,Ch. 1615.Amended by Slats. 1985,Ch. 1064.) 1596.74. Unless the context otherwise requires, the definitions contained in this chapter govern the construction of this chapter and Chapters 3.5 (commencing with Section 1596.90) and 3.6(commencing with Section 1597.30). (Added by Slats.1984,Ch. 1615.) 1596.75."Child"means a person who is under 18 years of age who is being provided care "Child" and supervision in a child day care facility,except where otherwise specified in this act (Added by Slats. 1984, Ch. 1615.) 1596.750. "Child day care facility" means a facility which provides nonmedical care to "Child day care facility" children under 18 years of age in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of die individual on less than a 2,4-hour basis.Child day care facility includes day care centers and family day care homes. (Added by Slats.1984, Ch. 1615.) 1596.76."Day care center"means any child day care facility other than a family day care "Day care center" home,and includes infant centers,preschools,and extended day care facilities. (Added by Slats.1984, Cit. 1615.) 1596.77."Department"means die State Deparunent of Social Services. "Department" (Added by Slats. 1984,Cit. 1615.) 275 Miscellaneous Planning-Related Lay ' "Director" 1596.770."Director"means the Director of Social Services. (Added by Slats.1984,Ch.1615.) "Family day care home" 1596.78."Family day care home"means a home which regularly provides care,protection, and supervision of 12 or fewerchildren,in the provider's own home,for periods of less than 24 hours per day,while the parents or guardians are away,and includes the following: "Large family day care •••(a)"Large family day care home"which means a home which provides family day home" care to 7 to 12 children,inclusive,including children under the age of 10 years who reside at the home,as defined in regulations. "Small family day care •'•(b)"Small family day care home"which means a home which provides family day home" care to six or fewer children,including children under the age of 10 years who reside at the home,as defined in regulations. (Added by Slats. 1984,Ch. 1615.Amended by Slats.1989„Ch.70. Urgency;effective June 29,1989.) "Person" 1596.79.'Person"means an individual,partnership,association,corporation,or governmen- tal entity, such as the state,a county, city, special district, school district, community college district,chartered city,or chartered city and county. (Added by Slats.1984,Ch.1615.Amended by Slats.1985,Ch.1064.) "Planning agency" 1596.790.'Planning agency"means the agency designated pursuant to Section 65100 of the Government Code. (Added by Slats.1984,Ch.1615.) "Provider" 1596.791.'Provider'means a person who operates a child day care facility and is licensed pursuant to Chapter 3.5 (commencing with Section 1596.90)or 3.6(commencing with Section 1597.30). (Added by Slats.1984,Ch.1615.) Inapplicability 1596.792. This chapter and Chapters 3.5 (commencing with Section 1596.90) and 3.6 (commencing with Section 1597.30)do not apply to any of the following: (a)Any health facilities,as defined by Section 1250. (b)Any clinic,as defined by Section 1202. (c)Any community care facility,as defined by Section 1502. (d) Any family day care home providing care for the children of only one family in addition to the operator's own children. (e)Any cooperative arrangement between parents for the care of their children where no payment is involved and the arrangement meets all of the following conditions: (1)In a cooperative arrangement,parents shall combine their efforts so that each parent, or set of parents,rotates as the responsible care-giver with respect to all the children in the cooperative. (2) Any person caring for children shall be a parent, legal guardian, stepparent, grandparent,aunt,uncle,or adult sibling of at least one of the children in the cooperative. (3)There can be no payment of money or receipt of in-kind income in exchange for the provision of care. This does not prohibit in-kind contributions of snacks, games, toys, blankets for napping, pillows and other materials parents deem appropriate for their children.It is not the intent of this paragraph to prohibit payment for outside activities,the amount of which may not exceed the actual cost of the activity. (4) Care may only be provided in the home of a parent, legal guardian, stepparent, grandparent,aunt,uncle,or adult sibling of at least one of the children in the cooperative. (5)No more than 12 children are receiving care in the same home at the same time. (f)Any arrangement for the receiving and care of children by a relative. (g) Any public recreation program. "Public recreation program" means a program operated by the state, city, county, special district, school district, community college district,chartered city,or chartered city and county which meets either of the following criteria: (I)The program is provided for children over the age of four years and nine months and is in operation for either of the following periods: (A)For under 13 hours per week (B)For more than 12 hours per week and is for 12 weeks or less per year in duration. 276 Miscellaneous Planning-Related Laws (2)The program is provided to children under the age of four years and nine months with sessions which run 12 hours per week or less and are 12 weeks or less in duration. (h)Extended day care programs operated by public or private schools. (Added by Stars.1984,Ch.1615.Amended by Stats.1985,Ch.1064;Stars.1987,Ch. 1487.) 1596.793. This chapter and Chapters 3.5 (commencing with Section 1596.90) and 3.6 Exemption of specific (commencing with Section 1597.30)do not apply to recreation programs conducted for recreation programs children by the Girl Scouts,Boy Scouts,Boys Club,Girls Club,or Camp Fire,or similar organizations as determined by regulations of the department.Child day care programs conducted by these organizations and the fees charged for that specific purpose are subject to the requirements of this chapter,Chapter 3.5(commencing with Section 1596.90),and Chapter 3.6(commencing with Section 1597.30). (Added by Stars.1985,Ch.1110;Amended by Stars.1986,CIL 714.) 1596.795.Notwithstanding any other provision of law, a city or county may enforce its No smoking ordinance ordinance regulating the smoking of tobacco in a private residence which is licensed as a child day care facility during the hours of operation as a child day care facility with respect to those areas of the facility where children are present. (Added by Stats.1986,Ch.407.) (Excerpts from Chapter 3.6) 1597AO.(a)It is the intent of the Legislature that family day care homes for children must Policy be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development.It is the public policy of this state to provide children in a family day care home the same home environment as provided in a traditional home setting. The Legislature declares this policy to be of statewide concern with the purpose of ` occupying the field to the exclusion of municipal zoning, building and fire codes and regulations governing the use of occupancy of family day care homes for children,except as specifically provided for in this chapter,and to prohibit any restrictions relating to the use of single-family residences for family day care homes for children except as provided by this chapter. (b)Every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance,encumbrance,leasing,or mortgaging of such real property for use or occupancy as a family day care home for children,is void and every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children is void. (c)Every restriction or prohibition entered into,whether by way of covenant,condition upon use oroccupancy,or upon transfer of title to real property,which restricts or prohibits directly,or indirectly limits,the acquisition,use,or occupancy of such property fora family day care home for children is void. (Renumbered—formerly 1597S01—and Amended by Stats.1983.Ch.1233.) 1597.41. (a) The State Director of Social Services shall authorize the Counties of Pilot projects: Ventura and Placer to operate a pilot project,pursuant to this section,for a period Ventura and Placer not to extend beyond June 30, 1992.The purpose of the pilot project is to test the Counties feasibility of permitting two additional schoolage children to be cared for in a family day care home. (b)Notwithstanding Section 1596.78,upon authorization from the State Director of Social Services pursuant to subdivision(a),family day care homes in the Counties of Ventura and Placer shall be subject to the following limits on capacity: (1)A large family day care home may provide family day care to 7 to 12 children, inclusive,or up to 14 children,inclusive,if two of the children are six years of age or older. Children under the age of 10 years who reside in the home, as defined in regulations,shall be counted for purposes of these limits. (2) A small family day care home may provide family day care to six or fewer 277 Miscellaneous Planning-Retested LL children,or eight or fewer children if two of the children are six years of age or older. Children under the age of 10 years who reside in the home,as defined in regulations, shall be counted for purposes of these limits. (c)Any family day care provider who opts to care for children under the higher ✓ limits described in subdivision(b)shall notify the department of his or her intention prior to accepting the two additional children for care. Upon request of a local planning agency,local zoning agency,or similar local agency,the department shall inform the agency about whether or not a specified provider is participating in the pilot project. (d)By March 1,1992,the department shallsubmit an evaluation of the pilot project to the Assembly Human Services Committee and the Senate Health and Human Services Committee of the Legislature.In preparing the evaluation;the department shall consult with cities or other local agencies in the pilot counties,family day care provider associations, and other associations representing the interests of parents and children.The evaluation shall include,but not be limited to,all of the following: (1)The number of family day care homes that participate in the pilot project,by county and by size of home. (2)The number of additional children cared for as a result of the pilot project,by county and by size of home. (3)Problems encountered by providers,parents,or other parties with respect to licensing and zoning requirements,and barriers to participation in the pilot project encountered by providers. (4)Comments from providers,local agencies,and parents about the effectiveness, feasibility, and other aspects of the pilot project. The report shall include an assessment of the impact of the pilot project on local zoning practices and policies. (5)Recommendations as to whether or not the pilot project should be expanded to other areas of the state,and the reasons for those recommendations. - (e)This section shall remain in effect only until July 1,1992,and as of that date is repealed,unless a later enacted statute,which is chaptered before July 1,1992,deletes or extends that date. (Added by Stats.1989,Ch. 70. Urgency;effective June 29,1989.) Applicable to small 1597.45.All of the following shall apply to small family day care homes: family day care homes (a) The use of single-family residence as a small family day care home shall be considered a residential use of property for the purposes of all local ordinances. (b)No local jurisdiction shall impose any business license,fee,or tax for the privilege of operating a small family day care home. (c)Use of a single-family dwelling for purposes of a small family day care home shall not constitute a change of occupancy for purposes of Part 1.5(commencing with Section 17910)of Division 13 (State Housing law)or for purposes of local building codes. (d)A small family day care home shall notbe subject to***Article I(commencing with Section 13100) or Article 2 (commencing with Section 13140) of Chapter 1 of Part 2, except that a small family day care home shall contain a fire extinguisher***and smoke detector device, **■that meet*standards established by the State Fire Marshal. (Added by Stats. 1983,Ch.1233.Amended by Stats.1989,Ch. 70. Urgency;effective June 29,1989.) Applicable to large 1597.46.All of the following shall apply to large family day care homes: family day care homes (a)A city,county,or city and county shall not prohibit large family day care homes on lots zoned for single-family dwellings,but shall do one of the following: (1)Classify these homes as a permitted use of residential property for zoning purposes. (2)Grant nondiscretionarypermit to use lot zoned fora single-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,and complies with subdivision (d)and any regulations adopted by the State Fire Marshal pursuant to that subdivision.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 level generated by 278 r MisceUaneous Planning-Related Laws children. The permit issued pursuant to this paragraph shall be granted by the zoning administrator, if any, or if there is no zoning administrator by the person or persons designated by the planning agency to grant such permits,upon the certification with a hearing. (3)Require any large family day care home to apply for a permit to use a lot zoned for single-family dwellings. The zoning administrator, if any, or if there is no zoning administrator,the person or persons designated by the planning agency to handle the use permits shall review anddecide the applications.The use permit shall be granted if the large family day care home complies with local ordinances, if any, prescribing reasonable standards,-restrictions,and requirements concerning spacing and concentration, traffic control,parking,and noise control relating to such homes,and complies with subdivision (d)and any regulations adopted by the StateFire Marshal pursuar tto that subdivision.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 local government shall process any required permit as economically as possible,and fees charged for review shall not exceed the costs of the review and permit process.Not less than 10 days prior to the date on which the decision will be made on the application,the zoning administrator orperson designated to handle such use permits shall give noticeof the proposed useby mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 100 foot radius of the exterior boundaries of the proposed large family day care home.No hearing on the application for a permit issued pursuant to this paragraph shall be held before a decision is made unless a hearing is requested by the applicant or other affected person. The applicant or other affected person may appeal the decision.The appellant shall pay the cost,if any of the appeal. (b)A large family day care home shall not be subject to the provision of Division 13 (commencing with Section 21000)of the Public Resources Code. (c)Useof a single-family dwelling for thepurposes of a large family day care home shall notconstitute a change of occupancy for purposes of Part 1.5(commencing with Section 17910ofDivision 13(State Housing Law),orforpurposesof local building andfurecodes. (d)Large family day care homes shall be considered as single-family residences for the purposes of the State Uniform Building Standards Code and local building and fire codes, except with respect to any additional standards specifically designed to promote the fire and life safety of the children in these homes adopted by the State Fire Marshal pursuant to this subdivision. The State Fire Marshal shall adopt separate building standards specifically relating to the subject of fire and life safety in large family day care homes which shall be published in Title 24 of the California Administrative Code.These standards shall apply uniformly throughout the state and shall include,but not be limited to: (1)the requirement that a large family day care home contain a fire extinguisher or smoke detector device, or both, which meets standards established by the State Fire Marshal; (2) specification as to the number of required exits from the home;and(3)specification as to the floor or floors on which day care may be provided.Enforcement of these provisions shall be in accordance with Sections 13145 and 13146.No city,county,city and county, or district shall adopt or enforce any building ordinance or local rule or regulation relating to the subject of fire and life safety in large family day care homes which is inconsistent with those standards adopted by the State Fire Marshal,except to the extent the building ordinance or local rule or regulation applies to single-family residences in which day care is not provided. (e)No later than April 1,1984,the State Fire Marshal shall adopt the building standards required in subdivision(d)and any other regulations necessary to implement the provisions of this section. (Added by Stats.1983,Ch. 1233.) 1597.47.The provisions of this chapter shall not be construed to preclude any city,county, Applicability of single or other local public entity from placing restricts[probably should read"restrictions"]on family residential building heights,setback,or lot dimensions of a family day care facility as long as such restrictions restrictions are identical to those applied to other single-family residences.The provisions of this chapter shall notbe construed to preclude the application to a family day care facility 279 MiseeRaneousPlanning-RetatedLm. ' for children of any local ordinance which deals with health and safety,building standards, environmental impact standards,or any other matter within the jurisdiction of alocal public entity.The provisions of this chapter also shall not be construed to prohibit or restrict the abatement of nuisances by a city,county,or city and county.However,such ordinance or J nuisance abatementshall notdistinguish family day care facilities from other single-family dwellings,except as otherwise provided in this chapter. (Added by Stars.1983,Ch.1233.) Repealer 1597.65.This chapter shall remain in effect only until July 1,°"' 1993,and as of that date is repealed,unless a later enacted statute,which is chaptered before July 1,*** 1993, deletes or extends that date. (Renumbered and amended by Stars.1983,Ch.323. Urgency; effective July 21, 1983;Amended by Srars.1989,Ch. 70. Urgency;effective June 29,1989.) J 280 CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM TO: City Manager and City Council FROM: Assistant City Manager/Director of Community Development DATE: April 28, 1994 SUBJECT: Letter from Mr. Jack Sadler It should be noted that I did have a conversation with Mr. Sadler. I did state that the proposed ordinance establishing a permit procedure for large family day care centers was my recommendation and, therefore, my ordinance. I always take responsibility for any material leaving this department. In response to the allegations made by Mr. Sadler about statements by the planning commissioners, the minutes reflect accurately what was stated. Mr. Sadler was not at the hearing; in reading the minutes, which are included, it is clear that the commission was stating that they are in favor of responsible child care centers. They are responsible when properly regulated as setforth in the recommended ordinance. I should be noted that same evening the commission unanimously approved a conditional use permit for a 35 child day care center. No one is opposed to child care; we are seeking child care that is neighborhood friendly. RAMON A. DIAZ ASSISTANT CITY AGER, DIRECTOR OF CO UNITY DEVELOPMENT/PLANNING /tm Attachment MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 Chairman Spiegel said that he lived on Bel Air, but not within 300 feet of the proposal, and indicated the only concern he had, and he had been familiar with the Living Desert for many years and respected the operation and Ms . Sausman, but he would not like to see that structure turned into a low cost housing situation. This property was there long before there was a City of Palm Desert and at one time there were a few other units in the area that were destroyed by fire. He noted that the structure was not built the way the rest of the area had been built because it was there first and working with the existing building, it might be possible to crowd a lot of people into a triplex and that would be disconcerting to the neighbors . He also agreed that the height limit was important. Mr. Diaz stated that the current zoning ordinance would not permit expansion of the triplex; it was a legal nonconforming use. Any new construction would have to meet the current R-1 regulations which have a maximum height of 18 feet; 15 feet was approved at the staff level--15 to 18 feet went to architectural commission for approval. Ms . Sausman spoke up from the audience and stated that there would not be a noticeable change in the use of the property and they would be a sensitive neighbor. Action:. Moved by Commissioner Beaty, seconded by Commissioner Jonathan, approving the findings as presented by staff. Carried 3-0. Moved by Commissioner Beaty, seconded by Commissioner Jonathan, adopting Planning Commission Resolution No. 1636, approving PM 27895, VAR 93-6 and ADJ 93-10, subject to conditions. Carried 3-0. B. Case No. ZOA 94-1 - CITY OF PALM DESERT, Applicant Request for amendment to Sections 25 . 04 .240, 25. 14 . 020, 25 . 16 . 020, 25 . 18 . 020, 25 .20 . 020, 25.22.020, and 25 .24 .020 of the Municipal Code and adding sections 25 . 04 . 307, 25 . 14 .035, 25. 15 . 023, 25 . 15.025, 25 . 16 .035, 25 . 18 .035, 25.20 . 035, 25 .22 . 035, 25.24.027I and 25 . 72. 015 and Chapter 25 . 72A to the Municipal Code, regarding day nurseries and family day care homes . 5 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 Mr. Diaz stated that this was a zoning ordinance amendment to establish a large family day care permit procedure. The hearing after this ordinance was for a conditional use permit and they should not confuse the two. The State of California years ago established the number six for residential care facilities. What was happening was that cities throughout the state were requiring a conditional use permit for residential care facilities that would include day care centers, rehabilitation centers, halfway houses, etc. Noting that these types of facilities were necessary in residential areas, the State of California said that as long as these uses were to house six people or less, it would be consistent with the single family residential zone and that no additional requirements could be placed on these facilities that would not normally be placed on the R-1 zone. Now the State of California amended that regulation as it related to day care centers and defined large family day care centers as taking care of more than six, but less than 13 and a requirement that the family must reside there because one problem that was happening was that people were buying single family residential units, not living in them, and using them for day care centers without having to go through a hearing process . The state determined that they would have to live there, one of the children had to be theirs, and there would be a hearing permit procedure, but the hearing permit procedure was meaningless because of the limitations placed on city staffs in terms of conditions that could be placed on the facilities if the neighbors had concerns. He would have preferred the state to amend the number six to 12. The ordinance was before the commission and they might hear testimony that certain parts of it are inconsistent with state law; staff's recommendation was that this matter be passed along to city council and that those inconsistencies, if there were inconsistencies, be investigated by the city attorney. He said there was one situation now with an individual running a large day care center and concerns had been voiced by one person in the neighborhood about that facility. Those people have their right to a hearing and this situation had been going on for many months. Some of the key features of this ordinance was the definition of family day care home on page 2 of the ordinance, which specified seven to 12 children per day. The reason for emphasizing the per day was because one problem they had was they felt the state legislation specified 12 children at any one time, which could mean a constant traffic flow. As far as staff was concerned the reason the state passed this legislation was because these uses, were consistent with single family residential uses, which meant single family 6 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 traffic patterns. Therefore, the seven to 12 per day should be the limitation. There could be 12 kids on Monday, a different 12 kids on Tuesday, and staff did not have a problem with that--the problem was with 12 kids from 8 :00 a.m. to 12 :00 p.m. and another 12 kids from 12:00 p.m. to 3 : 00 p.m. and another 12 kids from 3 :00 P.M. to 5 :30 P.M. That would mean 72 vehicle trips per day in the R-1 area. They also limited the hours of operation from Mondays through Fridays from 6 : 00 a.m. to 7 :00 p.m. The outdoor play should read before 9 :00 a.m. or after 5 : 30 p.m. The reason they were limiting it to Monday through Friday was because it was in a residential area; the purpose of the day care facilities and ordinances was to provide day care in a single family residential area. But the city could not have a conditional use permit for seven to 12, therefore they would be limiting the hours of operation to Monday through Friday. The hearing process was spelled out--it would be before the commission and from staff ' s standpoint, day care facilities are needed and the concern was not for the provision of day care facilities, but with the folks in the neighborhoods having the right to determine what was going on in their neighborhood and having some say. Staff recommended that commission adopt a resolution recommending to city council approval of the ordinance. Commissioner Jonathan noted that on page 8 item E was to read before 9 : 00 a.m. and after 5 :30 p.m. ; Mr. Diaz concurred. Chairman Spiegel indicated that Mr. Diaz went through the definition on page 2 and it said that for periods of less than 24 hours per day, yet when going to page 8 under E it said 6 :00 a.m. to 7 :00 p.m. , which was considerably less than 24 hours. Mr. Diaz concurred and stated that the commission could expand the hours if they wanted. Chairman Spiegel asked if the commission could limit what the state said; Mr. Diaz replied yes, noting that there would be some testimony that there is a disagreement under E that the state may limit it to 23 hours . In other words, the city would have to allow 23 hours. Chairman Spiegel noted that on page 10 under Violation, Public Nuisance and Misdemeanor, it stated that operation of a large family day care home pursuant to this chapter was a privilege, not a right. He asked if that was from the city or the state. Mr. Diaz replied the city. Mr. Diaz indicated the importance of the conditional use permit provision; with this permit, the commission could not look at the required findings for a conditional use permit; this was a totally separate permit and anything over 12 required a conditional use permit and a hearing would be held. Chairman Spiegel asked if someone were to come along in an R-1 area 7 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 and want to open up a day care center for 12 children or less, if it would come before the planning commission; Mr. Diaz said that the hearing process was spelled out and he believed it would. If it was a hearing before him as the zoning administrator and he rejected it, it would come to the planning commission on an appeal of his decision. He said he would go through it. He clarified that as part of that hearing he could require the use permit to be reviewed by the planning commission at a public hearing. The way that would probably be implemented was if there was a hearing before the zoning administrator and a large number of people were objecting and the concerns could not be resolved, the matter would go before the commission. Otherwise, he could approve it as zoning administrator. Chairman Spiegel said he agreed with Commissioner Jonathan and noted there had been four or five facilities proposed in the last few years. Mr. Diaz said there were probably at the present time half a dozen large family day care centers with between seven and 12 operating within the city and they would be notified to come in for a permit. Commissioner Jonathan noted that the public notice under the procedure that was being recommended was only to homes within a 100 foot radius of the proposed large family day care; he said that would barely be one or two houses. Mr. Diaz said that if commission wished to expand that, they could. He indicated that it could be increased to 300 feet which was the standard noticing. Chairman Spiegel opened the public testimony and asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal. MS. DORIS MECHANICK, 45-935 Pawnee Road in Indian Wells, Coachella Valley Child Care Coordinator, the professional who helps the cities write these ordinances . She said that this was the first time she had seen Palm Desert' s ordinance and asked for a continuance. She felt this needed to be researched and some education done because of the semantics . What they were talking about was family child care homes. These were homes in which women, and their husbands in some cases, were earning a living taking care of children. The City of Palm Desert, as all the other nine cities in the area, have the child care homes by right under six. Child care homes, and it was not a center but a home, was licensed differently than a center and they are licensed from six to 12 and the family still resided in 8 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 the home and the mother was taking care of children other than their own. They didn' t have to have their own child in the home. There were a lot of things that were different than state licensing required. The home could be open for 23 hours . One of the things that was beneficial to child care homes was that it was in a small environment and children did well, particularly babies, in a small environment home and she did not see a problem if nurses in the evening couldn't get help for their children and being able to go a family child care home where the child was going to sleep, not play outside at night. The way the families earned their living was to have children, only 12 at a time, but there was a traffic problem that could be alleviated if they looked into it. There could only be 12, but if they had 12 from 7:00 a.m. to 3:00 p.m. and the parent picks up the child, they could have another 12 . Most didn't--they had a few in the evening and a few on the weekends . Child care centers were not open on the weekends or in the evenings, so family child care homes were very important for the working parent who works at supermarkets, hotels, and hospitals . Since most were unaware that there were 12 large family child care homes in Palm Desert other than the one that was a problem, she felt they would want to look at this and be a family friendly community where more large family child care homes would be encouraged where the play areas were in the back. She also objected to the time frame because in the summer it was very warm here and children could not play before 7 :00 a.m. , but workers could drill in the streets before 7 :00 a.m. , so allowing children to play before 9 :00 a.m. should be all right. If there was only three or four in the evening, they should also be allowed to play outside. There were a lot of things she felt needed to be looked at and she wanted to work with her staff, the city, and the city attorney to go through the process as they had done in other cities. She knew the city attorney worked with the City of Indio and their ordinance was friendlier. She said she knew the ordinance needed to be passed and knew the case at hand, but believed these needed to be looked over so that they could take care of the night service workers. She did not feel there was a need for a conditional use , permit to ask the whole neighborhood if it was all right. She wanted it opened for discussion and then a continuance. She was afraid the way the ordinance was written now would anger the child care community and rather than having bad press, they should go back and look at it 9 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 with staff and legal counsel to reach a conclusion that was more friendly to the provider and the homeowners around that provider. She felt the city should consider grandfathering the other providers in because they had been good neighbors and the difference between a family child care home and a child care center needed to be looked at. Chairman Spiegel asked if Ms . Mechanick had an opportunity to discuss this with the planning department or anyone else; Ms . Mechanick replied no. Commissioner Jonathan asked Ms . Mechanick to describe her professional position. Ms . Mechanick explained that she was the child care coordinator for the Coachella Valley (Riverside County Office of Education) and her background was child development for 30 years. She teaches child development at the college and she was president of a corporation of that franchise child care centers, a center director, and worked with family child care homes as a program specialist. Commissioner Jonathan asked if she was working right now for the county to promote child care facilities in the Coachella Valley; she said that was correct and she worked with the City of Indio on their ordinance and the City of La Quints. Commissioner Jonathan asked if she found this ordinance to be restrictive; Ms . Mechanick said yes'. Commissioner Jonathan asked if she was notified of this proposal; Ms . Mechanick said she had talked about the case with Mr. Diaz, but did not know this was going before council until she came to speak in behalf and in favor of the next agenda item. Chairman Spiegel asked if all cities in the Coachella Valley would be having such an ordinance (i.e. Indian Wells) . Ms . Mechanick said she did not believe there were any family child care homes in Indian Wells, but if there were they would have to have an ordinance. Mr. Diaz stated that it was not a matter of the cities needing an ordinance because they have such facilities . By law they have to have an ordinance to allow such facilities. He did not know what the neighbors to the east or west were doing, but they had to adopt some kind of an ordinance by state law. Chairman Spiegel closed the public testimony. Mr. Diaz said that the city did have a complaint against one facility, that was correct, but the fact that the city had not had any complaints against the others did not mean that 10 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 everyone in the neighborhood was happy with them. If they were, then there wouldn't be any problems at the hearing. There could be a situation where a neighbor says, "how can they do this?" and the operator says they are allowed to by state law and if you read the state law it looks like they can. If there is no problem, then the neighbors have the right to be heard. He felt these facilities were necessary, but did not want to sneak them in. As far as the number of children on any one day and allowing traffic in and out, if a person lived in a single family neighborhood in a cul-de- sac and kids were picked up at 11:00 p.m. or 12:00 a.m. every night of every day or dropped off and playing at 7 :00 a.m. could be a problem. In response to the example of the street repair going on, he noted that once the street was repaired the activity was done; once they allowed the permit it would go on forever. All he was saying was that the folks in those neighborhoods should have a chance to address the concerns they might have as far as these facilities are concerned. He felt hospitals should provide facilities for nurses and other that work at hospitals, the reason they didn't was not because they didn't have the room, but was because they did not want to and they should provide those for their employees. Hotels should also provide these facilities. The next resort hotel coming into Palm Desert would be required to provide them. Day care centers were going into other commercial facilities that were being developed, so employers had an obligation. His concern was that folks that lived in single family neighborhoods who would not have any problem with kids being dropped off in the morning and picked up at 6 :00 p.m. or 7 :00 p.m. it was a single family area would be disturbed once it was opened up to 11:30 p.m. or 23 hours per day, which was getting away from the single family area. All he was saying was that there should be a hearing and a process . He recommended that the ordinance go on to the city council and a meeting could be held with Ms . Mechanick and the city attorney to discuss her concerns. If there are significant changes and differences, this would come back to 'the planning commission. From staff' s standpoint, he wanted the ordinance to be as strict as possible. He suggested passing this onto council with the concern of inconsistencies brought up and they would be addressed at the council meeting. The matter would be sent back to the commission for comment if there were significant changes . He did not believe they were incorrect and they had the right to have this ordinance the way it is. Commissioner Jonathan asked with this ordinance if anyone could go into any residential neighborhood if they were in 11 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 compliance with the standards set forth in the ordinance, they must be granted the right to operate a large home day care facility; Mr. Diaz said that the way the state ordinance was written, yes. There was virtually no way it could be denied. That was the reason for the limitations regarding hours of operation, the playing hours, and picking up of children. Commissioner Jonathan felt this was in conflict with the city's own land use designation in the zoning ordinance, the definition of residential, and this was carrying on a commercial activity. Mr. Diaz agreed that it was in conflict, but the State of California said that this was consistent with the R-1 zone and cities are "out of luck" . When the number was six he supported that ordinance, but when going from seven to 12 and 12 at any one time and traffic in and out, that was a different situation. It was not consistent with the residential use. It did not mean it shouldn't go in there, but that it should require a conditional use permit. and the neighbors should voice their concerns and what they would like to see or not see. Commissioner Jonathan stated that he was very family oriented and he was concerned about child care in our community, but this was the wrong way to go about it. He was in favor of child care, but responsible child care. He felt people bought their homes in neighborhoods and had the right to expect normal kinds of neighborhoods rather than a commercial activity next door or across the street from them. He was reluctant to send the ordinance along without comment. He would want to send it to council with: 1) the recommendation that the noticing requirement be expanded from 100 feet to at least 300 feet, if not more; 2) he saw that once the facility was allowed, it made sense to allow an earlier play time rather than before 9 :00 a.m. ; and 3) he would urge the council to find a way to get around this . ' He wanted to find a more responsible way of encouraging and developing child care in our community, but not at the cost of infringing on residentially zoned and used parts of our city. Chairman Spiegel agreed with Commissioner Jonathan; he wondered whether the child care center at COD was open 23 hours per day to take care of children for nurses and people that worked in the hotel industry. He knew it was a teaching kind of function over there, but it was a day care center and to his knowledge it was not open in the evenings. Ms . Mechanick said sometimes they were depending on student needs. Chairman Spiegel felt it would be wrong to get away from the conditional use permit process for any kind of facility that was going into an R-1 area that was designated 12 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 for single family homes because it was not really a single family home any more and because it took away the opportunity of the neighbors to become involved if a problem developed. He agreed with Commissioner Jonathan. He asked for a motion. Mr. Diaz stated that commission could revise the notice area to 300 feet and the play times to not before 7 :00 a.m. or after 5:30 p.m. Commissioner Jonathan asked that staff also pass along an encouragement to council to see a way to at least mitigate the negative impact this could have on existing and future residential developments and neighborhoods . Mr. Diaz said that would be reflected in the minutes and the council would get a copy. Action: Moved by Commissioner Jonathan, seconded by Commissioner Beaty, approving the findings as presented by staff. Carried 3-0. Moved by Commissioner Jonathan, seconded by Commissioner Beaty, adopting Planning Commission Resolution No. 1637 , recommending to city council. approval of ZOA 94-1 as amended. Carried 3-0. C. Case No. CUP 93-10 - DANA AND MELISSA CARNES, Applicant Request for approval of a children' s day care center for service up to 30 children at 74-015 Aster Drive in the R- 1 zone. Mr. Winklepleck stated that some items from the previous case would apply to this request. This family day care center would provide up to 30 children between the ages of 3 and 5 at any one time. Included was a pamphlet given to staff from the facility that explained how they operated. The hours of operation would be between 9 : 00 a.m. and 4:00 p.m. The applicant provided staff a list of neighbors that had no objection to this center. Staff used the applicable conditions from the previous case including the hours of operation. He added a condition that the day care facility would be limited to a maximum of 30 children at any one time. Staff recommended approval and noted that no negative. phone calls or letters had been received. Chairman Spiegel asked for clarification that this was different because this was 30 children, not 12, and would 13 April 25th, 1994 �f 49D RECEIVEL � C� APR 2 6 1994 HAL Mr Bruce Altman aALMCIT SSMANAGFP CITY MANAGER City of Palm Desert, California ` Dear Mr Altman: Attached please find copy of page 12 of the PLANNING COMMISSION MEETING of 2-1-94. I have highlighted for you, statements made at that meeting, by Commission members. Statements that seem, at the very least, questionable. And since I am involved, indirectly, with the profession that the statements attack - those statements are personally detrimental and inflammatory. Statements that could be viewed as slanderous. My wife owns and operates a Family Day Car Center, in our personal home. I am on record as one of her Assistants, but I have a very limited role of involvement. She has a full time Assistant, collects and pays Unemployment Insurance, Social Security, etc. Last Thursday, I phoned Mr Ray Diaz, Palm Desert City Planner, to discuss my concerns and objections as to the statements attributed to Commissioner JOSEPH and Commissioner/Chairman SPIEGEL as recorded in meeting minutes attached. I wanted to express my shock that such statements could be made, by City appoint- ees, in the presence of City officials - especially in an open, public forum. I began my statements to Mr Diaz, that there were many things in the meeting minutes concerning the proposed ordinance, that many people and organizations object to, but that I was calling expressly and only to discuss those highlighted statements. Mr Diaz took an immediate arrogent and defensive posture - making comments like - "I can't understand anyone objecting to MY ordinance" - "nobody understands MY intentions" - "within MY authority", etc. He repeated several times that it was HIS ordinance, what HE was trying to do, and finally insinuating that I just was not capable of understanding. He was right about that - here, all this time, my understanding was that ordinances were established, thru due process of law, for the good of the majority of the citizens. I never did understand that they could be the private property of the City Planner! I repeatedly told Mr Diaz that my phone call was NOT intended to discuss anything other than those statements made by Commission members that I considered objectionable and personal attacks on the Home Child Care profession as well as direct attacks on our business, my wife and her Assistant. Statements that are completely contrary to published, documented, first hand reports from many, many sources - governmental and private sector. That apparently, considering..the statements made, the local Planning Commission knows more than all the "experts". Page 1 i 4-25-94 SADLER ltr. Finally, obviously tired of me, Mr Diaz totally denied that such state- ments were even made, that something was lost in the translation, and that the statements, if made, did not refer to the industry -(he couldn't, however explain to me what they did refer to.) - then said that he wouln't discuss any further, wouldn't change his position - said "GOOD-BYE" 5 hung up. The conversation certainly didn't go the way that I had expected. I expected Mr Diaz to express some sort pf shock, or remorse, or at least make an attempt, however fee ble, to m'y concerns and offer to look into the problem. Instead, I got denials, complacency, and dis-interest. THIS LETTER IS INTENDED AS A FORMAL CITIZENS COMPLAINT, directed at and against MR RAY DIAZ, his office, staff and commissioners, for his rude, self-serving, and-.self=seeking attitude:and7domments-made in-uur-phone conversation. This letter is also intended to request you read the comments made, investigate their origin to determine the "thinking" behind such remarks. I would appreciate your immediate involvement in this matter, and a written report back to me as to your findings. Thank you, Very truly yours, OSE 7 -780 Krug Ave. alm Desert, CA 92260 (619) 341-8424 BUSINESS NAME: Judy's Playhouse cc: Mr Roy Wilson cc: Ms Jean Benson cc: Dept of Social Services - Riverside cc: State of California - Dept. of Justice MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 compliance with the standards set forth in the ordinance, they must be granted the right to operate a large home day care facility; Mr. Diaz said that the way the state ordinance was written, yes. There was virtually no way it could be denied. That was the reason for the limitations regarding hours of operation, the playing hours, and picking up of children. Commissioner Jonathan felt this was in conflict with the city's own land. use designation in the zoning ordinance, the definition of residential, and this was carrying on a commercial activity. Mr. Diaz agreed that it was in conflict, but the State of California said that this was consistent with the R-1 zone and cities are "out of luck" . When the number was six he supported that ordinance, but when going from seven to 12 and 12 at any one time and traffic in and out, that was a different situation. It was not consistent with the residential use. It did not mean it shouldn't go in there, but that it should require a conditional use permit and the neighbors should voice their concerns and what they would like to see or not see. ommissioner Jonathan stated that he was very family .oriented ;;and he was concerned about child care in our community, but his was the wrong.,way.;to go about it. He was in favor of ild care, but jieaponsible child care. He felt people bought their homes in neighborhoods and had the right to expect normal kinds of neighborhoods rather than a commercial activity next door or across the street from them. He was reluctant to send the ordinance along without comment. He would want to send it to council with: 1) the recommendation that the noticing requirement be expanded from 100 feet to at least 300 feet, if not more; 2) he saw that once the facility was allowed, it made sense to allow an earlier play time rather . than before 9:00 a.m. ,. and 3) he would urge the council to find a way to get around this . He wanted to find a more responsible way of encouraging and developing child care in our community, but not at the cost of infringing on residentially zoned and used parts of our city. chairman Spiegel agreed with Commissioner Jonathan; he wondered whether the child care center at COD was open 23 hours per day to take care of children for nurses and people that worked in the hotel industry. He knew it was a teaching kind of function over there, but it was a day care center and to his knowledge it was not open in the evenings. Ms. Mechanick said sometimes they were depending on student needs . Chairman Spiegel felt it would be wrong to get away from the conditional use permit process for any kind of facility that was. going into an R-1 area that was designated 12 _`!„*hCF7'[}"�,i�.l i' �`S.Y{ I rrl W+�{'�+1YA°{,Yi=wt�,r u lY�i ♦ry ,^r g �Y e`L f �t �Y WA 2 ; S 1.7, ;ar"�zr,a S u z'�e 04 j+�.....•. a• '� �..c �� � t # � ' �;, rig,o��G✓�„�Il�m-' ,./1�r1,�i�:r..__ ; ��ia��,���/2�cT.�..><a � " ��i�:�.��;gt��. F _/ t 11'1 , • r N � `t ,4 �,*. ' r .,�(��' ® � '�jy /�V' j✓1—T �ir._ l - �' � •1 =dt���..t pY 7r to ; + T"�T'iT^.'^'•F•'^',m"i----+—`T'"--•�—'r--�— -'nr •..--•---, �_.._.� Lr rd', dt�`i !4t'• �rlT`�r�w �v Y r r1 'tv 0.1 �,, ' , a -ems^^^---'T---•-- •� X t: Air '}"'q � " �Ns ' t .i + '1^' �•'"-1�� �' D .. �- f r Y ( Y �_ y�w1 +tt-a DECEIVE® APR 2 G 1994 April 25 , 1994 COMMUNITY DEVELOPMENT DEPARTMEW WY Of PALM DESERT Mr. Ray Diaz Director of Planning City of Palm Desert Dear Mr. Diaz: Per our conversation of April 21st, I am unable to attend the meeting this week. I can, however, make my position in this matter very clear. I am not opposed to the existence of daycare centers in residential areas. I am, however, strongly opposed to the manner in which Ms. Reed continues to operate her business. As I have stated for the record, the operation of her daycare creates a visual and noise nuisance, because the play area is located in the front yard. The construction of a block wall around the play area, or moving the play area to the backyard would satisfy my concerns. As I stated in my letter of April 20, 1994, (attached) the existence of the daycare center, as it is currently operated, has devalued my property and effected the peace and tranquillity of the neighborhood. I suggest that failure to regulate this type of business will have serious ramifications for all residents of Palm Desert. ' incerely, Don Wallquist 74-397 Myrsine Ave. Palm Desert, Ca 92260 ( 619 ) 346-3129 cc: Jean Benson RECEIVE® APR 21 1994 COMMUNITY DEVELOPMENT DEPARTMENT CITY Of PALM DESERT April 20, 1993 Mr. Ray Diaz Director of Planning City of Palm Desert Dear Mr. Diaz: For nearly two years I have been subjected to a nuisance that is yet to be resolved. As I write this letter, I have to close my windows to have some peace! As I leave my house, I must view a play area littered with toys, swimming pools, a slide, a toy "boat" , and towels and blankets hung on a fence built without a permit. I have cooperated with the City and have been extremely patient, but Ms. Reed continues to operate her day care center. I was told the matter would be heard in March, then in April . I have serious doubts that this would have been allowed to occur in other areas of Palm Desert and have given up "helping" the city. All I have asked is that this mess be moved into the backyard! Ms. Reed should have been cited for this long ago, and this put to a stop. My property has been devalued, and my peace and tranquility have been effected. I have been threatened for giving a declaration for the city, I have been called a "child pornographer" for taking pictures which were requested and used by the city in this matter, and yet Ms. Reed continues to operate her business with impunity. I can only conclude that this type of nuisance can exist in Palm Desert, whether it's across the street from me, you, members of the City Council , or in an "up-scale" neighborhood. As I indicated more than a year ago, Codes and Ordinances are enacted to protect property owners, citizens, and the quality of life we expect when we live in Palm Desert. I feel that all residents should realize that this could happen to them and will , if the City allows this type of flagrant disregard of - "property eights: For the record, please advise me what action, if any , will be taken and why she is allowed to leave a large toy boat, and other large toys in her front yard when I have been told I cannot leave my boat by the side of my house. If a code is to be enforced then it should be enforced equally. I have been required to rent storage at the rate of $62 per month to comply with the code because of a complaint by Ms. Reed. This is not fair and is disparate treatment. ' incerely, � LDDon Wallquist\/\ 74-397 Myrsine Ave. ZI Palm Desert, Ca. 92260 (619 ) 346-3129 SENT BY: 3-10-94 ;11 :40AM ;BEST, BEST',& KRIEGER� 3417098;4 1/ 4 BEST, BEST & KRIEr,1ER ..MTYOMNV WFIY WM•M../Y4YY CbOO..TiMli 1-'A��Rs un Mlo 1170U pW w F oR1VE. SUITE 317 t,14) 069-A514 R)VERSIOE MAT OFFICE BOX ISSE 1714) 686.1490 peNOMO MIRA9 L, CALIFORNIA 9227o rHLM 6rpIMCp TE4E1141MC 0.I9) 668-2611 loin) 276.7764 TELECOPILR (619) 240-06WO b'8C87XIL8 T1RUOMISSION COVER MEET -AX J (619) 340-6690 DATE. March 10, '1994 To: PHIL DRELL, COMMUNITY DEVELOPMENT DEFT- city of palm Desert FAX NUMB&E: P.D. Bldg, FRO',. MAKSHALL RUDOLpa, Deputy City Attorney DOCUMT DESCRIPTION: changes pagescatedof day-care Ordinance with RN NO. OF PAGNS (INCLUDING COVER SHEIT) . 4 these pages contain the only portions of cOD®dENTa As We discussed, the original ordinance that were 6ehas been The to restroom facilities on Pag ua a on pages 8 and 10 denoted by the strikeout. New Lang 4 please call it I is denoted by the redlining (shading) . can be of further assistance. TRESS 7=9D DOCUMENTS ARE INTENDED FoR THE 968 OF THE INDIVIDUAL OR ENTITY TO wyieH IT 16 ADDRROSEDIP AND NAY CONTAIN INFORMATION TR]►T PRIVILEGED AND CONPIDRNT"L. in TF XOU ARE NOT THS INTENDED T. OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE RECIPIEN THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY ME85AGE TO DISSEMINATION, DTSTRIBU EC' OR COPYING OF THIS COMMMICATToN IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERRDR, PLEASE NOTIFY US IMMEDIATELY By TELEPHONE AND RETURN HE ORIGINAL jMSSAGE To US AT THE ABOVE ADDRESS VIA THE U.S. pOSTAT. SERVICE. THANK YOU. If there are any problems receiving this FAX transmittal, plcaa® call Marshall S. Rudolph, at (619) 568-2611. R6A3G51L CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT TRANSMITTAL LETTER I. TO: Honorable Mayor and City Council II . REQUEST: Approval of a zoning ordinance amendment establishing "Large Family Day Care" permits and setting a permit fee. III . APPLICANT: City of Palm Desert IV. CASE NO: ZOA 94-1 V. DATE: March 10, 1994 VI. CONTENTS: A. Staff Recommendation B. Discussion C. Draft Ordinance No. and Resolution No. D. Planning Commission Minutes dated February 1, 1994 E. Planning Commission Resolution No. 1637 F. Planning Commission Staff Report dated February 1, 1994 G. Related exhibits ---------------------------------------------------------------------- A. STAFF RECOMMENDATION: Waive further reading and pass to second reading Ordinance No. establishing large family day care permits; waive further reading and adopt Resolution No. setting the amount of the application fee for large family daycare use permits. B. DISCUSSION: Revisions in state law related to day care facilities necessitates the establishment of a permit procedure by the city. The new permit covers "large family day care homes" which have been defined by state law as a residence providing day care for 7 to 12 children under the age of 10. This permit process should not be confused with the "conditional use permit" (CUP) procedure. This is a distinct permit and the required findings for approval of a CUP do not, or rather can not, be applied in this case. The state has limited the discretion that a city has in reviewing these permits . The ordinance as written attempts to address the usual issues concerning these facilities. - CITY COUNCIL ZOA 94-1 MARCH 10, 1994 Planning Commission adopted Resolution No. 1637 recommending to city council approval of ZOA 94-1 subject to the legal notification area being expanded to a 300 foot radius and no outside play time before 7 : 00 a.m. or after 5 :30 p.m. . Reviewed and Approved by: /tm 2 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25 .04 .240, 25 . 14 .020, 25. 16 .020, 25. 18.020, 25 . 20 . 020, 25.22 .020, AND 25.24 .020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25 .04 . 307, 25 . 14 . 035, 25 . 15 . 023, 25 . 15.025, 25 . 16 .035, 25 . 18 . 035, 25 .20 . 035, 25 .22 .035, 25 .24 . 027, AND 25 .72 . 015 AND CHAPTER 25 .72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. CASE NO. ZOA 94-1 WHEREAS, state law distinguishes between "day care centers" and "family day care homes" ; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities . WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider' s own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3 . 6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes" ; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the city and also ORDINANCE NO. authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the City Council recognizes the growing need for child day care facilities within the city and the preference of some parents for family day care homes; and WHEREAS, the City Council also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the City Council of the City of Palm Desert, California, ORDAINS as follows : Section 1 . That Section 25 . 04 .240 of the Municipal Code is amended to read as follows : "25 .04 .240 Day nursery. "Day nursery" (including preschool and nursery schools) means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care' of children at any location other than their normal place of residence. " Section 2 . That Section 25 . 04 . 307 is hereby added to the Municipal Code and will read as follows : 1125 .04 .307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider's own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, 2 ORDINANCE NO. including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations . The foregoing definitions shall be construed in a manner consistent with Chapter 3.4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3 . That Section 25 . 14 . 020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I . Small family day care homes . " Section 4 . That Section 25 . 14 . 035 is hereby added to the Municipal Code and will read as follows : 1125 . 14 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this code. " Section 5 . That Section 25 . 15 . 023 is hereby added to the Municipal Code as follows : "25 . 15 .023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes . " Section 6 . That Section 25 . 15.025 is hereby added to the Municipal Code to read as follows : "25 . 15 .025 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this code. " Section 7 . That Section 25. 16 .020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows : 3 ORDINANCE NO. "H. Small family day care homes . " Section 8 . That Section 25 . 16 . 035 is hereby added to the Municipal Code and will read as follows : 1125. 16 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 9 . That Section 25 . 18 . 020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows : "I . Small family day care homes. " Section 10 . That Section 25. 18 .035 is hereby added to the Municipal Code and will read as follows: 1125 . 18.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this code. " Section 11 . That Section 25 .20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows : "G. Small family day care homes . " Section 12 . That Section 25. 20 . 035 is hereby added to the Municipal Code and will read as follows : "25 .20.035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 13 . That Section 25 .22 . 020 of the Municipal Code is hereby amended to read as follows : "25 .22 .020 Permitted uses . The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes . " Section 14 . That Section 25 .22 . 035 is hereby added to the Municipal Code and will read as follows: 4 ORDINANCE NO. "25.22 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this code. " Section 15. That Section 25.24 . 020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows : "D. Small family day care homes . " Section 16 . That Section 25 .24 . 027 is hereby added to the Municipal Code and will read as follows: 1125 .24 .027 Large family day care homes. Large . family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 17 . That Section 25 .72 . 015 is hereby added to the Municipal Code and will read as follows : "25 .72 .015 Large family day care homes . The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes . Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this code. " Section 18 . That Chapter 25 .72A is hereby added to the Municipal Code and will read as follows : "Chapter 25 .72A LARGE FAMILY DAY CARE HOME USE PERMITS Sections: 25. 72A.010 Purpose. 25. 72A.020 Application process . 25 .72A.030 Application fee. 25 .72A.040 Notice to property owners . 25 .72A.050 Decision by the zoning administrator. 25 . 72A.060 Appeal of decision. 25 .72A.070 Expiration of permit. 25 .72A.080 Review of permit; suspension or revocation. 25 .72A.090 Pre-existing family day care homes . 25 .72A. 100 Violation; public nuisance and misdemeanor. 5 ORDINANCE NO. 25 .72A.010 Purpose. The City Council adopts this Chapter pursuant to California Health & Safety Code Section 1597 .46 . Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentrations, traffic control, parking, and noise control relating to large family day care homes . Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and requirements . Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services . 25 .72A.020 Application process . Applications for use permits to operate a large family day care home shall be made to the city's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant' s own children under 10 years of age; (b) number of employees; (c) hours of operation and outdoor playtime; (d) state license number. (e) signatures of the legal owners of the real property proposed to be used as a large family day care home, consenting to such use of their property. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan ( 8 1/2 x 1111 ) showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, and fencing; distance to property line; 6 ORDINANCE NO. parking areas and number of spaces both on-site and off- site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extinguishers, restroom facilities, and smoke detectors . (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas . 25 .72A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council . Said fee shall not exceed the City's cost of administering the review and permit process. 25 .72A.040 Notice to property owners. Not less than 10 days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 300 foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than . three hundred (300) feet in all directions from another large family day care home and no closer than six hundred (600) feet in linear feet along a fronting street from another large family day care home. In addition, no residential property in the City shall be bounded on more than one ( 1) side by a large family day care home. (b) Traffic control . The traffic circulation plan shall be designed to diminish traffic safety problems. Residences locate don arterial streets (as shown on the general plan circulation map) must provide a drop-off/ pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in 7 ORDINANCE NO. neighborhoods already identified as having traffic congestion problems. (c) Parking. All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on- street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements . (d) Noise control . Operation of the facility shall comply with all provisions of Chapter 9 .24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices and restrictions on outside play hours, location of play areas, and placement of outdoor play equipment. (e) Hours of operation. Large family day care homes shall operate only between the hours of 6 : 00 a.m. and 7 : 00 p.m. , Monday through Friday. No outdoor play is allowed before 7 : 00 a.m. or after 5 : 30 p.m. ( f) Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant' s home. (g) Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. (h) Contact person. The current name(s) and telephone number(s) of the applicant and all other operators, if any, of the family day care home shall be on file with the department of community development at all times. ( i) State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. ( j ) Building and Fire Code Compliance. Consistent with Section 1597 .46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single- family residences, and with such additional standards as 8 ORDINANCE NO. the State Fire Marshal from time to time adopt pursuant to Section 1597 .46 (d) of the Health and Safety Code to promote the fire and life safety of children in family day care homes. (See Title 22 of the California Code of Regulations . ) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing building and fire code provisions . (k) Smoking Restricted. Consistent with Section 1596 .795 of the Health and Safety Code, smoking of tobacco and other substances--whether in pipe, cigar, or cigarette form-- shall not be allowed in the applicant 's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. (1) Single-family Zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings . (m) Consent of Property Owner. No use permit shall be issued unless the owner(s) of the real property proposed to be used as a large family day care home consents in writing thereto. 25 .72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning . commission. The planning commission' s decision shall be final unless the matter is called up for review by the City Council . The appellant shall pay the City' s costs, if any, of processing and conducting the appeal . The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City shall deposit said amount with the City before the City will process the request for an appeal . If at the end of the appeal, the City' s actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City' s costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 9 ORDINANCE NO. 25 .72A.070 Expiration of permit. If a large family day care home possessing a use permit ceases to operate for a period of greater than one hundred and eighty ( 180) consecutive days, then its use permit shall be considered null and void. 25 .72A.080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25. 72A. 050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6 ) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the planning commission may suspend or revoke the permit or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter based on findings derived from testimony and evidence presented at the public hearing. 25.72A.090 Pre-existing family day care homes . Any family day care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such homes may continue to operate during the City's processing of their application(s) . Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25 . 72A. 100 . " 25 .72A. 100 Violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in this City without a valid use permit as required by this Chapter is both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8 .20 of this code and any other applicable provision of state or local law. 10 ORDINANCE NO. Section 19 . In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this day of , 1994, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: S. ROY WILSON, Mayor ATTEST: SHEILA R. GILLIGAN City Clerk City of Palm Desert, California 11 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, SETTING THE AMOUNT OF THE APPLICATION FEE FOR LARGE FAMILY DAY CARE USE PERMITS. WHEREAS, the City Council is considering adoption of an ordinance that would allow large family day care homes to operate in residential districts of the City subject to a use permit; and WHEREAS, is approved, the ordinance under consideration would, among other things, establish an application fee to cover the City' s direct cost of reviewing and processing applications for large family day care home use permits, in an amount to be set by resolution of the council . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows: Section 1 . Based on data supplied by the City's department of community development, the City Council finds and determines that the City' s estimated costs of reviewing and processing an application for a large family day care home is $ Section 2 . The Council hereby sets the application fee for large family day care use permits as $ per application, to take effect simultaneously with an ordinance of the City Council establishing such a fee. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert City Council, held on this , day of , 1994, by the following vote, to wit: AYES : NOES : ABSENT: ABSTAIN: S. ROY WILSON, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 Chairman Spiegel said that he lived on Bel Air, but not within 300 feet of the proposal, and indicated the only concern he had, and he had been familiar with the Living Desert for many years and respected the operation and Ms . Sausman, but he would not like to see that structure turned into a low cost housing situation. This property was there long before there was a City of Palm Desert and at one time there were a few other units in the area that were destroyed by fire. He noted that the structure was not built the way the rest of the area had been built because it was there first and working with the existing building, it might be possible to crowd a lot of people into a triplex and that would be disconcerting to the neighbors . He also agreed that the height limit was important. Mr. Diaz stated that the current zoning ordinance would not permit expansion of the triplex; it was a legal nonconforming use. Any new construction would have to meet the current R-1 regulations which have a maximum height of 18 feet; 15 feet was approved at the staff level--15 to 18 feet went .to architectural commission for approval . Ms . Sausman spoke up from the audience and stated that there would not be a noticeable change in the use of the property and they would be a sensitive neighbor. Action: Moved by Commissioner Beaty, seconded by Commissioner Jonathan, approving the findings as presented by staff. Carried 3-0 . Moved by Commissioner Beaty, seconded by Commissioner Jonathan, adopting Planning Commission Resolution No. 1636, approving PM 27895, VAR 93-6 and ADJ 93-10, subject to conditions . Carried 3-0. B. Case No. ZOA 94-1 - CITY OF PALM DESERT, Applicant Request for amendment to Sections 25 . 04 .240, 25 . 14 . 020, 25 . 16 .020, 25. 18.020, 25 .20. 020, 25 .22 .020, and 25 .24 . 020 of the Municipal Code and adding sections 25 . 04 . 307, 25 . 14 . 035, 25. 15 . 023, 25. 15 . 025, 25 . 16 . 035, 25. 18 . 035, 25 .20 . 035, 25.22 . 035, 25.24 .027, and 25.72 . 015 and Chapter 25.72A to the Municipal Code, regarding day nurseries and family day care homes . 5 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 Mr. Diaz stated that this was a zoning ordinance amendment to establish a large family day care permit procedure. The hearing after this ordinance was for a conditional use permit and they should not confuse the two. The State of California years ago established the number six for residential care facilities. What was happening was that cities throughout the state were requiring a conditional use permit for residential care facilities that would include day care centers, rehabilitation centers, halfway houses, etc. Noting that these types of facilities were necessary in residential areas, the State of California said that as long as these uses were to house six people or less, it would be consistent with the single family residential zone and that no additional requirements could be placed. on these facilities that would not normally be placed on the R-1 zone. Now the State of California amended that regulation as it related to day care centers and defined large family day care centers as taking care of more than six, but less than 13 and a requirement that the family must reside there because one problem that was happening was that people were buying single family residential units, not living in them, and using them for day care centers without having to go through a hearing process. The state determined that they would have to live there, one of the children had to be theirs, and there would be a hearing permit procedure, but the hearing permit procedure was meaningless because of the limitations placed on city staffs in terms of conditions that could be placed on the facilities if the neighbors had concerns. He would have preferred the state to amend the number six to 12 . The ordinance was before the commission and they might hear testimony that certain parts of it are inconsistent with state law; staff' s recommendation was that this matter be passed along to city council and that those inconsistencies, if there were inconsistencies, be investigated by the city attorney. He said there was one situation now with an individual running a large day care center and concerns had been voiced by one person in the neighborhood about that facility. Those people have their right to a hearing and this situation had been going on for many months. Some of the key features of this ordinance was the definition of family day care home on page 2 of the ordinance, which specified seven to 12 children per day. The reason for emphasizing the per day was because one problem they had was they felt the state legislation specified 12 children. at any one time, which could mean a constant traffic flow. As far as staff was concerned the reason the state passed this legislation was because these uses were consistent with single family residential uses, which meant single family 6 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 traffic patterns. Therefore, the seven to 12 per day should be the limitation. There could be 12 kids on Monday, a different 12 kids on Tuesday, and staff did not have a problem with that--the problem was with 12 kids from 8:00 a.m. to 12 : 00 p.m. and another 12 kids from 12 : 00 p.m. to 3:00 p.m. and another 12 kids from 3:00 p.m. to 5 : 30 p.m. That would mean 72 vehicle trips per day in the R-1 area. They also limited the hours of operation from Mondays through Fridays from 6 : 00 a.m. to 7 :00 p.m. The outdoor play should read before 9 : 00 a.m. or after 5 : 30 p.m. The reason they were limiting it to Monday through Friday was because it was in a residential area; the purpose of the day care facilities and ordinances was to provide day care in a single family residential area. But the city could not have a conditional use permit for seven to 12, therefore they would be limiting the hours of operation to Monday through Friday. The hearing process was spelled out--it would be before the commission and from staff ' s standpoint, day care facilities are needed and the concern was not for the provision of day care facilities, but with the folks in the neighborhoods having the right to determine what was going on in their neighborhood and having some say. Staff recommended that commission adopt a resolution recommending to city council approval of the ordinance. Commissioner Jonathan noted that on page 8 item E was to read before 9 : 00 a.m. and after 5 : 30 p.m. ; Mr. Diaz concurred. Chairman Spiegel indicated that Mr. Diaz went through the definition on page 2 and it said that for periods of less than 24 hours per day, yet when going to page 8 under E it said 6 : 00 a.m. to 7 :00 p.m. , which was considerably less than 24 hours . Mr. Diaz concurred and stated that the commission could expand the hours if they wanted. Chairman Spiegel asked if the commission could limit what the state said; Mr. Diaz replied yes, noting that there would be some testimony that there is a disagreement under E that the state may limit it to 23 hours . In other words, the city would have to allow 23 hours . Chairman Spiegel noted that on page 10 under Violation, Public Nuisance and Misdemeanor, it stated that operation of a large family day care home pursuant to this chapter was a privilege, not a right. He asked if that was from the city or the state. Mr. Diaz replied the city. Mr. Diaz indicated the importance of the conditional use permit provision; with this permit, the commission could not look at the required findings for a conditional use permit; this was a totally separate permit and anything over 12 required a conditional use permit and a hearing would be held. Chairman Spiegel asked if someone were to come along in an R-1 area 7 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 and want to open up a day care center for 12 children or less, if it would come before the planning commission; Mr. Diaz said that the hearing process was spelled out and he believed it would. If it was a hearing before him as the zoning administrator and he rejected it, it would come to the planning commission on an appeal of his decision. He said he would go through it. He clarified that as part of that hearing he could require the use permit to be reviewed by the planning commission at a public hearing. The way that would probably be implemented was if there was a hearing before the zoning administrator and a large number of people were objecting and the concerns could not be resolved, the matter would go before the commission. Otherwise, he could approve it as zoning administrator. Chairman Spiegel said he agreed with Commissioner Jonathan and noted there had been four or five facilities proposed in the last few years . Mr. Diaz said there were probably at the present time half a dozen large family day care centers with between seven and 12 operating within the city and they would be notified to come in for a permit. Commissioner Jonathan noted that the public notice under the procedure that was being recommended was only to homes within a 100 foot radius of the proposed large family day care; he said that would barely be one or two houses. Mr. Diaz said that if commission wished to expand that, they could. He indicated that it could be increased to 300 feet which was the standard noticing. Chairman Spiegel opened the public testimony and asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal . MS. DORIS MECHANICK, 45-935 Pawnee Road in Indian Wells, Coachella Valley Child Care Coordinator, the professional who helps the cities write these ordinances . She said that this was the first time she had seen Palm Desert ' s ordinance and asked for a continuance. She felt this needed to be researched and some education done because of the semantics. What they were talking about was family child care homes. These were homes in which women, and their husbands in some cases, were earning a living taking care of children. The City of Palm Desert, as all the other nine cities in the area, have the child care homes by right under six. Child care homes, and it was not a center but a home, was licensed differently than a center and they are licensed from six to 12 and the family still resided in 8 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 the home and the mother was taking care of children other than their own. They didn't have to have their own child in the home. There were a lot of things that were different than state licensing required. The home could be open for 23 hours . One of the things that was beneficial to child care homes was that it was in a small environment and children did well, particularly babies, in a small environment home and she did not see a problem if nurses in the evening couldn't get help for their children and being able to go a family child care home where the child was going to sleep, not play outside at night. The way the families earned their living was to have children, only 12 at a time, but there was a traffic problem that could be alleviated if they looked into it. There could only be 12, but if they 'had 12 from 7 : 00 a.m. to 3 : 00 p.m. and the parent picks up the child, they could have another 12 . Most didn't--they had a few in the evening and a few on the weekends . Child care centers were not open on the weekends or in the evenings, so family child care homes, were very important for the working parent who works at supermarkets, hotels, and hospitals . Since most were unaware that there were 12 large family child.care homes in Palm Desert other than the one that was a problem, she felt they would want to look at this and be a family friendly community where more large family child care homes would be encouraged where the play areas were in the back. She also objected to the time frame because in the summer it was very warm here and children could not play before 7 : 00 a.m. , but workers could drill in the streets before 7 :00 a.m. , so allowing children to play before 9 :00 a.m. should be all right. If there was only three or four in the evening, they should also be allowed to play outside. There were a lot of things she felt needed to be looked at and she wanted to work with her staff, the city, and the city attorney to go through the process as they had done in other cities . She knew the city attorney worked with the City of Indio and their ordinance was friendlier. She said she knew the ordinance needed to be passed and knew the case at hand, but believed these needed to be looked over so that they could take care of the night service workers. She did not feel there was a need for a conditional use permit to ask the whole neighborhood if it was all right. She wanted it opened for discussion and then a continuance. She was afraid the way the ordinance was written now would anger the child care community and rather than having bad press, they should go back and look at it 9 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 with staff and legal counsel to reach a conclusion that was more friendly to the provider and the homeowners around that provider. She felt the city should consider grandfathering the other providers in because they had been good neighbors and the difference between a family child care home and a child care center needed to be looked at. Chairman Spiegel asked if Ms . Mechanick had an opportunity to discuss this with the planning department or anyone else; Ms . Mechanick replied no. Commissioner Jonathan asked Ms. Mechanick to describe her professional position. Ms . Mechanick explained that she was the child care coordinator for the Coachella Valley (Riverside County Office of Education) and her background was child development for 30 years. She teaches child development at the college and she was president of a corporation of that franchise child care centers, a center director, and worked with family child care homes as a program specialist. Commissioner Jonathan asked if she was working right now for the county to promote child care facilities in the Coachella Valley; she said that was correct and she worked with the City of Indio on their ordinance and the City of La Quinta. Commissioner Jonathan asked if she found this ordinance to be restrictive; Ms . Mechanick said yes . Commissioner Jonathan asked if she was notified of this proposal; Ms . Mechanick said she had talked about the case with Mr. Diaz, but did not know this was going before council until she came to speak in behalf and in favor of the next agenda item. Chairman Spiegel asked if all cities in the Coachella Valley would be having such an ordinance (i .e. Indian Wells) . Ms . Mechanick said she did not believe there were any family child care homes in Indian Wells, but if there were they would have to have an ordinance. Mr. Diaz stated that it was not a matter of the cities needing an ordinance because they have such facilities . By law they have to have an ordinance to allow such facilities . He did not know what the neighbors to the east or west were doing, but they had to adopt some kind of an ordinance by state law. . Chairman Spiegel closed the public testimony. Mr. Diaz said that the city did have a complaint against one facility, that was correct, but the fact that the city had not had any complaints against the others did not mean that 10 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 everyone in the neighborhood was happy with them. If they were, then there wouldn't be any problems at the hearing. There could be a situation where a neighbor says, "how can they do this?" and the operator says they are allowed to by state law and if you read the state law it looks like they can. If there is no problem, then the neighbors have the right to be heard. He felt these facilities were necessary, but did not want to sneak them in. As far as the number of children on any one day and allowing traffic in and out, if a person lived in a single family neighborhood in a cul-de- sac and kids were picked up at 11:00 p.m. or 12 :00 a.m. every night of every day or dropped off and playing at 7 : 00 a.m. could be a problem. In response to the example of the street repair going on, he noted that once the street was repaired the activity was done; once they allowed the permit it would go on forever. All he was saying was that the folks in those neighborhoods should have a chance to address the concerns they might have as far as these facilities are concerned. He felt hospitals should provide facilities for nurses and other that work at hospitals, the reason they didn't was not because they didn't have the room, but was because they did not want to and they should provide those for their employees. Hotels should also provide these facilities . The next resort hotel coming into Palm Desert would be required to provide them. Day care centers were going into other commercial facilities that were being developed, so employers had an obligation. His concern was that folks that lived in single family neighborhoods who would not have any problem with kids being dropped off in the morning and picked up at 6 :00 p.m. or 7 : 00 p.m. it was a single family area would be disturbed once it was opened up to 11: 30 p.m. or 23 hours per day, which was getting away from the single family area. All he was saying was that there should be a hearing and a process . He recommended that the ordinance go on to the city council and a meeting could be held with Ms . Mechanick and the city attorney to discuss her concerns . If there are significant changes and differences, this would come back to the planning commission. From staff' s standpoint, he wanted the ordinance to be as strict as possible. He suggested passing this onto council with the concern of inconsistencies brought up and they would be addressed at the council meeting. The matter would be sent back to the commission for comment if there were significant changes. He did not believe they were incorrect and they had the right to have this ordinance the way it is . Commissioner Jonathan asked with this ordinance if anyone could go into any residential neighborhood if they were in 11 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 compliance with the standards set forth in the ordinance, they must be granted the right to operate a large home day care facility; Mr. Diaz said that the way the state ordinance was written, yes . There was virtually no way it could be denied. That was the reason for the limitations regarding hours of operation, the playing hours, and picking up of children. Commissioner Jonathan felt this was in conflict with the city's own land use designation in the zoning ordinance, the definition of residential, and this was carrying on a commercial activity. Mr. Diaz agreed that it was in conflict, but the State of California said that this was consistent with the R-1 zone and cities are "out of luck" . When the number was six he supported that ordinance, but when going from seven to 12 and 12 at any one time and traffic in and out, that was a different situation. It was not consistent with the residential use. It did not mean it shouldn't go in there, but that it should require a conditional use permit and the neighbors should voice their concerns and what they would like to see or not see. Commissioner Jonathan stated that he was very family oriented and he was concerned about child care in our community, but this was the wrong way to go about it. He was in favor of child care, but responsible child care. He felt people bought their homes in neighborhoods and had the right to expect normal kinds of neighborhoods rather than a commercial activity next door or across the street from them. He was reluctant to send the ordinance along without comment. He would want to send it to council with: 1) the recommendation that the noticing requirement be expanded from 100 feet to at least 300 feet, if not more; 2) he saw that once the facility was allowed, it made sense to allow an earlier play time rather than before 9 :00 a.m. ; and 3) he would urge the council to find a way to get around this . He wanted to find a more responsible way of encouraging and developing child care in our community, but not at the cost of infringing on residentially zoned and used parts of our city. Chairman Spiegel agreed with Commissioner Jonathan; he wondered whether the child care center at COD was open 23 hours per day to take care of children for nurses and people that worked in the hotel industry. He knew it was a teaching kind of function over there, but it was a day care center and to his knowledge it was not open in the evenings . Ms . Mechanick said sometimes they were depending on student needs . Chairman Spiegel felt it would be wrong to get away from the conditional use permit process for any kind of facility that was going into an R-1 area that was designated 12 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 for single family homes because it was not really a single family home any more and because it took away the opportunity of the neighbors to become involved if a problem developed. He agreed with Commissioner Jonathan. He asked for a motion. Mr. Diaz stated that commission could revise the notice area to 300 feet and the play times to not before 7 :00 a.m. or after 5 : 30 p.m. Commissioner Jonathan asked that staff also pass along an encouragement to council to see a way to at least mitigate the negative impact this could have on existing and future residential developments and neighborhoods . Mr. Diaz said that would be reflected in the minutes and the council would get a copy. Action: Moved by Commissioner Jonathan, seconded by Commissioner Beaty, approving the findings as presented by staff. Carried 3-0. Moved by Commissioner Jonathan, seconded by Commissioner Beaty, adopting Planning Commission Resolution No. 1637, recommending to city council approval of ZOA 94-1 as amended. Carried 3-0. C. Case No. CUP 93-10 - DANA AND MELISSA CARNES, Applicant Request for approval of a children' s day care center for service up to 30 children at 74-015 Aster Drive in the R- 1 zone. Mr. Winklepleck stated that some items from the previous case would apply to this request. This family day care center would provide up to 30 children between the ages of 3 and 5 at any one time. Included was a pamphlet given to staff from the facility that explained how they operated. The hours of operation would be between 9 : 00 a.m. and 4 :00 p.m. The applicant provided staff a list of neighbors that had no objection to this center. Staff used the applicable conditions from the previous case including the hours of operation. He added a condition that the day care facility would be limited to a maximum of 30 children at any one time. Staff recommended approval and noted that no negative phone calls or letters had been received. Chairman Spiegel asked for clarification that this was different because this was 30 children, not 12,' and would 13 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 only be used for day care--the applicants would not live in the building. Mr. Winklepleck concurred. Commissioner Beaty asked for clarification that this would allow 30 children at any one time; Mr. Winklepleck concurred and indicated that all the children had to be between the ages of 3 and 5 . He said that the hours were consistent with the previous case, but recommended having the play hours of not before 9 : 00 a.m. or after 5 : 30 p.m. Mr. Diaz recommended that the ages be between 3 and 6 . Commissioner Jonathan asked if the 3 to 5 came from the applicant' s own brochure; staff concurred. Chairman Spiegel opened the public testimony and asked the applicants to address the commission. MR. AND MRS. CARNES, 43-550 Palmilla Street in Palm Desert. Mrs. Carnes stated that she and her family had been residents of Palm Desert for 10 years . Before moving to Palm Desert, they lived in Indio for 10 years . They moved to Palm Desert in hope of finding a quality school district for their three children. All the schools were within walking distance and they felt their educational dreams for their own children had been fulfilled. As for her teaching background, she had been in and out of the teaching world for 12 years, starting when their oldest son was 2 1/2 years old. At first she worked in the classroom as a volunteer, which turned into a teaching position. Six months later she was enrolled at the College of the Desert taking the courses to complete her early childhood certificate. For a year and a half she had been running a large family day care servicing 12 children in her own home from the hours of 9 :00 a.m. to 12 : 00 p.m. In September of 1992 her doors opened with five children enrolled. By May she had full enrollment with a waiting list. In September of 1993, they reopened their doors with full enrollment and a waiting list. She found the need and want so great that by January she was offering two sessions . The first session from 9 : 00 a.m. to 12 :00 p.m. and the second session from 1 : 00 p.m. to 4 :00 p.m. She felt that as a community they could work together in offering quality education starting with their preschool children. As they all knew, the best years for learning were the preschool years . Mr. Carnes said that about two years ago he built an addition onto their home and added a bathroom and small kitchenette to accommodate the large family day care trying to isolate it from their living 14 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 conditions. Melissa and her aides work with children from ages 3 to 5 offering them a variety of educational subjects such as dancing--at the end of the year last year the dance class performed at the McCallum Theater for their parents and the community. Some of the other lessons they were taught were Spanish, computer labs, field trips, and had guest speakers. The shelves were lined with montessori. base centers that . give the children a hands on experience. Arts and crafts were done on a daily basis and since they were so busy around the house, it had taken over the house as much as they tried to isolate it to the room that was built on. They had been looking for an area suitable for a center and finally found a place that was fairly local to their own home as well as to the surrounding schools. It was enclosed by three streets, which meant there was one neighbor right next door. The trauma the children go through adapting to school could be softened by an in- home environment. Being so close to Lincoln School, the children could be easily escorted to and from kindergarten for before and after school care. They talked to the principal at Lincoln School and told her of their plans and her response was that the community always needed quality day care centers. The home they selected on Aster and Desert Star had a lot of essentials required by state licensing, such as a third bathroom. The number of 30 children was picked working with state licensing as to how many would be allowed in the size of the dwelling they were looking at. There had to be a ratio of space inside a classroom area versus so much space outside for play area per child. In looking at the home on Aster, they took this into consideration. Being so close to their own home and to Lincoln School, they could offer the service to their neighbors as well as to the community. They met with the neighbors around the home on Aster, talked to all of them personally before filing the application to find out if there was any negative response. They invited them over to their home to see how the business was run, although they did not have a response from anyone to come to their home. Everyone they talked to were in support of their proposal . There were several renters around the perimeter that were interested in what they were doing because they had young children. A large portion of the enrollment were local neighbors within walking distance to their home. That was one thing they were looking at when looking at a large family day care was to service the neighborhood. If children are 15 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 20 feet wide, which would accommodate two more vehicles . Commissioner Jonathan noted that there was a garage in the driveway on the Desert Star side, so there was some parking there. Mr. Carnes noted that it was a two car garage 20 feet by 30 feet. Commissioner Jonathan asked if it was the applicant' s objective to keep the horseshoe driveway open; Mr. Carnes replied that they would like to keep it open to be able to bring the children in and drop them off. He said that in the front of the house there was a patio area which they would like to use as a reception area. It had been a practice for the teachers to go out and meet the children and greet them at the car, which helped break them from their mothers. Chairman Spiegel noted that many of the children lived nearby and could walk back and forth. Mrs. Carnes said that parents had to sign children in and out or their name had to be on their pick up list. Mr. Carnes indicated that the state required a pick up list and the names of the parents had to be available at any time that they might request them. He said there was a sign up sheet when people came in and when they came back, if it was not cleared prior to that then the children would not be released. Chairman Spiegel asked if having the age up to six years old would be beneficial; Mrs. Carnes replied yes, because they would like to service Lincoln School for day care after morning kindergarten and day care before afternoon kindergarten. Chairman Spiegel asked if anyone wished to address the commission in FAVOR or OPPOSITION to the proposal . MS . DORIS MECHANICK, 35-845 Pawnee Road in Indian Wells, said that she had known the Carnes for two years and had watched a wonderful family child care home be an educational center and haven for the children they were caring for and she was in favor of this child care program as a center close to the schools and in an area that was safe and not infringing on all the neighbors . She felt the location was perfect for a neighborhood child care center. MS. CHRIS LYMAN, 72-833 White Drive, stated that she drove to get to the Carnes because it was a great place. She met Melissa in 1989 and she was her first child's teacher and she was now teaching her son. Her kids love and respect her and she was a very loving and caring person. Melissa had many insights to help Moms and Dads find out about their children. Melissa pointed out that 17 18 PLANNING COMMISSION RESOLUTION NO. 1637 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25.04 .240, 25 . 14 .020, 25. 16 .020, 25. 18. 020, 25 .20 .020, 25 .22 .020, AND 25 .24 . 020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25 . 04 . 307, 25 . 14 . 035, 25. 15 . 023, 25 . 15 . 025, 25 . 16 .035, 25. 18 . 035, 25.20 . 035, 25 .22 .035, 25 .24 . 027, AND 25.72 . 015 AND CHAPTER 25 . 72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. CASE NO. ZOA 94-1 WHEREAS, state law distinguishes between "day care centers" and "family day care homes" ; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities. WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider's own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3 . 6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes" ; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the city and also PLANNING COMMISSION RESOLUTION NO. 1637 authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the Planning Commission recognizes the growing need for child day care facilities within the city and the preference of some parents for family day care homes; and WHEREAS, the Planning Commission also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the Planning Commission of the City of Palm Desert, California, RESOLVES as follows: Section 1 . That Section 25. 04 .240 of the Municipal Code is amended to read as follows : 1125 .04 .240 Day nursery. "Day nursery" (including preschool and nursery schools) means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their normal place of residence. " Section 2 . That Section 25 . 04 .307 is hereby added to the Municipal Code and will read as follows: "25 .04 . 307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider' s own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, 2 PLANNING COMMISSION RESOLUTION NO. 1637 including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day .care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations . The foregoing definitions shall be construed in a manner consistent with Chapter 3 .4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3. That Section 25 . 14 . 020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I . Small family day care homes . " Section 4 . That Section 25 . 14 . 035 is hereby added to the Municipal Code and will read as follows: "25 . 14 .035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 5 . That Section 25 . 15 .023 is hereby added to the Municipal Code as follows : "25 . 15.023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes . " Section 6 . That Section 25 . 15 . 025 is hereby added to the Municipal Code to read as follows : "25. 15 .025 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 7 . That Section 25. 16 . 020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: 3 PLANNING COMMISSION RESOLUTION NO. 1637 "H. Small family day care homes . " Section 8 . That Section 25. 16 .035 is hereby added to the Municipal Code and will read as follows: 1125. 16 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25. 72A of this code. " Section 9 . That Section 25. 18.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I . Small family day care homes . " Section 10 . That Section 25 . 18. 035 is hereby added to the Municipal Code and will read as follows : "25 . 18.035 . Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this code. " Section 11 . That Section 25 .20 . 020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: "G. Small family day care homes . " Section 12 . That Section 25 .20 . 035 is hereby added to the Municipal Code and will read as follows : "25 .20 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this code. " Section 13 . That Section 25 .22 . 020 of the Municipal Code is hereby amended to read as follows: "25 .22 .020 Permitted uses . The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes . " Section 14 . That Section 25 .22 . 035 is hereby added to the Municipal Code and will read as follows : 4 PLANNING COMMISSION RESOLUTION NO. 1637 "25.22 .035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 .72A of this code. " Section 15. That Section 25.24 . 020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows: "D. Small family day care homes. " Section 16 . That Section 25 .24 .027 is hereby added to the Municipal Code and will read as follows: 1125 .24 .027 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 .72A of this code. " Section 17 . That Section 25 . 72 .015 is hereby added to the Municipal Code and will read as follows: 1125.72 .015 Large family day care homes. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this code. " Section 18 . That Chapter 25 . 72A is hereby added to the Municipal Code and will read as follows : "Chapter 25.72A LARGE FAMILY DAY CARE HOME USE PERMITS Sections : 25 .72A.010 Purpose. 25.72A.020 Application process . 25 . 72A.030 Application fee. 25 .72A.040 Notice to property owners . 25 .72A.050 Decision by the zoning administrator. 25 .72A.060 Appeal of decision. 25 .72A.070 Expiration of permit. 25 .72A.080 Review of permit; suspension or revocation. 25 .72A.090 Pre-existing family day care homes . 25 .72A. 100 Violation; public nuisance and misdemeanor. 5 PLANNING COMMISSION RESOLUTION NO. 1637 25 .72A.010 Purpose. The Planning, Commission adopts this Chapter pursuant to California Health & Safety Code Section 1597 .46 . Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentrations, traffic control, parking, and noise control relating to large family day care homes . Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and requirements . Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services . 25 .72A.020 Application process . Applications for use permits to operate a large family day care home shall be made to the city' s zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant' s own children under 10 years of age; (b) number of employees; (c) hours of operation and outdoor playtime; (d) state license number. (e) signatures of the legal owners of the real property proposed to be used as a large family day care home, consenting to such use of their property. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor' s parcel map. (b) one copy of a site plan (S 1/2 x 11" ) showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, and fencing; distance to property line; 6 PLANNING COMMISSION RESOLUTION NO. 1637 parking areas and number of spaces both on-site and off- site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extinguishers, restroom facilities, and smoke detectors . (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. 25 .72A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council . Said fee shall not exceed the City's cost of administering the review and permit process. 25.72A.040 Notice to property owners. Not less than 10 days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 300 foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home and no closer than six hundred (600) feet in linear feet along a fronting street from another large family day care home. In addition, no residential property in the City shall be bounded on more than one ( 1) side by a large family day care home. (b) Traffic control . The traffic circulation plan shall be designed to diminish traffic safety problems . Residences locate don arterial streets (as shown on the general plan circulation map) must provide a drop-off/ pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in 7 PLANNING COMMISSION RESOLUTION NO. 1637 neighborhoods already identified as having traffic congestion problems . (c) Parking. All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on- street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. (d) Noise control. Operation of the facility shall comply with all provisions of Chapter 9 .24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices and restrictions on outside play hours, location of play areas, and placement of outdoor play equipment. (e) Hours of operation. Large family day care homes shall operate only between the hours of 6 : 00 a.m. and 7 :00 p.m. , Monday through Friday. No outdoor play is allowed before 7 : 00 a.m. or after 5 :30 p.m. ( f) Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant' s home. (g) Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. (h) Contact person. The current name(s) and telephone number(s) of the applicant and all other operators, if any, of the family day care home shall be on file with the department of community development at all times . (i) State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. ( j ) Building and Fire Code Compliance. Consistent with Section 1597 .46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single- family residences, and with such additional standards as 8 PLANNING COMMISSION RESOLUTION NO. 1637 the State Fire Marshal from time to time adopt pursuant to Section 1597 .46 (d) of the Health and Safety Code to promote the fire and life safety of children in family day care homes . (See Title 22 of the California Code of Regulations . ) No application shall be approved unless and until the City' s building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does, comply with the foregoing building and fire code provisions . (k) Smoking Restricted. Consistent with Section 1596 . 795 of the Health and Safety Code, smoking of tobacco and other substances--whether in pipe, cigar, or cigarette form-- shall not be allowed in the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. ( 1) Single-family Zoning.. No use permit shall be issued unless the, dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. (m) Consent of Property Owner. No use permit shall be issued unless the owner(s) of the real property proposed to be used as a large family day care home consents in writing thereto. 25 .72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City's costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City shall deposit said amount with the City before the City will process the request for an appeal. If at the, end of the appeal, the City' s actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City's costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 9 PLANNING COMMISSION RESOLUTION NO. 1637 25 .72A.070 Expiration of permit. If a large family day care home possessing a use permit ceases to operate for a period of greater than one hundred and eighty ( 180) consecutive days, then its use permit shall be considered null and void. 25 .72A.080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25 . 72A. 050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6 ) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the planning commission may suspend or revoke the permit or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter based on findings derived from testimony and evidence presented at the public hearing. 25 . 72A.090 Pre-existing family day care homes . Any family day care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty ( 30) days after the effective date of this ordinance. Such homes may continue to operate during the City' s processing of their application(s) . Any such home not applying to the City within thirty (30.) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25 . 72A. 100 . " 25 .72A. 100 Violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in this City without a valid use permit as required by this Chapter is both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8 .20 of this code and any other applicable provision of state or local law. 10 PLANNING COMMISSION RESOLUTION NO. 1637 Section 19 . In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of February 1994, by the following vote, to wit: AYES: BEATY, JONATHAN, SPIEGEL NOES: NONE ABSENT: WHITLOCK ABSTAIN: NONE ROBERT A. SPIEG airman ATTEST: RAMON A. DIAZ, 9'ecptjfary Palm Desert PlanniK Commission 11 CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM TO: Planning Commission FROM: Assistant City Manager/Director of Community Development DATE: February 1, 1994 SUBJECT: Zoning Ordinance Amendment Establishing "Large Family Day Care" Permits Revisions in state law related to day care facilities necessitates the establishment of a permit procedure by the city. The new permit covers "large family day care homes" which have been defined by state law as a residence providing day care for 7 to 12 children under the age of 10 . Commission should not confuse this permit process with the "conditional use permit" (CUP) procedure. This is a distinct permit and the required findings for approval of a CUP do not, or rather cannot, be applied in this case. The state has limited the discretion that a city has in reviewing these permits . The ordinance as written attempts to address the usual issues concerning these facilities . RECOMMENDATION: Staff recommends that commission adopt a resolution recommending to the city council Zoning Ordinance Amendment 94-1. -RAMON A. DIAZ /tm 73-510 FRED WARING DRIVE,PALM DESERT,CALIFORNIA 92260 TELEPHONE)619)346-0611 CITY OF PALM DESERT LEGAL NOTICE GASE NO. ZOA 94-1 NOTICE IS HEREBY GIVEN that a public hearing will be.held before the Palm Desert City Council to consider an amendment to Sections 25.04.240, 25.14.020, 25.16.020, 25.18.020, 25.20.020, 25.22.020, and 25.24.020 of the Municipal Code and adding Sections 25.04.307, 25.14.035, 25.15.023, 25.15.025, 25.16.035, 25.18.035, 25.20.035, 25.22.035, 25.24.027, and 25.72.015 and Chapter 25.72A to the Municipal Code, regarding day nurseries and family day care homes, as well as setting the amount of application fee for large family day care use permits. SAID public hearing will be held on Thursday, March 10, 1994, at 7:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk February 23, 1994 City of Palm Desert, California LAW OFFICES OF BEST, BEST 6 KRIEG, RECEIVED NOV 2 3 1993 November 12, 1993 CO WNRY XVROPMEIR Dfpwwu Cm a PALM VEM MEMORANDUM TO: Ray Diaz, Dir. of Community Development City of Palm Desert FROM: Marshall S. Rudolph, Deputy City Attorne . —, RE: Family Day Care Ordinance and Resolution -- Procedures (Our file no. 72500.0406) r'" c Enclosed are copies of the above-referenced documents. The ordinance is revised per our conversation. The resolution sets the amount of the fee to be imposed by the ordinance. Please note that because the ordinance either enacts or amends portions of the City's zoning laws, both the planning commission and the city council must hold properly noticed public hearings regarding the ordinance pursuant to Government Code Sections 65854 and 65856 before the Council may adopt it. Section 65854 specifies that if a zoning ordinance affects permitted uses of real property, as does the proposed ordinance, then notice of the planning commission's hearing must be given pursuant to Government Code Section 65091. Section 65091 allows publication notice where more than 1,000 property owners are potentially affected by an ordinance, as is presumably the case here (otherwise, mailed notice would be required) . Publication is to be done by a "display advertisement of at least one-eighth page in at least one newspaper of general circulation within the local agency in which the proceeding is conducted at lest 10 days prior to the hearing. " (Section 65091(a) (3) . ) The notice must contain "the date, time, and place of a public hearing, the identity of the hearing body or officer, a general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the real property, if any, that is the subject of the hearing. " (Section 65094. ) Because the proposed ordinance includes the adoption of a new fee or charge (namely, a use permit application fee) for which no special notice period is required by statute, Section 66018 obligates us to exceed the notice period that would otherwise be required by Section 65090 for the city council's public hearing (publication one time in at least one newspaper of general circulation within the City at least 10 days prior to the hearing) . Specifically, Section 66018 requires us to provide notice of the hearing pursuant to Section 6062a, which is publication for 10 days in a newspaper published once a week or oftener. Two publications, with at least five days intervening between the dates of first and last publication not counting such publication dates, are sufficient. The notice should contain the NSR43707 LAW OFFICES OF BEST, BEST 6 KRIEG_A same information as the notice for the planning commission's hearing, plus reference to the fact that an application fee would be imposed by the ordinance. In addition, Section 66018 mandates that the Council allow oral and written presentations to be made during the hearing (which it would probably do anyway) . Note that no special notice or hearing is required for the resolution, which does not impose any fee or change zoning. Rather, it merely sets the amount of the fee that is to be established by the ordinance (if it's adopted) . Should you have any questions regarding the foregoing, please feel free to give me call. cc: Sheila Gilligan, City Clerk David J. Erwin, City Attorney NSR43707 -2- RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, SETTING THE AMOUNT OF THE APPLICATION FEE FOR LARGE FAMILY DAY CARE USE PERMITS. WHEREAS, the City Council is considering adoption of an ordinance that would allow large family day care homes to operate in residential districts of the City subject to a use permit; and WHEREAS, if approved, the ordinance under consideration would, among other things, establish an application fee to cover the City's direct cost of reviewing and processing applications for large family day care home use permits, in an amount to be set by resolution of the Council. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows: Section 1. Based on data supplied by the City's department of community development, the City Council finds and determines that the City's estimated costs of reviewing and processing an application for a large family day care home is $ Section 2 . The Council hereby sets the application fee for large family day care use permits as $ per application, to take effect simultaneously with an ordi— na�of the City Council establishing such a fee. PASSED, APPROVED, and ADOPTED by the City Council of the City of Palm Desert, California, this day of , 1993 , by the following vote: AYES: NOES: ABSENT: ABSTAIN: JEAN M. BENSON, Mayor City of Palm Desert ATTEST: SHEILA R. GILLIGAN, City Clerk NSR43645 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25.04.240, 25. 14 .020, 25. 16. 020, 25.18.020, 25.20. 020, 25.22. 020, AND 25.24 .020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25.04.307, 25. 14. 035, 25. 15.023, 25. 15.025, 25.16.035, 25.18. 035, 25.20.035, 25.22. 035, 25.24.027, AND 25.72 . 015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. WHEREAS, state law distinguishes between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities. WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider's own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3.6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes" ; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the .home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and NSR43124 WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the City and also authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the City Council recognizes the growing need for child day care facilities within the City and the preference of some parents for family day care homes; and WHEREAS, the City Council also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the City Council of the City of Palm Desert, California, DOES ORDAIN as follows: Section 1. That Section 25.04 .240 of the Municipal Code is amended to read as follows: 1125.04.240 . Day nursery. "Day nursery" (including preschool and nursery schools) means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their normal place of residence. " Section 2. That Section 25. 04. 307 is hereby added to the Municipal Code and will read as follows: 1125. 04.307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider's own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: NSR43124 -2- (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations. The foregoing definitions shall be construed in a manner consistent with Chapter 3.4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3. That Section 25.14.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes. " Section 4. That Section 25. 14 .035 is hereby added to the Municipal Code and will read as follows: 1125.14.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 5. That Section 25. 15. 023 is hereby added to the Municipal Code as follows: "25. 15.023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes. " Section 6. That Section 25. 15. 025 is hereby added to the Municipal Code to read as follows: "25.15.025 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 7. That Section 25. 16.020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: "H. Small family day care homes. " MSR43124 -3- Section 8. That Section 25. 16.035 is hereby added to the Municipal Code and will read as follows: "25.16.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 9. That Section 25. 18.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes." Section 10, That Section 25.18.035 is hereby added to the Municipal Code and will read as follows: 1125.18.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 11. That Section 25.20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: "G. Small family day care homes. " Section 12. That Section 25.20. 035 is hereby added to the Municipal Code and will read as follows: 1125.20.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 13 . That Section 25.22. 020 of the Municipal Code is hereby amended to read as follows: "25.22.020 Permitted uses. The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes. " Section 14. That Section 25.22.035 is hereby added to the Municipal Code and will read as follows: 1125.22.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." NSR43124 -4- Section 15. That Section 25.24.020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows: "D. Small family day care homes. " Section 16. That Section 25.24.027 is hereby added to the Municipal Code and will read as follows: 1125.24.027 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 17. That Section 25.72.015 is hereby added to the Municipal Code and will read as follows: "25.72.015 Large family day care homes. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this Code. " Section 18 . That Chapter 25.72A is hereby added to the Municipal Code and will read as follows: "Chapter 25.72A LARGE FAMILY DAY CARE HOME USE PERMITS Sections: 25.72A.010 Purpose. 25.72A. 020 Application process. 25.72A.030 Application fee. 25.72A.040 Notice to property owners. 25.72A.050 Decision by the zoning administrator. 25.72A.060 Appeal of decision. 25472A.070 Expiration of permit. 25.72A. 080 Review of permit; suspension or revocation. 25.72A.090 Pre-existing family day care homes. 25.72A.100 Violation; public nuisance and misdemeanor. 25.72A. 010 Purpose. The City Council adopts this Chapter pursuant to California Health & Safety Code Section 1597. 46. Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentration, traffic control, parking, and noise control relating to large family day care homes. Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and NSR43124 -5- requirements. Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services. 25.72A.020 Application process. Applications for use permits to operate a large family day care home shall be made to the City's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant's own children under 10 years of age; (b) number of employees; (c) hours of operation and outdoor playtime; (d) state license number. (e) signatures of the legal owners of the real property proposed to be used as a large family day care home, consenting to such use of their property. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan (Sk x 1111) showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, and fencing; distance to property line; parking areas and number of spaces both on- site and off-site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extin- guishers, restroom facilities, and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. 25.72A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the City's cost of administering the review and permit process. MSR43124 -6- 25.72A.040 Notice to property owners. Not less than 10 days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 100 foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision on the application unless requested by the recipient. 25.72A.050 Decision by the zoning administrator. After proper notice has been given to affected property owners pursuant to Section 25.72A. 040, the zoning administrator or his or her designee shall render a decision on the application. Unless requested by the applicant or other affected person, no hearing shall be held on the application before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home and no closer than six hundred (600) feet. in linear feet along a fronting street from another large family day care home. In addition, no residential property in' the city shall be bounded on more than one (1) side by a large family day care home. (b) Traffic control. The traffic circulation plan shall be designed to diminish traffic safety problems. Residences located on arterial streets (as shown on the general plan circulation map) must provide a drop-off/pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in neighborhoods already identified as having traffic congestion problems. (c) Parking. All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on-street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. NSR43124 -7- (d) Noise control. Operation of the facility shall comply with all provisions of Chapter 9.24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices and restrictions on outside play hours, location of play areas, and placement of outdoor play equipment. (e) Hours of operation. Large family day care homes shall operate only between the hours of 6:00 a.m. and 7: 00 p.m. , Monday through Friday. No outdoor play is allowed before 9:00 a.m. or 5:30 p.m. (f) Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. (g) Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. (h) Contact person. The current name(s) and telephone number(s) of the applicant and all other operators, if any, of the family day care home shall be on file with the department of community development at all times. (i) State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. (j) Building and Fire Code Compliance. Consistent with Section 1597. 46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single-family residences, and with such additional standards as the State Fire Marshal from time to time adopt pursuant to Section 1597.46 (d) of the Health & Safety Code to promote the fire and life safety of children in family day care homes. (See Title 22 of the California Code of Regulations. ) No application shall be approved unless and until the City' s building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing building and fire code provisions. (k) Smoking Restricted. Consistent with Section 1596. 795 of the Health & Safety Code, smoking of tobacco and other substances -- whether in pipe, cigar, or cigarette form -- shall not be allowed in NSR43124 -$- the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. (1) Single-family zoning. No use permit shall. be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. (m) Consent of Property Owner. No use permit shall be issued unless the owner(s) of the real property proposed to be used as a large family day care home consents in writing thereto. 25.72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City's costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City will process the request for an appeal. If at the end of the appeal, the City's actual costs .were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City's costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 25.72A.070 Expiration of permit. If a large family day care home possessing a use. permit ceases to operate for a period greater than one hundred and eighty (180) consecutive days, then its use permit shall be considered null and void. 25.72A. 080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25.72A. 050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the planning commission NSR43124 -9- may suspend or revoke the permit or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter based on findings derived from testimony and evidence presented at the public hearing. 25.72A.090 Pre-existing family dap care homes. Any family day care home operating in the City on the effective date of this ordinance shall apply to the. City for a use permit pursuant to this Chapter within thirty (36) days after. the effective date of this ordinance. Such homes may continue to operate during the City's processing of their application(s) . Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25.72A.100. " 25.72A.100 violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in the City without a valid use permit as required by this Chapter is both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8.20 of this Code and any other applicable provision of state or local law. Section 19, In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED this day of 1993, by the City Council of the City of Palm Desert, Califon by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: MSR43124 -10- JEAN M. BENSON, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California_ NSR43124 -11- LAW OFFICES OF BEST, BEST 6 KRIEGL March 4, 1994 MEMORANDUM TO: RAMON DIAZ, Planning Dept. City of Palm Desert FROM: MARSHALL RUDOLPH, Deputy City Attorney RE: REVISED FAMILY DAY CARE ORDINANCE Ray: Attached are two copies of the revised day care ordinance. One is "clean. " The other has the changes highlighted. You may wish to relay the clean copy to Sheila for reproduction and distribution to the Council at or before its meeting. A_ CD -C 1 � n � r � m m � co c� M 0 3 m �n a . T F, n Un m co MSR48440 . ` (NEW DV PDO tM DD can 73-510 FRED WARING DRIVE, PALM DESERT,CALIFORNIA 92260 TELEPHONE(619)346-0611 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 94-1 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert City Council to consider an amendment to Sections 25 . 04 .240, 25 . 14 . 020, 25 . 16 . 020, 25 . 18 . 020, 25 . 20.020, 25.22 . 020, and 25 .24 . 020 of the Municipal Code and adding Sections 25 .04 . 307, 25 . 14 .035, 25 . 15 .023, 25 . 15 .025, 25. 16 . 035, 25 . 18 . 035, 25.20 . 035, 25 . 22 . 035, 25. 24 . 027, and 25 . 72 .015 and Chapter 25 .72A to the Municipal Code, regarding day nurseries and family day care homes, as well as setting the amount of application fee for large family day care use permits . SAID public hearing will be held on Thursday, March 10, 1994, at 7 :00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 :00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post SHEILA R. GILLIGAN, City Clerk February 23, 1994 City of Palm Desert, California i I 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260 i TELEPHONE(619)346-0611 �� — a� ✓ FAX TRANSMISSION COVER LETTER FAX: (619) 341-7098 TO• DATE COMPANY: ���� FAX NUMBER: FROM DEPARTMENT: ---------------------------------------------------------------------- MESSAGE: Number of pages transmitted ( including cover page ) FEB-116-94 TUE 14:21 PALM DESERT POST FAX NO. 6197736400 P. O1 �L ttb 1"94 14 :11 N0 .002 P ,01 74-b1U FRED WARING DRIVE, PALM DEGER7,CAUFORNIA 92260 — TELEPNON E(618)34"B11 FAX TRANSMISSION COV8t2 LZTTER FAX: (619) 341-709B 2'0: •• - DA?E: COMPANY: T FAX aUMBsx: FROM DSPAETMSNTt MEGBACUs RE IVEO ES 1 5 1994 Number of pages trenamitted _ (i=luding tovor page) P. 0? AUTOMATIC COVER SHEET DATE ; FEB- 15-94 TUE 14 : 22 TO : CITY OF PALM DESERT FAX 3417098 FROM ; PALM DESERT POST FAX # ; 6197735400 02 PAGES WERE SENT ( INCLUDING THIS COVER PAGE ) City oV PWM 068on 73-510 FRED WARING DRIVE, PALM DESERT, CALIFORNIA 92260-2578 TELEPHONE (619) 346-0611 FAX(619)340-0574 PLANNING COMMISSION MEETING NOTICE OF ACTION Date: February 2, 1994 CITY OF PALM DESERT Re: ZOA 94-1 The Planning Commission of the City of Palm Desert has considered your request and taken the following action at its meeting of February 1, 1994 . PLANNING COMMISSION RECOMMENDED APPROVAL OF ZOA 94-1 TO CITY COUNCIL WITH AMENDMENTS. CARRIED 3-0 (COMMISSIONER WHITLOCK WAS ABSENT) . Any appeal of the above action may be made in writing to the Director of Community Development, City of Palm Desert, within fifteen ( 15) days of the date of the decision. RAM N A. DIAZ, S C RY PALM DESERT PLANNI COMMISSION RAD/tm cc: Coachella Valley Water District Public Works Department Building & Safety Department Fire Marshal PLANNING COMMISSION RESOLUTION NO. 1637 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25.04 .240, 25 . 14 . 020, 25 . 16 .020, 25 . 18.020, 25.20.020, 25 .22 . 020, AND 25.24 .020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25 . 04 .307, 25. 14 .035, 25 . 15 . 023, 25 . 15 .025, 25 . 16 .035, 25. 18.035, 25 .20 . 035, 25.22 . 035, 25 .24 . 027, AND 25.72 . 015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. CASE NO. ZOA 94-1 WHEREAS, state law distinguishes between "day care centers" and "family day care homes" ; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities . WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider' s own home for periods of less than 24 hours per day while the parents or guardians are away; and :. WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3. 6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes"; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the city and also PLANNING COMMISSION RESOLUTION NO. 1637 authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group Of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the Planning Commission recognizes the growing need for child day care facilities within the city and the preference of some parents for family day care homes; and WHEREAS, the Planning Commission also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the Planning Commission of the City of Palm Desert, California, RESOLVES as follows: Section 1. That Section 25 . 04 .240 of the Municipal Code is amended to read as follows : 1125 .04 .240 Day nursery. "Day nursery" (including preschool and nursery schools) means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their normal place of residence. " Section 2 . That Section 25 .04 .307 is hereby added to the Municipal Code and will read as follows: "25 .04 . 307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider' s own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, 2 PLANNING COMMISSION RESOLUTION NO. 1637 including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations . The foregoing definitions shall be construed in a manner consistent with Chapter 3 .4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3 . That Section 25. 14 . 020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows : "I . Small family day care homes. " Section 4 . That Section 25. 14 . 035 is hereby added to the Municipal Code and will read as follows: "25 . 14 .035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25. 72A of this code. " Section 5 . That Section 25. 15.023 is hereby added to the Municipal Code as follows : "25 . 15 .023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes. " Section 6 . That Section 25 . 15 . 025 is hereby added to the Municipal Code to read as follows : "25. 15.025 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 7 . That Section 25. 16 .020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: 3 PLANNING COMMISSION RESOLUTION NO. 1637 "H. Small family day care homes . " Section 8 . That Section 25 . 16 .035 is hereby added to the Municipal Code and will read as follows: 1125 . 16 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 .72A of this code. " Section 9 . That Section 25 . 18 . 020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows : "I . Small family day care homes . " Section 10. That Section 25 . 18 . 035 is hereby added to the Municipal Code and will read as follows : "25 . 18.035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 .72A of this code. " Section 11 . That Section 25.20 . 020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows : "G. Small family day care homes . " Section 12 . That Section 25 .20 . 035 is hereby added to the Municipal Code and will read as follows : "25 .20.035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 13 . That Section 25 .22 .020 of the Municipal Code is hereby amended to read as follows: 1125 .22 .020 Permitted uses . The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes . " Section 14 . That Section 25 .22 . 035 is hereby added to the Municipal Code and will read as follows : 4 PLANNING COMMISSION RESOLUTION NO. 1637 "25 .22 .035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 15. That Section 25.24 . 020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows: "D. Small family day care homes. " Section 16 . That Section 25 .24 . 027 is hereby added to the Municipal Code and will read as follows: "25 .24 .027 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this code. " Section 17 . That Section 25.72 .015 is hereby added to the Municipal Code and will read as follows: "25.72 .015 Large family day care homes. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes . Such permits shall be governed by the procedures and review criteria specified by Chapter 25 .72A of this code. " Section 18 . That Chapter 25 . 72A is hereby added to the Municipal Code and will read as follows : "Chapter 25.72A LARGE FAMILY DAY CARE HOME USE PERMITS Sections: 25.72A.010 Purpose. 25.72A.020 Application process. 25.72A.030 Application fee. 25 .72A.040 Notice to property owners. 25.72A.050 Decision by the zoning administrator. 25.72A.060 Appeal of decision. 25.72A.070 Expiration of permit. 25 .72A.080 Review of permit; suspension or revocation. 25 .72A.090 Pre-existing family day care homes. 25 .72A.100 Violation; public nuisance and misdemeanor. 5 PLANNING COMMISSION RESOLUTION NO. 1637 25 .72A.010 Purpose. The Planning Commission adopts this Chapter pursuant to California Health & Safety Code Section 1597 .46 . Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentrations, traffic control, parking, and noise control relating to large family day care homes . Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and requirements. Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services . 25 .72A.020 Application process. Applications for use permits to operate a large family day care home shall be made to the city's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant's own children under 10 years of age; (b) number of employees; (c) hours of operation and outdoor playtime; (d) state license number. (e) signatures of the legal owners of the real property proposed to be used as a large family day care home, consenting to such use of their property. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor' s parcel map. (b) one copy of a site plan (8 1/2 x 11" ) showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, and fencing; distance to property line; 6 PLANNING COMMISSION RESOLUTION NO. 1637 parking areas and number of spaces both on-site and off- site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extinguishers, restroom facilities, and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. 25 .72A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the City's cost of administering the review and permit process. 25.72A.040 Notice to property owners . Not less than 10 days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 300 foot radius of the exterior _ boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform . its recipient that no hearing shall be held before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home and no closer than six hundred (600) feet in linear feet along a fronting street from another large family day care home. In addition, no residential property in the City shall be bounded on more than one ( 1) side by a large family day care home. (b) Traffic control . The traffic circulation plan shall be designed to diminish traffic safety problems . Residences locate don arterial streets (as shown on the general plan circulation map) must provide a drop-off/ pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in 7 PLANNING COMMISSION RESOLUTION NO. 1637 neighborhoods already identified as having traffic congestion problems. (c) Parking. All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on- street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. (d) Noise control . Operation of the facility shall comply with all provisions of Chapter 9 .24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices and restrictions on outside play hours, location of play areas, and placement of outdoor play equipment. (e) Hours of operation. Large family day care homes shall operate only between the hours of 6 :00 a.m. and 7 :00 p.m. , Monday through Friday. No outdoor play is allowed before 7 :00 a.m. or after 5: 30 p.m. ( f) Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. (g) Residency. The applicant must be a full-time resident of the home that is proposed as a large family day,care home. (h) Contact person. The current name(s) and telephone number(s) of the applicant and all other operators, if any, of the family day care home shall be on file with the department of community development at all times . ( i) State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. ( j ) Building and Fire Code Compliance. Consistent with Section 1597 . 46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single- family residences, and with such additional standards as 8 PLANNING COMMISSION RESOLUTION NO. 1637 the State Fire Marshal from time to time adopt pursuant to Section 1597 .46 (d) of the Health and Safety Code to promote the fire and life safety of children in family day care homes. (See Title 22 of the California Code of Regulations. ) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does, comply with the foregoing building and fire code provisions . (k) Smoking Restricted. Consistent with Section 1596 . 795 of the Health and Safety Code, smoking of tobacco and other substances--whether in pipe, cigar, or cigarette form-- shall not be allowed in the applicant' s home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. ( 1) Single-family Zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. (m) Consent of Property Owner. No use permit shall be _ issued unless the owner(s) of the real property proposed to be used as a large family day care home consents in writing thereto. 25 .72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City' s costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City shall deposit said amount with the City before the City will process the request for an appeal . If at the end of the appeal, the City's actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City' s costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 9 PLANNING COMMISSION RESOLUTION NO. 1637 25 .72A.070 Expiration of permit. If a large family day care home possessing a use permit ceases to operate for a period of greater than one hundred and eighty ( 180) consecutive days, then its use permit shall be considered null and void. 25 .72A.080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25.72A.050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the planning commission may suspend or revoke the permit or may, in its discretion, impose _. additional reasonable standards and requirements beyond those provided in this Chapter based on findings derived from testimony and evidence presented at the public hearing. 25 . 72A.090 Pre-existing family day care homes . Any family day care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such homes may continue to operate during the City' s processing of their application(s) . Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25 . 72A. 100. " 25.72A. 100 Violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in this City without a valid use permit as required by this Chapter is both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8 .20 of this code and any other applicable provision of state or local law. 10 PLANNING COMMISSION RESOLUTION NO. 1637 Section 19 . In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of February 1994, by the following vote, to wit: AYES: BEATY, JONATHAN, SPIEGEL NOES: NONE ABSENT: WHITLOCK ABSTAIN: NONE ROBERT A. SPIEGpL airman ATTEST: RAMON A. DIAZ, Efec ary Palm Desert Planni Commission 11 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 Chairman Spiegel said that he lived on Bel Air, but not within 300 feet of the proposal, and indicated the only concern he had, and he had been familiar with the Living Desert for many years and respected the operation and Ms . Sausman, but he would not like to see that structure turned into a low cost housing situation. This property was there long before there was a City of Palm Desert and at one time there were a few other units in the area that were destroyed by fire. He noted that the structure was not built the way the rest of the area had been built because it was there first and working with the existing building, it might be possible to crowd a lot of people into a triplex and that would be disconcerting to the neighbors . He also agreed that the height limit was important. Mr. Diaz stated that the current zoning ordinance would not permit expansion of the triplex; it was a legal nonconforming use. Any new construction would have to meet the current R-1 regulations which have a maximum height of 18 feet; 15 feet was approved at the staff level--15 to 18 feet went to architectural commission for approval. Ms . Sausman spoke up from the audience and stated that there would not be a noticeable change in the use of the property and they would be a sensitive neighbor. Action: Moved by Commissioner Beaty, seconded by Commissioner Jonathan, approving the findings as presented by staff. Carried 3-0 . Moved by Commissioner Beaty, seconded by Commissioner Jonathan, adopting Planning Commission Resolution No. 1636, approving PM 27895, VAR 93-6 and ADJ 93-10, subject to conditions . Carried 3-0. C81., Case No. ZOA 94-1 - CITY OF PALM DESERT, Applicant Request for amendment to Sections 25 . 04 .240, 25 . 14 .020, 25 . 16 . 020, 25 . 18 . 020, 25 . 20. 020, 25 .22 .020, and 25 .24 . 020 of the Municipal Code and adding sections 25. 04 . 307, 25 . 14 . 035, 25 . 15 . 023, 25. 15 . 025, 25. 16 . 035, 25 . 18.035, 25 . 20. 035, 25 .22 . 035, 25.24 . 027, and 25 . 72 . 015 and Chapter 25.72A to the Municipal Code, regarding day nurseries and family day care homes . 5 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 Mr. Diaz stated that this was a zoning ordinance amendment to establish a large family day care permit procedure. The hearing after this ordinance was for a conditional use permit and they should not confuse the two. The State of California years ago established the number six for residential care facilities . What was happening was that cities throughout the state were requiring a conditional use permit for residential care facilities that would include day care centers, rehabilitation centers, halfway houses, etc. Noting that these types of facilities were necessary in residential areas, the State of California said that as long as these uses were to house six people or less, it would be consistent with the single family residential zone and that no additional requirements could be placed on these facilities that would not normally be placed on the R-1 zone. Now the State of California amended that regulation as it related to day care centers and defined large family day care centers as taking care of more than six, but less than 13 and a requirement that the family must reside there because one problem that was happening was that people were buying single family residential units, not living in them, and using them for day care centers without having to go through a hearing process . The state determined that they would have to live there, one of the children had to be theirs, and there would be a hearing permit procedure, but the hearing permit procedure was meaningless because of the limitations placed on city staffs in terms of conditions that could be placed on the facilities if the neighbors had concerns . He would have preferred the state to amend the number six to 12 . The ordinance was before the commission and they might hear testimony that certain parts of it are inconsistent with state law; staff 's recommendation was that this matter be passed along to city council and that those inconsistencies, if there were inconsistencies, be investigated by the city attorney. He said there was one situation now with an individual running a large day care center and concerns had been voiced by one person in the neighborhood about that facility. Those people have their right to a hearing and this situation had been going on for many months. Some of the key features of this ordinance was the definition of family day care home on page 2 of the ordinance, which specified seven to 12 children per day. The reason for emphasizing the per day was because one problem they had was they felt the state legislation specified 12 children at any one time, which could mean a constant traffic flow. As far as staff was concerned the reason the state passed this legislation was because these uses were consistent with single family residential uses, which meant single family 6 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 traffic patterns. Therefore, the seven to 12 per day should be the limitation. There could be 12 kids on Monday, a different 12 kids on Tuesday, and staff did not have a problem with that--the problem was with 12 kids from 8 : 00 a.m. to 12 : 00 p.m. and another 12 kids from 12 :00 p.m. to 3 :00 p.m. and another 12 kids from 3 : 00 p.m. to 5 : 30 p.m. That would mean 72 vehicle trips per day in the R-1 area. They also limited the hours of operation from Mondays through Fridays from 6 : 00 a.m. to 7 :00 p.m. The outdoor play should read before 9 : 00 a.m. or after 5 :30 p.m. The reason they were limiting it to Monday through Friday was because it was in a residential area; the purpose of the day care facilities and ordinances was to provide day care in a single family residential area. But the city could not have a conditional use permit for seven to 12, therefore they would be limiting the hours of operation to Monday through Friday. The hearing process was spelled out--it would be before the commission and from staff' s standpoint, day care facilities are needed and the concern was not for the provision of day care facilities, but with the folks in the neighborhoods having the right to determine what was going on in their neighborhood and having some say. Staff recommended that commission adopt a resolution recommending to city council approval of the ordinance. Commissioner Jonathan noted that on page 8 item E was to read before 9 : 00 a.m. and after 5 : 30 p.m. ; Mr. Diaz concurred. Chairman Spiegel indicated that Mr. Diaz went through the definition on page 2 and it said that for periods of less than 24 hours per day, yet when going to page 8 under E it said 6 : 00 a.m. to 7 :00 p.m. , which was considerably less than 24 hours . Mr. Diaz concurred and stated that the commission could expand the hours if they wanted. Chairman Spiegel asked if the commission could limit what the state said; Mr. Diaz replied yes, noting that there would be some testimony that there is a disagreement under E that the state may limit it to 23 hours . In other words, the city would have to allow 23 hours . Chairman Spiegel noted that on page 10 under Violation, Public Nuisance and Misdemeanor, it stated that operation of a large family day care home pursuant to this chapter was a privilege, not a right. He asked if that was from the city or the state. Mr. Diaz replied the city. Mr. Diaz indicated the importance of the conditional use permit provision; with this permit, the commission could not look at the required findings for a conditional use permit; this was a totally separate permit and anything over 12 required a conditional use permit and a hearing would be held. Chairman Spiegel asked if someone were to come along in an R-1 area 7 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 and want to open up a day care center for 12 children or less, if it would come before the planning commission; Mr. Diaz said that the hearing process was spelled out and he believed it would. If it was a hearing before him as the zoning administrator and he rejected it, it would come to the planning commission on an appeal of his decision. He said he would go through it. He clarified that as part of that hearing he could require the use permit to be reviewed by the planning commission at a public hearing. The way that would probably be implemented was if there was a hearing before the zoning administrator and a large number of people were objecting and the concerns could not be resolved, the matter would go before the commission. Otherwise, he could approve it as zoning administrator. Chairman Spiegel said he agreed with Commissioner Jonathan and noted there had been four or five facilities proposed in the last few years . Mr. Diaz said there were probably at the present time half a dozen large family day care centers with between seven and 12 operating within the city and they would be notified to come in for a permit. Commissioner Jonathan noted that the public notice under the procedure that was being recommended was only to homes within a 100 foot radius of the proposed large family day care; he said that would barely be one or two houses . Mr. Diaz said that if commission wished to expand that, they could. He indicated that it could be increased to 300 feet which was the standard noticing. Chairman Spiegel opened the public testimony and asked if anyone wished to speak in FAVOR or OPPOSITION to the proposal . MS. DORIS MECHANICK, 45-935 Pawnee Road in Indian Wells, Coachella Valley Child Care Coordinator, the professional who helps the cities write these ordinances . She said that this was the first time she had seen Palm Desert' s ordinance and asked for a continuance. She felt this needed to be researched and some education done because of the semantics . What they were talking about was family child care homes . These were homes in which women, and their husbands in some cases, were earning a living taking care of children. The City of Palm Desert, as all the other nine cities in the area, have the child care homes by right under six. Child care homes, and it was not a center but a home, was licensed differently than a center and they are licensed from six to 12 and the family still resided in 8 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 the home and the mother was taking care of children other than their own. They didn't have to have their own child in the home. There were a lot of things that were different than state licensing required. The home could be open for 23 hours. One of the things that was beneficial to child care homes was that it was in a small environment and children did well, particularly babies, in a small environment home and she did not see a problem if nurses in the evening couldn't get help for their children and being able to go a family child care home where the child was going to sleep, not play outside at night. The way the families earned their living was to have children, only 12 at a time, but there was a traffic problem that could be alleviated if they looked into it. There could only be 12, but if they had 12 from 7 : 00 a.m. to 3:00 p.m. and the parent picks up the child, they could have another 12 . Most didn' t--they had a few in the evening and a few on the weekends . Child care centers were not open on the weekends or in the evenings, so family child care homes were very important for the working parent who works at supermarkets, hotels, and hospitals. Since most were unaware that there were 12 large family child care homes in Palm Desert other than the one that was a problem, she felt they would want to look at this and be a family friendly community where more large family child care homes would be encouraged where the play areas were in the back. She also objected to the time frame because in the summer it was very warm here and children could not play before 7 : 00 a.m. , but workers could drill in the streets before 7 :00 a.m. , so allowing children to play before 9 : 00 a.m. should be all right. If there was only three or four in the evening, they should also be allowed to play outside. There were a lot of things she felt needed to be looked at and she wanted to work with her staff, the city, and the city attorney to go through the process as they had done in other cities. She knew the city attorney worked with the City of Indio and their ordinance was friendlier. She said she knew the ordinance needed to be passed and knew the case at hand, but believed these needed to be looked over so that they could take care of the night service workers. She did not feel there was a need for a conditional use permit to ask the whole neighborhood if it was all right. She wanted it opened for discussion and then a continuance. She was afraid the way the ordinance was written now would anger the child care community and rather than having bad press, they should go back and look at it 9 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 with staff and legal counsel to reach a conclusion that was more friendly to the provider and the homeowners around that provider. She felt the city should consider grandfathering the other providers in because they had been good neighbors and the difference between a family child care home and a child care center needed to be looked at. Chairman Spiegel asked if Ms . Mechanick had an opportunity to discuss this with the planning department or anyone else; Ms . Mechanick replied no. Commissioner Jonathan asked Ms. Mechanick to describe her professional position. Ms . Mechanick explained that she was the child care coordinator for the Coachella Valley (Riverside County Office of Education) and her background was child development for 30 years . She teaches child development at the college and she was president of a corporation of that franchise child care centers, a center director, and worked with family child care homes as a program specialist. Commissioner Jonathan asked if she was working right now for the county to promote child care facilities in the Coachella Valley; she said that was correct and she worked with the City of Indio on their ordinance and the City of La Quinta. Commissioner Jonathan asked if she found this ordinance to be restrictive; Ms . Mechanick said yes . Commissioner Jonathan asked if she was notified of this proposal; Ms . Mechanick said she had talked about the case with Mr. Diaz, but did not know this was going before council until she came to speak in behalf and in favor of the next agenda item. Chairman Spiegel asked if all cities in the Coachella Valley would be having such an ordinance ( i .e. Indian Wells) . Ms . Mechanick said she did not believe there were any family child care homes in Indian Wells, but if there were they would have to have an ordinance. Mr. Diaz stated that it was not a matter of the cities needing an ordinance because they have such facilities . By law they have to have an ordinance to allow such facilities . He did not know what the neighbors to the east or west were doing, but they had to adopt some kind of an ordinance by state law. Chairman Spiegel closed the public testimony. Mr. Diaz said that the city did have a complaint against one facility, that was correct, but the fact that the city had not had any complaints against the others did not mean that 10 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 everyone in the neighborhood was happy with them. If they were, then there wouldn't be any problems at the hearing. There could be a situation where a neighbor says, "how can they do this?" and the operator says they are allowed to by state law and if you read the state law it looks like they can. If there is no problem, then the neighbors have the right to be heard. He felt these facilities were necessary, but did not want to sneak them in. As far as the number of children on any one day and allowing traffic in and out, if a person lived in a single family neighborhood in a cul-de- sac and kids were picked up at 11 : 00 p.m. or 12 : 00 a.m. every , night of every day or dropped off and playing at 7 : 00 a.m. could be a problem. In response to the example of the street repair going on, he noted that once the street was repaired the activity was done; once they allowed the permit it would go on forever. All he was saying was that the folks in those neighborhoods should have a chance to address the concerns they might have as far as these facilities are concerned. He felt hospitals should provide facilities for nurses and other that work at hospitals, the reason they didn't was not because they didn' t have the room, but was because they did not want to and they should provide those for their employees . Hotels should also provide these facilities . The next resort hotel coming into Palm Desert would be required to provide them. Day care centers were going into other commercial facilities that were being developed, so employers had an obligation. His concern was that folks that lived in single family neighborhoods who would not have any problem with kids being dropped off in the morning and picked up at 6 :00 p.m. or 7 : 00 p.m. it was a single family area would be disturbed once it was opened up to 11 : 30 p.m. or 23 hours per day, which was getting away from the single family area. All he was saying was that there should be a hearing and a process. He recommended that the ordinance go on to the city council and a meeting could be held with Ms. Mechanick and the city attorney to discuss her concerns . If there are significant changes and differences, this would come back to the planning commission. From staffs standpoint, he wanted the ordinance to be as strict as possible. He suggested passing this onto council with the concern of inconsistencies brought up and they would be addressed at the council meeting. The matter would be sent back to the commission for comment if there were significant changes . He did not believe they were incorrect and they had the right to have this ordinance the way it is . Commissioner Jonathan asked with this ordinance if anyone could go into any residential neighborhood if they were in 11 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 compliance with the standards set forth in the ordinance, they must be granted the right to operate a large home day care facility; Mr. Diaz said that the way the state ordinance was written, yes . There was virtually no way it could be denied. That was the reason for the limitations regarding hours of operation, the playing hours, and picking up of children. Commissioner Jonathan felt this was in conflict with the city's own land use designation in the zoning ordinance, the definition of residential, and this was carrying on a commercial activity. Mr. Diaz agreed that it was in conflict, but the State of California said that this was consistent with the R-1 zone and cities are "out of luck" . When the number was six he supported that ordinance, but when going from seven to 12 and 12 at any one time and traffic in and out, that was a different situation. It was not consistent with the residential use. It did not mean it shouldn' t go in there, but that it should require a conditional use permit and the neighbors should voice their concerns and what they would like to see or not see. Commissioner Jonathan stated that he was very family oriented and he was concerned about child care in our community, but this was the wrong way to go about it. He was in favor of child care, but responsible child care. He felt people bought their homes in neighborhoods and had the right to expect normal kinds of neighborhoods rather than a commercial activity next door or across the street from them. He was reluctant to send the ordinance along without comment. He would want to send it to council with: 1) the recommendation that the noticing requirement be expanded from 100 feet to at least 300 feet, if not more; 2) he saw that once the facility was allowed, it made sense to allow an earlier play time rather than before 9 : 00 a.m. ; and 3) he would urge the council to find a way to get around this . He wanted to find a more responsible way of encouraging and developing child care in our community, but not at the cost of infringing on residentially zoned and used parts of our city. Chairman Spiegel agreed with Commissioner Jonathan; he wondered whether the child care center at COD was open 23 hours per day to take care of children for nurses and people that worked in the hotel industry. He knew it was a teaching kind of function over there, but it was a day care center and to his knowledge it was not open in the evenings . Ms. Mechanick said sometimes they were depending on student needs . Chairman Spiegel felt it would be wrong to get away from the conditional use permit process for any kind of facility that was going into an R-1 area that was designated 12 MINUTES PALM DESERT PLANNING COMMISSION FEBRUARY 1, 1994 for single family homes because it was not really a single family home any more and because it took away the opportunity of the neighbors to become involved if a problem developed. He agreed with Commissioner Jonathan. He asked for a motion. Mr. Diaz stated that commission could revise the notice area to 300 feet and the play times to not before 7 : 00 a.m. or after 5 : 30 p.m. Commissioner Jonathan asked that staff also pass along an encouragement to council to see a way to at least mitigate the negative impact this could have on existing and future residential developments and neighborhoods. Mr. Diaz said that would be reflected in the minutes and the council would get a copy. Action: Moved by Commissioner Jonathan, seconded by Commissioner Beaty, approving the findings as presented by staff. Carried 3-0. Moved by Commissioner Jonathan, seconded by Commissioner Beaty, adopting Planning Commission Resolution No. 1637, recommending to city council approval of ZOA 94-1 as amended. Carried 3-0 . C. Case No. CUP 93-10 - DANA AND MELISSA CARNES, Applicant Request for approval of a children' s day care center for service up to 30 children at 74-015 Aster Drive in the R- 1 zone. Mr. Winklepleck stated that some items from the previous case would apply to this request. This family day care center would provide up to 30 children between the ages of 3 and 5 at any one time. Included was a pamphlet given to staff from the facility that explained how they operated. The hours of operation would be between 9 : 00 a.m. and 4 :00 p.m. The applicant provided staff a list of neighbors that had no objection to this center. Staff used the applicable conditions from the previous case including the hours of operation. He added a condition that the day care facility would be limited to a maximum of 30 children at any one time. Staff recommended approval and noted that no negative phone calls or letters had been received. Chairman Spiegel asked for clarification that this was different because this was 30 children, not 12 , and would 13 CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT MEMORANDUM TO: Planning Commission FROM: Assistant City Manager/Director of Community Development DATE: February 1, 1994 SUBJECT: Zoning Ordinance Amendment Establishing "Large Family Day Care" Permits Revisions in state law related to day care facilities necessitates the establishment of a permit procedure by the city. The new permit covers "large family day care homes" which have been defined by state law as a residence providing day care for 7 to 12 children under the age of 10 . Commission should not confuse this permit process with the "conditional use permit" (CUP) procedure. This is a distinct permit and the required findings for approval of a CUP do not, or rather cannot, be applied in this case. The state has limited the discretion that a city has in reviewing these permits . The ordinance as written attempts to address the usual issues concerning these facilities . RECOMMENDATION: Staff recommends that commission adopt a resolution recommending to the city council Zoning Ordinance Amendment 94-1 . ON A. DIAZ /tm PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25 . 04 . 240, 25 . 14 . 020, 25 . 16 . 020, 25 . 18. 020, 25 .20 . 020, 25 .22 . 020, AND 25 . 24 . 020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25 . 04 . 307, 25 . 14 . 035, 25. 15 . 023, 25. 15 . 025, 25 . 16 . 035, 25 . 18. 035, 25 . 20 . 035, 25 . 22 . 035, 25 . 24 .027 , AND 25 . 72 . 015 AND CHAPTER 25 . 72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. CASE NO. ZOA 94-1 WHEREAS, state law distinguishes between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities . WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider' s own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3 . 6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes" ; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the city and also PLANNING COMMISSION RESOLUTION NO. authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the Planning Commission recognizes the growing need for child day care facilities within the city and the preference of some parents for family day care homes; and WHEREAS, the Planning Commission also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the Planning Commission of the City of Palm Desert, California, RESOLVES as follows : Section 1. That Section 25 . 04 .240 of the Municipal Code is amended to read as follows : "25 .04 .240 Day nursery. "Day nursery" ( including preschool and nursery schools) means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their normal place of residence. " Section 2 . That Section 25 . 04 .307 is hereby added to the Municipal Code and will read as follows : "25 .04 .307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider' s own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, 2 PLANNING COMMISSION RESOLUTION NO. including children under the age of 10 years who reside at the home, as defined in state regulations . (b) "Small family day care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations . The foregoing definitions shall be construed in a manner consistent with Chapter 3. 4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3 . That Section 25 . 14 . 020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I . Small family day care homes. " Section 4 . That Section 25. 14 . 035 is hereby added to the Municipal Code and will read as follows : "25 . 14 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 5 . That Section 25 . 15 . 023 is hereby added to the Municipal Code as follows : "25 . 15 .023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes . " Section 6 . That Section 25 . 15 . 025 is hereby added to the Municipal Code to read as follows : "25. 15 .025 Large family day care homes . Large family day care homes are permitted subject to -a use permit pursuant to Chapter 25 . 72A of this code. " Section 7 . That Section 25 . 16 . 020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows : 3 PLANNING COMMISSION RESOLUTION NO. "H. Small family day care homes . " Section B . That Section 25 . 16 . 035 is hereby added to the Municipal Code and will read as follows : 1125. 16 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 9 . That Section 25 . 18. 020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows : "I . Small family day care homes . " Section 10 . That Section 25 . 18 . 035 is hereby added to the Municipal Code and will read as follows: "25 . 18.035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 11 . That Section 25 .20 .020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows : "G. Small family day care homes . " Section 12 . That Section 25 .20.035 is hereby added to the Municipal Code and will read as follows: "25 .20.035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 13 . That Section 25 .22 . 020 of the Municipal Code is hereby amended to read as follows : '125 .22 .020 Permitted uses . The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes . " Section 14 . That Section 25 .22 . 035 is hereby added to the Municipal Code and will read as follows: 4 PLANNING COMMISSION RESOLUTION NO. "25 .22 .035 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 .72A of this code. " Section 15 . That Section 25 . 24 . 020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows : "D. Small family day care homes . " Section 16 . That Section 25 .24 . 027 is hereby added to the Municipal Code and will read as follows : "25 .24 .027 Large family day care homes . Large family day care homes are permitted subject to a use permit pursuant to Chapter 25 . 72A of this code. " Section 17 . That Section 25. 72 . 015 is hereby added to the Municipal Code and will read as follows : 1125 .72 .015 Large family day care homes . The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes . Such permits shall be governed by the procedures and review criteria specified by Chapter 25 . 72A of this code. " Section 18. That Chapter 25 . 72A is hereby added to the Municipal Code and will read as follows : "Chapter 25 . 72A LARGE FAMILY DAY CARE HOME USE PERMITS Sections: 25 .72A.010 Purpose. 25 .72A.020 Application process . 25 .72A.030 Application fee. 25 .72A.040 Notice to property owners . 25 .72A.050 Decision by the zoning administrator. 25 . 72A.060 Appeal of decision. 25 . 72A.070 Expiration of permit. 25 .72A.080 Review of permit; suspension or revocation. 25 . 72A.090 Pre-existing family day care homes . 25 . 72A. 100 Violation; public nuisance and misdemeanor. 5 PLANNING COMMISSION RESOLUTION NO. 25 .72A.010 Purpose. The Planning Commission adopts this Chapter pursuant to California Health & Safety Code Section 1597 . 46 . Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentrations, traffic control, parking, and noise control relating to large family day care homes . Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and requirements . Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services . 25 . 72A.020 Application process . Applications for use permits to operate a large family day care home shall be made to the city' s zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant' s own children under 10 years of age; (b) number of employees; (c) hours of operation and outdoor playtime; (d) state license number. (e) signatures of the legal owners of the real property proposed to be used as a large family day care home, consenting to such use of their property. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor' s parcel map. (b) one copy of a site plan (8 1/2 x 11" ) showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, and fencing; distance to property line; 6 PLANNING COMMISSION RESOLUTION NO. parking areas and number of spaces both on-site and off- site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extinguishers, restroom facilities, and smoke detectors . (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. 25. 72A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council . Said fee shall not exceed the City' s cost of administering the review and permit process . 25 .72A.040 Notice to property owners . Not less than 10 days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 100 foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home and no closer than six hundred (600) feet in linear feet along a fronting street from another large family day care home. In addition, no residential property in the City shall be bounded on more than one ( 1) side by a large family day care home. (b) Traffic control . The traffic circulation plan shall be designed to diminish traffic safety problems . Residences locate don arterial streets (as shown on the general plan circulation map) must provide a drop-off/ pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in 7 PLANNING COMMISSION RESOLUTION NO. neighborhoods already identified as having traffic congestion problems . (c) Parking. All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on- street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements . (d) Noise control . Operation of the facility shall comply with all provisions of Chapter 9 .24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices and restrictions on outside play hours, location of play areas, and placement of outdoor play equipment. (e) Hours of operation. Large family day care homes shall operate only between the hours of 6 : 00 a.m. and 7 : 00 p.m. , Monday through Friday. No outdoor play is allowed before 9 : 00 a.m. or 5 : 30 p.m. ( f) Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant' s home. (g) Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. (h) Contact person. The current name(s) and telephone number(s) of the applicant and all other operators, if any, of the family day care home shall be on file with the department of community development at all times . (i) State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. ( j ) Building and Fire Code Compliance. Consistent with Section 1597 . 46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single- family residences, and with such additional standards as 8 PLANNING COMMISSION RESOLUTION NO. the State Fire Marshal from time to time adopt pursuant to Section 1597 .46(d) of the Health and Safety Code to promote the fire and life safety of children in family day care homes. (See Title 22 of the California Code of Regulations . ) No application shall be approved unless and until the City' s building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing building and fire code provisions. (k) Smoking Restricted. Consistent with Section 1596 .795 of the Health and Safety Code, smoking of tobacco and other substances--whether in pipe, cigar, or cigarette form-- shall not be allowed in the applicant' s home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. ( 1) Single-family Zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings . (m) Consent of Property Owner. No use permit shall be issued unless the owner(s) of the real property proposed to be used as a large family day care home consents in writing thereto. 25 .72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission' s decision shall be final unless the matter is called up for review by the City Council . The appellant shall pay the City' s costs, if any, of processing and conducting the appeal . The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City shall deposit said amount with the City before the City will process the request for an appeal . If at the end of the appeal, the City' s actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City' s costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 9 PLANNING COMMISSION RESOLUTION NO. 25 .72A.070 Expiration of permit. If a large family day care home possessing a use permit ceases to operate for a period of greater than one hundred and eighty ( 180) consecutive days, then its use permit shall be considered null and void. 25 .72A.080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25 . 72A.050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the planning commission may suspend or revoke the permit or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter based on findings derived from testimony and evidence presented at the public hearing. 25 .72A.090 Pre-existing family day care homes. Any family day care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such homes may continue to operate during the City's processing of their application(s) . Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25 . 72A. 100. " 25 .72A. 100 Violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in this City without a valid use permit as required by this Chapter is both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8.20 of this code and any other applicable provision of state or local law. 10 PLANNING COMMISSION RESOLUTION NO. Section 19 . In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20 . The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED at a regular meeting of the Palm Desert Planning Commission, held on this 1st day of February 1994, by the following vote, to wit: AYES : NOES: ABSENT: ABSTAIN: ROBERT A. SPIEGEL, Chairman ATTEST: RAMON A. DIAZ, Secretary Palm Desert Planning Commission 11 .� 73-510 FRED WARING DRIVE,PALM DESERT,CALIFORNIA 92260 TELEPHONE(619)346-0611 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 94-1 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by the CITY OF PALM DESERT to amend sections 25.04.240, 25.14.020, 25.16.020, 25.18.020, 25.20.020, 25.22.020, and 25.24.020 of the Municipal Code and adding sections 25.04.307, 25.14.035, 25.15.023, 25.15.025, 25.16.035, 25.18.035, 25.20.035, 25.22.035, 25.24.027, and 25.72.015 and Chapter 25.72A to the Municipal Code, regarding day nurseries and family day care homes. SAID public hearing will be held on Tuesday, February 1, 1994, at 7:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ, Secretary January 12, 1994 Palm Desert Planning Commission SENT BY: 11-12-93 ; 5:24PN ;BEST. BEST.& KRIEGER, 34170984 1/15 BEST, BEST & KRIEGER •VM"FY IM UY ..O...3bMM.40R.0.4lIq� LAWYEM RIVERSIDE 39700 606 HOPE DRIVE, SUITE 312 ONTARIO (714) 6136-1490 POST OFFICE BOX Ibbl (714) 999-BD64 - RANCHO MIRAGE, CALIFORNIA 22270 PALM -PRINAA TXLXPN NC 14191 969-160 (619) 325-7264 TELECOPIER (619) 340-6696 FACSIMILE TRANSMISSION COVER BHEET FAX / (619) 340-6698 DATE: November 12, 1993 To: Ray Diaz, Dir. Community Development City of Palm Desert FAX NUMBER: PD/Bldg FROM: MARSHALL RUDOLPH, Deputy City ALLorney DOCUNIMT DESCRIPTION: Day Care Ordinance, etc. (Our File No. 72500.0406) NO. OF PAGER (INCLUDING COVER BEERT) : 15 COMKBNTM Last fax (at 4:53 pm) inadvertently used a previous transmittal page (from Nov. 3) . It actually contained the most recent versions of the aforementioned documents. Sorry. Just in case there was any confusion, I'm sending the whole thing again. If-you have any questions, please call. THEBE FASED DOCUM B ARE INTENDED FOR THE USE OX THE INDIVIDUAL OR WTIXX TO WHICH T IB PRIVILEGED AND CONFIDENIhL. IF OU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OP THIS COMMUNICATION IS STRICTLY PROHIBITED. IF You HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICM . THANK YOU. If there are any problems receiving this FAX transmittal, please call Marshall S. Rudolph, at (619) 568-2611. Rswusu SENT BY: 11-12-93 ; 5:25PN ;BEST. BEST.& KRIEGER- 34170984 2l15 ., LAW OFFICES OF BEST, BEST & KRIEGER November 12, 1993 KMRANDUM TO: Ray Diaz, Dir. of Community Development City of Palm Desert � FROM: Marshall S. Rudolph, Deputy City AttornW9A RE. Family Day care ordinance #id Resolution -- Procedures (our file no. 72500.0406) Enclosed are copies of the above-referenced documents. The ordinance is revised per our conversation. The resolution sets the amount of the fee to be imposed by the ordinance. Please note that because the ordinance either enacts or amends portions of the City's zoning laws, both the planning commission and the city council must hold properly noticed public hearings regarding the ordinance pursuant to Government Code Sections 65854 and 65856 before the Council may adopt it. Section 65854 specifies that if a zoning ordinance affects permitted uses of real property, as does the proposed ordinance, then notice of the planning commission's hearing must be given pursuant to Government Code Section 65091. Section 65091 allows publication notice where more than 1,000 property owners are potentially affected by an ordinance, as is presumably the case here (otherwise, mailed notice would be required) . Publication is to be done by a "display advertisement of at least one-eighth page in at least one newspaper of general circulation within the local agency in which the proceeding is conducted at lest 10 days prior to the hearing." (Section 65091(a) (3) . ) The notice must contain "the date, time, and place of a public hearing, the identity of the hearing body or officer, a general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the real property, if any, that is the subject of the hearing." (section 65094.) Because the proposed ordinance includes the adoption of a new fee or charge (namely, a use permit application fee) for which no special notice period is required by statute, Section 66018 obligates us to exceed the notice period that would otherwise be required by section 65090 for the city council s public hearing (publication one time in at least one newspaper of general circulation within the City at least 10 days prior to the hearing) . Specifically, Section 66018 requires us to provide notice of the hearing pursuant to Section 6062a, which is publication for 10 days in a newspaper published once a week or oftener. Two publications, with at least five days intervening between the dates of first and last publication not counting such publication dates, are sufficient. The notice should contain the NSR43707 SENT BY: 11-12-93 ; 5:25PM ;BEST. BEST.& KRIEGER- 34170984 3/15 LAW OFFICES OF BEST, BEST 6 KRIEGER same information as the notice for the planning commission's hearing, plus reference to the fact that an application fee would be imposed by the ordinance. In addition, section 66018 mandates that the Council allow oral and written presentations to be made during the hearing (which it would probably do anyway) . Note that no special notice or hearing is required for the resolution, which does not impose any fee or change zoning. Rather, it merely sets the amount of the fee that is to be established by the ordinance (if it's adopted) . Should you have any questions regarding the foregoing, please feel free to give me call. cc: Sheila Gilligan, City Clerk David J. Erwin, City Attorney RE43707 -2- SENT BY: 11-12-33 ; 5:26PN BEST. BEST.& KRIEGER-+ 3417098;# 4/15 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNTA, SETTING THE AMOUNT OF THE APPLICATION FEE FOR LARGE FAMILY DAY CARE IMP.. PRRMTTS. WHEREAS, the City Council is considering adoption of an ordinance that would allow large family day care homes to operate in residential districts of the City subject to a use permit; and WHEREAS, if approved, the ordinance under consideration would, among other things, establish an application fee to cover the City's direct cost of reviewing and processing applications for large family day care home use permits, in an amount to be set by resolution of the Council. NOW, THEREFORE, BE IT RESOLVED by the City Council of Lhe City of Palm Desert, California, as follows: Section 1. Based on data supplied by the city's department of community development, the City Council finds and determines that the City's estimated costs of reviewing and processing an application for a large family day care home is $ Section 2. The Council hereby sets the application fee for large family day care use permits as $ per application, to take effect simultaneously with an ordi— n e of the City Council establishing such a fee. PASSED, APPROVED, and ADOPTED by the City Council of the City of Palm Desert, California, this day of , 1993, by the following vote: AYES: NOES9 ABSENT: ABSTAIN: JEAN M. BENSON, Mayor City of Palm Desert ATTEST: SHEILA R. GILLIGAN, City Clerk RUa3a SENT BY: 11-12-83 ; 5:26PM ;BEST, BEST,& hRIEGER 341100984 5/15 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25.04 .240, 25.14.020, 25.16.020, 25. 18 .020, 25.20.020, 25.22.020, AND 25.24 . 020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25.04 .307, 25.14 .035, 25.15.023, 25.15.025, 25.16. 0351 25.18 .035, 25.20.035, 25.22.035, 25.24.027, AND 25.72. 015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. WHEREAS, state Law distinguished between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and incluaes infant centers, preschools, and extended day care facilities. WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider's own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as apecifically authorized by Chapter 3.6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes"; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the home; and WHEREAS, "large family day ware homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of ail local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and NSR43124 SENT BY: 11-12-93 ; 5:27PN BEST, BEST,& KRIEGER- 34170984 6/15 WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizer, cities to require that would-be operators of such homes obtain a use permit from the City and also authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the City Council recognizes the growing need for child day care facilities within the City and the preference of some parents for family day care homes; and WHEREAS, the City Council also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the City Council of the City of Palm Desert, California, DnPA ORDATN as follows: loction 1. That Section 25.04 . 240 of the Municipal Code is amended to read as follows: "25.04.240 Day nursery. "Day nursery" (including preschool and nursery schools) means any group of buildings, building Or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their normal place of residence. ,, Section 2. That Section 25.04.307 is hereby added to the Municipal code and will read as follows: 1125.04.307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider's own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: M9243124 -2- SENT BY: 11-12-93 ; 5:27PN BEST, REST,& KRIEGER 34170984 7/15 (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which providos family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in stato rogulations. The foregoing definitions shall be construed in a manner consistent with Chapter 3 .4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3. That Section 25.14.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes. " Section 4._ That Section 25.14.035 is hereby added to the Municipal Code and will read as follows: "25.14.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 5. That Section 25.15.023 is hereby added to the Municipal Code as follows: "25.15.023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes." Section 6. That Section 25.15.025 is hereby added to the Municipal Code to read as follows: 1125.15.025 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to chapter 25.72A of this code. " Section 7. That section 25. 16.u2U of the Municipal code is hereby amended by the addition of subsection "H" as follows: "H. Small family day care homes." NSR43124 -3- SENT BY: 11-12-83 ; 5:28PN ;BEST. BEST,& KRIEGER� 3417098;* 8/15 Section e. That Section 25. 16.035 is hereby added to the Municipal code and will read as follows: 025.16.035 Large family day care homer. Large family day care homes are permitted subject to a use permit pursuant to Chapter 26.72A of this Code." Section 9. That section 25. 19.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes. " Section 10. That Section 25.18.035 is hereby added to the Municipal Code and will read as follows: "25.18.035 Large family day care homes. Large ramily day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section 11. That Section 25. 20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: "G. Small family day care homes. " Section 12. That Section 25.20.035 is hereby added to the Municipal Code and will read as follows: "2S.20.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 13. That Section 25.22.020 of the Municipal Code is hereby amended to read as follows: 1125.22.020 Permitted uses. The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes." Section 14 . That Section 25.22.035 is hereby added to the Municipal Code and will read as follows: "25.22.035 Large family day care hones. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." RSR43124 -4- SENT BY: 11-12-23 ; 5:28PM ;BEST. BEST.& KRIEGER, 34170384 0/15 Section 15. That Section 25. 24.020 of the Municipal Code is hereby amended by the addition of subsection I'D" as follows: "D. Small family day care homes." Section 16. That Section 25.24.027 is hereby added to the Municipal Code and will read as followee "25.24.027 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code." Section _17. That Section 25.72.015 is hereby added to the Municipal coca and will read as follows: "25.72.015 Large family day Care house. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this Code." Section 18. That Chapter 25.72A is hereby added to the Municipal Code and will read as follows: "Chapter 25.72A LARGE FAMILY DAY CARE HOKE USE PERMITS sections: 25.72A.010 Purpose. 25.72A.020 Application pr000ss. 25.72A.030 Application fee. 25.72A.040 Notion to property owners. 25.72A.050 Decision by the zoning administrator. 2s.72A.060 Appeal of decision. 25.72A.070 Expiration of permit. 25.72A.080 Review of permit; suspension or revocation. 25.72A.090 Pre-existing family day care homes. 25.72A.100 violation; public nuisance and misdemeanor. 25.72A.010 Purpose. The City Council adopts this Chapter pursuant to California Health & Safety Code Section 1597.46. Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentration, traffic control, parking, and noise control relating to large family day care homes. Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and MSR43124 -5- SENT BY: 11-12-93 ; 5:29PM ;BEST, BEST,& KRIEGER 3417098;#10/15 requirements. Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services. 25.72A.020 Application process. Applications for use permits to operate a large family day care home shall be made to the City's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant's own children under 10 years of age; (b) number of employees; (c) hours of operation and outdoor playtime; (d) state license number. (e) signatures of the legal owners of the real property proposed to be used as a large family day care home, consenting to such use of their property. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan (Sk x 11") showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, and fencing; distance to property line; parking areas and number of spaces both on- site and off-site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extin- guishers, restroom facilities, and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. 25.73A.030 Application fee. There is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the City's cost of administering the review and permit process. NSR43124 -6- SENT BY: 11-12-03 ; 5:22M ;BEST. BEST.& KRIEGER- 3417098;#11/15 25.72A.040 Notice to property cimers. Not less than 10 days prier to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 100 foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision on the application unless requested by the recipient. 23.72A.050 Decision by the zoning administrator. After proper notice has been given to affected property owners pursuant to Section 25.72A.040, the zoning administrator or his or her designee shall render a decision on the application. unless requested by the applicant or other affected person, no hearing shall be held on the application before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home and no closer than six hundred (600) feet in linear feet along a fronting street from another large family day rare home. Tn addition, no residential property in the City shall be bounded on more than one (1) side by a large family day care home. (b) Traffic control. The traffic circulation plan shall be dc3igned to diminish traffic safety problems. neoidences located on arterial streets (as shown on the general plan circulation map) must provide a drop-vff/pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in neighborhoods already identified as having traffic congestion problems. (c) Parking. All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on-street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. MOW -7- SENT BY: 11-12-93 ; 5:30PV ;BEST. BEST.& KRIEGER 3417098;912/15 (d) Noise control. Operation of the facility shall comply with all provisions of Chapter 9.24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices and restrictions on outside play hours, location of play areas, and plaooment of outdoor play equipment. (e) Hours of operation. Large family day care homes shall operate only between the hours of 6:00 a.m. and 7:00 p.m., Monday through Friday. No outdoor play is allowed berore 9:00 a.m. or 5:30 p.m. (f) Signaae. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. (g) Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. (h) Contact person. The current name(s) and telephone number(s) of the applicant and all other operators, if any, of the family day care home shall be on file with the department of community development at all times. (1) State licensing_ All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. (i) Building and Fire Code Compliance consistent with Section 1597.46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single-family residences, and with such additional standards as the Sta La Fire Marshal from time to time adopt pursuant to Section 1597.46(d) of the Health a& Safety Code to promote the fire and life safety of children in family day care homes. (See Title 22 of the California code of Regulations.) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing building and fire code provisions. (k) Smoking Restricted. Consistent with section 1596.795 of the Health & Safety Cade, smoking of tobacco and other substances -- whether in pipe, cigar, or cigarette form -- shall not be allowed in NSR43124 -a- SENT BY: 11-12-33 ; 5:31PM ;BEST. BEST.& KRIEGER� 3417038;#13/15 the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. (1) Single-family zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. (m) Consent Property ner. No use permit shall be issued unless the owner(s) of the real property proposed to be used as a large family day care home consents in writing thereto. 23.72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City's costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City will process the request for an appeal. If at the and of the appeal , the City's actual costs were less than the estimate, than the City shall refund the unused portion of the deposit to the appellant. In the event that the City's coats exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 23.72A.070 Upiratioa of permit. If a large family day care home possessing a use permit ceases to operate for a period greater than one hundred and eighty (180) consecutive days, then its use permit shall be considered null and void. 26.72A.080 Review of permit= suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25.72A. 050, the zoning administrator may require the use permit to be reviewed by the planning Commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6) substantiated complaints alleging violations of this chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the planning commission NSRA3124 -9- SENT BY: 11-12-93 ; 5:31PM ;BEST. BEST.& KRIEGER 34170984014/15 may suspend or revoke the permit or may, in its discretion, impose Additional reasonable standards and requirements beyond those provided in this Chapter based on findings derived from testimony and evidence presented at the public hearing. 2S.79A.090 pre-azisting family day care homes. Any family day care home operating in the City on the effective date of this ordinance shall apply t0 the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such hones may continue to operate during the City,s processing of their application(e) . Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25.72A.100.n 25.73A.100 Violation; public aulsanos gad •isdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in the City without a valid use permit as required by this Chapter is both a misdemeanor and a public nuisance. The nuisance may be enjoinpa or otherwise abated by the City in the manner prescribesi by Chapter 9.20 of this Coda and any "other applicable provision of state or local law. Section 79. Tn the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the council would have adopted the ordinance without inclusion of that provision. Section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the palm Desert post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED? APPROVED and ADOPTED this day of 1993, by the city Council of the City of Palm Desert, Californ a by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: msR43124 —10— SENT BY: 11-12-93 ; 5:32PM ;BEST. BEST.& KRIEGER- 3417098;#15l15 JEAN H. BENEON, Mayor ATTEST: SHEILA R. CILLICAN, City Clerk City of Palm Doaert, California MOR43124 -11- • LAW OFFICES OF BEST, BEST 6 KRIEGEr, RECEIVED NOV 2 3 1993 November 12 , 1993 COMMUNITY DEVELOPMENT DEPARTMENT COY OF PALM OESW L-0 MEMORANDUM • G •_ c TO: Ray Diaz, Dir. of Community Development rn - City of Palm Desert - r1 FROM: Marshall S. Rudolph, Deputy City Attornesv&// c RE: Family Day Care Ordinance and Resolution -- Procedures (Our file no. 72500. 0406) rn c Enclosed are copies of the above-referenced documents. The ordinance is revised per our conversation. The resolution sets the amount of the fee to be imposed by the ordinance. Please note that because the ordinance either enacts or amends portions of the City's zoning laws, both the planning commission and the city council must hold properly noticed public hearings regarding the ordinance pursuant to Government Code Sections 65854 and 65856 before the Council may adopt it. Section 65854 specifies that if a zoning ordinance affects permitted uses of real property, as does the proposed ordinance, then notice of the planning commission's hearing must be given pursuant to Government Code Section 65091. Section 65091 allows publication notice where more than 1, 000 property owners are potentially affected by an ordinance, as is presumably the case here (otherwise, mailed notice would be required) . Publication is to be done by a "display advertisement of at least one-eighth page in at least one newspaper of general circulation within the local agency in which the proceeding is conducted at lest 10 days prior to the hearing. " (Section 65091(a) (3) . ) The notice must contain "the date, time, and place of a public hearing, the identity of the hearing body or officer, a general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the real property, if any, that is the subject of the hearing. " (Section 65094. ) Because the proposed ordinance includes the adoption of a new fee or charge (namely, a use permit application fee) for which no special notice period is required by statute, Section 66018 obligates us to exceed the notice period that would otherwise be required by Section 65090 for the city council's public hearing (publication one time in at least one newspaper of general circulation within the City at least 10 days prior to the hearing) . Specifically, Section 66018 requires us to provide notice of the hearing pursuant to Section 6062a, which is publication for 10 days in a newspaper published once a week or oftener. Two publications, with at least five days intervening between the dates of first and last publication not counting such publication dates, are sufficient. The notice should contain the MSR43707 • LAW OFFICES OF BEST, BEST 6 KRIEGEr, same information as the notice for the planning commission's hearing, plus reference to the fact that an application fee would be imposed by the ordinance. In addition, Section 66018 mandates that the Council allow oral and written presentations to be made during the hearing (which it would probably do anyway) . Note that no special notice or hearing is required for the resolution, which does not impose any fee or change zoning. Rather, it merely sets the amount of the fee that is to be established by the ordinance (if it's adopted) . Should you have any questions regarding the foregoing, please feel free to give me call. cc: Sheila Gilligan, City Clerk David J. Erwin, City Attorney NSR43707 -2- RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, SETTING THE AMOUNT OF THE APPLICATION FEE FOR LARGE FAMILY DAY CARE USE PERMITS. WHEREAS, the City Council is considering adoption of an ordinance that would allow large family day care homes to operate in residential districts of the City subject to a use permit; and WHEREAS, if approved, the ordinance under consideration would, among other things, establish an application fee to cover the City's direct cost of reviewing and processing applications for large family day care home use permits, in an amount to be set by resolution of the Council. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows: Section 1. Based on data supplied by the City's department of community development, the City Council finds and determines that the City's estimated costs of reviewing and processing an application for a large family day care home is $ Section 2. The Council hereby sets the application fee for large family day care use permits as $ per application, to take effect simultaneously with an ordinance of the City Council establishing such a fee. PASSED, APPROVED, and ADOPTED by the City Council of the City of Palm Desert, California, this day of , 1993, by the following vote: AYES: NOES: ABSENT: ABSTAIN: JEAN M. BENSON, Mayor City of Palm Desert ATTEST: SHEILA R. GILLIGAN, City Clerk MSR43645 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING SECTIONS 25. 04.240, 25. 14 .020, 25. 16. 020, 25. 18 .020, 25.20. 020, 25.22 . 020, AND 25.24.020 OF THE MUNICIPAL CODE AND ADDING SECTIONS 25. 04.307, 25.14 .035, 25. 15. 023, 25. 15.025, 25. 16. 035, 25. 18.035, 25.20.035, 25.22. 035, 25.24. 027, AND 25.72 .015 AND CHAPTER 25.72A TO THE MUNICIPAL CODE, REGARDING DAY NURSERIES AND FAMILY DAY CARE HOMES. WHEREAS, state law distinguishes between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" is defined as any child day care facility other than a family day care home, and includes infant centers, preschools, and extended day care facilities. WHEREAS, "family day care homes" are defined as homes that regularly provide care, protection, and supervision to 12 or fewer children in the provider's own home for periods of less than 24 hours per day while the parents or guardians are away; and WHEREAS, the state legislature has declared that family day care homes are a matter of statewide concern, thus state law occupies and preempts this field to the exclusion of municipal zoning, building and fire codes and regulations governing the use or occupancy of family day care homes for children, except as specifically authorized by Chapter 3 .6 of Division 2 of the California Health & Safety Code; and WHEREAS, state law distinguishes between "small family day care homes" and "large family day care homes" ; and WHEREAS, "small family day care homes" are defined as homes that provide family day care to six or fewer children, including children under the age of 10 years who reside at the ,home; and WHEREAS, "large family day care homes" are defined as homes that provide family day care to 7 to 12 children, inclusive, including children under the age of 10 years who reside at the home; and WHEREAS, with respect to small family day care homes, state law mandates that use of a single-family residence as a small family care home shall be considered a permitted residential use for purposes of all local ordinances and cities are precluded from imposing any business license, fee, or tax for the privilege of operating them; and NSR43124 WHEREAS, with respect to large family day care homes, state law precludes cities from prohibiting their operation on lots zoned for single-family dwellings, but authorizes cities to require that would-be operators of such homes obtain a use permit from the City and also authorizes cities to establish reasonable standards, restrictions, and requirements for operation of large family day care homes concerning space and concentration, traffic control, parking, and noise control; and WHEREAS, the Palm Desert Municipal Code is silent with respect to family day care homes, but does allow "day nurseries" to operate within most residential districts as a conditional permitted use; and WHEREAS, the Municipal Code defines "day nursery" as any group of buildings, building or portion thereof, used primarily for the daytime care of six or more children at any location other than their normal place of residence; and WHEREAS, the City Council recognizes the growing need for child day care facilities within the City and the preference of some parents for family day care homes; and WHEREAS, the City Council also recognizes the adverse impacts that such facilities can have on the peace and tranquility of residential neighborhoods if not properly regulated in a manner consistent with state law. NOW, THEREFORE, the City Council of the City of Palm Desert, California, DOES ORDAIN as follows: Section 1. That Section 25.04.240 of the Municipal Code is amended to read as follows: 1125. 04.240 Day nursery. "Day nursery" (including preschool and nursery schools) means any group of buildings, building or portion thereof, other than a family day care home, used primarily for the daytime care of children at any location other than their normal place of residence. " Section 2 . That Section 25. 04. 307 is hereby added to the Municipal Code and will read as follows: 1125.04.307 Family day care home. "Family day care home" means a home which regularly provides care, protection, and supervision of 12 or fewer children, in the provider's own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: MSR43124 -2- (a) "Large family day care home" which means a home which provides family day care to 7 to 12 children per day, inclusive, including children under the age of 10 years who reside at the home, as defined in state regulations. (b) "Small family day care home" which means a home which provides family day care to six or fewer children per day, including children under the age of 10 years who reside at the home, as defined in state regulations. The foregoing definitions shall be construed in a manner consistent with Chapter 3 .4 of Division 2 of the California Health & Safety Code and any applicable case law. " Section 3 . That Section 25. 14.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes. " Section 4. That Section 25. 14. 035 is hereby added to the Municipal Code and will read as follows: 1125.14.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 5. That Section 25. 15.023 is hereby added to the Municipal Code as follows: 1125.15.023 Principal uses and structures permitted. The following are permitted uses within any Hillside Planned Residential District and do not require pre-approval pursuant to a development plan: A. Small family day care homes. " Section 6. That Section 25. 15.025 is hereby added to the Municipal Code to read as follows: "25.15.025 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 7. That Section 25. 16.020 of the Municipal Code is hereby amended by the addition of subsection "H" as follows: "H. Small family day care homes. " MSR43124 -3- Section 8. That Section 25. 16.035 is hereby added to the Municipal Code and will read as follows: 1125.16. 035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 9. That Section 25. 18.020 of the Municipal Code is hereby amended by the addition of subsection "I" as follows: "I. Small family day care homes. " Section 10. That Section 25. 18. 035 is hereby added to the Municipal Code and will read as follows: 1125.18.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 11. That Section 25.20.020 of the Municipal Code is hereby amended by the addition of subsection "G" as follows: "G. Small family day care homes. " Section 12 . That Section 25. 20.035 is hereby added to the Municipal Code and will read as follows: 1125.20.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 13 . That Section 25.22.020 of the Municipal Code is hereby amended to read as follows: "25.22.020 Permitted uses. The following uses shall be permitted in any R-1-M Single- Family/Mobile Home Residential District: A. Small family day care homes. " Section 14_ That Section 25.22 .035 is hereby added to the Municipal Code and will read as follows: 1125.22.035 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " MSR43124 -4- Section 15. That Section 25.24 .020 of the Municipal Code is hereby amended by the addition of subsection "D" as follows: "D. Small family day care homes. " Section 16. That Section 25.24. 027 is hereby added to the Municipal Code and will read as follows: 1125.24.027 Large family day care homes. Large family day care homes are permitted subject to a use permit pursuant to Chapter 25.72A of this Code. " Section 17. That Section 25.72 .015 is hereby added to the Municipal Code and will read as follows: "25.72.015 Large family day care homes. The application procedures and review criteria of this chapter shall not apply to use permits for large family day care homes. Such permits shall be governed by the procedures and review criteria specified by Chapter 25.72A of this Code. " Section 18. That Chapter 25.72A is hereby added to the Municipal Code and will read as follows: "Chapter 25.72A LARGE FAMILY DAY CARE HOME USE PERMITS Sections: 25.72A.010 Purpose. 25.72A.020 Application process. 25.72A.030 Application fee. 25.72A. 040 Notice to property owners. 25.72A.050 Decision by the zoning administrator. 25.72A.060 Appeal of decision. 25.72A.070 Expiration of permit. 25.72A.080 Review of permit; suspension or revocation. 25.72A.090 Pre-existing family day care homes. 25.72A.100 violation; public nuisance and misdemeanor. 25.72A.010 Purpose. The City Council adopts this Chapter pursuant to California Health & Safety Code Section 1597.46. Its purpose is to prescribe reasonable land-use standards, restrictions, and requirements concerning space and concentration, traffic control, parking, and noise control relating to large family day care homes. Its purpose is also to establish an economical process consistent with state law for obtaining a use permit to operate a large family day care home in conformance with such standards, restrictions, and MSR43124 -5- requirements. Its purpose is not to license, certify, or otherwise regulate the quality and safety of day care services provided by family day care homes and those who operate them, which is governed exclusively at the state level by the department of social services. 25.72A.020 Application process. Applications for use permits to operate a large family day care home shall be made to the City's zoning administrator or his or her designee, who shall specify the form of said applications consistent with this section. At a minimum, application forms shall indicate all of the following: (a) number of children to be cared for by the applicant, including the applicant's own children under 10 years of age; (b) number of employees; (c) hours of operation and outdoor playtime; (d) state license number. (e) signatures of the legal owners of the real property proposed to be used as a large family day care home, consenting to such use of their property. In addition to submission of a completed application form and application fee as provided by this Chapter, the applicant shall submit the following documentation: (a) one copy of the assessor's parcel map. (b) one copy of a site plan (8'k x 1111) showing: location and dimensions of existing residence and other structures, including outdoor play structures and equipment, and fencing; distance to property line; parking areas and number of spaces both on- site and off-site; access to and exits from the home; floor(s) on which day care is to be provided; traffic circulation; location of fire extin- guishers, restroom facilities, and smoke detectors. (c) an accurate traffic circulation plan showing parking, circulation, and drop-off areas. 25.72A.030 Application fee. Thdre is hereby established an application fee for the review and processing of applications for use permits pursuant to this Chapter in an amount to be set by resolution of the City Council. Said fee shall not exceed the City's cost of administering the review and permit process. MSR43124 -6- 25.72A.040 Notice to property owners. Not less than 10 days prior to the date on which the decision will be made on the application, the zoning administrator or his or her designee shall give notice of the proposed use by mail or delivery to all owners shown on the last equalized assessment roll as owning real property within a 100 foot radius of the exterior boundaries of the proposed large family day care home. A copy of the notice shall also be sent to the applicant. The notice shall inform its recipient that no hearing shall be held before a decision on the application unless requested by the recipient. 25.72A.050 Decision by the zoning administrator. After proper notice has been given to affected property owners pursuant to Section 25.72A.040, the zoning administrator or his or her designee shall render a decision on the application. Unless requested by the applicant or other affected person, no hearing shall be held on the application before a decision is made. The application shall be approved if all of the following standards and requirements are met: (a) Space and concentration. Properties proposed for use as large family day care homes shall be located no closer than three hundred (300) feet in all directions from another large family day care home and no closer than six hundred (600) feet in linear feet along a fronting street from another large family day care home. In addition, no residential property in the City shall be bounded on more than one (1) side by a large family day care home. (b) Traffic control. The traffic circulation plan shall be designed to diminish traffic safety problems. Residences located on arterial streets (as shown on the general plan circulation map) must provide a drop-off/pick-up area designed to prevent vehicles from backing onto the arterial roadway. The applicant may be required to submit a plan of staggered drop-off and pick-up time ranges to reduce congestion in neighborhoods already identified as having traffic congestion problems. (c) Parking. All homes used for large family day care facilities shall provide at least three automobile parking spaces, nor more than one of which may be provided in a garage or carport. Parking may be on-street if contiguous to property. These may include spaces already provided to fulfill residential parking requirements. MSR43124 -7- (d) Noise control. Operation of the facility shall comply with all provisions of Chapter 9.24 of the Municipal Code. Additional conditions may be placed on use permits to reduce noise impact, including but not limited to: the provision of solid fencing or other sound attenuating devices and restrictions on outside play hours, location of play areas, and placement of outdoor play equipment. (e) Hours of operation. Large family day care homes shall operate only between the hours of 6:00 a.m. and 7: 00 p.m. , Monday through Friday. No outdoor play is allowed before 9:00 a.m. or 5: 30 p.m. (f) Signage. No signs or other exterior markings identifying a large family day care operation shall be allowed on the applicant's home. (g) Residency. The applicant must be a full-time resident of the home that is proposed as a large family day care home. (h) Contact person. The current name(s) and telephone number(s) of the applicant and all other operators, if any, of the family day care home shall be on file with the department of community development at all times. (i) State licensing. All appropriate licensing from the State Department of Social Services shall be obtained prior to commencing operation of any large family day care home in the City. (j) Building and Fire Code Compliance Consistent with Section 1597.46 of the Health & Safety Code, the proposed family day care home must comply with all building and fire code provisions applicable to single-family residences, and with such additional standards as the State Fire Marshal from time to time adopt pursuant to Section 1597.46(d) of the Health & Safety Code to promote the fire and life safety of children in family day care homes. (See Title 22 of the California Code of Regulations. ) No application shall be approved unless and until the City's building inspector and fire marshal, or their designees, have first inspected the premises and approved that the home does comply with the foregoing building and fire code provisions. (k) Smoking Restricted. Consistent with Section 1596.795 of the Health & Safety Code, smoking of tobacco and other substances -- whether in pipe, cigar, or cigarette form -- shall not be allowed in MSR43124 -$- the applicant's home during its hours of operation as a large family day care home with respect to those areas of the home where children are present. (1) Single-family zoning. No use permit shall be issued unless the dwelling unit proposed to be used as a large family day care home is located on a lot zoned for single-family dwellings. (m) Consent of Property Owner. No use permit shall be issued unless the owner(s) of the real property proposed to be used as a large family day care home consents in writing thereto. 25.72A.060 Appeal of decision. The applicant or other affected person may appeal the decision to grant or deny an application for a use permit pursuant to this Chapter to the planning commission. The planning commission's decision shall be final unless the matter is called up for review by the City Council. The appellant shall pay the City's costs, if any, of processing and conducting the appeal. The amount of such costs shall be estimated in advance by the zoning administrator or his or her designee and the appellant shall deposit said amount with the City before the City will process the request for an appeal. If at the end of the appeal, the City's actual costs were less than the estimate, then the City shall refund the unused portion of the deposit to the appellant. In the event that the City's costs exceeded the amount of the deposit, then the appellant shall pay the amount of the difference to the City. 25.72A. 070 Expiration of permit. If a large family day care home possessing a use permit ceases to operate for a period greater than one hundred and eighty (180) consecutive days, then its use permit shall be considered null and void. 25.72A. 080 Review of permit; suspension or revocation. Upon determination by the department of community development that the holder of a large family day care home use permit has not complied with all of the standards and requirements of this Chapter, especially Section 25.72A. 050, the zoning administrator may require the use permit to be reviewed by the planning commission at public hearing. A noticed public hearing to review the use permit is mandatory when the City receives six (6) substantiated complaints alleging violations of this Chapter. If the planning commission determines that the holder has failed in a material way to comply with all of the standards and requirements of this Chapter, then the planning commission MSR43124 -9- may suspend or revoke the permit or may, in its discretion, impose additional reasonable standards and requirements beyond those provided in this Chapter based on findings derived from testimony and evidence presented at the public hearing. 25.72A.090 Pre-existing family day care homes. Any family day care home operating in the City on the effective date of this ordinance shall apply to the City for a use permit pursuant to this Chapter within thirty (30) days after the effective date of this ordinance. Such homes may continue to operate during the City's processing of their application(s) . Any such home not applying to the City within thirty (30) days after the effective date of this ordinance shall be considered in violation of this Chapter and may be abated as a nuisance pursuant to Section 25.72A.100. " 25.72A.100 violation; public nuisance and misdemeanor. Operation of large family day care home pursuant to this Chapter is a privilege, not a right. Any large family day care home operating in the City without a valid use permit as required by this Chapter is both a misdemeanor and a public nuisance. The nuisance may be enjoined or otherwise abated by the City in the manner prescribed by Chapter 8.20 of this Code and any other applicable provision of state or local law. Section 19. In the event that any provision of this ordinance is declared unconstitutional or otherwise unenforceable, the City Council declares that said provision is severable and that the Council would have adopted the ordinance without inclusion of that provision. Section 20. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in the Palm Desert Post, a newspaper of general circulation, printed, published and circulated within the City of Palm Desert, and same shall be in full force and effect 30 days after its adoption. PASSED, APPROVED and ADOPTED this day of , 1993, by the City Council of the City of Palm Desert, Calif—o a by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: MSR43124 -1 0- JEAN M. BENSON, Mayor ATTEST: SHEILA R. GILLIGAN, City Clerk City of Palm Desert, California MSR43124 -11- FR:1CF OF PUEUcATioN l"hi. )ace is for (2015.5 C:.C.P) the LCLMy Clerk's Stamp Proof of Publication of: R-1E350 Case: ZOA 94-1. 1.-EGW4- NOTICE CITY OF PALM DESERT LEGAL NOTICE _ CASE NO.ZOA 94-1 STATE OF CALIFORNIA, NOTICE IS HEREBY GIVEN that a public hearing County of Riverside, I will be held before the Palm Desert Planning Commission to consider a request by the CITY OF am a citizen of the United PALM DESERT to amend sections sections 25.04.240, States and a resident of the 25A4.021 25.16.02% 2118521 2120120, 25.22.020, and 25.24.020 of the Municipal Code County aforesaid; I am over and adding sections 25.04.307, 25.14.035, the age of eighteen years, 25.15.023, 25.15.025, 25.16.035, 25.18.035, 25.20.035, 25.22.035, 25.24.027, and 25.72.015 and not a party to or interested and Chapter 25.72A to the Municipal Code,regard- in the ab ve-entitled matter. I ing day nurseries and family day care homes. SAID public hearing will be held on Tuesday, alit the principal clerk of the February 1, 1994 at 7:00 p.m. in the Council printer of the Desert Post, Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive,Palm Desert,California,at which a newspaper of general circulation, time and place all interested persons are invited to printed and published attend and be heard. Written comments concerning I- I hed 4VeLE::ly .1.n the all items covered by this public hearing notice shall be City Of Palm Desert, County of accepted up to the date of the hearing. Information Riverside, and which newspaper concerning the proposed project and/or negative declaration is available for review in the department has been adjudged a newspaper of of community development/planning at the above general, circulation by the Superior address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the CCA.trt of the Cot..unty of Riverside, proposed actions in court, you may be limited to State of California, under the date roisingonlythose issues you or someone else raised at the public hearing described in this notice,or in written of October b, 1.964, Case Number 83659; correspondence delivered to the planning commission (or city council)at,or prior to,the public hearing. that the notice, of which the annexed /s/ RAMON A. DIAZ, Secretary is a printed copy (set in type not- Palm Desert Planning Commission 16:150(PUB JAN 12, 1994) -�m<a11eY" t.flafl florlpF3rG-'i.l) , fk'Ys been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following date to-w.it: 1/.1_/94 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Palm Desert, California, this/� 1/ld/ 4 �....,.�W �4� -,.,,,r—(Sign# i i U ty Of i D I I O'flfll L0(�)�' I 73-510 FRED WAKING DRIVE, PALM DESERT, CALIFORNIA 92260 i TELEPHONE(619)346-0611 CITY OF PALM DESERT LEGAL NOTICE CASE NO. ZOA 94-1 NOTICE IS HEREBY GIVEN that a public hearing will be held before the Palm Desert Planning Commission to consider a request by the CITY OF PALM DESERT to amend sections 25. 04 .240, 25 . 14 . 020, 25 . 16 .020, 25."18 . 020, 25 .20 .020, 25 .22 . 020, and 25 .24 . 020 of the Municipal Code and adding sections 25 . 04 . 307, 25 . 14 . 035, 25 . 15. 023, 25 . 15 . 025, 25 . 16 .035, 25 . 18 .035, 25. 20 .035, 25 .22 . 035, 25 .24 . 027, and 25. 72 . 015 and Chapter 25 . 72A to the Municipal Code, regarding day nurseries and family day care homes . SAID public hearing will be held on Tuesday, February 1, 1994, at 7 : 00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed project and/or negative declaration is available for review in the department of community development/planning at the above address between the hours of 8 : 00 a.m. and 5 : 00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the planning commission (or city council) at, or prior to, the public hearing. PUBLISH: Desert Post RAMON A. DIAZ , Secretary January 12, 1994 Palm Desert Planning Commission i