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HomeMy WebLinkAboutORD 742ORDINANCE 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, 25.18.035, 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 distinguiski4a between "day care centers" and "family day care homes"; and WHEREAS, a "day care center" ij defined as airy c;hi..ld day care facility other than a family day care home, and includes infant centers, pre-schools, and extended clay care facilities. WHEREAS, "family day care homes" 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 & 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 C NSR43124 ORDINANCE NO. 742 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 def ines "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: 1125.04.240 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 - ORDINANCE NO. 742 "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 & 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." 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." NSR43124 - 3 - ORDINANCE NO. 742 ,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: "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: "2S.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 - ORDINANCE NO. 742 "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-ezisting 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- ORDINANCE NO. 742 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 (8k 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 MSR43124 - 6 - ORDINANCE NO. 742 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. MSR43124 - 7 - ORDINANCE NO. 742 (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. (Sma 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 ORDINANCE NO. 742 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 Reviev 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 NSR43124 -9 - ORDINANCE NO. 742 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 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 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) ." 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. NSR43124 -10 - ORDINANCE NO. 742 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, KELLY, SNYDER, WILSON NOES: NONE ABSENT: NONE ABSTAIN: NONE NSR43124 -11-