2004-0922 - Ramasatya K. Rao [Applicant] Jimmy R. Chitwood Trustee [Owner]: Application for a Use Permit on a 6,598 square-foot site to allow a large family day care to be located within 300 feet of an existing large family day care, for up to 14 children.  The property is located at 717 Old San Francisco Road in an R-0 (Low-Density Residential) Zoning District. (APN: 209-17-045) AM

Andy Miner, Project Planner, presented the staff report.  He stated that because there is another large family daycare center within 300 feet, a Use Permit is subject to Planning Commission review.  He summarized the staff report noting the character of the neighborhood and that there would be minimal impact to the neighborhood.  He noted that two letters were received from the other large family daycare center and an anonymous letter stating that these centers should not be located closed to one another. Staff was able to make the required Findings and recommended approval of the Use Permit.

Comm. Babcock asked staff to comment on the impact to the property that is located in between the proposed site and the other large family daycare center and traffic impact to the area.  Staff responded that during his numerous site visits, he observed no additional traffic impacts with the presence of the second family day care and that there is no impact to the neighborhood.

Comm. Babcock stated that during her site visits, she observed that there were cars partially blocking a driveway.  Most importantly, she expressed concerns about the noise impact of the children. Staff responded that they have not received noise complaints from the neighbors or from the property that is in between both sites.  He added that the application is a result of a complaint from the other day care operator to Neighborhood Preservation regarding a use without a permit. 

Further Comm. Babcock expressed concerns that there appears to be two different standards in addressing what the front yards look like in residential streets.  Staff responded that in this particular situation and the difference from other uses is that there are irregular drop off and pick up time throughout the day.  He added that the street is a well-traveled road with varied uses nearby.

Comm. Sulser asked staff if the City regulates other businesses with distance requirements. Ms. Ryan responded that adult businesses have specific separation standards.  She added that there is no regulation for small day care centers while large day care centers are regulated for concentration purposes.  She added that certain types of congregate residences that are not licensedalso have separation requirements.

Comm. Sulser asked staff about for the need of large family day care in the City.  Staff responded that the general trend has been that families are searching for day care that meets their own particular needs.

Comm. Klein asked staff to further explain the difference between the small and large day care centers.  Ms. Ryan responded that there is family day care and there is the “other” which the use in a building structure for the day care.  A family day care is held in a house, licensed by the State as small or large where small family day care is between 6-8, depending on the ages of the children, and large family day care is between 8-14 children.

Chair Moylan confirmed with staff that the rationale for the 300 foot limit review is for traffic and noise impacts and not based on competition.  Staff confirmed that the review is based on land use issues, not competition.

Chair Moylan opened the public hearing.

Deepika Rao – daughter of the owner who spoke on behalf of the applicant, noted they received a state license on 07/29/04 and that they ran another small family day care in another apartment unit for five years and have not received noise complaints.  She explained the day care operation, current enrollment and day activities that create little noise.  She stated that she is willing to accept children less than 5 years old only to address the noise concerns. They do not allow all the children go out in the playground at the same time.  She also stated that there are two parking spaces available for drop off and pickup.  She spoke about the need of family day care in the neighborhood that the use would be an added benefit to the community.  She stated that the business is the only financial resource of her family and that they need to increase from small family day care to large family day care.   She urged the Commission to approve the Use Permit.

Vice Chair Hungerford commented that there appears to be no barrier from the front door to the street and he expressed concerns that children may run out to the street during pick up.  He asked Mr. Rao if they have any plans to create some kind of barriers.  Ms. Rao responded that there no current plans but if there is need or concerns, they will make the necessary remedy.

Chair Moylan asked Ms. Rao to point out where the two parking spaces for drop off and pick up.  Ms. Rao responded that is the on-street parking in front of the house.

Chair Moylan commented that it appears that the operation began in July 2004 and did not receive a complaint until October which is more than the one month the speaker stated in her testimony.  Ms. Rao concurred with Chair Moylan realizing that it was more than a month before a complaint was received which indicates that their use has very minimal impact to the neighborhood.

Maria Fushiki, member of the public, was confused with the code requirements allowing the use in a residential neighborhood over 14 children. She commented on the applicant’s testimony that they will not accept children that are older than 4 years old and asked what would happen to children who are currently enrolled that do not meet this criteria. She further commented that two large family day care centers in the same area would be considered a day care center which would not be allowed in a residential area.

Comm. Fussell asked Ms. Fushiki to clarify whether she has concerns about the potential noise impact or the existence of two day care centers within 300 feet.  Ms. Fushiki responded that to her understanding the city code does not allow a day care center in a residential neighborhood and that approving this large family day care center would be in violation of this code.  She was not specifically concerned with the traffic or noise impact.

Don Park, member of the public whose property is in between the two uses.  He stated that he purchased his home because of the single family neighborhood.  He expressed concerns about the effect to his property value with a family day care center on both sides. He opposed the Use Permit.

Comm. Babcock asked Mr. Park if he has any problems with parking issues as far as getting in and out of his driveway.  Mr. Don responded yes.

Comm. Fussell asked Mr. Park when does the parking issue occur. Mr. Park responded around 6 PM.

Vice Chair Hungerford asked Mr. Park is he has any noise issue with the day care center.  Mr. Park responded yes with children crying but did not complain as he knows the children.  However, his wife has complained a couple of times.

Chair Moylan asked Mr. Park if any of the two uses has been operating when he moved in to his house. Mr. Park responded no and he noted that the other family day care center started in between 1990-1994.

Yang Park, member of the public whose property is between two day cares, expressed concerns about the noise, safety parking and traffic issues.  She stated that she has complained to the applicant about these issues.  She felt that the applicant was not willing to work with them.

Chair Moylan asked Ms. Park how much noise does the other day care center have.  Ms. Park responded that the other day care center also create a lot of noise.

Jose Falcon, resident, expressed traffic and parking concerns. He stated that he is less concerned about the competition with the other operator. He shared his confusion about the City denying his daughter’s application for a day care center in another residential neighborhood.

Deepika Rao, applicant, give a letter of support from one of the neighbors to the Commission.  She stated that when the children reach the age of 4, they go to pre-school.  She added that there is a need for a day care in the neighborhood.  She also noted that the presence of a day care nearby would help increase the value of the property because of the added benefit in the immediate neighborhood and she provided a letter of support to this statement to the Commissioners.  Further, she stated that parents stay approximately 3-4 minutes during drop off and pick-up with parking most of time available in front of their house.  She also addressed that parents have not stayed until 11pm to pick up their children. In addition, the permit is for relocating the day care center to a bigger place and that they have not increased student enrollment since relocation.

Comm. Sulser asked Ms. Rao how far does the person live who wrote the letter of support. Ms. Rao responded that the person lives five houses from their property.

Comm. Babcock asked Ms. Rao if she has considered operating a small family day care rather than large.  Ms. Rao responded that originally, they operated a small family day care with 8 children enrolled.  She added that since they moved to the bigger house, they have not increased the enrollment and hope to expand their business as one of their reasons to purchase a bigger home.

Comm. Fussell asked the speaker if they have a waiting list.  Ms. Rao responded that currently they have no waiting list but they have several inquiries.

Further, Comm. Fussell asked Ms. Rao to determine the demand for their day care.  Ms. Rao responded that there probably is a medium demand.

Chair Moylan confirmed with Ms. Rao based on her public testimony that if it necessary she would be willing to accept a maximum age limit of five.  Ms. Rao responded yes and that she is willing to work with the neighborhood.

Further Chair Moylan asked whether she is aware that there is a third day care center located across the street.  Ms. Rao said yes.  She added that usually, apartment complexes would not be approved by the State for a large family day care because they require two fire exits.

Chair Moylan closed the public hearing.

Comm. Klein asked staff to clarify about the third pending application for a large day care center.  Ms. Ryan responded that an application is scheduled for 01/24/05.  She reminded the Commission that small family day care is not regulated by zoning with enrollment of up to 8 children.

Vice Chair Hungerford asked staff to clarify or define “family day care”  Staff responded that any family day care is meant that the operation is in someone’s home whether small or large.

Further, Vice Chair Hungerford asked about the house being used primarily for day care only and that no one lives there.  Ms. Ryan responded that would not be family day care. 

Ms. Ryan noted that family day care and a day care centers have different regulations.

Comm. Simons asked staff to comment given that there is a third application coming before the Commission.  Ms. Ryan responded that the Commission has to review the application on its own merit in order of its application and each one has to consider the cumulative effect and other factors associated with the decision making.

Comm. Klein asked staff about the hours of operation of 8AM to 6PM where it is standard or flexible and whether it is dependent upon whether it large or small day care.  Staff responded that the hours of operation are indicated by the applicant.

Comm. Simons commented that he prefers a temporary Use Permit to further investigate how the use would affect the neighborhood.  He stated that in the past he was not supportive of child care centers in residential areas based on the appropriateness of the facility in the neighborhood.  He stated that it turn out that the use was welcomed by the neighborhood.  He was uncomfortable to approve a permanent use permit without further review of the concerns expressed by the neighbors.

Chair Moylan asked Comm. Simons to explain his motion on how staff is going to monitor and collect complaints and whether the mitigations would be reasonable to the applicant.  Comm. Simons explained his motion that based on the information gathered would be a determining factor whether to grant a permanent use permit. 

Chair Moylan asked staff whether a Use Permit has a time limit.  Ms. Ryan responded a Use Permit could be given a time limit.

Chair Moylan summarized that the motion is to grant an Temporary Use Permit of one year.  Comm. Simons said yes.

Comm. Babcock did not support the motion.  She stated that the Use Permit would have a large impact to its immediate neighbors especially the home in between and behind them and would degrade their quality of life.  She added that property owners in an R-0 single family neighborhood have the right to protect their property from business.  She was sad that the business has been in operation without a permit.  She was also concerned about granting a temporary Use Permit noting that children need an established relationship.  She further commented that it would be difficult to do a traffic study in this neighborhood.

Comm. Sulser did not support the motion.  He stated that the reason for the 300 foot rule is to protect the neighbors.  He added that the heavily impacted house cannot enjoy the quiet enjoyment of their home.

Vice Chair Hungerford did not support the motion.  He was unable to make the required Findings and that based on public testimony that with the combined use would be injurious and detrimental to the use and enjoyment of their property.

Comm. Klein did not support the motion.  He stated that based on his site visits, he noticed traffic and parking issues and that approval of the permit would further exacerbate existing conditions.  He agreed that childcare is very important, however, the use would affect the neighbors.

Comm. Fussell stated that the application is a difficult one. He stated that he supports the greater need of the community.  He presented a scenario that could exist which potentially creates a similar situation such as a family moves in a single family neighborhood with eight family members and each has its own car.  He supported the motion.

Chair Moylan supported the motion noting that he could even go further of the approval with removing the time limit. He was able to make the required Findings.  He stated that the street is quite noisy and the road is wide open and that street parking is available to everybody. He addressed the potential noise situation commenting that the operator was willing to put an age limit of under five years old which would be quieter than with children with varied ages. Therefore, the potential increase of noise would be negligible. He commented that there is no such right that people who purchase a house in an R-0 zoning district have the right to expect that no one is going to operate a small day care next to them. He added, as staff explained, every single house in the street could operate a small family day care with up to eight kids in it. He stated that the applicant could exercise her right to operate up to eight kids without the Commission review and increasing the enrollment up to 12 kids would not make much difference related to noise.  He supported the motion even without time limit.

Comm. Simons commented that it is a rare opportunity to test a restriction.  He stated that rules are made to ensure fairness. He stated that the decision would be to find out whether approving the Use Permit for one year would be useful achieving consistencies and whether the issues could be mitigated.

Ms. Ryan stated that the decision is final unless appealed to the City Council with a payment of the appeal fee within the 15-day appeal period.