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HomeMy WebLinkAboutEmail from Laurie Furstenfeld - Zoning Proposal for Large Family Child Care Homes Menchaca, Clarissa wr From: Laurie Furstenfeld - Child Care Law Center <Ifurstenfeld@childcarelaw.org> Sent: Wednesday, September 26, 2018 2:07 PM To: Clerk of the Board; Connelly, Bill;Wahl, Larry; Kirk, Maureen; District4@buttecounty.ne; Teeter, Doug Cc: Snellings, Tim; Calarco, Pete; Icgrundmann@gmail,com;jacquechase©gmail.com; lorettatorres92@gmail.com; rackdonati@aol.com; Rjohn7179@aol,com; Thistlethwaite, Charles; Connie Roberson; Mary Ellen Woodmansee; sandra.husband@dss.ca.gov; Dunaway, Natalie@DSS;Julia Frudden - Child Care Law Center Subject: Zoning proposal for large family child care homes Attachments: Child Care Law Center to Butte County re large family child care zoning issue 09.26.18.pdf Dear Butte County Board of Supervisors, Good afternoon. Please see Child Care Law Center's attached letter in response to the August 28, 2018 Board of Supervisors meeting pertaining to proposed zoning code amendments for large family child care homes. Please let us know the meeting date of when this matter will be addressed again. If you have any questions, please do not hesitate to contact me at the phone number below. You can also refer to our publication, Know the Law for Planners: Is Your Cit or Count Comeliant with California Law for Famil Child Care Homes?. Sincerely, Laurie Furstenfeld ,11,1,0,,, 1 11.0>, ,,,,,,,kiiiiiIIIIIIIIIIIII III 111111,1 0,,,..1 i ill 10„il 11,11,,,,Iii,,,,,,.'Ili,Ittl IN,,,:, 1 r,,t,1,T jIlletI1111110,4 ,?,,111 k ,II ,1 PO414111'0 III 1 qv 1 japiohl, , ,,,,,,oi 1 111111,6 1 01. to b"iyA ,c,„01 1111.1, el lei 0,#15 go 111111 v,' 1 ,11/ ( ' 111 1 11 111111111 111 IT"' 11" V .7"'111"11 ''''''Ilr'111 I'7.1 11 1 mil III. 1..,11 11 11 111111;0 ilo'I'4r'V 1100 11111 11,111110 1111111111111111 1 it ft ifillell;lie iiiiii eil II ,.,i'ilia IIII 1 10,6,,et 1111 1 ,,,,,1;jd 111111111 1 1 II HI k1111,,,,...11.1mirv,. "rftdisraw. Laurie Furstenfeld Pronouns: She/Her LI:1 Senior Staff Attorney Child Care Law Center 415-558-8005 x3 www.childcarelaw.org 445 Church St,, 4th Ho /A San Francisco, CA 94114 ,,,,Riftl 1111111111 11 ,k1 u 01 it CONFIDENTIALITY NOTICE This message is sent by a law office and may contain information that is privileged or confidential. Any review, use,disclosure, distribution,forwarding or copying of this message or its attachments is prohibited except by its intended recipient(s). if you received this message in error, please notify me by reply e-mail and delete the message and any attachments.Thank you. 1 Butte County Child Care Data Butte County only has enough licensed child care for 24% of young children with working parents Butte 24% Children County for Whom Child Care is Available 76% Unmet Need Butte County has lost more than half of its supply of Family Child Care Homes since 20041 Number of Family Child Care Homes in Butte County 300 264 250 i 210 208 200 111=6011.116b7, 150 136 131 128 100 50 2004 2006 2008 2010 2012 2014 2017 The California Child Care Resource&Referral Network,California Child Care Portfolio(2017),available at http:llwww.rrnetwork.orglcalifornia child care portfolio.The California Child Care Portfolio data is also provided to the Lucile Packard Foundation for Children's Health,Kidsdata.org(2017),available at httol/www.kidsdata.orq. 1 There are 123 Family Child Care Homes and almost two-thirds are Small Family Child Care Homes,2 Butte County-2018 Small Large Total Family Family Family Child Child Child Care Care Care Homes Homes Homes 73 50 123 In fifty-nine percent of families with pre-school age children, all parents work (includes 2-parent and 1-parent homes)3 Butte County 2016 Total number of parents with children under 14,132 age 6 Number of families with children under age 6 8 302 with all parents in the labor force The cost of child care has risen significantly since 2009 for all licensed child care, while family child care homes remain the least expensive choice.4 Cost of Child Care in Butte.County Increase in Percent of household cost of child income for child care Facility Age 2009 2017 care costs(1 infant and 1 preschooler) Family Infants $5,959 $8,603 44% Child 37% Care Preschoolers $5,817 $8,031 38% t Home Child Infants $10,529 $12,726 21% Care 48% Center Preschoolers $7,212 $8,463 17% t 2 Data provided by Valley Oak Children's Services on March 7,2018,Small family child care homes can serve a maximum of 8 children;large family child care homes can serve a maximum of 14 children,with appropriate staffing. 3 United States Census Bureau,American Community Survey,Selected Economic Characteristics 2012-2016 5-Year Estimates for Butte County available at http://factfinder.census.oovlfacesttableservicesljsflpagestproductview.xhtml?pid=ACS 14 5YR DP03&prodType=table (2016). 4 Butte County median household income$44,366.United States Census Bureau,American Community Survey,Selected Economic Characteristics 2012-2016 5-Year Estimates for Butte County CA available at https.//factfinder.census.qov/facesRableservicesrsf/pages/productview.xhfml?pid=ACS 14 5YR DP03&prodType=table(2016). 2 1.6i1CHILD CARE LAW CENTER 445 CHURCH STREET I 4TH FLOOR l SAN FRANCISCO, CA 94114 1 415.558.8405 WWW.CHILOCARELAW.ORG INFO@CHILDCARELAW.ORG VIA ELECTRONIC AND U.S. MAIL Board of Supervisors Butte County 25 County Center Drive,Suite 200 Oroville, CA 95965 Via email: clerkoftheboard@buttecounty.net September 26, 2018 RE: Eliminating the Requirement for a Paved Road to be In Place or Installed on an Existing Gravel Road,With No Exceptions,for a Large Family Child Care Facility Dear Butte County Board of Supervisors, We are very pleased that Butte County("the County") is amending the requirement for a paved road to be in place or installed on an existing gravel road, with no exceptions,for all new large family child care facilities. Removing this requirement is a major step for the County in coming into compliance with state law,the California Child Day Care Facilities Act ("the Act"), and we are happy to continue supporting the County in this effort.' Family child care is a community service that helps children thrive, parents work, and communities prosper. The Child Care Law Center("CCLC")educates, advocates, and when necessary, litigates to break down the barriers standing between families in need and good, affordable child care. California family child care zoning law is one of our practice specialties. The County's requirement that new large family child care homes have frontage on, and access off, a paved road, or the construction of the appropriate road standard if the road is not currently paved, does not comply with the Act.2 Per Butte County Development Services Department's request, we analyzed and made proposed amendments to the Butte County Zoning Ordinance, sections 24-159 (child care facilities) and 24-304 (child care definitions) in 1 Cal. Health&Safety Code§1597.30 et seq.; Letter from CCLC to Tim Snellings, Butte County Director of Development Services, RE: Proposed Amendments to Butte County's Zoning Ordinance(June 30,2017). Letter from CCLC to Felix Wannenmacher,Butte County Chief Deputy County Counsel,RE Butte County's Ordinance and Process for Approval of Large Family Child Care Homes(June 27,2017). Letter from CCLC to Butte County Board of Supervisors RE: Removing or Reducing Permit Fees for Large Family Child Care Homes(June 12,2017). 2 See Cal.Health&Safety Code§1597.46(a)(3)(outlining the cities'and counties'permissible areas of zoning regulation. Requirement to pave a road is not a permissible area). 1 June 2017. The elimination of the paved road requirement was included in our recommended changes. Not only is the requirement for large family child care homes to pave a road unlawful, but it also exacerbates the crisis of unavailable child care in Butte County. We urge the Board of Supervisors and the Development Services Department to eliminate this requirement and bring its zoning ordinance and application process for family child care homes into compliance with state law. 1. State Law Clearly Distinguishes Between Child Care Facilities,Child Care Centers, Family Child Care Homes, and Large and Small Family Child Care Homes At the August 28 meeting,the Board of Supervisors asked for clarification on the child care terms used in the staff report.3 Under state law, all types of child care fall under the umbrella of"child care facility." State law distinguishes between "child care center" and "family child care home," and further between a "large family child care home" and a "small family 4 care home." It sets different levels of permissible local regulation for these separate categories of child care. Family child care homes are located in the provider's home and can care for up to 14 children. Child care centers are located outside the provider's home and can be licensed to care for many more children. Unlike most centers,family child care often offers families flexible hours of care that accommodate their work schedules. In passing special protections for family child care homes under the Act,the Legislature recognized that many parents prefer child care in family homes located in their neighborhoods; there are insufficient numbers of regulated family day care homes in California; and there is a growing need for child care due to more parents working.5 The Legislature further stated, as a public policy of"statewide concern,"that family child care homes should be situated in normal residential surroundings so as to give children the home environment which is conducive to healthy and safe development, and that children in a family day care home should be provided the same home environment as provided in a traditional home setting.6 Below are the state statutory definitions of different types of child care: • "Child care facility" means a facility that provides nonmedical care to 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 the individual on less than 'Supervisor Maureen Kirk referred to family child care homes as"daycare centers"and Supervisor Doug Teeter asked for clarity on the terms used in the staff report.Butte County Board of Supervisors meeting,August 28, 2018. The Cal.Health&Safety Code still has the term"day care,"which is outdated.Corresponding regulations update the term to be"child care."Cal.Code of Regs.,tit.22 §§102352(f)(1)&101152(c)(7). 5 Cal. Health&Safety Code§§1597.30(b)-(d). Id. §1597.40(a). 9 a 24-hour basis. Child care facility includes child care centers, employer-sponsored child care centers, and family child care homes. o "Child care center" means any child care facility other than a family child care home, and includes infant centers, preschools, extended child care facilities, and schoolage child care centers. o "Family child care home" means a home that regularly provides care, protection, and supervision for 14 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 is either a large family child care home or a small family child care home. • "Large family child care home" means a home that provides family child care for 7 to 14 children, inclusive, including children under the age of 10 years who reside at the home, as set forth in the California Health & Safety Code Section 1597.465 and as defined in the California Code of Regulations Title 22. • "Small family child care home" means a home that provides family child care for eight or fewer children, including children under the age of 10 years who reside at the home, as set forth in the California Health & Safety Code Section 1597.44 and as defined in the California Code of Regulations Title 22. To bring the City into compliance with state law for definitions of child care and help prevent confusion between the different types, we strongly recommend inserting the correct definitions in Butte County's ordinance. II. The Act Places Strict Limits on Local Regulation of Family Child Care Homes The Act preempts local zoning regulation of family child care and provides family child care homes strong protection against burdensome local regulation and fees.The Legislature has declared "this policy to be of statewide concern with the purpose of occupying the field [of family day care regulation] 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 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."7 In order to encourage the establishment of family child care homes in residential communities and address the lack of child care availability, the Act strictly limits local zoning rules that may be applied to family day care homes.8 Under the Act,small family day care homes are "considered a residential use of property for the purposes of all local ordinances" and local authorities are prevented from requiring any permit or business license for small Id. §1597.40(a). 8 Id. §§1597.40, 1597.43, 1597.45(a)&1597.46;See§1597.30. 3 family child care homes.9 With respect to large family day care homes, there are three limited options for local regulation: (1) Classify the homes as permitted uses of residential properties for zoning purposes; (2) Grant a nondiscretionary permit, without a hearing, to use a lot zoned for a single- family home to any large family child care home that complies with reasonable local standards, restrictions or requirements relating to spacing and concentration, parking, traffic control, and noise; (3) Grant a special use permit, which must be granted if the large family day care home complies with local ordinances, if any, prescribing reasonable standards, restrictions, and requirements relating to spacing and concentration, parking, traffic control, and noise control. A hearing cannot be held before a decision is made on the zoning application unless requested by the applicant or affected person.1° Thus,the Act limits local zoning regulation of large family child care homes to reasonable standards relating to four narrow factors:spacing and concentration;traffic control; parking; and noise control ("four factors"). A zoning permit must be granted if those reasonable standards are met.11 Regulations that fall outside the four factors are presumed in excess of local authority to regulate family child care homes, unless they are applied with equal force to all single family residences.12 III. Requiring Large Family Child Care Homes to Pave the Road Goes Beyond the Scope of the Four Factors In previous conversations with us, the County Planning Division has stated that the reason for requiring a family child care provider to pave the road was to reduce the amount of dust generated by cars driving on the unpaved road leading to her house.The issue of dust was also brought up by Supervisors Maureen Kirk and Bill Connelly at the Board of Supervisors meeting on August 28, 2018: It's not a simple question is it? Is it a private road with several private houses or businesses in front of this place that will increase the traffic?And then who would maintain it?Or will we only allow it on a public gravel road?You have to work through that before you bring it back here...lt would be one thing if it was their gravel road and they maintained it. But again if it's not public and it's private, I don't know how you'd get there without all the neighbors buying off or something,so still require this permit.13 9 Cal.Health&Safety Code§1597.45(a)-(b). Butte County's ordinance 24-159 Section D places restrictions on small family child care homes,which is strictly forbidden by the Act. 10 Cal. Health&Safety Code§§1597.46(a)(1)-(3)- 11 Id. §§1597.46(a)(2)&(3). 12 Id. §1597.47;See Id. §1597.40(a). 13 Supervisor Bill Connelly, Board of Supervisors Meeting,Aug.28,2018. 4 As we have iterated to the Planning Division many times, concerns about an increase in dust and road maintenance do not fall under the permissible regulatory category of"traffic control."The plain language definition of"traffic control" is: "control of the flow of traffic," as "in a city, in the air, on the sea or on the railways."14 In CCLC's extensive experience in working with local planning departments across the state, traffic control regulation has been limited to addressing the number of cars coming and going from a family child care home during particular times of day. Moreover, a couple of the supervisors made incorrect assumptions about traffic related to family child care without taking into account the County Public Works Department's support to eliminate the paved road requirement, and how a family child care is very different from a center.Supervisor Lambert erroneously made the following assumption: As a person who lives on a gravel road, a county maintained gravel road, I would be definitely concerned that adding 28 more traffic up and down the road needs to be addressed—I'm sure it can be taken care of. But l happen to have a business down the road from me that is not legal that runs trucks up and down all day long and destroys a road that wasn't made to do that. Definitely be conscious of that. (Emphasis added) Large family child care homes do not have a significant impact on traffic because parents drop-off and pick-up their children at staggered times throughout the day—children arrive and leave at various times throughout a given day, and some children attend child care for only part-day or a few days per week. If a large family child care home cares for the maximum amount of 14 children, two of the children must be school-age and therefore at least two children only come in the afternoon for care. Some families have multiple children at the same child care and carpool with other parents. Many times a family child care provider also takes care of her/his own children who live in the home and must be included in the number of children she/he cares for under state licensing capacity rules.Therefore, it is extremely rare for a large family child care home to have 14 cars arriving twice every day, and all the parents never arrive and pick up at the same time. IV. Requiring the Pavement of the Road is Unreasonable, Expensive,and Contributes to the Shortage of Child Care in the County Requiring new large family child care homes to pave the road is egregiously costly and definitely does not meet the Act's provision that "[t]he local government shall process a required permit as economically as possible" and imposed conditions must be "reasonable" 15 The estimated cost to pave a road as required by the code is between $50,000 to $60,000. The estimated cost to pave the road is more than double a family child care provider's annual is See definition of"traffic control"at https://www.collinsdictionary.com/os/dictionary/english/traffic-control the monitoring+the flow of traffic. ' Cal. Health&Safety Code§1597.46(a)(2)-(3). 5 average pay of$27,670 per year, a cost the County can hardly afford.16 Moreover,we know of no other city or county that requires a family child care home to pave a road, even in rural jurisdictions.The County's zoning permit cost of$704 is also expensive. Even in high cost areas such as Marin County, the fees are much lower, ranging from $300 in Concord to$500 in Larkspur. Cities such as Pittsburgh have zero fees by not requiring a zoning permit.17 Butte County only has enough licensed child care to serve 24%of the young children of working parents, and family child care availability has decreased by over 50 percent since 2006.18 The County's exorbitant and burdensome permit process prevents the growth of child care and forces providers out of business. It also unfairly punishes parents who already pay an estimated 41%of their income on child care.19 Unlike other small businesses, child care providers cannot grow a profit without passing costs onto hardworking parents because of state licensing child care capacity rules that prevent them from caring for more children. Mr. Slocum who testified at the August 28 meeting represents the many parents who also have a very difficult time finding affordable child care near their home and that meets the days and times they need. V. The County's Zoning Ordinance Does Not Comply with the Act in Many Other Areas and it Could Come Into Compliance with State Law By Eliminating the Zoning Permit for Large Family Child Care Providers Most of the requirements in the County Ordinance, Section 24-219, pertaining to minor use permits and the application are unlawful as applied to large family child care homes.20 For 16 Statewide annual median income for child care providers is$26,050. Bureau of Labor Statistics,Occupational Employment and Wages, May 2017,http://www.bls.gov/oes/current/oes399011.htm.Clay Slocum,Pavements Engineer for California Nevada Cement Association and parent of a child at a small family child care in Butte County,testified to the average cost of paving a road as required by the Butte County ordinance,"...we're talking about 50 or 60 maybe more thousand dollars for a roadway to be in conformance with what is being asked in the standards." Butte County Council Meeting,August 28,2018. 17 On March 6,2017,the City of Pittsburg adopted amendments to the Pittsburg Municipal Code§§18.50.010, 18.53.020,18.60.030 to consider large family child care a residential use of property.Considering large family child care homes a residential use of property complies with California Health&Safety Code§1597.46(a}(1)(explaining that cities may"Classify these homes[large family child care homes]as a permitted use of residential property for zoning purposes."). 18 The California Child Care Resource&Referral Network,California Child Care Portfolio(2017),available at http://www.rrnetwork.org/california child care portfolio.The California Child Care Portfolio data is also provided to the Lucile Packard Foundation for Children's Health,Kidsdata.org, under"Potential demand is defined as children with working parents,"available at http://www.kidsdata.org(2017).The number of family child care homes in Butte County fell from 264 in 2004 to 128 in 2017.Id. 19 The median household income in Butte County is$43,444 and the average cost of infant care and preschool care in Butte County is$9,456 per child.A household with two children would pay upwards of$18,912 a year in child care costs.Census data at https://factfinder.census.gov/faces/nav/isf/pages/community facts.xhtml?src=bkmk# and child care cost data at the Lucile Packard Foundation for Children's Health,Kidsdata.org(2014),available at http://www.kidsdata.org. 20 Child Care Law Center letter to Tim Snellings(June 30,2017);Child Care Law Center letter the Butte County Board of Supervisors(June 12,2017). 6 example, the requirements pertaining to a building permit, environmental review, and environmental impact report;title report; site plan and floor plan drawn to scale; automatic hearing; location of outdoor play space and hours of operation, a 6-foot fence, and discretionary decision making are disallowed under the Act and must eliminated.21 As outlined on page 4 of this letter, the County can only regulate in four limited areas of zoning. The County needs to stop requiring that large family child care providers obtain a minor use permit with illegal provisions that apply to them. The County could easily come into compliance with state law by exercising option (1) under the Act (see page 4 above). Instead, Butte County currently exercises above option (3), the most costly and burdensome permitting option for providers and the County's administration. By adopting option (1), classifying large family child care homes a permitted use of residential property like small family child care homes,the County would free up planning staff time and resources. Other cities such as Pittsburg, CA voted to eliminate the fee and permit requirement altogether because the City Council and Planning Commission considered the condition impractical given the burdensome cost to child care providers, the critical need to increase the availability of child care in the city and county, and the staff time and cost involved in processing the zoning applications.22 The same reasons to eliminate the zoning permit requirement apply in Butte County. Should the County forgo option (1),then we strongly recommend the County adopt option (2) under the Act, an administrative or"over the counter" permit without a hearing. When cities and counties grant a right to appeal a zoning decision, neighbors mistakenly believe they have a right to block final approval of a zoning permit for a child care provider who has complied with all the permit requirements.23 An administrative use permit would streamline the process for applicants, and decrease the time and resources expended in reviewing the zoning permit for large family child care providers. If the County continues to require a permit, it should instead create a low- or no-cost special use permit process for large family child care homes that complies with conditions outlined in the Act. III. Conclusion Eliminating the paving requirement would be one major step in helping the County abide by state law. Exempting family child care providers from the zoning permit requirement all together would greatly encourage the growth of child care, support families, and bring the County into compliance with state law. Child care for our youngest, most vulnerable residents 21 This is not a comprehensive list and other sections may need to be eliminated as well. 22 On March 6,2017,the City of Pittsburg adopted amendments to the Pittsburg Municipal Code§§18.50.010, 18.53.020,18.60.030 to consider large family child care a residential use of property.Considering large family child care homes a residential use of property complies with California Health&Safety Code§ 1597.46(a)(1)(explaining that cities may"Classify these homes[large family child care homes]as a permitted use of residential property for zoning purposes."). 23 Cal. Health&Safety Code§1597.46(a)(3) (""[t]he use permit must be granted if the large family day care home complies with local ordinances."). 7 helps all of us immediately and well into the future. When children thrive, parents can continue working and contributing to the economy, and our communities grow stronger and more prosperous. Sincerely, ____4.,..2.,,,-) i 4!.- I Lf=-1 1 AI:�..r r..- <- -� c /J -' Laurie Furstenfeld Child Care Law Center Cc: Supervisor Connelly: BConnelly@ButteCounty.net Supervisor Wahl: LWahl@ButteCounty,net Supervisor Kirk: MKirk@ButteCounty.net Supervisor Lambert: District4@ButteCounty.net Supervisor Teeter: DTeeter@ButteCounty.net Tim Snellings, Director of Development Services: tsnellings@buttecounty.net Pete Calarco,Assistant Director, Development Services: pcalarco@buttecounty.net Larry Grundmann, Planning Commission Chair: Icgrundmann@gmail.com Jacquelyn Chase, Planning Commission First Vice Chair: jacquechase@gmail.com Loretta Torres, Planning Commission: lorettatorres92@gmail.com Rocky (Daniel) Donati, Planning Commission: rockdonati@aol.com Phil John, Planning Commission: Pjohn7179@aol.com Charles Thistlethwaite, Planning Division Manager: cthistlethwaite@buttecounty.net 8