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HomeMy WebLinkAboutDecember 19, 2002 Meridian Planning & Zoning December 19, 2002 Page 20 of 116 Zaremba: All right. Mr. Chairman, I move that we forward to the City Council recommending approval of Item 6 on our Agenda. CUP 02-032, request for a Conditional Use Permit for a PUD for 64 single-family detached homes, six single-family attached homes, and one single-family existing home on 15.4 acres in a proposed R-8 zone for proposed Cobblefield Crossing Subdivision by CMD, Inc., 4450 North Linder Road. To include all staff comments of the staff's memo of November 18, 2002, as modified by the staff's memo of December 19, 2002. Rohm: I will second that. Borup: Motion and second. Any discussion? All in favor? Any opposed? MOTION CARRIED: ALL AYES. Item 10. Public Hearing: CUP 02-038 Request for a Conditional Use Permit for an in home daycare in an R-8 zone for Kinder Kollege by Kathy Jordan - 410 East Edgar Court: Borup: Okay. The next item is Item Number 10, Public Hearing CUP 02-038, request for Conditional Use Permit for an in-home day care in an R-8 zone for Kinder Kollege by Kathy Jordan at 410 East Edgar Court. We would like to open this hearing at this time and start with the staff report. McKinnon: Thank you, Mr. Chairman, Members of the Commission. I n front of you tonight as you stated, there is an application for a group childcare home at 410 East Edgar Court. For reference, East Edgar Court is located just off of Ustick from North Arrow Wood Way. It's about a quarter mile to the east of Meridian Road. Kathy Jordan had recently been in front of you for a request for a day care at 1930 North Linder Road, as you might remember. At that time there was no action taken, but the application was withdrawn for a variety of reasons. Kathy Jordan, previously to that, has run a day care operation at 1131 Cherry Lane, under the business name of Kinder Kollege. We received this application tonight with the name Kinder Kollege on the application. The application should not be under Kinder Kollege, but rather under Kathy Jordan. We, as staff, apologize for that - for any confusion that may have caused. The applicant has previously had a day care at her home or a home day care, which was only for up to five children, not for the 12 children. That was from 1997 to 1999, according to her application. Currently, she has lost her lease for Kinder Kollege at 1131 Cherry Lane and she started operation of her day care facility for 12 children at her home on December 2nd. She has no approval for this. She currently has no State License for this. Code Enforcement has visited her home to let her know that this is an illegal use that she has in her home right now. She has not taken any actions to cease operation at her home, even though she knows she's in violation. It's a violation that is punishable as a misdemeanor. I'd direct your attention to the staff report. I have basically gone over the summary, the location, and the surrounding uses. As you can tell, this is basically towards the end of a cul-de-sac, as you can see on the Site Plan. Item Number A under the standards for Conditional Uses, has a discussion concerning the Meridian Planning & Zoning December 19, 2002 Page 21 of116 parking, landscaping, and other features that may be required by this ordinance. We wanted to point out to you that this is, essentially, a single-family home with a single- family home driveway. This does not have additional parking for the vehicles for pick up and drop off of children. Additionally, the applicant has two employees that work at the home that will be parking on site at all times during the day, except for when they are not working. Obviously, there will not be any location for on-site pick up, all pick up of children appears to be in the street. The Meridian City Code does not prohibit the street side parking and loading for residential day care. However, it's the additional parking that will be on street that will affect the neighborhood. Item Number C deals with the adverse change to the character of the neighborhood. It appears that there are a number of people here tonight and you should have received in your application a number of items concerning the neighbors' issues with the day care. Item Number D, which looks like there is plenty of people here tonight for public testimony to talk about how they believe that this application will affect their property and whether it would be adverse 0 r not. P lease, a s a Commission, take into consideration a II testimony that includes the written testimony that you have received in the form of petitions and any oral testimony that's offered tonight in making this finding. This type of application hinges very much on whether or not this will have adverse affect on a neighborhood. I direct your attention to the recommendation. Staff is not overly concerned by the application. However, the fact that the applicant is knowingly violating existing City Code makes it difficult for this city to recommend approval. We are not recommending approval or denial, but we cannot make a recommendation for approval based on the fact that there is an illegal use taking place at this location at this time and even after attempts by the city to ask her to stop operation, she's not made the attempt to do so. At this time, staff makes no recommendation for approval. With that, I would ask if there are any questions of staff and turn the time over to you for Public Hearing. Borup: Questions from the Commission? Zaremba: Do we have any idea the square footage of the home? McKinnon: I'm sure it's in here, Commissioner Zaremba. I'm sorry I didn't put that in the application. Zaremba: I don't remember finding it in this one. McKinnon: The applicant is here tonight and she can inform us of that. 1,450? 1,415. Zaremba: And the reason I ask that -- and you can refresh my memory or correct me if I'm wrong. For a Conditional Use Permit, isn't there a requirement that on a residential zone only 25 percent of the home can be assigned to that Conditional Use? McKinnon: The exclusion to that rule is day care. Zaremba: Oh. Okay answers that question so our assumption is that the required square footage per child -- Meridian Planning & Zoning December 19, 2002 Page 22 of 116 McKinnon: Thirty-five square feet per State Code. Zaremba: Okay so this house would hold 12 children? Borup: Anyone else? Okay. Is the applicant here and would like to make a presentation? Jordan: Good evening, Mr. Chairman and Commissioners. My name is Kathy Jordan. I live at 410 East Edgar Court in Meridian, Idaho. Borup: You might want to get just a little bit closer to the microphone, please. Jordan: In February 1997 I opened a home-based day care. Over a three-year period, I began with five children, as allowed by the Accessory Use Permit issued by the city then. There were times when I accepted up to 12 children, as I understood was allowed by the State License, which I have here tonight. I was open at all hours, seven days a week, and regularly received children as early as 5:00 A.M. and stayed open until late in the evening. This resulted in spreading out automobile traffic, contrasting with the present situation where all parents come and go at roughly the same time, 7:00 to 8:00 A.M. and 5:00 to 6:00 P.M. From the time the business began to grow in early 1998, over a year after I started, I made extensive searches for a new location. I believed the Cherry Lane commercial rental would work. In November 1999, I moved the business out of my home into that commercial facility. For many different reasons this was not a suitable site. My Cherry Lane lease was up on October 31, 2002. I made arrangements with the owners of the building to stay until the building sold. Seeing the problem, in September 2002, I filed an application for a Conditional Use Permit for my home just in case I was unsuccessful in finding a new facility. In October, the owners informed me that the building had, indeed, sold and I had until November 30, 2002, to vacate. Our family's financial situation is desperate. Eight months ago my husband was laid off from the SCP Global Technologies after seven years of employment. Unemployment benefits have since run out and is he unable to find full-time work? Therefore, I became the breadwinner of a family of five. When the owners of my building informed me that the building had sold, I was faced with two choices, I could close down completely, file bankruptcy, and lose everything or bring it home where it originated to provide for my family by maintaining continuity for the families I care for and preserve the investment in my business that began legally in my home. After making efforts to be heard by this Commission prior to November 30, 2002, I moved and continued operating, because I have no choice but to provide for my family. Bringing the business home is a temporary solution. I am still looking for another location and will continue to do so until I find something that not only meets my school's needs, but it also is conducive with Meridian's Codes. It is not my intention to inconvenience or annoy any of my neighbors. I'm trying to support my family with a business that had existed in my current home for three years. During that time none of my neighbors complained or voiced any concern about this business, even when it approached the scale of the application before you tonight. I have requested a 10-mile per hour speed limit and have also requested that my clients respect my neighbors and Meridian Planning & Zoning December 19, 2002 Page 23 of 116 their property or face the possibility of cancellation of care. I feel the need to explain to you the importance of your decision here tonight. Your decision will make or break this family. A yes decision means that I can protect an investment, employ two other people full time, one 0 f whom is a single mother of two, and support my family through the worst financial time of its existence. A no decision may not only force our family into bankruptcy and homelessness, but will reject the success my loyal -- my loyal employees and I have made in this much needed low impact business. Thank you. Borup: Questions from the Commission? Centers: Yes, Mr. Chairman. Mrs. Jordan, you were leasing the building there at Kinder Kollege? Jordan: Correct. Centers: And the least expired -- what did you have, a two, three year lease? Jordan: I had a three-year lease. Yes. Centers: And you knew it expired October 31st? Jordan: Yes. Centers: It seems me that you would have started looking for another location maybe in March, April, or May. Personally, I have a business where my lease expires the end of February. I have been negotiating a new lease and looking for other locations that are possible for the last three months, five months in advance. You get my point? Jordan: Yes. Centers: Why didn't you start looking -- you really didn't start looking, you applied for a permit in September a nd, then, if I recall, you didn't show up for the hearing. Am I wrong about that? Jordan: Partially. Centers: Okay but my point is, I think you had plenty of notice that your lease was going to expire and you said in your opening statement that, for numerous reasons, the facility didn't fit your needs. I would have thought back in March or April, maybe when your husband was unfortunate to lose his job, that you would have started looking for another property at that time. That was the only -- that was really the only note that I made but the parking situation, what are you going to do about the parking. Let's get real. Jordan: Currently, my employees are parking on Arrow Wood Way. The parents do park on East Edgar Court, which is a cul-de-sac and to address your concern regarding Meridian Planning & Zoning December 19, 2002 Page240f116 my search, I have been searching exhaustively for two years. I am considered a specialty use industry, similar to banks and churches. Respectively, only banks and churches want to purchase existing banks and church buildings. I have searched Meridian from one side to the other. I have worked extensively with many different realtors and real estate companies. I have been in negotiations with W.H. Moore Company on a site across from St. Luke's. We have not reached an agreement on that yet. I have been searching. For two years I have been searching for a new site. Centers: Do you think it's really fair that the neighborhood -- that people park on the -- you know, on Edgar Street and North Arrow Wood Way, et cetera et cetera? Jordan: Mr. Commissioner, I am of the opinion that it is a public street and my parents are not a nuisance to my neighbors. They are here for -- or at my home for 10, 15 minutes each in the morning and 10 or 15 minutes each in the evening. Centers: Okay. Jordan: There is also a group home located at the back of my cul-de-sac, which creates quite a bit of traffic. Centers: What's your definition of a group home? Jordan: It is a home for disabled adults. There are eight adults living in that home. Centers: Okay. Jordan: There are employees, three shift changes -- Centers: Correct me if I'm wrong, Mr. Chairman, but I think that's a requirement by the state, that a subdivision cannot disallow that type of group home. Right so there was no permit required and I know of another such group home in another subdivision out this direction of semi-retarded children, where the subdivision must take them. In your case, you need a permit, the subdivision doesn't have to take it, if you don't have a permit, you know. Thank you. Borup: Questions from any of the Commissioners? Okay. Did you have anything else that you wanted to ask? Okay. We do have quite a few people that have signed up. When we have numbers like this, a couple of choices. We, of course, do need to limit the remarks, unless we do have an individual that would be speaking for the association or subdivision as a whole. In that case, there is extra time allotted, if that's so desired. Is that - I just saw a hand go up. Do we have someone here that will be speaking for the subdivision? You want to stand up, sir, maybe just right there so how many people here would this individual be speaking in behalf of? Centers: I'd like to see the people stand that he's speaking on behalf of. Meridian Planning & Zoning December 19, 2002 Page 250f116 Borup: Okay. Apparently he's speaking against. Yes. Okay. Centers: Thank you. Borup: Okay. Do you want to come up now, sir? Audens: Mr. Chairman, Commissioners, my name is Michael Audens and I live at 552 East Addison in Meridian. I am the president 0 f the homeowners association 0 f t he residence of Bedford Place Subdivision. I stand here in opposition to the application. I stand here for a number of reasons. Primarily, the preservation of the quality of life that the subdivision residents enjoy needs to be maintained and it needs to be maintained equitably. I certainly sympathize and understand Mrs. Jordan's situation. However, there are other homeowners that need to be considered in this as well. It has already been brought up by the staff and by members of the Commission that traffic ability is a major issue a nd I'm certainly not going to beat t hat any longer. I t does -- it is very important and it does need to be addressed. What I want to bring up that I think is the most important point is that in the CC&R's of our subdivision - and I'm not sure what you have in your packet concerning the CC&R's. I'm not sure if we provided a copy, but let me just inform you that there is a line that states that no commercial business is allowed within the subdivision, with the exception of the group home. I know that when I purchased my home I signed an agreement stating that I would abide by that rule and I'm certain that Mrs. Jordan has signed it as well. The association at no time has ever seen Mrs. Jordan approach us with her concerns or her idea to bring her business into her home. It has all been done behind the scenes, as it were, which is a major concern to homeowners. It does not have a good neighbor feel to it and that, in itself, creates a concern. She's operating the business before she even has the permit in her hand. I'm not certain that -- I'm not certain that operating this business is going to be entirely temporary and we need to -- I just want to bring up the fact that -- how do I say this? We need to make sure -- we need to insure that this business is, indeed, temporary and I just don't get that feeling. Any business that is operated in a home -- and it goes on, that we have Avon ladies, we have realtors operating out of their homes, but they are low impact, and when we have 12 children at a home that is designated for single-family residential use, I become concerned. I become concerned for the children, I become concerned for the residents of that street, and a number of the residents are here and they will have their moment to speak if that would be all right. Borup: Are you saying that all those that stood up want to speak also? Audens: A number of them are very interested in -- Borup: Okay. You are going to need to cut your time, then, if that's what they are going to be doing and your time is up, if that's what you're stating. Audens: That's fine. I just wanted to bring up the fact that -- Borup: Because you were being allowed their time. Meridian Planning & Zoning December 19, 2002 Page260f116 Audens: Their time. Borup: Yes. Audens: I see. Sorry. I didn't quite understand that. I would like -- I would like to have some of them stand up and give their personal testimony as to observances and issues, if that would be all right. Borup: Okay. Any questions from the Commissioners, if that's -- Centers: Just a comment, Mr. Chairman, regarding his comment on operating a business out of the home and it is against your CC&R's. We are not here to enforce your CC&R's. That's up to you to enforce them. Okay. Thank you. Borup: Okay. It sounds like there might have been some misunderstanding there so we'd like to invite anyone else that would like to come forward at this time. Kobza: I just got a copy of this, if you would like to -- mine will be a short presentation. Okay. Her -- from what I understand, she's asking for - Borup: You need to state your name. Kobza: Oh, I'm sorry. My name is Robert Kobza. I live at 415 East Edgar Court, which is across the street from Kathy's house. Okay. The comment was made that she was applying for up to 12 kids. My wife, on January - December 9th, counted the number of kids coming to her home and as of 9:10 A.M. we show 17, not including her own, and I can present this to you folks afterwards if you want times and so forth. Okay. Comment was made already that her Health and Welfare License had been pulled. She -- traffic has also jumped drastically in our court since this has happened. Patrons of the day care are disrespectful to her neighbors by blocking our driveways and not allowing them access -- access to and from our street. My daughter had to pull onto our sidewalk, because one of her patrons parked right in the middle of the street in front of my house, she had to pull up onto our sidewalk to make a turn through the court and, then, come back and park in front of our house. That was the only way she could do it. The traffic speed has picked up dramatically. Also, this to us does not appear to be a temporary situation. From across I can see where she has already started to frame -- stud frame a wall in here garage, which, to me, appears to be as if she's going to build another room in her garage. We also have to deal, as stated before, with that group home. We have enough traffic and enough problems with the group home, with the people from the group home and we do not need all the rest of it. We have parking in front of them, we have a tumble bus that comes and parks in front of her house -- or the neighbor's house, which all this stuff we don't necessarily need. One last comment according to our realtor, it would be hard to measure the value -- what it will do to the value of my home. The one thing he did say is it could make your home harder to sell if anybody decided they wanted to sell it. In other words, if a normal home is selling in 90 to 100 days, he said it could take anywhere from maybe two to three times that and -- because Meridian Planning & Zoning December 19, 2002 Page 27 of 116 he says what you have to do is you have to find someone who is willing to put up with the problems that a day care can present. Borup: Any questions from the Commission? Centers: Yes. Mr. Chairman. Sir, you referred to the Health and Welfare pulling the license? Kobza: Okay. I'm sorry. My wife - we have been - all of us have been very concerned in our neighborhood what's going on, so we talked to the Planning and Zoning. We have called Health and Welfare, we were told yesterday by the folks from Health and Welfare that they have pulled her license, because she is out of compliance with the city and as we, all know that she has done. Centers: Well, we will have to have the applicant address that, then. Kobza: Okay. I understand that, but I'm just stating the facts as were presented to us. Centers: Well, you're giving us hearsay, so we will have the applicant address that. Kobza: Okay. Centers: Thank you. McKinnon: Mr. Chairman, Members of the Commission, if I could address that. I have had a phone conversation with Richard Swift and he is the person that handles childcare licensing for the state. I spoke with him today. There was never a license to pull. There has never been a license issued for that home that they could pull from her. When she moved her day care from 1131 Cherry Lane, the license is not transferable from site to site, so from the time she moved to her home she has not had a license. There hasn't been one for them to pull. Centers: Did they state what they intended to do, Dave, or any comments from them? McKinnon: Just got a -- it's in process, I guess. Actually, the conversation I had with Dick today, he said we haven't taken any action against it yet and we are really interested in finding out what your Planning and Zoning Commission does with it tomorrow night -- oh, tonight and he asked me to call him tomorrow with the decision. They haven't taken any a ction against it, but t hey a Iso have not issued a I icense. I would point out that tonight you are making just a recommendation there is no approval tonight. This goes to Council later so the recommendation you make tonight is not final. Borup: Do we have anyone else that would like to come forward? Hensley: Hello. My name is Rick Hensley. I live at 400 East Edgar Court. I live directly on the west of Kathy. She's my neighbor. I live in between the group home and Meridian Planning & Zoning December 19, 2002 Page 280f116 Kathy and I just think it's creating a big problem for the traffic flow in our neighborhood. Every day there is just cars blocking the front of my house, every day whenever I look out my window, there is constant cars out there. My wife stays at home. I guess there is a tumble bus that came over and parked right in front of our driveway and kind of on our sidewalk. I just don't understand how she could be able to run without the permit and I just want it stopped. That is my main concern. My kids -- I have got two kids. One of them is young right now and they are always outside playing. I mean there is just too much traffic and I do believe there are more than 12 kids over there, too. That's just my assumption from what everybody else has been telling you. Borup: Thank you. Hensley: But that's my main concern. Borup: Thank you. Who is next? Did you have questions, Commissioner? Centers: Question for staff. The permit is for 12 children, including her own? McKinnon: It's 12 children not including her own. Centers: Not including her own. Thank you. Moser: Commissioners, I have a home on 650 East Baldwin it's an investment home and it's -- Borup: Your name, sir? Moser: Mike Moser. It's just -- it's an investment. It's a nice neighbor. I chose through several neighborhoods when I bought there and it's a nice neighborhood that they -- the neighborhood, oh, covenants are being kept up and they are working them. I have worked in subdivisions that they don't work them and you can drive around and see it. It's economical to me. I'm sorry about the income. I lost my job of 26 years, too. That's my investment. Thank you. Borup: Thank you. Clay: Helen Clay. I live on Sedgewick. Centers: You need to pull the microphone down. Clay: Helen Clay and I live on Sedgewick and I wanted to address the Commission and my concern is property values, because if it's allowed on Edgar, it can go through the subdivision. We have a lot of retired people and we have very small back yards. This is my concern. Because 12 children in a yard -- it's 25 feet from my house to the fence, the back fence. It's a very small yard. I would not -- as a retired person, I would not want to go out in my yard with a bunch of children. I live -- I have worked in nurseries, I Meridian Planning & Zoning December 19, 2002 Page 29of116 have worked for the school system at the elementary level and I know how much noise - - I love children or I wouldn't have worked with them, but I also know the noise that they can create, the disturbance they can be. I do hope she can find another place, because she certainly needs this help, but I don't think she has the right place. Thank you. Borup: Thank you. Who is next? Bleth: My name is Christopher Bleth and I live at 403 East Edgar, which is across the street and to the west of Kathy. I'm not here to deny anybody the right of earning an income. My main concern is -- for one, is this definitely a temporary situation, which, you know, may be, or may not be. My other concern is the traffic flow. I have a seven- year-old son and this time of year it's not that big of a deal. When it becomes 5:00 and 6:00 in the evenings during the summer -- spring and summer, all the kids are out and in that circle drive all the kids are out, there is one parent usually outside doing yard work, we all kind of watch all the kids and there is not a whole lot of traffic. Even the group home at that time of the evening has very limited traffic flow and as of yesterday, I actually had the day off. I was at home and happened to look out and there was a car parked exactly in the center of the circle and the person got out and walked up to the house and came back. They weren't around any curb or anything, so they weren't blocking the access, but they were parked right in the middle. I'm not going to say I would deny somebody the fact of earning a I iving for their family, but t he traffic is a concern, due to the fact that it is a short street, the cul-de-sac is very narrow and there are a lot of young children. Rick has two. There are other people that have two or three children. The neighbor next to me has a couple children. Next to me on the other side, they have a couple children and I have a seven year old. You know, as well as I do, seven year olds, six year olds, eight year olds, they don't really pay attention to traffic. They think traffic looks out for them and that is my main concern. Thank you. Borup: Thank you. Anyone else have anything new to add? Murray: My name is Debbie Murray. I live at 455 East Edgar Court. I live two houses down and across from Kathy. I am also extremely worried about the traffic. I have a three and a half year old, a six year old, and a seven year old -- oh, I'm sorry, they are all eight -- seven, eight, and nine year olds, and my three year old plays out in the driveway. We were out there today, cars were zooming up and down the street, and I have to watch her like a hawk, all my children, because they play out, you know, in the street. It's a cul-de-sac, that's why we bought in a cul-de-sac, so we wouldn't have to deal with this. I don't deny Kathy either a living, but this is a residential area, this is why I bought in a residential area, I didn't buy an apartment and, you know, next to a business. I bought where I knew that my children were safe and they could play. It scares me, because the parents do go zooming up and down the street. They do not go 10 miles an hour. Some are late picking up their kids and they need to get there soon. I know for a fact that they are not doing the speed limit and the group home we have no more problems with the group home. They have been no traffic and stuff. It's been really good. This is my fear is my children and the traffic and I just -- that's why we bought in a cul-de-sac, like I said. Thank you. Meridian Planning & Zoning December 1 g, 2002 Page 3001116 Borup: Thank you. Anyone else? Putman: Mr. Chairman, Commissioners, my name is Richard Putman. I live at 614 East Sedgewick, which is within Bedford Place Subdivision. I'm also the secretary of the homeowners association. A couple of issues that I want to bring up. The homeowners association owns a park within the neighborhood. That is the homeowners association's property that has currently been actively used by the day care. We pay the liability insurance and from the research that we have done, if there is a claim 0 fan injury 0 r a nything like that within t he park, one claim, our insurance is going to go up 20 percent. On the second claim they are going to cancel our insurance. That's a major concern, given the liability and the fact that we do have playground equipment in there. That park was designed for our neighborhood, as well as to be used by the immediate surrounding neighborhoods, not to have 12 children brought in from the outside of our neighborhood to use those facilities. With this as well, there are six city streets along Arrow Wood, before you get to the park, which is on the east side of Arrow Wood. Arrow Wood is a wide city street it's not as small as the other side streets. That's one thing we do run into and we, you know, mentioned to the police, is we do get a number of people who are speeding along there. That's nothing new. We have requested previously to have the police come out, they have brought out their little speed limit radar thing, and, you know, we still run into that situation. It has been witnessed that Kathy has brought the children down to the park, walking along Arrow Wood, at 3:00, in one example, with one adult supervising 10 children. This creates -- at 3:00 you also have all of the children getting out of the schools, you have buses, the additional parent traffic, it creates a hazard to the children, as far as I'm concerned. Another thing -- I guess a question that I would implore the Commissioners to ask is she has made an application for 12 children and she has stated that this would be the sole support for her household. Will 12 children -- those guaranteed 12 children provide the income sufficient or are we really looking at more than 12 children on a regular basis? I would implore you to ask that. That would be the basis of what I would like to have the Commission consider. Borup: Thank you any questions for Mr. Putman? Putman: Thank you. Borup: Do we have anyone else? Okay. Commissioners -- Mrs. Jordan, do you have any final comments you'd like to make? You need to come on up to the microphone. Wallace: I had understood- Borup: You need to come on up to the microphone. Wallace: I had understood there were a number of other people who wanted to speak, so I'm going to reserve my comments -- Meridian Planning & Zoning December 19, 2002 Page 31 of 116 Borup: I just asked that twice and I didn't -- no one else said they wanted to speak. It looks like we needed a little prodding. I'm sorry so we were looking for anybody on either side. Go ahead, ma'am. Mooney: My name is Amy Mooney and I have been an employee of Kathy's for about the last three years and I am her employee she was referring to that is a single mother of two small children. I can really understand everyone's concerns on the traffic, because I am a parent also and I live on kind of a busy street myself. As far as the group home not causing any traffic, I took pictures the other day, because there was so much traffic there that it made us look like nothing. I documented cars going to and from -- I mean we are not -- 10 to 12 kids, realistically, we have families that have two to three kids in them, you know. Very rarely do we have one family -- I mean what I'm trying to say, I guess, is we do not have 12 single children, you know, we have got a group of two here, a group of two there, so the traffic issue, you know, it may sound like a lot, but it really is not. In Kathy's driveway, there are spaces for three cars to park. There was a situation where we had to park a van there for the last week and a half or so, but we have removed the van, so that people can utilize that. A s far as people parking in the middle of the street, I personally have never seen that. I would never do it and we have asked our parents to go 10 miles an hour and if people are violating that, we would certainly g et 0 n them a bout that, because there a re kids a round. We are having kids in and out. I mean we certainly don't want any of our kids running out in the street, you know. I mean I -- I don't know. As far as traffic, though, I -- if you came over to her residence and watched the traffic all day, I think it's being presented far worse than it actually is. As far as us parking at her house permanently every day, I do not park at her house every day, I am parking on Arrow Wood, because it is a very wide street, it does not pose any blockage to any passer-byers or whatever. I have two small children, we walk down the sidewalk, and I tell my children to stay off of people's yards, be quiet, whatever. You know, we try to be very respectful of the neighborhood. Yes, I can understand, you know, why they would think, oh, my property value might go down or whatever, but we are not tearing up yards, we are not even out in front of Kathy's house at all, we are not destroying anyone's property, we have -- you know. We have walked down the sidewalk, but I don't believe that it was with 10 children and it really doesn't matter anyway if it was 10 children with one person, because the state actually tells you one person can watch up to 12 kids by themselves. I have been in this industry for over 13 years and I have never lost a child, injured a child, or had a child injured in my care. It's not like I'm taking a two year old out on Arrow Wood. You know, these are eight, nine, 10 year old kids. Some of them may be -- my son is six. Sometimes I will take my son, because he's responsible enough to be in a situation like that, depending on the child, and what their capabilities are. You know, it's not -- we are not releasing wild animals or -- you know. There has never been any intent to upset anyone. I personally have said hi to the neighbors when I have walked by them, you know, friendly and I just -- I'm sorry, but I'm a little upset, because I am my sole support for my two children. I just got divorced this last year and if this doesn't work, then I lose my income. Borup: Thank you. Meridian Planning & Zoning December 19. 2002 Page 32 of 116 Mathes: I have a question. Borup: Question, ma'am. Mathes: Are your two kids included in the 12? Mooney: No, they are not. Mathes: Can they stay there? Mooney: Yes, because I am not -- in the guidelines it states that if you are a nonpaying client, that your children do not count, and they are in my care, in my direct care, and it states that in the child care law. Borup: Thank you. Connell: My name is Kathy Connell and I actually live at 721 East Hawk, which is in Fothergill Point, which is adjacent to Edgar Court, and -- Centers: Excuse me. So did you get a notice? Connell: No, but my children went to her day care. Centers: Okay. Connell: So that's my connection. Centers: Okay. Connell: But I'm just saying I do live close near by. Centers: Yes. Connell: My children went to Kathy's day care from '97 through 2000 when they started school full time and we originally started at the home, I helped Kathy put her curriculum together for her preschool and she provided an excellent day care facility for my children. It was a home environment. I felt safer than some of these big commercialized day cares. I didn't see a lot of problems with the traffic and stuff. This is a busy neighborhood period. It's connected to two other neighbors. It's a huge subdivision complex, I guess you could say, with the other two neighborhoods. There is a lot of traffic period. It's just a busy place. There are a lot of families that live in these three neighborhoods. My parent -- the parents that I have encountered at the day care are always very respectful, I was always very respectful of parents and the neighbors, and I never saw a problem when it was originally at the home. My children went with her when it went to the commercialized site and, then, they started school full time and I was kind of surprised that there is such a huge issue. I understand some concerns of Meridian Planning & Zoning December 19, 2002 Page 33of116 the neighbors, but this is an in-home day care that I know that she tries really hard to comply with neighbors' concerns and taking care of the children. It's not -- she does not let them run wild through the neighborhood or anything like that, they are very controlled, and she does use the park. The park has been -- is an issue -- a lot of kids use the park, a lot of kids from all over. You know, I have always told any kids they need to be respectful of that and that's in their neighborhood, but she provides a tremendous day care and that is something really difficult to find when you have children. Someone you totally feel safe with, that will provide a very safe and secure environment and take well care of your children while you are at work and that's all. Borup: Thank you. Radford: My name is Nancy Radford. I live in Nampa now, but I lived next door to Kathy at 400 East Edgar Court for five years and three of those years she had -- almost three of those years she had her in-home day care. The way my house sat was kind of back in the cul-de-sac, so as far as traffic at that time, my biggest concern, as many others, was the group home traffic. As far as her traffic, her parents would kind of, you know, drive up to the house, drop their kids off, and kind of turn there, so I really didn't have an issue with traffic at all when I lived there. That's what I'm here to say, is that for those three years there was no negative issue with Kathy's day care. If I did have a problem with one of the parents -- because my children were pretty little as well, if one of the parents was going fast, as her neighbor, as her friend, I would talk to her about that and she was always very willing to resolve it. My request is that the Planning and Zoning Commission recommend approval for a Conditional Use Permit for Kathy. Please don't take away her sole livelihood. Thank you. . Borup: Thank you. Meyer: My name is Tracy Meyer. I live at 22 East Pine. I have been taking both my daughters to Kathy's day care since the beginning of the school year this year, September 2002. Centers: Excuse me again. Do you live in the neighborhood? Meyer: I do not live in the neighborhood. Centers: Okay. Meyer: My children have been attending Kathy's day care since she was over on Cherry Lane. We came over to her home when she came there. Kathy provides an excellent day care and preschool curriculum for the kids. It's so difficult, as a parent, to find day care that you trust that provides something other than just sticking your children in a room and letting them play. It's very nice and comforting to the parent. I keep hearing this traffic issue coming up. It's a cul-de-sac, it's not like there is through traffic going through on the street anyway. I have never seen more than three cars in front of Kathy's house at a time. I never saw more than three or four cars at a time when it was Meridian Planning & Zoning December 19, 2002 Page 34 of 116 on the Cherry Lane site. Never. Never. People pull up, they up pick their kids, and they leave and there is all the -- we have our kids playing in our yard. We have this, we are all parents, we all have kids, I don't think any of the people you have heard are going to go speeding 25 or 30 miles an hour down a street that dead ends into a cul-de- sac to pick up their children. You know, at that total, you know, disrespect of the other children on the street. I just don't see that. As a parent myself, I don't see that. I live on a busy street as well, I live on a very busy street, no one respects the street that I live on, and my children are fine in my yard. If you keep an eye on things, you're fine. Whenever I'm there, I have never seen anything out of the ordinary I have never seen any disrespect to Kathy's neighbors. When I see the children going to the park, they are walking in a line, there is somebody controlling them. If I lived in the neighborhood and my daughter was having a birthday party, I would take all the kids at the birthday party to the park, if I felt like it. To me that's kind of the same sort of a thing. It's a park, it's there for use, there is no real guidelines as to who can use it and who can't and I don't see where that should be an issue as well. That's all. Thank you. Borup: Thank you. Harlan: My name is Roni Harlan, I live at -- I almost forgot my address -- 3224 West Ravenhurst. I also take my daughter to Kathy's Kinder Kollege. From what I hear tonight, we all have children, so we are all very concemed about a good day care. I know that my heart is at ease when I drop my daughter Riley off at Kathy's house every morning, because I know that I can go to work and that I know she is going to be well taken care of. My first day care experience here in Meridian was an absolute horrible nightmare. My daughter came home after two and a half days with bloody blisters on her bottom and you better believe I turned that day care into the state. When I found Kinder Kollege, it was a Godsend. My daughter is two. She knows sign language, she speaks Spanish, and I can thank Kathy, Amy, and Lisa for that. I believe if we forced -- if we were forced to take my daughter to a different day care, it would be tragic, extremely devastating and traumatic to my daughter. She enjoys going there every morning. Like I said, we feel very at ease taking her there. From what I hear tonight, it's just -- it hurts my heart, because from what I hear from the rest of Kathy's neighbors is, yes, they are concerned about traffic, but it's fine to give care to a group of eight disabled adults, but 12 children need to go without care and that just hurts my heart and I guess I pray for them. Borup: Anyone else? E. Connell: My name is Ed Connell. I live on Hawk, which is around the corner-- Borup: What was your last name again, sir? E. Connell: Connell. Borup: Okay. Meridian Planning & Zoning December 19, 2002 Page 35 of 116 E. Connell: This traffic thing, you can't see it from what you show here, this Arrow Wood, they want to talk traffic, when it opened, that's where the -- that is a main artery to Ustick. There are hundreds of homes back here and the school there, there are kids -- I don't -- I don't get the traffic thing, because it's -- the traffic is -- that's a main artery. It's not really -- I have never seen it increase any 0 f t he traffic in t hat a rea. Maybe towards the cul-de-sac, but like the lady said before, that's a dead end street, you're -- you stop and tum around and you leave. That's it. When they say the traffic and crossing over to the park, that's a concern that everybody has, because that is a main -- that's a main street, that is your exit to Ustick from Hunter Point, Fothergill, the school, all of that back in there, 12 cars a day. That would not even phase that road. That's all. Borup: Thank you. H. Clay: Good evening. My name is Harlan Clay, I live at 499 East Sedgewick, and I would like to bring up the fact that one young lady said that they park cars on Arrow Wood and I have noticed that lately, that I didn't before. One thing that concerns me is that an awful lot of children, either coming from school or being let off by the bus, walk down Arrow Wood. If they have cars parked there, one of those children walk out behind one of those cars, like that is a wide street and people do travel -- it's supposed to be 25. I think a lot of them go faster than that, that little child could walk out in front of one of those cars, it would be an awful tragedy. I think that should be a consideration also. Thank you. Borup: Thank you. McNitt: Commissioners, I would like to thank Kathy's neighbors for coming tonight, because I know that they are concerned -- Centers: You need to say your name, please. McNitt: Oh, I'm sorry. Julie McNitt and I am a mother of two. I have a four month old and a six year old that attend Kathy's school. Centers: Where do you live? McNitt: We live on 1240 Northgate Court. Centers: Is that in this subdivision? McNitt: It is not. No. It's over off of Linder Road. Then, we have been with her, like I said, for the majority of this year. I was not super thrilled when she told me that, unfortunately, she was going to be moving from there to her home. I thought, oh, it's more out of my way, this, and that, but you know, my kids have liked it there more at her home, than what they did even when you were at the day care center. I -- it is really hard to find a day care nowadays, especially ones where you can drop your kids off and you can go to work and that's the last thing on your mind. You know that your kids are MerIdian Planning & Zoning December 19, 2002 Page 36of116 taken care of and that is worth a pretty penny nowadays. You know, a lot of the neighbors are commenting also that they have children and that is worth a lot and I'm sure that they understand that. The traffic situation, I don't really see that. I do drive the 10 miles an hour and I would appreciate, you know, if the neighbors watch for me. I drive a little ZRX or I drive my Ford Explorer. They can look for me all the time, you know, whatever rules there are that the neighbors and Kathy decide, I'm willing to do whatever it takes, you know, to get along and I want to respect them. I don't .- they have to live there, they have to go there every day, you know, I don't want to step on any toes. If it were my neighborhood, I would want the same respect. I just really appreciate Kathy and all that she does for my kid you know it would be really hard to have to switch and go somewhere else at this point. That's all I have to say. Thank you. Borup: Thank you. Black: My name is Paul Black and I live at 1931 East Dworshak. It's not in this subdivision. My children have been going to Kinder Kollege since it opened on Cherry Lane, I think three years ago, just, -- I will be very brief. They have flourished under Kathy and I will follow her anywhere. That's the only day care they have ever liked, so - - thank you. Borup: Thank you. Strate: My name is Alan Strate. I live at 1332 East 5th. I used to live at 488 East Edgar Court, which is on the comer of Arrow Wood and Edgar. My children also attended Kathy's day care. Before I lived there I lived in Boise off of Five Mile and Fairview and I took -- when my ex-wife had found Kathy, my kids loved that place. They loved the surroundings, they loved the other, -- you know, the care that they got. When she moved, you know, from there and went over to the other place that was fine, too. I've never found somebody that's more accommodating. Myself, I work a lot of hours. After my divorce, you know, when I take the kids to the day care, I could get there at 5:30, a quarter to 6:00, there would be someone there for them. I would not get there until 6:30 at night and they would still be there for them. You can't find places like that everyday. That's all I'd like to say. Thank you. Centers: Excuse me, sir. Do your children still attend? Strate: During the summertime when they are with me, yes. Centers: Okay. Thank you. Burwell: Hi. I'm Lisa Burwell and I work at Kinder Kollege or for Kathy Jordan. I have been there since June. I, too, am concerned about the traffic, but it is not as bad as it seems and as far as Amy and I parking on Edgewood - Arrow Wood, excuse me -- Thank you, Amy. Amy and I are the only two that park on that road and when we get ready to leave, there is no children walking on that sidewalk. By the time I get out of Meridian Planning & Zoning December 19, 2002 Page 37 of 116 work it is 4:45. There are no kids on that sidewalk. By the time she gets done with work, it is 6:00. There are no children walking on that sidewalk and as far as Amy and I walking the kids down to the park, it has not been just one of us, it has been two of us, one in front and one in back. Thank you. Borup: Thank you. Johnston: I'm Cindy Johnston and I don't live in that neighborhood. I live off Linder. I found Kathy when I was desperately seeking for a day care, because mine had to close. She has been a great provider and my concern when she was over on Cherry Lane was that busy road out in front. The hours that most of us drop off are between 7:00 and 8:00 and from -- pick up between 5:00 and 6:00. There were the streetlights out there that -- for this school zone that flash 20 miles per hour, so you can't do more than that. That's where, you know, I was -- part of my concern was just t hat little intersection, because it was such a main road and it was very busy, but it wasn't -- during those times it wasn't -- you know, it wasn't a concern, because it was so slow. I don't -- I have been through this neighborhood. I actually took Arrow Wood just to see if it was, you know, a little bit shorter than taking Meridian to go to Linder. I tell you what, I won't take that street again, because it is so busy and it's dangerous, because people don't drive 20 miles an hour, they are doing 35, 40, 50 miles an hour. This one car the other -- you know, I took it the other day and this car -- there is a little bit of a dip over there at Arrow Wood, and this car, you know, pretty much went - as it hit the dip, after the dip. I don't think that -- you know I'm not sure what their problem is with the traffic. The traffic on Ustick is terrible. The traffic on Arrow Wood is terrible and that little street right there is not very busy. We go, we drop off, and we leave, you know. Pretty much we go, drop off, and we leave. There have never been any problems. If there is somebody -- if there is too many cars, you know, I'll wait until one car leaves until I can park and that way I'm not in the driveway and I respect the neighbors, so -- I guess my whole point is that this is -- I don't see speeding an issue, so - but you can have traffic anywhere you go and so -- I work in the busiest intersection of town, so I can tell you about traffic. Okay. That's all. Borup: Thank you. Williams: My name is Audra Williams and I live at 399 East Edgar Court. I am the third house on the left side of Kathy. At first when Kathy started building into her garage I had no idea what she was doing, I thought maybe they were converting it into a room, until a neighbor came to our home and told us that Kathy was running a day care. I am self-employed and I run a business out of my home. Nobody opposes that, because I don't think anybody knew that. For the last six weeks I have been home, so I -- due to surgery, so I have been watching it. As far as the traffic on our street, it is horrible. I live right next door to the home for retarded adults and most of my neighbors aren't home during the day, but once a month they have a staff meeting. I will be lucky if I get my mail. We have at least 15 to 20 cars in front of Rick's home, in front of my home, and in front of my mailbox at any given time. I have a 15-year-old daughter that catches the bus at 6:20 in the morning out on Ustick. She almost got hit within the first week of Meridian Planning & Zoning December 19, 2002 Page 38 of 116 Kathy's day care being open. One of the cars came ripping around the corner. She came home and told me. I was very upset and I was very upset that Kathy was going to be doing this, until Kathy came to my home and explained to me what was going on. I explained to Kathy what almost happened to my daughter. Since then Kathy has written a letter, she gave it to us, 10 miles an hour, and the traffic has slowed down there. As far as her livelihood, I was a single mom for three years raising two kids. She's not single, she has a husband, but I do understand that to make a living you will do anything that you can to bring income into your home and if she's running it without a license, then, that's what she had to do. Out of desperation people will do that. I mean I have been there and I came into this cul-de-sac into a marriage. My husband owned the home there previously but due to my husband, the home next to us has curtailed their traffic, but they drive faster than anybody. Their employees are horrible. As far as kids playing out in the street, spring, or summer, all our kids are out in the street. I have almost hit my neighbors' kids, because they ran out in the street -- they bolt out in the street on their bikes. What's the difference? Her kids are in a home. Her kids are in the backyard. Our kids aren't. Our kids create noise. My kids are up until 10:00, 10:30 out in our back yard on our trampoline. I haven't heard anybody complain about their noise. These are little kids that are playing in a back yard. At least they are confined. All of my neighbors' kids, all of them, have bolted out in the street. I have had to slam on my brakes and I drive 10 miles an hour, but because of the size of my vehicle, it can kill them. If this is a temporary for Kathy, then, I say allow it. If it becomes a non- temporary, then, we have to address that but if she gives us her word and, hopefully, she goes by that, then, I say she has to do what she has to do until she gets a building. I ask you to at least temporarily let her run the day care in the home because the traffic isn't as a bad my neighbors are making it out to be. I'm there every day and I watch it. I watched their home all day today. Every car door I heard. It wasn't her house, it was neighbors or it was the home's employees. Thanks. Borup: Thank you. Crandall: My name is David Crandall and I'm actually an employee of the association. I work for a company called AMI, I serve as the neighborhood manager, and I help manage the affairs of the association. One thing I just wanted to do is draw your attention to -- and I'm sure you have seen it, the petition that was circulated around the neighborhood. That was in one evening in a two-hour period and we had to get it done, so we could get the petition in to you a week in advance. No one -- and I think what I'm hearing tonight is no one is questioning the quality of care. Everyone you have heard stated that she provides great quality of care, but I think you're also hearing a fairly well defined line between those people who are supporting her from outside the community and those people that are opposed and the ones that have a vested interest in the community. I know in working for the board and with the board, they are really opposed to this and they think it would be detrimental to the best interest of the neighborhood. With some additional time, Richard has some additional comments, if I could give my additional couple minutes to Richard. Borup: Briefly. Meridian Planning & Zoning December 19, 2002 Page 39 of 116 Putman: Thank you very much, Mr. Chairman and Commissioners I will make this very brief. Just kind of wanted to go back over some of the points that have been brought up here. We are not disputing the traffic on Arrow Wood is bad already. We are disputing the traffic in -- that due to t he group home is bad a Iready. We don't want to see it increase. We don't want to see that bring more people into that neighborhood, more traffic on those streets, and I also want to emphasize we are not trying to stop her from earning a living. You know, she -- as you mentioned, Commissioner Centers, she knew that her lease was expiring. She had more than enough time there that she could have planned a head a nd tried to locate t hat a rea a nd I guess I just wanted tog 0 back-- comments were made about the park. Yes, the neighbors from the association -- from the adjoining neighborhoods, yes, those are - you know, they are more than welcome. That's not a commercial use. What she's bringing in - she's bringing in children from outside of our neighborhood to run on a commercial business and is using that park for a commercial business. That's -- that's my main point of objection there. I appreciate the time. Borup: Thank you. Kathy, do you or a representative have final comment? Wallace: Yes, we do. Thank you. I'm Bob Wallace and I am responsible for these packets that were passed out to you. I'm a lawyer over in Boise, so I will try not to be a boring Boise lawyer and I'll try to keep it brief. Kathy asked me to help her with this application and I have got a couple of points to add to what's been said. I think we do have a certain kind if demarcation in front of you, the association employee - I don't know if he's from the neighborhood or not, but he seems to think that everyone that's from the outside is supporting the day care, everybody inside thinks there is a traffic problem. Well, as I heard the traffic testimony of -- Mr. Commissioner -- Mr. Chairman and Commissioners, I heard a lot of unsubstantiated concern about either traffic that could happen or traffic that's somewhere, with the exception of a couple of neighbors who said their driveways were blocked. There might have been some unmannerly parents interrupting total freedom from any cars at all in the cul-de-sac we are talking about. To me that's not a traffic problem. To me what you have in front of you is both the ACHD and your own staff making exact findings that there will be no traffic impact from this use. You have got that in your staff report. It's Item H. Even though the first couple of items talk about impact on the neighborhood, I'd ask you to carefully consider the testimony before you tonight. There is a finding that there is no traffic impact. What you can do now is now look more deeply at what kind of impacts have been testified to in front of you. You have got an application for up to 12 kids and, like many things in the law, 12 doesn't really mean 12. Under the state-licensing scheme, which regulates her license that she applied for at this new location as soon as she knew she had to make a move, it says -- it doesn't include kids of the owner or kids of employees. She has got one employee that has two kids and the owner has three. That's five additional kids that don't fall under the state licensing so that's one kind of regulation. I think she was understandably confused in her early years of running this when she had a five person Accessory Use Permit the business got to be better, so she immediately went out and applied for a State Permit for more kids. Then, not too long after that she got into a commercial facility. Commissioner Centers, I certainly acknowledge your critique Meridian Planning & Zoning December 19, 2002 Page 40 of 116 of how she could have been a little bit faster in making a change. However, it's my understanding - and I didn't get involved in this until the end, until just about a week and a half ago, is that long before the fall of this year she began looking at a place on Linder Street and actually had that Conditional Use Permit before you. That was what she was trying to move her large day care into before the lease expired on Cherry Lane. She learned the lease expired on Cherry Lane and was not able to stay even beyond the 30th -- Centers: Learned? She was the lessor. She should have known when it expired. Wallace: But it was sold and she was -- Centers: Lessee I should say. Wallace: She was a lessee and she -- Centers: She would know when her lease expires. Wallace: Right so -- Centers: You just said earlier - and, excuse me, you just said earlier she just applied for her permit from the Health and Welfare. That's a little tardy, too, isn't it? Wallace: Well, that was to move back home. She didn't think she would have to move back home until -- Centers: The permit is not transferable. Wallace: Correct. She applied for a license for her home at the last minute. She didn't plan to move back into her home, s he planned tom ove to Linder, until that process didn't go through, which -- Centers: Well, it seems, though, she's tardy in every instance, but go ahead. Excuse me for -- Wallace: Again, I'm -- this is hearsay from talking to your staff and from talking to Kathy. She made an effort and Mr. McKinnon made an effort to have this matter heard October 20th when there were an awful lot of matters on your Agenda, and somebody made the decision not to have it heard that night. She was making efforts to get this approved before her lease expired. It didn't happen. Things happen. People don't follow through. Like I said, I wasn't there but there was an effort to get formal approval of a large facility on Linder, there was an effort to get before this Commission. The document I just ran up to Dave shows that she didn't make an application to the State until December 1st. She didn't want to move home. She still doesn't want to be doing this out of her home. She's a successful businesswoman that has great support, she could be running a 20, 25 kid care service and making a lot of money. She's qualified, Meridian Planning & Zonln9 December 19, 2002 Page410f116 she has employees, and she has great parents. She doesn't want to be doing this, but she also doesn't want to just tell all of her customers, hey, go away, I don't have anything to do for you I'm not a business. That's the worst thing you can do. I'm responding to the testimony as I see you have it before you. The biggest concern I have with the staff report, though, is the continued harping on illegality. The way I see this -- and maybe I see it as half full, instead of half empty. I see an Accessory Use that's always been legal there. She's always had a day care there she expanded and went to where it was appropriate. It did not work for a number of reasons, she has to make other arrangements and she's asking for what is a legal use, but expanded and going through a CUP process to make sure that that expanded use doesn't impact the neighborhood. Now, you have had a staff report and other agency reports saying that there will be no impact on the neighborhood. That's what's in front of you and the testimony of everybody here, including all the opponents, doesn't contradict that. They have agreed it's a cul-de-sac and they are there, except for the group home and the people who come to the day care. They don't contradict any of the other testimony that it's only there for a short time each day and their concerns about traffic appear to be directed to Arrowrock - or Arrow Wood, rather, than towards the cul-de-sac, f or the most part. I will ask you to review their comments on traffic in that context, view the fact that the petition, of which something was made here that they got all these signatures, many of which don't have addresses -- you have got 21 with addresses, 14 without. You have got, as many people as took the time to show up tonight and some of them are actually able to address traffic on some of the streets in the subdivision. Most of them are just concerned about property values, concerned about potential impact, and concerned about what this might be doing. It's at the end of a subdivision, they pass a few houses and a collector street and, as you can see from the pictures in your packet, her house is the first of the pictures, the second picture is looking east on Edgar, that way. The third picture is looking west 0 n Edgar. Her house looks exactly I ike every house in the subdivision. It doesn't look like a day care, it won't look like a day care, and as the lady, who lived next door to her for three years when she was running her day care out of the facility, testified, it's always looked that way. Whatever concerns the neighbors have, I submit to you, ladies and gentlemen, are fears they are unsubstantiated fears. They are matters that I don't think you should be even paying attention to, as concerned as they are in coming out, they don't address what you have to find. They are not evidence of traffic they are not evidence of impact on the neighborhood. You have got that in your staff findings and I might have taken -- I think the staff did plenty and we appreciate what they have done for Kathy. They chose to exercise their discretion and not cite her. She's been operating now for half this month and they still haven't cited here, although there has been talk back to her that there was -- some in the proposed petition were saying that that had happened. We appreciate it hasn't happened. As a former prosecutor, I can say that I think bringing that case to trial might be kind of hard. Is she doing something that is totally involuntary? Is she voluntarily breaking the law? I don't think so. She's come to you for temporary permission to run the business. The only other thing I'd like to address in the opposition is just look at their petition. It uses the word minimum 12 kids, we are not applying for a minimurn of 12 kids, and we are applying for a maximum of 12 kids. If they were circulating this petition with that kind of misrepresentation, that might explain some of Meridian Plannin9 & Zoning December 1 g, 2002 Page 42 of 116 the fears that people have but it's not a fear that should govern you. In closing, I'd like to submit a couple of photographs that show you the Arrow Wood Street on the Ustick side and on the other side where the two employees have started to park to allay any concerns you might have that there might not be visibility when cars are parked there for drivers driving on that street. Also to remind the Commission, which I know I don't have to this is a Conditional Use Permit application. That means the word conditional is operative. You can impose conditions on parking, time, duration, anything you want, and any of the uses or concerns and fears of the neighbors are something you feel you have to pay attention to and I submit they are not, but if they are, impose those conditions. You can make the duration t hat she's there conditional. You can make where her employees park conditional. If I may approach? I'll go through each of these. The ones and threes are the ones looking from Ustick onto Arrow Wood I believe it is. The five photos with the trees show Arrow Wood from Ustick and, then, Edgar is the first street, which is on the plat. The next set of photos show Arrow Wood from Edgar continuing down south. I believe that's where the park is. Do either the Chairman or any of the Commissioners have any questions for me? Borup: Questions from the Commission? Okay. Any final comments, Mr. Wallace? Wallace: No. Thank you very much for considering the application. Borup: Thank you. Okay. You can come forward. Okay. We may give the applicant a response, but go ahead. Ross: I'm Loren Ross. I own property in Meridian. I own a commercial building, 405 East Fairview. It's in the process of being leased. I can validate -- and I'm not pro or con this conversation, I'm not even here for this, but I think it's my duty to bring forward something. I have had at least two conversations with this lady about day care concerning my building for a lease and that took place in the spring and summer of this year. I just wanted to validate that, because I know there was some question, did she or did she not try to seek a lease. I did have conversations with her, Borup: Okay. Thank you. Commissioners? We have concluded, I think, the testimony, unless -- come on. We need to wrap this up, though. You need to state your name. A. Kobza: My name is Anita Kobza and I live directly across the road from Kathy. On December 9th, I counted the number of kids and the number of cars that came in, there was 17 cars starting at 6:37 A.M. up until 9:07, and there were 17 kids as well. I don't deny Kathy the right to make a living, I really hope she can do that I just don't want it on our street, because of the impact of all the traffic on our street. Every car that comes into that cul-de-sac has to tum around and go right back out and so you have got the traffic twice as much, because it's a cul-de-sac. You have got every car going by each house twice every time they come in. Borup: Okay. Thank you. Did you have any -- would you like to -- Mr. McKinnon, the two, the five, and the 12? Meridian Planning & Zoning December 19. 2002 Page430f116 McKinnon: Mr. Chairman, could I ask the person who made the question to come to the mike and ask the question? Borup: Okay. Her question was if she had less than 12, does that mean it's just baby- sitting. McKinnon: No. No, it doesn't mean that it's just baby-sitting. If you are watching children other than your own children for a period during 24 hours, it could be considered day care. There are some standards, some state standards, and some city standards. The state and city standards don't always match up with each other. In the City of Meridian if you are watching five or fewer children that are not yours at anytime during a 24 hour period, for payment, not baby-sitting, not the occasional watching of children, but for payment on a regular basis, such as a day care facility, you use a layman's term for day care. If you're watching that, you need to have an Accessory Use Permit, which is what Kathy Jordan initially had at her home for 1997 to 1999. If you want to have between five and 12 -- more than five, up to 12 children at your home, you require a Conditional Use Permit. It's considered a group childcare home. That's for five to 12, that does require the Conditional Use Permit, and that's what's here before us tonight. If you would like to seek more than 12 children, you cannot do that at your residential home and you are required to do that as a commercial operation, which is, again, a Conditional Use Permit in the City of Meridian. Borup: Does that explain that? McKinnon: And, Mr. Chairman, Members of the Commission, we are still in Public Hearing. I just had a comment. The state exempts employees' children that are being watched at the site. However, the City Code is somewhat silent concerning employees' children at the day care. My understanding -- I asked Nick for some clarification, he's got my code over there -- if employees are bringing their children there and the children are being included as children at that home, my understanding would be that those children would be included as the 12, because those are 12 kids being cared for not at their home by someone else, Nick, if you could get some clarification on that or if there is anything that's -- is the code silent? Wollen: I believe that if the code were silent, then, you would have to fall back to the State Code, if the State Code is on the same situation so that would be my position. McKinnon: I guess my question, then, would be the final number of children being watched at the home is not to exceed, 12 outside of the children that live in the home. We would count -- would we or would we not count the children that live outside the home that are being watched at the house? Wollen: Well, the code -- if the code says that its -- it's limited to 12 children that live outside the home, then, I believe that would also count for employees' children. McKinnon: Okay. Meridian Planning & Zoning December 19, 2002 Page 44 of 116 Centers: Mr. Chairman, I had a question for the applicant. Is she still here? Oh, you moved and you're welcome to make -- correct? Any other remarks or -- Borup: To testimony that's after Mr. Wallace. Centers: I mean if you wanted to address some of the other comments, feel free to, but I had a question for you. Here at the Planning and Zoning we don't put people under oath. They do at the City Council level but how many other children have you been watching on a daily basis? Jordan: We have no more than 12 children in the home. What we have -- we have some before and after school children that do come in, they leave, they go to school, and, then, we have more children that come in. Those children, then, leave before the before and after school kids come back. I have -- my parents don't all need care five days a week, they don't all need care 10 hours a day. Centers: So you have maybe 20 children at different times? Jordan: Correct. None of the schedules overlap. Centers: So, then, there is more traffic than the 12 children, because those children have to be picked up and dropped off. Jordan: Yes. Centers: Okay. Borup: Anything else? All right. Commissioners? Zaremba: Well, a question for staff. On the comings and goings, I know we have discussed this before and I thought the count on the children was cumulative. Wollen: It is, Commissioner Zaremba. It's throughout the day, according to Meridian City Code. Zaremba: Whether they stay or not or overlap or not right? McKinnon: Mr. Chairman, Members of the Commission, it's cumulative. The definition is no more than 12 children throughout the day. Centers: At anyone time? Zaremba: No. McKinnon: Throughout the day. Meridian Planning & Zoning December 19, 2002 Page 45 of 116 Zaremba: Cumulative, whether they are there the whole time or not. Centers: Yes. McKinnon: Twenty would not be allowed. Twelve total throughout the day so if there are six in the morning and they leave by noon, six more come in, and that's 12 total. Centers: So -- okay. Got you. McKinnon: The fact that -- to further clarify, in the definitions, it's 11-2-2, it further notes in the definition that it should be noted that in determining the type of childcare facility that is being operated. The total number of children cared for during the day and not the number of the children at the facility at anyone time is determinative. Centers: Mr. Chairman? Borup: Commissioner Centers. Centers: You know me I like to read. The gentleman - the attorney had addressed traffic and everyone's talking about traffic. It's not just traffic that we have to look at and I want to read from the staff comments. Standards for Conditional Uses, the Commission, and the Council shall review the particular facts and circumstances of each proposed Conditional Use in terms of the following and may approve a Conditional Use Permit if they shall find evidence presented at the hearings is adequate to establish. Then, they mention the code number -- that, A, that the site is large enough to accommodate the proposed use in all yards, open spaces, parking, landscaping, and other features as may be required by this ordinance. Then, the staff goes on with their comments and they felt that there wasn't sufficient parking, even though the Meridian City Code does not prohibit street-side parking, it doesn't prohibit that -- and loading for residentially located child care facilities. However, additional parking in the street may adversely affect neighboring residential uses. Then, part of the code also says that the design and construction, operation, and maintenance will be compatible with other uses in the general neighborhood and with the existing or intended character of the general vicinity and that such use will not adversely change the essentially character of the same area. Then, they recommend that we listen to the people that come to the meeting, the neighborhood. That's what they say. The Commission and Council should carefully consider public testimony. Then, D, that the proposed use, if it complies with all conditions of the approval imposed, will not adversely affect other property in the vicinity. Then, they tell us again, listen to the people that come to the meeting. There are three different things that we have to consider a nd none of them -- well, one of them, briefly, talks about traffic. It's the neighborhood, basically, that we have to look at and how it affects the neighbors and their values, what they consider or think it will do to the value of their home and on down the line. I have a lot of empathy for the applicant and her income. I really do. I mean it may be easy to say, but that is a fact. Anyone that's working hard and trying to make an income, I have a lot of respect for but I think it needs to be within the law and within a neighborhood, that welcomes them. I wouldn't Meridian Planning & Zoning December 19, 2002 Page 46 of 116 want to be in a neighborhood that didn't welcome me so I think you need to look for a new home where you might be welcome, because you're certainly not welcome in the neighborhood that you're located in. The petitions say that and the people here say that. I had no one in the neighborhood, other than one lady, that spoke for the applicant. Everyone else was a customer or an employee. I consider the neighborhood as the state or the Meridian City Code tells me to consider so, thank you for your time, Zaremba: Well, I would concur that it is part of our responsibility. The reason the hearing exists -- the hearing process exists at all is to listen to the neighborhood concerns. Any kind of a business, including a child care, is not automatic in a residential district, that's why there is a CUP requirement and a hearing requirement tied around that. I would comment that I'm not so sure it's even okay to park on Arrow Wood. I think ACHD would consider that to be a collector street. There is a definition for collector streets and, usually, they don't want parking on a collector street, so that -- Unidentified Speaker: There aren't any signs or anything that -- Zaremba: There don't have to be signs. It's not posted for 20 miles an hour either. It's just -- McKinnon: Mr. Chairman -- Mr. Chairman, Members of the Commission, if I could offer some insight into that. The road that -- Arrow Wood is not a classified collector per ACHD guidelines however, it would be included in the discussion as a residential collector. If you will notice that within the subdivision, there are no houses that front onto Arrow Wood. That was a requirement of the city and of Ada County Highway District when they considered that road, because that road is the major collector for all those homes to pull into it and did not feel it would be appropriate for cars to back out into the traffic. That's the reason that they do not have homes that front onto Arrow Wood. As far as parking restrictions go, I don't believe that they restrict the parking. However, it's not encouraged just by the fact that they don't allow homes to front onto it and in recent applications that we have seen they have prohibited parking on many residential collectors. However, those residential collectors we have dealt with recently happen to be full on classified collectors per ACHD guidelines. Borup: At this point we are having discussion among the Commissioners. Wallace: The hearing has been closed? Borup: It has not yet, but you have had opportunity to speak. Wallace: I do have some additional comments -- Borup: Would the Commissioners like some additional information? Centers: I would recommend that we take them, Mr. Chairman. Meridian Planning & Zoning December 19, 2002 Page 47 of 116 Borup: I will hear it. Wallace: Thank you, Mr. Chairman. Borup: Just restate your name again. Wallace: I'm Bob Wallace, I'm the lawyer that is representing Kathy Jordan and her business in this application. I will pass some of the fine points that applied to how many kids you can have and not have based on whether City Code is more -- covers the field of how many children can come from outside the employee's family, the owner's family, or outside the facility. I think it's certainly an arguable point and I think whatever the Commission tells Kathy to do as far as bringing in outside kids, she's going to do, just as if the application is denied, she's going to have no altemative but to fall back on the original Accessory Permit, which, as she understands it, never expired, it's just always been there. It doesn't have to be renewed. Zaremba: But it does limit it to five. Wallace: Exactly. Exactly and she will do that. We will have other discussions about her options. I'm not sure that the f acts don't fall within the variance procedure. Of course, we would have to go to Council first and, then, back here, but there are all different ways 0 ne can deal with these things. I tis a hardship situation. T he other conditions can be a basis for a variance and there is just different ways to go. Commissioner Centers, the reason we got real with these photos of Arrow Wood is you had a concern about on-site parking. There doesn't have to be on-site parking, but if all three employees parked on site, that means that the parents coming and going park -- and I'm putting my fingers up in quotation marks, park for about five minutes at a time. That's the parking we are talking about. Then, we are talking about the traffic coming up the cul-de-sac and going down twice a day. That's the traffic we are talking about. Now we are getting real. That's the real impact on this cul-de-sac and on the neighborhood. That isn't the testimony you heard from the neighbors. Their concern was property values and traffic, which harms their kids. If you look down their December 9,2002, statement, which I believe went with the petition, because it's in the same typeface, it lists a long list of untrue things. The only things that aren't untrue, other than the fact that it conflicts with the covenants, which is true and which isn't your business, with all do respect, is that it could and may do terrible things. It says it would increase traffic on our streets. Well, get real. The traffic on the cul-de-sac involved is probably 24 trips a day at two times. It creates a traffic hazard, because cars must use the cul-de-sac to turn a round? That's what cul-de-sacs a re for, that's what t hey are designed for, even with cars parked there for five minutes they can be used that way. It's not a traffic hazard. Increased noise? It operated there three years before. The people who were there said it wasn't noisy. Nobody here says it's noisy. It goes on. Inadequate parking to accommodate staff and visitors. These are the things that were handed out with the petition. There is no evidence before you of any of this. There is adequate parking. Even if they were to park there all day, there is on-street parking that isn't prohibited by City Code and that the staff has found is okay. However, we are not Meridian Planning & Zoning December 19, 2002 Page 48 of 116 really talking about that, we are talking about pick up and drop off and if it's preferable to park on on-site parking, that can be dealt with by asking the staff to park somewhere else, but it's unnecessary. Centers: Let me interrupt. Off-street parking is necessary when you load and unload children for safety reasons and that's the reason that staff makes that comment. We have seen other childcare operations and the off-street parking is a major concern for safety. Okay. Wallace: Here would be next to sidewalks. You have got pictures to show you the sidewalks are adjacent to the facility and I don't know how -- I don't even how unsafe it is for someone to park in the middle of the cul-de-sac and unload their children, because it's a low impact street. There is street side parking next to sidewalks. I guess you just have to interpret what's safe and what isn't. That's not even listed as a concern here. The things t hat a re talk about may increase property values, may change the appearance of the residence, could open the door -- this is my favorite one. It's the second from the bottom. Centers: What page are you on? Wallace: I'm on the December 9th Bedford Place Homeowners List of Objections, which, I believe, is what got everybody so riled up. This is a neighborhood that you say doesn't want it. Well, I wouldn't want it either if somebody alleged all these things would happen from my day care. Ladies and gentlemen, I don't think the evidence before you shows that any of them would and the one that I like the best is allowing one business in the subdivision could open the door to other home-based businesses. This would erode the quality of life for all residents. You know, that's a pretty big value judgment. One of the letters I have attached from a Chamber of Commerce. Member here, along with another letter from a person that lives in the neighborhood and he says is fine and isn't a problem, it says there are a whole lot of people like us that operate businesses. We operate them out of our homes. For some reason people have picked on Kathy Jordan here, because she moved back and -- or I don't even know why they did. There have been personal issues in the neighborhood she got a divorce recently, her ex-husband talked to some people -- who knows. The fact is there are a lot of home-based businesses in the neighborhood. They are allowed by City Code they are promoted by City Code, and they allow employment and allow people to stay home with their kids. They allow early childhood education with hands-on, they allow people to be home all day, and they allow neighborhood security, because people are around. I mean you can say the same thing different ways, but this is what you're being asked to allow to happen and if a lot of neighbors are worried and concerned about what could happen, I sympathize with them, but you're here to impose conditions, so that it didn't happen. I ask you to carefully weigh the multifarious ways you can do that without requiring Kathy to go to the Council asking for a variance, bring it back to you, so she can make a living with more than five kids. She also is looking for another place anyway. She wants to make a living with 25 kids so why stand in her way. Thank you. Meridian Planning & Zoning December 1 g, 2002 Page 49 of 116 Borup: Thank you. The applicant has the last comment and if you -- if we want this to keep going on all night, I guess we can do that, but I -- Commissioners, do we feel that there is any more information that any of you would like? Rohm: I think we have got the issue before us. It's pretty well understood and I would like to make a motion that we close the Public Hearing on CUP 02-038. Zaremba: I'll second that. Borup: Motion and second. Any discussion? All in favor? MOTION CARRIED: ALL AYES Borup: Okay. We started some discussion earlier. I think Commissioner Centers and Commissioner Zaremba had commented. Anything else you would like to add any items for discussion? Mathes: I have a question, though. Dave, did they pull a permit to remodel or does that matter? Don't they have to? McKinnon: I don't know at this time, Commissioner Mathes. Mathes: Okay. McKinnon: I don't know if there has been a Building Permit that was applied for, for the modification. A side bar to that would be the requirement in the City of Meridian is that you be able to provide a garage for a single-family home that's capable of housing at least two vehicles. If they have modified the garage not to do that, that would make the home a non-conforming home. Mathes: And having the five kids would also be cumulative right? McKinnon: Having five kids would also be cumulative, according to the definition of Meridian's Code. Mathes: Okay. Rohm: Mr. Chairman? Borup: Commissioner Rohm. Rohm: It appears to me that there are a lot of reasons why this should be denied and just - I mean the public testimony the City Statutes, and all the testimony that we have heard tonight -- or not all the testimony, but a number of the testimonies that we have heard tonight. There is also the issue of livelihood and I question is there a possibility that you could go with -- we could go with a -- like a 90-day permit that will give her that Meridian Planning & Zoning December 19, 2002 Page 50 of 116 to find an alternate location with a sunset that just says this isn't going to happen beyond 90 days. Something to that effect, because, ultimately, I believe that the issue at hand for these people -- I don't think 90 days is going to affect them period. It will also provide her an opportunity to continue generating income for her family and keep the people that are sending their children there on a daily basis in the environment that they have been used to. I mean I don't have any Statute that says that that's the right answer, but from everything that I have heard that seems to be something that would work on both sides of the -- of the equation. Borup: And that can certainly be a condition. Zaremba: As Commissioner Rohm points out, this is a Conditional Use Permit and we can put conditions on that. I was thinking along the same lines actually, a little more generously. I was thinking six months, but my feeling is -- I'm so much in favor of a business that can grow, should grow and certainly there is a lot of human, personal, and emotional support. One, for this business and, two, for the care that you have been providing. It would seem to me if you could get these people to provide you with some advertising, you could make it into a 50 person day care pretty quick and should do that, by the sound of the care that you have been given and been able to give. It is in the wrong place and I think that's what has incensed the neighbors. This is not the right place to bed oing this, particularly, since it has the potential tog row. I a Iso did not necessarily get the sense of feeling from the neighbors that they hate you personally or want you to go to bankrupt tomorrow. I also got the feeling that if one of the conditions were that this is okay for 90 days or six months while this is worked out, that the neighbors could live with that. Also, the knowledge that after that it would definitely be illegal and I could support that, if other people could. McKinnon: Mr. Chairman, Members of the Commission, if I might ask a question of the Commission. We currently have an illegal day care use. At the end of 90 days and the illegal day care use persists, what -- would you require the city take civil action to remove the day care from the facility? Zaremba: I think it would be appropriate at that point, yes. Centers: That was a comment I was going to make, Dave. You currently have -- can this body extend an illegal action that presently exists? I don't think we can but I think our attomey could voice in anytime he wants. Wollen: Mr. Chairman, Members of the Commission, the first thing that I would add as a word of caution is that, as I see it, the Commission has received testimony tonight that this day care operates at approximately 20 children, as the Meridian Code sees it. There is a very good chance that this day care application is inappropriate for the CUP, which is being applied for, which would be for up to 12 children. Now, whether or not that's a mistake that's been made by the applicant, that is still something where the Commission has to take into consideration what the parameters are on granting a CUP Meridian Planning & Zoning December 19, 2002 Page 51 of 116 for a group -- for a group day care home in the first place and, Commissioner Centers, I'm sorry, I didn't clearly hear your question. Centers: To grant an extension of a violation now. You're in violation now and, then, we approve it for a 90-day period or four month period and taking into consideration that it wouldn't get to the City Council for another month and a half, they are still in violation. Then, the City Council approves it for 90 days, so we have got 120 or 150 days. I don't know. Wollen: Well, if the violation persists past the -- if the Council decided to allow a Conditional Use Permit which ended say six months -- hypothetically, six months from today, it would be - and the condition persisted, it would be up to the city to take both civil and potentially criminal action against the violating business. Zaremba: My input would be what is the upside of overlooking the current illegality, trying to make it legal for a short period, let's say six months? The upside is that the business grows, employs more people, provides a service that's badly needed in Meridian, provides income to the City of Meridian, because it's a taxable business, provides employment to people who will be taxed -- I think there is some upsides to it. Centers: Excuse me, Commissioner Zaremba, the business better not grow, they are already above -- Zaremba: I don't mean in the present location, I mean find a location that -- Centers: Oh. Okay. Okay. Zaremba: I'm saying six months is a deadline on this location, but find a location that can handle 50 or 100 kids. I don't know. Maybe she could do that. Rohm: Mr. Chairman, I have a question of staff. Dave, didn't you mention that the state was reluctant to issue a new license based upon the fact that there is not a Conditional Use Permit at this location and they are waiting to see what kind of an action we took tonight before they acted on her application? It seems to me that if, in fact, that's the case, then, if, in fact, we issue an affirmative with a sunset of six months, then, they would be more inclined to issue a like license. I mean that just -- the logic seems to be there for that type of a conclusion. McKinnon: Mr. Chairman, Members of the Commission, I'll see if I can address in a couple different ways. I have had at least three phone conversations with Richard Swift at the state and he was very concerned that she had moved her day care without -- without contacting the state and telling them that it was going to be moved. The comment was made that she knows that the license does not run with the land -- it runs with the land, not with the person who is moving it from place to place and that according -- regardless of what the state does with that license, we have an ordinance that we need to enforce in the city. If the state was to issue them a license and the city Meridian Planning & Zoning December 19, 2002 Page 52 of 116 did not recognize that license and the city said that the license you have issued does not comply with our ordinances, the city still could take civil and criminal action against the illegal use. Basing anything on what the state has to say, I think we are overlooking the fact that Meridian has its own policies. Rohm: My only point is that the City of Meridian would not grant them something that they couldn't obtain a State License from for anyway. If the state won't issue a license, the City of Meridian is not going to override that and allow them to have a day care anyway. It's kind of like you got to have the State License first and, then, if the City of Meridian elects to exercise their option to deny the use of that license at that location, they still have that prerogative. The first thing that has to hurdle -- that has to take place is you have to have the State License to move forward. McKinnon: That's correct. Rohm: Correct? McKinnon: That is correct and I haven't had conversations with Dick concerning whether they would issue it without the city first, as far as that discussion would be concerned. Rohm: Thank you. Borup: It looks like we have a direction that Commission is leaning towards and that's having a condition with a specific time. I don't know. Is there any other discussion on -- Mathes: Can you put a date on that not just 90 days, but also an absolute date? Wollen: As I read the Meridian City Code, the Council would be able to approve a CUP either based on a duration or a certain date. I believe it specifically said in the code that control the duration of the development but as I interpret that, I believe that a date set certain could also be a duration from X to a date set certain. Mathes: I mean I think a date would be better, just like saying 25 feet on a two story or single-story. Wollen: But also, Commissioner Mathes, to be taken into consideration is the date of final -- if there is approval, date of final approval by the City Council, and at this point, this body has no idea when that date of final approval would be. Mathes: But if we put a date on it, can't the City Council override our date? Wollen: Oh, they certainly can. They certainly can. They can make changes -- I mean they can approve and change the recommendation of the Commission. Meridian Planning & Zoning December 1 g, 2002 Page 530f116 Borup: I think this Commission's purpose on a date is to allow the applicant time to find a new location. Wollen: Exactly. Borup: And that should start now. Zaremba: Well, that's what I was going to say. If we put a date certain on it, she doesn't have to wait until it's been before the City Council. I mean she's already looking and this puts her under the gun a little bit more to work out the deal with whomever she is going to work it out with. Borup: Right. The search for a new location wouldn't start with whatever City Council does it should start right now. Zaremba: It's already ongoing, but this just makes it more serious. Mathes: Well -- and for the homeowners involved, if they can get it done before summer when the kids are playing in the street, that's one less thing to worry about. Centers: Well, I would point out that she's been under the gun for some months and, you know, I would suspect that she has been looking. I don't know how serious she's been looking, but she's been under the gun knowing that her lease was going to expire last fall. Borup: Sometimes a little more pressure can help things. Centers: And yet moved back to her home and opened an illegal day care. It's just that simple. There is no other way to put it. I can't -- it's not only that, it's the neighbors, per City Code, that I do - you know, they may say 90 days, six months, yes, we can put up with it, but, then, what happens when the date comes? We know what's happened to this date right now. She's still in the home illegally and we know how long it takes for certain enforcement to take place, so -- Rohm: Mr. Chairman, I'd like to make a motion. Borup: Please do. Rohm: I'd like to move -- make a motion that we forward this application, CUP 02-038, request for a Conditional Use Permit for an in-home day care in an R-8 zone to -- for Kinder Kollege by Kathy Jordan at 410 East Edgar Court, with the following conditions. This permit is to expire July 31, 2003, and must be accompanied by a State License. McKinnon: Mr. Chairman, Members of the Commission, upon making that recommendation, I have got a couple of questions for clarification. We have had testimony tonight that there are more than 12 children being cared for during the day. Meridian Planning & Zoning December 19, 2002 Page 54 of 116 There are 20. Site Specific Comment Number 6 specifically states that no more than 12 children per day may be cared for by the applicant. In your motion are you intending to allow the 20? Rohm: No. I'd like to have it comply with all rules and regs associated with the Conditional Use Permit application, as in the 12 --limit of 12 and all staff comments. McKinnon: Part of the reason for clarification is to make sure that all people here tonight realize that there shall be no more than 12 children at anytime at the home and I just wanted to make that very clear for both the applicant and all. the people here -- Zaremba: Twelve cumulative. McKinnon: Twelve children cumulative during the day, so that the number of children that are currently there will not be allowed to continue. Borup: Okay. Zaremba: I will second that. Borup: Motion and second. Any discussion? Commissioner Mathes? Mathes: I don't like that date. I'd rather go March 30th. Rohm: Well, we talked between three months and six months and -- Mathes: Yes. The Council can override a date. Rohm: And they could override the July 31, just as they could a 90 day, and at appears as if it's not, then, that easy to find other commercial property and, along with that, Commissioner Zaremba's comment of six months. July 31st gives a final date -- Borup: That's seven and a half months, though. Mathes: Yes. Rohm: I would amend that to June 30th, then. Zaremba: The second accepts the amendment. Centers: And I would point out, too, that Council could also override any denial by this Commission, if the applicant elected to go to the Council. Smith: Mr. Chairman, Commissioners, by the time we see this come out of City Council with an order, at the very earliest it's going to be January 21st - if we put this application Meridian Planning & Zoning December 19, 2002 Page 55 of 116 on back to back meetings for a Public Hearing and Findings so you might consider that in your recommendation. Rohm: Well, that won't change the fact that she's directed by this board to start looking for a new location and she already knows what her sunset is, even if the City Council grants her permission to occupy in the interim. She knows that there is no -- there is no continuance beyond what's granted in the CUP. McKinnon: Mr. Chairman, Members of the Commission, one additional point of clarification. The recommendation you make tonight does not limit the City of Meridian from enforcing its ordinances until that time. The City of Meridian would still have the ability, regardless of your recommendation, to take criminal and civil action to make the operation cease, should the city choose to do so, during the interim. Rohm: And the city has that prerogative whether this is before the Planning and Zoning tonight or not, so that doesn't change. That's-- McKinnon: I wanted to make sure that any recommendation for approval with conditions would not be justification for continued used of the day care at this location until time of approval. Zaremba: Other than the five that's under the old AUP, which never expired right? McKinnon: That was a question I would have had for Nick earlier and I didn't ask it. Nick, on a change of use when a property ceases a use and, then, changes to -- from a use with a day care to no use to a residential use and back to a use with a period of time of two to three years -- I'm not sure exactly where it would fall. Would the use cease and would a new application have to be brought forth for an Accessory Use Permit? Wollen: Dave, I would have to see the original Conditional Use that was placed upon it, because there may have been limits of duration on that. McKinnon: Well, just a point of clarification. The first was just an Accessory Use Permit and an Accessory Use Permit goes through a similar Public Hearing, however, it does riot have the same noticing requirements as a Conditional Use Permit and the Accessory Use Permits do have a Public Hearing, such as the one that we are having tonight. The recommending body, you, would not be the recommending body, but you would be the governing body. You could make that decision yourself. Wollen: It would be -- it would be my take on that that unless there were language within t hat A UP 0 rdinance requiring -- well, requiring re-upping t he A UP, I believe it would extend throughout. There is not? Okay. McKinnon: Mr. Chairman, Members of the Commission, there is no language that would require that. Meridian Planning & Zoning December 19, 2002 Page 56of116 Wollen: And, therefore, I believe that it would -- the AUP would still qualify if it's -- if it's the same individual that had applied for the AUP previously, if Kathy Jordan was the applicant on that. McKinnon: Thanks. Borup: Just a reminder, we do have a motion and second. We are still in the discussion. Are we ready to vote? Zaremba: I call the question. Borup: Okay. All in favor? Rohm: Aye. Zaremba: Aye. Borup: Opposed? Centers: Naye. Mathes: Naye. Borup: I'm going to -- McKinnon: Mr. Chairman, for a roll call vote, could we -- for the record, could we -- Borup: Well, two ayes and two nayes. We are tied at this moment. McKinnon: Thank you. Borup: And I would vote naye at this time, because -- because -- I agree with Commissioner Rohm's idea on a sunset date and I agree with Commissioner Mathes, that it's probably too far out so I vote naye and open for another motion. McKinnon: Mr. Chairman - Borup: Wait a minute. I can't do that. Centers: That's the end of story here. Borup: Let me think about this, then. McKinnon: Mr. Chairman, are you rescinding your motion and asking for a new motion? Borup: Yes. Can I do that? Meridian Planning & Zoning December 19, 2002 Page 57of116 McKinnon: You didn't make the motion. Borup: I didn't make the motion no but at this point it's a tie. If I decline to vote -- Zaremba: It would die. Borup: It would die, which is what I will do. McKinnon: So, Mr. Chairman, for the record -- Borup: Are you covering this, Nick? Wollen: Oh, yes, I -- Borup: Okay. Thank you. Zaremba: Now, we are open -- Borup: We are open for another motion, aren't we? Zaremba: Mr. Chairman? Borup: Commissioner Rohm -- Centers: Point of order. I thought the Chairman already voted? He voted naye, because he didn't like the date in the motion, correct? Borup: I changed my mind real quick there. Centers: Okay. Well, you know, I'm not a Robert's Rules of Order, but -- Zaremba: Well, the Chairman did not carry it so far as to make the final summary of the vote and - Borup: No, I -- Zaremba: -- and declare whether it passed or not. Borup: I did not do that. Zaremba: On the assumption that that motion died, I move that we forward to the City Council recommending approval of CUP 02-038, request for a Conditional Use Permit for an in-home day care in an R-8 zone for Kinder Kollege by Kathy Jordan, 410 East Edgar Court, such CUP to terminate and expire on March 31st. Also, to limit the number of children to a cumulative 12, plus her own children, and all other staff comments. Meridian Planning & Zoning Decernber19,2002 Page 58 of 116 Rohm: I will second that motion. Borup: Motion and second. Any discussion? Centers: Yes I would like to further comment that by condoning this -- or by approving it until the end of March, you're just condoning the illegality that's been going on and you're saying I will give her another two or three months to operate. She is illegal until she gets to the City Council, which is over a month from now and we are condoning that? Rohm: If the city elects to take action in the interim, so be it. We can't dictate to the city what kind of action they take between now and when City Council -- Centers: So you're just going to leave them illegal. Zaremba: My feeling is it benefits enough to everybody. Again, thinking down the distance, if this business is able to grow and becomes a benefit to Meridian in another location -- I think we have made that clear, I think the end result is worthwhile. Centers: Do you really think she's going to find a place in three and a half months, when she's had who knows how many months to find a place? Zaremba: I'm not going to be so generous three months from now. Centers: And, then, when she's there at the end of March, who is going to -- who is going to enforce -- enforce it then, when they are trying to enforce it now? It's going to be more difficult then. Rohm: Mr. Chairman, I call for the question. Borup: Okay. All in favor? Do we need a roll call vote here? All opposed? Is that three ayes and one nay? Mathes: Can I ask a question? How can you enforce it I mean can the city go now? Borup: Sure. Yes. McKinnon: Mr. Chairman, Commissioner Mathes, absolutely. The city can go now. We could write a ticket for every 24 hours as a misdemeanor that she continues to operate until such time as it's a legal use, regardless of what you do tonight. Centers: That's why I voted against it. McKinnon: And the city has to take action. The city has started action to have the operation -- visits have been made by different parties. I have spoken with -- I have spoken with our Code Enforcement Officer, the new Code Enforcement Officer that we Meridian Planning & Zoning December 1 g, 2002 Page 59of116 have. I have spoken with the Planning Director, who has spoken with the Chief of Police, who has indicated that he will send an officer out to issue a citation. I'm following up tomorrow morning with Captain Musser of the Police Department to make sure that the City of Meridian's ordinances are being -- that the violation is being enforced upon. Centers: And, then, let me ask this question. When the applicant tells that individual that, hey, the Planning and Zoning gave me a temporary approval last night for three and a half months, is going to write a ticket? Maybe not. McKinnon: The Planning and Zoning Commission has no authority -- Centers: Right. I know. I know. Zaremba: We are just recommending approval. Centers: I know that. McKinnon: In discussions with the Police Department, we can tell them that there is no approval at this time, regardless of the recommendation that's been made, and that the operation will be illegal until such time as the City Council recommends approval and the Findings of Facts and Conclusions of Law of their decision are made. Borup: Okay. Did that answer your question, Commissioner Mathes? You're still confused? Mathes: Can you tell? McKinnon: Mr. Chairman, there is a motion that's been on the table, there has been a call for a vote -- Borup: Right. McKinnon: Would it be appropriate to ask for a roll call vote, for clarification? Borup: Let's do that. Roll Call Vote: Rohm, aye; Centers, naye; Zaremba, aye; Mathes, aye. Borup: Okay. Three ayes. One naye. McKinnon: Thank you. Mr. Chairman, a clarification on the motion. I know it will be in the minutes, but as far as making a recommendation, the motion was for March 31st is that correct? Zaremba: There are 31 days in March right? Meridian Planning & Zoning December 19, 2002 Page 60 of 116 McKinnon: I hope so. Zaremba: It was for March 31st. McKinnon: March 3151 would be the end date and that's the motion that, plus the 12 children. Zaremba: Yes cumulative 12, plus her own. McKinnon: Okay. Thank you. Borup: Okay. As I said, the ayes have it. Thank you. MOTION CARRIED: THREE AYES, ONE NAYE Borup: Thank you, Commissioners and thank everyone for being here and hope -- Zaremba: Thank you for participating in the process. Borup: We appreciate that and we hope this was a solution that was helpful for everyone. Rohm: Mr. Chairman, I'd like to take a recess. Borup: Yes. McKinnon: One question to Sharon. When will the City Council Meeting be held for this? Smith: We can rush this application and the notices -- if I get in first thing in the morning and do notices, it will be heard January 14th. McKinnon: Thank you. Borup: It tentatively could be -- they are going to try to get it on the January 14th Agenda. Commissioner Rohm asked for a short recess. I think that would be appropriate. (Recess at 10:00 P.M.) (Reconvene at 10:17 P.M.) Item 11. Public Hearing: RZ 02-008 Request for a Rezone of 1.99 acres from R- 15 to R-40 zones for pro~osed Creekside Arbour II by Bill and Lucy Leavell - 1425 Northeast 51 Street: