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Gail Carrithers AUP BEFORE THE MERIDIAN PLANNING AND ZONING COMMISSION B. GAIL CARRITHERS ACCESSORY USE PERMIT FOR OPERATION OF A FAMILY CHILD CARE HOME 1060 TAMMY PLACE MERIDIAN, IDAHO FINDINGS OF FACT AND CONCLUSIONS OF LAW The above entitled matter having come on for public hearing on July 8, 1997, at the hour of 7:00 o'clock p.m., at the Meridian City Hall, 33 East Idaho Street, Meridian, Idaho, the Applicant, B. Gail Carrithers, appearing in person, the Planning and Zoning Commission of the City of Meridian having duly considered the evidence and the matter makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1 . A notice of the application was mailed by certified mail, return receipt requested, to owners of property which abuts the external lot or boundary lines of the property, including properties across the street, alley and kitty corner to the propertYi a notice of the application was published for two (2) consecutive weeks; a notice of the public hearing on the application for the accessory use permit was published for two (2) consecutive weeks prior to the said public hearing scheduled for July 8, 1997, the first publication of which was fifteen (15) days prior to said hearing; that the matter was duly considered at the July 8, 1997 hearing; that the public was given full opportunity to FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 1. B. GAIL CARRITHERS - ACCESSORY USE PERMIT express connnents and submit evidence; and that copies of all notices were available to newspaper, radio and television stations. 2. The property included in the application for the accessory use permit is described in the application, and by this reference is incorporated herein as if set forth in full. This property is located within the City of Meridian, Ada County, state of Idaho at 1060 Tammy Place. 3. Pursuant to the application, the Applicant is the owner of record of the propertYi the property is currently zoned (R-8) Medium Density Residential District; the property is contained in the Settler's Village Subdivision; the surrounding properties are residential homes; the Applicant requests an accessory use permit for the operation of a Family Child Care Home; there exist no accessory uses of a similar nature in the area; and the Applicant agrees to pay increased sewer, water or trash fees if such are required due to increased use. 4. The Applicant testified substantially as follows. She is a family home child care provider. She and her family recently relocated to Meridian, Idaho from Vancouver, Washington. She was a licensed day care provider in Vancouver, Washington. In her day care, she provides a safe and secure environment for the children to learn and play. She teaches the children to be good citizens, to respect one another and other people's property. At no time would the children in her care be allowed to run wildly through the neighborhood. She is aware of the limited parking space available in the culdesac in which the property is located. She does not FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 2. B. GAIL CARRITHERS - ACCESSORY USE PERMIT feel that the limited parking space will be a problem; the property has sufficient room to accommodate four vehicles in addition to her own. It has been her experience that rarely two parents arrive to pick up the children at the same time. She can easily handle the parking for the parents. She feels her day care will be an asset to the community by providing quality care and teaching good moral standards. She feels that she has met the requirements for an accessory use permit and would like one to be granted to her. 5. In response to questions of Connnissioner MacCoy I the Applicant testified substantially as follows. She has received the City staff's comments on this application. She has reviewed said comments and does not have a problem with any of them. However, her understanding is unclear as to being charged a commercial use rate. She does not have a problem with such use rate if such rate does not take effect until she has been in business, and it is determined that such rate should apply. She is willing to enter into an assessment agreement. She, understands that the City of Meridian will permit her to watch, in addition to her children, three children; she is permitted to watch a total of five children. Because of the age of her children, she plans to keep the group of children at approximately the same age; three to eleven years old. The chance of increased water usage is unlikely based upon three additional children and a few more diapers. As requested, she plans to obtain a child care license from the state of Idaho. However, she understands that she does not need a day care license to start a day care in the City of Meridian. To make it clear, she FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 3. B. GAIL CARRITHERS - ACCESSORY USE PERMIT plans to secure a child care license, but she does not want to wait to commence her day care until she secures the day care license. She believes the City of Meridian will allow her to start her day care, without the license, but she does not want to violate any requirement. She does not plan to change or alter the front of her house. She does not like the idea of signage. No modifications or changes to the property or house are needed for the day care. She has been in the child care profession for a while, and her top priority is the safety of the children. She does not allow her children to be in the front yard, without an adult present. The property has a large backyard for the children to play, which is fully enclosed. She has locks and plans to pad lock the two gates on her property. Wi th regard to the neighborhood and noise, children live behind the property and in the neighborhood. She does not believe that three additional children will. create a noise problem. Of the three additional children, she plans to accept all children, whether handicapped or not; however, she does not know whether such type of demand exists in the City of Meridian. She believes her house will presently acconnnodate handicapped children, but will construct a ramp into the house if necessary. When she was in Vancouver, Washington, she did not care for any handicapped children. Handicapped children typically need more specialized care. Consequently, she does not receive requests to care for such children. Based upon her review of the covenants applicable to the subdivision in which the property is located, the type of day care FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 4. B. GAIL CARRITHERS - ACCESSORY USE PERMIT she desires is not prohibited. If the covenants had prohibited such type of day care, she would not have purchased the house. 6. In response to a question of Commissioner Borup, the Applicant testified substantially as follows. She believes that she is not required to have a license for this type of day care; however, because she intends to secure a license from the state of Idaho, and she has not been concerned with the requirements. 7. In response to questions of Chairman Johnson, the Applicant testified substantially as follows. The anticipated and ideal hours of the day care are either 6:00 or 7:00 a.m. to 6:00 p.m. She does not know the need in the city of Meridian; these hours were her hours in Vancouver, Washington. However, she does not want to limit herself to these hours in the event she needs greater hours. Providing this type of care is her source of income. Her family needs her income in addition to.her husband's. Consequently, if a person worked late hours or the "grave yard" shift and needed to have a child or children watched, she would be willing to accept such child or children. However, she does not intend to operate a 24-hour day care. The people are not going to be coming and going at all hours of the day and night. Consequently, she does not know the precise hours of operation. She is aware of and has read the letter submitted from her neighbors located at 1066 Tammy whose last name is Michaelson. With regard to the sketch she submitted, the driveway on the property is the parking area for the day care. This sketch is not specifically detailed, because she did not know such additional FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 5. B. GAIL CARRITHERS - ACCESSORY USE PERMIT detail was required. She provided in the sketch the general location of the house, the play area and other amenities on the property. 8. The Applicant further testified that she would be the only person working in the day care. There exists no open waters such as ditches or swimming pools on the property. 9. A letter, dated June 13, 1997 and signed by James D. Michaelson and Betty M. Michaelson, was submitted to the Planning and Zoning Commission in objection to the application, which letter is incorporate herein as if set forth in full. This letter provides: Petition to stop application for accessory use permit for family child care center at 1060 Tammy Place (St.) Refer to Restrictions Conditions & Covenants of Settler Village Subdivision dated 24 May 1983) (UWhat good are covenants if they are ignored.") section # 1 Fully- protected Residential Area. Section # 8 Parking No recreation vehicles trailers automobiles boats or other vehicles shall be parked permanently on streets. All permanent parking shall be in garages or attached driveways. This is where my concerns comes in. This is a very small cul-de-sac. There are more cars than there is parking spaces unless you park in the driveways or middle of street. Section No signs. Section Amendments Three-fourth of the property owners have to approve any amendments in this subdivision. 10. At the hearing, John Michaelson submitted a document containing three pages, which document is incorporated herein as if set forth in full. Mr. Michaelson testified concerning this application substantially as follows. He is not the villain, does FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 6. B. GAIL CARRITHERS - ACCESSORY USE PERMIT not oppose children or day cares; he is in favor of day cares. He has four children, ten grandchildren and one great grandchild who needs a day care. He is opposed to the application because the covenants, conditions and restrictions of the subdivision prohibit such use. with regard to the document he submitted, part of the document is a portion of revised covenants, conditions and restrictions (CC&Rs) of Settlers Village Subdivision in which the property is located. These CC&Rs provide that block 3, lots 1 through 68 of the subdivision are a fully protected residential area. The property is lot 59 and lot 60. The CC&Rs provide that in the residential area, no lot shall be used except for residential purposes. Also part of the document submitted is the sketch of the property which he corrected as to measurements. He is concerned about parking. There are seven houses and 20 cars. with regard to the parking, he is concerned about the traffic from parents dropping off and picking up their children. 11. Don Day testified substantially as follows. He is opposed to the application because the covenants, conditions and restrictions of the subdivision prohibit such use. He does not believe the driveway on the property has enough area for sufficient parking. He purchased his house because it is on a culdesac, and he knew there would not be much traffic. Accordingly, he objects to the application. 12. In response to questions of Commissioner Borup, Mr. Day testified substantially as follows. He objects to the application based upon an increase in traffic and parking in the culdesac. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 7. B. GAIL CARRITHERS - ACCESSORY USE PERMIT 13. Deborah Pence testified substantially as follows. She does not believe traffic is an issue. Her observations have been that there has not been significant traffic created by this type of day care, and parking has not been a problem when dropping off or picking up the children. She does not anticipate traffic or parking problems in the culdesac. She does not believe her children's activities in the neighborhood will be restricted as a result of the day care, including the traffic or parking associated with the day care. She does not believe there will be an noise impact from the children at the day care. She believes another day care in the City of Meridian would be beneficial, because of the growth and safe places to take children. There is a demand for day care in the City of Meridian; the day cares in the City of Meridian are few and hard to find. Accordingly, she is in favor of the application. 14. In response to questions of Conunissioner Borup, Ms. Pence testified substantially as follows. There exist other day cares in her neighborhood; two at the intersection of Chateau and Jericho and another on Tara. These day cares are approximately a block away from her house. There exist other day cares in the neighborhood, none of which, to her knowledge, are licensed day cares. 15. Elizabeth Ahlestrom testified substantially as follows. She concurs with the comments of Deborah Pence. She is a stay at home mother. Her children often ride their bikes through the culdesac. She has observed the traffic and she does not think it FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 8. B. GAIL CARRITHERS - ACCESSORY USE PERMIT is a problem. The traffic created results only from dropping off and picking up the children. The dropping off and picking up occurs in a very short period of time. She is in favor of the application. 16. Betty Michaelson testified substantially as follows. She lives next door to the property. She loves children; however, she and her husband are retired and bought their home for retirement. She is concerned about access to the culdesac during the winter. The snow that gathers inhibits the movement of traffic in the culdesac. She believes the snow will create a problem with dropping off and picking up the children. 17. Bruce Freckleton, Assistant to the City Engineer, and Shari Stiles, Planning and Zoning Administrator, submitted connnents which comments are incorporated herein as if set forth in full. Their comments included the following: a. Off-street parking shall be provided in accordance with Section 11-2-414 of the City of Meridian Zoning and Development Ordinance; b. Outside lighting shall be designed and placed so as not to illuminate directly any nearby residential areas, and in accordance with City Ordinance Section 11-2-414 D.3; c. No signage shall be allowed; d. Sanitary sewer and water to this facility would be via existing service lines. This site currently is assessed with one water hookup and one sewer hookup. Assessments for sewer and water service will be reviewed to see if additional load would justify an adjustment. The Applicant is to provide any information that she may have with regard to her anticipated water demand. The Applicant will be required to enter into an Assessment Agreement with the City of Meridian prior to operation. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 9. B. GAIL CARRITHERS - ACCESSORY USE PERMIT The use shall be considered a commercial use and charged commercial rates; e. Zoning Certificate and Certificate of Occupancy for the daycare are required prior to operation; f. Screened trash enclosures are to be provided in accordance with City ordinance; g. The Family Child Care Home shall not adversely impact surrounding properties due to children's noise, traffic and other activities; h. The Applicant shall secure and maintain a child care license from the Idaho State Department of Health and Welfare-Child Care Licensing Division; i. The Applicant shall provide for screening of adjacent properties to protect children from adverse impacts and to provide a buffer between properties; j. The Applicant shall provide for a fence of appropriate height/construction, to enclose play areas; k. If the accessory use permit is approved, the Applicant is to schedule an appointment with the Meridian Fire Department for inspection prior to operating. Operation of daycare without proper approvals will result in revocation of accessory use permit; l. Family child care homes are defined as a child care facility which provides care for five (5) or fewer children throughout th~ day. This includes the provider's own children; and m. Violation of any of the above conditions shall be cause to revoke a zoning certificate for a Family Child Care Home. 18. The Meridian City Police Department submitted comments, which respective comments are hereby incorporated herein as if set forth in full. 19. Meridian Fire Department submitted comments, which comments are hereby incorporated herein as if set forth in full; as FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 10. B. GAIL CARRITHERS - ACCESSORY USE PERMIT long as all codes are met, it will not have a problem with the accessory use permit. 20. The Central District Health Department submitted comments, which comments are hereby incorporated herein as if set forth in full. Its comments included that after written approval from appropriate entities are submitted, it can approve this application for central sewage and central water; and it will require plans be submitted for a plan review for a child care center. 21. There was no further testimony given at the hearing. 22. Pursuant to section 11-2-409 A, Zoning Schedule of Use Control of the Zoning And Development Ordinance of the City of Meridian, the operation of a Family Child Care Home on property zoned (R-8) Medium Density Residential District is permitted by and requires an accessory use permit. CONCLUSIONS OF LAW 1. All the procedural requirements of the Local Planning Act and of the Ordinances of the Ci ty of Meridian have been met including: the mailing of notice of the application by certified mail, return receipt requested, to owners of property which abut the external lot or boundary lines of the property, and properties across the street, alley and kitty corner to the property; a notice of the application was published for two (2) consecutive weeks; and a notice of the public hearing on the application for the accessory use permit was published for two (2) consecutive weeks prior to the FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 11. B. GAIL CARRITHERS - ACCESSORY USE PERMIT said public hearing scheduled for July 8, 1997, the first publication of which was fifteen (15) days prior to said hearing. 2. The City of Meridian has authority to grant accessory uses pursuant to 11-2-410 D of the Zoning and Development Ordinance of the City of Meridian. 3. The City of Meridian has authority to place conditions on an accessory use permit. 4. The City of Meridian has the authority to take judicial notice of its own ordinances and proceedings, other governmental statutes and ordinances, and of actual conditions existing within the City and state of Idaho. 5. The Zoning and Development Ordinance of the City of Meridian defines "Accessory Use Or Structure," at Section 11-2-403 B as follows: Accessorv Use or Structure - A use or structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure. An accessory use or structure does not alter the essential characteristics of the principal permitted use and does not include a building which is defined herein as a dwelling unit. The Zoning and Development Ordinance of the City of Meridian defines "Dwelling Unit.. at Section 11-2-403 B as follows, "Dwellinq Unit - Any building or portion thereof which meets adopted<building codes and is used as a residence or living quarters of one or more persons." 6. Section 11-2-410 D 1. of the Zoning and Development Ordinance of the City of Meridian provides in part: FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 12. B. GAIL CARRITHERS - ACCESSORY USE PERMIT a. The accessory determination shall be based upon the relationship of the building, structure or use to the principal permitted use. Specifically, it must be habitually or commonly established as reasonably incidental" to the principal permitted use and located and conducted on the same premises as the principal permitted use. In determining whether it is necessary, the following factors shall be used: (1) The size of the lot in question; (2) The nature of the principal permitted use; (3) The use made of adjacent lots; ( 4 ) The actual incidence of similar use in the area; (5) The potential for adverse impact on adjacent property; and (6) The applicant must be the owner of the property under consideration and the user of the accessory use. bo Family child care homes and home occupations may be considered to be permissible accessory uses in the R-4 and R-8 Residential Districts if they are approved after applying the following additional review procedures and the applicable accessory use standards of Section 11-2-410D2: * * * * ( 3 ) The applicant shall be required to pay any additional sewer, water and trash charges or fees, if any are requiredo ( 4 ) The use shall be considered as a commercial useo * * * * 7. The property is currently zoned (R-8) Medium Density Residential District. The surrounding properties are zoned (R-8) Medium Density Residential District, and are residential homes. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 13. B. GAIL CARRITHERS - ACCESSORY USE PERMIT 8. The Zoning and Development Ordinance of the City of Meridian defines "Family Child Care Home," at Section 11-2-403 B as follows: Child Care Facilitv - Any home, structure, or place where nonmedical care, protection, or supervision is regularly provided to children under fourteen (14) years of age, for periods less than twenty four (24) hours per day, while the parents or guardians are not on the premises. There are three (3) types of child care facilities: 1 . Family Child Care Home - A child care facility which provides care for five (5) or fewer children throughout the day. * * * * It should be noted that in determining the type of child care facility that is being operated, the total number of children cared for during the day and not the number of children at the facility at anyone time is determinative. 9. Section 11-2-410 D 2. b. of the Zoning and Development Ordinance of the City of Meridian sets forth the standards under which the Planning and Zoning Commission shall review applications for accessory use permits. This section provides: Family Child Care Home Standards: It is the. intent of this provision to provide for accessory family child care homes which will not adversely impact surrounding properties due to children1s noise, traffic and other activities, and which are located away from and properly screened from adverse impacts to the health, safety and welfare of the children. The following conditions shall apply: (1) Secure and maintain a child care license from the Idaho State Department of Health and Welfare-Child Care Licensing Division if required. ( 2 ) Acquire an occupancy certificate and/or building permit. (3) Provide one off-street parking space per employee which may be the driveway to the home. (4) Provide for child pick-up area located off of arterial or collector streets. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 14. B. GAIL CARRITHERS - ACCESSORY USE PERMIT (5) Provide for screening of adjacent properties to protect children from adverse impacts and to provide a buffer between properties. (6) Provide for construction, children from streets. a fence of appropriate height/ to enclose play areas, protecting traffic on arterial or collector 10. This application for an accessory use permit has been judged upon the applicable standards and guidelines set forth in Section 11-2-410 D of the Zoning and Development Ordinance of the City of Meridian basis of guidelines, the record submitted to it and the things of which the City of Meridian may take judicial notice. 11. Applications of this nature are difficult because, notwithstanding objections from neighbors, the Zoning and Development Ordinance of the City of Meridian provides that the requested use is permitted as an accessory use if the standards are met. The Planning and Zoning Commission concludes, considering the applicable standards and guidelines set forth in Section 11-2-410 D of the Zoning and Development Ordinance of the City of Meridian, the record submitted to it and the things of which the City of Meridian may take judicial notice, the Applicant has met the standards. Consequently, if the neighbors' objections are allowed to control it is not government by law. The law controls and the application for an accessory use permit shall be granted, and the use allowed subject to the conditions imposed. 12. Because conditions may be placed upon the grant of an accessory use permit, the Planning and Zoning commission concludes FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 15. B. GAIL CARRITHERS - ACCESSORY USE PERMIT that the following conditions of the grant of the accessory use are required, to wit: a. As the ordinances of the City of Meridi~n only allow up to five (5) children under the Family Child Care Home, the Applicant shall be limited to a maximum of five (5) children, including her own children, to be cared for under this accessory use permit; b. The Applicant shall provide for a fence of appropriate height and construction, to enclose play areas, protecting the children from traffic, whether or not the traffic is on arterial or collector streets; c. The Applicant shall keep the children in the fenced yard at all times except for drop-off and pick-up times when the parents shall be required to bring the children into the Applicant1s home and come into the home to pick the children up. The children shall at no time be allowed out side of the fenced area when not accompanied by an adult; d. The Applicant shall secure and maintain a child care license from the Idaho State Department of Health and Welfare-Child Care Licensing Division; e. The Applicant shall provide one off-street parking space per employee, if any, which may be the .driveway to the home; f. The Applicant shall provide for child pick-up area located off of any arterial or collector streets; g. The Applicant shall provide for screening of adjacent properties to protect children from adverse impacts and to provide a buffer between properties; h. The Applicant shall meet the comments, recommendations and requirements of the City Engineer's office and the Planning and Zoning Administrator, which include, but are not limited to the following: (1) Off-street parking shall be provided in accordance with Section 11-2-414 of the City of Meridian Zoning and Development Ordinance; (2) Outside lighting shall be designed and placed so as not to illuminate directly any nearby residential areas, and in accordance with City Ordinance Section 11-2-414 D.3, FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 16. B. GAIL CARRITHERS - ACCESSORY USE PERMIT (3 ) (4 ) (5) (6 ) (7) ( 8 ) ( 9 ) No signage shall be allowed; The Applicant shall provide any information that she may have with regard to her anticipated water demand, and the Applicant shall enter into an Assessment Agreement with the City of Meridian prior to operation. The use shall be considered a commercial use and charged commercial rates; The Applicant shall secure a Zoning Certificate and Certificate of Occupancy for the Family Child Care Home prior to operation; The Applicant shall provide screened trash enclosures in accordance with City ordinance; The Family Child Care Home shall not adversely impact surrounding properties due to the children's noise, traffic and other activities; The Applicant shall f.orthwi th schedule an appointment with the Meridian Fire Department for inspection prior to operating; and The Applicant's operation of the Family Child Care Home without proper approvals will result in revocation of accessory use permit. i. The Applicant shall meet and comply with the comments, recommendations and requirements of the Meridian Police Department, the Meridian Fire Department, the Meridian Sewer Department, and the Central District Health Department; and j. Violation of any of the above conditions shall be cause to revoke a zoning certificate for a Family Child Care Home. 13. The above-conditions are concluded to be reasonable and the Appl icant shall meet these conditions of the grant of the application for an accessory use permit. 14. That testimony was given that stated the proposed use would be in violation of the convenants, conditions and restrictions (CC&Rs) of the subdivision in which the property is located. It is concluded that the City of Meridian is not bound by FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 17. B. GAIL CARRITHERS - ACCESSORY USE PERMIT a subdivision's CC&Rs and does not have to follow them. However, the City I S action in granting an accessory use permit does not infer that proceedings cannot be instituted by a property owner to enforce the CC&Rs against the Applicant. APPROVAL OF FINDINGS OF FACT AND CONCLUSIONS OF LAW The Planning and Zoning Commission of the City of Meridian hereby adopts and approves these Findings of Fact and Conclusions of Law. ROLL CALL COMMISSIONER BORUP VOTED '1GP COMMISSIONER MANNING VOTED AI3~ COIDUSSIONER MACCOY VOTED yeA COMMISSIONER SMITH VOTED 11-8~G3Jrf CHAIRMAN JOHNSON (TIE BREAKER) VOTED DECISION The Planning and Zoning Commission hereby decides and hereby approves the accessory use permit requested by the Applicant for the property described in the application with the conditions set forth in the Findings of Fact and Conclusions of Law, more particularly set forth at paragraph 12. of the Conclusions of Law, and that the property be required to meet the water and sewer requirements, the fire and life safety codes, and the Uniform Building Code, and other ordinances of the City of Meridian. The accessory use shall be subject to annual review by the City upon notice to the Applicant. FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 18. B. GAIL CARRITHERS - ACCESSORY USE PERMIT accessory use shall be subject to annual review by the City upon notice to the Applicant. MOTION: JJ~. APPROVED: ~ g(ttj17 DISAPPROVED: FINDINGS OF FACT AND CONCLUSIONS OF LAW - Page 19. B. GAIL CARRITHERS - ACCESSORY USE PERMIT