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State law trumps town code in daycare location issue


By Michael Howell

The Stevensville Board of Adjustments decided, at a meeting on November 14, that a proposed daycare facility in Stevensville would not have to get a conditional use permit from the town if it was duly registered and licensed with the state.

Vicki Adams, who currently operates a child day care business out of her home in Stevensville, is considering moving the business into the residence she and her husband recently inherited following the death of her father-in-law. Stevensville Town Planner Ben Longbottom made the decision that the day care would not be allowed in that area which is zoned Residential R-2. While her current day care is located in an R-1 area where residential childcare is allowed, he determined that the R-2 zone would prohibit such activity unless a conditional use permit was granted.

Adams disagreed and appealed the Planner’s decision to the Stevensville Board of Adjustments which consists of the Town Council members and the Mayor.

Town Attorney Brian West issued an initial response to the Mayor’s question about the issue, stating that he was in agreement with the planner. He stated that to operate a residential childcare operation in an R-2 zone, it must be in a “private residence”. Since the term is not defined in the codes, he said, the common understanding of the term should be used.

“It is logical that the drafters intended to allow an operation with business characteristics in a residential area under the strict conditions that the operators reside in the home and therefore provide some level of guarantee that the business aspects of the daycare do not adversely affect the neighbors.” He said if the operators did not reside in the home it would be analogous to churches, which are occupied during the daytime, but are generally not occupied at night. Churches are required to get a conditional use permit to operate in an R-2 zone.

A week later, following further research, West submitted a revised opinion stating that while he still agreed with the Town Planner and the proposal is not in compliance with the Town’s regulations, “I do have to give credence to State laws concerning day care zoning issues and believe that if the operation has been licensed by the Montana Department of Health and Human Services (DPHHS) under state law then they will be exempt from the town’s requirement that they seek a conditional use permit.”

West noted that the state law contains two clauses. He said the first states that a city may require a conditional use permit for operations such as foster homes, youth shelters, or youth group homes providing 24 hour services, even though the statute dictates that they are “residential uses.” But the second clause states that a city may not require a conditional use permit for a “day-care home” registered with the DPHHS.

“Therefore, if DPHHS has granted a registration certificate to an operation as a Family day-care home, then they are exempt from a city’s requirement for a conditional use permit,” he wrote. But West also pointed to a State Supreme Court ruling that established, since the term was not defined in the law, that the plain meaning of the term “residence” should be used and defined that as “a habitable structure or dwelling place – i.e. a place where people are living.”

West said that in applying that definition he found the proposed transfer of the child care operation “does not meet the Stevensville definition of a ‘residential day care’ or the state law definitions, all of which would require the operation to be in a private residence.”

However, he states, if DPHHS were to register the new property, they would have made an administrative decision that the second property has qualified under state law to be a Family day care home and arguably has met the state definition of private residence and would thus be exempted from review under the town’s zoning codes for a conditional use permit.

Several people at the meeting spoke in favor of the daycare being allowed. No one spoke against it.

The Mayor pointed out that the state was not really making any determination. He said it states on the license from the state that it is not making the determination but that the applicant is self-certifying that it meets the requirements. He said that means that it is Adams who is deciding what the term “private residence” means.

“It’s not the state making the determination, but the applicant making that determination themselves,” he said.

“That’s between the Adamses and the state,” said Councilor Ron Klaphake. He said that he understood what the state was going through, that he had seen it in other communities. He said it was difficult to have daycares because people don’t want them in their neighborhoods.

“So the state says we want these small day-care providers to be located in residential settings and if we license them you can’t conditionally zone them out and that’s what [the town’s attorney] said. If they get the license, it’s a done deal.” said Klaphake.

Councilors Desera Towle and Robin Holcomb expressed agreement.

The Mayor stated that his problem with the issue was one of process and that he still believed that the proper process would be for the Adamses to go through the conditional use process because they have admitted that they are not going to be living in the house.

Councilor Bill Perrin also expressed reservations about skipping the conditional use process because it was the town’s process for soliciting public input and determining the will of the neighborhood.

Perrin was swayed by the legal argument in the end, however, and voted along with the other councilors that if the Adamses produce a license from the state a conditional use permit would not be required. The measure passed on a 4 to 1 vote with Mayor Mim Mack casting the lone dissenting vote.

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