The City of Redwood City’s ordinance for issuing permits for large family day care homes violates state law and is confusing to those seeking and considered with such permits.

Issue: Does the City of Redwood City have a valid ordinance for issuing large family day care home permits?

The City of Redwood City (City) issues permits for family day care homes as authorized by the California Health & Safety Code. The Health and Safety Code limits restrictions imposed by local government on the use of single-family residences for family day care homes.

There are two categories of family day care homes: 1) small homes for 6 or fewer children and 2) large homes for 7 to 14 children, including children under the age of 10 who reside at the home. Permits for small family day care homes are automatically issued. Under the Health and Safety Code, local jurisdictions have three options for qualifying a residence as a large family day care home:

1. Automatic approval upon the home’s owner meeting certain minimum requirements
   
2. Issuance of a non-discretionary permit upon the home’s owner complying with health, safety and fire regulations determined under state standards
   
3. Issuance of a use permit through a process that includes:
   
1. Notice to neighboring property owners of intended action
   
2. Authorization by a zoning administrator
   
3. Right to a hearing before local officials
   
4. Right to appeal by either the permit applicant or other affected person, e.g., a neighbor or neighbors.

In 1991, the Redwood City Council adopted an ordinance, using option 2, to provide non-discretionary permits for the approval of large family day care homes. In 1998, the City Council amended the ordinance to include some steps in the option 3 process.

In 2002, there was a contested application to establish a large family day care home on a cul-de-sac in a residential area. In spite of the neighbors’ objections at the hearing, the Redwood City Zoning Administrator issued the permit.

The neighbors appealed and were granted a hearing before the City Council. While the neighbors were allowed to speak at the City Council meeting, the City Council refused to consider their appeal based on the City Attorney’s advice that the amended ordinance provided for issuance of a non-discretionary permit. The City Attorney stated both at the meeting and in a subsequent opinion, that the current ordinance violated state law. The City Attorney based his opinion upon his review of the administrative record of the 1998 ordinance amendment, and stated that it was clear the non-discretionary permit was the alternative chosen and duly adopted by the City Council. As option 2 makes no provision for notice to neighbors or an appeal to the Council, the City’s current ordinance violates state law by requiring such notice and allowing an appeal.

At the meeting a Council Member confirmed that an incorrect version of the amended ordinance had been certified as adopted by the Council, on its face it allows a hearing and an appeal. The neighbors complained of being denied the right to have their appeal considered.

The City Council, acting in reliance upon the opinion of the City Attorney that it could not consider the appeal, caused confusion because:

• It admitted that it adopted, and the City Clerk published, the wrong version of the amended large family day care ordinance
  
• The ordinance that was supposedly approved specifically permitted a hearing before the Zoning Administrator, while the published version omitted that requirement, and both versions of the ordinance permitted an appeal to the City Council
  
• The information on the City’s website states that a permit for a large family day care home is non-discretionary and can be obtained from the City Planning Division, which is contrary to both versions of the ordnance.

1. The City of Redwood City should amend its large family day care ordinance to comply with state law.

2. The City of Redwood City should correct its website to reflect the corrected ordinance.