CC Min 2002-04-22 Reg - Laserfiche WebLink

Browse Search

Council Member Hartnett further stated that while people are entitled to speak to the issue, based on the state of the law, Council would have to make a decision that in effect acknowledges receipt of the appeal, but then denies the appeal based on the fact that the Council has no jurisdiction. He stated the importance of making the points early in the discussion of the item. City Attorney Yamamoto stated he spent considerable time studying the issue and that it is clear that in the year 2000, Council did introduce, adopt and publish an ordinance. The ordinance provided for the applicant to make notice to neighbors within the area and specifically provided for an appeal process to the City Council. The problem with the ordinance is that under State Law, the State Legislature determined that child care is a matter of statewide concern. To Municipal attorneys, that language is a statement that the State is taking jurisdiction over how the matter is to be resolved. The State then set forth three alternative ways in which local jurisdictions could regulate large daycare facilities as follows: 1. Determine that permits would be issued as a matter of right. The applicant comes in and gets the permit with no questions asked. 2. A non-discretionary permit that comes before the Zoning Administrator. The Zoning Administrator makes the determination as to whether or not the permit should issue. 3. Set a use permit process by which the application would be made. The Zoning Administrator would be required to give notice, the Zoning Administrator would be required to conduct a hearing, and an appeal right is specifically, referred to in State statute. In the year 2000, the Council determined that they wanted to use a non- discretionary permit process and also, provide for an opportunity for neighbors to be notified, and if a protest evolved, provide the right to come to Council. That was built into the existing ordinance. The difficulty with that is when you look at the State Law, the State Law makes absolutely no reference to the ability of the local jurisdiction to require notice and allow for an appeal to the City Council under the non-distretionary permit. Council questions and discussion ensued, including clarification from the City Attorney as to the implications at the current time. City Attorney Yamamoto stated that from a legal perspective at this time, prior to the Council opening the public hearing, the Zoning Administrator has approved the permit. To that extent, the City is in conformance with the State Law. Although there was a mediation process, a hearing and an appeal filed, that the decision would revert back to the Zoning Administrator who has already determined that the permit should be issued. Consensus by Council was to hear public comment and Council questions. REGULAR COUNCIL MEETING APRIL 22, 2002 MINUTES PAGE 6 M1NUTES Book No. 59 Page No. 142