AgdaPkt 2003-08-25 - Laserfiche WebLink

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8,8-10 A local ordinance is preempted by state law if "the subject matter has been so fully ... covered by general law as to clearly indicate that it has become exclusively a matter of state concern," or if "the subject matter has been partially covered by ger;eral law couched in s:ich terms as to indicate ... a paramount state concern will not tolerate further ... local action...." (In re Hubbard ( 1964) 62 Cal.2d 119,127-128 [41 Cal.Rptr. 393, 396 P.2d 809], overruled on other grounds in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63 [81 Cal.Rptr. 465, 460 P.2d 1371; Sports Committee Dist 37 A.M.A., Inc. v. County of San Bernardino ( 1980) 113 Cal.App.3d 155, 159 [169 Cal.Rptr. 642].) See Steinkamp v. Teglia (1989) 210 Cal.3d 402. California Health & Safety Code section 1597.46(a) provides: A city... shall not prohibit large family day care homes on lots zoned for single - family dwellings, but shall do one of the following ... The section goes on to set forth three specific alternative procedures by which large family daycare facilities may be permitted. In review of the administrative record of February Zoo- it is clear that a nnn- di scretionary narmit omce was the alternative of choice of the City Council and d uly adopted. The non - discretionary permit procedure is specifically permitted by Health & Safety Code § 1597.46(2). However, the ordinance went further to provide, in pertinent part, the following: 1. Applicants for large family day care permits to give notice 2. ten (10) days prior to Zoning Administrator decision 3. to property owners 4, within 100 feet of the facility and 5. submit Proof of Notification prior to issuance of permit. 6. Appeal of Zoning Administrator decision to City Council with 7. costs of appeal born by appellant. The legal difficulties with each of these added requirements is that they are contrary to Health & Safety Code § 1597.40 (by which the State has preempted local zoning regulations in this subject area), are not express conditions under section 1597.46(2); and add further restrictions to the use of single - family residences for family daycare homes for children. While it is understandable that a person comparing the City's large family daycare ordinance with the conditional use permit process set forth in Health & Safety Code § 1597.46(3) might consider the two statutes similar, in fact there are significant legal differences.