Agenda - Planning Commission - 06/05/2008

Home

0,'- ~(...~ f/'--- i~'i' . ~. - . . ". '. ~...;- May 25, 2008/ Volume21 No. 10 c. The court found that the Code did not expressly prohibit staff mem- bers from using a small residential care facility as a primary residence. The court said that Lieb's . own argument acknowledged that the issue of staff members residing in residential care facilities was not expressly dealt with in the Code. Lieb. had argued that because the Code expressly permitted special care residents to use residential care facilities as' their primary resi- dence, but did not expressly permit staff members to do the same, staff members were therefore prohibited from residing in such facilities. The court also rejected Lieb's argument that staff members were ex- pressly prohibited from residing in small residential care facilities be- cause the Code required that any person residing in a special care home. receive more than 12 hours per day of special care. While the Code per- mitted special care residents to live together, it did not expressly prohibit any person not receiving special care from residing in a special care facil- ity, the court found. Because the Code's language was permissive, rather than prohibitive, the court concluded it could not be read to expressly prohibit staff members from residing in special care homes. The court also found that, contrary to Lieb's contention, the eight- person limit on the number of people who could reside in small residen- tial care facilities did not expressly prohibit staff members' from residing in small residential care facilities. The court also disagreed that the Code limited the total number of residents to eight persons. Instead, the court concluded that the Board's determination that staff members and their fainily members did not count toward the eight-person limit was sup- ported by a reasonable basis. The court next concluded that the Board's conclusion that a staff member's use of a residential care facility as a primary residence consti- tuted an accessory use, was supported by a reasonable basis. The Code defined "accessory use" as a use that was "clearly incidental and custom- ary to and commonly associated with the operation of the use by right." The court noted that an accessory use was one that was deemed to be permitted by implication where the ordinance was silent on the particu- lar use in issue. An accessory use could not be a use expressly prohibited by the Code. ' The court had already found that the Code did not expressly prohibit staff members from using a small residential care facility as a primary residence. The court also found that the permitted use of providing resi- dents care for more than 12 hours per day reasonably supported the conclusion that 24-hour care was <<customarily incident" to providing care for more than 12 hours per day and was commonly to be expected. Thus, it was reasonable to find that the staff member's use of the residen- tial care facility as a primary residence in conjunction with her role as a 24-hour per day caregiver was an accessory use. For the same reasons, the court found it wq.s reasonable for the Board to conclude that a fam- 11 ~ ~ .... ~. .'-..:;..' . -; ... ,.'~ . .'~' ~ II" I II II fl r! ! i ! [ I i, 103