Agenda - Planning Commission - 03/02/1998

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Page 4 -- February 25, 1998 Z.B. business in a residential zone. One section allowed a home occupation as a "permitted accessory use," requiring only site plan approval. This regulation allowed home occupations in accessory buildings, allowed up to three nonfamily members as employees, and provided that traffic could not exceed 20 vehicle trips per day. It included "child day-care" as a customary home occupation. Another regulation allowed private schools in residential zones, subject t° special permit approval. Private schools were defined to include "day-care centers." State law divided day-care services into three categories, one of which was "group day-care homes" that offered supplementary care to between seven and 12 related or unrelated children. The commission held a public hearing, at which the McMurrays said they wanted to conduct a "group day-care" business for between seven and 10 children, with one nonfamily employee. They proposed using their garage as an accessory building to conduct the day-care activities. The commission approved the McMurrays' site plan with conditions. It limited the hours of operation, limited the number of children to nine, and said the facility's schedule had to conform to the town school system's calendar. The Wittemens appealed the commission's decision to court. They argued the McMurrays' proposed "group day-care home" was a "private school," so the commission shouldn't have approved it as a permitted accessory use requiring only site plan approval. They also argued the commission ignored evidence of illegal actions and two additional businesses on the McMurrays' property. They pointed out that the town health officer testified at the commission's hearing that the septic system for the McMurrays' garage was installed without a permit. (The McMurrays had since brought the system into compliance.) The zoning commission asked the court to dismiss the Wittemens' appeal. DECISION: Appeal dismissed. The commission reasonably considered the McMurrays' proposal as an accessory use, requiring only site plan approval.. The McMurrays' proposal met the requirements of a customary home 'occupation, which regulated child day-care. The regulations covering day-care as a home occupation allowed such activities in accessory buildings like the McMurrays' garage, provided no more than three nonfamily people worked there. The McMurrays proposed having only one nonfamily employee. Although the regulations limited the number of vehicle trips per day to 20, the McMurrays' proposed day care center would generate about 14 trips per day, assuming an average of seven children. It was irrelevant that the McMurrays may have committed zoning violations by building the garage's septic system without a permit and by operating two other businesses on the premises. The proper method for forcing compliance with zoning regulations was legal action, not denying an application for unrelated site development. see also: Bloom v. Zoning Board of Appeals, 658 A.2d 559 (1995). see also: New London v. Zoning Bo. ard of Appeals, 615 A.2d 1054 (1992).