The Regulation of Day Care Facilities*
The demand for child day care has increased tremendously in recent decades. This article explores the statutory history of day care regulation as a land use activity, and examines the landmark New York cases on the subject. It is not the purpose of this article to describe in detail either the state licensing process or the panoply of state regulations regarding day care, except to the extent they affect land use. The article will conclude with reference to several typical local zoning approaches to day care.
Beginning as far back as 1942, the State Legislature has required day care providers to be state-licensed.1 The licensing statute enacted then was known as Social Welfare Law §390. With numerous revisions throughout the ensuing years, it is codified today as Social Services Law §390.
In 1960, the first significant court decision dealing with day care was handed down by the New York City Municipal Court. In rejecting a landlord’s petition to evict a tenant under the terms of her lease (which, in turn, he claimed, gave him eviction rights under the City’s Emergency Housing Rent Control Law) for using the apartment as a “day nursery”, the court stated “[t]he proper care of working mother's children is a basic social and economic problem of our time and society. The construction here sought by the landlord would have a crippling effect on an indispensable social technique.”2
Until 1964, Social Services Law §390 considered any form of day care facility for three or more children to be a “day nursery”, requiring a license to operate as such. But in 1964 the Legislature recognized the growing importance of day care as an activity provided in private homes. It created a new licensed category of “family home day care”, under which up to six children could be cared for in a private home.3 The following year, the Legislature enacted Laws of 1965, Chapter 395, which empowered local governments to provide day care at public expense. And several years later, the Legislature enacted Laws of 1969, Chapter 1013. In addition to recognizing a shortage of adequate day care facilities and adopting certain provisions facilitating the funding of new day care centers, the Legislature in Chapter 1013 declared that providing adequate day care is a legitimate public purpose.
Until 1970, however, neither state statutes nor court decisions precluded day care from being regulated by local zoning laws, regardless of the setting in which it was provided. In that year, the State Supreme Court, Nassau County in Unitarian Universalist Church of Central Nassau v. Shorten4 held that a day care center operated on church property constituted a use encompassed within the general land use protection accorded to religious activities, even though the center was operated by a private corporation under contract with the church. The court held that since the church was already an allowed use on the property, it was not required to secure a separate special use permit for its day care center under the regulations of the Village of Garden City. Secondarily, the court based its opinion on the public policy in favor of day care, enunciated by the Legislature in Chapter 1013. Notwithstanding the decision, the statutes continued to be silent on the issue of local zoning control.
The next case to deal meaningfully with the issue of local day care regulation resulted in a holding that seemed to give comfort to those who might have wished to see a common-law preemption in favor of residential day care providers. The case did not, however, go quite that far. In People v. Bacon5, decided in 1986, a district court in Nassau County found that a town’s building zone ordinance should be construed to permit day care of pre-school age children in a private home. The court reached this conclusion because the ordinance allowed a number of uses “customarily incidental” to the primary allowed uses, and also permitted “home occupations”. The ordinance did not, however, define either of the terms “customarily incidental” or “home occupations”. While “day care” was not expressly stated in the ordinance as an allowed “incidental” use or as a “home occupation”, the court found that it was nonetheless not expressly prohibited as such, and should therefore be allowed. The decision seemed to draw a fine distinction. On the one hand, the court held that, absent a specific prohibition, state policy required an interpretation of the term “customarily incidental” to include day care as a matter of common law. But the court did not go so far as to find that the state day care license alone preempted the local ordinance.
By enacting Chapter 875 of the Laws of 1986, effective January 1, 1987, the State Legislature created the licensed activity known as “group family day care”6. In so doing, it established the first statutory preemption from local land use controls for that defined activity. “Group family day care” was essentially an expansion of the old category of “family home day care”. It was newly-defined as the providing of care in a home for up to ten children of all ages, provided that no more than four of those children were under two years of age. Alternatively, “group family day care” could consist of care for up to twelve children, if all of those children were over two years of age. So long as one of those numerical alternatives were met, the home could also provide care during non-school hours for up to two additional children of school age.
Significantly, the legislation provided that the owners of certain classes of dwellings used as group family day care homes would be entitled to protection from local land use regulations. No local government could prohibit the following classes of dwelling units from being used for group family day care, so long as the home had received a permit to operate from the State Department of Social Services: (a) single family dwellings, (b) multiple family dwellings classified as fireproof, and (c) dwelling units on the ground floor of multiple family dwellings not classified as fireproof. In the latter two cases, the unit was required to comply with the State Uniform Fire Prevention and Building Code as well as all other standards applicable to multiple family dwellings. These requirements were codified as parts of Social Services Law §390 (hereafter “§390”), which deals comprehensively with child day care.
In a single-family dwelling, then, the local government could not prohibit group family day care outright. But could the local government nonetheless apply standards more stringent than those contained in state law? In 1990 this issue was placed squarely before the courts, and this time a decision was rendered which left no doubt. In People v. Town of Clarkstown7, the Appellate Division, Second Department, struck down the Town of Clarkstown’s local zoning law establishing a set of strict standards and restrictions for the operation of “family day care homes”. The court held that, by enacting §390, the State Legislature had intended to “occupy the field” of family day care regulation, and thus supersede the authority of local governments to regulate that use through zoning laws. While the opinion referred to earlier enactments and statements of policy by the Legislature (including Chapter 1013 of 1969) which had signaled the State’s awareness of the critical need for adequate day care, it was clear that the enactment of Chapter 875 of 1986 was a watershed event in the court’s view. Justice Rosenblatt’s opinion admitted that there was no express preemption of local regulatory authority in state law. Nonetheless, he cited prior law8 holding that there need not be any such express preemption--that a local law will be preempted where it contains restrictions and conditions on a use “so as to inhibit the operation of the state’s general laws”, and where, at the same time, the State Legislature has “impliedly evinced” its desire to preempt local authority.
The court cited the Legislature’s recognition of the critical shortage of child day care facilities, as expressed in its 1969 legislation. The court also cited the “comprehensive scheme of highly detailed family day care regulations” that was enacted by the Legislature pursuant to §390.9 Those regulations required, among other things: that the day care licensee undergo a character evaluation as well as an evaluation of his or her fitness to care for children; that the day care premises be clean and sanitary as well as “safe and suitable” for children; that the licensee must abide by stated procedures for the admission of children; and that standards regarding the health, diet, and activities of the children must be maintained. The court further held that, although the Social Services Law required that the day care facility comply with local fire, health, and safety regulations, this only evidenced the Legislature’s establishment of an adequate means of insuring that safety and health concerns would be met, and was not an indication that localities could wield separate and conflicting control. The court went on to find the Town of Clarkstown’s law to be in direct conflict with state law and regulations in several respects, including the number of children that could be accommodated in a day care home, the type of residence which could lawfully be used for the purpose, the minimum amount of floor space to be allocated per child, and the required number of off-street parking spaces to be provided. The town’s additional regulations in these areas, said the court, had “the effect, if not the design, of undermining the development of home day care services in the Town”.
Effective in July of 1991, the State Legislature enacted a sweeping revision of §39010. In that revision, the Legislature separated the old category of “group family day care” into two new categories. A “group family day care home” would now be a home providing day care lasting more than three hours per day for seven to ten children, of whom up to four could be under two years of age, or for up to 12 children if all were over two years of age--again with the proviso that two school-age children could be added to the group if they were cared for only during non-school hours. A new category, “family day care home”, was created. This would be a home wherein care is provided for more than three hours per day for only three to six children. A proviso was added allowing a seventh or eighth child, so long as no more than six of the children were less than school age and the school age children were cared for only during non-school hours. While a “group family day care home” was required to obtain a state license to operate, a “family day care home” was required only to register with the Department of Social Services and to otherwise comply with that agency’s rules. The law retained the protection from local zoning regulations for single-family and certain multi-family dwelling units, but the protection continued to apply only to “group family day care” homes11.
Local governments retain a limited measure of control over “family day care” and “group family day care”. This control exists chiefly in the realm of enforcement of fire, building, and health regulations. In February of 1997, a state-licensed day care provider on Long Island was cited for illegally using a cellar as “habitable space” to provide day care services. The provider apparently had been granted her state license incorrectly, in that §390 required compliance with all provisions of the State Uniform Fire Prevention and Building Code. Under the Uniform Code, however, a space meeting the definition of a “cellar” could not lawfully be used as habitable space. While she did not dispute the violation, nonetheless the licensee asserted a claim that her state day care license preempted the Village of Valley Stream from enforcing the Code against her. The village justice court found her assertions to be without merit. While the village was preempted from enforcing laws and regulations of its own which would conflict with state requirements, §390 clearly allowed local municipalities to enforce applicable provisions of the Uniform Code and to conduct inspections necessary to carry out such enforcement.12
Effective in January of 1998, the State Legislature amended §390 once again.13 In addition to removing the limit of four children who could be under two years of age in a “group family day care home” and making several technical changes, the Legislature corrected what may have been an oversight in Chapter 750 of 1990. It extended the law’s protection from prohibitory local zoning regulations to the owners of single-family and certain multi-family dwelling units used for the provision of “family day care”.
While the statutes now provide clear protection from local zoning, no mention is made of private covenants that may restrict day care activities. In May, 1998, the Appellate Division dealt with this issue in Quinones v. Board of Managers of Regalwalk Condominium I14. The owner of a condominium unit on Staten Island, who operated a licensed group family day care home within the unit, commenced an action for a declaratory judgment and sought a preliminary injunction against the condominium’s board of managers. The board of managers was seeking to enforce a provision of the condominium’s declaration, which it interpreted as prohibiting the commercial operation of a unit for day care. While the court did not invalidate the board’s judgment in so interpreting the declaration, it held that the preemption contained in §390, in favor of the owners of single-family units wherein day care is operated, “should be read to encompass the broader proposition that private parties cannot prohibit, through a restrictive use covenant, the operation of. . .a group family day care home.”
The court relied on principles it had established in its decision in Crane Neck Association v. New York City/Long Island County Services Group.15 In Crane Neck, the Court of Appeals had held that a restrictive covenant could not be used to prohibit the use of a single-family home for the housing of retarded persons, even though no express preemption appeared in any statute. The Court held that the “covenant [could not] be equitably enforced because to do so would contravene a long-standing public policy favoring the establishment of such residences for the mentally disabled.” That public policy, said the Court, was expressed in Mental Hygiene Law (MHL) § 41.34, which had been enacted to facilitate the site-selection of community residences for mentally retarded persons, and which set forth a preemption of local zoning regulations similar to that of Social Services Law §390. While MHL § 41.34 did not expressly preempt private covenants, “[p]rivate covenants restricting the use of property to single-family dwellings pose the same deterrent to the effective implementation of the state policy as the local laws and ordinances that had actually been the subject of [several] legal challenges.” The Court reasoned that the Legislature did not intend to remove the impediment posed by restrictive zoning regulations yet leave intact the impediments posed by private covenants. “Similarly,” said the Appellate Division in Quinones, “we must ‘construe the act in question so as to suppress the evil and advance the remedy’.” Accordingly, the court found that Social Services Law §390 preempts restrictive covenants against group family day care in condominium units.
In a 2004 case, the Civil Court of the City of New York held that it was lawful for a tenant in a multifamily dwelling to operate as a state-registered family day care provider. The landlord had argued that such operation was a “child day care center”--which under Social Services Law §390(13) would not enjoy the residential protections of §390(12)--and was being operated in violation of the tenant’s lease. Alternatively, the landlord argued that, even if the operation was subject to the protections of §390, it was precluded under §390(12)(b) from being located above the ground floor in a non-fireproof multiple dwelling. The court held the operation to be a “family day care home”, not a “child day care center”, thereby affording the tenant the protection of §390(12). The court further held the premises to be in compliance with all New York City Fire Code provisions. The landlord’s §390(12)(b) argument thus failed, in that §390(12)(b) only sets forth a preclusion against municipal regulations involving ground-floor apartments, and does not itself prohibit day care above the ground floor.16
Most recently, the law has been amended to prohibit local assessing units from considering the fact that a parcel is used or registered as a “family day care home” in its assessment of the value of the parcel.17
Advice to Local Communities
A number of local laws have been reviewed which regulate the siting of day care and group family day care homes. Many existing local laws would not survive a court challenge brought on the basis of People v. Clarkstown. They include requirements for minimum lot size, minimum floor-space per child, off-street parking, and off-street pickup/drop-off areas. One local law restricts the use of outdoor play areas after 5:00 P.M. All of such requirements and restrictions would conflict with state law and regulations. Municipal planners would be well-advised to scrutinize their comprehensive plans and existing laws and regulations. Comprehensive plans should recognize the need for adequate provision of day care services in residential units, and identify areas of the municipality appropriate to such use. Zoning laws should follow suit. While a special use permit or site plan review procedure has never been ruled impermissible by the courts, it is clear that any resulting disapproval, or conditional approval, made on the basis of requirements which are at odds with state law and regulations, will be at legal risk.
An advisable procedure for local approval of family day care and group family day care in a private dwelling should require compliance with all state laws and regulations that relate to licensing and adequacy of the facility18, but should not impose local requirements beyond those applicable to the underlying residential use. It bears remembering that local communities retain full jurisdiction to enforce the New York State Uniform Fire Prevention and Building Code in all day care facilities.
The regulation of day care is by now a matter of extensive state involvement. A day care provider must, depending on category, either be state-licensed or state-registered. In addition, the owners of single-family and multi-family dwellings have the right--with allowable local limitations on use of the latter depending on fireproofing--to provide “group family day care” and “family day care” (as defined) within their dwelling. There is no similar statutory protection for the owners of “child day care centers” or for the providers of “school age child care”. These other, defined categories of child care, may require either licensing by, or in some cases merely registration with, the State. Facilities falling into these latter categories are, at present, fully subject to local zoning control. It remains to be seen how the courts will treat a future challenge to the assertion of such control, in view of their prior recognition of the Legislature’s policy.
*Portions of this web article are excerpted from a published article. Copyright 2002 West Group. Originally published in the New York Zoning Law and Practice Report, Vol. 1, No. 6 (May/June 2002). Original material used with permission.
1Laws of 1942, Chapter 164. Today, there are 15,978 registered “family day care homes” and 3,614 licensed “group family day care homes”. In addition, there are 3,736 licensed “day care centers” caring for seven or more children, and 2,266 registered homes providing “school age day care”. The latter two categories of day care are not accorded protection from local land use regulation, and are not the subject of this article.