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The City Journals

Home-Based Preschool Zoning Debate

Aug 24, 2016 01:58PM ● By Cassie Goff

Street sign of Summer Hill Drive. —Cassandra Goff

By Cassandra Goff | [email protected]
During the past six months, a request for creating a home-based preschool has received much attention in Cottonwood Heights. The majority of the debate surrounding the proposed preschool relates to zoning issues with the Single-Family Residential Zone, R-1-8. Additional issues have risen, including traffic concerns for the neighborhood.
The original application was submitted by Dana Middlemiss, who proposed “to operate a home-based preschool for children ages 3 to 5, with no more than 12 children per class sessions” on Summer Hill Drive.
On April 6, a public comment session for the preschool application was held during the planning commission meeting. Before comment was opened to the public, City Planner Mike Johnson explained, “The proposed hours of operation are Monday through Friday from 9 a.m. to 11:45 a.m. with pick-up and drop-offs 15 minutes before and after each session.” In addition, “vehicles are required to line up on the applicant’s side of the street.”
“Home occupations are listed as a conditional use in the R-1-8 zone and are allowed if the proposed business is clearly secondary and incidental to the primary use of the property as a single-family residence,” Johnson said.
Middlemiss spoke during the public comment session. “I have eagerly looked forward to starting up my preschool again. I love teaching and being a mother and my preschool has given me the best of both worlds.” Middlemiss graduated from Westminster College with a degree in elementary teaching, and has eight years of teaching experience “in addition to many other experiences relative to working with children of all ages ranging from academics to sports,” she said.
Middlemiss addressed traffic concerns. “I have found that the most effective and least disturbing drop-off and pick-up plan is to give parents a 15-minute window before and after school so that students do not arrive at the same time. If parents arrive outside of that window they will be required to park in the driveway and walk the child into my home.”
Resident Ruth Ellen Bean began the public comments by saying, “There is no reason the proposed preschool would not work in the proposed location.”

David White, who lives on Summer Hill Drive, said “there is conflict in staff’s interpretation with regard to the city’s zoning ordinance. The applicant is relying on the provision for the definition of home occupation.”
Additionally, White said “the delivery of the 12 children is not incidental to the property and involved public traffic and parking. Between that, noise, traffic and vehicle emissions, the impacts are not incidental and affect everyone.”
Jim Peters, who lives directly across from the Middlemisses, stated his concern with traffic and uncertainty in the city ordinances.
“There is virtually nothing permitted in the ordinance specifically other than communication towers and churches,” he said. “The preschool “does not appear to be consistent and does not fit the intent of a low-density residential area.”
“I’m concerned that the proposed use will compound the traffic situation that already exists on the street because of the church and will set the stage for further deterioration of the R-1 zone,” Peters said.
The planning commission held the proposed preschool for action on April 20. Before the vote, Commissioner Sue Ryser pointed out that the traffic issue is a legitimate concern. Having had experience with this type of business, there will be staggered drop-off and pick-up times and moving efficiently helps mitigate potential concerns.
Commissioner  Allen Orr explained R-2-8 provides home occupations as a permitted use and daycares and preschools as conditional uses.
“It is my opinion that if daycare and preschools are to be conditional uses in R-1-8 zone, the code would specify that,” Orr said. “I believe this was not a conditional use, is incompatible with the neighborhood, and will change the nature of it.”
The motion for the proposed preschool passed with a five to two vote with Orr and Commissioner Paxton Guymon against
This action was appealed by Joe Thomas, Summer Hill Dr. homeowners and other residents during the month of May. Their concerns were voiced to the Cottonwood Heights Board of Adjustments on July 7.

Resident Joe Thomas began by stating he represented “about 50 homeowners in the immediate neighborhood of the Middlemiss preschool.”

Thomas continued, “As a board of adjustment we are asking that you assess the legality of the decision of the planning commission and determine whether it was made in accordance with the existing ordinance.”

He referred to chapter 19.76, “Supplementary and Qualifying Regulations.” “Section F concerns home occupations and indicates ‘any use conducted entirely within a dwelling and carried on by one person residing in the dwelling unit and one additional person who may, or may not, reside in the dwelling unit, which use is clearly incidental and secondary to the use of the dwelling for dwelling purposes and does not change the character of the dwelling or property for residential purposes, and in connection with which there is no display nor stock in trade, being any item offered for sale which was not produced on the premises.’”

“The key word is incidental,” Thomas explained. “Incidental means a home occupation has virtually zero impact on the residential neighborhood. Our neighborhood has a few home occupations and most of the surrounding neighbors don’t even know they are there. That’s as it should be in a low-density single-family area.”

The preschool “is hardly incidental and secondary use and violates the restriction that home occupations are conducted entirely within a dwelling,” Thomas continued. “The impact of a home occupation should be negligible; this preschool would have a significant impact on the residential nature of the home and the character of the neighborhood.”

Thomas recalled a conversation between Guymon and the Community and Economic Development Director Brian Berndt, that took place during the April 20 planning commission meeting.

Guymon said, “In our ordinance there’s this language that talks about home occupations and it says that home occupations are allowed if the proposed business is clearly secondary and incidental to the primary use as a single-family residence. Is a preschool secondary and incidental?”

“If they don’t own another house somewhere else, if that’s their primary residence, everything else seems secondary to me.  If it’s a second home, then I can see where that would come from but if it was my house and I was building widgets there and it was the only place I had to live, building widgets is still secondary,” Berndt said.

Thomas explained that “conditional uses are expressly very limited in R-1-8. Home daycare/preschools are not allowed as a possible conditional use. The staff wants to believe that a home/preschool is a conditional use, and a home occupation in an R-1-8 zone, which it is not. A home daycare/preschool is a separate and distinct use from a home occupation.”

In response to this argument “that home occupation and daycare/preschool are separate uses” the Board of Adjustments replied, “an interpretation of the Code as applied to the specific facts and circumstances presented by the application for approval of the Preschool as a home occupation through the conditional use permit process is necessary.”

During the same meeting on April 20, Ryser said, “Having lived in a neighborhood where there was such a school and being a mother and grandmother picking up and delivering kids to similar type schools, I will tell you that the traffic issue is a legitimate issue. My experience has been, if parents are like most parents, there’ll be two, three, four people who will be there before the end of school like they’re supposed to be, and as soon as the kids come out the door they will be gone and over the 15 minute pick-up period they will scatter and there will be a few others right at the end. Seldom have I ever seen more than three cars, maybe four at one time picking up kids. They move through very efficiently and it’s such a short little process that my experience is that you don’t even really knows it’s coming or going anymore that anything else.”

Thomas concluded by saying, “As citizens we have the right to the protection of the continuity, integrity and character of our residential neighborhoods. As public servants you have the duty and responsibility to ensure that happens with the zoning instrument currently in place. Under the ordinance the current approved application for a preschool must be reversed.”

On Aug. 4, the Board of Adjustment held a motion for the appeal. The vote was three to two in favor of the preschool, with Noor Ul-Hasan, Chair and James Adinaro against. 

On Aug. 8, Berndt discussed this issue with the Cottonwood Heights City Council.

“The R-1-8 zone does not allow for a daycare to be located as a business but it does allow for a home occupation daycare instead of a commercial daycare," he said. 

Mayor Kelvyn Cullimore weighed in on the debate saying, "The distinction between primary and secondary use of a property in an R-1-8 zone is that using the home as a primary residence must exist for a secondary use such as a home day care to qualify as a home occupation under the code. No commercial day care is allowed in an R-1-8 zone as the primary use of the property"