Answer: First, a reminder. MHCO’s Q&As are provided as a member benefit for information only; they should not be relied upon as legal advice. You need to check with your own attorney on a detailed answer to your question.
In 2021, ORS 329A.440 was passed. There are two types of facilities addressed in the law:
(a) A “Child care center” which is a child care facility, other than a certified family child care home (see (b) below) and
(b) a “Family child care home” which is a child care facility in a dwelling that is caring for not more than 16 children and is certified (when certification is required) or is registered under ORS 329A.330 , when registration is required. A family child care home is considered a residential use of property for zoning purposes and is a permitted use in all areas zoned for residential or commercial purposes, including areas zoned for single-familydwellings.
Local governments may not enact or enforce land use regulations prohibiting the use of a residential dwelling, located in an area zoned for residential or commercial use, as a family child care home. This is the law that may apply in the case of your residents.
Without knowing what your rules state, I cannot say if they are technically in violation of the new law. But in my opinion, even though these facilities are legally permitted, there are a number of conditions you may impose on their operation. However, legal counsel should vet them first. Here are some suggestions to tighten up your rules:
- Require that the business complies with all state and local laws, rules and regulations. You need to first check with the applicable state or local agency to find out what they are and what you should do if there are violations (See: https://www.oregon.gov/delc/providers/pages/certified-family.aspx and chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.oregon.gov/delc/providers/CCLD_Library/CCLD-0085-Rules-for-…)
- You should require that liability insurance be maintained with proof provided to you yearly. The amount is not set forth in the statute. Check the administrative rules and with the licensing authority. Check also with your insurance agent.
- Of major concern should be traffic and reasonable restrictions on this are permitted.
- Similarly, you should have reasonable restrictions on outdoor play, bikes, trikes, games, etc., especially in streets. And remember common areas are for everyone, so you don’t want it to become a playground.
- Noise can be a problem, although the main issue to regulate is hours of the day because of neighbors (it’s impossible to regulate the sound of happy children!).
- All of your regulations should be in writing and consistently imposed. The failure to do so could lead to complaints to local authorities.
- Do not forget that federal and state housing laws prohibit discrimination against children, i.e., those under 18 years of age. Violations could lead to complaints with the Oregon Bureau of Labor and Industries (BOLI) which could eventually end up in court.
The take-away for you is that notwithstanding the fact you may not be able to prohibit such a business in your Park, if you know the regulatory rules, publish them, and consistently enforce them, you will be fine.
Three final notes: (a) Do not try to congregate these businesses in one area of the park. That, in itself, can lead to legal action; (b) the above does not apply if you are a 55+ or 62+ facility; and discuss with your attorney and insurance agent all possible legal liability issues that could result in claims. Good luck!
