Could a Connecticut town require a special zoning exception for a registered family day care home?

Plain-English summary

Connecticut's Department of Human Resources asked whether towns could require a registered family day care home to obtain a special zoning exception. Wethersfield had imposed an application fee, sign-post deposit, and hearing before its zoning board. The Attorney General concluded that two state provisions barred municipalities from placing that special permit condition on a registered home.

One statute provided that a registered family day care home could not face operating conditions beyond those imposed by the Department if it complied with local codes and ordinances applicable to single- and multifamily dwellings. The opinion treated a special exception aimed at family day care as an extra operating condition, not an ordinary residential rule. A 1990 act then said zoning regulations could not treat registered family day care homes differently from single- or multifamily dwellings. Its legislative history expressly addressed towns that required special exceptions for day care in residential zones.

The opinion acknowledged that towns had general authority to issue special exceptions for some land uses. It concluded that this more specific statewide day care legislation controlled when local requirements conflicted. The ruling concerned registered family day care homes, defined in the opinion as private residences serving no more than nine children, and did not eliminate residential codes applicable to homes generally.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

For registered providers: The opinion said a town could not make operation of a registered family day care home contingent on a special zoning exception or permit. The state's registration and regulatory system controlled that additional condition.

For zoning boards: The opinion distinguished conditions targeting family day care from codes and ordinances applicable to residences generally. It said a town's general zoning power, whether under statute or a charter, could not override the day care provisions.

For the Department of Human Resources: The opinion described the Department as the agency responsible for registration, inspections, and standards for these homes. It cited the Department's enforcement authority as part of the statewide regulatory scheme.

Common questions

Could Wethersfield require a zoning hearing before a registered family day care home operated?

The Attorney General said no to a special exception requirement of that kind. It would add an operating condition beyond the state program.

Did the opinion exempt day care homes from all local rules?

No. The statute quoted in the opinion preserved local codes and ordinances that applied to single- and multifamily dwellings generally.

Could a town use a charter-based special permit instead of a zoning statute?

The opinion said the conflict with state law did not depend on whether the town's special-exception power came from general zoning law, a special act, or a charter.

Who regulated the homes under the opinion's framework?

The Department of Human Resources registered providers, inspected homes, adopted standards, and could refuse, suspend, or revoke registration under the cited state provisions.

Background and statutory framework

Conn. Gen. Stat. e 17-31q(b) barred additional conditions on a registered family day care home's operation when it complied with generally applicable residential codes and ordinances. The opinion read the 1988 amendment's legislative history as assigning home regulation to the state Department of Human Resources. 1990 Conn. Pub. Acts No. 90-286, e 4, effective in June 1990, added an explicit rule against treating registered family day care homes differently from single- or multifamily dwellings in zoning regulations. The opinion used both provisions to reject special exception requirements.

The opinion also recognized municipal zoning powers and the state's prior bar on outright exclusion of family day care from residential zones. Those general grants did not authorize a more restrictive condition on registered homes after the specific state legislation.

Citations and references

The opinion discusses Conn. Gen. Stat. e 17-31q(b), Conn. Gen. Stat. e 19a-77(3), and 1990 Conn. Pub. Acts No. 90-286, e 4. It cites A.P. & W. Holding Corp. v. Planning & Zoning Board, 167 Conn. 182, 185 (1974), for the nature of a special exception, and Caulfield v. Noble, 178 Conn. 81, 87 (1979), on statewide legislation over conflicting local law. The official HTML renders some section symbols as “e”; the original text below preserves that rendering.

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1990-formal-opinions/honorable-elliot-a-ginsberg--commissioner-department-of-human-resources-1990027-formal-opinion-attor

Original opinion text

Honorable Elliot A. Ginsberg , Commissioner, Department of Human Resources, 1990-027 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 13, 1990

Honorable Elliot A. Ginsberg

Commissioner

Department of Human Resources

1049 Asylum Avenue

Hartford, Connecticut 06105

Dear Commissioner Ginsberg:

By memoranda dated October 20, 1989, you asked for a formal opinion on whether there are any statutes which prohibit towns from imposing "special exception" zoning permit requirements on family day care homes that are registered by the Department of Human Resources. It is our opinion that Conn. Gen. Stat. e 17-31q(b) and 1990 Conn. Pub. Acts No. 90-286, e 4 (eff. 6/8/90) prohibit municipalities from imposing "special exception" zoning permit requirements on registered family day care homes.

A family day care home is defined by Conn. Gen. Stat. e 19a-77(3) as a private family residence where a maximum of nine children can be cared for by a registered day care provider. According to your memoranda, the Town of Wethersfield is charging a $100.00 application fee for a special exception to provide day care from the local Zoning Board of Appeals and a $70.00 deposit for a sign post notifying the public that an application is pending. 1 Day care providers are further required to attend a hearing before the Zoning Board of Appeals for a determination on whether their applications for a special exception will be granted or denied. A special zoning exception, which is also known as a special permit, allows a property owner to use his property for certain purposes only if it meets the special exception zoning requirements. A.P. & W. Holding Corp. v. Planning & Zoning Board, 167 Conn. 182, 185 (1974).

Municipal "zoning authorities can exercise only such power as has been validly conferred upon them by the legislature". Hinman v. Planning and Zoning Commission, 26 Conn. Supp. 125 at 128, 214 A.2d 131, 133 (1965) (Citations omitted). Municipalities which have adopted the provisions of Chapter 124 pursuant to Conn. Gen. Stat. e8-1 have a general grant of authority to promulgate special exception regulations under Conn. Gen. Stat. e8-2. 2 Municipalities which have legislative bodies acting as zoning commissions pursuant to municipal charters or special acts may also have the authority to issue special exception regulations as home rule ordinances pursuant to the terms of the individual charters and special acts. See Conn. Gen. Stat. ee8-1, 7-148 and 7-188 regarding home rule ordinances.

In 1988, the legislature amended Conn. Gen. Stat. e 17-31q(b) by adding the following language:

A registered family day care home shall not be subject to any conditions on the operation of such home other than those imposed by the department pursuant to this subsection, if the home complies with all local codes and ordinances applicable to single and multi-family dwellings.

1988 Conn. Pub. Acts No. 160.

In our view, a special exception or special permit zoning requirement constitutes an additional condition of operation for family day care homes which is prohibited by the above statute.

The legislative history makes it clear that a special exception zoning regulation pertaining to a registered family day care home is not a "local code" or "ordinance" which is "applicable to single and multi-family dwellings" and which must be complied with under Conn. Gen. Stat. e 17-31q(b).

Section 17-31q(b) was specifically amended by 1988 Conn. Pub. Acts No. 160 to insure "[t]hat no municipality or local governing body would in anyway impinge or infringe, or place more restrictive conditions than those required by the Department of Human Resources." 31 Conn. H.R. Proc., pt. 14, 1988 Sess. 4611 (April 25, 1988) (Remarks of Rep. Favreau, proponent of the bill.) The following discussion took place on the floor of the House of Representatives, between Representative Miles Rappaport and the proponent of the bill Representative Irene Favreau:

REP. RAPPAPORT: (18th) Obviously a situation could arise in which a town wanted to insure certain things that the family day care homes in that town would want to do, would be required to do. Under this provision the towns are prevented from making any additional conditions upon day care homes. What procedures would a town go through in order to get an additional requirement or an additional safety factor included in the Department's regulations?

REP. FAVREAU: (107th) [W]henever regulations are promulgated by the Department of Human Resources that would impose any kind of conditions on family day care homes, they are open to the public and towns could, indeed, come to the various public hearings and discuss it. Furthermore, they are always welcome to call the Department of Human Resources if they have suggestions, or have found any kind of loop holes, or have difficulties with the Department.... [W]e have been assured by the Department that they will be open to suggestions from municipalities that have comments to make about how family day care homes are being regulated in that town.

31 Conn. H.R. Proc., pt. 14, 1988, Sess. 4614-4615 (April 25, 1988).

"It is a fundamental principle of statutory construction that statutes are to be construed so that they carry out the intent of the legislature." State v. Campbell, 180 Conn. 557, 561 (1980) (citations omitted). The legislative history of 1988 Conn. Pub. Acts No. 160 clearly indicates that the intent of the public act was to vest the regulation of family day care homes exclusively in the Department of Human Resources.

The Department of Human Resources is responsible for registering providers and inspecting3 family day care homes. Conn. Gen. Stat. e 17-31q(b). The standards which family day care homes must meet are found in detailed regulations4 which were promulgated by the Commissioner of Human Resources to "assure that family day care homes... meet the health, educational, and social needs of children utilizing such homes". Section 17-31q(c). Under Conn. Gen. Stat. e 17-31t, the Commissioner has the power to refuse to register, suspend or revoke the registration of any person who "either fails to substantially comply with the regulations adopted pursuant to Section 17-31q or conducts, operates or maintains the home in a manner which endangers the health, safety and welfare of the children receiving child day care services."

The family day care home statutes and regulations are comprehensive. The Commissioner has sole discretion to determine who will provide family day care and where it will be allowed. Local zoning authorities have no authority to condition the use of a single or multi-family dwelling as a family day care home upon compliance with special exception regulations.

This was made absolutely clear in the 1990 legislative session, when P.A. 90-286, Section 4 was adopted. It provides:

No zoning regulation shall treat any family day care home registered pursuant to section 17-31q of the general statutes in a manner different from single or multi-family dwellings.

1990 Conn. Pub. Acts No. 286, e 4 (eff. 6/8/90).

The issue of special exceptions was specifically addressed in the House debates which preceded passage of this Public Act. Representative Elinor Wilber, the proponent of the bill, addressed the House of Representatives as follows:

REP. WILBER: (133rd) [I]t has become apparent that there is a problem with family day care related to the zoning boards and that many zoning boards are asking for special exceptions for family day care.... [W]e've reviewed the debate in the House over two different sessions and... feel that there is some question about the intention of the legislature... so we want to make it very clear that family day care does not have to ask for a special exception to be allowed in a residential zone.

__ Conn. H.R. Proc., pt. __, 1190. Sess. 93-94 (April 26, 1990).

Representative Wilber also made it clear that local zoning authorities could not regulate parking or safety standards in family day care homes, beyond that which is required of all single and multi-family dwellings used as residences. __ Conn. H.R. Proc., pt. __, 1990, Sess. 95 (April 26, 1990). The legislative history of 1990 Conn. Pub. Acts, e 4, unambiguously indicates that the legislature's intent in passing this statute was to make it clear that family day care homes are not subject to special exception regulations. Id.

Local zoning authorities have a general grant of authority to promulgate special exception regulations under Conn. Gen. Stat. e8-2 or pursuant to municipal charters or special acts. However, "zoning authorities can exercise only such power as has been validly conferred upon them by the legislature". Hinman v. Planning and Zoning Commission, supra 26 Conn. Supp. at 128.

[T]he general rule is that "[a] special and local statute, providing for a particular case or class of cases, is not affected by a statute general in its terms, broad enough to include cases embraced in the special law, unless the intent to repeal or alter is manifest." State ex rel. Wallen v. Hatch, 82 Conn. 122, 124, 72 A. 575. But whenever it is made to appear that the legislature intended to repeal a special act by any general legislation, then the special act falls, although not named. And such intention may be made to appear by the words of the general act, by the subject-matter with which the general act is concerned, by other legislation on the same matter, by the surrounding circumstances, by the purpose to be accomplished, or by anything else to which reference may properly be had for the purpose of discovering the legislative intent. Hartford v. Hartford Theological Seminary, 66 Conn. 475, 484, 34 A. 483.

East Haven v. New Haven, 159 Conn. 453, 468 (1969).

The subject of child day care services, including family day care homes, is a matter of statewide concern. This is evidenced not only by the recent enactment of 1990 Conn. Pub. Act No. 90-286 but also by the legislature's previous designation of the Department of Human Resources as "the lead agency for child day care services in Connecticut." Conn. Gen. Stat. e17-31q(a). Legislation regarding such a matter of general concern to the people of the state will prevail over conflicting provisions of local law. See Caulfield v. Noble, 178 Conn. 81, 87 (1979).

The requirement of special exceptions for family day care homes is clearly repugnant to the provisions of Conn. Gen. Stat. e17-31q(b) and 1990 Conn. Pub. Acts No. 90-286, e4 (eff. 6/8/90). The legislative history indicates that the laws were designed to obviate the ability of local zoning authorities to impose more restrictive conditions on family day care homes than those required by the Department of Human Resources by the use of special exception requirements. Whether those requirements stem from zoning regulations adopted pursuant to Conn. Gen. Stat. e8-2 or a special act or charter does not effect that conflict. As the court stated in Connelly v. Bridgeport, 104 Conn. 252, (1926), "So far as pre-existing provisions, by their repugnancy or inconsistency, stand in the way of the full and effective operation of the final expressed will of the legislature, they stand, in law, as pro tanto repealed. Not only is this true of those provisions which are on their face inconsistent with the Act, but of any others which upon examination and analysis are found to hamper or interfere with its workability."

When the legislature passed P.A. 88-160 and P.A. 90-286, Section 4, the legislature exempted family day care homes from the class of uses that zoning authorities could regulate through special exceptions or special permits. Therefore, it is our opinion that Conn. Gen. Stat. e 17-31q(b) and 1990 Conn. Pub. Acts 286, e 4 (eff. 6/8/90) prohibit municipalities from imposing special exception zoning permit requirements on registered family day care homes.

Very truly yours,

CLARINE NARDI RIDDLE

ATTORNEY GENERAL

Sharon A. Scully

Assistant Attorney General

CNR:SAS:t:w

1 Conn. Gen. Stat. e 8-2 prohibits a town from the outright banning of family day care homes. It provides: "No such zoning regulations shall prohibit the operation of any family day care home or group day care home in a residential zone."

2 Municipalities have the authority to promulgate regulations pursuant to Conn. Gen. Stat. e 8-2, which regulations "...provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception..." from one of the town zoning commissions, "...subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values."

3 Section 17-31q-18 of the Regulations of Connecticut State Agencies sets out the requirements for the physical environment of the family day care home, including cleanliness, absence of poisonous substances, and fire safety standards. Section 17-31q-13(e) requires a physical inspection of every applicant's home by Department of Human Resources staff. Section 17-31q-14(j) makes consent to home inspections a term of the registration. Section 17-31q-21 provides that 33.3 percent of all registered family day care homes will be inspected every year by Department staff, and that unannounced home visits will be performed in response to complaints lodged against family day care home providers.

4 The "Regulations For Family Day Care Homes In Connecticut" are codified at Sections 17-31q-12 to 17-31q-23 of the Regulations of Connecticut State Agencies.