Attorney General: 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.


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