CUDP-22-0015: What's at play?

The City of Colorado Springs in November 2022 issued 202 notices to homes in close proximity to 50 Mikado Drive East pertaining to a conditional use permit (CUDP-22-0015), which would grant the property owner a permit to operate a child care home serving up to 12 full time children. Below are relevant HOA, city, and state regulatory guidelines at play. 

1. From the Declarations of Covenants, Conditions, and Restrictions (CCRs) of the Raven Hills Homeowners Association: 

Section 13. Commercial Enterprises, Nuisances. 

No manufacturing or commercial enterprises shall be conducted or maintained upon, in front of or in connection with any Lot or Lots. No noxious or offensive activity shall be carried on upon any Lot, street, road or Common Area, nor shall anything be done thereon which may be or may become an annoyance or a nuisance to the neighborhood. 

2. From Colorado Springs City Code 7.5.704: Authorization and Findings

The Planning Commission may approve and/or modify a conditional use application in whole or in part, with or without conditions, only if all three (3) of the following findings are made: 

A. Surrounding Neighborhood: That the value and qualities of the neighborhood surrounding the conditional use are not substantially injured. 

B. Intent of Zoning Code: That the conditional use is consistent with the intent and purpose of this Zoning Code to promote public health, safety, and general welfare. 

C. Comprehensive Plan: That the conditional use is consistent with the Comprehensive Plan of the City.  

3. Colorado law: On July 8th, 2020, Governor Polis signed into law Senate Bill 20-126. SB20-126 amended the Colorado Common Interest Ownership Act ("CCIOA") to include protections for licensed operators of family child care homes. Note: While the Raven Hills HOA is exempt from most of the CCIOA, it is subject to §38-33.3-105 through 38-33.3-107. The language included in SB20-126 amends 38-33.3-106.5, which does as a result apply to the Raven Hills HOA.  

SB20-126 amended §38-33.3-106.5 of the CCIOA. This section now includes §38-33.3-106.5(k), which states that despite any provision in the declaration, bylaws, or rules and regulations of the association to the contrary, an association shall not prohibit the operation of a licensed family child care home, as defined in section 26-6-102(13). 

A "family child care home" is defined by §26-6-102(13) as a facility for child care in a place of residence of a family or person for the purpose of providing less than twenty-four-hour care for children under the age of eighteen years who are not related to the head of such home. "Family child care home" may include infant-toddler child care homes, large child care homes, experienced provider child care homes, and such other types of family child care homes designated by rules of the state board pursuant to section 26-6-106 (2)(p), as the state board deems necessary and appropriate.

In addition to the above, §38-33.3-106.5(k) also:

  • Permits an association to require operators of family child care homes to carry liability insurance;
  • Requires an association to make reasonable accommodations for fencing requirements applicable to licensed family child care homes;
  • Specifically states that subsection (k) does not supersede any of the association's regulations concerning architectural control, parking, landscaping, noise, or other matters not specific to the operation of a business per se.

While HOA CCRs may be more restrictive than City code or ordinance, Colorado law supersedes both City and HOA regulations. 

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