Lakeway resident sues city to keep her at-home day care business open

Lakeway resident Bianca King is suing the city after she was denied a permit to continue operating a small day care business out of her home.

King is a single mother with experience working in education who provides child care for several local families. She opened her day care after she was laid off earlier in the pandemic and it is now her main source of income.

King registered her business as a babysitting service with the Texas Health and Human Services Commission in January 2021 to watch up to three preschool kids in her home in addition to her own two children. In the fall, she passed a voluntary state inspection that allowed her to watch up to four children in addition to her own.

Last fall, King received notice that she needed a special use permit from the city to operate a business out of her home — without it her day care violated the city’s code of ordinances. The Zoning and Planning Commission denied King’s permit application in November, arguing that the day care did not fit all of the city’s 19 criteria for a legal home business. King appealed the decision to the city’s Board of Adjustment, which voted in February not to overturn the denial.

King’s lawyers are arguing that Lakeway’s home business ordinance is unreasonably strict to the point of violating the state constitution.

“If you take these 19 criteria and interpret them very strictly, then no home business is going to be able to operate at all, and including the examples that the ordinance gives as businesses that should be able to operate,” said Jared McLain, an attorney with the Institute for Justice that is representing King. “The law shouldn't be read as strictly as the Board of Adjustments and Zoning and Planning Commission read it. ... If you're going to read this strictly, then it's unconstitutional.”

Lakeway spokesperson Jarrod Wise said the city is not able to provide additional information about the lawsuit at this time.

McLain cited precedent from the Texas Supreme Court that requires the real-world impact of a law to be considered, along with whether the law is furthering government interest in a way that isn’t oppressive. McLain cited two aspects of the ordinance that came up in public discussions about King's permit. One part says businesses cannot provide services in homes and another says customers cannot commute to and from the home.

“The due course of law argument is: What's the government's interest in saying that you can't provide services? Is that because they're disruptive to the neighbors? Because then the government's only interest is preventing those services that disrupt the neighbors, not all services,” McLain said.

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In terms of customers driving to the house, McLain said parents, usually about two families, often walk their kids over to the day care or drive on rainy days.

“Is that really an increase in traffic that the government has an interest in preventing?” he said. “If Lakeway is going to have an ordinance that stops you from having a home business, it has to show that there is a legitimate government interest in stopping the specific thing that they're trying to stop. Lakeway couldn't just have a law that says no home businesses in Lakeway.”

Residents spoke in opposition to the day care business at two public meetings on the topic. Former Lakeway Mayor Joe Bain cited the disruption the day care caused to neighbors and golfers at the Hills of Lakeway golf course, which borders Kings property on one side.

“I did not move into Lakeway to live in a multi-use development,” Bain told the Zoning and Planning Commission in November. “When you walk by, drive by, you can see the kids out playing, which is fine, but there is a noise issue there.”

Bain and other residents said that there were toys and equipment, and the sounds of kids playing and sometimes crying, in the yard, which violated the aspect of the ordinance that requires home businesses to be undetectable from outside the property.

King said two of the children are her own, and that there would be toys and the sounds of children playing on her property regardless of if she ran a day care or not.

There were also two people at the Board of Adjustment meeting who spoke in favor of King’s business, including Mayor Tom Kilgore, who said he was speaking strictly in his capacity as a private citizen. Kilgore said he felt it was unnecessarily hard to operate a home business in Lakeway and asked the board to read the ordinance more loosely in this case.

“You have to follow the letter of the ordinance and look at it, but I would ask you not to parse it so tightly,” he said.

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King said it was disheartening to hear neighbors speak against her day care, especially when the child care sector has been experiencing shortages during the pandemic.

“Not everyone is looking for large child care centers. They're looking for loving, nurturing home environments with small ratios that are education-based and have a primary caregiver without high staff turnover, something similar to what they would have at their own home,” she said. “This is a neighborhood child care service. It isn't harming anybody. And our hope is to be able to continue to serve Lakeway. That is all. That is our only wish.”

McLain said the immediate next step is to ask a court to grant temporary relief and allow King to operate her business without facing penalties while the lawsuit is ongoing.

“She needs to find another job if she can't operate it or she needs to move her day care,” he said. “And the parents of the children who she watches would have to immediately find other child care for their kids.”

McClain said there is a hearing scheduled on April 4 regarding whether King can operate during the lawsuit.

This article originally appeared on Austin American-Statesman: Lakeway resident suing city to keep her at-home daycare business open