The Lenexa City Council has approved a special permit for a proposed in-home daycare business over the objections of a homeowners association whose bylaws stipulate against it.

On Tuesday, the city council voted 5-2 to approve a special use permit for The Learning Playhouse, 8115 Acuff Ln., an in-home daycare that plans to at least temporarily serve up to 12 children.

Councilmembers Bill Nicks and Mark Charlton voted in dissent. Councllmember Joe Karlin was absent.

The homeowner’s request to open a daycare in her house prompted a vocal protest from the Oak Hill Homes Association, the bylaws for which don’t allow for a business to be run out of a home.

Why did the council need to weigh in?

The Learning Playhouse is owned by Megan Todd, the applicant and owner of the home out of which the daycare will operate.

Todd says her hours will be 7:30 a.m. to 4 p.m., Monday through Friday. Pick-ups and drop-offs would be staggered to avoid congestion in the neighborhood, according to city documents.

A home is allowed to operate a daycare center for up to six children without needing a special use permit or city council approval, Stephanie Sullivan, planning manager for Lenexa’s Community Development department, said. It would just need a business permit and state license.

Todd has a degree and experience in early childhood education. She told the city council her home has been approved by the Kansas Department of Health and Environment to host a daycare and that she has also gotten requisite approvals from city and state fire marshals.

But because Todd planned to serve up to 12 children, she also needed to obtain a special use permit from the city. The owner says the home location will be temporary

Speaking before the city council this week, Todd said her daycare business is only expected to be there until she finds a more permanent place to operate.

“Granting this permit would allow us to save money and attain our goal of moving into a commercial setting and operate as a small child care center rather than an in-home (center),” she said. “Although dependent on factors of location and affordability, we would like to be operating in a commercially zoned location by next school year.”

Todd acknowledged her proposed daycare goes against the HOA’s bylaws, but she said that would be her issue to address with her neighborhood, not the city council’s.

“Any repercussions from the HOA or neighbors would be my responsibility to rectify and not the city’s,” Todd said. “This special use permit granted in a temporary capacity will allow me to earn a respectable living for my family while providing a reliable and necessary service to a few of our Lenexa families.” HOA pushes back on daycare plan

Highlighting the HOA’s rules against running a business out of someone’s home, Steve Chernoff, President of the Oak Hill Homes Association, made his case to the council to deny the permit.

He said he had contacted more than 50 HOAs in Lenexa representing some 10,000 homeowners, all of which gave him “unanimous support” in Oak Hill’s opposition to the plan. He added that other HOA leaders were watching to see what the city would do with this proposal.

“They are a little upset that Lenexa would proceed with foresight and disregard reasonable and legally valid deed restrictions,” he said.” They don’t understand how the city of Lenexa, which has benefited greatly by the existence of these HOAs, would disregard their restrictions.”

Even if the city council granted the special use permit, Chernoff said that does not mean the HOA would not continue to protest the business being run out of the home.

“The applicant is under the impression that approval tonight gives her the final okay to have the business and it trumps the HOA deed restrictions,” he said. “Why would the city of Lenexa allow this to proceed, knowing that the deed restriction in this case is enforceable and require the Oak Hill HOA to spend considerable amount of money in legal proceedings?” City Council said it doesn’t enforce HOA rules

While the city recognizes the HOA has rules and restrictions, city council and staff are not in charge of enforcing them, Sean McLaughlin, Lenexa’s city attorney, said.

“These are private restrictions,” he said. “We do not interpret, follow and enforce those.”

He added, speaking to the city council: “Your role tonight is simply looking at the zoning and looking at what is allowed with this [special use permit].”

In the city’s zoning code for single-family residential neighborhoods, Sullivan said, other allowable uses without a special us permit include places of worship, daycare centers with six children or fewer, group homes, public parks and golf courses.

A special use permit is required for things such as a cemetery, a daycare center with more than six children, large wireless cellular systems, schools, utilities, public safety and commercial uses of residential property.

“I do want to point out, too, in this case, the primary use is still residential,” Sullivan said. “In this case, the homeowner … that’s still living in that house, that’s their primary use of the house. It’s just [the business] would be supplementary.” Two councilmembers voted to deny permit

As the council voiced their thoughts on the project, two cast a critical eye to the project.

The addition of a daycare center in a residential area would change the character of the neighborhood, Nicks said.

Charlton expressed mixed feelings but ultimately voted to deny the special use permit because of the traffic it could bring to the area and the potential dangers it could pose, with the house being on a curve in the road, as well as the driveway having a noticeable incline.

“I understand the safety factor that the neighborhood brought up,” he said. “I noticed that right away, when I drove by the incline of the driveway. I don’t think if I was dropping off my kids, that I’d probably would be driving up the driveway.” The city council approves the permit

Ultimately, the city council approved the permit, with some councilmembers pointing at that the plan was brought before the council merely because of the number of children.

“Had the applicant stayed at six (children) and under, this would not be before us,” Councilmember Chelsea Williamson said. “The city recommending approval of this application with a three-year limit on it, I think allows city staff to monitor it.”

There is a need for child care in the area and this business helps address it, Councilmember Courtney Eiterich said.

“I know that daycare is really hard to find and is much needed, and given that the owners have stipulated that this is temporary — or hopefully temporary — that this could be mitigated a little differently,” she said. “I do not believe that it is our responsibility to navigate the HOA recommendations, and so I will be supporting this.” What’s next

Officials with the Oak Hills Home Association say they are exploring their options, including potentially levying fines against Todd, placing a lien on the house if the fines aren’t paid and restricting her access to the neighborhood pool.

“No one really wants to get involved with things like this, where people are knowingly violating deed restrictions that they agreed to,” Chernoff told the Johnson County Post.

“We have a seven member board, and no one is real happy about having to deal with this.”

Todd could not be reached for additional comment for this story.