FAMILY DAY CARE

Notwithstanding any provision of federal, state or local law which characterizes the operation of a "Family Day Care Home" as a residential activity, no Lot, nor any of the roads, sidewalks or other Common Area, may be used for the establishment and operation of a "Family Day Care Home," as such term is defined in Section 11B-111.1 of the Real Property Article of the Annotated Code of Maryland, as amended from time to time (the "Code"). The foregoing prohibition may be modified or eliminated, and Family Day Care Homes may be permitted, by the affirmative vote of Owners having at least fifty‑one percent (51%) of the total number of votes then held by all of the Owners, in the manner provided in the Bylaws of the Association. In the event the Association approves the use of a Family Day Care Home as hereinabove provided, (i) the number of Family Day Care Homes operating in the Community shall not exceed seven and one half percent (7.5%) of the total number of Lots in the Community; (ii) in order to assure compliance with subparagraph (i) above, each Family Day Care Home shall register with the Association before opening a Family Day Care Home; (iii) the "Day Care Providers" (as such term is defined in Section 11B-111.1 of the Code) shall pay on a pro rata basis based on the total number of Family Day Care Homes operating in the Community, any increase in insurance costs of the Association that are solely and directly attributable to the operation of the Family Day Care Home therein; (iv) each Family Day Care Home which is registered and operating in the Association shall pay to the Association an annual fee for the use of the Common Area in an amount not to exceed fifty dollars ($50.00), or such other higher amount as is permitted by the Code; and (v) each Family Day Care Home and Day Care Provider shall otherwise comply with all of the provisions of Section 11B-111.1 of the Code and all other applicable federal, state or local laws, rules or regulations.

(Declaration of Covenants and Restrictions, Article IV, Paragraph 27)

NOTE: This provision of the Covenants is superceded by the following extract from Maryland Law. Information in bold brackets are comments that were added by Katherine Taylor.

WEST'S ANNOTATED CODE OF MARYLAND

REAL PROPERTY

TITLE 11B. MARYLAND HOMEOWNERS ASSOCIATION ACT

Copr. © West Group 2003. All rights reserved.
Current through Chapters 1-4, 20, 21, 24, 31, 66, 110, 118, 138, 146, 166, and 201 (effective April 8 and 22, 2003) of the 2003 Regular Session.

11B-111.1. Using residence for day care

[Generally, this provision allows recorded restrictions on use of residences to be enforced ONLY if a simple majority of the total lots agree that the covenant shall be enforced. Further, by a majority vote, the membership can vote to get rid of the prohibition altogether. We have not had a vote one way or another, so for the moment, our restriction is unenforceable. By KLT]

(a)(1) In this section, the following words have the meanings indicated.

(2) "Day care provider" means the adult who has primary responsibility for the operation of a family day care home.

(3) "Family day care home" means a unit registered under Title 5, Subtitle 5 of the Family Law Article.

(4) "No-impact home-based business" means a business that:

(i) Is consistent with the residential character of the dwelling unit;

(ii) Is subordinate to the use of the dwelling unit for residential purposes and requires no external modifications that detract from the residential appearance of the dwelling unit;

(iii) Uses no equipment or process that creates noise, vibration, glare, fumes, odors, or electrical or electronic interference detectable by neighbors or that causes an increase of common expenses that can be solely and directly attributable to a no-impact home-based business; and

(iv) Does not involve use, storage, or disposal of any grouping or classification of materials that the United States Secretary of Transportation or the State or any local governing body designates as a hazardous material.

(b)(1) The provisions of this section relating to family day care homes do not apply to a homeowners association that is limited to housing for older persons, as defined under the federal Fair Housing Act. [FN1]

(2) The provisions of this section relating to no-impact home-based businesses do not apply to a homeowners association that has adopted, prior to July 1, 1999, procedures in accordance with its covenants, declaration, or bylaws for the prohibition or regulation of no-impact home-based businesses.

(c)(1) Subject to the provisions of subsections (d) and (e)(1) of this section, a recorded covenant or restriction, a provision in a declaration, or a provision of the bylaws or rules of a homeowners association that prohibits or restricts commercial or business activity in general, but does not expressly apply to family day care homes or no-impact home-based businesses, may not be construed to prohibit or restrict:

(i) The establishment and operation of family day care homes or no-impact home-based businesses; or

(ii) Use of the roads, sidewalks, and other common areas of the homeowners association by users of the family day care home.

(2) Subject to the provisions of subsections (d) and (e)(1) of this section, the operation of a family day care home or no-impact home-based business shall be:

(i) Considered a residential activity; and

(ii) A permitted activity.

(d)(1)(i) Except as provided in subparagraph (ii) of this paragraph and subject to the provisions of paragraphs (2) and (3) of this subsection, a homeowners association may include in its declaration, bylaws, or recorded covenants and restrictions a provision expressly prohibiting the use of a residence as a family day care home or no-impact home-based business.

(ii) A homeowners association may not include a provision described under subparagraph (i) of this paragraph expressly prohibiting the use of a residence as a family day care home in its declaration, bylaws, or recorded covenants and restrictions until the lot owners, other than the developer, have 90% of the votes in the homeowners association.

(iii) A provision described under subparagraph (i) of this paragraph expressly prohibiting the use of a residence as a family day care home or no- impact home-based business shall apply to an existing family day care home or no-impact home-based business in the homeowners association.

(2) A provision described under paragraph (1)(i) of this subsection expressly prohibiting the use of a residence as a family day care home or no-impact home-based business may not be enforced unless it is approved by a simple majority of the total eligible voters of the homeowners association, not including the developer, under the voting procedures contained in the declaration or bylaws of the homeowners association.

(3) If a homeowners association includes in its declaration, bylaws, or recorded covenants and restrictions a provision prohibiting the use of a residence as a family day care home or no-impact home-based business, it shall also include a provision stating that the prohibition may be eliminated and family day care homes or no-impact home-based businesses may be approved by a simple majority of the total eligible voters of the homeowners association under the voting procedures contained in the declaration or bylaws of the homeowners association.

(4) If a homeowners association includes in its declaration, bylaws, or recorded covenants and restrictions a provision expressly prohibiting the use of a residence as a family day care home or no-impact home-based business, the prohibition may be eliminated and family day care or no-impact home-based business activities may be permitted by the approval of a simple majority of the total eligible voters of the homeowners association under the voting procedures contained in the declaration or bylaws of the homeowners association.

(e) A homeowners association may include in its declaration, bylaws, rules, or recorded covenants and restrictions a provision that:

(1) Requires day care providers to pay on a pro rata basis based on the total number of family day care homes operating in the homeowners association any increase in insurance costs of the homeowners association that are solely and directly attributable to the operation of family day care homes in the homeowners association; and

(2) Imposes a fee for use of common areas in a reasonable amount not to exceed $50 per year on each family day care home or no-impact home-based business which is registered and operating in the homeowners association.

(f)(1) If the homeowners association regulates the number or percentage of family day care homes under subsection (e)(1) of this section, in order to assure compliance with this regulation, the homeowners association may require residents to notify the homeowners association before opening a family day care home.

(2) The homeowners association may require residents to notify the homeowners association before opening a no-impact home-based business.

(g)(1) A day care provider in a homeowners association:

(i) Shall obtain the liability insurance described under §§ 19-106 and 19-202 of the Insurance Article in at least the minimum amount described under that statute; and

(ii) May not operate without the liability insurance described under item (i) of this paragraph.

(2) A homeowners association may not require a day care provider to obtain insurance in an amount greater than the minimum amount required under paragraph (1) of this subsection.

(h) A homeowners association may restrict or prohibit a no-impact home-based business in any common areas.