Lansdowne Residents to Vote on Plan For Day Care
Centers Could Take In Only Five Children

By Delphine Schrank
Washington Post Staff Writer
Sunday, August 12, 2007

In an effort to end a long-standing dispute over home-based day-care businesses in Lansdowne on the Potomac, the homeowners association board has decided to hold a community-wide referendum on the issue.

In a letter sent Friday, the board said Lansdowne residents will have until Aug. 29 to vote on an amendment to the community's governing covenants that would allow such a business only if it takes in no more than five children, not counting the provider's children. The letter gave residents the option of mailing or dropping off their ballots, voting via e-mail or voting at a special meeting Aug. 29.

"This issue has the potential for such a significant impact on the community that we felt a vote by all members was appropriate, prior to the Board beginning the enforcement process," the letter said.

Lansdowne has been at odds over the issue since May, when the board announced that the covenants had long prohibited home-based businesses and that it would start enforcing the rule. Some residents applauded the move, citing the traffic generated by Lansdowne home day-care providers. Others, including several of the providers, said the complaints were unwarranted, and they questioned the legality of the board's crackdown.

Board members drafted a proposal in June aimed at specifying what constituted a prohibited home-based business, but the board never voted on the measure.

In e-mails sent to a reporter last week, board members said the referendum was conceived as a compromise. Jeff Brown, formerly the board's treasurer, became its interim president Tuesday after Eric Florence announced his resignation to residents Aug. 3. Florence's announcement said only that he wished to spend more time with his family. His term would have expired in mid-November.

"We felt there was enough interest in the community in this issue that we should have the residents determine once and for all whether or not daycares would operate in Lansdowne," Brown said in an e-mail Friday. "If we leave the existing covenants in place, daycares are clearly prohibited. As such, the only way for daycares to operate in Lansdowne is for a majority of members of the association to vote in favor of the proposed amendment."

In Friday's letter to residents, board members said the governing covenants "are clear and unambiguous and do not allow the operation of any home businesses, including child daycare facilities." Allowing home-based day-care operations or any other businesses that generate a "significant number of visits will change the residential nature of the community and would not be in the long-term best interests of the association," the letter said.

But according to Rory Clark, a Leesburg-based lawyer hired in June by some of Lansdowne's day-care providers, the covenants are ambiguous and flawed.

"This is being proposed as a perceived compromise, when in reality it's a backdoor way to eliminate day cares," Clark said.

The amendment would allow home-based day-care businesses provided they do not, among other restrictions, exceed five children from outside the home, unreasonably disrupt traffic patterns or affect noise levels. The day-care operations would need to get prior approval from the HOA and to register their business with county officials. The amendment also calls for a complaint-driven policy of enforcement.

Clark said that restricting licensed day-care providers to five children-- four fewer than the county-prescribed maximum -- would destroy his clients' businesses.

Several day-care providers hired Clark following a June 6 meeting in which board members discussed the details of the earlier proposal. At a subsequent town hall meeting, residents on either side of the dispute opposed that proposal as either too restrictive or too liberal, according to those who attended the meeting.

Clark said he will meet tomorrow with his clients to discuss their next steps. He said that if they should go to court, he is confident of a favorable outcome. He cited a Virginia Supreme Court decision June 8 in which the court ruled that the term "residential" -- as used in another subdivision's covenants -- was inherently ambiguous. In the absence of clearer covenants, state law permits free use of property, the court said.

But board members said they hope the referendum will bring the issue to a close.

"We expect to put this issue to rest once and for all, which is what we are hearing most residents want," Brown said. "There are many day-care providers that are not threatening litigation against the community, and we hope this amendment will provide them some guidance as to how to proceed."