At a time when there is a critical shortage of child day care in the Washington area, condominium and homeowner associations are shutting down home day care services in their communities by enforcing bylaws that prohibit businesses.

"We've seen these cases gradually increase," said Ann K. Macrory, director of the Washington Lawyers' Committee Child Care Advocacy Project, whose office has handled about 35 such cases. "The word is getting around to the condominium and homeowner associations that {when they receive complaints from residents} there may be an obligation to enforce the bylaws to prohibit family day care."

Among her cases: Tonight, a condominium board in Gaithersburg will discuss whether to take legal action against a resident who provides day care in her town house for three nephews, a niece and a cousin. Two weeks ago, a 65-year-old Rockville woman was informed she could no longer care for two children in her condo. Last winter, a Reston couple gathered hundreds of names on an unsuccessful petition supporting day care in their home.

Macrory and other child care advocates say condominium boards have become emboldened by two recent court cases in Maryland and Virginia in which judges for the first time ruled that condominium boards can restrict day care. Also, they contend that stepped-up enforcement in the private sector clashes with current public policy that encourages day care in the home.

Condominium boards maintain that they are doing what they were elected to do: enforce the will of condo owners. But child care advocates and condominium officials agree that such enforcement is heightening what is already an emotional issue.

The emotional side was underscored last week when two 6-year-old children were killed in a fire at a Reston condominium where one child apparently had been left under the supervision of his 8-year-old sister. Afterward, residents aware of the no-day-care rule at the Shadowood Condominiums lashed out at condominium officials. Several officials said they received phone calls from people blaming them for the children's deaths.

Until a few weeks ago, Sandra James, the mother who was at a new part-time job when the fire occurred, had been providing day care in her apartment for several children, neighbors said. Concerned that James would be evicted if she were caught, neighbors warned her about the condominium's prohibition of day care.

James consequently took the part-time job as a housekeeper at a local motel. Last Monday, the day of the fire, her children were home from school because of the Columbus Day holiday. The cause of the fire has not been determined. Her daughter escaped unharmed.

While condo officials never ordered James to stop providing day care, they said they would have, had they been aware of it, just as they had done with two other residents who moved as a result.

Some condo owners, such as Mike Herr, who lived next door to the victims, believe that his condo board should allow home day care. "These kids have to have somewhere to go," he said.

"We agree, the {day care} problem is critical," Gerald Baker, a member of the Shadowood condominium board of directors, said last week. But he emphasized that board members were elected to enforce the condominium's documents, and the deed restricts such activities.

Jean Vile, president of the board, said she and the others have a responsibility to protect the rights of all 450 property owners at Shadowood. Like other businesses, home day care can have an "impact on the common elements," such as causing increased wear and tear on the common areas of the condo, traffic, liability and noise, she said.

That view has already been expressed in court. In a ruling in favor of the Hyde Park Condominium in Gaithersburg in June, Montgomery County Circuit Judge Peter J. Messitte wrote in a 23-page opinion: "It may be that the residential setting is the very thing that parents who avail themselves of day care are seeking. But to the extent that their quest for a residential setting creates a steady flow of activity akin to a commercial enterprise, it clashes with the ideal of a more tranquil residential setting that other condominium owners have in mind."

The next month, Fairfax County Circuit Judge F. Bruce Bach ordered Polly Wilson to stop providing day care in the Burke Cove condominium she was renting. Bach said that it was Wilson's choice to live at Burke Cove and that she had entered into a contract to live by its rules, including a bylaw restricting businesses.

Macrory argues that home day care is not a business but rather an activity compatible with residential use. Washington area governments allow the care of a specified number of children in areas that are zoned for residential use.

Pending her appeal, Wilson, 31, was allowed to continue caring for the children in her apartment, provided she obtained a $1 million insurance policy. Macrory's group, which has helped in both court cases, obtained the necessary coverage.

Wilson is not alone. Saundra Frazier, 27, who lives with her husband and two children at Horizon Run in Gaithersburg, has been notified that tonight the condominium board will consider taking legal action against her if she does not stop providing day care in her three-bedroom rented unit.

Frazier, who said she used to care for a girlfriend's children but now provides day care for a niece, three nephews and a cousin, plans to fight the board. "They cannot tell me that I cannot watch my relatives," said Frazier.

Linda Chapman, community manager of Horizon Run, disagreed. "The bylaws are the bylaws are the bylaws," said Chapman. "It's pretty cut and dried."

Like the residents at Shadowood who complained about noise and peanut butter sandwiches on shared areas, residents of Horizon Run do not want to see "10 to 12 children riding Big Wheels in their green space," said Chapman. But in light of the dearth of day care, she added: "I think I have difficulty with this like a lot of people do."

Frazier maintains that the no-business bylaw is being selectively enforced. She claims that there are people in her development who are selling Avon products and real estate from their homes. She said her landlord, the owner of the condominium in which she lives, is "with me 100 percent."

Moreover, Frazier said, she is paid by her relatives only occasionally. Formerly a manager for a fast food restaurant, Frazier said it no longer made sense to work for $550 every two weeks and dish out $390 for child care in the same period.

"I think it's the tip of the iceberg; I've had three calls just this week," Marcia Sprinkle, director of the Child Care Technical Assistance Office in Montgomery County, said of similar cases. "I don't think we as a society can say we don't want any schools or we don't want any hospitals or we don't want any child care. I don't think they {boards} should be able to restrict" child care, she said.

Jim Dowden, executive president of the Community Associations Institute, estimated that there are 120,000 condominium and homeowner associations nationwide. Dowden said it is difficult to guess the number in the Washington area, but he added: "The condo is the starter home of the 1980s."

While most do not have provisions against day care, almost all have business bans, he said. "I don't hear a great groundswell to start permitting day care."