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the primary distinction is that licensed daycares involve children less than four years and nine months, and this is the basis of the letter in the packet from the State exempting the school from licensing requirements. He stated that the proposed facility does not accept children less than four years and nine months of age, and the State made that determination after full disclosure about how the business would operate. He noted that the State fully understands there will be times such as school vacations and summer where children will be at the after-school program for more than 15 hours in the same week, and this is the State's policy to interpret. Mr. MacDonald stated that the State is willing to process a childcare license for the school at the proposed location if this is required, and the school is also willing to process a childcare license even though it is not required if the City so requires it. He indicated, however, that the State should be left to interpret State regulations, and the City should interpret its zoning code. He added that the school would remain a tutoring school even if the City requires it to obtain a childcare license. Mr. MacDonald stated that Staff acknowledges that neither daycare, childcare, nor tutoring schools are defined in the Municipal Code, which makes this a policy decision, and the Planning Commission is empowered to interpret the zoning ordinance. He indicated that the Commission's decision should be based upon the primary nature of the land use, the need for rules that best serve the interests of the people of Pleasanton. He, therefore, asked the Commission to determine the school as a tutoring school under the zoning code, an allowed use in the Hacienda Business Park, and to approve the staff recommendation and conditions as written. Regarding Commissioner Fox's questions, Mr. MacDonald indicated that there are 58 students enrolled but are not there all day. He added that the facility's staff can handle 65 students and that they are applying to handle 90 students at the larger facility. He noted that the Building and Safety Division has always held that these types of tutoring facilities are not educational institutions. He stated that the issue arose to the City Council because someone was renting a 610-square-foot area across the street, and the Building and Safety Division required that aone-hour firewall around the office be installed. He noted that it was later found that this was not required for renting a space within a larger building. He further noted that the proposed building for the facility is very safe and is fire-sprinklered on the first floor. Commissioner Fox noted that she remembered Mr. MacDonald from a project proposed by Mary Kay Berg. She stated that she thought Mary Kay Berg only had two or three students at one time, and Mr. MacDonald stated that she was actually expanding her use and was hiring more teachers. Commissioner Fox stated that the Building Code indicates that if a child was in the facility for more than 12 hours a week or more than four hours a day, an E occupancy would be required. EXCERPTS: PLANNING COMMISSION MINUTES, December 10, 2008 Page 8 of 21