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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 interpretthe 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 cone-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 atone 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. Mr. MacDonald stated that when he brought the issue forward, the City reviewed the proposal and indicated that an E occupancy was intended to apply to schools that are mandated under State curriculum standards and that this was not such a facility. Commissioner Fox inquired if this application of school standards was in writing and how they relate to the Building Code. Mr. MacDonald suggested that this be discussed with the City's Chief Building Official. He stated that there are many interpretations of codes and that he has already read the materials staff would soon provide. He indicated that he thought the question before the Commission was whether or not the proposal is a tutoring school. He reiterated that he felt the State should be allowed to interpret its own code, the Commission the zoning code, and the Council the Municipal Code. PLANNING COMMISSION MINUTES, December 10, 2008 Page 11 of 35