Childcare affordability and access are regulatory problems, but many miss the extent to which these challenges stem from zoning. Zoning receives much well-deserved attention as a major constraint on housing development, but it receives little attention for the constraints it imposes on many other vital services and beneficial amenities.

Zoning acts as an imperceptible layer of regulation that governs all development, no matter how crucial. Among the many goods and services limited by zoning, childcare is arguably among the most constrained. Among other challenges, childcare is often seen as too commercial for residential areas and too residential for commercial areas. Policymakers overestimate the externalities of childcare, such as noise, and subject childcare to heightened regulatory scrutiny due to the presence of small children.

As with many community amenities and services, where families live determines access to care. Past research finds that more than half of American children live in geographic childcare deserts and research in California reports that 60 percent of children live in childcare deserts.^[1] This figure is higher for children from low-income households. A recent paper shows subsidized low-income families often rely on distant childcare providers.

Far from the geographic distribution of childcare establishments being random, or the natural consequence of a free market, in most jurisdictions, the development of childcare facilities across geographic space is dramatically curtailed by zoning regulations.^[2] Traditional zoning divides the built environment into spaces dedicated to specific uses (e.g., single-family housing) while prohibiting or limiting other uses within those areas. As a result, zoning regulation produces childcare “deserts” by default. In addition, zoning can prohibit childcare from co-locating with complementary uses like churches, schools, gyms, and other businesses, or in mixed-use or repurposed buildings.

In addition to zoning prohibiting the establishment of childcare services, there are other ways zoning limits childcare development directly and indirectly. Cities often, though not always, allow childcare development in designated areas, for instance, commercial zones (e.g., C-1 or C-2).^[3]

Otherwise, cities often permit childcare conditionally, that is, only if the childcare establishment meets special criteria outlined by the jurisdiction.

Conditional or special use permitting poses a variety of challenges to childcare development by introducing subjectivity, increasing development costs, and enabling selective rule enforcement. Discretionary permitting can require neighborhood notification and approval, a public hearing, and costly mitigation measures to address potential project impacts. It can also mean that any childcare must conform with “neighborhood character”—a highly subjective requirement that is frequently weaponized against new development.

Neighborhood character requirements often mean that new establishments face challenges across a range of superficial characteristics, from building architecture and aesthetics to materials, placement, height, and proximity to other features of the built environment. For childcare establishments, “neighborhood character” can also subject businesses to limits on outdoor play, restricted hours of operation, or requirements for extra soundproofing or buffers.

Childcare providers and urban planners alike have acknowledged the hardship that conditional use permits impose. Jurisdictions that have made recent reforms to childcare zoning have noted these issues in detail. In Oregon, 40 percent of day care center respondents said that “conditional use permits made it difficult or impossible to locate or expand their business.” In Salt Lake City, planning division staff detailed strenuous and unnecessary conditional use permitting requirements on childcare, including large lots, the requirement to face a frontage/arterial street, and the prohibition of new centers close to other centers.^[4]

The requirement to pull special permits or proceed through a public process might seem innocuous, but securing a rezoning or a special permit can mean months or years of delay on a project and create significant uncertainty in the meantime. In line with that, around half of surveyed childcare providers in Oregon said that “long permitting timelines made it difficult or impossible to locate or expand their business.”

Many would-be providers cannot absorb this kind of unpredictability. Childcare is frequently provided by small businesses, with sole proprietors, and it is often managed and staffed by women and/or immigrants. These sole proprietor establishments do not come armed with experts in policy, real estate, or law who can deftly manage public processes and hearings and advocate for childcare development. Nor should they have to, given that childcare is essential.

Finally, even when childcare centers are permitted, the development is limited by form-based rules that increase costs and reduce feasibility. These rules govern parking, setbacks, lot-size requirements, vehicle circulation requirements, and requirements for large yards or outdoor play areas that only fit on large properties, among other characteristics. Form-based requirements increase the space needed for a childcare establishment, which increases costs for providers. Research on office and retail properties finds that parking requirements increase the cost of development between 30 and 55 percent.

Many times, local requirements overreach and exceed state requirements. For instance, Salt Lake City planners noted that local regulations exceed state requirements for home daycares by limiting the number of children to half the state limit. Indeed, when family childcare establishments are permitted, local zoning often caps the number of children cared for at low levels (e.g., 4-6 children), which reduces would-be businesses’ viability.

When childcare establishments are prohibited or prohibitively costly to develop due to regulation, this results in longer wait lists and less convenient access for parents. In Lakewood, Washington, restrictive zoning meant that just 4 percent of the city’s land was zoned for childcare prior to a code amendment. In Salt Lake City, planners noted that the city needed nearly fourteen times as many licensed family home daycares and three times as many daycare centers to keep up with childcare demand.^[5] Even the American Planning Association (APA) admits that overly restrictive requirements limit the supply of childcare.

Beyond simply limiting supply, zoning hinders childcare providers’ ability to evolve to meet changing family needs. For instance, the pandemic changed parents’ work and commuting patterns so that parents who once preferred childcare located in large commercial centers now prefer residential locations since they work from home. But zoning doesn’t allow these natural shifts to occur easily, or at all. Instead, it locks current development patterns in place, with detrimental effects.

The solution to the challenges produced by arbitrary and restrictive zoning is to overhaul the regulatory environment and massively increase regulatory certainty and flexibility for childcare providers. Fortunately, some jurisdictions have already pursued reforms with this goal in mind.

As with other areas of regulatory and zoning reform, reforms in this area should take place at the state level for maximum impact. State pre-emption of zoning is the gold standard, in part because existing local processes and politics are hostile to development.

As a starting point, childcare should be permitted by right in all zones, meaning that if owners comply with existing zoning rules, the city will issue permits. As a more modest starting point, childcare should be permitted by right in all mixed-use and residential areas. Small family childcare homes should not need to apply for zoning permits and business licenses or pay fees.^[6]

Off-street parking requirements should also be waived. As a rule, businesses have a better sense of their day-to-day parking needs than city officials. Regulations that require distance between childcare establishments are anti-supply and anti-competitive and must also be eliminated.

As with residential zoning reform, policymakers intent on increasing childcare supply, access, and affordability will need to monitor the jurisdiction’s long-term permitting behavior and update policy accordingly. Jurisdictions routinely undermine state policy intended to liberalize regulation — for example, 44 percent of Oregon cities said that family childcare homes were not permitted uses in residential zones, despite a state law making them by-right. Ultimately, local zoning allows for such diverse regulation across so many dimensions of development that states will likely need to strip jurisdictions of various levers that allow them to block development.

Once steps are taken to relax the regulatory environment and create greater certainty, childcare providers will be more likely to assume the risks and upfront costs required to open a business in their community. In the meantime, it’s imperative that future conversations about childcare access and supply consider that both are contingent on local zoning.