The Porter Board of Zoning Appeals on Wednesday split 3-1 in favor of granting a use variance to resident Amy Silverthorn to operate a daycare in an R-1 residential district at 219 Arrowhead Trail.

Silverthorn said she got her child care license from the state in early 2015 and has been running the daycare for about 19 months at the residence. She had resided there but is in the process of moving out and intends to keep running the daycare where it is now.

Silverthorn said she looks after 11 children currently, with her sister, ages ranging from four months to five years.

By moving, she learned she would need to have a use variance.

The BZA held a public hearing for the petition with one neighbor raising a few concerns.

Linda Downey, who resides in the house south of the daycare, said she can hear the children outside early in the morning and other times during the day to the point where she has to close the windows. She was also concerned about the children’s safety as one the children had climbed the fence dividing the property.

Silverthorn’s sister Kelly Leon said it was her child who climbed the fence and he knows now not to do it. Contrary to Downey’s comments, Leon said the children are rarely outside because they can only go outside in certain weather conditions and if they are outside, it’s usually later in the morning.

David Silverthorn asked if there was a Town ordinance that prohibited noise by children.

“If kids are shouting and screaming on a playground, do you shut down the playground?” he asked.

Town Planner Jim Mandon said there is nothing in the Town Code that specifically prohibits noise made be children but the Town can take action if it is determined there is a nuisance to the neighbors.

For the use variance, the Town could set controls to mitigate the issues, Mandon said. He said he expected there to be some concern over traffic with parents dropping their kids off at the daycare, but the BZA could make the suggestion that the drop-offs are staggered.

Silverthorn and Leon said drop-offs are staggered from 7 a.m. to 11 a.m. and the children are all picked up by 5:00 or 5:30 p.m.

A day care center is listed in the Town Code as needing a use variance. BZA attorney Laura Frost however said the state law allowed Silverthorn to operate the daycare when she was living there, which supersedes the Town code, but since she is not residing there now a use variance is needed.

In part of the findings of fact, it was recorded that the daycare was in compliance with the state law the day it opened.

BZA member Amy Wacheter-Versaw made the motion to approve the variance with the encouragement that the daycare supervisors discuss with the neighbors times for the children to be outside for recess. Leon said they would have set those times earlier but no neighbor before the hearing Wednesday had ever made complaints.

The board voted 3-1 to grant the variance. Voting in approval were President John Kremke and members Wacheter-Versaw and Henry Huyser. Dissenting was William Sexton. Absent was member Ken Timm.

In other business, the BZA agreed unanimously to set a public hearing in November on Jesse and Mike Campaniello’s request to place a fence in their front yard setback at 760 Marquette Rd. The fence is for privacy and to keep the owner’s dogs in the yard.

Mandon said he saw that there are two principal structures on the Campaniello’s one lot that may need to be subdivided. Mike Campaniello said the homes were built in the 1940s and 1950s. That is likely before the current zoning ordinance was implemented.

Mandon said he would check to see what the rules for zoning were when the houses were built.

Also, the BZA continued Joseph and Judith Navarro’s request to build an additional accessory building at 1201 Mineral Springs Rd. No petitioner was present at the meeting.