Posted by: Patricia Salkin | June 23, 2009

Conditions Restricting Hours of Operation, Cleaning and Security for Home Depot Were Arbitrary

An appeals court determined that a number of conditions imposed on the approval of a site plan application for the remodeling of a commercial building in order to open a retail store were arbitrary and hence impermissible. Specifically, the Town Board’s attempt to restrict the hours during which Home Depot could operate its business and clean the parking area, was arbitrary and capricious since the Town offered no findings or rationale to support the imposition of such restrictions. The Court acknowledged that although time restrictions could be used to effectively reduce traffic and noise during certain hours, the Town made no specific findings as applied to this application. Further, the Court also found arbitrary the Board’s condition requiring the installation of a closed circuit television recording system since no findings were made to support the conclusion that this system would affect the “safety and general welfare of the adjacent areas.”

The Court did uphold two other conditions, however. The first required that relocation of a loading zone from the east side of the property to the west side of the property to prohibit truck from entering the premises from one of the roadways. The Court noted that Town Law specifically vests the Board with authority to review and approve site plans related to “parking, means of access, screening, signs, landscaping, architectural features, adjacent land uses as well as any additional elements specified by the town board in such zoning ordinance or local law.” Here, the local zoning ordinance provided that in reviewing site plan applications, the Town Board is to consider, among other things, “[t]he effect of the proposed use on the movement of the vehicular traffic in the vicinity, including consideration of the provisions for access of such traffic between the premises and public highways.” Another condition, which required the installation of a 12-foot solid PVC fence was also upheld as the Court found it was “rationally related to Home Depot’s inclusion of a similar 12-foot fence in the site plan, and the Town Board’s desire to ‘protect the just interest of nearby residents in the preservation of a peaceful and pleasant residential environment.'”

Home Depot, U.S.A. v. Town Board of the Town of Hempstead, 2009 WL 1695450 (N.Y.A.D. 2 Dept., 6/16/2009).

The opinion can be accessed at:


  1. Your study the law on land is quite impressive, thank you for sharing information with you.

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