| Matter of Home Depot, U.S.A. v Town Bd. of Town ofHempstead |
| 2009 NY Slip Op 05133 [63 AD3d 938] |
| June 16, 2009 |
| Appellate Division, Second Department |
| In the Matter of Home Depot, U.S.A., et al.,Respondents, v Town Board of the Town of Hempstead,Appellant. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (Anthony S. Guardino and Nina Petraro of counsel) forrespondents.
In a proceeding pursuant to CPLR article 78 to review so much of a determination of theTown Board of the Town of Hempstead dated April 17, 2007, as imposed certain conditions onthe approval of the petitioners' site plan application, the Town Board of the Town of Hempsteadappeals, as limited by its brief, from so much of a judgment of the Supreme Court, NassauCounty (McCarty, J.), dated April 7, 2008, as granted the petition to the extent of annullingconditions a, b, c, f, h, n, and o, and directed it to approve the site plan.
Ordered that the judgment is modified, on the law, by deleting the provisions thereofgranting those branches of the petition which were to annul conditions a, b, c, and f imposed bythe Town Board of the Town of Hempstead, and substituting therefor a provision denying thosebranches of the petition; as so modified, the judgment is affirmed insofar as appealed from,without costs or disbursements.
The petitioners, Home Depot, U.S.A. (hereinafter Home Depot), and Elias PropertiesLevittown, LLC, commenced this proceeding pursuant to CPLR article 78 challenging thoseportions of the determination of the Town Board of the Town of Hempstead (hereinafter theTown Board) which imposed certain conditions on the approval of Home Depot's site planapplication for the remodeling of a commercial building in order to open a retail store.
"[T]he determination of a municipal land use agency must be confirmed if it was rational andnot arbitrary and capricious" (Matter of Halperin v City of New Rochelle, 24 AD3d 768,772 [2005] [internal quotation marks omitted]; see Matter of Sasso v Osgood, 86 NY2d374 [1995]). The Supreme Court correctly determined that the Town Board's decision to imposeconditions h and o, which restricted, among other things, the hours during which Home Depotcould operate its business and clean the parking area, was arbitrary and capricious. While timerestrictions could effectively reduce traffic and noise during certain hours (see Matter ofMilt-Nik Land Corp. v City of Yonkers, 24 AD3d 446, 449 [2005]), the Town Board offeredno finding or rationale to support the imposition of the inconsistent hourly restrictions set forthin conditions h and o (see Matter of [*2]Old Country BurgersCo. v Town Bd. of Town of Oyster Bay, 160 AD2d 805 [1990]). Furthermore, the SupremeCourt correctly determined that the Town Board's decision to impose condition n, which requiredthe installation of a closed circuit television recording system, was arbitrary and capricious, asthe Town Board offered no findings to support the conclusion that such a system would affectthe "safety and general welfare of the adjacent areas" (Matter of International InnovativeTech. Group Corp. v Planning Bd. of Town of Woodbury, N.Y., 20 AD3d 531, 533 [2005];see Matter of Pearson Kent Corp. v Bear, 28 NY2d 396, 399 [1971]; Matter ofMackall v White, 85 AD2d 696 [1981]).
However, the Supreme Court erred in finding that there was no rational basis for theimposition of conditions a, b and c, which prohibited Home Depot from relocating a loadingzone from the east side of the property to the west side of the property, and prohibited trucksfrom entering the premises from the roadway which formed the western boundary of thepremises. A town board is authorized to review and approve site plans which describe proposedland use elements, including those elements which relate to "parking, means of access,screening, signs, landscaping, architectural features, location and dimensions of buildings,adjacent land uses and physical features meant to protect adjacent land uses as well as anyadditional elements specified by the town board in such zoning ordinance or local law" (TownLaw § 274-a [2] [a]). Town of Hempstead Building Zone Ordinance § 305 [B]provides that, in determining whether to approve a site plan application, the Town Board shallgive "due consideration" to, among other things, "[t]he effect of the proposed use upon themovement of the vehicular traffic in the vicinity, including consideration of the provisions foraccess of such traffic between the premises and public highways" (Town of Hempstead BuildingZone Ordinance § 305 [B] [2]). Accordingly, the Town Board properly based conditions a,b, and c on its findings that the construction of a loading dock, with an accompanying truckentrance, on the west side of the premises would adversely impact the surrounding roadways andtraffic patterns, and imposed reasonable conditions to relieve congestion and increase safetyupon roadways adjacent to the site (see Matter of Pearson Kent Corp. v Bear, 28 NY2d396, 399 [1971]; Matter of Turkewitz v Planning Bd. of City of New Rochelle, 24 AD3d790, 791 [2005]; Matter of Sepco Ventures v Planning Bd. of Town of Woodbury, 230AD2d 913, 915 [1996]; Matter of Albany Area Bldrs. Assn. v Town of Clifton Park, 172AD2d 54, 56 [1991]; Holmes v Planning Bd. of Town of New Castle, 78 AD2d 1, 13[1980]).
Finally, the Supreme Court erred in finding that there was no rational basis to imposecondition f, which required the installation of a "12 foot solid PVC fence . . . alongall property lines abutting residential properties/streets." The Town Board was authorized toconsider the acoustic, visual, and otherwise aesthetic impact of the proposed land use onadjoining residential lands (see Town Law § 274-a [2] [a]; Town of HempsteadBuilding Zone Ordinance § 305 [B] [6]; Matter of Hampshire Mgt. Co., No. 20, LLC vFeiner, 52 AD3d 714, 715-716 [2008]) and its decision to impose condition f was rationallyrelated to Home Depot's inclusion of a similar 12-foot fence in the site plan, and the TownBoard's desire to "protect the just interest of nearby residents in the preservation of a peacefuland pleasant residential environment." Fisher, J.P., Dillon, Covello and Dickerson, JJ., concur.