Posted by: Patricia Salkin | July 28, 2012

NY Appellate Court Orders Issuance of Building Permit for Nonconforming Lot

Petitioners commenced a proceeding seeking to annul the determination of the respondent, Town of Amherst Zoning Board of Appeals, denying their request for a building permit for a single family home. The request was denied on the grounds that the lot did not meet the minimum width requirements.

The Appellate Division found that the Supreme Court properly ruled in favor of the petitioners and ordered the Zoning Board of Appeals to grant the requested permit. The court reasoned that the Board’s determination was contrary to the clear wording of the Town’s zoning ordinance. Although the lot currently does not meet the width requirement, the lot complied with the requirements that were in effect when the lot was filed as part of a subdivision in 1979, constituting it as a “nonconforming lot of record.” A provision in the town code allows for a single family detached dwelling to be erected on any single nonconforming lot of record. Therefore, the petitioners were entitled to a building permit from the Town of Amherst.

McGrath v. Town of Amherst Zoning Board of Appeals, 94 A.D.3d 1522 (NYAD 4 Dept., 4/27/2012)

The opinion can be accessed at:


  1. Good reminder for practitioners to check the zoning code’s back history before making an application to the ZBA.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: