INC. VILL. OF OLD WESTBURY v. Alljay Farms, Inc.

64 N.Y.2d 798 (1985)

Incorporated Village of Old Westbury, Respondent, v. Alljay Farms, Inc., et al., Appellants.

Court of Appeals of the State of New York.

Argued January 7, 1985.

Decided February 5, 1985.

Daren A. Rathkopf for appellants.

John M. Armentano and Dolores Fredrich for respondent.

Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur.

*800MEMORANDUM.

The order of the Appellate Division should be modified, with costs, to declare that defendants have a valid nonconforming use accessory to their single-family dwelling for the maintenance of defendants' own horses, even though they be racing horses, on the property and, as so modified, should be affirmed.

We agree with the Appellate Division, for the reasons stated in its memorandum (100 AD2d 574), that defendants do not have a legal nonconforming use for a commercial horse farm, and conclude that defendants have not sustained their heavy burden of demonstrating that the distinction made in the zoning ordinance between farms for the raising of cattle and crops and farms for horse breeding and training is unconstitutional.

On the other hand, the record shows that horses were maintained on the property as an accessory use prior to the enactment of the present ordinance. At the time the ordinance was enacted this was a preexisting use. That use cannot now be expanded to conform with the owner's desire to maintain a commercial breeding farm; however, the maintaining of defendants' horses, even though they be racing horses, on the property cannot be precluded.

Order modified, with costs to appellants, in accordance with the memorandum herein and, as so modified, affirmed.