Appeal from a judgment of the District Court of Nassau County, Fourth District (Vito DeStefano, J.), rendered December 20, 2004. The judgment convicted defendant, after a nonjury trial, of violating section 246.8.2.6 of the Code of Ordinances of the Town of Oyster Bay.

Judgment of conviction unanimously affirmed.

On appeal, defendant contends there exists a valid non-conforming use. A valid non-conforming use is generally referred to as a use of land which lawfully existed prior to the enactment of the zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated (1 Salkin, New York Zoning Law and Practice § 10.02 [4th ed]). Such uses will be permitted to continue despite the enactment of a prohibitory zoning ordinance if, and only if, enforcement of the ordinance would, by rendering valueless substantial improvements or businesses built up over years, cause serious financial harm to the property owner (People v Miller, 304 NY 105, 109 [1952]). The non-conforming use must be an actual use, rather than a contemplated use, that is, the use must have been substantial and actually in existence at the time the zoning restriction becomes effective. The right of continuance of a previously existing use is a right inherent in the land and said non-conforming use carries with it the right to customary and incidental accessory uses (see 4 Rathkopf, The Law of Zoning and Planning §§ 72:20, 72:23).

Since the right to maintain a non-conforming use constitutes an exception to the zoning [*2]ordinance running in favor of the land in question, the burden of proving the existence of such right and the extent of such use is upon the person claiming the right to be exempt from the ordinance (see 4 Rathkopf, The Law of Zoning and Planning § 72:2; see also People v Gagliardi, NYLJ, July 17, 1982 [App Term, 9th & 10th Jud Dists]; People v Kollender, 169 Misc 995 [1939]). The evidence at trial established that defendant's use of his side yard was not lawful prior to the amendment of section [*3]
246.8.2.6 of the Code of Ordinances of the Town of Oyster Bay. Thus, defendant failed to sustain his burden of proving the existence of a legal pre-existing non-conforming use. Accordingly, the judgment of conviction is affirmed.
Decision Date: October 20, 2005