Opinion
February 23, 1998
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the judgment is modified by deleting the words "without limitation" from the second decretal paragraph thereof; as so modified, the judgment is affirmed, with costs to the intervenors-defendants payable by the appellant.
A right to continue a nonconforming use does not include the right to extend or enlarge it ( see, Matter of Steiner Fellowship Found. v. De Luccia, 90 N.Y.2d 453, Matter of Smith v. Board of Appeals, 202 A.D.2d 674; 1 Anderson, New York Zoning Law and Practice, § 6.32, at 258 [3d ed]). However, a mere increase in the volume or intensity of the use is not necessarily an extension or enlargement of such use ( see, Matter of Tartan Oil Corp. v. Board of Zoning Appeals, 213 A.D.2d 486; Matter of Smith v. Board of Appeals, supra; 1 Anderson, New York Zoning Law and Practice, § 6.33, at 259-260 [3d ed]). In order to effectuate an impermissible extension or enlargement, there must be a change in volume or intensity which results in a variation or alteration of the specific type of use ( see, Matter of Tartan Oil Corp. v. Board of Zoning Appeals, supra). Further, in keeping with the sound public policy of eventually extinguishing all nonconforming uses, the courts will enforce a municipality's reasonable circumscription of the right to expand the volume or intensity of a prior nonconforming use ( see, Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160; Matter of Harbison v. City of Buffalo, 4 N.Y.2d 553, 559; Matter of Syracuse Aggregate Corp. v. Weise, 72 A.D.2d 254, affd 51 N.Y.2d 278).
The increase in the number of horses on the subject property did not, under the circumstances of this case, constitute an improper enlargement or extension of the prior nonconforming use ( see, People v. Perkins, 282 N.Y. 329; Town of Gardiner v. Blue Sky Entertainment Corp., 213 A.D.2d 790; Matter of Tartan Oil Corp. v. Board of Zoning Appeals, supra). However, that the current use does not represent an improper enlargement or extension does not mean that the number of horses that may be boarded or used on the property may be further increased "without limitation". Accordingly, that language is deleted from the judgment.
Further, we find that the Supreme Court properly determined that there was a failure of proof as to the plaintiff's claim that the nonconforming use was abandoned.
The plaintiff's remaining contentions are without merit.
O'Brien, J. P., Santucci, Krausman and Florio, JJ., concur.