Opinion
March 2, 1998
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the judgment is affirmed, with costs.
The petitioners purchased certain property in 1971 which was subject to zoning restrictions enacted in 1934. The petitioners applied to the Zoning Board of Appeals of the Town of Huntington for a variance to establish, inter alia, that the use of a barn located on their property was a prior nonconforming use of habitable space.
"[T]o establish a right to a nonconforming use, the person claiming the right must demonstrate that the property was indeed used for the nonconforming purpose, as distinguished from a mere contemplated use, at the time the zoning ordinance became effective" (Matter of Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 284). Although the petitioners established that they rented out the barn as a dwelling space, it is the conduct of those who were the owners as of the date of the enactment of the zoning ordinance which is controlling (see, Matter of Concerned Citizens v. Lester, 62 A.D.2d 171, 175).
Upon review of the record, we find that the evidence does not support the petitioners' contention that the barn was used as a dwelling prior to 1934. The testimony of the only two witnesses who claimed to have had knowledge of events prior to 1934 was merely speculative. Review by this Court is limited to whether the Board's determination has a rational basis and is supported by substantial evidence. This Court may not substitute its discretion for that of the Board unless its determination is arbitrary or contrary to law (see, Matter of Smith v. Board of Appeals, 202 A.D.2d 674). Since the petitioners failed to meet their burden, the Board's determination was properly upheld by the Supreme Court (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441).
Bracken, J. P., Santucci, Goldstein and McGinity, JJ., concur.