"Since the extension or enlargement of a nonconforming use may be more detrimental to zoning than a variance, it has generally been held that a nonconforming use stands in no preferred position. Consequently most decisions that have passed on the point have held that the extension or enlargement of a nonconforming use is to be treated as a variance within the provisions of zoning ordinances." Ackley v. Nashua, 102 N.H. 551, 554, 163 A.2d 6, 9 (1960) (citations omitted); Glidden v. Nottingham, 109 N.H. 134, 135, 244 A.2d 430, 431 (1968). A variance has been defined as authority granted to the owner to use his property in a manner otherwise violative of the zoning regulations.
The scope of review in zoning cases is limited. All findings of the board are deemed prima facie lawful and reasonable and they shall not be set aside except for errors of law unless the court is persuaded by a balance of probabilities that the order is unjust or unreasonable. RSA 31:78; Glidden v. Nottingham, 109 N.H. 134, 244 A.2d 430 (1968). Although plaintiffs bear a heavy burden, we find it has been met.
The trial court determined that the chairman's testimony would not contradict the minutes, but rather would clarify certain ambiguities relating to the proceedings. The record shows that this testimony was helpful in bringing to the court's attention matters not shown by the bare minutes, and we believe the trial court properly exercised its discretion in allowing the evidence to be introduced. RSA 31:82; Glidden v. Nottingham, 109 N.H. 134, 136, 244 A.2d 430, 431 (1968); see Levesque v. Hudson, 106 N.H. 470, 214 A.2d 553 (1965). The plaintiffs finally contend that even if the denial of the variance was based on the evidence, they were misled as to the board's actual reasoning and precluded from filing a proper appeal.
On the record before us we hold that the trial court could properly find and rule that the decision of the zoning board granting the variance was not unjust or unreasonable or based on errors of law. RSA 31:78; Glidden v. Nottingham, 109 N.H. 134, 244 A.2d 430 (1968); Wentworth Hotel, Inc. v. New Castle, 112 N.H. 21, 287 A.2d 615 (1972). We have examined the various evidentiary exceptions taken by the plaintiffs during the trial.
The zoning board acted reasonably and lawfully in denying plaintiff's application for a variance to the minimum lot size ordinance, and the superior court's approval of the master's report and dismissal of plaintiff's petition was correct. RSA 31:78; Vannah v. Bedford, 111 N.H. 105, 276 A.2d 253 (1971); Glidden v. Nottingham, 109 N.H. 134, 244 A.2d 430 (1968); see Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165 (1967). Exceptions overruled.
It is well established law in this jurisdiction that on appeal the decision of the Board of Adjustment "shall not be set aside or vacated, except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unjust or unreasonable." RSA 31:78; Glidden v. Nottingham, 109 N.H. 134, 244 A.2d 430 (1968). At the hearing before the master, the plaintiffs had the burden of proving that the order of the Board of Adjustment denying the variance was unreasonable or unlawful.
" Counsel might well have felt that the erroneous ruling of the court was more favorable than the correct one which would have placed on him the burden of proving the original action of the board was "unjust or unreasonable." RSA 31:78; Glidden v. Nottingham, 109 N.H. 134, 136, 244 A.2d 430, 431 (1968); Sweeney v. Dover, 108 N.H. 307, 309, 234 A.2d 521, 522 (1967). Where counsel thus agreed, the ruling became the law of the trial and cannot be attacked here since the court was given no opportunity to correct the error.
The critical distinction rests in the difference between the traditionally legislative process of amending the zoning ordinance and the administrative or, perhaps, "quasi-judicial" act of granting a variance or exception as authorized by the ordinance. See Jablon v. Town Planning and Zoning Commission of the City of Newton, 157 Conn. 434, 254 A.2d 914, 916 (1969); Glidden v. Town of Nottingham, 109 N.H. 134, 244 A.2d 430, 431 (1968); Fitzgerald v. Board of Review of the City of Newport, 99 R.I. 221, 206 A.2d 635 (1965). Absence of Fact Findings