RSA 31:62 (emphasis added). See New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856, 859 (1970). Once the right to a use is acquired, any zoning ordinance that would prevent that use is inapplicable to the party having the right to the nonconforming use.
The well drilling business predated zoning restrictions prohibiting its existence, and therefore, it operated as a lawful, nonconforming use. See New London v. Leskiewicz, 110 N.H. 462, 465, 272 A.2d 856, 859 (1970). The plaintiffs acquired the rights to the nonconforming use when they purchased the property.
In general, courts have held that although an increase in the intensity of a nonconforming use does not usually amount to a "change" or "expansion" of that use, see Carroll v. Hurst, 103 Ill. App.3d 984, 990, 431 N.E.2d 1344, 1348 (Ill.App.Ct. 1982); Powers v. Building Inspector of Barnstable, 363 Mass. 648, 654-58, 296 N.E.2d 491, 494-99 (1973); Stegall v. New Hanover Zon. Bd. of Adj., 87 N.C. App. 359, 364, 361 S.E.2d 309, 312 (N.C.Ct.App. 1987); see also 1 ANDERSON, AMERICAN LAW OF ZONING 3d 6.38 (1986); 4 RATHKOPF, THE LAW OF ZONING AND PLANNING 51.07[3] (1982), an increase in intensity which serves to change the character or purpose of the nonconforming use will be considered to have changed the use. See Powers, 363 Mass. at 653, 296 N.E.2d at 495; see also New London v. Leskiewicz, 110 N.H. 462, 467-68, 272 A.2d 856, 860 (1970). A great increase in the size or scope of a use has also been considered to be a factor in determining whether the character of the use has been changed, so that the use is no longer a continuing one.
However, the creation of a nonconforming use depends upon the configuration of specific facts at a certain point in time; therefore, in order to determine how much a nonconforming use may be expanded or changed, we must look to the facts existing when the nonconforming use was created. L. Grossman Sons, Inc. v. Town of Gilford, 118 N.H. 480, 483, 387 A.2d 1178, 1180 (1978); New London v. Leskiewicz, 110 N.H. 462, 467, 272 A.2d 856, 860 (1970). We must also consider the extent to which the challenged use reflects the nature and purpose of the prevailing nonconforming use, whether the challenged use is merely a different manner of using the original nonconforming use or whether it constitutes a different use, and whether the challenged use will have a substantially different impact upon the neighborhood.
To deny the defendants the right to build within the confines of their building a structure identical to that possessed by many of their conforming neighbors is in effect to penalize them for the nonconforming nature of their property. New London v. Leskiewicz, 110 N.H. 462, 467, 272 A.2d 856, 859 (1970). Although the general policy of zoning is to carefully limit the extension and enlargement of nonconforming uses, a town may not interpret a use in such a way as to unlawfully reduce the original vested interest acquired by the owner.
[¶ 9] On appeal, the Club argues that: (1) the trial court erred in affirming the ZBA and planning board decisions because those decisions were based upon "an illegal and unconstitutional 'zoning determination' made by the [CEO]"; (2) the ZBA and the trial court "failed to apply the criteria for a change of use pursuant to New London v. Leskiewicz, 110 N.H. 462, 467 (1970)"; (3) the trial court erred in upholding the ZBA's decision that it lacked subject matter jurisdiction to hear the Club's special exception application; (4) the Town's 2019 zoning ordinance amendment requiring shooting ranges to be in enclosed, indoor facilities is preempted by RSA 159:26, I, and RSA chapter 159-B; and (5) section 245-4 of the Town's zoning ordinance "illegally regulates constitutionally protected activity." (Capitalization and bolding omitted.)
"The burden of establishing that the use in question is fundamentally the same use and not a new and impermissible one is on the party asserting it." New London v. Leskiewicz, 110 N.H. 462, 467 (1970). In deciding whether the particular activity is within the scope of the established or acquired nonconforming use consideration may be given to, among others, the following factors: (1) to what extent does the use in question reflect the nature and purpose of the prevailing nonconforming use; (2) is it merely a different manner of utilizing the same use or does it constitute a use different in character, nature and kind; [and] (3) does this use have a substantially different effect on the neighborhood.
The burden of establishing that the use in question is fundamentally the same use and not a new and impermissible one is on the party asserting it." New London v. Leskiewicz, 110 N.H. 462, 467, 272 A.2d 856, 860 (1970). In deciding whether the particular activity is within the scope of the established or acquired nonconforming use consideration may be given to, among others, the following factors: (1) to what extent does the use in question reflect the nature and purpose of the prevailing nonconforming use; (2) is it merely a different manner of utilizing the same use or does it constitute a use different in character, nature and kind; (3) does this use have a substantially different effect on the neighborhood.
The variance which defendants were granted in 1963 did not contemplate extension of the trailers over all of their land and specifically limited them to forty units. This case is thus distinguished from New London v. Leskiewicz, 110 N.H. 462, 272 A.2d 856 (1970), relied upon by the defendants where the landowners had been granted a variance to use their fourteen-acre tract as a picnic and camping park. The court in that case remanded the case to the trial court for a determination of whether "the renting of spaces by the defendants on their fourteen acre tract for tenting trailers and for camping trailers would constitute such a change in or enlargement of the use of their land for the granted use of a picnic and camping ground as to amount to the substitution of a new and different use."
Yet, a variance by definition grants authority to the owner to use its property in a manner that otherwise contravenes generally-applicable zoning ordinances. See New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856 (1970). In effect, the petitioner argues that any business should be permitted to challenge the validity of any ZBA decision to grant a variance to a competitor.