His finding that the use being made of the airport by defendant was beyond the scope of the use granted was also supported by the evidence. See New London v. Leskiewicz, 110 N.H. 462, 272 A.2d 856 (1970). Defendant contends that what he did, he did openly and that the town and the intervenor had four years in which to object.
Such nonconforming uses violate the spirit of zoning, 2 Rathkopf, supra at ch. 62, and they should not be allowed to expand. New London v. Leskiewicz, 110 N.H. 462, 272 A.2d 856 (1970); Arsenault v. Keene, 104 N.H. 356, 187 A.2d 60 (1962); Ackley v. Nashua, 102 N.H. 551, 163 A.2d 6 (1960); Keene v. Blood, 101 N.H. 466, 146 A.2d 262 (1958); 8A McQuillin, Municipal Corporations ss. 25.183, 25.206 (3d ed. 1965 rev. vol.). The nonconforming use ordinarily governed by this law is a static use, a use, such as a store, which might be continued indefinitely without expansion.
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."
There is no doubt that the board has authority to attach reasonable conditions to the granting of the variance. Vlahos Realty Co. v. Little Boar's Head District, 101 N.H. 460, 146 A.2d 257 (1958); New London v. Leskiewicz, 110 N.H. 462, 272 A.2d 856 (1970); 2 A. Rathkopf, The Law of Zoning and Planning 49-1 (1972); see Wilson v. Planning and Zoning Comm'n, 161 Conn. 19, 291 A.2d 230 (1971). Plaintiffs do not question the reasonableness of the conditions as such but claim that they are ineffective and illegal.
See Annot., 87 A.L.R.2d, supra, pp. 15 and 71. See also, New London v. Leskiewicz (1970), 110 N.H. 462, 272 A.2d 856, 860. An additional factor is whether the nonconformity is in the character of the structure itself apart from the use, or in the character of the use apart from the structure.
White Enterprises has acquired the right to continue its prior use which existed on March 9, 1971, when the amendment in question was adopted. New London v. Leskiewicz, 110 N.H. 462, 467, 272 A.2d 856, 859 (1970); Arsenault v. Keene, 104 N.H. 356, 187 A.2d 60 (1962). Defendants Fischer acquired their nine duplex houses in 1970.
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.
Rye, New Hampshire Zoning Ordinance 15(G) (1969). The defendant's principal requests for findings were directed toward establishing a prior inconsistent use. Had he done so, a variance would still have been necessary to avoid the area specifications of the ordinance, id. 15(B), but would not have been material to his ability to use the property for apartments. E.g., New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856, 859-60 (1970). Those requests were denied, and the corresponding exceptions abandoned here.
In deciding whether the current activity is within the scope of the non-conforming use, the Board should have considered the following factors:See New London v. Leskiewicz, 272 A.2d 856 (N.H., 1970); Powers v. Building Inspector of Barnstable, 296 N.E.2d 491 (Mass., 1973); Board of Selectmen of Blackstone v. Tellestone, 348 N.E.2d 110 (Mass. App., 1976). (1) to what extent does the current use of these lots reflect the nature and purpose of the original non-conforming use;
The defendants assert that, although their construction violates zoning set-back provisions and they have not obtained a variance, they are not so altering the use of their structure as to place it outside the protection of RSA 31:62, which permits alterations to a structure as long as it is not used "for a purpose or in a manner substantially different from the use to which it was put before alteration." See New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856, 860 (1970). [1, 2] We agree with the Capanos that the addition of front steps to their house is a permissible alteration.