[¶ 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.)
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.
Accordingly, in the absence of a variance, excavation in the R–B district is generally prohibited. See New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856 (1970) (defining variance as the "authority granted to the owner to use his property in a manner otherwise violative of the zoning regulations"). Nor is the variance requirement limited to gravel pits, as asserted by the respondent.
"The fact that improved and more efficient or different instrumentalities are used in the operation of the use" does not change the use when the nature and purpose of the use remains the same and the instrumentalities merely make the use available to the owners. New London v. Leskiewicz, 110 N.H. 462, 272 A.2d 856, 860 (1970) (remanding case for consideration whether renting camping spaces to trailers enlarged or changed the use of picnic and camping park); see also People v. Emigrant Industrial Savings Bank, 261 A.D. 402, 404-05, 25 N.Y.S.2d 605 (1941) (removal of building formerly storing automobiles and subsequent clearing of land for parking automobiles is not a change in use). Adding new paving, providing for runoff, and installing lights and walkways are all related to Newport's safety and maintenance concerns as set forth in the ordinances pertaining to development plan review procedure.
We are mindful that, in determining whether an activity is within the scope of a permitted nonconforming use, consideration must be given to the particular facts of the case, the terms of the particular ordinance, and the effect that the increased use will have on other property. Frost, 231 A.2d at 448; see also New London v. Leskiewicz, 110 N.H. 462, 467, 272 A.2d 856 (1970). The trial court properly applied the town's zoning ordinance in determining that in this particular case, a change from seasonal to year-round occupancy did not constitute a substantial change.
"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 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.
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.
05 (special exception provided for by ordinance is a permitted use when approved). Strictly speaking, then, the trial court erred in applying the review standard appropriate to the scope of variances or nonconforming uses, see New London v. Leskiewicz, 110 N.H. 462, 466-67, 272 A.2d 856, 860 (1970), which circumscribes more narrowly the permissible use of property. [1] The trial court made extensive findings of fact in its narrative order.
See Cohen, 134 N.H. at 427, 593 A.2d at 1147 (standard for reviewing nonconforming uses). The landowner who claims a vested right bears the burden of proving all necessary elements establishing that right. New London v. Leskiewicz, 110 N.H. 462, 467, 272 A.2d 856, 860 (1970). We uphold the trial court's findings of fact unless (1) the trial court did not properly defer to the ZBA's fact finding, see RSA 677:6 (1986), or (2) its findings are unsupported by the evidence, see Cohen, 134 N.H. at 426, 593 A.2d at 1146.