There is no hard and fast rule to determine when an improvement amounts to an extension of a nonconforming use or a change in use. See Santoro v. Zoning Board of Review of Warren, 93 R.I. 68, 72, 171 A.2d 75, 77 (1961). "Each case must be considered and determined on its own facts."
'"Ordinarily a mere increase in the amount of business done in pursuance of a nonconforming use, or a change in the equipment used, does not constitute a change of the use itself."' Cohen, 970 A.2d at 565 (quoting Santoro v. Zoning Bd. of Review of Town of Warren, 93 R.I. 68, 71, 171 A.2d 75, 77 (1961) (quoting Salerni v. Scheuy, 140 Conn. 566, 102 A.2d 528, 530 (1954))). Our Supreme Court has also noted that "it is impossible to formulate a hard and fast rule as to what constitutes a simple extension of an existing nonconforming use and what is a change of that use.
There is no "hard and fast rule as to what constitutes a simple extension of an existing nonconforming use and what is a change of that use." Santoro v. Zoning Bd. of Review, 93 R.I. 68, 71, 171 A.2d 75, 77 (1961). "An extension of a nonconforming use may be of such proportions as to amount to a change in use."
Rather, "[e]ach case must be considered and determined on its own facts." Id. (citing Santoro v. Zoning Bd. of Review of Warren, 93 R.I. 68, 72, 171 A.2d 75, 77 (1961)). Our Supreme Court further noted that an extension typically involves construction of a new building, an addition to a building, an extension in the area devoted to the use, or a significant physical change in the structure that accommodates the nonconforming use.
"'A change of use eliminates the exemption of a nonconforming use from recently enacted zoning ordinances.'" Harmel Corp. v. Zoning Board of Review of Tiverton, 603 A.2d 303, 306 (R.I. 1992); see Santoro v. Zoning Board of Review of Warren, 93 R.I. 68, 71-72, 171 A.2d 75, 77-78 (1961). The town, however, never has alleged that the defendants changed their nonconforming use and thereby eliminated its exemption as a nonconforming campground use.
The determination of whether the use challenged is substantially the same kind of use as that which was originally obtained is necessarily based in large measure on the facts and circumstances of the particular case. Santoro v. Zoning Bd. of Review, 93 R.I. 68, 171 A.2d 75 (1961); 101 C.J.S. Zoning s. 191 (1958); Annot., 87 A.L.R.2d 4, 9 (1963). 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.
‘Each case must be considered and determined on its own facts.’ " Cohen v. Duncan , 970 A.2d 550, 564 (R.I. 2009) (citation omitted) (quoting Santoro v. Zoning Bd. of Review of Warren , 93 R.I. 68, 171 A.2d 75, 77 (1961) )."Expansion of a nonconforming use means expansion of the nonconforming features of the building in which the use is being operated."
Whether a nonconforming use has been expanded or enlarged is dependent upon the facts of each case. Santoro v. Zoning Bd. of Review of the Town of Warren, 93 R.I. 68, 72, 171 A.2d 75, 77 (1961). Generally, a physical expansion into land not previously utilized for the nonconformity constitutes an expansion of a nonconforming use.
Each case must be considered and determined on its own facts." Santoro v. Zoning Bd. of Review, 93 R.I. 68, 72 (R.I. 1961). Additionally, R.I.G.L. 45-24-40 provides that a zoning ordinance:
For example, in Santoro v. Zoning Board of Review, the owner of a nonconforming grocery store and gasoline outlet applied for a permit to build a replacement facility and add one or two gas pumps. 171 A.2d 75, 91 R.I. 68 (1961). The building inspector denied her application, and the Zoning Board upheld the decision.