Accordingly, the court ruled that the ZBA had jurisdiction to hear the appeal pursuant to RSA 674:33, I(a)(1) and RSA 676:5, I. The trial court also rejected SAE's argument that, under Town of Derry v. Simonsen, 117 N.H. 1010, 380 A.2d 1101 (1977), the ZBA's jurisdiction is limited to appeals involving special exceptions and variances. The court observed that, following our decision in Simonsen, the legislature amended RSA 676:5 by defining the types of cases over which zoning boards have jurisdiction and expressly included decisions of an administrative officer involving the construction, interpretation or application of a zoning ordinance.
When we do so, "[t]he entire record [underlying] the ballot question presented to the voters must be considered in ascertaining" voter intent at the time the ordinance was adopted. Town of Derry v. Simonsen, 117 N.H. 1010, 1015, 380 A.2d 1101, 1104 (1977); see also RSA 675:2, :3 (1996 Supp. 1998). As part of this process, the board's construction of the ordinance "is neither conclusive nor binding, but is entitled to consideration." Trottier, 117 N.H. at 150, 370 A.2d at 277.
The law is well established that a nonconforming use is permissible only where it legally exists at the date of the adoption of the zoning ordinance. Town of Derry v. Simonsen, 117 N.H. 1010, 1016, 380 A.2d 1101, 1105 (1977); Arsenault v. Keene, 104 N.H. 356, 358, 187 A.2d 60, 62 (1962). This rule of law is based on the principle that "`[p]rovisions which except existing uses are intended to favor uses which were both existing and lawful, not to aid users who have succeeded in evading previous restrictions.'"
The plaintiffs made application, and when the variance was denied they appealed to the superior court under RSA 677:4. The court first ruled that the ZBA lacked jurisdiction over the matter, citing Town of Derry v. Simonsen, 117 N.H. 1010, 380 A.2d 1101 (1977). It then treated the petition as an appeal under RSA 677:4 from the selectmen's order revoking the permit, ruled the setback requirement inapplicable to the structure, and enjoined the town from seeking its removal.
Therefore, we consider the entire record relating to the ballot question, including the language of the warrant article, in ascertaining the voters' intent. See Town of Derry v. Simonsen, 117 N.H. 1010, 1015, 380 A.2d 1101 (1977). Discontinuance is not favored in the law; once a road is established as a public highway, it is presumed to exist as a public highway until it is discontinued.
The enlargement of such use is carefully limited under the general policy of zoning ordinances. Town of Derry v. Simonsen, 117 N.H. 1010, 1016, 380 A.2d 1101, 1105 (1977). This policy is based on the premise that if nonconforming uses are restricted as to change, expansion, or alteration, they will lose vitality and ultimately will expire.
He attacked the board's action and sought an order that his reparole should become effective as of March 1, 1976, the date on which he first could have requested a hearing, rather than February 24, 1977, the effective date set by the board. Plaintiff's claim that the board violated his statutory rights under RSA 651:45 is deemed waived by his failure to raise and brief the issue on appeal. Ekco Enterprises, Inc. v. Remi Fortin, Inc., 118 N.H. 37, 382 A.2d 368 (1978); Town of Derry v. Simonsen, 117 N.H. 1010, 380 A.2d 1101 (1977). The only issue briefed by the plaintiff is his claim that he was denied due process of law.
All other matters are considered waived. Town of Derry v. Simonsen, 117 N.H. 1010, 380 A.2d 1101 (1977); Concord v. Peerless Ins. Co., 110 N.H. 497, 498, 272 A.2d 588, 589 (1970). The master ruled that Ekco was justified in terminating the contract as to the second and third buildings, but that Fortin was entitled to recover for the first building, which was substantially completed and for which it had already been paid the contract price.