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Analysis [¶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 C

Yet, a variance by definition grants authority to the owner to use its property in a manner that otherwise contravenes generally-applicable zoning ordinances.

New London v. Leskiewicz, 110 N.H. 462, 466 (1970) (defining variance as the “authority granted to the owner to use his property in a manner otherwise violative of the zoning regulations”).

Frost, 231 A.2d at 448; see also New London v. Leskiewicz, 110 N.H. 462, 467 (1970).

“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).

The well drilling business predated zoning restrictions prohibiting its existence, and therefore, it operated as a lawful, nonconforming use.

“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).

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.

The landowner who claims a vested right bears the burden of proving all necessary elements establishing that right.

“In other words, a variance is in the nature of a waiver of the strict letter of the zoning ordinance without sacrifice to its spirit and purpose.” New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856, 859 (1970).

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).

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).

at 468, 446 A.2d at 460 (emphasis in original); see New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856, 860 (1970).

shall apply to any alteration of a building for use for a purpose or in a manner substantially different from the use to which it was put before alteration.” RSA 31:62 (emphasis added).

eir 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).

§ 15(B), but would not have been material to his ability to use the property for apartments.

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); Arsenault v. Keene, 104 N.H. 356, 187 A.2d 60 (1962).

Vlahos Realty Co. v. Little Boar’s Head District, 101 N.H. 460, 146 *418 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).

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.

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.

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.