On Rehearing: After the foregoing opinion was filed, plaintiffs’ motion for rehearing was granted.
Kenison, C.J. The decision of this court dated May 30, 1975, sustained the town of Brentwood board of adjustment’s determination that Haigh Road which has been closed subject to gates and bars *293since 1966 is not a “public right of way” as that term is used in the town zoning ordinance. Brentwood, N.H., Zoning Ordinance art. IV (2) (a) (1972); id. art. XIII (1), (5). The plaintiffs claim the effect of that determination is that they cannot obtain from the town a permit for the construction of a residence on their land. Id.
During the hearing the plaintiffs requested this court to remand the case to the superior court for an opportunity to present evidence that the Brentwood zoning ordinance as applied to them results in a taking of property without just compensation in violation of the State and the Federal Constitutions. U.S. Const, amend. V; N.H. Const, pt. I, art. 12. Since the trial court decided in plaintiffs’ favor, ordering the issuance of a building permit, and this court reversed that decision, the constitutional issue was not raised in the prior proceedings. The crux of the plaintiffs’ contention is that since they will not be able to obtain a building permit for construction on their land, the town ordinance directed at the protection of public health, safety or morals, destroys all or substantially all of the value of their property.
The town of Brentwood maintains, however, that since the plaintiffs purchased their property bordering Haigh Road over three years alter the vote of the town closing the road, they bought the land with constructive or actual knowledge that it was “back land”, i.e. land subject to different restrictions than land in the town bordering recognized public right of ways. According to the town, the zoning ordinance does not deny the plaintiffs all of the uses of their property. Plaintiffs may utilize it for agricultural purposes, or they may petition the town selectmen to lay out a highway in order to reactivate Haigh Road as a “public right of way” within the meaning of the town zoning ordinance. RSA 234:18-a (Lay Out of Class IV, V, VI Highways: Previously Discontinued Highway); RSA 234:19 (Conditional Lay Out). Under the provisions of RSA ch. 234 plaintiffs may have to pay the costs of transforming Haigh Road into a public right of way. It is also the town’s position that the zoning ordinance promotes public health, safety and the general welfare, as well as the “orderly development of the town in a period of rapid growth.”
To adequately resolve the constitutional issue urged by the plaintiffs, answers to three questions not previously raised in this litigation may be needed: (1.) At the time when they purchased the property bordering Haigh Road, did the plaintiffs have actual or constructive notice that they would be prohibited by the town zoning-ordinance from obtaining a permit to build a residence on their *294land?; (2.) Does the town of Brentwood zoning ordinance which prohibits the plaintiffs from building on their property promote public health, safety and the general welfare? See Sibson v. State, 115 N.H. 124, 129, 336 A.2d 239, 241 (1975); (3.) Do the procedures for petitioning the town selectmen to lay out a highway as provided in RSA 234:18-a, : 19 afford a feasible alternative to the plaintiffs in this case?
The case is remanded to the superior court for a hearing which focuses on the above three questions and any other issue raised in the course of trial which directly relates to the plaintiffs’ constitutional contention.
Remanded.
Grimes, J., did not sit; the others concurred.July 31, 1975