The petitioner, Stephen E. Forster d/b/a Forster’s Christmas Tree Farm & Gift Shoppe, owned approximately 110 acres in Henniker on which he operated a commercial Christmas tree farm. His Christmas trees occupied approximately 10 acres of the farm. The intervenors, Stephen and Spencer Bennett, owned property that abuts the petitioner’s property. In this case, Forster appealed a decision of the Superior Court upholding the determination by the zoning board of adjustment for the respondent, the Town of Henniker, that “weddings and like events are not accessory uses” to the petitioner’s farm and that hosting such events is not a permitted use in the farm’s zoning district. Forster argued, that he had a right to conduct commercial weddings and similar events on his farm, without obtaining either a special exception or a variance.
The petitioner first argued that his proposed uses were permitted uses in the rural residential district because they constituted “agritourism.” Here, although growing “Christmas trees … as part of a commercial Christmas tree operation” was listed as a farm operation under subpart (a), hosting events such as those the petitioner proposed was not. Furthermore, pursuant to the statute, to constitute “agritourism,” the activity must “attract visitors to a working farm for the purpose of eating a meal, making overnight stays, enjoyment of the farm environment, education on farm operations, or active involvement in the activity of the farm,” and an activity must be “ancillary to the farm operation.” The court found that nothing in this definition provided that activities that constitute “agritourism” also constituted “agriculture.”
The petitioner next argued that the Town’s ordinance is impliedly preempted because, in prohibiting his proposed use of “agritourism”, the ordinance frustrated the purpose of RSA 21:34–a, VI, which he asserted was to “create a uniform understanding of the term and a uniform application of that term across the state to enhance the economic viability of New Hampshire farms.” However, the RSA 674:32– provided that when “agricultural activities are not explicitly addressed with respect to any zoning district or location, they shall be deemed to be permitted there, as either a primary or accessory use, so long as conducted in accordance with … federal and state laws, regulations, and rules.” Thus, the court rejected the petitioner’s argument that just because an ordinance failed to address a use an inference could be made that the ordinance prohibited that use.
Finally, the court examined whether the proposed uses were accessory uses under the ordinance. Here, the petitioner failed to establish that his proposed uses had “commonly, habitually and by long practice been established as reasonably associated with the primary use” in the local area. Accordingly, the court found the uses were not accessory uses, and therefore affirmed the ZBA’s determination.
Forster v Town of Henniker, 2015 WL 3638597 (NH 6/12/2015)
The opinion can be accessed at: http://law.justia.com/cases/new-hampshire/supreme-court/2015/2013-089.html