Stephen E. Forster d/b/a Forster's Christmas Tree Farm & Gift Shoppe v. Town of Henniker
167 N.H. 745
| N.H. | 2015Background
- Petitioner Stephen Forster operates a 110-acre commercial Christmas tree farm in Henniker (trees on ~10 acres) and hosts commercial events (weddings, celebrations, retreats) May–October with capacity up to 150; held multiple events in 2011–2012.
- Property is zoned Rural Residential; ordinance permits "agriculture" and accessory uses, and allows some uses by special exception (e.g., home businesses, B&Bs).
- Town adopted a 2005 ordinance definition incorporating RSA 21:34-a; RSA 21:34-a includes commercial Christmas tree operations in the statutory definition of agriculture and separately defines "agritourism."
- Town planner issued a notice of violation (wedding/reception facility not permitted); ZBA initially split but ultimately concluded events were not accessory uses and not permitted in the district; ZBA decision upheld by superior court.
- Petitioner appealed arguing (1) his events constitute "agritourism" which the statute and ordinance incorporate as "agriculture," preempting the zoning restriction, and (2) events are accessory uses to his farm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "agritourism" as defined in RSA 21:34-a is encompassed within the statutory definition of "agriculture" (and thus a permitted use under local ordinance that incorporates RSA 21:34-a) | Forster: agritourism falls within RSA 21:34-a's definition of agriculture and the Town's incorporation of RSA 21:34-a makes his events permitted | Town: statute defines agriculture separately from agritourism; RSA 21:34-a VI does not convert agritourism into agriculture; legislative history shows removal of language that would have made agritourism an "agricultural use" | Held for Town: plain language and legislative history show agritourism is defined separately and not automatically part of "agriculture." |
| Whether RSA 21:34-a (or related statutes) impliedly preempt local zoning from restricting agritourism activities | Forster: the definition and policy behind agritourism indicate legislative intent to give farmers broad latitude and create uniform application across municipalities, so local bans are preempted | Town: RSA 21:34-a is definitional only and contains no municipal mandates; other statutes cited do not require municipalities to permit agritourism; state law does not comprehensively occupy the field | Held for Town: no implied preemption; RSA 21:34-a contains no mandate displacing local zoning and does not conflict with the ordinance. |
| Whether hosting weddings and similar events on the farm are accessory uses under the Town ordinance | Forster: events are ancillary to farm operation and thus customary accessory uses; evidence of other farms doing events supports customary practice | Town: accessory use requires customary, subordinate, incidental relationship; petitioner’s evidence of a small number of out-of-area farms was insufficient to show customary local practice or subordinate nature | Held for Town: petitioner failed to prove events are "customarily" associated or sufficiently frequent locally; events are not accessory uses. |
| Standard of review / burden of proof for accessory-use claim on appeal | Forster: contends entitlement to accessory-use ruling as matter of law | Town: factual findings by ZBA entitled to deference; petitioner bears burden to prove accessory use | Held: accessory-use determination is mixed fact and law; petitioner bears burden and failed to meet it; ZBA findings upheld absent legal error. |
Key Cases Cited
- Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553 (explains deference to ZBA factual findings and standard of review)
- Appeal of Town of Nottingham, 153 N.H. 539 (legislature may amend statute if it disagrees with statutory construction)
- Bio Energy v. Town of Hopkinton, 153 N.H. 145 (example of a comprehensive state scheme that can preempt local regulation)
- Bartlett v. City of Manchester, 164 N.H. 634 (accessory-use determinations are mixed questions of law and fact)
- Fox v. Town of Greenland, 151 N.H. 600 (defines accessory use as subordinate and incidental)
- Becker v. Town of Hampton Falls, 117 N.H. 437 (discusses customary/incidental/subordinate elements of accessory use)
- Town of Windham v. Alfond, 129 N.H. 24 (courts may consider regional changes and customs in accessory-use analysis)
- KSC Realty Trust v. Town of Freedom, 146 N.H. 271 (accessory-use subordinate requirement can change with circumstances)
- Town of Carroll v. Rines, 164 N.H. 523 (principles on express and implied preemption of municipal legislation)