Lead Opinion
Thе petitioner, Stephen E. Forster d/b/a Forster’s Christmas Tree Farm & Gift Shoppe, appeals a decision of the Superior Court {Smukler, J.) upholding the determination by the zoning board of adjustment (ZBA) for the respondent, the Town of Henniker (Town), 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. Because we conclude that the petitioner has not established, as he argues, that he has a right to conduct commercial weddings and similar events on his farm, without obtaining either a special exception or a variance, we affirm.
I. Background
The trial court recited, or the record supports, the following facts. The petitioner owns approximately 110 acres in Henniker on which he operates
The petitioner’s property is in the rural residential district. The Town’s zoning ordinance provides that the rural residential district includes “a mixture of agriculture and low-density rural living outside of the built-up districts of the community where public water and sewer services are not generally available.” The ordinance states that “[t]he low-density open areas complement and encourage agricultural uses that are characteristic of the town.” The ordinance lists agriculture and uses accessory to a permitted use as two of the uses permitted in the district. Uses allowed by special exception include “Home business/retail” and “Bed & Breakfast Homes.” The ordinance also provides that, in the rural residential district, “[n]o more than two home businesses shall be permitted per lot at any one time[,] provided . . . that adequate off-street parking is provided on the premises.”
The zoning ordinance defines the word “agriculture” as: “See New Hampshire Revised Statute Annotated Chapter 21:34-a Farm, Agriculture, Farming.” This definition was added to the ordinance in 2005. A “commercial Christmas tree operation” is included in the definitions of “agriculture” and “farming” pursuant to RSA 21:34-a, II(a)(ll) (2000) (amended 2006, 2008). Accordingly, the petitioner’s Christmas tree farm is a permitted use in the rural residential district.
In addition to operating a Christmas tree farm, the petitioner uses his property for weddings, celebrations, and business and educational events. The petitioner makes his property available for these commercial events between May and October. The venue has a maximum capacity of 150 people. In 2011, the petitioner held eight events; in' 2012, he held five events.
In May 2012, the Town planner issued a notice of violation to the petitioner, informing him that “operating a wedding/reception function facility” is not permitted in the rural residential district. The notice of violation was stayed until Sеptember 4, 2012. On that day, the petitioner appealed the notice of violation to the ZBA.
The ZBA held public hearings upon the petitioner’s appeal in October and November 2012. In November 2012, the ZBA unanimously determined that, contrary to the petitioner’s arguments, weddings and similar events are not accessory uses to his primary agricultural use. However, in a 4-1 decision, the ZBA decided that weddings and civil union ceremonies are allowed in the rural residential district as permitted uses.
Thereafter, the ZBA granted the motions for rehearing filed by the petitioner and the intervenors and, in February 2013, heard the petitioner’s appeal de novo. The petitioner asserted that his permitted proposed uses
II. Discussion
Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City of Somersworth,
A. Whether the Proposed Uses are Permitted in the Rural Residential District
1. Plain Meaning of RSA 21:SJp-a
The petitioner first argues that his proposed uses are permitted uses in the rural residential district because: (1) they constitute “agritourism” undеr RSA 21:34-a, VI (2012); (2) “agritourism” is included in the definition of “agriculture” in RSA 21:34-a (Supp. 2014); and (3) the Town’s ordinance incorporates by reference the definition of “agriculture” in RSA 21:34-a. Alternatively, he asserts that, to the extent that the Town’s ordinance precludes his proposed uses in the rural residential district, the ordinance is impliedly preempted by state law. See Prolerized New England Co. v. City of Manchester,
The interpretation of a statute is a question of law, which we review de novo. Clare v. Town of Hudson,
For the purposes of addressing the petitioner’s arguments, we assume, without deciding, that his proposed uses constitute “agritourism” and that the Town’s ordinance incorporates by reference the definition of “agriculture” contained in RSA 21:34-a. However, we disagree with him that “agritourism” is included in the statutory definition of “agriculture.”
RSA 21:34-a provides:
21:34-a Farm, Agriculture, Farming.
I. The word “farm” means any land, buildings, or structures on or in which agriculture and farming activities are carried out or conducted and shall include the residence or residences of owners, occupants, or employees located on such land ....
II. The words “agriculture” and “farming” mean all operations of a farm, including:
(a)(1) The cultivation, сonservation, and tillage of the soil.
(2) The storage, use of, and spreading of commercial fertilizer, lime, wood ash, sawdust, compost, animal manure, septage, and, where permitted by municipal and state rules and regulations, other lawful soil amendments.
(3) The use of and application of agricultural chemicals.
(4) The raising and sale of livestock ....
(5) The breeding, boarding, raising, training, riding instruction, and selling of equines.
(6) The commercial raising, harvesting, and sale of fresh water fish or other aquaculture products.
(7) The raising, breeding, or sale of poultry or game birds.
(8) The raising of bees.
(9) The raising, breeding, or sale of domesticated strains of fur-bearing animals.
(10) The production of greenhouse crops.
*751 (11) The production, cultivation, growing, harvesting, and sale of any agricultural, floricultural, viticultural, forestry, or horticultural crops including, but not limited to, . . . Christmas trees grown as part of a commercial Christmas tree operation ....
(b) Any practice on the farm incident to, or in conjunction with such farming operations, including, but not necessarily restricted to:
(1) Preparation for market, delivery to storage or to market, or to carriers for transportation to market of any products or materials from the farm.
(2) The transportation to the farm of supplies and materials.
(3) The transportation of farm workers.
(4) Forestry or lumbering operations.
(5) The marketing or selling at wholesale or retail, on-site and off-site, where permitted by local regulations, any products from the farm.
(6) Irrigation of growing crops from private water supplies or public water supplies where not prohibited by state or local rule or regulation.
(7) The use of dogs for herding, working, or guarding livestock, as defined in RSA 21:34-a, 11(a)(4).
(8) The production and storage of compost and the materials necessary to produce compost, whether such materials originate, in whole or in part, from operations of the farm.
III. A farm roadside stand shall remain an agricultural operation and not be considered commercial, provided that at least 35 percent of the product sales in dollar volume is attributable to products рroduced on the farm or farms of the stand owner.
IV. Practices on the farm shall include technologies recommended from time to time by the university of New Hampshire cooperative extension, the New Hampshire department of agriculture, markets, and food, and appropriate agencies of the United States Department of Agriculture.
V. The term “farmers’ market” means an event or series of events at which 2 or more vendors of agricultural commodities gather for purposes of offering for sale such commodities to the public. Commodities offered for sale must include, but are not limited to,*752 products of agriculture, as defined in paragraphs I-IV. “Farmers’ market” shall not include any event held upon any premises owned, leased, or otherwise controlled by any individual vendor selling therein.
VI. The term “agritourism” means attracting visitors to a working farm for the purpose of eating a meal, making overnight stays, enjoyment of the fаrm environment, education on farm operations, or active involvement in the activity of the farm which is ancillary to the farm operation.
(Emphases added.)
The statute defines the words “farm,” “agriculture,” “farming,” “farmers’ market,” and “agritourism.” Paragraph I defines “farm.” Under that paragraph, “farm” refers to the “land, buildings, or structures” on which “agriculture and farming” take place. RSA21:34-a, I. Paragraph II defines “agriculture” and “farming.” It consists of two subparts. Subpart (a) explains that the two words “mean all operations of a farm” and subpart (b) explains that they also refer to “[a]ny practice on the farm” that is incidental to or conducted “in conjunction with” farm operations. Although growing “Christmas trees ... as part of a commercial Christmas tree operation” is listed as a farm operation under subpart (a), hosting events such as those the petitioner proposes is not. RSA 21:34-a, 11(a).
Hosting such events also is not included in subpart (b) as a practice incidental to farming operations. Although subpаrt (b) states that its list of practices is not all inclusive, under the principle of ejusdem generis, we construe the general words in that subpart (“[a]ny practice on the farm incident to, or in conjunction with such farming operations”) to embrace only practices similar to those included in the enumerated list. See In the Matter of Hennessey-Martin & Whitney,
Paragraph III of the statute pertains to “farm roadside stand[s]” and provides that they are deemed to be “agricultural operation[s]” provided that “at least 35 percent of the product sales in dollar volume is attributable to products produced on the farm or farms of the stand owner.” RSA 21:34-a, III. Otherwise, farm roadside stands are deemed to be commercial operations. See id.
Paragraph IV provides that “[practices on the farm shall include technologies” recommended by certain entities. Thus, under parаgraph IV, such technologies are among the practices included in Paragraph 11(b).
Paragraph V pertains to farmers’ markets. Pursuant to this paragraph, to be a “farmers’ market,” the event or series of events must have “2 or
Paragraph VI defines the term “agritourism.” Pursuant to this paragraph, 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.” RSA 21:34-a, VI. However, nothing in this definition provides that activities that constitute “agritourism” also constitute “agriculture.” See RSA 21:34-a, II, VI.
Accordingly, even if we assume that the petitioner’s proposed uses constitute “agritourism,” the plain meaning of RSA 21:34'-a does not provide that they also constitute “agriculture.” Of course, if the legislature disagrees with our statutory interpretation, it is free to amend the statute as it sees fit. See Appeal of Town of Nottingham,
The petitioner contends that RSA 674:44-e (2008) evinces legislative intent to include “agritourism” within the definition of “agriculture.” His reliance upon RSA 674:44-e is misplaced. RSA 674:44-e provides:
An agricultural commission may be established in accordance with RSA 673 for the proper recognition, promotion, enhancement, encouragement, use, management, and protection of agriculture and agricultural resources, tangible or intangible, that are valued for their economic, aesthetic, cultural, historic, or community significance within their natural, built, or cultural contexts. The word ‘agriculture’ shall include the entirety of RSA 21:34-a, which is the definition of farm, agriсulture, and farming.
The statute applies when a town establishes an agricultural commission. Under that statute, the legislature has authorized municipal agricultural commissions to advance “agriculture,” broadly defined to include “the entirety of RSA 21:34-a.” However, RSA 674:44-e does not change the plain meaning of RSA 21:34-a. As we have previously discussed, RSA 21:34-a does not include “agritourism” in the definition of “agriculture.”
2. Legislative History of RSA 21:3b-a
Because we conclude that, pursuant to its plain language, RSA 21:34-a does not include “agritourism” in its definition of “agriculture,” we need not
Paragraph VI of RSA 21:34-a, which defines “agritourism,” was added to RSA 21:34-a in 2007, pursuant to House Bill (HB) 56. See Laws 2007, ch. 157. As introduced, HB 56 defined “agritourism” as “attracting visitors to farm operations for the purpose of eating a meal, making overnight stays, enjoyment, education, or active involvement in the activity of the farm or operation.” HOUSE BILL 56 available at http://gencourt.state.nh.us/SofS_ Archives/2007/house/HB56H.pdf. Thereafter, the House Committee on Resources, Recreation and Development recommended amending HB 56 to define “agritourism” as “attracting visitors to farm operations for the purpose of eating a meal, making overnight stays, enjoyment, education, or active involvement that is ancillary to the activity of the farm or operation, and as such shall be considered an agricultural use!’ N.H.H.R. JOUR. 107 (2007) (emphasis added). The committee explained that the intent of HB 56, as amended, was to “define[ ] agritourism as those ancillary farm activities, such as wagon rides and[/]or mazes, used to attract visitors to farms.” Id. According to the committee, the intent of the bill was “to recognize that today’s farms need to engage in a diversity of agriculturally[-]related activities to survive.” Id. The committee reported that the bill had “little impact on a municipality’s zoning powers over land uses on farms.” Id. The House approved the amended version of HB 56. Id. at 120.
In the Senate, the bill, as amended by the House, was referred to the Senate Committee on Energy, Environment and Economic Development. N.H.S. JOUR. 269 (2007). At the public hearing before the Senate committee, Representative Jim Martin spoke against the amended bill, explaining that he was concerned that the House had added the phrase “and as such shall be considered an agricultural use.” See RELATIVE TO THE DEFINITION .of Agritourism: Hearing on H.B. 56 Before the Sen. Comm, on Energy, ENV’T AND ECON. dev. 14 (Apr. 10, 2007) (statement of Rep. Jim Martin), available at http://gencourt.state.nh.us/SofS_Archives/2007/senate/HB56S.pdf. He explained:
The problem is that “agricultural use” is a term of art in zoning and in land use. When towns zone, they zone for uses; they zone industrial uses, they zone commercial uses, residential uses, and agricultural uses. And Brookfield is zoned, as Senator Kenney said, entirely residential/agricultural. And we rely on the definitions that are in the statute that you have before you: [RSA] 21:34-a. So we think we know what “agriculture” means, all right, ‘cause it’s well definеd. But this, in my view, and the pernicious effect of this, and I don’t think it was intended, but the effect of*755 this I think is to preempt all local zoning ordinances. Because this now says restaurants and motels, hotels are agricultural uses permitted in any agricultural zone. And I think we should not do that.
Id. at 15. Representative Martin suggested that, to address his concern, the phrase “and as such, shall be considered an agricultural use” be deleted from the bill. Id. at 16. He observed that when the bill was first introduced, it did not include this phrase, and “pretty accurately copied . . . Recommendation 5, Proposal 5” from the report of the New Hampshire Farm Viability Task Force. Id. He observed that the “[mistake] came in ... when they made all these things agricultural uses.” Id. In his opinion, doing so created “a real problem.” Id.
A representative from the New Hampshire Municipal Association agreed with Representative Martin’s concern and with his suggestion of eliminating the phrase “and as such shall be considered an agricultural use.” See id. at 18 (statemеnt of Judy Silva, New Hampshire Municipal Association). She stated that, in her opinion, “if you have something that is defining something as an agricultural use, I think you are going to, in some people’s minds, be automatically including that in that zone...” Id. The chair of the committee stated that the committee expected the representative from the New Hampshire Municipal Association to recommend “some slightly different language that would address and answer” the concerns raised. Id.
After the hearing, the committee proposed an amendment to HB 56 pursuant to which “agritourism” would be defined as “attracting 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 which is ancillary to the farm operation.” N.H.S. JOUR. 795 (2007). As proposed by the committee, HB 56 would no longer state that “agritourism,” as defined in that bill, “shall be considered an ‘agricultural use.’ ” Id. Senator Bob Odell explained that the amendment “was deemed necessary after concerns were raised [about] original language that classified agritourism as an agricultural use, a phrase that could cause local zoning problems.” Id. The Senate approved the proposed amendment. Id. at 796. The House then concurred in the Senate amendment, see N.H.H.R. Jour. 866 (2007), and the amended bill was signed into law by the Governor and enacted as RSA 21:34-a, VI. See Laws 2007, ch. 157.
Although the petitioner relies, in part, upon a February 7, 2013 letter written to the ZBA by Senator Odell regarding his opinion, in 2013, about the intent of the Senate committee in 2007, the letter is not part of the legislative history of HB 56, and, thus, is not evidence of legislative intent.
The legislative history of HB 56 reveals that the legislature considered, but ultimately rejected, the notion that “agritourism,” as defined by RSA 21:34-a, VI, constitutes “agriculture” within the meaning of RSA 21:34-a, II. See SINGER & SINGER, supra § 48:4, at 563-64 (“[Wjhere the language under question was rejected by the legislature and thus not contained in the statute it provides an indication that the legislature did not want the issue considered.”). Thus, the legislative history demonstrates that the plain language of the statute is in accord with the legislature’s intent.
•■3. Implied Preemption
“The preemption doctrine flows from the principle that municipal legislation is invalid if it is repugnant to, or inconsistent with, State law.” Town of Carroll v. Rines,
The petitioner argues that the Town’s ordinance is impliedly preempted because, in prohibiting his proposed uses, which hе contends meet the statutory definition of “agritourism,” the ordinance frustrates the purpose of RSA 21:34-a, VI, which, he asserts, is to “creat[e] a uniform understand
RSA 21:34-a is a set of definitions, not a comprehensive statutory scheme aimed at superseding local regulation. Cf. Bio Energy v. Town of Hopkinton,
Although the petitioner relies upon other statutes which, unlike RSA 21:34-a, do contаin some mandates to municipalities, those statutes do not use the word “agritourism.” See RSA 674:17, I(i) (Supp. 2014); RSA 672:1, Ill-b (2008), Ill-d (Supp. 2014); RSA 674:32-a (2008). RSA 674:17, I(i) merely requires that zoning ordinances “encourage” the preservation of agricultural lands and buildings and the “agricultural operations described in RSA 21:34-a.” See RSA 21:34-a, II (defining agricultural operations). RSA 672:1, IH-b precludes municipalities from unreasonably limiting “[a]gricultural activities” and from unreasonably interpreting their municipal powers. RSA 672:1, Ill-d explains that a, municipality unreasonably interprets its regulatory powers when it fails “to recognize that agriculture ... when practiced in accordance with applicable laws and regulations, [is a] traditional, fundamental and accessory use[ ] of land throughout New Hampshire, and that a prohibition upon [that] use[ ] cannot necessarily be inferred from the failure of an ordinance ... to address [it].” Consistent
None of these statutes support the petitioner’s contention that the legislature intended to require municipalities to allow “agritourism” within their borders. At most, they evince the legislature’s general intent to support traditional agriculture and agricultural activities. Moreover, they demonstrate legislative intent to allow reasonable local regulation, not to preempt the entire field. Accordingly, should Town voters want to allow the petitioner’s proposed uses in the rural residential district, they are free to amend the Town’s ordinance as they see fit.
B. Whether the Proposed Uses are Accessory Uses
Alternatively, thе petitioner asserts that his proposed uses are accessory uses under the ordinance. “An accessory use is not the principal use of the property, but rather a use occasioned by the principal use and subordinate to it.” Fox v. Town of Greenland,
Although we have previously stated that whether a proposed use constitutes an accessory use is a question of law for us to decide, we have recently clarified that it is, in fact, a mixed question of fact and law. See Bartlett v. City of Manchester,
Here, the petitioner failed to establish that his proposed uses have “commonly, habitually and by long practice been established as reasonably associated with the primary ... use” in the local area. Becker,
Assuming, without deciding, that all of the petitioner’s evidence was relevant, we conclude that it was insufficient to establish that his proposed uses have “commonly, habitually and by long practice been established as reasonably associated” in the local area with farming in general, or Christmas tree farming in particular. Id. At best, the petitioner demonstrated that, out of the approximately 4,200 farms in New Hampshire, only nine or ten farms (other than his) host commercial events similar to his proposed uses. Only one of those farms is a Christmas tree farm, like the petitioner’s farm, and that farm is located in Bethlehem, which is approximately 100 miles from Henniker. Additionally, according to the petitioner’s typewritten list, there are only a handful of farms in other northern New England states that host events similar to those which he hosts (one farm in Vermont, one farm in Maine, and five farms in Massachusetts). With regard to all of the farms about which he presented evidence, the petitioner did not submit the zoning regulations under which those farms operate and presented no proof that the subject uses are deemed to be accessory uses in the communities in which the farms are located.
Affirmed.
Dissenting Opinion
dissenting. It is abundantly clear that none of my four cоlleagues have spent a summer in East Colebrook, an area where weddings on farms are customary. Today, the majority holds that the trial court properly determined that hosting weddings and like events is not a permitted use in Henniker’s rural residential district. The majority offers two separate and independent rationales for its decision: first, that both the plain language and legislative history of RSA 21:34-a (2012) fail to demonstrate a legislative intent to include “agritourism” in the statutory definition of “agriculture”; and second, that the proposed use is not an accessory use to the petitioner’s farm. Because I disagree with the majority, under both rationales, I would reverse the trial court’s decision. Therefore, I respectfully dissent.
Addressing the majority’s interpretation of RSA 21:34-a first, I would conclude that the language of the statute that defines “agriculture” is ambiguous, at best. Given its placement in a statute titled “Farm, Agriculture, Farming,” which exclusively defines farming and аgricultural practices, it seems unlikely that the legislature would include the definition of “agritourism” without intending it to be considered part of farming or agriculture. See RSA 21:34-a. This conclusion is strengthened from the fact that the definition of “agritourism” includes certain activities that would constitute agriculture. See RSA 21:34-a, VI. For example, the statute defines “agritourism” to include “attracting visitors to a working farm for the purpose of . . . active involvement in the activity of the farm which is ancillary to the farm operation.” Id. Paragraph II of RSA 21:34-a defines the activities and practices which constitute agriculture and includes “all operations of a farm” as the basis for those definitions. RSA 21:34-a, II (2012). Therefore, any agritourism activity that is “ancillary to the farm operation” would constitute agriculture pursuant to paragraph II, especially such activities that require “active involvement in the activity of the farm.” RSA 21:34-a, II, VI (2012). Nevertheless, I recognize that the majority’s interpretation of the statute is also reasonable and, thus, to
When we interpret statutes, we do so “in light of the policy or purpose sought to be advanced by the statutory scheme.” Montenegro v. City of Dover,
The Task Force made three findings relevant to the issue of agritourism: (1) “farmers can’t be expected to continue to operate viable farm businesses if the economically sensible behavior is to sell the land,” CULTIVATING SUCCESS, supra at 9; (2) “farm businesses that have been able to sell innovative products[, processes, or services] have seen greater growth opportunities,” CULTIVATING SUCCESS, supra at 8; and (3) “[t]oday’s . . . farmers now face [the challenges of] the vagaries of local zoning boards, failure to be compensated for the public benefit they provide to the environment, and uncertain regulatory barriers,” CULTIVATING SUCCESS, supra at 10. To address the concerns raised by these findings, the Task Force recommended “[r]emov[ing] rules and regulations burdensome to agriculture” and adopting “[a] uniform definition of farming (as best described in RSA 21:34-a) that is consistent throughout state law and used by local land use boards.” Id. at 36-37. Adding a definition of “agritourism”
Including “agritourism” in the definition of “agriculture” does not mean, however, that the petitioner automatically prevails. Although the majority avoids the question of whether the petitioner’s proposed activities constitute agritourism, for the petitioner to succeed he must demonstrate that his proposed uses fall within that definition. Paragraph VI of RSA 21:34-a includes as agritourism “enjoymеnt of the farm environment.” RSA 21:34-a, VI. Frankly, I fail to see how hosting a wedding or any event in a tent overlooking or within the Christmas tree grove fails to constitute “enjoyment of the farm environment,” especially when the petitioner goes to great lengths to incorporate elements of the farm into the space through such acts as using an altar made of balsam fir boughs. To the extent that the respondent and intervenors may argue that the income produced by the events exceeds that of the Christmas tree farm itself, I conclude that argument is irrelevant as it is not addressed by the statute and the legislature explicitly declined to craft such limitations. See id.; HEARING ON H.B. 56, supra at 19-20 (declining to define a limit to agritourism activities). Nor does the statute prohibit the State or a municipality from enforcing generally applicable laws and ordinances governing such issues as noise, parking, or safety. HEARING ON H.B. 56, supra at 3-4 (statement of Sen. Joseph Kenney). Thus, I conclude that RSA 21:34-a inсludes agritourism as part of the definition of agriculture and that the petitioner’s proposed activities constitute agritourism. Accordingly, I would reverse the decision of the trial court on this basis.
The accessory use doctrine functions as a response to the impossibility of providing expressly by zoning ordinance for every possible lawful use. Town of Salem v. Durrett,
Commentators have concluded that “[i]n determining whether a use is customary, courts may examine the entire community, or the general region, or even nationwide trends in an industry.” 2 E. Yokley, ZONING Law and Practice § 8-3, at 8-5 (4th ed. 2009) (footnotes omitted); see also 7 P. Rohan, Zoning and Land Use Controls § 40A.03[3][c][iii], at 40A-32 (2012). Some jurisdictions, in fact, determine whether a proposed accessory use is customary using any of the three potential geographic limitations, without any particular rationale behind the choice. Compare, e.g., Appeal of Lord,
In Durrett, the issue was whether “use of an airstrip was ... customarily associated with residential use.” Durrett,
In Alfond, the issue was whether “use of... residentially zoned property for the stabling and pasturing of horses kept for . . . personal recreation” constituted an accessory use. Alfond,
Furthermore, I believe limiting the inquiry to only the local area defies the very purpose behind the accessory use doctrine. Limiting the custom
The difficulty with the requirement that a use be customаry is that, literally applied, it would-establish a class closed to uses not in existence at the time of the enactment of the ordinance. . ..
Yet this narrow view of the customary requirement is not necessarily the one intended. . . . The purpose in choosing the word “customary” seems to have been evidentiary. It was designed to give examples of the kinds of uses that were acceptable but not necessarily to close the class of possible uses.
Id. § 40A.03[3][a], at 40A-26 to 40A-27; see also 2 E. ZIEGLER, JR., Rathkopf’s the Law of Zoning and Planning § 33.3, at 33-12 (2012) (“Naturally, the perception of which accessory uses are considered ‘customary’ changes with the times.”); Dellwood Dairy Co. v. City of New Rochelle,
Rejecting this limitation, however, does not change the requirement that “the uses must be associated with a frequency that is substantial enough to rise above rarity.” Alfond,
Furthermore, the record reflects that agritourism, generally, is “associated with a frequency that is substantial enough to rise above rarity.” Id. The 2007 United States Census of Agriculture found that across the country 23,350 farms indicated that they provided agritourism and recreation services valued at $566 million.
Within New Hampshire, Director Jellie, in her testimony before the Senate committee, cited a recent study conducted by Plymouth Statе University which found that “about a third of agriculture’s total $935 million contribution to New Hampshire’s economy is due to agritourism activities.” HEARING ON H.B. 56, supra at 6. This substantial relationship between agriculture and agritourism in both New Hampshire and across the country is sufficient to conclude that agritourism activities occur “with a frequency that is substantial enough to rise above rarity.” Alfond,
This result would not provide the petitioner with a free hand to operate an event-hosting business under the false premise of a Christmas tree farm, as many throughout the proceedings in this case have alleged. Under the accessory use doctrine, an accessory use must be subordinate to the primary use. See Fox,
For these reasons, I respectfully dissent.
Notes
The original language proposed by the Task Force was “Agritourism: based on attracting visitors to farm operations for the purpose of eating a meal, making overnight stays, enjoyment, education or active involvement in the activity of the farm or operation.” Cultivating Success, supra at 41.
Although it is not in the record before us, I note that the 2012 Census of Agriculture found that agritourism has increased across the country with 33,161 farms providing agritourism and recreation services valued at $704 million. 1 United States Department of Agriculture, 2012 CENSUS OF Agriculture 15 (2014) (table of income from farm-related sources).