Forster v. Town of Henniker: Agritourism and New Hampshire’s Changing Farms

Back in 2006, the New Hampshire Legislature faced a growing issue: the decline of rural farms due to growing demands for farmers to sell their lands, regulation, and the need to diversify agricultural services. In response to these challenges, in 2007, the legislature enacted House Bill 56, with the intent to promote the growth of agriculture in the State. As part of House Bill 56, the legislature amended RSA 21:34-a, which defines the word “agriculture” and in doing so defined the word “agritourism.” The statute defines “agritourism” 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.” Several communities from Haverhill to Hollis and from Newport to North Hampton incorporate the statutory definition of “agriculture” in their own land use regulations. The issue is whether the Legislature’s 2007 amendment to RSA 21:34-a now incorporates “agritourism” as an “agricultural use” in the land use regulations of those communities that adopted the State’s definition of “agriculture” under RSA 21:34-a.

In Forster v. Town of Henniker, the New Hampshire Supreme Court addressed this issue. There, the Town of Henniker’s Zoning Ordinance permitted “agricultural uses” and incorporated the State’s definition of “agriculture” under RSA 21:34-a. A Christmas tree farm, which in addition to providing Balsam Firs and the like, hosted weddings and celebrations, as well as business and educational events, claimed that these additional services were permitted because the definition of “agriculture” includes “agritourism,” or, at the least, the additional services were an “accessory use” to the farm’s permitted agricultural operations. The Town disagreed and issued a cease and desist order on the farm. The farm appealed to the Zoning Board of Adjustment claiming the additional services were permitted. The ZBA disagreed, as did the Superior Court, both of which found that “agritourism” was not a permitted “agricultural” use or “accessory use.”

On appeal, the Supreme Court addressed two questions: (1) whether “agritourism” is included in the definition of “agriculture” under RSA 21:34-a and (2) whether “agritourism” is an “accessory use” to a permitted “agricultural use.”

The Supreme Court held that “agritourism” was not included in the definition of “agriculture” under RSA 21:34-a. The Court first noted that the definition of “agriculture” under RSA 21:34-a not only included “operations of a farm,” but also encompassed practices “incident to” and “in conjunction with” farming operations. The Court next noted that RSA 21:34-a provided examples of what “incident to” and “in conjunction with” farming operations meant, examples of which being irrigation, transportation of workers, herding activities with dogs, and storage of compost. The Court, however, concluded that (a) “agritourism” was not an “operation of a farm” and (b) was not incident to or in conjunction with” farm activities, specifically because “agritourism” was of a different flavor from the examples provided in the statute. Therefore, “agritourism” was not included in the definition of “agriculture” and would not be deemed a permitted “agricultural use” in an agricultural zone under the Town’s zoning ordinance. The Court buttressed its conclusion by looking to the comments of local state legislators at the time the definition of “agritourism” was enacted into RSA 21:34-a, observing that there was a clear sentiment that “agritourism” was not to be included in the definition of “agriculture” since it would interfere with the various communities that had already incorporated RSA 21:34-a’s definition of “agriculture” in their zoning ordinances.

The Supreme Court also addressed whether “agritourism” was an “accessory use” to a permitted “agricultural use” like a tree farm. An accessory use is not the principle use, but is a use that is allowed due to its relationship with a principle use. It is a “use subordinate and customarily incidental to the main use on the same lot.” To prove that a permitted “accessory use” exists, the farm had to prove that the use of the farm for weddings and other occasions was “customary,” or “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.”

The ZBA, the Superior Court, and ultimately, the Supreme Court found that the evidence on this point was lacking. Specifically, the Supreme Court took issue with the farm’s evidence, which was limited to a typewritten list of northern New England farms that held similar functions, brochures from nine farms that engage in similar activities as the farm, and the testimony of two regionally proximate farms. The Court noted that there are over 4,200 farms in New Hampshire, and the fact that nine or ten farms held some form of function was insufficient to show that this type of “agritourism” was “customary.” The Court also observed that the evidence did not reveal how those other farms were allowed to provide functions, i.e. via a variance, special exception, etc., or whether the other farms provided their function services as part of a valid accessory use. Simply put, the evidence was insufficient for the farm to prove its claims.

There are three broad impacts of the Supreme Court’s decision. First, “agritourism,” specifically providing function facilities at a farm, is not permitted in an agricultural zone by sheer virtue of its location on a farm, particularly if that community incorporates the State’s definition of “agriculture” under RSA 21:34-a. Second, “agritourism,” while an important income stream to farms and growing in popularity, is not so entrenched as to be considered “customary” under the Supreme Court’s “accessory use” definition. Third, the effect of the Supreme Court’s decision clarifies the continuing regulatory authority of local land-use boards over farms, particularly when it comes to activities not vitally associated with agriculture, like function rooms, retreats, restaurants, and the like. To the extent that communities want to allow “agritourism,” the way to achieve that goal is to specifically incorporate “agritourism,” as that term is defined in RSA 21:34-a, into their land use regulations; they should not assume that it subsumed in the definition of “agricultural.”

Eric A. Maher, Esq. is an associate attorney at DTC and is chair of the Municipal and Government Law Section of the New Hampshire Bar Association. For more information regarding the contents of this article, please contact Eric.