Forster’s Christmas Tree Farm v. Town of Henniker

“Agritourism” is not “Agriculture”
New Hampshire Supreme Court, No. 2013-893
Friday, June 12, 2015

In this decision, the New Hampshire Supreme Court clarified an ambiguity in the statutory definition of “agriculture”: “agriculture” does not include “agritourism."

This case began when the Town of Henniker issued a notice of violation to Stephen Forster, who operates a Christmas tree farm in the rural residential district of Town, where agricultural uses are permitted. However, in addition to the Christmas tree operation, Forster used his property to host weddings and other events. The Town declared this a violation of the zoning ordinance because the practice of hosting such events constituted a commercial use. On appeal, the zoning board of adjustment determined that this practice was not an accessory use and was not permitted in this zone, and the superior court agreed.

 The New Hampshire Supreme Court began by comparing the statutory definitions of “farm,” “agriculture,” “farming,” “farmers’ market,” and “agritourism” found in RSA 21:34-a. Although the Christmas tree operation is clearly an agricultural use under RSA 21:34-a, II(a), the Court determined that hosting events is not a practice “incident to” the tree farm under 21:34-a, II(b)—either expressly or by analogy to the other practices listed in that section. In addition, even if Forster’s practice of hosting events is “agritourism,” the definition of that term, found in RSA 21:34-a, VI, does not state that “agritourism” qualifies as “agriculture.”

This interpretation—that the statutory definition of agriculture does not include agritourism—is bolstered by the legislative history. In creating these definitions, the legislature debated the inclusion of an additional phrase in the definition of agritourism, such that it would have read as follows: “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, and as such shall be considered an agricultural use.” The fact that the legislature ultimately deleted language that would expressly include agritourism in the definition of agriculture revealed that the legislature did not intend such a result.

Once the Court determined that the practice of hosting these events did not qualify as an agricultural use, the question remained whether the practice qualified as an accessory use. The Town’s zoning ordinance defines an accessory use as a “use subordinate and customarily incidental to the main . . . use on the same lot.” The Court decided that the use did not qualify as accessory because Forster had not established a key element: that the practice of hosting weddings and other events has “commonly, habitually and by long practice been established as reasonably associated with the primary . . . use in the local area.” The only evidence presented on this point—a list of New England farms holding similar events, printouts from the websites of nine New Hampshire farms, and testimony from two other New Hampshire farms—established that a meager minority of farms engage in similar practices.

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