2013-0893, Stephen E. Forster d/b/a Forster’s Christmas Tree Farm & Gift Shoppe v. Town of Henniker

(ZBA) for the respondent, the Town of Henniker (Town), that “weddings [and] (Smukler, J.) upholding the determination by the zoning board of adjustment Chr istmas Tree Farm & Gift Shoppe, appeals a decision of the Superior Court DALIANIS, C.J. The petitioner, Stephen E. Forster d/b/a Forster’s

Michael L. Donovan, of Concord, by brief and orally, for the intervenors.

orally), for the respondent. Upton & Hatfield, LLP, of Concord (Barton L. Mayer on the brief and

on the brief and orally), for the petitioner. Sheehan, Phinney, Bass & Green, P.A., of Manchester (Robert H. Miller

No. 2013 - 893 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

notice of violation to the ZBA. stayed until September 4, p. 2 2012. On that day, the petitioner appealed the is not permitted in the rural residenti al district. The notice of violation was petitioner, informing him that “operating a wedding/reception function facility” I n May 2012, the Town planner issued a notice of violation to the

the petitioner held eight events; in p. 2 2012, he held five events. May and October. The venue has a maximum capacity of 150 people. In 20 11, petitioner makes his property available for these commercial events between property for weddings, celebrations, and business and educational events. The In addition to operating a Christmas tree f arm, the petitioner uses his

residential district. Accordingly, the petitioner’s Christmas tree farm is a permitted use in the rural “farming” p ursuant to RSA p. 2 21:34 - a, II (a)(11) (2000) (amended 2006, 2008). Christmas tree operation” is included in the d efinition s of “agriculture” and Farming.” This definition was added to the ordinance in 2005. A “commercial Hamps hire Revised Statute Annotated C hapter 21:34 - a Farm, Agriculture, The z oning ordinance defines the word “agriculture” as: “See New

adequate off - street parking is provided on the premises.” businesses shall be permitted per lot at any one time[,] provided . . . that provides that, in the rural residential district, “[n]o more than two home “Home business/retail” and “Bed & Breakfast Homes.” The ordinance also uses permitted in the district. Uses allowed by special except ion include ordinance lists a griculture and uses acc essory to a permitted use as t wo of the and encourage agricultural uses that are characteristic of the town.” The available.” The ordinance states t hat “[t]he low - density open areas complement the commu nity where public water and sewer services are not generally of agriculture and low - density rural living outside of the built - up districts of zoning ordinance provides that the rural residential district includes “a mixture The petitioner’s property is in the rural residential district. The Town’s

property that abuts the petitioner’s prop erty. 10 acres of the farm. The intervenors, Stephen and Spencer Bennett, own commercial Christmas tree farm. His Christmas trees occupy approximately petitio ner owns approximately 110 acres in Henniker on which he operates a The trial court recited, or the record supports, the following facts. The

I. Background

obtaining either a special exception or a variance, we affirm. right to conduct commercial weddings and similar events on his farm, without conclude that the petitioner has not established, as he argues, that he has a such events is not a permitted use in the farm’s zoning district. Because we like events are not accessory uses” to the petitioner’s farm and that ho st ing p. 3 3

State and local regulation conflict, when a local regulation frustrates a statute’s 166 N.H. 617, 62 p. 3 3 (2014) (explaining that implied preemption exists when preempted by state law. See Prolerized New England Co. v. City of Manchester, his proposed uses in the rural residential district, the ordinance is impliedly Alternatively, he asserts that, to the extent that the Town’s ordinance precludes incorporates by reference the definition of “agriculture” in RSA 21:34 - a. “agriculture” in RSA 21:34 - a (Supp. 2014); and (3) the Town’s or d inance RSA 21:34 - a, VI (2012); (2) “agritourism” is included in the definition of the rural residential district because: (1) they constitute “agritourism” under The petitioner first argues that his proposed uses are permitted uses in

1. Plain Meaning of RSA 21: p. 3 34 - a

District A. Whether the Proposed Uses are Permitted in the Rural Residential

erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555. superior court’ s decision unless th e evidence does not support it or it is legally unlawful or unreasonable. Id.; see RSA 677:6 (2008). We will uphold the the balance of probabilities, on the evidence before it, that the ZBA decision is set aside by t he superior court absent errors of law unless it is persuaded by deemed prima facie law ful and reasonable, and the ZBA’ s decision will not be of Somersworth, 162 N.H. 55 p. 3 3, 555 (2011). Factual findings by the ZBA are Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City

II. Discussion

petitioner appealed to this court. to the superior court. After the superior court upheld the ZBA’s decision, the district. The petitioner unsuccessfully moved for rehearing and then appealed the ZBA voted p. 3 3 - 2 that said uses were not permitted in the rural residential including weddings and civil union ceremonies, were not accessory uses, and a 4 - 1 decision, however, the ZBA concluded that the petitioner’s proposed uses, non - profit organizations which use the unique agricultural or farm setting.” In opportunities for families, schools and colleges, businesses and charitable or include d “gatherings, meetings, c elebrations, retreats and educational appeal de novo. The petitioner as serted that his permitted proposed uses petitioner and the intervenors and, in February 2013, heard the petitioner’s Thereafter, the ZBA granted the motions for rehearing filed by the

rural residential district as permitted uses. t he ZBA decided that weddings and civil union ceremonies are allowed in the not accessory uses to his primary agricultural use. However, i n a p. 4 4 - 1 decision, that, contrary to the petitioner’s arguments, weddings and similar events are and November 2012. In November 2012, the ZBA unanimously determined The ZBA held public hearings upon the petitioner’s appeal in October 4

instruction, and selling of equines. (5) The breeding, boarding, raisi ng, training, riding

( p. 4 4) The raising and sale of livestock. . ..

(3) The use of and application of agricultural chemicals.

and regulations, other lawful soil amendments. septage, and, where permitted by municipal and state rules fertilizer, lime, wood ash, sawdust, compost, animal manu re, (2) The storage, use of, and spreading of commercial

(a) (1) The cultivation, conservation, and tillage of the soil.

farm, including: II. The words “agriculture” and “farming” mean all operations of a

occupants, or employees located on such land . ... conducted and shall include the residence or residences of owners, in which agriculture and farming activities are carried out or I. The word “farm” means any land, buildings, or structures on or

21:3 p. 4 4 - a Farm, Agriculture, Farming.

RSA 21:3 p. 4 4 - a provides:

included in the statuto ry definition of “agriculture.” contained in RSA 21:3 p. 4 4 - a. However, we disagree with him that “agritourism” is Town’s ordinance incorporates by reference the definition of “agriculture” without deciding, that his proposed uses constitute “agritourism” and that the For the purposes of addressing the petitioner’s argument s, we assume,

rules of construction apply to zoning ordinances. Id. said nor add words that it did not see fit to include. Id. at 385. The se same construing a statute, we will neither consider what the legislature might have ambiguous, we will not examine legislative history. Id. at 38 p. 4 4 - 85. In meaning to the words used. Id. Unless we find statutory language to be examining the language of a statute, we ascribe the plain and ordi nary expressed in the words of the statute considered as a whole. Id. When statutory interpretation, we are the fi nal arbiters of the legislature’ s intent as novo. Clare v. Town of Hudson, 160 N.H. 378, 384 (2010). In matters o f T he interpretati on of a statute is a question of law, which we review de

scheme evinces legislative intent to supersede local regulation). purpose, or when the comprehe nsiveness and detail of the State statutory p. 5 5

originate, in whole or in part, from operations of the farm. necessary to produce compost, whether such materials (8) The production and storage of compost and the materials

livestock, as defined in RSA 21:34 - a, II(a)(4). (7) The use of dogs for herding, working, or guarding

rule or regulation. public water supplies where not prohibited by state or local (6) Irrigation of growing crops from priva te water supplies or

from the farm. and off - site, where permitted by local regulations, any products ( p. 5 5) The marketing or selling at wholesale or retail, on - site

(4) Forestry or lumbering operations.

(3) The trans portation of farm workers.

(2) The transportation to the farm of supplies and materials.

materials from the farm. or to carriers for transportation to market of any products or (1) Preparation for market, delivery to storage or to market,

restricted to: such farming operations, including, but not necess arily (b) Any practice on the farm incident to, or in conjunction with

operation. . . . Christmas trees grown as part of a comm ercial Christmas tree or horticultural crops including, but not limited to,. . . sale of any agricultural, floricultural, viticultural, forestry, (11) The production, cultivation, growing, harvesting, and

(10) The production of greenhouse crops.

fur - bearing animals. (9) The raising, breeding, or sale of domesticated strains of

(8) The raising of bees.

(7) The raising, breeding, or sale of poultry or game birds.

water fish or other aquaculture products. ( p. 6 6) The commercial raising, harvesting, and sale of fresh 6

similar to those included in the enumerated list. Se e In t he Matter of to, or in conjunction with such farming operations”) to embrace only practices construe the general words in that subpart (“[a]ny practice on the farm incident practices is not all inclusive, under the principle of ejusdem generis, we incidental to farming operations. Although subpart (b) states that its list of Hosting such events also is not included in subpart (b) as a practice

petitioner proposes is not. RSA 21:34 - a, II(a). as a farm operation under subpart (a), hosting events such as those the “Christmas trees. . . as part of a commercial Christmas tree operation” is listed conducted “in conjunction with” farm operations. Although growing that they also refer to “[a]ny practice on the farm” that is incidental to or that the two words “mean all operations of a farm” and subpart (b) explains “agriculture” and “farming.” It consists of two subparts. Subpart (a) explains “agriculture and f arming” take place. RSA 21:34 - a, I. Paragraph II defines paragraph, “farm” refers to the “land, buildings, or structures” on which market,” and “agritourism.” Paragraph I defines “farm.” Under that The statute defines the words “farm,” “agriculture,” “farming,” “farmer s’

(Emphas e s added.)

to the farm operation. or active involvement in the activity of the farm which is ancillary enjoyment of the farm environment, education on farm operations, farm for the purpose of eating a meal, making overnight stays, VI. The term “agritourism” mea ns attracting visitors to a working

selling therein. owned, leased, or otherwise controlled by any individual vendor market” shall not include any event held upon any premises products of agriculture, as defined in paragraphs I - IV. “Farmers’ Commodities offered for sale must include, but are not limited to, purposes of offering for sale such commodities to the public. at which 2 or more vendors of agricultural commodities gather for V. The term “farmers’ market” means an event or series of events

Department of Agri culture. and food, and appropriate agencies of the United States extension, the New Hampshire department of agriculture, markets, from time to time by the university of New Hampshire cooperative IV. Practices on the farm shall include technologies recommended

products produced on the farm or farms of the stand owner. p ercent of the product sales in dollar volume is attributable to and not be considered commercial, provided that at least 35 III. A farm roadside stand shall remain an agricultural operation p. 7 7

for their economic, aesthetic, cultural, historic, or community and agricult ural resources, tangible or intangible, that are valued encouragement, use, management, and protection of agriculture with RSA 6 p. 7 73 for the proper recognition, promotion, enhancement, An agricultural commission may be established in accordance

reliance up on RSA 6 p. 7 74:44 - e is misplaced. RSA 674:44 - e provides: intent to include “agritourism” within the definition of “agriculture.” His The petitio ner contends that RSA 674:44 - e (2008) evinces legislative

See Appeal of Town of Nottingham, 153 N.H. 539, 566 (2006). with our statutory interpretation, it is free to amend th e statute as it sees fit. that they also constitute “agriculture.” Of course, if the legislature disagrees constitute “agritourism,” the plain meaning of RSA 21:34 - a does not provide Accordingly, even if we as sume that the petitioner’s proposed uses

“agriculture.” See RSA 21:34 - a, II, VI. provides that activities that constitute “agritourism” also constitute the farm operation.” RSA 21:34 - a, VI. However, nothing in this definition involvement in the activity of the farm,” and an activity must be “ancillary to enjoyment of the farm environment, education on farm operations, or active working farm for the purpose of eating a meal, making overnight stays, paragraph, to constitute “agritourism,” the activity must “attract[ ] visitors to a Paragraph VI defines the term “agritourism.” Pursuant to this

selling therein.” Id. any premises owned, leased, or otherwise controlled by any individual vendor the p ublic.” RSA 21:34 - a, V. The term does “not include any event held upon vendors of agricultural commodities . . . offering for sale such commodities to to be a “farmers’ market,” the event or series of events must have “2 or more Paragraph V pertains to farmers’ markets. Pursuant to this paragraph,

such technologies are among the practices included in Paragraph II(b). technologies” recommended by certain entities. Thus, und er paragraph IV, Paragraph IV provides that “[p]ractices on the farm shall include

id. Otherwise, farm ro adside stands are deemed to be commercial operations. See products produced on the farm or farms of the stand owner.” RSA 21:34 - a, III. least 35 percent of the product sales in dollar volume is attributable to provides that they are deemed to be “agricultural operation[s]” provided that “at Paragraph III of the statute pertains to “farm roadside stand[s]” an d

subpart (b). as the petitioner proposes is not similar in nature to the practices listed in Hennessey - Martin & Whitney, 151 N.H. 20 p. 7 7, 211 (2004). Hosting events such p. 8 8

Hearing on H.B. 56 Before the Sen. Comm. o n Energy, Env ’ t and Econ. Dev. 14 considered an agricultural use.” See Relative to the Definition of Agritourism: was concerned that t he House had added the phrase “and as such shall be Representative Jim Martin spoke against the amended bill, explaining that he N.H.S. Jour. 269 (2007). At the public hearing before the S enate committee, Senate Committee on Energy, Environment and Economic Development. In the Senate, the bill, as amended by the House, was referred to the

The House approved the amended version of HB 56. Id. at 120. “little impact on a municipality’s zoning powers over land uses on farms.” Id. related activities to survive.” Id. The commi ttee reported that the bill had recognize that today’s farms need to engage in a diversity of agriculturally[-] visitors to farms.” Id. According to the committee, the intent of the bill was “to ancillary farm activities, such as wagon rides and[/]or mazes, used to attract the intent of HB 56, as amended, was to “define[ ] agritourism as those N.H.H.R. Jour. 107 (2007) (emphasis added). The committee explained that the farm or operation, and as such shall be considered an agricultural use.” enjoyment, education, or active involvement that is ancillary to the activity of farm operations for the purpose of eating a meal, making overnigh t stays, recommended amending HB 56 to define “agritourism” as “attracting visitors to Thereafter, the House Comm ittee on Resources, Recreation and Development http://gencourt.state.nh. us/SofS_Archives/2007/house/HB56H.pdf. operation.” House Bill 56 available at enjoyment, education, or active involvement in the activity of the farm or operations for the purpose of eating a meal, making overnight stays, As introduced, HB 56 defined “agritourism” as “attracting visitors to farm RSA 21:34 - a in 2007, pursuant to House Bill (HB) 56. See Laws 2007, ch. 157. Paragraph VI of RSA 21:34 - a, which defines “agritourism,” was added to

consult such his tory, we conclude that it supports our statutor y construction. consult legislative hi story to aid in our analysis. However, e ven when we does not include “agritourism” in its definition of “agriculture,” we need not Because we conclude that, pursuant to its plain language, RSA 21:34 - a

2. Legislative History o f RSA 21:34 - a

“agritourism” in the definition of “agriculture.” RSA 21:34 - a. As we have previously discussed, RSA 21:34 - a does not include of RSA 21:34 - a.” However, RSA 674:44 - e does not change the plain meaning of commissions to advance “agriculture,” broadly defined to include “the entirety Under that s tatute, the legislature has authorized municipal agricultural The statute applies when a town establishes an agricultural commission.

is the definition of farm, agriculture, and farming. word ‘agriculture’ shall include the entirety of RSA 21:34 - a, which significance within their natural, built, or cultural contexts. The p. 9 9

‘ agricultural u se. ’” Id. Senator Bob Odell explained that the amendment “was longer state that “agritourism,” as defined in that bill, “shall be considered an N.H.S. Jour. 7 p. 9 95 (2007). As proposed by the committ ee, HB 56 would no involvement in the activity of the farm which is ancillary to the farm operation.” enjoyment of the farm environment, education on farm operations, or act ive working farm for the purpose of eating a meal, making overnight stays, pursuant to which “agritourism” would be defined as “attracting visitors to a After the hearing, the commi ttee proposed an amendment to HB 56

would address and answer” the concerns raised. Id. Municipal Association to recommend “some slightly different language that stated that the committee expected the representative from the New Hampshire automatically including that in that zone . . . .” Id. The chair of the committee agricultural use, I think you are going to, in some people’s minds, be that, in her opinion, “if you have something that is defining something as an (statement of Judy Silva, New Hampshire Municipal Association). She stated the phrase “and as such shall be considered an agricultural use.” See id. at 18 with Representative Martin’s concern and with his suggestion of elim inating A rep resentative from the New Hampshire Municipal Association agreed

Id. things agricultural uses.” Id. In his opinion, doing so created “a real problem.” Id. He observed that the “[mistake] came in . . . when they made all these Proposal 5” from the report of the New Hampshire Farm Viability Task Force. not include this phrase, and “pretty accurately copied . . . Recommendat ion 5, the bill. Id. at 16. He observed that when the bill was first introduced, it did p hr ase “and as such, shall be considered an agricultural use” be deleted from Id. at 15. Representative M artin suggested that, to ad dress his concern, the

that. permitted in any agricultural zone. And I think we should not do now says restaurants and motels, hotels are agricultural uses this I think is to preempt all local zoning ordinances. Because this effect of this, and I don’t think it was intended, but the effect of ‘cause it’s well defined. But this, in my view, and the pernicious 21:34 - a. So we think we know what “agriculture” means, all right, definitions that are in the statute that you have before you: [RSA] said, entirely residential/agricultural. And we rely on the agricultural uses. And Brookfield is zoned, as Senator Kenney industrial uses, they zone commercial uses, residential uses, and and in land use. When towns zone, they zone for uses; they zone The problem is that “agricultura l use” is a term of art in zoning

explained: http://gencourt.state.nh.us/SofS_Archives/2007/senate/HB56S.pdf. He (Apr. p. 10 10, 2007) (statement of Rep. Jim Martin), available at 10

statutory interpretation and construction,” Bond v. Martineau, 164 N.H. 2 p. 10 10, the statute’ s purpose. Id. Because preemption “is essentially a matter of expressly conflict with a State statute, it will be preempted when it frustrates prohibits or vice versa. Id. Moreover, even when a local ordinance does not when a municipal ordinance or regulation permits that which a State statute local law when there is an actual conflict between the two. Id. A conflict exists intent to supersede l ocal regulation. Id. State law also impliedly preempts comprehensiveness and detail of the State statutory scheme evinces legislative argues implied preemption. Implied preemption may be found when the may be express or implied.” Id. (quotation omitted). Here, the petiti oner of Carroll v. Rines, 164 N.H. 523, 528 (2013) (quotation omitted). “Preemption legislation is invalid if it is repugnant to, or inconsistent with, State law.” Town “The preemption doctrine flows from the principle that municipal

3. Implied Preemption

accord with the legislature’ s intent. the legislative history demonstrates that the plain language of the statu te is in an indication that the legislature did not w ant the issue considered.”). Thus, was rejected by the leg islature and thus not contained in the statute it provides Singer & Singer, supra § 48:4, at 5 6 3 - 6 4 (“[W]here the language under question a, VI, constitute s “agriculture” within the meaning of RSA 21:34 - a, II. See but ultimately rejected, the notion that “agritourism,” as defined by RSA 21:34 - Th e legislat ive history of HB 56 reveals that the legislature considered,

intent . . . are not part of the legislative history of the original enactment”). value” because “[p]ostenactment statements of legislators relating to legislative (deciding that affidavit of legislative co - sponsor of certain legislation was of “no legitimate legislative history”); McGee v. Stone, 522 A.2d 211, 216 (R.I. 1987) United States Senator’s post - enactment statement “does not constitute Director, OWCP, 719 F.3d 1275, 1283 n.9 (11 th Cir. 2013) (explaining that a and Statutory Construction § 48:16 (7th ed. 2007); U.S. Steel Min. Co., LLC v. members in enacting the law); see also 2A N. Si nger & J.D. Singer, Statutes statements made by legislators after passage of bill regarding the motives of Mullen, 119 N.H. 703, 709 (1979) (concluding that court cannot rely up on history of HB 56, and, t hus, is not evidence of legislative intent. See State v. intent of the Senate committee in 2007, the letter is not part of the legislative written to the ZBA by Senator Odell regarding his opinion, in 2013, about the Although the petitioner relies, in part, upon a February 7, 2013 letter

enacted as RSA 21:34 - a, VI. See Laws 2007, ch. 157. 866 (2007), and the amended bill was signed into law by the Governor and 796. The House then concurred in the Senate amendment, see N.H.H.R. Jour. zoning problems.” Id. The Senate app rove d the proposed amendment. Id. at classified agritourism as an agricultural use, a phrase that could cause local deemed necessary after concerns were raised [about] original language that p. 11 11

powers when it fails “to recognize that agriculture . . . when practiced in 672:1, III - d explains that a municipality unreasonably interprets its reg ulatory activities” and from unreasonably interpreting their municipal powers. RSA III - b precludes municipalities from unreasonably limiting “[a]gricultural 21:34 - a.” See RSA 21:34 - a, II (defining a gricultural operations). RSA 672:1, lands and buildings and the “agricultural operations described in RSA requires that zoning ordinances “encourage” the preservation of agricultural (2008), III - d (Supp. 2014); RSA 674:32 - a (2008). RSA 674:17, I(i) merely use the word “agritourism.” See RSA 674:17, I(i) (Supp. 2014); RSA 672:1, III - b 21:34 - a, do contain some mandates to municipalities, th o se statutes do not Although the petitioner relies upon other statutes which, unlike RSA

purpose. Town’s ordinance necessarily does not conflict either with its langua ge or its mandate to municipalities. Because RSA 21:34 - a contains no mandate, the “agritourism.” The other provisions in RSA 21:34 - a likewise contain no municipalities allow activit ies that meet the statutory definition of that municipalities adopt the same definition. Nor does it mandate that RSA 21:34 - a, VI contains no mandate to municipalities. It does not require pro ducers” and businesses engaged in “agriculture. . . and . . . agritourism”). State’s policy, through its department of agriculture, of supporting “local food “agritourism.” See generally RSA 4 25:2 - a, I (Supp. 2014) (referring to the the field of air pollution control in this State). RSA 21:34 - a, VI merely defines State, constitutes a comprehensive and detailed regulatory schem e preempting statewide permitting program to monitor ambient air quality throughout the which consists of twenty - one sections defining and establishing in detail a Hopkinton, 153 N.H. 145, 152 - 53 (2005) (holding that RSA chapter 125 - C, scheme aimed at superseding local regulation. Cf. Bio Energy v. Town of RSA 21:34 - a is a set of definitions, not a comprehensive statutory

definition.” prohibit otherwis e valid agritourism enterprises that meet the statutory the statutory definition of “agritourism” mandates that the Town “cannot. . . help them remain economically viable.” (Quotation omitted.) He asserts that a gricultural activities with a wide range of supplemental events and activities to “interpreted to give farm er s the maximum possible latitude to support their 2013 letter, he contends that the legislature intended “agritourism” to be the economic viability of New Hampshire farms.” Relying upon Senator Odell’s the term[ ] and a uniform application of that term ac ross the state to enhance RSA 21:34 - a, VI, which, he asserts, is to “creat [e] a uniform understanding of statutory definition of “agritourism,” the ordinance frustrates the purpose of because, in prohibiting h is proposed uses, which he contends meet the The petitioner argues that the Town’s ordinance is impliedly preempted

law, which we review de novo, Rines, 164 N.H. at 528. 213 (20 p. 12 12), w hether a State statute preempts local regulation is a question of 12

Alfond, p. 12 129 N.H. at 29 (citation omitted). associated with a frequency that is substantial enough to rise above rarity.” not occur in a majority of instances of the principal use, the uses must be does not lend itself to definition by formula, and while the combination need (1986). “While the strength or degree of the customary or habitual association (referring to “local custom”); see Town of Windham v. Alfond, 129 N.H. 24, 29 associated with the primary . . . use” in the local area. Becker, 117 N.H. at 441 commonly, habitually and by long practice been establi shed as reasonably “[C]ustomarily” impo ses an additional requirement t hat the accessory use “has use. I d.; see Marchand v. Town of Hudson, 147 N.H. 380, 383 (2001). in relation to the primary u se and that it bear a reasonable relationship to that and “subordinate” incorporate the requirement that the accessory use be minor “customarily incidental and subordina [te]” (quotation omitted)). “[I]ncidental” 440 (1977) (discussing ordinance that defined accessory uses as those that are several distinct elements. See Becker v. Town of Hampton Falls, 117 N.H. 437, use on the same lot.” The definition of accessory use in the ordinance involves accessory use as a “use subordinate and customarily in cidental to the main . . . use.” Id. Consistent with the common law, the Town’s ordinance defines an exception, so long as the accessory use is incidental to a permitted principal property seeking to engage in an accessory use need not apply for a special it.” Fox v. Town of Greenland, 151 N.H. 600, 606 (2004). “An owner of property, but rather a use occasioned by the principal use and subordinate to uses under the ordinance. “An accessory use is not the principal use of the Alternatively, the petitioner asserts that his proposed uses are accessory

B. Whether the Proposed Uses are Accessory Uses

ordinance as they see fit. uses in the rural residential district, they are free to amend the Town’s field. Accordingly, should T own voters want to allow the petitioner’s proposed legislative intent to allow reasonable local regulation, not to preempt the entire traditional agriculture and agricultural activities. Moreover, they demonstrate borders. At most, they evince the legislature’s genera l intent to support legislature intended to require municipalities to allow “agritourism” within their None of these statutes support the petitioner’s contention that the

laws, regulations, and rules.” accessory use, so long as conducted in accordance with . . . f ederal and state location, they shall be deemed to be permitted there, as either a primary or activities are not explicitly addressed with respect to any zoning district or ordinance fails to address them, RSA 674: 32 - a provides that when “agricultural necessarily infer that an ordinance prohibits agricultural uses when the ordinance . . . to address [it].” Consistent with the notion that one cannot upon [tha t] use[ ] cannot necessarily be inferred from the failure of an and accessory use[ ] of land throughout New Hampshire, and that a prohibition accordance with applicable laws and regulations, [is a] traditional, fundamental p. 13 13

of law, that it fails to prove that his proposed uses have “commonly, habitually Assuming the relevance of the petitioner’s evidence, we hold, as a matter

located. deemed to be accessory uses in the communities in which the farms are which those farms operate and presented no proof that the subject uses are presented evidence, the petitioner did not submit the zoning regulations under farms in Massachusetts). With regard to all of the farms about which he to those which he hosts (one farm in Vermont, one farm in Maine, and five handful of farms in other n orthern New England states that host events similar Additionally, according to the petitioner’s typewritten list, there are only a farm is located i n Bethlehem, which is approximately 100 miles from Henniker. of those farms is a Christmas tree farm, like the petitioner’s farm, and that (other than his) host commercial events similar to his proposed uses. Only one the approximately 4,200 farms in New Hampshire, only nine or ten farms tree farming in particular. Id. At best, the petitioner demonstrated tha t, out of reasonably associated” in the local area with farming in general, or Christmas uses have “commonly, habitually and by long practice been established as relevant, we conclude that it was insufficient t o establish that his proposed Assuming, without deciding, that all of the petitioner’s evidence was

Hill Farm in Concord and Gould Hill Farm in Hopkinton. Henniker.” Additionally, he presented testimony from the owners of Dimond which farms, he asserted, “are doing exactly what [he is] asking to do . .. in printouts from the websites and/or brochures of nine farms in New Hampshire, farms that purportedly “hold events and weddings.” He also submitted 441. The petitioner presented a typewr itten list of n orthern New England associated with the primary . . . use” in the local area. Becker, 117 N.H. at “commonly, habitually and by long practice been established as reasonably Here, the petitioner failed to establish that his proposed uses have

N.H. 29, 33 (2007). facts de novo. Blagbrough Family Realty Trust v. A & T Forest Products, 155 both law and fact.”). We review the trial court’s application of the law to the 2010) (“Whether a particular use is an accesso ry use is generally a question of Hampshire Practice, Land Use Planning and Zoning § 9.03, at 174 (4th ed. Bartlett v. City of Manchester, 164 N.H. 634, 643 (20 p. 13 13); 15 P. Loughlin, New recently clarified t hat it is, in fact, a mixed question of fact and law. See constitutes an accessory use is a question of law for us to decide, we have Although we have previously stated that whether a proposed use

33 - 7 (2012). see also 2 E. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 33:2, at (discussing burden of proof in municipality’s equity action against landowner); burden of proving that his use qualifies as an accessory use. See id. A landowner claiming the benefit of the accessory use doctrine bears the p. 14 14

162 N.H. 641, 644 - 45 (2011). The provision defining “agritourism” began as a sought to be advanced by the statutory scheme.” Montenegro v. City of Dover, When we interpret statutes, we do so “in light of the policy or purpose

legislature’s inte nt. See United States v. Howe, 167 N.H. p. 14 143, 148 - 49 (2014). resolve the ambiguity we must look to the legislative history to determine the that the majority’s interpretation of the statute is also reasonable and, thus, to the act ivity of the farm.” RSA 21:34 - a, II, VI (2012). Nevertheless, I recognize to paragraph II, especially such activities that require “active involvement in that is “ancillary to the farm operation” would constitute agriculture pursuant those definitions. RSA 21:34 - a, II (2012). Therefore, any agritourism activity constitute agriculture and includes “all operations of a farm” as the ba sis for Paragraph II of RSA 21:34 - a defines the activities and practices which in the activity of the farm which is ancillary to the farm operation.” Id. “attracting visitors to a working farm for the purpose of . . . active involvement RSA 21:34 - a, VI. For example, the statute defines “agritourism” to include “agritourism” includes certain activities that would constitute agriculture. See 21:34 - a. This conclusion is strengthened from the fact that the definition of without intending it to be considered part of farming or agriculture. See RSA seems unlikely that the legislature would include the definition of “agritourism” Farming,” which exclusively defines farming and agricultural practices, it ambiguous, at best. Given its placement in a statute titled “Farm, Agriculture, conclude that the language of the statute that defines “agriculture” is Addressing the majority’s interpretation of RSA 21: 34 - a first, I would

court’s decision. Therefore, I respectfully dissent. I disagree with the majority, under both rationales, I would reverse the trial that the proposed use is not an accessory use to the petitioner’s farm. Because to include “agritouris m” in the statu tory definition of “agriculture”; and s econd, legislative history of RSA 21:34 - a (2012) fail to demonstrate a legislative intent independent rationales for its decision: f irst, that both the plain language and Hennike r’s rural residential district. The majority offers two separate and determined that hosting weddings and like events is not a permitted use in farms are customary. Today, the majority holds that the trial court properly colleagues have spent a summer in East Colebrook, an area where weddings on HICKS, J., dissenting. It is abundantly clear t hat none of my four

CONBOY, LYNN, and BASSETT, JJ., concurred; H I CKS, J., dissented.

argument that he is entitled to prevailing party attorney’s fees and costs. Id. Because the petit ioner has not prevailed, we need not address his petitioner’s proposed uses are not accessory uses under the Town’s ordinance. primary . . . use” in the local area. Id. Absent such evidence, we hold that the and by long practice been established as reasonably associated with the p. 15 15

or active involvement in the activity of the farm or operation.” Cultivating Success, supra at 41. to farm operations for the purpose of eating a meal, making overnight stays, enjoyment, education The original language proposed by the Task Force was “Agritourism: based on attracting visitors 1

Energy, Env’t and Econ. Dev. 7 (Apr. 10, 2007). This sentiment was echoed by the Definition of Agritourism: Hearing on H.B. 56 before the Sen. Comm. on contribution t o the industry and gives these activities credibility.” Relative to the state’s definition of agriculture shows that New Hampshire recognizes the important in the operation of the farm business,” “and including agritourism in tes tified that “the income generated directly from [agritourism] activities . . . [is] Agricultural Development of the New Hampshire Department of Agriculture, hearing before the Senate committee. There, Gail McWilliam Jellie, Director of Furthermore, these concerns and goals were re - emphasized at the public

State. definition of “agriculture” and create a uniform definition t o be used across the purpose of this recommendation was to incorporate agritourism into the eliminate burdensome, confusing, or conflicting laws. Id. at 40 - 41. The clear “agritourism” to RSA 21:34 - a was one of the proposed legislative actions to 1 law and used by local land use boards.” Id. at 36 - 37. Adding a definition of farming (as best described in RSA 21:34 - a) that is consistent throughout state regulations burdensome to agriculture” and adopting “[a] uniform definiti on of these findings, the Task Force recommended “[r]emov[ing] rules and barriers,” Cultivating Success, supra at 10. To address the concerns raised by the public benefit they provide to the en vironment, and uncertain regulatory challenges of] the vagaries of local zoning boards, failure to be compensated for Cultivating Success, supra at 8; and (3) “[t]oday’s . . . farmers now face [the products[, processes, o r services] have seen greater growth opportunities,” supra at 9; (2) “farm businesses that have been able to sell innovative the economically sensible behavior is to sell the land,” Cultivating Success, (1) “farmers can’t be expected to continue to operate viable farm businesses if The Task Force made three findings relevant to the issue of agritouris m:

industry, and pick - your - own enterprises.” Id. agriculture, farmers’ markets, farm stands, agricultural fairs, the horticulture “[p]romoting and e xpanding agricultural based tourism, community supported resolution recommended a task force to examine, in relevant part, methods for New Hampshire farms.” S. Con. Res. 1, 2005 Sess. (N.H. 2005). The “there are laws, rules, and regulations . . . hindering the economic viability of agricultural interests are a vital part of New Hampshire’s economy” and that Concurrent Resolution No. 1, which recognized that “farming and other report.pdf. The Task Force was established in response to 2005 Senate http://agriculture.nh. gov/publications - forms/documents/farm - viability - Hampshire Farm Viability Task Force Report 41 (2006) available at Force). See Cultivating Success on New Hampshire Farms: The New recommendation from a New Hampshire Farm Viability Task Force (Task p. 16 16

requirement of accessory use is the meaning of customary, see Smith, Note, to a use that is expressly permitted. Id. The most frequently litigated explicitly allowed, it is nonetheless permissible if it may be said to be accessory Salem v. Durrett, 125 N.H. 29, 32 (1984). When a given use of land is no t providing expressly by zoning ordinance for every possible lawful use. Town of The accessory use doctrine functions as a response to the impossibility of

use. minor in relation to the primary use and bear a reasonable re lationship to that law definition; and (3) to be “incidental” and “subordinate,” a use must be incidental to the main . . . use on the same lot,” is consistent with our common Henniker’s definition of accessory use, “use subordinate and customarily subordinate to it, see Fox v. Town of Greenland, 151 N.H. 600, 606 (2004); (2) that: (1) the accessory use must be occasioned by the principal use and Addressing the issue of accessory use next, I agree with the majority

reverse the decision of the trial court on this basis. petitioner’s proposed activities constitute agritourism. Accordingly, I would includes agritourism as part of the definition of agriculture and that the at 3 - 4 (statement of Sen. Joseph Kenney). Thus, I conclude that RSA 21:34 - a governing such issues as noise, parking, or safety. Hearing on H.B. 56, supra or a municipality from enforcing generally a pplicable laws and ordinances define a limit to agritourism activities). Nor does the statute prohibit the State such limitations. See id.; Hearing on H.B. 56, supra at 19 - 20 (declining to not addressed by the statut e and the legislature explicitly declined to craft the Christmas tree farm itself, I conclude that argument is irrelevant as it is intervenors may argue that the income produced by the events exceeds that of altar made of balsam fir boughs. To the extent that the respondent and incorporate elements of the farm into the space through such acts as using an environment,” especially when the petitioner goes to great lengths to or within the Christmas tree grove fails to constitute “enjoyment of the farm Frankly, I fail to see how hosting a wedding or an y event in a tent overlooking as agritourism “enjoyment of the farm environment.” RSA 21:34 - a, VI. proposed uses fall within that definition. Paragraph VI of RSA 21:34 - a includes agritourism, for t he petitioner to succeed he must demonstrate that his avoids the question of whether the petitioner’s proposed activities constitute however, that the petitioner automatically prevails. Although the majority Including “agritourism” in the definition of “agriculture” does not mean,

“agritourism” definition, “agritourism” must be considered agric ulture. would conclude that to give full effect to the policy and purpose of the new New Hampshire.” Id. at 10 - 11. Accordingly, in light of the legislative history, I value - added service or an experience; that’s where t he profit is in agriculture in opportunity created in what is today agriculture in New Hampshire. . . . It’s a testified that “[w]e look at [agritourism] as enhancing farm viability through the Robert Johnson, Director of the Ne w Hampshire Farm Bureau Federation, who p. 17 17

before the district court.” Id. Neverthe less, we did consider evidence that arose associated with residential use because “there was no evidence to the contrary court could have reasonably found that use of an airstrip was not customarily added). In our review of the trial court’s decision, we concluded that the trial at a pond located in a recreational zoning district in Salem.” Id. (emphasis the trial court had considered testimony that “seaplanes had frequently landed asso ciated with residential use.” Durrett, 125 N.H. at 33. We observed that In Durrett, the issue was whether “use of an airstrip was . . . customarily

infer that traditional rural stereotypes were no longer applicable to the area). trial court could take notice of changing conditions in a portion of the state and see also Town of Windham v. Alfond, 129 N.H. 24, 29 (1986) (statin g that the customary aspect of accessory use based on activity within the municipality); Becker v. Town of Hampton Falls, 1 p. 17 17 N.H. 437, 441 (1977) (examining municipality to support its analysis of the customary aspect of accessory use); limit); Durrett, 125 N.H. at 33 (referencing evidence from areas outside the (examining customary aspect of accessory use based on unspecified geographic the mun icipality); Nestor v. Town of Meredith, 138 N.H. 632, 634 (1994) (examining customary aspect of accessory use based on similar activity within customary. See, e.g., Marchand v. Town of Hudson, 147 N.H. 380, 384 (2001) geographic limitation in determining whether a proposed accessory use is indeterminate standard). In New Hampshire, we do not utilize a single 1958) (examining customary aspect of accessory use based on an municipality), and Gold v. Zoning Board of Adjustment, 143 A.2d 59, 60 (Pa. 1967) (examining custom ary aspect of accessory use based on trends within a Gross v. Zoning Board of Adjustment of City of Phila., 227 A.2d 824, 826 (Pa. (examining customary aspect of accessory use based on national trends), with b ehind the choice. Compare, e.g., Appeal of Lord, 81 A.2d 533, 536 (Pa. 1951) the three potential geographic limitations, without any particular rationale fact, determine whether a proposed accessory use is customary using any of Land Use Controls § 40A.03[3][c][iii], at 40A - 32 (2012). Some jurisdictions, in 8 - 3, at 8 - 5 (4th ed. 2009) (footnotes omitted); see also 7 P. Rohan, Zoning and even nationwide trends in an industry.” 2 E. Yokley, Zoning Law and Practice § customary, courts may examine the entire community, or the general region, or Commentators have concluded that “[i]n determining whether a use is

And is ‘customary’ a mathematical concept in this context . . . ?”). reference to the state or to a more restricted area, perhaps the borough itself? ‘cust omary’ mean in the present setting? . . . Is ‘customary’ to be measured by Super. Ct. Law Div. 1956), aff’d, 131 A.2d 881 (N.J. 1957) (“What would test be applied?”); Jantausch v. Borough of Verona, 124 A.2d 14, 20 (N.J. (“[W]hat does ‘customarily’ mean, and to what geographical area should the use doctrine, see, e.g., State v. Smiley, 15 3 N.W.2d 906, 908 (Neb. 1967) task that has routinely confounded courts since the adoption of the accessory B.U.L. Rev. 542, 543 (1976), and setting a cogent definition of “customary” is a Zoning: Accessory Use s and the Meaning of the “Customary” Requirement, 56 p. 18 18

the times.”); Dellwood Dairy Co. v. City of New Rochelle, 165 N.E.2d 566, 567 perception of which accessory uses are considered ‘customary’ changes with The Law of Zoning and Planning § 33.3, at 33 - 12 (2012) (“Naturally, the Id. § 40A.03[3][a], at 40A - 26 to 40A - 27; see also 2 E. Ziegler, Jr., Rathkopf’s

necessarily to close the class of possible uses. to give examples of the kinds of uses that were acceptable but not word “customary” seems to have been evidentiary. It was designed necess arily the one intended. . . . The purpose in choosing the Yet this narrow view of the customary requirement is not

existence at the time of the enactment of the ordinance. . . . literally applied, it would establish a class clos ed to uses not in The difficulty with the requirement that a use be customary is that,

Commentators and jurists have recognized that: the principal use of the land.” Rohan, supra § 40A.01, at 40A - 3. to permit uses that are necessary, expected or convenien t in conjunction with smaller towns, such as Henniker. “The purpose of accessory use provisions is establishing customary use would be impossible. This is particularly true in inquiry to the local area creates situations where, due to in sufficient data, the very purpose behind the accessory use doctrine. Limiting the customary Furthermore, I believe limiting the inquiry to only the local area defies

our holding in Alfond further clarified our holding in Becker. considering whether an accessory use is customary. Id. Accordingly, I beli eve regional tradition and changing demographics in a region of the state when observation, we held that the trial court could properly consider, as evidence, sound indications of actual conditions in the are a.” Id. In making that court could reasonably infer that traditional rural stereotypes are no longer portion of the State under pressure of residential crowding . . . from which the court could properly take notice, N.H.R. Ev. 201(a), that Windham is in a by looking at activities within the municipality, we also observed that “the trial Id. at 29. Although this would suggest that we made our determination solely six owners of Windham properties in residential zones had . . . kept horses.” trial there had been testimony stating that “during the past twenty years only constituted an accessory use. Alfond, 129 N.H. at 26. We observed that at for the stabling and pasturing of horses kept for . . . personal recreation” In Alfond, the issue was whether “use of . . . residentially z oned property

is customary. that Becker did not establish rigid requirements for determining whether a use Accordingly, I agree with the petitioner that our decision in Durrett clarified “[o]ne instance in another town does not rise to the leve l of custom.” Id. had been permitted to maintain a private landing strip. Id. W e explained that after the appeal had been filed regarding one household in another town that p. 19 19

Census of Agriculture 15 (2014) (table of income from farm - related sources). recreation services valued at $704 million. 1 United States Department of Agriculture, 2012 agritourism has increased across the country with 33,161 farms providing agritourism and Although it is not in the record before us, I note that the 2012 Census of Agriculture found that 2

Trust v. Town of Freedom, 146 N.H. 271, 274 (2001) (explaining that the subordinate to the primary use it ceases to be permissible. See KSC Realt y determining whether a use is subordinate, once the accessory use ceases to be use. See Fox, 151 N.H. at 606. Although no bright - line rule exists for accessory use doctrine, an accessory use must be subordinate to the primary many throughout the proceedings in this case have alleged. Under the an event - hosting business under the false premise of a Christmas tree farm, as This result would not provide the petitioner with a free hand to operate

conclude that agritourism is an accessory use. enough to rise above rarity.” Alfond, 129 N.H. at 29. Accordingly, I would conclude that agritourism activities occur “with a frequency that is substantial agritourism in both New Hampshire and across the country is sufficien t to 56, supra at 6. This substantial relationship between agriculture and to New Hampshire’s economy is due to agritourism activities.” Hearing on H.B. which found that “about a third of agricultu re’s total $935 million contribution Senate committee, cited a recent study conducted by Plymouth State University Within New Hampshire, Director Jellie, in her testimony before the

sources), available in appellant’s appendix, volume I at 109. 2007 Census of Agriculture 15 (2009) (table of income from farm - rela ted services valued at $566 million. 1 United States Department of Agriculture, 2 country 23,350 farms indicated that they provided agritourism and recreation Id. The 2007 United States Census of A griculture found that across the “associated with a frequency that is substantial enough to rise above rarity.” Furthermore, the record reflects that agritourism, generally, is

which he has done. to demonstrate that such use “rise[s] above rarity,” Alfond, 129 N.H. at 29, and similar events is insufficient, I would conclude otherwise because he needs that the petitioner’s evidence of farms in New Hampshire that host weddings ris e above rarity.” Alfond, 129 N.H. at 29. Although the majority concludes “the uses must be associated with a frequency that is substantial enough to Rejecting this limitation, however, does not change the requirement that

accessory use doctrine’s purpose. “would be un acceptable stagnancy.” Id. This stagnancy is the antithesis of the would be permitted.” Smith, supra at 546. The result of such a construction customary requirement would mean “that only those already prevalent uses dealing with old [problems].”). Accordingly, a narrow construction of the (N.Y. p. 19 1960) (“It is a common experience that new times bring. . . new ways of p. 20 20

For these reasons, I respectfully dissent.

decision of the trial court. the rural traditions of New Hampshire. According ly, I would reverse the other event at the petitioner’s farm is not a slippery slope. Rather, it protects farm environment. See RSA 21:34 - a, VI. Permitting the occasional wedding or must have some connection to th e farm, even if it is simply enjoyment of the agritourism definition limits agritourism activities because any such activity definition of subordinate can shift depending on various factors). The