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Forster v. Henniker

Supreme Court of New Hampshire

June 12, 2015

STEPHEN E. FORSTER D/B/A FORSTER'S CHRISTMAS TREE FARM & GIFT SHOPPE
v.
TOWN OF HENNIKER

Argued: February 19, 2015

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

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

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

DALIANIS, C.J.

The 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 a commercial Christmas tree farm. His Christmas trees occupy approximately 10 acres of the farm. The intervenors, Stephen and Spencer Bennett, own property that abuts the petitioner's property.

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)(11) (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 September 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 included "gatherings, meetings, celebrations, retreats and educational opportunities for families, schools and colleges, businesses and charitable or non-profit organizations which use the unique agricultural or farm setting." In a 4-1 decision, however, the ZBA concluded that the petitioner's proposed uses, including weddings and civil union ceremonies, were not accessory uses, and the ZBA voted 3-2 that said uses were not permitted in the rural residential district. The ...


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