Forster v. Town of Henniker

• Court: New Hampshire Supreme Court
• Writing for the Court: DALIANIS, C.J.
• Citation: Forster v. Town of Henniker, 167 N.H. 745, 118 A.3d 1016 (N.H. 2015)
• Decision Date: 12 June 2015
• Docket Number: No. 2013–893,2013–893
• Parties: Stephen E. FORSTER d/b/a Forster's Christmas Tree Farm & Gift Shoppe v. TOWN OF HENNIKER

167 N.H. 745

118 A.3d 1016

Stephen E. FORSTER d/b/a Forster's Christmas Tree Farm & Gift Shoppe

v.TOWN OF HENNIKER

No. 2013–893

Supreme Court of New Hampshire.

Argued: February 19, 2015

Opinion Issued: June 12, 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 petitioner unsuccessfully moved for rehearing and then appealed to the superior court. After the superior court upheld the ZBA's decision, the petitioner appealed to this court.

II. Discussion

Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553, 555, 34 A.3d 593 (2011). Factual findings by the ZBA are deemed prima facie lawful and reasonable, and the ZBA's decision will not be set aside by the superior court absent errors of law unless it is persuaded by the balance of probabilities, on the evidence before it, that the ZBA decision is unlawful or unreasonable. Id. ; see RSA 677:6 (2008). We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555, 34 A.3d 593.

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

1. Plain Meaning of RSA 21:34–a

The petitioner first argues that his proposed uses are permitted uses in the rural residential district because: (1) they constitute "agritourism" under 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, 166 N.H. 617, 623, 103 A.3d 217 (2014) (explaining that implied preemption exists when State and local regulation conflict, when a local regulation frustrates a statute's purpose, or when the comprehensiveness and detail of the State statutory scheme evinces legislative intent to supersede local regulation).

The interpretation of a statute is a question of law, which we review de novo. Clare v. Town of Hudson, 160 N.H. 378, 384, 999 A.2d 348 (2010). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. Unless we find statutory language to be ambiguous, we will not examine legislative history. Id. at 384–85, 999 A.2d 348. In construing a statute, we will neither consider what the legislature might have said nor add words that it did not see fit to include. Id. at 385, 999 A.2d 348. These same rules of construction apply to zoning ordinances. Id.

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, conservation, 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.

(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, II(a)(4).

(8) The production and storage of compost and the materials necessary to produce compost, whether such materials originate, in

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