Growing pains: Farmers, lawmakers grapple with how land can be used

New Hampshire Sunday News
March 19. 2016 8:20PM
Farmhand Zach Curtis loads bales of hay for sale to a horse farm on Friday at Charmingfare Farm in Candia. Charmingfare has 300 acres of mixed-use land, where its operation includes the farm, a zoo, maple sugaring, horse riding, haunted hay rides and events. Farmers are trying to find new ways to draw customers and stay in business, but some communities are against the commercial nature of some of the “agritourism” ideas. (Thomas Roy/Union Leader)

Pick-your-own produce, farm-to-table meals, corn mazes, petting zoos and weddings: New Hampshire farmers are finding new ways to attract customers and stay viable.

But while many communities have welcomed such innovations, some have pushed back against what they see as the commercial nature of some of these “agritourism” activities.

Last year, the state Supreme Court ruled against a Henniker tree farmer who wanted to hold weddings, retreats and other gatherings on his property. The court found that agritourism was not included in the definition of agriculture under state law and that the farmer's proposed use of his land was not a permitted “agricultural use.”

That prompted lawmakers to act.

And supporters say two agritourism bills now in the Legislature would help protect farmers' rights to hold such events, while at the same time preserving local control.

Lorraine Merrill, state agriculture commissioner, said agritourism may be a new word but it's not a new phenomenon.

“Actually, farm families were the pioneers of New Hampshire's tourism industry, when they began taking in summer guests, paying guests, for various periods of time on their farms,” she said. “It has a long heritage.”

Merrill said agritourism activities are an increasingly important part of what farmers do to stay viable.

In 2002, the first time a U.S. Department of Agriculture census survey asked farmers about their agritourism revenues, just 16 New Hampshire farms were engaged in such activities, bringing in an estimated $265,000 in revenue, Merrill said. Ten years later, there were 190 farms doing so, with revenues of $3.8 million.

Another trend driving the growth of agritourism, she said, is a resurgence of public interest in locally grown food. “People are wanting to reconnect with their rural heritage, I think, and with where their foods come from,” she said.

Changing the law

A Senate bill that passed on a voice vote Thursday adds agritourism to the definition of agriculture. A House bill with the same language also passed earlier this month on a voice vote.

Both bills read: “Marketing includes agritourism, which means attracting visitors to a farm to attend events and activities that are accessory uses to the primary farm operation, including, but not limited to, eating a meal, making overnight stays, enjoyment of the farm environment, education about farm operations, or active involvement in the activity of the farm.”

Senate Bill 345 also would add a new section to the state law governing local land use planning and regulatory powers (RSA 674): “Agritourism ... shall not be prohibited on any property where the primary use is for agriculture...”

But it also makes any new establishment or “significant expansion” subject to special exception, building permit or local land use approval; as well as regulation “to prevent traffic and parking from adversely impacting adjacent property, streets and sidewalks, or public safety.”

Sen. David Boutin, R-Hooksett, its prime sponsor, said the bill allows farmers to adapt to changing times. “This has a dual objective: promote economic sustainability of farming and preserving local control of planning decisions,” he said before Thursday's vote.

Merrill is optimistic the measure would help resolve some of the conflicts some communities have seen.

“It's strengthening both the place of agritourism in agriculture and farming, but it's also reaffirming the rights and responsibilities of the local community to regulate it to a certain extent, to protect public health and safety and the interests of the community,” she said.

Some aren't convinced

Daniel Crean is executive director of New Hampshire Municipal Lawyers Association. A Pembroke attorney, he has represented local governments in land-use cases for decades.

Crean said he expects New Hampshire will find a balance between farmers' rights and the rights of local communities to regulate land use — but it may take a while.

There's always a tension between conflicting interests, Crean said. “And that's been true since people started living together,” he said.

“I don't think there's anybody who wants to see farms disappear,” he said. “And I think certainly agritourism has a place in that.

“The difficulty is trying to balance the impact that those uses have on ... residential uses or other uses that expect a quieter environment.”

Crean predicts the pending legislation won't be the final word on the issue. “I would say there are going to be continuing definitional problems and there will be continuing problems trying to figure out what the language means,” he said.

Robert Johnson is policy director at New Hampshire Farm Bureau Federation, which proposed the amended versions of the two bills that passed the House and Senate.

“What I say to folks is: the money in agriculture in New Hampshire today, it's not necessarily in the quantity produced, it's in the experience provided,” he said. “That's why we really fought so hard to incorporate the agritourism definition under marketing. That's what all these farmers are doing.”

And by adding agritourism to the land-use law, he said, “The point is to allow it, but to also allow it to be regulated.”

New Hampshire has about 4,400 farms, Johnson said; about 3,200 have gross revenues under $10,000 a year.

It's important not to limit by law which activities are considered agritourism, he said. “Times change. Farmers are creative,” he said. “They're going to come up with new things, new ideas.”

Some communities aren't waiting for the state to act.

Gilford town meeting voters just passed a warrant article allowing agritourism in all zones except the islands. But they also voted to make such uses subject to the town's nuisance regulations.

John Ayer, Gilford's planning director, said traditional agriculture has been exempt from nuisance complaints by “whining neighbors.”

But he said agritourism is more commercially oriented, “and people are less inclined to defend the right to make noise or disturb the neighbors when it comes to agritourism.”

The issue arose after some neighbors objected to farm-to-table weddings at Timber Hill Farm. The town initially issued a cease-and-desist order against the farm, but the Board of Adjustment overturned it, siding with the farmer, Isaac Howe.

Howe has since received site plan approval from the planning board, but his efforts are on hold pending a court appeal by abutters.

Howe said small family farms like his “have a tough struggle ahead of them.”

“The American food system and food chain has turned into such an industrial system, it's hard to compete,” he said. “For small farms to keep their edge and advantage in the marketplace, they really have to be as flexible as possible.”

And that means getting people out to the farms, whether that's for a corn maze, pick-your-own berries or a farm-to-table meal, Howe said. “The more people that come to the farm, the more opportunities the farmer has to market and sell their products,” he said.

He said he's encouraged that lawmakers are trying to help. “I think the trend is certainly in the direction of making sure that New Hampshire farms stay alive and stay viable,” he said.

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