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Henniker Tree Farm Owner Prevails

By CNHT | May 2, 2016

This issue demonstrates the importance of keeping local control.

by Steve Forster,
Christmas Tree Farm, Henniker NH

Four costly years for me AND the taxpayer, wasted. A very expensive exercise in English composition!

This is a “property rights” issue. I wish it were as simple as “it’s your property and you can do what you like on it.” Well, that’s not exactly true. As we relinquish control to our elected/consented land use boards, hourly planning consultants and/or full-time planners, and lack of citizen’s involvement in the laws that are passed, the property owners end up in court fighting for the plain, ordinary and literal meaning of a statute.

To make matters worse and inequitable, property owners are up against land use boards, planners, and town attorneys, who have access to taxpayers money to take the time to scour law books and laws to make what is plain to be ambiguous, and sue us. That is where this has brought all of us today.

The diversification of my farm operation into agritourism was based on the 2007 RSA 21:34-a, which was adopted by the legislative body of my town, and embedded in our zoning ordinances. In 2012, I was given an illegal cease and desist, and forced into the ZBA by a planning consultant to apply for a variance, which was denied after many appeals.

The ZBA refused to recognize and accept the term “agritourism,” and the Selectboard, who shall administer our laws, stayed hermetical! This ZBA’s denials forced me to go as far as I did, or resigned to sell my property to land developers. It was going to one or the other. I chose my farm, and the blood, sweat, tears, and years it took to turn an uncultivated piece of property into the beautiful Christmas tree farm it is today.

For the whole State of NH, I spent thousands of dollars defending alone a law enacted by the N.H. Legislature. I believed it was the correct thing to do; and to protect my property rights, keeping within existing law. I did not agree with the Supreme Court ruling, except for the dissent ruling by Justice Hicks. The majority denied the plain language of RSA 21:34-a, suggesting that the legislature revisit the RSA to simply move the term “agritourism” from the body into the current title – “Farm, Agriculture, Farming.”

My case forced and directed NH lawmakers to attend to agritourism RSA housekeeping. Unfortunately, since July 2015, instead of “housekeeping” they rewrote the whole statute, which is still pending. This new farming/agriculture/agritourism RSA, which has been worked on by lawmakers since July 2015, now has language embedded that is ambiguous, is restrictive and controlling, and provides a path for more law suits.

With that in mind, concerned Henniker residents wanted to get the horse in front of the cart ahead of the state AND town, and crafted a citizen’s petition warrant article that did exactly what the Supreme Court asked of the legislators, but what was cleverly ignored by lawmakers. We titled our ordinance “farm, agriculture, farming, agritourism,” and went further by defining in detail what activities are considered agritourism, against the desires of our planning board. I wonder why?

We now follow that ordinance that was written and voted in by the People, and my site plan application passed. Not an elected/consented land use board member, not a lawyer, not a planner, not a municipality lobbyist, not a conservationist, not a single lawmaker in Concord had part in the writing any of it! Just “We The People!”

Topics: Property Rights | Comments Off

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