Updated: Jul 7, 2020
This post should not be construed as legal advice (or marriage counseling).
According to the most recent Census of Agriculture, Maryland had 307 farms reporting income from agritourism operations. These activities can include everything from corn mazes, petting zoos, u-pick, hayrides, facilities for weddings, etc. The question can often arise: should all agritourism activities on the farm be considered agriculture? For example, if you put in facilities to hold outdoor concerts on your farm, is this still agriculture? The answer to these questions can often be found in zoning ordinances as one Christmas tree producer in New Hampshire recently found out.
In Forster v. Town of Henniker, the Supreme Court of New Hampshire ruled that hosting weddings was not an accessory use of a Christmas tree farmer’s farm and not allowed in his zoning district. The facts of the case are fairly simple. Farmer owned and operated a Christmas tree farm which included an event space with an altar made of balsam fir boughs. The property was located in a rural residential district which allowed agriculture. The town planner informed the farmer that weddings were not permitted in a rural residential area and the zoning board of adjustment agreed.
The farmer made two arguments as to why weddings should be allowed on his farm: 1) the proposed uses were allowed in a rural residential district and 2) holding weddings on the farm was an accessory use. The New Hampshire Supreme Court found that weddings were not allowed in a rural residential district. The court found that state statutes defining “agriculture” did include a “Christmas tree farm” but “agritourism” was not included in the definition of “agriculture.” Nothing in the legislative history (what members of the state’s legislature had to say when approving the legislation) supported the argument that weddings and other events should be included in the definition of “agriculture.” Finally, the court found the town zoning ordinance was not preempted by state law from preventing certain activities from going on.
The farmer’s final argument was that weddings and other events was an accessory use, or use which is incidental to the primary use. The court rejected holding events or weddings as an accessory use. Looking at previous decisions, the court found the test to determine if a use was accessory to be a use which is commonly, habitually, and through long practice been established as reasonably associated with the primary use in the local area. The farmer did not present enough evidence to prove a long history of these types of events being a part of agriculture in the area.
The decision did have one justice dissenting. The dissent would have included the definition of “agritourism” in the definition of “agriculture.” This justice found enough evidence to support the claim that agriculture did include agritourism. The state’s definition of agritourism was “enjoyment of the farm environment.” To this justice, hosting a wedding or an event overlooking the Christmas tree farm would constitute enjoyment of the farm. Finally, the justice would have found hosting events to be an accessory use.
Why Should You Care?
Agritourism continues to grow in popularity and there are concerns that not every activity an operator wants to adopt will fall under “agriculture” or even “agritourism” for that matter. Before adopting a new activity, make sure you talk it over with zoning and planning officials in your county to make sure it qualifies and you do not need additional permits. Sticking your head in the sand may seem like a good choice but when it comes to adopting new practices to keep your farm profitable, it is probably not the best course.
Forester v. Town of Henniker, No. 2013-893, 2015 WL 3638597, at *1 (N.H. June 12, 2015).
U.S. Department of Agriculture – National Agricultural Statistics Service. 2012 Census of Agriculture, Maryland. Washington D.C., 2014.