By GAIL OBER, LACONIA DAILY SUN
SANBORNTON — Just six months after the state legislature changed the definition of agriculture to include agritourism, and more than a year into a different battle over agriculture and wedding events in Gilford, an Upper Bay Road family finds itself in a similar situation but under very different circumstances.
Ralph and Kris Rathjen run a farm with a spectacular view of Lake Winnisquam. For at least four years, KREBS Farm has provided fresh produce and a variety of berries to local restaurants as well as at their own farm stand. There is a piggery and food ducks at the farm, as well as a pick-your-own season.
"All Ralph has ever wanted was 40 acres and a mule," said Kris Rathjen about her husband with a laugh.
After a successful test run with a farm-to-table dinner in their renovated barn last year, the Rathjens developed a plan to host various events, including weddings, in a large tent on their property. They also plan to have smaller events in their barn during the winter. The Rathjens submitted a site plan request and a parking plan to the Planning Board for review.
And that's where the problems began.
According to Town Planner Bob Ward, the Rathjen's proposal could have fallen under one of three Sanbornton zoning categories, which are home occupation level 1, home occupation level 2, or commercial. Agriculture is permitted in all zones.
Ward told the Planning Board that the new state law that was passed in June 2016 defining agritourism as a component of agriculture in New Hampshire is a "complication."
However, after considerable deliberation, the Planning Board decided the KREBS Farm request was "way beyond level 2" and should be considered commercial. They instructed KREBS Farm to seek a variance from the Zoning Board of Adjustments for a commercial use in a general residential zone.
The Rathjens and their neighbors, who by and large support the wedding venue proposal, have said they do not want the use of the property classified as commercial, despite the fact that Ward told them it would only be a change in use and the zoning would not change.
Rather than apply for a variance for a change in use, the Rathjens asked the Zoning Board to overturn the Planning Board's decision to classify the proposed use as commercial.
In a well attended meeting on Dec. 22, the ZBA, which had previously met with town attorney Chris Boldt for about an hour, voted 4 to 1 to consider the Rathjens' project as agritourism, which is allowed by right, and would not need a variance.
Presumably, the Rathjens will take their site plan back to the Planning Board for site plan review.
What makes the KREBS Farm case different than the Timber Hill Farm case in Gilford is largely a function of time, local zoning ordinances and legal definitions.
It was the summer of 2015 when Timber Hill Farm on Gunstock Hill Road began hosting weddings and abutter Monique Twomey complained to the town toward the end of the summer. The town code enforcement officer issued a cease-and-desist order, which was overturned twice by the ZBA late that year.
The Planning Board also determined that agritourism is not agriculture, citing their own local ordinances and a pivotal case from Henniker about a Christmas tree farmer who wanted to host similar events.
In 2014, the Forster v. Henniker case regarding agritourism made it to the New Hampshire Supreme Court, which determined in June of 2015 that because of the state law at the time and the deliberate decision of the legislature to define agriculture and agritourism separately that the wedding event plans of Forster couldn't happen.
Because of the Henniker decision, the Gilford Planning Board determined that they didn't have the authority to issue a site plan because, legally, agritourism is not agriculture, according to both state law and the Forster Supreme Court decision.
Timber Hill Farm appealed the Planning Board's decision to the ZBA, which overturned it. Timber Hill Farm returned to the Planning Board for a site plan approval but the Planning Board still refused to review the case, until ordered to do so by the Gilford Board of Selectmen, which is provided for in state law.
The second decision by the ZBA to not enforce the cease-and-desist order was appealed to the Belknap County Supreme Court where it is still being considered by the court.
The Gilford Planning Board has since granted Timber Hill Farm a site plan and the town of Gilford passed a new ordinance in its March 2016 annual Town Meeting to include agritourism as a component of agriculture.
Because the legal case had not been finally adjudicated, the Howe family, which owns Timber Hill Farm, has been unable to go forward with any events on Gunstock Hill Road. Andy Howe said they had a few events at their pavilion this past summer at their long-running farm stand Beans and Greens, and that they were successful.
The differences between the two cases are substantial.
While Gilford had its own definition of agriculture when the Howes first attempted their program in 2015, the town of Sanbornton does not specifically define agriculture, although it is allowed in all zones. By state law, when a town doesn't specifically define something, the legal definition reverts to the state definition. The town of Henniker, at the time of the Forster application, didn't have a definition of agriculture, which is why its court case and subsequent Supreme Court ruling depended solely on the state definition at the time.
The Howes' request came before the state changed its definition of agritourism to include "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."
In addition, the Howes' request came before the town of Gilford and added a specific definition of agritourism in their zoning ordinances, which is consistent with the newest state definition but adds some restrictions as to the number of people attending the event, the number of events per week, and restricting amplified music and alcohol beverages.
The decision as to what laws apply to the Howes and their complaining abutter, Twomey, will be determined by a judge in the Belknap County Superior Court. The court has already heard oral arguments at a hearing on the merits held two weeks ago.
The Rathjens' application comes after the state changed its law in 2016, said their attorney Courtney Herz, who said "It fits squarely within the definition of agritourism" that includes a "no exhaustive list" of allowed activities.
At last week's Sanbornton ZBA meeting, Herz also cautioned against changing the use of KREBS farm to "commercial" because, while it will likely not open the rest of that neighborhood to additional commercial uses, or the so-called slippery slope argument, she said there is some legal precedence to the contrary.
She cited a case in Newington ( Simplex Technologies v. Newington in 2001) where the state Supreme Court overturned a lower court decision and the ZBA when it determined that an industrially zoned area for a former manufacturing plant that was nearly surrounded by a commercial zone could be used for commercial expansion because the existing commercial uses in that neighborhood had proven there was no adverse effect to the area and that the owners of the former plant had met their hardship burden by seeking a commercial use variance for an industrially zoned area