GILFORD – The pendulum shifted away from Timber Hill Farm and back toward its abutter last night when the Planning Board voted 4-to-2 that "farm-to-table events," weddings and other similar commercial activities are inappropriate for single-family residential zones.
The board determined applicants Andrew and Martina Howe of Gunstock Hill Road will need a variance from the Zoning Board of Adjustments to move forward.
The vote sent the Howes' attorneys, Patrick and Ethan Wood, who had gone to Monday's meeting to request a site plan review for their farm-to-table and other events, scrambling to file for a variance before the close of business yesterday, which is the deadline to appear before the ZBA in late December.
The meeting was a crowded with people who support the Howes and with those who don't. Many of those who don't are abutters or neighbors while many of those who do are from surrounding communities and involved in agricultural pursuits.
The Howes own a 250-acre farm in a single-family residential zone on 263 to 300 Gunstock Hill Road. Last year, they experimenting with holding weddings along with a farm-to-table event they have been holding since 2008. According to previous statements by the Howes, their weddings and other events were successful and they have taken deposits for "six or seven" of these events for 2016. Abutter Monique Twomey objected, and a cease-and-desist order was issued by the code enforcement department. The order was challenged twice through the ZBA and both times the board declined to uphold it, allowing the matter to go to the Planning Board for site plan review. Because Howe is the vice chairman of the ZBA and a longtime member of that board, three of the six members, including Howe, recused themselves for various reasons and former Selectman Connie Grant was appointed to temporary fill-in for this hearing.
Monday's meeting began with attorney Robert Ciandella, who represents the Planning Board, explaining it needed to determine first if they have jurisdiction over zoning laws through their duty to evaluate site plans. The board voted unanimously that it did.
The next step, according to Ciandella was to determine in the context of the Howes' application in light of the uses permitted under current Gilford zoning ordinances.
With member Norman Silber taking the lead, he noted the ZBA did not "overturn" the cease-and-desist order issued by the the code enforcement officer in the wake of the complaint, but voted 1-to-4 not to enforce it. The decision not to enforce was upheld by a 3-to-0 vote at a rehearing of the ZBA in late November. He described the event as a way to "bypass" the Planning Board– either intentionally or unintentionally.
"The back door [was] to expand a decision not to enforce an order into an omnibus ruling," he said, to which Chairman John Morgenstern agreed.
Morgenstern said the ZBA's attorney, Laura Spector-Morgan, said their decision as to whether or not this was permitted had nothing to do with site plan review and was not a statement as to whether the use is allowed in a single-family zone.
Silber moved that hosting farm-to table events, weddings and the like did not constitute agriculture and the proposed use by the Howes' requires a land use variance from the ZBA.
Member Carolyn Scattergood said she would not support the motion, as Silber made it because she didn't want to include "farm-to-table." She said she was concerned with weddings and other similar events.
Silber's motion passed 4-to-2, with Scattergood and Wayne Hall voting against it.
By way of explanation, Silber said that the Howes' request for a site plan has nothing to do with conservation easements and has nothing to do with the town's selectboard or police department.
He said those arguments are "red herrings" and "irrelevant." While Silber agreed that New Hampshire is a Right to Farm state, he said that doesn't mean someone can use it to "bootstrap" any commercial activity in a single-family residence.
"If this was a commercial zone, no problem," Silber continued, noting the state Supreme Court recently ruled on a similar case, saying that nothing in RSA 21:34(a) – the state law that defines agriculture – incorporates agritourism within the definition of agriculture. Further, said Silber, in his opinion, the Supreme Court said in their 4-to-1 ruling that the state legislature specifically removed agritourism from the definition of agriculture and gave it its own specific definition.
"If someone doesn't like it, then go to Concord and get it changed," he said.
Morgenstern said that while he has sympathy for the Howes, he also understands the point of view of the neighbors and feels the Planning Board is there for all of the people and not to take away anybody's rights, including those of the abutters.
Morgenstern noted that many of the people at the first Planning Board hearing who spoke for agritourism were not Gilford residents but people with their own agendas.
"They don't have to live with the decisions [the land boards] here have to make," Silber added.