Timber Hill Farm neighbor files suit, wants restraining order to stop events

LACONIA — A Gilford woman at the center of an agritourism battle has filed suit against the town in Belknap County Superior Court this week.

Monique Twomey is asking the court to issue a restraining order on the owners of Timber Hill Farm from conducting weddings and other similar events on their property on Gunstock Hill Road.

Twomey, acting as an individual and as the trustee of her property, claims the Zoning Board of Adjustments' decision to overturn the cease-and-desist order stopping Andrew and Martina Howe from holding events on their property is unlawful and unreasonable.

The issue began last year when the Howes began hosting weddings under a large tent about 250 feet from Twomey's home. She objects to the noise and general neighborhood disturbance, as do other neighbors, and asked for and received a cease-and-desist order from Gilford's code enforcement officer. The ZBA declined to enforce the order in its first hearing and in the requested rehearing as well. By law, the next avenue available to Twomey is Superior Court.

Twomey, through attorney Joe Driscoll, said the ZBA decision flies in the face of a 2013 state Supreme Court decision that agritourism is not included in the state's definition of agriculture.

Driscoll also argues that the initial decision the ZBA made in early November was unclear as to the scope of its order, and the scope was only clarified during a rehearing on Dec. 1 in which the board refused to allow any testimony from either party. The ZBA ordered that the Howe family present a site plan to the Planning Board.

Driscoll said that this was wrong procedurally because the ZBA left no opportunity for his client to present new evidence as to whether or not the scope of the decision included allowing agritourism in all residential zones in Gilford. In the suit, he claims it was a separate and distinct interpretation that was not made clear the first time and said his client should have been give a full rehearing.

Attorney Laura Spector-Morgan, who represents the ZBA, had advised the three members who were there for the Dec. 1 meeting as to how they should word their motion. In addition, she clarified that the board's original decision to refuse to uphold the cease-and-desist order meant that agritourism – including weddings and the like, is considered part of agriculture.

Driscoll said the 3-to-0 vote on the clarification should be invalid, because the original vote was whether to uphold the cease-and-desist order, nothing further.

He also argues that only three members were present at the rehearing and one of them changed his vote from the first decision. Since Bill Knightly only voted on the cease and desist order the first time, Driscoll argues he should not have changed his vote to uphold the broader scope during the appeal.

Driscoll said the person who failed to attend the rehearing was the deciding factor in the 1-3 vote of Sept. 29 in the first hearing and should have been present to constitute a majority vote in the second hearing.

Driscoll asks that the court vacate the decision on the request for a rehearing and its clarification.

Moving to the larger issue, Driscoll also argues that the rule of ejusdem generis – or the rule that resolves the problem where groups of words in which one word is ambiguous – applies to the difference between agriculture and agritourism.

According to the pleading, the larger question of whether or not agritourism is agriculture has already been settled by a 2013 Supreme Court ruling titled Forster v Henniker or "Forster."

The Howes have been arguing all along that, by definition, the word "agriculture" includes the subcategory of "agritourism." Specifically, the Howes contend that the town of Gilford's ordinance allows agriculture in all seven zoning districts within the town.

The ordinance defines agriculture as "orchard, vegetable garden, nursery, dairy farm, commercial animals, livestock, or other commercial agriculture activities. Home farming is allowed in all zones."

Driscoll said the ordinance does not reference the state definition of agriculture that defines agriculture and farming. Within a separate paragraph of state law, the state defines agritourism as "attracting visitors to a working farm for the purpose of eating a meal, making overnight stays, enjoyment of the farm environment, education on farm operations, or active involvement in the activity of the farm which is ancillary to the farm operation."

The Howes have contended that in Gilford "other agricultural commercial activity" means weddings and similar events.

Driscoll argues that in Forster, the court decidedly said agritourism is not agriculture. Absent prior rulings, the majority of the court went to the legislative intent of the state law and determined that the legislature deliberately separated agritourism from agriculture.

Given the court's decision on the definitions of agriculture and agritourism being two separate things, he contends the ZBA decision was made in error.

Driscoll also claims that the Howes' activities near the Twomey property line is an unconstitutional taking. He said a broker advised him that his client's property values could be decreased by as much as $200,000 to close to one third of the value. He added the appraisal was obtained after the first ZBA decision but before the rehearing and that since he was not allow to present additional information, the decision made at the rehearing was invalid.

Driscoll also called the ZBA decision unreasonable because of it failed to consider the impact of his clients' property value.

Additionally, he said the notice of posting was specific to the Howe property and didn't not include that it was wide-sweeping, thus denying the right of citizens, residents, and property owners the opportunity to know the full impact of its decision.

Driscoll is also seeking legal fees.

County commissioners debate privatizing nursing home

LACONIA — Two Belknap County commissioners find themselves on different sides of what they agree is a looming crisis in care for the elderly in Belknap County.
Commissioner Richard Burchell (R-Gilmanton), who last month told members of the Belknap County Convention’s Executive Committee that the county should explore the possible sale of the Belknap County Nursing Home, reiterated his position when the commission met Wednesday morning.
“This doesn’t have to be a county function,” said Burchell, who said that nonprofit entities should be encouraged to look at taking over the nursing home.
Commissioner Hunter Taylor (R-Alton) said he doesn’t think that privatizing the nursing home is the answer to a growing elderly population in the county.
“The nursing home is needed. It is a county responsibility,” said Taylor, who maintained that partnering with nonprofits to find ways to keep people in their own homes longer is something that should be explored.
He said it costs $22,000 a year to provide home care services compared to $85,000 a year for nursing home care.
Burchell said that the county is “downhill from a very complex funding formula” with regard to Medicaid reimbursements which will be changing in future years, which puts it in a position of responsibility without authority.
Currently, county taxpayers not only pay for a share of Belknap County Nursing home costs not covered by Medicaid reimbursements, but also pay $6.1 million in the Health and Human Services line in the county budget which represents payments made to the state of New Hampshire for county residents who are in private nursing homes and who are covered by Medicaid.
That responsibility would still be on the county’s shoulders even if the nursing home were sold, as would be the unreimbursed costs for those who remained in the facility if it became a private nursing home.
County Commission Chairman David DeVoy (R-Sanbornton) thanked his fellow commissioners for their comments but did not weigh in with an opinion.
Taylor said he thinks the county is uniquely positioned to deal with care of the elderly and the drug crisis of heroin overdoses and should look at doing something about both of them in the year ahead.
He suggested that the Belknap County Sheriff’s Department would do well to follow the city of Laconia’s example when it comes to handling drug situations and suggested that the department add a position similar to what Laconia police currently have.

Purple Hearts & a Bronze Star - WWII hero had to fight to be drafted

BELMONT — A 94-year-old World War II veteran who received long overdue medals from that conflict yesterday said he had to volunteer to be drafted in order to enter the military.
"I was born in Quebec. You could see the custom house from where I was born. But when I volunteered, the Army wouldn't take me because I was a Canadian citizen,'' said Rosario Cadorette, who was living in Northfield, Vermont, when he tried to enlist in 1942.
Told that he would have to register with the local draft board and tell them that he wanted to be drafted, Cadorette says he wasted no time in signing up and was soon drafted.
"When you're young, you're gung-ho" says Cadorette, who was a machine gunner with the 13th Infantry Regiment of 8th Infantry Division and saw action in Normandy several weeks after D-Day, and was wounded for the first time on July 23, 1944.
On Nov. 23 that same year, while fighting with his unit in Germany, Cadorette was wounded again, but remained in his precarious position near enemy lines with a more seriously wounded fellow soldier. The next day, despite coming under enemy fire, he was able to help his wounded comrade back to an aid station.
"Acts of heroism like this make a difference. He's a member of the Greatest Generation and I'm very humbled just to be here with him," said U.S. Sen. Kelly Ayotte as she took part in a ceremony hosted by Charles Kilborn Post 58 American Legion at the Belmont Mill, at which Cadorette was presented with a Bronze Star with a V for valor, as well as an Oak Leaf Cluster, a Presidential Unit Citation, and his second Purple Heart.
As a result of his wounds, Cadorette said he has a metal plate in his head and the remnants of a scar from a bullet that creased his skull. Even though he uses a cane to help himself get around, he remains alert and active, as evidenced by his walking 2 miles earlier in the day before arriving at yesterday afternoon's ceremony.
The event was arranged by Woody Fogg, adjutant for Post 58, who said that when Cadorette, who lives in Canterbury, joined the post last year, he checked his military service record and found out that Cadorette had never received the medals he had earned.
"The honors are long overdue. Like many soldiers, he just got out of the service and went home without even thinking about any medals,'" said Fogg, who described Cadorette as being "as sharp as a tack."
Fogg contacted Ayotte's staff, which worked with Post 58 to obtain the medals and set up the ceremony.
Cadorette had no idea that the ceremony was going to take place until he arrived.
"We knew that when he saw his family members there he'd know something was up. So I told him what was going to happen. Old soldiers hate to be ambushed," said Fogg.
American Legion officers from around the state, including State Commander John Graham, attended the ceremony, as did Ruth Mooney, chairman of the Belmont Selectmen, who gave Cadorette a big hug and thanked him for his service to the country.
"I'm very humbled. This was a great day and a big surprise. I just want to thank all of you, especially my family, for showing up today," said Cadorette, who was answered from the audience by a call of "We love you."