By Bea Lewis
LACONIA — A judge has overturned a Gilford Zoning Board decision that concluded that weddings and similar farm to table activities were permitted agricultural uses under the town's ordinance.
In a nine-page ruling released on Valentine's Day, the court found that Monique Twomey had demonstrated by a "balance of probabilities" that the ZBA's Dec. 22, 2015 decision was both unlawful and unreasonable.
"From our perspective, we're happy the judge ruled the way he did. Our concerns were what type of activities could go on in a residential area and the impact it could have on neighbors," said Attorney Joe
Driscoll of Laconia, who represented the plaintiff.
After receiving a copy of the ruling, Driscoll said, he called Twomey to share the news. "She was very pleased," he said.
Gilford Town Administrator Scott Dunn said he couldn't comment as he had not yet seen a copy of the ruling.
In vacating the ZBA's decision, Judge James O'Neill found that the board improperly interpreted "agriculture" as defined by the Gilford Zoning Ordinance.
The ordinance describes agriculture to include, orchard, vegetable garden, nursery, dairy farm, commercial animals, poultry, livestock, or other commercial agricultural activity.
The ZBA concluded that farm-to-table events at Timber Hill Farm at 263 Gunstock Hill Road, that abuts Twomey's property, were permissible under the "other commercial agricultural activity."
Based on the plain language of the ordinance, Judge O'Neill wrote that he was "unpersuaded" that farm-to-table events constitute other commercial agricultural activity, simply because the events would incorporate food grown or raised on the farm.
Under the town's interpretation of the definition of agriculture, O'Neill held that it was conceivable that any commercial event would be permitted on the farm regardless of the activity's character, as long as products resulting from agricultural activities on the farm were used.
"The court concludes that 'agriculture' as defined by the Town of Gilford, cannot be interpreted to allow for such an expansive use,"O'Neill wrote.
The judge held that the proposed farm-to-table events go well beyond the production based activities contemplated by the ordinance. While the farm as a venue for an event may be characterized as agricultural, weddings involve little to no agricultural activity that is similar in type listed in the definition of agriculture included in the ordinance.
"The court does not find that the general phase 'other commercial agricultural activity' contemplates large scale events that have only minimal connections to the farm's primary agricultural uses," the ruling reads.
While the judge found that weddings are not permitted under the GZO definition of "agriculture" he denied the petitioner's request to award attorney's fees.
Twomey's lawyer had argued for his fees based on a claim that the ZBA acted in bad faith or was grossly negligent in rendering its decision, as it conflicted with an opinion prepared by legal counsel.
Attorney Laura Spector-Morgan, who represented the town, asserted that the ZBA declined to follow the advice rendered by counsel for the selectmen and the Planning Board, not counsel for the ZBA.
The judge concluded that the petitioners failed to produce evidence of bad faith or gross negligence on behalf of the ZBA. The court additionally ruled that the petitioners cited no support for the assertion that a ZBA must act in accordance with any and all advisory opinions drafted by counsel.
The ruling notes that the zoning ordinance has since been amended to include "agritourism" as a permitted use on properties located in the single-family residence zoning district. While the proposed use of Timber Hill Farm may be permitted under "agritourism," the ZBA found the use was permitted under the ordinance's definition of "agriculture" and not "agritourism." As a result, the ZBA's decision is unaffected by the amendment, according to the judge. His ruling only considered whether weddings and other farm to table events are permitted under the definition of "agriculture."
Attorney Ethan Wood of Laconia, who represents farm owners Andy and Martina Howe, had argued that the ZBA's interpretation of the zoning ordinance was both reasonable and lawful and should not be overturned.
"The decision by the ZBA simply anticipated the changes that both the Town of Gilford and the State of New Hampshire would later make to both ordinances and state law regarding the (Howes') proposed use of the land," he wrote.
Wood did not immediately return a phone calling seeking comment.
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