GILFORD — An appeal of a cease and desist order from the town stopping Andy and Martina Howe from hosting agri-tourism events like weddings and graduations on their property on Gunstock Hill Road was tabled last night at the Zoning Board of Adjustments meeting until next Tuesday night.
The appeal was tabled because the ZBA has five regular members and one alternate member, including Andy Howe and Steve Nix, who had to recuse themselves. Two of the other members were absent meaning only two members were left and that was not a quorum.
Following last night's meeting, Town Administrator Scott Dunn said the selectmen are ready to appoint a second person to the ZBA as an alternate. With two alternate and three permanent board members, if every member comes to the September 29 meeting, there should be a full board to hear Howe's appeal, even with the two recusals.
The Howe's own Beans and Greens, which is a family farm and farm stand that operates from a commercial zone on Intervale Road in what's called the "meadows" portion of Gilford.
What predicated last night's attempted appeal to the ZBA was a cease and desist order sent from the town's code enforcement officer to the Howes ordering them to stop hosting weddings and other similar events on their Gunstock Hill Road property.
In a telephone interview yesterday morning, Howe explained that for years Beans and Greens has been hosting "farm to table" dinners and increasing the number of agri-tourism events that are farming-related. He said those types of events include parties for graduation, weddings, and the annual corn maze.
He said the idea for celebrations and private parties came from people who attended the "farm to table" dinners and told him they wanted something that involved local-only farming for their personal celebrations.
The events were being done on the Howe's property at Gunstock Hill Road where they pitched a tent. The property is in current use and is protected by a conservation easement, but Howe said he checked with the Society for the Protection of New Hampshire's Forests and was told that even though the land was in conservation, as long as the food being served came from the farm, then it was agriculture by definition.
Howe said he also checked with the town's planning director who he said told him something similar to what he was told from the Forest Society.
"Our operation was based on an understanding that we can (host these types of events)", Howe said.
According to the town's tax maps, 263 Gunstock Hill Road, lot number 225-002.100 is in a single-family residential zone with a conservation overlay.
Howe's lawyer Patrick Wood said last night that agriculture is permitted in all of Gilford's zones.
Howe said that the events are planned for June, July, August and September of 2016 and eight events have been scheduled and deposits have been taken. Howe said all of the events will feature food grown and harvested at his farm.
He said he had a few events this year but when a neighbor complained to the town that what they were doing was not agriculture-related, the town attorney was called for an opinion.
Howe said attorney Robert Maher based his advice to the town on an opinion issued by the N.H. Supreme Court in June of 2015 about a similar operation in Henniker, that said "weddings and like events are not accessory uses" to a farm and that hosting these events in (Henniker) is not a permitted use. Wood decline to comment on the Henniker decision saying only that the two communities have "very different zoning ordinances."
Maher suggested that the Howes may also need a variance for "agri-tourism."
Wood said he doesn't think a variance is necessary but is preparing for one as well as a site plan for the Planning Board to approve.
In the Henniker case the Supreme Court upheld a decision made by a lower court that a tree farmer couldn't host agri-tourism activities because the term "agri-tourism" doesn't appear in state law. They ruled 4 to 1 that the petitioners statements that the N.H. Legislature meant to require it in it's definition of agriculture were unsupported by the evidence.
A second argument made by the petitioner said that his proposals for agri-tourism were an accessory use under Henniker's ordinances. The court ruled that Henniker's ordinances defined accessory use as one that is subordinate and incidental to the main use of the same lot and not a long-standing practice in that zone. As such, the court said the petitioner failed to present evidence the accessory use of agri-toursim was "'commonly, habitually, and by long practice been established as reasonably associated with the primary...use' in the local area."
Howe told The Daily Sun that if agri-toursim can't continue for him and his wife, his livelihood is at stake. He said people paid deposits to him and made hotel and other reservations in the area and if he is forced to return those deposits and make people change their venues at the last minute, it could put his entire farming operation at financial risk.
"This is just a nightmare mess," Howe said.
He said he and Martina filed a request two weeks ago with the town to allow the eight contracts that were already signed but said he hasn't gotten any response.
Howe went on to say that agri-trourism in New Hampshire is what allows many local farms to stay afloat financially and that farming alone these days just isn't enough.
"This is what sustains us. These activities are what sustain us," he said.