Timber Hill agritourism proposal stymies Gilford board

GILFORD — A nearly four-hour meeting on Monday night was not enough to resolve the confusion around an agritourism proposal that already had been continued from the Gilford Planning Board’s July 17 meeting. The board continued the hearing for another two weeks to allow members to get further information.
While Andrew Howe’s current application for Timber Hill Farm meets all of the conditions outlined in the town’s new agritourism ordinance, as well as addressing previously expressed concerns by the Planning Board, internal contradictions within town ordinances have members stymied.
The town’s definition of agritourism stipulates that there be no artificial lighting that extends beyond the structures utilized for the event, but that leaves safety concerns when the ordinance allows such events to continue as late as 10 p.m. Planning Board members struggled with whether limiting activities to daylight hours to get around the lighting requirements would stand up when the ordinance specifically allows events to continue much later.
Members also were confused by the contradiction between site plan regulations that require maps to show parking areas and Howe’s proposal to allow no parking because of previous objections by the board to off-site parking included in the previous plan. Howe’s attorney, Ethan Wood, complicated matters by suggesting that they show 100 parking spaces on the map but not actually allow any parking.
Then there were procedural questions. After a motion to approve the application with certain conditions failed on 2-3 vote with one abstention, members spent a half-hour debating whether the failure to grant approval was the same as denying the application. Planning Board procedures require an affirmative vote to approve or deny, but members hesitated to make a motion to deny the application. When Richard Grenier, the selectmen’s representative to the Planning Board, finally did move to deny the application, it resulted in a 3-3 tie that Chair Wayne Hall broke by voting against denial.
A motion to table the proposal got only two affirmative votes on a first attempt, but after discussing the matter for another 15 minutes, the board voted, 5-1, to table it for another two weeks.
The hearing
When the public hearing opened at 7 p.m., Wood took up the unresolved questions from July 17 by suggesting that the use of tiki torches to light the way to the venue would satisfy the requirement for no artificial lighting. He also discussed the need for emergency lighting, saying it would not be used unless there were a medical or other emergency.
Board members suggested that flashlights or solar lighting might be employed, but others said anything other than the sun would be artificial light.
Wood also attempted to clarify concerns about there being a previously approved plan that is in litigation. While the town attorney said approval of the current application would supercede the old one, Wood maintained that the previous application is valid until a judge rules it to be illegal.
“When we have a final adjudication, we’ll choose which one to use,” he said, explaining that, “If this doesn’t pass, or if it passes and gets appealed, we could be in court for another two years. We would go with whichever plan gains approval.”
The current proposal uses only eight acres of the 188-acre farm at 285 Gunstock Hill Road, limiting activities to the most remote portion of the property and requiring that guests arrive by shuttle bus. The earlier plan by Howe and his wife, Martina, utilizes 70 more acres with parking on a lot across Gunstock Hill Road.
Howe had stated that a conservation easement on the property does not allow parking but Wood clarified that, while there is no prohibition, it would require permission of the easement holder to allow parking. “We would work with the easement holder to get it approved if the town had a requirement for it,” he said.
Planning Board member Carolyn Scattergood said, “This sounds like you’re trying to avoid getting a variance.” She said she would prefer waiving the parking requirement and forcing Howe to seek a variance from the Zoning Board of Adjustment to eliminate that requirement, rather than requiring parking, which would involve having Howe submit a revised site plan with proof that the easement holder would allow parking.
When the hearing was opened for public comment, Bill Seed said the conservation easements had been put in place by Andrew Howe’s parents and cannot be altered.
“Those are recorded deeds and are there for the protection of the public interest,” he said.
“Today there’s no question that agritourism is permitted,” Seed continued. “I favor that, but what bothers me about Timber Hill Farm is very little is in production today. Agritourism cannot be the tail wagging the dog. It has to be an agricultural operation.”
Howe disputed the assertion that his farm is not an agricultural operation, saying, “Every square inch of agricultural soil is being used for agriculture.” He cited the growing of squash, pumpkins, and hay, as well as the raising of livestock. “I don’t think there’s a more agricultural property in the town of Gilford,” he said.
Bob Pomeroy, referring to the application which would allow Howe to hold wedding receptions on the property, asked, “How can weddings be agritourism?” He also complained about the safety of the farm access road, saying, “You’re talking busing in a bucolic area.”
Saying, “We had a judge who twice has sided with Mrs. Twomey, and they appealed to the Supreme Court,” Pomeroy asked, “Do you want to go down that same path again?”
Brian Crawford, saying he was head of the commission on agritourism, told the board, “We intentionally left off weddings from the definition of agritourism,” and he echoed the belief that Howe’s agritourism plan was not an accessory use but the primary use he had in mind for the property.
“I know you’re pushing for this,” Crawford said, “but it’s not the right thing to do. If this was your neighborhood, I know you wouldn’t want it, either.”
Monique Twomey, who had sued the town over its approval of the earlier site plan, questioned the town’s definition of “third party” and said it did not match residents’ intentions in approving the agritourism ordinance.
She was referring to the section prohibiting alcoholic beverages and amplified music “for which compensation is paid by a third party to the owner or operator of the farm for the use of the property.”
Twomey was not alone in not understanding that it refers to someone renting the property for their own event; some board members, including Grenier, were equally confused by the distinction and thought the provision would prevent Howe from hiring someone to dispense alcohol or provide amplified music. Grenier stated that as a reason for his vote against the application.
Hall explained that the provision was there to make sure that the landowner was in charge and would maintain control over what occurred on the property.
Neighbor Steve Legro said not everyone is against the proposal, arguing that agritourism is a way to make sure the farm is able to survive. “Who’s going to care for the property if he’s not able to be successful there?”
Howe summed up his application by saying he situated the event area on eight remote acres in what is known as Gully Field.
“Gully Field is called Gully Field because it’s in a gully; you can’t see it, and wouldn’t even know it’s there,” he said. “It’s the best place to do this kind of activity, and we’ve done a lot of things to try to alleviate any problems. What is it we have to do to have everybody say it’s okay to do? ... The farm is a farm. This is not going to be the primary income for the farm by a long, long, long stretch. It’s another avenue to sell our produce. It’s all about agriculture.”
Planning Board member Steve Landow argued that the board cannot cherry pick the provisions of the ordinance it likes. The definition of agritourism prohibits the use of artificial lights, he said.
“Having a parking lot where you can’t park is ludicrous, too,” he said, adding, “To me, it’s a commercial business that happens to be on a farm. It doesn’t fit the definition of agritourism as I see it.”
Bill Johnson said, “The lighting applies to the event, not getting to and from the event. If we’re splitting hairs, let’s split all of them.”
When the board was unable to make an affirmative decision to approve the application or deny it, and was unable to get enough votes to table it, as well, Hall expressed dismay. “We’re going around and around on this,” he said.
After taking a five-minute recess, the board took another 15 minutes to finally table it, suggesting they have the town attorney weigh in on the issues that continued to prevent an affirmative decision in either direction.
The board had much less trouble approving a revised site plan by Winter Harbor Yacht Club, Inc., to build an addition on the back of the clubhouse to accommodate a kitchen and two showers, while removing exterior buildings containing two showers. The yacht club is located at 42 Welch Island.