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.