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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Merrimack
No. 2013-893


 STEPHEN E. FORSTER D/B/A FORSTER’S CHRISTMAS TREE FARM & GIFT
                            SHOPPE

                                          v.

                               TOWN OF HENNIKER

                           Argued: February 19, 2015
                          Opinion Issued: June 12, 2015

      Sheehan, Phinney, Bass & Green, P.A., of Manchester (Robert H. Miller
on the brief and orally), for the petitioner.


      Upton & Hatfield, LLP, of Concord (Barton L. Mayer on the brief and
orally), for the respondent.


      Michael L. Donovan, of Concord, by brief and orally, for the intervenors.


      DALIANIS, C.J. The petitioner, Stephen E. Forster d/b/a Forster’s
Christmas Tree Farm & Gift Shoppe, appeals a decision of the Superior Court
(Smukler, J.) upholding the determination by the zoning board of adjustment
(ZBA) for the respondent, the Town of Henniker (Town), that “weddings [and]
like events are not accessory uses” to the petitioner’s farm and that hosting
such events is not a permitted use in the farm’s zoning district. Because we
conclude that the petitioner has not established, as he argues, that he has a
right to conduct commercial weddings and similar events on his farm, without
obtaining either a special exception or a variance, we affirm.

I. Background

       The trial court recited, or the record supports, the following facts. The
petitioner owns approximately 110 acres in Henniker on which he operates a
commercial Christmas tree farm. His Christmas trees occupy approximately
10 acres of the farm. The intervenors, Stephen and Spencer Bennett, own
property that abuts the petitioner’s property.

       The petitioner’s property is in the rural residential district. The Town’s
zoning ordinance provides that the rural residential district includes “a mixture
of agriculture and low-density rural living outside of the built-up districts of
the community where public water and sewer services are not generally
available.” The ordinance states that “[t]he low-density open areas complement
and encourage agricultural uses that are characteristic of the town.” The
ordinance lists agriculture and uses accessory to a permitted use as two of the
uses permitted in the district. Uses allowed by special exception include
“Home business/retail” and “Bed & Breakfast Homes.” The ordinance also
provides that, in the rural residential district, “[n]o more than two home
businesses shall be permitted per lot at any one time[,] provided . . . that
adequate off-street parking is provided on the premises.”

      The zoning ordinance defines the word “agriculture” as: “See New
Hampshire Revised Statute Annotated Chapter 21:34-a Farm, Agriculture,
Farming.” This definition was added to the ordinance in 2005. A “commercial
Christmas tree operation” is included in the definitions of “agriculture” and
“farming” pursuant to RSA 21:34-a, II(a)(11) (2000) (amended 2006, 2008).
Accordingly, the petitioner’s Christmas tree farm is a permitted use in the rural
residential district.

       In addition to operating a Christmas tree farm, the petitioner uses his
property for weddings, celebrations, and business and educational events. The
petitioner makes his property available for these commercial events between
May and October. The venue has a maximum capacity of 150 people. In 2011,
the petitioner held eight events; in 2012, he held five events.

       In May 2012, the Town planner issued a notice of violation to the
petitioner, informing him that “operating a wedding/reception function facility”
is not permitted in the rural residential district. The notice of violation was
stayed until September 4, 2012. On that day, the petitioner appealed the
notice of violation to the ZBA.


                                        2
       The ZBA held public hearings upon the petitioner’s appeal in October
and November 2012. In November 2012, the ZBA unanimously determined
that, contrary to the petitioner’s arguments, weddings and similar events are
not accessory uses to his primary agricultural use. However, in a 4-1 decision,
the ZBA decided that weddings and civil union ceremonies are allowed in the
rural residential district as permitted uses.

       Thereafter, the ZBA granted the motions for rehearing filed by the
petitioner and the intervenors and, in February 2013, heard the petitioner’s
appeal de novo. The petitioner asserted that his permitted proposed uses
included “gatherings, meetings, celebrations, retreats and educational
opportunities for families, schools and colleges, businesses and charitable or
non-profit organizations which use the unique agricultural or farm setting.” In
a 4-1 decision, however, the ZBA concluded that the petitioner’s proposed uses,
including weddings and civil union ceremonies, were not accessory uses, and
the ZBA voted 3-2 that said uses were not permitted in the rural residential
district. The petitioner unsuccessfully moved for rehearing and then appealed
to the superior court. After the superior court upheld the ZBA’s decision, the
petitioner appealed to this court.

II. Discussion

       Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City
of Somersworth, 162 N.H. 553, 555 (2011). Factual findings by the ZBA are
deemed prima facie lawful and reasonable, and the ZBA’s decision will not be
set aside by the superior court absent errors of law unless it is persuaded by
the balance of probabilities, on the evidence before it, that the ZBA decision is
unlawful or unreasonable. Id.; see RSA 677:6 (2008). We will uphold the
superior court’s decision unless the evidence does not support it or it is legally
erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555.

          A. Whether the Proposed Uses are Permitted in the Rural Residential
          District

          1. Plain Meaning of RSA 21:34-a

      The petitioner first argues that his proposed uses are permitted uses in
the rural residential district because: (1) they constitute “agritourism” under
RSA 21:34-a, VI (2012); (2) “agritourism” is included in the definition of
“agriculture” in RSA 21:34-a (Supp. 2014); and (3) the Town’s ordinance
incorporates by reference the definition of “agriculture” in RSA 21:34-a.
Alternatively, he asserts that, to the extent that the Town’s ordinance precludes
his proposed uses in the rural residential district, the ordinance is impliedly
preempted by state law. See Prolerized New England Co. v. City of Manchester,
166 N.H. 617, 623 (2014) (explaining that implied preemption exists when
State and local regulation conflict, when a local regulation frustrates a statute’s


                                        3
purpose, or when the comprehensiveness and detail of the State statutory
scheme evinces legislative intent to supersede local regulation).

      The interpretation of a statute is a question of law, which we review de
novo. Clare v. Town of Hudson, 160 N.H. 378, 384 (2010). In matters of
statutory interpretation, we are the final arbiters of the legislature’s intent as
expressed in the words of the statute considered as a whole. Id. When
examining the language of a statute, we ascribe the plain and ordinary
meaning to the words used. Id. Unless we find statutory language to be
ambiguous, we will not examine legislative history. Id. at 384-85. In
construing a statute, we will neither consider what the legislature might have
said nor add words that it did not see fit to include. Id. at 385. These same
rules of construction apply to zoning ordinances. Id.

      For the purposes of addressing the petitioner’s arguments, we assume,
without deciding, that his proposed uses constitute “agritourism” and that the
Town’s ordinance incorporates by reference the definition of “agriculture”
contained in RSA 21:34-a. However, we disagree with him that “agritourism” is
included in the statutory definition of “agriculture.”

      RSA 21:34-a provides:

      21:34-a Farm, Agriculture, Farming.

      I. The word “farm” means any land, buildings, or structures on or
      in which agriculture and farming activities are carried out or
      conducted and shall include the residence or residences of owners,
      occupants, or employees located on such land . . . .

      II. The words “agriculture” and “farming” mean all operations of a
      farm, including:

          (a)(1) The cultivation, conservation, and tillage of the soil.

             (2) The storage, use of, and spreading of commercial
          fertilizer, lime, wood ash, sawdust, compost, animal manure,
          septage, and, where permitted by municipal and state rules
          and regulations, other lawful soil amendments.

            (3) The use of and application of agricultural chemicals.

            (4) The raising and sale of livestock . . . .

            (5) The breeding, boarding, raising, training, riding
          instruction, and selling of equines.



                                          4
  (6) The commercial raising, harvesting, and sale of fresh
water fish or other aquaculture products.

  (7) The raising, breeding, or sale of poultry or game birds.

  (8) The raising of bees.

  (9) The raising, breeding, or sale of domesticated strains of
fur-bearing animals.

  (10) The production of greenhouse crops.

   (11) The production, cultivation, growing, harvesting, and
sale of any agricultural, floricultural, viticultural, forestry,
or horticultural crops including, but not limited to, . . .
Christmas trees grown as part of a commercial Christmas tree
operation . . . .

(b) Any practice on the farm incident to, or in conjunction with
such farming operations, including, but not necessarily
restricted to:

   (1) Preparation for market, delivery to storage or to market,
or to carriers for transportation to market of any products or
materials from the farm.

  (2) The transportation to the farm of supplies and materials.

  (3) The transportation of farm workers.

  (4) Forestry or lumbering operations.

   (5) The marketing or selling at wholesale or retail, on-site
and off-site, where permitted by local regulations, any products
from the farm.

  (6) Irrigation of growing crops from private water supplies or
public water supplies where not prohibited by state or local
rule or regulation.

   (7) The use of dogs for herding, working, or guarding
livestock, as defined in RSA 21:34-a, II(a)(4).

   (8) The production and storage of compost and the materials
necessary to produce compost, whether such materials
originate, in whole or in part, from operations of the farm.


                              5
      III. A farm roadside stand shall remain an agricultural operation
      and not be considered commercial, provided that at least 35
      percent of the product sales in dollar volume is attributable to
      products produced on the farm or farms of the stand owner.

      IV. Practices on the farm shall include technologies recommended
      from time to time by the university of New Hampshire cooperative
      extension, the New Hampshire department of agriculture, markets,
      and food, and appropriate agencies of the United States
      Department of Agriculture.

      V. The term “farmers’ market” means an event or series of events
      at which 2 or more vendors of agricultural commodities gather for
      purposes of offering for sale such commodities to the public.
      Commodities offered for sale must include, but are not limited to,
      products of agriculture, as defined in paragraphs I-IV. “Farmers’
      market” shall not include any event held upon any premises
      owned, leased, or otherwise controlled by any individual vendor
      selling therein.

      VI. The term “agritourism” means 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.

(Emphases added.)

       The statute defines the words “farm,” “agriculture,” “farming,” “farmers’
market,” and “agritourism.” Paragraph I defines “farm.” Under that
paragraph, “farm” refers to the “land, buildings, or structures” on which
“agriculture and farming” take place. RSA 21:34-a, I. Paragraph II defines
“agriculture” and “farming.” It consists of two subparts. Subpart (a) explains
that the two words “mean all operations of a farm” and subpart (b) explains
that they also refer to “[a]ny practice on the farm” that is incidental to or
conducted “in conjunction with” farm operations. Although growing
“Christmas trees . . . as part of a commercial Christmas tree operation” is listed
as a farm operation under subpart (a), hosting events such as those the
petitioner proposes is not. RSA 21:34-a, II(a).

       Hosting such events also is not included in subpart (b) as a practice
incidental to farming operations. Although subpart (b) states that its list of
practices is not all inclusive, under the principle of ejusdem generis, we
construe the general words in that subpart (“[a]ny practice on the farm incident
to, or in conjunction with such farming operations”) to embrace only practices
similar to those included in the enumerated list. See In the Matter of


                                        6
Hennessey-Martin & Whitney, 151 N.H. 207, 211 (2004). Hosting events such
as the petitioner proposes is not similar in nature to the practices listed in
subpart (b).

       Paragraph III of the statute pertains to “farm roadside stand[s]” and
provides that they are deemed to be “agricultural operation[s]” provided that “at
least 35 percent of the product sales in dollar volume is attributable to
products produced on the farm or farms of the stand owner.” RSA 21:34-a, III.
Otherwise, farm roadside stands are deemed to be commercial operations. See
id.

      Paragraph IV provides that “[p]ractices on the farm shall include
technologies” recommended by certain entities. Thus, under paragraph IV,
such technologies are among the practices included in Paragraph II(b).

       Paragraph V pertains to farmers’ markets. Pursuant to this paragraph,
to be a “farmers’ market,” the event or series of events must have “2 or more
vendors of agricultural commodities . . . offering for sale such commodities to
the public.” RSA 21:34-a, V. The term does “not include any event held upon
any premises owned, leased, or otherwise controlled by any individual vendor
selling therein.” Id.

      Paragraph VI defines the term “agritourism.” Pursuant to this
paragraph, to constitute “agritourism,” the activity must “attract[ ] 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,” and an activity must be “ancillary to
the farm operation.” RSA 21:34-a, VI. However, nothing in this definition
provides that activities that constitute “agritourism” also constitute
“agriculture.” See RSA 21:34-a, II, VI.

      Accordingly, even if we assume that the petitioner’s proposed uses
constitute “agritourism,” the plain meaning of RSA 21:34-a does not provide
that they also constitute “agriculture.” Of course, if the legislature disagrees
with our statutory interpretation, it is free to amend the statute as it sees fit.
See Appeal of Town of Nottingham, 153 N.H. 539, 566 (2006).

      The petitioner contends that RSA 674:44-e (2008) evinces legislative
intent to include “agritourism” within the definition of “agriculture.” His
reliance upon RSA 674:44-e is misplaced. RSA 674:44-e provides:

          An agricultural commission may be established in accordance
      with RSA 673 for the proper recognition, promotion, enhancement,
      encouragement, use, management, and protection of agriculture
      and agricultural resources, tangible or intangible, that are valued
      for their economic, aesthetic, cultural, historic, or community


                                         7
      significance within their natural, built, or cultural contexts. The
      word ‘agriculture’ shall include the entirety of RSA 21:34-a, which
      is the definition of farm, agriculture, and farming.

The statute applies when a town establishes an agricultural commission.
Under that statute, the legislature has authorized municipal agricultural
commissions to advance “agriculture,” broadly defined to include “the entirety
of RSA 21:34-a.” However, RSA 674:44-e does not change the plain meaning of
RSA 21:34-a. As we have previously discussed, RSA 21:34-a does not include
“agritourism” in the definition of “agriculture.”

          2. Legislative History of RSA 21:34-a

      Because we conclude that, pursuant to its plain language, RSA 21:34-a
does not include “agritourism” in its definition of “agriculture,” we need not
consult legislative history to aid in our analysis. However, even when we
consult such history, we conclude that it supports our statutory construction.

        Paragraph VI of RSA 21:34-a, which defines “agritourism,” was added to
RSA 21:34-a in 2007, pursuant to House Bill (HB) 56. See Laws 2007, ch. 157.
As introduced, HB 56 defined “agritourism” as “attracting visitors to farm
operations for the purpose of eating a meal, making overnight stays,
enjoyment, education, or active involvement in the activity of the farm or
operation.” House Bill 56 available at
http://gencourt.state.nh.us/SofS_Archives/2007/house/HB56H.pdf.
Thereafter, the House Committee on Resources, Recreation and Development
recommended amending HB 56 to define “agritourism” as “attracting visitors to
farm operations for the purpose of eating a meal, making overnight stays,
enjoyment, education, or active involvement that is ancillary to the activity of
the farm or operation, and as such shall be considered an agricultural use.”
N.H.H.R. Jour. 107 (2007) (emphasis added). The committee explained that
the intent of HB 56, as amended, was to “define[ ] agritourism as those
ancillary farm activities, such as wagon rides and[/]or mazes, used to attract
visitors to farms.” Id. According to the committee, the intent of the bill was “to
recognize that today’s farms need to engage in a diversity of agriculturally[-]
related activities to survive.” Id. The committee reported that the bill had
“little impact on a municipality’s zoning powers over land uses on farms.” Id.
The House approved the amended version of HB 56. Id. at 120.

      In the Senate, the bill, as amended by the House, was referred to the
Senate Committee on Energy, Environment and Economic Development.
N.H.S. Jour. 269 (2007). At the public hearing before the Senate committee,
Representative Jim Martin spoke against the amended bill, explaining that he
was concerned that the House had added the phrase “and as such shall be
considered an agricultural use.” See Relative to the Definition of Agritourism:
Hearing on H.B. 56 Before the Sen. Comm. on Energy, Env’t and Econ. Dev. 14


                                        8
(Apr. 10, 2007) (statement of Rep. Jim Martin), available at
http://gencourt.state.nh.us/SofS_Archives/2007/senate/HB56S.pdf. He
explained:

      The problem is that “agricultural use” is a term of art in zoning
      and in land use. When towns zone, they zone for uses; they zone
      industrial uses, they zone commercial uses, residential uses, and
      agricultural uses. And Brookfield is zoned, as Senator Kenney
      said, entirely residential/agricultural. And we rely on the
      definitions that are in the statute that you have before you: [RSA]
      21:34-a. So we think we know what “agriculture” means, all right,
      ‘cause it’s well defined. But this, in my view, and the pernicious
      effect of this, and I don’t think it was intended, but the effect of
      this I think is to preempt all local zoning ordinances. Because this
      now says restaurants and motels, hotels are agricultural uses
      permitted in any agricultural zone. And I think we should not do
      that.

Id. at 15. Representative Martin suggested that, to address his concern, the
phrase “and as such, shall be considered an agricultural use” be deleted from
the bill. Id. at 16. He observed that when the bill was first introduced, it did
not include this phrase, and “pretty accurately copied . . . Recommendation 5,
Proposal 5” from the report of the New Hampshire Farm Viability Task Force.
Id. He observed that the “[mistake] came in . . . when they made all these
things agricultural uses.” Id. In his opinion, doing so created “a real problem.”
Id.

       A representative from the New Hampshire Municipal Association agreed
with Representative Martin’s concern and with his suggestion of eliminating
the phrase “and as such shall be considered an agricultural use.” See id. at 18
(statement of Judy Silva, New Hampshire Municipal Association). She stated
that, in her opinion, “if you have something that is defining something as an
agricultural use, I think you are going to, in some people’s minds, be
automatically including that in that zone . . . .” Id. The chair of the committee
stated that the committee expected the representative from the New Hampshire
Municipal Association to recommend “some slightly different language that
would address and answer” the concerns raised. Id.

       After the hearing, the committee proposed an amendment to HB 56
pursuant to which “agritourism” would be defined 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.”
N.H.S. Jour. 795 (2007). As proposed by the committee, HB 56 would no
longer state that “agritourism,” as defined in that bill, “shall be considered an
‘agricultural use.’” Id. Senator Bob Odell explained that the amendment “was


                                        9
deemed necessary after concerns were raised [about] original language that
classified agritourism as an agricultural use, a phrase that could cause local
zoning problems.” Id. The Senate approved the proposed amendment. Id. at
796. The House then concurred in the Senate amendment, see N.H.H.R. Jour.
866 (2007), and the amended bill was signed into law by the Governor and
enacted as RSA 21:34-a, VI. See Laws 2007, ch. 157.

       Although the petitioner relies, in part, upon a February 7, 2013 letter
written to the ZBA by Senator Odell regarding his opinion, in 2013, about the
intent of the Senate committee in 2007, the letter is not part of the legislative
history of HB 56, and, thus, is not evidence of legislative intent. See State v.
Mullen, 119 N.H. 703, 709 (1979) (concluding that court cannot rely upon
statements made by legislators after passage of bill regarding the motives of
members in enacting the law); see also 2A N. Singer & J.D. Singer, Statutes
and Statutory Construction § 48:16 (7th ed. 2007); U.S. Steel Min. Co., LLC v.
Director, OWCP, 719 F.3d 1275, 1283 n.9 (11th Cir. 2013) (explaining that a
United States Senator’s post-enactment statement “does not constitute
legitimate legislative history”); McGee v. Stone, 522 A.2d 211, 216 (R.I. 1987)
(deciding that affidavit of legislative co-sponsor of certain legislation was of “no
value” because “[p]ostenactment statements of legislators relating to legislative
intent . . . are not part of the legislative history of the original enactment”).

       The legislative history of HB 56 reveals that the legislature considered,
but ultimately rejected, the notion that “agritourism,” as defined by RSA 21:34-
a, VI, constitutes “agriculture” within the meaning of RSA 21:34-a, II. See
Singer & Singer, supra § 48:4, at 563-64 (“[W]here the language under question
was rejected by the legislature and thus not contained in the statute it provides
an indication that the legislature did not want the issue considered.”). Thus,
the legislative history demonstrates that the plain language of the statute is in
accord with the legislature’s intent.

          3. Implied Preemption

       “The preemption doctrine flows from the principle that municipal
legislation is invalid if it is repugnant to, or inconsistent with, State law.” Town
of Carroll v. Rines, 164 N.H. 523, 528 (2013) (quotation omitted). “Preemption
may be express or implied.” Id. (quotation omitted). Here, the petitioner
argues implied preemption. Implied preemption may be found when the
comprehensiveness and detail of the State statutory scheme evinces legislative
intent to supersede local regulation. Id. State law also impliedly preempts
local law when there is an actual conflict between the two. Id. A conflict exists
when a municipal ordinance or regulation permits that which a State statute
prohibits or vice versa. Id. Moreover, even when a local ordinance does not
expressly conflict with a State statute, it will be preempted when it frustrates
the statute’s purpose. Id. Because preemption “is essentially a matter of
statutory interpretation and construction,” Bond v. Martineau, 164 N.H. 210,


                                         10
213 (2012), whether a State statute preempts local regulation is a question of
law, which we review de novo, Rines, 164 N.H. at 528.

       The petitioner argues that the Town’s ordinance is impliedly preempted
because, in prohibiting his proposed uses, which he contends meet the
statutory definition of “agritourism,” the ordinance frustrates the purpose of
RSA 21:34-a, VI, which, he asserts, is to “creat[e] a uniform understanding of
the term[ ] and a uniform application of that term across the state to enhance
the economic viability of New Hampshire farms.” Relying upon Senator Odell’s
2013 letter, he contends that the legislature intended “agritourism” to be
“interpreted to give farmers the maximum possible latitude to support their
agricultural activities with a wide range of supplemental events and activities to
help them remain economically viable.” (Quotation omitted.) He asserts that
the statutory definition of “agritourism” mandates that the Town “cannot . . .
prohibit otherwise valid agritourism enterprises that meet the statutory
definition.”

       RSA 21:34-a is a set of definitions, not a comprehensive statutory
scheme aimed at superseding local regulation. Cf. Bio Energy v. Town of
Hopkinton, 153 N.H. 145, 152-53 (2005) (holding that RSA chapter 125-C,
which consists of twenty-one sections defining and establishing in detail a
statewide permitting program to monitor ambient air quality throughout the
State, constitutes a comprehensive and detailed regulatory scheme preempting
the field of air pollution control in this State). RSA 21:34-a, VI merely defines
“agritourism.” See generally RSA 425:2-a, I (Supp. 2014) (referring to the
State’s policy, through its department of agriculture, of supporting “local food
producers” and businesses engaged in “agriculture . . . and . . . agritourism”).
RSA 21:34-a, VI contains no mandate to municipalities. It does not require
that municipalities adopt the same definition. Nor does it mandate that
municipalities allow activities that meet the statutory definition of
“agritourism.” The other provisions in RSA 21:34-a likewise contain no
mandate to municipalities. Because RSA 21:34-a contains no mandate, the
Town’s ordinance necessarily does not conflict either with its language or its
purpose.

       Although the petitioner relies upon other statutes which, unlike RSA
21:34-a, do contain some mandates to municipalities, those statutes do not
use the word “agritourism.” See RSA 674:17, I(i) (Supp. 2014); RSA 672:1, III-b
(2008), III-d (Supp. 2014); RSA 674:32-a (2008). RSA 674:17, I(i) merely
requires that zoning ordinances “encourage” the preservation of agricultural
lands and buildings and the “agricultural operations described in RSA
21:34-a.” See RSA 21:34-a, II (defining agricultural operations). RSA 672:1,
III-b precludes municipalities from unreasonably limiting “[a]gricultural
activities” and from unreasonably interpreting their municipal powers. RSA
672:1, III-d explains that a municipality unreasonably interprets its regulatory
powers when it fails “to recognize that agriculture . . . when practiced in


                                       11
accordance with applicable laws and regulations, [is a] traditional, fundamental
and accessory use[ ] of land throughout New Hampshire, and that a prohibition
upon [that] use[ ] cannot necessarily be inferred from the failure of an
ordinance . . . to address [it].” Consistent with the notion that one cannot
necessarily infer that an ordinance prohibits agricultural uses when the
ordinance fails to address them, RSA 674:32-a provides that when “agricultural
activities are not explicitly addressed with respect to any zoning district or
location, they shall be deemed to be permitted there, as either a primary or
accessory use, so long as conducted in accordance with . . . federal and state
laws, regulations, and rules.”

       None of these statutes support the petitioner’s contention that the
legislature intended to require municipalities to allow “agritourism” within their
borders. At most, they evince the legislature’s general intent to support
traditional agriculture and agricultural activities. Moreover, they demonstrate
legislative intent to allow reasonable local regulation, not to preempt the entire
field. Accordingly, should Town voters want to allow the petitioner’s proposed
uses in the rural residential district, they are free to amend the Town’s
ordinance as they see fit.

      B. Whether the Proposed Uses are Accessory Uses

       Alternatively, the petitioner asserts that his proposed uses are accessory
uses under the ordinance. “An accessory use is not the principal use of the
property, but rather a use occasioned by the principal use and subordinate to
it.” Fox v. Town of Greenland, 151 N.H. 600, 606 (2004). “An owner of
property seeking to engage in an accessory use need not apply for a special
exception, so long as the accessory use is incidental to a permitted principal
use.” Id. Consistent with the common law, the Town’s ordinance defines an
accessory use as a “use subordinate and customarily incidental to the main . . .
use on the same lot.” The definition of accessory use in the ordinance involves
several distinct elements. See Becker v. Town of Hampton Falls, 117 N.H. 437,
440 (1977) (discussing ordinance that defined accessory uses as those that are
“customarily incidental and subordina[te]” (quotation omitted)). “[I]ncidental”
and “subordinate” incorporate the requirement that the accessory use be minor
in relation to the primary use and that it bear a reasonable relationship to that
use. Id.; see Marchand v. Town of Hudson, 147 N.H. 380, 383 (2001).
“[C]ustomarily” imposes an additional requirement that the accessory use “has
commonly, habitually and by long practice been established as reasonably
associated with the primary . . . use” in the local area. Becker, 117 N.H. at 441
(referring to “local custom”); see Town of Windham v. Alfond, 129 N.H. 24, 29
(1986). “While the strength or degree of the customary or habitual association
does not lend itself to definition by formula, and while the combination need
not occur in a majority of instances of the principal use, the uses must be
associated with a frequency that is substantial enough to rise above rarity.”
Alfond, 129 N.H. at 29 (citation omitted).


                                       12
      A landowner claiming the benefit of the accessory use doctrine bears the
burden of proving that his use qualifies as an accessory use. See id.
(discussing burden of proof in municipality’s equity action against landowner);
see also 2 E. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 33:2, at
33-7 (2012).

       Although we have previously stated that whether a proposed use
constitutes an accessory use is a question of law for us to decide, we have
recently clarified that it is, in fact, a mixed question of fact and law. See
Bartlett v. City of Manchester, 164 N.H. 634, 643 (2013); 15 P. Loughlin, New
Hampshire Practice, Land Use Planning and Zoning § 9.03, at 174 (4th ed.
2010) (“Whether a particular use is an accessory use is generally a question of
both law and fact.”). We review the trial court’s application of the law to the
facts de novo. Blagbrough Family Realty Trust v. A & T Forest Products, 155
N.H. 29, 33 (2007).

       Here, the petitioner failed to establish that his proposed uses have
“commonly, habitually and by long practice been established as reasonably
associated with the primary . . . use” in the local area. Becker, 117 N.H. at
441. The petitioner presented a typewritten list of northern New England
farms that purportedly “hold events and weddings.” He also submitted
printouts from the websites and/or brochures of nine farms in New Hampshire,
which farms, he asserted, “are doing exactly what [he is] asking to do . . . in
Henniker.” Additionally, he presented testimony from the owners of Dimond
Hill Farm in Concord and Gould Hill Farm in Hopkinton.

       Assuming, without deciding, that all of the petitioner’s evidence was
relevant, we conclude that it was insufficient to establish that his proposed
uses have “commonly, habitually and by long practice been established as
reasonably associated” in the local area with farming in general, or Christmas
tree farming in particular. Id. At best, the petitioner demonstrated that, out of
the approximately 4,200 farms in New Hampshire, only nine or ten farms
(other than his) host commercial events similar to his proposed uses. Only one
of those farms is a Christmas tree farm, like the petitioner’s farm, and that
farm is located in Bethlehem, which is approximately 100 miles from Henniker.
Additionally, according to the petitioner’s typewritten list, there are only a
handful of farms in other northern New England states that host events similar
to those which he hosts (one farm in Vermont, one farm in Maine, and five
farms in Massachusetts). With regard to all of the farms about which he
presented evidence, the petitioner did not submit the zoning regulations under
which those farms operate and presented no proof that the subject uses are
deemed to be accessory uses in the communities in which the farms are
located.

      Assuming the relevance of the petitioner’s evidence, we hold, as a matter
of law, that it fails to prove that his proposed uses have “commonly, habitually


                                       13
and by long practice been established as reasonably associated with the
primary . . . use” in the local area. Id. Absent such evidence, we hold that the
petitioner’s proposed uses are not accessory uses under the Town’s ordinance.
Id. Because the petitioner has not prevailed, we need not address his
argument that he is entitled to prevailing party attorney’s fees and costs.

                                                  Affirmed.

      CONBOY, LYNN, and BASSETT, JJ., concurred; HICKS, J., dissented.

       HICKS, J., dissenting. It is abundantly clear that none of my four
colleagues have spent a summer in East Colebrook, an area where weddings on
farms are customary. Today, the majority holds that the trial court properly
determined that hosting weddings and like events is not a permitted use in
Henniker’s rural residential district. The majority offers two separate and
independent rationales for its decision: first, that both the plain language and
legislative history of RSA 21:34-a (2012) fail to demonstrate a legislative intent
to include “agritourism” in the statutory definition of “agriculture”; and second,
that the proposed use is not an accessory use to the petitioner’s farm. Because
I disagree with the majority, under both rationales, I would reverse the trial
court’s decision. Therefore, I respectfully dissent.

       Addressing the majority’s interpretation of RSA 21:34-a first, I would
conclude that the language of the statute that defines “agriculture” is
ambiguous, at best. Given its placement in a statute titled “Farm, Agriculture,
Farming,” which exclusively defines farming and agricultural practices, it
seems unlikely that the legislature would include the definition of “agritourism”
without intending it to be considered part of farming or agriculture. See RSA
21:34-a. This conclusion is strengthened from the fact that the definition of
“agritourism” includes certain activities that would constitute agriculture. See
RSA 21:34-a, VI. For example, the statute defines “agritourism” to include
“attracting visitors to a working farm for the purpose of . . . active involvement
in the activity of the farm which is ancillary to the farm operation.” Id.
Paragraph II of RSA 21:34-a defines the activities and practices which
constitute agriculture and includes “all operations of a farm” as the basis for
those definitions. RSA 21:34-a, II (2012). Therefore, any agritourism activity
that is “ancillary to the farm operation” would constitute agriculture pursuant
to paragraph II, especially such activities that require “active involvement in
the activity of the farm.” RSA 21:34-a, II, VI (2012). Nevertheless, I recognize
that the majority’s interpretation of the statute is also reasonable and, thus, to
resolve the ambiguity we must look to the legislative history to determine the
legislature’s intent. See United States v. Howe, 167 N.H. 143, 148-49 (2014).

     When we interpret statutes, we do so “in light of the policy or purpose
sought to be advanced by the statutory scheme.” Montenegro v. City of Dover,
162 N.H. 641, 644-45 (2011). The provision defining “agritourism” began as a


                                       14
recommendation from a New Hampshire Farm Viability Task Force (Task
Force). See Cultivating Success on New Hampshire Farms: The New
Hampshire Farm Viability Task Force Report 41 (2006) available at
http://agriculture.nh.gov/publications-forms/documents/farm-viability-
report.pdf. The Task Force was established in response to 2005 Senate
Concurrent Resolution No. 1, which recognized that “farming and other
agricultural interests are a vital part of New Hampshire’s economy” and that
“there are laws, rules, and regulations . . . hindering the economic viability of
New Hampshire farms.” S. Con. Res. 1, 2005 Sess. (N.H. 2005). The
resolution recommended a task force to examine, in relevant part, methods for
“[p]romoting and expanding agricultural based tourism, community supported
agriculture, farmers’ markets, farm stands, agricultural fairs, the horticulture
industry, and pick-your-own enterprises.” Id.

       The Task Force made three findings relevant to the issue of agritourism:
(1) “farmers can’t be expected to continue to operate viable farm businesses if
the economically sensible behavior is to sell the land,” Cultivating Success,
supra at 9; (2) “farm businesses that have been able to sell innovative
products[, processes, or services] have seen greater growth opportunities,”
Cultivating Success, supra at 8; and (3) “[t]oday’s . . . farmers now face [the
challenges of] the vagaries of local zoning boards, failure to be compensated for
the public benefit they provide to the environment, and uncertain regulatory
barriers,” Cultivating Success, supra at 10. To address the concerns raised by
these findings, the Task Force recommended “[r]emov[ing] rules and
regulations burdensome to agriculture” and adopting “[a] uniform definition of
farming (as best described in RSA 21:34-a) that is consistent throughout state
law and used by local land use boards.” Id. at 36-37. Adding a definition of
“agritourism”1 to RSA 21:34-a was one of the proposed legislative actions to
eliminate burdensome, confusing, or conflicting laws. Id. at 40-41. The clear
purpose of this recommendation was to incorporate agritourism into the
definition of “agriculture” and create a uniform definition to be used across the
State.

        Furthermore, these concerns and goals were re-emphasized at the public
hearing before the Senate committee. There, Gail McWilliam Jellie, Director of
Agricultural Development of the New Hampshire Department of Agriculture,
testified that “the income generated directly from [agritourism] activities . . . [is]
important in the operation of the farm business,” “and including agritourism in
the state’s definition of agriculture shows that New Hampshire recognizes the
contribution to the industry and gives these activities credibility.” Relative to
the Definition of Agritourism: Hearing on H.B. 56 before the Sen. Comm. on
Energy, Env’t and Econ. Dev. 7 (Apr. 10, 2007). This sentiment was echoed by

1 The original language proposed by the Task Force was “Agritourism: based on attracting visitors
to farm operations for the purpose of eating a meal, making overnight stays, enjoyment, education
or active involvement in the activity of the farm or operation.” Cultivating Success, supra at 41.


                                               15
Robert Johnson, Director of the New Hampshire Farm Bureau Federation, who
testified that “[w]e look at [agritourism] as enhancing farm viability through the
opportunity created in what is today agriculture in New Hampshire. . . . It’s a
value-added service or an experience; that’s where the profit is in agriculture in
New Hampshire.” Id. at 10-11. Accordingly, in light of the legislative history, I
would conclude that to give full effect to the policy and purpose of the new
“agritourism” definition, “agritourism” must be considered agriculture.

       Including “agritourism” in the definition of “agriculture” does not mean,
however, that the petitioner automatically prevails. Although the majority
avoids the question of whether the petitioner’s proposed activities constitute
agritourism, for the petitioner to succeed he must demonstrate that his
proposed uses fall within that definition. Paragraph VI of RSA 21:34-a includes
as agritourism “enjoyment of the farm environment.” RSA 21:34-a, VI.
Frankly, I fail to see how hosting a wedding or any event in a tent overlooking
or within the Christmas tree grove fails to constitute “enjoyment of the farm
environment,” especially when the petitioner goes to great lengths to
incorporate elements of the farm into the space through such acts as using an
altar made of balsam fir boughs. To the extent that the respondent and
intervenors may argue that the income produced by the events exceeds that of
the Christmas tree farm itself, I conclude that argument is irrelevant as it is
not addressed by the statute and the legislature explicitly declined to craft
such limitations. See id.; Hearing on H.B. 56, supra at 19-20 (declining to
define a limit to agritourism activities). Nor does the statute prohibit the State
or a municipality from enforcing generally applicable laws and ordinances
governing such issues as noise, parking, or safety. Hearing on H.B. 56, supra
at 3-4 (statement of Sen. Joseph Kenney). Thus, I conclude that RSA 21:34-a
includes agritourism as part of the definition of agriculture and that the
petitioner’s proposed activities constitute agritourism. Accordingly, I would
reverse the decision of the trial court on this basis.

       Addressing the issue of accessory use next, I agree with the majority
that: (1) the accessory use must be occasioned by the principal use and
subordinate to it, see Fox v. Town of Greenland, 151 N.H. 600, 606 (2004); (2)
Henniker’s definition of accessory use, “use subordinate and customarily
incidental to the main . . . use on the same lot,” is consistent with our common
law definition; and (3) to be “incidental” and “subordinate,” a use must be
minor in relation to the primary use and bear a reasonable relationship to that
use.

       The accessory use doctrine functions as a response to the impossibility of
providing expressly by zoning ordinance for every possible lawful use. Town of
Salem v. Durrett, 125 N.H. 29, 32 (1984). When a given use of land is not
explicitly allowed, it is nonetheless permissible if it may be said to be accessory
to a use that is expressly permitted. Id. The most frequently litigated
requirement of accessory use is the meaning of customary, see Smith, Note,


                                        16
Zoning: Accessory Uses and the Meaning of the “Customary” Requirement, 56
B.U.L. Rev. 542, 543 (1976), and setting a cogent definition of “customary” is a
task that has routinely confounded courts since the adoption of the accessory
use doctrine, see, e.g., State v. Smiley, 153 N.W.2d 906, 908 (Neb. 1967)
(“[W]hat does ‘customarily’ mean, and to what geographical area should the
test be applied?”); Jantausch v. Borough of Verona, 124 A.2d 14, 20 (N.J.
Super. Ct. Law Div. 1956), aff’d, 131 A.2d 881 (N.J. 1957) (“What would
‘customary’ mean in the present setting? . . . Is ‘customary’ to be measured by
reference to the state or to a more restricted area, perhaps the borough itself?
And is ‘customary’ a mathematical concept in this context . . . ?”).

       Commentators have concluded that “[i]n determining whether a use is
customary, courts may examine the entire community, or the general region, or
even nationwide trends in an industry.” 2 E. Yokley, Zoning Law and Practice §
8-3, at 8-5 (4th ed. 2009) (footnotes omitted); see also 7 P. Rohan, Zoning and
Land Use Controls § 40A.03[3][c][iii], at 40A-32 (2012). Some jurisdictions, in
fact, determine whether a proposed accessory use is customary using any of
the three potential geographic limitations, without any particular rationale
behind the choice. Compare, e.g., Appeal of Lord, 81 A.2d 533, 536 (Pa. 1951)
(examining customary aspect of accessory use based on national trends), with
Gross v. Zoning Board of Adjustment of City of Phila., 227 A.2d 824, 826 (Pa.
1967) (examining customary aspect of accessory use based on trends within a
municipality), and Gold v. Zoning Board of Adjustment, 143 A.2d 59, 60 (Pa.
1958) (examining customary aspect of accessory use based on an
indeterminate standard). In New Hampshire, we do not utilize a single
geographic limitation in determining whether a proposed accessory use is
customary. See, e.g., Marchand v. Town of Hudson, 147 N.H. 380, 384 (2001)
(examining customary aspect of accessory use based on similar activity within
the municipality); Nestor v. Town of Meredith, 138 N.H. 632, 634 (1994)
(examining customary aspect of accessory use based on unspecified geographic
limit); Durrett, 125 N.H. at 33 (referencing evidence from areas outside the
municipality to support its analysis of the customary aspect of accessory use);
Becker v. Town of Hampton Falls, 117 N.H. 437, 441 (1977) (examining
customary aspect of accessory use based on activity within the municipality);
see also Town of Windham v. Alfond, 129 N.H. 24, 29 (1986) (stating that the
trial court could take notice of changing conditions in a portion of the state and
infer that traditional rural stereotypes were no longer applicable to the area).

       In Durrett, the issue was whether “use of an airstrip was . . . customarily
associated with residential use.” Durrett, 125 N.H. at 33. We observed that
the trial court had considered testimony that “seaplanes had frequently landed
at a pond located in a recreational zoning district in Salem.” Id. (emphasis
added). In our review of the trial court’s decision, we concluded that the trial
court could have reasonably found that use of an airstrip was not customarily
associated with residential use because “there was no evidence to the contrary
before the district court.” Id. Nevertheless, we did consider evidence that arose


                                       17
after the appeal had been filed regarding one household in another town that
had been permitted to maintain a private landing strip. Id. We explained that
“[o]ne instance in another town does not rise to the level of custom.” Id.
Accordingly, I agree with the petitioner that our decision in Durrett clarified
that Becker did not establish rigid requirements for determining whether a use
is customary.

       In Alfond, the issue was whether “use of . . . residentially zoned property
for the stabling and pasturing of horses kept for . . . personal recreation”
constituted an accessory use. Alfond, 129 N.H. at 26. We observed that at
trial there had been testimony stating that “during the past twenty years only
six owners of Windham properties in residential zones had . . . kept horses.”
Id. at 29. Although this would suggest that we made our determination solely
by looking at activities within the municipality, we also observed that “the trial
court could properly take notice, N.H.R. Ev. 201(a), that Windham is in a
portion of the State under pressure of residential crowding . . . from which the
court could reasonably infer that traditional rural stereotypes are no longer
sound indications of actual conditions in the area.” Id. In making that
observation, we held that the trial court could properly consider, as evidence,
regional tradition and changing demographics in a region of the state when
considering whether an accessory use is customary. Id. Accordingly, I believe
our holding in Alfond further clarified our holding in Becker.

      Furthermore, I believe limiting the inquiry to only the local area defies
the very purpose behind the accessory use doctrine. Limiting the customary
inquiry to the local area creates situations where, due to insufficient data,
establishing customary use would be impossible. This is particularly true in
smaller towns, such as Henniker. “The purpose of accessory use provisions is
to permit uses that are necessary, expected or convenient in conjunction with
the principal use of the land.” Rohan, supra § 40A.01, at 40A-3.
Commentators and jurists have recognized that:

      The difficulty with the requirement that a use be customary is that,
      literally applied, it would establish a class closed to uses not in
      existence at the time of the enactment of the ordinance. . . .

             Yet this narrow view of the customary requirement is not
      necessarily the one intended. . . . The purpose in choosing the
      word “customary” seems to have been evidentiary. It was designed
      to give examples of the kinds of uses that were acceptable but not
      necessarily to close the class of possible uses.

Id. § 40A.03[3][a], at 40A-26 to 40A-27; see also 2 E. Ziegler, Jr., Rathkopf’s
The Law of Zoning and Planning § 33.3, at 33-12 (2012) (“Naturally, the
perception of which accessory uses are considered ‘customary’ changes with
the times.”); Dellwood Dairy Co. v. City of New Rochelle, 165 N.E.2d 566, 567


                                        18
(N.Y. 1960) (“It is a common experience that new times bring . . . new ways of
dealing with old [problems].”). Accordingly, a narrow construction of the
customary requirement would mean “that only those already prevalent uses
would be permitted.” Smith, supra at 546. The result of such a construction
“would be unacceptable stagnancy.” Id. This stagnancy is the antithesis of the
accessory use doctrine’s purpose.

       Rejecting this limitation, however, does not change the requirement that
“the uses must be associated with a frequency that is substantial enough to
rise above rarity.” Alfond, 129 N.H. at 29. Although the majority concludes
that the petitioner’s evidence of farms in New Hampshire that host weddings
and similar events is insufficient, I would conclude otherwise because he needs
to demonstrate that such use “rise[s] above rarity,” Alfond, 129 N.H. at 29,
which he has done.

      Furthermore, the record reflects that agritourism, generally, is
“associated with a frequency that is substantial enough to rise above rarity.”
Id. The 2007 United States Census of Agriculture found that across the
country 23,350 farms indicated that they provided agritourism and recreation
services valued at $566 million.2 1 United States Department of Agriculture,
2007 Census of Agriculture 15 (2009) (table of income from farm-related
sources), available in appellant’s appendix, volume I at 109.

      Within New Hampshire, Director Jellie, in her testimony before the
Senate committee, cited a recent study conducted by Plymouth State University
which found that “about a third of agriculture’s total $935 million contribution
to New Hampshire’s economy is due to agritourism activities.” Hearing on H.B.
56, supra at 6. This substantial relationship between agriculture and
agritourism in both New Hampshire and across the country is sufficient to
conclude that agritourism activities occur “with a frequency that is substantial
enough to rise above rarity.” Alfond, 129 N.H. at 29. Accordingly, I would
conclude that agritourism is an accessory use.

      This result would not provide the petitioner with a free hand to operate
an event-hosting business under the false premise of a Christmas tree farm, as
many throughout the proceedings in this case have alleged. Under the
accessory use doctrine, an accessory use must be subordinate to the primary
use. See Fox, 151 N.H. at 606. Although no bright-line rule exists for
determining whether a use is subordinate, once the accessory use ceases to be
subordinate to the primary use it ceases to be permissible. See KSC Realty
Trust v. Town of Freedom, 146 N.H. 271, 274 (2001) (explaining that the

2 Although it is not in the record before us, I note that the 2012 Census of Agriculture found that
agritourism has increased across the country with 33,161 farms providing agritourism and
recreation services valued at $704 million. 1 United States Department of Agriculture, 2012
Census of Agriculture 15 (2014) (table of income from farm-related sources).


                                                19
definition of subordinate can shift depending on various factors). The
agritourism definition limits agritourism activities because any such activity
must have some connection to the farm, even if it is simply enjoyment of the
farm environment. See RSA 21:34-a, VI. Permitting the occasional wedding or
other event at the petitioner’s farm is not a slippery slope. Rather, it protects
the rural traditions of New Hampshire. Accordingly, I would reverse the
decision of the trial court.

      For these reasons, I respectfully dissent.




                                       20
