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Judge rules against Henniker tree farmer who wants to host weddings on his property

Stephen Forster, of Henniker, said he has operated Forster's Christmas Tree Farm and shop for the past 40 years on the property along Mt. Hunger Road in Henniker. Neighbors are complaining about traffic and noise coming from events Forster is holding at his business.

JOHN TULLY / Monitor file

Stephen Forster, of Henniker, said he has operated Forster's Christmas Tree Farm and shop for the past 40 years on the property along Mt. Hunger Road in Henniker. Neighbors are complaining about traffic and noise coming from events Forster is holding at his business. JOHN TULLY / Monitor file

A superior court judge has affirmed a Henniker zoning board decision to block Stephen Forster from hosting weddings and events on his Christmas tree farm.

But the Henniker farmer said yesterday he will appeal the judge’s order, still claiming he should be allowed to book gatherings on his 110-acre property.

“I can’t stop,” Forster said. “We’re disappointed, but we can’t stop. We’ll do the best we can to win this.”

In February, the zoning board voted to deny Forster the right to host events on his tree farm. Forster argued his event business is “agritourism,” which is included in the state statute that defines farming in New Hampshire. The town cites that statute in its ordinance to define agriculture, but the zoning board disagreed with Forster’s interpretation of what “agritourism” actually means.

That term was added to state law in 2007, which now 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.”

Forster filed a lawsuit in September to appeal the zoning board’s decision against him, and Merrimack County Superior Court Judge Larry Smukler ruled in the town’s favor Wednesday.

In his order, Smukler wrote that the zoning board’s understanding of agritourism was not unreasonable. While the state statute does mention agritourism, that word is not mentioned explicitly in its definitions of farming and agriculture, the order states.

Forster also cannot argue his event business is an accessory use of his land, or use of his property that is subordinate or incidental to its use as a Christmas tree farm, the judge wrote.

“Indeed, the record indicates that wedding and event customers are attracted more to the view and less to the Christmas trees,” the order states. “Moreover, the record contains no evidence that other farms in Henniker market weddings and events as accessory uses.”

Smukler’s order notes that other local farms, including the Diamond Hill Farm in Concord and the Gould Hill Farm in Contoocook, host commercial events and weddings to stay viable. But the order also states the court could not establish “a nexus” between the weddings and Forster’s farm, in part because Forster did not provide enough information about the Christmas tree farm’s operations in comparison with the event business.

Instead, Forster “generally asserts that commercial weddings and events are essential for the farm’s viability and that such uses are not subordinate or incidental,” the judge wrote. “This is not sufficient.”

The judge denied the town’s request to fine Forster for violating its zoning ordinances, although his order grants the town an injunction that prohibits Forster from hosting weddings and events on his property in the future.

But for Forster, it’s not over. He plans to appeal Smukler’s order.

“We have to follow the process. . . . That decision, it doesn’t work for us,” he said.

He’s gearing up to sell his trees during the holiday season, but he still wants to host events on his land in the future. Yesterday, Forster stood by his own understanding of what he can do on the farm he has owned for more than 30 years.

“I feel I’m legally right in what I’m doing here,” he said.

(Megan Doyle can be reached at 369-3321 or mdoyle@cmonitor.com or on Twitter @megan_e_doyle.)

Legacy Comments7

AN EXCERPT FROM YOUR SEPTEMBER 20, 2013 ARTICLE: cavman35 wrote: 09/20/2013 "The definition is that Agritourism is Ancillary to the farm business. That means it is an add on to their primary business. In this case it has now become his prime business. He already has trucks bring in trees that they sell along with what is grown on his property. " Thank you "CAVMAN35"

He's doing it all wrong...he should do a gay wedding, and invite the Governor as a special guest... who would dare such an event down???

Agritourism is a means to support local farmers. It encourages people to visit a farm, learn about farming practices and it's livestock. Children can enjoy hayrides, a corn maze and sleigh rides. There may be an ice cream stand and apple picking. Educational opportunities may include learning how to plant, when to harvest, canning and preserving the produce. Some farms also offer their property for on-site weddings and gatherings. All of this is agritourism. But these uses, according to the state statute are ANCILLARY (subordinate) to the farm's operations. Mr. Forster operates a small, seasonal Christmas Tree farm. He admits he purchases 275 precut trees to resell. His "agritourism" activities (weddings & events) far surpass the farm operations. If not, then why has he not supplied the town, or the court with tax documents proving otherwise? He is simply trying to take advantage of a law to help farmers so he can start a commercial business, hoping to avoid local zoning. Shame on him.

The People's Republic of Henniker is at it again. Here is an idustrious man, trying to make a living and better life is blocked by people with some sort of "higher sensibility". Typical erosing of good ole NH Live Free or Die Yankee principles.

Forster has a letter from the Commissioner of Agriculture confirming that weddings are included in "agritourism." Why is this not good enough for the town? There also has been legislation filed that will include weddings in the definition of agritourism. Evidently, the Town of Henniker would rather see McMansions instead of farms.

In the town of Henniker anyone can present an amendment to any town zoning rules and regulations by getting a petition and then getting enough signitures and then placing it up for a vote in the annual town meeting. He can also present a request to the planning board as a request for a change and have it voted in by the town. The Planning board would then review it three times in public meetings, by law, and then it goes on the town ballot to be voted in. The building and zonning codes of any other municipality does not count in the town of Henniker because the people that live here get to make their own decisions.

I applaud Judge Smukler’s decision. Mr. Forster started up a commercial business with blatant disregard and no respect for the the town’s zoning and regulations, town officials, hard-working volunteer board members, and his neighbor’s rights to the quiet enjoyment of their property. Court records show that Mr. Forster admits purchasing 275 precut trees elsewhere for resale at his “farm”. Mr. Forster (a retired commercial airline pilot) did not provide any NH Department of Revenue or IRS tax records supporting his farm’s business…for the last 30 years? The Judge also ordered that Mr. Forster is liable for reasonable attorney fees and costs incurred by the Town of Henniker. Thank you Judge Smukler. Please support your local farmers and agritourism…not “Trojan Horses” trying to exploit the law.

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