Legal Q and A Local Regulation of Agriculture

By Steven C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association

Q: Is a municipality required to permit all agricultural activities as defined in RSA 21:34-a?

A: No, the definition in RSA 21:34-a only applies in a municipality that has not explicitly addressed agricultural operations or activities using that definition in its zoning ordinance.

However, if a municipality does not define the word agriculture, and does not specify in what zoning districts certain agricultural operations are permitted, then agricultural activities as defined in RSA 21:34-a shall be permitted in in any zoning district or location as either a primary or accessory use so long as conducted in accordance with best management practices guidelines adopted by the commissioner of the department of agriculture.

Q: If our zoning ordinance does define what is an agricultural use, can our zoning ordinance prohibit agricultural uses in all zoning districts?

A: No, as provided in RSA 674:32-c, I, the tilling of soil and the growing and harvesting of crops and horticultural commodities, as a primary or accessory use, shall not be prohibited in any zoning district.

Q: Can our zoning ordinance specify the permitted and prohibited forms of agricultural uses?

A: Yes, so long as the zoning ordinance permits those agricultural uses deemed permitted under RSA 674:32-c, I. Most zoning ordinances in New Hampshire are so-called “permissive” ordinances; the ordinance prohibits all uses of land unless such uses are expressly permitted (either as primary or accessory uses). To avoid any implication that an agricultural use listed in RSA 21:34-a that is not mentioned as either being permitted or prohibited in a zoning ordinance, it would be the better practice to state that only certain agricultural uses listed in a town zoning ordinance are permitted in designated districts, and that all other agricultural uses listed in RSA 21:34-a are prohibited.

Q: Our zoning ordinance does not address whether certain agricultural activities are permitted or prohibited – how does the statutory definition in RSA 21:34-a apply in our community?

A: There are two parts to the definition of agriculture under RSA 21:34-a. Paragraph II (a) of that statute lists 11 types of uses that are deemed agriculture or farming. Paragraph II (b) delineates practices or activities that are deemed incident to or ancillary to farming operations. All of those listed uses would be deemed permitted in your community either as primary or accessory uses. In addition, all of the 8 practices or activities listed in Paragraph II (b) would deemed ancillary to any listed agricultural activity.

Q: For those agricultural uses that operate, or wish to operate, where our zoning ordinance does not explicitly address agricultural operations or activities, and the definition in RSA 21:34-a applies, what is the permissible scope of municipal regulation?

A: Any such agricultural use may be expanded or altered to meet changing technology or markets or changed to another agricultural use or activity listed in RSA 21:34-a provided the expansion complies with all federal and state laws, regulations, and rules, including agricultural best management practices guidelines. RSA 674:32-b.

Q: What is the scope of permissible municipal regulation if an agricultural use that is allowed to operate under the presumption in RSA 674:32-a wishes to commence or resume the keeping of livestock, poultry, or other animals?

A: Any new establishment, re-establishment after abandonment, or significant expansion of an operation involving the keeping of livestock, poultry, or other animals may be made subject to special exception, building permit, site plan review, or other local land use board approval in accordance with the provisions of RSA 674:32-c, II and III.

Q: What is the scope of permissible municipal regulation if an agricultural use that is allowed to operate under the presumption in RSA 674:32-a wishes to commence or resume operating a farm stand, retail operation, or other on-site activity such as agritourism?

A: Any new establishment, re-establishment after abandonment, or significant expansion of a farm stand, retail operation, or other use or activity involving on-site transactions with the public, including agritourism may be made subject to applicable special exception, building permit, site plan review, or other local land use board approval.

Q: Are there any other presumptions that define the scope of municipal regulation of an agricultural use, whether that use benefits from the presumption under RSA 674:32-a or not?

A: All of the statutes that provide special protection for agricultural uses do not exempt new, re-established or expanded agricultural operations from generally applicable building and site requirements such as dimensional standards, setbacks, driveway and traffic regulations, parking requirements, noise, odor, or vibration restrictions or sign regulations. However, if any such local regulation as applied to an agricultural use would effectively prohibit that use, RSA 674:32-c, II would require the ZBA, Building Code Board of Appeal, or any other applicable board to grant a waiver from that requirement to the extent necessary to reasonably permit the agricultural use or activity. Provided, if that waiver would have a demonstrated adverse effect on public health or safety, or on the value of adjacent property, the waiver could be denied. Furthermore, any such waiver that is granted would only continue as long as it is utilized by the agricultural use.

Q: Are there any specific limitations on the local regulation of Agritourism?

A: Yes. Under RSA 674:32-c, agritourism, as defined in RSA 21:34-a, cannot be prohibited on any property where the primary use is for agriculture, subject to the requirement in RSA 674:32-b, II that an agritourism use would still be subject to generally applicable building code and site plan review and approval. Furthermore, no municipality shall adopt an ordinance, bylaw, definition, or policy regarding agritourism activities that conflicts with the definition of agritourism in RSA 21:34-a.

Stephen Buckley is Legal Services Counsel with the New Hampshire Association. He may be contacted at 602-224-7447 or at legalinquiries@nhmunicipal.org

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