Down on the farm: Newfields challenges 'agritourism' regulations
Nov. 6—NEWFIELDS
NO ONE CAME to see the llamas.
As Clay, Bruce and Zeus kept guard over sheep in the distance at Vernon Family Farm in Newfields, town officials traipsed through the tall wet grass of a parking lot and up a slight hill, where they were greeted by an afternoon rainbow.
"Ironic," said co-owner Jeremiah Vernon, still chasing after his good fortune.
A pavilion expansion on the 33-acre property has sparked a dispute over how much a state law encouraging agritourism trumps local regulations.
Town officials at various board meetings have questioned the farm's owners over their liquor license, food preparation and music offerings. They also have asked for proof that farm goods constitute at least 35% of total product sales, a state threshold that must be met to be considered an agricultural use rather than a commercial enterprise.
"I think what's happening with the planning board is disingenuous and kind of dangerous to the community spirit," said Select Board member Jacquelyn Silvani, who attended Tuesday's site visit.
This town of nearly 1,800, which has a higher median household income than Bedford, has rallied around the Vernons.
Scores of supporters showed up at a recent Planning Board meeting, and as of last week, people had donated nearly $20,000 to a GoFundMe page, enough to cover the farm's legal fees up to now.
Town Planner Glenn Greenwood said the Planning Board — which will discuss the farm's case again on Thursday — wants to make sure the farm and the public events it offers are operating safely.
Greenwood, a 35-year veteran of land management work in New Hampshire, has issues with the state agritourism law, which exempts farms from certain town regulations.
"It's as clear as mud," he said at the farm.
Lay of the land
New Hampshire has about 4,100 farms, including a collection run by new farmers taking root and older ones planning for a new generation of ownership, according to Seth Wilnew, an agricultural business management field specialist at UNH Extension.
Some fare better than others with their local zoning boards.
"It absolutely can be an obstacle that hamstrings people," he said. "Alternatively, there are towns that work quite wonderfully with farms and value them."
Communities, for instance, have different views of non-heated greenhouses, called high tunnels, which are used to extend the growing season. If classified as a permanent structure, they are taxed. Some towns tax, some don't.
"That's been a historic area of conflict with farmers and zoning boards and assessors," he said.
State of confusion
Local boards sometimes disappoint people applying for fences, building permits and decks by rejecting or criticizing their applications.
But one thing different about this case was the appearance of state Agriculture Commissioner Shawn Jasper, who showed up at last month's Planning Board session to advocate for Jeremiah and Nicole Vernon, who bought their farm in 2014.
A state law says those engaging in agritourism, which includes business activities that attract visitors to a farm for events, meals or overnight stays, shall be considered to be farming rather than operating a commercial business.
"My message to the Planning Board was essentially what they are doing at the Vernon Family Farm is exactly what I believe the Legislature intended to do as far as agritourism," said Jasper, a former House speaker.
"As I said to the Planning Board, I wish there were 100 more farms like the Vernon Family Farm in New Hampshire," Jasper said in an interview. "I think the Legislature had been hopeful that the Planning Board would look at these types of operations favorably."
"I don't want to make the (Newfields) Planning Board out to be the bad guys here," said Jasper, who once ran his family's chicken farm. "They're doing a little bit of overreach."
Greenwood, the town planner, said he has seen confusion with the law in other towns he has worked in across the state.
"There are aspects of the agritourism law that are troublesome, and they have caused me to have angry discussions with farmers that have been former friends and don't like my perspective on things," Greenwood said.
"But when the statute just says that a farm can be a place to engage in dinner or overnight stays, all of a sudden, given a highly motivated farmer, you can have a hotel, according to that statute. And that's not what is intended, I don't believe," he said.
Legal leeway for farms
Under the law, farm operations are supposed to receive less scrutiny from a planning board than commercial projects.
As they did with farmers, the Legislature gave developers more leeway in zoning ordinances under certain circumstances. For developers, that might mean getting to build a greater number of housing units on a plot of land than normally permitted in exchange for a percentage of workforce housing, where rents are tied to the area's median income.
Jasper said he didn't "think it's too much of a leap to make a comparison" between the two subjects and laws.
"I do think the agritourism statute has more teeth in it. It does say specifically that unless you have a significant expansion, you don't need site plan review," said Jasper, who admitted the law may need tweaking. "To talk about significant expansion, you have to talk about the whole operation."
Greenwood sees it differently.
"From my perspective, it would be whatever is significant to the building permit process. If it's significant for any other activity in town that needs to get a permit, then I don't understand why because it's agricultural, it doesn't need to get a permit," he said.
One farm's history
After buying the farm in 2014, the Vernons secured site plan approval from the Planning Board the following year to operate a farm stand. In 2017, the Conservation Commission received legal advice that the farm's agritourism likely did not violate its conservation easement, according to a chronology from the Vernons' attorney, Amy Manzelli.
In September 2021, the building inspector issued a building permit for a pad to put in a walk-in cooler and a walk-in freezer.
This year, after applying for a building permit to construct walls and a roof over the pad, the farm then had the construction performed without a permit "in reliance on advice of the building inspector who said that no permit was required because the farm had said the structure was for agriculture, including agritourism," Manzelli wrote the Newfields Planning Board in September.
Jasper said he believed enlarging the pavilion didn't meet the "significant" expansion test required to trigger site plan review.
The Vernons, who also lease farmland across the street and in Litchfield, have agreed to a "limited site plan review, limited to making sure the agritourism events and pavilion 'prevent traffic and parking from adversely impacting adjacent property, streets and sidewalks, or public safety,'" according to a blog post on the farm's website.
Argument over eating
Select Board Chairman Michael Sununu — the governor's brother and the Select Board's representative on the Planning Board — said he was concerned about the town's liability because permits weren't issued for the electrical and cooking area.
"This is now a structure being used by the public as a bar/restaurant in a zone that is not allowed and since the town is now aware of the situation, the town would be liable if something should happen, and we did not address it in a hasty manner," Sununu said at the July 26 Select Board meeting.
According to minutes of a Planning Board meeting in mid-July, "In Michael's opinion, the Vernons have utilized the idea of agricultural use with no oversight from the town, to do something that is controversial and against the zoning and planning ordinances."
Sununu maintained "if the activity is for non-members of the farm to utilize in a commercial way, it becomes a commercial use. Commercial activity is not allowed in the residential agricultural zone."
During the site walk, Sununu, who declined to be interviewed, took photos of the pavilion with a smartphone.
The pavilion is not a restaurant, but it is one of the locations where the couple's catering business operates, Manzelli said in an email.
License for alcohol
Sununu also has questioned whether the Vernons should be allowed to serve alcohol at the Newfields farm.
E.J. Powers, a spokesman for the State Liquor Commission, said a caterer has flexibility.
"An off-site catering license allows a license to be issued to a caterer in one jurisdiction and cater events in other jurisdictions," Powers said.
He said the commission's division of enforcement doesn't regulate agritourism but had fielded a complaint about alcohol at the farm.
"An anonymous complaint was received on July 22 against Vernon Family Farm that they were operating outside of their license requirement by selling and storing alcohol on premise," Powers said in an email.
"After review NHLC determined they were in compliance and using a catering license via a separate entity. NHLC educated them on the storage requirements."
Planning Board chairman Jeffrey Couture declined to answer specific questions about the case after the site walk.
Ruth Patterson, who lives down the street from the Vernons, told the Planning Board that music played loudly during events on Friday evenings prevented her from sitting outside and having conversations, according to the Planning Board's Oct. 13 minutes. She said they wouldn't have bought the house under these conditions.
Jeremiah Vernon said at the meeting he could easily move a speaker, so the music didn't travel toward Patterson's house.
No one answered at Patterson's house when a reporter visited last week.
What is motivating "the heart of the outrage that many members of the public are expressing is the scrutiny of the licenses that Vernon Family Farm has in good faith acquired," Manzelli said in an interview. "There is a certain element of trying to fix something that is not broken, and that's frustrating."
Burden on farmers
"Farmers are in general, us included, not in a good mental state," Jeremiah Vernon said. "This experience with the town has only exacerbated that sense of isolation and sense of a lack of value or respect."
The state last year received a $500,000 federal grant to help farmers deal with stress and other issues.
Farming is a low-margin venture, "meaning it's a challenging venture to be profitable," said UNH Extension's Wilnew.
Hiring and retaining workers, dealing with the effects of climate change and absorbing higher costs for fertilizer and diesel fuel have put more pressure on farmers.
The grant will provide up to 12 free visits to see a therapist. So far, 43 farmers have signed up, Wilnew said. The funds also will provide money for lawyers and finance experts to plan for succession and ways to make the business more profitable.
'Supermarket' farm stand
Back at the Planning Board site visit, one town official asked whether the Vernons had the ability to cook a meal at the pavilion.
"In our commercial kitchen (in Canterbury), for example, let's take fried chicken," said Jeremiah Vernon, who wore a T-shirt covered in dirt with the message, "Know your farmer."
"So we make all the breading up there," he said. "We do all the battering up there and then we drop the chicken into the fryer here.
"We've been doing fried chicken here since 2016, '17," he said. "Nothing new."
The town also wanted financial information about the farm's operation.
A farm road stand, according to state law, shall be considered an agricultural operation and not a commercial one if at least 35% of the sales revenue comes from products produced on the farm or farms of the stand owner.
The Vernons submitted a letter from their accountant documenting that 41.72% of sales so far this year are from the farm's products.
"The Legislature, in my mind, didn't intend for a farm to have to turn over their books," said Jasper, the agriculture commissioner.
Inside the farm stand, smaller than a Cape-style home, Vernon said someone in town referred to the stand as a supermarket.
"This is our supermarket-slash-farm stand," Vernon told a reporter. "Supermarket was a joke."
If regulators are going to compare his farm to a local Irving gas station, as one did at a recent meeting, "then obviously we're going to fail" to meet every requirement, he said.
"We're a small farm. We don't have corporate lawyers that have one job: to educate regulators," he said.
Greenwood said people often judge local boards by how board decisions affect them.
"From my perspective, I think that the Planning Board is trying to gather the information that they need to make the decision that is appropriate — and sometimes, sometimes how that's viewed is different according to what side of the table you're on," he said.
