Agriculture, Agritourism & Local Land Use Controls Presentation - - PowerPoint PPT Presentation

Office of Energy & Planning 2014 Spring Conference Agriculture, “Agritourism” & Local Land Use Controls

Presentation by Daniel Crean New Ham pshire Municipal Lawyers Association & Crean Law Office

1

Today’s S essions

• Presenters:

Attorney Michael L. Donovan Concord, NH Daniel Crean Pem broke, NH

NHMLA

2

Today’s S essions

Topics & Agenda Session 1. Sta tutory La ngua ge & Legisla tiv e Policy Attorney Da niel Crea n Session 2. Agritourism : Sta tutes a nd Ord ina nce La ngua ge Ap p lied Attorney Micha el Donov a n Session 3. Urba n & Suburba n Agriculture: Selected Issues Front Ya rd Ga rd ens, Ba ck Ya rd Chickens & Pot Bellied Pigs Attorney Da niel Crea n Session 4. La rge-Sca le Agriculture a nd La nd Use Controls Attorney Da niel Crea n

NHMLA

3

Sta tutory La ngua ge & Legisla tiv e Policy A. Police Power v. Zoning Power NH RSA Title LXIV (chapters 672-677) RSA 31:39, I (a), (b), (e), (f), (j), & (k) “Canons” of statutory construction

Specific takes preference over general Interpret so as to give effect to statutory purpose

4

NHMLA

S ession 1

• B. Policy & Preem ptive Effect

General Nature of Preem ption in NH RSA 672:1 Declaration of Purpose III-b Im portance of Agriculture III-c Im portance of Forestry III-d Unreasonable Interpretation RSA 21:34-a (including par. VI – agritourism )

Session 1: Statutory Language & Legislative Policy

5

NHMLA

• As am ended by Senate, creates RSA 425:2-a
• I. It is the policy of the state of New Ham pshire

through the departm ent of agriculture, m arkets, and food and in conjunction with other state agencies to encourage and support local food producers, farm ing, and fisheries including businesses engaged in agriculture, the raising and care of livestock, dairy, fishing, foraging, and aquaculture, agritourism , and the associated local and regional businesses that process, purchase, distribute, and sell such food throughout the state.

And S B 141? S ee Appendix 1

6

NHMLA

• As am ended by Senate, creates RSA 425:2-a
• II. (g) Econom ic developm ent opportunities

am ong New Ham pshire’s cities and towns are facilitated by harm onizing local and state law and rem oving obstacles and excessive financial burdens to farm s and associated businesses, including farm ers’ m arkets, cooperatives, food hubs, fisheries, and processing centers.

And S B 141? S ee Appendix 1

7

NHMLA

• As am ended by Senate, creates RSA 425:2-a
• III. To the extent possible, local governm ents

shall consider the policy and principles of this section when adopting local law, or when enforcing existing law and regulation.

And S B 141? S ee Appendix 1

8

NHMLA

Agritourism and Local Land Use Controls Attorney Michael Donovan

S ession 2

9

NHMLA

Urba n & Suburba n Agriculture: Selected Issues Front Ya rd Ga rd ens, Ba ck Ya rd Chickens & Pot Bellied Pigs Attorney Da niel Crea n S ession 3

10

NHMLA

• According to the Am erican Planning

Association:

Entails the production of food for personal consum ption, education, donation, or sale, and includes associated physical and organizational infrastructure, policies, and program s within urban, suburban, and rural built environm ents.

• Consider “om nipresent” purpose of zoning to

“preserve rural environm ent.”

Urban – S uburban - Residential Agriculture

11

NHMLA

• NH is 3-4% food self-sufficient.
• On average, food travels over 150 0 m iles from

source to table.

• 90 % of our food is transported by truck.
• There is a huge inefficiency in the the am ount
• f energy used in fields or farm s to the units
• btained (due in part to reliance on oil &

natural gas).

S

• me facts & opinions on food from

UNH Prof. John E. Carroll’s The Real Dirt

12

NHMLA

• Front Yard Gardens

What do som e ordinances bar? Incom patible uses (Euclidean Zoning)

Express language

Why prohibit or lim it? Aesthetics Safety Nuisance (e.g., odors, waste, noise, and traffic)

NOT NEXT TO MY HOUSE

13

NHMLA

Sp ur Ind ustries v . Del E. W ebb Dev elop m ent Co.

On a larger scale, consider:

14

NHMLA

• Exam ples of the front yard garden battles . . .

Keene DeKalb, GA

How m uch produce is too m uch?

Delaware Michigan

• Appendix 1

Orlando Miam i Shores

• Back-to-Earth & Accom m odation

Sacram ento

More practically speaking . . .

15

NHMLA

Does it really m atter if local zoning ordinances

• Regulate . . .
• Lim it . . .
• Prohibit . . .
• Front yard gardens?

Impacts and Policy

16

NHMLA

• Why do disputes arise?

Language & Specificity “Nuisances” Changes

Neighborhoods Fashions & Trends Property Values

• Other concerns:

Free Ranging Ban on Roosters Elderly fowl Abandoned

A CHICKEN IN EVERY POT YARD?

17

NHMLA

• Beloit, WI Exam ple

Right or wrong for NH m unicipalities?

• If not right for NH, what

else is there to do?

How about this as a requirem ent?

How should/ may BYC issues be resolved?

18

NHMLA

For elderly fowl, how about “ Hensioners” ?

19

NHMLA

Or Perhaps this. . . .

Chicken Stew

• The Big Question - Are Pot Bellied Pigs

Livestock, feedstock, or dom estic pets? In other words, the issue m ight be sum m arized as: “Are they pets or are they dinner?”

PET ME OR EAT ME?

A Variant on “ Pig in a Parlor”

21

NHMLA

• Who are the parties?

Planners and Officials Neighbors Anim al Rights Activists Lawyers (of course)

• Source of som e problem s are like those in other

issues discussed here

Language & Specificity “Nuisances” – Perceived Dangers Changes

Neighborhoods Fashions & Trends Property Values

Why the argument?

22

NHMLA

• Riverside, CA

License Regulation Standards Leashing

• What else m ight be done?

If there is a problem, how about a solution

23

NHMLA

• How Sim ilar or Dissim ilar are Dunbarton &

Pennsylvania Exam ples Cited in Paper

• How should large scale operations be

controlled?

Zoning v. SPR More im portantly:

Why regulate? What effects/ concerns need to be addressed? Then, decide how to appropriately control!

Large Scale Agriculture

24

NHMLA

• The Chickens
• r
• The Eggs
• Neither

THE LAW SUIT

Dunbarton: Which Comes First?

25

NHMLA

• Issues Raised

Perm itted Use or Not? SPR For a Perm itted Use? Sufficiency of Evidence? Past Practice? Intent in Acquiring Property? Reliance of Property Owner? Was There an Appealable Decision? If an Error Com m itted, What is the Rem edy?

Dunbarton Case

26

NHMLA

Questions . . . and Maybe Some Answers Thank You Dan Crean creanlaw@comcast.net (603) 928-7760

NHMLA

27