Maine Land Conservation Law E-Bulletin

September 17, 2015

In this issue:
  • Governor Ups Ante Against LMF  – Republicans in State House Stand By and Watch
  • New Hampshire Agritourism Case
  • Federal Land and Water Conservation Fund At Risk – Contact Bruce Poliquin’s Office
  • E-Bulletin Information

Governor Ups Ante Against LMF — Republicans in State House Stand By and Watch

Governor LePage’s vendetta against the Land For Maine’s Future program shows no signs of ending.  I wrote about this issue in the March and June E-Bulletins, and the situation has worsened since then.  The Governor has now frozen $2 million in already existing LMF funds and prevented the program from accessing private donations.  Furthermore, the three administration cabinet members of the LMF Board have failed to attend the last two LMF Board meetings, resulting in the lack of a quorum to do any business.  For recent press coverage, see here.

Meanwhile, most Republicans in the State House have stood by the Governor.  In June, the Legislature approved LD 1378, a bill that would require the Governor to release voter-approved bonds unless there are legitimate, objective reasons for holding them.  But the Governor vetoed the bill and although the Senate voted to override the veto, the House sustained it due to most Republican members bowing to pressure from their leadership.  To see how your state senator and representative voted the on the veto, click here and here (a No vote sided with the Governor against LMF).  I strongly encourage citizens in any district with a senator or representative who voted no on the veto to contact that legislator to express your disappointment.  And if your representative voted yes, please go out of your way to thank him or her.  With no end to the dispute in sight, it is looking increasingly likely that LMF will become a campaign issue in 2016.

New Hampshire Agritourism Case

A recent decision by the New Hampshire Supreme Court should be of interest to Maine land trusts, especially those with agricultural conservation easements.  In Forster v. Town of Henniker, — A.3d — (N.H. 2015), the Court held that “agritourism” is not included in the statutory definition of “agriculture” for local zoning purposes.

Here is the background:  Stephen Forster owned a 110-acre property in the Town of Henniker on which he operated a Christmas tree farm.  The property was located in a rural residential zone in which agriculture was permitted.  Home businesses and bed and breakfasts were also permitted by special exception.  In 2011, Forster began offering the farm as a rental space for weddings and other private events.  The Town cited him for violating the zoning ordinance, claiming that private events were not accessory agricultural uses and were not otherwise permitted in the rural residential zone.  The Town’s zoning ordinance defined “agriculture” by reference to a state statute’s definition.  This same statute contained a separate definition of “agritourism” as an activity that was “ancillary” to a farm operation.  Forster claimed that “agritourism” was included in the statutory definition of “agriculture.”  Alternatively, Forster argued that even if the rental events were not a form of agriculture, state law and policy in support of agritourism preempts the local zoning ordinance.

As part of its opinion, the New Hampshire Supreme Court found that state statutes did not create a comprehensive and detailed scheme in support of agritourism and thus did not impliedly preempt the zoning ordinance.  The Court further held that agritourism was not an ancillary use to agriculture because it was not “commonly, habitually and by long practice… established as reasonably associated” with agriculture.  The court noted that Forster had proffered examples of only nine other New Hampshire farms engaged in agritourism, and a handful in other New England states.

This is not a land conservation case per se, but because many agricultural conservation easements are imprecise on what constitutes “agriculture,” it certainly merits attention.  Land trusts are often asked to decide whether various agritourism activities are permitted on agricultural easements.  Whether agritourism is a customary and longstanding practice for farms is certainly open to debate.  In fact, one of the justices strongly dissented on this very point, noting that “none of my four colleagues have spent a summer in East Colebrook, an area where weddings on farms are customary.”  As with many other issues regarding agricultural easements, it is recommended that drafters deal with agritourism explicitly by defining it and either allowing it (perhaps subject to holder approval), prohibiting it, or delegating to a management plan.

Federal Land and Water Conservation Fund at Risk – Contact Bruce Poliquin’s Office

The federal Land and Water Conservation Fund is set to expire on September 30, unless reauthorized by Congress.  LWCF provides key funding for parks, playgrounds, and other conservation projects throughout Maine and the nation.  Reauthorizing LWCF is a key priority of the Land Trust Alliance right now, and they are supporting a letter from Republicans to Speaker of the House John Boehner.  Representative Bruce Poliquin of Maine’s Second District is one of the Congresspersons who has not yet signed the letter.  For more information, click here.  If you live in the Second District, please call Representative Poliquin’s office at (202) 225-6306.  Kate Shorr is the Legislative Aide responsible for natural resources.  Her e-mail is

E-Bulletin Information

I send E-Bulletins 3 or 4 times per year to provide updates and analyses on legal and policy matters respecting Maine land conservation.  I do my best to keep my messages brief, timely, and useful to conservation-minded landowners, as well as land trust professionals and volunteers.  At the same time, no one should rely on these E-Bulletins as legal advice, and I encourage you to consult a qualified attorney for advice on any particular situation.

If you find this free E-Bulletin to be valuable and interesting, please forward it to a friend or colleague.  Subscriptions remain free, and I respect my subscribers’ privacy.

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