New Hampshire's Right-to-Farm Summary

Since enacting its right-to-farm law in 1985, New Hampshire has lost 20 percent of its acres of farmland while its number of farm operations has grown by 20 percent.1 Other pieces of legislation, like the state’s Granite State Farm to Plate Food Policy passed in 2014, explicitly help support small-scale producers.2 But what does New Hampshire’s RTF law do in practice?

New Hampshire’s RTF Law at a Glance

New Hampshire’s RTF law provides no explicit protection of farmland or farms by size (for example, small) or organization (for example, family). New Hampshire’s RTF law, like those present in the other forty-nine states, centers on protecting certain types of agricultural operations from nuisance suits when they impact neighboring property, for example through noise or pollution. New Hampshire defines protected agricultural operations as any farm, agricultural, or farming activity.3 The law defines farms as any land, buildings, or structures where farming operations or activities are carried out, as well as the residences of any owners, occupants, or employees on the land.4

The types of activities that fall within the definition of agriculture and farming are very broad, encompassing practically every dimension of production, ranging from general growing and cultivation of crops to the application of chemicals; the spreading of compost, septage, and manure (as permitted by municipal and state rules); the husbandry of livestock and fur-bearing animals; forestry; aquaculture; and transportation related to marketing.5 The law also includes the transportation of farmworkers as part of farming operations and activities that are shielded from nuisance suits.6 In addition, the definition of farming and agriculture covers any management practices that involve technologies that are recommended “from time to time” by the University of New Hampshire or other pertinent state and federal agencies.7

Following a 2016 amendment to state law, agritourism also now falls within the definition of agriculture and can therefore be protected from nuisance lawsuits under the RTF law.8 Prior to this amendment, a court concluded in 2015 that agritourism was not part of the state’s definition of agriculture. The court then upheld that local zoning regulations could prohibit certain agritourism activities on land that was zoned rural residential and that allowed agriculture as a permitted use, in this case the hosting of a wedding on a Christmas tree farm.9 The legislature responded by amending the law to include agritourism in the definition of agriculture.10

New Hampshire also protects dog breeding as a “farm” use under its definition of agriculture. In a 2017 case involving a dispute on land zoned both residential and agricultural, a court ruled that breeding dogs on-site and selling them would fall within the meaning of “farming” because dogs could be considered livestock or fur-bearing animals.11 The court, however, clarified that the sale of animals alone (without breeding on-site) is not a customary farm occupation and therefore was not an allowed use under the town’s zoning ordinances.

Conditions and Activities

New Hampshire’s RTF law protects agricultural operations from public nuisance suits (those brought by the government on behalf of the general public) and private nuisance suits (those brought by people, like neighbors) when the local conditions in or around them change, as long as a series of conditions are met.12 First, agricultural operations are required to be in operation one year, but no more, meaning they do not have to predate neighboring property owners. Second, agricultural operations cannot be injurious to public health or safety. Third, such operations cannot have been a nuisance at the time they began. Fourth, they cannot act in negligent (failing to use prudent care) or improper ways.13 However, agricultural operations cannot be found negligent or improper when they conform to federal, state, and local laws, rules, and regulations.

Additionally, the RTF law stipulates that it does not “modify or limit” the duties and authorities of the Department of Environmental Services as pertains to the Safe Drinking Water Act and the Water Pollution and Waste Disposal Program.14 However, the existing laws in the state may not safeguard rural groundwater. While New Hampshire’s Safe Drinking Water Act regulates public water supplies, it is not clear that it protects private rural wells.15 The Water Pollution and Waste Disposal Program has established a National Pollutant Discharge Elimination System. This program seeks to abate all sources of water pollution by making them compliant with state or federal law, whichever is more stringent.16

Local Governance

New Hampshire’s RTF law does not protect agricultural operations when local governments make determinations that the operations are injurious to public health or safety.17 For example, town health officers can regulate the prevention and removal of nuisances as they judge necessary for the health and safety of the people.18 The commissioner of the Department of Health and Human Services can also adopt other rules in line with the state’s Administrative Procedure Act.19 In addition, a separate public health statute explicitly states that sties and pens for swine, as well as privies, toilets, sinks, drains, cesspools, and septic tanks, cannot be constructed if public health officials determine them or the discharges from such facilities to be a nuisance or injurious to public health.20

Nothing in the RTF law expressly restricts the ability of local governments to control the planning, zoning, and related regulations in their communities.21 However, the state’s zoning code stipulates that agricultural activities, agritourism, and forestry activities shall not be unreasonably limited by municipal planning and zoning.22 The law then defines “unreasonable” as the failure of local land use authorities to recognize such activities as traditional, fundamental, and accessory uses of land.23

More generally, when zoning districts or locations do not explicitly address agricultural operations, they are assumed to be permitted, as long as they utilize best management practices.24 Operations can then expand, change their technology or markets, and change uses or activities.25 However, any such expansion, alteration, or change must comply with state and federal laws, alongside best management practices. In addition, some operations could be subject to permits, site plan reviews, or other forms of approval.

The right to fish also is protected in New Hampshire. In 1998, a movement began to create a Family Fishing Protection Act, which would have prevented local governments from enacting ordinances making commercial or recreational fishing operations nuisances.26 Although the 1998 act failed to pass and become law, law, nearly two decades later—in 2015—the legislature enacted the Traditional Commercial and Recreational Fishing Protection Act, which prohibits local ordinances from declaring commercial or recreational fishing operations to be nuisances solely because of the nature of their business but which does allow for the local regulation of such operations, including their expansion, in order to prevent nuisance conditions from arising.27 The act also protects commercial and recreational fishing operations from public nuisance suits and private nuisance suits due to a change in ownership or a change in the locality around the operation.28

Attorney Fees

New Hampshire’s RTF law does not explicitly address the burden of paying attorney fees. However, New Hampshire law does allow the courts to award attorney fees in “any action commenced, prolonged, required or defended without any reasonable basis in the facts provable by evidence, or any reasonable claim in the law as it is, or as it might arguably be held to be.”29

This law played out in a 1992 case in which a town and the operators of a mobile park each sued a neighboring agricultural property over the application of chicken manure, which was not plowed under for weeks. The mobile park operator sought attorney fees on the basis that the chicken manure was spread intentionally to harass the residents of the mobile park. The town, on the other hand, which had informed the agricultural operation that the manure was a public nuisance, sought attorney fees because the operation was knowingly prolonging the litigation. The town and the mobile park operator were originally awarded both injunctive relief (stopping the practice) as well as attorney fees. On appeal, the New Hampshire Supreme Court upheld the award of attorney fees.

• 1. U.S. Department of Agriculture, USDA Quick Stats Tool: June 1985 Survey, New Hampshire, distributed by National Agricultural Statistics Service, accessed January 6, 2021, https://quickstats.nass.usda.gov/results/772E1C5B-0C8D-3650-957B-3599C9C937AC; “2021 State Agriculture Overview: New Hampshire,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=NEW%20HAMPSHIRE.
• 2. S.B. 141 established the Granite State Farm to Plate Food Policy and Principles while other legislation, H.B. 608 and 1138, established new local markets for producers. See Clara Conklin, “As State Help for Farms Grows, Local Difficulties Remain—Farmers across the State Are Facing Hurdles as Residents Seek to Keep Operations Out of Their Backyard,” New Hampshire Business Review (Manchester), July 25, 2014.
• 3. N.H. Rev. Stat. § 432:32 (2021).
• 4. N.H. Rev. Stat. § 21:34-a (2021).
• 5. N.H. Rev. Stat. § 21:34-a (2021).
• 6. N.H. Rev. Stat. § 21:34-a (2021).
• 7. N.H. Rev. Stat. § 21:34-a (2021). See also Forster v. Town of Henniker, 118 A.3d 1016 (N.H. 2015).
• 8. 2016 N.H. Laws 267 (S.B. 345) (amending N.H. Rev. Stat. § 21:34-a).
• 9. Forster, 118 A.3d 1016.
• 10. N.H. Rev. Stat. § 21:34-a (2021).
• 11. Cote v. Town of Danville, No. 2016-0679, 2017 WL 6629166 (N.H. Nov. 8, 2017).
• 12. N.H. Rev. Stat. § 432:33 (2021).
• 13. N.H. Rev. Stat. § 432:34 (2021).
• 14. N.H. Rev. Stat. § 432:35 (2021).
• 15. N.H. Rev. Stat. § 485:1 (2021).
• 16. N.H. Rev. Stat. § 485-A:3 (2021).
• 17. N.H. Rev. Stat. § 432:33 (2021).
• 18. N.H. Rev. Stat. § 147:1 (2021).
• 19. N.H. Rev. Stat. § 147:2 (2021). The New Hampshire Administrative Procedure Act can be found at N.H. Rev. Stat. § 541-A et seq.
• 20. N.H. Rev. Stat. § 147:10 (2021).
• 21. N.H. Rev. Stat. § 672:1 (2021).
• 22. N.H. Rev. Stat. § 672:1 (2021).
• 23. N.H. Rev. Stat. § 672:1 (2021).
• 24. N.H. Rev. Stat. § 674:32-a (2021).
• 25. N.H. Rev. Stat. § 674:32-b(1) (2021).
• 26. John Toole, “‘Veggie Libel Law’ Praised, Panned before House Panel,” New Hampshire Union Leader (Manchester), January 21, 1998.
• 27. 2015 N.H. Laws 236 (H.B. 464) (enacting N.H. Rev. Stat. §§ 674:67 to 674:70).
• 28. N.H. Rev. Stat. § 674:68 (2021).
• 29. Koch v. Randall, 618 A.2d 283 (N.H. 1992).