Farm Stand or Farm Store? The Grey Area (and Why Theft Is Pushing Farms to Decide)

Across New Hampshire I’m seeing more “honor-system” farm stands get hit with theft—cash boxes emptied, products taken, buildings broken into. The response I’m watching on the ground: farms shift from an unmanned shed by the road to a staffed “farm store.” That shift raises real questions: Does adding staff change your legal status with the town? Can a town stop you from running a staffed farm store? What RSAs actually apply?

Short answer: New Hampshire law is friendlier to farms than many folks think—but there are lines to mind. Towns can regulate certain impacts (parking, traffic, building code) and can require site plan review when you open or significantly expand on-site retail. What they generally can’t do is use zoning to prohibit agricultural activity or agritourism outright.

What the State Calls a “Farm Roadside Stand”

Under RSA 21:34-a, a farm roadside stand “remains an agricultural operation and not commercial” if at least 35% of gross sales come from products produced on the owner’s farm(s). That classification matters, because “agricultural” uses get special protection in zoning. Staffed or unstaffed isn’t the deciding factor—the product mix is. If you dip below that 35% threshold, you start looking like a general retail store and can be treated as such under local ordinances.

The Big Picture Protections for Farms

New Hampshire’s planning & zoning purpose statement says agriculture and agritourism “shall not be unreasonably limited” by local zoning or the unreasonable interpretation of it. If a town’s ordinance is silent about agriculture, state law presumes agricultural operations are permitted—as primary or accessory uses—so long as you follow best management practices and applicable laws.

Where Towns Can Step In (and Often Will)

When you establish, re-establish, or significantly expand a farm stand or any on-site retail activity (including opening hours, adding staff, enlarging the building, more parking, etc.), a town may require reasonable approvals such as site plan review or a special exception. The town may regulate things like parking, driveway/traffic safety, signs, noise, and other generally applicable standards to protect public health and safety.

There’s a safety valve for farms: if applying a local requirement would effectively prohibit an agricultural use—or be unreasonable in the farm context—the ZBA or other local board must grant a waiver to the extent needed to reasonably permit the agricultural use, unless there’s a demonstrated adverse effect on health, safety, or neighboring property values.

Agritourism Is Explicitly Protected (but Still Reviewable)

Agritourism (as RSA 21:34-a defines it) cannot be prohibited where the primary use is agriculture. But new or significantly expanded on-site public transactions connected to agritourism can still be required to go through site plan review—same as a stand/store. Also, towns can’t invent their own definition of agritourism that conflicts with the state’s.

So…Will Towns Be Able to Stop Staffed Farm Stores?

Usually no—not if you remain within the ag umbrella:

• If your shop qualifies as a farm roadside stand (≥35% of sales from your own farm), it is still an agricultural operation, not general retail. Towns can require reasonable review and set reasonable site standards, but they can’t use zoning to ban you merely for being staffed.

• If your “store” flips into broader retail (e.g., most inventory is third-party goods), you may lose the special ag status and face normal commercial zoning rules in your district.

In either scenario, if a town standard would effectively shut the farm use down, there’s a statutory path for waivers. That’s a powerful tool when the facts are on your side.

Practical Playbook if You’re Moving from Honor Box to Staffed Store

1. Run the 35% test. Review last year’s sales: are ≥35% of dollars from products you produced on your farm(s)? Document it. (This is your “we’re agricultural, not commercial” proof.)

2. Ask your planner what triggers review. Opening hours, staffing, adding coolers, enlarging the shed, a new parking area, or new driveway connections can each trigger site plan review. Go in early and cooperative; bring your BMPs.

3. Design for safety. Marked parking off the traveled way, clear sight lines, lighting, and a sign package consistent with local sign rules will smooth approvals. (These are exactly the kinds of “generally applicable” standards towns can enforce.)

4. Know your food rules. If you sell homestead foods or ready-to-eat items, make sure you align with DHHS Food Protection guidance for homestead operations and licensed foods.

5. If you hit a wall, remember the waiver. If a condition would effectively prohibit your agricultural use, the board is obligated to consider a waiver tailored to let the ag use function safely.

A Note on the Case Everyone Cites

Years ago, Forster v. Henniker clarified that not every revenue-generating activity on a farm automatically counts as “agriculture.” The legislature responded by clarifying agritourism’s place and by strengthening the statutes cited above. The upshot today: agritourism can’t be prohibited, but towns retain reasonable review authority for on-site public transactions.

Theft Is Driving the Shift—Here Are Low-Friction Security Upgrades

Even if you stay unmanned, you can reduce losses without changing your legal status:

• Cashless by default (QR codes/online pay) with a “cash by request” lockbox during staffed hours

• Timed smart locks & cameras, visible signage (“24/7 video in use”)

• Smaller cash holds with frequent drops, and better lighting/clear lines of sight

  
  

  (None of this changes your classification; it just helps you keep your produce and your sanity.)

Bottom line

• A staffed on-farm shop that meets the 35% farm-produced sales test stays an agricultural operation under RSA 21:34-a. Towns may review site impacts, but can’t use zoning to ban it.

• Opening or significantly expanding on-site retail can trigger site plan review, where the town can regulate parking, traffic, signs, and safety—not the existence of the farm use itself.

• If a requirement would effectively prohibit your ag use, the statutes require boards to grant a waiver unless there’s a concrete health/safety or neighboring-value harm.

This post is general information for New Hampshire farms and isn’t legal advice. If you’re headed to a hearing, bring counsel or at least these RSA cites so the discussion stays anchored to the law.