dissenting. Because our prior decisions involving accessory uses do not support such a conclusion, I disagree with the majority holding that the transport and sale of spring water, in this case, is “necessarily incidental and subordinate to the permitted use of a water storage facility.”
The town’s zoning ordinance defines accessory use as “[a use] subordinate and customarily incidental to the [use] on the same lot.” ZONING ORDINANCE OF THE TOWN OF FREEDOM § 1702.1. We have historically interpreted the phrase “subordinate and customarily incidental” to require that the accessory use (1) be minor in relation to the permitted use and (2) bear a reasonable relationship to the primary use. See Hannigan v. City of Concord, 144 N.H. 68, 71 (1999); Nestor v. Town of Meredith, 138 N.H. 632, 634 (1994); Narbonne v. Town of Rye, 130 N.H. 70, 73 (1987); Perron v. Concord, 102 N.H. 32, 35-36 (1959).
In Narbonne v. Town of Rye, 130 N.H. 70, the plaintiffs argued that a stained glass business operating out of their home was an accessory use. Although the parties offered numerous arguments as to whether the business was customarily related to the primary use of the home, “we [found] it unnecessary to address this issue because the plaintiffs’ business activity exceed[ed] the level of activity that might reasonably be considered to result from a subordinate use of the premises.” Id. at 73. In essence, we found that the plaintiffs’ business of selling stained glass was not minor or subordinate to the permitted residential use. The evidence revealed a substantial commercial operation “which, if intended to be allowed in the residential district, should be specifically provided for in the ordinance.” Id. at 73-74.
The rationale of Narbonne is consistent with our earlier decision in Perron v. Concord, 102 N.H. 32. There, a roofer sought a permit to store tools, trucks and other equipment on his residential property. He also sought to use a portion of his home as an office for his roofing business. We upheld the denial of the permit to the extent that it pertained to uses of the residential property that were not accessory uses. In doing so, we stated that “uses which are not customarily incidental to residential uses, or which attain the proportions of a principal use, are not permissible as accessory.” Id. *276at 36 (quotation omitted). In the aggregate, the uses proposed by the roofer “extend[ed] beyond subordination to residential use. In volume and significance they might reasonably be considered at least equal to the permitted residential use to which they may lawfully be only accessory.” Id. (quotation omitted). Accordingly, we sustained the board of adjustment’s finding that the uses were not accessory. See id.
We recently applied the “subordinate and customarily incidental” accessory use test in Hannigan v. City of Concord, 144 N.H. 68, where we upheld the trial court’s ruling that a proposed maintenance building was accessory to the permitted use of a golf course. See id. at 72. Because the building was intended for use in the operation and maintenance of the golf course, we rejected the plaintiffs’ characterization that the proposed building was a commercial or industrial operation. See id. In doing so, we compared Narbonne, where the selling of stained glass from a residence was akin to a commercial enterprise. See id.
Contrary to the majority’s rationale, whether the ordinance permits some commercial operations in the rural residential district is of no consequence. The fact that some commercial operations are expressly permitted is in accord with Narbonne. If a municipality intends to allow commercial uses in the residential district, they should be specifically provided for in the ordinance. See Narbonne, 130 N.H. at 73-74. Further, the majority’s reliance upon the ordinance’s definition of a “Storage Facility” as “[a] structure for the storage of merchandise or commodities” does not provide insight into whether the sale and distribution of spring water, under the circumstances of this case, is subordinate to or minor in relation to such a facility.
The sale and distribution of spring water may well be an accessory use to a water storage facility. Whether it is, however, should not rest solely upon the assertion that such facilities have a commercial purpose. Although this may help answer whether the sale and distribution of water is customarily incidental to the permitted use of a storage facility, it fails to address whether the use is subordinate or minor in relation to such a facility.
Here, the trial court found that the plaintiffs were under contract to remove and sell a minimum of twelve million gallons of water per year. The water was transported from the plaintiffs’ property in 6,500 or 8,500 gallon tanker trucks which arrived and departed an average of 4.2 times per day, seven days a week, during all hours of *277the day and night. As in Narbonne, it is unnecessary to determine whether the sale and distribution of water is customarily incidental to a storage facility “because the plaintiffs’ business activity exceeds the level of activity that might reasonably be considered to result from a subordinate use of the premises.” Id. at 73. In this case, the magnitude of the commercial enterprise cannot reasonably be declared subordinate to or minor in relation to the permitted use of water storage. Rather, both in volume and significance, it equals or exceeds the permitted use to which it must be accessory. See Perron, 102 N.H. at 36.
The plaintiffs are not without recourse. They could apply for an accessory use permit that would differ in degree, volume and significance from the current alleged accessory use. Obviously, such a permit should outline how the proposed use would truly be subordinate and incidental to the permitted use of a water storage facility. An application for such a permit would be entitled to consideration. See id. at 37-38. The plaintiffs could also seek a variance.
For the foregoing reasons, I respectfully dissent.
BROCK, C.J., joins in the dissent.