KOBYLUCK BROTHERS, LLC, ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WATERFORD
(AC 37732)
Appellate Court of Connecticut
Argued March 8—officially released August 2, 2016
DiPentima, C. J., and Prescott and Agati, Js.
Appeal from Superior Court, judicial district of New London, Handy, J.
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Michael A. Zizka, with whom was Kari L. Olson, for the appellants (plaintiffs).
Nicholas F. Kepple, with whom were Sandra Beck Dombro and, on the brief, Robert A. Avena, for the appellee (defendant).
Opinion
DIPENTIMA, C. J. The plaintiffs, Kobyluck Brothers, LLC (Kobyluck Brothers), and Kobyluck Construction, Inc. (Kobyluck Construction), appeal from the judgment of the trial court affirming the decision of the defendant, the Planning and Zoning Commission of the Town of Waterford (commission), denying the plaintiffs’ special permit and site plan application.1 The plaintiffs claim that the court incorrectly interpreted the term “manufacturing” as used in the Waterford Zoning Regulations (regulations) to preclude the production of construction aggregate. We agree, and, accordingly, reverse the judgment of the trial court.
The record reveals the following relevant undisputed facts and procedural history. Kobyluck Brothers owns 28 Industrial Drive (property), the parcel at the center of the dispute, in Waterford. The property is a thirty-seven acre parcel of land in an industrial park at the eastern end of a cul-de-sac street. Adjacent to the property, Kobyluck Brothers also owns 24 Industrial Drive, which contains a concrete manufacturing plant operated by Kobyluck Construction.
On December 5, 2011, the plaintiffs applied to the commission for a special permit and site plan approval seeking permission to construct a “building materials manufacturing facility” on the property. According to the plaintiffs, because the property was located in a general industrial
The plaintiffs’ principal purpose in applying for a special permit and site plan approval was to build a permanent facility to “manufactur[e] . . . earth products used in the construction industry,” i.e., “crushed stone, septic gravel, and aggregate . . . .”3 To accomplish this, the plaintiffs first needed to excavate and remove from the property approximately 350,000 cubic yards of earth products, which included bedrock. The extracted earth products would be crushed and sorted by industrial machinery; afterward, the finished product would be removed from the property. Once the permanent facility was completed, the plaintiffs would no longer extract materials from the property. Rather, the plaintiffs intended to bring raw materials from off-site to their permanent facility and then transport the finished products off-site. In short, the plaintiffs sought to crush extracted bedrock into a product suitable for use in the construction industry.
Public hearings on this application began on April 9, 2012, and continued to various dates thereafter, con-cluding on June 25, 2012. Subsequently, the commission unanimously denied the plaintiffs’ application on July 9, 2012. Relevant to this appeal, the commission found that the plaintiffs’ proposed use was not permitted under § 11.2.11 of the regulations. Specifically, it determined that the plaintiffs’ proposed use was “processing” and not “manufacturing.” The plaintiffs filed a timely appeal with the Superior Court on July 26, 2012.
On April 10, 2014, the court held a hearing on the threshold issue of whether the plaintiffs’ applications were for a permitted use in an I-G district. See footnote 1 of this opinion. On July 31, 2014, the court issued a memorandum of decision. After determining that the “rock crushing facility proposed by the plaintiff [did] not constitute ‘manufacturing,‘” the court concluded that the plaintiffs’ proposed use of the property was not a specially permitted use under the regulations when the plaintiffs filed their application.
Preliminarily, the court described the plaintiffs’ proposed use: “[T]here can be no question that what the plaintiffs intend to do on th[e] property is crush rocks—that is, either from materials on-site or materials brought from off-site. The plaintiffs intend to process rocks and crush them into smaller rocks, which would be used for various construction projects.” The court then set forth the parties’ arguments: “The plaintiffs argue that a rock crushing facility would fall within the scope of § 11.2.11 of the zoning regulations because that proposed use constitutes the
The court found § 11.2.11 of the regulations ambiguous for two reasons. First, neither “manufacture” nor “building materials” was defined in the regulations. Second, the court determined that the plaintiffs’ proposed use of “crush[ing] large rocks into smaller rocks” that “would subsequently be sold for use in construction projects” was distinct from the manufacturing of asphalt, cement, or cinder blocks, which was expressly enumerated in § 11.2.11, because the latter products required “various ingredients [to be] mixed to form a new product . . . .” Having found that the regulation was ambiguous, the court appropriately sought interpretative guidance. See, e.g., Anatra v. Zoning Board of Appeals, 307 Conn. 728, 739, 59 A.3d 772 (2013).
Specifically, the court looked at “(1) internal clues in the regulations themselves, (2) dictionary definitions of the word ‘manufacture,’ and (3) the manner in which other cases have construed ‘manufacture’ in its common usage, both generally and specifically to rock crushing.” Its interpretative analysis led the court to conclude that the plaintiffs’ “excavation and crushing of rock to create aggregate [did] not constitute ‘manufacturing’ of other building materials under the regulations, and is more properly classified solely as ‘processing’ of the materials.” Accordingly, the court found that the plaintiffs’ proposed use of the property was not a specially permitted use. On October 16, 2014, the court issued an order expressly affirming the commission‘s denial of the plaintiffs’ special permit and site plan approval application. This appeal followed.
On appeal, the plaintiffs contend that the court‘s analysis was flawed and led it to misconstrue the term “manufacturing.” The plaintiffs argue that neither the dictionary definition nor the relevant state case law supports the court‘s construction of the term “manufacturing,” and consequently, the court erroneously interpreted the regulations. The plaintiffs assert that the court should have considered the definition of “manufacturing,” as provided in
We first set forth the standard of review and relevant legal principles. “Our review of the court‘s interpretation of the zoning regulations is plenary. . . . Thus, we must determine whether the conclusions reached by the court are legally and logically correct and supported by the facts in the record. . . . Generally, it is the function of a zoning [commission] . . . to decide within prescribed limits and consistent
“A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court. . . . The court is not bound by the legal interpretation of the ordinance by the [commission].” (Citations omitted; internal quotation marks omitted.) Balf Co. v. Planning & Zoning Commission, 79 Conn. App. 626, 635-36, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003).
“[Z]oning regulations are local legislative enactments and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . .” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). Therefore, we employ our well established tools of statutory construction.
“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . . In seeking to determine that meaning . . .
We bear in mind that “[a] court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legisla-tive body.” (Internal quotation marks omitted.) Balf Co. v. Planning & Zoning Commission, supra, 79 Conn. App. 636. “The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning . . . .” (Internal quotation
Because zoning regulations are “in derogation of common law property rights . . . the regulation[s] cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms.” (Internal quotation marks omitted.) Fillion v. Hannon, supra, 106 Conn. App. 752; see also Viera v. Cohen, 283 Conn. 412, 426, 927 A.2d 843 (2007) (“[w]hen a statute is in derogation of common law . . . it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction” [internal quotation marks omitted]). Critical to our resolution of this case, “doubtful language will be construed against rather than in favor of a [restriction] . . . .” (Internal quotation marks omitted.) Fillion v. Hannon, supra, 752. With these legal principles in mind, we turn to the merits of the case.
We first examine the regulations.4 As a threshold matter, we agree with the court that § 11.2.11 of the regulations is ambiguous. The regulations did not define “manufacture,” “processing,” and “building materials.” Absent these definitions and because both parties present a reasonable interpretation of § 11.2.11, a reviewing court could not determine conclusively from the language alone whether the plaintiffs’ proposed use, i.e., crushing excavated bedrock to produce construction aggregate, was permissible in an I-G district. See Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 197–98, 3 A.3d 56 (2010) (“[a] statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation” [internal quotation marks omitted]).
The court aptly noted that the regulations often used “manufacture” and “processing” in the same sentence, separated by the conjunction “or.”5 We agree with the court that this suggests that the drafters of the regulations intended to attach different meanings to the terms “manufacture” and “processing.” See Celentano v. Oaks Condominium Assn., 265 Conn. 579, 609, 830 A.2d 164 (2003) (“fundamental tenet of statutory construction that [t]he use of . . . different terms . . . within the same statute suggests that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings” [internal quotation marks omitted]). Moreover, we acknowledge that it is significant
Section 10 of the regulations provided the guidelines and the permitted uses in a “civic triangle district.” Section 10.2 listed the permitted uses in the district, subject to the approval of a special permit, and storage warehouses were listed as a permitted use. Section 10.2.4.1 stated in its entirety: “The assembly of products held in storage warehouses shall be allowed as an accessory use only (not to exceed 25 [percent] of the space occupied by any individual tenant or owner), provided that the assembly does not involve a manufacturing process of any kind and complies with [s]ection 1.4 of these [r]egulations.” Because § 1.4 defined “assembly” as “[t]he combining of component parts having form and substance by physically mating or joining the component parts,” the court reasoned that “assembly” was not necessarily “manufacturing“; thus, the court concluded that § 10.2.4.1 “reveal[ed] that the drafters intended that ‘manufacture’ not have an exceedingly expansive definition in the regulations, even if the word could be more expansive in some instances of common usage.” We do not agree with the court‘s conclusion.
Indeed, the meaning of “assembly” does not share the same meaning as “manufacturing process.” It does not necessarily follow that the term “assembly,” as defined by § 1.4 and used in § 10.2.4.1, limited the definition of “manufacture,” which was not included in § 10.2.4.1. The term “manufacturing,” which was part of § 10.2.4.1, is a transitive verb and, in this context, can be defined as “to make or produce by hand or machinery, [especially] on a large scale.” (Emphasis added.) Random House Webster‘s Unabridged Dictionary (2d Ed. 2001). A simpler reading of § 10.2.4.1 is that an owner or tenant of a storage warehouse, which has been granted a special permit, may assemble the component parts of products, which are held in the storage warehouse as an accessory use of the warehouse, so long as the space occupied by the products does not exceed 25 percent of the warehouse and assembling the products was not done on a large scale.
We also do not agree with the court‘s interpretation of § 25.1.4 (a) of the regulations, which stated in relevant part: “No screening, sifting, washing, crushing or other processing of extracted earth materials shall be conducted on the premises unless located within an industrial, commercial or [rural residential] [d]istrict.” Because “processing” was used in conjunction with “crushing,” and this was the only section in the regulations that expressly mentioned rock crushing, the court was persuaded to conclude that “the drafters of the regulations intended that rock crushing would not qual-ify as the ‘manufacture of building materials’ under § 11.2.11.” We do not interpret § 25.1.4 (a) so broadly. To be sure, the language of § 25.1.4 (a) indicated that the four enumerated activities, including rock crushing, were a form of “processing.” Nonetheless, this does not imply that all forms of rock crushing, especially when it is an integral part of a series of actions, such as in manufacturing construction aggregate, were excluded. We are mindful that “[z]oning regulations . . . cannot be construed to include or exclude by implication what is not clearly within its express terms.” (Internal quotation marks omitted.) Poirier v. Zoning Board of Appeals, 75 Conn. App. 289, 304, 815 A.2d 716, cert. denied, 263 Conn. 912, 821 A.2d 766 (2003).
First, “[i]f a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, 289 Conn. 709, 717, 960 A.2d 1018 (2008). When using a dictionary to understand a word, this court has explained that “any word in the English language—except for words of specialized contexts, such as mathematics or science—will ordinarily have multiple meanings, depending on the context in which it has been used. . . . That is why we have dictionaries: not to determine the meaning of a given word, or even the preferred meaning of a given word, but simply to give us a lexicon of the various meanings that the word has carried depending on the various contexts of its use.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Community Renewal Team, Inc. v. United States Liability Ins. Co., 128 Conn. App. 174, 180-81, 17 A.3d 88, cert. denied, 301 Conn. 918, 21 A.3d 463 (2011); see also Northrop v. Allstate Ins. Co., 247 Conn. 242, 250, 720 A.2d 879 (1998) (“Although we have on occasion looked to dictionaries in order to give meaning to words used in a legal context . . . that does not mean . . . that a dictionary gives the definition of any word. A dictionary is nothing more than a compendium of the various meanings and senses in which words have been and are used in our language. A dictionary does not define the words listed in it in the sense of stating what the words mean universally. Rather, it sets out the range of meanings that may apply to those words as they are used in the English language, depending on the varying contexts of those uses.” [Emphasis in original.]).
Section 11.2.11 of the regulations used “manufacture” as a noun; accordingly, we consider the definition of the word as a noun. The eleventh edition of Merriam-Webster‘s Collegiate Dictionary published in 2003 defines “manufacture” as “something made from raw materials7 by hand or by machinery . . . the act or process of producing something.” (Footnote added.) By contrast, “process” means “a series of actions or operations conducting to an end; esp . . . a continuous operation or treatment esp[ecially] in manufacture . . . .” (Footnote added.)8 Merriam-Webster‘s Collegiate Dictionary (11th Ed. 2003). Random House Webster‘s Unabridged Dictionary provides similar definitions. “Manufacture,” is defined as “the making of goods or wares by manual labor or by machinery, [especially] on a large scale“;
The only distinction of consequence between the two definitions of “manufacture” is that Merriam-Webster‘s Collegiate Dictionary includes “raw materials.” The essence of the definitions, however, centers on making something either by hand or by machinery, and, in the case of Merriam-Webster‘s Collegiate Dictionary‘s definition, that “something” is made from raw materials. As applied to the facts of this case, one could interpret “manufacture” to mean that the construction aggregate (the “something” made from bedrock, the raw material) is made by machinery.
Similarly, the definitions of “process” are comparable in that both dictionaries envision a “series of actions” that occur to something for some particular end. One key difference is that Merriam-Webster‘s Collegiate Dictionary points out that the most common meaning of “process,” “a continuous operation or treatment [especially] in manufacture,” is subsumed by the more general meaning. This suggests that “process,” as most commonly meant, can be part of the “manufacture.” As applied to this case, excavating bedrock, crushing it into smaller pieces, and screening the smaller pieces is “a continuous operation . . . in [the] manufacture” of construction aggregate.
From legal treatises, we glean a better understanding of how the term is used in zoning law. From one treatise, “manufacturing” is defined as “involv[ing] the application of labor and skill to materials that exist in the natural state, and giv[ing] to them a new quality or characteristic and adapt[ing] them to new uses,” or as “the production of articles for use from raw or unprepared materials by giving these materials new forms, qualities, properties or combinations whether by hand labor or machine.” (Internal quotation marks omitted.) 5 A. Rathkopf & D. Rathkopf, Law of Zoning and Planning (4th Ed. 2011) § 86.2, p. 86-66. From another, “man-ufacturing” is defined as “[e]stablishments engaged in the mechanical or chemical transformation of materials or substances into new products, including the assembling of component parts, the manufacturing of products and the blending of materials such as lubricating oils, plastics, resins or liquors.” 4 P. Salkin, American Law of Zoning (5th Ed. 2009) § 41:16, p. 41-81 (citing § 195-7 of the Derby Zoning Regulations, as amended to 2006). Applying those definitions to the facts of this case, it appears that after the excavated bedrock (a material in its natural state) is crushed by industrial rock crushing machinery, the resulting product (construction aggregate) is given “a new quality or characteristic and [is] adapt[ed] . . . to new uses” in the construction industry.
The dictionary definitions of “manufacture” and “process,” coupled with the manner in which “manufacturing” is defined by two legal treatises discussing zoning law, lead us to conclude that, as presented by the facts of this case, construction aggregate is manufactured through a series of actions, namely, excavating bedrock (the raw material), crushing the large, unusable rocks with industrial rock crushing machinery, and screening and sorting the smaller pieces of rock. In other words, through a continuous operation, once the excavated bedrock is crushed, screened, and sorted, the resulting construction aggregate has been given a “new quality or characteristic and adapt[ed] . . . to new uses.”
As a final step in our analysis, we turn to relevant case law. See Fillion v. Hannon, supra, 106 Conn. App. 751 (when definition not provided by statute, courts “look to the common understanding expressed in the law and in dictionaries”
Nevertheless, we find Connecticut Water Co. useful for the limited proposition that, in the absence of controlling definitions provided by the zoning regulations of the town of Waterford, we may consult definitions from both Connecticut statutes and other state regulations for guidance on how to interpret “manufacture.” The court in Connecticut Water Co. determined that the “transformation of raw water into finished, potable water at the [plaintiff‘s] treatment plant [was] not a process that constitutes ‘manufacturing’ within the meaning of
The regulatory definition that our Supreme Court relied upon in Connecticut Water Co.,
Furthermore, at the time our Supreme Court decided Connecticut Water Co., there was no statutory definition of “manufacturing.” See Connecticut Water Co. v. Barbato, supra, 206 Conn. 341. Now,
We temper our reliance on the statutory and regulatory definitions of “manufacturing” with the understanding that those definitions were drafted within the confines of tax exemptions. Thus, neither statutory nor regulatory definitions are dispositive. We note, however, that the statutory and regulatory definitions are substantially similar to definitions found in legal treatises on zoning law. Therefore, we find the statutory and regulatory definitions useful in determining whether “manufacture,” as used in the zoning regulations of this case, includes the plaintiffs’ proposed use.
Section
We acknowledge that American Sumatra Tobacco Corp., supra, 127 Conn. 134, a case relied on by the trial court, would seem to point to a different result. There, our Supreme Court concluded that cured tobacco leaves, after having undergone a “complicated, intricate and unique process” in preparation for sale, were nonetheless left in an unmanufactured state. Id., 139. In reaching this result, the court noted that in drying the tobacco leaves, “[n]othing was done to this tobacco from the time it left the field until it was packed except to permit it to cure itself. The leaf which was ultimately packed was the same leaf in size and shape as grew in the field. Nothing had been added and nothing taken away. It is still a leaf of tobacco.” Id., 138. Accordingly, the court, acknowledging the remedial nature of the unemployment compensation statute and “the fact that exceptions to the general policy of the law are to be strictly construed“; id., 141; concluded that the plaintiff‘s employees, when curing the tobacco leaves, were engaged “in ordinary farming operations” and not in “manufacturing or commercial operations” for the purposes of an unemployment compensation statute. Id., 137.
The court in the present matter analogized the plaintiffs’ proposed use of crushing rocks to curing tobacco leaves, i.e., if tobacco is tobacco, then rock is rock, hence no manufacturing. We disagree with this analogy. Unlike American Sumatra Tobacco Corp., in which the leaf that ultimately was picked was the “same leaf in size and shape as [grown] in the field“; id., 138; in this case, the excavated bedrock (raw material) was changed in size and shape to produce construction aggregate, which has a new form, quality, and property that is different from the bedrock that was used to produce it. Moreover, because this case, unlike American Sumatra Tobacco Corp., is a zoning case, we iterate that “doubtful [zoning regulation] language will be construed against rather than in favor of a [restriction] . . . .” (Internal quotation marks omitted.) Fillion v. Hannon, supra, 106 Conn. App. 752; see also Coots v. J. A. Tobin Construction Co., 634 S.W.2d 249, 251-52 (Mo. App. 1982) (explaining that zoning ordinances “are to be strictly construed in favor of the property owner against the zoning authority . . . [and that] courts are to ‘give weight to the interpretation that, while still within the confines of the term, is least restrictive upon the rights of the property owner to use his land as he wishes,‘” and concluding that “rock quarrying and crushing, by application of reasonable and settled definitions of the term ‘manufacturing’ are industrial uses which the zoning order authorizes in [an industrial district]” [citations omitted]). These distinctions, as well as our analysis of the definition of “manufacturing,” persuade us to interpret the term, as presented by the facts of this case, to include the plaintiffs’ proposed use.9
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.