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Kobyluck Bros., LLC. v. Planning and Zoning Commission of Town of Waterford

Court of Appeals of Connecticut

August 2, 2016

KOBYLUCK BROTHERS, LLC, ET AL.
v.
PLANNING AND ZONING COMMISSION OF THE TOWN OF WATERFORD

          Argued March 8, 2016

         Appeal from Superior Court, judicial district of New London, Handy, J.

          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).

          DiPentima, C. J., and Prescott and Agati, Js.

          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.[2] 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 district (I-G district), the proposed development was consistent with the town’s land use plan and permitted under § 11.2 of the regulations. Relevant to this appeal, § 11.2.11 of the regulations provided, in relevant part, that the following was a permitted use in an I-G district: ‘‘Manufacture of asphalt, cement, cinder block, or other building materials . . . .’’

         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, concluding 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 manufacture of building materials. The [commission] counters that rock crushing does not qualify as ‘manufacturing, ’ but rather is classified as ‘processing’ rock through a rock crushing facility, and such processing of rock is not a permitted use under § 11.2.11.’’ Accordingly, the court proceeded to construe the term ‘‘manufacturing’’ as used in § 11.2.11 of the regulations.

         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 General Statutes § 12-81 (72) (A) (iii), a tax exemption statute, and compared it with the definition of ‘‘processing, ’’ also provided in the same statute. General Statutes § 12-81 (72) (A) (v). The commission counters that not only was the court’s interpretation of the regulations faithful to the dictates of General Statutes §§ 1-1 (a) and 1-2z, but also that the plaintiffs’ reliance on a tax exemption statute is unavailing because § 12-81 (72) has no bearing on the regulations and has not superseded local regulations in that the statute does not prescribe to municipalities what activities are to be classified as manufacturing. Moreover, the commission argues that the court’s use of extratextual sources was both reasonable and accurate. This is a close question, well presented in a thoughtful memorandum of decision by the trial court, but we conclude that the judgment must be reversed.

         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 with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The ...


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