Kobyluck Bros., LLC v. Planning & Zoning Comm'n of Waterford

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KOBYLUCK BROTHERS, LLC, ET AL. v. PLANNING
AND ZONING COMMISSION OF
THE TOWN OF WATERFORD
(AC 37732)
DiPentima, C. J., and Prescott and Agati, Js.
Argued March 8—officially released August 2, 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).
Opinion
DiPENTIMA, C. J. The plaintiffs, Kobyluck Brothers,
LLC (Kobyluck Brothers), and Kobyluck Construction,
Inc. (Kobyluck Construction), appeal from the judg-
ment of the trial court affirming the decision of the
defendant, the Planning and Zoning Commission of the
Town of Waterford (commission), denying the plain-
tiffs’ special permit and site plan application.1 The plain-
tiffs 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 prop-
erty, Kobyluck Brothers also owns 24 Industrial Drive,
which contains a concrete manufacturing plant oper-
ated 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. Rele-
vant 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 prod-
ucts used in the construction industry,’’ i.e., ‘‘crushed
stone, septic gravel, and aggregate . . . .’’3 To accom-
plish 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 perma-
nent 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 deter-
mined that the plaintiffs’ proposed use was ‘‘pro-
cessing’’ 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’ pro-
posed 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 crush-
ing 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 ambigu-
ous for two reasons. First, neither ‘‘manufacture’’ nor
‘‘building materials’’ was defined in the regulations. Sec-
ond, 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 inter-
pretative 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 com-
mon 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 ‘manu-
facturing’ of other building materials under the regula-
tions, 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 com-
mission’s denial of the plaintiffs’ special permit and site
plan approval application. This appeal followed.
On appeal, the plaintiffs contend that the court’s anal-
ysis 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 ‘‘manufac-
turing,’’ and consequently, the court erroneously inter-
preted the regulations. The plaintiffs assert that the
court should have considered the definition of ‘‘manu-
facturing,’’ 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 com-
mission counters that not only was the court’s interpre-
tation 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 unavail-
ing because § 12-81 (72) has no bearing on the regula-
tions and has not superseded local regulations in that
the statute does not prescribe to municipalities what
activities are to be classified as manufacturing. More-
over, 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 interpreta-
tion 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 func-
tion 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 trial court had to
decide whether the [commission] correctly interpreted
the section [of the regulations] and applied it with rea-
sonable discretion to the facts. . . .
‘‘A local board or commission is in the most advanta-
geous position to interpret its own regulations and apply
them to the situations before it. . . . Although the posi-
tion 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 interpre-
tation 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 interpre-
ted in accordance with the principle that a reasonable
and rational result was intended . . . .’’ (Internal quo-
tation marks omitted.) Trumbull Falls, LLC v. Plan-
ning & 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 objec-
tive 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 . . . § 1-
2z directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . In addition . . . § 1-1 (a) provides in
relevant part that words and phrases shall be construed
according to the commonly approved usage of the lan-
guage; and technical words and phrases, and such as
have acquired a peculiar and appropriate meaning in the
law, shall be construed and understood accordingly.’’
(Citation omitted; internal quotation marks omitted.)
Fillion v. Hannon, 106 Conn. App. 745, 751, 943 A.2d
528 (2008). When definitions are not provided in the
zoning regulations, courts ‘‘look to the common under-
standing expressed in the law and in dictionaries.’’
(Internal quotation marks omitted.) Id. Moreover, no
one aspect of our rules of statutory construction is
dispositive. See generally In re William D., 284 Conn.
305, 312, 933 A.2d 1147 (2007) (‘‘there is no one canon
of statutory construction that trumps all others’’).
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
marks omitted.) Farrior v. Zoning Board of Appeals,
70 Conn. App. 86, 90, 796 A.2d 1262 (2002).
Because zoning regulations are ‘‘in derogation of
common law property rights . . . the regulation[s]
cannot be construed beyond the fair import of its lan-
guage 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 construc-
tion and is not to be extended, modified, repealed or
enlarged in its scope by the mechanics of [statutory]
construction’’ [internal quotation marks omitted]). Crit-
ical to our resolution of this case, ‘‘doubtful language
will be construed against rather than in favor of a
[restriction] . . . .’’ (Internal quotation marks omit-
ted.) 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 mat-
ter, we agree with the court that § 11.2.11 of the regula-
tions is ambiguous. The regulations did not define
‘‘manufacture,’’ ‘‘processing,’’ and ‘‘building materials.’’
Absent these definitions and because both parties pre-
sent a reasonable interpretation of § 11.2.11, a reviewing
court could not determine conclusively from the lan-
guage alone whether the plaintiffs’ proposed use, i.e.,
crushing excavated bedrock to produce construction
aggregate, was permissible in an I-G district. See Hart-
ford/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 regula-
tions 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 mean-
ings’’ [internal quotation marks omitted]). Moreover,
we acknowledge that it is significant that ‘‘processing’’
was omitted from § 11.2.11. See Viera v. Cohen, supra,
283 Conn. 431 (‘‘[t]ypically, the omission of a word
otherwise used in the statutes suggests that the legisla-
ture intended a different meaning for the alternate
term’’). We depart, however, from the court’s interpreta-
tion of the regulations in its analysis of §§ 10.2.4.1 and
25.1.4 (a) of the regulations.
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 acces-
sory 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 com-
ponent parts,’’ the court reasoned that ‘‘assembly’’ was
not necessarily ‘‘manufacturing’’; thus, the court con-
cluded 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 defini-
tion 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 Diction-
ary (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 com-
ponent 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 rele-
vant 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 regula-
tions 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 their express terms.’’ (Internal quo-
tation 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).
Although it is clear that the regulations did not treat
‘‘manufacture’’ and ‘‘processing’’ synonymously, and
the regulations classified rock crushing as a form of
processing, it is less clear that the regulations were
intended to exclude this activity in the ‘‘manufacture
. . . of other building materials,’’ which could include
rock crushing. Because of the inherent ambiguity cre-
ated by the regulations, we turn to extratextual
sources.6
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 compen-
dium of the various meanings and senses in which
words have been and are used in our language. A dic-
tionary 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; esp8 . . . a continu-
ous operation or treatment esp[ecially] in manufacture
. . . .’’ (Footnote added.) 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’’; Random House Webster’s Unabridged
Dictionary (2d Ed. 2001); and ‘‘process’’ is defined as
‘‘a systematic series of actions directed to some end
. . . .’’ Id.
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 defi-
nition, 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 Dic-
tionary points out that the most common meaning of
‘‘process,’’ ‘‘a continuous operation or treatment [espe-
cially] in manufacture,’’ is subsumed by the more gen-
eral 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 applica-
tion 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 unpre-
pared 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 Plan-
ning (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 assem-
bling of component parts, the manufacturing of prod-
ucts 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 (con-
struction aggregate) is given ‘‘a new quality or charac-
teristic and [is] adapt[ed] . . . to new uses’’ in the
construction industry.
The dictionary definitions of ‘‘manufacture’’ and ‘‘pro-
cess,’’ coupled with the manner in which ‘‘manufactur-
ing’’ 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’’ [internal quotation marks omitted]). Preliminarily,
we highlight a critical distinction between two statutory
construction principles. As mentioned previously,
‘‘doubtful [zoning regulation] language will be con-
strued against rather than in favor of a [restriction]
. . . .’’ (Emphasis added; internal quotation marks
omitted.) Id., 752. This principle is significant here
because most of the cases that we have found that
analyze the term ‘‘manufacture’’ are not in zoning cases.
Indeed, the three cases that the court relied on were
not in a zoning context; American Sumatra Tobacco
Corp. v. Tone, 127 Conn. 132, 133–34, 15 A.2d 80 (1940),
was an unemployment compensation case; both Con-
necticut Water Co. v. Barbato, 206 Conn. 337, 338, 537
A.2d 490 (1988), and Solite Corp. v. King George
County, 220 Va. 661, 662, 261 S.E.2d 535 (1980), were
tax assessment appeals. In tax assessment appeals, ‘‘[i]t
is a settled rule of law that statutes which exempt from
taxation are to be strictly construed against the party
claiming an exemption. . . . [N]o claimant is entitled
to an exemption unless [the claimant] satisfies all the
statutory requirements.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Connecticut
Water Co. v. Barbato, supra, 343; see also Solite Corp.
v. King George County, supra, 662–63 (‘‘Statutes grant-
ing tax exemptions are construed strictly against the
taxpayer. When a tax statute is susceptible of two con-
structions, one granting an exemption and the other
not granting it, courts adopt the construction which
denies the exemption.’’ [Internal quotation marks omit-
ted.]). As is clear, in a zoning case, construing ambigu-
ous zoning regulations favors the landowner and not
the government, but in a tax assessment appeal, the
opposite is true; in construing ambiguous tax exemp-
tion statutory language, a reviewing court will favor the
government and not the taxpayer. This difference, in
our judgment, militates in favor of construing the ambig-
uous language in § 11.2.11 against the restriction. Thus,
analogizing cases interpreting ‘‘manufacturing’’ in a tax
context to this zoning case may have limited value.
Nevertheless, we find Connecticut Water Co. useful
for the limited proposition that, in the absence of con-
trolling definitions provided by the zoning regulations
of the town of Waterford, we may consult definitions
from both Connecticut statutes and other state regula-
tions 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 General Statutes § 12-412 (34) [a tax exemp-
tion statute].’’ Connecticut Water Co. v. Barbato, supra,
206 Conn. 344. In reaching this result, the court relied,
in part, on the Department of Revenue Services’ defini-
tion of ‘‘manufacturing.’’ Id., 341. Thus, like our
Supreme Court, we examine a regulatory definition.
The regulatory definition that our Supreme Court
relied upon in Connecticut Water Co., § 12-426-11b of
the Regulations of Connecticut State Agencies, was
repealed effective April 23, 1991. Now, § 12-412 (34)-1 of
the Regulations of Connecticut State Agencies defines
‘‘manufacturing’’ as follows: ‘‘As used in this regulation,
the term ‘manufacturing’ means an operation or an inte-
grated series of operations that substantially transform,
by physical, chemical or other means, the form, compo-
sition or character of raw or finished materials into a
product possessing a new name, nature and use which
is intended for sale, whether by the manufacturer or
by another on whose behalf the manufacturer has
undertaken the manufacture. The transformation can-
not be a mere natural process, whether or not expedited
by the use of machinery. . . .’’ To aid the Commissioner
of Revenue Services in distinguishing whether ‘‘a pro-
cess constitutes manufacturing,’’ § 12-412 (34)-1 pro-
vides guiding principles. Relevant to this appeal, ‘‘[i]f
the process involves only physical change to property,
the greater the degree of physical change, the more
likely the process is to be manufacturing. For example,
the process of cleaning, cutting and flash-freezing vege-
tables does not involve a sufficient degree of physical
change to be considered manufacturing, while the pro-
cess of quarrying and cutting brownstone into blocks
of a size usable by building contractors does involve
a sufficient degree of physical change to be manufac-
turing.’’ (Emphasis added.) Id., § 12-412 (34)-1 (c) (4).
Furthermore, at the time our Supreme Court decided
Connecticut Water Co., there was no statutory defini-
tion of ‘‘manufacturing.’’ See Connecticut Water Co. v.
Barbato, supra, 206 Conn. 341. Now, § 12-81 defines
the term as follows: ‘‘The following-described property
shall be exempt from taxation . . . (72) . . . (A) . . .
(iii) ‘Manufacturing’ means the activity of converting
or conditioning tangible personal property by changing
the form, composition, quality or character of the prop-
erty for ultimate sale at retail or use in the manufactur-
ing of a product to be ultimately sold at retail. Changing
the quality of property shall include any substantial
overhaul of the property that results in a significantly
greater service life than such property would have had
in the absence of such overhaul or with significantly
greater functionality within the original service life of
the property, beyond merely restoring the original func-
tionality for the balance of the original service life.’’ The
same statute defines ‘‘processing’’ to mean the ‘‘physical
application of the materials and labor in a manufactur-
ing process necessary to modify or change the charac-
teristics of tangible personal property.’’ General
Statutes § 12-81 (72) (A) (v).
We temper our reliance on the statutory and regula-
tory definitions of ‘‘manufacturing’’ with the under-
standing that those definitions were drafted within the
confines of tax exemptions. Thus, neither statutory nor
regulatory definitions are dispositive. We note, how-
ever, that the statutory and regulatory definitions are
substantially similar to definitions found in legal trea-
tises 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 12-412 (34)-1 (c) (4) of the Regulations of
Connecticut State Agencies is particularly enlightening
because it so nearly describes the plaintiffs’ proposed
use. Despite our rule of law that ‘‘statutes which exempt
from taxation are to be strictly construed against the
party claiming an exemption’’; (internal quotation
marks omitted) Connecticut Water Co. v. Barbato,
supra, 206 Conn. 343; if this were an appeal in which
the plaintiffs were seeking a tax exemption, we would
be hard-pressed to construe General Statutes § 12-81
(72) or § 12-412 (34)-1 (c) (4) of the Regulations of
Connecticut State Agencies against the plaintiffs. Thus,
in light of the principle of statutory construction that
‘‘doubtful [zoning regulation] language will be con-
strued against rather than in favor of a [restriction]’’;
(internal quotation marks omitted) Fillion v. Hannon,
supra, 106 Conn. App. 752; and that the statutory and
regulation definitions closely resemble the definitions
in legal treatises that focus on zoning law, we are per-
suaded that excavating bedrock, crushing it with indus-
trial rock crushing machinery, and screening and
sorting the resulting product is ‘‘an operation or an
integrated series of operations that substantially trans-
form, by physical . . . means, the form, composition
or character of raw . . . materials into a product pos-
sessing a new name, nature and use . . . .’’ Regs.,
Conn. State Agencies § 12-412 (34)-1. In short, the plain-
tiffs are manufacturing construction aggregate from the
excavated bedrock.
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 noth-
ing 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 plain-
tiffs’ 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 Ameri-
can Sumatra Tobacco Corp., is a zoning case, we iterate
that ‘‘doubtful [zoning regulation] language will be con-
strued 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 defi-
nitions of the term ‘manufacturing’ are industrial uses
which the zoning order authorizes in [an industrial dis-
trict]’’ [citations omitted]). These distinctions, as well
as our analysis of the definition of ‘‘manufacture,’’ per-
suade us to interpret the term, as presented by the facts
of this case, to include the plaintiffs’ proposed use.9
‘‘[E]very owner of property located in a town which
has adopted zoning is entitled to be able to ascertain,
with reasonable certainty, what uses he may legally
make of any portion of his property.’’ Farrior v. Zoning
Board of Appeals, supra, 70 Conn. App. 95. In this case,
the regulations created ambiguity by not defining ‘‘man-
ufacture,’’ ‘‘processing,’’ or ‘‘building materials.’’
Because we are ‘‘[c]ondemned to the use of words,
we can never expect mathematical certainty from our
language.’’ Grayned v. Rockford, 408 U.S. 104, 110, 92 S.
Ct. 2294, 33 L. Ed. 2d 222 (1972). Thus, absent expressly
defined terms in the zoning regulations, on the basis
of our holistic evaluation of the text of the regulations,
the definitions from both dictionaries and legal treatises
that focus on the law of zoning, and the relevant case
law, we conclude that the natural and usual meaning
of the term ‘‘manufacture,’’ as commonly understood,
must be construed to include the plaintiffs’ proposed
use, i.e., manufacturing construction aggregate, that is,
through a series of operations, the excavated bedrock
(raw material) is crushed and sorted using industrial
machinery and substantially transformed into a product
possessing a new name (construction aggregate),
nature, and use in the construction industry.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The plaintiffs’ appeal before this court was one of four consolidated
zoning appeals that it brought to the Superior Court following the denial
of two other applications in connection with the plaintiffs’ special permit
and site plan application, as well as an appeal arising from the commission’s
amendments to the Waterford Zoning Regulations that were made effective
shortly after the plaintiffs’ applications were filed. The parties agreed that
the threshold issue in all four appeals to the trial court was ‘‘whether . . .
the plaintiffs’ applications were for a permitted use in an [i]ndustrial I-G
[district] at the time such applications were filed.’’ Accordingly, the parties
agreed to bifurcate the various issues on appeal to have the court first
decide the threshold issue. The other three zoning appeals remain pending
in the Superior Court.
2
The plaintiffs also claim that the court’s restrictive interpretation
deprived them of due process of law and significant property rights. Because
we conclude that the court incorrectly construed the term ‘‘manufacture,’’
we need not address this claim.
3
Neither Connecticut statutes nor case law defines ‘‘aggregate.’’ Florida,
however, defines ‘‘construction aggregate materials’’ as ‘‘crushed stone, lime-
stone, dolomite, limerock, shell rock, cemented coquina, sand for use as a
component of mortars, concrete, bituminous mixtures, or underdrain filters,
and other mined resources providing the basic material for concrete, asphalt,
and road base.’’ Fla. Stat. § 337.0261 (Rev. to 2016); see, e.g., France Stone
Co. v. Monroe, 802 F. Supp. 90, 92 n.1 (E.D. Mich. 1992) (‘‘[d]olomite stone
is a natural resource which, when quarried, crushed and processed, is highly
useful as a construction aggregate, including usefulness as an aggregate in
highway construction’’); Gifford-Hill & Co. v. Federal Trade Commission,
389 F. Supp. 167, 170 n.6 (D.D.C. 1974) (‘‘’[c]onstruction aggregates’ are
sand, and gravel or crushed stone’’), aff’d, 523 F.2d 730 (D.C. Cir. 1975).
4
We note that on December 9, 2011, after the plaintiffs filed their applica-
tion in this matter, the commission amended its regulations effective Decem-
ber 22, 2011. Specifically, it revised § 11.2.11 to read: ‘‘Manufacture of asphalt,
concrete, or products manufactured from concrete.’’ The relevant reasons
the commission provided for this amendment were to ‘‘[c]larif[y] [the com-
mission’s] understanding and intent of the regulation regarding other build-
ing materials being derived from concrete products and was not intended
to be broadly interpreted to include any material used in any type of construc-
tion,’’ and to make ‘‘[t]he changes . . . more specific and [provide] land
owners sufficient information to understand what is allowed.’’ Relevant to
this matter, the parties agreed that the operative regulations that were to
be interpreted by the trial court were those that existed prior to the 2011
amendments. Accordingly, we also interpret those regulations.
5
For example, the court highlighted §§ 11.1.5 and 11.2.22 of the regulations
where ‘‘manufacture’’ was used in conjunction with either ‘‘processing’’ or
‘‘processed.’’ Section 11.1.5 of the regulations stated in relevant part: ‘‘The
manufacture, processing, or packaging of food, candy, pharmaceuticals
. . . .’’ Section 11.2.22 of the regulations stated in relevant part: ‘‘The retail
sale of industrial services, manufactured and/or processed items shall be
permitted . . . .’’
6
The fact that the commission ‘‘clarif[ied]’’ § 11.2.11 shortly after the
plaintiffs filed their special permit and site plan application; see footnote 4
of this opinion; supports our conclusion that the § 11.2.11 was ambiguous
and must be construed against the commission. See Fillion v. Hannon,
supra, 106 Conn. App. 752.
7
The term ‘‘raw material’’ is defined as ‘‘crude or processed material that
can be converted by manufacture, processing, or combination into a new
and useful product . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th
Ed. 2003).
8
‘‘The sense divider esp (for especially) is used to introduce the most
common meaning subsumed in the more general preceding definition
. . . .’’ (Emphasis in original.) Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2003) p. 20a.
9
The court in this case also relied on a Virginia Supreme Court case
holding that ‘‘the process of crushing and screening of rock into various
sizes does not constitute manufacturing.’’ Solite Corp. v. King George
County, supra, 220 Va. 664. We note that Solite Corp. was decided in a tax
assessment appeal in which the Virginia Supreme Court ‘‘construed [the tax
exemption statute] strictly against the taxpayer.’’ (Internal quotation marks
omitted.) Id., 662. Thus, Solite Corp. has limited applicability to this case.
We acknowledge that a number of sibling jurisdictions have concluded,
in a tax context, that crushing rock is not manufacturing. See id., 664, and
cases cited therein; see also Tilcon-Warren Quarries, Inc. v. Commissioner
of Revenue, 392 Mass. 670, 672–73, 467 N.E.2d 472 (1984) (concluding, in
tax exemption case, that ‘‘extracting pieces of rock from the ground and
crushing them into usable sizes does not compel the conclusion that the
process fits within the natural and ordinary meaning of ‘manufacturing’ ’’);
River Products Co. v. Board of Review of Washington County, 332 N.W.2d
116, 119 (Iowa App. 1982) (holding that ‘‘the quarrying of rock does not
constitute manufacturing’’ in tax exemption case); but see Dolese Bros. Co.
v. State ex rel. Oklahoma Tax Commission, 64 P.3d 1093, 1102 (Okla. 2003)
(iterating, in tax exemption case, that in Oklahoma ‘‘[t]he manufacture of
crushed stone has been recognized as manufacturing since . . . Tulsa
Machinery [Co. v. Oklahoma Tax Commission, 208 Okla. 138, 253 P.2d
1067 (1953)]’’ [emphasis omitted]). We note, however, that Schumacher
Stone Co. v. Tax Commission, 134 Ohio St. 529, 18 N.E.2d 405 (1938), which
was cited in Solite Corp., was overruled.
In Stoneco, Inc. v. Limbach, 53 Ohio St. 3d 170, 173, 560 N.E.2d 578 (1990)
(per curiam), the Ohio Supreme Court overruled Schumacher Stone Co. v.
Tax Commission, supra, 134 Ohio St. 538, which had held that ‘‘crushing
and screening limestone into various merchantable sizes’’ was not manufac-
turing. In reaching its conclusion, the court in Stoneco, Inc., explained that
Schumacher Stone Co. had ‘‘failed to recognize the new form given to the
limestone by the crushing equipment and the more valuable commodity
consequently created.’’ Stoneco, Inc. v. Limbach, supra, 173. Thus, the Ohio
Supreme Court concluded that the plaintiff in Stoneco, Inc., when taking
‘‘raw material, limestone, and convert[ing] it into a new form with new
qualities and into a more valuable commodity, limestone aggregate . . .
[the plaintiff was] convert[ing] a raw material that [could not] be used for
construction and transform[ing] it into a product that can. Thus, [the plaintiff
was using] the crushing, sorting, and mixing equipment in manufacturing.’’
Id. The decision in Stoneco, Inc., however, was decided in a tax context.