Opinion
No. CV 06-4005354
November 6, 2008
MEMORANDUM OF DECISION
The plaintiff, Mary Ann Chinatti, is the zoning enforcement officer for the town of Salem. In this action the plaintiff seeks to enforce the zoning laws and regulations against the defendants, Kobyluck Sand and Gravel, Inc., Daniel W. Kobyluck, and Kobyluck Brothers, LLC. More specifically the plaintiff seeks to enjoin certain activities which are claimed to be contrary to the regulations and permits under which the defendants claim to be operating, enforce a cease and desist order, and the imposition of fines and penalties, including attorneys fees, authorized by General Statutes § 8-12.
The defendant, Kobyluck Brothers, LLC, is the owner of the property known as 209 Rattlesnake Ledge Road in Salem. The defendants admit that the defendant, Kobyluck Brothers, LLC, has owned the premises at 209 Rattlesnake Ledge Road since at least December 3, 2005. Amended Complaint, June 16, 2006, First Count, ¶ 4; Answer and Special Defenses of the Defendants Kobyluck Sand And Gravel, Inc., Daniel W. Kobyluck, and Kobyluck Brothers, LLC., February 15, 2007, First Count, ¶ 4. [106, 110.] The defendant, Kobyluck Sand and Gravel, Inc., operates a rock quarry and a rock crushing and materials processing operation at 209 Rattlesnake Ledge Road. The defendants admit that since at least December 3, 2005, the defendant, Kobyluck Sand and Gravel, Inc., has been in possession and control of the premises. Matthew Kobyluck is assistant vice president of Kobyluck Sand and Gravel, Inc.; he manages the day-to-day operations of the business conducted at the site. Matthew Kobyluck is also a managing member of Kobyluck Brothers, LLC.
I
The property, 209 Rattlesnake Ledge Road, is in an RU-A zone. The area of the site is in the order of ten acres. The business and operations being conducted at the site are not "permitted uses" in the RU-A zone. Section 4 — Rural Zone A, § 4.1. Zoning Regulations, pp. 31-32. Exhibit 1.
Uses in addition to the "permitted uses" listed in § 4.1 "may be permitted only as a Special Exception within Rural Zone A, if approved by the Planning and Zoning Commission in accordance with the procedures and criteria in Section 11 of these Regulations." Section 4.2 Special Exceptions. Zoning Regulations, p. 32. Exhibit 1.
Section 4.2.8 provides that "excavation" is a use permitted as a Special Exception. It reads: "Excavations in accordance with the provisions of Section 14 of these Regulations." Zoning Regulations, § 4.2.8. Exhibit 1, p. 33. "Excavation" is defined:
The mining, digging, or moving of more than 100 cubic yards of earth materials, such as loam, sand gravel, clay, quarry stone, crushed stone, peat, or muck for relocation off the premises, whether or not for purposes of sale, except when such activity results from a landscaping or agricultural operation or is surplus material resulting from a bona fide construction project for which a site plan or subdivision plan has been approved. Zoning Regulations, § 4.1
Definition. Exhibit 1, p. 109.
The Regulations also state:
Excavations are permitted as Special Exceptions in RU-A, RU-B, and I Districts and, therefore, must comply with the provisions of Section 11 of these Regulations.
Section 14.3 Procedures. Zoning Regulations, p. 109. Exhibit 1.
A quarry was operated on the premises before the Kobyluck acquisition. A permit and site plan for the same had been approved on February 28, 1990. Exhibit 5, Note at bottom center of 1st sheet.
An application was filed for approval of a modification of the site plan and permit originally approved on February 28, 1990. As it relates to what is now the Kobyluck property, the application was filed by or behalf of Midwood Quarry and Construction, Inc. Exhibit 5, 1st sheet left side under "Zoning Table."
Midwood Quarry and Construction, Inc., is Kobyluck's predecessor.
Exhibit 5 contains the site plan approval application and the approved site plan.
The main thrust of the first count of the amended complaint has to do with the defendant having more than one rock crusher on the site in violation of the regulations, the site plan, the special permit, and a cease and desist order served on or about December 3, 2005.
The regulation, key to the plaintiff's and the defendants' claim, provides:
14.5.6 Except in an Industrial Zone, no stone crusher or other machinery not required for actual removal of the material shall be used unless approved by the Commission. The washing, screening, grading, or processing of earth, sand, gravel, stone or other natural material may be permitted in all zoning districts.
Zoning Regulations, § 14.5.6. Exhibit 1, p. 110.
The application for approval of the site plan within Exhibit 5 has three (3) entries of note here. They are:
1, 2 Proposed Equipment (Crusher, Screener Stone Cutter) Processing Area
Exhibit 5, 2d sheet (Map # 127) and 5th sheet (Map #129); entry within box located ~9" from left margin and ~8.5" from top margin.
3
"Crusher location, equipment storage, stockpile area and parking may vary based upon ongoing quarry operations." Exhibit 5, left side of last sheet (Map #132); under section entitled "General Notes."
The site plan modification was approved by the planning and zoning commission on February 19, 2002. It too is contained in Exhibit 5. Exhibit 5, p. 1 (Cover Sheet). It contains a list of the conditions of approval. Exhibit 5, last sheet (Map #132). See copy of letter on right side of last sheet to Bud Smallwood, Better Stones from Heidi Samokar, Planner, dated February 20, 2002. A condition of approval pertinent here is: "2 A stone crusher may be used on the site." Exhibit 5, last sheet, right side.
The planning and zoning commission's minutes show the site plan dated January 31, 2002 was approved with the following modification: "1) Pursuant to Section 14.5.6, a stone crusher may be used on the site as it will be necessary to clear the spoils." Minutes, Salem Planning and Zoning Commission, February 19, 2002, p. 3. Exhibit 4.
The foregoing establishes that the application contemplated and sought only one crusher on the site. The application and the Commission's approval thereof conclusively establish that the site plan approval specifically allowed only one crusher on the site.
During 2003, 2004, and 2005, the plaintiff inspected the defendants' premises at least twice a year. She consistently observed more than one crusher on the property.
On December 3, 2005, the plaintiff served a cease and desist order on the defendant, Kobyluck Sand and Gravel, Inc. It was addressed to Kobyluck Sand and Gravel, Inc. Exhibit 13. Transcript of Proceedings, September 17, 2007, p. 8-10. The key part of the cease and desist ordered Kobyluck Sand and Gravel, Inc.
to IMMEDIATELY CEASE AND DESIST AND STOP ALL WORK associated with the gravel operation at the above referenced property as you are willfully violating the terms of the approval of your 2002 site plan modification associated with your Special Exception, which limits equipment to one (1) each rock crusher, screener, and stone cutter, by keeping equipment in excess of that which was approved.
Immediate Cease and Desist/Stop work Order, December 3, 2005. Exhibit 13.
The cease and desist order also stated:
Should you believe this ORDER has been issued in error, you have the right to appeal said ORDER to the Zoning Board of Appeals pursuant to CGS 8-7 and the Town of Salem Zoning Regulations § 16.2.
Cease Desist/Stop Work Order, 12/3/2005, Exhibit 13. The cease and desist order was appealed to the zoning board of appeals. The board denied the appeal, upholding the issuance of the cease and desist order.
Subsequently, two of the defendants in this action, Kobyluck Brothers, LLC, and Kobyluck Sand and Gravel, Inc., appealed the action of the zoning board of appeals to this court. Named defendants in that action, in addition to the zoning board of appeals, are the planning and zoning commission and the plaintiff herein, Mary Ann Chinatti, the zoning enforcement officer. Kobyluck Brothers, LLC v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. CV 06 4104122.
In the case at bar, the defendants' own evidence conclusively establishes that more than one crusher has been on the site more than half of the time. Rather than contesting the factual basis for the plaintiff's claim regarding the number of crushers on site, defendants have centered their defense on the notion that § 14.5.6 "limits the amount of machinery the Commission can regulate." Trial Brief of the Defendants, December 31, 2007, p. 4. By some mental legerdemain, the defendants maintain, "As multiple crushers were allowed by the Regulations, there was no violation of the regulation upon which to issue the Cease and Desist Order." Id.
The court rejects this argument out of hand. The court does not, and need not, engage in an analytical discussion thereof. That issue has previously been conclusively decided against the defendants. It is binding on them.
As stated above, the defendants, Kobyluck Brothers, LLC, and Kobyluck Sand and Gravel, Inc., appealed the action of the zoning board of appeals to this court. The same argument was the main thrust of that appeal.
In that appeal, the court discussed the Kobyluck claims regarding the meaning and intent of § 14.5.6 of the regulations.
The cease and desist order issued by the ZEO stated the violation as: "willfully violating the terms of your 2002 site plan modification associated with your Special Exception, which limits equipment to One (1) each rock crusher, screener and stone cutter, by keeping equipment in excess of that which was approved."
Section 14.5.6 of the Regulations states, in part: "Except in an Industrial Zone, no stone crusher or other machinery not required for actual removal of the material shall be used unless approved by the Commission."
The plaintiff argues that if the double negative in Section 14.5.6 is eliminated, the regulation states "stone crushers or machinery required for actual removal of the material shall be used." Therefore, if more than one stone crusher is required for removal of material, as in the plaintiffs' rock quarry, the use of such multiple stone crushers does not require Commission approval.
The plaintiffs' reading of Section 14.5.6 converts a regulation intended to limit use of rock equipment to a regulation permitting unlimited use of such equipment. "If possible, a statute must be so construed as to make it effect the purposes for which it was intended." Kelly v. Dewey, 111 Conn. 286, 291-92 (1930). Further, regulations "must be interpreted in accordance with the principle that a reasonable and rational result was intended." Trumbull Falls v. Zoning Commission, 97 Conn.App. 17, 21 (2000). Ordinarily a court affords deference to the construction of a regulation "by the administrative agency empowered by law to carry out the regulation purposes" and "its determinations are to be accorded considerable weight." Id., 22.
In reaching its decision to uphold the cease and desist order, the Board determined that Section 14.5.6 permitted the Commission to limit the type and number of equipment operated at the plaintiffs' rock quarry. This interpretation is consistent with the definition of a special exception set forth in Regulations Section 2.1, which provides, in part.
(1) Special Exception — a Special Exception is a use that would not be appropriate generally or without restriction throughout a zoning district but which, if controlled as to number, area, location or relation to the neighborhood, could promote the public health, safety, welfare, morals, order, comfort, convenience, appearance or prosperity.
Excavations are permitted in Rural Zone-A zone by special exception under Regulations Section 14.3 and, because the excavations are only allowed by special exception, must follow the detailed provisions of Regulations Section 14 — Excavations and Regulations Section 11 — Special Exceptions.
To argue, as the plaintiffs do, that they are not limited in any way as to type and number of excavating equipment they may use in their rock quarry is completely contrary to the intent of the Regulations.
Accordingly, the court finds that the use of more than one rock crusher in the plaintiffs' quarry is in violation of the Regulations and that the plaintiffs have failed to sustain their burden of proof that the Board acted illegally, arbitrarily and in abuse of its discretion. Judgment may enter dismissing the plaintiffs' appeal.
Kobyluck Brothers, LLC v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. CV 06 4104122 (Hendel, J.T.R., May 13, 2008).
The court file in Kobyluck Brothers, LLC v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 06 4104122 (the appeal from the zoning board of appeals upholding the cease and desist order), shows that the plaintiffs therein, Kobyluck Brothers, LLC, and Kobyluck Sand and Gravel, Inc., filed a Petition For Certification By The Appellate Court on August 11, 2008. [119.]
Two questions were presented for certification. Only one is relevant here.
2. Whether the Superior (Sic) erred in dismissing the appeal in finding that the board did not act arbitrarily, illegally or unreasonably by improperly interpreting Section 14.5.6 of the Zoning regulations by:
A. Finding that the plaintiffs are in fact limited to the number and type of excavating equipment that they use in their quarry.
Petition For Certification By The Appellate Court, August 11, 2008, p. 2. [119.]
The Kobylucks' Petition for Certification was denied on October 16, 2008.
The plaintiff in this action, Mary Ann Chinatti, was a defendant in Kobyluck Brothers, LLC v. Zoning Board of Appeals, supra, Superior Court, Docket No. 06 4104422. The plaintiffs in that appeal action, Kobyluck Brothers, LLC and Kobyluck Sand and Gravel, Inc., are the defendants in this action.
As to the plaintiff here, Mary Ann Chinatti, the zoning enforcement officer, and the defendants here, Kobyluck Brothers, LLC, and Kobyluck Sand and Gravel, Inc., the decision in Kobyluck Brothers, LLC. v. Zoning Board of Appeals, supra, Superior Court, Docket No. 06 410422, has preclusion effect in this action.
There is another reason the Zoning Regulations restrict the use of crushers.
The minutes of the February 19, 2002 meeting of the planning and zoning commission state the commission's specific and only reason for permitting only one crusher on the site.
Pursuant to Section 14.5.6, a stone crusher may be used on the site as it will be necessary to clear the spoils.
The commission allowed one crusher because it was "necessary to clear the spoils."
"Excavation" is defined in the zoning regulations. It is "[t]he mining, digging or moving of more than 100 cubic yards of earth materials, such as loam, sand, gravel, clay, crushed stone, peat, or muck for relocation off the premises . . ." § 14.1.
"Spoils" has a particular meaning in the context of excavations, quarries, mines, etc. "Spoils" in such a context means the refuse removed from the excavation. "Spoils" means "[r]efuse material removed from an excavation." The American Heritage Dictionary of The English Language, Fourth Edition. "Spoils" means "waste material brought up during the course of excavation or a dredging or mining operation." Compact Oxford English Dictionary. "Spoils" means "[t]he debris or waste material from a mine." U.S. Bureau of Mines Dictionary of Mining, Mineral and Related Terms, 1996.
"Spoils" does not include "loam, sand, gravel, clay, crushed stone, peat, or muck." "Spoils" does not encompass useful product taken from the excavation for relocation off the premises.
There is no evidence that "spoils" were or are being cleared from the site. There is no evidence that a crusher was or is required for actual removal of the "spoils" for relocation off the premises. Zoning Regulations, §§ 14.5.6 and 14.1. The evidence in this case shows that only stone crushed, to varying sizes, was being removed from the premises.
In her brief, the plaintiff attempts some explanation for the use of the term, "spoils" in the commission's February 19, 2002 approval of the use of a rock crusher. The plaintiff claims a prior operator, unlike the Kobyluck rock crushing processing operation, had quarried stone for stone blocks under a special permit. The prior operator from time to time requested permission from the Commission for permission "to operate a stone crusher for limited periods of time, usually 3 months. [Plaintiff's Ex 2.]" "The reason for the request for the rock crusher was so that spoil material created when blocks of stone were cut from the rock face could be cleared from the site. [Plaintiff's Ex 4.] Processing of stone was not the intended primary use of the quarry, only the cutting and removal of large blocks of stone. The use of a crusher to process the stone of [Sic.] site was only done sporadically. [Transcript of 7/13/07 trial at p. 128, line 16-7.]" Trial Brief of the Plaintiff, December 10, 2007, pp. 3-4. [125.]
Plaintiff's brief cites Exhibits 2 and 4 as evidence of the statements quoted and or/paraphrased above. Neither exhibit supports the statements.
Similarly, defendants' brief states: "Processing of rocks has taken place on the premises since at least June 28, 1994 when the use of rock crushing machinery was approved by the Commission. [Plaintiff's Ex 2, PZ minutes 06/28/94.]" Trial Brief of the Defendants, December 31, 2007, p. 1.
Exhibit 2 is a "Certificate of Approval for a Special Exception" dated "4-27-90" certifying that a Special Exception was approved on 2/27/90 for property owned by Liberty Hill Associates "to be used for the following purpose: Quarry operation." The court is unable to divine in it [Exhibit 2] evidence to support the defendants' statement regarding the approval of rock crushing machinery. And, the "P Z minutes 06/28/94" cited by the defendants are not in evidence.
There may well be documents that support the statements made by the plaintiff and the defendants but they are not in evidence and the court cannot find any facts based on same.
The one crusher was permitted so that "spoils" could be removed from the site. The commission did not approve the one crusher because it was "required for actual removal of material [e.g., gravel, quarry stone, crushed stone]" "for relocation off the premises." §§ 14.5.6 and 14.1.
As is developed below, § 14.5.6 does not authorize stone crushers or stone crushing in the Rural A Zone.
The Kobylucks have described their operation to this court as follows:
The Defendant, Kobyluck Sand Gravel, Inc., currently operates an (Sic.) rock crushing operation at 209 Rattlesnake Ledge Road in Salem, Connecticut.
Memorandum of Law in Support of Defendants' Objection to Plaintiff's Motion to Cite in Defendants, April 17, 2006, p. 1. [105.]
This statement is, at the least, an evidentiary admission.
Matthew Kobyluck, who runs the daily operations at the site, testified: "We run a material processing operation at the site." Transcript of Court Proceedings, November 9, 2007, p. 37. That "material processing operation" uses rock crushers.
During trial, § 14.5.6, was often the center of attention. Section 14.5.6 states:
Except in an Industrial Zone, no stone crusher or other machinery not required for actual removal of the material shall be used unless approved by the Commission. The washing, screening, grading, or processing of earth, sand, gravel, stone, or other natural material may be permitted in all zoning districts.
In discussing the applicability of § 14.5.6 and what is permitted under it, counsel for Kobyluck, referring to the Kobyluck operation, stated to this court: "Because it is a use that is inherently industrial." Transcript of Court Proceedings, July 13, 2007, p. 124. That characterization is correct.
It is a basic tenet of our law that in construing zoning regulations, each regulations is to be read in the light of all the regulations.
"A local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances . . . 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. (Citations omitted; internal quotation marks omitted.) Hall Manor Owner's Ass'n. v. West Haven, 212 Conn. 147, 154, 561 A.2d 1373 (1989). A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance . . . The words employed are to be interpreted in their natural and usual meaning. (Citations omitted; internal quotation marks omitted.) Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511, 264 A.2d 552 (1969). The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601, 539 A.2d 101 (1988). The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible. Weigel v. Planning Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971). [R]egulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them. (Internal quotation marks omitted.) Forest Construction Co. v. Planning Zoning Commission, 155 Conn. 669, 679, 236 A.2d 917 (1967)." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning and Zoning Commission, 46 Conn.App. 566, 571, cert. denied, 243 Conn. 935 (1997). See also, Wiltzius v. Zoning Board of Appeals, 106 Conn.App. 1, 28, cert. denied, 287 Conn. 907 (2008); Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 272 (1991).
"The language of the ordinance is construed so that no clause or provision is considered superfluous. The regulations are construed as a whole and in such a way as to reconcile all the provisions in them as far as possible. Regulations must be construed as whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them." (Footnotes omitted.) 9A Fuller Land Use and Practice, (Third Edition), § 34.6, pp. 301-02.
"The language in the ordinance is given a construction which is reasonable under all the circumstances. When ambiguous language is used in a land use ordinance, its meaning and scope may be found by examining the language used with other provisions in the ordinance, by ascertaining the object sought to be accomplished and by considering all other relevant circumstances." 9A Fuller Land Use and Practice, (Third Edition), § 34.6, pp. 302-03.
The Kobylucks describe their operation as a "material processing" or "rock crushing" operation. They rely solely on § 14.5.6 of the zoning regulations as authority for the use of rock crushers. That section reads:
Except in an Industrial Zone, no stone crusher or other machinery not required for actual removal of the material shall be used unless approved by the Commission. The washing, screening, grading, or processing of earth, sand, gravel, stone, or other natural material may be permitted in all zoning districts.
To determine the meaning and scope of § 14.5.6, several other regulations are pertinent.
SECTION 9 — INDUSTRIAL ZONE
9.1 GENERAL
The minimum lot size in this district shall be 80,000 square feet, except as otherwise noted herein, and the following are permitted uses within this district:
* * *
9.1.22 The manufacturing and processing of earth products: stone crushing, washing, screening, as well as processing sand, gravel, and/or stone for wholesale and retail sales, as a permitted use within this district, providing said operation shall be conducted on a lot containing at least forty (40) acres in size and also providing that the crushing machinery be at least five hundred (500) from any Rural or Residential Zone.
* * *
9.2 SPECIAL EXCEPTIONS
The following uses may be permitted only as a Special Exception within the Industrial Zone, if approved by the Planning and Zoning Commission in accordance with the procedures and criteria established in Section 11 of these Regulations.
* * *
9.2.5 Excavations in accordance with the provisions of Section 14 of these Regulations.
Zoning Regulations. Exhibit 1, p. 79-81.
Material processing, such as that being conducted by the Kobylucks at 209 Rattlesnake Ledge Road, is not a permitted use or a use permitted by Special Exception in the Rural-A Zone. Zoning Regulations, §§ 4.1 and 4.2. Exhibit 1, pp. 31-34. And, such material processing is not a permitted use or a use permitted by Special Exception in any zone except the Industrial Zone. See Table below:
Rural A Zone, §§ 4.1 and 4.2, pp. 31-34
Rural B Zone, §§ 5.1 and 5.2, pp. 47-50
Seasonal Residential Zone, §§ 5A.2 and 5A.3, pp. 51-53
Residential Zone A, §§ 6.1 and 6.2, pp. 54-56
Business Zone, §§ 7.1 and 7.1A, pp. 63-66
Special Business Zone A, §§ 7A.2 and 7A.2a, pp. 68-69
Special Business Zone B, §§ 7B.2 and 7B.2A, pp. 70-71
Highway Commercial Zone, §§ 8.2 and 8.3, pp. 72-75
Section 8.3.11 does permit some processing of raw materials by Special Exception.
That sections reads:
8.3.11 The processing of raw materials or assembling of parts for products sold on the premises, provided:
a) processing or assembling activities shall be in the same building where the products are sold;
b) the area of the building used for processing or assembling shall be located to the rear of any sales area;
c) raw materials or unassembled parts shall be stored only within the processing or assembly area of the principal building, or within the accessory buildings, or in areas screened from view and to the side or rear of the principal building (10/24/95).
It is clear "[t]he processing of raw materials" allowed by this section is not any where the like of that in § 14.5.6 or § 9.1.22.
Commercial Recreation Zone, §§ 8A.2 and 8A.2A, pp. 77-78
Zoning Regulations. Exhibit 1.
"Material processing," including "stone crushing," is a permitted use only in the Industrial Zone. § 9.1.22. Even in the Industrial Zone, "the manufacturing and processing of earth products," which may or may not include stone or rock crushing, "shall be conducted on a lot containing at least forty (40) acres," and if crushing machinery is part of the process, "the crushing machinery be at least five hundred (500) feet from any Rural or Residential Zone." § 9.1.22.
The size of the Kobyluck property at 209 Rattlesnake Ledge Road is only 10-11 acres. It is in the middle of a Rural-A Zone.
Kobyluck counsel's characterization of the Kobyluck operation, at 209 Rattlesnake Ledge Road, as "inherently industrial" is correct.
The Kobylucks thereby admitted that "[t]he washing, screening, grading, or processing of earth, sand, gravel, stone, or other natural material," whether or not it includes rock or stone crushing," "is a use that is inherently industrial." Zoning Regulations, §§ 14.5.6 and 9.1.22.
A stated purpose of Section 14-Excavations is to "produce excavation operations that are conducted in a manner that has minimal adverse impacts on surrounding properties." Zoning Regulations, 14.2 Purpose. Exhibit 1, p. 109. The minimum lot size in the Industrial Zone is 80,000 square feet. § 9.1. But, in permitting material processing of earth products, "a lot containing at least forty (40) acres in size" is mandated. § 9.1.22. And, if "crushing machinery" is employed in the process, "the crushing machinery [must] be at least five hundred (500) feet from any Rural or Residential Zone." § 9.1.22.
Section 14.5.6, upon which the Kobylucks rely, must be read and interpreted in the light of § 9.1.22.
Kobylucks' 209 Rattlesnake Ledge Road site is only 10 or 11 acres in size. It is in the heart of the Rural A Zone. Surely, the planning and zoning commission, when writing the zoning regulations, was aware that excavations are to be "conducted in a manner that has minimal adverse impacts on surrounding properties." When the commission by § 9.1.22 permitted material processing, whether or not stone crushing was involved, even and only in the Industrial Zone, it expressly required at least a forty-acre site. § 9.1.22. Similarly, if rock or stone crushing were involved, the crushing machinery had to be at least five hundred feet from any Rural or Residential Zone. § 9.1.22.
Section 14-Excavations.
Sections 14.5.6 and 9.1.22 are concerned with the same topic, material processing. Zoning ordinances are to be read together so that the object sought to be accomplished may be ascertained. The regulations, when so read, convincingly manifest with regard to material processing of earth products, particularly when the processing employs rock crushing machinery and having in mind that "excavations are to be conducted in a manner that has minimal adverse impacts on surrounding properties," that § 14.5.6 must bow to § 9.1.22. When so construed, § 14.5.6 does not allow material processing which utilizes a rock crusher on a 10-11 acre lot in a Rural A Zone.
Other principles of statutory construction are relevant here.
It is an accepted rule of statutory construction that the promulgators of statutes or rules do not intend to proclaim [meaningless] or ineffective rules or legislation . . . It is also a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results.
(Internal quotation marks omitted.) State v. Harrison, 228 Conn. 758, 765 (1944).
Presumably, a Rural A Zone is a higher, more favored, and more restricted zone than the Industrial Zone. Material processing, with a rock crushing component, is expressly permitted only in the Industrial Zone. § 9.1.22. Material processing, with a rock crushing component, is not permitted by Special Exception in any zone. An absurd consequence and a bizarre result would follow the result if the zoning regulations, particularly § 14.5.6, were construed as permitting a material processing operation that includes rock crushing in a Rural A Zone on a site only 10-11 acres in size. Accordingly, the court holds that § 14.5.6 does not permit a rock crushing material processing operation in a Rural A Zone.
This conclusion is fortified when § 14.5.6 is analyzed internally. The first sentence contains the term, "stone crusher." It then describes when a stone crusher may be permitted by the planning and zoning commission. The second sentence provides: "The washing, screening, grading, or processing of earth, sand, gravel, stone, or other natural material may be permitted in all zoning districts." "Stone" or "rock crushing" is not mentioned in the second sentence.
The law is clear that the omission of a word or term in a legislative enactment means the legislature intended to exclude the omitted word or term. "The legislature's [here the Planning and Zoning Commission's,] use of words to itemize the situations that bring a statute [or zoning ordinance] into play connotes the legislative intent to exclude that which is not included. Stuart v. Dept. of Correction, 221 Conn. 41 (1992); State v. Kish, 186 Conn. 757, 765 (1982)." McNulty v. Stamford, 37 Conn.App. 835, 840 (1995). "While every word of a statute [or zoning regulation] must be presumed to have been used for a purpose, it is also case that every word excluded must be presumed to have been excluded for a purpose." (Footnote omitted.) 2A Statutes and Statutory Construction, 2007 New Edition, § 46.6, pp. 247-48.
The exclusion of stone or rock crushing from the enumeration of what is permitted in all zoning districts is significant. This is particularly so because such was a topic of the immediately preceding sentence. In addition to the reasons previously stated, the court holds § 14.5.6 does not permit rock crushing material processing in a Rural A Zone.
Counsel for the Kobylucks' characterization of the operation as "inherently industrial" is a recognition that what Kobyluck is doing at 209 Rattlesnake Ledge Road does not square with the zoning regulations.
The Kobyluck "rock crushing operation" or "material processing operation," a use "inherently industrial," is not permitted in the RU-A Zone.
The defendants have not contested the fact that more than one crusher has been on the site regularly.
The evidence conclusively establishes that more than one crusher has been kept and operated at the site.
The plaintiff is entitled to immediate relief including a permanent injunction requiring the immediate removal of any and/or all stone crusher(s) beyond the one permitted crusher.
There is no adequate remedy at law.
II
The second count of the amended complaint seeks compliance with the site plan and permit condition that ". . . no more than 4 acres shall be exposed at any given time. Phase II may begin once no more than 2 acres are left exposed under Phase I." Amended Complaint, June 16, 2006, Second Count, § 18. [106.]
Several sections of the zoning regulations are relevant here. Each of the sections set forth below, in one way or another, evince a regulatory purpose of limiting the excavated area left in other than its natural, pre-excavated condition by requiring a degree of rehabilitation of the excavated area before any further area may be excavated.
14.2 PURPOSE
The purposes of this section are to: 1) ensure that excavated properties are restored to attractive and useful sites, 2) produce excavation operations that are conducted in a manner that has minimal adverse impacts on surrounding properties, and 3) reduce threats to public safety as much as possible during the period of excavation.
14.4 EXISTING EXCAVATIONS
Where a final grading plan has not been filed for an excavation operating under an existing permit, such plan shall be required to be submitted to the Commission for approval prior to the renewal of such permit.
14.5 CONDITIONS
The following conditions shall be met by the excavation operator:
14.5.1 The exposed or otherwise disturbed area of the operation after completion shall not exceed four (4) contiguous acres at any one time, except that the surface area of any resulting pond shall not be included in the four (4) acre calculation.
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14.5.4 Topsoil shall not be removed from the site, but shall be stockpiled in a stable manner and retained for use in rehabilitating the site after completion of the excavation operation. Loam may be substituted for topsoil provided it is available on the site in a sufficient amount to cover disturbed areas to a depth of four (4) inches.
14.5.5 During the conduct of the operation, any condition deemed by the Zoning Enforcement Officer to be threat to public safety shall result in an order to cease the operation until such condition is corrected. At the conclusion of the operation, or where the area of active excavation exceeds two (2) contiguous acres, the area where removal has taken place, or which is in excess of four (4) acres, shall be graded and covered with no less than four (4) inches of topsoil and seeded with a suitable cover-crop.
14.6 BOND
As a condition of approval of any excavation, the Commission shall require a bond to be posted with the Board of Selectmen sufficient to cover the costs of any required access, drainage, or safety improvements and the costs of regrading of disturbed areas, covering with topsoil, and seeding. The applicant shall present an estimate of such costs, prepared by a registered professional engineer, and the Commission shall determine the bond amount. The bond shall remain in effect through the period of the permit and any subsequent renewal, plus one (1) year. Bond increases may be required by the Commission at times of permit renewal to reflect increases in costs of site restoration. The Commission may approve releases of portions of bonds as site improvements are completed. (7/1/90.)
14.7 DURATION OF PERMIT
Permits run for a period of one year, i.e., from May to April. It is uncontroverted that the Kobylucks have been conducting their operations at 209 Rattlesnake Ledge Road without a permit since May 2006.
The approval of a Special Exception for an excavation shall be conditioned in all cases to an annual satisfactory review of the operation by the Zoning Enforcement Officer who shall determine that the operation is being conducted in a manner consistent with the approved site plan. On making such determination, the Zoning Enforcement Officer shall issue a one (1) year permit for continuation of the operation, and the conditions of the original approval shall remain in force during the period of renewal. The Zoning Enforcement Officer shall find that the bonding requirements of Section 14.6 above, are met prior to issuing any permit renewal. (7/1/90.)
14.7.1 Nothing herein shall prevent the applicant from requesting approval of a revised site plan, modifying, expanding, or reducing the scope of the excavation originally approved. If the Commission determines that such proposed revision would pose significant additional impacts on the surrounding area, it may require the applicant to submit a new application for a Special Exception.
Zoning Regulations. Exhibit 1, pp. 109-11.
The minutes of the planning and zoning commission's February 19, 2002 meeting, when the site plan was approved, list the conditions of the approval. One such condition was: "6. Except for during Phase I (in which maximum exposed area is grandfathered), no more than four (4) acres shall be exposed at any given time. Phase II may begin once no more than two acres are left exposed under Phase I." Minutes, Salem Planning and Zoning Commission, February 19, 2002, p. 4. Exhibit 4.
In this action, the plaintiff alleges the defendants are violating the conditions of their approval, specifically the condition that ". . . no more than 4 acres shall be exposed at any given time. Phase II may begin once no more than 2 acres are left exposed under Phase I" and "by exposing more than the permitted acreage to excavation than is permitted." Amended Complaint, June 16, 2006, Second Count, ¶¶ 18-19.
In her brief, the plaintiff claims: "The Defendants have permitted the exposing of more than the permitted acreage to excavation than is permitted by the special permit and site plan approval by excavating in Phase II while there is more than 2 acres left exposed within Phase I. [Amended Complaint, Second Count par. 13 and 19.]" Trial Brief of the Plaintiff, December 10, 2007, p. 5. [125.]
Rehabilitation and/or restoration means that upon completion of excavation, excavated areas "shall be graded and covered with no less than four (4) inches of topsoil [or loam] and seeded with a suitable cover crop." Zoning Regulations, §§ 14.5.1, 14.5.4, and 14.5.5. Exhibit 1, pp. 15-17.
The regulations also limit the area that can be excavated. See § 14.5.1 and § 14.5.5. Section 14.5.1 provides that the combined area of land where excavation is completed and where excavation has or is taking place but has not been rehabilitated or restored "shall not exceed four (4) contiguous acres at any one time." Similarly, § 14.5.5 limits the area of active excavation to two acres; any such area which exceeds two acres must "be graded and covered with no less than four (4) inches of topsoil [or loam] and seeded with a suitable cover crop."
The plaintiff has introduced credible evidence that the defendants have excavated, without restoration, more than is permitted by the regulations, special exception and the permit. That evidence was uncontroverted. The defendants offered no evidence on the issue, merely contending: "The Defendants believe the second Cease and Desist Order has not been proved sufficiently by the evidence." Trial Brief of the Defendants, December 31, 2007, p. 10. [126.]
The standard of proof for injunctive relief is by a preponderance of the evidence.
The proper burden of proof for injunctive relief is by a preponderance of the evidence. "The party seeking the injunction must prove his own case and adduce whatever proof is necessary to show the existence of the conditions or circumstances upon which he bases the right to and necessity for injunctive relief, and he must establish his right thereto by a preponderance of the evidence. 42 Am.Jur.2d, Injunctions 287."
Beacon Falls v. Posick, 17 Conn.App. 17, 24, n. 5 (1988).
Matthew Kobyluck, who ran the daily operations at the site, was the sole witness called by the defendants. The defendants' counsel did not ask him any questions about the area excavated, exposed or restored. The defendants then rested. Matthew Kobyluck was present throughout the trial. He surely knew how much of the site was exposed, and knew how much, if any, of the site had been restored. The defendants' counsel chose not to ask him any questions touching on these issues. The defendants' failure to elicit any evidence on these topics, which it was within their ability to do, permits the court to draw an inference unfavorable to the defendants.
"Most inferences are affirmative in the sense that they tend to prove particular facts. In some situations, however, the inference may be a negative one. For example, the failure to produce evidence that would naturally be favorable creates an inference that such evidence would in fact, have been unfavorable to the party's cause . . . Such negative inferences cannot supply proof of any particular fact. Accordingly, negative inferences do not help a party to establish a prima facie case and can be used only by the trier in weighing the evidence and determining the ultimate burden of persuasion." Tait's Handbook of Connecticut Evidence, Third Edition, § 4.3.2, p. 206.
"The failure to produce any type of evidence that a party might naturally be expected to produce also carries an implied admission that such evidence would not be favorable." Tait's Handbook of Connecticut Evidence, Third Edition, § 8.16.12(e), p. 616.
As stated above, there is credible evidence on the issue adverse to the defendants. The defendants did not produce any evidence on the issue. The defendants, particularly through Matthew Kobyluck, had the ability to produce relevant testimony. They did not. The court draws the inference that had Matthew Kobyluck testified, his testimony would have been unfavorable to the defendants.
Based on the evidence provided, the court finds that more area has been excavated and not restored than is required by the regulations, the site plan and the permit.
The plaintiff is entitled to immediate relief, including a permanent injunction requiring the immediate restoration and rehabilitation of the site as required by the permit. There is no adequate remedy at law.
An injunction shall issue. The injunction is issued simultaneously with this Memorandum of Decision.
Counsel for the plaintiff is directed to have a copy of the attached injunction served on the defendants, Kobyluck Sand and Gravel, Inc., and Kobyluck Brothers, LLC., and also on the non-defendant, Matthew Kobyluck.
An on the record hearing, will be held on November 19, 2008 to address the issues regarding the plaintiff's claim(s) for attorney fees, fines, penalties pursuant to C.G.S. § 8-12 and the procedures for same.