9 Pettipaug v. Plan. & Zoning Comm'n

316 A.3d 318

349 Conn. 268

9 PETTIPAUG, LLC, et al.

v.PLANNING AND ZONING COMMISSION of the Borough of Fenwick

(SC 20838)

Supreme Court of Connecticut.

Argued December 11, 2023

Officially Released June 18, 2024

Michael A. Zizka, for the appellant (defendant).

Richard P. Weinstein, with whom, on the brief, was Sarah Black Lingenheld, for the appellees (plaintiffs).

Proloy K. Das filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

Evan J. Seeman and Scott T. Garosshen filed a brief for the Connecticut Chapter of the American Planning Association et al. as amici curiae.

Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker, Alexander and Dannehy, Js.

ROBINSON, C. J.

₂₇₁This certified appeal requires us to consider a significant question in this time of great ₂₇₂change in the local journalism industry, namely, how a publication qualifies as "a newspaper having a substantial circulation in the municipality" for purposes of providing constructive notice of that municipality’s promulgation of zoning regulations under General Statutes § 8-3 (d).¹ The defendant, the Planning and Zoning Commission of the Borough of Fenwick (commission), appeals, upon our grant of its petition for certification,² from the judgment of the Appellate Court affirming the judgment of the trial court in favor of the plaintiffs, 9 Pettipaug, LLC, and Eniotna, LLP.³ 9 Pettipaug, LLC v. Planning & Zoning Commission, 217 Conn. App. 714, 717, 737, 290 A.3d 853 (2023). On appeal, the commission claims that the Appellate Court incorrectly concluded that its publication of notice in The Middletown Press (Press) of an amended zoning regulation did not comply with § 8-3 (d) because none of Fenwick’s fourteen year-round households subscribes to the Press and ₂₇₃it is not sold anywhere in Fenwick. Given the Press’ focus on news items of general interest, its ready availability for purchase in the commercial area of the town of Old Saybrook, in which the borough of Fenwick is located, the fact that the Press’ website allows free access to legal notices, and the deference that we afford the commission’s long history of using the Press for its legal notices, we conclude that the Press is a newspaper having a substantial circulation in the municipality of Fenwick under § 8-3 (d). Accordingly, we reverse the judgment of the Appellate Court.

The record reveals the following relevant facts and procedural history. Fenwick is a borough located entirely within the boundaries of the town of Old Saybrook. Fenwick has a population of approximately fifty-two persons living in fourteen households year-round; it has an additional sixty-seven homes that serve as summer residences. Because Fenwick’s zoning is exclusively residential, it has no stores; the primary commercial area serving Fenwick’s residents is Old Saybrook’s nearby Boston Post Road.

Residents of eleven of the year-round homes and thirty-five of the seasonal homes, representing 56.8 percent of Fenwick’s homes, have served as officials on Fenwick’s various boards and commissions. Those governing bodies, including the commission and Fenwick’s board of warden and burgesses, zoning board of appeals, tax collector, and historic district commission, have published their various legal notices in the Press for more than thirty years. Monday through Saturday, the Press is available for single copy retail purchase at nine locations, several of which are located in the commercial area on Boston Post Road that selves Fenwick, including gas stations, convenience stores, and a supermarket. Daily circulation of the Press in Old Saybrook as a whole, including home delivery and single copy sales, is twenty-two on weekdays and twenty-₂₇₄three on weekends; it is unknown whether any of the single copy sales of the Press were to Fenwick residents. The Press may be viewed online on its website; its online legal notices section may be viewed for free without a subscription. None of Fenwick’s fourteen year-round households, however, subscribes to the print or online version of the Press.

Other newspapers are available in Fenwick. At least six households in Fenwick have either print or digital subscriptions to The Hartford Courant, and sixteen households in Fenwick receive a free newspaper published by Shore Publishing, LLC.

On July 20, 2019, the commission adopted certain amendments to Fenwick’s zoning regulations to address the shortterm rentals of homes in Fenwick by allowing each property owner to rent their premises for up to ten times per year for a minimum of two week intervals. Notice of the commission’s decision was published in the Press on July 25, 2019.

On October 25, 2019, the plaintiffs appealed from the decision of the commission to the trial court pursuant to General Statutes § 8-8, claiming, inter alia, that the commission had unlawfully adopted those amendments by failing to post the proposal for public inspection at least ten days prior to the hearing, or by publishing the approval in a newspaper having a substantial circulation in the municipality, in violation of § 8-3. The commission moved to dismiss the zoning appeal and filed a special defense challenging the trial court’s jurisdiction, claiming that the appeal was untimely under § 8-8 (b), which requires zoning appeals to be filed in the trial court "within fifteen days from the date that notice of the decision was published as required by the general statutes."

The trial court denied the commission’s motion to dismiss, agreeing with the plaintiffs’ argument that the appeal was timely filed under the savings provision of ₂₇₅§ 8-8 (r) because the commission had not published notice of its decision adopting the short-term rental amendment "in a newspaper having a substantial circulation," as required by § 8-3 (d). The trial court took "into account the evidence submitted as it relates to ‘circulation,’ albeit limited, including not just subscriptions, but individual online sales and access," and found "that the publication did not take place, as required, in a newspaper of substantial circulation. Even if the municipality were defined to include Old Saybrook, the evidence of publication is still insufficient to demonstrate ‘substantial circulation.’ "

Subsequently, the plaintiffs moved for summary judgment with respect to the sole remaining count of the zoning appeal, which alleged that the commission had unlawfully enacted the short-term rental regulation by failing to publish notice of the amendment in a newspaper having a substantial circulation in Fenwick. The trial court followed its analysis in connection with the motion to dismiss, concluding that the failure to publish the amendment in a newspaper having a substantial circulation in Fenwick rendered it ineffective as a matter of law under § 8-3 (d). See Wilson v. Planning & Zoning Commission, 260 Conn. 399, 405-406, 796 A.2d 1187 (2002). Accordingly, the court granted the plaintiffs’ motion for summary judgment.

Following the granting of certification pursuant to § 8-8 (o), the commission appealed from the judgment of the trial court to the Appellate Court, raising numerous arguments in support of its claim that "publication of the amendment to Fenwick’s zoning regulations in [the Press] satisfied the ‘substantial circulation’ requirement of § 8-3 (d)." 9 Pettipaug, LLC v. Planning & Zoning Commission, supra, 217 Conn. App. at 722, 290 A.3d 853. The Appellate Court followed its decision in Fisette v. DiPietro, 28 Conn. App. 379, 611 A.2d 417 (1992), and held that, although the statutory scheme did not define the term ₂₇₆"substantial circulation," its meaning was plain and unambiguous, and informed by "the number of subscriptions or copies sold. The overriding consideration is the extent of dissemination of the publication to readers." 9 Pettipaug, LLC v. Planning & Zoning Commission, supra, at 726, 290 A.3d 853; see id., at 725–26, 290 A.3d 853. The Appellate Court emphasized that none of Fenwick’s households subscribes to the Press and rejected the commission’s reliance on the online availability of the Press on the ground that it "discounts that virtually every newspaper with an accessible online presence could be considered generally available in any municipality with Internet access. ‘Substantial circulation,’ according to common usage, requires more than general online availability: it requires, for example, substantial dissemination or distribution of printed material among readers and/or substantial distribution of online information to readers. The [trial] court noted that the [commission] did not present any evidence of online viewing numbers of [the Press]." Id., at 729–30, 290 A.3d 853. Accordingly, the Appellate Court concluded that the trial court correctly had determined that there was no genuine issue of material fact as to whether "publication of the amendment to Fenwick’s zoning regulations in [the Press] failed to satisfy the ‘substantial circulation’ requirement of § 8-3 (d)." Id., at 734, 290 A.3d 853. The Appellate Court, therefore, affirmed the judgment of the trial court. Id., at 737, 290 A.3d 853. This certified appeal followed. See footnote 2 of this opinion.

On appeal, the commission claims that the Appellate Court incorrectly concluded that the Press was not a newspaper with a substantial circulation in Fenwick under § 8-3 (d). The commission argues that the Appellate Court improperly deemed the phrase "substantial circulation" to be plain and unambiguous and that its analysis is inconsistent with the purpose of statutory publication requirements, which is to provide constructive notice of the action at issue. The commission argues ₂₇₇that the term "substantial circulation" means that the newspaper is "readily available" in the municipality; the commission urges us not to focus on subscription numbers given their significant day-to-day variability, along with "the practical impossibility of determining how many municipal residents may receive or...