The Connecticut Supreme Court held last month that a newspaper used for decades by the tiny borough of Fenwick to issue its public notices qualified as an official newspaper even though the paper had no subscribers there.

The ruling overturned an appellate court decision invalidating a zoning regulation for lack of sufficient notice because the paper failed to satisfy a state law requiring official newspapers to have “substantial circulation in the municipality.”

The case began in 2019, when Fenwick amended its zoning regulations to limit Airbnb-type temporary rentals of local homes. The borough is exclusively residential and only 14 of its 81 homes are occupied year-round; the remainder serve as summer residences. So perhaps it wasn’t surprising when two local property owners opposed the new regulation and sued to stop it. They argued the local zoning commission violated the state’s statutory notice requirement even though it published timely, substantively sufficient notice in The Middletown Press, a Hearst newspaper based about 30 miles outside of Fenwick.

The zoning commission appealed the ruling and the Supreme Court agreed to take the case.

The Supreme Court found that to meet the circulation standard in the state’s public notice law a paper must provide “constructive notice” that informs as many residents as possible of the actions contemplated by the notice. Noting that the state legislature used the terms “substantial circulation” and “newspaper of general circulation” interchangeably, the Court “rejected a rigidly mathematical inquiry that focuses only on subscriber numbers in favor of an inquiry that considers the type of news covered by the publication and its general availability in the municipality.”

Although none were determinative, the Court cited the following facts in reaching its conclusion that The Middletown Press provided constructive notice:

• The paper is available for purchase at nine retail locations in the town of Old Saybrook, which serves as the primary commercial district for Fenwick.
• Public notices in the Press are available to view for free on the paper’s website, without a subscription.
• Fenwick’s various governing bodies have used the Press for public notices for decades, and residents of most of Fenwick’s homes have served on those governing bodies.

One of the plaintiffs last week filed a Motion for Reconsideration, asking the Court to review its June 18 decision in part so it can remand the case to allow the plaintiff to “present evidence that the Middletown Press did not include local news content of interest to Fenwick residents.” Asking a court to overturn its own decision rarely succeeds.