CT Supreme Court throws a lifeline to local newspapers in decision on legal notices

The Connecticut Supreme Court threw a lifeline Thursday to a newspaper industry battered by declining circulation when it decided, in a dispute over legal notices, that The Middletown Press can be considered a paper of “substantial circulation” in the Old Saybrook borough of Fenwick, even though none of the year-round residents subscribe to it.

The case was brought by a property owner challenging a decision by the Fenwick Zoning Commission that allowed homeowners to rent their homes. The property owner, a limited liability corporation known as 9 Pettipaug, argued that the amendment to borough zoning regulations was invalid because residents were not properly forewarned by a legal notice published, as state law requires, ‘‘in a newspaper having a substantial circulation in the municipality.’’

Legal notices are a revenue center for newspapers suffering from a move by advertisers to the internet. Chief Justice Richard Robinson, who wrote the unanimous decision, said the case raised “a significant question in this time of great change in the local journalism industry.”

In deciding the case, the court adopted a new standard for deciding what amounts to “substantial or general circulation” in a community.

To meet the new standard, a newspaper must publish “general news content of local interest to the applicable community.” If the paper meets that test, it must then be shown to be generally available “as demonstrated by where and how the newspaper is distributed, the frequency of distribution, the existence of any cost barriers to access, whether the newspaper is consistently used for such notices and for how long, and whether residents are aware of that newspaper’s use for the publication of legal notices.”

Fenwick is an upscale, residential  beach community within Old Saybrook located on Long Island Sound at the mouth of the Connecticut River. There are 67 summer cottages in Fenwick and 14 year-round homes.

The zoning commission published notice of the amended regulation in the newspaper three days after making the change, setting in motion the period during which opponents can bring challenges.

The record of the case shows that The Middletown Press is available in print and online. The print edition is sold in nine stores in the Old Saybrook commercial district. None of Fenwick’s year-round residents subscribed to the print edition, but like everyone else they are able to access the newspaper’s legal notices for free and without a subscription.

When the zoning commission refused to consider a challenge by 9 Pettipaug, it persuaded a Superior Court that the  amendment was improperly adopted because of insufficient notice in a general circulation paper. The zoning commission appealed but lost again, when the Appellate Court concluded that the meaning of the term ‘‘substantial circulation’’ was plain and unambiguous and didn’t describe The Middletown Press’s circulation in Fenwick.

The Supreme Court reversed the lower courts and dismissed 9 Pettipaug’s challenge to the zoning decision.