Shoreline Shellfish, LLC v. Branford

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SHORELINE SHELLFISH, LLC
v. TOWN OF BRANFORD
(SC 20392)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiffs sought damages from the defendant, the town of Branford,
for, inter alia, breach of contract in connection with the plaintiffs’ unsuc-
cessful attempt to lease a shellfishing ground in Branford known as lot
511. The plaintiffs had entered into an agreement with the town’s Shell-
fish Commission under which the plaintiffs agreed to share information
with the commission about potential shellfishing grounds in exchange
for the right of first refusal to lease lot 511. Thereafter, when one of
the plaintiffs’ competitors applied to lease lot 511, the plaintiffs exercised
their right of first refusal, but the commission leased the lot to the
plaintiffs’ competitor. The town moved for summary judgment on the
ground that the right of first refusal was not a valid or enforceable
contract because the commission lacked the authority to enter into an
agreement in view of the provision of the Branford Town Code (§ 88-
8) providing that no lease of shellfishing grounds ‘‘owned by’’ the town
shall be permitted without the approval of the town’s Board of Select-
men. The trial court granted the town’s motion, concluding, inter alia,
that, pursuant to § 88-8 of the town code, the Board of Selectmen, and not
the commission, had the authority to approve any lease of shellfishing
grounds located in Branford and that there was no evidence that the
Board of Selectmen had approved the agreement between the plaintiffs
and the commission. On appeal, the plaintiffs claimed, inter alia, that
a genuine issue of material fact existed as to who owned lot 511, which
affected whether the Board of Selectmen was required to approve the
lease under § 88-8 of the town code. The plaintiffs contended that the
phrase ‘‘owned by’’ in § 88-8 limited the authority of the Board of Select-
men to lease shellfishing grounds to only those grounds owned by the
town and that the town presented no evidence regarding whether it
owned lot 511. Held that the trial court improperly granted the town’s
motion for summary judgment, as there was a genuine issue of material
fact as to whether the town ‘‘owned’’ lot 511 and, thus, whether the
commission had the authority to lease lot 511 to the plaintiffs under
§ 88-8 of the town code: under the particular, technical definition of the
phrase ‘‘owned by’’ in § 88-8, as established by case law concerning the
public trust doctrine, the town owned lot 511 only if it held title to a
grant of the private rights to the lot, and the town, having advanced no
evidence that it had been granted private rights to lot 511, did not meet
its burden of establishing that it owned lot 511 within the meaning of
§ 88-8 of the town code; moreover, the town’s assertion that the phrase,
‘‘shellfishing grounds owned by Branford,’’ in § 88-8 must refer to all
shellfishing grounds for which the town controlled the proprietary rights
to cultivate and harvest shellfish was unreasonable because to interpret
‘‘own’’ to mean ‘‘control’’ was contrary to its plain meaning, both under its
dictionary definition and this court’s case law discussing the particular
meaning of the word in the context of the public trust doctrine, as the
phrase to ‘‘own’’ shellfishing grounds means to hold legal title to the
private rights to those grounds.
Argued February 25—officially released July 29, 2020**
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
court, Blue, J., granted the plaintiff’s motion to add
Shellfish Partners, Ltd., as a plaintiff; thereafter, the
court, Abrams, J., granted the defendant’s motion for
summary judgment and rendered judgment thereon,
from which the plaintiffs appealed. Reversed; further
proceedings.
Richard W. Callahan, for the appellants (plaintiffs).
Michael T. Cretella, for the appellee (defendant).
Opinion
D’AURIA, J. Given the geography of our state, which
is bounded on the south by the Long Island Sound,
shellfishing has a long and rich history in Connecticut.
The first Connecticut laws regulating the taking of shell-
fish were created before the revolution, in the early
eighteenth century. Connecticut State Register and
Manual (2019) p. 825. By the late nineteenth century,
oyster farming was a major contributor to the state’s
economy. Id. For a time, Connecticut had the largest
fleet of oyster steamers in the world. Id. Beginning in
the mid-nineteenth century, water pollution, disease,
overharvesting, and other factors decimated histori-
cally abundant shellfish populations, but cleaner water
and better management practices contributed to a
rebounding shellfish population in recent years. The
Nature Conservancy, ‘‘Private Shellfish Grounds in Con-
necticut: An Assessment of Law, Policy, Practice and
Spatial Data’’ (January, 2010) p. 6. The shellfishing
industry in Connecticut, too, has begun to rebound;
today, the industry makes more than $30 million in
annual sales.1
The waters of the Sound are both a natural and an
economic resource of the state, guarded jealously. Pre-
dictably, control over the shellfish industry is also
guarded jealously and has long been subject to state
and local legislation, including state legislation unique
to a particular town in the present case, the defendant,
the town of Branford. In this appeal, we are asked to
resolve a dispute that has arisen not just between a
local business and the town, but among that town’s
governing entities. At its core, this case involves a dis-
pute over who has authority to lease shellfishing beds
on the town’s behalf, Branford’s Shellfish Commission
(commission) or its Board of Selectmen (selectmen).
The plaintiffs, Shellfish Partners, Ltd., and its general
partner, Shoreline Shellfish, LLC, which had been
granted the right of first refusal by the commission to
lease certain shellfishing grounds located in Branford,
appeal from the trial court’s decision to render summary
judgment in favor of the defendant on the ground that
there was no genuine issue of material fact that the
selectmen, and not the commission, had authority to
bind the defendant to agreements relating to the leasing
of shellfishing grounds pursuant to General Statutes
§ 26-2662 and chapter 88 of the Branford Town Code
(code). Specifically, the plaintiffs claim that the trial
court improperly interpreted § 26-266 (a), which gives
charge of shellfishing grounds to ‘‘[t]he selectmen . . .
or shellfish commission,’’ to grant both the commission
and the selectmen authority to lease shellfishing
grounds within the town, and, therefore, that the ordi-
nance, § 88-8 of the code, which splits authority
between the commission and the selectmen, is invalid
on this basis. In the alternative, the plaintiffs claim that,
even if the trial court properly interpreted § 26-266 and
the ordinance as granting authority to both the commis-
sion and the selectmen, the trial court improperly inter-
preted the meaning of the phrase ‘‘owned by’’ in the
ordinance, and, thus, there is a genuine issue of material
fact as to whether the defendant owned the shellfishing
ground at issue.3 We agree with the plaintiffs that,
assuming that the ordinance does not conflict with § 26-
266, on the basis of the clear and unambiguous language
of the ordinance, there was a genuine issue of material
fact regarding whether the defendant ‘‘owned’’ the shell-
fishing ground at issue. Therefore, the trial court
improperly rendered summary judgment, and we
reverse the judgment of the trial court and remand the
case for further proceedings.
The following undisputed facts, as found by the trial
court and contained in the record, and procedural his-
tory are relevant to our disposition of this appeal. This
dispute involves a shellfishing ground, lot 511, which
was available for lease in the town. The plaintiffs
applied to the commission for a right of first refusal to
lease lot 511, along with several other lots not at issue
in this case. In exchange for the right of first refusal, the
plaintiffs agreed to explore certain areas for potential
shellfishing grounds and to share the information it
collected with the commission. After this agreement
was entered into, one of the plaintiffs’ competitors
applied to lease lot 511. At the commission’s next meet-
ing, the commission deferred action on the competitor’s
application because of the plaintiffs’ existing right of
first refusal. The plaintiffs then exercised their right
of first refusal and applied to lease lot 511, but the
commission instead leased lot 511 to the plaintiffs’ com-
petitor.
The named plaintiff, Shoreline Shellfish, LLC, then
brought this action, alleging breach of contract and
promissory estoppel, and, specifically, that it enjoyed a
right of first refusal. The defendant moved for summary
judgment, arguing that the right of first refusal was not
a valid or enforceable contract because the commission
lacked authority to enter into it. The defendant argued
that the commission’s authorization was precluded by
§ 88-8 of the code, which provides in relevant part that
‘‘[n]o lease, license or transfer of shellfishing grounds
owned by . . . Branford shall be permitted without the
approval of the Board of Selectmen. . . .’’ The trial
court rendered summary judgment in favor of the defen-
dant because there was no evidence that the selectmen
had approved the right of first refusal agreement. The
trial court based its decision on its interpretation of
§ 26-266 (a), a statute that is applicable only to the
defendant and provides in relevant part that ‘‘[t]he
selectmen of the town of Branford or shellfish commis-
sion . . . shall have charge of all the . . . shellfish
grounds lying in said town not granted to others and
not under the jurisdiction of the Commissioner of Agri-
culture . . . .’’ The trial court determined that § 26-266
unambiguously ‘‘provides [the defendant] with discre-
tion to authorize either the . . . [s]electmen or the
commission, or both, to exercise the powers and fulfill
the duties provided by § 26-266 (a).’’ The trial court
further determined that, although § 88-4 of the code
establishes the powers of the commission, which
include the authority to issue shellfish licenses, § 88-
8 limits the commission’s authority by requiring the
selectmen to approve any lease of or license to shell-
fishing grounds. Without explicitly considering whether
§ 88-8 also places limits on the authority of the select-
men by requiring their approval only with respect to
leases of and licenses to shellfishing grounds ‘‘owned
by’’ the defendant, the trial court determined that § 88-
8 required the selectmen to approve any lease of or
license to shellfishing grounds located in the town and,
thus, concluded that there was no genuine issue of
material fact that the commission lacked authority to
lease lot 511.
The plaintiffs appealed to the Appellate Court. We
then transferred the appeal this court pursuant to Gen-
eral Statutes § 51-199 (c) and Practice Book § 65-1.
On appeal, the plaintiffs claim that the trial court
improperly granted summary judgment in favor of the
defendant because it misconstrued § 26-266. They argue
that § 26-266, which the parties do not dispute applies,4
does not allow the defendant to split authority between
the commission and the selectmen, as provided in § 88-
8, and, thus, § 88-8 is invalid. Alternatively, the plaintiffs
claim that, even if the ordinance is valid under § 26-
266, there is a genuine issue of material fact as to who
owns lot 511, which affects whether the selectmen are
required to approve the lease or license under § 88-8.
Specifically, the plaintiffs argue that the phrase ‘‘owned
by’’ in § 88-8 limits the authority of the selectmen to
lease shellfishing grounds owned by the defendant and
that the defendant presented no evidence regarding
ownership of the lot.
The defendant responds that the trial court correctly
concluded that § 26-266 authorizes the town to share
authority between the commission and the selectmen,
and, thus, the trial court properly rendered summary
judgment in favor of the defendant. The defendant fur-
ther responds that there is no genuine issue of material
fact regarding ownership because the phrase ‘‘owned
by’’ in § 88-8 means ‘‘shellfishing grounds for which [the
defendant] controls the proprietary right to cultivate
and harvest shellfish’’ or ‘‘shellfish ground lying in
[Branford],’’ and, thus, any lease of or license to the
shellfishing grounds located in the town must be
approved by the selectmen. In support of this argument,
the defendant stresses that, because the public trust
doctrine applies, ‘‘owned by’’ cannot mean ownership
of the underlying fee.
We agree with the plaintiffs that, even if we assume
that § 88-8 does not conflict with § 26-266, on the basis
of the clear and unambiguous language of § 88-8, a
genuine issue of material fact as to who owns lot 511
prevents the granting of summary judgment.
The scope of our review of the trial court’s decision
to grant the defendant’s motion for summary judgment
is plenary. See, e.g., Rutter v. Janis, 334 Conn. 722, 729,
224 A.3d 525 (2020). ‘‘Practice Book [§ 17-49] provides
that summary judgment shall be rendered forthwith if
the pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. . . . The party seeking summary
judgment has the burden of showing the absence of
any genuine issue [of] material facts which, under appli-
cable principles of substantive law, entitle him to a
judgment as a matter of law . . . . A material fact . . .
[is] a fact which will make a difference in the result of
the case.’’ (Internal quotation marks omitted.) Id.
To the extent that the trial court’s decision to render
summary judgment requires us to construe a municipal
ordinance, our review is also plenary and is guided by
our well established legal principles regarding statutory
construction. See, e.g., Ventura v. East Haven, 330
Conn. 613, 631–32, 199 A.3d 1 (2019). ‘‘A local ordinance
is a municipal legislative enactment and for purposes
of appeal is to be treated as though it were a statute.’’
Duplin v. Shiels, Inc., 165 Conn. 396, 398, 334 A.2d 896(1973). In construing statutes, ‘‘General Statutes § 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. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation.’’ (Internal
quotation marks omitted.) Gonzalez v. O & G Indus-
tries, Inc., 322 Conn. 291, 302–303, 140 A.3d 950 (2016).
Because we assume, without deciding, that the trial
court properly interpreted § 26-266 not to conflict with
§ 88-8 of the code, we begin our analysis by examining
the language of that ordinance, which provides in rele-
vant part: ‘‘No lease, license or transfer of shellfishing
grounds owned by . . . Branford shall be permitted
without the approval of the Board of Selectmen. . . .’’
(Emphasis added.) Branford Town Code, c. 88, § 88-8.
The word ‘‘owned’’ is not defined in § 88-8 or elsewhere
in the code. When words or phrases are not statutorily
defined, ‘‘General Statutes § 1-1 (a) directs that we con-
strue [a] term according to its commonly approved
usage, mindful of any peculiar or technical meaning it
may have assumed in the law. We may find evidence
of such usage, and technical meaning, in dictionary
definitions, as well as by reading the statutory language
within the context of the broader legislative scheme.’’
State v. Menditto, 315 Conn. 861, 866, 110 A.3d 410(2015). Further, ‘‘[i]t is well established that, to construe
technical legal terms, we look for evidence of their
familiar legal meaning in a range of legal sources,
including other statutes, judicial decisions, and the com-
mon law.’’ Id., 868. Technical terms can be legal terms
as well as terms associated with the trade or business
with which a given statute is concerned, and ‘‘the terms
in question should be accorded the meaning which they
would convey to an informed person in the [applicable]
trade or business.’’ Hardware Mutual Casualty Co. v.
Premo, 153 Conn. 465, 475, 217 A.2d 698 (1966).
Dictionary definitions from the time the ordinance
was enacted are especially instructive. See, e.g., State
v. Menditto, supra, 315 Conn. 866. At the time that § 88-
8 was adopted in 1997, Black’s Law Dictionary defined
the verb ‘‘own’’ as ‘‘[t]o have good legal title; to hold
as property; to have a legal or rightful title to; to have;
to possess.’’ Black’s Law Dictionary (6th Ed. 1990) p.
1105. Webster’s Third New International Dictionary
similarly defined this term as ‘‘to have or hold as prop-
erty or appurtenance: have a rightful title to, whether
legal or natural: possess.’’ Webster’s Third New Interna-
tional Dictionary (1991) p. 1612.
However, our inquiry does not end here because the
phrase ‘‘owned by’’ has taken on a particular meaning
in the context of shellfishing grounds located below
the mean high watermark, which are subject to the
public trust doctrine. See State v. Sargent & Co., 45
Conn. 358, 372 (1877). The public trust doctrine is a
legal doctrine that controls the nature of legal title to
and ownership of submerged lands of this kind. See,
e.g., Leydon v. Greenwich, 257 Conn. 318, 332 n.17, 777
A.2d 552 (2001). Therefore, interpreting the meaning of
the phrase ‘‘owned by’’ in § 88-8 requires us to look to
a range of legal sources that explain the contours of
Connecticut’s public trust doctrine.
The public trust doctrine evolved from English com-
mon law. At common law, the king, ‘‘as parens patriae,
held the title to the soil under the sea between high
and low [watermark]; he held it not for his own benefit
but for his subjects at large . . . he held it in trust for
public uses . . . the most important of which are those
of fishing and navigation.’’ State v. Sargent & Co., supra,45 Conn. 372. In Connecticut, it has been settled for
centuries that ‘‘the public, representing the former title
of the king, is the owner in fee of such flats up to high
[watermark] . . . .’’ Simons v. French, 25 Conn. 346,
352 (1856). These lands are held in trust for the public
by the state legislature. See Rowe v. Smith, 48 Conn.
444, 447 (1880).
Title to shellfishing grounds, as land subject to the
public trust doctrine, is composed of two parts: the
private rights and the public rights. ‘‘The ownership of
the soil, analogous to the ownership of dry land, was
regarded as [a private right], and was vested in the
crown. But the right to use and control both the land
and water was deemed a [public right], and was vested
in parliament. . . . In this country the state has suc-
ceeded to all the rights of both crown and parliament
in the navigable waters and the soil under them, and
here the [private rights] and the [public rights] are both
vested in the state.’’ (Internal quotation marks omitted.)
Illinois Central Railroad Co. v. Illinois, 146 U.S. 387,
466, 13 S. Ct. 110, 36 L. Ed. 1018 (1892) (Shiras, J.,
dissenting); see Lane v. Board of Harbor Commission-
ers, 70 Conn. 685, 694–95, 40 A. 1058 (1898).
The public trust doctrine allows the state, through
the legislature, to grant the private rights to these
grounds to private individuals or other entities. See
Lovejoy v. Norwalk, 112 Conn. 199, 212, 152 A. 210(1930). ‘‘In Connecticut, the title to the soil underneath
the waters of the marginal sea, below [high watermark]
. . . is in the state as trustee for the public, subject
only to navigation, except as the title may be affected
by lawfully acquired privileges or franchises of littoral
proprietors or others, such as shellfishermen, who by
statute may acquire, by lease or perpetual franchise,
the exclusive right to plant, cultivate and harvest shell-
fish on designated grounds.’’ State v. Hooper, 3 Conn.
Cir. 143, 148–49, 209 A.2d 539 (1965).
Although the legislature always retains ultimate
responsibility for lands subject to the public trust doc-
trine, it may delegate authority to manage these lands
to designees, including municipalities. State v. Sargent
& Co., supra, 45 Conn. 373. For example, the legislature
may delegate directly to town selectmen authority to make
grants of private rights. See General Statutes (1902 Rev.)
§ 3261 (‘‘[t]he selectmen of East Haven shall have exclu-
sive authority to designate, for the planting and cultiva-
tion of oysters thereon . . . the grounds covered by the
navigable waters’’). The legislature also may delegate
to municipalities authority to create a shellfish commis-
sion, which may then receive a delegation of authority
from the state. For example, § 26-266 (a) gives ‘‘charge
of all the . . . shellfish grounds lying in [Branford]’’ to
the ‘‘selectmen . . . or shellfish commission,’’ leaving
it to the defendant to decide whether to create a com-
mission.
Whether directly or through a designee, such as a
municipality, the state historically has chosen to make
perpetual grants, or perpetual franchises, of the private
rights to shellfishing grounds. These grants convey legal
title via written instrument and are recorded in the
municipality’s land records. See General Statutes (1887
Rev.) § 2317 (‘‘[The Board of Commissioners of Shell-
fisheries] shall . . . be empowered, in the name and
in behalf of the State, to grant by written instruments,
for the purpose of planting and cultivating shell-fish,
perpetual franchises in . . . undesignated grounds
. . . . [A]ll such grants . . . shall also be recorded in
the town clerk’s office . . . .’’). The grants, once made,
similarly can be transferred by quitclaim deed. For
example, in Ball v. Branford, 142 Conn. 13, 110 A.2d
459 (1954), this court explained how ‘‘the plaintiff
obtained, by quitclaim deed, the rights in numerous
oyster lots then owned by the Stony Creek Oyster Com-
pany, a [company] that had been in the business of
planting and cultivating oysters since 1870. During the
course of its long existence this [company] had from
time to time bought from others various oyster grants.’’
Id., 15.
The recipients of these state grants of private rights
are considered the ‘‘owners’’ of the shellfishing grounds.
See, e.g., General Statutes § 26-196 (‘‘the owner or own-
ers of the adjoining grounds’’); General Statutes § 26-207
(‘‘[a]ny owner of shellfish grounds . . . lying within the
exclusive jurisdiction of the state’’); Lovejoy v. Norwalk,
supra, 112 Conn. 200 (preliminary statement of facts
and procedural history) (‘‘[t]he plaintiff is the owner of
oyster grounds situated under the navigable waters of
[the] Long Island Sound’’); White v. Petty, 57 Conn. 576,
577, 18 A. 253 (1889) (‘‘[t]he complainant alleges that
she is the owner of various oyster lots in the town of
Darien’’). Although a recipient of a state grant of private
rights is deemed the ‘‘owner,’’ because of the public
trust doctrine, ownership is limited to the private rights
to the shellfishing grounds. This is because, even when
the private rights have been granted, the public retains
its rights, which remain held in trust by the state. ‘‘The
control of the state for the purposes of the trust can
never be lost, except as to such parcels as are used in
promoting the interests of the public therein, or can be
disposed of without any substantial impairment of the
public interest in the lands and waters remaining.’’ Illi-
nois Central Railroad Co. v. Illinois, supra, 146 U.S.
453. Shellfishing grounds subject to the public trust
doctrine ‘‘cannot be disposed of to the detriment of
the public interest.’’ Lovejoy v. Norwalk, supra, 205.
Accordingly, any ownership right in shellfishing
grounds is limited in that it cannot interfere with the
public rights. Id.; see also Illinois Central Railroad Co.
v. Illinois, supra, 453.
Thus, our prior case law regarding the public trust
doctrine makes clear that ownership of shellfishing
grounds means holding legal title to the exclusive right
to plant, cultivate and harvest shellfish on a specified
lot. This title may be acquired by direct grant from the
state or its designee, or by transfer from the previous
owner of the private rights to the shellfishing grounds.
Because of the public trust doctrine, the state’s inability
to transfer the public rights to these grounds means
that ‘‘ownership’’ in the context of shellfishing grounds
cannot mean fee simple absolute ownership.5 See Love-
joy v. Norwalk, supra, 112 Conn. 205.
When the private rights to shellfishing grounds have
not been granted, then both the public rights and the
private rights to those grounds remain owned by the
people of Connecticut, held in trust by the state. See
Rowe v. Smith, supra, 48 Conn. 447 (‘‘[In] the people
of the state . . . remains the proprietorship of fisher-
ies, shell and floating, in its navigable waters. Towns
have no ownership in or control over them. The legisla-
ture alone can create an individual proprietorship in
them.’’). When ownership of the private rights to shell-
fishing grounds is retained by the people, held in trust
by the state, the legislature has the authority to license
or lease these grounds to private individuals or entities.
In the present case, the people of Connecticut are the
licensors or lessors of the private rights, and the license
or lease is executed by the state or its designee, on
behalf of the people. As with the authority to grant
ownership of shellfishing grounds, which we discussed
previously, the legislature may delegate the authority
to license or lease shellfishing grounds to a state agency
or a municipality without conveying an ownership inter-
est to that designee. For example, § 26-266 (a) estab-
lishes that, in Branford, the state has delegated ‘‘charge
of all the . . . shellfish grounds . . . not granted to
others’’ to the ‘‘selectmen . . . or shellfish commission
. . . .’’ When shellfishing grounds are leased or licensed
rather than granted, the people of Connecticut are the
licensors or lessors of the private rights, and the license
or lease is executed by the state or its designee on the
people’s behalf.
Thus, under the public trust doctrine, shellfishing
grounds are ‘‘owned by’’ whoever has been granted the
private rights to those grounds, although to maintain
the public’s rights to these lands under that doctrine,
the private rights are limited. If no one has been granted
these private rights, then the people of Connecticut
remain the owners of the grounds, although the state
or its designee, including a municipality or commission,
may lease or license the grounds to private individuals.
Shellfishing grounds, however, are not ‘‘owned by’’ a
municipality in the absence of a granting of private
rights, even if the legislature enables a municipality to
lease or license shellfishing grounds located within its
borders. See Rowe v. Smith, supra, 48 Conn. 447.
In light of this case law, we return to the language
of § 88-8, which requires the approval of the selectmen
only for the ‘‘lease, license or transfer’’ of shellfishing
grounds ‘‘owned by . . . Branford . . . .’’ Under the
particular, technical definition of the phrase ‘‘owned
by,’’ established by our case law regarding the public
trust doctrine, the defendant owns lot 511 only if it held
title to a grant of the private rights to the lot. Thus,
under the clear and unambiguous language of the ordi-
nance, the selectmen had authority to approve the leas-
ing of lot 511 only if the defendant had been granted
the private rights over lot 511. Because the defendant
offered no evidence regarding whether it had been
granted the private rights to lot 511, there remained a
genuine issue of material fact as to whether lot 511 was
‘‘owned by’’ the defendant, and, thus, the trial court
improperly granted summary judgment in the defen-
dant’s favor.
Nevertheless, the defendant contends that the phrase
‘‘shellfishing grounds owned by . . . Branford’’ within
§ 88-8 must refer to all ‘‘shellfishing grounds for which
the [defendant] controls the proprietary right to culti-
vate and harvest shellfish,’’ which, the defendant
argues, is the same as ‘‘shellfish grounds lying in [Bran-
ford]’’ under § 26-266 (a). This interpretation is unrea-
sonable. To interpret the word ‘‘own’’ to mean ‘‘control’’
is contrary to its plain meaning, both under its diction-
ary definition and our case law discussing the particular
meaning of the word under the public trust doctrine.
The defendant’s only rationale for its desired interpreta-
tion appears to be that the term ‘‘owned’’ ‘‘cannot be
reasonably construed to mean ownership of the under-
lying fee interest.’’ While we agree with the defendant
about what the word ‘‘owned’’ does not mean; see foot-
note 4 of this opinion; we cannot agree that we must
therefore adopt the defendant’s proffered alternative
definition, ‘‘control.’’ We have established that to ‘‘own’’
shellfishing grounds means to hold legal title to the
private rights to those grounds. By contrast, ‘‘control’’
is defined as the ‘‘[p]ower or authority to manage, direct,
superintend, restrict, regulate, govern, administer, or
oversee.’’ Black’s Law Dictionary (6th Ed. 1990) p. 329.
These definitions clearly are distinct. Here, ‘‘control of
the proprietary right to harvest and cultivate shellfish’’
refers to the authority—delegated to the defendant by
the state—to manage and direct the license, lease, or
grant of shellfishing grounds on the state’s behalf, not
to ownership of the private rights to the shellfishing
grounds themselves.
The defendant has not met its burden of establishing
that it owns lot 511, as § 88-8 requires, because it
advanced no evidence or documentation establishing
that it has been granted the private rights to lot 511.
On remand, evidence of ownership, to the extent neces-
sary, on the basis of the claims raised and litigated
by the parties, might include a written instrument—a
quitclaim deed, for example—listing the defendant as
the owner. Written instruments are required for the
transfer of an ownership interest in shellfishing grounds
under General Statutes § 26-249.6 Evidence of owner-
ship also could include evidence that a grant in the
defendant’s name was recorded in the town’s land
records or oyster book, as required by General Statutes
§ 26-243 and its predecessors.7 Evidence that the defen-
dant does not own lot 511, on the other hand, might
include the defendant’s bed numbering system, as con-
tained in this record, which uses different numbers for
privately granted beds and lots available for lease by
the commission.
We recognize that, on remand, the defendant might
be unable to prove that it owns lot 511, that the court
might ultimately resolve this dispute on other grounds
or that, to resolve this dispute, it might become neces-
sary to engage in further statutory construction of § 26-
266 or §§ 88-3 and 88-4 of the code. For example, if the
defendant does not own lot 511, the trial court might
need to determine whether § 88-3 or § 88-4 actually
authorizes the commission to lease shellfish beds not
owned by the town. The trial court might also need
to determine whether the ordinance divides authority
between the commission and the selectmen, and, if so,
whether that division conforms with the language of
§ 26-266 (a), which gives charge of the shellfish beds to
the ‘‘selectmen . . . or shellfish commission.’’ Finally,
regardless of whether the defendant proves that it owns
lot 511, the trial court might need to determine whether
§ 26-266 applies at all, as discussed in footnote 3 of this
opinion. We do not reach these issues here because the
plain meaning of ‘‘owned by’’ in § 88-8 is dispositive of
the issue before us, namely, whether the trial court
properly granted summary judgment in favor of the
defendant.
Because we conclude that there is a genuine issue
of material fact regarding whether lot 511 was ‘‘owned
by’’ the defendant and, thus, who had authority to lease
lot 511 under § 88-8 of the code, we conclude that the
trial court improperly granted summary judgment in
favor of the defendant.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** July 29, 2020, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Connecticut Department of Agriculture, Shellfish Industry Profile and
Economic Impact, available at https://portal.ct.gov/DOAG/Aquaculture1/
Aquaculture/Connecticut-Shellfish-Industry-Profile (last visited July 29, 2020).
2
General Statutes § 26-266 (a) provides in relevant part: ‘‘The selectmen
of the town of Branford or shellfish commission established in accordance
with section 26-257a shall have charge of all the shellfisheries and shell and
shellfish grounds lying in said town not granted to others and not under
the jurisdiction of the Commissioner of Agriculture . . . .’’
3
Alternatively, the plaintiffs argue that, even if § 88-8 applies to lot 511,
the shellfishing ground at issue, and the defendant therefore retains authority
to approve leases under the ordinance, the ordinance is invalid because it
is contrary to controlling state statutes. Specifically, the plaintiffs claim that
§ 88-8 is invalid insofar as it permanently prohibits the taking of shellfish
from certain designated areas, in violation of § 26-266. Because we conclude
that § 88-8 only authorizes the selectmen to approve leases of shellfishing
grounds to which the defendant holds legal title, we do not reach this claim.
4
We note that § 26-266 (a) applies only if lot 511 has not been ‘‘granted
to others . . . .’’ The parties do not dispute that this exception is inapplica-
ble. No evidence was offered in support of the defendant’s motion for
others . . . .’’
5
‘‘Fee simple absolute’’ is defined as ‘‘[a]n estate of indefinite or potentially
infinite duration . . . .’’ Black’s Law Dictionary (11th Ed. 2019) p. 760.
6
General Statutes § 26-249 provides in relevant part: ‘‘[A]ny place lawfully
designated [for the cultivation of shellfish] . . . shall be transferable by
written assignment . . . .’’
7
General Statutes § 26-243 provides in relevant part: ‘‘The selectmen of
each town in which places have been designated in its navigable waters for
planting or cultivating oysters, clams or mussels shall provide a book, to
be kept by the town clerk, for recording . . . the written designation and
descriptions of the places designated and set out thereon, and all assignments
of such places. The town clerk shall . . . make an alphabetical index of
all such applications, designations and assignments, specifying the names
of the applicants and of the assignors and assignees, separately; and an
attested copy of any such application, designation or assignment, with a
certificate that it has been recorded, shall be conclusive evidence of the fact
of such record and prima facie evidence of the validity of such application,
designation or assignment.’’