Buschmann v. Connecticut Siting Council

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Buschmann v. Connecticut Siting Council

MARK BUSCHMANN, TRUSTEE, ET AL. v.
CONNECTICUT SITING
COUNCIL ET AL.
(AC 48168)
Clark, Seeley and Palmer, Js.

Syllabus

The plaintiffs appealed from the Superior Court’s judgment denying their
motion to open the court’s judgment sustaining their appeal from the defen-
dant Connecticut Siting Council’s decision to approve an application for a
certificate of environmental compatibility and public need for the construc-
tion of a cell phone tower. The plaintiffs filed their motion to open after the
newly constituted council, on remand, unanimously approved the application
without holding a new public hearing. They claimed that the court abused its
discretion in denying their motion to open because the court’s memorandum
of decision did not adequately specify the manner in which the council was
to proceed on remand. Held:

The trial court did not abuse its discretion in denying the plaintiffs’ motion
to open, as the plaintiffs failed to establish a compelling reason to grant
the motion.

Argued September 10, 2025—officially released April 28, 2026

Procedural History

Appeal from a decision by the named defendant approv-
ing an application for a certificate of environmental
compatibility and public need for the construction of a
cell phone tower filed by the defendant Homeland Tow-
ers, LLC, et al., brought to the Superior Court in the
judicial district of New Britain and tried to the court,
Budzik, J.; judgment sustaining the plaintiffs’ appeal;
thereafter, the court, Budzik, J., denied the plaintiffs’
motion to open the judgment, and the plaintiffs appealed
to this court. Affirmed.
David F. Sherwood, for the appellants (plaintiffs).
Robert L. Marconi, assistant attorney general, with
whom, on the brief, was William Tong, attorney general,
for the appellee (named defendant).
Brendan M. Goodhouse, with whom was Christopher
B. Fisher, for the appellees (defendant Homeland Tow-
ers, LLC, et al.).
Buschmann v. Connecticut Siting Council

Opinion

PALMER, J. In this case involving an administrative
appeal from an adverse decision of the defendant Con-
necticut Siting Council (council), the plaintiffs, Mark
Buschmann and Jamie Buschmann, as trustees, and
Mark Buschmann, as an intervenor pursuant to General
Statutes § 22a-19,1 appeal from the decision of the trial
court, Budzik, J., denying their motion to open the judg-
ment of the court. After the court rendered judgment
sustaining the plaintiffs’ appeal from the decision of
the council approving the application of the defendants
Homeland Towers, LLC, and New Cingular Wireless PCS,
LLC, doing business as AT&T (applicants),2 for a cer-
tificate of environmental compatibility and public need
(certificate) for the construction of a cell phone tower
in New Canaan and remanded the case to the council for
further proceedings, the plaintiffs moved to open the
judgment because, they maintained, the court had not
adequately specified the manner in which the council was
to proceed on remand. We conclude that the court did
not abuse its discretion in denying the motion to open
and, consequently, we affirm the judgment of the court.
The following undisputed facts are relevant to our
resolution of this appeal. On May 6, 2022, the applicants
filed an application with the council for a certificate for
the construction and operation of a wireless telecommu-
nications tower on certain real property in New Canaan.
The plaintiffs own real property abutting the site and,
if the application were approved, they would have an
unobstructed view of the proposed 115 foot cell phone
tower, designed to resemble a pine tree. After the council
1
General Statutes § 22a-19 (a) (1) provides in relevant part: “In any
administrative . . . proceeding . . . any person . . . may intervene as a
party on the filing of a verified pleading asserting that the proceeding
or action for judicial review involves conduct which has, or which is
reasonably likely to have, the effect of unreasonably polluting, impair-
ing or destroying the public trust in the air, water or other natural
resources of the state.”
2
Cellco Partnership, doing business as Verizon Wireless, was also
named as a defendant in the plaintiffs’ complaint. Cellco Partnership,
however, did not participate in the present appeal.
Buschmann v. Connecticut Siting Council

granted the plaintiffs’ petition to participate as parties
in the application proceedings, they moved to dismiss
the application for lack of jurisdiction, claiming that
the council was not properly constituted. The council
denied the motion to dismiss.
On December 8, 2022, following a public hearing, the
council approved the application. Thereafter, the plain-
tiffs appealed from the decision of the council to the
Superior Court pursuant to General Statutes § 4-183,
claiming, inter alia, that, when the application was
approved, the council was not properly constituted in
accordance with the dictates of General Statutes (Rev.
to 2021) § 16-50j (b),3 which governs the composition
of the council’s membership. The trial court issued
a memorandum of decision on May 6, 2024, agreeing
with the plaintiffs, explaining that, under § 16-50j (b)
(4),4 no more than one of the five members of the council
appointed by the governor may have a past or present
affiliation with a utility or a utility regulator, and the
record revealed that, contrary to the requirements of §
16-50j (b) (4), two of the members who participated in
the decision of the council approving the application
had past affiliations with a utility or a utility regulator.
Accordingly, the court concluded that “the council was
not properly constituted when it acted on the applica-
tion. The [council] was therefore without statutory
authority to act on the application, and the [council’s]
decision approving the application is invalid.” The court
sustained the plaintiffs’ appeal and remanded the matter
“back to the council for proceedings consistent with this
memorandum of decision and § 16-50j (b).”
3
In this opinion, all references to § 16-50j are to the 2021 revision
of the statute.
4
At that time, General Statutes (Rev. to 2021) § 16-50j (b) (4) pro-
vided in relevant part that the council shall consist of, inter alia, “five
members of the public, to be appointed by the Governor, at least two
of whom shall be experienced in the field of ecology, and not more than
one of whom shall have affiliation, past or present, with any utility or
governmental utility regulatory agency . . . .”
Although applicable to the present case, that provision of § 16-50j (b)
has since been amended. See Public Acts 2024, No. 24-144, § 2.
Buschmann v. Connecticut Siting Council

On May 20, 2024, the plaintiffs filed a motion for
clarification. In support of the motion, the plaintiffs
explained that they had received a memorandum dated
May 17, 2024, from the council’s executive director
indicating that the council, newly constituted in accor-
dance with the requirements of § 16-50j (b) (4), intended
to vote on the application without first conducting a
new public hearing. The plaintiffs requested “that the
court clarify its [May 6, 2024] decision to confirm that,
if the . . . applicants so request, a new hearing on the
application which is the subject of this [administrative]
appeal is to held by a properly constituted . . . council.”5
On June 18, 2024, the court denied the motion, stating
as follows. “The court has no authority to issue orders
based on contingent future events that have not occurred
and may never occur. To the extent the moving parties
believe their rights are violated by any future action by
the defendant [council], they may take any action oth-
erwise authorized by law. The court’s memorandum of
decision is otherwise clear on its face.”
On August 5, 2024, the plaintiffs filed a motion to
open the court’s May 6, 2024 decision. In the motion,
the plaintiffs informed the court that, on August 1,
2024, the council, on remand, unanimously approved
the application without holding a new public hearing.
The plaintiffs further stated that the court’s decision
“requires not only that the . . . council hold another
vote on the . . . applicants’ certificate application, but
also that it conduct a new public hearing on the applica-
tion with a properly constituted membership” because
“[a]n improperly constituted siting council is improperly
constituted to hold a public hearing and take evidence
in a contested case just as it is improperly constituted
to make a decision and issue an order.” On the basis of
this argument, the plaintiffs requested that the court
5
The plaintiffs’ motion for clarification also requested “that the court
expedite any hearing on this motion because the defendant . . . council’s
May [6], 2024 memorandum which prompted this motion suggests that
the . . . council’s vote to reaffirm its decision is imminent, after which
the plaintiffs’ only recourse will be to file a new appeal.”
Buschmann v. Connecticut Siting Council

open the judgment, vacate the council’s August 1, 2024
decision granting the application, and order that the
council conduct a new public hearing before voting on
the application.
Following a hearing, the court denied the plaintiffs’
motion to open on October 31, 2024. At the hearing, the
court explained its reasoning as follows. “What hap-
pened after, or what ought to happen after I remanded
back on that basis, I did not rule upon. That issue was
not presented to me. I didn’t rule upon it. To be clear,
and I don’t want to put any additional gloss on the four
corners of my decision, but, as I said, to the extent that
the plaintiffs are trying to reopen the case because the
council violated my remand order, I’m going to deny that
relief because I did not require the council to do anything
in particular in the remand. Whether or not what the
council did, in fact, do on remand I express no opinion
on as to whether or not that complied with whatever law
or procedures may apply in this circumstance. That is
not something that I considered as part of my original
memorandum [of] decision and I—particularly, if there’s
a second appeal, which I can only presume may come to
me, as I said, I express no opinion as to whether or not
whatever occurred before the [council] after things got
down to the [council] complied with whatever law may
apply to those circumstances. Candidly, I don’t know. I
will tell you that’s one reason I didn’t put any additional
orders on, because I didn’t know what the next steps
ought to be . . . .” This appeal followed.6
On appeal, the plaintiffs claim that “[t]he court’s
[memorandum of] decision requires not only that the . . .
6
After the council approved the applicants’ certificate application on
August 1, 2024, without holding a new hearing, the plaintiffs filed a
second administrative appeal with the Surperior Court challenging the
propriety of that approval, claiming, among other things, that the newly
constituted council was required to hold a new hearing before voting
on the application. On October 16, 2025, the court, Welch, J., issued
a memorandum of decision rejecting the plaintiffs’ claims, including
their claim that they were entitled to a new hearing, and dismissed the
appeal. The plaintiffs appealed from the judgment of dismissal to this
court, and that appeal is currently pending. Because the plaintiffs’
Buschmann v. Connecticut Siting Council

council hold another vote on the defendant applicants’
certificate application, but also that it conduct a new pub-
lic hearing on the application with a properly constituted
membership.” More specifically, the plaintiffs argue
that a new public hearing is a “necessary consequence”
of the court’s remand of the case to a newly constituted
council because any action by the council as previously
constituted, including the public hearing previously
conducted by the council, was “void ab initio and without
legal effect.”
Before addressing the plaintiff’s argument, we briefly
set forth the well settled principles that govern appel-
late review of a denial of a motion to open. “Within four
months of the date of the original judgment, Practice
Book [§ 17-4] vests discretion in the trial court to deter-
mine whether there is good and compelling reason for its
modification or vacation. . . . The exercise of equitable
authority is vested in the discretion of the trial court and
is subject only to limited review on appeal. . . . We do not
undertake plenary review of the merits of a decision of
the trial court to grant or to deny a motion to open a judg-
ment. . . . In an appeal from a denial of a motion to open
a judgment, our review is limited to the issue of whether
the trial court has acted unreasonably and in clear abuse
of its discretion. . . . In determining whether the trial
court abused its discretion, this court must make every
reasonable presumption in favor of its action. . . . The
manner in which [this] discretion is exercised will not be
disturbed so long as the court could reasonably conclude
motion to open in their first administrative appeal seeks a decision on
an issue that already has been decided in their second administrative
appeal, the law of the case doctrine, although not raised by the parties,
is implicated. See, e.g., Total Recycling Services of Connecticut, Inc.
v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 322, 63
A.3d 896 (2013) (“The law of the case doctrine expresses the practice of
judges generally to refuse to reopen what [already] has been decided. . . .
New pleadings intended to raise again a question of law which has been
already presented on the record and determined adversely to the pleader
are not to be favored.” (Internal quotation marks omitted.)). In view
of our conclusion rejecting the plaintiffs’ claim with respect to their
motion to open, however, we need not consider the law of the case issue.
Buschmann v. Connecticut Siting Council

as it did.” (Citation omitted; internal quotation marks
omitted.) McGovern v. McGovern, 217 Conn. App. 636,
645–646, 289 A.3d 1255, cert. denied, 346 Conn. 1018,
295 A.3d 111 (2023). Applying these principles to the
plaintiffs’ claim in the present case, it is apparent that
they cannot establish that the court abused its discretion
in denying their motion to open.
First, the plaintiffs could have raised the issue of a new
public hearing prior to the issuance of the memorandum
of decision, but they failed to do so, raising it for the first
time in their motion for clarification. For that reason, the
court did not address the issue and, as the court explained
at the hearing on the motion to open, intentionally pro-
vided no direction to the council on remand except with
respect to the composition of the council. Furthermore,
upon learning that the court had not addressed the issue
in its memorandum of decision, the plaintiffs could have
challenged the adequacy of the court’s remand order on
appeal to this court, but they instead elected to file a
motion for clarification and, subsequently, the motion
to open. Finally, and significantly, the court was well
aware that the plaintiffs would be fully entitled to raise
their claim concerning the requirement of a new public
hearing in an administrative appeal from the decision of
the council following remand—a course of action that the
plaintiffs subsequently took—thereby obviating any con-
cern that the plaintiffs would not be heard on their claim
unless the motion to open was granted.7 Consequently,
7
In this regard, because the plaintiffs did not file their motion to open
within the twenty day appeal period, we will not undertake a review
of the merits of the court’s decision. “[I]t is well established in our
jurisprudence that [w]here an appeal has been taken from the denial
of a motion to open, but the appeal period has run with respect to the
underlying judgment, we have refused to entertain issues relating to
the merits of the underlying case and have limited our consideration
to whether the denial of the motion to open was proper. . . . When a
motion to open is filed more than twenty days after the judgment, the
appeal from the denial of that motion can test only whether the trial
court abused its discretion in failing to open the judgment and not
the propriety of the merits of the underlying judgment. . . . This is so
because otherwise the same issues that could have been resolved if timely
raised would nevertheless be resolved, which would, in effect, extend
Buschmann v. Connecticut Siting Council

the court acted well within its discretion in concluding
that the plaintiffs failed to establish a good reason, let
alone a compelling one, to grant the motion to open.
The judgment is affirmed.
In this opinion the other judges concurred.

the time to appeal.” (Internal quotation marks omitted.) Langewisch
v. New England Residential Services, Inc., 113 Conn. App. 290, 293,
966 A.2d 318 (2009).