### COURT OF APPEALS DECISION DATED AND FILED February 2, 2023

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2021AP1862 Cir. Ct. No. 2021CV1021 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

G REGORY A. T HOMPSON ,
P ETITIONER - A PPELLANT ,

V .
D ANE C OU NTY L AND C ONSERVATION C OMMITTEE AND D ANE C OUNTY ,
R ESPONDENTS - R ESPONDENTS .

APPEAL from an order of the circuit court for Dane County:
VALERIE BAILEY

- RIHN , Judge. Affirmed in part; reversed in part and cause
remanded with directions

.

Before Blanchard, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2021AP1862

2 ¶ 1 PER CURIAM. Gregory Thompson appeals a circuit cour t order
remand ing th is matter to the Dane Coun ty Land Conservation Committee (“the LCC”) for the L C C to explain its reasoning with respect to one of the issues that Thompson raised before the LCC , and to consider and decide an issue that Thompson raised be fore the LCC but that the LCC did not consider

. We affirm in part and reverse in part.

BACKGROUND

¶ 2 Thompson owns property (“the property”) near the intersection of Burke and Reiner Roads in the Town of Burke, in Dane County. The p roperty is located in a “shoreland” zone. 1

¶ 3 In March 2020, Thompson hired a company to remove trees , through a mulching process, that were growing on the property. Shortly after Thompson complet ed this project , Jess Starks, an erosion control specialist with the Dane County Land and Water Resources Department (“the Department”), conducted an inspection of the property and determined that Thompson’s project had resulted in “land disturbing activity

. ” 2

1 “Shoreland” is defined in pertinent part as: “[a]ll lands within

... 300 feet of the ordinary highwater mark of any navigable river or stream

.... ” D ANE C OUNTY , W IS ., O RDINANCE § 11.015(37)(a)2. (2017)

. It is not disputed that the p roperty was in a shoreland zone.

Cha pter 11 of the Dane County Ordinances was last revised on January 31, 201 7

. All references to chapter 11 are to the 2017 version.

2 “Land disturbing activity” is defined in the Dane County Ordinances as: [a]ny alteration or disturbance that may result in soil erosion, sedimentation, or change in runoff [ , ] including, but not limited to, removal of ground cover, grading, excavating, or filling of land. Tillage of existing agricultural fields is not considered a land disturbing activity, provided it is done in conformance with a site

-No. 2021AP1862

3 ¶ 4 As a result, Starks emailed Thompson, attaching a Notice of Violation (“the Notice”) and a Stop Work Order. The Notice stated that Thompson had “created land disturbance by grading within 300 feet of a navigable stream” without a shoreland erosion control permit, in v iolation of D ANE C OUNTY , W IS ., O RDINANCE § 11.05(3)(a)1. The Notice directed Thompson to submit, by a specified date, an after

- the

- fact shoreland erosion control permit application and related materials, including an erosion control plan stamped by a prof essional engineer , and to submit “double fees” for his failure to obtain the permit prior to beginning work on the project. See D ANE C OUNTY , W IS ., O RDINANCES §§ 11.05(3)(a), (4)(c)14

. ; 1 1.50(7)

. 3

¶ 5 Thompson responded to Starks the same day, stating that he did not grade the property and that “[a]ll [he] did was get rid of the trees.” He explained
that the company he had hired used a machine that “chips” the trees in place, leaving

an area of the pro perty that was “full of mulch.” Thompson conceded that there may be “some machine tracks that may have roughed up the soil[,]” particularly where the ground was wet, and that he could “throw some seed” on those areas. Starks replied, stating that Thompso n’s activity triggers the permit requirement.

specific farm conservation plan approved by the Director [of the Department].

D ANE C OUNTY , W IS ., O RDINANCE 11.015(19).

3 The Notice also informed Thompson that he was required to submit an after

- the

- fact stormwater management p ermit application pursuant to Chapter 14 of the Dane County Ordinances. Thompson was also ultimately cited for a violation of D ANE C OUNTY , W IS

. , O RDINANCE § 14.45(1) (2019), which requires obtaining an erosion control permit for “ [ l ] and disturbing activit y in excess of 4,000 square feet.” (This provision was revised and renumbered to D ANE C OUNTY , W IS

. , O RDINANCE § 14.06(1) (2021) after issuance of the Department’s citation; however, the pertinent language has not changed.) Because neither the circuit court nor the parties on appeal discuss the Chapter 14 violation, we likewise do not address it.No. 2021AP1862

4 When Thompson inquired about the legal basis for a permit, Starks cited the applicable ordina nces and provided the following explanation :

Basically, any activity that creates bare soil (including incidental du e to tires) in the shoreland zone qualifies for a permit. Even one square foot. This entire lot is within the shoreland zone, so any disturbance, whether accidental or not, requires a permit. This includes grubbing stumps or pulling trees

. ¶ 6 Thompson then sent photographs to Starks and requested that she meet him at the property for a site visit. He stated that he had visited the property and found “that there is no bare ground and that as expected the trees were simply mulched” and that the “entire site is covered with 2

- 3 inches of mulch.” In response,
Starks stated that the Department was not “meeting with folks on site at this time”
and that she and a supervisor , Jeremy Balousek, had reviewed the photos and concluded that “there is undeniably disturbed soil on this site , [which] creates the
need for an after

- the

- fact shoreland erosion control permit.” She stated that “there is no grey area” and reiterated the Department’s position that Thompson needed to file a permit application by the previously stated deadline.

¶ 7 A few days later, Thompson submitted a “s implified ” e rosion control permit application and checklist pursuant to D ANE C OUNTY , W IS ., O RDINANCE § 11.05(2)(b). Under t his provision , the Department may “waive requirements for an engineer’s stamp and allow for the use of a simplified erosion control checklist” if, among other criteria, the “[t]otal area of soil disturbance will not exceed 1,000
square feet.” Sec. 11.05(2)(b) 5. Starks informed Thompson that the simplified
p ermit application was insufficient and requir ed him to submit the application required in the Notice

. Thompson did not submit the requ ested application and was
issued a citation for a violation of § 11.05(3)(a). On May 22, 202 0 , Thom pson filedNo. 2021AP1862

5 an appeal with the LCC pursuant to D ANE C OUNTY , W IS ., O RDINANCE § 11.99(4)(a).

¶ 8 The LCC held a hearing on Thompson’s appeal (“the evidentiary hearing”)

. Starks did not testify at the evidentiary hearing and the record does not indicate that her inspection report was submitted as evidence. Balousek testified, stating that he believed it was the tire tracks left in the soil from the machine ry used for Thompson’s project

— and not the tree mulchi ng itself

— that was deemed land

disturbing activity. The LCC issued a decision upholding the Department’s determination that Thompson’s project constitute d land

- disturbing activity that requir e d the shoreland erosion control permit requested by the Department

. The decision did not spec ify what constituted the land

- disturbing activity

— whether it
was the creation of tire tracks in the soil , the tree mulching, or some combination of
the two

. Thompson subsequently filed a petition for a writ of certiorari in Dane County Circuit Court seeki ng judicial review of the LCC’s decision.

¶ 9 On February 24, 2021, Dane County Circuit Court Judge David Conway issued a decision remanding the matter to the LCC for further proceedings
for two reasons : (1) the LCC did not adequately ex plain its grounds for upholding
the determination that land

- disturbing activity had taken place; and (2) the LCC did not address Thompson’s alternative argument that, even if the project constitute d
land

- disturbing activity, the disturbed area did not exce ed 1,000 square feet and Thompson was therefore entitled to the simplified permit application he had
submitted rather than the full

- scale permit application required by the Department
for land

- disturbing activity exceeding 2,000 sq uare feet. In remanding the case to the LCC, Judge Conway prohibited the LCC from supplement ing the administrative
record with new evidence.No. 2021AP1862

6 ¶ 10 Following Judge Conway’s decision, the LCC held a second hearing on remand (“the remand hearing”). At t he remand hearing, corporation counsel advised the LCC regarding Judge Conway’s decision, noting that “nothing outside the record” would be permitted at the hearing. Prior to the remand hearing, the Department had submitted to the LCC proposed F indings of F act and C onclusions
of L aw (“Proposed Findings”). The LCC chairperson stated that the LCC would go through the Proposed Findings point by point. Thompson objected to the Proposed Findings and argued that the document was a supplementation to the record , in violation of Judge Conway’s order. The chairperson noted Thompson’s objection and proceeded to le a d the LCC through its discussion of the Proposed Findings, which the LCC ultimately adopted. 4

¶ 11 The LCC issued a written decision, c oncluding that Thompson “engaged in land disturbing activity requiring a shoreland erosion permit” and that “the land disturbance exceeded the 2,000 square feet necessary to require a shoreland erosion control permit as required by [the Department].”

¶ 12 Thompson filed a second certiorari action in the circuit court, challenging the LCC’s final decision. Thompson argued that: (1) the LCC improperly considered the Proposed Findings, in violation of Judge Conway’s order and Thompson’s due process rights; (2) the LCC again failed to explain its basis for concluding that Thompson’s project constituted land

- disturbing activity; and (3) the evidence was insufficient to support the LCC’s conclusion that the area of any land

-

4 The LCC’s subseq

uent written decision states that “the LCC voted unanimously to adopt the [Department’s] findings of fact” and to deny Thompson’s appeal. However , although the chairperson moved to adopt the Proposed Findings at the remand hearing and the motion was
secon ded, the record reflects that there was no subsequent vote by the LCC to actually adopt them

. Despite the absence of a vote , Thompson does not dispute on appeal that the LCC adopted the Proposed Findings, which are incorporated into its final decision.No. 2021AP1862

7 disturbing activity e xceed s the square

- footage requirement that would trigger the
full

- scale permitting process required by the Department

. ¶ 13 Dane County Circuit Court Judge Valerie Bailey

- Rihn issued a
written decision that again remanded the case to the LCC . The court rejected Thompson’s argument that the LCC improperly considered the Department’s Proposed Findings , but conclud ed that “the LCC denied [Thompson] due process when it failed, for a second time, to adequat ely explain the reasons for rejecting his appeal.” The court required the LCC to “ ‘ sufficiently articulat[e] its reasons for upholding the Department’s finding of ‘land disturbing activity’ without supplementing the record.’” The court did not specifical ly address Thompson’s argument that the evidence related to square footage was insufficient, and instead appears to have construed Thompson as arguing that the LCC did not adequately explain its rationale on either its land

- disturbing or its square

- footage
determinations. 5 Quoting Judge Conway’s prior decision, Judge Bailey

- Rihn requir ed the LCC to “‘deliberat[e] and vot[e] upon whether the Department correctly found that [Thompson’s] soil disturbance exceeded the requisite square footage to trigger a full

- scale permit application’” based on the existing record and

to “ ‘ clearly state its rationale.’” Like Judge Conway, Judge Bailey

- Rihn “‘expresse [ d ] no view on whether the record evidence is sufficient to support any

5 Judge Bailey

- Rihn characterized Thompson’s argum ents as follows: “First, that the L C C gave itself a chance to ‘shore up the record ’ when it considered the Propo sed F indings on remand. Secon d , that even if the LCC pr operly considered the Proposed F indi ngs , the Final Decision still failed to explain why Thompson had enga g ed in land dist urbing activ ity of a sufficiently large
area. ” At another point, the court summarized what the court described as Thompson’s “ second argument ” as follows: “Thompson’s second argument is that the LCC acted arbitrarily when it failed to explain the r e asons why mulching trees constitutes land disturbing activ it y on an area exceeding 2,000 sq. ft.”No. 2021AP1862

8 particular outcome on these issues.’” Thompson appeals this second certiorari order remanding the case to the LCC.

DISCUSSION

I. Standard

s Governing Certiorari Review
¶ 14 On appeal from a judgment issued by a circuit court on certiorari, we review the actions of the LCC, not the court. See State ex. rel. Anderson v. Town of Newbold , 2019 WI App 59, ¶7, 389 Wis. 2d 309, 935 N.W.2d 856. “The purpose of certiorari judicial review of municipal and administrative decisions is t o ensure procedural due process.” Hartland Sportsmen’s Club, Inc. v. City of Delafield , 2020 WI App 44, ¶12, 393 Wis. 2d 496, 947 N.W.2d 214. In “conducting common law certiorari review, a court reviews the record compiled by the municipality and
does no t take any additional evidence on the merits of the decision. ” Ottman v. Town of Primrose , 2011 WI 18, ¶35, 332 Wis. 2d 3, 796 N.W.2d 411. The court’s review is limited to the following four inquiries:

(1) whether the municipality ke pt within its jurisd iction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its wi ll and not its judgment; and (4) whether the evidence was such that it might reasonably make the order o r determination in question. Id.

¶ 15 A certiorari court has three options for resolving a certiorari action : “affirm, reverse, or remand for further proceedings consistent with the court’s decision.” Hartland , 393 Wis. 2d 496, ¶12. “Remand to the municipality or administrative tribunal for further hearings is appropriate where (1) the defect in the proceedings is one that can be cured, but (2) supplementation of the record by the government decision maker with new evidenc e or to assert new grounds is notNo. 2021AP1862

9 permitted.” Id. , ¶14 ( emphasis omitted ). Furthermore, “‘[o]utright reversal is appropriate when the due process violation cannot be cured on remand,’ which includes cases in which the evidence failed to support the gover nment’s decision.” Id. (alteration in original) (quoting Guerrero v. City of Kenosha Hous. Auth. , 2011 WI App 138, ¶12 n.5, 337 Wis. 2d 484, 805 N.W.2d 127).

II. Proposed Findings

¶ 16 Thompson first argues that, by considering the Propose d Findings at the remand hearing , the LCC violated Judge Conway’s remand order prohibiting
the L C C from supplementing the record with new evidence. He argues that such consideration also violated his right to due process by allowing the Department to impr operly “shore up” its case , and that reversal on all issues is therefore warranted

. See Hartland , 393 Wis. 2d 496 , ¶ ¶ 14

- 16 (“Affording a government decision maker a ‘second kick at the cat’ on remand by supplementing the record with new evidence
or new al legations violates the standar ds of due process and fair play ” and is

“ ‘ analogous to allowing a second trial to ‘shore up’ the record to support the judgment. ’ ” ( quoted source omitted) )

. ¶ 17 We conclude that the LCC’s consideration of the Proposed Findings violated neither Judge Conway’s remand order nor Thompson’s due process rights

. The Proposed Findings were not “new evidence” supplement ing the record as prohibited by Hartland ; rather, they purport ed to summarize evidence that was
alre ady in the record. In fact, the LCC’s use of t he Proposed Findings appears to have been an attempt to comply with Judge Conway’s remand order direct ing the LCC to “sufficiently articulat[e] its reasons” for its decision , preferably, by “stat[ing] its rati onale in a written decision , approved by all supporting members , rather than by on

- record statements.” W e note that both the LCC chairperson andNo. 2021AP1862

10 corporation counsel repeatedly emphasized during the remand hearing that supplementation of the record with ne w evidence was not permitted. C orporation
counsel also made clear that the Proposed Findings were just that: proposed . T he role of the LCC was to determine whether the Proposed Findings were supported by the evidence of record and whether they should be adopted, rejected, or modified.

¶ 18 Thompson argues that the Proposed Findings are supplemental evidence because some of the findings are not supported by evidence in the record.
But w hether the findings are suppo rted by the evidence is an issue separate from whether the Proposed Findings constitute new evidence: lack of support in the
record does not make the Proposed Findings themselves evidence.

¶ 19 Thompson advances no authority or persuasive argument for the proposition that the Proposed Findings document itself constitutes supplemental
evidence

. Because we conclude that the Proposed Findings document is not new
evidence , we further conclude that its consideration by the LCC did not violate Judge Conway’s order or Thompson’s due process rights.

¶ 20 Finally, to the extent Thompson suggests that he was not provided
with notice of the Proposed Findings and did not have an opportunity to respond,
the record belies such claims. A s noted at the remand hearing, the Proposed Findings were incorporated into the agenda. The agenda was publicly noticed
earlier that week and Thompson admitted at the hearing to being “fully aware” of it. Thompson was free to submit his own proposed findi ngs prior to the hearing but
did not do so. Further, d uring the remand hearing h e was specifically informed by corporation counsel that, like the LCC, he could refute the Department’s Proposed Findings or propose his own findings based on the existing rec ord. Indeed, Thompson did in fact avail himself of the opportunity to challenge the ProposedNo. 2021AP1862

11 Findings, disputing various findings proposed, including those related to square footage.

¶ 21 In sum, we agree with Judge Bailey

- Rihn that the LCC’s consideration of the Department’s Proposed Findings did not violate Judge Conway’s order or Thompson’s right to due process.

III. Square Footage

¶ 22 Under Chapter 11 of the Dane County Ordinances , with certain exceptions not pertinen t here, a shoreland erosion control permit is required for
land

- disturbing activity of any size in a shoreland zone. See D ANE C OUNTY , W IS

. , O RDINANCES § § 11.05(3)(a)1., 11.015(37) (a) 2. There are three tiers of permit applications for land

- disturbing acti vity in a shoreland zone, depending in part on the square footage of the land disturbance. The highest tier, for land

- disturbing activity exceeding 2,000 square feet, is the tier that the Department determined was applicable to Thompson’s project

. See § 11.05(4)(c). This tier requires the property owner to submit with the permit application a number of application materials, including an erosion control plan stamped by a professional engineer. See id. The
mid

- tier permit waives the requirements for an engineer’s stamp if the “[s]oil disturbance will not exceed 2,000 square feet.” S ec. 11 .05(2)(c)4. As previously mentioned, t he lowest tier, which is the least costly, allows for a simplified erosion checklist and waiver of the engineer’s stamp if the “[ t ] otal area of soil disturbance will not exceed 1,000 square feet.” Sec. 11.05(2)(b). Thompson argues that, even
if his project involve d land

- disturbing activity, he is entitled to this lowest tier permitting process because the evidence does not show th at the alleged land

disturbing activity exceed ed 1,000 square feet , which necessarily mean t that it did
not exceed the 2,000 square feet determin e d by the LCC.No. 2021AP1862

12 ¶ 23 As a preliminary matter, Thompson correctly notes that he separately
argue d to Judge Bailey

- Rihn that there was insufficient evidence to conclude that
any area allegedly disturbed exceed ed 1,000 square feet . H e points out that the

court , in Thompson’s words, “lumped” the square

- footage issue together with his argument that the LCC failed to explain why his project constitute d land

- disturbing activity. As noted in the background section above, we agree that Judge Bailey

Rihn did not address Thompson’s argument that there was insufficient evidence to

su pport the LCC’s square

- footage determination , even though Thompson raised the
evidence

- sufficiency issue with the court in the second certiorari action

. 6 Instead,
the court construed Thompson’s argument to be that the LCC did not adequately explain its ra tionale for determining that the square footage was in excess of 2,000 square feet , and the court remanded this issue to the LCC to determine the square

footage issue. However, Thompson’s argument was not that the LCC failed to explain its rationale regar ding its square

- footage determination , but rather that the evidence did not support the LCC’s conclusion that the area of any land distur b ance exceed ed 1,000 square feet. Moreover, contrary to the court’s suggestion, the LCC’s final decision did in fact c ontain its rationale for determining the square

footage issue. The question in the second certiorari proceeding, and now on appeal , is whether the record evidence supports that determination.

¶ 24 Significantly, d espite Thompson’s thorough explanation in his appellate brief as to why he believes the evidence regarding square footage is

6 Indeed, Thompson has raised this issue throughout the e nti rety of these proceedings: at both the evidentiary and remand hearings before the LCC and during both his first and second certiorari actions in circuit court.No. 2021AP1862

13 insufficient, the County 7 makes no argument that the evidence is in fact sufficient. Instead, the County’s only argument on this p oint is that this court should decline to consider Thompson’s argument regarding the sufficiency of the evidence. 8 In support, t he County relies on Bratcher v. Housing Authority of Milwaukee , 2010 WI App 97, 327 Wis. 2d 183, 787 N.W.2d 418. However, Brat cher lends no support to the County’s assertion that we should decline to consider an argument that Thompson raised in his second certiorari petition and renews on appeal.

¶ 25 In Bratcher , the Housing Authority denied Bratcher’s applicat ion for

rent al assistance and then upheld that decision in an informal review hearing. The circuit court granted Bratcher’s writ of certiorari , conclud ing that the Housing Authority did not provide Bratcher with adequate notice prior to the informal revie w hearing and that “the explanation for upholding the denial of rent assistance offered in the Hearing Officer’s written decision was deficient.” Id. , ¶9. The Housing Authority appealed and this court affirmed the circuit court , concluding that the “written notice and the written decision in [the] case ‘[fell] appallingly short of the mark.’” Id

. , ¶22 (quoting Driver v. Housing Auth

. of Racine C nty. , 2006 WI App 42, 289 Wis. 2d 727, 713 N.W.2d 670 ). We also affirmed the circui t court’s order remanding the case to the Housing Authority to give Bratcher a new hearing and to explain its decision, without supplementing the record with new evidence. Bratcher , 327 Wis. 2d 183, ¶29. In doing so, we declined to address Bratcher’s

7 The respondents in this appeal are the LCC and Dane County. For ease of reference , we refe r to the respondents as “the County

. ”

8 In the section of its brief discussing the separate issue of whether the LCC impermissibly considered the Proposed Findings, the County also states in a conclusory manner, “It is the County’s position that all of t he proposed findings are supported by the evidence in the record of the 2020 LCC hearing” (i.e., the evidentiary hearing). T he County does not assert , much less develop, an argument that responds to Thompson’s specific argument that the evidence regarding square footage is insufficient.No. 2021AP1862

14 arg ument that the re was insufficient evidence to support the denial of rent al
assistance and that the proper remedy was an outright reversal. See i d. , ¶¶30, 31.

¶ 26 The situation in Bratcher is not analogous to the situation in this case

. In Bratcher , we declined to consider Bratcher’s argument on the sufficiency of the evidence because neither party challenged the remedy of remand selected by the circuit court, and more specifically , because Bratcher “did not cross

- appeal.” See
i d. , ¶31. We therefore “reject[ed] [Bratcher’s] attempt to fashion a more favorable remedy: outright reversal of the denial of rent assistance ” to challenge the remedy selected by the circuit court. Id

. H ere, in contrast, Thompson is the appellant and
exp licitly argu es for reversal , rather than remand, on this issue. Accordingly, Bratcher does not preclude this court from considering Thompson’s argument that the evidence is insufficient to support the LCC’s square

- footage determination.

¶ 27 Because we have rejected the County’s argument based on Bratcher , and the County does not offer any response to Thompson’s specific argument that the evidence is insufficient, we conclude that the County has conceded the sufficiency of the evidence issue

. See Schlieper v. DNR , 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) ( “respondents cannot complain if propositions of appellants are taken as confessed which respond ents do not undertake to refute ” ). Thus, reversal of the LC C’s determination on this issue is required

. See Hartland , 393 Wis. 2d 496, ¶14 (reversal is appropriate in cases where the evidence fails to support the government’s decision). The County has not direct ed us to evidence
that could be sufficient that was adduced at the evide ntiary hearing , despite Thompson ’s consistent position that the evidence is insufficient

. The effect of our ruling based on the County’s implicit concession regarding the square

- footage issue is that the most the Department could have required of Thompson is the simplifiedNo. 2021AP1862

15 erosion control permit application and checklist found in D ANE C OUNTY , W IS

. , O RDINANCE § 11.05(2)(b) , which Thompson submitted after the fact

.

IV. R emand on Issue of L and

- Disturbing Activity

¶ 28 As previously noted, Judge Bailey

- Rihn remanded this matter to the
LCC for the LCC to explain its reasoning for concluding that Thompson’s project
resulted in land

- disturbing activity. On appeal, Thompson does not argue (as he does with respect to the squ are

- footage issue) that the evidence i s insufficient to support the LCC’s determination that land

- disturbing activity occurred. Rather, his only argument is that a second remand to cure the defect that should have been
corrected by the LCC at the remand h earing “prejudices” him and “would violate his due process right to a fair review.” Thompson argues that he has “spent time, money and substantial effort to bring the first certiorari action only to have the LCC
be so non

- responsive to [the] court’s speci fic instruction , that a second certiorari review was necessary for the same issue.” He contends that “[a]nother certiorari review to enforce the previous certiorari order is not normal, expected, or procedurally fair” and that “reversal is the only remedy .”

¶ 29 Thomson’s frustration is understandable

. But we must nevertheless reject his argument that reversal is required because he provides no authority that supports this position

. See State v. Pettit , 171 Wis. 2d 627, 646

- 47, 492 N.W.2 d 633 (Ct. App. 1992) (undeveloped legal arguments and “[a]rguments unsupported by references to legal authority will not be considered”). Thompson quotes Hartland , 393 Wis. 2d 496, ¶22, for the proposition that the LCC should not be allowed a “second kic k at the cat.” However, as previously noted, Hartland prohibited supplementing the record on remand with new evidence or new allegations. See id. , ¶16 (“ Affording a government decision maker a ‘second kickNo. 2021AP1862

16 at the cat’ on remand by supplementing the record with new evidence or new allegations violates the standard s of due process and fair play.” (emphasis added )). Here, Judge Bailey

- Rihn, echoing the position taken by Judge Conway, made clear that on remand, the record sh ould not be supplemented with additional evidence or arguments. Thus, Hartland does not prohibit the remedy ordered by Judge Bailey

Rihn.

¶ 30 Because we reject the only argument Thompson advances with respect to the allegedly land

- disturbing activity issue, we affirm Judge Bailey

Rihn’s order remanding the matter to the LCC to explain its rationale for determining that Thompson caused land

- disturbing activity. In doing so, we further
observe that , while Thompson has prevailed on the square

- footage issue , remand to the LCC is nevertheless appropriate for the L C C to explain its decision as to whether Thompson caused land

- disturbing activity on any amount of the property

. Although

our determination on the square

- footage issue means that Thompson would be
entitled to a simplified erosion control permitting process for any land

- disturbing activity , if it is ultimately determined that he did not cause such activity, he presumably did not need to apply for a ny permit.

CONCLUSION

¶ 31 For the foregoing reasons , we remand this matter to the circuit court
with directions to enter an order consistent with this opinion . In this order, the
circuit court should remand the matter to the LCC for the LCC to issue a decision
that : (1) explain s its r eason ing , based on t he evidence presented at the evidentiary hearing, for concluding that land

- disturbing activity occurred; and (2) concludes,No. 2021AP1862

17 based on the County’s concession, that any land

- disturbing activity did not exceed 1,000 square feet. 9

By the Court.

— Order affirmed in part ; reversed in part and cause remanded with directions

.

This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5

. (2019

- 20)

.

9 We make two observations about possible next steps in this matter. First, o n remand to the LCC, the LCC is free to revisit its conclusion that any land

- disturbing activity occurred. Second , and in the alternative, if Thompson is satisfied with the result of th is co urt’s ruling on the square

- footage issue

—

namely, that if there was land

- disturbing activity he is entitle d to rely on the simplified permit application

— he may decide to f

orego his argument that no land

- disturbing activity occurred

.