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 WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2021AP1862 Cir. Ct. No. 2021CV1021

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

GREGORY A. THOMPSON,

 PETITIONER-APPELLANT,

 V.

DANE COUNTY LAND CONSERVATION COMMITTEE

AND DANE COUNTY,

 RESPONDENTS-RESPONDENTS.

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 WIS. STAT. RULE 809.23(3). 
No. 2021AP1862

2

¶1 PER CURIAM. Gregory Thompson appeals a circuit court order 

remanding this matter to the Dane County Land Conservation Committee (“the 

LCC”) for the LCC 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 before 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 property 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 

completed 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 ....” DANE COUNTY, WIS., ORDINANCE

§ 11.015(37)(a)2. (2017). It is not disputed that the property was in a shoreland zone.

Chapter 11 of the Dane County Ordinances was last revised on January 31, 2017. 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 violation of DANE COUNTY, WIS.,

ORDINANCE § 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 professional 

engineer, and to submit “double fees” for his failure to obtain the permit prior to 

beginning work on the project. See DANE COUNTY, WIS., ORDINANCES

§§ 11.05(3)(a), (4)(c)14.; 11.50(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 property 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 Thompson’s activity triggers the permit requirement. 

 

specific farm conservation plan approved by the Director [of the 

Department].

DANE COUNTY, WIS., ORDINANCE 11.015(19).

3

 The Notice also informed Thompson that he was required to submit an after-the-fact 

stormwater management permit application pursuant to Chapter 14 of the Dane County Ordinances.

Thompson was also ultimately cited for a violation of DANE COUNTY,WIS., ORDINANCE § 14.45(1) 

(2019), which requires obtaining an erosion control permit for “[l]and disturbing activity in excess 

of 4,000 square feet.” (This provision was revised and renumbered to DANE COUNTY, WIS.,

ORDINANCE § 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 ordinances and provided the following explanation:

Basically, any activity that creates bare soil 

(including incidental due 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 “simplified” erosion control 

permit application and checklist pursuant to DANE COUNTY, WIS., ORDINANCE

§ 11.05(2)(b). Under this 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 

permit application was insufficient and required him to submit the application 

required in the Notice. Thompson did not submit the requested application and was 

issued a citation for a violation of § 11.05(3)(a). On May 22, 2020, Thompson filed 
No. 2021AP1862

5

an appeal with the LCC pursuant to DANE COUNTY, WIS., ORDINANCE

§ 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 machinery used 

for Thompson’s project—and not the tree mulching itself—that was deemed landdisturbing activity. The LCC issued a decision upholding the Department’s 

determination that Thompson’s project constituted land-disturbing activity that 

required the shoreland erosion control permit requested by the Department. The 

decision did not specify 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 seeking 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 explain 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 constituted

land-disturbing activity, the disturbed area did not exceed 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 square feet. In remanding the case to 

the LCC, Judge Conway prohibited the LCC from supplementing 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 the 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 Findings of Fact and Conclusions 

of Law (“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 lead the LCC through its discussion of the Proposed Findings, 

which the LCC ultimately adopted.4 

¶11 The LCC issued a written decision, concluding 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 subsequent 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 

seconded, 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 exceeds 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 concluded that “the LCC denied [Thompson] due process 

when it failed, for a second time, to adequately 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 specifically 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 

required 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 arguments as follows: “First, that the LCC 

gave itself a chance to ‘shore up the record’ when it considered the Proposed Findings on remand. 

Second, that even if the LCC properly considered the Proposed Findings, the Final Decision still 

failed to explain why Thompson had engaged in land disturbing activity 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 reasons why mulching trees constitutes land disturbing activity 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. Standards 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 to 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 not 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 kept within its jurisdiction; 

(2) whether it proceeded on a correct theory of law; 

(3) whether its action was arbitrary, oppressive, or 

unreasonable and represented its will and not its judgment; 

and (4) whether the evidence was such that it might 

reasonably make the order or 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 evidence or to assert new grounds is not 
No. 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 government’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 Proposed Findings at 

the remand hearing, the LCC violated Judge Conway’s remand order prohibiting 

the LCC from supplementing the record with new evidence. He argues that such 

consideration also violated his right to due process by allowing the Department to 

improperly “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 allegations violates the standards 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” supplementing the record as 

prohibited by Hartland; rather, they purported to summarize evidence that was 

already in the record. In fact, the LCC’s use of the Proposed Findings appears to 

have been an attempt to comply with Judge Conway’s remand order directing the 

LCC to “sufficiently articulat[e] its reasons” for its decision, preferably, by 

“stat[ing] its rationale in a written decision, approved by all supporting members,

rather than by on-record statements.” We note that both the LCC chairperson and 
No. 2021AP1862

10

corporation counsel repeatedly emphasized during the remand hearing that 

supplementation of the record with new evidence was not permitted. Corporation 

counsel also made clear that the Proposed Findings were just that: proposed. The 

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 whether the findings are supported 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. As 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 findings prior to the hearing but 

did not do so. Further, during the remand hearing he 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 record. Indeed,

Thompson did in fact avail himself of the opportunity to challenge the Proposed 
No. 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 pertinent here, a shoreland erosion control permit is required for 

land-disturbing activity of any size in a shoreland zone. See DANE COUNTY, WIS.,

ORDINANCES §§ 11.05(3)(a)1., 11.015(37)(a)2. There are three tiers of permit 

applications for land-disturbing activity 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.” Sec. 11.05(2)(c)4. As previously 

mentioned, the 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 involved land-disturbing activity, he is entitled to this lowest tier 

permitting process because the evidence does not show that the alleged landdisturbing activity exceeded 1,000 square feet, which necessarily meant that it did 

not exceed the 2,000 square feet determined by the LCC. 
No. 2021AP1862

12

¶23 As a preliminary matter, Thompson correctly notes that he separately 

argued to Judge Bailey-Rihn that there was insufficient evidence to conclude that 

any area allegedly disturbed exceeded 1,000 square feet. He 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 constituted land-disturbing 

activity. As noted in the background section above, we agree that Judge BaileyRihn did not address Thompson’s argument that there was insufficient evidence to 

support 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 rationale 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 squarefootage issue. However, Thompson’s argument was not that the LCC failed to

explain its rationale regarding its square-footage determination, but rather that the 

evidence did not support the LCC’s conclusion that the area of any land disturbance 

exceeded 1,000 square feet. Moreover, contrary to the court’s suggestion, the 

LCC’s final decision did in fact contain its rationale for determining the squarefootage issue. The question in the second certiorari proceeding, and now on appeal,

is whether the record evidence supports that determination. 

¶24 Significantly, despite 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 entirety 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 County7 makes no argument that the evidence is in fact sufficient. 

Instead, the County’s only argument on this point is that this court should decline to 

consider Thompson’s argument regarding the sufficiency of the evidence.8 In 

support, the County relies on Bratcher v. Housing Authority of Milwaukee, 2010 

WI App 97, 327 Wis. 2d 183, 787 N.W.2d 418. However, Bratcher 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 application for 

rental assistance and then upheld that decision in an informal review hearing. The 

circuit court granted Bratcher’s writ of certiorari, concluding that the Housing 

Authority did not provide Bratcher with adequate notice prior to the informal review 

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 Cnty., 2006 WI App 

42, 289 Wis. 2d 727, 713 N.W.2d 670). We also affirmed the circuit 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 

refer 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 the proposed findings are supported by the evidence in the record of 

the 2020 LCC hearing” (i.e., the evidentiary hearing). The 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

argument that there was insufficient evidence to support the denial of rental

assistance and that the proper remedy was an outright reversal. See id., ¶¶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

id., ¶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. Here, in contrast, Thompson is the appellant and 

explicitly argues 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 respondents do not undertake to refute”). 

Thus, reversal of the LCC’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 directed us to evidence 

that could be sufficient that was adduced at the evidentiary 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 simplified 
No. 2021AP1862

15

erosion control permit application and checklist found in DANE COUNTY, WIS.,

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

IV. Remand on Issue of Land-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 square-footage issue) that the evidence is 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 hearing “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 specific 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.2d 

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 kick 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 kick 
No. 2021AP1862

16

at the cat’ on remand by supplementing the record with new evidence or new 

allegations violates the standards 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 should not be supplemented with additional evidence or 

arguments. Thus, Hartland does not prohibit the remedy ordered by Judge BaileyRihn.

¶30 Because we reject the only argument Thompson advances with 

respect to the allegedly land-disturbing activity issue, we affirm Judge BaileyRihn’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 LCC 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 any 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) explains its reasoning, based on the 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 WIS. STAT. RULE

809.23(1)(b)5. (2019-20).

 

9

 We make two observations about possible next steps in this matter. First, on 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 this court’s ruling on the 

square-footage issue—namely, that if there was land-disturbing activity he is entitled to rely on the 

simplified permit application—he may decide to forego his argument that no land-disturbing 

activity occurred.