Gregory A. Thompson v. Dane County Land Conservation Committee

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 2, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals 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
¶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-
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¶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.
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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
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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 land-
disturbing 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.
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No. 2021AP1862
¶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.
6
No. 2021AP1862
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.”
7
No. 2021AP1862
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
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No. 2021AP1862
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
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No. 2021AP1862
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
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No. 2021AP1862
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 land-
disturbing activity exceeded 1,000 square feet, which necessarily meant that it did
not exceed the 2,000 square feet determined by the LCC.
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No. 2021AP1862
¶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 Bailey-
Rihn 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 square-
footage 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 square-
footage 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.
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No. 2021AP1862
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.
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No. 2021AP1862
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
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No. 2021AP1862
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
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No. 2021AP1862
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 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 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,
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No. 2021AP1862
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.
17