author: JON P. WILCOX, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    State of Wisconsin, Plaintiff-Respondent, v. John Tomlinson, Jr., Defendant-Appellant-Petitioner.
    Supreme Court

      No. 00-3134-CR.

      Oral argument May 2, 2002.

    Decided July 9, 2002.

    2002 WI 91
    (Also reported in 648 N.W.2d 367.)

      For the defendant-appellant-petitioner there were briefs by John J. Grau and Grau Law Office, Waukesha, and oral argument by John J. Grau.

    For the plaintiff-respondent the cause was argued' by Eileen W Pray, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   JON P. WILCOX, J.

¶ 1. This case is a review of a published decision of the court of appeals, State v. Tomlinson, 2001 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201, which upheld the conviction of John Tom-linson, Jr., for being a party to the crime of first-degree reckless homicide while using a dangerous weapon, in violation of Wis. Stat. §§ 940.02(1), 939.05, and 939.63 (1999-2000).

¶ 2. Tomlinson challenges his conviction on three disparate grounds. First, Tomlinson argues that the baseball bat and mop handles, which were allegedly used in the homicide and which were found in Tomlinson's house following his arrest, should have been suppressed because the police did not obtain proper consent to enter Tomlinson's house. Second, Tomlinson claims that the circuit court erred when it allowed the State to introduce a witness's preliminary hearing testimony after that witness asserted his Fifth Amendment privilege during trial. Third, Tomlinson claims that the circuit court erred in instructing the jury that a baseball bat constitutes a dangerous weapon.

¶ 3. The Milwaukee County Circuit Court, Jeffrey A. Wagner, Judge, denied Tomlinson's post-conviction motions on each of the three claims. On appeal, the court of appeals upheld the ruling of the circuit court. See State v. Tomlinson, 2001 WI App 212, ¶ 1. Tomlinson petitioned this court for review, and we accepted. We now affirm the decision of the court of appeals on all three issues.

I. BACKGROUND

¶ 4. On February 27, 1999, Milwaukee Police Detective Dennis Kuchenreuther and several other members of the Milwaukee Police Department were investigating the death of Lewis Phillips. Phillips had suffered blunt force trauma to the head late on the night of February 5 or early on the morning of February 6,1999, on the 1100 block of West Chambers Street in Milwaukee. Phillips died from his injuries several days later.

¶ 5. During the investigation, police received information from Angela Green, a witness to several events which immediately followed the homicide. Green informed police that she had been walking on the 1100 block of West Chambers late in the evening of February 5 or early in the morning of February 6,1999, when she heard a woman yell, "Kick the bitch in the head."

¶ 6. Green then observed a man walking toward her, carrying a baseball bat. She knew the man as "John" or "Red." Green also saw two teenaged girls, whom Green recognized as the man's daughters, carrying what appeared to be broom or mop handles. After Green passed them on the street, she came upon Phillips, who was on the ground, bleeding from the head. Green identified a photograph of Tomlinson as the man she knew as "John" or "Red." Green also identified the woman's voice she had heard as Tomlinson's wife. Green informed the police of Tomlinson's address, and pointed out the house to the officers.

¶ 7. At about 8:50 p.m. that same day, Detective Kuchenreuther and the other officers went to Tomlinson's house and knocked on the back door. According to Kuchenreuther's testimony, the officers were met at the door by an African-American female who appeared to be 15 or 16 years old. Tomlinson himself was standing nearby, in the house. According to Kuchenreuther, the girl identified herself, but the record does not reflect what that identification actually was. Kuchenreuther then informed the girl that they were looking for Tomlinson, and they asked for permission to enter the house. The girl said nothing, opened the door, and walked into the house. The officers followed her into the entryway and the kitchen area. The officers did not have a search warrant for the house or an arrest warrant for Tomlinson.

¶ 8. After the officers entered the house, they placed Tomlinson, Tomlinson's wife (Michelle), and Tomlinson's two daughters (Montería and Kamisha), under arrest. Later trial testimony confirmed that Montería and Kamisha were 14 and 15 years old at the time. After being placed under arrest, Michelle, Monte-ría, and Kamisha asked if they could put shoes and socks on before they left. The officers allowed them to do so, and escorted the three into an adjoining bedroom. In the bedroom, in plain view, the officers observed a baseball bat and some broom or mop handles lying between the bed and the wall. The officers seized the items as evidence.

¶ 9. Tomlinson was charged with being a party to the crime of first-degree reckless homicide under Wis. Stat. §§ 940.02(1) and 939.05, and was charged with the penalty enhancer for the use of a dangerous weapon, under Wis. Stat. § 939.63. Tomlinson pleaded not guilty.

¶ 10. At the preliminary hearing, testimony was taken from Otis Coleman, another witness to the events surrounding the homicide. Coleman testified that he had seen Phillips on the night in question with two other people, whom Coleman described as one African-American male and one African-American female. Coleman identified the male as Tomlinson.

¶' 11. Coleman testified that Phillips had asked the female if he could buy a cigarette from her for a quarter. Coleman then heard the female respond, "I have to have 50 cents, nigger." Coleman testified that he then heard Phillips say "A quarter, bitch." Coleman then saw Tomlinson approach Phillips and ask, "What did you call my wife?" Coleman testified that the verbal altercation between Tomlinson and Phillips escalated, and that Tomlinson left the area, telling Phillips to be there when he got back.

¶ 12. Coleman testified that he and Phillips began walking away, when Tomlinson returned about two minutes later, carrying a baseball bat. Coleman testified that Tomlinson confronted Phillips, and struck him three times with the baseball bat: once in the leg, once in the head, and a third time after Phillips was on the ground.

¶ 13. At trial, the State called Coleman to testify. When the prosecutor asked Coleman if he was willing to answer questions regarding the case, Coleman responded:

I would — any questions asked here today, I would have to invoke my Fifth Amendment rights. It might tend to incriminate me. I don't care to do any talking about anything. I don't think I'm mentally stable enough at the present time to answer any questions about anything.

Coleman proceeded to invoke his Fifth Amendment privilege in response to all of the questions asked by the prosecutor. When the prosecutor asked what Coleman meant by his Fifth Amendment rights, Coleman responded:

I do not wish to say anything that might tend to incriminate me or to get me harmed in any way, shape or fashion.

Coleman continued to invoke the Fifth Amendment the entire time he was on the stand, even after being ordered by the court to answer the State's questions, and during an attempted cross-examination by defense counsel.

¶ 14. After Coleman was excused, the State moved to have Coleman declared unavailable under Wis. Stat. § 908.04(l)(a) and (b), and to have Coleman's preliminary hearing testimony admitted under the hearsay exception in Wis. Stat. § 908.045(1). The circuit court granted the State's motion, and allowed Coleman's preliminary hearing testimony to be introduced.

¶ 15. At the close of the trial, the court instructed the jury with regard to the dangerous weapon sentence enhancer. That instruction was:

If you find the defendant guilty, you must answer the following question. Did the defendant commit the crime of first-degree reckless homicide while using, threatening to use, or possessing a dangerous weapon?
Before you may answer the question yes, you must be satisfied beyond a reasonable doubt that the defendant committed the crime while using, threatening to use, or possessing a dangerous weapon and possessed the dangerous weapon to facilitate the crime.
Dangerous weapon means a baseball bat.

When the court finished issuing the jury instructions, the prosecutor asked for a sidebar and the jury was excused. The prosecutor pointed out that there was a footnote in Wis JI — Criminal 990, the standard jury instruction for the dangerous weapon sentence enhancer, which suggested that it should be up to the jury to decide whether a baseball bat is a dangerous weapon.

¶ 16. Tomlinson's defense attorney, when asked, stated that they wanted the jury instruction to remain as the court had read it. The prosecutor noted that leaving the jury instruction as it had been read would essentially relieve the State of its burden on that element, and asked the defendant if he understood that consequence. Tomlinson replied, "Yeah."

¶ 17. The court then asked the defendant the same question. Defense counsel again replied that they wanted the instruction the way it had been read. The court asked the defendant if he understood what was happening, to which the defense attorney replied, "[The defendant] told me yes and I'm repeating it. He told me yes." The jury found Tomlinson guilty of being party to the crime of first-degree reckless homicide while using a dangerous weapon, and he was sentenced to 38 years in prison.

¶ 18. Tomlinson filed a post-conviction motion challenging the propriety of the police search, the admissibility of Coleman's preliminary hearing testimony at trial, and the court's jury instruction on the dangerous weapon element. The circuit court denied Tomlinson's motion on all three issues. In a published opinion, State v. Tomlinson, 2001 WI App 212, the court of appeals upheld the decision of the circuit court. Tomlinson petitioned this court for review, which we accepted. We now affirm the court of appeals' decision, and uphold Tomlinson's conviction. We address each of Tomlinson's three issues in turn.

II. CONSENT TO SEARCH

¶ 19. We first review the propriety of the police seizure of the baseball bat and the mop/broom handles at Tomlinson's house. The Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution each states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.. . ." Whether police conduct has violated the constitutional guarantees against unreasonable searches and seizures is a question of constitutional fact. State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis. 2d 48, 613 N.W.2d 72. Thus, we give deference to the circuit court's findings of evidentiary and historical fact, but we independently apply those historical facts to the constitutional standard. Id.

¶ 20. Here, the police entered Tomlinson's home to arrest him without a warrant. Searches conducted without a warrant are presumptively unreasonable. State v. Matejka, 2001 WI 5, ¶ 17, 241 Wis. 2d 52, 621 N.W.2d 891; State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998). However, the police may enter a home without a warrant to make an arrest if two circumstances are present. First, the police must have probable cause to make the arrest, and second, there must be an exception to the warrant requirement, such as exigent circumstances or consent to enter. Laasch v. State, 84 Wis. 2d 587, 593-94, 267 N.W.2d 278 (1978). Tomlinson does not dispute the existence of probable cause to arrest, and the State does not contend that there were exigent circumstances in this case. Our inquiry is thus confined to the question of whether the police received consent to enter Tomlinson's home.

¶ 21. The State has the burden of proving consent by clear and convincing evidence. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Bumper v. North Carolina, 391 U.S. 543, 548 (1968); State v. Rodgers, 119 Wis. 2d 102, 107, 349 N.W.2d 453 (1984). Here, Tomlinson does not challenge the voluntariness of the consent, nor does he claim that the consent was given under duress or coercion. Tomlinson's challenge is limited to the authority of the girl who opened the door to give consent to the police officers to enter the house, and the girl's actions in allegedly giving the consent. We focus our discussion on those issues.

¶ 22. Under certain circumstances, consent to search may be given by a third person — that is, by a person other than the subject of the search. United States v. Matlock, 415 U.S. 164, 171 (1974); State v. Kieffer, 217 Wis. 2d 531, 542, 577 N.W.2d 352 (1998). The U.S. Supreme Court case United States v. Matlock, 415 U.S. 164, is most often cited for the doctrine of third-party consent. In that case, the Court upheld the search of a bedroom, which the defendant occupied jointly with a cohabitating girlfriend. Id. at 177-78. The defendant's girlfriend gave the police permission to search the bedroom, where the police found money that had been taken during a bank robbery in which the defendant was a suspect. Id. at 166-67.

¶ 23. In upholding the search, the Court discussed the theoretical bases for third-party consent. The Court stated that consent to search may be "obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 171. The Court went on to explain that:

[t]he authority which justifies the third-party consent does not rest upon the law of property.. . but rests rather on the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 171 n.7 (citations omitted).

¶ 24. This court has also addressed the concept of third-party consent in several cases, most notably in State v. Kieffer, 217 Wis. 2d 531. Applying the concepts of Matlock in- that case, we held that the defendant's father-in-law lacked the actual authority to consent to a police search of a garage attic, which the father-in-law rented to his daughter and the defendant, and in which the couple had essentially established a "separate household." Kieffer, 217 Wis. 2d at 545-46.

¶ 25. More importantly, in Kieffer we also discussed the relationship between actual authority and apparent authority to grant third-party consent. Citing Illinois v. Rodriguez, 497 U.S. 177 (1990), we held that even if a third party lacks the actual authority to consent to a search, police may rely upon the third party's apparent common authority, if such reliance is reasonable. Kieffer, 217 Wis. 2d at 548. In that case, we noted, "officers may not always take third-party consent to a search at face value, but must consider the surrounding circumstances." Id. at 549.

¶ 26. In the present case, the State argues that the girl who answered the door had both actual and apparent authority to give the officers consent to enter. Tomlinson challenges the State's assertions on both of these counts. In considering the facts surrounding the officers' request for consent, we agree with the State's argument that the girl had apparent authority to give the police limited consent to enter, and therefore, we are not required to address the question of whether or not the girl had actual authority to consent.

¶ 27. Tomlinson first claims that the girl could not have had authority to give consent because there is nothing in the record to show that the girl was one of Tomlinson's daughters. We agree with the court of appeals that this issue was not fully addressed at trial. However, any question of whether or not the girl was Tomlinson's daughter would be more consequential in a determination of actual authority to allow entry. Under the apparent authority rule, however, we think that there was sufficient evidence for the officers to reasonably conclude that the girl who answered the door was one of Tomlinson's daughters.

¶ 28. Before coming to the house, the police officers knew that Tomlinson had two teenage daughters, later shown to be 14 and 15 years old, who themselves were suspects in the crime. The police had obtained descriptions of the two daughters by interviewing witnesses to the crime. Although the specific identification is not in the record, the girl who answered the door— described by Detective Kuchenreuther as a 15- or 16-year-old African-American girl — had identified herself to the detective. Tomlinson was apparently standing nearby when the door was opened, and he did not object to the girl's letting the officers into the house. After the police entered the house, they arrested Tom-linson, his wife, and both of his daughters. There was no evidence of anyone else in the house, and no one else was arrested or questioned at that time. Under these circumstances, it was more than reasonable for the officers to conclude that the girl who answered the door was one of Tomlinson's daughters.

¶ 29. Given the conclusion.that the officers could have reasonably believed that the girl was Tomlinson's daughter, we must next consider the question of when a minor child has the authority to consent to police entry of his or her parents' home, and whether the officers reasonably believed that the girl in this case had the authority to do so. We begin with the basic principle articulated by the U.S. Supreme Court in Matlock. That is, third-party consent can be obtained from a person who possesses "common authority over or other sufficient relationship to the premises or effects sought to be inspected." Matlock, 415 U.S. at 171. This common authority rests on the "mutual use of the property by persons generally having joint access or control for most purposes" and that "any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to he searched." Id. at 171 n.7.

¶ 30. A minor child who lives in the same home with his or her parents or guardians obviously shares use of the property with the parents or guardians to some extent. However, it should also be obvious that a child generally does not share mutual use of the property with a parent to the same extent that such use might he shared between spouses or between cohabitat-ing adults. In general, a parent's interest in the property will be superior to that of the child, and the child will generally not have the equivalent authority of a parent or guardian to consent to a search of the premises.

¶ 31. Still, there are some situations where a child could reasonably possess the authority to consent to a search, or to consent to police entry of a parent's home. Whether the child possesses such authority will depend on a number of factors, and courts must look at the totality of the circumstances to make such a determination. The primary factors to be considered are the child's age, intelligence, and maturity, and the scope of the search or seizure to which the child consents. 3 Wayne R. LaFave, Search and Seizure § 8.4(c), at 773-74 (3d ed. 1996). To a lesser extent, the court should also consider the extent to which the child has been left in charge, and the extent to which the parent has disclosed his or her criminality to the child. Id. § 8.4(c), at 774; United States v. Clutter, 914 F.2d 775, 778-79 (6th Cir. 1990).

¶ 32. The age, intelligence, and maturity of the child are important because, as a child gets older and more mature, the child will generally be entrusted with greater responsibility. See, e.g., Laasch, 84 Wis. 2d at 592-93 (holding that the State did not prove that the defendant's five-year-old son possessed the capacity, intelligence, or authority to give consent for police to enter the apartment at midnight). The scope of the consent is also particularly important because there are parts of a family's home where the parents have an increased privacy interest, and where the child could not reasonably give consent to a search, even though a parent could. In some situations, however, a child might reasonably be able to give consent for police to enter or search a common area of the home where the parents and the child share a greater mutual use and a similar expectation of privacy.

¶ 33. In the present case, given the age of the girl who answered the door, the limited scope of the entry, and the surrounding circumstances, the officers could have reasonably concluded that the consent to enter the house was valid. A high school-aged child will likely have at least some authority to allow limited entry into the home. Courts that have addressed this issue are generally in agreement on this point. See, e.g., Doyle v. State, 633 P.2d 306, 309 (Alaska Ct. App. 1981); Mears v. State, 533 N.E.2d 140, 142 (Ind. 1989); State v. Folkens, 281 N.W.2d 1, 4 (Iowa 1979); State v. Griffin, 756 S.W.2d 475, 484^85 (Mo. 1988). There is no evidence here that the girl who answered the door lacked the intelligence or maturity such that the officers' reliance on the consent would have been called into question.

¶ 34. The scope of the entry and the surrounding circumstances in this case bolster our conclusion that the officers reasonably relied on the third-party consent. The. officers were only allowed into the entryway and the kitchen. They did not search or enter into the rest of the house on the basis of the initial consent. Additionally, the officers came to the house on a Saturday evening, rather than extremely late at night or early ,in the morning. We also give weight to the fact that Tomlinson was nearby when the door was opened. Tomlinson did not object to the police coming in, and the daughter did not hesitate or turn to ask Tomlinson's permission to let the officers in. Under these circumstances, the officers reasonably could have believed that Tomlinson entrusted the girl with at least some authority to give consent to enter, and certainly with enough authority to allow the limited entry that occurred in this case.

¶ 35. Tomlinson next suggests that, even if the girl had the authority to allow entry, her actions were insufficient to give the officers consent to enter. Tom-linson argues that the actions of the girl who answered the door were consistent with a person turning away from the door to inform someone else that the police were there to speak with him. Tomlinson suggests that, particularly because a minor answered the door, more should be required to show consent.

¶ 36. Whether an individual in fact gives consent is a question of historical fact. Phillips, 218 Wis. 2d at 196-97. Thus, we will uphold the trial court's finding on this issue unless it is against the great weight and clear preponderance of the evidence. Id. at 197. Here, although Tomlinson's formulation of the events is one possible characterization of events, the finding of the circuit court on this issue was not against the great weight of the evidence, and we uphold the circuit court's conclusion that the girl's actions were sufficient to give consent to enter.

¶ 37. Consent to search does not have to be given verbally. Consent may be given in non-verbal form through gestures or conduct. Id. (citing United States v. Griffin, 530 F.2d 739, 741-42 (7th Cir. 1976)); see also United States v. Walls, 225 F.3d 858, 862-63 (7th Cir. 2000). The girl who answered the door turned to enter the house upon the officer's request to enter — this could reasonably have been interpreted as an invitation to follow her inside. Additionally, Tomlinson was present and apparently said nothing when this occurred. Under the totality of the circumstances, the circuit court did not err when it held that the girl gave consent for the officers to enter the house.

¶ 38. Because the officers reasonably believed that the girl who let them in had the authority to consent to the limited entry, and because the girl actually did give consent for the officers to enter the house, we hold that the consent to enter the house was valid. As a result, the warrantless arrest of Tomlinson and the seizure of the bat and the mop/broom handles were both valid, and the circuit court properly allowed the State to introduce these items as evidence at trial.

III. ADMISSION OF PRELIMINARY HEARING TESTIMONY

¶ 39. We next turn to Tomlinson's contention that the circuit court improperly declared Coleman to be an unavailable witness, and that the circuit court violated Tomlinson's right to confrontation when it allowed the State to introduce Coleman's preliminary hearing testimony into evidence under the hearsay exception in Wis. Stat. § 908.045(1). The admissibility of former testimony is a discretionary decision of the circuit court, and we will not overturn the circuit court's decision unless it is clearly erroneous. La Barge v. State, 74 Wis. 2d 327, 338, 246 N.W.2d 794 (1976). Whether a defendant's right to confrontation has been violated, however, is a question of constitutional fact. State v. Jackson, 216 Wis. 2d 646, 655, 575 N.W.2d 475 (1998). When we review a question of constitutional fact, we adopt the circuit court's findings of historical fact, unless they are clearly erroneous, but we independently apply those facts to the constitutional standard. Id.

¶ 40. Tomlinson's challenge in this case requires us to examine, once more, the relationship between the hearsay rule and the constitutional right to confrontation under the Sixth Amendment to the U.S. Constitution and Article I, Section 7 of the Wisconsin Constitution. The right to confrontation and the hearsay rule with its many exceptions, serve a similar purpose: to ensure that the trier of fact has a satisfactory basis for evaluating the truthfulness of the evidence admitted in a criminal case. State v. Bauer, 109 Wis. 2d 204, 210, 325 N.W.2d 857 (1982). However, compliance with the hearsay rule does not absolutely insure compliance with the constitutional right to confrontation. Ohio v. Roberts, 448 U.S. 56, 63 (1980) (holding that the Confrontation Clause "was intended to exclude some hearsay"); Bauer, 109 Wis. 2d at 210. Conversely, the confrontation right is not absolute, as a literal reading of that right would essentially require the exclusion of any statement made by a declarant who was not available at trial, and would necessarily exclude all hearsay evidence. Roberts, 448 U.S. at 63; Bauer, 109 Wis. 2d at 209. Thus, over the course of many years and many cases, courts have been repeatedly faced with situations where they have had to accommodate these two competing principles of law.

¶ 41. The basic test governing the relationship was set down by the U.S. Supreme Court in Ohio v. Roberts, 448 U.S. 56, and further explained by this court in State v. Bauer, 109 Wis. 2d 204. The threshold question in such a case is whether the evidence in question is admissible under a hearsay exception. Id. at 215. Obviously, if the out-of-court statement is not admissible under the statutory rules, the evidence should be excluded and there is no reason to proceed to the constitutional question. However, if the evidence is admissible under a hearsay exception, the court must go on to address the constitutional question of whether the defendant's right to confrontation has been violated. Id. at 210. This is done by applying a two-part test: (1) the State must have demonstrated the declarant's unavailability; and (2) the State must have shown that the hearsay evidence bears some indicia of reliability. Roberts, 448 U.S. at 65-66; Bauer, 109 Wis. 2d at 210-11.

¶ 42. In the present case, we hold that the State has met its burden on the threshold question. The State moved for admission of Coleman's preliminary hearing testimony under the hearsay exception in Wis. Stat. § 908.045(1). If the declarant is unavailable, that statute allows the admission of

[t]estimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance of or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered.

Wis. Stat. § 908.045(1). According to the statute, "unavailability as a witness" includes situations in which the declarant:

(a) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the judge to do so ....

Wis. Stat. § 908.04(1).

¶ 43. Because the -witness must be statutorily "unavailable" for Wis. Stat. § 908.045(1) to apply at all, we address that statutory section first. Tomlinson argues that the circuit court erred because it did not explore the validity of Coleman's invocation of his Fifth Amendment privilege. That is, Tomlinson contends that Coleman's reason for invoking the Fifth Amendment, fear of physical harm, is not a legitimate reason for asserting the privilege. Although we agree (and the State concedes) that Coleman may not have properly invoked his Fifth Amendment privilege in this case, we do not have to answer the question, because the trial court could properly find Coleman unavailable under Wis. Stat. § 908.04(l)(b).

¶ 44. According to that section, a -witness is unavailable if he "[pjersists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the judge to do so." This was precisely what happened in this case. Coleman repeatedly pleaded the Fifth Amendment when questioned by the prosecutor. The judge then ordered Coleman to answer the State's questions several times, which Coleman again refused to do by invoking the Fifth Amendment. Coleman also invoked the Fifth Amendment when the defense attorney tried to cross-examine him. Because Coleman persistently refused to testify, in light of a court order to do so, the circuit court properly declared him unavailable under Wis. Stat. § 908.04(l)(b).

¶ 45. Given that Coleman was properly declared unavailable under the statute, the next question is whether Coleman's preliminary hearing testimony meets the requirements of Wis. Stat. § 908.045. Bauer, 109 Wis. 2d at 215-16. We think it is clear that it does. First, the testimony was "given as a witness at another hearing of the same . . . proceeding" — the preliminary hearing for the same case. The defendant was also given "an opportunity to develop the testimony by direct, cross-, or redirect examination" at the preliminary hearing. Because the requirements of Wis. Stat. §§ 908.04(1) and 908.045(1) have been met, we hold that the threshold question, whether the evidence is admissible under a statutory hearsay exception, has been satisfied.

¶ 46. Because we hold that the evidence is admissible under the statutory rules of evidence, we next address whether Tomlinson's constitutional right to confrontation has nevertheless been violated. To do this, we apply the two-part test we have previously stated: (1) whether the State has shown that the declarant is unavailable; and (2) whether the Hearsay evidence bears sufficient indicia of reliability. Roberts, 448 U.S. at 65-66; Bauer, 109 Wis. 2d at 210-11. Here, we hold that both parts of the test have been met.

¶ 47. For the purposes of the Confrontation Clause, the State has not shown a witness is unavailable until it has made a good-faith effort to obtain the witness's presence at trial. Roberts, 448 U.S. at 74 (quoting Barber v. Page, 390 U.S. 719, 724-25 (1968)). "The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness." Id. at 74 (quoting California v. Green, 399 U.S. 149, 189 n.22 (1970)). The question is whether the witness continues to be unavailable despite a good faith effort by the prosecution to locate and present that witness. Id. In Roberts, for instance, the U.S. Supreme Court found that the prosecution had made a good faith effort to locate a witness when it sent the witness five separate subpoenas over the course of several months, and had interviewed the witness's parents, who did not know of her location. Id. at 75.

¶ 48. In this case, we easily conclude that the prosecution made a good faith effort to locate and present Coleman as a witness at Tomlinson's trial. The State was able to produce Coleman at the preliminary hearing, where he gave testimony, and the State personally produced Coleman again as a witness at the trial. It was only when Coleman took the stand at trial that he persistently refused to testify. When Coleman got on the stand to testify, the State tried repeatedly to get Coleman to answer questions, and, when Coleman continued to refuse to answer, the State asked the court to order Coleman to answer. Despite these attempts, Coleman continued to refuse to testify. Given these facts, we conclude that the State made a good faith effort to produce the witness, and that the first part of the test is met.

¶ 49. We now move to the second part of the test. Under the second prong, we must determine whether the admitted evidence bears sufficient indicia of reliability such that it does not violate Tomlinson's right to confrontation. This prong is in place to ensure that the trier of fact has a" 'satisfactory basis for evaluating the truth of the prior statement.'" Id. at 65-66 (quoting Green, 399 U.S. at 161). Generally, if the evidence fits within a firmly rooted hearsay exception, the reliability of the evidence can be inferred. Id. at 66; Bauer, 109 Wis. 2d at 215.

¶ 50. Here, Coleman's preliminary hearing testimony clearly contains sufficient indicia of reliability. As the U.S. Supreme Court has noted in similar cases where preliminary hearing testimony was introduced, the testimony at the preliminary hearing here was given under circumstances that closely approximated those at trial. See Green, 399 U.S. at 165. Therefore, the evidence is sufficiently reliable to protect Tomlinson's confrontation rights.

¶ 51. Coleman's testimony was given under oath, before a judicial tribunal, and in a setting equipped to make a judicial record. Id. at 165. Tomlinson was also represented by counsel at the preliminary hearing — the same attorney who later represented Tomlinson at trial. Additionally, Tomlinson's defense counsel had an opportunity to cross-examine Coleman at the preliminary hearing. During the cross-examination, the defense attorney was able to elicit information helpful to Tomlinson's defense, including the fact that Coleman did not call the police after the incident, that Coleman did not see whether Tomlinson struck Phillips a third time because he had been leaving the scene at the time, and that Coleman had been drinking on the day of the incident. Thus, we find Tomlinson's ability to cross-examine Coleman was meaningful.

¶ 52. Under the circumstances of this case, we conclude that Tomlinson's confrontation rights were not violated. The hearsay evidence was admissible under a statutorily recognized exception, the State made a showing that the witness was unavailable, and the hearsay evidence bore sufficient indicia of reliability. Thus, we agree with the court of appeals that the circuit court properly allowed the State to admit Coleman's preliminary hearing testimony, and we affirm the court of appeals' holding on that issue.

IV JURY INSTRUCTION

¶ 53. Finally, we review the propriety of the jury instruction offered by the trial court with regard to the dangerous weapon penalty enhancer — specifically, that the circuit court gave the instruction, "Dangerous weapon means a baseball bat." Tomlinson argues that this jury instruction deprived him of his right to due process because the jury did not have to decide whether the State proved beyond a reasonable doubt that a baseball bat was a dangerous weapon. Whether a jury instruction from the circuit court deprives a defendant of his right to due process is a question of law, which we review de novo. State v. Kuntz, 160 Wis. 2d 722, 735, 467 N.W.2d 531 (1991).

¶ 54. Tomlinson and the State both appear to concede that the jury instruction on the dangerous weapon element was erroneous, and focus their arguments primarily on whether or not Tomlinson adequately waived his right to a jury trial. While we agree with the presumption that the jury instruction was erroneous, we hold that the error was harmless as it was committed in this case. Thus, we affirm the court of appeals' ultimate decision on this issue, albeit on different grounds, and we do not reach the question of waiver.

¶ 55. It is well-established that to convict a criminal defendant, the State must prove all elements of a crime beyond a reasonable doubt. Id. at 736 (citing Muller v. State, 94 Wis. 2d 450, 473, 289 N.W.2d 570 (1980)). Thus, an evidentiary presumption in a jury instruction may have the effect of relieving the State of this obligation. Id. (citing Muller, 94 Wis. 2d at 473-74). As we have previously held, when the circuit court instructs the jury that it must find the elemental fact if the State proves certain other predicate facts, the State might be relieved of its burden of persuasion because the element will be removed from the jury entirely if the State proves the predicate facts. Id. at 736-37. Thus, we have generally held that a mandatory presumption in a jury instruction is impermissible. Id. at 737.

¶ 56. In State v. Kuntz, we were presented with a jury instruction error similar to the one here. In that case, the defendant was on trial for arson, which requires, as an element, that a "building" be damaged by fire. Id. at 734; see also Wis. Stat. § 943.02; Wis JI— Criminal 1404 (1992). The alleged arson had occurred in a mobile home, and in instructing the jury, the circuit court stated, " ’[a] mobile home is a building.'" Kuntz, 160 Wis. 2d at 734. Kuntz challenged this instruction on the grounds that it deprived him of due process by not requiring the State to prove that element of the crime beyond a reasonable doubt. Id. at 733-34.

¶ 57. We held that the jury instructions, as given, created a mandatory conclusive presumption regarding an element of the arson offense, and were therefore erroneous. Id. at 735. However, we went on to hold that the mandatory conclusive presumption was harmless error because it did not play a role in the jury's verdict. Id. In that case, we applied the reasoning of Justice Scalia's concurrence in Carella v. California, 491 U.S. 263, 267-73 (1989) (Scalia, J., concurring), to hold that the jury instructions, as given, still left it up to the jury to determine whether or not the structure in question was a mobile home. Id. at 740. We concluded that no rational jury could possibly have found that the structure in question was a mobile home without also finding that it was a building, and thus the error was harmless. Id.

¶ 58. Cases subsequent to Kuntz have called into question the viability of Justice Scalia's Carella concurrence, and thus have also called into question our analytical framework in Kuntz. See Neder v. United States, 527 U.S. 1, 13-14 (1999); State v. Harvey, 2002 WI 93, ¶ 43-45, 254 Wis. 2d 442, 647 N.W.2d 189. However, they have affirmed the bottom line in both cases: the use of harmless error analysis is appropriate in the case of an erroneous jury instruction.

¶ 59. In the U.S. Supreme Court's decision in Neder, 527 U.S. 1, the Court stated that unlike constitutional violations which "affect[] the framework within which the trial proceeds," errors in jury instructions— which in Neder, was the omission of an entire element — do not necessarily render a criminal trial fundamentally unfair or unreliable, and are therefore subject to harmless error analysis. Id. at 8-9. The Court declined to apply the more restrictive framework in the Carella concurrence, instead articulating the test for harmless error as "whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Id. at 15 (quoting Chapman v. California, 386 U.S. 18 (1967)). However, the bottom line of Carella — the applicability of harmless error to an erroneous jury instruction — remained unchanged.

¶ 60. This term, in Harvey, 2002 WI 93, ¶ 35, we adopted the Neder rule for harmless error. In that case, we assessed a jury instruction in which the court took judicial notice that Madison's Penn Park was a "city park" for the purposes of a penalty enhancer, and instructed the jury that they must accept that fact as true. Harvey, 2002 WI 93, ¶¶ 10-12. We held that, under Neder, it was clear beyond a reasonable doubt that a properly instructed, rational jury would have found the defendant in that case guilty of the enhancer even if it had been properly instructed that it may, but need not accept the judicially noticed fact as true. Id. at ¶ 47.

¶ 61. The Neder rule is equally appropriate in this case. Under the harmless error rule, we must ask if it appears " 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained ....'" Harvey, 2002 WI 93, ¶ 44 (quoting Neder, 527 U.S. at 15-16). We hold that the test is met here.

¶ 62. In this case, the court instructed the jury, "A dangerous weapon is a baseball bat." This is clearly a mandatory conclusive presumption because it requires the jury to find that Tomlinson used a "dangerous weapon" for the purpose of the sentence enhancer if it first finds the predicate fact that he used a baseball bat to commit the homicide. As a mandatory conclusive presumption, the jury instruction is presumed to be erroneous. However, we think it is clear, beyond a reasonable doubt that, absent the error, any rational jury would have come to the same conclusion.

¶ 63. To be a "dangerous weapon" an object must be

any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any electric weapon, as defined in s. 941.295 (4); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great hodily harm.

Wis. Stat. § 939.22(10). A baseball bat, when used to strike another person, and particularly when used to strike another person in the head, would without question qualify as a "device ... which, in the manner it is used ... is calculated or likely to produce death or great bodily harm." If the court had given a proper instruction — that the jury must find, beyond a reasonable doubt, that a baseball bat is a "dangerous weapon" under this statutory definition — any rational jury would have come to the conclusion that it was, and thus would have reached an identical verdict to the one it reached in this case.

¶ 64. We agree that the mandatory conclusive presumption given in the jury instructions by the circuit court in this case did constitute error. However, because we are convinced beyond a reasonable doubt that the error did not play any role in the jury's verdict, we hold that the erroneous instruction was harmless. Therefore, we affirm the decision of the court of appeals on this issue.

V CONCLUSION

¶ 65. In conclusion, we agree with the conclusion of the circuit court and court of appeals on all three issues. First, the police properly received consent to enter Tomlinson's house, and the circuit court properly refused to suppress the evidence of the baseball bat and the broom/mop handles. Second, the circuit court correctly admitted the preliminary hearing testimony of Otis Coleman, and did not violate Tomlinson's right to confrontation. Finally, although we hold that the circuit court erred in issuing a mandatory conclusive presumption in its jury instructions for the dangerous weapon sentence enhancer, we also hold that the error was harmless. Therefore, we affirm the decision of the court of appeals and uphold Tomlinson's conviction.

By the Court. — The decision of the court of appeals is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 66. (dissenting). I dissent for the reasons set forth in my dissent in State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, also released today.

¶ 67. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

       All references to the Wisconsin Statutes áre to the 1999-2000 version unless otherwise indicated.

       Wis. Stat. § 939.63 states, in pertinent part:
      (l)(a) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
      2. If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.

       The footnote cited by the prosecutor states:
      The Committee suggests using the part of the statutory definition that applies to the facts of the case. "Dangerous weapon" is defined as follows in § 939.22(10):
      (10) "Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any electric weapon, as defined in § 941.295(4); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.
      For example, if the evidence shows a firearm was used, the sentence at note 2 would read: " 'Dangerous weapon' means any firearm, whether loaded or unloaded." Similar statements should be used for the other alternatives provided by the statutory definition. See Wis JI — Criminal 910 for suggested instructions for the other alternatives and a discussion of some of the substantive issues relating to "dangerous weapons."
      Wis JI — Criminal 990, n.4.

       We also note that Tomlinson does not challenge the propriety of the officers' subsequent entry into the bedroom, or the actual seizure of the bat and the mop/broom handles once the officers were in the bedroom.

       Detective Kuchenreuther testified that Tomlinson was standing behind the girl who answered the door, at the top of a short flight of stairs that led up to the kitchen.

       Coleman answered a number of questions on cross-examination at the preliminary hearing. The defendant was able to elicit, among other things, that Coleman had not called police after the incident, that he did not see the third blow with the bat because he was retreating from the scene, and that Coleman had never seen Tomlinson prior to the date of the incident.

       We apply the unavailability prong from Ohio v. Roberts, 448 U.S. 56 (1980), in this case because the hearsay exception at issue is one that requires that the witness be unavailable. However, we note that our holding in State v. Bauer, 109 Wis. 2d 204, 325 N.W.2d 857 (1982), may have been overbroad in suggesting that the unavailability determination must be made in all Confrontation Clause cases. In White v. Illinois, 502 U.S. 346, 357 (1992), the U.S. Supreme Court refused to apply the unavailability rule in a Confrontation Clause challenge to evidence that was admitted under the hearsay exceptions for spontaneous declarations and statements made for medical treatment. In that case, the Court noted that "there is little benefit, if any, to be accomplished by imposing an 'unavailability rule,1" in which the court would "require as a predicate for introducing hearsay testimony either a showing of the declarant's unavailability or production at trial of the declarant." Id. at 35U-55 & n.6. The Court noted that such a broad unavailability rule would not likely "add[ ] meaningfully to the trial's truth-determining process," and would impose substantial burdens on fact-finding. Id. at 354. Instead, the Court held that because the evidence had "sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause [was] satisfied." Id. at 356.

       The parties' waiver arguments primarily involve reconciling the present case with State v. Villarreal, 153 Wis. 2d 323 (Ct. App. 1989), and State v. Benoit, 229 Wis. 2d 630 (Ct. App. 1999). We mention these cases only to emphasize that we do not interpret either of the two cases as limiting the harmless error rule's application to erroneous jury instructions.

       The parties do not dispute the fact that the dangerous weapon penalty enhancer constitutes an element of the charged crime. See State v. Carrington, 134 Wis. 2d 260, 268-70, 397 N.W.2d 484 (1986).


source: Caselaw Access Project

author: BROWN, J. A

license: Public Domain

text:
    Lyn and Stephen Sills, Steve and Michelle Glasgow, John and Janet Harding, Hayden and Helene Leason, William and Sheila Groden, Brian and Marilyn Grant, Donald and Denise Sheldon, George and Susan Gootsan, Arthur and Mary Ann Langas, Karen and Richard Eagan, Martha and Andrew Belknap, Margaret Newell, Fred Knutsen, Karen Dulla Sitkowski, Donna and Michael Mulvihill, Kathleen and James Ber-beret, Susan and James Hickox, Monica and Robert Johnson, Deborah and William Eagan, Scott Aubin, Jean and Bill Moritz, Timothy J. Eagan, Allison and James Breidenbach, Lynn and F. Owen McKeaney, Margy and Ron Walkington, Mary Lynn and Peter McCafferty, Eileen Hennessy, Mary and Roger Donahue, Liz and George Relos, Nancy and Edward Powers, James M. Lan-gelund, Peter H. Edward, James J. Skarda, Trustee of Cindy and James J. Skarda Trust and William Grunow, Sr., Plaintiffs-Appellants, v. Walworth County Land Management Committee, William O. Petersen, Conrad W. Petersen, and Edward S. Petersen as Trustee under the Edward S. Petersen Trust Dated April 29, 1977, Defendants-Respondents.

      Court of Appeals

      No. 01-0901.

      Submitted on briefs February 7, 2002.

    Decided April 3, 2002.

    2002 WI App 111
    (Also reported in 648 N.W.2d 878.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Lisle W. Blackbourn of Godfrey, Leibsle, Conover, Blackbourn & Howarth, S.C. of Elkhorn and Timothy P. Swatek of Allen, Harrison, Williams, McDonell & Swatek, LLP of Lake Geneva.
    On behalf of the defendants-respondents, the cause was submitted on the brief of William P O'Connor and Mary Beth Peranteau of Weeler, Van Sickle & Anderson, S.C. of Madison and Michael P. Cotter, Walworth County Corporation Counsel.

    Before Nettesheim, EJ., Brown and Anderson, JJ.

       Petition to review denied 6-11-02.

   BROWN, J. A

¶ 1. group of neighborhood citizens appeals from a circuit court certiorari review upholding the grant of a conditional use permit (CUP) for the creation and operation of a public museum at Black Point Estate, a historic residence located on Geneva Lake. The neighbors contend that the Wal-worth County Land Management Committee erred as a matter of law by failing to consider the potential application of restrictive covenants limiting the use of the Black Point property as "first class residence property." This is an issue of first impression in Wisconsin. We share the view of other jurisdictions, however, that private contracts restricting the use of land are not grounds for denial of a CUE While the Committee may, in its discretion, consider the potential application of private agreements, it is not under an obligation to do so.

¶ 2. The neighbors also contend that the Committee's decision was legally flawed because preservation or historic benefit is not a valid criterion for evaluating a CUP application. We conclude that promotion of the general welfare, one of the stated purposes of the Walworth County Shoreland Zoning Ordinance, encompasses the preservation of historical sites. Therefore, preservation is a valid criterion the Committee may use in evaluating a CUP application.

¶ 3. Finally, the neighbors argue that they should have been allowed to conduct additional discovery to supplement the certiorari record for the purpose of uncovering bias in the proceedings. We hold that when an applicant makes a prima facie showing of bias in a zoning case, certiorari law allows expansion of the record in order to protect the applicant's right to procedural due process. In this instance, however, the neighbors have failed to make a prima facie showing of bias to justify additional discovery.

Facts

¶ 4. The Black Point Estate is a well-preserved, thirteen-bedroom Queen Anne-style residence built in 1888, housing a valuable collection of period furnishings and art. The property was constructed as a family summer home by the great-grandfather of the current owner, William Petersen. The residence is listed on the National Register of Historic Places and the Wisconsin State Register. Described in testimony as a "time capsule," the residence today is in virtually the same condition as it was in the 19th century.

¶ 5. The Petersen family's plan to preserve the estate led to a proposal under which the State of Wisconsin would own Black Point, and a local nonprofit organization, Black Point Historic Preserve, Inc., would manage the site. To implement the plan, Petersen, the State of Wisconsin and the Black Point Historic Preserve, Inc., submitted an application for a CUP to the Committee. The Committee held two days of public hearings to consider the application. The record of the Committee's proceedings consists of nearly 2000 pages of reports, transcripts, letters and other correspondence. Much of the testimony concerned traffic safety, property values and conservation issues. The Committee approved the CUP application on May 23, 2000, subject to several conditions.

Standard of Review

¶ 6. The decision of the Committee is entitled to a presumption of correctness and validity. Kapischke v. County of Walworth, 226 Wis. 2d 320, 328, 595 N.W.2d 42 (Ct. App. 1999). Therefore, our review of the Committee's action is limited to: (1) whether the Committee kept within its jurisdiction; (2) whether it acted according to 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 determination in question. Id. at 327-28.

¶ 7. The neighbors do not challenge the jurisdiction of the Committee to grant the CUP under the Walworth County Shoreland Zoning Ordinance. Nor would such a challenge have any merit. A CUP allows a property owner to put property to a use that the zoning ordinance authorizes when certain conditions have been met. State ex rel. Shelly Oil Co. v. Common Council, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973). The authorized conditional uses where Black Point Estate is located include "[g]overnmental and cultural uses, such as fire and police stations, community centers, libraries, public emergency shelters, parks, playgrounds, museums, and park-N-ride facilities." See Walworth County, Wis., Shoreland Zoning Ordinance (Ordinance) §§ 3.4, 3.6 (2000). The neighbors themselves refer to the proposed use of Black Point Estate as a public museum. As an initial matter, therefore, the Committee had jurisdiction to consider the CUP application because it described a use approved in the ordinance as a conditional use in the affected zoning districts.

¶ 8. Nor do the neighbors assert that the Committee's decision was arbitrary or represented its will and not its judgment. Thus, the neighbors challenge the Committee's decision under the certiorari standards as to whether the decision was supported by substantial evidence and whether the Committee acted according to law. The other legal error asserted by the neighbors relates to the circuit court's discovery ruling on certiorari review. We discuss each of these issues below.

Sufficiency of the Evidence

¶ 9. The Walworth County Shoreland Zoning Ordinance sets forth the criteria the Committee must use to evaluate an authorized conditional use. These criteria involve three general areas of concern: the purpose and intent of the ordinance, environmental impacts (including water quality and shoreland cover) and property values. Ordinance § 4.2. The ordinance's stated purpose is to promote the comfort, health, safety, prosperity, aesthetics and general welfare of Walworth county and its communities. Id. at § 1.3.

¶ 10. The neighbors allege that the Committee failed to properly apply these criteria because the ordinance's stated purpose of promoting the general welfare is not furthered by historic preservation, particularly when that use is incompatible with other uses in the district. Additionally, they contend that the Committee ignored traffic, safety and property value concerns raised during the hearings. These arguments challenge the sufficiency of the evidence underlying the Committee's decision. This invokes the substantial evidence test — a significant hurdle for the neighbors to overcome.

¶ 11. We must uphold the Committee's decision so long as it is supported by substantial evidence, even if there is also substantial evidence to support the opposite conclusion. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 568 n.4, 579 N.W.2d 668 (1998). Substantial evidence means credible, relevant and probative evidence upon which reasonable persons could rely to reach a decision. Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 54, 330 N.W.2d 169 (1983). Finally, the weight to be accorded to the evidence lies within the discretion of the Committee. Delta Biological Res., Inc. v. Bd. of Zoning Appeals, 160 Wis. 2d 905, 915, 467 N.W.2d 164 (Ct. App. 1991) ("The weight to be accorded the facts is for the board to determine rather than the courts.").

¶ 12. We begin our analysis with the neighbors' contention that the Committee erred by considering the historic benefit of Black Point Estate because the ordinance does not explicitly mention historic preservation in its statements of purpose and intent. Ordinance §§ 1.3, 1.4. Therefore, according to the neighbors, preservation or historic benefit is not a valid criterion for evaluating a CUP application. However, the appropriateness of the Committee considering the preservation of Black Point as a historical site and as a museum is strongly supported by the ordinance, case law and statutes.

¶ 13. Ordinance § 1.3 includes the promotion of aesthetics and the general welfare of Walworth County as its stated purpose. A review of the statutes and case law reveals that the phrase "general welfare" has a broad meaning encompassing a wide range of areas. In State ex rel. State Historical Society v. Carroll, 261 Wis. 6, 22, 51 N.W.2d 723 (1952), the court approved a city accepting a deed to property to be used exclusively as a museum with a further conveyance to a historical society to operate the site as a museum. We note the following comments of the court:

The reasonable use of public money for memorial halls, monuments, statues ... parks, roads leading to points of fine natural scenery, decorations upon public buildings, and other public ornaments or embellishments, designed merely to promote the general welfare, by providing for fresh air or recreation, by educating the public taste, or by inspiring sentiments of patriotism or of respect for the memory of worthy individuals, has received such general sanction that there can be no doubt that municipal corporations may be constitutionally authorized to expend money raised by taxation for such purposes.

Id. at 20 (citation omitted).

¶ 14. From the above, we are persuaded that the general welfare is promoted by the preservation of historical sites and maintenance of museums to educate the public and to inspire patriotism and respect for our history. Since this is an aspect of general welfare, the ordinance recognizes preservation or historic benefit as a valid criterion for evaluating a CUP application.

¶ 15. We find further support for this conclusion in Wisconsin statutes that specifically encourage county zoning authorities to consider sites of historic preservation in their zoning decisions. For example, Wis. Stat. § 59.69(4m) expressly authorizes counties to regulate historic places "for the purpose of promoting the health, safety and general welfare of the community." To accomplish this purpose, a zoning authority may by ordinance establish and regulate "[p]laces, structures or objects with a special character, historic interest, aesthetic interest or other significant value, historic landmarks and historic districts." Wis. Stat. § 59.69(4)(L).

¶ 16. Finally, Wis. Stat. § 44.30 establishes the legislative intent that historic preservation is a public policy of the state:

The legislature finds that the historic, architectural, archaeological and cultural heritage of the state is among the most important assets of the state and furthermore that the social, economic and physical development of contemporary society threatens to destroy the remaining vestiges of this heritage. It is therefore declared to be the public policy and in the public interest of this state to engage in a comprehensive program of historic preservation to promote the use and conservation of such property representative of both the rural and urban heritage of the state for education, inspiration, pleasure and enrichment of the citizens of this state.

¶ 17. The foregoing language evinces the legislature's intent to include historic preservation as an aspect of the general welfare. Nevertheless, the neighbors respond that the record contains unrefuted testimony that the use of Black Point Estate as a public museum would be "unsuitable" and "incompatible with surrounding uses." We agree with the Committee, however, that whether the proposed use is compatible with existing use is not relevant to the standards listed in Ordinance § 4.2 (requiring Committee to consider three general criteria: purpose and intent of the ordinance, environmental impacts and property values). Moreover, the neighbors' position is contrary to the fundamental tenet that inclusion of a conditional use in. an ordinance is equivalent to a legislative finding that the prescribed use is one that is in harmony with the other uses permitted in the district. In other words, the neighbors' contention that the proposed use is incompatible contradicts the County Board of Supervisors' legislative determination, embodied in the zoning ordinance, that museums and similar public uses are compatible with the permitted uses in the districts where Black Point Estate is located. 3 Kenneth H. Young, Anderson's American Law of Zoning § 20.03, at 416 n.30 (4th ed. 1996 & Supp. 2001).

¶ 18. The neighbors also raise specific evidentiary challenges pertaining to traffic and safety, financial feasibility of the proposed use, the self-policing of the property and property values. With respect to traffic and safety, the neighbors presented compelling evidence in a report generated by engineer Gene A. Scharfenorth. In the report, Scharfenorth expressed concern over the ability of the roads to handle increased traffic volume, based on the lack of safe stopping distances and structural inadequacies of the roads. However, as the Committee points out, the record contains a competing analysis by the Walworth County Planning staff that estimated that the amount of traffic increase will be minimal under the circumstances; indeed, no greater than if the area were developed for single-family housing. Furthermore, the CUP addresses the traffic and safety concerns by placing caps on the number and sizes of tour groups and by limiting the times of operation. The bottom line is that the weight to be accorded all of this evidence was within the discretion of the Committee. Delta Biological Res., 160 Wis. 2d at 915. Under the substantial evidence test, the Committee was entitled to accept the applicants' evidence of traffic impact over the neighbors' evidence.

¶ 19. The neighbors posit three remaining challenges to the sufficiency of the evidence: the project is financially infeasible, the State is not bound by the CUP and may choose to ignore its terms, and the custodians of the estate will be unable to effectively monitor their compliance with the CUP requirements. The net effect of all these factors, according to the neighbors, will be diminished property values. As with the traffic and safety issue, however, the Committee had substantial evidence to counter these concerns. With regard to the financial feasibility of the project, for example, the Committee considered several feasibility studies; some of them supported the economic soundness of the project and some did not. Again, the record is clear that the Committee heard the competing evidence, weighed it and concluded that the project was economically feasible. Because there is substantial evidence to support the Committee's conclusion, we cannot overturn its decision.

¶ 20. The neighbors contend that there is no assurance that the conditions governing the CUP will be enforced once the State takes ownership of the property since the State is not bound by local zoning. See Green County v. City of Monroe, 3 Wis. 2d 196, 198, 87 N.W.2d 827 (1958). The Committee cites Wis. Stat. § 13.48(13) as a statutory exception to the common law rule that the State is not subject to local zoning. Relying on an attorney general's opinion, the neighbors respond that the statute applies only to property directly used by the State, such as office buildings, and not property held by the State for recreational purposes for the general public. See 81 Op. Att'y Gen. 9-93 at 58 (1993). We do not rule on the correct interpretation of § 13.48(13). Even if the neighbors are correct that the State is not subject to local zoning laws, we view this issue as an evidentiary matter for the Committee in its consideration of whether the evidence suggests that the State would not administer or oversee the property in a responsible manner. Our review of the record reveals no evidence that the State intends to back away from its commitment to the proposed use. The Committee's decision reflects its determination of this evidentiary issue.

¶ 21. The neighbors' objection that the site custodians would be inadequate to enforce the conditions of the CUP is also without merit. In addition to being speculative at best, this objection fails to acknowledge that enforcement of zoning laws lies with the County, not the employees of Black Point Estate. The CUP condition requiring site staff to monitor visitors merely places an additional level of control over the use of the site.

¶ 22. Finally, the neighbors misrepresent the record in claiming that evidence of detriment to surrounding properties was unrefuted. Indeed, there is abundant evidence to support the contrary position that historic properties have a positive effect on property values. The most compelling evidence of this is the documented sale of an adjacent lakefront residence that, just prior to the Committee's final vote on the CUP application, sold for more than one million dollars over its assessed value.

¶ 23. In sum, these remaining challenges to the sufficiency of the evidence — financial feasibility, the State as sovereign ignoring the CUP conditions, and self-policing — are all doom and gloom possibilities that may or may not occur. In light of the substantial contradictory evidence, the Committee did not err by ultimately rejecting them. See Molbreak v. Vill. of Shorewood Hills, 66 Wis. 2d 687, 704, 225 N.W.2d 894 (1975) ("A mere possibility or an assumption on the part of the witness [with regard to potential future zoning change] is not enough and must be rejected as being speculative.").

¶ 24. We conclude that substantial evidence supports the Committee's decision to issue the CUP to Black Point Estate. The ordinance's three general purposes are well served by the CUP which preserves the historic significance of the property and its buildings. The property will be used as an educational facility, and pursuant to the conservation easement, the natural scenic beauty of the estate will be preserved. While there was conflicting evidence on the effect of the proposed use on property values, the Committee was entitled to give more weight to the evidence that shows the use will support or increase property values.

Restrictive Covenant

¶ 25 The neighbors allege that Black Point Estate is subject to a private restrictive covenant that effectively trumps the County's authority to issue the CUE The restrictive covenant dates back to 1910 and states in relevant part:

[T]hat no part or portion of the real estate herein before described ... shall at any time be occupied, sold or used by. .. their heirs, executors, administrators, successors or assigns, for [a list of specified prohibited uses] any other use or purpose inconsistent with the maintenance and preservation of all and each and every part of said real estate herein before described, as first class residence property.

¶ 26. The Committee determined that it was not allowed as a matter of law to consider the restrictive agreement as part of the review process. The neighbors claim that this determination violated ORDINANCE § 1.5 which provides:

Except for the provisions of any ordinance enacted under Section 59.69, Wisconsin Statutes, relating to shorelands which are hereby superseded, it is not intended that this Ordinance repeal, abrogate, annul, impair or interfere with any existing easements, covenants, deed restrictions, agreements, ordinances, rules, regulations, or permits previously adopted or issued pursuant to law. However, wherever this Ordinance imposes greater restrictions, the provisions of this Ordinance shall govern.

¶ 27. According to the neighbors, Ordinance § 1.5 required the Committee to consider whether its approval of the CUP application effectively repealed, abrogated, annulled, impaired or interfered with the restrictive agreement and its prohibition against the use of Black Point estate for any purpose other than "first class residence property." This argument raises a broader issue of how the existence of private covenants impacts the administration of county zoning ordinances. We have not found a case in Wisconsin that directly addresses this point of law; however, the Committee has presented us with persuasive authorities supporting the principle that restrictive private covenants have no relevance to proceedings under the zoning laws.

¶ 28. We find the following excerpt from a leading zoning treatise to be a compelling statement for the proposition that private restrictive covenants and public zoning ordinances operate in entirely separate spheres:

[Z]oning is entirely divorced in concept, creation, enforcement, and administration from restrictions arising out of agreements between private parties who, in the exercise of their constitutional right of freedom of contract, can impose whatever lawful restrictions upon the use of their lands that they deem advantageous or desirable. Zoning restrictions and restrictions imposed by private covenants are independent controls upon the use of land, the one imposed by the municipality for the public welfare, the other private imposed for private benefit.
Both types of land use restrictions are held by courts to legally operate independently....
[I]f a property owner is otherwise entitled to a variance or special exemption, it should be granted, notwithstanding private covenants which would prohibit the proposed use.

5 Edward H. Ziegler, Jr, Rathkoff's The Law of Zoning and Planning §§ 82:2, 82:3 (2001). The case law supports the proposition stated in the treatise. See, e.g., Appeal of Michener, 115 A.2d 367, 370 (Pa. 1955) ("[I]t has been uniformly held that any consideration of building restrictions placed upon the property by private contract has no place in proceedings under the zoning laws for a building permit or a variance.").

¶ 29. Nevertheless, the neighbors contend that Ordinance § 1.5 in this case expressly allows for restrictive covenants ("[I]t is not intended that this Ordinance repeal, abrogate, annul, impair or interfere with any existing... deed restrictions."). The neighbors misinterpret the meaning of this language. This section of the ordinance simply assures that the issuance of a CUP does not repeal or impair a land use restriction established by agreement; it does not create an obligation on the part of the Committee to protect existing covenants.

¶ 30. This point is made clear in Kramer v. Nelson, 189 Wis. 560, 563, 565, 208 N.W. 252 (1926), a case which contains interesting parallels to the one before us in that a landowner's deed restriction preserved the property as first-class residence property and the zoning ordinance expressly negated any attempt to abrogate covenants or agreements. The landowner constructed a store building in violation of the deed. Id. at 562. Local zoning law had designated the street as a business district and the landowners claimed that the ordinance governed instead of the deed restriction. Id. at 565. The court rejected this argument since the ordinance by its terms expressed the intent not to annul such restrictions. Id. Under Kramer, zoning land for business use has no effect on existing restrictions confining the use of land to residential purposes. Similarly, the grant of a CUP for historic preservation has no effect on the deed restriction preserving Black Point estate as first-class residence property. Therefore, the Committee had no obligation to consider the deed restriction when evaluating the CUP application.

¶ 31. This interpretation of Ordinance § 1.5 is mandated by the federal and state constitutions that prohibit the impairment of contracts. Chappy v. LIRC, 128 Wis. 2d 318, 325, 381 N.W.2d 552 (Ct. App. 1985), aff'd, 136 Wis. 2d 172, 401 N.W.2d 568 (1987). Obviously, the County could not enact a law, nor could the Committee grant a permit, that impairs a legal contract. Stated differently, Ordinance § 1.5 recognizes that private contractual rights and government enforcement of zoning laws coexist; it ensures that the government may implement zoning laws without impinging on private contractual rights between citizens. Accord, Suess v. Vogelgesang, 281 N.E.2d 536, 543 (Ind. App. 1972).

¶ 32. The rule which we recognize here, that a private restrictive covenant is not grounds for denial of a proposed use, does not mean that parties to the covenant are without a remedy. When the terms of a zoning law conflict with those contained in restrictive covenants, the remedy for the breach is not through the zoning process but rather by an action for breach of covenant. 4 E.C. Yokley, Zoning Law and Practice § 26-4, at 346-47 (4th ed. 1979 & Supp. 2001); see Martel v. City of Vancouver Bd. of Adjustment, 666 P.2d 916, 921 (Wash. App. 1983), superceded by statute on other grounds as stated in Freeburg v. City of Seattle, 859 P.2d 610, 612 n.4 (Wash. App. 1993), ("Although a private covenant may provide grounds for a separate action to enjoin a proposed usage of land, the general rule is that such a covenant is not grounds for denial of a zoning variance.").

¶ 33. We also agree with the Committee's position that enforcement of private restrictions via the county's zoning authority would constitute an impermissible delegation of the police power to private entities. In this case, the neighbors in effect are seeking to have the zoning committee apply the ordinance to prohibit an alleged violation of a restrictive covenant entered into by private parties back in 1910. If the Committee refused to grant the permit because of the restrictive agreement, the agreement would then have the force of law. The Committee has no authority to enforce private covenants in this manner; to do so would involve an improper delegation of the municipality's police power to private individuals. See State ex rel. Sims v. Eckhardt, 322 S.W.2d 903, 909-10 (Mo. 1959) (discussing examples where ordinances which attempted to enforce private agreements were held to be void). To reiterate, the parties to a private restriction may challenge a use claimed to violate the restriction, even though that use may be permitted under the zoning ordinance, but they cannot ask the Land Management Committee to act as the enforcer.

Discovery on Certiorari Review

¶ 34. The neighbors contend that the circuit court erred in refusing to allow them to depose Greg DiMiceli, a lobbyist hired by Petersen to garner public support for the CUP application. The neighbors sought to question him regarding ex parte communications he may have had with Committee members which may have led to bias in the proceedings. To support their request, the neighbors produced a promotional brochure for DiMiceli's business that quoted Petersen as saying:

' We had a daunting task of trying to obtain approval for our project on both the state and local level. The opposition was well organized and motivated. Capital Impact Strategies provided planning and were positive in their approach. They understood our project and knew what had to be done. They were vital to our gathering the needed public support.

¶ 35. The circuit court's determination to disallow the requested discovery was based on its conclusion that certiorari review is limited to the record, unless a statute expressly permits enlargement of the record. For that reason, the court believed it lacked jurisdiction to consider evidence outside of the record before the Committee.

¶ 36. The general rule in common law certiorari is that the circuit court does not take evidence on the merits of the case and the scope of review is limited to the record presented to the tribunal whose decision is under review. Klinger v. Oneida County, 149 Wis. 2d 838, 846, 440 N.W.2d 348 (1989). Notwithstanding this well-settled tenet, the neighbors contend that two supreme court decisions "implicitly recognize [] that expansion of the record in an action on common law certiorari is permitted in appropriate cases." Both of these cases involved claims of deprivation of procedural due process in local zoning determinations.

¶ 37. In Marris v. City of Cedarburg, 176 Wis. 2d 14, 23, 498 N.W.2d 842 (1993), a municipal zoning board determined that an applicant's property had lost its legal nonconforming use status. The applicant claimed a due process violation based on prejudicial remarks made by the chairperson of the local zoning board, creating an impermissibly high risk of bias. Id. at 25-28. Those remarks were set forth in a letter from Marris' attorney to the chairperson in which the attorney requested that the chair recuse himself from deciding the matter. Id. at 27 n.12. The letter was part of the certoriari record. Id. Additionally, the chairperson's comments were preserved on a tape recording of the meeting of the board. The tape recording was included in the record on appeal to the court of appeals even though it apparently was not part of the certiorari record in the circuit court. Id. The board moved to strike all references to the tape recording prior to oral argument before the supreme court; the supreme court denied the motion.

¶ 38. The neighbors correctly point out that Mar-ris explicitly recognized the right of a party in a zoning proceeding to fundamental fair play which means the right to have matters decided by an impartial board. Id. at 24. In Marris, the court concluded that the chairperson's remarks showed an unreasonably high risk of bias and remanded the matter for a new hearing without the chairperson's participation. Id. at 31. The neighbors opine that Marris is precedent for the proposition that the law permits expansion of the record in a certiorari action.

¶ 39. We disagree with this interpretation of Mar-ris. First, the issue of expansion of the record was never taken up in the opinion of the supreme court. The court simply noted in a footnote that it had denied the request to strike quotes of the recording from the opposing party's brief. Second, in our view the tape recording memorialized the proceedings before the agency and, as such, may appropriately be considered part of the record. Indeed, the supreme court's order may well have been premised on that belief.

¶ 40. The neighbors also rely on Thorp v. Town of Lebanon, 2000 WI 60, 235 Wis. 2d 610, 612 N.W.2d 59, for its argument that a circuit court must expand the record where evidence of procedural unfairness exists. In Thorp, landowners brought a 42 U.S.C. § 1983 (1994) action claiming a due process violation based on alleged misrepresentations made by the chairperson of the town board. Thorp, 2000 WI 60 at ¶¶ 12, 20. The supreme court held that the landowners had failed to exhaust their administrative remedies and further noted that a certiorari review provided adequate post-deprivation remedies. Id. at ¶¶ 54-56. Thus, while Thorp affirms that certiorari review is an appropriate forum for allegations of unfairness in a zoning proceeding, it says nothing about the scope of review in a certiorari case.

¶ 41. Neither Morris nor Thorp squarely addresses the type of due process violation claimed in this case in which the alleged deprivation is not evidenced in the record before the Committee. Yet, both cases recognize the fundamental public policy favoring fair and impartial tribunals at the local level. Morris stands for the proposition that the lack of an impartial tribunal invokes procedural due process concerns:

[Z]oning decisions implicate important private and public interests; they significantly affect individual property ownership rights as well as community interests in the use and enjoyment of land. Furthermore, zoning decisions are especially vulnerable to problems of bias and conflicts of interest because of the localized nature of the decisions, the fact that members of zoning boards are drawn from the immediate geographical area, and the adjudicative, legislative and political nature of the zoning process. Since biases may distort judgment, impartial decision-makers are needed to ensure both sound fact-finding and rational decision-making as well as to ensure public confidence in the decision-making process.

Marris, 176 Wis. 2d at 25-26 (footnotes omitted). Thorp directs that the applicable remedy for deprivation of procedural due process is certiorari review of the decision-making body. Thorp, 2000 WI 60 at ¶¶ 54-55.

¶ 42. Thus, although we reject the neighbors' overbroad interpretation of these cases, we agree with the general proposition that they assert, which is that the public policy of promoting confidence in impartial tribunals may justify expansion of the certiorari record where evidence outside of that record demonstrates procedural unfairness. However, before a circuit court may authorize expansion, the party alleging bias must make a prima facie showing of wrongdoing. In Marris, for example, the letter documenting the chairperson's prejudicial remarks would, in our view, constitute a prima facie showing of bias. In this case, the neighbors allege that DiMiceli's marketing brochure implies that he may have had ex parte communication with members of the Committee and may have provided them with information, "oral or written, which they may have considered as part of the decision making process." At the very least, the neighbors contend, the brochure "plainly showed that something happened outside the official record of the hearings."

¶ 43. We determine as a matter of law that the neighbors have failed to demonstrate a prima facie showing of bias or even an impermissible risk of bias. See Marris, 176 Wis. 2d at 25. Petersen's statement contained in the brochure says only that DiMiceli had helped to gather public support for the project. Contrary to the neighbors' vehement assertions, it says nothing indicating that DiMiceli directly contacted Committee members nor does it infer that the members were influenced by something more than the application of the evidence to the ordinance standards. Indeed, it is clear that the neighbors have no idea if any contact occurred at all: "The sole and limited purpose for the requested discovery is to determine whether the lobbyist... contacted any Committee members ...This transparent attempt to use the discovery process as a fishing expedition to uncover evidence of bias is precluded by the presumption of honesty and integrity that we accord to the Committee's decision. Guthrie v. WERC, 111 Wis. 2d 447, 455, 331 N.W.2d 331 (1983).

¶ 44. Furthermore, the neighbors cite to no legal authority to support the contention that ex parte communication with Committee members under these circumstances is illegal. Given the localized and political nature of zoning decisions, and the status of Committee members as representatives of the community, it may be natural that such contacts occur. We hold that an allegation of ex parte contacts without more is not sufficient to show the impermissibly high risk of bias that concerned the court in Morris. Thus, even if the neighbors had actual evidence of ex parte communications, they would still fail to make a prima facie showing of a procedural due process violation in the absence of bias or an impermissibly high risk of bias. See Union State Bank v. Galecki, 142 Wis. 2d 118, 126-27, 417 N.W.2d 60 (Ct. App. 1987) ("Even if there was evidence of an ex parte communication, it would constitute material error only if Union was 'prejudiced by an inability to rebut the facts communicated and if improper influence on the decision maker appears with reasonable certainty to have resulted.'") (citation omitted).

¶ 45. To summarize, we conclude that the decision of the Committee in granting the CUP to Black Point Estate was based on substantial evidence. The Committee was not required to consider the applicability of the restrictive covenant in evaluating the CUP application. Finally, the neighbors failed to make a prima facie showing of an impermissibly high risk of bias to justify allowing additional discovery to supplement the certiorari record. We therefore affirm the circuit court's order and sustain the Committee's action in issuing a CUP to Black Point Estate.

By the Court. — Order affirmed.

       In 1997, legislation was enacted providing for the department of administration to accept the Petersens' gift of Black Point Estate. That legislation also appropriated $1.8 million as an endowment fund for management of the property and $1.6 million ' for a building fund. See Wis. Stat. §§ 23.0962, 20.866(2)(wr) (1997-98). All other references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The general intent of the ordinance is to, inter alia, regulate the use of land and conserve natural resources, stabilize and protect the natural beauty and property values of the county, lessen congestion, preserve natural growth and cover and facilitate the adequate provision of public facilities. Ordinance § 1.4.

       The CUP limits the number of tours to eight per day, with a maximum length of ninety minutes. According to the Committee, this means the traffic would consist of one shuttle bus entering or leaving the shuttle transfer point approximately every ninety minutes. Scharfenorth's report contradicted this estimate, asserting that it fails to include the additional trips to Black Point Estate attributable to employees, repairmen, service vendors and "curious on-lookers."

       In fact, the legislature required the owners to place a perpetual conservation easement on the property, pursuant to Wis. Stat. § 700.40 (1997-98), in order to protect the historic residence and regulate the shoreland property. Wis. Stat. § 23.0962(l)(d) (1997-98). This conservation easement, in combination with the funding appropriations, indicates to us the legislature's commitment to the project.

       The record includes a memorandum by real estate professor Richard K. Green stating that "historically preserved buildings tend to either enhance or have no impact on surrounding property values." It also includes an article from The AppRaisal JouRnal in which the author concludes that location in a federally certified historic district enhances the sales price of residential homes within the district.

       Ironically, the former owner had opposed the CUP application because he felt it would damage property values.

       The ordinance stated that "[i]t is not intended by this chapter to interfere with or abrogate or annul any easements, covenants or other agreements between parties." Kramer v. Nelson, 189 Wis. 560, 565, 208 N.W. 252 (1926).

       In fact, the validity of the restrictive covenant is pending on the remaining claim in the circuit court. We offer no comment on how the resolution of that remaining claim will ultimately affect the ability of Petersen and the State to operate under the conditional use permit.

       The court in Marris relied extensively on an article, Mark W. Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N.D. L. Rev. 161 (1989), to support its conclusion that prejudgment on the part of a committee member deprived the landowner of procedural due process, invalidating the decision. Marris v. City of Cedarburg, 176 Wis. 2d 14, 25-26, 498 N.W.2d 842 (1993). As the Committee points out, that article recognizes that ex parte communications are not a per se violation of due process in the context of zoning permit proceedings:
      [I]t would seem that some ex parte communication is a natural and even necessary part of zoning decision making.... To the extent that such decisions will often reflect policy concerns as well as factual determinations, it is natural that contacts occur.
      Similar concerns [regarding ex parte communications], though to a lesser degree, arguably also exist with respect to variance and special-use decisions made by appointed lay boards. Although such decisions are made pursuant to established criteria, there is little doubt that sensitivity to local concerns plays a role in decision-making because of the potential impact change has on neighboring land. Further, the primary expertise that such boards have is arguably in their capacity as representatives of community concerns. In this respect, they not only reflect their own natural biases, but it is not inappropriate to listen to community concerns.
      Cordes, supra, at 209 (footnotes omitted).