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Lawsuit challenges Madison building ordinance meant to protect birds

A group of construction and development interests filed suit against the city of Madison on Thursday over an ordinance local officials adopted last summer to require that new high-rise buildings be designed in a way intended to prevent bird collisions.

The suit, from four trade groups, argues the city’s ordinance violates Wisconsin’s uniform building code, which generally prohibits cities from enacting rules that are stricter than state law. The conservative group Wisconsin Institute for Law and Liberty is representing the Associated Builders and Contractors of Wisconsin, the Commercial Association of Realtors of Wisconsin, NAIOP Wisconsin, the Wisconsin Builders Association and the Wisconsin Realtors Association in the case.

Madison unanimously approved an ordinance last August requiring that bird-safe glass be installed on buildings with more than 10,000 square feet. Cities such as San Francisco and Toronto have already adopted similar rules. And research generally shows that birds are more likely to crash into buildings outfitted with lots of glass.

“Wisconsin’s uniform building code is a critical component of a successful economic environment,” said Lucas Vebber, deputy counsel at WILL. “Madison’s bird-safe glass ordinance violates state law and creates significant uncertainty and added costs for developers, building owners, and their tenants.”

Madison’s bird-safe rules require developers to use glass that’s engraved with dots or incorporate other design features meant to keep birds from confusing high-rises with open patches of sky. The ordinance stipulates that bird-safe glass must be used on buildings on which glass is to make up at least half of their first 60 vertical feet. Designers must also use bird-safe glass within 15 feet of the corner of a building and on sky bridges, among other projects.

The ordinance took effect on Oct. 1, over objections from architects, developers and other representatives of the building trades. Madison was the first Wisconsin city to require bird-safe glass on new construction. Officials in at least one other city — Wauwatosa — have considered similar rules.

WILL, in its complaint, argues Madison’s ordinance oversteps state law, violating Wisconsin’s uniform building code. The filing comes after the groups last spring submitted a notice of claim, which is a precursor to a formal lawsuit. WILL’s lawsuit builds on a legal memo from Wisconsin Legislative Council last fall finding that Madison’s requirement arguably violates the state’s building code because it imposes standards that are stricter than those established by the state Department of Safety and Professional Services.

“This unnecessary overstep not only undermines the law, but will result in increased costs which will be passed on to consumers in the form of higher rental costs,” said Brad Boycks, executive director of the Wisconsin Builders Association.

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