By Ethan Duran
The legal battle over bird-safe façades for new Madison projects continued after city attorneys responded on Friday to an appeal from construction trade groups. A Dane County judge decided in August to uphold a city ordinance requiring new projects over 10,000 square feet to include designs to mitigate bird collisions.
City attorneys argued the requirement for bird-safe glass on new developments was a common and legal zoning practice, court documents showed. Lawyers from the nonprofit Wisconsin Institute of Law & Liberty representing four trade groups argued the ordinance had more strict rules than state law and violated the state building code.
The four trade groups involved are the Associated Builders and Contractors of Wisconsin, the Commercial Association of Realtors of Wisconsin, NAIOP Wisconsin and the Wisconsin Builders Association, court records showed. The Wisconsin Realtors Association is listed as a plaintiff as well.
WILL’s brief said the circuit court “erred in concluding that the Ordinance was a valid ‘form-based’ zoning ordinance,” and argued Wisconsin law doesn’t recognize form-based zoning ordinances. The attorneys said the Dane County judge’s ruling should be reversed because the ordinance serves as a building code.
“State law preempts local units of government, including Defendant, from enacting and/or enforcing ‘an ordinance that establishes minimum standards for constructing, altering, or adding to public buildings or buildings that are places of employment unless that ordinance strictly conforms to’ the statewide standards adopted by (the Department of Safety and Professional Services,)” WILL’s lawyers wrote.
In their response, city attorneys said the ordinance didn’t fall under building codes and it was up to the builder to decide how much glass to put on a new building. If builders trigger the requirement, they would be able to use mitigation efforts like stickers which didn’t alter the building the same way state construction standards would require, lawyers added.
“Requiring bird-safe façade glass or other mitigation efforts is no different than regulating building façade materials – a common and legal zoning practice,” Madison attorneys wrote. “The Ordinance applies to all new exterior construction and development activity only if the builders choose to build above a certain percentage of the building’s façade made of glass. The builder can create a building that would never trigger the requirement.”
The appealing party will have to submit a reply brief by Jan. 17, court records showed. After that, the Court of Appeals will have to decide, which can take between nine to 12 months depending on how quickly the court acts.
As more high-rise buildings add glass to their facades, bird deaths caused by slamming into windows staggered into the hundreds of millions and is the second-leading cause of bird deaths caused by people, the Madison Audobon Society said on its website. In its own study, the Audobon Society found a total of 718 birds died and 44 were injured after hitting windows between 2018-20 in the Madison area, and members said this reflected only a fraction of actual deaths in the area.
Ordinances requiring bird-friendly building design already exist in large metro areas like New York City, the Audobon Society said. Local legislators explored similar ordinances in Chicago and Wauwatosa.