Madison, ABC of Wisconsin begin arguments on bird glass ordinance before Wisconsin Court of Appeals

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By Ethan Duran

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Attorneys for the Associated Builders and Contractors (ABC) of Wisconsin and the City of Madison began oral arguments Wednesday for an appeal to reverse the city’s bird glass ordinance before a three-judge panel from the Wisconsin Court of Appeals District 4 inside the Wisconsin Supreme Court Hearing Room in Madison.

The appeal seeks to reverse a Dane County Judge’s decision to rule to uphold a Madison ordinance which requires buildings larger than 10,000 square feet to require features like dots or markings to deter birds from colliding into structures. ABC, NAIOP Wisconsin Chapter, Commercial Association of Realtors Wisconsin, Wisconsin Builders Association and Wisconsin Realtors Association are the appellants in the case.

Glass areas on certain buildings and structures are required to use a pattern of visual markers that are either dots or shapes that are a quarter inch in diameter or larger and are spaced in two-inch-by-four-inch patters or lines that are one eighth inch in width or greater and spaced no more than two inches apart of visual markers, according to the ordinance. Other visual markets include double-skin facades, metal screens, fixed solar shading, exterior insect screens and other features that cover glass surfaces and mute surface reflections.

The rule applies to buildings larger than 10,000 square feet for building facades where the first 60 feet from grade are made of greater or equal to 50% glass, building facades where the first 60 feet from grade is less than 50% glass, sky bridges and at-grade glass, according to the ordinance.

The Court asked both parties to address six topics, which included the intrastate preemption, how state law preempts local zoning ordinances, the scope of the Department of Safety and Professional Services’ authority to promote the statewide building commercial code and how future rulemaking might affect codes in other municipalities. The court also asked the parties to discuss whether the bird-safe glass ordinance was a form-based zoning ordinance.

While speaking before the judges, Wisconsin Institute of Law and Liberty (WILL) Deputy Counsel Lucas Vebber said state law and standards held by DSPS pre-empted Madison’s ordinance. Madison had argued the ordinance was a zoning code and was exempt from state law, which ABC disputed.

“Even if it did exempt zoning codes, this particular ordinance is not a zoning code, it’s a building code. That’s because it sets the minimum standards for the construction of buildings, which is what it does by defining what glass has to be used in buildings,” Vebber told The Wisconsin Law Journal.

He noted the DSPS’ building codes, which were implemented with the International Building Code, included safety standards for people.

Judges JoAnne Kloppenburg, Brian Blanchard and Rachel Graham asked Vebber questions about which state law provisions conflicted with Madison’s ordinance and how safety tied in with an ordinance meant to protect aves.

In this case, putting additional markings, covers and other devices on windows goes beyond what DSPS codes decided is safe, Vebber responded.

In her response before the panel, Madison Assistant City Attorney Kate Smith said there would be potential ramifications for municipalities across the state if the court ruled on ABC’s side. She gave examples of communities in Wausau, Fond du Lac, Shorewood and Mequon which had ordinances that decided the physical character of their buildings’ exterior facades.

“All of this would be called into question,” and would change what peoples’ downtowns look like, Smith added.

The judges also voiced concerns about how ABC’s interpretation may affect other ordinances in Madison and the rest of the state if they were preempted by state law.

Smith argued that Madison’s bird glass ordinance was a valid zoning ordinance and wasn’t preempted by state law. According to the city’s response brief, 2013 Act 270 restricts municipalities from enforcing regulations harsher than the Wisconsin Commercial Building Code and excluded zoning ordinances.

Vebber said the city’s concerns about ramifications beyond the bird glass ordinance were “largely overblown.”

“We don’t think it’s going to have broad (consequences.) It’s a limited preemption and that’s what we’d stick with. The court is very engaged, they recognized these are important issues with broad interest throughout the state. I’m sure it will take some time before they come up with an opinion,” Vebber told The Wisconsin Law Journal.

The Wisconsin Law Journal reached out to Madison attorney Kate Smith and the City Attorney’s Office, but did not receive an immediate response.

The Madison Audubon Society, an interested party in the case, said upholding Madison’s ordinance wouldn’t hurt the plaintiffs because it applies to all builders equally, according to the society’s Amicus Curiae brief. The plaintiffs did not provide evidence of adverse financial impact and the ordinance did not preclude them from using glass to meet the minimum standards of building code, the Amicus Curiae brief added.

However, Steve Holzhauer of Eppstein Uhen Architects (EUA) in 2020 wrote he was concerned the new rule could drive projects outside the city.

“If this ordinance is adopted, Madison will add to the complexity and challenge related to recruiting new high-quality development to the city,” he noted.