Groups file formal objection to Madison’s bird ordinance

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A group of construction and development trade groups filed a formal objection on Wednesday to rules the city of Madison enacted last summer to require that new high-rise buildings have features to protect birds.

The conservative legal group Wisconsin Institute of Law and Liberty filed a so-called notice of claim objecting to the ordinance on behalf of four trade groups: the Associated Builders and Contractors of Wisconsin, the Commercial Association of Realtors of Wisconsin, the Wisconsin Builders Association, and NAIOP Wisconsin – the Commercial Real Estate Development Association.

The notice accuses Madison of violating the state’s uniform building code by enacting an ordinance last August requiring certain large buildings to use certain types of glass to ward off birds. Madison’s Common Council unanimously approved the rules despite objects from developers, architects and other industry interests.

Dan Lennington, WILL deputy counsel, said Madison’s ordinance runs afoul of Wisconsin’s uniform building code, which bars municipalities from enacting rules that are stricter than state law. The notice of claim filed by WILL is a precursor to a formal lawsuit and gives Madison 120 days to change its ordinance before the dispute lands in Dane County Circuit Court.

“When we saw Madison’s ordinance, we thought we should take some action,” he said. “It injects a lot of uncertainly into what cities and local units of government can do.”

The city’s ordinance requires developers to use glass engraved with dots or lines, for instance, or make design choices that will decrease the chances that a bird will confuse a building with the open sky. A few criteria are used to determine when the special glass is required. Structures that are larger than 10,000 square feet must have it.

And buildings that have glass on more than half of their first 60 vertical feet must have the special glass for at least 85% of their facades. Glass within 15 feet of the corner of a building must be treated to prevent bird collisions. And sky bridges or at-grade glass features on any size building — such as sound walls or glass screens — must also have the special glass.

In devising their ordinance, Madison officials drew on similar rules in cities such as San Francisco and Toronto. Other Wisconsin cities may be following Madison’s suit. The Milwaukee suburb of Wauwatosa, for instance, may be considering an ordinance of its own to prevent bird collisions.

Lennington said construction and development groups are challenging Madison’s ordinance to discourage other Wisconsin cities from enacting similar rules of their own.

“The benefit of the uniform code is that there are settled exceptions of builders, contractors, developers and property owners,” he said. “When they build and design buildings, there are certain expectations they have that there are a uniform set of rules. We think there’s a great economic benefit in Wisconsin to having those rules.”

Madison’s ordinance may run afoul of state law because it requires the use of construction materials that aren’t listed in Wisconsin’s building code.

A legal memo from Wisconsin Legislative Council last fall found 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 overstep is costly. Increased costs, especially when they’re not required by the building code, are passed on to consumers in the form of higher rental costs,” said WBA Executive Director Brad Boycks, executive director of the Wisconsin Builders Association. “The city of Madison going above and beyond the code not only undermines the law, but has a negative impact on rental costs for Madison families.” Follow @natebeck9