Lawsuit challenging Madison bird-safe glass ordinance delivered to appeals court

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The case to decide whether a Madison ordinance requiring bird-safe glass on tall buildings will stay in effect is now awaiting assignment in the Wisconsin Court of Appeals.

The lawsuit aims to reverse a Dane County judge’s decision to uphold a Madison ordinance requiring buildings larger than 10,000 square feet to use designs to stop birds from colliding with structures. The conservative legal group Wisconsin Institute of Law and Liberty filed a reply brief on behalf of four trade groups on Tuesday, court records showed.

The Associated Builders and Contractors of Wisconsin, NAIOP Wisconsin, the Commercial Association of Realtors of Wisconsin and the Wisconsin Builders Association filed the appeal in August after the judge’s decision. WILL’s lawyers argued the city’s ordinance violated state law by enforcing rules stricter than the state code.

“The city argues that the state law in question exempts “zoning” ordinances, and further that the ordinance is a “form-based” zoning ordinance, and is therefore lawful,” the reply brief said. “For the reasons stated in the associations’ opening brief, and as further explained herein, the City is incorrect, the ordinance should be declared unlawful, and the circuit court’s decision should be reversed.”

From Madison’s perspective, a requirement for bird-safe façade glass – which could be engravings like lines or dots in glass, for example – is the same as regulating building façade materials in common zoning practices, the city’s attorneys wrote in a brief filed Dec. 30. The rule would also apply to only new construction with enough glass in its façade, they added.

“This is a tremendously important case regarding separation of powers and government authority here in Wisconsin,” WILL Deputy Counsel Lucas Vebber said. “We continue to believe the city’s ordinance is unlawful and pre-empted by state law, and look forward to the Court of Appeals reviewing this matter.”

Experts and bird advocates said tens of thousands of birds die in Madison each year, which turns into “immeasurable” costs to the city, Madison Audubon Society Director Matthew Reetz said in 2020 when the city first adopted the ordinance.

Development interests, including EUA’s Steve Holzhauer, SAID the new rule would drive up building costs.

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

Dane County Circuit Court Judge Nia Trammell ruled in Madison’s favor in August of 2022 after WILL representing the trades groups sued the city in 2021.