Wisconsin court upholds Madison’s bird-safe glass ordinance

The Wisconsin Court of Appeals on Thursday announced the Madison ordinance to protect birds with marked glass on large buildings will stay. The rule was the center of a years-long legal battle between the city and five trade associations.

The court upheld a Dane County Circuit Court Judge’s 2022 decision to maintain the Madison ordinance. The measure requires bird safe window-treatment, such as dots or markings, for buildings 10,000 square feet or larger. Because birds might not be able to tell a glass building is a barrier, they are at higher risk for deaths and collisions around skyscrapers, according to the U.S. Fish and Wildlife Service.

“We conclude that Wis. Stat. § 101.02(7r)(a) does not preempt the city’s bird-safe glass ordinance. Accordingly, we affirm the circuit court order that granted summary judgement in the city’s favor and dismissed this lawsuit,” the appeals court said in an opinion.

The Associated Builders and Contractors (ABC) of Wisconsin, the Commercial Association of Realtors Wisconsin, NAIOP Wisconsin Chapter, Wisconsin Builders Association and Wisconsin Realtors Association in 2021 together appealed the circuit court judge’s decision. The city of Madison was the respondent in the case.

The ordinance states that glass areas on certain buildings must use a pattern of visual markers, such as dots or other shapes, double-skin facades, metal screens, fixed solar shading and more to differentiate it from the open sky. The rule applies to building facades where the first 60 feet from the ground are made up of 50% glass or more, according to the ordinance text. The ordinance was signed into effect in 2020.

John Schulze, director of legal and government affairs for ABC, said the organization was disappointed in the outcome, and said the uniform state building code was less expensive for builders. The organization had nothing against birds, he remarked.

“What we don’t like is local governments making their own construction requirements. There is a statewide building code for a reason – uniform standards save money,” he added.

The city still had its doors open to builders who wanted development safe for migratory birds, said Kate Smith, assistant attorney for the city of Madison.

“The city is happy with the Court’s decision and looks forward to continuing to work with builders to support Madison’s growth with development that is safe for migratory birds,” she noted.

Meanwhile, proposals for bird-safe glass have had varying successes in different parts of Wisconsin and the rest of the nation. In September, the Appleton Common Council voted down a resolution to treat glass on city buildings to prevent bird strikes. The city council in Berkely, Calif. approved requirements for new major construction projects to include bird-safe glass, and a committee in the city of Portland, Ore. had planned to discuss similar rules.