ABC Wisconsin and four other trade associations sue Madison over bird glass ordinance

WILL filed a notice of claim in March warning the city that bird glass ordinance violates state law

By John Schulze, ABC of Wisconsin Director of Legal & Government Affairs

Associated Builders and Contractors of Wisconsin is the lead plaintiff in a lawsuit in Dane County Circuit Court against the city of Madison over a mandatory bird-safe glass ordinance that is preempted by state law.

ABC and the other trades associations — the Commercial Association of Realtors of Wisconsin, NAIOP Wisconsin – the Commercial Real Estate Development Association, the Wisconsin Builders Association, and the Wisconsin Realtors Association — are being represented by the Wisconsin Institute of Law and Liberty.The legal challenge asserts the city ordinance undermines and violates Wisconsin’s Uniform Building Code.

WILL Deputy Counsel, Lucas Vebber, said, “Wisconsin’s uniform building code is a critical component of a successful economic environment. Madison’s bird-safe glass ordinance violates state law and creates significant uncertainty and added costs for developers, building owners, and their tenants.”

“Wisconsin’s Uniform Commercial Building Code passed with overwhelming support from Democrats and Republicans because it simplified and streamlined building regulations, keeping costs reasonable without affecting safety or quality,” said John Mielke, ABC of Wisconsin president. “Madison’s Bird-Glass ordinance, no matter how well-intentioned, is the first slippery step toward creating a confusing patchwork of local red tape and higher building costs.”

In August 2020, the Madison Common Council adopted an ordinance that “all exterior construction and development activity” for buildings over 10,000 square feet, skyways, and other glass features, must meet new “bird-safe glass treatment requirements.” The ordinance went into effect on October 1, 2020.

Since 2014, Wisconsin has had a uniform commercial building code. To ensure Wisconsin’s code is uniform, state law provides that no city “may enact or enforce an ordinance that establishes minimum standards for constructing, altering, or adding to” buildings unless that ordinance “strictly conforms” to the uniform building code adopted by the Department of Safety and Professional Services (DSPS). The administrative rules make clear that cities may not enact or enforce a local ordinance that imposes “additional or more restrictive” standards than the uniform building code.

Madison’s ordinance is illegal and preempted by state law. It violates the settled expectations of builders, contractors, developers, and property owners. It imposes “additional or more restrictive” standards for glass and violates Wisconsin’s uniform building code. Additionally, the ordinance would hinder the creation of good-paying jobs, raise housing costs and commercial rents, and drive investments away from the City of Madison.

The Madison ordinance covers:

  • any building, to glass on above-ground bridges connected to the building;
  • any building, to ground-level glass features; and
  • a building having over 10,000 square feet of above-ground floor space, to specified glass features (such as exterior glass railings) and to specified large areas of exterior glass (such as where the first 60 vertical feet of a building consists of at least 50 percent glass).

The Madison ordinance requires that glass on the above-listed buildings be treated with one of the following:

  • incorporated visual markers that are either dots or other isolated shapes of a specified diameter placed in a specified pattern;
  • incorporated visual markers that are lines of a specified width placed with specified spacing;
  • low-reflectance opaque materials;
  • building-integrated structures, like non-glass double-skin facades, metal screens, fixed solar shading, exterior insect screens, or other features that cover the glass surface; or
  • other similar mitigation treatments approved by the city zoning administrator.

WILL filed a Notice of Claim on March 4, 2021 with the City of Madison on behalf of a group of real estate, development, and building associations. A notice of claim is required before a lawsuit can commence.

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