For the Birds, Literally: Madison’s New Construction Ordinance

AT LEAST ONE OTHER WISCONSIN MUNICIPALITY LOOKING AT DOING THE SAME. 

The city of Madison’s bird-safe glass ordinance may fly in the face of the state of Wisconsin’s Uniform Commercial Building Code (Uniform Code).

With the goal of streamlining building regulations and keeping costs reasonable without affecting safety or quality, legislation supported by Democrats and Republicans established a Uniform Code in Wisconsin,¹ and designates the Wisconsin Department of Safety and Professional Services as the state agency to promulgate and adopt the Uniform Code via the administrative rules process.²

As a result, with few exceptions, local ordinances cannot establish a standard for constructing, altering, or building an addition to most commercial buildings³ unless the ordinance “strictly conforms” to the Uniform Code.⁴

MADISON’S ZONING CODE ORDINANCE

In an effort to reduce the risk of bird colliding with buildings, effective Oct. 1, 2020, Madison created a new general ordinance section, titled “Zoning Code Ordinance,” and adopted a bird-safe glass ordinance for “all exterior construction and development activity” for certain exterior construction and development activity, including expansion of existing buildings and structures.⁵ The City of Wauwatosa is also considering enacting a similar ordinance.

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.

ISSUES AND CHALLENGES

The line between zoning and building code “is not easily drawn.”⁶ Local units of government may use their police powers to regulate public health, safety, and welfare.⁷

The state presumption does not affect certain fire detection, prevention, and suppression ordinances, or land use or zoning ordinances.⁸ Municipalities may not enact or enforce a local ordinance that imposes additional or more restrictive standards than the uniform building code.

Four construction and real estate trade associations, including ABC of Wisconsin, and the free market Wisconsin Institute of Law and Liberty (WILL) believe Madison’s new ordinance is illegal, no matter how well intentioned, and is the first step toward a confusing patchwork of local red tape and higher building costs for builders, contractors, developers, and property owners.

The remedy sought by these parties is a declaration that the ordinance is preempted by state law and an injunction preventing enforcement of the ordinance.

WILL’s Notice of Claim starts a 120-day timeline before a lawsuit against the city can commence in early July.

Read More:

• WILL Notice of Claim, March 3, 2021

ENDNOTES

¹ 2013 Wisconsin Act 270, effective April 18, 2014.

² Wis. Stat. § 101.02(15)(j). § SPS 360-366.

³ Public buildings or buildings that are places of employment.

⁴ “Strictly conformed” defined as additional or more restrictive. Wis. Stat. § 101.02(7r) (a).

⁵ Madison General Ordinance § 28.129.

⁶Wind Point v. Halverson, 38 Wis.2d 1, 8 (1968).

⁷ Wis. Stat. §§ 62.11 & 61.34.

⁸§ SPS 361.03 (5)(a) 1 and 2.