A Dane County judge ruled today that the city of Madison is legally allowed to enact an ordinance requiring bird-safe glass be installed in new buildings over 10,000 square feet.
Madison first enacted their ordinance requiring bird-safe glass in 2020 to prevent birds from flying into large glass buildings. The ordinance requires dots, patterns, lines, and other features be placed on the glass to reduce the risk for bird collisions.
Matt Reetz is the Executive Director of the Madison Audubon Society. He says that there are multiple options available to developers to help prevent bird collisions.
“There are lots of ways builders can do this, they can put dots on the glass, there are lots of ways to put design elements in front of the glass that change the reflectivity. There are a whole bunch of options available to builders to make their buildings more bird friendly, including bird-glass which makes it more visible and then reduces those bird collisions,” Reetz says.
But the heart of the lawsuit lies within the cost those options would impose on developers. William Connors with developer advocacy group Smarter Growth Greater Madison told WORT last year that even the cheapest bird safe glass costs double that of normal building glass.
The lawsuit was brought forward last year by the conservative legal firm the Wisconsin Institute for Law and Liberty, or WILL, on behalf of five realty, development, and construction groups.
The lawsuit claims the ordinance violates a state law, enacted in 2014, that creates a uniform building code throughout the entire state, and does not allow municipalities to enact any additional or more restrictive standards.
By enacting the bird-glass ordinance, the lawsuit claimed, the city of Madison came in direct violation of that law.
But the city of Madison argues that the ordinance is legal, as it falls under the city’s zoning code, which is not regulated by the 2014 law.
Lucas Vebber is Deputy Council with WILL. He breaks down the two issues at the heart of WILL’s argument.
“Our legal arguments was that first, the zoning ordinances are not exempt from the preemption, the statutory language does not say any non-zoning ordinances, it just says municipal ordinances cannot be enacted. The next legal question was, is the bird-safe glass ordinance and building ordinance or a zoning ordinance? Our argument there is that, even if zoning ordinances were exempt, the Madison bird glass ordinance is not a zoning ordinance, it is a building ordinance,” Vebber says.
Dane County judge Nia Trammell ruled against WILL today, saying that zoning ordinances are exempt from the 2014 law, and that the bird-glass ordinance does act as a zoning ordinance. If zoning ordinances were covered in the 2014, Judge Trammell says in today’s ruling, local zoning authority would become crippled, and all zoning authority would then be subject only to state designations.
Madison City Attorney Mike Haas says, if WILL’s argument that the 2014 law affected zoning ordinances were to hold, it would have consequences affecting municipalities across the state.
“Zoning regulations are a planning device for municipalities, for (them) to set certain standards for the use of properties within the municipality so that there are well thought out and comprehensive plans for the growth of the entire city. This was a specific ordinance being challenged, and the decision was specific to this regulation, but I think it does have a significant impact on the city’s ability to continue to enact zoning regulations,” Haas says.
Additionally, Haas says that today’s ruling just reaffirmed what the city already knew.
“We were confident that the bird glass ordinance was valid when the council passed it, and the court ultimately agreed that it was a valid zoning regulation,” Haas says.
Matt Reetz says that today’s ruling is a win for the birds.
“We’re super excited because it’s of course really great for the birds themselves, who definitely need any help that we can give them, but it’s great more broadly too. There are so many people who enjoy birds who find benefits from them, mental and emotional help from them. Also, birds really matter. They are really important, protecting birds is really important. What’s good for birds is what’s good for Wisconsin, so this is great news for all of us, really,” Reetz says.
Lucas Vebber says that WILL intends to appeal the decision.
Photo courtesy: Chali Pittman / WORT News Team