Madison-area developers, led by the Wisconsin Institute for Law and Liberty (WILL), are mounting the first-ever legal challenge to a bird-friendly building ordinance. This is concerning news for conservation groups, including Bird City Wisconsin, the Wisconsin Society for Ornithology, Madison Audubon Society, and American Bird Conservancy (ABC), which has worked for years to promote bird-friendly building-design legislation and to reduce the threat of window collisions to birds.
“We’ve long understood that suburban development is a threat to birds, but developers suing to attack bird protection is a new low,” said ABC President Mike Parr. “People want to live around birds and nature, not see them wiped out by developers.”
On Aug. 4, 2020, the Madison Common Council unanimously adopted Wisconsin’s first bird-friendly building ordinance with input from ABC and Madison Audubon. The city-wide ordinance requires large new construction and expansion projects to use bird-safe strategies and materials. It has been in effect, without issue or contention, since Oct. 1, 2020.
Each year in the United States, up to one billion birds die after colliding with glass -- that’s approximately 2.7 million birds each day. These deaths are largely preventable through the use of bird-friendly design, a set of practices that includes reducing the total amount of glass, and using bird-friendly building materials that help birds avoid colliding with buildings.
Twenty-two bird-friendly building design guidelines have been adopted in the United States and Canada, and many more are pending. Bird-friendly design is also part of many green building guidelines, including the U.S. Green Building Council’s LEED program. This is the first legal challenge to any of these guidelines.
According to Dr. Bryan Lenz, ABC’s bird collisions program manager and Bird City Wisconsin's board chair, this “first-of-its-kind challenge to a bird-friendly building ordinance is more or less a lawsuit aimed at overturning the will of the citizens of Madison so that the construction community does not have to take reasonable actions to keep their buildings from killing the city’s wildlife. Designing buildings so that they do not kill birds is the right thing to do because protecting birds is the right thing to do.”
Given the suit’s potential to influence similar future ordinances throughout the state, Wisconsin’s bird champions, including Bird City Wisconsin, the Wisconsin Society for Ornithology, and ABC, encourage the city in its effort to defend against the suit.
WILL contends that Madison’s ordinance runs afoul of a 2014 state law that bars cities from adopting requirements that go beyond the minimum standards adopted by the Department of Safety and Professional Services.
The suit was filed on behalf of Associated Builders and Contractors of Wisconsin, the Commercial Association of Realtors of Wisconsin, NAIOP Wisconsin (a chapter of the Commercial Real Estate Development Association), the Wisconsin Builders Association, and the Wisconsin Realtors Association.
“It could create a competitive disadvantage for cities where the uniform building code is not adhered to,” said Tracy Johnson, president of the Commercial Association of Realtors of Wisconsin. “Businesses and their commercial real estate partners rely on the uniform building code to ensure certainty in cost and delivery.”
Asst. City Atty. John Strange defended the ordinance as a valid exercise of zoning authority.
“The city’s bird-safe glass ordinance does not set a construction standard,” Strange said. “Madison’s ordinance just requires treatment of windows if a developer chooses to construct a façade with a certain percentage of windows.”
Show your support for wildlife and birds. Sign Madison Audubon’s online petition in favor of bird-safe glass.