A Madison ordinance designed to protect birds from crashing into glass surfaces did not violate a state law that prohibits cities from enacting stricter building codes than the statewide commercial building code, a state Court of Appeals panel ruled Thursday.
The ruling by the District IV Court of Appeals panel upheld a earlier decision by Dane County Circuit Judge Nia Trammell and handed a defeat to the Associated Builders & Contractors of Wisconsin, the Commercial Association of Realtors Wisconsin, NAIOP Wisconsin Chapter, the Wisconsin Builders Association, and the Wisconsin Realtors Association.
Those organizations thought that protecting the birds was not worth the money it would cost and sought to have the ordinance blocked.
The Madison measure requires certain buildings to treat glass in a way that reduces the chances that birds will crash into it. Madison is on a major migratory bird pathway and "local groups estimate that tens of thousands of birds are injured or killed every year" when they crash into glass, Appellate Judge Rachel Graham wrote for the three-judge panel.
She was joined by Appellate Judges Brian Blanchard and JoAnne Kloppenburg.
"The question is whether the ordinance establishes what is effectively a building code standard, even though it was passed as a zoning ordinance," Graham said.
"Much of our questioning at oral argument was related to this topic — what is the essence of a building code standard, and what test can we use to determine whether a local ordinance is effectively a building code standard, even if it has been labelled as something else? These are not easy questions to answer," she wrote.
The panel rejected a standard proposed by the associations because it would lead to arbitrary results, Graham said.
"We discern a more reliable and reasonable test to determine, for purposes of the preemption issue presented here, whether a local ordinance imposes a standard that is effectively a building code standard," she wrote.
The court test considers "whether the local ordinance sets minimum standards that are meant to ensure that buildings are constructed in such a way that they are structurally sound, and are equipped with systems and components — whether electrical, gas, plumbing, mechanical, or some other — such that the buildings are safe for employees, frequenters, and the public," Graham said.
The Madison ordinance, under that test, is not a building code ordinance.
"The standards set by the ordinance are not meant to address the structural integrity of buildings or any of their systems or components," Graham wrote. "Nor is the ordinance about making the buildings safe for employees, frequenters, and the public. Instead, the ordinance’s standards require the treatment of exterior glass windows in certain buildings, and its stated and evident purpose is to set standards that will make these exteriors visible to birds."
Comments