Oct. 16, 2023 – A city zoning ordinance that requires treating building glass is not subject to a state law that preempts municipalities from enacting building provisions stricter than the state building code, the Wisconsin Court of Appeals has ruled.

In Associated Builders and Contractors of Wisconsin, Inc. v. City of Madison, 2022AP1468 (Oct. 5, 2023), the Court of Appeals District IV held that whether a zoning ordinance is preempted by the state building code depends on the content and purpose of the ordinance.

Building Glass Ordinance

In October 2020, the City of Madison (City) enacted a zoning ordinance designed to reduce the risk of birds colliding with glass buildings.

The ordinance requires that building glass be treated with visual markers arrayed in patterns, or that buildings use opaque materials, non-glass facades, metal screens, solar shading, or other glass coverings.

Associations File Lawsuit

In July 2021, a consortium of trade associations (Associations) filed a complaint in Dane County Circuit Court. The Associations asked the court for a declaration that the ordinance was preempted by Wis. Stat. section 101.02(7r)(a).

That statute specifies that no municipality may enact or enforce an ordinance that sets standards for buildings unless the ordinance strictly conforms to rules adopted by the state Department of Safety and Professional Service (DSPS), with certain exceptions.

The circuit court concluded that zoning ordinances are exempt from the preemptive effect of section 101.02(7r)(a).

The Associations appealed.

Not More Restrictive

Writing for a three-judge panel, Judge Rachel A. Graham explained that section 101.02(15)(j) directs DSPS to create a statewide building code, which is contained in Wis. Admin. Code ch. SPS 361-366.

Graham pointed out than a provision of the building code, Wis. Admin. Code section SPS 361.03(5)a1. specifies that no municipality “may enact or enforce an additional or more restrictive local ordinance that establishes minimum standards for constructing, altering, or adding to public buildings that are places of employment.”

The Association argued that section 101.02(7r)(a) plainly prohibits a municipality from enacting or enforcing any ordinance that falls within the scope of the statute.

But that argument misstated the interpretive task before the court, Judge Graham reasoned.

“The interpretive question at issue in this case is how to determine whether a local ordinance sets ‘minimum standards for constructing … public buildings,’” Graham wrote.

“The assertion that ordinances that ‘fall under [the language] of that statute’ are preempted by the statute does nothing to identify the types of local ordinances that come within the ambit of the language and are thus preempted.”

Cities Retain Significant Authority

Judge Graham concluded that the legislature, in enacting section 101.02(7r)(a), meant only to preempt minimum building code standards.

She reasoned that the primary focus of section 101.02 was the authority of DSPS to adopt a statewide building code.

“But it is also apparent that the legislature contemplated that local governments will continue to have significant authority over public buildings, even after the establishment of a uniform code,” Graham wrote.

Judge Graham pointed out that section 101.02(7)(a) specifies that nothing in sections 101.01-101.599 is to be construed to neuter “any power or jurisdiction” or a municipality “over of or relative to” any public building.

She also noted that the wording used to describe the building code in the section granting DSPS authority to adopt the code (section 101.02(15)(j)) and the wording used to describe the building code in the preemption statute (section 101.02(7r)(a)) were nearly verbatim: “standards” “for constructing, altering, adding to” “public buildings.”

“The parallels and cross-references between these paragraphs suggest that the local minimum standard preempted by section 101.2(7r)(a) are those that are of like kind to the standards set forth in the statewide commercial building code promulgated by DSPS, rather than any standards regulating the construction of public buildings,” Graham wrote.

Statute Viewed in Context

Judge Graham also looked at statutes related to section 101.2(7r)(a) to conclude that that section did not apply to City’s ordinance:

• section 62.04 specifies that chapter 62, governing cities, is to be “liberally construed in favor of the rights, powers, and privileges of cities to promote the general welfare;”

• section 62.23(7)(am) authorizes cities to restrict buildings height and size for the general welfare of the community; and

• section 62.23(7)(b) authorizes cities to regulate the construction, alternation, and use of buildings in certain districts,

“An over-broad interpretation of the phrase ‘minimum standards for construction … public buildings’ would prevent cities from regulating any aspect of the construction of public buildings, including in manners that section 62.23(7) explicitly authorizes, even if local regulations do not intrude into the province of building code issues,” Graham wrote.

Mention of Marks Not Sufficient

The Associations argued that the City ordinance did not strictly conform to the building code adopted by DSPS because the ordinance requires markings and the DSPS building code contains a provision that requires that each pane of glass used in a building contain a “manufacturer’s mark” designating the type and thickness of the glass or glazing material.

“According to the Associations, once DSPS has spoken on the general subject of marks … local governments are preempted from requiring any other marks on glass, regardless of the nature or purpose of such marks,” Judge Graham wrote.

But under that test, Judge Graham reasoned, the outcome of the analysis would be dictated by how a court characterized the subject matter addressed by local ordinance.

“That is, if we were to choose to describe the subject matter regulated by the ordinance as ‘the visibility of exterior glass,’ rather than ‘marks on glass,’ the ordinance would not be preempted under the Association’s test,” Graham wrote.

Instead, Judge Graham concluded, the test should be whether the local ordinance sets minimum standards to ensure buildings are structurally sound and equipped with safety systems.

“Whether the statewide code addresses similar topics as the local ordinance may be relevant to the inquiry, but it is not dispositive,” Graham wrote.

“Instead, courts must look at the specific content and purpose of the ordinance, bearing in mind the considerations that inform the statewide code.”