Legislation & Legal September 2021

Legislation and Legal Actions Spur Mixed Discussions Surrounding Bird-Safe Buildings

Cities and jurisdictions across the country are urging officials to enact building ordinances to require bird-safety materials in construction projects. A number of cities have adopted legislation to mitigate the adverse effects building codes have on wildlife, though, not everyone is in agreement with these efforts.

The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in Dane County Circuit Court against the City of Madison over a mandatory bird-safe glass ordinance that is preempted by state law. The legal challenge asserts the city ordinance undermines and violates the state’s uniform building code. This comes almost five months after the organization filed a Notice of Claim against the city, which passed the ordinance less than a year ago in October 2020.

WILL represents Associated Builders and Contractors of Wisconsin, the Commercial Association of Realtors of Wisconsin (CARW), NAIOP Wisconsin—the Commercial Real Estate Development Association, the Wisconsin Builders Association and the Wisconsin Realtors Association in this suit.

According to court documents, the companies represented by WILL contend that the ordinance is unlawful and void and it should not be enforced.

“Wisconsin’s uniform building code is a critical component of a successful economic environment,” said Lucas Vebber, WILL deputy counsel. “Madison’s bird-safe glass ordinance violates state law and creates significant uncertainty and added costs for developers, building owners, and their tenants.”

The ordinance requires buildings over 10,000 square feet, skyways and other glass features to incorporate bird-visible safety features of dots or lines into the glass.

However, other cities continue to take a stand to support bird-friendly efforts. Toward the end of July 2021, Illinois Gov. J.B. Pritzker signed the Bird-Safe Buildings Act (HB 247), which requires bird-friendly designs to be incorporated into the construction and renovation of state-owned buildings. The act requires each state building constructed, acquired, or of which more than 50% of the façade is substantially altered shall meet specified standards concerning bird safety.

Some standards listed in the bill say “at least 90% of the exposed façade material from ground level to 40 feet shall not be composed of glass; or shall be composed  of glass employing elements that preclude bird collisions without completely obscuring vision, such as secondary facades, netting, screens, shutters and exterior shades; ultraviolet (UV) patterned glass that contains UV-reflective or contrasting patterns that are visible to birds; patterns on glass designed in accordance with a rule that restricts horizontal spaces to less than 2 inches high and vertical spaces to less than 4 inches wide; opaque, etched, stained, frosted or translucent glass.”

Other standards include ensuring any glass adjacent to atria or courtyards containing water features, plants and other items that may attract birds are made of bird-friendly glass.

“Millions of birds die every year because of the glass [and] design we use for buildings. From now on, due to HB247, new [government] buildings will use bird-safe glass to save feathered friends,” Rep. Bob Morgan, the bill’s primary sponsor, stated in a posting on Twitter.

The Act states that the listed requirements shall only apply to state buildings under the management or control of the Department of Central Management Services Law of the Civil Administrative Code of Illinois. It does not include buildings leased by the department or any project in the design or construction phase as of the effective date.

The act is effective January 1, 2022.

Lawsuit Against O’Keeffe’s Inc. Settled, All Claims Dismissed

After more than two years since Ely Holdings Ltd. and Greenlite Glass Systems filed a complaint against O’Keeffe’s Inc. (Safti First), alleging the company directly and indirectly infringed upon Ely’s patent, the case has been closed with all claims dismissed.

The case was filed on November 5, 2018, and was terminated on July 23, 2021, with the last filing occurring on July 26. The case was settled and was dismissed with prejudice.

In April 2010, the U.S. Patent & Trademark Office awarded Ely Holdings Ltd., a U.K.- based company, a patent for “Fire Rated Glass Flooring,” referred to as the 475 patent throughout the original complaint.

Ely Holdings alleged that in October 2014, Safti First began manufacturing and selling fire-rated glass flooring that fell within the scope of one or more claims of Ely’s 475 patent. It is called the GPX FireFloor System.

Court documents filed on July 16, 2021, reveal both the plaintiffs and defendant “most recently participated in a mediation session on March 16, 2021. Since that mediation session, the parties have engaged in ongoing settlement discussions, are nearing a comprehensive resolution to the litigation, and are negotiating a settlement agreement that is nearly finalized.”

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