Update On Bird Safe Glass Resolution – Resolution Still Undergoing Review, City Attorney Recommending Refraining From Action Until Legal Challenges Associated With Similar City Of Madison Ordinance Are Resolved

Resolution 6-R-23, the resolution which would add bird safe glass requirements to Appleton’s Municipal Code, was introduced during the 06/07/2023 Common Council meeting and has been undergoing review by city staff since that time. I thought it would be worthwhile to check in on how it is going.

As of 07/12/2023, Mayor Woodford did not have even an estimate of when the resolution would be brought before a committee for discussion and a vote.

If and when the resolution is brought before a committee, Alderperson Alex Schultz (District 9), the main author of the resolution, has indicated that it will undergo at least one revision to change the language in the second “Be It Resolved” clause which would currently compel non-public entities, businesses, and urban residential housing managers and owners whose existing buildings have glass panes which meet the bird-strike risk criteria to post educational language on their websites regarding bird strikes. Per Alderperson Schultz, the word “compel” will likely be changed to “encourage.”

Additionally, City Attorney Christopher Behrens noted that the City of Madison ordinance that was attached to the resolution as a template for the City of Appleton to use in developing its own bird safe glass requirements, is undergoing legal challenge and is currently at the Court of Appeals level. Oral arguments were held in April but a decision has yet to be released.

Per Attorney Behrens, “I did make one of the resolution’s authors aware of this pending matter back in January when the idea was first broached with my office and suggested waiting to submit a resolution until the courts had resolved the matter. While a resolution has now been introduced, I will continue to recommend the Council refrain from taking action on the resolution until there is some direction via a Court of Appeals decision or possibly a Supreme Court decision if the appellate court decision is further appealed.”

On July 19, I emailed Alderperson Schultz and asked him “What was the reasoning behind introducing the resolution now while the court case pertaining to the Madison ordinance is still underway?” As of August 2, I have not received a response. If I do, I will update this post accordingly.

I submitted a number of questions to Mayor Woodford as well as to the three alderpersons who sponsored the resolution, Schultz, Vered Meltzer (District 2), and Israel Del Toro (District 4). Mayor Woodford and Alderperson Schultz were both kind enough to respond to me.

My main goal in asking these questions was to find out how much this ordinance was estimated to cost the city in terms of maintenance and updates to its own buildings and the impact on private development as compared to the estimated benefit to the local bird population in Appleton. After receiving answers to my questions, it does not appear that either the authors of the resolution or city staff have solid numbers on either the potential financial impact of the ordinance changes nor on the potential benefit to the local bird population, but the review of the resolution is still ongoing.

For example, although the resolution states that up to 1 billion birds die annually in bird strikes it does not give any indication what the local numbers are nor what species are impacted. When asked about the number of birds who died annual in Appleton as a result of colliding with glass windows, Mayor Woodford responded, “I am not aware of any data that has been collected locally on this issue. The City of Appleton does not have any data on this issue one way or another.” This also held true for what species of birds were dying due to striking glass windows.

Alderperson Schultz clearly stated, “We do not have any direct data to share for Appleton.” Then suggested, “It would be safe to estimate several hundreds to several thousand.” Regarding the species impacted, he said, “Every avian species is subject to the disorientation of window reflections, though the primary victims of fatal collisions are smaller migratory songbirds.”

Outside of the clause compelling private businesses to post educational information on their websites which will be amended, the resolution would prompt two major changes:

1. New construction in the city would need to meet the bird safe glass requirements created by the new ordinance, and
2. The city would need to retrofit all public windows that pose a danger to birds with bird-strike safety films or other abatement measures by 2025.

I asked about the estimated cost of retrofitting public building windows as well as how these proposed ordinance changes would affect the cost of affordable housing developments [something I think is particularly important given the concerns raised in the past by members of the Common Council regarding the need for affordable housing in Appleton]. I also asked about how this resolution would impact development projects that have been approved but have not yet started construction and tried to get an idea of what percentage of new development might be expected to have to adhere to the new proposed ordinance going forward. Rather than summarize the answers, I’ve just posted them in their entirety below. I have also prepared a PDF of my communications with Attorney Behrens, Mayor Woodford, and Alderperson Schultz.

As you will see, Mayor Woodford, in answer to my question asking whether city staff had conducted a cost/benefit analysis comparing the increased cost of development resulting from this resolution to the number and species of birds that would potentially be saved, indicated that he did not intend to direct staff to conduct such an analysis. I followed up with him about that and asked if that was really the case given the need to spur new development in the city, the difficulties of doing that in an older city with established boundaries and little greenfield, and the need for more housing in general and affordable housing in particular.

He responded and clarified “Regarding not conducting a cost-benefit analysis – I simply mean we are not going to conduct a detailed analysis on a matter where the end result from a cost perspective can be reasonably intuited, nor where gathering data about the number of bird strikes on glass is beyond the scope and capacity of our in-house staff.”

QUESTION 1: How many birds die annually in the city of Appleton due to colliding with glass windows? The resolution states up to a billion birds die annually, but I would assume those are not evenly spread out but are rather disproportionately concentrated in cities like New York and Chicago that have many skyscrapers.

• Woodford: I am not aware of any data that has been collected locally on this issue. The City of Appleton does not have any data on this issue one way or another.
• Schultz: We do not have any direct data to share for Appleton. The best we can do is make inferences based on number of buildings and total area of glass panes that meet the criteria. It would be safe to estimate several hundreds to several thousand. 

QUESTION 2: What species of birds are dying in Appleton due to striking glass windows?

• Woodford: See response to question one, above.
• Schultz: Every avian species is subject to the disorientation of window reflections, though the primary victims of fatal collisions are smaller migratory songbirds.

QUESTION 3: The resolution would “compel non-public entities, businesses and urban residential housing managers and owners whose existing buildings have glass panes which meet the bird-strike risk criteria” to put educational language on their websites which raises several questions:

• Woodford: Review is ongoing.
• Schultz: This language will be revised to read differently that it does now, replacing “compel” with “encourage” is the likely word revision.

QUESTION 3a: What are the specifics of the “bird strike risk criteria”? This resolution uses the Madison ordinance as an example, but it’s not clear if you intend to just use that language for Appleton or if you are creating your own language.

• Woodford: I cannot answer this question as I am not an author or sponsor of the Resolution.
• Schultz: A lot of work went into the Madison ordinance, so we’ll adopt what makes sense to and revise what doesn’t to fit our community and urban environment.

QUESTION 3b. What specific educational language would these private businesses be required to place on their websites?

• Woodford: Review is ongoing, and final ordinance language would have to be created should the item move forward.
• Schultz: Again, there will be no “requirement” but rather a recommendation to share info. This is one example of info share that we could share with businesses and residents alike.

QUESTION 3c. What state or federal statute is the resolution relying on in order to compel private individuals and businesses to disseminate government mandated messages?

• Woodford: Review is ongoing, though I do not believe the Resolution cited specific statues on this matter.
• Schultz: Not applicable.

QUESTION 4: What are the estimated costs associated with retrofitting all city owned windows that pose a safety issue for birds with bird-friendly glass or alternatives by 2025? Additionally, how many windows are estimated to need to be retrofitted?

• Woodford: Review is ongoing, however, in the interest of protecting staff time, we will not conduct a detailed analysis to determine this figure unless the Council passes a Resolution compelling it.
• Schultz: These are unknowns and an audit would have to be conducted to get concrete numbers. Cost could range anywhere from several thousand to several tens of thousands.

QUESTION 5: Will these retrofitted windows and treatments result in increased ongoing maintenance costs to the city?

• Woodford: See answer to question 4.
• Schultz: Potentially, yes. Window films don’t last forever, but like a window tint on a car, we should expect them to last for several decades.

QUESTION 6: How will these ordinance changes impact currently planned projects that have not yet started construction, such as the library, the Fox Commons development, and various housing developments planned for downtown?

• Woodford: Review is ongoing, though we are not presently changing plans on a speculative basis. We will adjust course as required by Council action.
• Schultz: Public properties such as the Library would have to consider treatments. Fortunately, the new library design already incorporates bird-sensitive elements and may not need an additional treatments. Other project would not be affected unless the developer chooses to do so.

QUESTION 7: Will these proposed changes impact or increase the cost of building affordable housing developments in Appleton?

• Woodford: Review is ongoing, though from our analysis of potential approaches for the Library project, it did seem that certain interventions would have increased construction costs. In the case of the Library, we reduced the total glazed area on the façade and our architect designed the glazed area in a way to reduce environmental impact, including potential for bird strikes.
• Schultz: I would not expect any significant cost increase. These treatments materials run anywhere from $0.00 sf. if one were to deploy something like recycled CD’s up to roughly $1sf for something like CollidEscape or applying decals like  WindowAlerts

QUESTION 8: Will this proposed ordinance impact the way developers view building something in Appleton? Will it make the city appear more friendly to new development or less so?

• Woodford: I suggest this question be put to the authors and/or area developers for their feedback.
• Schultz: I would hope the overall impact would be positive.

QUESTION 9: What percentage of new development in the city would be expected to have to install bird-friendly glass?

• Woodford: Review is ongoing.
• Schultz: Again, no one will be required to install bird-safe glass.

QUESTION 10: Have the alderpersons who submitted the resolution or city staff conducted a cost/benefit analysis comparing the increased cost of development caused by this resolution to the number and species of birds that would potentially be saved?

• Woodford: I am not aware of any such analysis, nor, in the spirit of my response to question 4, do I intend to direct staff to conduct such an analysis.
• Schultz: No

QUESTION 11: Are there any situations in which this proposed ordinance would affect 1 and 2 family residential properties?

• Woodford: Review is ongoing.
• Schultz: No