Associated Builders & Contractors of Wisconsin, Inc. v. City of Madison

2023 WI App 59

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP1468

Complete Title of Case:

ASSOCIATED BUILDERS & CONTRACTORS OF
WISCONSIN, INC., COMMERCIAL ASSOCIATION OF
REALTORS WISCONSIN, INC., NAIOP WISCONSIN
CHAPTER, INC., WISCONSIN BUILDERS ASSOCIATION,
AND WISCONSIN REALTORS ASSOCIATION, INC.,

PLAINTIFFS-APPELLANTS,

V.

CITY OF MADISON,

DEFENDANT-RESPONDENT.

Opinion Filed: October 5, 2023
Oral Argument: April 26, 2023

JUDGES: Kloppenburg, P.J., Blanchard, and Graham, JJ.

Appellant
ATTORNEYS: On behalf of the plaintiffs-appellants, the cause was submitted on the
briefs of Richard M. Esenberg, Lucas T. Vebber, Anthony F. LoCoco,
and Luke N. Berg of the Wisconsin Institute for Law & Liberty,
Milwaukee. There was oral argument by Lucas T. Vebber.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of and oral argument by Kate M. Smith, assistant city attorney of
Madison.
Amicus
ATTORNEYS: A nonparty brief was filed on behalf of American Bird Conservancy,
Wisconsin Society for Ornithology, and Madison Audubon Society by
Peter E. McKeever, of Law Office of Peter E. McKeever, Monona, and
William F. Sheehan, of American Bird Conservancy, Washington, D.C.

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2023 WI App 59

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 5, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP1468 Cir. Ct. No. 2021CV1729

STATE OF WISCONSIN IN COURT OF APPEALS

ASSOCIATED BUILDERS & CONTRACTORS OF
WISCONSIN, INC., COMMERCIAL ASSOCIATION
OF REALTORS WISCONSIN, INC., NAIOP WISCONSIN
CHAPTER, INC., WISCONSIN BUILDERS ASSOCIATION,
AND WISCONSIN REALTORS ASSOCIATION, INC.,

PLAINTIFFS-APPELLANTS,

V.

CITY OF MADISON,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County: NIA
TRAMMELL, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, JJ.
No. 2022AP1468

¶1 GRAHAM, J. WISCONSIN STAT. ch. 101 (2021-22)1 contains a
number of provisions that pertain to the adoption of a statewide commercial building
code. See, e.g., WIS. STAT. § 101.02(15)(j) (directing the state department of
professional services to adopt a statewide commercial building code); see also WIS.
ADMIN. CODE chs. SPS 361-366 (July 2023)2 (adopting the statewide code
consistent with the direction and grant of authority in § 101.02(15)(j)). This appeal
concerns one such provision, § 101.02(7r)(a), which the parties agree was adopted
to prevent local governments from enacting or enforcing building code standards
that are stricter than the statewide commercial building code. That paragraph
provides, in relevant part, that “no county, city, village, or town may enact or
enforce an ordinance that establishes minimum standards for constructing, altering,
or adding to public buildings or buildings that are places of employment unless that
ordinance strictly conforms to the applicable rules under sub. (15)(j).”

¶2 The question presented in this appeal is whether a City of Madison
ordinance that was enacted to mitigate the risk of bird collisions, and that mandates
the use of specified design features in the construction and development of specified
types of buildings, is preempted by WIS. STAT. § 101.02(7r)(a). For the reasons set
forth below, we conclude that it is not. We therefore affirm the circuit court order
that granted summary judgment in the City’s favor and dismissed this lawsuit.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
All references to the WIS. ADMIN CODE chs. 361-366 are to the July 2023 register unless
otherwise noted.

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No. 2022AP1468

BACKGROUND

¶3 The City of Madison is said to be located within one of the largest
flyways of migratory birds in the world. Local groups estimate that tens of
thousands of birds are injured or killed every year as they attempt to migrate through
the City and collide with glass surfaces, which birds do not always perceive as a
barrier.

¶4 The Madison Common Council responded to the problem by adopting
MADISON GENERAL ORDINANCE § 28.129 (the “Bird-Safe Glass Ordinance” or the
“Ordinance”), which was signed by the mayor and went into effect on October 1,
2020. CITY OF MADISON, WIS. CODE OF ORDINANCES (2023) (“MGO”).3 It is not
disputed that the City followed the procedures set forth in WIS. STAT. § 62.23(7)(d),
which are required for enacting zoning ordinances, when it enacted the Ordinance.

¶5 The Ordinance is titled “Bird-Safe Glass Requirements,” and its stated
purpose is to “reduce the heightened risk for bird collisions with glass on specified
building designs and configurations.” MGO § 28.129(1). The Ordinance applies to
“all exterior construction and development activity, including the expansion of
existing buildings,” and it requires the treatment of glass on certain types of designs
and configurations. See § 28.129(2).4

3
All references to ordinances in this opinion are to the online register of the CITY OF
MADISON, WIS. CODE OF ORDINANCES (last updated Sept. 18, 2023). The parties refer to City of
Madison ordinances as Madison General Ordinances and we follow their lead.
4
Specifically, the Ordinance’s treatment requirements apply to all glass on above-ground
bridges that are connected to the building, see MGO § 28.129(4)(b), and all at-grade glass features,
see § 28.129(4)(c). Additionally, for buildings over 10,000 square feet, the Ordinance imposes

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No. 2022AP1468

¶6 The Ordinance identifies several permissible methods for treating
glass to increase its visibility and reduce the risk of bird collisions. MGO
§ 28.129(4). Glass may be treated with a “pattern of visual markers” of specified
size and spacing.5 Id. Alternatively, other mitigation measures may be used,
including “low reflectance opaque materials”; “building-integrated structures” such
as “non-glass double skin façades, metal screens, fixed solar shading, exterior insect
screens, [or] other features that cover the glass surface; or any similar mitigation
treatments” that are approved by the City’s zoning administrator. Id.

¶7 In July 2021, a consortium of five membership-based trade
associations (“the Associations”) filed a complaint against the City, which sought a
declaration from the circuit court that the Ordinance is preempted by WIS. STAT.
§ 101.02(7r)(a) and an injunction enjoining enforcement of the Ordinance.6 The
City answered the complaint, and the parties filed cross-motions for summary
judgment. The parties agreed that there were no disputes of material fact and that
their motions presented questions of law.

¶8 The Associations argued that the Ordinance is preempted by WIS.
STAT. § 101.02(7r)(a) because the Ordinance establishes “minimum standards for

different requirements based on the percentage of building surface that is comprised of glass. See
§ 28.129(4)(a).
5
The Ordinance specifies two types of patterns of visual markers: dots or other isolated
shapes that are at least one-quarter inch in diameter and spaced at no more than a two-inch by two-
inch pattern; or lines that are at least one-eighth inch wide and spaced no more than two inches
apart. MGO § 28.129(4).
6
The Associations’ challenge to the Ordinance appears to be limited to its application to
“public buildings” and “places of employment,” as defined by WIS. STAT. § 101.01(11) and (12).
That is, the Associations do not argue that WIS. STAT. § 101.02(7r)(a) preempts the Ordinance’s
application to buildings that are not subject to the statewide commercial building code.

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No. 2022AP1468

constructing, altering, or adding to” commercial buildings that do not strictly
conform to the statewide commercial building code, which contains a chapter
governing “glass and glazing” and does not mandate the use of bird-safe glass or
design features. The City countered that zoning ordinances are not included within
the scope of local ordinances that § 101.02(7r)(a) preempts, and that the Ordinance
is a valid “form-based” zoning ordinance adopted pursuant to the City’s zoning
powers under WIS. STAT. § 62.23(7).7 The Associations disagreed that zoning
ordinances are exempt from preemption under § 101.02(7r)(a), and further argued
that the Ordinance cannot be considered a zoning ordinance—either because
Wisconsin law does not recognize the validity of form-based zoning or because the
subject matter of the Ordinance is more similar to a building code than it is to a
form-based zoning ordinance.

¶9 After examining the text of WIS. STAT. § 101.02(7r)(a), surrounding
and closely related statutes, the statute’s purpose, and statutory and legislative
history, the circuit court concluded that § 101.02(7r)(a) exempts zoning ordinances
from its preemptive effect. The court also concluded that the Ordinance is a valid
form-based zoning ordinance that regulates building façade materials, and that it is
distinct from a building code, which sets standards to ensure that buildings are
structurally sound and safe for human occupation. Accordingly, the circuit court

7
One authority has described “form-based zoning” as a “land development regulatory tool
that places primary emphasis on the physical form of the built environment,” and that may include
“architectural regulations” that govern “building styles, details, and materials … and the ways in
which they can be incorporated into various building elements such as walls, windows, fences, and
roofs.” Robert J. Sitkowski & Brian W. Ohm, Form-Based Land Development Regulations, 38
Urban Lawyer 163, 164-65 (2006) (citations omitted). Form-based zoning is “based on the theory
that [such] design controls” can “resolve inconsistencies between land uses.” See Town of Rhine
v. Bizzell, 2008 WI 76, ¶17 n.6, 311 Wis. 2d 1, 751 N.W.2d 780 (citations omitted).

The parties to this appeal dispute whether Wisconsin statutes authorize cities to engage in
form-based zoning, but, as discussed below, we need not resolve that dispute because our
conclusion is not based on the concept of form-based zoning.

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No. 2022AP1468

granted summary judgment in the City’s favor and dismissed the Associations’
complaint.

¶10 The Associations appealed the circuit court’s decision. Following
briefing by the parties, we held oral arguments, which were helpful in clarifying the
issues on appeal.

DISCUSSION

¶11 “Cities are creatures of the state legislature and have no inherent right
of self-government beyond the powers expressly granted to them.” Madison
Teachers, Inc. v. Walker, 2014 WI 99, ¶89, 358 Wis. 2d 1, 851 N.W.2d 337.

¶12 To that end, the state legislature has conferred broad powers to
Wisconsin cities through state constitutional amendments and statutes, which
provide cities with greater autonomy over local affairs. Id. Article XI, § 3(1) of the
Wisconsin Constitution, referred to as the “Home Rule Amendment,” vests cities
with the right to “determine their local affairs and government, subject only to [the
state] constitution and to such enactments of the legislature of statewide concern as
with uniformity shall affect every city or every village.” WIS. CONST. art. XI, § 3(1).
WISCONSIN STAT. §§ 62.04 and 62.11(5), in turn, endow cities with police powers,
such that they possess all police powers not expressly denied to them. See
Wisconsin’s Env’t Decade, Inc. v. DNR, 85 Wis. 2d 518, 531-33, 271 N.W.2d 69
(1978). In addition to this general grant of police power, WIS. STAT. § 62.23(7) and
other statutes confer the power to zone, which is a subset of the police power.

¶13 Despite these broad grants of power, a city’s ability to regulate matters
of purely local concern, as well as matters that implicate a “mixed bag” of local and
statewide concerns, may be limited by legislative enactments. See Adams v. State

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No. 2022AP1468

Livestock Facilities Siting Rev. Bd., 2012 WI 85, ¶31, 342 Wis. 2d 444, 820
N.W.2d 404; see also DeRosso Landfill Co., Inc. v. City of Oak Creek, 200 Wis.
2d 642, 651, 547 N.W.2d 770 (1996). If the legislature has chosen to legislate on
matters that are a mixed bag of local and statewide concerns, the legislation
preempts a local ordinance if: (1) the legislature has expressly withdrawn the local
government’s authority to act; (2) the local ordinance logically conflicts with the
state legislation; (3) “it defeats the purpose of the state legislation”; or (4) “it violates
the spirit of state legislation.” DeRosso Landfill Co., 200 Wis. 2d at 651-52.
Generally, the question of preemption is “one that must be answered with regard to
the unique statutory scheme at issue.” Scenic Pit LLC v. Village of Richfield, 2017
WI App 49, ¶8, 377 Wis. 2d 280, 900 N.W.2d 84.

¶14 Here, the parties agree that WIS. STAT. § 101.02(7r)(a) addresses a
mixed bag of local and statewide concerns, and further, that the legislature clearly
intended to preempt some aspects of the City’s authority when it enacted
§ 101.02(7r)(a). The parties further agree that the question of what is preempted by
that statute turns on the proper interpretation of provisions in WIS. STAT. ch. 101,
which delegate authority to the state department of safety and professional services
(“DSPS”) to promulgate a statewide commercial building code and limit local
authority in that area. We begin by briefly summarizing some of these key
provisions and the related administrative regulations, and we then address the
parties’ arguments about § 101.02(7r)(a) and the Bird-Safe Glass Ordinance that is
at issue in this case.

I. Legal Background on the Legislative Delegation of Authority to DSPS to
Adopt a Statewide Commercial Building Code

¶15 As pertinent here, the legislature has provided that DSPS “has such
supervision of every … place of employment and public building in this state as is

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No. 2022AP1468

necessary adequately to enforce and administer all laws and all lawful orders
requiring such … place of employment or public building to be safe.” WIS. STAT.
§ 101.02(15)(a). In this context, WIS. STAT. ch. 101 defines the term “safe” to mean
“such freedom from danger to the life, health, safety or welfare of employees or
frequenters, or the public,” “and such reasonable means of notification, egress and
escape in case of fire, and such freedom from danger to adjacent buildings or other
property, as the nature of the … place of employment, or public building, will
reasonably permit.” WIS. STAT. § 101.01(13).

¶16 To that end, the legislature has directed DSPS to adopt a statewide
commercial building code that will render places of employment and public
buildings safe. See WIS. STAT. § 101.02(15)(j) (“[DSPS] shall ascertain, fix and
order such reasonable standards or rules for constructing, altering, adding to,
repairing, and maintaining public buildings and places of employment in order to
render them safe.”); see also WIS. STAT. § 101.01(1g) (defining the “[c]ommercial
building code” as “the code adopted by [DSPS] under this subchapter [WIS. STAT.
§§ 101.01-101.599] for the design, construction, maintenance, and inspection of
public buildings and places of employment”). The statewide commercial building
code that has been adopted by DSPS is found in WIS. ADMIN CODE chs. SPS 361-
366. For convenience, we sometimes refer to it as the “statewide code” in this
opinion.

¶17 Prior to 2014, state statutes allowed local governments to pass local
building codes that were stricter than the statewide code. WISCONSIN STAT.
§ 101.02(7)(a) specifically provided (and continues to provide) that “[n]othing
contained in this subchapter [WIS. STAT. §§ 101.01-101.599] may be construed to
deprive the common council … of any … city … of any power or jurisdiction over
or relative to any place of employment or public building …,” so long as the local

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No. 2022AP1468

standards did not conflict with the statewide code. And the DSPS regulations that
implemented this provision also recognized that local governments could pass
ordinances that imposed stricter building code standards. See WIS. ADMIN. CODE
§ SPS 361.03(5)(a)1. (August 2014) (“pursuant to s. 101.02(7), Stats,” with
exceptions not material here, “a city … may enact and enforce additional or more
restrictive standards for public buildings and places of employment, provided the
standards do not conflict with [the statewide] code”). DSPS regulations also
unequivocally provided that “[n]othing in this code affects the authority of any
municipality to enact and enforce standards relative to land use, zoning or
regulations under … 62.23(7), Stats.” See § SPS 361.03(5)(a)2. (August 2014).

¶18 The legislature enacted 2013 Wis. Act 270 in April 2014. Among
other things, Act 270 created a “building code council,” separate from DSPS, that
is charged with “review[ing] the rules relating to constructing, altering, adding to,
repairing, and maintaining public buildings and buildings that are places of
employment” and “mak[ing] recommendations to the department pertaining to these
rules” and related matters. See Act 270, §§ 1, 4 (creating WIS. STAT. §§ 15.407(18),
101.023). As we understand it, the “the rules” that the commercial building code
council is charged with reviewing are those found in the statewide commercial
building code.

¶19 2013 Wis. Act 270 also created WIS. STAT. § 101.02(7r)(a), which
contains the preemption language at issue in this case. That language provides that,
with exceptions that are immaterial here:

Notwithstanding sub. (7)(a), [which, as stated,
preserves the “power or jurisdiction” of cities “relative to”
public buildings and places of employment,] no … city …
may enact or enforce an ordinance that establishes minimum
standards for constructing, altering, or adding to public
buildings or buildings that are places of employment unless

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No. 2022AP1468

that ordinance strictly conforms to the applicable rules in
sub. (15)(j) [which, as stated, authorizes DSPS to adopt a
statewide commercial building code]….

See Act 270, § 2 (creating § 101.02(7r)(a), which has not been amended in a manner
significant to this appeal since Act 270 was passed).

¶20 Following the passage of 2013 Wis. Act 270, DSPS modified its
regulations regarding local authority to make the regulations consistent with
Act 270’s amendments to WIS. STAT. ch. 101. See CLEARINGHOUSE RULE 16-094,
https://docs.legis.wisconsin.gov/code/register/2018/748b/register/final/cr_16_094_
rule_text/cr_16_094_rule_text.pdf; see also WIS. ADMIN. CODE ch. SPS 361
(April 2018). The revisions to the regulations reflect the agency’s interpretation of
WIS. STAT. § 101.02(7r)(a). See CLEARINGHOUSE RULE 16-094 at 4-5 (stating that
DSPS’s revisions “[u]pdate[] [§] SPS 361.03(5)(a) to incorporate requirements
from 2013 Wisconsin Act 270, which states that no [municipality] may enact or
enforce an additional or more restrictive ordinance for a public building or building
that is a place of employment”); see also DSPS Note to § SPS 361.03(5)(a)1.
(reflecting that Act 270 “established a uniform commercial [building] code”).

¶21 DSPS made substantive revisions to the regulation that had formerly
stated that municipalities could enact stricter standards than those found in the
statewide commercial building code. As revised, DSPS reversed course on that
issue, consistent with the new preemption provision found in WIS. STAT.
§ 101.02(7r)(a). Thus, as revised, WIS. ADMIN. CODE § SPS 361.03(5)(a)1. now
provides that, with exceptions that are inapplicable here, “no city, village, or town
may enact or enforce an additional or more restrictive local ordinance that
establishes minimum standards for constructing, altering, or adding to public
buildings or buildings that are places of employment.”

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No. 2022AP1468

¶22 In contrast, at the same time that DSPS made these substantive
revisions to WIS. ADMIN. CODE § SPS 361.03(5)(a)1., it made only technical
revisions to subdiv. (5)(a)2., which addresses municipal zoning authority. DSPS’s
revisions made to subdiv. (5)(a)2. did not alter the approach to local zoning
practices. As revised, subdiv. (5)(a)2. now provides: “Nothing in chs. SPS 361 to
366 affect the authority of any municipality to enact or enforce standards relative to
land use, zoning, or regulations under … 62.23(7), Stats.” See § SPS 361.03(5)(a)2.
(as amended by CLEARINGHOUSE RULE 16-094).

II. The Parties’ Arguments

¶23 Having summarized the pertinent statutes and administrative
regulations and their history, we now address the parties’ arguments. We first
interpret WIS. STAT. § 101.02(7r)(a), and we then apply that interpretation to
determine whether the City’s Ordinance is preempted by § 101.02(7r)(a).

A. Interpretation of WIS. STAT. § 101.02(7r)(a)

¶24 As stated, the parties agree that this case primarily presents a matter
of statutory interpretation, which is a question of law. Nowell v. City of Wausau,
2013 WI 88, ¶19, 351 Wis. 2d 1, 838 N.W.2d 852. When interpreting a statute, we
begin with its language. State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We read the language “in the context
in which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely related statutes,” and consistent with its purpose. Id.,
¶¶46, 48. We also examine the history of the statute when determining the meaning
of its terms. Force v. American Fam. Mut. Ins. Co., 2014 WI 82, ¶31, 356 Wis.
2d 582, 850 N.W.2d 866.

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No. 2022AP1468

¶25 We begin with the language of WIS. STAT. § 101.02(7r)(a). As
mentioned, that paragraph provides that, with exceptions that are inapplicable here,
local governments are prohibited from enacting ordinances “that establish[]
minimum standards for constructing, altering, or adding to public buildings or
buildings that are places of employment,” unless the local ordinance “strictly
conforms to the applicable rules under sub. (15)(j).”

¶26 In their briefing, the Associations argue that the statute is “plain” and
susceptible to only one reasonable interpretation—it prohibits local governments
from adopting any ordinance that “falls under [the language of] that statute”—and
that there is no language in WIS. STAT. ch. 101 that specifically exempts zoning
ordinances from this prohibition. We understand this argument to be aimed at the
circuit court’s analysis, which accepted the City’s argument that the statute exempts
zoning ordinances from its preemptive effect.

¶27 This argument does not resolve the issue on appeal. We agree, of
course, with the unremarkable assertion that the statute prohibits local governments
from adopting ordinances that “fall under [the language of] that statute.” It is also
true that there is no language in WIS. STAT. ch. 101 that unambiguously exempts
zoning ordinances from the preemptive effect of WIS. STAT. § 101.02(7r)(a). But
the interpretive question at issue in this case is how to determine whether a local
ordinance sets “minimum standards for constructing … public buildings.” See
§ 101.02(7r)(a). The assertion that ordinances that “fall under [the language of] that

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statute” are preempted by the statute does nothing to identify the types of local
ordinances that come within the ambit of that language and are thus preempted.8

¶28 Throughout the course of this appeal, we perceive the Associations to
have offered two differing interpretations of the meaning and breadth of the phrase
“minimum standards for constructing … public buildings.” See WIS. STAT.
§ 101.02(7r)(a). Under one interpretation, which was advanced most prominently
in their briefing, the statute would broadly preempt any “minimum standards” that
pertain in any way to the construction of public buildings, regardless of the content
or purpose of those standards, unless the local standards strictly conform to the
statewide commercial building code. The other interpretation, which appears to be
much narrower, emerged most prominently at oral argument. Under this narrower
interpretation, not all locally enacted minimum standards relating to the construction
of public buildings would be preempted by § 101.02(7r)(a)—as we understand it,
the preemptive effect of the statute would be limited to those “minimum standards”
that address “building code issues.”9 For its part, the City appears to agree with the
narrower interpretation to the extent that it means § 101.02(7r)(a) preempts only
those minimum standards that are the proper subject of the statewide code.

¶29 We briefly discuss these two interpretations, explaining why the
narrower interpretation is the more reasonable interpretation of WIS. STAT.

8
We recognize that WIS. STAT. § 101.02(7r)(a) addresses three activities (constructing,
altering, or adding to) regarding two different categories of buildings (public buildings and
buildings that are places of employment). At times in this opinion, we sometimes use shorthand
and refer to the “construction” of “public buildings.” We use this shorthand for ease of reading,
but in so doing, we do not mean to suggest a limitation on the statute such that it does not also apply
to buildings that are places of employment, or to altering or adding to such buildings.
9
As discussed further in the following section, at oral argument, the Associations
proposed a test to determine whether a local ordinance establishes a building code standard, and
that test ultimately turns on whether the ordinance addresses the same topic as any existing
provision in the statewide code.

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No. 2022AP1468

§ 101.02(7r)(a). We conclude that the legislature intended the local “minimum
standards” that are preempted by § 101.02(7r)(a) to be limited to building code
standards. To this end, our interpretation differs in one significant respect from
some of the arguments advanced by the parties—the parties’ arguments focus in
significant part on whether a challenged ordinance constitutes a zoning ordinance,
and our interpretation instead asks whether it is effectively a building code.

¶30 As stated, the Associations’ broad interpretation of the phrase
“minimum standards for constructing … public buildings,” would encompass any
local “minimum standards” that pertain in any way to the construction of public
buildings, regardless of the content or purpose of those standards. At first glance,
such an interpretation has intuitive appeal if language in WIS. STAT. § 101.02(7r)(a)
is considered in isolation—standing alone, the phrase “minimum standards for
constructing … public buildings” could reasonably be read to encompass any
standard that imposes any restriction on the construction of a public building.
However, there are two primary reasons that this interpretation is much less
reasonable when the statutory language is considered as a whole, and alongside
closely related statutes.

¶31 First, when WIS. STAT. § 101.02 is read as a whole and along with
surrounding statutes, it is apparent that a primary focus is DSPS’s authority to adopt
a statewide commercial building code, which the legislature intended to be uniform
throughout the state. But it is also apparent that the legislature contemplated that
local governments would continue to have significant authority over public
buildings, even after the establishment of a uniform code. Paragraph 101.02(7)(a)
directs that nothing in WIS. STAT. §§ 101.01-101.599 should be “construed to
deprive” local governments of “any power or jurisdiction over or relative to” any
public building. To be sure, § 101.02(7r)(a) carves out an exception to para. (7)(a)’s

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acknowledgement of broad local authority, yet in doing so it explicitly references
para. (15)(j). And, as noted, DSPS promulgated the statewide code pursuant to the
authority granted in para. (15)(j).

¶32 The pertinent language delegating that authority to DSPS uses
language that is identical to the language of the preemption statute: WIS. STAT.
§ 101.02(15)(j) provides that DSPS “shall ascertain, fix, and order such reasonable
standards or rules for constructing, altering, adding to … public buildings … in
order to render them safe,” (emphasis added); and § 101.02(7r)(a) prohibits local
governments from enacting or enforcing an ordinance “that establishes minimum
standards for constructing, altering, or adding to public buildings” unless the local
ordinance “strictly conforms” to the standards adopted by DSPS, (emphasis added).
The parallels and cross references between these paragraphs suggest that the local
minimum standards preempted by § 101.02(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. See
Phelps v. Physicians Ins. Co. of Wis., 2005 WI 85, ¶58, 282 Wis. 2d 69, 698
N.W.2d 643 (“Typically, a term used in multiple subsections within a statute is
given the same meaning.”); State v. Dismuke, 2001 WI 75, ¶21, 244 Wis. 2d 457,
628 N.W.2d 791 (“Words or phrases appearing in the same statute are given the
same meaning.”).

¶33 Indeed, another provision in WIS. STAT. ch. 101 appears to distinguish
between building code standards and other types of standards, including standards
addressing “aesthetic considerations” that relate to “color and texture and design
considerations that do not relate to health and safety.” See WIS. STAT.
§ 101.02(7w)(b), (a). Significantly, para. (7w)(b) appears to recognize that local
ordinances can address aesthetic considerations for the interiors or exteriors of

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No. 2022AP1468

public buildings. And like para. (15)(j), subds. (7)(w)(a) and (b) suggest that “the
minimum standards” referenced in para. (7r)(a) do not encompass any and all
“minimum standards for constructing … public buildings,” and are instead limited
to building code standards.

¶34 Second, statutory language is to be read alongside related statutes.
Here, it is illuminating to read the preemption language of WIS. STAT.
§ 101.02(7r)(a) alongside other express grants of authority to local governments.
Specifically, WIS. STAT. ch. 62, which governs cities, provides that WIS. STAT.
§§ 62.01 to 62.26 “shall be liberally construed in favor of the rights, powers and
privileges of cities to promote the general welfare, peace, good order and prosperity
of such cities and the inhabitants thereof.” See § 62.04. Subsection 62.11(5)
provides that the police powers granted to cities “shall be limited only by express
language.” Paragraph 62.23(7)(am) provides that a city may “regulate and restrict”
“the height, number of stories and size of buildings,” among other things, “[f]or the
purpose of promoting health, safety, morals or the general welfare of the
community,” and that “[t]his subsection and any ordinance … enacted or adopted
under this section, shall be liberally construed in favor of the city and as minimum
requirements adopted for the purposes stated.” Paragraph 62.23(7)(b) specifically
pertains to regulations regarding the construction and alteration of buildings—it
grants cities the authority to “divide the city into districts …; and within such
districts … regulate and restrict the erection, construction, reconstruction, alteration
or use of buildings, structures or land.” And para. 62.23(7)(g) also contains its own
preemption language, which provides that “[w]herever the regulations made under
authority of this section … impose other higher standards than are required in any
other statute or local ordinance or regulation, the provisions of the regulations made
under authority of this section shall govern.”

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¶35 There can be no dispute that cities use the authority granted by these
statutes to regulate certain aspects of the “construction” of public buildings. By way
of example, Madison General Ordinances impose numerous regulations regarding
the height, number of stories, and size (among other features) of buildings in
commercial and mixed-use districts.10 Likewise, Madison General Ordinances
impose numerous regulations regarding the appearance of commercial building
façades, including ordinances that regulate the design and materials used to
construct such façades.11

¶36 Turning back to WIS. STAT. § 101.02(7r)(a), an overbroad
interpretation of the phrase “minimum standards for constructing … public
buildings” would prevent cities from regulating any aspect of the construction of
public buildings, including in manners that WIS. STAT. § 62.23(7) explicitly
authorizes, even if the local regulations do not intrude into the province of building
code issues. Generally speaking, when multiple statutes seemingly address the same
subject matter, “we properly read the two statutes in pari materia such that both will
be operative,” and to avoid conflicts if a reasonable non-conflicting interpretation is
possible. State v. Allen, 200 Wis. 2d 301, 309, 546 N.W.2d 517 (Ct. App. 1996).
10
See, e.g., MGO § 28.065(3), (4) (imposing dimensional requirements, regulating height
and number of stories, and regulating maximum square footage for new buildings and certain
additions in traditional street shopping districts); MGO § 28.066 (5), (6) (same for mixed use center
districts); MGO § 28.067 (3), (4) (same for commercial corridor-transitional districts); MGO
§ 28.068 (3), (4) (same for commercial center districts).
11
One such example is MGO § 28.060(2)(b), which requires “façade articulation” that is
“[c]onsistent with the design of traditional storefront buildings” on new buildings and major
expansions in mixed-use and commercial districts. A non-exhaustive list of other examples
includes § 28.060(2)(d), which prescribes the number and placement of door and window openings
in nonresidential uses at ground floor level; § 28.060(2)(e) and (f), which requires screening of
certain equipment and service areas; § 28.060(2)(g), which requires the use of specified “durable,
high-quality materials” for certain building features and requires consideration of “the use, amount,
placement and relationship of each material as part of a comprehensive palette of building
materials; and MGO § 28.173, which prescribes acceptable “forms” for mixed-use and non-
residential buildings.

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Applying this canon here supports a reasonable, non-conflicting interpretation of
§ 101.02(7r)(a) under which the minimum standards that it was enacted to preempt
are limited to those that address building code issues.

¶37 For all these reasons, we conclude that WIS. STAT. § 101.02(7r)(a) is
most reasonably interpreted as withdrawing local authority to enact or enforce
minimum standards that address building code issues that are not in strict
conformity with the statewide commercial building code. The evident purpose of
§ 101.02(7r)(a) is to establish a statewide code that is uniform across the state, and
local ordinances that impose different building code standards logically conflict
with the statute, defeat its purpose, and violate its spirit. DeRosso Landfill Co., 200
Wis. 2d at 651-52. Although a broader interpretation of § 101.02(7r)(a)’s
preemptive effect might be reasonable if some of the language of that paragraph
were considered in isolation, it is much less reasonable when the statute is
considered in context with surrounding and closely related statutes and other statutes
pertaining to local authority.

¶38 Before applying this interpretation to the specific ordinance at issue
in this appeal, we briefly comment on some arguments offered by the City. It
appears that the City may be asking us to go further and adopt an interpretation that
categorically exempts all properly promulgated zoning ordinances from the
preemptive effect of WIS. STAT. § 101.02(7r)(a). As we understand the City’s
argument, no ordinance that is denominated as a zoning ordinance would be
preempted, regardless of the content or purpose of the zoning ordinance or the
subject matter it seeks to regulate.

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¶39 On the one hand, the City’s interpretation finds support in the
legislative history of WIS. STAT. § 101.02(7r)(a).12 It also finds support in the
history of the enacting regulations, and in particular, DSPS’s retention of the
substance of WIS. ADMIN. CODE § SPS 361.03(5)(a)2. following the enactment of
§ 101.02(7r)(a).13 We observe that, pursuant to the agency rulemaking procedures
in place at the time that § SPS 361.03(5)(a)1. was revised, the legislature and its
joint committee for review of administrative rules had the opportunity to review the
revised code provision before it became law, and could have objected to the failure
to make a substantive revision to the rule addressing zoning as contrary to state law,
but did not do so. See WIS. STAT. § 227.19(4), (5).

¶40 On the other hand, there are at least two potential problems with a
categorical approach. As the Associations point out, the legislature could have
included express language that exempts zoning ordinances when it enacted WIS.
STAT. § 101.02(7r)(a), and it did not do so. Additionally, if all ordinances that were
promulgated as zoning ordinances were exempt from preemption under

12
The City points to the following legislative history in support of its interpretation.
Senator Terry Moulton was one of the sponsors of 2013 Wis. Act 270, and the language of WIS.
STAT. § 101.02(7r)(a) was drafted in response to a drafting request that his chief of staff emailed to
staffers at the Legislative Reference Bureau. See Act 270, drafting files at 14,
https://docs.legis.wisconsin.gov/2013/related/drafting_files/wisconsin_acts/2013_act_270_sb_61
7/02_sb_617/13_2184df_pt01of02.pdf. In the drafting request, Senator Moulton’s chief of staff
explained that the proposed legislation should establish a “Uniform Commercial Building Code,”
and he attached a document to the email delineating the scope of the legislation that he was
proposing. Id. at 14-15. A footnote in the document stated: “Building code pertains to the design,
construction and alteration of buildings and structures. Not to interfere with a municipality’s
zoning code pertaining to land use, setbacks, building height, materials and other general planning
and development issues….” Id. at 15. This drafting request is significant because it draws a
distinction between building code standards and those standards created by zoning regulations, and
because it directed the Legislative Reference Bureau to draft statutory language that would preempt
the former and leave the latter untouched.
13
See supra, ¶¶20-22. As stated, WIS. ADMIN. CODE § SPS 361.03(5)(a)2. provides:
“Nothing in chs. SPS 361 to 366 affect the authority of any municipality to enact or enforce
standards relative to land use, zoning or regulations under … 62.23(7), Stats.”

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No. 2022AP1468

§ 101.02(7r)(a) regardless of their purpose or content, local governments could
establish more restrictive or conflicting minimum building code standards under the
guise of zoning, thereby evading the statute’s evident goal of creating a uniform
statewide commercial building code. It would be surprising if the proper
interpretation of § 101.02(7r)(a) would allow a local government to avoid its
preemptive effect by denominating as a zoning ordinance what is in reality a
building code standard that conflicts with or is stricter than the statewide
commercial building code.

¶41 Under the circumstances here, we need not decide whether the City’s
categorical approach is correct in order to resolve this dispute. That is, for purposes
of deciding this appeal, we need not decide whether a determination that a local
ordinance was (or could have been) promulgated as a zoning ordinance is
necessarily dispositive of whether the ordinance is preempted by WIS. STAT.
§ 101.02(7r)(a). We need not reach this question because, as discussed in the
following section, the Associations have not provided a basis for concluding that
the Bird-Safe Glass Ordinance, which was promulgated as a zoning ordinance, is
effectively a building code standard that is preempted by § 101.02(7r)(a).14

B. Application to the Bird-Safe Glass Ordinance

¶42 Having determined that WIS. STAT. § 101.02(7r)(a) was meant to
preempt local ordinances that establish minimum building code standards that do

14
For these reasons, we also need not address the parties’ dispute about whether the Bird-
Safe Glass Ordinance constitutes a proper exercise of the City’s zoning authority. As we have
explained, cities have broad authority to regulate local issues, including but not limited to zoning
authority, and we have not adopted a categorical approach under which a determination that an
ordinance is a zoning ordinance is dispositive of whether it is preempted by WIS. STAT.
§ 101.02(7r)(a).

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No. 2022AP1468

not strictly conform to those in the statewide code, we turn to consider whether the
Bird-Safe Glass Ordinance constitutes a local building code standard.

¶43 As discussed above, the Ordinance pertains to new construction and
to the expansion of existing buildings, and it requires the treatment of certain
exterior glass surfaces to increase their visibility to birds, thereby reducing the risk
of fatal or injury-causing collisions. MGO § 28.129(2), (1). The Ordinance
identifies several permissible methods to increase the visibility of glass. It may be
treated with a pattern of visual markers consisting of dots or lines of specified size
and spacing, or other mitigation measures may be used, including low reflectance
opaque materials, non-glass double skin façades, metal screens, solar shading, and
insect screens. § 28.129(4).

¶44 As noted, the question is whether the Ordinance establishes what is
effectively a building code standard, even though it was passed as a zoning
ordinance. 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.

¶45 The Associations have not advanced a clear definition of what makes
a standard a building code standard. Instead, at oral argument, the Associations
proposed a test that turns on whether the local standard addresses the same subject
matter as a standard that DSPS has included in the statewide code. If so, the
Associations contend, the local standard constitutes a building code standard, and
the court would then ask whether the local standard “strictly conforms” to the
standards that DSPS has adopted addressing that subject matter in the statewide
building code. The Associations’ attorney acknowledged that, under its proposed

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No. 2022AP1468

test, a court would not be able to determine whether the legislature had withdrawn
local authority to regulate certain issues without determining whether DSPS had
actually addressed that subject matter in the statewide commercial building code.

¶46 According to the Associations, the application of their proposed test
demonstrates that the Bird-Safe Glass Ordinance is preempted by WIS. STAT.
§ 101.02(7r)(a). They argue that the Ordinance establishes a building code standard
because it addresses the same subject matter as a standard that DSPS has included
in the statewide code; they further argue that it does not strictly conform to the Code
because it requires something more on that subject matter than what DSPS has
required to ensure that public buildings are safe. To evaluate the Associations’
application of their proposed test, we must first provide additional background on
the statewide code and the provisions in that code that regulate glass.

¶47 As discussed, the statewide commercial building code that was
adopted by DSPS is found in WIS. ADMIN. CODE chs. 361-366. In fixing the
standards in the statewide code, DSPS adopted portions of various international
codes developed by third parties, including, as relevant here, portions of the 2015
version of the International Building Code (the “international code” or “IBC”). See
§ SPS 361.05(1).15

15
The international code is copyrighted by the International Code Council, Inc. (ICC).
Although WIS. ADMIN. CODE § SPS 361.05 has adopted it by reference, its provisions are not
actually reprinted in the administrative regulations and must be accessed through other means.
According to the notes to § SPS 361.05, a copy of the international code is on file in the offices of
DSPS and at the legislative reference bureau, copies may be purchased from the ICC, and it may
be viewed (but not printed) free of charge on the ICC’s website, at https://codes.iccsafe.org.

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No. 2022AP1468

¶48 The international code contains a chapter titled “Glass and Glazing,”16
which was adopted by DSPS and addresses “the materials, design, construction, and
quality of glass … for exterior and interior use in both vertical and sloped
applications in buildings and structures.” See IBC, ch. 24, available at
https://codes.iccsafe.org/content/IBC2015P4/chapter-24-glass-and-glazing (last
visited Sept. 26, 2023). Generally speaking, the provisions of this chapter seek to
ensure that glass is of adequate thickness, adequately supported, and capable of
resisting load combinations and bearing the weight of the structural elements of
which it is a part.17 Accordingly, the statewide commercial building code and the
Bird-Safe Glass Ordinance both address the general subject of glass that is used in
the construction of the exteriors of public buildings. However, the Associations do
not appear to argue that the Ordinance can be said to address the same subject matter
as the statewide code on that generalized of a basis.

¶49 Instead, the Associations argue that the Ordinance establishes a
building code standard because it addresses the same subject matter as a specific
section in the international code’s glass and glazing chapter, IBC § 2403.1, which
addresses markings on glass. That section is titled “Identification,” and it requires,
among other things, that each pane of glass bear a “manufacturer’s mark” that
designates the type and thickness of the glass or glazing material:

16
“Glazing” is defined as “the action, process, or trade of fitting windows with glass.”
Glazing, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/
glazing (last visited Sept. 26, 2023).
17
By way of example, IBC § 2403.2 requires detailed drawings, analysis, or test data
ensuring safe performance when one or more sides of a pane of glass are not firmly supported; IBC
§ 2403.3 governs framing and describes what it means for a pane of glass to be firmly supported;
IBC § 2403.4 addresses differential deflection of adjacent unsupported edges that are adjacent to
walking surfaces; IBC § 2403.5 addresses the thickness of glass in louvered windows and jalousies;
and IBC § 2404 addresses wind, snow, seismic, and dead loads on different installations of glass.

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No. 2022AP1468

Each pane shall bear the manufacturer’s mark
designating the type and thickness of the glass or glazing
material. The identification shall not be omitted unless
approved and an affidavit is furnished by the glazing
contractor certifying that each light is glazed in accordance
with approved construction documents that comply with the
provisions of this chapter. Safety glazing shall be identified
in accordance with [IBC §] 2406.3.

Each pane of tempered glass, except tempered
spandrel glass, shall be permanently identified by the
manufacturer. The identification mark shall be acid etched,
sand blasted, ceramic fired, laser etched, embossed or of a
type that, once applied, cannot be removed without being
destroyed.

Tempered spandrel glass shall be provided with a
removable paper marking by the manufacturer.18

Section 2403.1. The apparent purpose of this provision is to require that the
qualities of glass panes that are used in construction are readily identifiable. This
in turn helps ensure that panes installed in commercial buildings are of an
appropriate type and thickness to be structurally sound such that the buildings of
which they form a part are safe for employees, frequenters, and the public.

¶50 According to the Associations, the Bird-Safe Glass Ordinance
establishes a building code because this provision from the international code
addresses “markings” on glass, and one option for complying with the Ordinance is

18
For more information on safety glazing and tempered glass, see Chris Campbell, Safety
Glass and Glazing - A Quick Reference Guide, https://www.buildingcode.blog/blog/safety-glass-
a-quick-reference-guide (last visited Sept. 29, 2023). According to that source, “safety glazing
refers to glass panels or other materials that have been manufactured to reduce the likelihood of
breaking and to minimize the safety risk if the material does break.” Id. “Tempered glass” is one
specific type of safety glazing. Id. Requirements for safety glazing are set forth in IBC § 2406.
Id. That section specifically identifies hazardous locations in buildings that require safety glazing,
such as glazing that is in certain doors, certain windows, certain guards and railings, and certain
wet areas, and glazing that is adjacent to places including stairways, ramps, and the bottom of
stairway landings. Id.

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No. 2022AP1468

to add “a pattern of visual markers” beyond the mark that is required by IBC
§ 2403.1. Notably, the Associations’ argument focuses exclusively on just one of
several compliance options the Ordinance provides for treating glass—the
placement of visual markers on the glass at specified intervals.19

¶51 As for the Ordinance’s visual markers option, the Associations
contend that this provision addresses the same subject matter as IBC § 2403.1, even
though the mark required by § 2403.1 is different in appearance and purpose from
the visual markers described in the Ordinance, and even though a pane of glass can
both be marked as required by § 2403.1 and also have the pattern of visual markers
specified in the Ordinance. According to the Associations, once DSPS has spoken
on the general subject of marks and has determined that some kind of mark is
required on panes of glass to protect human safety, local governments are preempted
from requiring any other marks on glass, regardless of the nature or purpose of such
marks.

¶52 We reject the Associations’ proposed test because it fails to provide a
meaningful and consistent standard that courts can use to determine whether a local
ordinance establishes a building code standard that is preempted. The problem with
the test, as the Associations have explained and attempted to apply it, is that a court’s
conclusion about whether an ordinance addresses the same subject matter as the
statewide commercial building code would necessarily depend on the level of
generality at which the court describes the subject matter that is regulated by the
local ordinance. At one end of the spectrum, a local zoning ordinance that requires

19
As for the other compliance options specified in the Ordinance, the Associations do not
develop any argument that these options address the same subject matter as any provision in the
international code or any other provision in the statewide code, and therefore constitute a building
code standard under the Associations’ proposed test.

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No. 2022AP1468

“façade articulation” on the exterior of mixed-use buildings could be described in
general terms as regulating exterior walls, doors, and windows. If the court were to
describe the subject matter of the ordinance with that level of generality, the court
would be bound to conclude that it is preempted because the statewide code contains
many provisions that address exterior walls, doors, and windows, and the façade
articulation ordinance requires more than what is required by those statewide code
provisions.20 At the other end of the spectrum, the court could describe the subject
matter of the local ordinance as regulating the aesthetic appearance of exterior walls,
doors, and windows on certain buildings. If the court were to describe the subject
matter with that level of precision, then the court would conclude that the façade
articulation ordinance is not preempted because the statewide commercial building
code does not address the aesthetic appearance of walls, doors, and windows.

¶53 As this example demonstrates, the Associations’ proposed test is too
malleable to produce results that are anything but arbitrary—the results would
depend entirely on how any given court chooses to characterize the subject matter
regulated by the local ordinance. The arbitrariness of the proposed test is illustrated
in this very case. 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 Associations’ test (at
least not based on IBC § 2403.1, which regulates “marks” but not “visibility”).

¶54 The arbitrariness of the Association’s proposed test is also illustrated
by the inability of the Associations’ attorney to give consistent answers at oral

20
See IBC § 1010 (included in ch. 10 addressing “means of egress,” and specifically
regulating “doors, gates, and turnstiles,” https://codes.iccsafe.org/content/ IBC2015P4/chapter-10-
means-of-egress), and IBC ch. 14 (regulating “exterior walls,” https://codes.iccsafe.org/
content/IBC2015P4/chapter-14-exterior-walls), in addition to IBC ch. 24, which, as discussed,
regulates “glass and glazing.”

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No. 2022AP1468

argument about whether other Madison General Ordinances would be preempted
under the test. By way of example, the attorney was asked whether an ordinance
that required ground floor windows to be “clear or slightly tinted” would be
preempted on the ground that Chapter 24 of the IBC regulates glass, generally, but
does not specifically address tinting. At one point, the attorney asserted that
“anything having to do with glass” would be preempted; at another point, the
attorney indicated that the ordinance would not be preempted because he did not
understand the statewide code to specifically address tinting; and at yet another
point, the attorney indicated that he could not give a definitive answer and would
have to further study the statewide code to determine whether it addresses the tinting
of glass. We do not perceive the attorney’s inability to answer to be the result of a
lack of candor; we instead perceive it to be the result of problems that are baked into
the Associations’ proposed test.

¶55 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. This test takes into account
the subject matter of the local ordinance, and also its specific content and its
regulatory purpose. We inquire 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. This test ties directly
to the language of WIS. STAT. § 101.02(15)(j), which requires DSPS to adopt a
statewide commercial building code consisting of “reasonable standards or rules for
constructing … public buildings … in order to render them safe,” and WIS. STAT.
§ 101.01(13), which defines the term “safe” to mean “such freedom from danger to

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No. 2022AP1468

the life, health, safety or welfare of employees or frequenters, or the public,” “and
such reasonable means of notification, egress and escape in case of fire, and such
freedom from danger to adjacent buildings or other property, as the nature of the …
public building[] will reasonably permit.” Whether the statewide code addresses
similar topics as the local ordinance may be relevant to the inquiry, but it is not
dispositive. Instead, courts must look at the specific content and purpose of the
ordinance, bearing in mind the considerations that inform the statewide code.

¶56 Applying this test here, the Ordinance sets standards that relate in
some respect to building materials, and building materials are a common subject of
building codes. However, the standards set by the Ordinance are not meant to
address the structural integrity of buildings or any of their systems or components.
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. We therefore conclude that
the standards set by the Ordinance are not effectively a building code standard and
are not preempted by WIS. STAT. § 101.02(7r)(a). Accordingly, we do not reach the
question of whether the Ordinance’s standards strictly conform to those in the
statewide code.

CONCLUSION

¶57 For the above stated reasons, we conclude that WIS. STAT.
§ 101.02(7r)(a) does not preempt the City’s Bird-Safe Glass Ordinance.
Accordingly, we affirm the circuit court order that granted summary judgment in
the City’s favor and dismissed this lawsuit.

By the Court.—Order affirmed.

28