Testimony of the Real Estate Board of New York to the Committee on Housing and Buildings of the New York City Council in Support of a Local Law to Amend the New York City Building Code, in Relation to Bird Friendly Glass, INT. 1482-A

REBNY supports the goal of achieving a more bird-friendly building environment and reducing bird collisions and deaths below the tree canopy. Any city approach should be based in science and take a practical approach to implementation. REBNY has concerns with the bill as drafted and further study is necessary.

Int. 1482-A would amend the New York City building code to require “bird-friendly glass,” as defined as glass with a threat level of 25 or less, on 90% of exterior glazing on the lowest 75 feet of any building. The code would also be amended to require bird-friendly glass for the 12 feet above any green roof system in addition to 100% of exterior glazing on glass balcony railings, parallel glass and glass corners. As amended, this bill appears to be generally aligned with the recommendations of the New York Audubon Society and is improved from the original version. However, further refinement is necessary to ensure no conflicts in implementation with state legislation and the city’s zoning resolution, along with additional clarification on the applicability of this requirement to existing buildings.

As the Council may already be aware, Senate Bill S25B will establish a council representing relevant interest groups and experts to promote the use of bird-friendly design and construction practices. The council has been designated to conduct a study to assess the magnitude of the problem of birds colliding with buildings, recommend criteria for identifying buildings which pose a danger to bird species, identify strategies, technology and products to mitigate the issue, and identify potential funding sources for the retrofitting and/or replacement of windows of existing buildings that pose a threat to birds. REBNY has publicly stated its support for the state created-council. The bill awaits the Governor’s signature for this initiative to begin.

There are a number of practical constraints that impede implementation.

First, only four manufacturers today produce bird friendly glass. This is a relatively new innovation that is not widely available for purchase and use. As a niche issue, not very many materials have official test scores, which will create a lot of uncertainty about how to achieve the mandated ratings. Most of the products as currently envisioned are geared toward new construction, not retrofits, so costs are also highly variable. One manufacturer cited increased costs to the membership ranging from 3% for tinted glass, 12% to adhesive film, and as much as 50% more for either wire-enforced or specialty treated glass. Quite frankly, all orders may be considered specialty as there are no commercially available supply. Even if an individual residential or commercial unit wished to install a window there would be none available at a construction supply store.

Given just the constraints on bird-friendly glass supply it is even more critical that the state should be allowed to conclude its work before the city approves this bill.

Furthermore, the lack of commercial availability speaks to the need to exempt existing buildings from this requirement. Existing buildings should be excluded from the requirement when they are undergoing routine exterior work. Clear definitions and scope of work that would trigger the replacement should defined up front. It does not make sense to necessitate a window change on a unit-by-unit basis, for brick re-pointing or when a significant percentage of the overall façade is already visible to birds. For a storefront business such as restaurant, which already has significant permitting and upfront capital costs and only 40% survive past the first year, this requirement could lead to significant delays in waiting for a custom glass order. There is no standard glass storefront.

Second, there is an apparent conflict with the goals of this legislation and the zoning statute that should be resolved prior to the start of an effective date. The glazing and treatment options to discourage bird collisions requires further review. As an example, tinted glass may be more cost effective but can have a negative impact on the streetscape and conflict with the zoning resolution. The City of New York Zoning Resolution (ZR)

Minimum Transparency Requirements (Section 37-34) in commercial districts requires ground floor street level walls along primary street frontages or designated retail streets to be “glazed with transparent materials which may include “show windows, transom windows or glazed portions of doors.” According to the Zoning Resolution, transparent materials must occupy “50 percent of the surface area of ground floor street walls between a height of two feet and 12 feet, or the height of the ground floor ceiling, whichever is higher.” A text amendment may be necessary to strike the proper balance between this bill’s stated policy goal and past efforts by the council to encourage “eyes on the street” streetscape design and retail activity in commercial districts, along the waterfront, for FRESH supermarkets, and adjacent to POPS (privately owned public spaces). The effective date and implementation should be set accordingly.

The bill should be further refined to be clear in its applicability and not foreclose on other options to make the city more bird friendly. Considering other municipalities’ legislation, it would be better for the requirement to reflect that a variety of materials provide visual markers to birds, and that if only 10% of the overall façade below 75’ is un-treated glass that the goal is still met. There should also be special consideration for landmarks, rent-stabilized buildings, and new affordable housing. Bird safety is a laudable goal and a complementary grant program to offset the cost of retrofits or inclusion has been allocated in other mandates for new technology and materials for these classes of buildings. The state council would be a logical place to discuss a financial incentive program.

Last, the city bill should allow the Department of Buildings and Landmarks Commission ample time to make any necessary rule changes by which to implement the new requirements. Further clarification is necessary as to the applicability of these laws for buildings currently under renovation, pending DOB approval, or filed permits that have not yet begun construction.

REBNY ultimately supports the goals of the legislation but is troubled by the lack of a holistic city study looking at the impact to storefronts, the urban streetscape, and commercial availability of the product. Additional clarification and detail are required to effectively implement this goal in a meaningful way.

Thank you for the time and consideration of these points.