The Complaint: Part 1

A view at the sanctuary on a busy day.

Over the next few days I'm going to discuss various sections of the Complaint filed by the Plaintiffs and the lawyer Anthony B Tohill. Then I will post the complete Summons and Complaint, which has 50 distinct Paragraphs, some of which have many sub-paragraphs. Unfortunately much of this analysis will be fairly dry, technical and uninteresting to most of my readers, but I will try to be as accurate and sober as possible. However what I write is highly provisional, and does not in any way form a formal response to the allegations. In particular I emphasize that almost all the allegations, including many of the more innocuous ones, have mistakes. The lawsuit was artfully composed to interpret everything in a way that is maximally helpful to their case, including some of the apparently straightforward wording.

Let's start with  the key numbered  paragraphs in the Complaint:

7 Subject premises is designated RA—80 on the Town

of Riverhead Zoning District Map.

8. Permitted uses within Zoning District RA—80 are

low density residential development.

9. Defendants are now operating a bird sanctuary at

the aforesaid lots 3 and 4.1. (ADDED NOTE: lot 3 has 2 cottages on it, and lot 4.1 is devoid of structures).

10. A bird sanctuary is not a permitted use in the

RA-80 Zoning District and under the Town of Riverhead Zoning

Code is a prohibited use.

As I wrote in the blog post earlier today, these are the plaintiffs' key assertions. 7 is correct. 8 is roughly correct (a number of other uses, such as hog farms, are also explicitly permitted, as of right). 9 is roughly correct (although perhaps "operating" is not quite the right word; I leave nature alone and add a few flowers and nectar feeders, and talk to my guests, and sometimes the hummingbirds). 10 is completely incorrect because (A) leaving the land in a natural state as a bird sanctuary is not really a "use" at all, because it does not involve the erection of relevant structures (B) clearly it is not the aim of the Code to prohibit leaving land in its natural state, indeed the express Purpose of this section of the Code is to "preserve woodland and natural features" (C) backyard birdwatching, by the owners and their invitees, is clearly a permitted "accessory" or "customary" use routinely and commonly associated with a residence; if it were not, millions of people nationwide would be flouting the law. (D) It does not follow that all activities on residentially zoned land are prohibited simply because they are not explicitly permitted under the Code; for example visiting that land, observing wildlife on that land, and walking on it (perhaps even while chewing gum), are clearly permitted, even though not explicitly permitted (as for example are hog farms).

Jumping ahead to para 33 we have:

33. Plaintiffs have caused a written request to be

made to the Town of Riverhead but no proper municipal official

has timely instituted any appropriate action or proceeding.

My understanding of this paragraph is that the plaintiffs' lawyer asked that the Town act based on their assertions in paras 7-10, but that either the Complaint was prepared prior to the Notice of Violation (see dec 19 blog post), or the Town (as we know) is not acting or proceeding with that Notice.

Whether or not the claims of these Complaint paragraphs have any legal basis at all (which I doubt), they seem to defy logic, common sense and plain english. Surely one can leave one's land in its natural state as a bird sanctuary and one can invite people to one's residence to view those birds, provided that in so doing they obey the law. If of course this activity becomes "commercial",  for example because the host charges his invited visitors for entry, this might become a prohibited "use" under the Code, but there has been almost no suggestion this is the case (and it certainly is not the case).

The relevant section of Riverhead Town Code

Here's a mid-july photo with yellow Hyperion daylily and red "Lucifer" crocosmia in flower, although the hummingbird is feeding at rosebud sage "Mulberry Jam", and Long Island Sound in the background.

Over on the right, under "Interesting Websites", I provided a link to the section of the Riverhead Town Code that's cited in both the Violation Notice (see dec 19 post) and the lawsuit by neighbors. "Residence A-80" (i.e. 2 acre zoning) applies to the area in which the sanctuary is located. Of course none of the house lots owned by the plaintiffs in the lawsuit have 2 acres, unlike the lot on which my cottage is located (2.3 acres).
Note first that the initial Paragraph 108-20.1 defines the "Purpose and Intent" of this section of the Code as

"......to ensure the preservation of the historic integrity and rural character of the Sound Avenue corridor and to conserve wooded areas and other natural features."

In other words, the purpose is to conserve structures such as the prewar cottages at the sanctuary, the country character of the area, and to preserve wooded areas (such as the many trees at the sanctuary, and features like natural avifauna, such as the hummingbirds that have used this area for thousands of years. So it would appear prima facie that all the objectives, structures and functions of the sanctuary are in complete conformity with the Code, and indeed are an ideal match.

The next section of the Code lists the "uses" that are permitted: single family dwelling, greenhouses, riding academies,  hog and other livestock farms, commercial horse-boarding operations, small animal and bird rehabilitation, and other specially permitted uses, and "accessory uses", defined as follows:

Accessory uses. Accessory uses shall include those uses customarily incidental to any of the above permitted uses

Note the Code says that no building or structure is permitted other than those listed. It does not say of course that leaving the land in its natural state is "permitted", since by definition this does not involve any type of construction. It would seem absurd to interpret the Code as prohibiting (because not specifically listed as a permitted use) leaving land in its natural state, for example as a wild bird sanctuary. Nevertheless both the Violation Notice and the lawsuit are based on the assumption that leaving the land in its natural state, as a bird or other type of wildlife sanctuary, is "prohibited" by virtue of the fact that it's not specifically permitted. I think the decision of the Town not to proceed with any type of action against the sanctuary was prompted by the realization that this extreme interpretation ("if it's not specifically permitted, it's prohibited" is nonsensical.

The Town Code Investigator, who visited the sanctuary on the day (aug 5 2013)  the Newsday article appeared (in response to complaints by presumably Newsday-reading neighbors), has suggested that perhaps the sanctuary is permitted under "bird rehabilitation" provision, though this requires a license, 10 acres, and no more than 20% coverage. However, the sanctuary is not at all aimed at  hummingbird "rehabilitation", merely as providing natural habitat and the nectiferous resources hummingbird need.

Furthermore, it is surely the case that, accessory to a residential use, maintaining parts of one's yard in a near-natural state as a bird sanctuary or refuge is "customary" and automatically permitted by the Code. If this were not the case, millions of backyard birdwatchers nationwide would also be "prohibited". The Audubon Society encourages everyone to maintain their backyards as natural bird habitat, and backyard birdwatching is one of America's post popular outdoor activities.

There are 2 separate lots at the Sanctuary, the western 2.3 acre lot which has 2 separate residential structures (cottages or "cabins"), and the eastern 1.1 acre lot which has no structures. Both are left in a more or less natural state, heavily treed and only a postage-stamp lawn. Indeed if you look down from the upper floors of the tall house belonging to 2 of the plaintiffs in the lawsuit (or on Google Maps Satellite View) all one sees is a sea of tree canopy. I have created some paths over the hilly terrain, but these follow natural contours, are made of earth, with only a few wooden steps where necessary.  

Hyperion; new links

Here's a view at the sanctuary in mid -july, when the Hyperion daylilies are out. In greek mythology, Hyperion was the father of the sun; almost no sun in this picture though. Although hummingbird activity doesn't start to really pick up until late july, there are always some around from may 1 onward, but one has to be patient - which is why we wait until august to open. Since I'm usually down in the bahamas until late may, there's always a ton of harden work to do in june and july, getting ready for the visitors (avian and human). However, some loyal volunteers come out to the sanctuary to maintain some feeders, and keep an eye on things, starting in late april, when hummers first arrive on Long Island. You can follow their northward migration at http://hummingbirds.net/map.html (though the map for 2014 has not yet started).
Over in the right-hand column of this blog you can see that I've added links to (A) the Riverhead News-Review article about the legal difficulties of the sanctuary, and also the turtle rescue facility, and
(B) a link to the "Friends of the Baiting Hollow Hummingbird Sanctuary" Facebook page. You can comments on both of these. I hope soon to add a link to the Newsday article which triggered all the legal difficulties.

Friends of the Sanctuary on Facebook; Male Bahama Woodstar; coots; parrot fish

The BHH sanctuary has many wonderful supporters who help in many ways (watering plants when I'm away; helping supervise visitors; and of course taking extraordinary pictures). One of these has organized a Facebook page: Friends of the Baiting Hollow Hummingbird Sanctuary. Please recognize her great work by "liking" this page. I believe she is also organizing a petition to the Riverhead Town Supervisor, to ask him to keep the sanctuary functioning as it has for 17 augusts) and even perhaps formally withdraw the Notice of Violation (which apparently he does not intend to pursue). See posts for dec 19 and yesterday.

Despite the legal problems we are in good spirits and Claire took some nice pictures this afternoon (I had to work on unblocking drains and fixing water pumps: the usual here). The above one shows a male bahama woodstar at one of our feeders. The next one shows a flock of american coots on Calypso pond. These are the most common birds on the pond at this time of the year. Later, as it dries up in the dry season, they will be placed by stilts, which nest on the mudflats. The last picture shows some parrot fish in the ocean just to the east of Calypso. But you have to look carefully. There's one in the center, about two thirds down the image. You can see a dark form with some green on it. Then there are 2 more to the left of this, again dark to the right and greenish to the left. They graze on the coral which is just below the breaking waves. Because there's a light northeast wind, the water is a bit choppy, which makes the fish difficult to see. But they are quite striking viewed in sunlight even from the beach, they are about 2 feet across. Of course usually to see any fish at all, one has to snorkel. Parrot fish are good eating, but they must be consumed immediately.

Link to News Review Hummingbird Sanctuary/Turtle Rescue article

The News Review article about the Town's attack on the hummingbird sanctuary and the turtle rescue operation is now online here. I'll write a commentary tomorrow. After reading the article, you can comment (at the end). So far almost all the comments are supportive.

Here's another spring flower (late may) at the sanctuary - for humans not hummingbirds - a old-fashioned rose climbing up a wild cherry tree.

article re Hummingbird Sanctuary's legal plight in today's News-Review; spring

Apparently there's an item in today's Riverhead News Review newspaper (the print version but not the online version) about the sanctuary's legal problems. I've not seen the article, and if any of my readers can either scan the printed version or access the online version as a subscriber, I would appreciate it. Further updates to follow......

Spring will soon be here (or perhaps I should say there, on Long Island; here on Eleuthera it arrived at the end of summer), so I show a couple of images of spring-flowering hummer-plants taken late may at the sanctuary: foxglove and bleeding heart.

garden scene

The light was beautiful this afternoon, though the day has been quite cool (high of 73) and tonight, since the outdoor temperature went below my threshold of 65 degrees, we have a fire at Woodstar this evening. Casuarina wood is the best burning wood I know, tremendously heavy - it sinks in water! - and burns without the slightest sparking, releasing a fragrance of cedar. The fireplace in Woodstar is a great rarety on the island, and is decorated with a surround of old Delft tiles. I have been told that these tiles are worth the rest of the house put together (it's a bit of ruin, but old, comfortable and characterful, and Claire has made it quite pretty).
So I took some more garden shots; I think the one above came out quite well. The main palm is a Royal (Roystonea regia, from Cuba), my favorite. Note the spear coming out of the crown of the palm: the tightly rolled new sentinel frond. The splashes of red are ti plants, and the banana-like leaves to the right are heliconias.

Hummingbirds in the Bahamas

When we arrive at "Calypso", our winter residence on the Bahamian out-island of Eleuthera, there's always a ton of things to do (repairs etc) after an 8 month absence. However, today I took a few minutes to sit (and do a bit of the endless weeding) near a large bush of firecracker plant (Russellia equisetiformis), a hummer favorite both here and in Baiting Hollow. Sure enough I saw several hummers buzzing around, and, using Claire's nifty Panasonic Lumix with a 16X optical zoom, tried to get pictures. None of them are very good, but the one above is acceptable. All the hummingbirds here are one species, the Bahama Woodstar, Calliphlox evelynae. It's very similar in appearance, behavior and size to the rubythroat. The only real difference is that the male Woodstar has a purple, not red gorget (though I believe there's a subspecies in the more southerly island of Great Inagua where it's red).
The Woodstar is a year round resident, and breeds throughout the year. It's quite abundant. Indeed, I noticed them immediately on my first visit to Eleuthera about 20 years ago, and it's one reason why I decided to buy the property here. Another is the fact that it has 600 feet of stunning Atlantic beachfront, with no possible close neighbors. I've always been unlucky with neighbors - or maybe they've been unlucky with me.
I also maintain a few hummingbird feeders near the main house, which is called "Woodstar", in honor of the endemic hummingbird. However, these are visited, rather clumsily, more frequently by bananaquits than hummingbirds (though when a hummer does arrive he sometimes chases off the much larger bananaquit). The other 2 cottages here are "SeaStar" (named in honor of the impressive echinoderm one finds in the sea here) and "MorningStar"  (named by my late brother Mark when he lived there). "SeaStar" is currently occupied by Claire's very lovely niece Camille and her brazilian boyfriend Fabio, and "MorningStar" by friends from NY City.
I've planted quite a bit of firecracker throughout the 10 acres of garden, as well as another hummer favorite, cape honeysuckle (Tecomaria capensis). But the main focus of the garden here isn't hummingbirds, but to create a lush tropical landscape, with many palms, wide lawns and other flowering plants. This has been quite difficult because the soil is very thin and poor, the dry season (jan-may) quite long, and salty winds blow much of the time. But, despite frequent setbacks by hurricanes, the end result is now quite pleasing. I'll feature the garden here in coming posts, as well as bits of news about my legal troubles in New York. Here's another of today's photos.

Martha Stewart's favorite palm

Here's a view from our back porch across Calypso pond. On the horizon you can see the coconut plantation, with Veselka, a fabulous beach-house in Double Bay that's for sale or rent (veselkabahamas.com) just visible. The pond is full, as is typical at the end of the rainy season, though it will slowly evaporate over the next few months. The palm with green-gray leaves is a Bismarck, from Madagascar, which is doing really well. The splashes of red are bougainvillea, hibiscus and oleander. There are a few coots on the pond, and egrets, too, but very quiet at the moment.
No real news on the lawsuit front (see jan 3 post), though a lot of activity.

First Views on arrival at Calypso; arctic vortex?

As you can see, we are now at our beach place "Calypso" in Eleuthera: the picture shows the view east to a small point just beyond which lies  "Halcyon Bay", which is our favorite beach on the island only 10 minutes walk along the strand from us. There's a bit of seaweed on the beach, but there were no hurricanes this summer and my little driftwood beach cabanas (not shown) are still intact, though I had a add a few fresh palmetto fronds.
I already have several hummingbird feeders up, and the hummers are already visiting them. as though we had not be gone for 8 months. But even before they were up there were lots of hummers zooming around, mostly visiting the firecracker flowers (Russellia equisetiformis) I have planted everywhere. I'll try to get some pictures in the next few days.

Here's a shot of a pink oleander in the back garden, with in front a Thevetia bush (you can see a few of the tubular orange flowers near the bottom of the image. And also in the back garden, here's a nice Royal Palm - about 15 years old, and already 20 feet tall.

To end today's post, here's an image of Halcyon Bay itself. It's close to sunset to the beach looks dark, and the tide is high so there are waves breaking on the sand. But we try to go at low tide, when because the bay is protected by a reef from Atlantic rollers, it's like a swimming pool. But tonight the "arctic vortex" will arrive and temperatures will drop from 82 to near 74! Brrrrrrr!

2-prong attack on the Sanctuary!

SANCTUARY CLOSED UNTIL AT LEAST AUGUST 1 2014!

We arrived at our winter home on Eleuthera on dec 30 (Jetblue to Nassau, then Pineapple Air to North Eleuthera, then a long, but pleasantly shared, taxi ride to Calypso). Everything here is lush, green and warm. On dec 31 after a long beach walk we got a call from Stony Brook to say that I had been served* with a "Summons and Complaint" (see first page below, which was scanned and sent on to me; I've not seen the full summons, which is very long) from 6 of our neighbors, demanding that the Hummingbird Sanctuary be closed and that we pay them $3 million in compensation for their suffering the existence of the sanctuary.
There seems to be a coordinated and carefully-timed 2 prong attack by my 6 neighbors. One of them is himself a supreme court judge, and artfully decided not to join the lawsuit (which will be heard in Supreme Court), but instead attack me via the Town.
There seem to be 2 key points here (although the suit apparently lists 47 individual complaints, some of which contain many sub-complaints).
1. Does the Town Code permit me to maintain my property in a natural state as a bird (specifically hummingbird) sanctuary?
2. Does the Code permit me to receive invited visitors at my residence there, via the established, deeded and surveyed Right of Way from Sound Ave?
Unless I am completely deluded (which is quite possible, especially after the pressure of the  events of this year!), the answer to both of these questions is clearly yes, in which case both of these actions collapse.
I am undecided whether I will continue to document this unpleasant saga on this blog. For the moment I'm inclined instead to focus on happier happenings.
Please note that you, my dear reader, can comment on this and all other posts, at the blog itself. Suggestions and advice, especially from the environmental/legal community, are especially welcome.

* actually not properly served, since the Summons was merely placed on our doorstep.