Fred uses an Allen wrench

I added a more convenient perch (an Allen wrench) to Fred's bamboo pole, and he seems happy.

Fred's back is up; visiting in august; waivers

Sunday morning Fred spent quite a bit of time perching in the dead branches of a cherry tree that reaches right over the back deck, where we usually eat our meals. Here's a view from below of the iridescent green feathers of his back. At one point he briefly wipes his beak - a typical behavior after feeding.

I'm not yet sure whether we will be able to open to general hummingbird enthusiasts in august, though we will definitely allow some organized private groups (birders, photographers, gardeners etc). In any event we are definitely closed for the moment. We will continue to require waivers, but I think they will be simply available on the spot, so you can sign and place in the box at the entrance. I will be drafting this new waiver over the next few days, and will post the result for comments on this blog. I think we will probably not allow repeated visits. I've already received quite a few waiver requests for this year, and I'll be responding to those personally soon, to say that waivers will be available on site if and when we open.

I sent my last response re the NoV to Investigator Downs this morning, essentially the draft I posted recently. My lawyer, Lynn Ingrao of the law firm Purcell Ingrao, has advised me not to send any more emails to the Town without first consulting her.  In any case, the ball is in their court.

Coral and a Bee; NoV saga continues

As Coral, the resident female hummer in Baiting Hollow, feeds from a feeder, a bee approaches (from the left) at high speed. When Coral sees that the bee is on the other side of the feeder, she resumes feeding - until the bee comes back round. Hummers do not like bees and wasps, whose sting would probably be fatal. The entire clip lasts only a couple of seconds but is played back in 8X slo mo.

Continuing the volley of emails in the NoV saga, I received the following reply to my last email (see my previous post)  from Richard Downs, the Code Investigator.

Mr. Adams, noted, I see that the parcel cited in the NOV mistakingly refers to that of lot 3,  it was indeed a clerical error. However to continue as I saw it on August 5, 2013 there where a majority of people congregating on lot 4.1 because we had a discussion about it that day, whereas I advised you then, that the vacant piece is or would be the subject of the zoning infraction; I know that because I told you that if the activity was exclusively contained to your residential lot it may be considered a customary and incidental use. Now because you alleged the signs, parking etc. not to be situated on the vacant parcel does not discredit the land use infraction observed on the vacant piece, one customary incidental land use leading into another plot or parcel without was the main question. I am available to meet with you at your connivence at the site next week to further discuss the matter and perhaps we can all get on the same page per say, as these emails back and forth are somewhat time consuming and possibly confusing the issue even more. I will also discuss the matter a litter further with the Town Attorney next week. I'd prefer a personal approach.  

PS. I will be out of the office Tomorrow. 

Sincerley,

Rich Downs

Town Investigator

Town of Riverhead

Basically he says, in chess parlance, that yes his king is captured, but he wants to continue to play (after a time out and consult with his advisors) with his remaining pieces. I am pondering a possible reply, because it seems to me he's got into a swamp and wants to lure me in too. I'm thinking of writing along the following lines:

Mr Downs - The problems with the personal approach are (1) it requires good will on both sides (2) each side can reach different interpretations of what was discussed and decided, unless the meeting is minuted, and both sides agree to the written minutes. A good example of this is our meeting on (or near) my property on aug 5 2013, when you "investigated" a complaint made by a neighbor about activity at my property presumably observed by that neighbor. Aug 5 was the day the Newsday article  appeared, which triggered a temporary spike in traffic on Terry Farm Road. (Another example was the related august 19 meeting between me, Judge Peter Mayer, Supervisor Walter and the deputy town attorney).

Our recollections of that meeting differ substantially. In essence, I recall that we met on the ROW as you approached, but did not reach, my cottages. You said there had been a complaint and you came to find out what was going on. I said I maintained a hummingbird sanctuary on my property to which I sometimes invited guests, and that the appearance of a Newsday article that day had triggered a big increase in traffic. You suggested I close for a few days so that things could be sorted out, to which I readily agreed (in fact I had already done this via this blog). You did not mention the distinction between permitted uses on the 2 separate parcels of land, and most importantly you did not enter or even see the "short lot" 4.1. Indeed, it seems extremely unlikely that you would have had time between the complaint itself and your arrival at my property to consult the tax maps, and fully understand the subtle distinction between developed and undeveloped parcels with respect to hummingbird sanctuaries. Please note that I promptly summarized my understanding of our meeting within 24 hours of that meeting, in a blog post of aug 6 (see my reply to Irene Schell's comment).

On the other hand, your recollection is that we discussed the legal distinction between the uses permitted on the 2 parcels, and referred to a possible infraction on parcel 4.1. You also claim you say people "congregating" on parcel 4.1, despite the fact that parcel is not visible from any of the locations you visited (other than perhaps a few tree-tops). I strongly suspect that your understanding of the distinction of "uses" permitted on developed and undeveloped residential parcels only emerged over the next 5 months, as you consulted with other Town officials, and perhaps with others (including plaintiffs and neighbors). My own grasp of this somewhat arcane point only began when the Town Supervisor visited my property 2 days later. Indeed, the language of your most recent email tends to support my interpretation of how you became confused about the substance of our aug 5 meeting, and about the location of the activities you observed then. I think you were reconstructing in your mind what happened n the light of your slowly emerging understanding of the matter, as evidenced by the extraordinarily long delay between aug 5 and the issuance of the (clerically erroneous) NoV.

There are a number of other issues on which we disagree. However, let me instead return to your suggestion that we meet on my property to discuss the matter personally. I'm happy to meet with you in the presence of neutral third parties, on neutral grounds, and with the understanding that any agreement reached should be in writing and signed by both parties. I respectfully insist that you, and other Town officials,  not visit my property without a search warrant or other proper authorization. I would regard any unauthorized attempt by you or other Town officials to visit as trespass, even if you come as a "hummingbirder" or part of a group of hummingbirders. 

Finally, it's my understanding that under the Town Code I am allowed to invite visitors to my residential property (lot 3) , to view hummingbirds or otherwise. Whether I'm allowed to permit some of those visitors onto the adjacent vacant property lot 4.1 seems to be less clear, though it seems very likely that at least family and close friends could so venture. 

- Paul Adams

Any comments?

NoV saga continues; Fred's feathers ruffled

The HD vid shows Fred's feathers ruffled by a good westerly breeze.

The email volley with Town Investigator Richard Downs continues (see yesterday's post for earlier emails). Mr Downs responded to my last email from yesterday as follows:

On Wed, Jun 18, 2014 at 10:15 PM, Inv Downs <downs@townofriverheadny.gov> wrote:

Mr. Adams, If you have received no visitors after the issuance of the Notice of Violation thence the Notice of Violation would be considered remedied,  however a compliance inspection must be performed by me to confirm the discontinuance of the violation use as described therein and observed on August 5, 2013. Thereafter and pending the above inspection the violation would be closed and satisfied as remediated. Should you choose to continue the use of the property in the same manner as observed on August 5, 2013 you may be subject to another violation on the premise. 

Please advise if you would like to set up a compliance inspection to remediate the notice of violation issued with regard to the above subject. 

Thank you. 

Sincerely,

Rich Downs

Town Investigator

Town of Riverhead

I then replied:

On Thu, Jun 19, 2014 at 6:22 AM, Paul Adams <paul.adams@stonybrook.edu> wrote:

Mr Downs - thanks for your follow-up email. As I previously stated, in order to either remediate or appeal I need to know exactly in what respect(s) you observed, on aug 5 2013,  that my property was, or might be,  in a "use violation" of the Town Code.

You indicate that if I have not received visitors at my residence after the issuance of the NoV on or around dec 18 2013, you would consider the  "violation" remedied. However, it simply cannot be the case that receiving visitors at one's residence, or residential property, is a Code violation. If that were the case then every single residence in the Town of Riverhead, other than perhaps those of extreme hermits, would be in violation.

You also imply that if I were to resume receiving visitors, a new "violation" would be issued. Again it cannot be the case that merely receiving visitors is prohibited under the Town code.

I suspect that what you really mean is that, while maintenance of a backyard hummingbird sanctuary is in itself not a violation, nor is receiving visitors, receiving visitors to a backyard bird sanctuary is, or at least might be, under some circumstances,  a code violation. It's an interesting, though bizarre, legal theory that needs to be tested in court, and which of course would have national implications. 

I think we need to clarify these issues before I can remediate, or appeal, and/or set up a compliance inspection.

Thanks - Paul Adams

To which Investigator Downs responded later this morning (with:

Mr. Adams, I am the Town Investigator for the Town of Riverhead,  it is my duty to interpret the codes of the town including the zoning ordinances and enforce such laws accordingly. With regard to your situation on August 5, 2013 it was determined by me that a "land use" was established, I have spoken to you in person and over the phone with regard to this, however I will reiterate again and perhaps it will provide you with a better understanding of the actual zoning infraction observed. 

The premise identified as SCTM 0600-012.00-02-4.1  is depicted as a vacant parcel  (assessor's records data card indicates such)  and with specific regard to "land uses" there is or was “no intended use associated therewith.” 

However on August 5, 2013, I clearly observed the aforementioned property being used by the general public (by invite), in addition, various signs were posted on and around the surrounding areas roadside etc. inviting the general public to drive onto, walk and or park to view, photograph and/or videotape hummingbirds upon this premise , It is my findings that you allowed such "land use" and did so knowingly and intentionally, in doing so established a  "land use" of the premise thereof,  that of which is contrary to a vacant parcel with no intended "land uses". Do to the aforementioned details mentioned herein,  this parcel, operating in this manner would in itself be subject to use regulations for the RA-80 Zoning Use District,  in which the parcel lies, and/or may require variances thereto to operate this parcel in such a manner. I suggested to you over the phone to seek zoning approvals through the Town to legalize said land use if you choose to continue. 

I also suggested to you that if my interpretation of the law with regard to the violation alleged is not satisfactory to you, then the zoning board of appeals can hear and decide and overturn accordingly. 

Also keep in mind that the parcel in question is situated within a Residential Zoning Use District and surrounded by single family residences (permitted land uses) abutting this parcel (including your own SCTM 12-2-3), Zoning Districts and Ordinances are in place to maintain land uses in accordance with the character of the surrounding area while keeping the peace and repose of those areas in tact so that "all persons" in a district can enjoy his or her on properties.   I hope this clarifies things better for you. 

Sincerely,

Rich Downs

To which I replied:

Mr Downs - thanks for the further clarification. However, the parcel cited in the NoV was not SCTM 0600-012.00-02-4.1 but the adjacent larger 2.3 acre parcel SCTM 0600-012.00-02-3 which is developed with 2 cottages, which I use as a summer residence. Furthermore, when you visited, you observed signs and visitors on the developed lot 02-3 not on the vacant lot 02-4.1. You did not inspect any part of the adjacent vacant lot, on which there were no signs, and indeed this lot is not visible (other than tree tops) or accessible from the locations you investigated.  I was present on the 0.2-3 lot throughout your visit, and we discussed the matter then.

As I wrote in my previous email, I believe I have the right to use my developed lot as a hummingbird sanctuary, accessory to the primary residential use. Furthermore I believe I have the right to invite and welcome guests at my residence, and to post signs directing them to appropriate parking. As you must have noted, parking close to the cottages is extremely limited, and I use the back (southern, "front yard") part of the lot as a parking area. Also, even though no specific "use" might be designated on Town records for the smaller lot 4.1, I believe I have the right to walk on my own own undeveloped property, and to allow visiting friends and family to also walk on that property. I note also that the small lot area is 1.1 acre, which conformed to the 1 acre zoning in force when I purchased the lot. Therefore I believe it's a buildable lot, grandfathered under the current 2 acre zoning. Finally I note that the Town of Riverhead, via the Peconic Land Trust, negotiated with me in 2005/2006 for the purchase of this lot as a nature preserve. If the lot cannot be "used" as a nature preserve/ wildlife sanctuary, the Town would have therefore itself been in violation if that purchase had occurred. Indeed, the current Sound Ave Preserve at the southern end of Terry Farm Road would also be in violation. 

I believe that all these issues could have been more appropriately dealt with by amicable discussion with the Town and neighbors, rather than by Violation Notices and lawsuits. Indeed, Supervisor Walter did arrange such an initial meeting between myself, himself, my close neighbor Judge Peter Mayer and AnneMarie Prudenti, which took place in the Supervisor's office aug 19. However, due to circumstances beyond my control there was no follow-up to that promising initial meeting. I was therefore quite surprised to receive the NoV in late december, almost 5 months after your aug 5 visit.

- Paul Adams

I used to be a serious chess player, and at this point I would have said "Unless I am very much mistaken, checkmate!"

He seems to have made 2 crucial mistakes. To see this it might help to look at this survey of the involved properties. You can see 2 lots outlined, a long one to the left (i.e. west) and a short one (more heavily outlined) to the right (i.e. east; Long Island Sound is at the top. The tax map number for the long one (2.3 acres) is 0600-012.00-02-3 and that for the short one (1.1 acre) is 0600-012.00-02-4.1.

The long lot was never subdivided, and has the 2 residential cottages on it. The short lot was subdivided out of a larger lot (similar in length to my long lot), which is why it carries the number 4.1. Supreme Court Judge Peter Mayer's tiny lot, with its recently built house, lies immediately behind (south of) my short lot. My short lot has no houses or other structures on it and is left entirely natural. (As I wrote that a hummingbird came to feed in the doorway of the front cottage "Seagull Lodge" in which I'm sitting - even with my deafness I could clearly hear the buzz).

You will see on the survey the ROW (now known as Terry Farm Road from Sound Ave that leads to  my 2 lots;  my deeds clearly refer to this access easement as carrying with the properties ("appurtenant" is the legal term). There's also a left branch (labelled "traveled roadway"), which leads to the property of Plaintiff Shawn Hamilton.

OK. Now have a look at the Notice of Violation: it clearly stipulates that the supposed "violation" occurred (or was observed on aug 5 2013) on the long lot 2-3, which hold my residence. Indeed I met Mr Downs that day on the ROW as he moved towards my cottages, approximately in the location where it crosses Judge Mayer's property. He did not advance further than that point and did not at any point enter the eastern short lot 2-4.1. However, he must have traversed (and probably parked on) the southern end of my long lot, where he appears to have observed my signs directing people to park in my parking area at the southern end of the long lot, as well as observing visitors using the ROW.

However Mr Downs' email of 10.08 this morning (above) refers to the "violation" as having occurred on the short lot 2-4.1 (which he did not investigate). I think he simply, and perhaps understandably, became confused (as you might be also at this point). As he walked down the ROW towards my cottages from the parking area, he must have thought (since he could not see my cottages) that he was on the vacant parcel 2-4.1. Anyway, it's clear that the activities he saw on the long lot (visitors and signage), and which he interpreted as evidence of a "violation", took place on the long lot and that the NoV was issued in relation to that lot, rather than as he thought, on the short lot.

Why does it matter which lot the activities took place on? You might say, he was simply confused about his orientation, but it doesn't really matter which lot the activities took place on, as long as they constituted a "violation".

But in fact it's quite crucial, though it requires some understanding of the (rather peculiar) law. In a residentially zoned area the only "uses" that are permitted are (1) construction of a single family dwelling and (2) uses customarily accessory thereto, such as construction of a garage (plus some other irrelevant uses such as agriculture). However, if there is no "primary use" (i.e. a residence) there can be no secondary, accessory uses as of right (strange but apparently true). The example that's often quoted is that construction of a barn or garage on an otherwise undeveloped lot would require a variance. (The hummingbird just returned to feed in the doorway - it was Coral, not Fred, who clearly does not like complicated zoning technicalities). 

So, in a sense Mr Downs is correct that if a hummingbird sanctuary were indeed a "use" of a vacant residentially-zoned lot , it would require a variance. However, as Clinton might have said, it depends on the meaning of "use". In my case the "use" is simply to leave the land in its natural vacant state, as open space - it is after all a hummingbird sanctuary, which merely recognizes a state of affairs that has existed for thousands of years. Furthermore, I believe that even in Riverhead  I'm entitled to walk on my own vacant lot, and perhaps even sit a while,  sometimes with friends and other invited guest, without requiring a variance. 

In summary then, this exchange of emails has at least clarified the issues, and hopefully some sanity will prevail, the Town will formally withdraw or rescind the incorrectly issued NoV, and I can focus on the lawsuit and, literally, on the hummingbirds. 

All this quite ruffles Fred's feathers (see the top of this post)

Good news and a little less good; Fred adjusts, and relieves himself

Today I received in the mail a letter from the law firm of Purcell and Ingrao confirming that they had been retained by State Farm to defend me in the lawsuit Terry v. Adams, with law firm partner Lynn Ingrao representing me. This afternoon I had a long chat with Lynn, and was impressed by her approach and directness, and particularly by her expressed intention to visit the sanctuary to see things for herself. She made it clear that she would be defending me on all the claims in the lawsuit, not just the liability for payment of $3m in compensation for the "irreparable harm" the hummingbirds have inflicted. She accurately characterised the suit as crazy, but needing to be taken seriously.

Here's a video showing how Fred is adjusting to the situation.

In a less welcome development, I received today the following email from Richard Downs, the Town of Riverhead Code Investigator, who issued the Notice of Violation back in late december.

Mr Adams 

The NOV and Complaint Number (CC 130246) which you are referring to is an active violation. My records indicate it was mailed on December 18, 2013. With regard to any conversations you had with the Town Attorney on this matter I was clearly not a part of. The NOV stands as written. If you do not agree with the issuance of this notice of  violation you may seek a variance with the Zoning Board of Appeals pursuant to Chapter 108-76 of the Riverhead Town Code.  Should you have any further questions with regard to this matter please feel free to contact me directly. Thank you. 

Sincerely, 

Rich Downs

Town Investigator

This was in response to the following email I wrote to him on june 4:

Dear Mr Downs - back in december you sent me an undated NoV (complaint #
130246). The day after receiving it I spoke to the Town Attorney, who
assured me that no further action would be pursued by the Town, or was
required of me.
I'm uncertain as to the status of this NoV, whether I should or can appeal
the NoV, or if any compliance measures are still required. I've been out of
the country for 5 months. Please advise me.Thanks very much - Paul Adams

It's all a bit confusing, since Mr Downs works in the Town Attorney's office. I sent the following email in reply:

Mr Downs - thanks for the clarification. In considering the possibility of an appeal to the ZBA, as you suggest, or in planning "remediation",  it would be helpful to know what features you observed during your visit aug 5 to my property constitute the ongoing violation. Or perhaps there are other aspects of my property or activities that have led you to issue the Notice? I can neither remediate nor appeal the violation unless I know the contributing elements. For example, I have erected no structure on my property in connection with my backyard bird sanctuary (or indeed otherwise), other than a very small temporary shed (6X8) that I use for storing gardening tools, as permitted under the Code.

Please note that since receiving your Notice, on dec 19 2013, I have received no visitors to my property to view hummingbirds, and indeed during most of that period, there have been no hummingbirds. I have not yet decided whether in august 2014 I will admit guests interested in hummingbirds, whether members of the public or otherwise; it depends, amongst other things, on hummingbird numbers and the outcome of an ongoing private lawsuit.

Backyard bird sanctuaries are perhaps a bit of a grey area under typical zoning ordinances, though they are quite common and indeed encouraged by national organizations. Private gardens that are open, on limited days, to the gardening public are also quite common, even in the Town of Riverhead. Indeed, the Riverhead Gardening Club wishes to visit my sanctuary this coming august - I have not made a definite arrangement since I don't want these good ladies to be in violation also!

I have been advised by Jill Lewis (deputy Town Supervisor) that the issuance of an NoV in itself does not constitute proof of a violation, merely a formal opinion that a violation might have occurred. The establishment of a violation would require formal legal action, which is not planned by the Town. In the unlikely event that the ongoing private lawsuit Terry v. Adams establishes that the violation did in fact occur, I could presumably either remediate the violation (as directed by the Court) or appeal to the ZBA, or both.

Finally, I would appreciate it if you would let me know whether it is generally the case that an NoV that you issue remains forever in force, unless formally rescinded or otherwise acted upon, and whether the only means of rescinding an NoV, within the Town of Riverhead, is for the "violation" to be approved by the ZBA. That would be unfortunate, since it would confirm that the violation occurred in the first place, but was allowable. 

Sorry to bother you with all this, but we must both do our duty.

- Paul Adams

Here's Fred pooping.

Fred Glowers; Last minute cancellation of court meeting

Today Fred spent a bit of time on his old perch. Of course I was eating supper on the deck of the rear cabin and the camcorder was in the front cabin, but I managed to slowly creep past him, retrieve, switch on and focus the camera, and position myself closely without disturbing him. Here's a clip (4X slo mo) from the material I shot. He looks rather pugnacious, as he catches the westering sun.

Tomorrow at 10 am in the Supreme Court building the continuation of our postponed, and rather disastrous, initial may 27th "Preliminary Conference" was to take place. However at 7 pm tonight I got an email from my new lawyer to say that the meeting has been cancelled. I still haven't spoken to her, although she was retained by my insurance company at the beginning of last week. However, she seems to be on the case, and I will report here what happens. Of course I'm anxious to mount a comprehensive defense, not just against the $3M claim, but also about the fundamental and ludicrous claim that backyard bird sanctuaries are somehow illegal under residential zoning.

Fred has an imperfect tail; peonies

As you can see in the above recent video, Fred's tail appears to be a bit damaged: one of the 2 points is a tad short and blunted. He's sitting on a string, looking at Long Island Sound, and for intruders.  You can see his brilliant green black, and when he turns his head, the black-looking gorget (2X slo mo). A bit of damage is quite normal, the males lead a tough life, sometimes tussling with intruders, and making the epic migration form Central America earlier than the females, and therefore exposed to worse weather. But an early arrival on the breeding grounds in the eastern US is imperative, so they can capture the best territory, and thus have the best chance of attracting females. The females don't have an easy life either, since they try to raise several broods in quick succession.

The marvellous peonies are starting to bloom at the sanctuary, and of course elsewhere. Although they do not attract hummingbirds, they don't attract deer either, and survive the winter and spring, unlike most other garden plants (this year they even nibbled down my young Nicotiana alata (not for hummers either, but highly fragrant in the evening), which are reputed deer-resistant, and have been here in the past.

So here's a peony blossom, in dappled sunlight. The blue is the background is Salvia guaranitica, a hummer favorite.

Fred glows

Fred, the 2014 resident male hummingbird at the Baiting Hollow Hummingbird Sanctuary, is now perching in an even more favorable spot: at the tip of a bamboo pole, quite close (6 feet) to a bluff-top feeder Coral visits (though mostly she's busy with her nest). I can get quite close if I move cautiously (6 feet away). So with my 40 times zoom he is appearing quite large. I was away from the sanctuary for a bit more than a day, but when I returned this evening, some of the gloom lifted briefly and I was able to get this movie (and several others too). This was shot at twice the normal frame rate and played back normally, so there is effectively 2X slo-mo, which helps show the brief flashes of red gorget more clearly. However the slo-mo effect is better here than in previous movies which were shot at normal fame rate and then processed by Youtube to look slow. About 2/3 of the way through I zoom out, to show Long Island Sound in the background, and the nearby feeder he's guarding to the right. Then I zoom back in again.

Fred out on a limb again

Conditions have been good for planting but not for photography, and Fred and Coral are making only fleeting appearances, but I was able to film Fred out on his favorite twig this afternoon. The light was gray and the gorget sometimes shows rufous, but mostly black. And here's the last 4 seconds in 4X slo mo:

Breaking News: I'm covered under our Stony Brook policy; more slo-mo Coral

I just learned that under our Stony Brook homeowners' State Farm policy I'm apparently covered for this Hummingbird lawsuit! Our policy is not of the umbrella type, which I why, rather stupidly, I didn't  check with State Farm until very recently, but nevertheless, and perhaps surprisingly, it covers me for this type of thing even out in Baiting Hollow, up to a limit of $500,000. That should at least cover the initial legal fees.
A lawyer has been assigned to the case, and hopefully I will soon speak with her. I'm not sure how exactly this would interact with my representing myself, or with my wider interests in this matter, or those of other birders/gardeners. beyond for example the $3M the plaintiffs are demanding.

The weather is very damp and gray, with occasional rain, so although I'm seeing Fred and Coral, I cannot easily take video. In the meantime here are some more slow mo clips from my session with Coral at her lovely honeysuckle (which Fred is now also visiting, albeit very briefly.

Coral in slo mo; Update: Lawsuit part 4

Here's some more video from my session with Coral feeding at coral honeysuckle; yesterday I was not able to get any video, because Fred was not perching much, and Coral, though feeding regularly got a lot of interruptions (eg from displaying bumble bees), as did I. These new vids are all in 4X slo mo, partly because one can see better what's going on, and partly because the original clips were very short. Because there seems to be very little going on in the soundtrack, I've added music in some cases. See if your can recognize the composers!

Continuing with my analysis of the lawsuit, we saw in the last 2 posts that the foundation of the suit is the statement in para 10 that bird sanctuaries are prohibited under the relevant zoning, which only allows construction of a single family residence, and uses accessory thereto. The lawsuit also says, in para 33, that the Plaintiffs have written to the Town requesting enforcement of the prohibition but the Town has not yet instituted action.

This is why paras 1-3 of the Complaint insist on the fact that the Plaintiffs are "resident taxpayers of the Town" and "owners of real property in the Town, which at first I thought puzzling and even misleading (because Fred and Debra Terry have no residence at their property close to the sanctuary, but live elsewhere in Riverhead, a fact that to a great extent insulates from the activities at the sanctuary). However it is literally true that the Terrys are both resident taxpayers and owners of real property in the Town (to wit, their undeveloped lot near the sanctuary). The point then of paras 1-3 is to give the Plaintiffs "standing": they do have a legal right, if the Town should fail to enforce the supposed prohibition (presumably because they now believe that it does not), to try to establish that a bird sanctuary is indeed prohibited. As already noted, if this action succeeds it would have nationwide impact on all backyard birding.

Now we  come to the NoV. Without the NoV (and probably with it too) the Plaintiffs and their lawyer would have great difficulty in proving that a backyard bird sanctuary, in the sense commonly understood, is prohibited by residential zoning, in Riverhead and by implication possibly throughout the US. But the NoV provides a figleaf of support for this extraordinary claim. It asserts that a violation was observed aug 5 2013 (the day of the Newsday article) by the Code Enforcement Officer , Ralph Downs, although it apparently took until december 19 for him to realize this.

However this figleaf is pitifully thin. First, in emails to me the Town Attorney has assured me that the Town will take no further action in this matter. Second, the Town Attorney has been publicly quoted that he will take no further action. Thirdly, the NoV itself does not show there is a violation: it merely expresses the opinion of Mr Downs that a hummingbird sanctuary "open to the public by appointment or otherwise"   is prohibited.

It's unfortunate that the punctuation is ambiguous (the same sentence has a missing parenthesis closure). It could mean that a hummingbird sanctuary that is open to the public (whether by appointment or not) is prohibited, or it could mean that it's prohibited whether or not it's open to the public. The difference is large. The same haziness affects the Compliant: in para 10 it's asserted that a bird sanctuary is prohibited, without any qualification, but in para 30 the qualification "open to the public" is added. One gains the impression that they are out to get me, and precision be damned.

But doubtless my adversaries will vigorously waive this figleaf. I've tried quite hard to get a Town official to formally rescind the NoV, and I'm still trying. I might have some definite news fairly soon.

Fred's girl "Coral"; Lawsuit part 3

As I've mentioned before, as well as this season's alpha male hummingbird "Fred", we are getting regular visits from at least one adult females. This lady (or possibly ladies) sneaks in for furtive visits; although she may well have initially enjoyed Fred's attentions,  she is clearly now more interested in her  nearby nest (wherever that is located), and possibly she's already incubating her eggs. But she needs to fly and feed, and darts in to feeders and flowers, apparently particularly those close to the bluff. She has a particular fondness for a full-blooming coral honeysuckle which climbs to the top of a trellis at the north east corner of our sound-front cottage "Seagull Lodge, which is perched about 20 feet back from the top of the bluff. She does not care about the magnificent views (on a clear day 25 miles west and east, and even further in the northerly, Connecticut direction). But she loves the nectar of the red tubular coral honeysuckle, Lonicera sempervirens, which is one of the best hummer-magnets for a Long Island garden. It starts flwering late may and will continue, on and off, until october. I give it 2 stars (out of a possible 4; only the feeders get the top rating). Because of her fondness for this particular plant, I'm calling her "Coral".

Last evening I sat for an hour filming her as she paid a few brief visits to this honeysuckle, illuminating by the sun slowly setting over the Sound 150 feet below me. Here and further down the posts are snippets of the results. Note that the depth of field at high zoom is very shallow (only a few inches), and she flits around very rapidly so sometimes she's blurred. I've slowed the display 2X in a couple of case.

OK, back to the wretched lawsuit. I wrote in the last post that the foundation of the suit is paragraph 10:

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

  
You can read the relevant section (108-10 "Uses") of the Code here and also in the link given to the right of this post. The crucial assertion is that a bird sanctuary is not an explicitly permitted use and is therefore prohibited. However, this section starts as follows:

In the RB-80 Zoning Use District, no building, structure or premises shall be used or arranged or designed to be used, and no building or structure shall be hereafter erected, reconstructed or altered, unless otherwise provided in this chapter, except for the following permitted uses or specially permitted uses and their customary accessory uses:

Now a bird sanctuary generally, and a hummingbird sanctuary in particular, involves no building or structure, it is simply naturally occurring open space (almost by definition: "an area of land in which birds are protected and encouraged to breed"; there are other definitions, such as "aviary", but these are clearly inapplicable in the present context; also note that some Bird Sanctuaries are open to the public, if only on limited days, and others are not; some are privately held by individuals, some by environmental organizations, and some by local, state or national governments). Therefore the Code appears to imply that the "premises", i.e. the actual parcel of land, cannot be "used" as a bird sanctuary. So now, as Bill Clinton might have said, we have to parse the definition of "use".

Taken at face value the Code seems to imply that undeveloped residential land cannot be left undeveloped: it cannot be "designed"or intended to be used merely as open space, or any type of preserve or wildlife reguage or sanctuary, even on a temporary basis, for example as a prelude to building a house, or as a collection of native plants and their accompanying wild animals, fungi etc.

The Baiting Hollow Hummingbird Sanctuary is comprised of 2 separate but contiguous lots, the 2.3 acre west lot and the 1.1 acre east lot, both fronting Long Island Sound. The west lot is "improved" (some would say not improved) by 2 small prewar cottages or cabins, "Seagull Lodge" on the edge of the bluff, whose northeast corner is adorned by the native honeysuckle that "Coral" enjoys, and "Hummingbird Cottage", which is slightly set back from the bluff, but also has fine views of the Sound and the western valley below. The east lot is devoid of any structures at all, although as a 1.1 acre lot it's "grandfathered" as a buildable lot. It's because my eldest son's name Rafael is on the deeds to the east lot that he has also been named as a defendant in the lawsuit, even though he has absolutely no involvement in the sanctuary (though he did repair "Seagull Lodges deck). 

So one must consider the 2 lots separately. The east lot's current use is as open space (in particular, as a hummingbird sanctuary), which appears, somewhat ridiculously, to be prohibited under the zoning.  If this is what the lawsuit is arguing, then all owners of undeveloped land in Riverhead are in violation and had better quickly erect buildings (which is come to think of it what Riverhead's town fathers would like in any case).

The west lot is already developed with 2 small cottages (both constructed well prior to the adoption, in 1970, of zoning in Riverhead; I beleive it was the last Town on Long Island to do so. These cottages exist and are used as of right, since they antedate the adoption of zoning. So, a bird sanctuary should probably be considered as a "customary accessory use", secondary to the permittted primary use as a residence. So now we have to parse "customary". First, it is clearly customary to construct a garage, as an accessory use of a residence (but, interestingly, one probably cannot construct a garage unless there is already a residence). It's quite common, especially amongst those who love our feathered friends, to maintain part, or all, of their yard as a bird sanctuary. Indeed National organizations such as Audubon, encourage people to do so, and even have formal programs to recognize such bird sanctuaries. Others simply maintain part of their yard as natural open space, either because they like nature, or because they are lazy, although thy might, and could, and perhaps should, remove invasives such as japanese honeysuckle, oreintal bittersweet, multiflora rose, garlic mustard etc (which I have done, and continue to do). 

If Riverhead Code indeed does prohibit bird sanctuaries, there would be a national outcry.

Later in the suit, perhaps recognizing the patent absurdity of their initial theory, the Plaintiffs switch to asserting instead that a bird sanctuary open to the public is prohibited (paras 29,30), implying that a bird sanctuary that is never open to the public, even a restricted public, would not be a prohibited use. I will elaborate on this new version of their theory in my next post. In the meantime enjoy the videos.

Twig-tip Fred; lawsuit part 2; what can you do?

Here's the resident male hummingbird on the tip of a twig, with the treetops in the western valley of the sanctuary in the background. Note that all these videos are in 1080 P hi-definition so remember to set  Youtube appropriately. Here at the sanctuary I only have rather slow DSL ( typically 2 Mbps download, upload much less) so the video stutters a bit at full resolution. Since I'm still partially deaf, I cannot hear anything on the soundtrack, but I believe there is one, probably the merry sound of kids playing over at the 4H camp to my east.

I already wrote a bit about the lawsuit in my Jan 30 post. As required by law it  was filed with the County Clerk, on december 23, just after the issuance of the related (see para 33) Notice of Violation At first it seems a random hodge podge of allegations and claims, but in fact most of the pieces hang together. The crucial, foundational paragraph is 10:

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.

If this statement were correct, then the existence of the sanctuary would violate local laws, which would provide essential support for the rest of the lawsuit, which makes numerous allegations, for example that my "numerous unattractive homemade signs" (para 12J)  irreperably injure (para 32) the plaintiffs.

However, this para is not an allegation of fact, but a fanciful legal theory. The NoV does not establish that a bird sanctuary is prohibited under the zoning, it is merely the opinion of the Code Enforcement Officer Richard Downs. Code Enforcement Officers do not create laws, they merely interpret them, based in part (in this case at least) on inspection of the premises.
In order to establish that a code violation has occurred, the Town would have to take me to court, as the NoV itself makes clear. However, the Town Attorney has assured me by email, and has been quoted in the Riverhead News Review, that his office will take no action. The inevitable conclusion is that the Town has revised its opinion of this matter, largely in response to public pressure (e.g. the News Review article and associated comments).

All of the Plaintiffs' complaints require that there has been an underlying violation of law. The suggestions in para 10 that such a violation has occurred is not an (alleged) fact, but a fanciful and untested legal theory. One must  therefore conclude that the Complaint has no basis in law, and the lawsuit completely crumbles because it is founded on legal sand.

Obviously this line of argument is itself a theory, and has to be, and probably will be, assessed by the judge/justice. And clearly everything hinges on the NoV, including everything it says, or does not say. I'll write more about the NoV in my next post, before returning to my dissection of the lawsuit itself.

What can you, my dear reader, do? If you have not already done so please sign the petition asking the Town of Riverhead to formally rescind the NoV.

"Fred" Guarding A Hummingbird Feeder; An Introduction to the Lawsuit;

Here's a new clip showing the resident male, whom I'm calling "Fred" because he's clearly the aggressor around the place, guarding one of the feeders on his territory. He's constantly looking round for intruders and/or potential mates. Although the view is full frontal, and in pretty sharp focus, the gorget shows up as almost entirely black, with only a hint of red at moments, especially near the end where he swiftly flies down to the feeder hanging beneath him. I don't know whether this is because of a lack of direct sunlight (near overhead and heavily filtered by leaves) or because he actually has to actively "display" his gorget in some fashion (but I think not).

I believe that the links to the lawsuit work now, so I''ll provide a gentle introduction. Most of you should turn off at this point, or just enjoy the movie, because things get quickly complicated, technical and ridiculous. If there are any lawyers reading, I would be grateful for any feedback, especially any corrections of my meager understanding.

The first page is the "Summons". It sets out the names of the Plaintiffs (those who are instituting the lawsuit), those of the Defendants (those who are the target of their complaints), and, at the bottom, the Plaintiffs' lawyer, Anthony B. Tohill, who I will henceforth refer to as "Tohill", for brevity, and certainly not from disrespect. Indeed as I've studied the suit more closely, I've come to appreciate the skill with which this legal bomb, which I have to defuse,  is constructed. I believe subsequent "papers" need only give the first plaintiffs' and defendants' names (i.e. Terry v. Adams)

The Summons also gives the Index Number, a sort of tracking number, and designates Suffolk County Supreme Court as the place of trial, because the properties are located in Suffolk, and in particular in Riverhead, the locus of the Supreme Court. Suffolk County is therefore the "venue" for the action.

By the way, and this is typical of legal affairs, the name "Supreme Court" is misleading.  It's actually one of the lowest courts. It's likely I'll lose, because though the lawsuit is clearly weak, and possibly frivolous, and designed to harass me,  my legal skill are vestigial, and in addition I might not get a fair trial.  The only detailed and overt complainant about the sanctuary is Suffolk Supreme Court Judge Peter Mayer , a colleague (one of 23; about the number of my colleagues in my Stony Brook University department) of whatever Judge (or, in the case of the Supreme Court, "Justice") decides my fate. Justice Mayer is my closest neighbor and the one most impacted by the sanctuary.  So then I would appeal, first to the Appellate Division of the Supreme Court (again, possibly more Mayer-colleagues) and then finally perhaps to the Court of Appeals, in Albany. Obviously I already have 2 handicaps, representing myself, and the difficulty of getting a fair trial. What makes me go on is the absurdity and unfairness of the lawsuit, not any desire for punishment.

Theoretically I could have asked for a change of Venue, eg to Nassau or even NYC or Westchester, based on the deep involvement of Justice Mayer. But this might have made things difficult for Reggie. I believe I've now lost the opportunity, because more than 21 days have elapsed since we filed our Answer, even though a Judge/Justice has not yet been assigned to the case - in this game, one stumble and your finished.

No-one likes long posts so I'll' continue tomorrrow (hopefully with new video). In the meantime there's lots to do in the well-soaked garden!

Slo Mo female and more red; text of the lawsuit; corrected links

Today's videos from Baiting Hollow show, first, a female at a feeder in 4X slo motion (with Long Island Sound in the background),  and next,  the male at a different feeder - note the red gorget.

You can view the lawsuit (in particular the initiating Summons and Complaint) here. Please let me know if this link does not work properly - it should go straight to the pdf of the lawsuit and not to my Google Drive page! Once I know it has uploaded properly, I''ll provide a short guide.

tuesday may 3: I got word the link did not work and I think I've now fixed it (please confirm). I've also added the link to the list to the right of this post.

new vids: flash of red, mating dance

Here are a couple of videos taken today. The first shows the male very close up, and you can see a brief hint of red on his gorget. He's perching quite a lot in a quite favorable location, on a fairly low twig near some convenient seating. Underneath the twig is a feeder he is guarding and using (one of many!).  Of course pose, lighting and focus are still not quite ideal. At the end of the clip he flies off and I pan down to show the feeder

The second video shows a new mating dance. He's moving extremely fast, in a repeated downward arc just to the upper left of the boxed cedar tree. He really looks like a rocketing dot. One can just see him coming in very low very close to the base of the cedar, dipping below some bushes where the female is undoubtedly located. This occurs in a favorite location for mating dances, close to the bluff drop-off. He's moving so fast you really have to look frame by frame, which I can do on the original.

I'll say more about the new camera I'm using for these videos in my next post.

New Video; "Motion to Dismiss"?

Here's a new video, shot at the sanctuary yesterday afternoon, of the male hummingbird on a favorite twig. He's scanning the surroundings for intruders on his territory. Note the dark "gorget". I will try to get a full frontal view, so you can clearly see the "ruby throat". Note the movie is in HD (1080P)

I mentioned recently that we were considering filing a "motion to dismiss" the lawsuit. This would be on the grounds of "failure to state a claim", which is legalese meaning that the plaintiffs' Complaint (which I will try to make available online) does not show that I have violated specific laws, even if all their factual claims were accurate. For example, if I file a lawsuit objecting to the color of my neighbor's house, then even if it were true that my neighbor has painted his house purple, he would have broken no law,  and my suit would have "failed to state a claim".

Their lawsuit claims that bird sanctuaries are prohibited under the relevant zoning; if it were true (which it is) that I have a hummingbird sanctuary on my property, then the suit presumably does "state a claim": if indeed Riverhead Code bans bird sanctuaries on residentially-zoned land, then I would have violated the law.

Note that almost by definition I do have a hummingbird sanctuary on my land: if one seeks a definition of what constitutes a hummingbird sanctuary by googling "hummingbird sanctuary", the first "hit" is the Baiting Hollow Hummingbird Sanctuary. In this sense whatever I have on my land is a hummingbird sanctuary: indeed, the hummingbird sanctuary, c'est moi! Of course even if I were to (officially at least) close the sanctuary to visitors, it would still be a sanctuary, and I could (and probably would) still maintain my website and blog.

However the issue of whether the Town Code bans hummingbird sanctuaries is slightly unclear (though I think under any reasonable interpretation the relevant section of the Code - see link to the right - does not). On the one hand, the Town did issue, in late december, and apparently in response to pressure from the plaintiffs,  a Notice of Violation saying that hummingbird sanctuaries are prohibited. On the other hand the Town Attorney has publicly stated that they will not take further action. In essence the Town is saying "hummingbird sanctuaries may or may not be prohibited; we don't know, and don't really care, but resident taxpayers are free to bring a suit to try to prove that they are prohibited; if their claim is upheld, we might then take action."

They certainly do have such a right, and there are many examples in practice. Typically these involve flagrant violations of Code, which for various reasons a Town has not enforced (e.g. the violation is by the mayor's son). However, in this case it would be a rather twisted, convoluted, interpretation of the Code to argue that, because hummingbird sanctuaries on residential land are not specifically permitted, they are thereby prohibited.  It's pretty clear that backyard bird sanctuaries are a commonly accepted feature of residences - indeed Audubon encourages people to create backyard bird sanctuaries, and no-one supposes they are encouraging people to break the law. But one could possibly claim that my particular bird sanctuary goes beyond an ordinary backyard one, insofar as (1) I allow "public" visitation by birders, photographers etc (albeit under highly restricted conditions, defined on the website and this blog)) and (2) there have been days when there are "numerous" visitors (in particular the day the Newsday article came out), though usually there are only a handful, or even none.

All this is debating how many angels can dance on the head of a pin. It's not quite clear to me whether I should file a Motion to Dismiss. Any thoughts?