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.