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?