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)