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).