BASICS: "Hummingbirds.....where is the person, I ask, who, on observing this glittering fragment of the rainbow, would not pause, admire, and turn his mind with reverence..." (J. J. Audubon).
This is a blog about my summer life at the Baiting Hollow Hummingbird Sanctuary, at my winter garden, Calypso, in the Bahamas, and aspects of life in general.
This private sanctuary is now permanently closed to the general public, as a result of a lawsuit brought by a neighbor. Only my friends and personal guests may visit (

Thursday, January 30, 2014

The relevant section of Riverhead Town Code

Here's a mid-july photo with yellow Hyperion daylily and red "Lucifer" crocosmia in flower, although the hummingbird is feeding at rosebud sage "Mulberry Jam", and Long Island Sound in the background.

Over on the right, under "Interesting Websites", I provided a link to the section of the Riverhead Town Code that's cited in both the Violation Notice (see dec 19 post) and the lawsuit by neighbors. "Residence A-80" (i.e. 2 acre zoning) applies to the area in which the sanctuary is located. Of course none of the house lots owned by the plaintiffs in the lawsuit have 2 acres, unlike the lot on which my cottage is located (2.3 acres).
Note first that the initial Paragraph 108-20.1 defines the "Purpose and Intent" of this section of the Code as

" ensure the preservation of the historic integrity and rural character of the Sound Avenue corridor and to conserve wooded areas and other natural features."

In other words, the purpose is to conserve structures such as the prewar cottages at the sanctuary, the country character of the area, and to preserve wooded areas (such as the many trees at the sanctuary, and features like natural avifauna, such as the hummingbirds that have used this area for thousands of years. So it would appear prima facie that all the objectives, structures and functions of the sanctuary are in complete conformity with the Code, and indeed are an ideal match.

The next section of the Code lists the "uses" that are permitted: single family dwelling, greenhouses, riding academies,  hog and other livestock farms, commercial horse-boarding operations, small animal and bird rehabilitation, and other specially permitted uses, and "accessory uses", defined as follows:

Accessory uses. Accessory uses shall include those uses customarily incidental to any of the above permitted uses

Note the Code says that no building or structure is permitted other than those listed. It does not say of course that leaving the land in its natural state is "permitted", since by definition this does not involve any type of construction. It would seem absurd to interpret the Code as prohibiting (because not specifically listed as a permitted use) leaving land in its natural state, for example as a wild bird sanctuary. Nevertheless both the Violation Notice and the lawsuit are based on the assumption that leaving the land in its natural state, as a bird or other type of wildlife sanctuary, is "prohibited" by virtue of the fact that it's not specifically permitted. I think the decision of the Town not to proceed with any type of action against the sanctuary was prompted by the realization that this extreme interpretation ("if it's not specifically permitted, it's prohibited" is nonsensical.

The Town Code Investigator, who visited the sanctuary on the day (aug 5 2013)  the Newsday article appeared (in response to complaints by presumably Newsday-reading neighbors), has suggested that perhaps the sanctuary is permitted under "bird rehabilitation" provision, though this requires a license, 10 acres, and no more than 20% coverage. However, the sanctuary is not at all aimed at  hummingbird "rehabilitation", merely as providing natural habitat and the nectiferous resources hummingbird need.

Furthermore, it is surely the case that, accessory to a residential use, maintaining parts of one's yard in a near-natural state as a bird sanctuary or refuge is "customary" and automatically permitted by the Code. If this were not the case, millions of backyard birdwatchers nationwide would also be "prohibited". The Audubon Society encourages everyone to maintain their backyards as natural bird habitat, and backyard birdwatching is one of America's post popular outdoor activities.

There are 2 separate lots at the Sanctuary, the western 2.3 acre lot which has 2 separate residential structures (cottages or "cabins"), and the eastern 1.1 acre lot which has no structures. Both are left in a more or less natural state, heavily treed and only a postage-stamp lawn. Indeed if you look down from the upper floors of the tall house belonging to 2 of the plaintiffs in the lawsuit (or on Google Maps Satellite View) all one sees is a sea of tree canopy. I have created some paths over the hilly terrain, but these follow natural contours, are made of earth, with only a few wooden steps where necessary.  

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