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 (

Sunday, June 8, 2014

Coral in slo mo; Update: Lawsuit part 4

Here's some more video from my session with Coral feeding at coral honeysuckle; yesterday I was not able to get any video, because Fred was not perching much, and Coral, though feeding regularly got a lot of interruptions (eg from displaying bumble bees), as did I. These new vids are all in 4X slo mo, partly because one can see better what's going on, and partly because the original clips were very short. Because there seems to be very little going on in the soundtrack, I've added music in some cases. See if your can recognize the composers!

Continuing with my analysis of the lawsuit, we saw in the last 2 posts that the foundation of the suit is the statement in para 10 that bird sanctuaries are prohibited under the relevant zoning, which only allows construction of a single family residence, and uses accessory thereto. The lawsuit also says, in para 33, that the Plaintiffs have written to the Town requesting enforcement of the prohibition but the Town has not yet instituted action.

This is why paras 1-3 of the Complaint insist on the fact that the Plaintiffs are "resident taxpayers of the Town" and "owners of real property in the Town, which at first I thought puzzling and even misleading (because Fred and Debra Terry have no residence at their property close to the sanctuary, but live elsewhere in Riverhead, a fact that to a great extent insulates from the activities at the sanctuary). However it is literally true that the Terrys are both resident taxpayers and owners of real property in the Town (to wit, their undeveloped lot near the sanctuary). The point then of paras 1-3 is to give the Plaintiffs "standing": they do have a legal right, if the Town should fail to enforce the supposed prohibition (presumably because they now believe that it does not), to try to establish that a bird sanctuary is indeed prohibited. As already noted, if this action succeeds it would have nationwide impact on all backyard birding.

Now we  come to the NoV. Without the NoV (and probably with it too) the Plaintiffs and their lawyer would have great difficulty in proving that a backyard bird sanctuary, in the sense commonly understood, is prohibited by residential zoning, in Riverhead and by implication possibly throughout the US. But the NoV provides a figleaf of support for this extraordinary claim. It asserts that a violation was observed aug 5 2013 (the day of the Newsday article) by the Code Enforcement Officer , Ralph Downs, although it apparently took until december 19 for him to realize this.

However this figleaf is pitifully thin. First, in emails to me the Town Attorney has assured me that the Town will take no further action in this matter. Second, the Town Attorney has been publicly quoted that he will take no further action. Thirdly, the NoV itself does not show there is a violation: it merely expresses the opinion of Mr Downs that a hummingbird sanctuary "open to the public by appointment or otherwise"   is prohibited.

It's unfortunate that the punctuation is ambiguous (the same sentence has a missing parenthesis closure). It could mean that a hummingbird sanctuary that is open to the public (whether by appointment or not) is prohibited, or it could mean that it's prohibited whether or not it's open to the public. The difference is large. The same haziness affects the Compliant: in para 10 it's asserted that a bird sanctuary is prohibited, without any qualification, but in para 30 the qualification "open to the public" is added. One gains the impression that they are out to get me, and precision be damned.

But doubtless my adversaries will vigorously waive this figleaf. I've tried quite hard to get a Town official to formally rescind the NoV, and I'm still trying. I might have some definite news fairly soon.


  1. This lawsuit is ludicrous. I've read all of the summons and your commentary, and you are spot on. Its well within the rights of a homeowner to plant whatever (noninvasive) flowers you'd like and to put as many bird feeders as you'd like (no ordinance for that is there?).... I suppose those two actions somehow constitute a 'sanctuary' (regardless of your own description of the property as one).

    Likewise you are entitled to invite as many guests on whatever frequency, that you would like. If your neighbors chose to have a party every day of the week - they could (provided they don't offend other nuisance ordinances).

    Bottom line is - not everyone will be happy with how their neighbors use their own property - personally, I cant stand my neighbor's pirate flag mounted to his garage - but he's entitled to use his property within his right (as are you). Sometimes fair/legal use can actually be damaging to neighboring property values, etc (I'm not saying this is)... my own property lost a significant amount of 'privacy' (that certainly had value) when my other neighbors cut down THEIR trees. So long as you use your property within your entitled rights - frankly "damages" (though I'm not seeing them, and certainly not $3mill worth) are not your liability.

  2. Joe - thanks for your comment, with which I agree. It's true that some aspects of my, perfectly legal, backyard "sanctuary" might, occasionally, annoy some of my neighbors (though I think most of the time they notice nothing). The way to deal with this is to have a polite discussion (rather than a torrent of foul language) to try to reduce the annoyance, bearing in mind there might be annoyance on both sides. But in this case I was explicitly told by the principal plaintiff that the aim of the lawsuit was not to solve problems but to "make the rest of my life hell". In which he is succeeding (though I suspect he's not making his own life easier either).
    I think what we are both dealing with is a failure of communication, for whatever reason. This is particularly likely when the parties involved don't have the same goals or outlook. In my case I moved to the middle of the woods because I like nature, whereas my recently arrived neighbors seem to want to banish or tame the woods, and replace them with suburbia. I've nothing against suburbia, for most of the year I live in a regular cape cod on a regular street in Stony Brook, but I do think Long Islanders should be able to escape to nature for an hour, a day or a couple of months.
    As you saw, I tend to overcommunicate (e.g. this blog) and spell things out in great detail, because good communication is much more difficult than it seems, especially in those situations where it's most necessary. - thanks again - Paul

  3. Well put, Paul. And the fact that you are dealing with a neighbor hell-bent on making your life 'hell' .... pretty well explains why we ALL (including them) need a retreat from suburbia. Your neighbor needs to take a hike ... literally.

    You're lucky to have such a retreat - and we're lucky that you've shared it, and hope that you retain that generous, legal, and fair right to do so.

    1. Joe - yes, I do this because I was indeed lucky (through an odd combination of events) to stumble on this little retreat, and I've come increasingly to feel I should share it with others, even though sometimes it creates awkwardnesses (such as this lawsuit). We all need cities and suburbia but we also all need to escape to nature, which is not always easy, especially on highly developed and geographically isolated Long Island (our population density puts us up there with countries like Taiwan, Holland, Barbados, Hong Kong, Singapore etc). It's just amazing that one can observe hummingbirds right here on the island, without going to Costa Rica, or on TV. Thanks for your moral support!