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 1, 2014

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?


  1. Are there risks to filing a Motion to Dismiss? If not, then file away! BTW; I just read about the waiver and I noticed that you report being a bit overwhelmed by visitors, typically when there's publicity on the case. Maybe visitors by appointment only? Yes, it would be more work for you, but it would limit the number of people at any given time, and I don't think there's any rules about visitors known to the landowner....

  2. Nancy - good points! I think when I wrote "overwhelmed" I meant by the requests for waivers, rather than the number of visitors (most people who request waivers never make it out here). I'm certainly open to a "by appointment only" system, though it would involve even more work for me (depending on how it was run). However, until the plaintiffs request such a system eg as part of a settlement, I'm not going to begin it.

    My problem is essentially publicity, such as the Newsday article, over which I have little control. Without publicity the current system works well, and I only get a few visitors a day (except when I do have larger groups, such as Audubon chapters or garden or photo clubs, but these are only by appointment). The mistake I made was in allowing the Newsday article, but I'm not sure that I had any control over that: they could go ahead anyway, and I wanted to try to make sure their info was accurate. Of course the lawsuit itself is generating additional publicity, but that is not my fault.

    - thanks for your interest - Paul

  3. Isn't there a lawyer who can give you pro bono advice on this??? These are the neighbors from hell ... I would expect that they are hoping you will readily capitulate to their demands without putting up a fight ... but on the other hand they may be full of hot air and if you call their bluff they may fade into the woodwork ... but of course you do not want to make the wrong move either ...

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  5. Emily - I deleted my response because I spelled your name wrongly! Here is the actual comment again:

    Well, of course Reggie will continue to advise me, and Rafael's (my son and co-defendent) wife is a superb litigation lawyer (though not licensed in NY). In addition several other impressive lawyers have also agreed to advise me, so I should be in good shape. One problem I had initially in seeking pro bono representation was that several lawyers who were eager to help were intimidated by 2 factors: (1) My closest neighbor Supreme Court Judge Peter Mayer (the Suffolk Supreme Court is where the case is being dealt with, at least initially) is one of the people opposing the sanctuary (though not an actual plaintiff - that would be too obvious. (2) They also have business with the Town of Riverhead which is also indirectly involved.

    All this reminds me of a complicated middle game in chess, which I once used to play (quite well). In any case this all goes to show that there are many wonderful lawyers out there, and some bad apples.