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 (

Friday, June 6, 2014

Twig-tip Fred; lawsuit part 2; what can you do?

Here's the resident male hummingbird on the tip of a twig, with the treetops in the western valley of the sanctuary in the background. Note that all these videos are in 1080 P hi-definition so remember to set  Youtube appropriately. Here at the sanctuary I only have rather slow DSL ( typically 2 Mbps download, upload much less) so the video stutters a bit at full resolution. Since I'm still partially deaf, I cannot hear anything on the soundtrack, but I believe there is one, probably the merry sound of kids playing over at the 4H camp to my east.

I already wrote a bit about the lawsuit in my Jan 30 post. As required by law it  was filed with the County Clerk, on december 23, just after the issuance of the related (see para 33) Notice of Violation At first it seems a random hodge podge of allegations and claims, but in fact most of the pieces hang together. The crucial, foundational paragraph is 10:

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.

If this statement were correct, then the existence of the sanctuary would violate local laws, which would provide essential support for the rest of the lawsuit, which makes numerous allegations, for example that my "numerous unattractive homemade signs" (para 12J)  irreperably injure (para 32) the plaintiffs.

However, this para is not an allegation of fact, but a fanciful legal theory. The NoV does not establish that a bird sanctuary is prohibited under the zoning, it is merely the opinion of the Code Enforcement Officer Richard Downs. Code Enforcement Officers do not create laws, they merely interpret them, based in part (in this case at least) on inspection of the premises.
In order to establish that a code violation has occurred, the Town would have to take me to court, as the NoV itself makes clear. However, the Town Attorney has assured me by email, and has been quoted in the Riverhead News Review, that his office will take no action. The inevitable conclusion is that the Town has revised its opinion of this matter, largely in response to public pressure (e.g. the News Review article and associated comments).

All of the Plaintiffs' complaints require that there has been an underlying violation of law. The suggestions in para 10 that such a violation has occurred is not an (alleged) fact, but a fanciful and untested legal theory. One must  therefore conclude that the Complaint has no basis in law, and the lawsuit completely crumbles because it is founded on legal sand.

Obviously this line of argument is itself a theory, and has to be, and probably will be, assessed by the judge/justice. And clearly everything hinges on the NoV, including everything it says, or does not say. I'll write more about the NoV in my next post, before returning to my dissection of the lawsuit itself.

What can you, my dear reader, do? If you have not already done so please sign the petition asking the Town of Riverhead to formally rescind the NoV.


  1. I would argue that you did not create the sanctuary. Nature itself and forces greater than ourselves did. You are merely the fortunate recipient of having your property be graced by hummingbirds. Is every backyard birder who puts out feeders and bird baths going to be sued too? I often call my small back yard a sanctuary too. You have the right to invite whomever you choose to visit you. This is all so absurd and frustrating. Since the Newsday article seemed to create this mess, have you given any thought to contacting them (or having one of us contact them) to update on the lawsuit that resulted from the publicity? Or do you think that would harm your case?

    1. Sonia - thanks for your very reasonable comments. My concerns about this lawsuit go beyond the great personal stress to my wife and myself, and potential financial ruin, but also, as you rightly note, the danger that if this suit should succeed, it would establish a legal precedent for towns to regulate and perhaps even ban backyard bird sanctuaries such as yours and mine. Could never happen? Could happen wherever there are truculent anti-environment neighbors: at tiny fraction of the total population, but still millions.

      I'm not opposed to getting the media involved again but there are 2 problems. (1) I don't want to get swarms of curious visitors, just true humming birders, who are the sweetest, kindest most respectful people I've ever encountered. But the media's (especially certain media) only concern is to create a buzz, not to be helpful. For example I implored Newsday to let me know when the article would come out, so I could close pre-emptively for a few days until interest died down, but they refused. (2) I have learned that the media will not pursue a story unless BOTH sides are willing to talk. Of course this just means that the bad guys just clam up, and means that the stories we get to see are not the worst ones out there. Amazing but true.

      - Paul