The battle of the birds on Palm Coast’s Collingwood Lane is over for now, though history suggests the war may not be over.
The four-year war between Bryan Streetman at 25 Collingwood and Philip and Sarah-Thompson Lowe next door at 29 Collingwood ended earlier this month when a circuit judge ruled against Streetman and in favor of the Lowes and their right to maintain two dozen or more birdhouses for migrating Purple Martin birds on their property.
The decision by Circuit Judge Scott DuPont after a non-jury trial reasserts the right of property owners to use their property for certain activities such as extensive bird feeding as long as the activity doesn’t rise to the level of a provable nuisance.
“At the end of the day the reason why I wanted this case to go to trial was so that my client can get peace of mind,” Ron Hertel, the attorney who represented the Lowes at trial, said. “If the case had been dropped, this whole issue could come back into a courtroom, so now finally the Lowes can go forward and do what they’ve been doing.”
Streetman, 49, had sued the Lowes in February (Philip Lowe is 78), accusing the Lowes’ bird set up of causing just such a nuisance, arguing that the birds were depriving him of sleep and causing him undue stress and seeking the birdhouses removed and damages of upward of $40,000 awarded.
It was the latest in a series of actions and retaliation the property owners on both sides of the fence had been taking since 2014, whether through sheriff’s office complaints, Palm Coast code enforcement, the Florida Fish and Wildlife Conservation Commission, a neighborhood petition against Streetman, or circuit court. Mediation failed. The Lowes had themselves sued Streetman in 2016 seeking an end to the high-frequency noise machine and the laser beam Streetman was using to scare birds, and “from taking any actions to harass Purple Martin birds during their nesting season.”
The lawsuit was voluntarily dismissed. Streetman agreed to stop using the noise machine and the laser beam, only for Streetman to then sue the Lowes a few months later. But his arguments did not hold up in court, where his case unraveled with vulnerabilities.
According to DuPont’s order, Streetman conceded that aside from the Lowes’ 24 birdhouses (Streetman this year claimed the number had risen substantially) there were some 32 additional birdhouses—called gourdes—on neighboring properties, all close enough to be seen from Streetman’s backyard. But Streetman sued only the Lowes. “The Court agrees that the failure to include those close, similarly acting neighbors in this suit render Streetman’s claim of dubious value,” DuPont wrote.
Streetman at trial claimed the annual presence of birds contributed to his lack of sleep and overall stress, but produced no medical or mental health records to that account. He spoke of his concern about the birds’ waste on his property, suggesting it could expose him to certain viruses, but again showed no evidence linking the two. He showed videos he took of the birds flying around, contrasting those with videos taken in fall, when the birds are absent. He intended to show the contrast and underscore the birds’ nuisance. The judge was not convinced. “The videos of the birds did not appear to show anything out of the ordinary, and certainly nothing the Court would deem out of sorts for this coastal community,” the order reads. A Realtor testified that property values were not affected by the birds.
Hertel, a lawyer with Palm Coast’s Chiumento Dwyer Hertel Grant lawfirm, drafted the order, as is the norm for winning counsel, with the judge making his own additions or deletions. Hertel had relied in part on a 1956 Florida Supreme Court case—Beckman v. Marshall—a Volusia County case where the issue was a private day nursery that was ostensibly causing a private nuisance to its neighbors.
“This is a squabble between two neighbors,” the decision read emphatically, words Hertel echoed when describing the matter on Collingwood Lane. But it affected only one property owner, with other neighbors—as in the Collingwood case—declaring themselves not at all bothered by the perceived nuisance.
“The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance,” the case read, but rather the test came down to one question: “Was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property?” That was the question posed in the Collingwood Lane case, and the answer was yes.
“The facts won the case even more than I did,” Hertel said.
Philip Lowe has routinely helped a neighbor install similar birdhouses on her property every migrating season, and several of his neighbors spoke at trial in his favor. And five of the 20 neighbors who’d signed a petition on behalf of the Lowes, asserting that “the birds are not bothersome to us,” testified at trial, as did an expert in ornithology and zoology, who said banning the Lowes from having birdhouses would not necessarily reduce the birds’ presence in the area, primarily because Collingwood Lane is located in an ideal habitat for the birds. (Put another way: The intruders are human inhabitants, not birds.)
The battle may be over, but the cost has been heavy. “The Lowes defended this case on their own dime,” Hertel said, “and honestly they did so because they’re so passionate about what they do, the purple martins and birds in general.”