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.”
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.”
Streetman v. Lowe: Final Judgment (2018)
Click to access streetman-v-lowe.pdf
Pogo says
@ Philip and Sarah-Thompson Lowe
Congratulations.
“…Farewell, farewell! but this I tell
To thee, thou Wedding-Guest!
He prayeth well, who loveth well
Both man and bird and beast.
He prayeth best, who loveth best
All things both great and small;
For the dear God who loveth us,
He made and loveth all…”
– From The Rime of the Ancient Mariner (text of 1834) By Samuel Taylor Coleridge
https://www.poetryfoundation.org/poems/43997/the-rime-of-the-ancient-mariner-text-of-1834
Just me says
I wish I had so much free time to be annoyed by some birds.
r&r says
Streeman is a jerk for making such a big deal out of this. He’s the one that should be sued.
Birdman says
Streetsman sounds like a real Ass-clown. Wish I lived on the other side of him, Id Be on Amazon buying gourd things regularly… If cool small birds wanted to hang out and live in my backyard a few times a year my kids would be stoked. Not like these are Canadian geese pooping all over!
Mrs LJ says
I am glad common sense prevailed
USA Lover says
Purple Martins eat tons of mosquitoes. I welcome them in my neighborhood.
Observer of narcissist Mr. Lowe. says
I’ve watched this from the beginning. Bryan Streetman has been jerked. he is not the jerker here. Philip Lowe is a bad neighbor and he owned the title of “Jerk”. Bryan is a nature loving, good helpful person who simply asked Lowe to back off on the bird habitat due to the noise and extra work cleaning his pool, car, and fences. Lowes response was to put up more bird houses and file a lawsuit against Bryan. Bryan attempted to get the suit dismissed. If you actually had an interest in the habitats of the birds allow them to live in the trees where they naturally thrive. teaching them to rely on humans is selfish and self serving. Well played Philip Lowe, you’ve painted a good man in bad light. This happened because Philip Lowe is a skilled narcissist. You don’t fool me and my family nor do you fool Bryans friends and family. Philip Lowe pushed all the buttons here. We hoped the judge would get it right here but maybe because Bryan didn’t include the neighbors in his counter suit, those who followed Lowe into his obsession was a factor. This is not a joke. If you ever have a neighbor who diminishes the value of your property you would fight for your value to be returned also. If the Lowe’s ever try to sell their house I’m sure they will take down the bird houses prior to the first showing. Here’s your listing head line Philip Lowe. “A beautiful home on the cove with access to the ocean, comes with 50 bird houses and all the bird noise and crap you’ll ever need. Your friends, judges and lawyers will be so supportive and envious.”
palmcoaster says
Congratulations to the Lowe’s!!
What Streeman will do if were my next door neighbor? I own a talkative macaw loud at times…and I rescue birds like “my Peli” a juvenile Pelican then, that I saved 4 years ago and comes every winter when very cold in GA (his native grounds) to visit me , maybe remembering that I saved his life and cast my net feeding him for two weeks when he was too emaciated to fly and fish….Can anyone imagine the size of his poo on top of my boat house? Anyway after a while rain takes care of it but does not erase the happiness to host Peli again perching around it and staring at me or diving straight down next to my dock and me while I enjoy his yearly visit. Live and let live!
palmcoaster says
By the way I love the look of those gourd houses!
Mark S says
We left Lake Murray ,SC for here in 2015. One of the great features of the lake is the annual migration of Purple Martins to an Island on the lake prior to their fly south. 10’s of thousands take over the island for weeks. They spend their day foraging through the shoreline, then congregate on the island in a massive fly over before settling down for the night. It is beautiful!
The neighborhood was covered in birds during the day ……and the bugs (mosquitos) fell off dramatically.
Give me more birds!!
Mark
That_Salty_Mermaid says
Holy moly, methinks Mr. Streetman needs to get himself a hobby.
gmath55 says
Common sense would of been if this never went to court. What a waste of time. Pretty stupid too. If you don’t like the birds just move. And, getting all stress out over it! LOL
That's The Facts Jack says
We are destroying their natural habitat, the least we can do is provide shelter. For those who do not like nature move back to your CITY LIFE with concerete, trash, and crime.
Van Kleiner says
Just for the record, Purple Martins rarely eat mosquitoes which are active at night, whereas the birds feed. in daylight.
Richard says
For the record in response to one post about TREES.
“One of the most important steps in attracting Purple Martins is choosing the right location for your martin housing. Martins prefer housing that is placed in open areas with clear flyways. Choose the center of the largest open spot available, about 30-120 feet from human housing and at least 40-60 feet from trees.”
For the record in response to Purple Martin’s and mosquito’s.
“In-depth studies have shown that mosquitoes comprise no more than 0 to 3 percent of the diet of martins”. In fact during daylight hours purple martins most often will feed on larger flying insects such as June bugs, moths, bees, butterflies, wasps, and unfortunately dragonflies, another natural mosquito predator.”
These two neighbors both need to “get a life” instead worrying about this trivial bullshit! A person who files a complaint/lawsuit and then shows up in court with NO substantial collaborating evidence to support their complaint needs to go back to “common sense” school. Oh, I forgot, you can’t teach a person common sense.
Jolene dehart says
How petty and ridiculous. Is this all people have to do with their lives is complain about wildlife and nature in a state like Florida? Don’t like it, move to Chicago because you are absolutely in the wrong place.
Layla says
There is a remedy for this….it’s called move to a gated community.