TOMS RIVER – A judge said that he won’t make Toms River go through the work and expense of holding a vote on whether it should run its animal shelter.
It went to the courts because a resident, Phil Brilliant, said that this was the only way to get relief.
The majority on the Township Council approved an ordinance to shut down the shelter and lease the building to the county. A group of residents (including Brilliant) worked to get enough signatures to send the ordinance back to the council. The council had a certain amount of time to either repeal the ordinance or let the matter go to the voters in a special election.
The first reading to repeal the ordinance happened within the statutory time, but not the second one. Regardless, Mayor Daniel Rodrick shut the shelter down administratively on June 7. The council majority later passed a resolution to create a shared services contract with the county.
Brilliant took the township to court, and two hearings took place. At the end of the first, Judge Robert E. Brenner told the parties to meet and try to reach a compromise.
That meeting took place, and Brilliant called it “very productive and respectful.” The township made a “generous offer,” but it did not include reopening the shelter.
“The township is still moving forward as if what we’re doing doesn’t matter,” he said.
The shelter had received $1 million in a bequest from a deceased resident. The county will need to account for where that money goes, the judge said.
During the first hearing, Brenner had said that if he required the town to hold a vote, two things could happen: The residents vote to let the county take it over, therefore this case would be pointless; or the residents vote to keep it in-house, but then there’s nothing that would prevent the town from shutting it down later. Either way, it could end the same as the situation is now: the shelter would not be run locally.
Irreparable Harm
Brenner said that Brilliant did not show that he suffered “irreparable harm” from the shelter being closed.
The judge asked how the animal services are handled until the county takes over. Brilliant noted in his papers that two cats were left in the heat outside the closed shelter, and another case of a dog that ran away from home and was later found dead. Much has been said about the county having a higher euthanasia rate than the local shelter.
Regardless, the animals weren’t the plaintiff in this case, Brilliant was, and the judge said he was unable to prove that the township had harmed him irreparably.
Attorney Gregory McGuckin, representing the town, said that “residents have every opportunity to use the county’s two animal shelters. One’s in Jackson and the other is in Brick, I believe.”
The one in Brick is the private Jersey Shore Animal Center. The other county shelter is in Stafford. The county also has an overflow building in Barnegat in case there’s a hoarding situation that floods the other buildings.
If someone needs to surrender an animal, they can still bring it to either of the county shelters, McGuckin said.
The judge noted that even though this situation has seen a lot of attention in the press and social media, there are plenty of people who have no idea this has happened. They would not know to go to the county.
If there’s a wild animal, and someone calls the town animal shelter, they are given a non-emergency police number, said Peter Pascarella, another attorney representing the town. They will dispatch the one animal control officer the town still has (down from four). If he is not available, they have A-Academy as a back-up.
While there has been several protests by local residents about the shelter closing, McGuckin noted that there are no protests about how the county handles the animal operations.
The town is under no legal obligation to run an animal shelter, McGuckin said. It is within the mayor’s power to shut it down.
Brenner read a statement from Ocean County Board of Health spokesman Brian Lippai that said the board is reviewing the final draft of the contract between the town and the county. The judge said he would have liked to know that there was an emergent meeting of the board of health to handle this more quickly.
It is undisputed that the township didn’t follow the timeline, Brenner said when rendering his decision.
One argument has continually been about the language of the petition. An ordinance shut down the shelter the first time. An ordinance can be repealed. That’s what the Township Council did, albeit after the amount of time that the law allowed. The petition called for the ordinance to be repealed. It was assumed that this would mean that the shelter would re-open under township control. However, this wasn’t specified.
Brilliant was asking for a “common sense” understanding of that reading, that it should not be held to the letter.
“Common sense should not be abandoned,” Brenner said, but then said that the repealing of the ordinance wouldn’t do anything.
“It’s been repealed and so it would make no sense to this court to have voters of Toms River” have to decide to repeal an ordinance that has already been repealed.
There was also discussion that the original language was a lease agreement with the county while the new language is a shared service with the county.
Brilliant, as a petitioner, said that the end result is essentially the same – Toms River won’t have home rule over the shelter.
“The court disagrees that the shared service is the same thing as a lease agreement,” Brenner said, describing legal definitions.
Shared services are also something that is promoted by the state government, he noted. “Shared service is more beneficial to the township than the lease.”
Next Steps
Brenner said that if the shelter is not re-opened in a “reasonable amount of time,” the court would take a different point of view on this matter. He did not specify the amount of time which would be reasonable or how the court’s opinion would change.
Meanwhile, Brilliant has time to appeal and both sides have time to file more papers in relation to this case.
Brilliant was also awarded a refund of his legal fees. Since he was representing himself, these amount to minor things such as filing fees for court documents.
After the court hearing, the Toms River Times reached out to both parties for comment.
“I think the judge was fair, however I think the case lost sight of the entire issue – the Township did not abide by the statute of 20 days,” Brilliant said. However, in retrospect, he regrets filing suit so late. “Had I filed before August 7, before the resolution and before the ordinance repeal, the outcome would have been very different.”
“My big takeaway is we need to keep our public and elected officials accountable and if we need to challenge them in court, do it the minute the law allows,” he said.
Mayor Daniel Rodrick wasn’t in court but was reached after the hearing where he explained that the petition was to repeal a lease.
“We repealed the lease and then Mr. Not So Brilliant challenged us for doing the very thing he asked us to do. The truth of the matter is a large number of those signatures were suspect, but I didn’t want to spend the money fighting it in court,” he said. “The people who did sign the petition were told that we were shutting the shelter down, which was completely untrue. It’s always been the plan to go to the county. The irony here is that Mr. Not So Brilliant held up the transfer, which forced the shelter to be closed for the last several months. Thankfully we will now be able to move forward with bringing the shelter up the standards required by State statute. We need dog runs and kennels must be ventilated properly. Once that is accomplished, it will be reopened under the county and they will be bringing in more resources and a veterinarian. This is a win for both taxpayers and the animals. We will save $1 million a year and the animals will get better facilities and better care.”
