Angel's Gate Animal Hospice Fort Salonga NY Victor LaBruna Susan Marino Justice Arthur Pitts Article 78 Smithtown Board of Zoning Appeals Erica Jackson

On the Side of Angel’s Gate

Court Grants Pre-Existing Use to Animal Hospice

By Erica Jackson and Jay Beatty

September 26, 2007

FORT SALONGA, NY -- Calling the earlier decision by the Smithtown Board of Zoning Appeals (BZA) “arbitrary and capricious,” New York State Supreme Court Justice Arthur Pitts last week ordered the BZA to issue a certificate of existing use to Susan Marino and Victor LaBruna for the purpose that their Fort Salonga home has been more widely known, that is, as Angel’s Gate animal hospice.

Pitts used the very words of Town officials in deciding against the municipality and its agencies. “Contrary to the respondents assertions,” Pitts found, “at a public meeting held on April 4, 2006, prior to the amendment of the Zoning Ordinance, Town Supervisor Patrick Vecchio stated that there was no town ordinance that was violated by the petitioners as o the use of the subject premises. Such assertion was reiterated by the Town Attorney at the same meeting.”

“Clearly, the record before this Court establishes that prior to the amendmanet of the town zoning ordinance, the petitioner’s use of their property was legal and accordingly, the petitioners are entitled to a pre-existing use permit,” Judge Pitts’ decision concluded.

The petitioners – Marino and LaBruna – were understandably thrilled.

“It’s so gratifying to see Judge Pitts leave no doubt that what the town was doing was not right,” said LaBruna, speaking for the pair in front of the couple’s home on Josephine Lane in Fort Salonga. Marino, he explained, was at a farm property upstate that they are presently leasing, partly to protect their animals had the decision been against them.

(Pictured above: Victor LaBruna, one of the founders of Angel's Gate along with Susan Marino, and Samson, a purebred dog born with congenitally defective legs, one of the animals in the care of Angel's Gate.)

“Currently we are renting a piece of farmland and are moving some of the animals,” said LaBruna. “We had to, because of the pressure from the Town. If the decision had come down the other way, we wouldn’t know what to expect. We had to have a Plan B,” he noted.

According to LaBruna, the couple has been under siege by certain neighbors and town authorities for some time. “We’re tremendously relieved,” he expressed. “We’ve been in anguish for over a year now. The town tried to illegally force us out of our home. Now, justice has prevailed thanks to the Supreme Court decision,” he declared.

“All this means is that we can continue to serve the community,” he continued. “We’ve had people begging us to stay. There are no other resources that specialize in taking animals that are disabled and dying."

BZA Overruled

The description of the Angel’s Gate activity was presented straightforwardly by the Court in its decision. Noting that the Fort Salonga property was purchased in 1992, the Court described Marino and LaBruna as “the founders of Angel’s Gate Hospice and Rehabilitation Centre for Animals (“Angel’s Gate”), a not for profit organization which cares for special needs pets. Presently the petitioners are the owners of approximately 200 special needs animals. They become the owners of the animals upon accepting them into the center.”

As previously reported, Smithtown has no ordinance limiting the number of pets in a household. As quoted in the decisions, Supervisor Vecchio declared in April 2006 in response to complaints from neighbors that there was no statute in the Town Code which “would allow us to do something.” Those words dogged the Supervisor ever since.

(Samson, one of the favorite pets cared for at Angel's Gate.)

“I’m not surprised, said Councilwoman Joanne Gray of the decision. Gray was the sole vote at the time against the July 11, 2006 passage of an amendment to Smithtown’s zoning ordinance which she felt targeted Marino and LaBruna. “That action never should have been taken against Angel’s Gate. Clearly, it was done retroactively and now, with the court decision, Angel’s Gate has been vindicated.”

“I believe that the language cited by the judge, that portion of the town code saying that ‘anything that is not permitted is prohibited’ is too broad and needs to be stricken,” Gray declared.

The BZA decision denying a certificate of existing use cited Section 322-4F of the Town’s Ordinance which reads in part “matters of which there is no specific provision in this chapter shall be deemed to be prohibited.” The BZA went on to cite the “Table of Use Regulations” found in Section 322-8 which states “Any land use not listed in this table is prohibited.” Since the term “animal rehabilitation facility” was not listed, they reasoned, its similarity to the term “animal hospital” –a term used in a report from the controversial and now-retired Chief Building Inspector Robert Bonerba – deemed their operation as prohibited. It is that decision that Judge Pitts termed “arbitrary and capricious.”

Powerhouse Persuasion

Angel’s Gate was represented pro bono by the Manhattan law firm of LeBoeuf, Lamb, Greene & MacRae, LLP, with attorney Jaime M. Jackson acting as counsel. Gaining the assistance of the prestigious firm, said LaBruna, came about in a circuitous way.

“A supporter whose cat was taken in is a paralegal who lives in New Jersey,” said LaBruna. “She happens to know a law professor at Rutgers [University] who is an animal advocate. One of the professor’s graduates works for the firm [LeBoeuf,Lamb].

“One reason why [the firm] took the case was because the animal regulations in Smithtown were considered to be poor law and they were willing to help change those laws,” he added.

Of note, the firm has announced a merger with another major New York-based law firm, Dewey Ballantine, which will create a combined firm with over 1,300 attorneys, according to the New York Law Journal. The nearly 600 attorneys who will be based in New York following the merger would make the new firm Manhattan’s fifth-largest.

Missed Opportunities

There might easily have been a compromise, according to Gray. “When all this was brought to our attention, I spoke with Susan Marino,” the Councilwoman said. “Marino said ‘We’re willing to compromise what town wants us to do. We’re willing to get rid of the rooster. We’ll get rid of the geese.’ They were willing to sit down and talk, but the Town never took them up on it.”

“Angel’s Gate sent a video of their operations,” said Gray. “My comment at the time is how I’m surprised I was at how clean it actually looked. If the Town Board had had an open mind and only listened to me when I said we’d get sued, and we’ll lose…but they just went ahead,” she said.

LaBruna confirmed the willingness to compromise. “When this all started, we wrote to Supervisor Vecchio,” he said. “We told him what we did, how long we’ve been here and asked him to use his good offices to help reconcile the situation. Mr. Vecchio never responded. Instead we got this zoning change and a ‘take no prisoners’ attitude,” LaBruna added.

“We always were willing to cooperate and work with our neighbors and the Town,” LaBruna continued. “For example, when people complained about people parking in the street – which is legal, by the way – we offerd to put in a second driveway. We still strive to avoid annoying our neighbors,”.he vowed.

What Now?

Without a response from the Town, it is unclear whether the decision by Judge Pitts will be appealed. Telephone calls to Town Attorney Yvonne Lieffrig and Councilman Edward Wehrheim were not returned, although the Council office did say that Wehrheim was not expected in Town Hall today.

“I heard that at the town board meeting, all the Board members except Joanne Gray were complaining about the court decision., so who knows,” mused LaBruna.

“We just don’t know what the Town will do,” he concluded. “Hopefully they will try more friendly approaches, but I don’t know.”

-30-