MAHOPAC, N.Y. - The Zoning Board of Appeals has given the green light to the owners of a vape/smoking shop to open their doors despite a moratorium that temporarily bans such businesses from the town.
The ZBA voted 4-3 to give the owners of Imperial Vape & Smoke Shop “the right to open…due to substantial expenditures.”
The business’s owners, Nick and Ann Mgeladze, said they signed a lease for retail space at 441 Route 6 in Mahopac back in April 2018, well before the moratorium was enacted, and have been paying rent ever since. They say they’ve spent more than $75,000 on things such as renovations, equipment, advertising, inventory and rent, and they’ve hired staff. However, when the couple attempted to get a permit to open the store last fall, they were denied due to the moratorium.
The moratorium was enacted because some Town Board members said they’d received complaints from residents who were concerned with the growing number of vape shops opening around town. With the town about to embark on a master plan update, while revising its town codes, board members felt that vape shops—a relatively new entity—should be put on hold until the codes are rewritten.
William Shilling Jr., the Mgeladzes’ attorney, told the ZBA that the moratorium doesn’t apply to existing businesses and that should include Imperial Vape & Smoke.
“This shop, in my opinion, was in existence at the time of the moratorium,” he said. “[The Mgeladzes] spent all this money prior to the imposition of the moratorium. I have provided this board with a summary of the expenses incurred by my clients, which totaled about $75,000.”
Shrilling provided a timeline chart of what the owners spent and when they spent it. “These are substantial expenditures that were made in good faith, without any knowledge of a moratorium,” he said. “The moratorium was passed in October and [the Mgeladzes] had no notice and would never have spent this kind of money. They did what any of us would have done to start a business.”
Shilling said that if the ZBA didn’t want to consider the “substantial expenditures” angle, it could consider a use variance.
“You can [issue] variance relief from a moratorium,” Shilling said. “We’ve provided case examples. “[The moratorium] is a local law and you have a right to grant variances for it.”
In the end, the ZBA opted to vote on the “substantial expenditures” argument, and granted the Mgeladzes relief from the moratorium by a narrow 4-3 margin. Board Chair John Maxwell, along with members Silvio Balzano, Marc DiTomaso and RoseMarie Fabiano voted yes, while Phillip Aglietti, Bill Rossiter Jr. and Jon Starace were opposed.