MAHOPAC, N.Y. - A six-month moratorium on smoke and vape shops imposed by the Town Board back in October is being challenged by a couple who say they began the process of opening their business back in April with no prior knowledge a moratorium would be implemented.
The couple, Nick and Ann Mgeladze, shareholders in Imperial Vape & Smoke Shop, Inc., say they signed a lease for retail space at 441 Route 6 in Mahopac more than six months ago and have been paying rent ever since. They say they’ve spent more than $65,000 on rent, renovations, equipment and inventory.
The couple went before the Zoning Board of Appeals last week seeking an interpretation of the moratorium and their right to open the business and obtain a use variance.
William Shilling Jr., the couple’s attorney, told the board at its Nov. 29 meeting that more than a week earlier he had hand-delivered documents, along with case law, to Town Hall detailing his arguments. However, board members said they’d only received them the night before and had not had the time to review them.
Schilling lamented that because, he said, “time is of the essence.” The board said he could proceed with his argument and lay out the details of the case.
Sullivan said the retail space in question was about 700 square feet and located in a strip mall in a commercially zoned area.
“My clients started preparing for this last year and negotiated the terms for the lease in April of 2018,” he told the board. “They borrowed money to make this happen. They painted, they cleaned, they bought inventory, they hired employees, purchased and installed cabinets.”
Schilling said they were advised in August that a building permit was required and they immediately applied for one. He noted that no structural changes were being made to the building itself.
The Town Board enacted the moratorium on Oct. 1, saying it imposed the suspension in anticipation of the creation of a new master plan and revised town code. The board said it wanted to slow down the applications for such businesses, which some residents maintained were proliferating. However, the moratorium grandfathered in existing vaping/smoking stores and would not impact them. Schilling said the Mgeladzes’ store should be considered an existing store.
“It was in operation by virtue of the investments they made,” he contended. “This is all about the fact that my clients had no notice of the impending moratorium and moved forward on good faith,”
Schilling said case law shows that ZBAs can grant relief from a moratorium under the right circumstances.
“[A moratorium] can be challenged like any other statute,” he said. “We have the right to challenge. The ZBA has the power to interpret the code and issue variances just like any other relief that is sought. I don’t know anyone who would say they should have known [a moratorium was coming].”
Relief from the moratorium should be granted in the “basic interest of fairness,” Schilling said. “One more smoke shop will not thwart the town’s desires.”
But ZBA member Silvio Balzano said the Mgeladzes should have to present receipts proving they did the work and made the inventory purchases before the moratorium was imposed.
“I’d like to see the receipts,” he said. “I’d like to see the timing of it all because if they have expenditures after Oct. 1 (when the moratorium was issued) then their argument goes out the door.”
Sullivan argued that his clients’ testimony was given under oath, which should be considered as good as producing the receipts. Town attorney Greg Folchetti said the ZBA could indeed accept the sworn testimony as evidence if it so desired.
Ann Mgeladze told the board how she had to train to learn the new digital cash register and spent many nights downloading inventory information into it. She said that they’ve tried their best to follow town codes and guidelines.
“We haven’t done this before,” she told the board. “It’s a learning experience.”
The store, she said, would feature security cameras and IDs would be checked at the door. She noted that the shop would be a “store” and not a “café.” Customers would be expected to make their purchases and leave.
After deliberating, the ZBA tabled its final decision to its December meeting, citing a need to review Schilling’s documents more thoroughly.
“I need more time to look at the law and cases that were cited,” said ZBA member Philip Aglietti. “I think that’s fair.”