When this vape shop opened last fall near Mahoney Middle School in South Portland, it caused an uproar. Now the Planning Board has said a proposed fix is nothing more than governmental overreach. Kate Collins / The Forecaster

SOUTH PORTLAND — Planning Board members on Wednesday strongly denounced a proposed new rule that would create a buffer between tobacco retailers and places like schools and churches.

In a 5-2 vote, the board argued that the measure, which received initial City Council approval Oct. 29, represented government overreach and would not solve any of the issues or concerns originally raised by a vape shop that opened near Mahoney Middle School about a year ago.

This Google map shows how close the Portland Smoke & Vape shop is to Mahoney Middle School and Mill Creek Park in South Portland. Courtesy / Google maps

Board members recognized, however, that the council is free to ignore their recommendation. A final council vote is expected at 7 p.m. Tuesday, Nov. 26.

The tobacco sales buffer “does nothing but put more regulations on our books,” Planning Board member Linda Boudreau said, adding, “this is not a land-use decision but a social one, and I feel like this is such a reach.”

Board member William Laidley agreed, saying, “this is just a feel-good proposal and the net result is nothing. It’s a useless city regulation.”

Board Chairman Kevin Carr was the only one to fully support the proposed new ordinance.

He said it’s the council’s job to set policy and while “I don’t know if this proposal is a solution or not, it’s at least one step toward protecting our kids.”

Carr and Elsa Mullin ended up being the only board members to support the proposal.

Mullin voted in favor, even though earlier in the meeting she argued the real problem is the Portland Smoke & Vape shop near Mahoney.

“This (ordinance) doesn’t solve the issue and is not helping in any way,” she said. “It’s the vape shop by Mahoney that really bugs me and I think we could do more.”

Planning Director Tex Haeuser said the tobacco sales buffer initially started as an attempt at banning the sale of flavored vapes but morphed into an ordinance designed to “keep (all) tobacco retailers a certain distance from sensitive uses.”

Planning Board members said they were confused about the shift in focus by the council; Haeuser said it’s his understanding that “there’s a lot of complexity when it comes to regulating vaping and vaping instruments.”

In addition, he said the new tobacco sales buffer rules mimic ones already put into place governing the sales of recreational marijuana products.

The proposed new buffer zones for tobacco sales could impact 36 retailers in the city, according to materials provided to the Planning Board.

The new ordinance would require that tobacco retailers be located at least 1,000 feet from any school and at least 300 feet from various other uses, such as public parks, churches and community centers.

Four shops are closer than 1,000 feet to schools and three are closer than 300 feet to other sensitive uses, including Shaw’s Supermarket, Dollar General, Pizza Joint, Debs Sandwich Shop and Big Apple.

In initial discussions regarding the possible vaping ban, city councilors and others said they were trying to address a public health issue.

The Maine Principals’ Association has said that vaping is now the largest and most time-consuming disciplinary problem for schools across the state.

On Wednesday, Planning Board member Mary DeRose said “the vaping issue has outstripped us” and said what the city should be doing is “banning those cartridges that are killing people.”

But the tobacco sales buffer, she said, “doesn’t solve anything,” particularly when any retailer in the city who has a valid license as of Sept. 3 will be grandfathered.

“We’re just giving the council a reflection of what the public is likely to think,” Boudreau said of the Planning Board action.