, Salem, MA

March 19, 2013

Judge: Billboard 'not what I envisioned'


---- — PEABODY — As he drove down Lowell Street in Peabody for the first time after a controversial 92-foot-tall billboard was erected near Route 1 and Interstate 95 recently, Salem Superior Court Judge Howard Whitehead was puzzled.

“I said to myself, ‘Wow, that looms over the street in a way I did not envision,’” Whitehead told lawyers for the sign’s owner and the city of Peabody during a hearing yesterday. “It’s much closer to the street than I envisioned it. I thought it was going to be behind the building.”

That may be, the lawyer for the sign’s owner acknowledged, because that’s what the judge was told when he reversed the Peabody City Council’s decision to deny a permit for the sign last August.

“There was one plan submitted with the application (for a special permit) ... that has the sign located exactly where it is today,” give or take 5 feet, Total Outdoor Corp. attorney Michael Ford told the judge. “What happened here with regard to trial counsel, an earlier plan, never submitted to the city, was erroneously attached.”

That earlier plan, Ford said, called for the pole to be on the side of the building closest to Interstate 95. And that’s what was given to the judge in a package of evidence last summer.

But Ford also tried to convince the judge that the discrepancy doesn’t matter, because the pole was erected exactly where the company intended for it to go — which happens to be exactly where the Peabody City Council and hundreds of neighbors didn’t want it when the council denied Total Outdoor a permit last May.

Ford and the sign company are trying to convince Whitehead that the discrepancy amounts to nothing more than a clerical error and that the judge should simply amend his ruling to reflect the actual location where the sign was erected in January. Besides, Ford argued, the sign is already up, at a cost of as much as $300,000, and it would likely cost at least that much to move it, causing the company “irrevocable harm.”

Not so fast, Peabody City Solicitor Michael Smerczynski said during a hearing yesterday where he argued against Ford’s motion to “correct” the ruling and said the city deserves the chance to argue at a new trial, regardless of the cost or delay.

Smerczynski said the company made representations at the trial last summer that the sign would be erected behind a Subway sandwich franchise on the same lot. He suggested that the lawyer representing Total Outdoor at the time indicated that the location had been changed to address concerns raised by city officials and residents.

Total Outdoor may have done so, Smerczynski suggested to the judge, in its haste to get the sign up, because a competitor, Clear Channel, was also seeking a permit for a sign overlooking Interstate 95, a plan that Clear Channel might have abandoned if Total Outdoor got its sign up first.

“They sought an expedited trial,” Smerczynski said. “The paper was flying.”

The city had agreed to the unusually quick trial (less than two months after the appeal was filed) and a joint statement of facts, which included the plan to put the sign behind the building, something the city was willing to go along with, Smerczynski said.

To let the sign remain where it is now, Smerczynski said, would be to “drop-kick the statute into the North River. It turns justice upside down.”

“The real issue here,” Smerczynski told the judge, “is what ... you ordered is going to be changed significantly.”

“So what do we do about it?” Whitehead asked. “Do we vacate the judgment and order a whole new trial? Does it result in a remand” back to the City Council? “We’re talking about a lot of money.”

Ford, the lawyer for the sign owner, suggested that city councilors had already made up their minds and couldn’t provide the company a fair hearing at this point. He cited newspaper stories about the case and also handed the judge a spreadsheet comparing statements made by city councilors during the hearing last year with affidavits they signed prior to yesterday’s hearing.

“When we saw those affidavits, we were shocked,” Ford said. If there’s another trial on the issue, he’d use them for “devastating impeachment” of the councilors, he said.

Smerczynski suggested that it’s Total Outdoor and its managers, however, who were offering contradictory versions of events, not city officials.

Whitehead told the lawyers that he wanted some time to think about his ruling and read their latest filings, but hinted at his likely decision.

“I have a feeling I’m going to have to vacate the judgment and have a retrial,” the judge said.

Peabody City Council President Tom Gould said he believes that the judge now understands the issue.

“We know what we voted for,” Gould said.

Jon Yoh, the president of the Ledgewood condominium association, was one of more than 20 people who attended the hearing yesterday in Salem Superior Court. Yoh said that his condo association and that of a nearby complex, the Bourbon Street Courtyard, have gathered 340 signatures in opposition to the sign.

Residents are concerned about their property values, he said.

“We don’t want our neighborhood turned into the Vegas strip,” Yoh said.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at or on Twitter @SNJulieManganis.