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.