BY JULIE MANGANIS
---- — PEABODY — A Salem Superior Court judge has vacated his decision from last summer overruling the Peabody City Council and granting a special permit for a controversial 92-foot billboard on Lowell Street overlooking Route 95.
Judge Howard Whitehead ordered that the issue be sent back to the City Council for consideration of Total Outdoor’s latest proposal, saying that since it differs both from the plan that was presented to him and the plan that was presented to the council, the council has not had the appropriate opportunity to review the plan on its merits.
But the judge, noting the “significant delay” in the case so far, also gave the city a strict timetable for taking up the new proposal, requesting that the council complete any action it intends to take on the new plan by Sept. 3.
The order lobs the controversy back to the council, which voted last year to deny the sign company a special permit for the proposed sign, even, as they now contend, if the company offered to put it behind the building.
Then, when Total Outdoor appealed to the Superior Court, the city agreed to a stipulated-fact trial, in which the judge was presented with evidence jointly submitted by the city and the sign company.
It turns out, however, that the plan that was given to the judge showed the sign beside the building, not in front, where it ended up being built.
Total Outdoor insisted during a hearing earlier this year that they had inadvertently given the wrong plan to the judge to consider and that they had planned to put the pole in front of the business all along. They had urged Whitehead to treat the discrepancy as a clerical error.
But Whitehead disagreed, rejecting their request to simply “correct” his order and saying that the different locations were not merely a clerical error, as suggested.
Total Outdoor then filed a second request, this time asking the judge to vacate the order and replace it.
Ordinarily, “the court would reopen the evidence in this proceeding and allow the parties to correct the record,” Whitehead wrote. “However, plaintiff has indicated that it now wishes to present a plan different from either of the two plans addressed by the council and the court.”
That led the judge to remand the case to the city for consideration of the new plan.
The sign is a monopole with a “cap” on top that can accommodate two 14-foot-by-48-foot billboards, each side visible to drivers on Route 95.
Residents of the Ledgewood condominium complex off Lowell Street have been vocal in their objection to the new sign, which went up last winter, and about 20 people showed up at Monday’s hearing on the issue.
But while some city councilors have also been vocal about their displeasure with the sign, Whitehead on Monday noted that the city not only agreed to a stipulated-fact trial but did not appeal his ruling and has not enforced a removal order for the sign, nor asked him to do so.
That led him to confront city solicitor Michael Smerczynski with the question: “What’s the city’s real position?”
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at firstname.lastname@example.org or on Twitter @SNJulieManganis.