SalemNews.com, Salem, MA

March 18, 2014

Peabody billboard ban toothless, city lawyer says

By Alan Burke
Staff Writer

---- — PEABODY — This city likely hasn’t seen its last billboard.

A City Council vote to place a moratorium on the sometimes massive and increasingly ubiquitous signs has come to naught. Councilors have scheduled hearings on four billboard applications, after discovering their botched attempt to ban them has actually made it possible for billboards to be constructed without any council input at all.

“It’s just a mess,” said Councilor Barry Sinewitz.

At a meeting of the council’s legal affairs subcommittee on Thursday, City Solicitor Michael Smerczynski told councilors the city’s moratorium “has no effect whatsoever.” He explained that councilors failed to follow the proper procedure when it passed the moratorium by not amending the zoning ordinance covering billboards.

“You have to follow the procedure,” he said.

Worse yet, any applications filed to construct billboards will be automatically approved — what the lawyer called “constructive approval” — if the council does not act on them within 65 days.

The clock is ticking, Smerczynski warned. The moratorium was signed by Mayor Ted Bettencourt in February.

“Do we have a leg to stand on if we go to court?” Councilor Mike Garabedian asked.

“Right now,no,” Smerczynski replied. But he urged the council to act by trying again and following the correct procedure, including advertising the moratorium and holding a hearing.

“This is a quagmire,” member Joel Saslaw said. “It’s going to continue to be a quagmire until we as a council agree to deal with it.”

“We made a mistake,” Councilor Anne Manning-Martin, chairwoman of the subcommittee said. The moratorium was passed because of concerns over the proliferation of billboards, she said. “It’s one of the most important issues that have come our way.”

With Smerczynski sitting beside her, Manning-Martin added, “We passed a moratorium, and we didn’t get counsel from the city solicitor that it’s a grave error. We didn’t get any of that. We’re getting it tonight. ... Why didn’t we hear all of this the last two months? I’m disappointed.”

Smerczynski did not respond.

Speaking to a reporter, Councilor Tom Gould suggested that Smerczynski was never asked to give his opinion on the moratorium.

The moratorium was not the only legal misstep growing out of the billboard controversy. An earlier vote to limit billboard heights to 60 feet from the roadway is being challenged in court because a clerical error dropped that requirement from the ordinance prior to the final vote. It was likely missed as the paperwork went from subcommittee to Planning Board and back to the council, member Dave Gravel said.

In this case, however, Smerczynski suggested that the council could win in court because it has the right to establish limits on billboards even absent a zoning requirement.

“You’re still not without a sword and shield,” he said. “You do have the ability to address height.”

Alan Burke can be reached at aburke@salemnews.com.