SalemNews.com, Salem, MA

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March 21, 2013

Judge: Sign no 'clerical error'

Peabody: Mayor 'thrilled' with ruling that upholds city's cease-and-desist order

The location of a controversial 92-foot-tall billboard in Peabody is not a mere “clerical error,” a Salem Superior Court judge ruled yesterday.

Lawyers for Total Outdoor Corp., which erected the massive sign in January, had filed a motion seeking to “correct” what it contended was a simple mistake in the record of the court’s decision to overrule the Peabody City Council and let the company put up the sign.

Judge Howard Whitehead, who on Monday was told by the sign company’s lawyer that he had been given the entirely wrong plan to approve when he heard the case last summer, didn’t share that view, however.

“Despite its title, the motion is essentially a motion to reopen the evidence after judgment and to substitute one piece of evidence for another while leaving the judgment intact,” Whitehead wrote in his decision yesterday. “The court is aware of no case law or rule of court which allows for such action.”

Instead, the judge said, if Total Outdoor wants the judgment to be changed, it will have to file a motion under a different provision of court rules that allow a judge to void a judgment in cases where there has been shown to be an error caused by mistake, inadvertence, surprise or excusable neglect, or for any other valid reason.

Whether the company will or not remains to be seen, however. Its attorney, Michael Ford, did not return a call for comment before The Salem News’ deadline last night.

The judge also rejected the company’s request for an injunction that would stop the city from enforcing a removal order it issued for the sign last month.

“Because the judgment by which erection of the sign at issue is currently in question,” the judge wrote, “the court declines to enter injunctive relief until that question is resolved.”

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