SalemNews.com, Salem, MA

March 21, 2013

Judge: Sign no 'clerical error'

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

BY JULIE MANGANIS
STAFF WRITER

---- — 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.”

The case landed in court when the council rejected a request for a permit for the sign last year. The company appealed. But, Ford acknowledged Monday, the company told the judge and the city’s lawyers last summer that it planned to put the sign behind a Subway franchise on Lowell Street near Interstate 95, not in front of it.

City officials were OK with the sign being built behind the sandwich shop, believing the pole would not be visible from the street. That’s also what the judge believed.

But when it was put up in January, it was in front of the shop, looming over Lowell Street.

When the city issued a cease-and-desist order and then a removal order for the sign, Total Outdoor went to court, hoping to persuade Whitehead to let them keep the sign where it had been built, at a cost of between $200,000 and $300,000.

It didn’t work.

Peabody Mayor Ted Bettencourt said he’s more than pleased with Whitehead’s ruling.

“The judge’s decision underlined the city’s position that the monopole should be located behind the building,” Bettencourt said. “I’m extremely pleased that the judge has kept the cease-and-desist order from the building inspector intact. I’m very thrilled with that decision.”

Bettencourt said that because it is the City Council’s prerogative to decide on special permits and on future legal strategy in any appeal, he would not comment on what should happen next.

But Bettencourt said he believes that the council is determined to force the sign to be moved.

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