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November 25, 2013

Frozen yogurt OK'd; issue of sidewalk shoveling raised

PEABODY — Shoveling snowbound sidewalks is not a small matter, particularly on busy streets.

That was the point Ward Councilor Arthur Athas tried to make after discovering that the CVS plaza on Lynnfield Street isn’t shoveling the sidewalks bordering the mall.

Athas brought it up at a meeting last week where Orange Leaf Frozen Yogurt was seeking a special permit to open in the plaza, and he wanted to make shoveling nearby sidewalks a condition of the permit.

“It’s common sense to keep the path clear of snow,” he said, noting that pedestrians could be forced to walk on busy Summit and Lynnfield streets if the walks aren’t shoveled.

He didn’t win the day, losing the vote 9 to 1, and Orange Leaf got its special permit. Fellow councilors expressed concerns that it isn’t proper to require a landlord to act through a special permit granted to a tenant. Moreover, some questioned whether the special permit would be as effective as passing an ordinance, the sort of thing already in effect in the downtown.

Finally, lawyer Jack Keilty, representing Orange Leaf, said that a special permit could put his client in danger of a lawsuit.

”It would present a new opportunity to sue in a slip and fall lawsuit,” he said later. That would be less likely to happen, he suggested, with an ordinance that has the sanction of the city, which can have governmental immunity. His client is likely to keep the walkways shoveled in any case, he added, as a good business practice.

”It’s a mixed message when you make it a condition,” he told the council.

Some members were unclear, however, regarding what is and what isn’t already required. According to Town Clerk Tim Spanos, the downtown and a section of Route 114 are the only places where an ordinance requires shoveling. “The business owner has to clear it,” he said.

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