, Salem, MA

June 25, 2013

Sign flap may head back to council

Peabody: Judge mulls sending case for a new hearing


---- — It could be a case of “be careful what you wish for” for a sign company under fire for erecting a massive billboard that looms over Interstate 95 — but also over nearby homes and condos off Lowell Street in Peabody.

A Salem Superior Court judge said yesterday that he’s leaning toward granting Total Outdoor Corp’s request for relief from the judgment he entered in their favor last summer — a judgment the firm acknowledged earlier this year was based on inaccurate information it had given to him about the sign’s planned location.

But instead of simply altering his original ruling to reflect where the company wanted to put the sign, as the sign company’s lawyer urged, Judge Howard Whitehead said he is considering sending the entire case back to the Peabody City Council for a new hearing.

A ruling is expected within a day or two, said the judge.

Michael Ross, one of the lawyers representing the sign company, complained that it’s unlikely the city would approve any plan by the company now, after more than a year of contentious debate and legal wrangling, and that the judge should simply impose a new judgment. But Whitehead disagreed.

“If the (city) council didn’t matter, people would just come straight to court,” said the judge. Now the community would have a much better idea of the impact of the proposal, which also includes altering the angle of the signs at the top of the pole, said the judge.

The 92-foot sign went up last winter near the junction of Lowell Street and Route 95, but city officials said they had been led to believe it would be erected behind a Subway franchise, not in front of it.

And during a hearing in March, Whitehead noted that the sign, as built, was not where he envisioned it, based on the plan he had been shown during a brief, stipulated-fact trial last summer.

A stipulated-fact trial is one in which the sides do not dispute the evidence to be presented to the judge, but instead ask him to rule based on a set of agreed-upon exhibits. One of the exhibits that was given to the judge was a plan that showed the pole alongside the Subway building, not in front of it.

The front of the lot is where the company had originally proposed putting the sign before a City Council hearing on a special permit request last year. But during that hearing, councilors now contend, they were led to believe that the company had agreed to move the sign behind the building.

When the city realized that the pole had been erected at the front of the business, the building inspector issued an order barring the company from using the sign and demanding that it be removed.

But yesterday, Whitehead noted that the pole is still up. Not only has the city not enforced its own removal order, said the judge, but the city had chosen not to appeal his decision last fall, and the city’s attorney, Michael Smerczynski, had not filed its own motion to vacate the judgment.

“What is the city’s real position?” the judge asked Smerczynski, questioning whether the councilors were simply trying to put the blame on the judge after deciding not to challenge the company’s appeal.

The city’s lawyer said the removal order has been appealed to the city’s Zoning Board of Appeals.

As for the failure to seek a revised judgment, Smerczynski said that the city’s conclusion was that the ball was in Total Outdoor’s court at that point.

About 20 residents, many of them elderly, attended the hearing yesterday.

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