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 firstname.lastname@example.org or on Twitter @SNJulieManganis.