Politics & Government

Judge May Call for Retrial in Billboard Dispute

The case of the Lowell Street billboard, or rather the 92-foot pole, may start all over again with a retrial in court. Judge Howard Whitehead is expected to make a decision later this week.

Judge Howard Whitehead agreed with city officials -- the 92-foot pole is definitely not where they thought it was going to be installed when he ruled against the city last year.

City Solicitor Michael Smerczynski says the issue now for Whitehead to decide is whether that truly was because of a clerical error when the plans were submitted in court or a broken promise first made to appease local officials who didn't want the billboard there at all off Lowell Street.

Both sides argued the case in Salem Superior Court Monday. Whitehead told Total Outdoor Corp., Peabody officials and more than 20 residents from two nearby condo complexes he would take a couple days to make a decision, but indicated he would probably vacate his earlier judgment and call for a retrial, Smerczynski said.

Find out what's happening in Peabodywith free, real-time updates from Patch.

A retrial means the city has another shot at trying to convince Whitehead the entire billboard structure is inappropriate for its location. Smerczynski said, at the least, the city will insist the pole be moved to the rear of 532 Lowell St., which is consistent with Whitehead's original ruling.

In that case, Total Outdoor would need a zoning variance and have to appear before the Zoning Board of Appeals. The Salem News also reports residents at Ledgewood Way and Bourbon Street Courtyard, who are opposed to the billboard, have a petition with 340 signatures.

Find out what's happening in Peabodywith free, real-time updates from Patch.

Total Outdoor says the wrong version of the site plan was mistakenly submitted in court, but the pole does sit where it was originally meant to go based on the original plan filed with the City Council. For that reason, the company wants Whitehead to simply amend his ruling.

An attorney told Whitehead it would cost about $300,000 now to move the pole, reports the Salem News.

Total Outdoor also fears local zoning officials would summarily reject a variance request at this point and city councilors are prejudiced against reconsidering the matter if Whitehead remanded it back to the council.

Further, the company asks Whitehead to rescind the two cease and desist orders city building inspectors have issued over the location of the pole, arguing that even though the pole is still off by several feet from the original plan, the difference is negligible.

Smerczynski says the city is not at fault in any way here, rather there is an injustice the city is trying to correct.

Smerczynski said, yes, the first proposal before the City Council last year had the pole against the building, but in the face of mounting opposition, the company's attorney presented an alternate version and promised the pole would be in the rear of the property.

Those promises were entered into the court records for the case and went undisputed by Total Outdoor at the time, says Smerczynski. City councilors and building inspector Paul Kolodziej also submitted sworn testimony on that point.

The discussion then just focused on the billboard itself with the assumption the pole would only be visible from the highway not Lowell Street, Smerczynski said. That assumption carried into the original court case, he said, and thus no consideration was given to the impact of having the pole in plain view.

Smercynski says it wasn't until after the court trial last year that Total Outdoor was made aware of the need for a variance. The company then submitted a plan to the inspectors' office identical to court filings, down to the title and date but not the location of the pole.

Kolodziej testifies that he wasn't aware of the discrepancy and issued a building permit, but once the pole was installed, the problem was discovered he began to receiving numerous complaints. The initial stop work order was issued Jan. 31.

Prior to Monday's hearing, Total Outdoor did offer a settlement that would install akin to an addition on the adjacent building to cover the bottom portion of the pole, making it less obtrusive to neighbors.

City Council President Tom Gould said the council rejected that offer in executive session. Smerczynski also says Total Outdoor could still place the pole in the rear of the property and angle the billboard to conform with existing zoning.


Get more local news delivered straight to your inbox. Sign up for free Patch newsletters and alerts.

We’ve removed the ability to reply as we work to make improvements. Learn more here