Council Says No More Billboards
By John Castelluccio
April 16, 2017
PEABODY, MA - No more billboards.
If there ever were a plaintive cry from Peabody city councilors, that would be it. Councilors though are trying to ensure that soon becomes a reality.
Two separate motions came from the council earlier this month - the first to have City Solicitor Michael Smerczynski draft language to permanently ban any future billboards from cropping up, and second, for Smerczynski to review the current billboard regulations to remove any loopholes by which advertising companies could add extra screens or make other unwanted alterations.
"I suggest we make the moratorium permanent (and) make it clear that the city will no longer entertain any new applications," said councilor Tom Walsh, referring to a moratorium the council first enacted in 2014 after a proliferation of billboards along the city's stretch of Route 1 and Route 128.
The council is scheduled to take up the matter in committee on April 27.
A number of the signs became highly controversial, none more so than the 70-foot billboard that towered over Lowell Street near I-95 and Route 1. The city finally prevailed on that one in court and Total Outdoor agreed to take it down in exchange for erecting another billboard elsewhere on Route 1.
Walsh's request was initially one motion, but Anne Manning-Martin noted it might be prudent to address alterations separately, and as soon as possible.
"If billboard companies hear that the moratorium is going to be permanent, then they might say, 'Well let's do those double billboards now,'" Manning-Martin said. "They'll get the jump on us."
Councilor Joel Saslaw, who represents Ward 5 where all of these billboards reside, said he's spotted billboard companies doubling up on screens further down Route 1 in Revere, Chelsea and Boston. He doesn't want to see that happen in Peabody too.
"I don't want to relive that meeting we had in executive session," said Ward 6 Councilor Barry Sinewitz, referring to a controversial decision made by the former building commissioner.
In 2014, then commissioner Paul Kolodziej had effectively allowed a company to pursue converting a static billboard to digital without going before the council. Billboards are regulated by special permit, which the council controls.
In a written opinion, Kolodziej said Total Outdoor did not need to amend its existing permit or seek a new one. The company had a permit for a billboard yet to be erected at 258 Newbury St., on the southbound side before Lowell Street, but the permit didn't specify a type of sign.
When Sinewitz and the rest of the council learned of this, it sparked an intense furor, the exact details of which only recently came to light when the minutes of meetings held in executive session were finally released.
At the time, Total Outdoor threatened to sue the City Council for civil rights violations if councilors tried to derail a permit from the state Office of Outdoor Advertising.
The company was arguing, according to Smerczynski, that if councilors pursued their latest opposition to one of the company's billboards, it could be construed as demonstrable proof of a vendetta against Total Outdoor.
Total Outdoor said, rather than appealing Kolodziej's decision to the Zoning Board of Appeals first, and then further in court if they weren't satisfied by the ZBA, the council was trying to interfere in a state permit hearing.
Sinewitz, according to the minutes, said he only learned of the situation that August when he received a copy of Kolodziej's written decision, included in a council agenda packet. That was a few days before the deadline expired to appeal to the ZBA.
Instead of filing an appeal, the council voted to send a letter to the state advertising board to say it opposed the conversion and that Total Outdoor needed a new or amended special permit from the city.
That objection was gaining traction with the state, which wanted a fuller explanation of the situation. That's when Smerczynski was notified of the threat of the civil rights case.
The company promised, however, to hold off on filing suit if the council withdrew its objection from the record.
Heated executive session
Harsh criticism flowed freely during an initial executive session that September with councilors and Smerczynski, in which the city's chief legal counsel told them, in blunt terms, they had a losing case.
According to the minutes, he advised them to agree to the terms and withdraw their objection, otherwise they could be held personally liable for damages.
Smerczynski laid out Total Outdoor's argument in detail, telling councilors the special permit language was too vague in describing the types of billboards they had approved.
Further, as elected officials with many years of service, they should have known they had the right to appeal the building commissioner's decision.
Sinewitz and other councilors said they had never done so; they didn't realize that. And, really, there was supposed to be legal counsel to advise them of such things.
The heated argument devolved to who should have known what when, and who was at fault for not taking any action.
On the one hand, councilors argued Smerczynski should have anticipated problems with this and other billboard issues. On the other hand, Smerczynski said he couldn't have anticipated what the council was going to do, or not do.
In this particular case, no one asked him to appear on the matter, he said.
"I would ask that for every hearing we have from now on, on a billboard, that you be present because... This billboard issue is absurd. It's all over the map. All over the map," said Walsh, according to the minutes.
"Whether that's our fault or whoever's fault doesn't really matter, but we need guidance because I'm afraid that every application, no matter what decision we make, is going to end up in court and it's...this is futile," he said.
Ultimately, the council heeded Smerczynski's advice, removing its objection but also informing the state board it was due to legally binding events that prevented councilors from addressing the issue further. They stated it was still their opinion the billboard was only allowed to be static.
A motion to that effect passed 9-1 with Manning-Martin voting no. Mike Garabedian was absent from the meeting.
Following up on that charged session, Mayor Ted Bettencourt met with the council a few weeks later in private to make peace.
Two months after that September meeting, councilors met again with Smerczynski, who informed them the outdoor advertising board now wanted further clarification on their letter. The board approved the static version of the billboard, but was withholding a decision on digital until it heard from the council. The council sent back another letter, simply saying Total Outdoor wasn't authorized for digital.
Meanwhile, Keilty called up Smerczynski to tell him Total Outdoor was reconsidering going digital with that sign.
It turned out that the outdoor advertising board denied the digital permit that December.