j

COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT I,AND COURT DEPARTMENT BRISTOL, SS LANDING AT SOUTH PARK * * CONDOMINIUM ASSN.,
DOCKET NO. 254067

Plaintiff/Defendant-in-

Counterclaim
V.

* * *
)k

*
+

EFTEcoPY

BORDEN LIGHT MARINA, INC.,

Counterclaim

Defendant/Plaintiff-in-

* * * *

PTAINTIFF / DEFENDANT.IN.COUNTERCLAIM. LANDING AT SOUTH PARK CONDOMINIUM ASSOCIATION'S REQUEST FOR FINDINGS OF FACT

Plaintiffl Defendant-in-Counterclaim, Landing at South Park Condominium

Association, hereby requests that this Honorable Court make the following Findings of Fact:
PARTIES

1.

Plaintiff/Defendant-in-Counterclaim, The Landing at South Park Condominium Association (hereinafter referred to as the "Landing"), is the duly e stablished and authortzed organrzation of unit owners of The Landing at South Park Condominium pursuant to G.L. c. 183A g 8 and is the legal representaiive of said unit owners pursuant to G.L" c. 183,{ S 10. Defendant/Plaintiff-in-Counterclaim, Borden Light Marina, Inc., {hereinafter referred to as the "Marina"), is a Massachusetts Corporation organized under G.L. c. 1568 rn'ith its principal office at One Ferry Street, Fall River, Massachusetts.

2.

PROCEDURAL HISTORY
?

On Febru ary 4, Tggg the Landing, by its then Counsel, John J. Gushue, filed this complaint against the Defendant, Borden Light Marina, Inc. Said complaint inter alia sought a declaration of rights relative to the Visual Easement and the Erosion Control Easement and also aileged certain violations of said Easements. On August 5, 1999 Edward.]. Brennan, Esquire entered his appearance for the Marina.

A +.

5.

On May 23, 2AOO the Landing filed an Ex-parte Motion for a Temporary Restraining order and Preliminary Injunction. In support of said Motion, the Landing filed an Affidavit of Roland Richard.

6.

on May 23, 2ooo this court (Kilborn, c.J.) issued a preliminary Injunction.
On May 25, 2AOO the Marina filed a Motion to Dissolve the Temporary Restraining order and filed in support an Affidavit of John Lund.

8.

The Landing fiied an opposition to the Marina's Motion to Dissolve the Temporary Restraining order and filed in support an Affidavit of Mark A. Boucher, P.L.E.

9.

on May 26, 2o0a the Marina's Motion to Dissolve the Temporary Restraining order was argued and denied by the court (Kilborn,
c.J.).
The issues raised by the parties relative to the Motion for Preliminary Injunction and Motion to Dissolve the Injunction included the Landing's allegation that the Marina had excavated a portion of the coastal bank and violated the Erosion control Easement. The Marina, in opposition, argued that the excavation of the coastal bank did not violate the Erosion Control Easement.

10.

i1

on July 25, 2oa2, a Motion to withdraw was filed by John Gushue as the Landing's counsel. Said Motion was allorn'ed by the court.
Thereafter, the case remained open with the preliminary injunction dated Mav 23. 2OOO still in effect.

t2.

The next activity on the case was when the Landing filed a Complaint

for Contempt on May 77,2OIO.

1A iT-

On May 2I,2O1O this case was assigned to the Honorable Judith Cutler.

15.

On September 21,2O10 a Pre-Triai Conference was conducted. At the pre-trial conference the Court (Cutler, J.) determined that the issues involving the Complaint filed in 1999 would be heard with the Cornplaint for Contempt. This case proceeded to trial and trial was conducted on November 8,2O1O, November 9, 2010, November 10, 2AlA and December 28,2O7O.

16.

Injunction and in support thereof filed the Affidavit of Charles

Schnitzlein.
T7,

On October 4, 2OlO the Landing filed a Motion for a Preliminary

After completion of trial, the Court (Cutler, J.) on January Ig, 2O7l allowed the Motion for Preiiminary Injunction and ordered the Defendant, Marina, to immediately cause a removal of all boats and all related equipment, vehicies, and structures stored within the portion of the twenty foot wide Erosion Controi Easement area extending adjacent to the 630 t foot long retaining wall, which the Marina constructed between 2008 and 2009 with said removal to be completed no later than 5:O0 p.m. on February 19,2017. The Judge further ordered that the Marina, its officers, agents, servants, and employees are enjoined from using said area for storage purposes of any kind until further order of this Court.
PROPERTIES AND EASEMENTS

18.

The Landing at South Park Condominium was created by a Master Deed dated September 25, 1987 and recorded in'the Bristol County, Fall River District, Registry of Deeds in Book 1881, Page 133. Amended Complaint 11 5 and Defendant's Amended Answer to Plaintiffs Amended Counterclaim. I The Marina property consists of 3.1 t acres of shorefront land located in an industrial zoning ciistrict on the easterly shore of Mount Hope

19.

An1,references stated after any'finding of fact are the sLrpporting authoritv in the record. Any reference made to tlre Amended Complaint and Ansrver to the Anrended Complaint r.r,ould indicate an admission to the allegation. Any references to the trialtrar:script are denoted {Tr. l- } of day one trialtranscript r.vith the Arabic numeral referringto the page in the trialtrarrscript where it cart be located. Days 2.3, and 4 of the trial are referenced as Tr. 2-, Tr. 3-, and Tr. .:l-, for da1's 2. 3, and 4 respectil'ely. Any reference to trial erhibits is denoted as Tr. Exh. with the Arabic nnlneral referritt,g to the particular trial exhibit.

'

Bay about one-half mile south of the Braga Bridge. Amended Complaint fl 6.
20.

The Landing property consists of 7 .73 x acres of upiand abutting the Marina property along a common property line 1 ,934 + feet in length. Amended ComplaintnT. As of July 29,1986 all of the land now comprising both the Marina property and the Landing property was owned by the Green River Realty Trust. Amended Complaint fl 9. On or about July 29, 1986 the Green River Realty Trust divided the land into three lots identified as Lots 1 ,2, and 3. Lots 1 and 2 are now the Landing property and Lot 3 is the Marina property. Amended Cornplaint 1i 10.

zL.

22.

23.

On September 30, 1986, the Green River Realty Trust conveyed Lot 3, comprising 3.5+ acres, to John C. Lund and Brian R. Corey, by deed recorded in the Fall River Registry in Book L724, Page 301. This conveyance was made subject to two easements for the benefit of Lots I and 2, set forth in the deed to Lot 3 as follows:

"Subject to a vistlal easement for the benefit of Lot 1 and Lot 2 on that plan of iand hereinabove mentioned under the terms of which no structure shall be erected above nineteen (19) feet Mean Sea Level on that portion of Lot 3 directly to the west of Lot 1 and Lot 2. Excluded from the definition of structure and permitted above nineteen (19) feet Mean Sea Level shall be pilings supporting floats and piers, hvac exhausts andlor intake which shall be reasonably screened, trees, shrubbery, picnic tables and things of like nature and subject further to a twenty {2Of foot wide easement for the benefit of Lots 1 and 2 for construction and maintenance of drainage system and for construction and maintenance of a sloped, graded erosion and flood protection barrier." (Emph. added) Amended Complaint fl 11; Tr. Exh. 1
24.

On September 30, 1986 the Green River Realty Trust conveyed Lots I and 2, comprising of 7.73x acres) to the Landing at South Park, Inc., a Massachusetts business corporation, by a deed recorded in the Fall River Registry in Book 1724, Page 303. This conveyance included the rights of trnro easements over Lot 3 for the benefit of Lots 1 and 2, set forth in said deed which provided as follows:

"Appurtenant to this conveyance is the benefit of a visual easernent over a portion of Lot 3 on that plan of land

hereinabove described under the terms of which no structure shall be erected nineteen (19) feet above Mean Sea Level on that portion of Lot 3 directly to the west of Lot 1 and Lot2. Excluded from the definition of structure and permitted above nineteen (19) feet Mean Sea Level shail be pilings supporting piers and floats, hvac exhausts andf or intakes, which shall be reasonably screened, trees, shrubbery, picnic tables and things of a like nature and an easement for construction and maintenance of a public walk way bicycle path, for construction and maintenance of a drainage system and for construction and maintenance of a sloped, graded erosion and flood protection barrier." (Emph. added). Amended Complaint\ L2; Tr. Exh.2. 25.

On September 30, 1986, John C. Lund and Brian R. Corey, as owners of Lot 3, granted a perpetual view easement (the "Visual Easement") to the Landing at South Park, Inc., the then owner of the Landing property and its successors, assigns, and lessees. Said Visual Easement was recorded in the Fa1l River Registry in Book 1724, Page 306. Amended Complaint fl 13, Tr. Exh.4.
Said Visual Easement provided that the grant was "the following perpetual right and easement, in connection with the construction of 140 condominium units on the premises directly to the west of the premises herein described, which shall run with the premises as hereinafter described for a view unobstructed by any stmcture in the area 19 feet above Mean Sea Level on the premises being bounded and described as follows: A parcei of land in Fal1 River, Massachusetts, located on the rn'esterly side of Almond Street, bounded and described as foilows, running:

26.

WESTERLY:

south 59" : 53'- 55" West to the Mount Hope Bay; chance running
formerly of the King Phillip Boat Club; chance running

SOUTHWESTERLY: along the Mount Hope Bay to land now or

EASTERLY:

by land now or formerly of King Phillip Boat Club 96.44 feet; chance running described to the point of beginning as herein specified.

NORTHEASTERLY: by lot 1 and lot 2 on the plan hereinafter

Being a portion of Lot # 3 on that pian of land entitled: "Division of Land in Fall River, Massachusetts belonging to Green River Realty Trust Scale: 1" : 8O' Date: July 14, 7986, Prepared by: Site Work Associates, Inc. , 25I Bank Street, Fall River, Massachusetts", recorded with the Bristol County Fall River Registry of Deeds in Plan Book 79, Page 5O as deeded to Grantor by Instrument No. 15885 recorded with said Registry of Deeds on October 1, 1986.

Excluded from the definition of the term structure as used in this Visuai Easement and expressly permitted to occupy the area 19 feet above Mean Sea Level on the premises are pilings, supporting piers and floats, hvac exhausts andf or intakes which are reasonable screened, trees, shrubbery and picnic tables." Amended Compiaint 1l 13, Tr. Exh.4.
27.

Said legai description and the plan referenced thereto established that the vast majority of the Marina's property and all of the Marina's property that is due west (toward Mount Hope Bay) of the Landing property was subject to and burdened by the Visual Easement. Tr. Exh. 4 and 16.

28.

Both the Visual Easement contained in the deed dated September 30, 1986 recorded at Book L724, Page 301 and the Visual Easement recorded at Book 1724, Page 306 provide a view easement for the benefit of the Landing and which burdens the property of the Marina. There are, however, differences in these two easements. The Visual Easement recorded at Book 1724, Page 306 includes language which the other easement does not, that the grant of the Visual Easement is a "perpetual right and easement, in connection with the construction of 14O condominium units on the premises directly to west of the premises herein described, ..., for a view unobstructed by structure in the area 19 feet above Mean Sea Level on the premises (bounded and described)." The Visuai Easement at Book 1724, Page 306 also speci{ically describes that portion of the Marina's property which is subject to the easement. Tr. Exh. 1 and 4.
On September 30, 1986 John C. Lund and Brian R. Corey granted the Landing a perpetual twenty (20) foot wide drainage, erosion and flood protection easement (the "Erosion Control Easement") located along the entire common property line between the Landing and the Marina. Said Easement was recorded in the Fall River Registry in Book 1724,Page 327. Amended Complaint 11 15, Tr. Exh. 5.
Said Erosion Control Easement which was granted to the Landing at South Park, Inc. its successors, assigns, and lessees provides as follows:

29.

30.

"The following perpetual right and easement, in connection with the construction of a 14A condominium units on the premises immediately adjacent to the premises herein described, which shall run with the premises, as hereinafter describred, for construction and maintenance of a public walk way and bicycle path, for construction and maintenance of drainage systems and for construction and maintenance of a sloped, graded erosion and flood protection barrier, bounded and described as follows; provided, however, that this right and easement herein granted is not intended to preclude the Grantor, its successors or assigns, or others so entitled from using the premises hereby conveyed so long as such use does not interfere with the exercise of this right and easement..,' Tr,

Exh. 5.
al

Exh. 5.
32.

The location of the 2O'wide Erosion Control Easement is definitively located both by the metes and bounds description contained in the easement and by the plan attached thereto. Said 20'wide easement extends from Almond Street on the northerly end of the Landing property to the far southerly end of the Landing property near Ciub Street and extends along the entire portion of the common boundary line between the Landing and Marina properties with the 2O'wide easement extending2A'in a westerly direction toward Mount Hope Bay from said common boundary line onto the Marina property. Tr.

On July 25, L989 John C. Lund and Brian R. Corey conveyed 3.1 t acres (Lot 3) to the Defendant herein, Borden Light Marina, Inc. by deed recorded in Fall River Registry in Book 2I3O, Page 5. Tr. Exh.
9.2

DEVELOPMENT OF THE PROPERTIES

33.

In 1986, at the time of the execution of the easements at issue, the

Landing property was situated at the top of a coastal bluff overlooking Mount Hope Bay. The Marina propert5r was situated at the bottom of the bluff and adjoined Mount Hope Bay. Tr. 4:67-68.

34.

Prior to the grant of the easements, the development plan was that Marina properiy was to be developed as a Marina and the Landing property developed with the construction of a 14O condominium units. Tr. 2:97.

John C. Lund at that time rvas the President of Borden Light Marina, Inc. John C. Lund and Brian R. Corev. rvlro r.vere then larv paftners rvere the trvo shareholders of the Marina.

35.

Commencing in 1987 Keith Development, the developer of the Landing condominium compiex, began construction of the condominium cornplex. Tr. 4: 72-73, 84.

36. 37.

From Septembe r of 1987 to Augus t lgg4 the Landing condominiurn was constructed in phases to include 14O condominium units and 13 buildings plus a clubhouse and outdoor swimming pool.
The condominium buildings were constructed and, particularly, building numbers 3, 4, 5, 6, 7, 8, 10, and 1 1 near the edge of the steep coastal bank that sloped down to the Marina property. Tr. Exh. 21" The development of the Marina initially commenced primarily on the northerly end of its property. Tr. 4: 8O-81 .
.

38. 39. 40"

The Marina property has been in operation since 1989.

Since 1989 the Marina has expanded its operation by expanding its operation in a southerly direction. Tr. 3: 168.
PURPOSE OF EASEMENTS

4I.

The obvious purpose of the Visual Easement and the graded sloped easement was to a1low the potentially conflicting uses of these adjoining properties, a marina and a residential condominium complex, to co-exist in a harmonious manner. To that end the Visual Easement was granted so that the residence of the Landing would have unobstructed views of Mount Hope Bay. Tr. Exh. 4. The approximate elevation of the Landing propert5r is 19' Mean Sea Level. Tr. Exh. 21. The elevation of the Marina property is approximately 10'Mean Sea

42. 43. 44. 45"

Level. Tr. 3: 150.

By granting a Visuai Easement that prohibits the erection of any structure in excess of 19'Mean Sea Level the parties intended that the view owned by the residents of the Landing at Mount Hope Bay rn'ould not be obstructed by any structure higher than the elevation of the Landing propertv.

46.

Similarly, t]ne 2a' graced sloped easement was fashioned to preserve the natural sloped coastal bank that existed along the boundaries of these two properties and also to provide a buffer between the properties. Tr. Exh. 34- 9, 12; Tr. Exh. 5.
The coastal bank protected in the Erosion Controi Easement was to provide The Landing with an area for the construction and maintenance of a drainage system and for construction and maintenance of the sloped graded bank for erosion and flood protection barrier.
RETAINING WALLS

47.

48.

Since 1987 11988 certain retaining walls have been constructed in the vicini$ of the common boundary between the Landing's and Marina's property. Tr. 3: 120. Prior to 1999 only limited areas of retaining walls had been constructed. In 1988 the first wall was constructed toward the middle of the property and the second retaining wall at the northerly end of the property in front of buiidings 10 and 11 and then there was a small section of block wall that constructed around building 4. All of these walls were constructed around 198s 11989. The first wall was built, or expanded, by Keith Development, the developer of The Landing, exercising its rights within the sloped, graded easement. Tr. 1:104-1O5; Tr 4:83-84.
Disputes arose between the Landing and the Marina relative to the Visual Easement and Erosion Control Easement which led to the filing of this Complaint in 1999. The coastal bank at the Marina site formed the seaward face of the elevated land form on which the Landing buildings were built. and it is the land form that provides the Landing property with protection from coastal storm damage due to storm waves and elevated storm
qraters.

49.

50.

51.

c,)

In May 2000 the Marina performed substantial excavation work in the coastal bank within the 20'easement. The total length of the
bank disturbed between building 5 and the Association su'imming pool between building 6 was approximately 275 feet. Pleadings and Affidavits in support of 2000 Preliminary Injunction.

53.

Based on said excavation and other activities, the Landing filed a Motion for Preliminary Injunction in this action. This Court entered a Preliminary Injunction dated May 23,2000 which prohibited Borden

Light Marina, its offices, agents, servants, and employees from engaging in any construction within the 20'Erosion Control Easement area. Tr. Exh. 15.

54. 55.

Said action in seeking the Preliminary Injunction shows an affirmative act by the Landing to protect its rights afforded to the Erosion Control Easement and Visual Easement.

it

by

Despite the injunction, Borden Light Marina in 2OO2 erected a sheet metal pile wall. Said wall was erected in the area where the excavation had occurred and which had precipitated the injunction. Tr. 4:94.

56.

Prior to erecting the sheet metal pile wall, there were discussions between the Marina and the Landing relative to the erection of this wall. The Marina made a proposal to the Landing to erect this wall and, specifically referenced the need to modify the Preliminary Injunction. Tr. Exh. 28;Tr.4:90.
The Landing responded to this proposal with a counterproposal but said counterproposal was never executed by the Marina nor did the Marina ever obtain court approval to erect the sheet metal pile wall. Tr. Exh. 29;Tr.4: 106-107, 118. The proposal agreements only dealt with this sheet metai pile wall section. Tr. 4: 113. excavated an approximate 63O'of the coastal bank toward the southerly end of the Landing property. Said excavation work extended from an area in front of building 3 to building 6. Prior to said excavation there was a natural sloped graded erosion and flood protection barrier. An additional block wall which extended approximately 2OA l25O feet was erected in the back of building 7 toward building 6. Tr. 2:197.

57.

58.

59. In 2008 and in 2OO9 the Marina

60. Eight of the Landings condominium buildings are at least partially

situated on the westerly end of the Landing propert5r near the edge of the bank sloping dor,r'n to the Marina property. Said buildings starting on the southerllr end of the property consist of Buildings 3, 4, 5, 6,7, 8, 10, and 1 1. Tr. Exh. 21.

61.

The walls constructed by the Marina in the vicinity of the common boundary line between the Marina's property and the Landing's property and which are iocated within the 20'wide Erosion Control Easement consists of a poured concrete wall extending from the northeriy portion of the Landing property in front of building 11 and l0

extending and ending in the approximate middle of building 10. A 12'shoring wall, also referred to as a sheet metal wall, extending past buitding 10 an additional concrete retaining wall extending frorrr building 7 past building 6 and then a concrete biock wall that was constructed in 2008 andf or 2009 that extends from building 5 past buildings 4 and 3 to the far southerly end of the Landing property. Tr. E,xh. 21.
62,

All of the walls constructed extend above 19 MSL. Tr. Ex]n. 21.
The concrete block wall constructed in 2Oa812009 is approximately 20 MSL in front of building 5 and rises to in excess of 24'MSL in front of building 3. Tr. Exh. 21

63. 64.

Certain sections of the wall, particularly the walls along the far northerly portion of the Landing property, were constructed in the late 1980's at or about the time of the development of the Marina and the Landing properties. The section of wall seaward of buildings i0 and 11 was partially built by Keith Development within the 2O' graded sloped easement. These portions of the walls are not at issue in this case. Tr. 4:80-84. Prior to 7999 other than the northerly section of the wall constructed in the late 1980's and the construction of the sheet metal pile wall,

65.

the remainder and vast majority of the boundary line between the Landing and Marina properties consisted of a vegetated sloped bank which extended from the Landing property at approximately 19 MSL gradually down to approximate elevation of 1O MSL at the Marina property. II:184-188; Tr. Exh. 34-14-16.

66,

The sloped bank, particularly in front of buildings 3 through 5, was heavily vegetated and sloped from the Landing property down toward the waters edge. It served as a vertical buffer that protected the Landing buildings by providing a vegetated sloped landforrn that would have intercepted any storm waves during coastal storm events.Sterling Wall Depo Trns, pp 54-55.; Tr. Exh. 34-16.
The wal1 construction removed a volume of material from the coastai bank, bringing the top of seaward face of the landform 10' closer to the Landing Buildings, and its base 15' closer. Sterling Wall Trns, p 69-70.

67.

68.

The significance of the previousiy existing sloped coastal bank u'as that the coastal bank served to disperse wave ener5/ in a manner different from a vertical wall. Sterling Wal1, Trns p55.

l1

69.

The excavation of the coastal bank and construction of a vertical wall allows storm waves to come closer to the Landing's buildings. S Wall Trns p 63-6a.

74.

In the event of a 100 year storm event, waves will break either on the wail vertical surface, or overtop the in'all and then scour out sediment from the top of and behind the wall. Sterling Wall Trns p64-65.
The sloped vegetated coastai bank provided a seaward face that would keep storm waters further distant from the Landing Buildings as compared to the wall, and would have dissipated wave energy more effectively in both more frequent but lower intensity storms, such as 20 year and 2O year storms, as well as in the larger i00 year storm events. Sterling Wall Trn, p7O-7L.

72,

the Marina performed substantial excavation of the sloped vegetated bank in the vicinity of the Landing buildings 5 and 6. This substantial excavation was performed in the coastal bank within the 20'drainage and erosion/flood protection easement. The total length of the active work area between building 5 and the Landing swimming pool was about 45O'but abouL I75'of the bank opposite building 6 in the work area was not disturbed due to the presence of a previously built concrete retaining wall. In this area the Marina constructed a section of wall. This excavation and the erection of wall was within the 20'wide Erosion Control Easement. Affidavit of W. Sterling Wall in Support of Motion for Preliminary Injunction
2OO0

In

73.

It was based on this excavation that the Landing filed Preliminary Injunction r,r'ith this Court in 2000.

t-he Motion for

74.

On May 23,2OOA this Court (Kilborn, J.) issued a Preliminary Injunction dated May 23,2000 which enjoined Defendant, Borden Light Marina, inc. and its offices, agents, servants, and employees from certain activity including engaging in construction within the Erosion Control Easement. Tr. Exh. 15.

In 2OO2 the Marina instituted discussions with the Landing and made a proposal to add an additional 1O0'of sheet metal pile wall as a continuation of the sheet metal wail that had been constructed in 1988. Tr. Exh.28.
76.

In said proposal, the Marina acknowiedged that there was a Court issued injunction preventing it from working u'ithin the 20'Erosion Control Easement and recognized that to the extent any Agreement

t/

\ ras reached

with the Landing that said injunction would have to modified. Tr. Exh. 28.

be

77.

On October 10, 2OA2 the Landing responded to said proposal and made a counterproposal which provided that if the Counterproposal was accepted then the Landing would be agreeable to modifying the Injunction to allow this approximately 100' section of sheet metal pile wall. Tr. Exh. 29. Though this counterproposal was never agreed to and though the Injunction was never modified, the Marina in 2OO2 erected the section of sheet metal pile wall. Tr. 4: 106- 107, 118'

78.

79.

"ddition"l This court finds that the Landing's acquiescence, if any, to the erection of this 100' sheet metal pile wall in 2AA2 was based on the

understanding that there was an agreement of the parties with the further understanding that the Marina would request a modification on the Preliminary Injunction' Tr. Exhs. 28 & 29 '
The parties executed a Settiement Agreement on or about March 22, 2006. At the time of the Settlement Agreement the Marina had made an application to the Fall River zoning Board of Appeals for permission to construct a new 15 story buiiding with said proposed tuilding to be erected. north of the Landing property next to Almond Street. Tr. Exh. 39; II:183. The Settlement Agreement, if effectuated, would have resoived a number of the disputes involving the parties including the resolution of the litigation. If the Marina obtained approval of the project including the erection of the 15 story building (trigger event) then the Marina would pay to the Landing the sum of $200,000.00 and also would construct several additional sheet metal piling retaining walls at agreed upon locations, and also would be allowed to construct an way for pedestrian and vehicle traffic between building 3 and "..."" the southerly 614 of the common boundary between the Marina and Landing property. Tr. Exh. 39.

80.

In 2O06 the parties, once again, entered into settlement discussions.

8i"

82.

urithout permission erected an approximate 2OA l25O' block wa1l extending from the back of building 7 going south toward building 6' Tr.2: 197.
Said construction included the excavation of the coastal bank and the erection of this conci'ete block wall. The Marina never asked for

In 2006, prior to the accomplishment of the trigger event, the Marina,

83.

t3

any permission nor was it granted any permission to erect said wall Tr. 1:66.
84.

Prior to the construction, John Lund told Bert Bouffard, the then Chairman of the Board that the area was his and he could do what he wanted and that he was actually doing the Landing a favor and that if the Landing ciid not go aiong the Marina would take apart the pool wall and just take everything out. Tr. l: 67 .

85.

In 20A6 the Landing was not represented by counsel in the litigation and was not aware of the issues involved in the litigation including the Preliminary Injunction issued by the Court in 2000 Tr.2: I92193.

96

The Landing did not object to the excavation and wali construction in 2006 because of its members of the Trustees' lack of knowledge relative to its rights involving the easements and the Land Court litigation, and because the parties had entered into a Settlement Agreement in 2006 and the Landing was attempting to live harmoniously with the Marina. Tt- 2:193.

87.

The trigger event never occurred and the Settlement Agreement expired under its own terms' Tr. Exh' 39; Tr. 2:L94,197.

88.

In

Marina then began additional construction on the southeriy end of the Landing property. Charles Schnitzlein, the then Chairman of the Landing Board first noticed the construction one morning when he woke up and a construction company hired by the Marina was performing excavation work near the southerly portion of the Landing property and was excavating out the Landing's guest parking iot. Not only had the Landing not authorized this excavation, it had not even been informed in any way that this construction work was going to be occurring. Tr. 2:198.
2OO8 the

89.

The construction that took place in 2008 and 2009 included the excavation of the coastal bank on the southerly end of the Landing property and particularly near the boundary of the King Phiilip Boat Club in which a roadwav for vehicular traffic was erected down to the Marina property and t approximately 630' of coastal bank in front of buildings 3, 4, and 5 was excavated. Said excavation was in excess of one-third. t',t'l of the length of the easement area. Tr' Exh' 5'

90.

Prior to the construction, the area r'l'est of buildings 3, 4, and 5 included a sloped vegetated graded bank that extended down torn'ard the water. After the excavation the sioped graded bank was

t4

eliminated and a concrete block wall was constructed. Tr. 2: 2O5208.

9t.
92.

This sloped graded vegetated bank provided erosion and flood control protection to the Landing. Tr.2:2O6-2O8.

In addition, the sloped vegetated bank also provided natural drainage coming off the property down into the Bay and also contained a drainage system with pipes that went into catch basins and provided a location for a portion of the Landing's drainage system. Tr. 2: 2A6.
The excavation by BLM ripped out the Landing's drainage pipes and portions of the drainage system ceased to exist. Tr. 2: 206-207.

93.

94.

During the excavation process the Marina trespassed onto the Landing property and excavated a portion of its property and most of the 20'wide Erosion Control Easement. Tr. 2:2O8.

oq

In some places all of the twenty foot easement was excavated. Tr.
206-207.

2:

96.

After the excavation and wall construction, the Landing could make no use of the easement. Tr. 2: 2O8. After the construction commenced in 2008 the Landing took numerous steps to express its concerns. In May 2008 members of the Board of the Landing met with Michael Lund, the then President of the Marina, and expressed their objections and concerns. Tr. 1: 72. The Board, through its Chairman, made complaints to the Building inspector, the Mayor's office, the Plumbing Inspector, members of the Conservation Commission, and also to DEP. Tr.1:
102- 108.

97.

98.

While the building inspector acknowledged that the walls were constructed withJut a permit, the building inspector refused to take any action until the Landing had the propert5r surveyed. Based on the direction of the building inspector, the Landing had Mount Hope Engineering perform a survey of its property. Tr- 1:1O5, 109.
The Landing then contacted and hired Attorney Matthew Watsky, who investigated the situation in 2OO9 and determined that the Land Court litigation was still active and that the Preliminary Injunction issued in 2000 remained in full force and effect. Tr. 1: 109. Prior to obtaining said information from Attorney Watsky in 2009 ths f2nclino was not aware that the Preliminary Injunction was in effect. Tr. 1: 110. Until the Landing obtained the information from Attorney
t5

99.

Watsky, it did not know its rights relative to the Land Court litigation and its easements. Tr. 1: 146'

100. In contrast, the Marina

101

was weli aware of the pending litigation and

the terms of the iniunction'

The actions of the Marina in excavating the coastal bank within the Erosion Control Easement and erecting the concrete block wall were consistent with its actions through the years. The Marina has done whatever they pleased without asking the Landing for permission and in disregard of any 1egal impediments' Tr' 2: 2Ol '

LO2. The Marina aiso knowingly misrepresented its rights relative to the Landing propertjr. As an example, in 2OO2 John Lund, then president of BLM, told Bert Boufford, who later became Chairman of the Landing Board, that the Landing pool was on the Marina's property u.nd that the Landing better go along with the Marina's pt.tt*. John Lund also lied when in 2OO2 he told Mr. Boufford that lhe Marina had won the lawsuit against the Landing- Tr. 1: 55-56. 1O3" The Landing made numerous complaints to various governmental agencies u.nd the City of Fall River basically ignored its complaints' Tr. 2:2O2. Said attitude is hardly surprising given the fact that Michael Lund was then a member of the Fall River City Counsel and is now the President of the City Counsel and that John Lund, a well known attorney in Fall River, had known the building inspector in excess of twenty-five (25) years. Tt' 2: 2O2; Tr' 4: l2O'

lO+. After iearning through counsel of the Preliminary Injunction the

Landing promptly brought the matter to the attention of the Court by fiiing a Complaint for Contempt. The Complaint for Contempt was filed on May 17,2OlA.
DIFFICULTIES INVOLVING 2OO8 WALL CONSTRUCTION
/ 2OO9

105. BLM obtained no building permits prior to the constnrction of any of

the retaining u,alls constructed from 2000 through permits were required' Tr' 4: 177-718'
2OO9

though

106. The wall constructed in in'all. Tr. 1'. L72.

IAT

20Og l2OOg is a segmental concrete block

While in the past, such as in 2AO2, there had been some discussion between the Landing and the Marina prior to constructing sections of

It)

\ /all, there were no such discussions after Michael Lund became President of the Marina tn 2OO7. Tr. 4: L16'

l08. In constructing

the rvall, the Marina did not hire any structural engineer or any other expert to dsign or provide engineering monitoring of the construction of the wall. Tr. 4: 133. practices and the wal1 is unstable and over a period of time will fall. Tr. 1:181.

109. The wall was not constructed in accordance with proper engineering

110. Based on meastlrements, Donaid Leffert, a structural

engineer determined that the wall has already moved laterally further verifying the lack of its stabiliW. Tr. 1:784'

11

l.

Based on test pits, Donald Leffert determined that there was, at the most, 2' of geo-fabric extending into the soil and this amount was not adequate . Tt. 2: 5O-51. based on the amount of geo-grid purchased by the Marina, there was not a sufficient quantity of geo-grid to fulfill the stability requirements and, in fact, mathematically, the amount purchased would only provide a little over 3' of material per layer for the entire wali and only I' of fabric into the soil. The actual amount of geo-fabric required in order to provide stability to this retaining *rall *ould require 7-9' in iength in per block. Tr.2: 53-54'

I12. In addition,

113. With the inadequate amount of geo-fabric there is not enough

stability to maintain a stable siope for the wall and the wall will become progressively more unstable, the soil will continue to fill, and there will be settlement of the soil until there comes a point when the wal1 is totallv unstable, will faii and fall over. Tr. 2: 55.
constructed since 1990 the excavation and wall construction in 2OO8l20O9 was in close proximity to the Landing buildings.

II4. In contrast to other walls

115. The southerly end of building 3 is only 9' to the face of the wall. Tr'
1: 19O-191;Tr. Exh.21.

i 16" The wall on the southerly end of building 3 is located on the property of the Landing. Tr- 1: 191.

II7.

The southwest corners of buildings 4 and 5 are only 9' from the retaining wall' Tr' 1: 192'

1'l tl

i8.

Other than the portion of the wall that was erected on the Landing properry, the remaining portions of the wall are all located within the Erosion Control Easement. Tr' i: 193' by the Marina are located within the Erosion Control Easement, other than those that are built on and trespassing on the Landing's property' Tr' 1: 195'

lg. All of the walls constructed

L2O. Block retaining walls are required to be part of a fuliy engineered system. A retaining wall of 10 feet in height according to the Massachusetts Building Code is required to have an engineered design by a registered professional engineer, civil engineer, or structural engineer, or a geotechnical engineer. Tr" 2: 130, 131.

121. The concrete block wall constructed by the Marina was not in accordance with an engineered plan and no plan was drawn prior to the erection of said wall. Because of the Marina's failure to have a

properly engineered and constructed wall, the wal1 has already moved tft" blocks have become misplaced and misaligned- A properly "na designed wall would not have the type of misaligned blocks that have been observed. Tr.2: l3I-132.

122. The Massachusetts State Building code,

$ 1806.4 for retaining wali design states: "Retaining walls that support unbalanced height of retaining material greater than six feet in any retaining system or slope that could impact public safety or the stability of an adjacent structure shall be designed by a registered design professional." Tr.2:L33. Don Leffertleffert, a registered professional engineer retained by the Landing, and James Holmes, an engineer retained by the Landing's insurer, opined that the wall was not properly built. In particular, blocks were misaligned, and there was an inadequate amount of geo-grid installed in order to support the wall. Geo-grid is a type of structural fabric that is essential for a properly engineered concrete block wall to have adequate support
7thrE,d.,
"

Tr.2:

136.

I23.

Based on the improper and faulty construction of the wali, both Don Leffert and James Holmes concluded that the wall must be removed and replaced u'ith a properly constructed wali or that the hillside be brought back to its original condition. Leffert conciuded the restoration of the sloped, graded vegetated condition was feasible and the preferable remedy. Tr' 2: 139; Tr' 7:2O1'

124. in contrast to the testimony of two expert witnesses calied by the

Landing, the Marina did not call any expert rn'itness to testify as to the structural integrity of the wa1l. As part of the records of the Fall
18

River Building inspector there is correspondence dated April 22,2OIA from the Marina's engineer, Robert A. Guay, who acknowledged that "[t]he section of wal1 between station 40 and 8O is higher-than the existing design of the wal1 will allow and there is no geo-fabric at each level of block. The wall in this section will have to be taken down...' Tr. Exh. 22.

725. Given the restrictions on the site, such

as the wall's close proximity to the property lines of the Landing, a conventional type retaining wall cannot be constructed without going onto the Landing property line, and as such, the only way to rectify the problem would be to restore the entire si.te back to its original grades. Tr. I : 2AL.
be

126. Also under the State Code, during construction there would

controlled construction procedures in which the engineer would have to provide onsite services to observe the construction of the wail to make sure it conforms to the plans and specifications that were laid out by the engineer' Tr. 1 : 2O9 '
as such, is not sloped'

727. The wall constructed is vertical and,

209.

Tr'

1:

12g. The existing wall was determined to be unstable and over time will fail to stay vertical which wiLl cause a gradual loss of soil from the Land.ing's property into and toward the Mount Hope Bay" Tr- 1: 181'

l2g.

Relative to flood control, based on the vertical surface of the wall and und.er wave loads from hurricane forces, the waves wiil be very damaging to thi.s wall and the waves could break over the wall and cause serious erosi.on behind it. In the event that the wall were to faii the breaking of the waves would be occurring closer to the buildings and the *.ne" will continue to go into the embankment and possibly damage the buildings- Tr- 1: 182- 183'

130. In order to restore stability to the slope and provide erosion control

and flood protection, it was Donald Leffert's opinion that the logical and best alternative would be to restore the embankment as it was originally. Tr- 2:46.
VIOLATION OF EASEMENTS

131. From an engineering perspective, a slope/graded erosion control

and graded materiai that has a slope flood protection barrieruvouid be of to it any.where from 1" to 89". Relative to the Erosion Control Easement which provides for the construction and maintenance of sioped graded erosion control and flood protection barrier, the
I r-l

common usage of the terms sloped and graded, and the clear intent was to have a natural graded bank and not a concrete block wali. The slope was graded soon after the Landing buildings and BLM wete hrst developed in the late 1980s, and the slope is visible in the photographs. Tr.2: 48.

I32.

From an engineering perspective the natural vegetated bank that existed prior to the excavation and erection of the wa1l, constituted sloped and graded area. Tr. 2: 49.

133. The wa}] as constructed would not provide adequate flood protection and with the wall not being stable there will be a serious erosion problem within the material behind the wall' Tr' 2:56'
134. The prior existing naturaL vegetated bank was consistent with the term graded. slope as contained in the Easement. Tr. 2: 58. 13S. The benefit to a sloped surface such as the natural coastal bank
absorbed by the material itself. Tr' 2: 59'
versu.s a vertical retaining wall is that a large amount of the wave force can be d.issipated as it travels along the sloped surface and

136. The Marina's purpose in excavating the coastal bank and in instaliing
retaining walls was to expand its base of operations. The Marina is a full service marina which was initially developed along the northerly end of the property. As an all purpose marina it also provides its customers with winter boat storage- Tr. 4: 68'

I3T.

The winter storage operalion of the Marina includes hauling the boats out of the water and placing them in a location for winter storage. This part of the process cornmences in early October until December- In March through June many, though not all of the boats are then removed from winter storage and placed back in the water. Tr. 3: 747-I5O.

13g" Since

installed a Marine Travel Lift, which is a straddle-hoist crane to move the boats. Tr. 3: 136-137.
20OO the Marina has

139. The Marina's operation has expanded dramatically since the commencement of its operation in 1988. Initially the Marina had

approximately 70 slips and stored approximately 25 boats on land. The Marina has now expanded to 2601270 slips and as the Marina has expanded so has the winter storage. Initially, the boats were stored on the northerly end of the property. As the Marina has excavated portions of the coastai bank and erected walls, it has expanded the amount and location of its winter storage. During the
20

\^,inter storage period of October 2AO9 through June 2AIO the boats have been *6r.a on ali available land including in the vicinity of the

retaining walls' Tr. 3: 138-14O,I48'

I4O. The expansion of the Marina's winter storage operation has progressively intrud,ed on and impacted the Landing. The lift that is utilized rs 22'high. Where the Marina's property is level with elevation 10 MSL, the travel lift extends approximately 12' over the 19' MSL provided for in the visual Easement. Tr. 3: 15O.
on 14I. When the boats are stored in winter storage they are placed Tr' Exh. l: 78,

stanchions with their hull located off the ground. Tr. 31 M, N, and T'

142. The area utilized by the Marina for winter storage after the completion of the wall in 2OO9 was dramatically different than the areas previously used for winter storage by the Marina; the boats had been stored on the water side and not in ciose proximity to the buildings. Tr. l:77-78. With the new storage, the boats are larger

and have been placed directly against the constructed retaining wall and in close proximity to the buildings. Tr. 1 : 79; Tr- Exh. 32 G, H, I, and J.

143. The stored boats are often shrink-wrapped with a non-transparent material which further obstrrrcts the view from the Landing property' Tr. Exh. 32.

I44. The elevation of the wall constructed in the vicinity

of buildings 3 through 5 ranges from approximatgly 2^O'.- 24" MSL' The boats that are stored theie far exceed the height of the wall and all extend beyond 19' MSL' Tr. Exhs' 21,32 X, Y, Z' AA'U'

145. The stored boats on stanchions, the concrete biock retaining wall, the and the travel lift, all constitute structures within the meaning of Visual Easement. Tr' trxh' 4'
146. The purpose of the visual Easement was to provide residents of the lanamg with unobstructed vieu's of the water, Mount Hope Bay'
the travel I47 . The storage of these large boats and the utilization of

lift

obstructtheviewoftheresidentsoftheLanding.

148. At the time of the grant of the Visual Easement, the Marina planned to store boats on its property' Tr' 4:68'

a1

LI

l4g. While other objects

such as trees and picnic tables were excluded from the definition of structure the Marina did not exclude boats from the definition of structure, though it certainly could have done so. Tr. Exh. 5'

150. Mount Hope Engineering is an engineering firm that has

been

retained at various times by both the Landing and the Marina'

Hope Engineering, initiaity indicated that certain sections of the balconies on building 11 may encroach up to 2.3'. Tr. 3: 72-73.

151. A plan dated october 29, Iggg prepared for the Landing by-l\4ount

L52. Mount Hope Engineering was retained by the Landing in 2009 specifically to do a survey of the property' Tr' 1:

153. Mount Hope Engineering, based on the survey that was done in 2009

determined thainone of building 1O encroached on the Marina property and that an air conditioning pad on building 11 also does not encroach. Tr. Exh. 21. When Mount Hope Engineering performed their survey in 200O they instailed monuments with a drill hole every 200' and every change of direction. No such permanent monumentation was utilized in the 1999 survey' Tr' 3: 80-8i.

154. The compiete survey performed in 2oa9 with permanent

monumentations did not reveal any encroachments of the Landing's buildings reiative to the Marina property. Tr' 3: 83, 88; Tr' Exh' 43'
CONTEMPT

155. The preliminary injunction dated May 23,2OOO was a clear an

unequivocal order'

156. At the time of the issuance of said injunction the Marina

was

represented by Attorney Edward Brennan and the Marina remained continuously iepresented by Attorney Brennan thereafter- Tr. 4: IO4"
a clear order and that he at all times that he understood the order.

lST. John Lund testified and admitted that the preliminary injunction was
Tr.4: IO4'
158. The Marina understood and acknorn'ledged that the injunction
prohibited any construction work from being performed ivithin the iwenty foot easement area and that the Marina, in direct violation of

22

the injunction, performed construction work within the twenty foot easement area. Tr.4: 1O4.

159. John Lund is a graduate of Boston University School of Law, has

been a practicing attorney, and also an assistant clerk at the Bristol Superior Court in which he was involved with civil matters including the issuance of iniunctions. Tr.4: 105-106.

160.

He understood that injunctions issued by the court are in force and in effect unless they are modified by the court and was aware that he could have requested through his attorney that the Court, at any time from 2000 to the present modify or dissolve the injunction but did not do so. Tr. 4: 106.

161. The Marina, by excavating the coastal bank and erecting walls all within the twenty foot erosion controi easement committed a direct
and willfui violation of the preliminary injunction issued in 2000.
LACHES

162. The Marina blatantly violated the 2000 Preliminary Injunction issued by this Court in performing construction work within the twenty foot
easement area and in erecting wails tn 2AO2, 2A06, and most

significantly in

2AOB I2OO9.

163. The Marina performed excavations

approval from DEP.

of a coastal bank without required

164. Though building permits were required, the walls constructed by the Marina in 2AA2, 2AA6, and in 2OO8/2OO9 were constructed without
obtaining a building permit from the City of Fall River.

165. The Marina consistently bullied the members of the Board of the

Landing by making untrue threats; such as, claiming that the pool area was the property of the Marina and that if the Landing did not go along with the Marina's plans that it would lose its pool area.
State Building Code to engineer the walls constructed.

166. The Marina failed to retain a structural engineer as required by the

167. Based on these and other actions, the Marina had unclean hands
and is not able to avail itself of the equitable defense of laches.

168. The Landing did not delay in bringing suit in this

Land Court case has been pending since 1999 '

case given that the

/)

a L6g. when the Marina excavated a portion of the coastal bank to erect the to retaining wall in 2000 the Landing promptly brought this issue the court's attention and as a result thereof this court issued Preliminary Injunction in May of 2000'

vA. ,
171

inactivily The Marina cannot compiain that it was prejudiced by any its actions of the Landing in that the Marina at all times knew that 2000 and were in violation of the Preliminary Injunction dated May, attention was well aware that it could have trought this issue to the

oftheCourtbymovingtomodifytheinjunction.

risk not to The Marina made a purposeful decision and a calculated it would be seek a modification of a-preliminary injunction so that significant able to expand. its storage operations and realize a economic advantage'

effect and that the 172. Given that there was a preliminary injunction inthe coastal bank and Marina at all times knew that any excavation of order' it construction of retaining walls was a violation of the court
of the could not possibly establish any alleged prejudicial delay Landing.

any economic L73. The Marina has failed to establish that it suffered storage of boats prejudice in that it has received income from the

in within the newly excavated areas and has realized income far the walls' excess of any costs incurred to excavate and build

I74.

prejudice given The Marina has failed to meets its burden to establish that the that it has presented no evidence to the court to establish and storage rees it has earned are less than the cost of construction the coastal the anticipated cost to remediate the violation by restoring bank'

aA LA

have acted 175. The Marina failed to present any evidence that it would and bank

differently and would not have excavated the coastai the Landing' erected the walls absent any actions or inactions of

RespectfullY submitted, Landing at South Park Condominium Assn'' Plaintiff, By their AttorneYs,
LAW OFFICE OF DANIEL R. SEIGENBERG

ApriI29. 2OlI
Date:

{rA^./ {
Daniel R. Seieefiberg, 2 Commercial Street Sharon, MA 02067 (781) 884-8800 BBO # 451100

Matthew WatskY, Esqu 30 Eastbrook Road, Suite 3O1 Dedham, Massachusetts 02A26 (7S1) 329-s009 BBO # 546308

?5