Vol-ume: IV

Pages

711-

COMMONWEALTH OF MASSACHUSETTS

BRTSTOL, SS.

2 3

LAND COURT DEPARTMENT OF THE TRIAL COURT MISC. CASE NO. 254067

4 **************t<** 5
6

THE LANDING

SOUTH PARK CONDOMTNIUM ASSOCIATION

At

Before:

Cutler, J.

7 8 9
1.0

Plai-ntif f

BORDEN LIGHT MARINA, INC.

11
r;t-

Defendant

'*ra

12
13
1,4

******************

15 16

17 18 19 20

Wednesday, January
2'1,

L9, 20II
02L]-0

Courtroom
Roston
t

1102

?2
23 24

3 Pemberton Square - Massachusetts

rrsvvs\

.. -

-:-. ;'

..'

.. '''*i:.,
",::11

KAREN SMITH
Court Reportr

i.*t:-i; i,':. .Y,"1 ''....,. j r".' i::i:r

''4i"., -s*'

'f. ; ..i;:

14 Palmer Avenue

\L1

,/i-.".

Danvers, Massachusetts

923

e;

Li

i-*

(978) 777-s802
Fax 1rs; zzz-srot

APPEARANCES:

DANIEL

MATTHBW WATSKY, ESQ.

R.

SEIGENBERG, ESQ.

2 Commercial Street
(781) 784-8800

Sharon, Massachusetts

02067

Representing the Plaintiff

EDMUND BRENNAN, BSQ.

Brennan, Recupero

P.O. Box 488 Taunton, Massachusetts

(s0B) 822-0L18
Ronraqanf inrr
j-

1 Church

Green

02180

hc ncfoncl6nl

''t

.";i

INDEX
WITNESS:
PETER ROSEN

DIRECT

CROSS

REDIRECT

RECROSS

(By Mr (By Mr

P,ronn:n
[n]:
r! s

40 50

I
e

v.Lj

krr

\
/

JOHN

COLLINS
Mr Mr

LUND
\
\

(By (By

Rrann:n

63
Y /

r42
103
158

Qo i aanl-rarn vrrvv!

L70
1
2
3

that the defendant not benefit in a monetary way by

being able to use the area that was cleared.
MR. BRENNAN: So,

I will file that,

week.

Your

4
5

Honor. And you want that withln

THE COURT:

Within a

MR. BRENNAN: The next week.

7
8 9
1_0

THE COURT:

Yes. And again, I want a

good
so

faith estimate of time and rational-e behind it, that I can make a reasoned decisi-on on this.
consider the factors involved
MR. BRENNAN: Thank
THE COURT: Thank

I don't

want to reject it out of hand. I want to be able to

11

t2
i

you, Judge.

13

you. The court's

l4

adj ourned.

(Hearing concluded at 3:15 p.m.)

L71,

COMMONWEALTH

OF MASSACHUSETTS

I, Karen V. Smith, Professional Court Reporter and Notary Public in and for the Commonwealth of
Maqqrnhrr<afl-q D^-^^ rd9
/

rlo rIE!gVJ hcrclrrz vU! Ur!y frr that U tha r-cr1_i LlIq ull9
UV

!v!uYvrrrY

forarrninrr

!vvv!st

rcr-r,rd-

1 f ^ 1?n

i nnl rrqi rza

iS a tfUe

and aCCUfate

transcript of my syst.em tapes to the best of my knowledge' skill- and ability.

I am not connected by blood or marriage with any of the said parties, nor interested directly or indirectly i,n the matter in controversV.
TN VIITNESS WHEREOF,

f have hereunto set my hand

and Notary SeaI this 22nd day of Februaryt 2011.

KAREN V. SMITH, Notary Public Mrz Comm'i ss'i on exni res: 1O /78/2013 r rl

PLEASE NOTE: THE FOREGOING CERTIFICATION OF THIS TRJAI{SCRIPT DOES NOT APPLY TO ATiIY REPRODUCTION OF THE SAME BY ATiIY MEANS UNLESS T'IIDER TIIE DIRECT CONTROL A}IDIOR DIRECTION OF THE CERTIFYING REPORTER.

1
z 3

PROCEEDINGS

COURT

CLERK: Wednesday, January 79, 201L,

miscell-aneous case number 254061, The Landing at South Park Condominium Association versus Borden
Lf dnr tvttrt na

4
5

THE COURT: Good

morning. Welcome back.

and --

This is the start of our third dav of trial

MR. BRENNAN: Dav four.
9

THE COURT:

Four' sorry. That's right.

10 11

And I think we had been about to begin cross

examination of the defendant's expert.

MR. BRENNAN:
THE COURT:
i n nl a:qa?

l2
13 14 15 L6 L7 18 L9

That's correct.
him

Okay. And would you call

MR. BRENNAN: Peter Rosen

is my witness

and

startinq cross examinati-on.

THE COURT: And

You're alreadY sworn,

Mr

Rnqon r\vuvrrt

sr^l _Yv* - rv rzrrrr'rF sti I I under oath.

MR. WATSKY: Good morning, Your Honor, and

happy new year.

21,

THE COURT: Good

morning. Happy new year.

PETER ROSEN

22

Cross Examination of
(By Mr. Watsky:
)

z5
z+

Doctor Rosen, I'11 ask you first

some questions with

1
2 3 4 5 6 7
tt

regard to the coastal engineering structure.

Are you

familiar with the regulations of the

CMR10.30,

DPN 310

that's the wetland regulations governing

coastal banks? A O
Yes, I
am.

Could you t.urn to exhibit 23? The first

page there
page

is L0.02, I believe it is about the fourteenth coastal bank." Have vou found that? A O
Yes, I have.
On

in that we get to a page that's entitled, *10.30,

10 11 L2
13

the second page of that section, subparagraph 3,

be

it says, "No new bulkhead revetment seawall, groin or other coastal engineering structures shal-lncrmiffecl- et cefera- et cetera."
vv evrs t

l4
15 16 L7
18

I want to focus

now

just on what we mean by bulkhead revetment or

me

seawall. Could you give

what a bulkhead is?

your understanding of

A O A O A

A bulkhead is a structure that supports land behind

Lt.

I9
20
21,

Would a bulkhead typically be vertical- or at a sloped

angle?

22

The bulkhead can be either.

z5
24

It can be either.

How

about a seawall?

A seawall is often seaward in the water, and it's

1
2
3 4 5 6 7

main purpose is to break waves approachlng fand.

O A O A 0 A

Woul-d

a seawall typically be sloped or close to

Most typically they're sloped.

vertical?
They can be either.

A seawall is typically sloped, sir?

Common

event.

How

about a revetment?
a

A revetment's similar to a bulkhead. It is

structure against land to di-ssipate wave activity

1n

against it. O
A

11 72
13

And a revetment is typically

\/orrr nfl-r

sloped, is it not?

-- -3n,

YS.
a

Is a revetment really -- for something to call-ed

I4
15 16

revetment, isn't it true that it would be a sloped

structure, wouldn't it, sir? A O A a I can't sav that for sure.

What would be

t7
l_B

a typical angle that you would find in

a revetment?
There is no typical angle. Typically, one-to-one or
qf aana r

19 20

2t
22 23
z+.

Would you agree, sir, that there's a state policy

that would express a preference to have a vegetated

erosion protection for coastal banks as opposed to
structures
?

'j

1 2
3

My understanding is that there's a policy for when

coastal bank is determined to be a sediment source. 0

A A

Are you familiar wi-th the coastal zone management

office Yes, I in Massachusetts?
am.

4
5

Are you familiar

with the coastal zone manaqement

7 8 9

policies

A O

In general, ys. I'm going to read you a statement from chapter 4 of the coastal zone management program policy. alternatives." Tt says'
"Coastal enqineerinq structures versus non-structural

10 11 12 13 L4 l-5 16 L7
l_B

It says, "non-structural alternative

approaches to coastal hazards reduction are preferred

over structural alternatives. " Do you agree or

disagree with that statement, sir?

It isn't a black or white situation.

agree with that.

Often I'I1

There are cases particular to

developed shorelines where I don't agree.

t9
20

Do you agree

that the coastal bank in this area in

a

front of

seaward of The Landing was not

2t
22 23
\ I

significant source of sediment to the shoreline prior to any work by Borden Light Marina; correct? A O That's my understanding, ys.
And thus, it was not a coastal bank that was subject

24

1
2
3

to significant erosion; is that correct? A O

You're saying it doesn't follow the previous
statement.

4 5
6 7 8

No, sir.

It was not a significant source of

a

sediment. Do you agree that there was not coastal A

bank?

significant amount of sediment coming off of this I don't know if it was determined to be not
a

significant source of sediment because there was no beach. Another second coastal- engineering structure at seaward taking place. O A
What photographs

10 11

from the photographs I saw, even though

I2
13 L4
1-5 1,6 1,7

it was veqetated it looked like there was a eroslon did you actually look at?
phot.ographs

I can't specify specifically but the

showlng the bank, the landward coastal bank prior to

the construction of engineering structures. O

Could you look j-n the exhibit book and tell
me

18
t_9

whet.her you see the specific photograph that you

20

referred to. A O A O
Can you guide me

2t
22 23 z+

or should I just start looking? to look?

comments

Pardon

me?

Can you guide me where

WelI, I don't know what photographs you're

1
2 3

I believe that the photographs that Borden Light Marina has submitted into the record are exhibit
and there are quite a few of them.
34,

4
5

(Witness reviewing photographs. )

I see an exhibit

labeled a A O A

1998.

Each of the photographs has a number on the page?

Number L4.

Do you have

it?
came

This was the photograph that

asked the question.

to mind when you

t0
11 L2 13

There are other photographs that

show the bank, such as number 15.

O \l
!!

Tf Jvu !c fUUNIrlg nrr for voltt re I nnki !U!

nhnf ocrranhq IJrlvLvVIqyrlJ

J_ LlloL

L-+

yvu

Isuqf

-^^^r

specifical-Iy

being shown in the legend showing

I4
15 16
3.7

erosion takinq place. A I believe it's the photo that show the coastal banks

prior to the construction of the upper structure. O A O

Are there any others that you recal-I seeing?
Number

18 L9 20
2L

L9, number

31.

Sir, tell me, do you know where, relative to the various buildings to The Landing
is? vanlage number
14

22 23 24

A
n V

I can't say.
AIf(l

^-l

L:dlI

\/or sa\/-t oql Jvu

rvv\+.r:,

lookino

et nttmher t n Lat

"L-L WllctL

f dL(j

-^^!^ of

erosion might have been occurring on that coastal

10

bank to the extent

2
3

do you see specific areas where

there's active erosion taking place on the coastal

bank depicted in number
L4?

4 5 6
7 8 9

I do not see specific erosion on 14, definitively

far
!s! r rYrr

the
I

ri oht-hand corner is SLrsner:f -

Tf

.l

ooks like

see bare so1l there, and then the col-or is not cl-ear.
Once

again, looking at number 14, assuming that rights under

an

The

Landing were to exercise it's

easements and maintain vegetation there.

Can you say

10

at what rate the coastal bank will recede in inches

nr feef ner J rrear? -v"MR. BRENNAN: Objection, Your Honor, to the

11
L2 13 L4 15

form of the question as to "The Landing exercising

1Lhair LrrEf! r.irrhfs.r, !ryrrLD. mL^!r^ > ,,1.-,.,,^t-^ !g wlry wg IIIctL l-^-^ trErYt j_s to I

determine that..
THE
COURT:

t6
1,7

Sustained. Ask the question

different

way.

18 L9 20 2T 22 23 24 A
O

Sir, if the vegetation were maintained along this

bank, would you anticj-pate a significant rate of
erosion?

OnIy during the coastal storms

How

often would a coastal storm cause erosion?

A coastal storm would reach t.he bank on an order of every ten to a hundred years.

11
1
2
3

n \z

I'rrorrz f a;1 tO a hUndfed.

Isn't it true that it is a verv

coinmon

practice j-n the state that with a vegietated coasta]

bank to just re-vegetate an area if there is
some

4
5
A

erosion that's taken place during a storm?

Havrns come out of a series of coastal storms this

7 8 9

wi-nter, I find
done, fill

many cases where engineering has

to

be

has to be added, a grading has to be

done

prior to re-vegetation. I've also seen structures this season where people give up on the coastal
and are buildinq hard structures.
n )z
Rrr{_
jvu!

10 11

banks

l2
13

vn,rr referrino

f o afeas Whefe

Stfike

that.

There are areas where there are hiqh very hiqh energy waves comlng to shore, and there are areas that are somewhat more protected; correct? A O That's correct.
And you previously testified

l4
l_5

16

t7
18

that thj-s is an area

a

where it's
maximum
-1

not open ocean, but we could have

qJ-rrrm: ev!rrl/ rirrhf?

L9 20

of six to six-and-a-half high waves during

u

OO-rza:r

2t
22 z5 24

A 0

That's correct.
bank; correct

It/s a V zone. or prior t.o the construction

by

ft is a V zone, but it is an area that has vegetated

Borden Light Marj-na it had vegetated banks; correct?

l_

Correct.
av

2
3

Qn f

!!

'i f' r^ra qruurllu -aqqrrmo / wu

anc'l jr.zr-lrr/ rF vu
qrru

,an eynorf ez:t/e!

v t

- Tt'l I

oi rre voll J -"

a hypothetical.

If we assume that The Landing were

a

4 5
6

to re-vegetate any area that was affected during

recession or erosion of this coastal bank?

coastaf storm, woul-d you anticipate any significant Let area, rf

--f
-l

7
U

me rephrase

it.

fn an area like this,

and

with the wave enerqy you would expect to see in this

someone were

to maintain the vegetation

10 11

maint.ain the bank with that vegetation, would you

caIILIL.TPOLg ^-i

- si oni f receSSiOn Or erOSiOn Of the ^-{-^ A O!Yrrr!ruqllL i r:ant !\

t2
13 74 15 A
O

coastaf bank over time?

Flrrr-i nn USLLLLY nnrq1_ al qf rrrmq
I

\/Aq Jve.

And then following a coastal storm, let's

assume that.
a

there's

some amount

of erosion that happened during

assume

t6

particular coastal storm. Now, Iet's

someone had

that

l7
1B

restored, repalred the area of vegetation

thereafter.
For erosion on a steep sloped bank like t.his often takes the form of creating gullies.
Once you form

t9
20

2L

gullies on the bank, water in the future is directed in one area, and so there's a greater tendency for
erosion to take place. So, vegetation alone can't necessarily maintain a bank once erosion has taken

zz
23 24

13
1
2 3

pl-ace.

That kind of gully can happen with a wall-, ds wel}, can it not?

4
5

A O

I don't understand the question.

Give me a moment. I think we'Il come back to that
because I'm not seeing the photograph.

7
Pg!rrrf

Sir, did you familiarize yourself with the

norm'i f sr LD:
nrg ^

i ^-rrr t/e!rrl!LJ -^ #l.^-^ crIrJ nermi ts !JJssued in this \-IIELE

case?

A O

I'm generally familiar with the permits. The chapter

97 plans come to mind.
Would you agree that any work done on a coastal bank

10 11
3.2 t_J

would require a val-id wetlands permit issued under

nh:ntar
1

31 - se.r:t'i on 40?

L4

If it's
-i nJ_

determined to be a coastal bank, a notice of

q r q ronrr i rorl \zae

15 L6
1,7

ani. _vnrn-oq "

You expressed an opinion that the area, the slope

lying between The Landing and Borden Liqht Marina a coastal bank; correct? A O A O
Yes.

1s

18

t9
20

So, the work on that coastaf bank would require

wet.lands permits that are in place and val-id?
Yes.

2I
22
23

And it's

your understanding, is it not, that wetlands

z+
J

permits are valid for three years; is that correct?

L4
1
2 3 4 5

A O

Yes.

Let

me

point you to exhibit 13. That appears, dt

l-east from the l-ist of exhibits, to be the most

currentlv issued order of conditions from the

wetl-ands logs to Borden Light Marina; correct?

A
7
X

If you told

me

so, yes.

Well, do you see any other wetlands orders of conditions on the exhibit l-ist that are more current?
MR. BRENNAN: ncod IrgY\r

I think the witness would

-- Of the

10 11
1,2

dn yvLr lldvu d ,-\JtJy Of the witness uu \/nr, r---.^ - ^^^,,

exhibit Iist?
THE WITNESS:

Unless 1t's in this note

Ii

13
T4

MR. BRENNAN:

It would be the first

page

that A O That's the most recent order of conditions on the exhibit list,
yes.

15

t6 t7
18 19 20
2L

So, that order of conditions was issued June 15 of

20AI, right? That's what it says on this front. by it's A O

Correct. terms it expired in 2004; correct?

So,

And the function of the wetlands permit process is to

22 23 24
,]

have pre-construction review of the work that's

subject to jurisdiction so that it can be determined

whether it's

in compli-ance with the regulatory

15
1

standards.
A o

z
3 .r 5 6 7 6 9

General-ly correct.

Somet j-mes

it' s post-construct.ion.

The review is being done post-construction, then

construction must have happened without a permit.

That would've been illegal;
A
O

right?

It would have taken place without the permit, yes. It's a proper time for a determination, whether an
annronri ate sol-ution to the control of a coastal- bank
*_Y_Y'

from eroding, the question whether to use vegetation

10 11 12 13
1-4

or a wall, is to do that through the permitting

process; correct?
A
a) 1, benerarry, yes.

a,^-^---l

Did you review coastal change maps? I think that's

the term that this coastline?

A
O

the mapping that shows the rate of

15 L6 L7
t-8

erosj-on or recession along the coastline, rel-ative to

tr^!._^r.r,, -fl.(-Lucrr-Lyr

YeDr

t.,r+- r r,lu lrur rJuL J_ rtn ^^l

reCaII

the resul_ts.
a

If this were a coastal bank that was eroding at

19

si-gnifi-cant rate and contributing sediment to the

zv

shoreline, would you agree that The Landing would not

have been permitted to build a revetment or seawall

2t
22 23

or other structure to control that erosion?

MR. BRENNAN:

Objection, Your Honor. It's

z+

been determined that this bank was not a sediment

1,6

1
2 3 4 5

bank, and that's been established.

-innq rrrraqf LrvrlJ YuuJ q217inn Jqy rrI9 t-h:t_ LIIAL

So, asking
be

it is a sediment bank woul-d

i-rrel-evant.
THE COURT:

I thought

I'm sorry, I --

MR. BRENNAN:
THE COURT:

It's not a sediment source. His question was, if it

source, right.
was

You're correct, ys.

7
a

MR. BRENNAN:

sediment source.
THE COURT: Sediment
You

10

know, counsel, I'm not sure, you know, how much more

11
L2 13 L4 15

of this

I mean, I think it's pretty

much been

established that the work was done without the

wetlands order. But I think that's established. I

don't know how much more we have to qet involved in the permitting issues.
MR. WATSKY: Okay, Your
on.
THE COURT: Okav.

l6
L7 18

Honor. I' 1l- move

t9
zv
2T 22 23

Doctor Rosen, let me give you a hypothetical.

assume

Let's

that the coastal bank had not been excavated, sdy, fifty
and

and that the seaward edge of it wasf let's

feet closer to the shore than where the wal-l- is, that coastal bank was vesetated and maintained.
Would you agree that during these coastal storm

z+

1.7

1
2 3

events that that seaward faced coastal bank would provide greater flood protection to The Landing than the seawall where it is
now?

4
5

MR. BRENNAN: Objection, Your Honor. Even

fhorroh ru r q l-,,^^+r-^+.i^-1 the area that thiS it's A IIyyULIIELJUO!7 urrvuyrr

CaSe
a

is about is a 2O-foot easement. So, to say -- ask

7
6

hypothetical question that involves a fifty

embankment incl-udes a fact that isn't

foot

possible under

the facts of this case, because we're only talking about twenty feet. If the question was a 2}-fooL

IU

11

embankment, I would not object.

THE COURT:

t2
13

Okay. Willi-ng to change your

question?
MR. WATSKY:
T ,,^ ^ ^^.i ^ ^ ..) J_ WctD 9\Jrrr9 L!
WOf k

t4
15

step-by-step.
THE COURT: Why

t6
a7 18 L9 20

don't we cut to the to the

chase?

chase.

MR. WATSKY: Cut

THE COURT: Yes.

So, Doctor Rosen, let's assume that there was a well

vegetated and maintained coastal- bank twenty feet

2t
22 23
z+

further seaward than where t.he seawafl is presently l-ocated.

A
O

Where would the

Thc rrnner r-nestal bank wall- is the seawal-I?

| ' m c^rr\/ /

18
1
2 3

A O A O

There are two structures.

rr^^ Cct>grtlellL ^^-^,nonlLIIC
rznrr/ rC yLr\-t

This is the wall within

1_ Ltls

rA (-qrrrrr9 i ncr r-al I

he seaWaf f Jeq

Are you famil-iar with where the property l-ine is

between these two properties?
Yes.

4
5 6

Are you familiar with the

rrrnrrar1- rr Iine?

would you cal-I it

seawall that was constructed verv close to that

U

l fl

Tt'l'lJ-I I

9() ^A

alnnn qrvrry

r^rith wrurr

fhri urrqL

ferm evlrrrr

if

fh^-t^ -.lctL

wIIdL > "L^!

"^"tra Ls yUu

10 11 L2
13
f=

referring to, yes.

O x What f-v,,tt "^.'] ^ err wuuru
yuu

"se? ui

A O A O

I'd cal-l that the bulkhead. Okay. You call it a bulkhead, but I just wanted to clarify
Why

1A

-let's say that the

15 16 L7
1B

don't we explore that further,

bulkhead does it matter in vour mind what

material-s are used to build a structure for it to

be

called a bulkhead? There are di-fferent materials? A A

No.

some

sections of the
made of

L>

structure along the property Ii-ne that are

20 21 22 23

So, you call this a bulkhead. Very good. We'll your term.
T,et' s
A

use

z+

ssilme - finni- nr Rnqan , that

I evvvvL

thef e iS

L9
1
2 3 4 5

well vegetated coastal embankment where the vegetation was maintai-ned, twenty feet seaward of the
bul-khead that's

along the property l-ine between these Let/s explore first,

where would

two properties.
waves typically

be cresting and breaking, 1et's sdy,

drrri nrr f he ten-vear stOrm.

7 8 9

Most commonly, the waves in that case would be based

on the a So, they would be some twenty feet further away from
The Landing buildings as compared to where the

10 11

bulkhead is presently located, in a hypothetical?

t2
1_3

A
O x

Yes.
q I onk qu a f i ff V-\/ear T,at, v +vvi! a1JEq! stOrm pyanloLVrrLL f)n
\zn
J"*

rr

knOW

T4

what elevation a fifty-year

storm event would be'

15 16
1,7

sir? A O
Not off-handr Do. Higher than the Len-year event you

just referred to.

So, I'm asking, you're familiar with the fifty-year
n+- nrm SLOllttt

18 19 20
2L

..,lrora WIIE!s

r'l nnn afvrry

i- h:l_ ulrclL

r hrrn^f hof rryyvLllsLruqr i r-:

--^^^f -f vEVELaLsu ^'J

coast.al bank would waves break duri-ng the fifty-year

storm?

22
23 z+

A O

From

the base of the elevate

the base of the slope

happened

to a higher el-evation. It would depend on whether the storm event

,.j

20
1 2
3

at high water or low water? A O

High water or l-ow water would depend on the height of

the

waves.

4
5 6

And during a fifty-year

storm, would any of those

all the way to the

waves have water wash horizontally

nrnnar1_rz j I y! vi/vr line?

7
8

The waves breaking the sloping surface has

significant runoff, so there's a potential for it, O A

Assuming that the area is heavily vegetated, could

10

11
T2

that decrease or affect the amount runoff?

^^-r A heavv r-^^^!^r'r^-- t/ar affect the runoff once the vg9ELclLa\Jrr -- ----. f

13 L4 15 16 a1
l_8

vegetation is eroded, or if the vegetation is eroded, it wouldn't be effective. O

My

hypothetical is

assumi-ng

that the vegetation is

maintained, and it's

storm.

present at the beginning of the

A 0 A O

At the beginning of the storm, yes.

Are you able to say wi-th scientifj-c certainty
how

L9 20 27 22 23

high up such run off would

be?

That's something that can be calculated, but I can't I don't have those calculations. Let's talk about the existing bulkhead i-n a
100-year storm, some time period when waves are

t]

24

21_

1
z 3

coming against t.he structure during a 100-year storm

event at the

maxj-mum

elevation, where are those

waves

rel-ative to the top of the existing bulkhead?

A

4 5
6

Thcrrt !u qL re at f rrv]

i.

ha l-nn nf f he WaVeS afe u"y

at Of abOVe

the top of the waII, elevation 22, I bel-ieve. There are portions of the wall that are at a 20-foot el-evation. So, where's the
how high is the

highest wave during a 100-year storm?

A

f don't know how high the highest wave is.

we know from
FEMA

The wave

10

is at least three feet hiqh.

Just

11

tooking at the distance the size of Mount Hope B"y' I estimated that wave in theory to be up to six feet high. It dj-dn't take into account the fact that it

t2
13
L4

has to go over the shoreline and over a lower bank.

{)

15
1,6

Just to help us understand your view of the wave L--'^ - six foot wave ar-f inn here . 4 F f irst
qULIvII II9!u t LL yVLl llOVg A

of

17
A

all,

height of the wave relative

'l .,

to the top of

wal-l-?

The bottom of the wave is at or bel-ow the top of the

,.,-11 wq!I t -^,,^l, !vuvrrry
.

L9 20
23.

At or below.
A
r u

How

far below?
wet re
a

Tt uvyvrruJ denends vrl +]-^ l-^.i ^l-+ V. the wave. If on LlIE lrE!YIr L ^f talking about FEMA, because definitely

22 23 24

there's

three foot wave, it woul-d be one foot below the stil1 water l-evel.

zz
1
2 3

I need you to explain this.

You told us that you

bel-1eve that the waves would be six to six-and-a-half

feet hiqh, ofl direct examination. And so, your having told us that the waves woul-d be six to six-and-a-half feet high, I'm asking You, during the
wave

4
5

100-year storm, where is the bottom of the

7 8

relative

to the top of the wa11. Let's say it's

in

location where the wall is at or iust about a 2O-foot elevation.

10 11
T2

If that six or six-and-a-half

makes it

foot wave from offshore

across the lower seawall and across the

assuming thatts the case, that wave would

structures, be

13

the bottom of the wave would be below the top

l4
15
1,6

of the wall. 0 A
How

far below, sir?

If t.he elevation out of twenty-two is the top of the

l7
18 19 20

highest wave, which is the conventional

FEMA, the

six-foot wave would extend from -- from elevation sixteen up to elevation twenty-two. The bottom of the wave, the troth of the wave, which I believe is
what you're asking, would be below the top of the

2L
22 23 24

wave O A
FEMA

befow the top of the wa1l.

elevation of twenty-two, that's

been

established on this site; is that correct?

23
1 2
3 4 5 6 n 8 9

A a

Yes.

So, using the

FEMA

elevation of twenty-two, what

wave

height does that A O

FEMA assumes

assume?

a minimum of a three foot wave heiqht.

a

So, where would the bottom of the wave be using

three foot wave height at a

twenty-two?

FEMA

elevation of

A O A

Elevation ni-neteen. If you then increase that wave height to six feet high, where woul-d the bottom of that wave then be? Elevation sixteen, ds I said earlier.
A larger wave is going to still
The
FEMA

10 11 L2
13

elevation represenls the highest point of the wave.

have the highest

t4
l_5

point of the wave at elevation twenty-two. O I see. So, you're saying that even if the waves are

l-5 17
J-6

higher than FEMA is predicting at a minimum, the top of the wave that you're predicting would still
elevat i-on twentv-two?

be at

l9
20 21 22 z5
.A za

A O
A O A

Based on the FEMA analysis, ys.

So, you're not saying that the wave woul-d be higher

than t.he
FEMA

el-evation that was previously

Would you repeat the comment? Sorry?

I didn/ t hear what you -- the end of your

24
1
2 3

Strike that.

I'11 refer you to

some

photographs, try

and find section 31. Would you find photograph J.

And t.hen f want you to keep that page handy.

4
5 6 7
!

A O

Is photograph J the aerial photograph?

The aerial- photograph that shows The Landing
hrri l,-li ncr- furrv seawal I and bOatS aIOno the seawa l I. he vqrtvrrrY r

So, keep a finger in that page, and turn also to

exhibit 34-27. Did vou find that? A

n v

Yes, I did"
[nlnrr'l rl vvvufu \r/rl] yvu rnroa qv!99
J- hrj_ urrqL j_

10 11
1,2

haqa LrruoE

nhnj_ nnr:^1.' t/rlvLvY!qt-r1I-

l.rnrrnh dL1 fLrl(JLrvtl

taken at different times/ are on roughly the

same

area of the property?

13 L4 15 16
1_7

A 0

Yes.

Tell me, during a 100-year storm event with the

breaki-ng at high tide, where would the waves be

waves

breaking in the picture 31-J?

A O

On 31-J

at high tide, they would be breaking against

3,

l-8 L9

the bulkhead at the other bank. Okay. So, I believe it's The Landing building that's the lowest A O
Yes.

zv
21,

the buildinq towards the bottom

of that page. Do you see that?

With one building corner very/ very cfose to what
appears to be a white fence?

22 23 24

25
1
2 3 4 5 6 7 A n

A O A O

Yes.

So, where would the waves be breaking in relation to

the corner of that buildinq? At the concrete block wall.

Which is some number of feet, but very cfose to the

corner of that buildinq?

Tn f Il nr^vimitrz
I,IVAIILLf Ly

l-n Lv

fha LlIg

l-rrrilrlinn vuJlurlry

\/aq J9o

I
9

Would you agree that there would be water washing up

that's

not reffecting

back, there will- be runup going the building?

be

1r)
1l_

over the top of that wall and hitting A

Under maximum 100-year flood conditions there will

a2
13
L+

top of the wal-l, yS. A I'm sorry, because of t.he cough, I couldn't hear you.
Say it again. Over the maximum 100-year flood conditions at high

15 L6

tide, there wiLl be water going up over the wall,

yes.

I7
18 19 20
21,

O A
O

And will
From

it hit the building? close, but

this photograph, I can see that it's

strike that.

f don't know the elevations off-hand.

What elevation

zz
23 24

Let's look at the other photograph, which is 34-27. Do you see the area with the green
rreoef at i on - fLIIE "^^^f ^f ^'r L h^ VgggLALgU VEVsLqLrvllT :oastal-

bank Seaward of

26
1
2 3 + 5

building A O A
n Y

3?

Building 3 is on the left? Yes. This is a photograph that you would rotate
ninetv dcrrrccq
r-.\rrn1_

ef CIOCkWiSe.

Is building 3 now on the bottom?

Vaq

A
8 9

And yes, I do see it. Would you agree that the seaward face of that coastal-

bank 1s some distance further seaward from where the bulkhead now exists that you referred to in 31-J?
The base of the slope is further seaward, and the top

10 11
1,2

A O

of the slope is in the proximity of the

bul-khead.

13

With the condition that's visible in the photograph

31 to 34-21, so that's the vegetation. Through
much

t4
15
1,6

of the storm event the waves will be washinq A

O \z

and

breaking lower down on that coastal bank; correct? Not if it's durinq
maximum

L7 18

--

Refnre _yvs crcl- 1-o the maximum -\,zrlrr Yve

l9
20

A O A 0

--

because

before you get to the

you an answer.

maximum.

2L
22 23 24
1

Will you repeat the question and I/ 1l- try and give Yes. At storm events lesser than a 100-year storm event, the waves would be breaking along the face of

27
1
2 3

that coastal bank; correct? A O

YeS.

Would you agree the waves will

be breaking perhaps

4
5 6 7

ten or twenty feet further seaward than they would in A 0 in 31-J? This is when the erosion takes place? the condition it's
shown
Yes.

And is there a phenomenon with waves where t.hey are

I
9

tripped up by

I'm not sure if that's

exactly the
by

term when a wave gets tripped by an obstruction,

10 11 L2 13
T4
n

whet.her j-t's a shorel-ine, a beach or a bank, and it

begins to break? .r.ilyurrrY nn Often referS tO an ObStrUCtion Or a r r nni that causes a wave to break.

beaCh

So, with the vegetated coastal bank as shown in

34-2-1, where would you say the wave would begin

15 L6
1-7

A 0 A O A a

tripping during a 100-year storm event? That can take place at the lower coastal bank.
Which you referred to as what?

18

t9
zv
2L

A seaward structure, which is the western coastal bank, I believe.

You say that there are two coastal banks on the

22 23 24

That's correct.
So it would begin tripping.
What would

the

seaward-

most face of the vesetated coastal bank t.hat's cfose

28
1
2 3 n

fLVn fLrrV nrnnerf he

.' l'ina

hnr^r urggfd that rlvYv

af feCt

it? waves?

How

would the vegetated sl-ope affect those

Affect those waves; yes. Where would the waves begin breaking in relation to that vegetated bank?

4 5 6

The waves woul-d begin breaking on the surface of that

bank.
v
Ov

Qn f

tvltlv

q^ma .l-r^rantrz foaluIvuIIu j

frrrthar

arrrA\/ frnm

1_hp nronorj.rr?

8 a

OnIy if they're breaking at the base of the bank, which would be the smallest storm event.

10 11
1,2

So, for a storm event that's a ten-year storm event/

the waves would be at the base of that, so twenty

.F^^+ ICgL ^,,-.,. dwO.yr
fD^

.i

+r-^f LTIO.L

,,tr--+ wllOL

..^,1 Said? yUL

13 L4 15 15

They would be breaking on the vegetated slope.

don't know if it's qlnno PULsrrLrO.rry nnj-onf..r-'rr,

a ten-year evenl, but a small,^.i-^ erosion at the base of the

storm event they would be breaking at the base of the

D-L\JPvr \-o'uJlrry

t7
t_8

slope, yes.
STENOGRAPHER:

You need to repeat that

19 20
21_

question,
!L-! LIICIL.

pJ-ease.

What level, what intensity storm event

mtr'^-' >qy that ^arr urrqu l-IICy
cl uu!lrry

strike

A rir-i no q --

sfri

JL!rNv

ke that.

22 23
z.+

Where

will waves break along that vegetated

slope during a 100-year storm event?

Drrri no a 100-rrear sf orm erzent - clrrri no the hours of
lvq! vvvrrut

29
1
2 3
A

maximum
!1--+

tide, they will be breaking along the top of

^l ^, rnaL slope.

At the top of the sIope, you're talking about it.

being some ten or twenty feet further seaward than
where the top of the bulkhead is
now?

6
7 8 9

A a

Likely they would be breaking at ten feet, Yes. Let's look back into let's go back to the photo

31-J. Do you see the boats? A 0

Yes, I do. So, during a 100-year storm event, what happens to
any boat that happens to be stored along that
bulkhead?

'tn
11
L2 13

There's a potential
damaged.

that those boats could

be

t4
l-5

That the boats could be damaged.

damaged?

How

would they

be

I6
1,7

Tharr

r-nrrld

ha dam:r'rarl

l'rrz fhe

crreaf J----

i'.^-^+ wctvc rrttlJouL'

Thev

18 19 20
21,

coul-d be damaged by shifting on their stands. They

could be

damaged

by pushing against each otherr or

they could be damaged by being forced against the

- -^ f l Wd..LI.

22 23

O
A

You're calting it a wall.

bulkhead? The bulkhead.

Are you referring to the

z+
I

30
1
2 3 4 5

Is there a potential during a 100-year storm event in the summer, that all of these boats could actually
end up coming off of their stands and float.ing?

During a 100-year storm event in the sufiImer, that I'm

not familiar float,
ys.

with, but in that case, the boats could

0
x

There are boats that are st.ored along this bulkhead.

Yes.

A O

Let's assume that there's a 100-year storm event that

happens

10

while

many boats

are stored along the

11

bul-khead.

t2
13 L4 15 16 17 18 19 20

A O A
O

Yes.

What happens

to those boats during that 100-year

storm event?

I said they coul-d be damaged. You asked me, would

they float? Yes, they coul-d float. So, they could actually if
They could float.

waters become hiqh enough to have the boats that

we're seeing along the bulkhead float? A

O v

Yes.
Anrl Llley rc f1]Il,t i_hcrztrc
rrn'i nrr fo 9\_Jr119 Lv

2L
22 z5

he ouvJevL t/E sirlriecf

^^ri^^ fo --^--^ cl9Lr\Jrr Lv wavg

"outVe y

indicated as
waves
?

much

as six to six-and-a-half foot high

z+

Potentially, yes.

31
1
2 3

So, while they're floating,

and they're being dashed

around by wind and six-and-a-half

:ra O!g
{. horr LIIEy

foot high waves/

a\r vL Ara
]_

of rrri D LdyJf

nn f9

lll-UE ^i ^^

:nrl qltu

q.|_ :hl J Lqvlu, o

horz

rnr-k'i !v9^!llY nrr

4
5
A

back and forth? A 0 A

What's happening to them?

They're probably being shifted by the waves.

What do you mean by "shj-fted?"

'7

Shifted means pushed by the waves, possibly against the vertical

wal-1.

And with the masts on sailboats,

would they

be
be

l-0 11 L2
13
T4

staying nice and still

and vertical,

ot would they

rocklng wildly back and forth as the boat is being

washed around bv the waves?

The masts would probably be rocking whil-e the boats

they're attached to are rocking. O

Would you say it's

15
l_6

reasonably certain in such

an

event that the masts of those sailboats would extend

landward of the top of what you've referred to as the bul-khead, and can strike buildings?

l7
18 a9 20

A O

f don't know if they would strike buildings.

Would you agree -- well, we'lI take it one step at
a

2t
22 23

time. Would you agree that the masts coul-d extend

landward at the top of boat?
MR. BRENNAN:

Objection, Your Honor.

The

24

witness is a coastaf geologist.

I'm not sure if the

5Z

1
2 3 4

affect on the masts and the storm are within his area of expertise. He keeps on sliding questions outside this witness's area of expertise.
THE COURT:

I/11 allow this question, but

move on

5
A

1et's, you know, let's A

to other issues.
my

The question was, can the top of a mast extend

7
R

landward of the top of the existing bulkhead, and

Fxneri en69 is

O A
n v

During a 100-year storm event.

The answer would be yes.
To ]- hara 15 LIrere - fJULelrL.rd.-L ^1^^ LlraL !^}lfiS d ^^f ^-{-; -'l d-LD\-r7 Ftr-^+ uel COUId be

10 11 12 l-3

washed over storm?

the top of the bulkhead during such a

t4
15 16
1,7

A O
A O

Yes.

Now, I refer you to the photograph, exhibit 34-39.

Have you located that?

Yes, I have.
Do you see the vegetated slopes on either

18 19 20 2L 22 23 24

side of

that vertical retaining A O A O

Yes, I do.
Am

wa11?

I using the correct term, retaining wall?

TotaIly appropriate.
Would you agree that the slopes on either si-de of

that wal-I are sloped and graded?

33
1

A O

They are sloped and they appear to be gradedr !s.

How

z
3

about si-r, the photograph that's

exhibit 34-33?

,
A

I believe that there's a sign visible there that's indi-cating that the condominiums are for sale. So,
even though this isn't dated, f,m assuming this goes

5 6 1
a

back to sometime in the 1980's. would vou aqree that

the slope that's seaward of the buildi_nqs there is

sloped and graded?

The slope is a slope, vs, and it appears to be

10 11

graded. Although undergoing, it l-ooks like there are

some alteration

at the right-hand side at the very

t2
13

top, which would be graded. O

Can you te]l

from looking at. this,

roughly, where

l4
15 16
3.7

there this is in relation A a

to The Landing deveropment.?

Is this building 3, building 4? Can you tell? I can't tel_l off-hand. I'l-1 refer you then to a photograph. It,s exhibit
we

18 19 20 21 22 23 24
A

34-16. Are you able to tell whether, although in 34-76 is the

33?
YAA

have a different perspective, the area that, s visible

same rough area as what

is visible in

Wel-I, Iet's compare those two photographs. So, it's

34-16 and 34-33, in case you have dropped the

34
r

34-33 indicated t.hat's sloped and appears to

be

2
3

graded. And at that moment, it was not veget.atedWould you agree that the image that's visible in

4
5

34-16 is also sloped and graded, but in this case it

i s mosf 'l v weoetated? "-Y
T uloqYlgv. d'iq:draa ! Tl- Jo yqrurqlrJ iq n:rl-iallrz
ru

rzeoetatecl-

Tt annears

to be nearest the unvegetated surfaces in the bank.

R

v
A

Tn

r-er1- a i

n snecif ic Iocations? locations,

yes.
Ly vl

fn certain specific

10 11 L2
13
1,4

ecrreF urrq Rrrf r^rorrlcl \zcrlt qV ! es thaf L fl-^ rtto J \Jl r utIEi -^i^-.:+" _t - *

^f

whatts

visible in that photograph is a vegetated coastal

bank?

The foreground and the background look fully

vegetated.

The middle area photographs show

15 16

significant amount of bare soil and steep slopes. in terms of the stability Would you agree that the of the coastal bank, the extent to which i-t is subject to erosion during coastaf storms, that the
image in number 16, the condition that's shown in L6,

l7
1B

19 20

is

much more

stable than what's shown in number

shows

33?
a

2t
22
z5 z+

Image 76 in the middle of the slope is

vertical unvegetat.ed surface. The areas that are

vegetated are probably more stable than figure
You say probably?
33.

35
1

A O A O A

True.

z
3

It's certainly more stable

The areas that

4
5
A

than

33.

are vegetated based on what I can see in the

photographs appear to be more stable, the area in
nhnl_ anr:nh pnoLograp.. f i nrrro 1e L'a+ -br ftnat i :{_ aA IS an rrnrraaaf unvegeLaLeQ, very

7
a

sf een s'l onc t- T'm r-nnr-erned abOUt. f rlr

uLvvlr

There iS

instability. O
Doctor Rosen, Lhe opinions that you've expressed in
regards to the flood protection offered by the bulkhead, are opinions that. are based on
an

1n 11

t2
13

assumption that that bulkhead is properly constructed

t4
15 L6

and is itself A It's field. A

stable; is that correct?

based on mv observations of the structure in the

l7
18 L9 20

Did you examine the engineering plans for that

structure?

A O
A 0

I examined all- the plans that existed, yes. I'm sorry.

No, I didn't. Did you do any independent testing in addition behind the wa11, to determine whether geofabric
had

Did you examine plans showing the extent

2t
zz
z5 24

to which a qeofabric was called for behi-nd the wall?

36
1

been installed?

z
3 4 5 6 7 8 9

The only determination I could make is that it

was

geofabric incorporated in the structure, but I couldn't determine to what extent the extended O
So, you made no independent engineering analysis
reached no engineering conclusions about the
and

stability A 0

of the wall-; is that right?

I'm not an engineer. In your experience as a coastal- geologist, have you

observed sites where coastal engineering structures, such as a bulkhead, have fail-ed?

10 1l12
13

A O

Yes, I have. If a coastal bul-khead fails during the course of

a

l4
15 16
1"7

100-year storm event, is it fair to say that the

coastal bank behind it is then sub-iect to intense erosion, and becomes unstabl-e? A O If a coastal engineering structure fails, the
behind it is subjected to wave action, yes.
And during the time that it is subjected to wave
bank

18 19 20
2L

action, J-mmediately following the failure of that coastal structure, is it more or l-ess subject to
eroding than if that coastal bank had been either

22 23 24

well protected by the structure or heavily vegetated

before the storm?

37
1
2 3 4 5 6

A 0

Could you repeat that question, please?

I'll

take it one part at a time.

If a coastal bank is exposed suddenly of a bul-khead,

during a storm event by the failure there would be a vertical correct? A

Some

face of the bank exposed;

portion of a vertical

face, Yes.
exposed be more or

.'
9

Would that vertical

face that's

less subject to erosion during that storm than a well

vegetated coastal bank that's more seawardly?

l0
'l
1

That storm even intensitv could have removed the

vegetation and eroded the bank back by that period of the storm that the wall collapsed. not able to answer.
same

l2
l_3

So, I'm

L4

15 16
3,7

Are you determined the extent

Can you say

strike that.

with a reasonable degree of

18 19
z.v

sci-entific certaintv the amount of horizontal erosion that would take place on this shoreline, or that
would have taken place on this shoreline with
a

vegetated coastal bank during a bigger storm event?

2I
22 23 z+
I

A O

No, that's too general a questj-on.

So, 1et's just focus then on what happens

and I'11

iust ask thls one more time.

What happens when

the bulkhead fails

and

38
1 2
3

you have a vertical face, a coastal bank exposed to

wave

action durinq a

storm?

Waves woul-d be breaking

for the period of the storm,

4
5 6 7 8 9

and the period of higher tides of the storm, the sediment present goes to the bank.

If that failure were to happen in one of the areas

where that bulkhead comes within several feet of
a

building, that can actually significantly

building?

damage the

10 11

I couldn't say that without

near the B zone can be
damaqed. alono

it is possible then in
z_orte,

a 100-year storm, a building near the flood

.|_his bUlkhead

l2
13

.\ \l

nix urv

Jvu

\'^rr ohlserrre an\/ arFas

Whefe

l4
15 L6
1,7

there was erosion taking place from behind the

bulkhead?

A O A O A

I don't recall.
How

about exhibit 32-P? Did you find that?

18
l_9

Yes, I did.
What do you see here?

20

I see significant l-oss from behind the wall in this f see the wal-l doesn't exist in the area where the erosion's takinq place behind the area. I see wall.

2t
22 23 24

n v

n] .i ulu

yvu

quLuqrry

ar:i-rral'l rz see l.his rvvqLrvll location DgE urllD

when vorr wlrElr Jvu

rz'i sited v ror uvu

39

the site?
z
3

A
n \l

I don't specifically
r

recall.
ha:r \/rrlr

I might have.

Ttm rv!!]' enrr\/ rrr

T nnrrIrlntt

4
5

A O

I don't specifically
When

recall-.

I might have.

you were on the site,

sampl-es?

did you take any test pits

or soil A

I didn't take deep test pits, and I didn't take soil samples. I did look at the soil.
What soil did you look at?

6 9

O A
0

10 11

At the top of the bank I looked at the soil.

seemed to be generally a loam.

There
saw.

That's what I

l2
13
f=

At which point along the top of the bank did you look

at the soil? A
0

1A

made

general observations as I looked along the

I didn't
see anv sediment that stood out.
assume that the wall- was not
What

15 L6 a7 18

wall.

Doctor Rosen, Iet's

properly constructed and subject to faj-lure.

would happen relative to the flood and erosj-on

t9
zv

protection? A

How

would that affect the flood

protection and erosion control for The Landing? If the wall failed, it would provide protection up to the point that it fails.
MR. WATSKY:

2t
zz
23 z+

Subsequent to that, there

would be erosi-on of the soil behind the wa1l.

I have no further suestions.

1
2 3 4 5 6 7
R
7\ n

THE COURT: Redirect?

MR. BRENNAN: Sure.

RED]RECT EXAI{INATION

(By Mr. Brennan: )

l-tnnf

nr Rrrqan 1"" wFrF asked on Cross examination | \/rllr

to

make reference

to a particular wetland regulation,

banks?

10.30, regarding sediment providing

Yes.

Do you

reca]l that? that the bank in question in this

bank? case

10 11 L2
13

Yes, I do.
Can we agree

is not a sediment providing

n

Yes.

l4
15 15 77 18

So, that section of the

CMR,

that does not apply; is

that correct?
The section of the regulations referrj-ng to sediment

sources does not apply in this case; correct.

Vnrr f Utf rafaranaa6] !E!gIgtlUEu \/ntt Jvu rrqarl uoEu fLELlttt arm \trlarral nnorl UE VEavygV

l9
20

shoreline" j-n one of Vour answers on cross. you explain what a developed shoreline is?
The developed shoreline is a shoreline that dominated by human activities,

Coul-d

2t
22 23
zq.

AS

structures, bulldings,

business activities,

so it is not

it is very, very

different from a natural- shoreline

4L 1
2 3

Would you agree that what we're dealing with in this

case is a developed shoreline?

A f-l a: rl f)nr-t-)/vu rz

4
5 6 7
at

n \z

nr Rosen I- vv f he si f e af

'i

n ouest ton in this

CaSe,

\/ou macle !E!E!grrug -^+^ rlrquu

{-n the fact that there are two Lv

coastal banks; is that correct? A 0

Correct.
Could you explain for the court the location of the

lower, which we call the first relati-on to the A

bav?

coastal bank, in

10 11

The lower coastal bank is seaward. The upper coastal-

t2
13
T4

bank is in direct contact with the water under, I

think, all conditions. O A

n Y

Has that first

From
Vaq

coastal- bank been altered in any

way?

15 16 L7 18
L>
zw

it's

natural conditions?

A 0 A

Yes. That coastal bank is fully structured, and I believe it's a vertical bulkhead.
Does

that afford

some storm and

flood protection to

the Borden Liqht Marina property? That's the first

\/a q

2L 22
23

l-ine of defense for flood protection

and wave protection against the Borden Light Marina,

z+

O
Y

Doe.s f

he existence of two coastal banks

is that

42
l_

factor in the opj-nions that you've rendered here in this A

case?

2 3

The fact that there is a lower bank taking a portion

4
5 6 7 8 9

of any incoming wave activity is an important factor in my opini-on, yes. O

Now

Doctor Rosen, directing your attention to

photograph that's been marked as exhibit 34,

number 74, which you were asked questions on on cross

examination. Do you see that photo? A 0 A 0 A O A

Yes, I do.

10 11
L2 13

In that photograph, do you see a retaining walJ- in

t.he middle?

Yes, I do.
Do you know when

t4
l_5

that was constructed? at this picture that it's

area?
saw

No, f don't.
Do you know from looking

16

l7
18

within the 2O-foot easement

Because

i-t is seaward of the white fence that I

easement

19

in the fie1d, I believe it's within the

a!go.

zv
2L 22 23 24

Directing your attention to exhibit number 34-15,

you see on t.he right-hand corner, a stone pier

do

projecting into Mount Hope Bay?

MR. WATSKY:

Objection, Your Honor.

43
1

Leading the witness.

,,1,--+ L wtld L^ llE JccJ
"

It's

up to the witness to say

z
3

THE COURT:

No. I' 11 all-ow the suestion.

an

4
5 6 7 8 9

A O A n v

I see a pier, ys.

When
vlJ}Jvr

you did your site walks, did you have

1_ LJ

nnnnr{-rrn'i uull!

rr fuvn vvJ9! nhqorrra u v

furrq L yrv! cr? . hal- n'i

Yes, T did. rl- miaht. be better if we l_ook at 34-27. In that a u rrLJYrrL

oncF aoa i ^la^+-^^*-nh _ vrrvE qVorrl.tr IJIIULU9!dPrrr
o.Is yvu

-r-1 apL

e tO lOCate that

10
11-

stone pier?

A 0 A A

Yes, I

am.

L2 13 L4 15 L6 L7 18 19 20 21 22 23 24

Could you tel-l me where it is in the photograph?

It is in the bottom of the photograph.

Do you understand

that the retaining wall in question

common

in this case and the

property line,

generally

run in a north/south direction? A O I'm aware of that, yes.

When

you gave an opinion as to the wave height that

could be generated on a 100-year storm, do I recall-

that the dominant direction of the waves would

from the southwest?

be

A O

Major storms come from the southerly sector, ys.

Looking at photo 34-2'7, would that stone pier have any impact as storm and flood protection for the

44
1
2 3 4 5 6

Borden Light Marina property?

That pier would be one of the factors that can

dissipate incoming wave activity,

Ys, oY diminish

ir.
0
You have used the term, "100-year storm" at different

times during your testimony here. The 100-year storm, are we talking about a hurricane event?

WeIl, a 100-year storm is defined by the highest

water leveI.

In this part. of Massachusetts, 100-year

10 11 L2
13
T4

sLorms are often hurricane events, yes.

O A

Would you agree that as we stand here in 20II, the

hurricanes are fairly weII predicted?

Hurricanes now are wel-I predicted. There's a lot of
warning before a hurricane approaches the coast of
New England.

15 16 L7 18 19 20

You were asked

the question as to whether or not

storm or debris and the boats that are stored in the

vicinity of the retaining waII could in fact, end up

rrr.l rln The T,anrl'i no t/rvyv! nronertrz eJ uy lqrrurrrY

in 1-he event of a storm;

correct? You were asked that question? A O I said, at least that they be moved towards
Landing property.
Would that result occur, in your opinion, whether
The

2L
22 23 24

there was a sloped, graded embankment and/or

45
1
2 3

retai-nino wall-? Would the same resuft occur?

A O

The same result can occur, yes. There was some testimony by you regarding a failure

4
5 6 7

of a retaining wa1l, such as the one that's the subject in this case. Is it
riamaoecl
'i

common

for a coastal

structure to fail in a 100-vear storm versus be

n a 10o-rzear storm? And is there
and
damaqe?
a

I
9

difference between failure

MR. WATSKY:

Objection, Your Honor. It's

10 11 L2
13

so general a question, in what conditions, the question whether the wal1 was properly designed or
n n1-

THE COURT:

l' m not sure where you're going engineer.

So

L4 15

here, because het s not a structuraf

MR. BRENNAN: consequences

WelI, he was asked the

t6
L7 18 L9 20

to the land behind the retaining wall

And I want to have the witness
be

eventually failing. tell

me

whether or not a retaining waII may

subjected to damage versus a total fail-ure, because

the question asked on cross was failure. like the witness to tell there's a
damaqe me

So, I'd

2L
22 23 24

whether or not coastal-

structures generally are a total failure, ot if to coastal structures. WelI, he can only testify as to
THE COURT:

46
1
2 3

what he's seen as an experience.

MR. BRENNAN: Right.
THE COURT: Okay.

I mean, that's

it.

4
5

MR. BRENNAN: Well, then that's

the way the

crrrestion should be drafted.

Doctor Rosen, based on your experience as a coastal

rron'lr-rr-ri q1harre \/olt 3n n^^n h,=.l aII vyl/v! r1-rrnjf17 L urlr LJ --Jll fo uv examine vAqrtlrrr

8 9

coastal structures after a 100-year storm event? A a

Yes, I have.

l0
11
1-2

In your experience, does a structure generally fail in it's entirety, or is a structure subject to
damage?

13
1-4

Most frequently, when I use the term "failurer "

T'm

referring to

some

leveI that affects the structure.

15 16
1,7

I wasn't referring to, when I used the term "failurer " absolute loss.
O v
Genera'l -'l " I
usrrE!qrry I L

':

L/O.lI

UarltqVE

r---rrro fUrlE o u! qv L he strrtcture

18 19 20

A O A O

Yes.

Do you have experience

in repairing coastal
damage?

structures after storm

2L
22 23
z't

Extensively, and that's where f was yesterday' repairing coastal sLructures.

Now, you've testified
T holiorro MIIgVg
JVU!

that you have been on the site,

three times

\/orrr

1_esiLVJU

imon\/ was- af leasf vrqvt

47
f

you went on a site view of the

2 3 + 5 6 7 8 9
1-0

A 0 A O

Yes.

Borden Light Marina; correct?

Yes.

Based on

the questions that you were asked on cross

been dealt with,

examination, and having personally observed the wall, the block segment of the wall that's which woul-d you prefer, the walf that you saw there, or the sloped embankment that you've seen at various
<l_ rnaq J LUYL

'i n

f l-ra nhni_ nnr:nhq?

11
1,2

MR. WATSKY: Obiection.

He's leadinq the

wi-tness.

13

t4
15

No. I'11 allow it. In terms of flood damage protection as a land

THE COURT:

owner

Iandward of a coastal bank, I would choose a wall

L6 L7
18

over a vegetated that's 0

subject to erosion.

And you had an opportunity to l-ook at the wall that's

out there; correct? A O A O

Yes.

t9
20

And you had an opportunity to review many photographs

2L
22 z5
z.t

of what was there prior to the wall?

Yes.

Based on your observatj-ons

of the photograPhs,

and

your observations on the site, would you prefer the

48
1
2 3 4 5 6 7
R

wall that's there, or the sloped

there?
MR. WATSKY:

embankment

that

was

Objection, Your Honor. the witness woul-d prefer?

you

THE COURT: Sustained.

MR. WATSKY: What

THE COURT:

I think, you know, are

asking hi-m as an indi-vi-dual

MR. BRENNAN: No,
THE COURT:

a coastal engineer.

-- or are you asking him as an

to question
and having
on

10 11 L2 13
L4

expert?
O

Okay.

MR. BRENNAN: I was trying

Doctor Rosen, ds a coastal geologist,

observed the wall that's

the sesmented block wal-l

have you
rorlieulorl IsVIsWgu

the southerly 650 feet of the site,

naraAn:l IJv!ovlrqrJy lrz nl-rqarrrarl VUJE! Vsu
J_

15

h-f UrlOL,

anrl qIlU

h:rrin6 llAVlrry

t6 I1
18

extensive photographs of what was there prior to the

seomented wal I t clo vor r'^--'^ lla v g wqr! vv uuu J vu
Jeyrrretr orr vyrrl

^^irion

as to which and erosion

worrlcl nrorride srrnerior v rvv y!v

flood nrofer:tion

t9
zv
2L 22 23 24

control for The Landinq at South Park? A I believe the segmented wall is superior protection to wave i-mpacts and erosion. O
One other question, Doctor Rosen. You were asked to
i rlanl_ i f rli n nrrli nrrl:r
I sLL

an

ovhi vzrr!+v+

hi lu

ho'i nn

ilra

l:1- oq1-

order of conditions that issued to Borden Liqht

49
1
2 3 4 5 6

Marina. Do you recall that question? A 0

Yes, I do.
The date on that, I believe, is 2007. Would you look

at exhibit number 24? And woul-d you agree that exhibit number 24 is a notice of intent A 0 A 0 A O
Yes.

that was dated

2009?

tJ

I see the date, 2009, conditions of int.ent, ys. f'm sorry, exhibi-t number
number

I'm mistaken, exhibit

1n

25, an order of condj-tions.

11 L2 13

I see an order of conditions on exhibit 25, ves.

And are you aware that issued in 2009? Well, do you

see some recording information in the upper righthand corner?

I4
15

A A A

f see the date, what appears to be an official

number stamp as I0/21/2010.

or

t7
18

And that is an order of conditions to

That is an order of conditions, yes.

MR. BRENNAN:

I9
20

I have no further guestions. I think unl-ess you're

THE COURT: You know,

2L

going to have Lwo or three questj-ons, I think we'Il

zz
23 24

take a break for about ten minutes at this point,

rrn'l ess yvu 1- hi nk yvu !e onl,, \/nlt LrrfrrN rrnrrt re vrrry ulrrsJD

-^.i 9\Jrrr9

*^ !^ *^.ke ten LU Lcr

mr-nutes.

50
1

MR- WATSKY: I don't anticipate

lnnn rvrrv, Vnrrr rvu! l]^nnr rrvrrv! | l-rrrlpuL Tf m a lrr naranllr' lJg!rcuLl_y

being very
fa L(-) 1----^ IIdve

z
3 4 5 6

.i^^ w_LIJI_I1g '-'.il'l

us take a ten minute break.

THE COURT:
hrrt T irrst
Qn vv I T nrracc

I'd prefer to wait until 11:00,

rznrrr crrrest i oni yvu! Lrvtrrrry yusJ
dn ltrJ \/^,r ytju lar-,^ IId ve
ncr
.

di dn't
..'hat

j n1-arrrrnf Want tO 4rrLE!t L Lv uyu

r I/mrrl qo^lrry aSkinO

\/olt yvu

fi s./ D

-,,-f J u5 L

a couple of questions, or are you in for the long

a

haul-

MR. WATSKY: Your Honor,

I don't anticipate

10 11 L2 13 14
l_5

being very 1ong.

THE COURT:

I hope not, because this is a,

you know, recross.

This should be verv short.

MR. WATSKY: Yes.

THE COURT:

Okay. Thank you.

RECROSS EXAMINATION

16

(By Mr. Watsky:

I7
18

Doctor Rosen, why don't we start with the last icem

which you were asked with regard to notice of intents

L9 20

permit that are reflected in exhibits 24 and 25. I'm referring to page 2 of the exhibit 24. It's the project description. ft's
common

2t
zz
23

practice, is it not/ to give

a

z+

description of what work is actually proposed in notice of intent?

51
1
2 3 +

A O

Yes.

The general project description that's on the second page in exhibit 22, it says, "construction of

waterfront walkway, reconfiguration of the breakwater,

correct?
driveway construction;" is t.hat

5 6 7
8 9

A a

Correcl.

Absolutely no indication that constructi-on of several

hundred feet of a retaining wall or bulkhead along

1n rU

the coastal bank was proposed; is that correct? A O

As long as reconfiguration of breakwater is in the

11 L2 13
,t

front of that structure.

WeIl-, why don't we take another

a closer look.
What

l4
15

Resource areas would typically be indicated.

resource areas would be affected by a project, and

I6
L7 18 19 20

it's

also reflected in a notice of intent? So, this third and fourth pages, it says/
ocean.

notice of intent

"resource areas affected by the proposed work

indicate l-and under the coastal bank; correct? A 0 A

Correct.

" That's not the

2t
22 23 z+

Then it says, "rocky inter-tj-dal shores." That's not

coastal bank; correct?

Correct.

52
1
I

O A O

Then it says, "land containing shellfish."

That's

2 3 = 5 6
A

not coastal bank; correct?

Correct.

So, there's no j-ndication in this notice of intent of

any request for permission to build several hundred

feet of retaining walI or bulkhead, ds you're referri-ng to it, along the coastal bank; correct? A O
Based on what you've quoted; correct.

Just to

make

that point a littte

exhibit 25. Exhibit

10

25 is the order of conditlons. The order of

11

t2
13

conditions are very specific in setting forth whlch resource areas work is permitted in when the work is permitted; correct? A O
Correcl.

L4 15
1,6

Let's turn to the second -- let's turn to the third page of that order of conditions. This lists all the coastal resource areas. The coastal resource areas identified are land under the ocean; correct?

T7

18
t_9

A O A a

Correct.
And land containing shellfish;

20

correct?

2t
22 23 24

Correct.

So, this permit does not all-ow any work on a coastal bank, and thus doesn't permit construction of
a

retaining wall; correct?

53
1
2 3

A O

Correct.
On your

redirect you were asked questions about there

being two coastal banks, a l_ower one and an upper one. Do you recall that? A 0 Yes, I do. In response to the question about the lower one, you were asked 1f the lower one had been altered, and you

4
5

6
7

said, "Yes, there was a vertical

constructed. "
Where,

bul_khead

s that located?

IU
11 12
13
1,4

A O A O

That vertical bul-khead is at the west side of the

Borden Light property.

West side of the

Seaward side.

15 16 17 18

Okay. Where is it in relation to, let,s sdy, we'll refer to the southern part of the property versus the
northern part of it.
bulkhead?

Now, where is the vertical-

There are structures along the rower bank. T ber-ieve

t9
20
2A

I recall seeing it towards the l_ower bank in the property, and I'm not sure what structures I saw/ the
southern end of the property there is al_so riprap or

22

stone in that area.

z5
24

You refer to there being a vertical bulkhead. fs

there any photograph in the record that you could

54
1
2 3 + 5 6 7 8 9

n L ^^.i n1_ fLV

IJ\Jrrl

to tell

us where is it a vertical

bulkhead?

A 0

Would you l-ike to review all the photographs?

No. If there's any one that you can point to-

I'm

looking for something for comparison. A I'm looking at 34, photograph 25, you can see what appears to be a vertical bulkhead on the left-hand side
ri nran
rr[/!qy

side of the Marina property- And I

ex1_ end ezrev!.g.....:,

see

i no f o th^ -.lE

D\JLlLrIt

cnrrf lr

olru

=nA then

thef e iS a

wooden platform in the middle of the Marina.

And I'm

10

not sure what the structure is next to it. :nno:rs to be a vertical

svvvs! v

It.

11
L2 13

structure to the right of

that wooden platform. 0 So, these vertical- structures are bulkheads- They're

l4
15 16 L7 l-8

sloped similarly to
much

they're vertical just like

of the, which you've referred to, both as retaining wall and bulkheads along the property; is that correct?
Yes.

A 0 A 0

l9
20
21-

I find it curious that you refer to them as vertical as opposed to sloped in a prior definition of sloped. Vertical is the ultimate slope. Vertical i-s very
sreep.

22 23 24
't

It's perfectly steep.

You answered

a question about the effect of

55
1
2 3

a lower bank, and you said 1t will enercrv so if ts effect

A
O

take some wave

Correct.
Tn far:f t- ferrv he
F"F.MA

4
5

manni nrr that's

been done has

alreadv taken that lower bank into effect

into

6
J-|

account in mapping the extent of the 100-year flood

at the bank, has it not?

A
O

It's likely.
Then opinions that you gave before about the height

9 l_0

of the waves being six to six-and-a-half feet, took i-nto account the lower
n

and

11 12
1_3

then the height of the 100-year storm event also,

bank?

No. What I sai-d about the six to six-and-a-half feet is that it's highest wave, given the di-stance of
water over which the wind is blowinq. The near shore

l4
15

t6
L7
l_8

effects and the effects of the structures were taken into account
Were
A

or were not?
That is wind blowinq over that fetch land

79 20 2L 22
z5 z+

Were not.

could generate waves that I didn't look at the depth

of the waters. I didn't look at the effects of the

Iower bank. T didn't do a
FEMA

flood profile, which

coul-d

is a full analysis of not only the waves that

56
1 2
3
A +

occur, but then factors that could dissipate the

FnFr.r\/ hefore reach'i no the
Fnr M \/^rr yU(l
J_

wave

shore.
e-+-Al cl\-UU!OLsfy rr nfOfli !/!EUJUUr-i-

Qn JUI

i n -LIl

nrrlar \-/!LlEr

'l n :nt,,-1 LL/ o.\-LLtdIIy -'

and state with some scientiflc

certainty the effect it might or might

of that storm here, and

how much

not reduce wave energy, you would need to do that

7 8 9

kind of a detailed studv; is that correct?

A

In order to state that it will- dissipate

I

some wave
and

energy, I can do that based on my observations

ooki ncr at the mans of fhe Sites. MR. BRENNAN:

10
11_

move

to strike.

It's

1,2
1_3

non-responsive, Your Honor.

THE COURT:
A

If you answer Yes or Do, sir

l4
15 16

Certainly. In order for you to state with scientific certainty the extent to which the stone pier would affect the
wave energy, you would have

t7
18 19 20 A
O

to do that kind of

detailed anal-ysis, which you have not done; is that

correct?

It is correct that I did not, yes.

On

2t
22
z5

redirect, you were looking at photograph 34-21.

FEMA'

Again, there was a questj-on about wave effects,

ctVdIlft

^^-.i*

l-^^ IIct>

dI!sauy

-Ireaclrr

.i-. LIIC; menned -LII !1-^

rttql/I/eu

dLEaJ

fnd

it

mUSt

24

have taken into effect

the affect of this stone

57
1
2 3 + 5 6
'7

pier when mapping the property, right? A Not necessarily.

FEMA

flood zone on The Landing

FEMA

runs profiles

every

or

distances, and then they make reasonable estimates of flood heights between them. So, I would have to
-f p1er. ^- ^'l ,,-.i an analysas on E.nat ^i
+- 1-.

do

Have you

actually personally examined the

FEMA

study

to determine whether it took this into account or

not
?

10 11 L2
l_3

A 0

No. I'm not able to get access to the

FEMA

study.
has

So, you're commenting about whether it has or

not, you're only speculating? You can only speculate

about whether it did or did not take it into account.

L4 15 16

A O

I cannot asree that he did take it into account.

One

thing I do note about this photograph 34-27, you have two boats stored out there on that stone pierstorm event if those boats were there at the time of

t7
18

And you previousty testi-fied that during a 100-year

l9
20

the storm event, they/ re going to get washed up on that pier. A O

There's a reasonabl-e chance, Ysr dS are boats at the
Marina.
On

2I
22 23 24

direct, you were asked regarding the storm effect,

move around

the debris of boats could

the property,

58

and asked whether the result would occur if either

2 3
l}

a
Do

sloped, graded, or a retaining wall- were present. you remember that question? A O I believe so, yes.
And your response was, "yes."
'i

5 6

Again, I find it

nf erest i no that

both the orresf i on and vour answer is .I

a

distinguishing
U

between sloped and graded area and

rrarf L!uqr i nrl ve! rof ri ni !ELqrrrrrly nn ur:l I wqrr.

ra{- ri ^i rCLO.IIIIrl9 -^

WctI!t '.'a'l I

THE COURT:

Are you t.estifying, counsel?

10 11
T2

MR. WATSKY: No, Your Honor.

On cross examination, you

did distinguish between the

: qu | o: rvqJ9
-l

location of the bank twenty feet further away.

Tlrarzt rrrv_y ra !u roa !vqf I rJ rr nnf I rrvL rlrr uu!f ri rrY nn qlJvfrlv

13 14

q^ma

nnrf yv!

i nn u!vrru

of storm events if boats or debris are washinq around the coastal- bank that's twentv feet further from the nroncrtrz 'l ino will block those boats or the debris
and keep them further from the property l-ine again,

15 16 L7
18

the retaining wal-l that's at the property l-ine.

MR. BRENNAN:

79 20
21,

Objecti-on. I don't recall

that testimony. I don't think the witness testified

as to
THE COURT:

22 23 24
iaq]-imnnrr

f don'L

remember.

MR. BRENNAN:

I don't think that was the

59
'l

THE COURT: Could

al oarar vlvq! e!
t

vou ask i-t in a little

z
3

chnrlgl

VefSiOn?

MR. WATSKY: I'11 rephrase.

THE COURT: Okay.
O v:
Wnrr I rl \/.)rr VYUU!U yVU
LL

4
5

3^raa AylgEt

F)nnirlp UVVLv!

Rnqen - fLrrqu hat l\vJErrt

clti ri no vu!r1rY

at

'l

eaSt
a

q.rma i f not most nortions

I

of a storm event,

that

7
R

sloped coasLal bank will floating

keep boats and other

debris further from the property Iine than retaining wall that is now present?

the vertical A

10 11 L2
l_3

In the lower water level portions of a storm, it

will O
On

debris and boats will be kept horizontally

segmented

further from the property line. redirect, you gave an opinion that the wal] would be superior in protection against wave
impacts and erosj-on as compared to a sloped coastal

L4 15 16
1_7

bank. In order to give that opinion, subject to failure; is that correct? A O

YOU assume

that

the retaining wall is properly constructed and not

A11 coastal- engineering structures are subject to
f

18

t9
20

ai-lure.
does it

2L
22 23 24

The degree of potential fail-ure differs though, depending on how well the structure is built,
not?
MR. BRENNAN: Objection, Your Honor.
My

60
1
2 3

question to this witness was specific

to the wall

that he looked at on the site based on his observation of that particular

hrznothef ical -

wall.

It wasn't

4
5 6 1 6 9

It was what he observed in the field

on that wall versus what he saw in the photographs of the bank. That was how my question
THE COURT:
was

I believe you did -- I believe

you did ask him his experience in observing failures of walls.

MR. BRENNAN: Oh, I did.
vI/fIIlvlI/ wllsll r YvL Lv vy+rrrvrr/

10 11 L2 13 14 15
1-6

But on the
!

oninion- when T oot to the nnininn- T asked him

baSed

on thaf exoerience and his observations of that wall versus what he observed in the photographs, what his oninion- what was the waII as he saw it.
vI/+rrrvrr /

was

MR. WATSKY: Your Honor,

the question that

I'm asking is directed at his underlying assumptions that the witness is using to reach that conclusion.
MR. SEIGENBERG: And aIso, Your Honor, he

L7 18

t9
20
21"

specifically
onrri

made

mention of that, that he's not

an

neer

The witness -THE COURT:

All right.

We'Il- have

one

22 23
z.+

attornev at a time
MR. SEIGENBBRG:
THE COURT:

Sorry, Your Honor.

How

-- responding here. Okay.

6l
1
2
3 +

many more questaons are we

MR. WATSKY.
THE COURT:

lt m almost at the

end.
a

AII right.

We're taking
So

break no later than 11:15 at this point.

MR. WATSKY: T' m
THE COURT:

5 6
7 8 9

at the end, Your Honor.

Ask the question

AlI right.

once more so we can understand it.

In giving the opinion, Doctor Rosen, that you gave

regarding the segmented wall providing erosion

10 11
1,2 l

protection, isn't one of your underlying assumptions that the wall was properly designed and properly
constructed so that it functions as intended?

13
L+

My assumptions were based on

the wal1 that I

more'

observed. I observed the wall that had interlocklng blocks. I estimated those blocks at one ton or each. I saw the bl-ocks were interlocked. there was some amount,
unknown amount of
any

15
l_5

saw

L7
l_8

geo-technical fabric, which I couldn't put support from that geo-technical fabric.

t9
20 2L
22 23 24
j
I

judgment on how much, but there is some sort of back

And
my

opinion is based on those observations.

MR. WATSKY:

That's all, Your Honor. further questi-ons.

THE COURT: Okay.

MR. WATSKY: No

62
1
2 3 4 5
6,

(Witness stepped down. )

THE COURT:

We'II take a break until- twenty what's the plan

aft.er eleven, and I just want to after this?

MR. BRENNAN: I have one remaining witness,

Mr. Lund, John Lund.

THE COURT:

I thouqht we took this witness No.

Vfe

out of order.
9

Am

I correct? took
someone else.

MR. BRENNAN:
THE COURT:

10 11
1,2

Oh, I'm sorry, yes.

MR. BRENNAN: He's

still

my

witness. I

just put him -- referred him too late on Tuesday

afternoon.
THE COURT:

13
14

Right.

So, let's

get back here

15

in ten minutes and we'11 continue.

(Morning break.
THE COURT:
)

I6 t7
t_8

Just to l-et you know, I have a

meeting at 12:30, so we will promptly take a break at

19 20

that time and return at quarter to two this afternoon, if we need to.
qrrv

So, why don't you go ahead

2L
22 23

and y! vvvvvt nrnr-ccd

Mr.

Bf ennan.

MR. BRENNAN: I call- Mr. John Lund.

>k*)k**

z+

*****

63
I

l-

*************
..IOTIN

2 3 = 5 6 7
A

COLLINS

LT'ND

*************
(T{itness sworn.
)

DIRECT EXA}TINATION

(By Mr. Brennan:

0 A O A O O A O A
n Y

Mr. Lund, would you please state your full

John Collins Lund.
Where do you

name?

I
9

reside, Mr.

Lund?

10

161 Harbor Road, Swansea, Mass.

11
T2 13

Are you presently Are you presently

Yes.

employed? employed?

l4
15 16

In what capacity? At Borden Light Marina for (indiscernible.)

Ttm cnrr!?

I7
l_tJ

A O

Just various
You're going to have to raise your voice.

T9

In what capacity are you employed at Liqht Marina? A O A O

Monitoring different activities at the Marina.
Do you work daily?

Borden

20
21,

22 23 z+

Not in the winter, but in the summer, ys.

Now, Mr. Lund, could you state for the court your

64
1

college education? A O A O A
rt v

z
3
a
A

I graduated from Bates Co1lege.

What year?

5 e 7 8 9

In '65. After graduating -- what was your major at Political Science.

t{-ar flrLgr i nn r!vrLL uquso, dra-1,':f urv Jvu 9!d.L,rLrduJ-rl9 f rnm Rateq - rti rl \/olt frirf

Bates?

hcr

\/atllf J"*

education?

A O A O
A O A

I went to Boston University in Boston.

When

10 11 L2 13
1A I1

did you graduate?

seek

1968.

After graduation from law school, did you

emn'l orrment?

Yes, I did.
What did you do?

15 L6 L7 18 19 20

I spent two years in the Peace Corps in Brazil,

building houses. O A O A After completing that period with the Peace Corps, what, Lf anything, did you do next for employment? I worked for the law firm of Clark (indiscernible)
and Tucker for one vear.

2t
22
23

Is it fair to say that upon graduation from school, you passed the bar In 1968, yes.
exam?

law

z+

65
a

O A O

And then you worked one year for a l-aw firm?

2 3

That's correct.
What next in the course of your employment after

4
5
C

that? A I spent two-and-a-ha1f years assisting the clerk at

i_

ha

crrnaf , ut/v I

iOf

COUf t.

O
t, 9

Was

that in Bri-stol

County?

A O
V

Bristol County Superior Court.

And a f ter that?

10 11
1,2

A O A O A O

After that,

for a title

law firm.

What was the name of the firm?

Corey and Lund.

Was

13

your partner Brian Corey?

I4
15
t-6

That's correct.
Do you recalt

the years in which you were employed at

Corey and Lund?

l7
18

A O

!914 through '90/'9I.

Now, Mr. Lund, at some point in time, did you become

I9
20 2L 22 23 24

familiar with the property which is now known as

Borden Light Marina and The Landing at South Park?

A a A

Yes, I did.
Could you explain to the court how it is that you

first

came upon

that property?

In 1995, fry partner's son (indiscernible) on the

66
l_

waterfront.
o

And we had done

different subdivisions

2
3

and whatnot, and we were looking for another project.

What, Lf anything, did you to further the purchase of

4
5 6 7 8 9
O

the Marina land?

A

We

got in

or I got in touch with Paul

Geru
and

(phonetic) who was the broker for the property, rhon 'irr.qf oafhered information on what uti-lities
Jqsu Y*"

were

rrrail:hla s v s+rsv4v,

i_h -..e

prace

Coutd you describe for the court your observation of

10 11 L2 13
J.4 l_5 l_6
ft

the property back when you first started to look at

!u.

if

Phvsi cal I rz- r^rhat .lir.l it

!rrlurvqfrj,

look like?

Physically, it was an abandoned -- well, it had been owned bv the Penn Central Railroad and the tracks
were taken out .

It was a turntabl-e. In the

mi-ddle

of it t.here were twenty-six shacks along the

waterline.
o A
O

t7
18 L9 20

Along the waterfront? Along the waterfront.

Now, at some point in time, did you make an offer to

purchase the property?

7\ n

2I
22

Yes, we did.
Do you
Trl-L
WdD

recall who owned the property at the time?

\lIgEIl

z5
24
'J

r'-raan nIVE!rrcr I\gqrLy l- rz Trrrst. Ri Rea'l MJL,

EG&G

whi r:h waS the vvrMrr

EG&G

realty arm.

really never owned real estate

67
1 2
3

themselves.

They're separate entities

which

owned

the real- estate.

O \z ni.l ulu nrri_ Lrlv lrr vt/vr uJ \/crll I/u L i_he nrnneri-rr J vu rrnrlar r-nnl.13glJ

4
5
6,

A
n V

In
nh^ flIIL,l

November

of '85 we obtained an option to purchase

^-.' >dy \\"^ ,t da WCr uv rrnrr yvu ma.ar1 rrluqrr \/a\ll yvu :nrl qlru Mr !'lr. C.rrprr? vv!eJ:

the premises.
,.,}a^h WIIeII yUu

7 8
Y

A
O V

Mr. Corey and myself/ yes.

qer:rrrino lrlnr^r- ,af1-er JEvu!!rrV l\uw7 a!Ls!
fLl/ n An vv nl !vf I nr.r l-ha Ivw urrg

1.ha nn1-inn LrI UPL-LUrIt

vrr ^n

--^"+ r^rh:! rtc^L wlLdL

rz? uJ ;

ufu

r":r

yu

".U

dO

nrnian1I/rvJ EUL

furrlo q nrnnarl_ l^ri I/lvyE!

10
11_

fn terms of the option, we were required to the twenty-six houses, or the shacks that situated on the property.

remove

were

1,2

13

O A O

And in fact, did you do that?

t4
15

Yes, we did.

Did you undertake at

F^Y I\JI
{- l. i o LrtrD

some

point in time, doing

any

t6
L7
l_8
1,9

preliminary design work as to what your intentions

mi nhi. L ve l-ro r[rYrr nrnnartrz? IJr Uys! LJ
:

Yes.

We came

up with a concept of what we wanted to

do with the property, and which we real-ly knew at the time when we signed the option agreement, the plan
was to seek the variances and seek a special- permit

20

2t
22 23
z+

from the ci-ty of FalI River to build condomj-niums

crne side-, vrr the outward land side. on

on

And then
a

^.,^----ts^ ^'l ^^ s^uovqus qrvrro the water and have the Marina at

68
a

lower level. O At any point in time, did you in fact, submit various
nermi I qlryrruq i r:afurvtrr i on.s to u annl |/g!rLLr
t.

2
3
A

ho

r-'i

.l_

rr of FalI River

reflecting A

that development Plan? Io, let's sdY, February of '86,

we

5 6 7 8 9

Yes, we did.

submitted some plans to the Fall River Zoninq Board

of Appeals. a
Could you explain or describe for the court what those plans reflected as a potential- use of the property?

10 11

Well-, what we wanted to do is, we wanted to create

l2
13

full service marj-na, and then behind this,

condominium development. We were seeking 140 units

L4 15

on the permit, because it was our understanding that

basically 35 percent
on the
have boats.

30 percent of people who buy

t6 t7
18 L9 20

you know, buy overlooking the marina and

0 A

Did that prove to be true?

That proved to be totally erroneous. And we
and

the other part of the plan was that, oD the face of it wasr we wanted to create dockominiums. They were' l-ike, the rage at that point in time, in 1985/'86. It's kind of l-ike the high point in O Now I'm sorry.
dockominj-um rage.

2l
22 23 24

69
1
z,

And then we were going to have a high-rise,

and
w

we

presented it to the

on the initial

phases,

presented it to t.he zoning board of appeals on the

4
5 6 7 8 9 IU

southerly extremity of the property with, like, building.

n \l Nlnr^r yUu J uoL \2.)r.r irrst L\UWt
JuqLLu

hundred -- I think it was a sj-xteen-story high-rise

+l^-+ yuLElrLra! ^^+^ni-.iFl LIIaL

sfafecl

tL^# LlldL

hicrh-r-i Se !! rrrYrr

was sixteen stories?

A O A O A O
A

Yes.

And originally

your concept was to put that on the

11
3"2

southerly end of the property?

That is correct.
And southerly, that being the King Phitlip Boat Club?

L3
14

King Phillip,

that's right.

15 16
T7

Did you propose any other improvements to the Marina

n rnna t/!vt/v! r.l- rr ? ul, .

We

had some buildings between The Landing and the

18 19 20

snore.

O A
n Y

What were the potential uses for the buildings?

We

didn't really have a specific thing in mind. you're talking about the original

We

2L
22 23
z.*

were
Cnrrar-1_

A O

storage, marina related activities.

Now, at some point in time, did a third party

1
2 3 4 5 6

ann1^1-1:f-h qtly!vqvrl

\rnr1 yvu

:l.rnrrf ouuuL

nrrt-.in.inrl-inn yd.r LJ\-Jyd

LrIIg

iIII

fhi q _11!vJsuu. nr^i^-f2 urrro

Well, we employed the services of a broker to find

somebody

to construct the condominium units.

We had

never intended to build the condominium units.

And as a result of employing a broker, did a person

come

to your attention who was j_nterested in the

condominiums?

A
9

Yes.

O A a
A O

What was

his

name?

l-u 11 L2
13

It was Keith Development Propert.ies.

Where

are they located?

Sf orrohf on.

Thev were }ocated in

What, if anything, happened after Keith Development

expressed an interest in the condominium project?

L4 15
A

We \J"u rro1- f nr'refurlu! hor

and qrru

r-hanaorl vrtqttyEu

fLlts ha

nnncanJuvrrvs}JL

drrr^ri urqwJltv

nn

t6
L7 18
T9

of fhe fon side should be arrdnoed""v MR. SEIGENBERG: I know

this is backqround.

The problem is, he's talking about conversations by

third parties at this point in time.

THE COURT:
ofettv free ran.tF

20 2L 22

Yes. I mean, this has been

vv

reqnr^lnqoe hora
Irr

QnI

I et'S

be a

little

more snecifir:

'i

n ')'vu! vorrr YuuuLrvlIrt ionsorresf

and I,1l

ask

z5
24

the wit.ness to please tailor your answers to the

questions.

77
1
2 3 = 5 6 7
A
A

Mr

:f1-r it's true , *,-er you were approached by you were approached by a third party who was T.rrnr{

interested in the condominium aspect; correct?

A
w

Inial

I - wc

snrrrr!'11

them OUt.

And after the person became known to vou, what, Lf

ellyLIrfrr9t =nrrl- hi nn .l i rl UIU rrn11 yVU rln UV
]_ n Lv

frr11_ halt-ha ullE !u!LlIs!

nrnionl-y!vJEeu,

maan-i rLlvqrr!rlY na

you and -- was it Mr. Corey? What did you and Mr.
Cnrarr rln f n frrrf hor 1-ho nrni YLV) ar-12

WeIl, it was Mr. Keith and his employees that I

r^rnrkorl vrifh
nrnianf :lnnn
t qrrs

10

and Mr
rr!.

\rrrvrevv

/Tnr^lisr-ern'i

hle) fo further the

t vv

11
3"2

0
7\ n

What did you do to further the project?

We

13

discussed how to develop this property, in

I4
15 a6 L7 18

mutually beneficial- way. And as a result of these conversations, there were certain changes made.
MR. SEIGENBERG: Obiection.

I move to

strike that.

The difficulty

is once agaln, he's

relating the conversations he had with a third party.

While it wasn't particularly significant here, I'm
concerned this will be an onqoinq concern as
proceed.
THE COURT:
we

!9
20

2L

zz
23 24

All right.

Let's just try

and

sti-ck to what he did and knew. Mr. Lund, as a result of your conrmunications with

72
1
2 3 4 5 6
1
.|-

-*i Partner' can You tel-l me to your knowledge, how did the project change?
hi rrl nrrf i oq :nrl
\/n rrl

The project changed by the high-rise

was moved away

from the south.

O A
n v

Where

did it

go?

It was moved to the northerly portion of the

n rnna rt rr

n.i ,-.1 arly Lrr!rrY -h!,r-h-i ncr e'l se r:han^o urLr s!Js urrqrrvg
rl

f rnm Jvu! \/^rr !!vlLL

r initia]-

9 1n

orral nnmanl_ n'l rn

far

J-

l'ro r-rrnrrorJ- rr?

A 0 A O

Some

of the buildings were eliminated.

11 L2
13
1,4

On

the Marina property? did You, in

The Marina property.

And at some point in time, did in fact

F;a+- UUTIVEJ furrE y!vyg! Mr- l\s Keith or to Keith ^^nrrerz he nronerf uyrr to !'l!. Lv !AULt
Development?

15 16
T7

We gave

Keith, or we sold to Keith an option for the

We

top two l-ots. The site is divided into three lots.

We

18

had an option to buy all the land.

We

divided it

t9
zv

into three 1ots. top two lots. O A O

sold an option to Keith to the

2t
22 23 24

To your knowledge, did Keith Development purchase

those two lots?

Yes.
Who

ultimately developed the condominium project?

13
1
2 3

A O

Keith Development Corporation. Did you and Mr. Lund [sic] purchase lot number 3 at

the
z!
6^

same

time Keith Development purchased lot l- and

4
5

A a A O

Yes, we did.
Was Yes.

6
7
a

it a simul-taneous closing? point in time, were there certain view

qinno|

At

some

nraaman+. 'rcnmnnt ,,-ed$eflrerrLs, or a v]-ew edserrrer]L {-lrrt. LirdL r^l:e

10 11 L2 13
J.+

encumbering the Marina property?

A O A
n v

Yes. When was

that?

That was at the closing.

\rnr.r t t.rhan yL,u -dY r \\ d' L fLrrE cl nq i t1't _ " WaS thiS ^! he urvDrrrg, wllgll t\t/w the

15 16

closing in which you purchased lot A O

A

3?

Right.
Who

I7
18 19 20 2T 22 23 24

prepared the easement?

the view easemenf
rrTaq

Well,

nrrt

nf the documents,

the deeds.
MR. SEIGENBERG: Objection.

The question

was, who prepared the

THE COURT:
V. ^

Yes. Please answer the

fall-rn

nranared the document or a deed?

(No

verbal response. )

74
1
2 3

O
A O A

Were

they recorded simultaneously to your knowledge,

deed?

with the
No.

4
5 6

When was

the view easement recorded?

The view easement was in the deeds. John Keith and I

had a conversation about view easements - That

was

the topic.
8 9

0 A

As a result of that conversation, what, rf anything'

did you do? Nothing. He prepared the easement. He prepared that portion of the deed that was going to
come

10 11
1_2
.}

to us and

to himself. The oriqinal easements were in those

deeds from Green River Rea]tv Trust to Keith
Development and to Brian and myself.

13 L4 15 16 L7 18
1,9

O
a

Do you

recal-l-

and Green River was the grantor in

\/orrr rJeed? ,z vu!

kl nnr

O A O A O

At

some

point in time, did you create Borden Light

?

Marina, Inc.

20

Yes, two years later, the following year or the year

-f{-^o! Lg! .

2t
22 23 24

Is there al-so an entity cal-Ied Admiralty, Inc.?

Yes, there is.
Who

are the principals of Admiralt.y?

75
1 z
3 4 5
6
'7

A O
A

At the time it was myself and Brian Corey.

Does

Admiralty, Inc.

own any

property adjacent to

Borden Light Marina?

Yaq

O A a

Which site does it

own?

It owns a 200-by-80 parcel of land adjacent to

Street.

Almond

At any point in time

Inc.

strike that.

What is the

intended purpose of the parcel owned by Admiralty'

?

L0

11
3,2

A 0 A a A O A O

That was the high-rise parcel.

You mentioned

earlier that the high-rise

development

.t

13

was originally

on the southerly end of the parcel.

t4
15

That's correct.
And you relocated it to the northerl-y end?

t6
L7 18

That is correct.
Was

it relocated to the Admiralty, Inc. parcel? the Admiralty, Inc. parcel.

Now, you were aware'

What became

L9
20

What is now the Admiralty, Inc.

Mr. Lund, of the view easement that we made reference to earlier? A O

Yes.

2l
22 23
z+

You're familiar with that

document?

Is the Admiralty, Inc. parcel within the view

easement
?

76
l2

MR. SEIGENBERG:
T+,^> lJdl- LIf-Lrlclrry ^r-f.i^,.rarl\/'l J- L
lsauf

Objection' Your Honor.

in time aS tO

eadino qu fh.i s noinf a.l- urrro rrY yvlrru

the form of the question.

4 5

THE COURT:

Okay. I mean, the document's

So, I don't know what

going to speak for itself.

you're getting at.

7
d

MR. BRENNAN:

Well, okay. I' 11 withdraw to the property,

t.he question.

Mr. Lund, after obtaining title

10 11
T2

which is known as lot number 3, could you tell the

courL what it is, if anything, You did next to develop the Marina?

13 L4 15 L6

A O A O A a A 0 A O A

Yes.
^!urra[/

We

prepared notices of intent.

We

filed for

-^+Lc! ^-

9I ]icense.

Did you do any work on the site?

We

started -- not until- we got the license.

t7
18 19 20
21,

Now, what is a chapter 91 license?

That's for waterways.

What do you mean, for waterways? Is that

The right to construct along the hiqh water line.

And does it apply to the Marina?
Yes.

22 23 z+

Ultimately, did you obtain that chapter 97 l-icense?

Yes, I did.

'77

l_

Did you obtain any order of conditions from the city

2
3

of Fall River to do work on the Marina?

MR. SEIGENBERG: Obiection. It was in the

4
5 6

form. It's about the this.

I've been fairly quiet about

ft's about the twenty or twenty-fifth leading

question of this witness. He's here for dj-rect examination, and I ask the court to have him conduct

the exami-nati-on at form.

THE COURT: Wel-l-,

9
J-U

I mean, he's asking

him

11 12
l_3 1,4

if he obtained a chapter 9L l-icense. I don't think that that's leading. I think that's a clear yes or
no question, and I think what I -- I think your

objection should be more to the responses to those

guestj-ons than to the actual questions.
MR. SEIGENBERG:
\/^rr qrwqJJ :lr^r:rrq
yvu uv

15

I agree, Your Honor. But

obier:t'ion
vvJUvurvrr LLLeel

t6 I7
18

dn .l.he y!EJJltlrrrq!J nreliminarrz Lllg

firel_-

whir-h

is the form, which is leading and I would agree it's the substance of it.
THE COURT: Okay.

l9
zv
21 22
z5 z+
A
O

I'l-I

all-ow the question no answers, please.

,v vq

But let's Iimit these to

v
nh:n1_ar vrrqyuv! q1
1_

yes and
rrTra

ha

arracf Yuvr

-i

nnq

.li.l \/on ol'rfain

license?

t'-nrrl

rl

\znrr j
""

t-alI

fha

nnrrr1vvq!

if you know, what that

78
1
2 3

chapter 91 license all-owed for the development of the

Marina?

MR. SEIGENBERG:

Ob

ection.

This woul-d

be

4
5 6 7 l' 9

beyond the scope of this wj-tness. We don't have any

issue, Your Honor. Cou1d we move this along? don't have any probl-em that they did apply for chapter 9I ficense to develop the Marina. with it. It's

We

We're okay

what happened after the fact, with the

excavation of the bank, the erection of the wall, which is

THE COURT:

10

11 L2 13 14 15 16

I/11 all-ow the witness to

was

answer what his understanding was of what he

allowed to do under that Ilcense.

MR. BRENNAN: He was
THE COURT: Yes.

I will

allow it.

the applicant for it.

MR. BRENNAN: And he has answered the

t7
18 19

question that a license did issue. And in fact, Your

Honor, it's
been an agreed upon exhibit.
And the

first

chapter 9t license to issue, I believe is So, I won't ask the

20
23_

exhibit number 1. And I will agree, Your Honor, that

document speaks for itself.

22 23
.A z+

witness to go over the minute details of the permit

and the accompanying plans, because they have been

admitted.

79
1

THE COURT: Okay.

a
.JfJr

z
3

Sn

r^rifh that WILII LIlAL

-Ll1

in m.inrj_ Mr lttltIUl L'!L.

r,.^r !UIIU7

+-!--+. .,1U answefed LlIAL yl

futrs (lile.st.i ()n -^r-^^ he yuuoL!vrr ct-l\'\;!,t,

.l_

+1-,rF o Ij_cenSe did issue. LllO.L

Could

4
5 6 7
n n

\/.'\rr -irrqi- ol I the Court "*

j

weII,
ir-inej-e

firSt,

Iet me aSk
n the

t-h'i q arroql_inn Lrvrr. utrra YuEo

ni.l vrv

\.rrrll narf yq J vu

nerson:llrli

constructi-on of the Marina?

Yes.

o
9 n

Would you tell

the court what it is that you did?

10 11
72 13 14 15

I prepared the notice of intent. I prepared the -^*'1 -: r-h:nt- er 91 rr(icIIDE I' m the one that JL I i ^^-^^ dyyrr(-a' ^^tion. \-rrolrLs!
sent notices to all the parties involved. I' m the
one who sent the notice to John Keith, Lelling him

what we were requesting under the licenses.

i_he nror-ecdinos-

He

hadn't filed any objections or entered into any of

T was i_ he one who was there
when

16
T7

we built
nrnnar.Frr fJ!L/PgrLyt
f hr11 vur tdf rurrrY

the first
T hol .i arro I J.JEIJEVeT
nd h

wall in the middle of the

irrq1_ JuoL ^^,,r1.5(TL1LII ^4 \JI fLIIE l-^ n^^l P\J\JrJ i n !!vItL ILL f fnnl-

18

t9
20
2L

Well, let

me ask

a questi-on about that.

you just testified

When you were

built the first

What
A

that you

there when they built the first part of the wall. wall were you referring to? the concrete wall.
The poured concrete
SOuth of The
'i

22
23 24

The wall
r^ral

Lv

t sf arf s nrnlralrl rr f sp feet

80
1-

Landing pool. O
Now, do you know if that wall j-s within the

2 3

20-foot easement area, that's subject in this litigat ion? A 0 A 0 A A A O

A

4
5 6 7
a

Yes, it is.
Do you

recall what year you may have buil-t that first

seomented wall?

1989. It woul-d have been 1-989.

Woul-d

it be fair to say that that wal-l was a

wa1l?

t0
11

retaining
Yes.

I2
13 L4

Did any excavation on the property take place by

Yes.

you?

Would you explain for the court how the site was
excavated?
We

15 16
LI

started in the northerlv section.

And 200 feet

south of the northerlv end is where the bank started'

and we excavated the bank to provide for all the

18 19 20
2T

items that appear on our chapter 9I plan.

O A 0

Did
We

you

went down to the southerly

we took the roadway

22 23

down

to the southerlv

end.

Now, when you sdy, "the roadwayr " can you explain for

\
?

24

the court what vou mean by that?

81
1
2 3

A O A O

There was an eighteen foot wide roadway on the plan.

Was it

ultimately

constructed by you?
yes.

Well, it was

4
5
A

Did the construction proceed from the north or the

south?

A O A

We

started constructj-on on the northerly side.

7 8

Did you complete the road to the southerly side, to

the southerly end, I should say.

Not in it's
.rlmnl

entirety.

We

excavated the majority of

10 11
3-2
1_3

the bank on the northerly side, and we did not ete f he sorrther'l v side because we weren't
You're talking 1989, right?
abl-e

to finish that.
n Y f-nrron.l-

1,4

And then our next thing we did was, w built the

15 16

bank -- we built the retaininq wall in front of

building 0 A

12. easement?

l7
l-8

Did you know if that was within the 2O-foot

The wall- we built was not within the 2O-foot

t9

easement, but the wall was an elevation twenty at the

middle. And John Keith wanted to fill

2t
zz

in

MR. SEIGENBERG: Objection, Your Honor.

The answer was not respon --

23 z+

with John Keith

MR. SEIGENBERG: One moment, please. First

6Z
a

of all-, it's not responsive to the question. It's

going far beyond it.
THE
ans\^/ef
.

z
3

COURT

z I'

m qoinq

to strike that

4
5
6,

MR. BRENNAN:

WelI, let me ask one question Keith was?

that I think wil-l- cl-arify the point. 0 A O A a A Tell

me again who John

t'
9

He was

the president of Keith Development.

And it developed the condominiums?

Yes.

10
l_1

Do you know

if Keith Development, if you know, built

l2
13

aI1 of the condominlum buildings?

Yes, they did.
MR. BRENNAN: Your Honor,

I4
15
t-6

Keith

Development

was the predecessor in title

-: qo

to the plaintiff

in this

L7 18 19 20

THE COURT: Yes.

MR. BRENNAN: And

it

was

THE COURT: Do we have

Mr. Keith here?

MR. BRENNAN: No.

THE COURT: No.

2I
22 23 24

MR. BRENNAN: But he was

the predecessor in

title.
THE COURT:

I t.hink we'll not go there.

83
1
2
3 ownarrf
.a

MR. BRENNAN: Well-, T'm not going to

q

THE COURT:

As an admisslon? No, I don't

4
5
A

think so.
MR. BRENNAN: He constitut.ed board
management at the time.

So, he was in the shoes of

'7

the plaintiff.
THE COURT:

If you want to ask whether

Development

Mr. Lund was given any noti-ce from Keith Keith did or did not O A O
do.

10 11

as to objections, but he cannot testify as to what

t2
I

Mr. Lund, you testified a moment ago that a wal-l- was built adjacent to unit 72; is that correct? It would be L2 and 11.
As the buildings are numbered at The Landing at South

13

I4
15 16 L7
l_8

Park, are the buildings 11 and t2 on the north side, the middl-e or the south A O A
Who
end?

They're on the north side.

constructed the wall outside buildinqs 11 and
72?

I9
2o 2T 22 23 24
,1

Borden Lioht Marina eonstructed the orioina'l rrersion

of the wal-I, O A
Was

whi-ch was

four feet high on either

end

and, fike, ten feet in the middle.

that wall ever a]tered?

was.

Yes, it

84
l_

n
n n

By

whom?

2
3

KFi1.h flerrelonment.

n
A

Did you observe that work taking place? Yes, I did.

When

4
5 6

in conjunction t.o the building of the roadway

on

the Marj-na property did that addition to the wall

I r'lza nl r no ?

t'
9

1990.

Did you observe the condominiums being built,

10 11 L2
l_3

personally? Did you observe the buildings going

A
O

up?

Yes. Was

that simultaneous with the constructlon of the

Therr started in '87.

Marina?
A
O

L4

Yes.

15

And \/rllr sj-arted when? l'*

.Bg.

t6
L1 18
3-9

A
O

Now, you mentioned that the Borden Light Marina

constructed a cement wall about the middle of the

n rnna I/! vuv! rJ-utrz .

20
2T

Yes.

What nextr dS far as a retaining

T.i^l^!
!f911L

wa1l, did Borden

22 23
.A

rr^-.i*^
rla!frla

co?

Borden Light -- well, dt the end of the concrete

at the end of the

next, after the northerl-y wa1I

85
1

that Keith modi-fied? O 7\ .l1 Correct. What happened next?

rrTr-.-+ L-^?ened vvrroL rlaIJI

z
3 I 5

next? Keith built the observation

deck, the observation area that we were required to

build under our chapter 97 permit. He satj-sfied our obligation to do that. O

A
a) \l

6
.7

Do you know

if any portion of that observation

deck

8 9

was within the 20-foot easement area?

Yes
L ve f

t was in the 20-foot easement.

ltl

10

Mr
t_l!.

T.rrnd lullut

in

qll

in

affnriU!!v!L

fn UV

mrrrha
ltlqyvs

olrueu

qnood

l-hiq Lrrro

rrn e hil_ qI/ vLvl

11

you built the first

porti-on of the wall within the

t2
13
T4

2}-foot- easement area in what vear?

A O A O A A A a

That was 1989, yeah, '89.

When

did Borden Light Marina last construct

wal-1

15
T6

retaininq
When was When was
nnrf
i nn

withln the easement area? the final

the next time? the last part of the wall- built,

l7
18 19 20
21,

Well-, it was 2009.

Between
We

79

did you say 'BB it started, or

'87?

started in '89. at varj-ous

tj-mes?

22 23 24

1989 and 2009, would it be fair to say that the wall

was being constructed continuously

MR. SEIGENBERG: Ob-iection

to the form,

85
l_

Your Honor. "Continuouslv at various times" that's

somewhat inconsi-stent.
THE COURT: Yes.

2
3
A .*'

MR. BRENNAN: I knew that after

I said it.

5 6
,-|

I was going to wait.

MR. SEIGENBERG:

I qive vou more credit

ask

than that.
THE COURT:

Obiection sustained. Let's

J- ha urle

611pqf yueJLIUlI i nn

i^a i clvC.rrI. n

10 11

O A

Was

the waII built, the retaining waII, built in

was
a

phases?

l2
13 L4 15 L6

Yes, it was. And after the observation deck

built,

the observation area by Keithr w put in

sheet pile -- when I say "wer" it was the contractors

put in a sheet pile wall, which today is that sheet pile wall that's part of the clubhouse, probably
hundred feet.
a

t7
18 L9 20
21,

O A O A O

Do you

recal-l when the sheet pile wall was put in?

was

The part that/ s in front of the clubhouse, that

put in in

1989.

The wall constructi-on technique varied at different

22 23 24

points in the wall; is that correct?

Yeah.

Could you tell the court why it is that different

9,'7

methods were used to construct the retaining wall?

A

z
3

In 1989, what Keith had done was' he had put in allhis foundations. And the foundations were right
next rI9AU Sn .J\./f
Ill
1uv

up

4
5 6 1 8 9

rz o the nrnncri- u_y 'l ineurru t/!vyv!

j- n LV

in

SOme CaSeS ovef

!!MvlrL

it.

i n orr.ler UIUg!
t

oet ygU

the nArr-.i -^ Ullu IJq!^rrrY

.

-i

^ f -nn+.- Of the
Ancl nrlu furru ha ehcoj_e ni I e t/rtv

al rrhhnrrqo U!UVIIVUJU

qhool- yr!s r^ro nrri_ Jlln DIIEV U n'i I e i WU PUL

was, Iike, it's

within that twenty feet and j-t's

close to the property line.

To your knowledge, Mr. Lund, other than some of the

10 11
1"2

retaining walI at the northerly end near buildings the 2j-foot- easement
A

11

and 72, is al-l of the remaining retaining wall within

area?

13

Is all of it within the 2O-foot Correct. If vou All right.

know.

t4
15 L6 L7
t_8

a
A

I think there's a plan here some place to show you. I'11 withdraw that. Mr. Lund, at any point in time up to
between when you first
and

started to work on the Marlna

19 20

in L999, did The Landing at South Park protest any of the work you were undertaking?
A
O

2L
22 23

No, no. Nobody did.

If you know, did The Landing at South Park participate in any of the public hearing process
J.

on

z+

hc ncrm'i
t/v!Itlt9U

1_

s f hat

iSSUed?

xx

A
O Y

No, not until 1999.

Yorr ment ioned

3 4 5 6 7 8
Y

Excuse me, rlor they objected to the installation

of

fuel tanks. 0 A O
Do you

recall when that

was?

That was in the year 2000, when we applied for fuel

and put i-n fuel tanks; there was an objection. Now, keeping in mind the permitting process that
was

undertaken between 1986 and 1999 when this litigation

was filed --

10
1-1

A O
A

Mm-hmm.

t2
13
1"4

did The Landing at South Park protest at any time

the develocment of the Marina? Only the time -- with the exception of the fueltanks.
Inlifh t-ha ovr-eni-ion nf the fuel- -- we said that v^vvy vr ! urr urrv

15
1,6

o u.

WaS

L7
1B
1,9

2000, and I'm directing your attention to

A
n )z

Oh, I'm sorry.

l qqq

20

A O A
n \l

That was 1990.

Oh, okay, '90. Other than the fuel tanks

21
22 23
z+

Other than that, until 2000' or was it 1998, is it?

1000 LJJJ.

1999.

89
1
2 3

Now, you mentioned earl-ier that Your personally,

nrenared rrari orrs enn'l i-cations for various permits

that were required. A O A O A O A 0 A O A O A O

Oh, yeah.

4
5 6

Did you undertake the task of notifying people

were entitled to notice?

who

7
P

Yes, they were.

Do you

recall if The Landing at South Park was

nrorlicleri noti-ce of the various applicati-ons?

Yes.

10 11

Mr. Lund, directing your attention to the litigation that brings us here todaY -Mm-hmm.

t2
13 L4 15 16 L7 18

at
Yes.

some

point in time do you recall that

-LDJLTEU

nre'l 'i minarr; inirrnctior.I IJIE-LJrttrlra-_I ----I

^^"^r

r-" +r'is court? Lll Uy

Do you recal-lYes.

that as being May of

2400?

t9
20
2L

What was your

-- or what is your understanding of

l-haf nrel iminarrz inrunction?

That there was to be no construction within 2O-foot easement.

Subsequent to the issuance of that injunction'
some

22

z5
24

at

point in time did you undertake to begin working

90
1

on the retaining wa11 again?

A a

Yes, I did.
Could you tel1 the court how it is that it came about

4
5 6

that you under A O

started to undertake work on the

retaining wall once again? I entered into an agreement with (indiscernible.)

Who are

MR. SEIGENBERG:
9

Obiection; I

move

to

strike.

That's a lega1 conclusion. I'm okay with

members

10 11 a2 13
1,4

that he can relate conversations he miqht have had with individuals of the
Landing.
THE COURT:

of the board of

The

AII riqht.

Let's remove the

characterization of the agreement and -0

Now,

15
1,6

Mr. Lund, after the preliminary injunction

any

issued, did you at any point undertake

discussions with the plaintiff
managers

L7
18
1_9

in this case, board of

Park?

of The Landing of South

A O A

Yes.

20 21 22 23 z+

What, Lf anything, happened as a result of those

communications with the plaintiff?
We came

to an agreement about putting in

MR. SEIGENBERG: Obrection. Move to strike

aoain- Yorrr Honor.

91,

1
2 3 = 5
A

THE COURT:

No, I'11 al1ow it.

MR. SEIGENBERG: He said, "We came to an

rarooman1_ //

THE COURT:

WeI1, I don't think lt's

we'Il consider it as an

in the

l^^al _LY9crr

oanoa DErrDs.

I think

agreement between parties,

ner1- i es aoreed.
.J

that he thought the two

MR. BRENNAN: And I wi-ll ask him nexL what

his understanding of that agreement was.

THE COURT: Okav.

10 11

Mr. Lund, what was your understanding of the

agreement that you believe you came to with the

t2
13
L4

plaintiff A

in this

case?

The asreement we had with them was that the activity

15

the legal activity point (indiscernible)

THE COURT:

they were carryj-ng on at the

t6
L7 18

I'm sorry.

I'm not able to

hear the witness. Could you speak up, please?

MR. BRENNAN: You're going to have to speak
up.

t9
20
2L

MR. SEIGENBERG: And I'm also concerned -nn]- on1_ i

22 23 24

al 'l rz -oul-d be settlement discusSions, which

would not be admissible.

THE COURT:

Wefl, in the context of this

92
1
z 3 + 5 6 7
R

I-iIinat_inn?

MR. SEIGENBERG: I don't know. I don't

know what he's

I franklv don't know the to.

more

conversation he's referring

THE COURT:

Let's get a little

background on this.
MR. BRENNAN: Your Honor, You consolidated

the contempt complaint with this case, right?

THE COURT:

Yes, I did.

1n

MR. BRENNAN: And t.he

activitv that took

contempt?

11 L2
13 14

place subsequent to the issue of the preliminary injunction is the subject matter of the
THE COURT: Yes.

MR. BRENNAN: So,

f'm asking this line of

15 L6
1,7

questioni-ng so that the witness can explain to the

court why it is that he undertook the work after the

date of the iniunction.

1B

19 20 2L 22

Well, You know, I'm not sure that that's reallv relevant here. He did it. He's
THE COURT:

admitted that. he did it.

MR. BRENNAN: There

are communications

already in evidence between the Marlna and The

Landing at South Park regarding this activity in
2002.

z5
24

93
1

THE COURT:

Okay. Well, do you want to

ask

z
3

about those particular exhiblts?

MR. BRENNAN:

They're already in.

q

I was going to bri-ng f've just got to figure out

which number thev are.

THE COURT: Okav.

O
v

lli rer:t-i nrr uMuLlrrY

\/orr Jvu!

r et t ent i nn qLUvrrLrvrr,

\/rtrr harre a book of exhibits J"*

28.

8 9 A

in front of you, to exhibit number

Voq

10 11

O A O A 0 A

Do you recognize
Yes.

exhibit number

28?

t2
13

It's a two-page
Yes.

document?

L4 15

And the second page is a letter

signed by you;

correct?
Yes.

L7 18 19
2Q

O A 0 A O

In that l-etter, are you requesting that you

allowed to build additional retaining walls?

be

That is correct.

Directing your attention to the next exhibit, exhibit

number
Yes.

2L
22 23

30, are you familiar with that

document?

Exhibit 29. Well-, I'm sorry, 29. Are you familiar with that
document?

z+

94
1 a

A O A 0

Yes.

z
3

And you received the original of that from

Landing?
Yes.

The

4
5 6 7
8

Subsequent to that letter,

what, Lf anything' did

a

Borden Liqht Marina do as far as construction on

retaining walI? A
n V

We

hired Rhode Island Marine Contractors and we put

.i

in a retaining wa11, sheet pile retaining wal-I.

NI6r^r rl-i ren1UIICULITIV l,\\.rW, nrr \/^ltr yvu!
a1- f an]_ qLuEIIurvrr,

10 11 12 13 L4 15 16
tl

inn

Mr rr!.

Trrnrl uurrul

l-n t_ho time vv

period, and let's use the date of this letter, which

i-s exhibit number 28, the date of the letter of
October B, 2002; bet.ween October Bth of 2002 and the
\/ear J eq!
?O1 Lv 4v

Ot

.l i.l urv

enrz momher crr anvone from the

qrrJ

plaintiff
srrhsecilrer!
o uvJUYuurl L

in this case object to the construction of

PIId.DVJ

^!--^^-

\J!

^ +he Iref Laf lrf no Wall? c ai n-i rrV LIIE

A O

No.

18

Had the retaining

waII been completed before you objection?

I>
20
2L

received the first

A O A O

Yes.

Were you present during

the construction of various

22 23 24

sections or phases of the retaini-ng wall?

Yes.

Did you observe the waII being built yourself?

95
1
2 3 4 5 6 7

A O

Yes.

At any point in time, did you observe any unit

on the property whil-e the wall- was being built?

owners

or board of managers of The Landing at South Park out A O A O A 0 A O A O

Yes.

Can you

tel1 the court what individuals you observed?

Mr. Schnitzlein.
Charles?

Charl-es. I need some names.

You're not going to testify -- you remember seeing

10 11 L2
13

Charles. Okay. That's fine.

And Mr. Daquay.

Did you understand those individuals to be unit

owners or members of the board of manaqers?
Both.

t4
15 16 L7 18 L9 20 2L 22 z5

To your knowledge, Mr. Lund, did the Chapter

91

licenses that issued A O A O

Yes.

show

a retaininq wal1 in the

area where the wa1l is now constructed? You've owned the property sj-nce 1986; is that correct?

That is correct.
Coul-d you

tell the court based on your personal

Hope

z'*

observations, the highest water 1evel of Mount

96
1
4

Bay that you have observed on your property?

A O A
v. ^

Elevation at ten feet.

And where i-s that in relation
n rn no rf rr?

to a landmark on the

4
5

That's just over t.he clubhouse deck.

ni

6
7 8

| ^o above the !rjryrnran on the first qy vrr urru !

coastal bank

that was described here earlier this morning? A O

Y

Yes.
How manv

times did that occur?

10

A 0 A O A

Once

in twenty-five years. -- was there a particular weather event

11

Do you know

t2
13

that took place? ft was Hurricane Bob.

Could you explain to me, you used the term, "fulf

l4
15

service marina." What does that

mean?

t5

It means you can provide aII repair services for the boats, you contract labor in-house personnel, slips into storage, wet storage.
some

l7
18 19 20
21,

O A 0 A 0

Do you
Yes.

haul boats from the water?

Is there a particular device called a "travel l-ift-," that you use to do that?
Yes.

zz

23
z.*

Could you describe to the court what a travel- lift

97
1

is?

z
3

It's a large frame with slings in it" drive it over an open pit.
hpn -y"*vl.| irrst \/.rrr

You drive this

You

frame; it has four wheels, all of which turn.

4 5
5

The straps go down into

and
NOW

the water; the boats dri-ve over to the straps,

l-

nrrl I i i- nn- nrrl I

j_

ho strans

ltn-

the boat

you can successfully haul the boat.

Now

the travel lift

9

is used to convev the boat to

whatever place you want to put it at rest, either to

l-0 11
1"2
!

repair it or to store it for t.he winter. O A O A

Did I understand you correctly that a travel tift
on four separate wheels? Four separate wheel-s, 9ds engine.
Does

is

13 14 15

it start like a car?

a

t6
L7 18
1,9

It drives just l-ike boat. It drives, ys. It doesn't drive just like
You need the key to start it.

car.

O A 0

Is the travel lift

No.

affixed to the land in any

way?

20

In the event

can you tel-l the court what the

2L
22
z5

nrr^rr-adrrrcs -- whef nrocedures the Marina would follow

in the event that a hurricane was approaching?

you do anything to store boats?

Would

24
!

We'd get. as many boats as we can, have the owners

98
1
2 3

haul them in trailers and take them out. We'd haul

as many as we can, put them up on land.

0 A O A O

Do you have

4
5
R

-- where do you put In the parking lots.

them?

Have you had

to do that in the past? three months ago.

As recently as two months ago

7
8

Now, in the development of the Marina as a who1e,

could you explain to the court what, if doy,

significance or i-mportance there is of the access at the south end of the property? A Well, to be honest with Your to bring boats up and one of the down the shoreline, everything t.hat things we were hoping to do for years, and we finally got around to it; sort of, the bus service along the shoreline. There/s a bus that goes to the center of
town, over to Kennedy park and we wanted the bus to
go along the shoreline, and bus down to the carousef
and back up. The carousel-, is that located at a local park?

10

11
1"2

13 L4 15 16 L7 18 19 20

O A O A

That's l-ocated near the Battleship Massachusetts,

Was
vrlY

2L
22

the access point at the southerly end part of the

z5
24

ori n'i nel r-hani_or g1 r^.raferwav.s Iir:ense? vrruyuv! JL, "'*J"

Yes.

YY

1
2 3 =
n

O Y

Have vou annl i ed for ruvrvYuvrlL strhseorrenf amendments to that J""

1

icense

A O A

Yes.

Has the access at the south point been part of each

amendment?

5
6

The chapter 9L license, 1-948 original license we got

amended only

to the extent that the subsequent

x
9

ficense amends. So, there was no amending at the southerly entrance as it appears on the first chapter
91 l-icense. O But f understand that that access point was carried
forward.

10 11
1,2

13
1,4

A O A O A O

Yes.

Are you familiar, Mr. Lund, with the operation of

15 15 L7 18 19 20 2L 22
z5 z+
1

other marinas in the Fall River area?

Yes.

I don't

mean

what their business is, but have you

observed other marinas in the Fall Ri-ver area?

In the greater Fall River area, Swansea, Somerset.

Can you

tell- the court

how many

other marinas there

are within, sdy, a ten-mife radius of Borden Liqht

lvtarf na /

A O

Probably eight.

Is the storage of boats part of the usual Marina

l_0 0

1
2 3

rlnFref i on?

A A A

Yes.

Could you describe for the court what you observed

as

4 5 6

to how other marinas have stored boats?

The majority of mari-nas use their parking lot.s in the

winter to store boats, because boats cannot be taken

over the hlghway. They're either too high or too
wide.

Could you describe for the court what. importance, if

10 11

dtry, t.he storage of boats are on-site to a marina

operation?

I2
13 14 15 L6

WelI, j-t's critical,

qi. nr:rra o uv!qY9

because it's

a matter of

economi-cs, you have to have mechanics, and winter

nrnrriv lver rloq
Ir!v

,an r.r?1r1a)rtrrn srr vyirv! eurrJ

i i. rz LJ

1-

o keen

\/..lltr

mechanics busv in the winter.

The other thing is,

it's crucial to be abl-e to offer your customer base winter storage, because if you can't, they'11 go to other marinas to store their boats, and the other
marinas confront them with, "You can store your boat

t7
t_8

t9
20
21-

here if you sign up for a slip, Loo." So, it's

kind

of devastating if you lose the winter storage

customers, you're going to lose some slip customers.

22

z5
1A z=

Mr. Lund, who is now in charge of the day-to-day

operations of the Marina?

101
1
2 3

A 0

My son, Michael. Can you teI1 the court when it

1s that you handed the

reins over to A O A 0
How

him?

4
5

He became president

three years

ago.

long did it take you to successfully develop the

Marina to the point where it stands today? Almost twenty-two years.

You mentioned

earlier the reference to a high-rise the court whether or not

Fa1l

building.

Could you tell

10 11 12
I |f'

there were other high-rises being built 1n the River area at that time?
.LTI

13
1A f?

O A O

The concept stage of 1986.

Yes, Point Glori-a; that continues to be two other

15 16 a7 18 19 20
21,

high-rises to the west. Where j-s Point Gloria in relation to Mount

MR. SEIGENBERG: Objection.

Hope Bay?

Irrelevant,

Your Honor, for the witness to recall high-rises

there are
THE COURT: Yes.

MR. SEfGENBERG: condominium complex not

in i-ho r-it-rz nf v4 uj
Fal_l_ RiVef.

22 23 z+

THE COURT:

Yes, I agree.

MR. BRENNAN: The point. was, that one had

ro2
1

been contemplated, and I let it go at that.

THE COURT:

z
3

I'll- sustain the obiection.

O A O

Mr. Lund, if you would look at exhibit number 32-P.

Have you found
Yes.

4
5 6 7 8 9

that exhibit?

Directing your attention, Mr. Lund, to the center of

that ullqu 6j3r-r:ra }JrvLU!Et An 1'nrr iSee an afea vv -yvu Whefe the land iS

somewhat depressed?

A O A O A

Yes.

10 11 72 13
1,4

Are you famil-iar with that area?

Yes.

Describe for the court why the l-and is like that

That was -- we were going t.o put in a future stairway from the lower elevation of the Marina to the upper landing.

15 16 L7 18

0 A O A O A

Now, were there any retaining walls shown in that photograph?

No, the concrete retaining waII on your right is the

one we originally

t9
20 21 22 23
zq.

constructed in 1989.
shown?

Are there any other retaining walls

The one on your left is a sheet pile walf.

And when, to your knowledge, did the sheet pile wall

go

up?

I'm going t.o say 2002/2003.

103
1

0 A 0 A

Now, the walls do not connect there; is that correct?

2
3 4 5 6 7 8 9

No, they don't.

Is that where the stairs were to

Yes.

go?

MR. BRENNAN: If

I may have a

moment,

please.

I have no further questions at this time,

Your Honor.
THE COURT: Thank vou.
MR SEIGENBBRG:

10

It's almost L2:30,

Your

11
L2 13
L4

Honor.
THE COURT:

Cross, ys. So, plan your

an

questions specifically, not in the middle of important issue at 12:30.

CROSS EXAI4INATTON

15 15 17 18 19 20

(By Mr. Seigenberg:

O A 0 A O A

Mr. Lund, do you have exhibit

Yes.

45?

Could you open it up to exhibit 15, please? Do you have it,

Yes.

sir? fair to say that you first tn 2000; is that correct?

saw that

2I
zz
z3
z+

I take it it's
document back May

23rd,

2000.

l_04
1

O A
n v

At the time that injunction was issued, you were

represented by Attorney Ed Brennan; correct?

z
3 4 5 6
'7

That is correct.
Thrnrrnhnrri. IIlIlru9Irv*fhiq l'i firrafinn :rJLJlrllr rrnrrtrzc heen VE UEsll YUU r^p6r^pqppl-aA rsI/!EJsllLEu

continuously by Edward Brennan; correct?

A O A
O v

Correct.

That injunction, sir, that's a clear order; is it

not/ sir?
9

Yes.

10 11 12
13
T4

Then \/olr UEI LOIIIIy ^^r+-'i-1'f rrulr Jvu

"-'lerstand UrrUE!DLqllq

that LlrqU

rlrJ

iniunction urluLrvrf

as
qu

we

sit here today? A O A O

Yes.

And I take it,

back in May of 2000 you understood the

order as well; correct?

Yes.

15

l6
L7

And as you've already testified

during direct
no

examination, that order clearly indicates that

18 L9
ZU

construction was to be performed wit.hin the

2O-foot easement area; correct, sir?

A O

That is correct.
And that you acknowledge that construction work has
l-raan narfslped

21,

22
23

wi_thin the 20-foot

easement area;

correct?

z+

That is correct"

105
I

0 A 0 A a

And you're aware that that injunction is still

in

2
3

force and in effect,' correct, sir?

That is correct.
And it was never modifj-ed from May 23rd, 2000 until-

4
5
6,

today; correct, sir? That's correct.

And sir,

once again, in your background, f know you

same.

I
9

went to a fine law school because I went to the

You went

to Boston Universitv School of Law; correct?

10 11 a2
13

A a A O

That is correct.
And al-so, you were a practicing attorney for a number

of years, ds welI,' correct, sir?

Yes.

L4
1_5

And a1so, I think you testified

on direct examination

that you were an assistant clerk at the Bristol

Superior Court for approximately two-and-a-hal-f

16

l7
18
1,9

years; correct? A
n v

That i-s correct.

7\a f1'J nrrf Pdr
L

.:f \rr-

\/r)ttr yLru!

drrti er \lLlLJ-EJ

ctJ

drr

^^^.: dD--Li>

^renf LqrlL

r-l crk_ A7 Uf,Er

\/ou Jw

20 2a 22 23 z+
1

were involved with civil

matters before the Bristol

Superior Court; correct?

A O

That is correct.
As part of your duties as an assistant clerk, you
were present in the courtroom when injunctions were

106
1
2 3 4 q 6 7

issued by t.he court; correct?

A O

That is correct.
And as part of your dut.ies as an assistant clerk with

the Bristol- SuperJ-or Court, it was your job to assist the court in issuing these preliminary injunctions;
correct?

A O

That is correct.
And certainly you're aware that orders, preliminary

I
9

injunctions issued by a court are in force and effect

unless they are modified by the court.
understand that, sir?
Do you

10 11

t2
13

A O

Yes.

Sir, you were certainly aware this litigation

correct?

you were aware that

t4
15
1_6

that brings us here today has been

pending, and it never was di-smissed, since L999;

t7
18

A O

That is correct.
And sir, you were certainly aware that if requested

L9 20 21 22 23
z.+
I
1

to do So, Att.orney Brennan could peti-tion this court at any point in tj-me from 2000 to the present, for sir? A O
That is correct.
That was never done, was it,
a

modification or a dissolution of that issue; correct,

sir?

lo7
1
l

A O A O A a A 0 A 0 A O

No, it was not.

2
3

'd 1j-ke to direct your att.ention Lo exhibit 29. Are you there, sir?
f Yes.

4 5 5
'7

On

the first

page of exhibit 28, that is a l_etter

that's addressed to Jackle; correct?

Mm-hmm. Yes.

8 9 l_0

And that's Jackie Dore?

Yes.

And you spell it with a D-O-R-R, do you know?

1L L2 13 L4 15 15
T7

D-O-R-E, I believe.

Jackie Dore, that was

correct?

someone

you knew back tn

2OO2;

That i-s correct.

How many 2002?

years have you known Jackj a f)oro nri nr l9

1999, I guess, when I first became aware of Jackie.

18 19 20

I'm not sure at what point

board

i_n ti_me she

joined the

O A 0 A

But you understand that she was a member of the

board -Yes.

2t
zz
23 24
I

at The Landing; correct?

Yes.

108
1
2 3
f\
tl

Now, the first

^ ^!.-^ dULLlctIIy
11

page of your letter to Jackie -- well,

\\If .: l/^. // L .:Of feCt? La-LnE/

--

-LL

.:

DdyD,

Tf' s on m\/ I etter.

That' s correct.
assume Mike

4
5
A

Riqht. It says "Mike," and I

snn - Mi r:hael Lund?
ev.Lf

is your

A
\J

YAAN

ni.l t, vq qaa rhiS letter \2n,, vru

befOre it

went Out at any

time?
A

am

sure I did.
raen^neihili1-rr v!!! !sOIJVrrtf

I have no present recol-l-ection.

nf Rnrrlcn T,iqht !+Y uv!uvrr v!
iiLv I if l_het's

10 11 12
1

Rrr1_ yVU DUL

\/.)1r \rrAFA fhe nresident W9!s UrrE y!UJluullL

uJ

Mafina.
volttre

T t-alro J UqLV
^^l-.i aDAarrg.-^

fnr !v!

what

13
a4

okarz- Ancl as the fetter proposal that's

indicates,

it's

a written

attached; correct?

First sentence'

15 L6 L7 18 L9
2A A

"Here is our written proposal to extend the wall;" correct?

A
V
r\rYiru.

Sn- a1_ fhis vvt

noint

Irr

i n f ime - uvrvvlr Rorrien T,i rrht urrllvt

f vvL

Ma

ri na wants

to extend the wall- . Right.

aarrarf2

2I
22

And at that point in time, Borden Light Marina knew

thcrz heri o cliscuss the matter wi-th

1_

The

t_rndr

nd

lnd

z3
24
A

nolYEL

Tho IrI9

T,andi nnt rq yv!rrtr r'\ormi qqi on' r

!qrrulIrY

r-nrror-lvv!!vvut

sir?

That's correct.

109
1
z 3
.*

Also at that time

knew that.

when

this proposal went out,

you

there was an iniunction that was still

in

full force and effect; correct, sir? A O A O A O

n

That is correct.
The second page of exhibit 28, that's dated October

5
6 7 8 9

Bth, 2002; correct, sir?

Mm-hmm. Yes.

And the signature, that's yours, John C. Lund; is

that correct?
Yes.

10 11 L2 13 L4 15 16 L7 18 19

And this was the proposal that you sent to The

T rnrl i !AllUIIIL,l/ nn. mtr-^r, ^ narracJVv!IsUUt q.i J!I. r?

, r)rrA.-r fL(, a 'l =e{-Ld>L ^5r.aranh lJct!dgIdIJrl at \rr +1-r-f LIIdL nrnnnq:l Ir!v}/vrqr,
l. l'.^+ LllctL

n :z

'Iho

qann-A vvvvlIL.t

specifically A O Right.
And it

references the injunction;

correct?

indicates on the last line about the

injuncti-on, "This in no way prevents the parties from

coming to an agreement modifying the injunction."

zv
2J"

A O A O A

That's correct.
And understood the injunction could be modified?

22
z5
AA z.*

Correct.

But that woul-d require court approval,' correct, sir?

Yes.

l_10
1
2 3

Turning to exhibit 29, and you would agree with

me,

sir, thls 1s the counter proposal that The Landing

sent to yout correct, sir?

4
5 6

A O A

Yes.

And this was signed by Jacqueline Dore, board of

managers; correct?
Mm-hmm.

O A a

You have to say yes or no.

Yes.

10 11 a2
j

Thank you. But that proposal- was never accepted, dt

least in writing, by Borden Light Marj-na; correct,

s

ir?

13 14 15 16
1,7

A O A O A O

This proposal here was never accepted? It was never accepted in writing, sir; correct? I don't have the signed document from nine years Well sir, you understand that this letter
obtained from your fil-es, do you not?
Yes.
was

ago.

18

tv
20

And I take it you've l-ooked through your files to see

if in fact there was any written agreements with

Landing relative to these wall-s; correct, sir?

The

2L
22 23 z+

A O A

Yes, that's true.

And you could not find one; correct, sir?

Right.

111
1
2 3
O

In exhibit 29, this al-so, in the last paragraph

from working within twenty foot of the property
I i na.
/

when

he states that, "the need to modify the injunction

// rln vv

4 5 6 7
a 9
7\ 4

jvs

\/^rr

qaa

.l-

h:f

eIL.

e i r?

A
O

Vo<

So, that shows a recognition once agaj-n, that it

necessary for a modification of the injunction to

was

issue; correct, sir? That's correct.

MR. SEIGENBERG: Your Honor,

10 11

is this a

good

time? I have no watch, but it

THE COURT:

makes

t2
13 L4 15 L6
1,7

Yes. I think this is a

good

time to stop, and we will gather back at a quarter to two. Let me just ask, once you're finished here,
once we/re finished wi-th this witness, is there

anything more that

so, we should be abl-e to

wrap

up today, do you think? Okay.

MR. SEIGENBERG: Yes. MR. BRENNAN:

18 19 20 2a 22 23 z+
]

This is my last witness only thing f have just

don't know about my brother.

MR. SEIGENBERG: The

to bring to the court's attentj-on this one time, I mean, obvj-ously, we've had, no one's fault, it's just the way it goes, several months have elapsed.
One

LL2
1 2
3 + 5

issue has arisen in the last couple of months that I'd like to recall Charles Schnitzl-ein just on that
r-rne area-

Yorrr Honor.
THE COURT: Wef l-, Iet' s see how j-t' s going.

r mnrn J_ rttcdrlt

A^ llrJ y\Ju

-^^'r rEdrry

1.' "r*# to come back here another wc.rrL

day, because it will be sometime in February.

7

MR. SEIGENBBRG:
THE COURT:

NO.

All right.

So, Iet's adjourn

until- quarter to two. Thank you.

(Lunch Break)
THE COURT: Good

10 11 L2 13 L4 15 l-6 L7 18
1_9

afternoon, Mr.

Lund.

You're still

under oath.

MR. SEIGENBERG: May I continue, Your

Honor? THE COURT:

Yes, you

may.

MR. SEIGENBERG: Thank vou.

Resumed Cross

Examination of ,IOIIN COLLINS

)

LUND

(By Mr. Seigenberg:

Mr. Lund, just so we're clear, you had indicated that in approximately 2002, Borden Light Marina constructed the sheet metal pile walfi correct?

20 2L

zz
23 24

A a

YeS.

Those exhibits that we l-ooked at before the break,

the proposal

agreements?

113
1
2 3

A O A O A O

28.

28 and 29, yes.

Yes.

4
5 6

Those proposal agreements only deal-t with the area

where the sheet metal pile wall was located,' correct?

Yes.

I'd l-ike to direct your attention, if I could,

Mr. Lund, to the exhibit nhol-ooraoh f'm sorr\/- I --I book again,
'i

8 9

and this 34 and

me

t's

exh-i

hit

1n 11 L2
13

photograph 27. It should be aerial photo. Let

know when you A I nave ]-t.

locate it, Mr.

Lund.

Great. Thank you.

r"I^'.r r Vlr\-/LlIL,a
y\JLr

L4 15 16 L7 18 L9 20
ZL zz

--f ct9!uu

ree wi th w!url

me rLLU,

Mr - l-l!.

T,rrnr-l !ullut

_ ihat uIIq

this aeri-al photograph is a fair and accurate

representation of the Marina property and Borden

Light Marina
nnri- LrVrrJ i nn< IJV!

strike that

the Marj-na property

and The Landing property around 2001, dt least those

fLIICr L o'l- E Aani U LEU lrrn fLllE yrrv LvY ! qyrt l-rrt- -r^ 6-f 661 i ho nhn1_ ocrranh? UgIJf
;

A O A
a) \z

Yes.

Now, in the foreground of the photograph, that's the

southerly portion of The Landing property; correct?

Yes.
And fho hrli ldinn :t j_ha hnftnm rinhf l_hafte
.|-he

23 z+

LL4
1 2 3 4 5
A
.7

flrst A O v

condominium building

for The Landing; correct? shore side. about that Sheet

The first

buildinq on the water

Anrl -yvq f acr_jfied earlier \/n,,
wal-l-?

Correr:f
..^+-t rrrg Lo.r
Pf

*'le

A O

it4m-hmm. Yes.

That's depicted, once again, we start towards the

8 9

in the foreground of the picture. Do you see that vegetated area in the middl-e, just to the left of the first A 0
condominium

building near the water? Do you

you.

10 11 L2 13

see where I'm referring to, sir?

I'm sorry. Let

me

I lost

try to locate you to it better t.han that.

MR. SEIGENBERG: May I aPProach the

t4
15 16

witness, Your Honor?

THE COURT: Yes.

MR. SEIGENBERG: Thank You, Your Honor.

t7
18 19 20
2L

O
A O

Mr. Lund, Iooking at the bottom, the center bottom of

fLrrs PlrvLv9rayL!t l-^ ^l-,a{-rrrrenh _ okarz_ sir? vLqy,

Yeah.

And you see depicted there are

it's

like a clear

area sir? A O

at the very bottom middle. Do you see that,

22 23 z+

That's correct.
And just to the right of that is a vegetated area;

115
1
2 3 + 5 6 7 8 9

correct?

A
n v

Yes.
n-l l-llILI !L-r LIIdL rrerre1-:fpci vsgsuqLsu q!s area

THE COURT:

Okay. You've oriented him.

Step back. Thank you.

Let's contj-nue on that vegetated area. That

vegetated area, that is the that was the graded
.slone that existed there in 2001; correct?

A
al Y

That is the graded slope?

C

10 11

nr raaf

A
O E

Yes.
And thaf
O.rgO.,

t2
t_J

+l-'-l_ 9rAusu VLLA L ^-=dad

Davt/s

ql nno vv .^ntinued

all

the

way to the sheet metal pile wal-I; correct?

I4
15 15 L7
l-8
1,9

A O

Yes.

And that would be

-^* f LUItt
dIJIJ!vAJrrtqLErJ

that sheet metal pile wall

"^'i 1 WgIII
ClULuaIry

goes

imaf el rz --

^^ts,,-

1'1

\/_ \/n1.1 ouq!erf L f rom sl_ t Ivv

the swimming pool and you proceed southerl-y -A 0 A O A

Yes.

to the bot.tom of the photo. There's first

concrete wal-l-; correct?
YeS.

20 2L 22 23 24
1

Then next to that is that sheet metal pile wall;

correct

That's correct.

116
1

And that ends

here?

do you know what building that

ends

A O A o \z A A

In the middle of building

ararlar-l Ylqvvu <'l nno. r_arrar-f vv!
2

5.

4
5 6 7 8 9

And then after that sheet metal pile wafl, that's the
t

That's correct. Ancl that's hefore anv of the excavation work that
nerformed in 2008 and 2009; correct, sir?
Yes.

was

IU

11
L2
l_3

Just so we're clear, so what happened in 2008 and 2009, that graded slope that we just described, that
was excavated out; correct?

A O

A portion of it.
And t.he work that was done in 2008 and 2009 in

L4

15
t_5 1,7

excavating the graded slope, and constructing the

retaining wall, that was done when Michael- Lund was

|J!UJlvullU,

i.\rrFn| nres'i clenl- . UV!!EVUt

V!

nf Rnrrlen t,ioht

Mafina?

18 L9
2A

A O

Correct.
When you were

president in 2002, before you erected

st.rike

the sheet metal pile wall, you at least engaged in

discussions with Borden Light Marina

2a 22 z3
z.t

that A

you engaged in discussion with The Landing;

r:orrect - sir?

Yes, I did.

LA7
1
4

Now, the work that was performed in 2008 and 2009,

excavating the bank and constructing those wa1ls,

just so

we'

re clear, Borden Light Marina did not

was

4
5 6 7 8 9

apply for any building permits before the work

beguni correct?
A

Building permit, before work beganr Do.

7\-,-l rrr lquu, yout re aware, are you not, nrru -i * F^^r

sir,

that
were

in

order to do that work in 2008 and 2009, you

required to obtain building permits?
MR. BRENNAN:

10 11 L2 13
L4

Objection, Your Honor.

f rr

We

don't know if that's correct.

as +-^ "1^-f ftY-to wnat 1166
nf ur:l I
'r - -,-.1 rJLrrrLrf rr9 IJErlrrf L crrlLl l-,, .i x .i - ^ ^^ ---i + .

There's no foundati-on

'+ :nnl i n=l-i nn --rggers a perml-L appf rcdLroll

MR. SEIGENBERG:
qo^9u asked fhe Lrls

This witness has

faith. This witness

I
has

15 15
T7

r-rrer!'i^-YuES L-L\Jrr

':"- -^^'r rlr 9uuu

already indicated he had that type of knowledge, and

indicated he knows that was the case.

i l- rrr.ae roal I rli n rli snrr1_ o

Didn't think
more

18 19
2A

THE COURT: Why

f oundati-on

don't you fay a little

there.

2L
22
z5 z+

MR. SEIGENBERG: Thank Vou.

v

Mr. Lund, are you aware whether or not as you sit

+^l^,, 's!s uvuoyT arO you aware whether or not building nermi1-s r^rere rrAr-nrirpd 'i n order tO do that ! vv v\aua l^^-^

118
1 2
3

construction of the retaining wall that was done in

2008 and 2009?

It's my understanding if you go over three blocks'

which we didn't, you need a building permit. A three

4
5

block wall-, it's my understanding does not require. 0 A O A O A O

But anything over three b1ocks requires a building
normi f: / COffeCt? L
yvlrrrr

6
7 8 9

That would be my understanding.

And that was also your -- that was the situation in 2008 and 2009; correct?
My understanding, flo.

10 11 a2 13
T4

No. It was required back in 2008 and 2009; correct? That's correct.
So, you're testimony is, sir, you dj-dn't reafize in
2008 and 2009 that you needed a building permit;

15 L6 L7 18 L9 20
2T

correct? A n v No, I didn't. n^ u\)

Jvu

r-now Joe Biscoe? ^t

AYAEldrr

a A
O
\l

How

long have you known Joe

first of all, who is

Joe Biscoe? Joe Biscoe is the building inspector in the city of

22 23 24

FaIl- River.
'l L^'-^ How rvrr9 ono lICt V (:
rrvw yULl

t'*^'vn Mr. Biscoe? Nllu!

119
1 2 3

A 0

Probably around twenty years.

You certainly knew Mr. Biscoe well enough that you

could have simply called Mr. Biscoe up and asked him

whether or not a buitding permit was requlred?

4
5
A

T never really had anything to do with Mr. Biscoe

avaan'F nr crcff ino vuraurrr)j hrrilcl'i no nerm'i ts :Jvuurrr:, Irv!rlrrLr
!v!t

for_

rrr\vt

l'i ke- 1-he L

cl-ubhouse. I don't recall him beinq there at that

8 9

point in time. O A O Mr. Biscoe, he was the building inspector in the city of Fall Ri-ver 1n 2008 and 2009; correct?
Yes, he was.

10 11
1"2
1_3

He's someone you have a personal relationship with;

correct?
THE COURT: He

l4
15 16

iust testified that

he

didn't.
MR. SEIGENBERG: Okay. I'm sorry for that.

l7
18

A O

I've never gone any place with him. I've never had a
cup of coffee with the
man. 2008

19 20 2L 22
23 24

As I understand your son, Michael- Lund, back in

and 2009, was he a member of the city council in the

city of Fall River? A O

Yes.

He

was. And are you aware whether or not Mr. Michael

Lund knew Joe Biscoe back in 2008 and 2009?

L20
1
2 3 4 5 5
.7

A O
\l

I'm sure he did, yeah.

nItV

son- Mir-hael T,rrnd- he's now the Anrl r-rrrrenflrr-I \/crrrr rvLLl VU!!EIlLrJ IvvL

president of the city council in the city of FalI River; correct? A O That's correct. Is it fair to say that you and your son are fairly
well connected in the citv of Fal-l- Ri-ver?
MR. BRENNAN: Objection.
THE COURT:

tJ

Yes. I -eXaminatiOn
2008 abOUt

10 11

MR. SEIGENBERG: I withdraw it.

a) v Vnrr i-oq.t'i 'iaA rlrrrina vulrrrY uvr ur lvu \/OUf difeCt
_l

I2
13

the walls that were erected in

/2009, being

erected in a similar locatj-on as shown on the plan

I4
1-5 1,6

that was submitted with the waterways license; is that correct? A a

Yes.

I7
18
1,9

Let me show you exhibit 7. Do you have exhibit At the top of exhibit
-1

1?

, the page number side, do you see that "90 hyphen"? Do you see that, sir?
90-1?

20
21 22 23 24

A A

Right. What I'd like you to do, if you would, please, Lf you could turn to 90-9, that. would
sheet 9 of 15 on the bottom right.
be

Yeah.

L2t
1
2 3 4 5
R

And these are the plans that were

strike that.
were

These plans that we're looking dt, and particularly

this one, 90.9, these are the plans that license was filed? A O A O
That is correct.
And this was 1n 1989, thereabouts?

submitted when the application for the waterways

17

No. It was L987.

Looking at 90.9, you would agree with me that the
wall that was depicted on that plan was a poured concrete retaining wall, do you not agree?

10 11
T2

A A

You said concrete retaining wall-.

13

I know, sir.

Are you familiar

with these plans? I

we

l4
15 15

could go through

because there are other plans

could spend time with it if you like, that show the wall in more scal-e. Is it your understanding that
these were going to be poured concrete retaining
walls
?

l7
18

l9
20
2L

A O

Originally, yeah. Right. So, what's shown on the planr ofl the original plan back in 19 I think j-t's in the 1980's;
correct?
Yes.

22

z5
24
;

A O

That showed a poured concrete retaining waII;

1_22

correct?
z

A O

Yes.

And also, rf you look at 90.9, it showed a bump up

4
q
o

near the most southerl-y building at The Landing.

\7^lr Jvu eao
l-

Do

h.ai-

qi r? vLL

A
al v

That's correct.
nllv

7 8 9

And l-hrf /q hrrildinc o vurrurrrY ulrqL

rlo \.rolr know fhe l-rrri'l rlino iv*

3?

number

of that, sir? Building

same

A 0

I'm sorry, what did Yes. Look at the

correct?

10 11

exhibit, that most southerly

building near the water, that's building 3; is that A O A 0 A O A O

Southerl-y building is building 3. And in fact, what this plan shows is a twenty-four
bump up

t2
13

I4
15 L6

That is correct. as it's

Correct.
And when Borden Liqht Marina constructed this wall in

t7
18

located near that building; correct?

t9
20
21"

2008/2009, there was no bump out, was there, sir?

No.

22 23 24

And in fact, further on the same document, 90.9, if

you go towards the far end of building 3, at least in

a northerly direct.ion, there's another twenty-four

3"23 1
2 3
4

i f oo1- brrmn nrrf f herc t- La s f here lvvu vurltl/

nof - si r"
rrvet

Starzi ncl with

on
JV.

o J.

A
v

There's a bump outs in the middle of the previous

m"^ L'--^ outs. wu rJurttlj
-L

5 6 7 8 9
-LU

A O
ll

(No

verbal response.

Two bump
l?1 dht

outs in building

3.

O A a A 0

And neither of those bump outs were constructed on

the wall- within

No.

2008

/2009; correct, sir?

11
L2 13 L4
l_5

Sir, if you could turn to 90-11. Are you there, sir?

Yes.

And this p1an, rf you look at the middl-e of the plan,

the right-hand side of it, it says, "existing

two-inch-by-three-inch drain to be extended. " Do you
see that, sir?

l6
I7
1_8

A a

Yes, I do. So, that drain woul-d have basically had a drain
extending from The Landing's property onto the Borden

1,9

20

Light Marj-na propert.yi correct, sir? A 0 A O

Yes.

2L
22

And 90.1 4 --

z5 z+

That's not, I believe in the drain.

Okay.

L24
t_

That/ s the city drains into the ocean.

okay. MR. SEIGENBERG: I,m a}1 set with that,
q'i r

2 3

4
5 6

Thank rzop.

The liqht here is terrible,

THE COURT:

Your Honor.

It/s terrible.

I absolut.elv

agree with you. It's apparently due to be replaced

U

at O

some

point. to these bump outs, these concrete

bump

Coming back

10 11

outs, they extended out, at least j-t's depicted

on

those plans that we just went through, they depicted out beyond the easement area onto The Landing property; correct.? A 0
Yes.

t2
13

t4
15

You also talked during your direct

exami-nation about
When the

t6
1-7

your

DEP

licenses and waterway licenses.

excavation was done in 2008 on that coastal bank --

18

A O A98 O A O

Mm-hmm.

\9
zu
21, aa zz

Borden Light Marina didn't have the waterway

license approving that work, did they? That's

981 6.

2000

z5

za

I'm sorry?

l.25
1
2 3

A
O

9816, I bel-ieve. That is the preceding order of conditions woul-d have expired in Sir, my question was more direct.
Irvrr

Is it your

4
5 6 7 8

nosition ulvrr

fhat voll rrqv *I/I/' had ^nnrn\/al J vu

from DEP to do the

excavation of the coastal bank i-n 2008?

This permit, 9876, incorporates (indiscernibl-e.

Tt'su nari_ nf 1-he nl ,an t/qr t/+sir. And there'S an Order Of

conditions that preceded the issuance of that, that neither one of those
nl^ricr-f ad UIJJe\-LgLr
{_

so

those were originally

qlru ancl furruJ hev,

l0
11 L2 13

^ r.ry f llE !alru!rrv L\J L-" mt.^ r -ndincr

.

fe tWO Of theif

obj ections

So, this original

plan you're referring

to, that's

the one that shows the concrete retaining wall; is that correct, with the A O A 0
Mm-hmm.

l4
15 16 L7 18 L9 20
21,

bump outs?

Okay. And that's not what was constructed; correct?

The present concrete retaining wall, there's no
bump

outs mentioned; that's correct.

Concrete retaining wall

strike that.

It was a

poured concrete retaining wall that was constructed;

correct?

zz
23 24

A O

No.

Sir, I want to show you another photograph, if look at 34, number 12. Sir, do you have that

you

L25
1
2 3 nh^l-^dr^nh

- *v"

J_haro

qi r?

A 0 A O A O A O

I certainly

do.

And the date on that photograph says i-989?

4
5 6
a

That is correct.
And you believe this photograph is a fair and

accurate representation of the area depicted -Yes.

on or about
Yes.

1989?

9
t_0

Once

again, the area depicted, this is the southerly at the top of that block, that's the southerly end of The Landing

11 L2
l-J

end of

southerly end of the property; correct? A O A O

That is correct.

l4
15

And also, it shows the southerly end of the Marina

rrrntre11-rz aS Wefl?

t6
L7 18

That's correct.
And on this photograph, that shows

that's a fair

l9
20

depiction of the coastal bank as it existed on or

about 1989 in that area?

2l
22 23 24

A O

That is correct.
Now, the constructj-on that was done in 2008 and 2009,

what was utilized was not poured concrete, but

concrete blocks; correct?

t27
L

A a

Correct.
And you didn't use

2 3 = 5
A

one of the reasons you didn't

use the poured concrete wall, was because of the difference in the cost; correct? A O That was one of the reasons.
And in fact,

there was a big difference between the

cost of the poured concrete wall and the concrete

8 9

block wall that was constructed; correct, sir? A I do not

about itknow what

the difference is.

If I'd

seen

10 11
1,2

that two months a9o, (indiscernible) I didn't think O

A

Wel-l, sir, do you remember being asked that. question

:1- \/.\]rr rlannqi
1-

13 14
l_5

i nn?

That was my point, you did ask me that, and I believe I said I didn't
know.

16 17
1B

You do recoqnize there was a difference

in the

cost

stri-ke that.
You would agree that.

the cost of a poured

t9
20

concrere wall would have been more than the concrete

block wall; correct? A a

Yes.

21
22 23

Do you

recall saying that you don't recall what the strike for the poured concrete wall, but that there

estimates were for the concrete block wall

z+

that

t2B
l2 3 4 5

was a biq difference?

I think I told you there were four reasons why we did

fLtla -+ L . L.

0 A

I'm just trying to deal with

Are you asking me if I have it on the tip of
The answer is no.
my

tongue what the estimate was two to three years

.7

ago?

8 9

n YY.

Rrrf

mrr nggglign

No. But I al-so know this, that as a result of the building practices of The Landing, it was impossible to put up poured concrete walls

10 11 L2
t_3

O A

Sir, can you just

any utility

to us.
ys or
no"

14

MR. SEIGENBERG: Your Honor, I move to

15 L6
T7

strike.

The question is very direct,

THE COURT:

Struck.

MR. SEIGENBERG: Thank

you, Your Honor.

18
l_9

O
r f1

So, Mr. Lund, try to f isten to the questj-on.

nl--.. \J jLct y
.

20

The guestion's really what you testified

at your
as to the

2t
22 23

deposition.

Did you, in fact, testify

estimate difference between the solid concrete wall, steel- wall, and the concrete block wall? recall testifying, "I don't,' I just recall
And do you

z4

there

was

]-29
1 2 3

a big difference?" A O
Okay.

So, let's

just leave it there.

Worr'l

4
5 6

rl \/crlr adrcc

wi .l- h me f hen

I'm not trying to step aside from my testimony,

that, you can read whatever I told you then, ds
MR. SEIGENBERG: f'11 do

and now.

that, Your Honor,

8 9

with the court's permission.

THE COURT: Yes.

10
1l_

Question.

"What estj-mates did you get for that

section of the waII that was built in 2008/2009, the solid concrete walf, steel waII, and then the
concrete block wa11?" "Do I recall?

L2 l-3
1"4

I don't recal-l-

what the estimates were. I iust recall there was a

15 L6 L7 18

biq difference. " A O A a

A
The concrete and the steel.

You're indicating that the steel was al-so very

expensive, as well?
The st.eel prices being, I befieve I told you
Would you agree with me that the difference between

t9
20 27 22 23 24

the poured concrete wall and the

The poured concrete wal-l would be more than the block

wall. a

And the steel woul-d be even more expensive.

You never really --

t_3 0

1
2 3

THE COURT:

Counsel, I'm not sure where

rznrr're rroino with this. J vs

MR. SEIGENBERG: WeII, I guess that what

4
5 6 7 8 9

I'm trying to establish whether

THE COURT:

There's not a buildinq

code

enforcement matter here. Okay. There has been

plenty of testimony as to what was built, what was

approved, what was not permitted, what was permitted.

So, I'm not sure why you're persisting in this.

MR. SEIGENBERG:
THE COURT: Yes.

10 11

Well, if I

maY?

t2
13
1A I=

MR. SEIGENBERG: ft's

reallY a
mOVe On.

once

again, Your Honor , rf you don't think this is going

.|_n he ho'l nfrr'l LU UE rrEf Pr Uf

+^ \'nrr t r-l.ran Itll Lrrslr L\J IVU

The WhOle
was
of waII

15 15

idea of this would be to establish that there

rror\7'lifl-Io vE!,). rlLurs thnrrnhf LrrvuYrrL r..rrr'\.oqq ylvvvr crirron fn the trzne "-I-Y"

l7
18 19 20

that was used.

THE COURT: Does

that matter? What is at

What

issue here is not what kind of wall was built.

is a issue is whether a wall- could be built there.

Am

2t
22 23 24

I correct?
MR. SEIGENBERG:

I certainly wouldn't

disagree with you, Your Honor.

THE COURT:

So, I'm not sure why we're

131
1 2
3 = 5
G
A

spending so much time on why he chose a block wall

instead of a concrete wall.

MR. SEIGENBERG: Because I guess what
nn'i yvrrru
my

nf r^r2s that vvqr Lrrqu

i-l.rarz nra+- r-rz pggfi Lrrv)' t/!vuu_)'

theif

attitUde

was, forget about The Landing. We're just going to do what's best for us cost-wise, otherwise. And it
seemed

7 8 9

to

me

that it. might be helpful for the court.

when

to understand the state of mind of these people

evaluating the
THE COURT: Wel-]

10 11
L2 13

obviously, he already

said, or f 've heard testj-mony that there was no discussions with The Landinq about it.
MR. BRENNAN: Your Honor,

I think this

goes

l4
15
1G

back to some rulinqs vou made earlier on that the

effect on the waII, Lf there effect on any of the

t-,,i'l,-J..i^^^ LJtlJ-rLr-Lrr95, ,,l...i^lWII_LUII +-L-f rdJ LlrdL
eve!vrrt

^^j^^ 9Urrl9

fa LU l-^ r.rs

rnar-l^nr crl-r(JLrlr

Ud>87

+l-,n LrlE

t7
18 L9 20
2T

neol i cren.re act'i on qugDLI\JIIr -,.^^r.:

'i

n anof her court.

urh:J_ .,^, r wE -^ wrrqu 1-^'^^ ll(:!g

And the
rnrl:rz LUUeJ fnr !v!
rJte

^-

T d9!Ee J- -nrao

fLlrqL hrf

.i

can a wall be within the 20-foot easement?

THE COURT:

Well-, there's two questions.

Can

a wal-I be within the 2O-foot easement, and was

Was

22 23
24

construction a viol-ation?
order?

there contempt of the

On the

MR. BRENNAN: Wel1, right.

L32

20-foot easement area, can a wall

2 3

MR. SEIGENBERG: And

I would suggest,

ds

related to those thoughts, Your Honor, the issue of the remedy in contempt, and we've certainly attempted to establish that the wall- that was constructed not done in a proper manner and has to be
r^ri1-noqq Yv!UltvJut rnd
qrfv

4
5 6 7
tJ

was

removed.

And this evidence I'm trying to el-icit from this

Tt I I i_rrr l-n r^rnrk ,aq rrrrir-k L!l Aq n.)qqihle-

would establish that there was no plan whatsoever by

10 11 a2 13
1,4

the Marina. And this is the reason this wall is

frrrlirz lqqrLJ. Qn Pvf Ttl'l II I frrr ulJ fn Lv mn\za rrlvvv ii_ a'lnnn

so

THE COURT:

I don't know if we've faulty or not.

established whether it's

MR. SEIGENBERG: Well, we've had expert

15 a6

testimonv.
THE COURT: We've had

testimony both waysf

t7
18 19 20
2L

and So, I think we' re

MR. SEIGENBERG:

Okay. I guess, then if

that/s your recoffection, that's why I'm el-iciting this from thls witness.
THE COURT:

I'1I let you go a little

bit

22 23 z+

more, but, you know -MR. SEIGENBERG: Understood.

Now, you didn't eval-uate the quality of the concrete

133
1
2 3

bl-ocks that you purchased; correct?

A a A O A

The

Yes or no, sir.

No.

4
5

And you didn't know the grade of the blocks that you

purchased; correct? Yes or no.

7
U

I did not know the grade because an erected wal-l, it

doesn't make any difference.
MR. SEIGNEBERG: That be Honor.
THE
COURT

stricken,

Your

10 11

: No, I' l1 l-eave it in.

t2
l_3

MR. SEIGENBERG: Okav.

0 A 0 A O

You dj-dn't hire a structural engineer before erecti-ng

t4
15
1_6

this wall; correct, sir? No. I consulted a structural Sir, you didn't hire a structural engJ-neer before
erected this wall? That is correct.
And this person you're referring to, you spoke to
some
you

I7
1B

19

zv
2L

individual at

some company

that was trying to

sell you the concrete bl-ocks; correct? A O That's correct.

So, you don't know whether he was a structuralengineer or not; correct, sir?

22 23 24

134
a

A O

I only know what he told

You didn't

me.

z
3 4 5 6 7
B

hire a surveyor before you did this

construction work; correct? A

No, not for this.
THE COURT:

I'd like to interlect here. I

thought we had testimony that Michael Lund was the

presi-dent at the time that this later wall was bui1t.
MR. SEIGENBERG: Correct, Your Honor. But

v
l_0 l_1

even though it

was

THE COURT:

So, have we established that

John Lund was in charge of building the wall?

MR. SEIGENBERG: I can do that,

T2

Your Honor.

13 L4 15 16 L7
l_8

That's a good point.

THB COURT: Okav.

And Mr. Lund, you would agree with me that you were

the individual who was involved with the planning for this construction of this wal-1; correct, sir? A O I was involved with the planning.
You were the one who made the decision with, I guess' Michael- Lund, ds to the type of wall you were going

19 20
21,

to construct; correct? A n Y. That's correct.

Anrl rza,r';'g lvu

22 23 24

the

One who went Out and

dealt with the

contractors and thinqs of that nature, the

135
1 2
3

construction of the wal-l A 0 A O A O A a

My son did that.

But you were also j-nvolved, were you not?

Do you mean

with the contractors? Very minimal.

5 6

But you were involved --

7
8 9

, for whatever this means. You were involved with the I

mean

HeandI-And you were involved in the decision making relative

10 11 L2 13
T4

to the design and type of wall that was going to constructed; correct, sir. A 0
That wallyeah.

be

You understand that there was geofabric that was supposed to be installed with this wall; correct,

15 15 L7 18 19 20 2T 22 23 24

sir? A 0 A 0
ANo O A
Yes or no.
No.

Yes.

You did your own calculations for the geofabric;

correct?
No.

You di-dn't hj-re an engineer to cal-cul-ate the amount

nf rranf:hri n ivYur!vsr ra.nri rorl .li.l
s+v

\/or'r Jvst

qi r?

136
1

MR. BRENNAN: Your Honor, il?y the witness

z
3 +

answer the question? He's getting cut off.

THE COURT: They

are yes or no questions,

you

and if you need to elicit

know how

further explanation,
you didn't hire an

5
6

to do it.

Sir, the question to you

rccnri

engineer to cal-culate the amount of geofabric

8 9

red for the wall that was constructed in

2008

and 2009; correct, sir?

10 11 L2
13

A 0 A O

No, I did not.

And the only evidence as to the geofabric purchase

are those invoices contained in exhibit 31; correct?

The only evj-dence.

t4
15 L6 17
18

So, the answer to the question is yeS, the only

evj-dence as to the amount of geofabric purchased' documentary evidence, is cont.ained

A O A O

The documentary evidence

1s contained in exhibit 37; correct, Is what? Is in exhibit 37; is that correct, sir?

sir?

19 20

Those are

2L
22 23 24
)

the invoices, if you want to look at A O

(Witness reviewing document.
)

them.

And one of the factors to not hire an engineer

i-n

this project was moneyi correct?

L37
1
z 3 4 5 6 7
tt

A O

The bottom line (indiscernible.) And one of the reasons that Borden Light Marina did

not hire an engineer for this job was economics, to

save money,' correct, sir?

A a A O A O

Yes.

Once

again, you didn't utilize the poured concrete

wall because of the cost; correct, sir?

That was one of the reasons.
And that was also one of the reasons you didn't use

9 1n rU

the sheet metal-, the steel sheet metal; correct?

That is correct.
And i-n fact. , rf you had used the poured concrete for

11 72 13 L4 15 16

the wall, that would have extended out further

seawarcl- would it not? s!vt

A O

That is correct.
And would have affected the amount of storage that Borden Liqht Marina would have obtained based on thls
/-^n qf rrrr-1- i nn nrni y!vJvvLt
er-.l_

l7
18 L9
zv

: COf f eCt

A O

That is correct.
Because ul-timately what Borden fLr-.''i-^ y rrr9

Light Marina

was

27 22 23 z+
n f1

11 auuvlrrl/rI i Drr 'vith thiS COnStrUCtiOn wOrk that Lv rccnmnl qh v

was done in 2008 and 2009, was to extend their boat

storage, their winter boat storage; correct?

nflLr ^-,-]

^--l.inrrPc'r^arrvt

fhe UlIs

ltsc Uog

nf V!

oltr vu!

\/Fs Jgt7

L-^f].. UULII

F^!V!

Vv

L^at

1-3 8

s1_oracle and

for our cars.

z
3
A a

O A O A 0 A O A O

Now, sir, the cost to construct this wall-, sir

Mm-hmm. Yes.

the excavation to construct the wallYes.

what was the cost of that project?

We

7
6

spent about $170,000.

see

Sir, could you turn to exhibit number 22? Do you

that?

10 11 a2
13 I+

I certainly

do.

In your experience and understanding, sir, the cost of a building permit, one of the factors is the
amount of the construction costs of the project;
r:orrer:t - sif vvvt
?

15 16 L7
18

A O A a A O A

No, it's

the cost of the structure itself.

Based on the cost of the structure; correct?

Yes.

And you put down here that the cost of the improvement is $78,000; is that correct?

19

zv

I did not do this.

Your son, Michael Lund did, as president of Borden

2l
22
23

Light Marina; correct? I don't know if it was him or one of the contractors. Actually, I think it is. It's signed by, it looks

z+

139
1 2
3 4 5 6

like one of the contractors. O A O A O

Did you see this application for a building permit

before it was submitted?

No.

Did you have any conversation with the contractors

and --

(Indiscernlble.

But nonetheless, the amount of money stated on the

application for the cost of the improvement A

A
Well

was

10 11

$78,000. That's not an accurate number, is it? , if you back out landscaping, I don't
do that. But my question it's already

I2
J

didn't

1-3
1A .i

I know you didn't.

-L

an exhibit in this case, and my question is, sir,

based on your involvement with this project, would

15

t6
a7
l_8

you agree with me that the cost of the improvement

was much more than $78,000?

A
O

It ultimately ended up costing more than $78,000,

yeah.

l_9

2A

So, this appfication,

sir,

this wasn't submitted

2L 22
23

before the construction work was done, was it,

sir?

A 0

No.

It was actuallv submj-tted after al-l the construction

work had been completed; correct, sir?

24

140
1 r

A
n \/

That i-s correct.

nlru

2
3

Anrl ]-rrr nlrlI!, Anri vJ

LvLvf

?n1n

P,nrdan DvLvvrr

T.i nhf !rYrrL

Mari na rrq!!rrst

T ass,ltmA r svvs.rrv,

knew

exactly what the cost of this improvement

was;

4 5 6

correct?

A O

We shoul-d have.

"We should

have." But nonethel-ess, in 2070 Borden

a

Light Marina's agent submitted an application for

R

l-" j 'l rl .i na nerm-i tL fLrrq L hat vu!ru!rrY lJs!rL(!

.i_S

an inCOrreCt amount fOr the

cost of the improvement; isn't that correct, sir? A I don't know how much vou can back out for
rqlruJvqyl-I.19

10 11 L2 13

'l

anclqr-an.i-^ AlrLl ,,r--r-.)t for the road. --r WllALltr

r don't

know.

But it did cost more than $78,000. O

Now, t.he work in 2008 and 2009 that was done, lo

I4
15 16 L7 18 19 20

person at The Landing gave Borden Light Marina

permissj-on to do the work; correct?

A O

No, no person that I'm aware of.

So, the answer to the question is, nobody gave

2009.

Borden

Light Marina permission to do the work in 2008 and A O A 0

Verbal or written
The answer is no; correct?
No.

2I
22 23 24

And in 2008 and 2009, you were stil-I aware there

was

a preliminary junction issued by the court; correct?

L4L
1

A a

That is correct.
Borden Light Marina, you sti1l haven't had an expert

z
3

to determine the amount of qeofabric that installed; A 0

We

was

4
5

correct?

haven't done anything.

No test has been

6
1 8

You haven't done anything, right.

built A O
No.

I mean, have been --

And this work that was done in 2008 and 2009, which

10
1-1

went from that sheet metal pil-e wall that was erected

in 2002, that extended a l-ittle over 600 feet, did it not, sir? A O I believe it's
630 feet. And the whole boundary line, that corner boundary

L2 13
1,4

15 16
1,7
1-8

l-ine between the Borden Light Marina property and The

Landing property, that was 1800 square feet

I'm

sorry, 1800 linear feet, approximately; correct? A a

Yeah.

t9
20 2a 22

And you're aware that the work that was done 1n 2008

and 2009, that excavation was in close proximity to

1-

he nrnncrl-

rz I i no

Ara you aware o, . ^-je \/rllr ,a\r7.rrA nf

1-

haf

qi r?

A O

Yes.

z5
24

But no surveyor was hired before the work was done;

correct?

142
1

A O

No.

z
3

Did you hire any expert to determine the impact, Lf doy, that this excavation and construction of the wall could have on The Landing?

4
5 6

No.

MR. BRENNAN:

Objection, Your Honor. I think I might be

Thanks. done.

THE COURT: Sustained.

x 9

MR. SEIGENBERG:

I have no further questions.

THE COURT: Redi-rect?
REDIRECT E]<AMINATION

10 11 L2 13 L4 l-5

(By Mr. Brennan:

Mr. Lund, you were asked to look at exhibit number would agree that those copies of the chapter 9I

with 90-9 being the designation on the page. And you license plan; is that correct? A 0
Yes; they are.
Now, let's

t5 t7
18 L9 20

l-ook at that for a moment again. On page

90-9, you were asked questions about the concrete retaining wal1 desi-gnated on that plan; correct? A O
Right.
Looking at 90-9, could you tell me how far off the

2L
22 23
z+

property line that retaining wall- is as shown on this

-^ -r LrlE vrqlr r aL !1-^ bottom, beginning ^-l

at the south end?

L43
1
2 3

A O

lt's

ten feet off the property fine. going past the

annf ho- ^Cint Y.

Proceeding in a northerly direction,

hrrmn vuu nrrf v! fuYvurruJ rz-forrr nf urenf !vu! vurlrl/
feoJ_ |- Lt s f lara i

4
5 6
'7

where the plan shows how far the wall is off the

nronerfrz line? A 0 A
Yes. How

far? it's ten, twel-ve, twenty-four,

f mean, sequentially,
si-xteen.

10 11

O A
A

And then going over to the next page, 90-10?

Fifteen, thirteen, twenty

thirteen, twenty-four,

l2
l-3

MR. SEIGENBERG: Obiection.

fourteen.
is the case.

I4
15
l_6

MR. BRENNAN: Your Honor, this

Therr're tal kino ahorrf nl ans showino the wall within

the twenty foot -- my next question will be, is that

,,.: !r-..r ^ +,.^*f ,, f eef WILl.t-LII LWCIILy rsEL

I7
18 L9 20

of the nrnnerf v! urrE yl-\JYEr

Ly

rr rf i ne which I rlE

overlaps the 20-foot easement area. So, it goes to

the questj-on of whether or not a wall is allowed within the 2O-foot easement going back to the original license to which the
THE COURT: Was

2L
22 23 24

this license in existence

before the

easement?

MR. BRENNAN: This Iicense was in existence

444
1
2 3

subsequent to the easement.

THE COURT: Subsequent.

MR. BRENNAN: Correct.

THB COURT:

4
5 6

So, how does this tend to

show

that this was what was in everybody's mind, and it

was

permitted. I mean, this was a unilateral

am

7
8 9

application;
application.

I correct?
was a unilateral

MR. BRENNAN: WeIl, it

It went through the public hearing

10

process of which The Landing at South Park received notice.

So

11
3.2

THE COURT:

Well, has that been

13

established?
MR. BRENNAN:

I4
15
1,6

Mr. Lund testified -THE COURT: He said he arransed to have

notices sent. Have we establ-ished that The Landinq actually received it?
MR. BRENNAN:

L7 18 19

I think I -- the plaintiff, don't know how it

We
was

The Landing at South Park on the notice issues.

THE COURT: We

20
2A

directed to The Landinq at South Park. know.

Do we have any evidence

don't

22 23
1

that they received it?

MR. BRENNAN: No.

THE COURT: No.

24

]-45
1
2 3
llv

MR. BRENNAN: And we have evidence there's

n.) vvJ99Lrvrr ol-rier:fion f^ fr-.i^ yorLru ^-eFr,:ular Ll, LIIrJ subsequent appeals by the plaintiff

there were

which involved

these p1ans. This wall as shown on this plan is

5
6,

carried forward through all of the license. Mr.

Lund.
THE COURT:

amendments

to the

I think I did establish that through

Yes, You did.

I
9

MR. SEIGENBERG: And

just doing the simple

But once again,

t0
11
1"2

math, it's within the twenty feet.

the reason I stood up a long time ago is, it had no

relevancv issues the court has to determine.
THE COURT:

t-3
1A f=

WeIl, I disagree with

You

there.

I think it has some relevance in terms of

15 L6 L7 18 L9 20

what the parties believed was the effect of the easement. At least we know what one side beli-eved
was oermitted.

That' s al-l

MR. BRENNAN: And I -- I'm sorrY.

MaY

continue?
THE COURT: Yes.

2L
22 23 24

Mr. Lund, when you applied for the chapter first

South Park project?

the

chapter 9I license, who owned The Landing at

The Landj n.r at Sorrth Park.

L46
1
2 3
+.
A

O A O

Right. But who were the principals of it?

That was John Keith. There was an Attorney Kelly
and

a Corbett,
Now, did you know Mr. Keith for any reason outside of

5 6

the business deal that you did with him? Any other
occasion to deal with him?

A
8 9
I\J

f told you that it wasn't

deal I had with John Keith.

I already told you the

O A

What kind of boat did he have? What kind of boat did he have? He had a fortv-foot

11 L2 13

(indlscernible. a

Do you know whether

or not the owner of The Landing

license

at South Park, when you filed the first A a A

Yes. How

l4
15 L6

application, was aware of that. application?

do you know that?

t7
18

Because

after the Iand conveyance took place,

i_l-rio LIIID +hinn LIraIlV.

he

required -- he had to file an environmental impact

nart t,q!L 6f

as

l9
20

O A O A

As part of the chapter 9I l-icense application?

Yes. Was

2l
22 23
A A=

it a

MEPA MEPA
url ^n

filing? issue. So, Corbett, Kelly, Keith,

narmi Ire!rrLf q fLo. nL^-l.f ICy >dW !L^qa LIIJE

It was a
l- nrra1- hor uvVsLrrs!

fror

.',

i- haqo Lrleos

ncrmi 1- q PE!1tt-LLD

r47
1 2 3

before they went in.

O A

At the time this application permit went j-n to the state, were the condominiums under construction?
That was after the
MEPA

4
5 6 7

waiver was qranted to build

the condomini-ums. That's when construction started.

MR. SEIGENBERG: He's not giving a direct answer to the question.
rf'Htr f-nllp'l'. f ltL uvvl\r.

That calls for a yes or no.

rana:lf ho nrroql. ,*.;II , in

f-nrr'l r{ \/^rr vv

n'l oa qa ?

10 11

MR. BRENNAN:

I don't remember it. don't remember it.

A11

THE COURT: You

t2
13 L4 15 16 L7 18 19 20 2L 22 23
z.t

right. O A O

Let's strike that last answer.

At the time the chapter 91 license was filed with the state, were the condomlnlums under constructj-on?
No.

Were

the condominiums did the construction prior to the granting of the chapter
91

cofirmence
1

icense

A O

Yes.

And on the original filing

of the chapter 91 license,

was the retaining waII proposed as shown on the

approved plans?

A O

Yes.

On

direct examination you were asked about the

wal-l

1,48
t_

construction, in part.icul-ar, in the years 2008 and 2009. Could you tell the court who it is that
constructed that wal-I?
Fatardo Excavating and Piccaro (phonetic)
Constructi-on.
And how i-s it that they came to do the work on this
nrni _v'"J arf ?

z 3 4 5

6
7 8

I had known Fatardo

lnnn fima iq : lrrnrr .'.,Y f imc?

weIJ-, I knew t.hem both for

10 11

n
A

Llnr^r lrrnr-r

Fatardo, twenty-one years.

Had they worked for you before?

t2
)

v
A
tl

13

Piccaro (phonetic) had.

What did he do for you before?

L4 15 15

He's the one that helped us take out those twenty-six shacks, and he worked on the roadway.
Now, to your knowJ-edge, did Mr. Fatardo have any

t7
1B

construction experience on the building of retaining walls?

n

19 20
21,

He

built a few within the city. 22,

and

You were asked about exhi-bit number

that

was

zz
23 z+

the applicatlon for the building permit for the wall.

Corrl \-\-rLlJ_Ll

rl \/rr1'r LLr!11 rrrr y\-/u

.1-

#^ +tr-^ LL L\J LllE '')

I-

rleaSe?

Can you tell-

, or can you make out who's

j.49
l2
3

signature is on that application, third page? A 0 A a

No.

I believe, ofl the

4 5
6

If you would, direct your attention to I'm looking at 669 Locust Street is in here Okay. Then could you turn a couple of pages to
workmen' s compensation affidavit.
a

MR. BRENNAN: And this is an asreed upon

exhibit,
10 11

Your Honor.
THE COURT:

Okav. What number was that?

Number
'7

MR. number 22.

BRENNAN

. I'm sorry, it'

t2
13 L4 15 16

0 A 0

Did you find the workmen's comp affidavit?

James Fatardo.

And attached to that workmen's comp affidavit

is

another affi-davit by Mr. Fatardo; is that correct?

t7
18

Yes.

t9
20
21,

MR. BRENNAN: Your Honor,

I won't go into
been

the details on it, but it is an exhibit and it's

aoreed fo T rrrst ask Yorrrl HOnor tO take note Of

22 23
.A z.*

that affidavlt by Mr. Fatardo as it pertains to the wall construction.

THE COURT: Okay.

150

MR. SEIGENBERG: I
2 3 4 5 6 7
R

believe that exhibit

was

introduced simply as

not necessarily for the

truth of the matter asserted. It's a different affidavit

THE

COURT: No; you know, I think the

he

I'm not taking it as the truth of the matter, that

sionecl qrr af fidavit an
Jf,Yrrvv

which sav.q certain

f hinos

Tt's

the fact that he signed the affidavit.

MR. SEIGENBERG: Thank you, Your Honor.
MR. BRENNAN: It m soins to ask Your Honor

10 11
12 13 L4

to consider the content of Lhem, as we1l.

aoreed upon exhibit.
THE COURT:

It's

an

We1I, I don't know whether it's

true or not.

We

haven't had any testimony on that.

15
1,6

MR. SEIGENBERG: Correct. MR. BRENNAN: Wel-1, having been admitted

L7 18
1,9

thus far, I think the burden can discredit. the affidavit and would have fallen upon the other party
when we introduced

this, in the cross examinati-on of Well, agaj-n, I'm not sure

where

20
2L

Mr.

Lund.
THE COURT:

22 23 z+

this i-s all relevant, anyway. So, you can cross

examine because of the guestions that were asked, but

I'm not sure it/s qoinq to

make

that much of

151
1
2

difference.
MR. BRENNAN: Thank
n

you, Your Honor.

Mr. Lund, you were asked about exhibit number 14.

Would you please refer to that? And woul-d you agree

4
5

that that's the waterways l-icense 9876?

A
a)

6
7
R

Yes.

I'd like to ask you if you would refer to the fourth

paragraph on that first

page. There's a reference

Can you

there to a straddle hoist pier. court what that

d

tel1 the

10 11
1"2

means?

That's a pier, two piers, basically four feet wide,

going perpendicular to the land, out into the sea.
On those

13 a4 15 L6
O

piers sits the travel lift

when

it drives
could

out over the water. This was

buy and use the travel lift.

travel lift

And there's also a reference to a retainino wall on

I7
18
1_9

that permit; is that correct?

n n

Ycq

a
A

And there are plans attached to that permit. 78-28. Now, you were asked if you engaged the services of an

20

2t
22
z5 z4

engineer prior to constructing the wall in 2008 and

2009, and you answered no. Coul-d you now tefl the
nnrrrf
'i r.rhrr 19 l- r' S \/Oli i JVU
a.l UrV

i1-l ttVU nof

hi re
tlr!E

an ErIYr encr.i.neef ?
qII

1-52
1

There was an enqineer that came down from the Cape.

He asked me to dig out and take some samples to look

z
3

at the dirt.
\-\JrrrIJalry

And he basicallv

represented the
And he had a book

4
5
A

'-"

+-1-'-f Lrrq L

sold concrete blocks.

on how to calculate what we needed for

fLrrg L-r^lcrk- scl thaf r-^ rJUvr!t

what vou
He

needed for geofabric in different situatj-ons.

9CrVE tttE

7
8

was

and it

seemed rather

straiqhtforward.

A A O A O A 0 A O A
n v

Mr. Fatardo did the actual construction; correct?

And

10

Mr. Jerevek (phonetic).

11

And Mr. Jerevek. Do you know how long Mr. Fatardo

I2
13
1A

has been in the construction business?

I want to say twenty-four years.

Do you know

r.*

1f Mr. Jerevek -- or is that the

company

15
L6

name? Is that a person?

That/s his

name.

L7
18
1,9

Do you know how

he's been in construction?

At least twenty.
How

i-s it that you ended up with two contractors

20
2L

working on this l-ast sectj-on of the wall?

Because one of them was coming -- oh, Jimmy was

22 23

coming and coming and coming, and he never showed up.

rJl--.i ^]vYltautl

^-e? \rII!

z+

Fatardo.

153
1
2 3

0
6

\-/

^o.

So, then we got hold of Jerevek, and then, Iike,

navj_ tru^u rl:rr uqy E'-aj.:rrlntq r qLs!uv
o !vquj

the
f ine-

ro:rlrr

fn.r.)Yv. uv

Sn I
pv

if tqu

rrrlvt

l'i ke-

4 5
6 7 8 9 l_0 1l_
3"2 w

you both can do it.

You were asked if you had received permission from anyone at The Landing at South Park to construct that

last section of the wal-l- in '08 and '09, and you

answered no.

To your knowledge, was The Landing

at.

South Park aware that you were building a wal-l?

MR. SEIGENBERG: Objection, Your Honor.
T+t J ^ -L L
!vv!!vvet

r^^,,^-^ +he sr.:one v! where are we now. This is of vvl tJUy\rll.L,t Lrre JvvyE
rcr-1-

redi

- Yorr; Honor. I don't think I went into that

13

e ro2

I4
15 16

THE COURT:

I think you did.

I think you

di-d ask whether he

had nh-i or.1. od

whether anyone at The Landing

t7
18 19 20 2L 22 23 24
rrrroqtiervrrrnn

MR. SEIGENBERG: Riqht.

That's different

than -THE COURT:

i f

I thj-nk this goes to that

ArrrAFO
qYvqlv,

fLrrv). harr r^rara nnj-

or

vrhether

J-

her;

MR. SEIGENBERG: Okay. Then my next

objection to it is, I think some foundation's got to be laid for him to tell the court what my client
was

]-54
1
2 3

aware of or not aware of.

i-

That's what the question

ho

crrroqi-

iOn WaS tO the awarenesS Of

THE COURT:

f see what you're saying. I see what you're saying. All

4 5
6

MR. SEIGENBERG: -- mv client.

THE COURT:

ri ohf - \.zFs

Ol-riri orr s l

rr he t d have to demonstrate

whether he was aware of what thev were aware of

8 9

MR. BRENNAN: WeIl, ily question was

THE

COURT:

and how.

10 11 L2 13

Do you know whether they were aware of the

construction of the wall in '08 and '09? Do you

know?

A 0 A O A 0 A O

Yes.
How

t4
15 L6

do you know that they were aware of it?

Because it was impossible not to be aware with the

noj-se they made.

Such as?

t7
18
1,9

Construction noise.
What type of equipment did they have?

20

WelI, they had backhoes backhoes, excavators,

16-wheel trucks, cranes.
And didn't you ever
THE COURT:

2I
22
23

f just woul-d like to interject.

z+

I think we've been allowing the term, "The Landingr"

155
l2 3

to inc]ude a lot of parties.

Vrlhen

we talk about The

The

Landing, in my mind, when you're talking about

Landing, I'm saying those members of the board, the board itself. Did the board have knowledge

4
5

MR. BRENNAN: Correct.

THE

COURT: as opposed to individual

unit owners or residents, okay, because they are not

a
l_

ha

n: rf rz hara

MR. BRENNAN: I will

agree that they have

10 11
T2

to act as the board of managers. So, when I say "The

Landingr " I mean the board of managers.

The work was done right in front of Mr. Daquay's

condominium

13

unit.

And in 2008, Bert Bouffard, he

was

I4
15 16
T7

in building 3, so it was right in front of him. O A O A

Are they both members of the board of Did you observe
Another member of the board, I believe he's been
on

managers?

Bouffard is not now, he was, I believe, in 2008.

18

t9
20

the board since 2006. You often see him up on the

bank.

2L
22 23 24

O A

Any others?

I mean, I was only up there one day that I

raa:l I l- tjUctJ--L t 'F:l Linn Lcl-L J{.IIrV
l_ n Lv

can
f\rnrr:rz lJoYLroy =nri 7 orru

f-h:r'laqrsJ vrlq!

:nj

]- :l

kinry

i_

^ -\J

PauI Beede (indiscernible), whose name I couldn't

155
1
2 3

to incl-ude a lot of parties.

r -^^.i ^^ 119 !olIUf
f f ^ rr

When we

talk about
abOUt

The

.i

*rz m.i nA ItLy rltlllu/

r.rl.ran )/vu rF wllErl "1..1ltt !s

fLqr^rrrY no al ki

The

Landing, I'm saying those members of the board, the

board itself. Did the board have knowledge
MR. BRENNAN: Correct.
THE

4
5 6

COURT: as opposed to individual

unit owners or residents, okay, because they are not

R

{_ha LrlC

n:r-F.t Ly lJO!

haro lrVrU.

MR. BRENNAN: I wifl

agree that they have

l_0

to act as the board of managers. So, when f say "The

Landingr " I mean the board of managers. The work was done right
condominium
lll

11

t2
13 L4 15
1-6

in front of Mr. Daquay'

was

unit.
Jf

he And 1n 2008, Bert Bouffard, h

i^ r^r^s !fVIIL ^lar Ill r.i wqJ
!!vflu

-i

n hrrildin(.r VUfrUrrIY|

j-

sn IL if Jv

franf

of him.

Are they both members of the board of managers?

A
O

Bouffard is not now, he was, I believe, in

2008

L7 18

Did you observe

Another member of the
hnrrrl vvs!e, T ho'l i c-,^ * --**ive 1-^t $ L-^^* lle ^ rJeeil on

t9
20

the board since 2006.

bank.
O

You often see hi-m up on the

2L
22 23 24
1

Anrr

nl-harq? T wctJ -L ..'^^ f:Ik'inrr uqr nn-1 rr rrn vrrrJ uy l-hora ullE!v (JrtE -J^., ucly FI--+ Lrrq.L
I UAII

T h^-h f rttvo..Llt rar..aI'l

t

.l-n Ch:rloq

and talking to
f

L/c1L4Lrq'y, O.rr\,r

D:rr-l

Roada

/ i nrl'i e-arni \rrrs4uvvLLLLpLvt

hl o\

whose name

I couldn't

156
1
2 3 = 5 5
A

remember.

O A O A O A O A O

Now

And he was up there.

-- was that during the construction of the

Yes.

wal-l-?

And the year was when?

2009.

7
8 9

Did they tel-l- you to stop?

No, they did not tell- me to stoP.
You were asked if you hired a surveyor prior to

10 11

undertaking construction of the wa11, and you

answered no. Have you had any survey work done on

t2
t_3

the A a
Yes.

conrmon

property Iine between Borden Light Marina

L4

and The Landing at South Park at any time?

Has it come to your attention t.hat a portion of the

15
1_6

L7 18

retalning wall at the southern end may in fact

over onto The Landing at South Park property?
MR. SEIGENBERG:

be

t9
20

Objection, Your Honor.

That's
way

It isn't
MR. SEIGENBERG: Objection.
l-rarrnnr] vv_y viru q^nna

2L
22 23 24

MR. BRENNAN: They sued

me. They sued my

client for that.

]-57
f

MR. SEIGENBERG: That sti1l

doesn't all-ow

2 3

him on redirect,
uP
cl L
\

to do something that wasn't brought

And that's

rr- Orr I vrl cross examination. r'l nn

t n rln

what he's

4
5 6 7
tJ

I rrzi na

THE COURT:

That's true. to strike.

Objection sustained on that

MR. SEIGENBBRG: f move

THE COURT:

one.

MR. SEIGENBERG: Thank You, Your Honor.

IU

Si-nce

the walf was constructed, Mr. Lund, have

you

11

t2
13
1,4

hired a surveyor to lay out the wal-I in relation to the common property line between Borden Light Marina
and The Landinq at South Park?

A A

Yes.

15

As a result of that survey/ has it been determined whether or not any portion of the retaining wall is

l6
t'7

over onto property owned by The Landing at South

Park?

T9

A O A a A 0

It was constructed over t.he property.

Do you know how much?

20
21,

I don't

know.

22 23 24

Do you know

if it's

shown on pl-an.

the plan?

It's shown on t.he

And if in fact that is correct, would you be willing

158
l-

to remove that A O A

wal-l?

z
3 4 5

As I've said, I'd be happy to remove it.

The portion that's on The Landing property? The portion that's on The Landing property.
MR. BRENNAN: I have no further

questions,

Your Honor.
7 8

THE COURT:

Atl right-

It's twentY of

v
1_0

three. Let's take another ten minute break, and then I'd like to finish up. Do you think we'l1 be able to finieh nn brr 4:00 or 4:L5. I think, the way we're 4v "-r
going.
MR. SEIGENBERG: Oh,
THE COURT: When

11 a2
1_3

yes. I won't be long. back, I will also

come

t4
15 16 L7 18

rule on the Iatest request for prelimJ-nary

i Ilr_J Urrv ^+ '.-n]_ LIvrl
-i

an

MR. SEIGENBERG: Thank You, Your Honor.

(Af

ternoon break. )

MR. SEIGENBERG: Recross, Your Honor?

THE COURT: Yes.
RECROSS HSMINATION

t9

2L
22
z5

(By Mr. Seigenberg:

O A

Mr. Lund, if you could look at exhibit \4, specifically the first
Yes. Page.

pl-ease;

24

159
1
2 3

And Mr. Lund, you agree, Lf you look at the bottom,

that waterway Iicense only was issued relative to

+.

1-,-+ LIICt L PUI

nf t/r vyv! L_I in anrl o\/ef U!vII ^ari--i 66 v! nronerfrz

the watefS

Of

4
5 A

the Mount HoPe BaY?

Yaq

o
7

And that's what a waterway l-icense does for issues

such as construction that was going to be done on the

land itself,
9

away from

the waterway. That's a notice

of intent that has to be filed; correct? A a Yes. That's exhibit

Right.
13.

10 11 a2
l-3

Mr. Lund, I get this straight, You spoke to some person down the Cape about these concrete blocks; correct? A O A 0 A O
Correct.
And sir, you don't know what qualifications,

L4 15 16 L1
l_8

Lf

doY,

t.hat person you spoke to down the Cape had?

I believe I've answered that. said what he told are, do you, sir?
No, except what he told
me. me.

You asked me and I

19 20

I know. But you don't know what his qualifications

2t
22
z5

And you don't know whether he was a structural

cncri noer

24

.-,r w1--f (]t-ldrl-]--LUctLr\JrtD ^-^"-l i f i n:+_ i ";iclL

; LL aLLy I

he had;

160
1
2
3 n YYarl evet qi r?

That's correct.
And so, what happened here is then, You speak to this

4
5 6 7
R

person who's trying to sel-l you some concrete blocks

down

the Cape, and based on what he tells You, he

then oi rre.s vou a book; correct?

A

Right.
And then based on the book, which you thought seemed

pretty simple to You, you then went forward with the

rlaq i nn nf
A
1-

10

ho i46l];

COf f eCt?

11
L2
13
3,4

That's correct.
Now, sir, back in 2008/2009, I'm specifically

diror-t-ino \/orrr attention to the actions of Bert

j"*

15 L6 L7 18 L9 20
A

Bouffard, who was then the chairman of The Landing's board. You're aware' are you not, that Mr. Bouffard
went and complained to the building inspector of the

citr; nf F:ll River relative to the construction that vr ul

was going

on?

You were aware

of that'

weren'

You,

sir? After it was completed.

But you're aware he went and complained to the city

2L
22

z5
24

of Fal-1 River building inspector; correct? Right? I know he spoke to a lot of people. That's what I
understood; specifically,

I cannot tell you for

151
1
2 3 n v

cerLain.
An; nllu ana-ifin:llrz o[/su!! | ho L.v c-^l-^ l\v Jy\J !^ L\J a 'l^f f u L norrr-tlF ysvyrs

complaining about the work that was being done' and

had been done near The Landing property in 2008 and

4
5 6

2009; correct, sir?

THE COURT:

Counsel, f think we've

gone

over this several times, and I think I suggested to

6

\r^rr vllvs .)n.-a v! ^r

yvU

.l-

r^ri uvvlvu,

r-e- lrerhans t/v!rrqlru

mrrre- vv!vrvt hefore.

rrlv!vt

that

the

viol-at.ion of the building code is not at issue in

10

this case.
MR. SEIGENBERG: Understood, Your Honor.

11
1,2

The point was, it's

and I'11 move on lf

13
1,4

THE COURT: And

I think we've don't think it's

MR. SEIGENBERG: Vou

THE COURT:

15 l-6
1,7

-- you know, we've heard plenty of testimony about this. I don't know if it's that
important to keep repeating it.
MR. SEIGENBERG: Where I was really going

18

L9 20 2L 22
23

with this, Your Honor, and maybe I didn't clear or maybe the court still
I/qrLIUU!q!Iy

make

it
I

doesn't think it's

Ttllrr ! mn\ra On.
WaS

narf ir:rr'l arlrz

!gIgVqIILf

rclerr:nf

_ LL if

llvut

n^F

just trying to establ-ish

they brought out during

The

redirect, the idea that whether people from

z4

Landing -- board members of The Landing knew about

L62
1
2 3

the project and whether they complained or not

^^-n'l :inad
u\Jll.LPICl-L1rEU.

Ttm irrsf ILL JuoL

r

hrincrincr
v!rrryfrrY

orrf fhe

faCt

that

there were complaints.

THE COURT:

4
5

After the fact. f'm not so sure it

was

MR. SEIGENBERG:

after the fact, Your Honor. I don't accept that, but

7 8 9

r:erfainlv LqJtrrJ
u9!

fhero Lrrurv

\176?F r-omn'l

aints

about what was going

a)n

THE COURT: Okav.

10 11 L2
13

MR. SEIGENBERG: And that's

where I'm

going.
THE COURT:

As to the construction?

MR. SEIGENBERG: ExactIY. MR. BRENNAN: Your Honor, mY question was

t4
15

complaints by The Landing at South Park to Borden

T, i !ryrrL

t6
L7 18
l_9

crhf

Ma r.i !'lq!rrrq.

na

r^r1^ yvllcrL

r-,^., -f fLlrgy uJi-d and Went tO third ^

nrrl-ioq

THE COURT:

Okay. I think I've got it.

think we've had a lot of testimony about this issue.

MR. SEIGENBERG:

20 2L

I know, Your Honor.

Honor.

You're right.
orresti ons. \4UsOLrVrrJ.

And

with that, I have no further

v^": rvur

zz
23 24

Tl''-^trrIOllN

JVUr

THE COURT: Thank you.

MR. BRENNAN: No

further questions.

153
l_

THE COURT: No
ri oht -

further questions.

Al-1

2 3

Do we harre anvf hi no mrrro l-n nre<gpll

MR. SETGBNBERG: No, Your Honor.

THE COURT:

4
5

Alt right. sir.

)

You know the drill. Thank you.

You may step down,

(Witness stepped

down.

MR. SEIGENBBRG: There's

c
9 l_0
I L v sL

just one other

And

aree- Yorrr Honor- hefnre we close the evidence.

that was the area I brought to your attention earli-er.

v4LvLLLf

What I'd like to do is to recall

Charles
The

11 L2
13 L4

Sr-hn'ifzlein- who was the chairman of the board of

Landing, f or somethj-ng that's occurred since the l-ast

time we were here. It's a

came

new development

that just

to our attention that I think is i-mportant for

THE COURT:

15 16
1,7

the court/ s consideration of the contempt action. Well, do you mean additional
No, Your Honor

construction?
MR. SEIGENBERG:
THE COURT: No.

I6

19 20 2T 22 23
z+

MR. SEIGBNBBRG:

T+.t rL

6 D

-,,^f Jt.t>L

fLrlY t-^

.innra.rrr[[IJcr(-L

\-rL ^

the excavation on the

THE COURT: No.

I think we've already

The

tal-ked about the impact of the excavation on

T.andinn lqrrurrly hrri'l vurf .lin^uatl9 J iID nnr L d. L rf Il\J

issue in this case.

L64
l_

MR. SEIGENBERG: OkaY.

THE COURT: OkaY.

2 3 + 5 6

MR. SEIGENBERG: Thank You, Your Honor.

THE COURT: Thank you.

You know what happens next is that you will

receive at

some

point in the future, the transcrj-pt,

And once you

t.he remai-ning transcript of this trlal.

have received notice from this court of that

1_0

transcript coming in, you will have thirty days' normally, for both of you to file any briefs,
proposed findings and rulings, however you would like
t_

11

l2
)
13

n nraqanl- i f tO the court.

YOu know, it'

s up to you

the form that you present it in.

1_

Do you

think at

t4
15 L6 L7
18
1-9

h'i

nn'i

ni- i- h:f

t-

hi ri-rz darz5 iS tOO ambitiOuS, given

the
MR. BRENNAN: Can we keep

it at thirty'

Your Honor, and then if we're running into a problem,

can we file

a motion -THE COURT:

Yes. I only hope that if you

20

do

sc, |av

\/ou
""

w'i

11 determine that not on the thirtieth

2L
22 z5 24

d.y, but

maybe on

the twenty-seventh day, or

so

twenty-ninth dty, and that it would be assented to that al-l- parties are filing at the
MR. BRENNAN: It will
same time.

be comprehensive, so,

l-6 5
1
T IIte<iIIr I marn T l.r:rza a IldVe; n^ lrv
"i i vu_JevLrvrt rryr l-I yUt-l ^l-\ia-l-

.'-hf WdIIL

fLv o

sef JEL

si xf v rrALJ

z
3 4 5
R

days now and just finish with that.

oarl galllg!, .iar l-rrr.t- lU tsJ oo'i no fuvo hc vu UU L if YvrrlY

We

can get it in

cnmnrehensive.

THE COURT: A11

right.

WeIl, why don't

we

split the difference and say forty-five days from the receipt of the transcript, and I think that should give you plenty of time.
Now, I know I have pending before me the

t'
9

plaintiff's

motj-on for a further preliminary

And

10 11 L2
13 14

in-iunction in view of their contempt compl-aint.

as you know, we've had hearings on the contempt
complaint prior to this trial.

And at that time' I

determined that the defendant had, indeed, viol-ated

the order. And I reserved untif after the trial

.i

on

15
t-6

the combined contempt and the merits, what exactly,

-L

ctIIy LILtIIV / L rnrrl_ hi na

T .,-^ ^^.i ^^ -L wq'D VUf lrv

*l LL

dO abOUt

that.

I'7
18 L9 20 2L
d L

At this point, having heard the testimony

rr_ l_ r.i Al t AIIU narfLIvurq! ar'l!J v in VieW Of the defendant' :nA IJq! i cril LJ- f ='l own testimony,

that it constructed at least

two

phases of the retaining wa11 within the so-called

erosion control easement area despite being fully

aware of this court' s May 23Lh, 2000 order, which
nrnhih'i1-odL9s f IJlVll' Rnrdon UVlVVrl T.inhf
lrYrru

zz
23 24

M:ri-:
'

+ e

it_tq

nffigg15,

agents, servants and employees from engaging in any

1_66

construction wlthin that area. I

am now

orderj-nq the defendant to

3 4 5 6

immediately remove all boats, aIl equipment and

vehicles and structures from the portion of the erosion conLrol easement area adjacent to the 630
plus/minus feet of retaining wall which was buil-t in
2008 and 2009. And that said removal is to be

compfeted no later than February 19th at 5:00 p.mAnd further, that the defendant, it's

10 11

officers, agenLs, servants and employees are enjoined from using said area for storage purposes of any kind until further order of this courL.
MR. BRENNAN: May I be heard on the date,

t2
13

l4
15
1_6

Your Honor?
THE COURT:

Yes, You may.

MR. BRENNAN:
r-l i ent
vf+vtret

In discussions with

mY

L7 18

- the manner in which the boats are stored is is used to accomplish

cantt
be

sequential, and the travel lift

t.

t9
ZU

ha I arrari nrr of the boatS.

And in order tO get

fhere q!v are ooin,^r l-o l-re e nrrmber of boats that Lrrv!v YvrrrY
moved

2t
22 23 24

without the travel 1ift, which is going to

reguire other boats to be moved, and it may require

+-r-,-+ {_ hn-r VVUaV d Vs nrrt vqvr LIlO L LrrEJ ^^,,'l he .t/u L har-k in the water to

accomplish this.

So, I would, you know, ask if Your

l-67
1

Honor could reconsider the date of the requirement

t_

z
3

h:j_

i_

horr l-ra !romnrzod - srl th-{_L Ii +- rttay gltt\J v su, L Lrld Dv

^^i ncide
uv!

with and

taking them out of there on the seasonal cycle,

nnf lro _vq " haCk in nrr.l_

4
5

THE COURT:

I think that's

extending it too
May.

6
n x 9

far.

I think you're talking about

MR. BRENNAN: We11, they probably

start in

April.
THE COURT: Yes.

10 11

MR. BRENNAN: It's

THE COURT:

iust that there's not

I mean, we've had -I realize that, but I also

t2

MR. SEIGENBERG: enoush time to do itTHE COURT:

13
14

realize that your client has been aware of this issue at l-east since this fal-I, that when we had the heari-ng, I specifically
asked for information about
how many boats were stored there, and what it. would

15

t6
L7 18

take, what kind of plan would be used to remove them

J-

t9
20

;+I

h^^/-l IIggLr

h^ UE

-n^ qlIU

T nnla Vv L

n.r IIv

!rasn.)nseeoI/vrruu

Thefe

WaS nO

testimony here as to exactly how many boats are

2l
22

stored there , or what's involved in removing them. So, you know, you're asking me to give a kind of

z5
24

additional permission to do something which shouldn't

have been done j-n the f irst P1ace.

168
l2
3

So, while I'm willing

to listen

to

reasonable proposal, Lf you can provide to me within the next week, a wri-tten statement of exactly
many boats need to be removed and exactly an
how

4
5 6 7
R

estimated time that it would take to remove them, not rrrrrr h^^r,,o^ I don/t think it would take three months L"to-y I uE(-o'LrDE

to remove boats, I

willing to consider that' another reasonable time. But right now j-t's thirty
am

days until hear otherwise.

MR. BRENNAN: Would we Put that l-n a moti-on

10

11
L2

form, Your Honor, to mark up for hearing, or "^"'r r yL,u "--t it to be wuur\l walr
THE COURT: You mav

how

13
1A a=

Put it in a motion I will take it

form. I won't have a hearing on it.

15

into consideration, and unless I cal-l you and call you in and ask for a hearing, I probably will decide
on whatever you submit to me, but I expect
a

L7
l_8

realistic

estimate of time, and I'm still

not

L9

convinced that it can't be done in the next month. I

zv
2L
22 23 24

doubt it took a month to put the boats there. And I

understand it will be extremely difficult,
and

probably be an expense. But by the same token, the

defendant here has will-fullv violated a court order,'
and there has to be some recosnition of the

1,69 1
2 3

seriousness of the consequences of that'

particularly,

4
5 6 7
R

I might say, in view of the fact that at least one officer of the defendant is an attorney. MR. BRENNAN: Your Honor, I understand that. And the testimony, you know, j-t was truthfultestimony. It is what it is. did raise
remedy
manv

However, You know,

we

-- whether or not, it's not a defense to a contempt, but it certainly can factor in on a that Your Honor might
THE COURT: And

10

believe me, I could

have

11
L2

done a much more stringent remedy, Iike, remove aII

l-3

of the wall_s that were constructed within the last, ten years. And I've what is it, twenty year
chosen not to do that precisely because of these

t4
15 15

other factors, and namely, as I heard here, there was no action taken at all by The Landing, dt feast with
respect to the first two segments of wal-l - And you know, the fact that they delayed and watched this

l7
18
IY

l-ast segment of wall being built before doing

anything about it.
So, while I could have ordered the entire

20
2L

22 23
z.*.

wall removed and the entire bank restored, or

rnrri- h-i qrly LrIlrlv

nn

.i Jlr

ho.t- vreon veuwuvrrt

- rT thi nk that

the very least

that

am

going to order until this case is resolved, is

L70
1

that the defendant not benefit in a monetary way by

being able to use the area that was clearedMR. BRENNAN: So, f will file that,
Your

')
z
3

Honor. And you want that within -THE COURT:

5
5 7 8 9

Within a

week-

MR. BRBNNAN: The next week-

10
l_ l_

Yes. And again, I want a good faith esti-mate of time and rationale behind it, so that I can make a reasoned deci-sion on this. I don't want to reject it out of hand- I want to be able to
THE COURT:

consider the factors involved.

MR. BRENNAN: Thank You, JudgeTHE COURT: Thank

l2

l-3

You. The court's

t4

adj ourned.

(Hearing concluded at 3:15 P.m-)

L7L
COMMONWEALTH

OF MASSACHUSETTS

Tt Karen V. Smith, Professional Court Reporter and Notary PubJ-ic i-n and for the Commonwealth of Massachusetts, do hereby certify that the foregoing record, Pages 1 to L70, inclusive, 1s a true and accurate transcript of my system tapes to the best of my knowledge, skill and ability.
Iamnotconnectedbybloodormarriagewithany
(-)I

-:i LlIg ^t +1-,a :idILl rl n--{-'i nc 7 Yct! L-LUJ

nn rrv!

r !r ntereSted i

direCtly

Or indireCtly

in the matter in controversy.

IN
)

WITNESS WHEREOF'

I have hereunto set

mY hand

and Notary Seal this 22nd daY of February, 20IL.

nN V. SMITH, Notary Publj-c Commission expires: r0/LB/20t3

PLEASE NOTE: THE FOREGOING CERTIFICATION OF TIIIS TRJN{ISCRIPT DOES NOT APPLY TO ANY REPRODUCTION OF THE SA}4E BY A}itY MEAI.IS I,NLESS I,NDER THE DIRECT CONTROL AT{D/OR DIRECTION OF THE CERTIFYING REPORTER.