Trial Transcript Day 3

8/3/2019 Trial Transcript Day 3

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Volume: IIIPages: 2L9

Exhibits: 2

COMMOMIEALTH OF MASSACHUSETTS

BRISTOL, SS. I,AND COURT DEPARTMENT

OF THE TRIAL COURT

MISC. CASE NO. 254067

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

Before: Cutler, 'J.THE I-,ANDING At SOUTH PARK

CONDOMINIT}M ASSOCIAT ION

Plaint.if f

vtt.

BORDEN LIGHT MARTNA, INC.

Defendant

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

Wednesday, November 10, 20L0

Courtroom 6

226 CausewaY Street.Boston, Massachusetts 021-1-4

i.' '' '''':-i1,::

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KAREN SMITHCourt Reporter

14 Palmer AvenueDanvers, Massachusetts 0 I 923

(978)777-s802Fax (978) 777-5803

COPY



LANDING v BORDEN LIGHT #254067.VoL. rut0n0Volume: III

Pages:219

Exhibits: #43144

COMMONWEALTH OF MASSACHUSETTSWITNESS:

INDEX

DIRECT CROSS REDIRECT RECROSS

BRISTOL, SS.

* * r* * ** *** *r* * * ** *

THE I.A,NDING at SOUTH PARK

CONDOMINIUM ASSOCIATIONPlaintiff

BORDEN LIGHT MARINA, INC.Defendant

** * * *** * * * **** t * * +

LAND COURT DEPARTMENTOF THE TRIALCOURT

MISC. CASE NO. 254067

Before:CUTLER.

J

CHARLES SCHNITZLEIN

(By Mr. Seigenberg) 6

(By Mr. Brornan)

JAMES FIALL

(By Mr. Brennan) 55

(By Mr. Seigenberg)

MICTIAELLUND

(By Mr. Brennan)

@y Mr. Seigenberg)

PETER ROSEN

(By Mr. Brennan)

EXHIBITS

No. Description

482

82J

145

80, 88

175

Wednesday, Novernber 10, 20 10

Courtroom 6

226 Causeway Street

Boston, Massachusetts 021 14

9l

182

APPEARANCES:

DANIEL R. SEIGENBERG, ESQ

MATTHEW WATSKY, ESQ.

2 Commsrcial Street

Sharon, Massachusetts 02067

(78 1)784-8800

Representing the Plaintiff

EDMUND BRENNAN, ESQ.

Brennan, Recupero

One Church GreenP-O. Box 488

Taunton, Massachusetts 02780

(508)822-0 1 78

Representing the Defendant

Id. Evid.

43 Planoflandshowingencroachments, 70

dated 10/29199

44 Curriculum Vitae of Peter S. Rosen 1 87

KS COURT REPORTINGl4 Palmer Avenue

Danvers. Massachusetts 01923

Phone: (978) 777-s802 FAX: (978) 777-5803





LANDING vBORDEN LIGHT #254067 VoL.III that stone wall intrudes onto The tanding's property.

2 The answer was "yes."

3 Q Can you tell us where, sir? I know there's a plan

4 that shows it, but -

5 A Well, it inhudes on our property from where it tums

6 back to a point, and that point isnt actually

7 referenced here. Actually, thatpointis further

8 down because it's indicated by a marker that is

9 basically where the fence post and the property come10 together.

I 1 Q And photograph DD, that includes - that shows the

12 southerly end ofthe concrete blockwall that was

13 constructed in 2009: correct?

14 A Thatiscorrect.

15 Q Now sir, the area of the wall along The tanding's

16 property as it adjoins the Marina's properry, what is

17 the length ofthat wall, sir?

18 A Approximately600/620feet.

19 Q No, no, sir, the whole length of the wall.

20 A Approximately 1800 feet.

21 Q And the concrete wall that was constructed in 2009

22 approximately how many linear feet is that?

23 A You mean -

24 Q How many feet in length?

-9-

I A 600/620 feet, approximately.

2 Q So, real quick math, and that the - so, the wall

3 thatwas consFucted in 2009 encornpasses

4 approximately a third of the total wall length;

5 correct?

6 A That's correct.

7 Q And then photograph EE, sir?

8 A That depicts the -whafs left ofaparking lotthat

9 we had use of.

10 Q The nextphotograph,sir, FF, thatwasn'ttaken inI I 2010: correct?

12 A No. Thatwas taken somewhere inAugustof 2007.

13 Q What does that show, sir?

14 A It shows part of the Braga Bridge and the Marina

l5 before the expansion.

16 Q And that photograph GG, sir? When was that

17 photograph taken?

18 A Again, thatwas taken around Augustof2007, and

l9 that's how the Marina looked in the year of August,

20 2007.

21 Q And I think the last photograph, photograph HH.

22 A Thafs a picture ofwhat the parking lot looked prior

23 to Borden Light Marina's excavation, and it shows the24 rocks that were in place, blocking the area before

-l0-

wfin0I they excavated.

2 Q Sir, you've bean on the board since 2005, as you've

3 already testified to. At any point in time during

4 the period of time that you were on the board of

5 managers ofThe I-anding, did the board ever provide

6 any authority or permission for the Marina to do any

7 ofthe excavation or consfuction ofthe walls?

8 A Notatall. We weren'teven asked forpermission.

9 Q And sir, let's focus on particularly the recentl0 expansionthafsoccurredin2003and2009. What

I 1 impact, ifany, has that had on The l-anding property?

12 A It's opened up, firstofall, an exitthatwasn't

13 therebefore. The Borden LightMarinahas notput

14 evan in a stop sign or a leld sign, and people

l5 comingupoutofthatareajustplowinto -don't

16 loolg they just come into Club Street and, you know,

17 if somebody was coming the other way, we could have

18 anaccident. Therewasnoplantodoanytraffic

19 control. We'vegotnoise;we'vegotdust.

20 MR. BRENNAN: Your Honor, objection to any

2l nuisance testimony because there's no nuisance action

22 in this case.

23 THE COURT: I aeree. Strike that

24 testimony.

t1

I MR. SEIGENBERG: That's fine.

2 Q So, the question nonetheless, is there an impact on

3 The I-anding by this recent construction, and

4 particularly -

5 A Well, we've had unit owners who have gone for

6 financing. We directly know that through

7 correspondence that they had with Attomey Watsky,

8 tryrng to get financing and have been refused because

9 of the question of the structure of the wall.

I 0 Q ht your opinion, sir, in your understanding, has thisI I recent expansion ofThe l-anding and their winter

12 storage had any impact on the market value of The

13 landing'sproperties?

14 MR. BRENNAN: Objection. No expertise.

15 THECOURT: Sustained.

16 MR. SEIGENBERG: I have nothing fuither.

17 Thank you, Your Honor.

18 CROSS EXAMINATION

19 (By Mr. Brennan:)

20 Q Goodmoming.

21 A Goodmoming.

22 Q Sir, could you elaborate a bit on your employment

23 histo48 Do you have a college education?24 A Yes,Ido.

-12-

NOTES

KS COURT REPORTING14 Palmer Avenue

Danvers, Massachusetts 01923

Phone: (978) 777-5802 FA* (978) 777-5803



LANDING V BORDEN LIGHT #2s4067 VOr,.II tul0flOI Q Where was that from?

2 A Pace College, which is now Pace University in New

3 York.

4 Q Did you haveamajorareaofstudy?

5 A Accounting and business administration.

6 Q After graduating from college, did you have any post

7 college education or courses or degrees?

8 A I have taken various courses at BCC, mostly in the IT

9 computer field, and not anything beyond that.

l0 Q So, itwouldbe fairto saythatyou'vebeen -

I I strike that.

12 Afteryou graduated, did you go into the

13 businessworldandworkfor -haveacareer?

14 A rdid.

15 Q Andthatcareerwasin whatfreld?

16 A Warehouse management, accounting. The problem is,

17 I've had many things that relate to it. fve been

18 credit manager; I've been confoller for

19 corporations. To answer the question, basically

20 mostly in the finance field.

21 Q So,you'vebeen -youwereinthebusinessworld

22 with a concentration in the finance business for how

23 many years?

24 A Probably forty to forty-five years.

-13-

I Q So, you had experience working on business matters

2 with attomeys then, in the past?

3 A Limited.

4 Q Butyou wereaware ofthe services theycould

5 provide?

6 A Yes.

7 Q Now, in 2006, when you signed the settlement

8 agreement -

9 MR. BRENNAN: Your Honor, may I check my10 file just to see the exhibit number on that I'm

I I referring it to, but I have referred to the exhibit

12 number.

13 MR SEIGENBERG: 39, Ed.

14 MR. BRENNAN: Okay. Thank you.

15 Q When you signed the settlement agreement that has

16 been marked as exhibit 39, there was a reference in

17 there to the dismissal of the lawsuit: is that

18 correct?

19 A Thatiscorrect.

20 Q If I understand your testimony correctly, when you

21 signed that document, you didn't inquire as to the

22 t€rms of that litigation, or the subject matter of

23 that litigation, or the nature ofthe litigation?

24 A That's correct.

1 Q So, you testified that you serve on a board of2 managers in a fiduciary capacity; is that correct?

3 A That's correct.

4 Q And as a fiduciary for the other - how many units

5 are there in The l-andine?

6 A One hundred forty.

7 Q One hundred forty. So, as a fiduciary for the other

I 139 unit owners, it's your testimony you took no

9 action to determine what that litigation was about;

l0 is that correct?ll A Atthatpoint,we were informedbyBLM that -and

12 Mr. Lund that it was strictly something that they had

13 won. Ifwecontinuedbeyondthatpoint,andwe

14 didn't come to some kind of ageement, they would

15 reopen the litigation. At that point in time there

16 was no course for us to really look at it. We

l7 assumed it was going to b€ taken care of, and we've

l8 always heard that it was dormant. And, no, we didn't

19 look at it.

20 Q Andyou agreethattheboard ofmanagers was

2l represanted by counsel in the preparation ofthis

22 agreement?

23 A Onlyinthepreparation

ofthis.24 Q Of the settlement agreement?

_16_

,;;*;;:

I Q Did you ever own a troat or a )acht?

2.{ No.

3 Q Now, you moved into The tanding at South Park, if I

4 recall correctly, in 1998; is thatconect?

5 A Approximately, yes.

6 Q You became a member of the board of managers in 2005?

7 A That's correct.

8 Q Your testimony is that prior to 2005, you were not

9 aware ofany pending litigation between The tanding

l0 at South Park and the Marina?I I A That is correct.

12 Q You leamed about the fact that there was something

13 pending in 2005 when you became a member ofthe board

14 ofmanagers?

15 A If that's when the agreement was put together, then I

16 would sayyes.

17 Q Well, the agreement dated March 16th of 2006.

18 A So that's when Ireally gotto know that there was

19 something.

20 Q b the course of yourexperiance in thebusiness

21 world, did you have an opportunity to employ or

22 engage the services ofother professionals, be it an

23 attomey, for example?

24 A Yes.

-t4-NOTES


Danvers, Massachusetts 01 923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 VOL.II Iut0n0I A Of the settlement and nothing else.

2 Q Right. But do you recall that the law firm of3 Marcus, Enrico, Emmer and Brooks was on retainer at

4 that time to the condominium association?

5 A They're not rctained. They act when we call them and

6 theybill us.

7 Q So, you had access to counsel on that matter, had you

8 chosen to explore it.

9 A Yes.l0 Q So you signed asettlementagreernentwithout

I 1 understanding the nature ofthe litigation that you

12 were agreeing to dismiss?

13 A I would have assumed at that time if there was

14 something present, Marcus Enrico would have brought

15 it forth.

16 Q But you didn't inquire?

17 A No.

18 Q Now, it's also your testimony, if I understand it

19 correctly, that you were unaware of the preliminary

20 injunction that issued in this court in May of 2000

2l until Attomey Watsky pointed that out to you in the

22 fall of2009. Do Irecall thatcorrectly?

23 A That is conect.

24 Q Since 1998, when you became an owner at The tanding11

I MR. SEIGENBERG: My understanding is that

2 sheathing work was probably prior to his period of3 time on the board, Your Honor.

4 THE COURT: Correct. Change your line of5 questioning there.

6 MR. SEIGENBERG: Thank you.

7 Q Now, since you've become a member of the board of8 managers in 2005, subsequent to your appointment or

9 election to that position, did you observe anyl0 construction activity by Bord€n Light Marina on the

I I retaining wall?

12 A Yes.

13 Q Keeping in mind that you were appointed in 2005, when

14 first after your election into that office did you

15 observe such activity?

16 A Probablyaround 2008.

17 Q And that's while you were a member of the board?

18 A Yes.

19 Q Observing the wall construction for the first time in

20 2008 as a member ofthe board ofmanagers, what, if2l anything, did you do next after making that

22 observation?

23 A As a member ofthe board, the board discussed about

24 it going in, and we weren't sure at that point what

-lo-

I the situation was. We knew there was an agreement in

2 place. Andaslsaidinmytestimonybefore,there

3 was probably premature building of the wall. What we

4 also got to realize is that what we envisioned of

5 what Borden Light Marina was going to do as a wall,

6 since that sheathing was absolutely opposite from it.

7 Q Andyouobserved in 2003,thefactthatin the

8 opinion ofthe board ofmanagers, that wall that was

9 going up was not what the board expected; is that

10 correct?ll A Thafscorrect.

12 Q What, if anything, did the board of managers do about

13 that?

14 A We started to investigate. As aboard representing

15 owners, we tried to be conservative, especially where

16 there are agre€ments in place. It wasn't like we

17 were going to run down and start screaming and

l8 yelling. We needed to become informed, and it took

19 us ov€.r: a year ofresearch and everything else to be

20 totally informed of what really was.

2l Q During thatoneyearwhen youwere doing your

22 investigation, that would take you into 2009;

23 correct?24 A That is correct.

-zv-

v:i

I at South Park, is it fair to say that you obsewed

2 construction activities at different times by Bordan

3 Light Marina in the course of constructing the

4 retaining wall?

5 A Somewhat.

6 Q Could you explain "somewhat" for me?

7 A I live there. I didn't spend - mostly it was where

8 we ate, slept and went to work from. So, what went

9 on on the water side wasn't always noticeable to me

10 because I don't have a view ofit.I I Q So, can you tell me when you first recall observing

12 construction activity on the retaining wall that's

13 the subject matter ofthis case.

14 A Iheard pounding of sheet going in, so at thatpoint

15 I looked and saw them putting in sheathing.

16 Q Do you recall when thatwas?

17 A Not exactly.

l8 Q After you obsewed that activity, what, if anything,

19 did you do?

20 MR. SEIGENBERG: Objection, Your Honor.

2l The court has appropriately pointed out to me that

22 he's -it'sreallyanissueashimasaboard

23 member.24 THE COURT: Correct.

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NOTES:



Phone: (978) 777-5802 FAX: (978) 177-5803



LANDING v BORDEN LIGIIT.#254A67 VoI.III tu10n0I Q During that time you were investigating, is it fair

2 to say that Borden Light Marina completed the

3 retaining wall that they built?

4 A That is corrert.

5 Q During thatyear, theboard ofmanagers tookno

6 action to stop Borden Light Marina from building that

7 wall?

8 A We were investigating our options.

9 QIs thata

"no?" Theboardofmanagers tookno actionl0 to stop Bordan Light Marina from building that wall?

11 A In asenseofphysically, wetookno action;

12 investigatively , we did.

13 Q Now, ld like to point out -

I Borden Light Marina to add a row ofblocks to any

2 other area ofthe retainine wall?

3 A Yes.

4 Q Was there a discussion about the cost to do that?

5 A Yes.

6 Q What was that discussion?

7 A Who's going to pay for it.

8 Q Who was the discussion with - or between I should

9 say,oramong.l0 A I can truthfully say that I was not totally involved

I I in that discussion.

12 Q Was it - I'm sorry. Was it the board of managers

13 that had that discussion with someone else?

14 A Yes.

15 Q Was the discussion with Borden Light Marina?

16 A Yes.

I 7 Q Were you apprised of the substance of that discussion

18 as in being a member of the board of managos?

19 A I was.

20 Q What was the outcome as to who was going to pay for

2l the additional blocks?

22 A Itneverwasreallysettled.

23 Q Wtere in the retaining wall did you want to add the

24 blocks?

-23 -

I A I believe it was behind building 4, in that area.

2 Q Was that going to increase the height of the

3 retaining wall?

4 A Itwould haveincreased theheightoftheretaining

5 wall.

6 Q Now, there in the photos that you were walked through

7 on your direct examination, there are many photos

8 showing an old cedar-post fence; is that correct?

9 A That's correct.

10 Q Thatfance belongs to The l:nding at South Park; is1 1 that correct?

12 A That's not my understanding.

13 Q Do you understand that Borden Light Marina owns that

14 fence?

15 A Thatismyunderstanding.

16 Q Does The l-anding at SouthParkboard ofmanagers

17 object to that offense - to that fence, I should

18 say.

19 A We have in the past objected to it yes.

20 Q What was your objection?

2l A Thedeteriorationofit.

22 Q And itwas not an objection to the factthat there

23was

a fence within anyportion

of the twenty foot24 easement is that correct?

-24 -

l4 MR. BRENNAN: May I approach the witness,

l5 Your Honor?

t6 THECOURT: Yes.

17 Q I'd like to point out a document that's been marked

l8 as exhibit number 38. and it's a letter from The

19 I-anding at South Park to the Marina of October 2nd,

20 2008.

2l A Yes, I'm aware of it.

22 Q You're aware of that letter?

23 A Yes.

24 Q You agree that this letter did issue to Borden Light

-2t -

1 Marina on that date?

2 A Yes.

3 STENOGRAPHER: Canyou -

4 A Yes.

5 STENOGRAPHER: You need to speak up or sit

6 a little closer to the mic.

7 THE WITNESS: Okay. Sorry.

8 STENOGRAPHER: Thankvou.

9 Q And in fact -

10 THE COURT: Excuse me. Do you need water?I I THE WITNESS: No, Im okay.

12 THE COURT: Are you sure?

13 THE Wffi{ESS: Yes, thank you.

74 THECOURT: Okay.

15 Q And in fact, exhibitnumber38 is athankyou to

16 Bordan Light Marina for adding a row ofblocks to

17 section ofthe wall, and thereby increasing the

18 height; is that correct?

19 A Yes.

20 Q This letter issued then during the time you were

2l doing your investigation into the activigr on the

22 wall; correct?

23 A Yes.

24 Q At any other time did the board of managers ask

-22 -

NOTES

KS COURT REPORTING14 Palmcr Avenue


Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #2s4067 VOI.II1 A That is correct.

2 Q At some point in time, was additional new fence added

3 to the area along the common boundary line?

4 A Yes.

5 Q Was it a PVC fence?

6 A Yes.

7 Q Who put that in?

8 A Borden Light Marina.

9 Q Did they do that at the request ofThe l-anding atl0 South Park?

1l A ldon'tremember.

12 Q You don'trecall anyboard ofmanagers discussion

13 about the new fence?

14 A I was not always - it's not something I was involved

l5 in the discussion.

16 Q Well, when you saw it, did you approach the other

17 board members and inquire?

18 A Iaskedwhoputitin.

19 Q What were you told?

20 A Borden Light Marina.

21 Q Was the new fence placed ganerally in the same spot

22 as the old fence that had deteriorated?

23 A I'mnotsurebased onhowthe land was disturbed.

24 Q Given your testimony that the fence belongs to Borden

-25 -

I Light Marina, would it be fair to say that they could

2 remove the fence at anv time should thev choose to do

3 that?

4 A Iftheywish to accepttheliability, yes.

5 Q That would be their chorce.

6 A It would be their choice to accept liability,

7 correct.

8 Q And to rernove the fence?

9 A Yes.

10 Q Now,is ityowunderstanding,sir, that -you'reI I aware ofthe non-exclusive twen8 foot easement: is

12 that correct?

13 A Iamnow,yes.

14 Q And that - well, okay. l-et me ask you, when did you

15 first become aware of that?

16 A Probablywhenwe gotinto the litigation, I gota

l7 basic understanding ofit, yes.

18 Q Well, would that have been in the fall of 2009 when

19 you first retained Attomey Watsky and he advised you

20 ofthe preliminary injunction?

21 A Prettymuchthen,yes.

22 Q So,priorto thatyou had no knowledge ofthe

23 easement?24 A (No verbal response.)

-26 -

1ur0ltOI Q Do you now understand that the easement is a

2 non-exclusive easement?

3 MR SEIGENBERG: Objection, Your Honor.

4 That's ultimately for you to determine. There are

5 two - as I've said during my opaning, there are two

6 to three documents that deal with the twenty foot

7 easement. One is labeled non-exclusive; two prior do

8 not have a non-exclusivity. That's for you to

9 determine, Your Honor, not for this witness. And Il0 would suggest it's not really a proper cross

I I examination.

12 THE COURT: Well, are we going to get in -

13 are any ofyou planning to get into the intent ofthe

14 easement? Are you going to be looking -

15 MR. BRENNAN: My line of questioning, Your

16 Honor, at this point, would be what is the board of

I7 managers' understanding of what that is. The intent

18 of the twenty foot easement, I believe, it would come

19 through in my case in chief, through the Borden Light

20 Marina witnesses. But I do - I am interested in

21 knowingwhattheboardofmanagersunderstands -

22 THE COURT: I think that's a difficult area

23 to inquire into because certainly one member ofa

24 board cannot possibly have an idea ofwhat the

11

I understanding ofthe entire board is.

2 MR. BRENNAN: He's the chairman.

3 THE COURT: He can express what he, as

4 chairman ofthe board had an understanding, and ifhe

5 has any knowledge of, you know, that there were

6 discussions that werc held about it. But he doesn't

7 know the mind set ofthe board as a body unless

8 there's documentation of that.

9 MR. SEIGENBERG: And the other problem, of

10 course, these documents go back to 1986. We would

t I agree that he wasn't around in 1986 in that arca.

12 THE COURT: I don't think it's - I dont

I 3 necessarily find it helpful to know his understanding

14 ofwhat the easement is.

15 MR. SEIGENBERG: And we also suggest - I'm

16 sure there will be testimony as to the other

17 question. I'm sure there's going to be testimony

l8 from the Lunds about this issue, but I would suggest

l9 that our position is that these documents are clear,

20 unequivocal documents for the court to interpret

21 according to their common language. And based on the

22 circumstances that existed, which you've already

23 heard some description ofhow there was the24 development ofthe two properties and so on, that's

-28 -

NOTES


Danvers, Massachusetts 0l 923

Phone: (978) 777-5802 FAX: (9?8) 777-5803



LANDING v BORDEN LIGHT.#254067 VoT,.II 11/10/10

I pretty much the circumstances, Your Honor.

2 THE COURT: I don't think I'm going to

3 allowthatquestion.


5 MR. BRENNAN: Your Honor, on direct, he was

6 testifying at length as to what he observed within

7 the twenty foot easemant -

8 THE COURT: Right.

9 MR. BRENNAN: -- i.e., the storage of10 vessels. May I inquire about his observations of

ll that?

12 THE COURT: Yes, you may.

13 Q Sir, you testified thatyou arenowaware thatthere

14 is such a thing as a twenty foot easement running

15 along the common property.

16 A Thatiscorrect.

17 Q On direct examination, you testified as to the

18 storage ofboats within that twenty foot easement; is

l9 that correct?

20 A Yes.

2l Q What is the significance to you as the chairman of

22 the board ofmanagers ofthe fact that therc are

23 boats stored within the twenty foot easement?

24 A First, the residents or owners'view is being

-29 -

I obstructed. Secondofall,there -immyopinion,

2 there has been damage to what should be a slope

3 graded easement that was to take care ofsafely,

4 water drainage, and give stability to a bank that had

5 buildings above it.

6 Q So, if Iunderstand itcorrectly, it's youropinion

7 that the entire twenty foot easement was to rernain as

8 a sloped graded bank; is that correct?

9 A I would believe that, yes.

l0 Q Do you understand that Borden Light Marina could use

I I that twenty foot easernent for any purpose?


13 A Ican'tanswerthatquestion.

14 MR. SEICENBERG: I guess that takes care of

15 my objection, Your Honor.

16 MR.BRENNAN: You1lprobablywantto

17 withdraw it, Dan, right?

18 Q Now, you testified on direct examination that in your

19 opinion, the Borden Light Marina, they did just about

20 anything they wanted to do and they didn't ask

2l permission from anyone; is that correct?

22 A That is correct.

23 Q Now, would that also pertain to the time period of24 2008 and 2009?

-30-

I A I think my testimony stands, yes.

2 Q And you also testified that during that time period

3 you were just trying to live harmoniously with the

4 Marina: correct?


6 Q Now, when you say they do whatever they want to do, I

7 thinkthatwasaquote,areyouawareofany -do

8 you mean by that that they didn't seek permits that

9 were necessary to do the work?10 A Ithinkitgoesbeyondpermits,butyes -

ll Q Areyou -

12 A -permits,yes, Iwould saytheydidn'tseek

13 permits.

14 Q So, that's part of - their failure to seek permits

15 is part ofthe basis upon which you state they do

16 whatever they want to do?

17 A Thatiscorrect.

I 8 Q Are you aware of what permits Borden Light Marina has

19 obtained in the course ofthe development ofthe

20 Marina?

2l A Some of them.

22 Q Are you aware that they have, in fact, received three

23 different licenses from the DEP for Marina purposes

24 since 1988 to t9 -to2010?

-31 -

I A I'm not sure I would understand what those permits

2 arc. Andl'mnotsureifthosepermitsareactually

3 permits allowing them to do what they want to do.

4 THE COURT: And I'm not sure it's relevant,

5 quite frankly.

6 MR. BRENNAN: Well, he has testified that

7 partofwhythey -heconside$themtodo whatever

8 they want to do with the Marina, that they haven't

9 got permits. I think it's significant to point out

10 to the witness that they have three chapter 91

I I licenses and six orders ofconditions.

12 THE COURT: I don't think it's relevant

13 whether he thinks that they do whatever they want to

14 do without permission or not.

15 MR. SEIGENBERG: And also, counsel makes a

16 misleading argument to the court because those

17 permits didn't permit this work. They have

18 expiration dates.

l9 THE COURT: Again, I think this is totally

20 an irrelevant line ofinquiry, and let's move offit.

2l Q Noq you mentioned that in the course of the work

22 that tookplace on the south entrance to the Marina,

23 that the Marina had taken someparking spaces that

24 The Landing at South Park was using; is that conect?

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Phone: (978) 777-5802 FA* (978) 777-5803



LANDING V BORDEN LIGHT.#254067 VOL.II Lul0lt0I A That is correct.

2 Q Doyou understand thoseparkingspacestobewithin

3 an access easement in which the Marina has riehts to

4 use it?

5 A That's a difficult question to answer, depending on

6 interpretation ofthe easement.

7 Q Ofthe access easement?

8 A Yes, and on the interpretation ofthe access

9 easement.10 Q Do you understand there to be two access easements at

I 1 the south end?

12 A Ido.

13 Q Andisoneafortyfooteasement?

14 A Ibelieveso.

15 Q And one is a fifty?

16 A Ibelieveso.

17 Q There's a question as to whether ornot a portion ofl8 that forty foot access easement encroaches, I

19 shouldn't say encroach, includes part ofthat parking

20 area; isn't that correct?

2l A Again, I'm not capable of determining what the

22 easement allows Borden Light Marina to do.

23 Q But you are aware that there's a question?

24 A Yes.

I Q Areyou aware in yourcapacityas a memberofthe

2 board of managers, how long the Marina has been in

3 operation?

4 A Probably very close to the time that The l"anding at

5 South Park has been there, probably 1987/'88.

6 Q Since that time, has the Marina expanded?

7 A Yes.

8 Q And generally, did it grow from a notth to a south

9 direction?l0 A Yes.

ll Q Is it fairto saythattheboard of managers always

12 understood that the Marina would exoand?

13 A No.

14 Q lt'snot?

15 A No.

16 Q Was it tho understanding of the board of managers in

l7 2005, when you became a member, that the Marina would

18 expand?

19 A Werealized theywereexpanding. We didn'tknowto

20 what extent they would finally extatd to.

2l Q But you were aware of that in '05?

22 A Yes.

23 Q And'06?

24 A Yes.

l Q '07?

2 A Yes.

3 Q '08,'09 and'10?

4 A Yes.

5 Q Noq you reside in building 1; is that correct?

6 A Building 2.

7 Q I'm sorry. Building 2. Where do the other board of

8 managers reside?

9 A One in building 7, one in building 4 and one in

l0 building 8.

l l Q And those are the four active members at this time?

12 A Thatiscorrect.

13 Q Former member reside in building 3, Mr. Bouffard?

14 A Yes.

15 Q Mr. Daquay's in 4?

16 A Yes.

17 Q In 2005, is it fair to say the Marina was using a

18 portion ofthe twenty foot easement area for boat

19 storage on the northerly and ofthe property?

20 A Yes.

21 Q Are you aware of any objection to thatby the board

22 of managers in 2005 whor you became a member?

23 A No.24 Q Is it fair to say that the objection to the storage

-36-

-JJ.

I Q So, whan you say that the parking spaces were lost,

2 it's fair to say that what the Marina did, they may

3 have the right to do?

4 A They may, not definitely they had the right.

5 Q Or definitely not?

6 A Correct.

7 Q You testified, in one ofthephoto$aphs, youpointed

8 out a tent; is that correct?

9 A That's correct.

10 Q When was that tent on the Mafina property?l l A That went up for a very short period of time. It's

12 where the pool area is.

13 Q Doyourecallwhen thatwas?

14 A It was in October.

15 Q Do you knowthepurposeofthe tent?

16 A Yes.ldo.

17 Q What was it?

18 A It was for Michael's brother's wedding.

19 Q Howlongwas itupfor?

20 A I can't tell you exactly. I didn't take a -

21 Q Twodays?

22 A - day-by-daycheck.

23 Q Three days?24 A Maybe three, maybe five. I don't know.

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NOTES

KS COURT REPORTINGl4 Palmer Avenue

I)anvers, Massachusetts 01923

Phone: (978) 777-5802 FAX: (978) 777-5803



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LANDING V BORDEN LIGHT.#254067 VoI.II I 1/10/1 0

of boats within the twenty foot easement area first

arose in 2009, after it reached the southerly

terminus of the Marina?

I think we were starting to object in 2008 based on

complaints from unit owners.

Unit owners in building 4 and 3?

Yes.

Prior to that, there were no complaints?

There were no boats there.

I mean, about storing them in the northerly or

mid-section of the Marina.

No, they didn't interfere with the view.

MR. BRENNAN: May I approach the witness,

Your Honor?

THECOURT: Mm-hmm.

Sir, directing your attention to a photograph that

has been marked as exhibit 34-12. I'm just going to

check that. 34-12. ls that a photograph that you've

seen before?

Yes, I have.

Does that picture depict what's referred to as the

King Phillip Boat Club?

Yes.

37-

I A Rocks,snow--

2 Q Is that the -

3 A - shrub.

4 Q Is that the embankment that you're referring to

5 that's the subject matter ofthis suit?

6 A I can't tell from the photo totally.

7 Q Can you see the buildings behind it?

8 A I can't idenfiry them.

9Q

But would it be fair to say that that's the property

10 in front ofthose buildings?

11 A It's the property in front of buildings at The

12 tanding.

13 Q Well maybe, lefs direct your attention to 34-10, and

14 ask you ifyou recognize what's in that photograph.

15 A Iseethewateffront -

16 Q Doyousee -

l7 A -andtherailingfancethatthis -

18 Q Doyouseeastonepier?

19 A Yes.

20 Q And orientating yourself to the stone pier, can you

2l determine what buildings are shown in the upper

22 left-hand comer of that picture?

23 A Probably building 5, maybe building 4. I can't -

24 again, it's the southerly end.

-39 -

I Q Referring to exhibit number 34-10, is that the sloped

2 graded embankment that you've been referring to in

3 this case?

4 A Pretty much.

5 Q When you say, "pretty much," is it an accurate

6 representation ofaportion ofit?

7 A Again, Imlooking ata 1988 photographwhen Iwasn't

8 there. So, Icansaythatlwouldntknowwhatit

9 looked like at that time. Again, I can't tell you

10 what it looked like exactly in 2008 or 2009.1 1 Q But you do agree that it is the embankment or -

12 A Iwouldagreethat -

13 Q -whatyourefertoas -

14 A - ifs the embankment in 1998 [sic].

ls Q '88.

16 A '88. I'msorry.

l7 Q Thankyou.

18 A '88.

19 MR. BRENNAN: That's all I have, Your

20 Honor.

21 THE COURT: Redirect?

22 MR. SEIGENBERG: Yes. olease.

23 *****

24 *****-40-

1 Q Would it be fair to say that whafs depicted in that

2 picture is in front of building 3?

3 A Yes.

4 Q When you look at that picture, sir, can you see a

5 driveway coming down in between building 3 and the

6 King Phillip Boat Club?

7 A I'm not sure it's a driveway.

8 Q Well, do you see a roadway?

9 A I'm not even sure it's a roadway. I'm seeing what

10 can be a path.I I Q Sir, I'd like to show you the same photo, but this is

12 a glossy. It might help you to look at it.

13 A All right. But Idon'thaveaclearviewto thetop

14 fromhere.

ls Q Right.

16 A So, Ican't saythatthere's aroadway there.

17 Q So, it's yourpositionoryourtestimonythat

1 8 photograph or exhibit number 34-12, you can't

19 determine that that's a roadway; is that correct?


21 Q I'd like to show you exhibit 34-31 and ask you ifyou

22 would take a look at that photo.

23 A (Witness reviewing photo.) 34-31,2009?

24 Q Conect. Do you recognize what's in that photograph?

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I)anvers, Massachusetts 01923

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,iLANDING v BORDEN LIGHT #254067 VoI.III 11/10/10

I REDIRECT EXAMINATION

2 @y Mr. Seigenberg:)

3 Q You were shown a photograph that was dated 1988.

4 Just for clarity's sake, you moved into The l-anding

5 in 1998?

6 A 1998.

7 Q Were you familiar with the condition of the property

8 prior to 1998?

9A No.10 Q You were asked about - I guess you were critiqued

I 1 about your work as a board member. Tell us please,

12 why you've been a board member? How often does the

13 board ofmanagers meet?

14 A We're required to meet monthly, which we do. And we

15 meet when there are certain things that need to be

16 discussed, which becomes an executive session, and

l7 that would be the only reason why we would meet.

18 Q But garerally the board meets once a month; correct?

19 A Onceamonth.

20 Q Is the position a paid or unpaid position?

21 A Unpaid.

22 Q And I take it board members have a life outside of

23 the board?

24 MR. BRENNAN: Objection.

-4t-

I expert, but as a visual look at the top ofthe wall,

2 that does not mesh evenly, cleanly.

3 Q So,just to moveus along, you as aboard member are

4 concemed about the construction ofthe wall:

5 correct?

6 A Yes.

7 Q what about the type of the wall?

8 A lt'saconcreteblockwall.

9 Q As a board member, do you have any concems regarding10 that?

1l A Yes.

12 Q Now, you were shown exhibit 38, which is a letter

13 dated October 2nd,2008, where there was the

14 increased height being added to the wall. It was

15 inoeased height added to the wall. Remember that

16 letter?

17 A Yes.

18 Q Nowsir, did theboard - this letterwas written

19 what, aft - strike that.

20 Were there discussions between the board.

2l or members of the board, and Borden Light Marina

22 about adding another course to the wall?

23 A There was.

24 Q Did these discussions occur before or after the wall

-43-

I had been alreadyconstructed?

2 A Before.

3 Q Whydid theboardhavediscussions of thatnature

4 with Borden Light Marina?

5 A A1l right. After the wall had already been

6 constructed, yes.

7 Q I missed i! so -

8 A Imisunderstoodyou.

9 Q So, the board had - after the wall was constructed,

l0 the board had discussions with Borden Light Marina;I I correct?

12 A Correct.

13 Q Whydid theboard atThe landingrequestanother

14 course ofconcrete block on that wall?

15 A Because they left us with a slope that was about like

16 this, which was unsafe (indicating).

17 Q Andbyasking forthatcourseof -additional

18 course, sir, was it the board's view that the wal'l

19 was acceptable to the board?

20 A After - I'm not quite sure.

2l Q You asked forthecourse,butby gettingthatone

22 additionalcourseofconcreteblock didthatmake

2l the wall acceptable to the board ofmanagers?24 A Atthatmoment,yes.

AA

1 A Yes.

2 MR. SEIGENBERG: I'll rephrase that, if I

3 could.

4 MR. BRENNAN: No, that's fine. I'11

5 withdraw the objection. It was spontaneous.

6 MR. SEIGENBERG: I guess the point - okay.

7 Thank you.

8 Q You were also asked about the wall - strike that.

9 Some of the walls that were constructed in

l0 2008 and 2009, and I think your testimony was

l1 something along the lines, "wall put up was not what

12 expected." Now, as a board member, did you have

l3 concerns about the ffpe ofwall that was constructed

14 in 2008 and 2009?

15 A lnoking atitas itwasbeingconstructed, Ihad

16 concems.

I 7 Q As you sit here today, testifying as the chairman of

18 the board, what is specifically some ofthe concerns

19 that the board and you have relative to the wall that

20 was constnrcted in 2009?

21 A Up the top of the wall at this point, you've got

22 blocks that have definite separation between what

23 should bejoints where they don't even lock in24 together, and probably should. Again, not being an

-42-

NOTES

KS COURT RBPORTING14 Palmer Avenue


Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #254067 VoI,.II l1l10/101 Q But I mean in it's entirety, the construction, the

2 location.

3 MR. BRENNAN: Objection, Your Honor. That

4 was asked and answered. The witness answered "yes."

5 THECOURT: Yes.

6 Q What do you mean by your answer, "yes," sir?

7 A It had become safe for people to be able to walk

8 around at that point, thafs all.

9 QDid it address all the concems that the board had at

10 that time?

11 A I think so. I'm not - I would -

12 Q Well, let's go ttnough it. What concems - you

13 indicated during your direct testimony, you had

14 certainconcernsoftheboardaboutthewall. I15 think, for example, one issue was the construction of

16 the wall: correct?

17 A Wete talking about which wall? I am confused right

18 now.

19 Q Okay. Maybe that's the thing. And you're right. I

20 appreciate that. Youte referring to a wall that was

21 done in 2008; correct? And there are walls that

22 were -

23 A There wasn't anything added to the wall in 2008.

24 Q lrt me try this again. I think I'm making this more

-45-

I A Yes.

2 Q As a board member, do you still have concems about

3 the concrete block wall that sits -

4 A Yeah.

5 Q And those are as you already expressed during your

6 direct -

7 A Yes.

8 Q - testimony? And that - strike that.

9 Now,you

had this discussion about thel0 parking spaces in the guest parking area being

11 eliminated?

12 A Yes.

13 Q And pdorto -as you understand it, theremaybe an

l4 issue in the easement rights and things ofthat

15 nature, which you don't truly -

16 A This is something that the court would have to

17 decide, I would think.

I 8 Q Prior to the excavation of that parking lot, were you

19 aware ofany request for ajudicial decision by

20 Borden Light Marina on the easement issue?

21 A No.

22 Q And absent this easement issue, the area that was

23 excavated, it is your understanding that that was the

24 property ofThe landing?

_47 _

I MR. BRENNAN: Objection, Your Honor. He's

2 aTreadytestified he doesn'tknow.

3 MR. SEIGENBERG: Wel1. I said. "absent of4 easement."

5 THE COURT: Counsel. what is the relevance

6 ofthisparkingarea. Isthisparkingareawithin

7 any ofthe easement areas that we're talking about?

8 MR. BRENNAN: I don't believe it is.

9 THE COURT: We have spent a tremendous

10 amount of time talking about that. I unde$tand the1l issue and I think we can move on from there. Okay?

12 MR. SEIGENBERG: I appreciate it. Thafs

13 whatcounts. Ihavenofurtherouestions. Thank

14 you, Your Honor.

15 (Counsels reviewing documents.)

16 MR. BRENNAN: May I approach, Your Honor?

17 THECOURT: Yes.

18 RECROSS EXAMINATION


20 Q Sir, I'd ask you if you'd just take a moment and look

2I at a document and see ifwe can refresh your

22 recollection. And it's board of minutes meeting of

23 October 14 of 2009. And if vou will look at what's24 been highlighted.

_48_

I complicated than it needs to be, but... The wall that

2 was - the concrete retaining - the concrete block

3 wall that we've been talking about for three days

4 that was consfucted in - it was constructed near

5 buildings 3,4 and 5.

6 A I'm with you now.

? Q When was that constructed?

8 A That was 2008/2009.

9 Q Right. So, when you were referencing the wall in

l0 this October 2nd, 2008 letter, what wall were youI I referring to?

12 A It would be what was done in 2008.

13 Q Whatwasthat?

14 A Thatwas towards the -thatwas thecurentconcrete

I 5 block wall in 2008/2009. They added a course because

16 there was adangerous slope. Aad again, I'mnot

l'1 looking at where they added it. Yes, they added it18 per a request to eliminate a hazardous problem.

19 Q But sir, was there additional - wasn't there

20 additional concrete block wall that was constructed

2l in 2009?

22 A Yes.

23Q

And wasn't the major part of the wall constructedin24 2009 after this letter was written?

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MR. BRENNAN: Correct. It would be count I

starting with paragraph 41.

THE COURT: What page are we on?

MR. BRENNAN: They're not numbered -

THE COURT: Page 8? Am I looking at the -

I'm looking at the amended complaint -

MR. BRENNAN: Correct.

THE COURT: - that was filed on October

4th?

MR. BRENNAN: Correcr.

THECOURT: Okay.

MR. BRENNAN; It would be count 2[sic],

entit'led "trespass and violation oferosion control

easement."

THE COURT: I thought you said count 1.

MR. BRENNAN: I did. It's count l. I'm

sorry. I went to the wrong page.

THECOURT: Countl?

MR. BRENNAN: Paragraph 41, and the next

page,42, talks about the Captain E.G. Davis building

and a guard shack. And they allege that those two

truildings violate the visual easement by virtue of

their height. They have two elements to prove that

trespass. One is the .n*n.:.".t:* Ouildings, and

I numbertwo,thatthebuildingsareonlot3. They,ve

2 offered no evidence.

3 THE COURT: So, your motion for directed

4 verdict on this is solely in relation to the

5 buildings?

6 MR. BRENNAN: That's correct.

7 THE COURT: Not the equipment?

8 MR.BRENNAN: No.

9 THE COURT: Okay. I will let you know

I 0 after this afternoon. I'11 take it under advisement.ll MR.BRENNAN: YourHonor.mvfirstwitness

12 will be James Hall.

13 THECOURT: Okay. Mr. Hall.

14 MR. BRENNAN: Please state your name.

15 THE WITNESS: James Hall.

16 MR BRENNAN: I didn't notice, Your Honor.

17 Has the witness been sworn?

18 THECOURT: I'msorry.

19 MR. BRENNAN: Has the witness been swom?

20 THECOURT: Notyet. Ijustwaswaiting

2l for everyone to settle down. Are we all set now'?

22 Okay.

23 *****

24 *****<A

I *****+****+*r

2 JAMES HALL

3 *************

4 (Witness sworn.)

5 DIRECTEXAMINATION

6 (By Mr. Brennan:)

7 Q Mr. Hall, would you p'lease state your name for the

8 court?

9 A James D. Hall.10 Q Where do you reside?

I I A I reside in Swansea, Massachusetts.

12 Q Are you employed?

13 A Iam.

14 Q Inwhatcapacity?

15 A I am a partner in Mount Hope Engineering.

16 Q Where is that located?

17 A Thatis in Swansea, Massachusetts.

18 Q Atwhataddress?

19 A 1788 G.A.R. Highway.

20 Q For how long have you been - did you say,

21 "co-owned?"

22 A Co-owned.

23 Q Who is the other owner?

24 A I have a partner, Todd Chaplain.

I Q How long have you owned Mount Hope Engineering?

2 A Since 1992.

3 Q Could you tell me, or explain to the court the nature

4 of the business of Mount Hope Engineering?

5 A We are a civil environmental engineers.

6 Q Could you elaborate a bit on what that means?

7 A We generally do mostly site related engineering,

8 residential development, commtircial development, and

9 all the engineering associated with such.

10 Q Do you surveyproperty lines in the course ofthat1l ernployment?

12 A We dohavesurveyors thatdo that.

13 Q Now, could you tell me when you first started working

14 in the angineering field?

15 A I started in 1982.

16 Q hwhatcapacity?

17 A Iwas adesigneruntil about 1986, acivilengineer

18 from'86 to '92, at which time we started the firm.

I 9 Q Directing your attention to your education, you have

20 a high school education?

21 A Ido.

22 Q Where was that?

23 A Joseph Case High School.24 Q And a college education?

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LAIIDING v BORDEN LIGHT #254067 Vol.I Llll0lr01 A Collegeeducation,two years.

2 Q Where was that?

3 A BCC, Bristol Community College in Fall River.

4 Q Did you have a course of study at Bristol Cornmunity?

5 A It was civil engineering.

6 Q When did you graduate from there?

7 A I actually didn't graduate. I had two courses left,

8 and Iendedupgettingrelocatedoutoftown. So,

9 allbuttwo cours€s.l0 Q When did you take tiose courses?

I I A That was between '79 and '82, at which time I got

12 relocated. so I didn't finish.

13 Q Was your relocation employnent orientated?

14 A It was.

15 Q What type of anployment was that?

16 A Thatwas - Iactually gotrelocated to the Seabrook

17 Nuclear Power Plant up in Seabrook, New Hampshire,

18 and then went into the midwest and did site

19 engineering for that business until '86, and then

20 camebackhome.

21 Q So, forhowlong haveyoubeen in the civil

22 engineeringbusiness?

23 A Twarty-four years, twenty-four years locally.

24 Q And in total?_ \.7 _

I Q But as the owner does maintaining -

2 A Right.

3 Q - the records fall under your purvieu/?

4 A It does.

5

6 Q Have you had an opportunity to do any survey work on

7 the common property line between Borden Light Marina

8 and The bnding at South Park?

9 A I have been involved, actually, for both parties, Thel0 landing and the Marina.

1l Q At what point in time were you first asked to go out

12 to that - to the Borden Light Marina site and take a

13 lookat the corffnon property line?

14 A h 1997, the files that I reviewed reflect that that

15 was the beginning ofgetting contacted by Borden

16 Light Marina at the time. And it was ongoing back

l7 then,Iwanttosayuntilroughly2000. There's

l8 probably a three year window in there where there was

19 work performed.

20 Q Could you describe forthe court thenature ofthat

21 work?

22 A Thatworkatthe time, there has a lotofdifferent

23 tasks. The initial task, obviously, what you have up

24 here was a survey to do the property line for the

-59-

I Marina, relative to ownership.

2 Q Noq when you say, "the property line," could you

3 explain the property - which property line?

4 A Well, the one property line, obviously from the high

5 tide mark all the way to the property line on The

6 landing.

7 Q Did you survey the cornmon prcperty line between The

8 Landing at South Park and the Marina?

9 A Thatwassurveyed. Iwasactuallypartofthecrew,

l0 obviouslyourR[S,andyouknow,chiefofparty. II I was product manager. So, there was various hands in

12 the mix there on thatparticularproject.

13 Q lunderstand.

14 MR. BRENNAN: Your Honor, may I mark this

15 particular plan for identification?

16 THE COURT: What is this plan? I'm sorry,

17 I can'tread the -

18 MR. BRENNAN: Well, actually the plan -

19 I'11 withdraw that request --

20 THECOURT: Okay.

2l MR. BRENNAN: - Your Honor, because I am

22 going to offer it as evidence.

23 THE COURT: All right.24 Q Mr. Hall, you mentioned that you participated in a

-60-

I A In total, it would be twenty-eight years.

2 Q Do you hold any professional licenses?

3 A I am a Massachusetts soil evaluator; I am a

4 construction supervisor, mlimited; I am a title 5

5 inspector.

6 Q Could you explain a little bit about what types of

7 projects you work on, maybe give us some examples of

8 survey projects that you've been involved with?

9 A Pretty much anyhing commercially. If a bank - we

10 do a lot ofwork with banks, siting new offices orI I new headquarters. We do residential development. We

12 would do - we could do condominium developmer,ts.

13 And it's been a mix over the years, whether it's

14 retail, commocial, residenfial.

15 Q As theowner -areyou a fiftypercentownerof

16 Mount Hope?

17 A lam.

18 Q Areyoutheredaily?

19 A lam.

20 Q Would it be fair to say that you are the individual

2l who is responsible for the records of Mount Hope

22 Engineering?

23 A I think that - I guess you could say that.24 Obviously, it's a collaborative effort, but -

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LANDING V BORDEN LIGHT #254067 VoI.III tln0n0I survey ofthe common property line between Borden

2 Light Marina and The landing at South Park?

3 A Correct.

4 Q Do you recall when that was?

5 A I'm going !o say, you know,'91 to'99 field workwas

6 done. Ibelievethatplanis'99that'spostedup

7 there. So, I don't have the exact dates, obviously.

8 Q Did you work with a registered land surveyor?

9 A Yes,wedo.10 Q Who is the individual you worked with?

11 A It was Donald MacNeill.

12 Q Did you know Mr. MacNeill prior to 1999?

13 A Yeah. I've actually worked with him since 1989.

14 Q When you say you worked with him, do you mean doing

15 survey work?

16 A Right.

17 Q Did Mr. MacNeill workfrequentlywith MountHope

18 Engineering?

19 MR. SEIGENBERG: Objection, Your Honor,

20 formofthequestion. There'saboutsixleadingina

2I row. I think we're a little beyond the - his

22 educationalbackgrotrnd,whichlwou'ldn'tobjectto,

23 but this goes to the substantive matter. So, as to

24 the form ofthe question, Your Honor.

-61 -

I A - is in the file.

2 MR SEIGENBERG: The same problem. Every

3 question is leading. Id like to get through with

4 this as well, but -

5 THE COURT: Well, I think he's just trying

6 to establish that this is part of, you know, what's

7 in the file. I don't think it's really - I mean,

8 let'sjustgettherefast. Allright.

9 MR. BRENNAN: I am, except for the10 fact -

11 MR. SEIGENBERG: Here's the problem, and I

12 know it's - he didn't - this is not his survey

13 plan.

14 THE COURT: Correct.

15 MR. SEIGENBERG: And he's going to try to

16 get this plan in, and he's sort ofleading him

l7 around.

18 THE COURT: Well, he's bringing it in

19 apparently, as a business record, the fact that it

20 was done, that it's in the file. Whether he can

2l testify about how it was done is a different story.

22 Okay?

23 MR. SEIGENBERG: Right. I'm not so sure

24 that's a business record either.

-63 -

1 THE COURT: Wel1. let's establish whether

2 it is or it isn't.


4 Q Mr. Hall, does your office keep files?

5 A Yes.

6 Q Could you explain to the court how your files are

7 kept?

8 A Byproject.

9 Q Could you elaborate a bit more when you say

l0 "project?"I I A Every project that comes in, you know, we'd have an

12 estimate written, and then a project number tagged to

13 it for tracking, research done and survey done, and

14 engineering done, obviously, would all be partitioned

15 into that file and then stored accordingly by date

16 and year.

17 Q Would you explain for the court the procedure that

18 Mount Hope Engineering has used to maintain it's

19 files since you went to work or became an owner of

20 Mount Hope Engineering?

21 A Yeah. We obviously have folders and all the paper

22 that obviously is generated is in those folders and

23 stored.24 Q Stored where?

-64-

I

3

A

sQ6A7

8Q9

l0llAl2

l3

t4

lsQl6t'7

18AleQ20

2lA22Q

231^24

THE COURT: All right.

MR. BRENNAN: I'll rephrase it.

THE COURT: Rephrase it.

MR. SEIGENBERG: Thank you.

How long did you know Mr. MacNeill?

Since - I want to say since 1 986, personally, and

'89 on, professionally.

When you say, "professionally," could you describe

the professional relationship you had with

Mr. MacNeill.Like any engineering firm, we need professional

engineers and registered land surveyors, and his

portion of our business was relative to the land

suwefng portion.

Now, as you sit here today, do you have any

recollection of going out to this site and working on

the preparation ofthis plan?

Oh. sure.

Did you bring with you your file for the work that

was done for the preparation of this plan?

I did.

Was a copy of this plan in your file?

Acopy -MR. SEIGENBERG: Objection.

62-

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I)anvers. Massachusetts 01923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #254067 Vor,. tUt0n0I A Stored on premises.

2 Q Do you have access to those?

3 A Ido.

4 Q Explain to the court the business practice of

5 maintaining your records.

6

7 A We basically, in our particular business, keep all

8 records, because a lot oftimes projects will become

9 reoccurring, or you end up going back to that10 information. So, we basically, you know, we don't

I I throw anything out because even something from ten or

12 fifteen, twenty years ago can resurface and obviously

13 there's value in those records.

14 Q Did you have an opportrrnity to review your business

15 records for records pertaining to this plan?

16 A rdid.

17 MR. SEIGENBERG: Objection, Your Honor. I

18 object to the idea that this is a business record.

19 H'is basic view, where we're moving with this thing

20 and try to cut it offat the pass, maybe, Your Honor.

2l He's basically going to make the argument that

22 anlthing that goes in any business's file, ifthey

23 keep it in the file, it becomes a business record.

24 That's not the rule. The normal business record is

1 THE COURT: He's deceased.

2 MR BRENNAN: He's deceased, and I have

3 this plan with an original stamp on it. I have a

4 gentleman on the witness stand who is in the field.

5 I have the owner ofthe business that keeps the

6 records, and it certainly is a record. A record

7 doesn'thavetobeaninvoiceorpaid. It'swhatever

8 the nature of the business is. And I maintain this

9 certainly is a business record.10 THE COURT: I think these are files kept in

11 theordinarycourseofbusiness. Ithinkwe've

72 established that. And ifthis was in the file for

13 this project number, I think it's sufficiant to say

14 that this is on file with the business and is a

I 5 business record that he's responsible for. And if he

16 can say that it was in the file, it was there.

l7 MR. SEIGENBERG: Can I be heard on that,

18 Your Honor?

19 THECOURT: Yes.

20 MR. SEIGENBERG: It strikes me as that's -

2l ifthatconstitut€sabusinessrecord -I'mnot

22 trying to be confrontational with the court by any

23 means, but under that interpretation, any document

24 that is ever in any business would come in as a

- o/ -

1 business record.

2 THE COURT: No, that is not true.

3 MR. SEIGENBERG: I can't think of somethins

4 that under that - it's basically saying that I - as

5 a lawyer I'm saying, Im a lawyer, and some other

6 lawyer in my firm who's no longer there did a legal

7 opinion on a project, a zoning opinion, that was kept

8 in our law firm's business. We have records of this.

9 It's a file. That wouldn't go into evidence, Your

l0 Honor. Thisisnodifferentthanthat.I I THE COURT: I may have missed a question

12 here, or maybe I heard something different. My

13 understanding is that the suwey was done in

14 connection with the project done by Mount Hope, and

15 that this surveyor basically worked for Mount Hope in

16 doing the survey for the particular client.

l7 MR. SEIGENBERG: I think the testimony was

18 that Mr. Hall works for - a partner in Mount Hope,

19 thathewasoutinthefield. Butlthinkiflwas20 allowed to voir dire witness, he would indicate that

2l he wasn't the person who did the actual -

22 THE COURT: No, he did not do the actual

23 suwey. I thought I heard that the surveyor worked24 for Mount Hope Engineering. Am I wrong about that?

-68-

-65-

I an invoice generated. It's kept in the ordinary

2 course. It's a business record.

3 A suwey done by somebody else is not a

4 business record, Your Honor. It's a document that's

5 prepared for a client. It's not a business record.

6 And so, lm trying to save time here. That's no way

7 a business record.

8 THE COURT: All right. Do you have an

9 objection to this particularpiece -

'10 MR. SEIGENBERG: The plan.

I I THE COURT: - of evidence, the plan,

12 itselfl You don't want it in?

13 MR. SEIGENBERG: The reason is, if I could

14 just sort of move ahead a little with it?

15 THECOURT: Yes.

16 MR. SEIGENBERG: It was done in 1999. We

l7 don't believe it's accurate. We have a document

18 already in evidence, the elevation plan, that has

19 different bounds, and it has a different conclusion

20 by the same angineering firm. So, it's - he doesn't

2l knowaboutthissurveyin 1999. Hemighthavebeen

22 out there.

23 THE COURT: Is the suweyor coming'in?24 MR. BRENNAN: He's deceased.

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LANDING V BORDEN LIGHT.#254067 Vor,.I 11/10/10I

2

3

5

6

7

8

o

10

ll12

13

l4

l5

l6

l7

18

to

20

2l

22

z)24

MR. SEIGENBERG: I think vou're absolutelv

right.

THE COURT: Okay. So, this was a project

that was contracted with the Marina to have a survey

done by Mount Hope Engineering. And you're salng

that they're keeping a copy of that survey that they

were hired to do in the file for that project is not

a business record?

MR. SEIGENBERG: I would say the plan isnot a business record, absolutely not.

THE COURT: Oh, I disagree.

MR. SEIGENBERG: You make a decision.

THE COURT: It's a business record.

MR. SEIGENBERG: Note mv obiection. Thank

you, Your Honor.

MR. BRENNAN: Your Honor. at this time I'd

offer this as the next exhibit number.

THE COURT: What is it?

MR. BRENNAN: After itwas marked, I was

going to start going into the details.

THE COURT: Could you just give me a title

of the plan that we're marking as an exhibit?

MR. BRENNAN: Certainly. It's a plan.

It's entitled, "plan of land, rt-Tit encroachments

I from The [anding at South Park over Borden Light

2 Marina property in Fall River, Massachusetts, dated

3 October 29th,1999, Mount Hope Engineering."

4 THECOURT: Okay.

5 MR. BRENNAN: It has an original - I

6 believe this is an original seal and signature by

7 Donald MacNeill, registered land surveyor.

8 THE COURT: This is Exhibit 43?

9 (Exhibit Number 43, marked in

10 evidence; plan ofland showing1l encroachments, d,ated 10/29/99)

12 Q Mr. Hall, do you recognize the plan in front of you

13 that's been marked as exhibit number 43?

14 A Ido.

15 Q Could you explain for the courtwhatthatplan is,

16 and to your knowledge, the purpose for which the plan

l7 was prepared?

I 8 A I believe in the late '90s it was prepared to

19 establishthepropertyline. Andwhendoingso,I

20 believe encroachments were noticed, and obviously

2l documented on this plan.

22 MR. SEIGENBERG: Your Honor, just to save

23time,

I'llhave

an ongoing objection, ifI could, as24 to the substance ofthis testimonybased on this

-70 -

I plan.

2 TbtECOURT: Inotetheobjection.

3 MR. SEIGENBERG: Thank you. I appreciate

4 it.

5 Q Mr. Hall, on this plan, I'd like to direct your

6 attention to what's shown on the left-hand side of

7 the plan.

8 A Mm-hmm.

9 Q Are there two buildings shown at that point?l0 A Thereare.

l1 Q Noq you may have to stand up to get a little closer

12 to it but could you tell me in relation to the

13 property line as shown on that plan, could you tell

14 me the relation ofthe building to the property line?

15 A The plan depicts building 1 [sic] and building 10 for

16 The landing, and the plan, I believe, has four

17 notations.ofan air conditioning pad over the line by

l8 1.4 feet, a concrete step overby .4 feet, and

I 9 another air conditioning pad over by 1 .4 feet, on a

20 porch ovohang on building number 10 over 2.3 feet.

21 Q Nou Mr. Hall, you said building I and building 10.

22 Would you take another look at the designation ofthe

23 building to the left.

24 A Sorry. Building 11 andbuilding 10.

-71 -

1 Q If I give you a marker, would you highlight the

2 notation on the plan where those encroachments are

3 that you just testified to, just so ifs easier for

4 us to see.

5 (Wihess marking plan.)

6 Q Mr. Hall, oriortating yourself to exhibit number 43,

7 you highlighted - made certain highlight notations

8 on the plan; is that correct?

9 A That's correct.

l0 Q Moving from the left of the plan to the right of the

1 I plan, would it be fair to say that the first notation

12 is an air conditioning pad over the property line,

13 1.4 feet?

14 A Thafs correct.

15 Q Andthesecondnotationiswhat?

16 A A conffete step over by .4 feet.

17 Q Thethirdnotation?

18 A Is an airconditioningpad overtry 1.4 feet.

19 Q What building are those three encroachments on?

20 A That's building 1 1.

2l Q Directing your attention to building number 10, is

22 there a similar highlight mark?

23 A There is aporchoverhang overby 2.3 feet.24 Q And that's on building number l0?

11

NOTES:



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LANDING v BORDEN LIGHT #2s4067 VoI.III 11/10i101 A Correct.

2 Q When you say, "an overhang," what do you mean by

3 that?

4 A There's various porches on the three - roughly

5 three-storybuildingsthere.

6 Q Do thoseportionsofthosebuildings infact,

7 encroach upon Borden Light Marina property based on

8 thatplan?

9 A That's true.l0 Q I'm sorry?

ll A Thatistrue.

12 (Counsels conferring.)

13 Q You testified that you have a copy of Mr. McNeill's

14 plan in your files; is that correct?

15 A Ido.

16 MR. BRENNAN: I have no further questions,

17 Your Honor.

18 THECOURT: Okay.

19 MR. SEIGENBERG: If I may, Your Honor.

20 Thankyou. Iflmayapproachthewitness,iflmay?

2l THECOURT: Yes.

22 CROSS EXAMINATION

23 (By Mr. Seigarberg:)

24 Q That's marked as exhibit 43, that's stamped by Mr.

I A Mm-hmm.

2 Q I'm afraid to move it. Are you familiar with that

3 plan? What involvement did you have with exhibit 21,

4 the elevation plan?

5 A The elevation plan was produced for The [anding due

6 to an inaccuracy with a FEMA floodline that was

7 recently re-established, I believe, maybe a year or

8 two ago, where The l^anding was contacted by, I

9 believe, their financial institution, or maybe FEMA,10 andtheywereneverdesignatedinafloodzone. And

I I now after twenty-some years or so, they were

12 obviously pushed into the flood zone. They contacted

13 us and asked us the process and for some help on

14 really what was going on there.

15 Q As part of the work that was performed in 2009, did

16 you and your firm go out and actually do some

l7 add'itional survefng to find out the bounds of the

18 property?

19 A We actually subcontracted S. Roy land Survelng for

20 the bound - you're sort of mixing two things here, I

2l think. You've got the FEMA portion which is an

22 elevation survey. Okay. And then once we got into

23 that, for whatever reason The Ianding also wanted us

24 to put monuments in, establishmonuments, and that

-/f-

I was performed, obviously, with S. Roy [-and Surveying.

2 So, there's two different tasks there.

3 Q I see. And S. Roy did that work under your direction

4 and supervision; is that correct?

5 A No, he's an R[5, and I obviously have to, you know,

6 tell him the scope of work, and then what we're

7 tryrng to achieve as project manager. And then he

8 actually makes the property line determination,

9 obviously according to the Mass. General law.

10 Q And so, those suweying marks were placed on the

i I ground in 2009; correct?

12 A I believe so, yeah.

13 Q Andbased on thosemarks, yourofficeprepared

14 exhibit2l; correct?

15 A Conect.

I 6 Q Exhibit 21 also showed buildings l0 and I 1; correct?

17 A Yeah.

18 Q Based on the survey thatwas done in 2009, this

19 survey plan did not show any encroachments of

20 building 10 or ll, does it, sir?

21 A It's not the intention of the plan.

22 Q But it doesn't show it, does it?

23 A No. it does not.24 Q The elevation plan also shows the elevation to mean

-76 -

I McNeill's; correct?

2 A That's correct.

3 Q And he really is the land surveyor who was primarily

4 responsibleforthisprojectbackin 1999;conect?

5 A Correct.

6 Q And he is the one who drew this plan, not you, sir;

7 correct?

8 A No, not true. He was the overseeing R[5 at the fime

9 for obviously many people that were involved. So,

l0 the review and the determination, the final11 determination was obviously him reviewing it, and us

12 Q Right.

13 A Butthepreparationbetweenthe -youknow,if

14 youte refening to the CAD work, the field worlg and

15 everything leading up to it, he didn't do it solely,

16 obviously. Buthedidreviewthefinalproduct.

17 Q Andhe signed offontheplan?

18 A He did sign offon the plan.

I 9 Q Sir, as you indicated, you did some additional work

20 on this site also for The hnding, as well; correct?


22 Q And sir, I'm going to - I have a larger version --

23 MR. SEIGENBERG: It's exhibit 21, Your24 Honor, the elevation plan.

1A

NOTES

KS COURT REPORTING14 Palmer Avenur


Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT.#254067 VoI.II tUt0n0I sea level; correct, sir?

2 A Conect.

3 Q And so, for example, are you aware that this is the

4 southerly end ofthe property?

5 A Iam.

6 Q Are you also aware that the wall was constructed

7 approximately in 2009 up to approximately -8 A Iamawareofthatwallbeingconstructed. Im

9 unsure ofwhether when we did the elevation survey if10 thewallwasinornot. Ican'tactuallyrecall

11 because there was - the time lines are all pretty

12 shortin there. So, Ihonestlycan'trecall.

13 Q But this elevation plan determined mean sea level at

14 the top of the wall. Wouldn't that indicate that the

15 wall was -

16 A Yeah. So, ifitcalls it out on thatplan, then the

17 top of the wall was probably in place at the time.

18 Q Do youknowJohn Lund, bythe way?

19 A ldo.

20 Q How long have you known John Lund?

2l A I believe he called me in '97.

22 Q So,you'veknownhimsince -

23 A Yeah.

24 Q -',91'-!

-77 -

I A Yeah.

2 Q And then it goes down to - in front of building 5 I

3 see three notations on the top ofthe wall,

4 20.15 MSL: correct?

5 A Mm-hmm.

6 Q The next is 19.87 MSL; correct?

7 A Mm-hmm.

8 Q The next one is 21.05 MSL; correct, sir?

9 A Yeah.10 Q So, all ofthoseelevations areobviouslyover

1l 19 MSL: correct?

12 A If that's howit's noted, yeah, if they're over 19

13 and listed that way.

14 Q And so the wall thafs constructed thereexceeds

15 19 mean sea level, does it not?

16 A Thatwouldbetrue.

l7 Q And in fact, to move this thing along, looking to

18 this entire wall, it appears that every elevation

19 that's noted as the top of the wall exceeds 19 MSL;

20 isn't that correct. sir?

21 A Thatistrue.

22 MR. SEIGENBERG: I have nothine further

23 Thank you, sir.

24 REDIRECT EXAMINATION

-79 -

1 (By Mr. Brennan:)

2 Q Mr. Hall, you mentioned that you worked for both The

3 landing at South Park and Borden Light Marina; is

4 that correct?


6 Q And you were recently retained by The landing at

7 South Park to assist them in amending the FEMA map;

8 is that correct?

9 A That's one of many things we did, yeah.

l0 Q Was that a successful amendment?

I I A Yes, it was actually recently.

12 Q What else have you been retained by The tanding to

13 do?

14 A I would say the three tasks are the FEMA Flood

15 Elevation Project an installation ofthe

16 monumentation between The hnding and the Marina, and

l7 issues with the southem easement issue offClub

t8 Street, which was sort ofajoint venture between The

19 tanding and the Marina as far as payment went. They

20 both agreed to pay me to try to resolve the issues

2l there.

22 Q So, at that point, it would be fair to say you're

23 working forboth of them?24 A Iwasworkingforbothofthern.

-80-

1 A Yeah.

2 Q Were you friends with John Lund?

3 A Outside of the professional world, no, I wouldn't say

4 that. I've never -

5 Q Socialized?

6 A -socialized,no.

7 Q Okay. Justabusinessrelationship?

8 A Yeah, ifs business. Actually, with him and The

9 l-anding, it'sjust besn basically professional, so...

l0 Q So, the top of the wall here on the southerly end,

I I you determined that top of the wall was over 24.09 -

12 A Okay.

13 Q -meansealevel;correct?


15 Q And thatwall - firstof all, that is nota straight

16 line for that wall, is it?

17 A No,no.

18 Q Describe that wall with the -

1'9 A I believe, you know, if it's the whole length of the

20 Marina, it obviouslyjogs back and forth from the -

21 Q From the wall itself?

22 A The whole wall, yeah, up and down, back and forth.

23 Q Towards building 4, you can see that thafs elevation24 22.06; conect, sir? Can you see that al1 right?

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LANDING v BORDEN LIGHT #254067 VOI.II 11/10/10

I Q And that was recently, wasn't it?

2 A Yeah, within the last twelve months.

3 Q You mentioned monumentation. Would you explain for

4 the court what you mean by that?

5 A I believe after the wall went in, The l:nding was

6 unsure ofactually where they're ownership was

7 between them and the Marina. And they had contacted

8 us, and no monumentation existed, or very litt1e

9 monumentation existed for the whole run. So, they10 contacted us and, you know, obviously we got the RLS

1 1 together and ten years or so later start redoing the

12 property line and getting monuments in there.

13 Q Did you install monuments?

14 A We did.

15 Q Now, when you say, "a monument," is that a cement

l6 four-by-four or six-by-six block?

17 A That is correct. RLS installed, Ibelieve,

18 approximately every 200 feet and every change of

19 direction, a monument with a drill hole.

20 Q To your knowledge, are those monuments still there?

2l A Ibelieveso,yeah.

22 Q Back in 1999, did you make any marks as to where the

23 propertylines were?

24 A I don't believe so. If they were, they were only

-81 -

I Q Correct.

2 A No, I don't believe so.

3 Q So, in fact, what your company did is, added

4 permanort monumentation, drill holes along various

5 points ofthe property line; correct, sir?

6 A Yeah, The l-anding contracted us to put monumants with

7 drill holes every 200 feet or on change ofdirection.

8 Q And sir, didn't the property line change based on the

9 more recent monumentation that was done in 2009?10 A Icouldn'ttellyou.

11 Q You couldn't tell us?

12 A No. Ididn'tactuallydothecalculations. So,if

13 the monuments reflect a slight change from'99 to

14 2009,youknow, that'snotwhat -wewerejusthired

15 to put the monuments in. So, it was, again, based

16 offthe tracks.

17 Q And cercainly as we alreadywentthrough, the

18 elevationplandoesn'tshow -elevationplanthat

19 was done in 2009, that doesn't show any

20 encroachmentsicorrect?

21 A No. we weren't hired to do that.

22 Q Sir, the question, does not show any encroachments?

23 A Right.

24 Q And to the contrary, what it shows is no

-83-

I encroachments. There's actually a property line, and

2 all The hnding buildings are on the other side of

3 the property line on their own property - strike

4 that. Let me try that again.

5 The plan that was done in 2009 with this

6 new lines and permanent monumentation, it depicts the

7 buildings ofThe landing, and does not show any

8 encroachment ofthose I-anding buildings relative to

9 the Marina property line; correct, sir?

10 A I think you might be mixing the two up. The11 elevation survey for the FEMA, the FEMA map amendment

12 that was required, was an elevation survey to see

13 where those buildings fell relative to mean sea

14 level. It wasn't a survey to figure out encroachment

15 or -it'sactuallyafilingjusttofilewithFEMA.

16 So, they're not - let me say it this way, the

17 easiest way. We were hired to do an elevation

18 survey, not an encroachment survey or a property line

19 suwey at the time. We were just hired to do an

20 elevation survey.

21 Q Wait a second, Mr. Hall. You were initially hired to

22 do a FEMA plan; correct?

23 A That's correct.24 Q And then you've told us during cross examination that

-84-

1 probably temporary at the fime, meaning, you know,

2 wooden stakes or something. But I actually don't

3 recall exactly what we may have put in.

4 MR.BRENNAN: Thankyou. Ihavenofurther

5 questions, Your Honor.

6 MR. SEIGENBERG: I have a few.

7 RECROSS EXAMINANON

8 (By Mr. Seigenberg:)

9 Q So, in 1989 [sic], when exhibit43 was prepared -

10 A Actually,'99.I 1 Q '99, thank you. In 1999, there was no permanent

12 monumentation on the ground when the survey was done;

13 conect?

14 A Not between the - there was a monument near

15 building 1 I where that wall's falling over there.

16 Thatmonument,Ibelieve,waspresent. Therewas

l'l also monumentation out on Almond Sheet. And the

l8 records I reviewed before coming up here revealed

19 that the monumentation that we found to derive

20 everything came offthe railroad.

21 Q Okay. Buttherewerenoperrnanentdrillholes as

22 were inserted in 2009; correct?

23 A No. You mean between - areyou

talking between The24 tanding and the Marina?

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LANDING V BORDEN LIGHT #254067 VoI.II 11/10/10I you were - during direct examination that you were

2 subsequently retained to do a property survey, as

3 well, and that's what you did; correct, sir?


5 Q And that's why you put the permanent monumentation

6 down on the grounds based on the site lines that were

7 determined in 2009; isn't that correct, sir?

8 A No, thafs not correct.

9 QThat's not correct.

10 A The FEMA - if Icould, the FEMA survey, we were

I t hired for first when they got notified about being in

12 the flood plain. We did an elevation survey. After

13 that was complekd, they hired us to do a monument

14 installation, where there's no plan. There was no

15 plan created offthat. So, there's two different

16 tasks at two different times.

17 Q Agreed. Butbothweredonein2009.

18 A lt's probablytrue, butnotin the same survey, not

I 9 in the same window of time.

20 Q Butnonetheless,theyweretransposedonthesame

2l plan, the elevation plan.

22 A No, they were not. That's my - that's what l'm

23 trying to say. The elevation survey that you had up

24 was created to send to FEMA. It was not a plan of

-85-

1 and building 11.

2 MR. SEIGENBERG: May I approach and just

3 put it directly in front of the witness, Your Honor?

4 THECOURT: Yes,youmay.

5 MR. SEIGENBERG: Thankyou.

6 Q You locatebuilding l0 and building 11 on the

7 elevation plan, do you not, sir.

8 A That depiction on that flood plan is a more gateric

9 building to show elevation. Ifs not an encroachmentl0 plan or a survey plan to try to depict, because quite

11 honestly, I don't think FEMA would really care about

12 encroachments. It's an elevationplan to showgrades

13 around the building, first floor, relative to flood

14 plain.

15 Q I-et me try a differort (way. You're not saying these

16 buildings are placed on this plan arbitrarily, are

17 you?

I 8 A No, they're not arbitrarily, but the detail that was

19 sent to FEMA is not a detailed site plan. [t's a

20 site plan to show that when they want to insure each

2l one of those buildings, they need the data on the

22 buildingtoshowelevation. Andthat'sit. That's

23 what the task was. The task wasn't about

24 encroachments at that time.

-87 -

I Q The elevation plan, sir, that does show the property

2 line: correct?

3 A It does show the property line; correct.

4 Q Is thepropertylinedepicted accuratelyinthis

5 plan?

6 A Ibelieveso.

7 Q Wouldn't your company thar, locate the buildings

8 accurately on the plan as well, based on the property

9 line that's described?

l0 A Yeah,yeah.1l Q And so, based on thatsurveyon this plan, no

12 en$oachments are shown on building l0 and I 1;

13 correct, sir?

14 A Right. Thafs true.


16 THE COURT: Are you done with this witness?

l7 Are we done, Mr. Seigenberg?

18 MR. SEIGENBERG: Oh, I'm sorry, Your Honor

19 Iapologize. Iwas done,yes.

20 THECOURT: Okay.

2T REDIRECT EXAMINATION


23Q

Mr. Hall, directing your attentionto what

youwere24 just testifoing about, the elevation plan; conect?

-88-

I property line, nor did The l-anding hire us to do the

2 monumentation at that time. The monumentation came

3 afterthatplanwassenttoFEMA. There'sjusttwo

4 different things, two distinctly different windows of5 time there.

6 Q I see. So, there is monumentation now on the ground?

7 A That's correct.

8 Q Is that reflected on the plan that was prepared by

9 Mount Hope?

l0 A No. The '99 plan by Don MacNeill is what we have upll here. Thereisnoplanbecausetheydidn'trequesta

12 p'lan for monumentation to be shown on the plan.

I 3 Q So, nonetheless, sir, when you were out after these

14 permanent monumentations were placed in the ground

1 5 around 2009, did you, sir, notice any encroachments?

16 A I didn't looh to be honest with you. We put the

17 monuments between two points. We weren't hired to do

18 that. Weputthemonumentsinbasedontheproperty

19 lineofwhattheyowned,and that's it. Ihonestly

20 could not tell you whether or not - if youte trying

2l to say'09 and'99 are two different surveys, I

22 couldn't even answer that.

23

QOnce again, going back to the elevation plan, you

24 show, for example, you show locations ofbuilding l0-86-

: :,..;::).



Phone: (978) 177-5802 FA* (978) 777-5803



LAI\DING V BORDEN LIGHT,#254067 VoL.III I 1/10/10

I A Mm-hmm.

2 Q This plan shows footprints ofbui'ldings, does itnot?

3 A Correct.

4 Q But does it show air condit'ioning concrete pads?

5 A It does not.

6 Q Does it show concrete steps?

7 A ltdoesnot.

8 Q Doesitshowporchoverhangs?

9 A No. It may show the patios or porch overhangs, butl0 itdoesnotshowthe -youknowthedetailofthe

11 building that would be sent to FEMA and such, you

12 l:now. for what the task was at hand'

13 Q Which one ofthese twoplans wasprepared for

14 encroachments?

1 5 A The plan on the easel was prepared for encroachment.

16 Q Exhibit40?

17 A Correct.


19 Your Honor.

20 MR. SEIGENBERG: Nothing further, Your

2l Honor.

22 THE COURT: All right. [rt's take a break

23 for about ten minutes, and we'Il come back and go

24 until 4:30.

-89-

1 (Witness stepped down.)

2 (Moming break)

3 MR. SEIGENBERG: We're not going to be

4 doing closing arguments in this, and givot the

5 procedure of the Iand Court, where it's a long time

6 before the court get our written findings, I would

7 like the opportunity just to spend a minute with

8 counsel and Your Honor, and just superimpose those

9 two plans that were the subject matter of the

l0 testimony, so the court can get a close look at these

1 I two plans and compare.

12 THE COURT: You know, you will have an

13 opportunity. Imayhaveyoucomebackinfororal

14 argument after you've Iiled your memorunda. So' you

l5 know, there will be more opportunity to rwiew these

16 things,butifyoucan enlightenmetogetheron -

l'7 MR. SEIGENBERG: I appreciate that.

18 THE COURT: - the differences in those

19 plans, that would be okay.

20 MR SEIGENBERG: Thank you. Probably the

21 best thing to do is tojust superimpose these a

22 little bit. I know it's hard. The first time I saw

23 this plan myself, it was hard.24 Justacoupleofobservations. Firstof

-90-

all, these are ali the dimensions that were taken on

the plan, exhibit 43, all came from a southerly

direction. The measurements of this plan all come

from the northerly direction. The other thing that

is significant, Your Honor, is these buildings are

depicted on this plan, exhibit - the elevation plan,

2 I . And they're relative to the property line, which

are totally different what's shown the other exhibit.

THE COURT: AndI

willsee those when, you

know, I can read a plan and I will examine those.

MR. SEIGENBERG: Thank You.

THE COURT: They come in as they come in

MR. SEIGENBERG: I understand. I

appreciate the time. Thank you.

MR. BRENNAN: Your Honor, mynext witness

will be Michael Lund.

*************MICHAELLUND

*************(Witness swom.)

DIRECT EXAMINATION

(By Mr. Brennan:)

Q Mr. Lund, would you please state youl name and

address?

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I A Michael Lund, 700 Shore Drive, Unit 316.

2 Q Unit what? You're going to have to speak up so we

3 can-

4 A 316.

5 Q Is that at The tanding at South Park?

6 A lt's at The I-anding at South Park.

7 Q How many units do you own at The landing?

8 A Two.

9 Q What are the numbers?

l0 A Unit 808 and unit 316.11 Q Now, Mr. Lund, are you enPloYed?

12 A Yes.

13 Q Bywhom?

14 A Borden LightMarina, lncorporated.

15 Q Inwhatcapacitl4

16 A I serve as the president.

I 7 Q For how long have you been employed by Borden Light?

I 8 A Probably since I was fifteen years old/sixteen years

19 old.

20 Q Howoldareyounow?

2l A Thirty-seven.

22 Q Were you familiar with the property that - or are

23 you familiar with theproperty,

andwere you familiar

24 with it in 1986 that is now the Borden Light Marina

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NOTES



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT.#254067 VoL. U rut0tr0I and The landing at South Park?

2 A Yes.

3 Q Could you describe for the court what the property

4 was like prior to the construction of the Marina and

5 the construction ofThe t-anding at South Park?

6 A The land at the top of the embankrnent, the ernbankment

7 encroached almost all the way out to the water.

8 There was o1d cement and old railroad tracks up

9 there. Down below the embankmant on the northerlyl0 end, there were a bunch ofhouses or shacks on

11 pilings that some people lived in; some were

12 abandoned. And then as you - ifyou could walk

13 along the water and you went down the southerly end

14 by Kennedy Park and King Phillip Boathouse, there

l5 were probably another thirteen or fourteen houses

16 built on stilts.

17 Q Noq Mr. [-und, do you have a binder of exhibits in

18 front ofyou?

19 A Yes.

20 Q Would you please turn to exhibit number 34-l? Do you

21 have it?

22 A Yes.

23 Q Do you recognize whafs shown in that photograph?

24 A Those are - that's what was there when my father

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I created his vision.

2 Q There's a date on that photo of 1987. Did you put

3 thatdate on there?

4 A Yes, Idid.

5 Q Is that your recollection of when that picture may

6 havebeen taken?

7 A Yes. I believe it's either late '86 or'87. in the

8 early years.

9 Q Does that picture accurately depict what was there at

l0 that time?l1 A Yes,itdoes.

12 Q Now, just walking you chronologically through the

l3 sequence, starting with that exhibit, number 34-1, if14 that's what the property looked like back in late

15 '86/'87, what, ifanything, next happened to develop

16 thatproperty?

l7 A The first thing was theremoval of the houses along

l8 the shoreline on the both the southerly end and

19 northerly end ofthe property.

20 Q Howwasthataccomplished?

21 A Well, some people bumed them, but for the most part

22 it was accomplished by tearing them all down and

23 shipping out the debris.

24 Q Do you know when it is - strike that.

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Do you know how it is that your father came

to acquire the title to the property, that is, from

whom did he purchase it?

Yes.

Who was that?

I believe it was E.G. Davis, who was - not E.G.

Davis. It was a company that was assisting the owner

of the property.

Did your father purchase the property with anotherindividual?

Correct.

Who was that?

Brian Gory (phonetic).

Were you personally down on the property on the

premises around the time this picture was taken in

1987?

In a limited capacity, but yes.

In what capacity were you there?

Just going to work with my dad.

But you recall that time period, do you not?

Correct.

Directing your attention to exhibit 34-2, would it be

fair to say that that picture depicts one ofthe

buildings that war **"t*:;f:t

I A Correct.

2 Q Do you recall that event?

3 A I recall the following day, having to cornplain about

4 a fire watch.

5 Q Now, are you familiar with the manner in which Borden

6 Light Marina and The landing at South Park were

7 marketed?

8 A Yes.

9 Q Would you turn to page - exhibit 34-3? Are you

10 there?

11 A Yes.

12 Q Doyouknowthoseindividuals inthatpicture?

13 A Yes.

14 Q Do yourecatl when thatpicturewas taken?

15 A Thatwas taken, I'm going to sayprobably'88, late

16 '87,'88.

17 Q Atwhattypeofevent?

18 A Itwasata - Ibelievethatwas ataboatshow.

19 Q Was The l,anding at South Park marketed at that event?

20 A Yes.

2l Q Isthatdepictedinthispicture?

22 A Yes.

23 Q Now, looking at that picture, do you see a reference24 to Borden Light Marina on the right?

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KS COURT REPORTING14 Palmer Avcnue


Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #254067 VOL.III tlt10n0I A Yes.

2 Q What do you see on the left?

3 A The picture of the Marina was what was originally

4 permitted, 410 slip marina, entering in on the

5 northerly portion, running all the way down cornmon

6 boundary line in front ofall 140 units, and then

7 leaving out though the southerly end by Kennedy

8 Park, and the proximately it was on Narragansett Bay,

9 and in terms of highways for the condominiums.10 Q After the shacks were removed from the property, do

I 1 you recall what, if anyhing, next happened to

12 develop The l-anding at South Park and the Marina?

13 A There were a number of improvements firade to lower

14 Kennedy Park at the southerly end by my father, his

15 partnerand Ibelieve, thedeveloper. And then

16 construction began on The I-anding.

17 Q Were The l-anding buildings started first, or was the

18 Marina started first?

19 A TheLandingbuildingswere startedfirst. Theywere

20 granted relief on some of the permitting reviews

2l because ofthe investment that my father and the

22 other developer had made in lower Kennedy Park, and

23 their effors to clean up the old abandoned houses

24 along the waterfront. The Marina subsequently had to

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I and then building 6 is being constructed.

2 Q Now, youte talking about The I-anding at South Park;

3 correct?

4 A Conect.

5 Q In that photograph, would that be looking in a

6 southerly direction?

7 A There is looking in a southerly direction; correct.

8 Q Wlrat part of that picture shows what is now the

9 Marina?l0 A Theentirepicturefromwhere the photographeris

I I standing and looking along the embankment past the

12 very first building to where the - almost to where

13 the two very large trees are at the southerly most

14 point.

15 Q Directing your attention to the bottom halfofthat

16 picture where itjust shows, you know, the disturbed

17 material and the water.

18 A Mm-hmm.

19 Q What is there now?

20 A Now there is a roadway. There is a large shed for

21 boatrepair and storage. There is a mechanic's shed

22 area. There is a boardwalk. There is the piers of

23 where you walk to the office. l,ooking all the way

24 down the waterfront?

-99 -

I Q No, that's -

2 A kl that immediate area, there's fuel tanks

3 undergtound, the big sheds and parking and the

4 boardwalk, and a boat ramp.

5 Q Now, I think I asked you, this is looking in a

6 southerly direction; is that correct?

7 A Correct.

8 Q I-et's look at the next exhibit, 34-5. And I'd like

9 to ask you ifyou recognize what's shown in that

l0 picture.

I I A This picture is standing on the southerly end,

12 looking in the northerly direction back at the black

13 tanks, which are still there.

14 Q There's abuildingbeing constructed in that

15 photograph?

16 A Correct.

17 Q Would you be able to tell what building that is?

18 A I believe that's the building just past the swimming

19 pool, which is I think, building 7.

20 Q Now, in that picture, Mr. Lund, you can see cerlain

21 earth work has taken place on the site?

22 A Conect.

23 Q Are you familiar with the work that's taken place?24 A lmean,Im watching it as a young kid, yes.

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1 go through a much more rigorous permitting process.

2 Q Directing your attention to 34-4, the next page,

3 could you take a look at that and describe for us

4 what - well, strike that.

5 Would you take a look at that picture,

6 please?

7 A Yeah.

8 Q There's a date on that picture. Did you put that

9 date on there -

10 A Correct.

11 Q -in 1987?

12 A Conect.

13 Q Do you have a recollection of the propertybeing as

14 itis shown in thatpicture -

15 A Yes.

16 Q - so it fair and accurately represents the Marina

17 property?

18 A Yes.

19 Q lnoking atthatpicture, on the top third ofthe

20 picture you can see some new construction; is that

2l correct?

22 A Cortecl.

23 Q Would you know what those buildings are?24 A It'sbuilding 3,building4, Ibelievebuilding 5,

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NOTES



Phone: (978) 777-5802 FA* (978) 777-5803



LANDING v BORDEN LIGHT #254067 Vor,.III rut0n0I Q Doyourecallthat?

2 A Yes.

3 Q Noq lookingatthatexhibitnumber34-5,rightto

4 the left ofthe building that's being constructed,

5 there's an embankment there: is that correct?

6 A Correct.

7 Q Is that still there?

8A No.

9 Q What happened to it?10 A The area by the swimming pool, probably sometime in

11 2000 -late2005106,well,hadbeenexcavatedyears

12 ago, had been cut way back, and then more recently in

13 the last ten years a retaining wall was put by the

14 area ofthe pool.

15 Q But directing your attention to what's shown in this

16 exhibit, therc is a building under construction.

17 A Correct.

18 Q And to the left of thebuilding, what do you see

19 there? Do you see an embankment?

20 A Yeah, you see the embankment's been cmved away by

21 excavation.

22 Q Thatwasin1987.

23 A Conect.

24 Q 2010, has anypartof that embankmentstill there?

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I A Yes.

2 Q Can you orientate the court as to where that might be

3 along the property line between Borden Light Marina

4 and The l-anding?

5 A It is essentially, standing at the comer of6 building 5, and looking in a southerly direction.

7 Q There's a stone pier shown in this photograph. Is

8 that still there?

9 A Stone pier's stil'l there.10 Q Now, there's a fence that's shown in this photograph;

1 I correct?

12 A Correct.

13 Q Do you know - d'irectingyourattention to 1988, do

14 you know whose fence that was?

15 A Itwas The landing at South Park, the developerof

16 the condos installed it.

1 7 Q Directing your attention to the gravel, or the dirt

l8 material shown on the right-hand side ofthat

19 photograph, and as we stand here today, is that

20 embankment still there?

21 A It is - the embankment, it's been cut back and

22 retaining walls have been put in.

23 Q Can you tell from looking at this photograph, what

24 construction technique was used for the retaining

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I walls in this picture, orientating to the building?

2 A Fromthis point, standing, fromthispointofthe

3 photo looking south, was a segmorted block wall.

4 Q You mentioned - how much - strike that.

5 Have retaining walls been built along the

6 common property line between Borden Light Marina and

? The hnding?

8 A They've been on the very first chapter 9l license

9 from day one.

l0 MR. SEIGENBERG: Objection, Your Honor.11 A And they've been built -

12 MR. SEIGENBERG: It speaks for itself, Your

13 Honor.

14 THE COURT: Answer the question. The

15 wihess should answer the question directly.

16 Q The question, Mr. Lund, is has a retaining wall been

17 built along the common property line benveen Borden

18 Light Marina and The Landing at South Park?

l9 A Yes, since day one.

20 Q Now, when, to yourknowledge, did the firstretaining

21 wall - was the firstretaining constructed, and

22 where?

23 A Firstretaining walls were constructed in 1988. The24 first one was constructed in the middle of the

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I A ICs cutfurtherback towards theedge ofthe

2 swimming pool.

3 Q What, if any'thing, replaced the embankment?

4 A Throughout the whole property line, an assortment of

5 retaining walls.

6 Q If you had to locate where the swimming pool is in

7 this photograph, where would that be?

8 A In terms of The hnding?

9 Q No, in terms of this photograph, directing your

l0 attention to the right-hand side.I I A The swimming pool, it appears as kind of the short,

12 wood, picket fencejust in front ofwhat's

13 buildingT. There'slikeathree-and-a-half/four

14 foot wood picket fence.

15 Q And you say - is that where the swimming pool was

16 ultimatelyconstructed?

17 A Conect. I think it's already in at this point.

18 Q Directingyourattention to exhibit34-6, areyou

19 familiar with that photograph?

20 A Yes.

21 Q And it's dated 1988?

22 A Yes.

23 Q Did you - do you recognize what's in that24 photograph?

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:." :i

NOTES


Danvers, Massachusetts 0l 923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 Vor,.II property, down towards now which is the second main

2 access point for the docks. That's basically in the

3 m'iddle of the property. The second retaining wall

4 was constructed at the northerly end ofthe property

5 in front buildings l0 and I l. And then there was a

6 small segmanted block wall that was constructed down,

7 right around building 4, back around that same time

8 ffame. And then there was also a sheet pile wall

9 that was constructed directly in front ofbuilding l010 at that same time period.

l1 Q Haveyou described all oftheretaining walls that

12 had beenbuilt?

13 A You mean in terms of the t)ryes of construction or -

14 Q Types ofconstruction and walls.

15 A Yeah. Thosewere theareas ofthe wallsbuiltat

16 that time.

17 Q So, does thatdescription take you fromalong the

18 entire common property line of the Marina and The

19 landing?

20 A Today?

21 Q Yes.

22 A There's an assortment of block wall, sheathing wall

2J and poured wall thatruns along the entireproperty

24 line.

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1 Q I believe you testified that the first wall was

2 constructed in 1988 -

3 A Correct.

4 Q -orthereabouts?

5 A Thereabouts.

6 Q When was the last wall conpleted?

7 A Iwould saySeptemberof2009.

8 Q Now, looking at the next exhibit, 34-7, is it fair to

9 say - would you tell the court what is shown in that

l0 photograph?ll A In exhibit 34-7, that is one ofthe firstretaining

12 walls that got built in the northerly end ofthe

13 project. That'salsotheaccesspointtothefirst

14 two docks of the Marina. The revet€ment stone has

15 beenputinplace, goingdowntowards -alongthe

16 road towards the next clubhouse.

17 Q Loohng at the retaining wall in 34-7, it looks like

18 it'sattwodifferantheights. Isthatfairtosay?

19 A Conect.

20 Q And the taller portion of the wall is located in

2l front ofwhat building?

22 A 'foday it is located in front of buildings 10 and I l.

23 Q Hasthatwallchanged

sincethedateofthis24 photoFaph?_ 106 -

tur0ll0I A Yes.

2 Q In what manner?

3 A The developerofThe t-anding asked myfatherto add

4 on to the height of the wall.


6 What the developer told his father is fiple hearsay.

7 THE COURT: Correct.

8 MR. SEIGENBERG: Thankyou, YourHonor

9 Q Just directingyour

attentionto the question, has

l0 the wall changed from what's shown in that

1l photograph?

12 A Yes.

13 Q Bywhomwas thewall changed?

14 A Keith Development added on to the height of the wall

15 at either end so it was even.

16 Q Isthatwallstilltheretoday?

17 A Yes.

l8 Q Looking at exhibit number 34-7, inthe upper

19 right-hand corner you see some automobiles or trucks

20 parked there?

21 A Correct.

22 Q Is that looking in a southerly direction?

23 A Correct.

24 Q Now, you see a gravel embankment in the right-hand

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I comer?

2 A Correct.

3 Q k that still there?

4A No.

5 Q What happened to it?

6 A That got dug out before we opened up in '89 and drove

? a sheet piling wall.

8 Q And again, the two buildings shown in that photogaph

9 are buildings what?

10 A The building furthest away from the embankment is1l building 8, Ibelieve. Buildings l0 and 11 haven't

12 been constructed.

13 Q So, which one is in front of the retaining wall, what

14 number?

15 A Therereallyisn'tone. Itlooks likeit,butthat

16 buildingissetquiteawaysback. Thereendedup

17 being two buildings in front of that building.

18 Q Now you mentioned some sheetpilingwall thatwas

19 installed in the area depicted in the upper

20 right-hand comer of 34-7. With that in mind, would

2l you tum to thenextexhibit,34-8?

22 A Yeah.

23Q

What's shown in that picture? And I'11 ask you no

24 questions about the garb ofthe people shown in the

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NOTES:



Phone: (978) 777-5802 FA* (978) 777-5803



LANDING v BORDEN LIGHT. #254067 Vou III I 1/10/10

1 picture.

2 A It'smyfather. Thatis asheetpilewall that got

3 put up for the season, and that was for the first

4 annual fishing toumament.

5 Q That sheet metal piling, is that the one you were

6 referring to a moment ago in a previous exhibit?

7 A Correct.

8 Q Thenextexhibit, 34-9,ifyouwould. Areyou

9 familiar with what's shown in that photograph?10 A Yes.

I 1 Q Can you oriantate the court for where that area is at

12 Borden Light Marina?

13 A That is the southemmost area, standing on the old

14 granite pier that you saw in an eatlier picture,

15 looking back at the property, the embankment where

16 the condominiums are going to be built.

17 Q Are you looking gorerally in a northerly direction at

18 that point?

19 A Youte looking - you're almost looking easterly

20 towards shore.

2l Q I'm sorry?

22 A No. I guess easterly - northeast.

23 MR. BRENNAN: Your Honor, may I attach

24 exhibit number 2l to the board? It may assist all of

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I us in orientating towards -

2 'lHE COURT: Okay.

3 MR. SEIGENBERG: That's the elevation plan.

4 MR> BRENNAN: Yes.

5 MR. SEIGENBERG: That's what I meant. the

6 elevationplan.

7 Q Mr. ["und, lookingataplan thathas justbeen

8 attached to the easel, this is exhibit number 21.

9 And I'd ask you if you'd just take a moment and

10 familiarize yourself with that plan. Do youI I recognize what's depicted on it?

12 A Yes.

13 Q Can we agree that that shows Borden Light Marina, the

14 bank?

15 A Well, it shows the property; it doesn't show the

16 Marina.

17 Q And it shows The l-anding and shows a common property

18 line.

19 A Correct.

20 Q So, in your testimony of these photographs, maybe you

2l can use this to assist the court -

22 A Okay.

23 Q-

understandingwhere

thephotograph were taken.24 Going back to exhibit 34-9, can you tell on exhibit

-ll0-

number 2l where that photograph would have been taken

from?

The stones you see are these stones here, and ifs

basically looking back in this direction

(indicating). Thatbuilding's 3 and 4.

Would the photographer have bean on the stone pier?

He'd be standing out on the stone pier.

And facing what is now what two buildings?

It would be which is now building 3 and building 4.l-ooking at exhibit number 34-9, on the upper third ofphotograph, there seerrrs to be a plateau there?

Correct.

What is that?

That was the top of the bank where the condominiums

got constructed.

Noq stepping down one level, do you see another area

on there that would appear to be a plateau?

Yes.

What is that?

That was originally where the Hope was to build a

marina all at once, where the Marina, the other

access - the road was, and where I think there are

about ten/eleven houses that got taken down.

Could you drive across that area?

lll -

1 A You could drive down to a certain, but then there was

2 debris in the middle, so you couldn't drive all the

3 waythrough.

4 Q So, ifyou wanted to access the northem end ofthe

5 Marina property in 1987, how would you do that?

6 A You'd come through Club Street through the lower

7 Kennedy Park, past the boat club, and then down the

8 hill.

9 Q Butthatwas to access the southerlyend; correct?

10 A Sorry. Thatwas -l1 Q That's all right. That was going to be the next

12 question.

13 A That'sthesoutherlyend. Toaccess thenortherly

14 end, you came down Ferry Sheet and you came right

15 into the property.

16 Q Now in 1987, did you have adriver's license then?

17 A No.

l8 Q In 1987, is it your testimony today, a vehicle could

19 be driven from the southem access point to what's

20 shown in this picture?

21 A In 1987, you could drive from Club Street down into

22 that area.

23 Q At any time since 1987 through today, except for any24 barricades the Marina may have put up, could you

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NOTES:


I)anvers. Massachusetts 01923

Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING VBORDEN LIGHT #254067 VoI.III Lu10lr01 access the southem point ofthe Marina property to

2 some extent by vehicle?

3 A Conect.

4 Q Now, Mr. [.und, directing your attention to exhibit

5 34-12, do you recognize what's shown in that

6 photograph?

7 A Yes.

8 Q Could you orientate the court on exhibit number 21 as

9 to what's shown in thatphotograph?l0 A You areessentially standingagain, righthere,

I 1 looking kind ofin a, I guess, southeasterly

12 direction. Thafsthecomerofbuilding3,where

13 the "for sale" sign is, and the boathouse is right

14 abouthere(indicating)?

15 Q Now,you mentioned thatyoucould access fromthe

16 southern end to a point, and then you'd encounter

l7 construction debris?

18 A Yeah,revetementstoneallpiled up,and gravel.

19 Q tnoking at what's shown on exhibit number 34-12, is

20 that what you're referring to there for the debris?

2l A Correct. Someofitwas leftoverfromthehouses

22 thatgottomdown.

23 Q l-ooking tt34-l2,there's abuilding inthe upper

24 left-hand comer. What building would that be?

- 113 -

I A We use it for boat storage, boat handling and parking

2 on big weekends.

3 Q You testified that the retaining wall has been built.

4 You described the types of walls, and the time

5 period, iflrecall correctly, was'88 to 2009; is

6 that correct?

7 A Correct. It might evor be'87.

8 Q Now, the area seaward of the retaining walls that

9 you've constructed, what do you use that area for?l0 A We use it for boat storage, parking. There's a

11 swimming pool in that ar€a, shuffle board, travel

12 lift, boardwalk, cookout areas.

13 Q Are you familiar with what is referred !o or has been

14 referred to in this case as the 2O-foot easement?

15 A Yes.

16 Q Whatdoyouunderstand the 20-footeasementtobee

17 A Itwasa -


19 The problem is, ofcourse, is that the easement is on

20 the line which -

2l THE COURT: And you asked the same question

22 ofall ofyour witnesses, what does he understand it

23 to be. That's all.

24 MR. SEIGENBERG: If I may, Your Honor. I

- l15 -

I don't think I've ever asked my witnesses what their

2 understandingofthe20-footeasementwas. Iasked

3 them their understanding about other things, but this

4 is the key document in the case and -

5 THE COURT: Well, his understanding is his

6 understanding.

7 MR. SEIGENBERG: I know, Your Honor.

8 THE COURT: It doesn't form a legal

9 opinion, so, Imean, whatdoes he understand itto

10 be? He's the president of the Marina here.

ll MR. SEIGENBERG: Iknow, that's right.

12 You're right. Once you put the word "understanding"

13 in, it has limited value, but as you know, the

14 case law -

15 THE COURT: I know. I'11 let it go. fll16 take itforit's value.

17 MR. SEIGENBERG: I appreciate it, Your

18 Honor.

19 A My understanding is, the non-exclusive use for - to

20 install a drainage pipe, drainage system to collect

21 the runoff from the roofs within that twenty fe€t,

22 and to be able to take measures for erosion control.

23 And that I had the right to use thatproperty,

24 provided I didn't specifical'ly interfere with those

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I A That's the comer of building 3.

2 Q Directing your attention to the area immediately

3 below what I think you identified as the King Phillip

4 Boathouse - Boat Club, does that show a portion of

5 the driveway you were referring to?

6 A Yes.

7 Q Directing your attention to the area that's to the

8 left ofthat driveway, is it fair to say that was a

9 bank that went up towards The tanding?

10 A Correct.

11 Q Towardsthefence?

12 A Correct.

13 Q Is that embankment still there?

14 A No.

15 Q Could you tell the court how it's changed from what's

16 shown in this photograph?

I 7 A Over the years we excavated dirt out of it for either

18 fill on the road as we expanded, and then in 2008 we

19 constructed the wall to go to clean up the entrance

20 down the south end, come around the comer, and

2l heading towards building 3 with the segmented block

22 wall.

23 Q Directing your attention to the area that you24 excavated, what do you use that area for?

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rights that were ganted to The l-anding.

Now, in the course of the various retaining walls

that had been constructed, other than the litigation

that's now pending and brings us here today, has

anyone at The l-anding ever approached you or tried to

stop you from building those retaining walls?

The only time that wer happened was when this case

originated back in, I think, I imagine it must be ,99

or 2000. But other than that"they've been

constructed actually with -

MR. SEIGENBERG: Objection, Your Honor. I

think the question's been asked and answered.

THECOURT: Yes.

MR. SEIGENBERG: Thank you.

Have you ever received any communications from The

landing at South Park board ofmanagers relative to

construction ofany part of that wall?

Yes.

What was that communication?

The initial communications, I believe, were around

'01/'02 when The landing at South Park dropped all

their appeals of the order of conditions to construct

the walls, and it talked about commancing

construction again and building the walls.

-1t7 -

I MR. SEIGENBERG: Objection, Your Honor.

2 He's referring to documents, and Ijust have an

3 answer, if I may, Your Honor. If the witness just

4 kept his answer to the question, I wouldn't have to

5 stand up and delay these proceedings. But he starts

6 talking about a document and what it says. I have to

7 preserve the record, Your Honor.

8 THE COURT: Are these documents in

9 evidence?

l0 MR, BRENNAN; Yes, one of them is.I I THE COURT: Well, why don't you change your

12 question -

13 MR.BRENNAN: Okay. Iwill.t4 THE COURT: - so that he will direct it15 more specifically.

16 Q Mr. [,r:nd, at some point in time, did you receive a

17 letter from the board ofmanagers ofBorden Light

18 Marina [sic]?

19 A When I was president, yes.

20 MR. BRENNAN: May I approach the witness,

2l Your Honor?

22 Q fd like to showyou exhibitnumber38 and askyouif23 you recognize that?

24 A Yes.

lQ2

Is that a letter you received from the board ofmanagers?

Yes.

What does it say?

That they wanted to thank me for increasing the

height of the wall between the Marina and The

tanding. And they received compliments ofhow great

the work is, and how it has improved the landscape

notably.What portion of the retaining wall do you understand

the board ofmanagers was referring to?

They were referring to a portion, my recollection is

of a segmented block wall that I built by the

swimming pool in the - kind of in the belly of The

I-anding property. And the southerly entrance, I

think, including the southerly entrance when I came

around the comer.

When did you do the southerly entrance and come

around the comer?

I think that was done in - that was done in '08. I

think.

Directing your attention onto exhibit number 34-13,

can you tell from looking at that photograph, which

buildings are shown?

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I A 34-8?

2 Q Thirteen.

3 A Thirteen. Yes, that'sbuilding 13.

4 Q That's building 13?

5 A Excuse me. That's building 3.

6 Q Is that the southemmost building?

7 A That's the southemmost buildins.

8 Q Andexhibit34-14?

9 A That is building - that is building 6, right there

l0 (indicating).l1 Q Now, in front ofbuilding 6 in thatphotograph, do

12 you see any portion ofa retaining wall?

13 A Yes. That's the conffete poured wall that got put in

14 in late'87/'88.

15 Q Who put that wall in?

16 A Myfather.

l7 Q Has thatareaas depicted in thispicture, changed

18 since this picture was taken in 1998?

19 A Yes.

20 Q In what manner has it changed?

21 A All of thedebris downbelowhas been cleared out.

22 There's been a boardwalk put along the revetement

23 stone, a cookout area. WeVe cleaned up on top of24 the wall and made a nice finish, and it's been used

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LANDING V BORDEN LIGHT #254067 VoI.II tut0tr0I for parking in the summer and boat storage in the

2 winter, and for the boardwalk.

3 Q Now, when you say - when you mention the boardwalk,

4 where in this picture would the boardwalk in 2010?

5 A Theboardwalkrunsrightontop oftherevetement

6 stone along the water's edge.

7 Q Directing yourattention to 34-15, can you tell us

8 what buildings are shown in that picture?

9 AI

believe that is building 7, overlooking the10 swimming pool.

I I Q In that picture, do you see the different boats?

12 A Yes.

13 Q Did Borden Light Marina place those boats there?

14 A Yes.

15 Q Forwhatpurpose?

16 A Storage.

l7 Q And that was in 1998?

18 A Thatwasin1998.

19 Q Has that areabeen altered in any way since this

20 photograph was taken?

2l A Yes.

22 Q In what manner?

23 A Where the picture's taken from is the pier. That

24 pier now has a clubhouse with bathrooms, showers.

I A The swimming pool.

2 Q Directing your attention to exhibit 34-17, can you

3 orieritate the court as to where that area shown in

4 the picture is located in the Marina property?

5 A Yes. Thepropertytrasicallyis likeanhourglass.

6 So, this is in the middle of the hourglass, down

7 towards -attheendoftheconcretepouredwallin

8 this area here (indicating).

9 Q So, would that be one of the narrowest areas ofthe10 Marina property?

11 A That's thenarrowsecfion, offofbuilding 5 and some

12 ofbuilding 4.

13 Q Noq has thatnarrowpointalong the Marina

14 property, has that been altered in any way from when

15 the Marina purchased the property?

16 A Yes.

17 Q How?

l8 A When we were looking at the shoreline, you see some

I 9 old armor stone or revetement stone. That revetement

20 wasaddedontoandcontinued. Therestoftheroad

21 basehasbeenputin. Behindit,Idon'tknowifthe

22 boardwalk on the armor stone goes down that far, but

23 it ends before it. And then the embankment that

24 you're seeing has been excavated, and on that portion

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I a segmented - on that portion some sheet pile, and

2 then a segmented block wall.

3 Q So, the areashown onthe left-hand sideof that

4 photograph, was that a sloped banked area at one

5 point in time?

6 A lfthat's whatyou call it.

7 Q It rose up from the -

8 A It rose up from the lower elevation of the Marina.

9 Q Do you recall it being in that condition as depicted

l0 in this picture?

ll A Yes.

12 Q Now, exhibit 34-21, where would that be on the Marina

13 property?

14 A This is atthe end ofthe original poured concrete

15 wall. Building 6 is behind it as you approach

16 building 5, building 4 and building 3 headed south.

17 Q Was that retaining wall altered in any way at some

l8 point in time?

19 A That retaining wail wasn't.

20 Q So, the heightofthatretaining wall is as it

21 originally was?

22 A T\atwas - I believe that was the very first one put

23 in.24 Q Directing your attention to exhibit 34-23, would that

114

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I The sump barge, which is what brought us here in'99,

2 isnowgone,cutup. There'saboardwalkonthe

3 reveternent stone running north. There are retaining

4 walls all along the embankment. A11 the overgrown

5 brush is cleaned up, and it's used for parking and

6 boat storagg parking in the summer and boat storage

7 in the winter.

8 Q What is your best recollection as to when a retaining

9 wall was built in the area shown in this photograph?

10 A The retaining wall directly below the swimming pooi,1l I think was '07 or '08. But years before that, the

12 retaining wall was built to the left of - almost

13 down to building 7.

I 4 Q Is building 7 the building on the right-hand side in

15 that photo$aph?

16 A It's both buildings, they're connected.

17 Q Okay.

18 A So,ifsan L-shapedbuilding. So,totheleftof

19 building 7, was a sheet pile wall that was done in

20 theearly2000s. Ontherightofthewhitefence

2l with the swimming pool is, then becomes the concrete

22 poured wall.

23Q

What's behind that white picketfence shown in this24 photo?

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LANDING v BORDEN LIGHT #254067 VoI.II 11/10/10

I be looking in a southerly direction -

2 A Yes.

3 Q - on the Marina property?

4 A Yes.

5 Q Has that area been altered from when this photo was

6 taken in 2001, to what you see out there today?

7 A Yes.

8 Q Would you describe for the court how it's been

9 altered?l0 A To the left of the haybales, the embankment has

l1 been -weputupawallofbothsheetpilesand

12 segmented b'lock. Along the shore line, the

13 revetement has continued all the way south, picking

14 up some ofthe larger stones that you see by

15 themselves on the beach. And coming up to the stone

16 pierthafsstickingoutfromtheshoreline. There's

l7 boardwalk along portions of the revet€ment. There's

l8 a road paved; it's lit up and it's boardwalk for

19 walking. It's parking in the summer and boat storage

20 in the wintertime.

21 Q Now, is thenextphotograph a continuation ofthe

22 work that you - on number 24, is that a continuation

23 of what's shown in 23?

24 A It'sjust -yeah. It'sjustmoreofacloseup.

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I Q I'm asking you to identi! the buildings, starting

2 with the pool, not with the extreme left of the

3 photograph.

4 A So, with the swimming pool to the right is building 7

5 which has the poured concrete wall that got put in in

6 '87 that you saw in the earlier photos. The next

7 building - then you next have building 6, where you

8 have a sheet pile wall, which is the area that you

9 saw in the two earlier exhibits. Then it runs alongl0 andyou'vegot -youseetheone-halfofbuilding5.

I I Q Directing your attention to the next exhibit,

12 number 26, which is also an aedal photograph.

13 A Correct.

14 Q Does that show the entire common propefiy line

15 between Borden Light Marina and The [anding at South

16 Park?

17 A Yes.

18 Q Justdirectyowattention, ifyou would, to the

19 middle of the photo$aph on the lower half. There

20 appears to be aparking lot there.

2l A Yes, in the Marina.

22 Q l,eft of the sheet metal building?

23 A Yes.

24 Q Have you been here all week, and have you heard the

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I testimony of the other witnesses?

2 A Yes.

3 Q There was some discussion about permitting and

4 building ofa high-rise building?

5 A Correct.

6 Q Can you point out to the court where on exhibit

7 number 34-26 that high-rise would have gone, had it

8 been built?

9 A It was going to go in the gravel parking'lot that was

l0 west ofthe driveway, and where you see the steel

l1 shed.

12 Q Would it include - would the shed have to be

13 demolished?

14 A Yes, taken down.

15 Q Would the high-rise have included - it's footprint,

16 would it have included that area to the left ofthe

17 shed?

l8 A It was thatparking area to the left of the shed.

19 Q Who owns that parcel?

20 A That is owned by Admiralty, lnc.

21 Q tooking a134-26 -

22 TIIE COURT: Counsel, when you're finished

23 with 26, I think we're going to take a break. Okay?24 MR.BRENNAN: Okay. Thankyou,Judge.

-t28-

I Q Directing your attention to 34-25, which is an aerial

2 photograph -

3 A Yes.

4 Q - are you familiar with that photo?

5 A Yes.

6 Q Directingyourattention to thisphotograph, ifyou

7 go from left to the right, following along the Marina

8 property line, at some point in time, do you see

9 where the retaining wall ends and the land area

l0 strrts?ll A Yes.

12 Q Has the Marina grown in that direction, the southerly

13 direction?

14 A Yes.

15 Q What buildings - keeping in mind the pool is in

l6 frontofwhichbuilding?

17 A Thepoolisin frontofbuilding7.

18 Q So, would itbe fair to saythen, we're looking at

19 building 6, 5 and 4 in thatphotograph -

20 A Building -

2l Q -goinglefttoright?

22 A Yes. Building 6 is the building that was - the wall

23 that's in front of that, the concrete wall, the was24 the original wall poured way in the beginning.

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LANDING v BORDEN LIGHT.#254067 Vor,.III. ltllOll0Looking at34-26 in the upper left-hand comer, you

can see where the retaining walls stop and the

vegetation starts?

Correct.

Has that, as it now in 2010, as a result ofwork in

'08 and '09, do the retaining walls now run to the

very upper left-hand comer of this photo?

They run all the way along -- the vegetation by the

pool area is now gone; it's grass. Where thesheathing wall ends, right around where the paved

driveway ends, and you can see shrubbery and the

white fence line, now the wall goes all the way

through that shrubbery, down to where those boats are

stored and around the comer.

In the upper left-hand corner, you can see the stone

pier that we've referred to before?

Correct.

Does that have a sailboat on it?

It has a sailboat on it.

And there's another pier to the - irrnnediately above

that. Does that belong to the King Phillip Boat

Club?

That belongs to the King Phillip Boat Club.

And the access point at the southern end ofthe_t29_

I Marina property, does it go between the King Phillip

2 Fishing Club and building 3?

3 A Yes.

4 Q And so, the roadway that's shown in this photograph,

5 nowextends to the extreme southem end ofthe

6 property and out to Club Street; is that correct?

7 A Yes,butnotpaved.

8 MR. BRENNAN: Your Honor, the break norV?

9 THECOURT: Yes. We'lltakeabreakandbe

l0 back here at about two o'clock.1l (Lunch Break)

12 MR. BRENNAN: Your Honor. we had discussed

13 possibly taking an expert out oforder.

14 THECOURT: Yes.

15 MRBRENNAN: Andmyexpert,acoastal

l6 geologistjust arrived a halfhour early, which is

17 good. Would itbe appropriate - would itbe okay

l8 with everyone if we take him nov/?

19 THE COURT: Well, I'd like not to intenupt

20 thecurrentwitness. Ifyoucoulddoitafterthat,

21 that would be fine, yes. So, we will go until terr

22 after three, I'm thinking, take a very quick break,

23 like, five minutes or something, and then start right24 up again and go until ten after four. Okay?

-130-

Resumed Direct Examination of MICHAEL LUND

@y Mr. Brennan:)

Mr. Lund, prior to taking a lunch recess, we were

looking at exhibit34-27 . Do you recall that?

Corrert.

And I asked you if you could idattify what's shown in

that picture. And I believe I asked you if that

shows the southerly half of the common prcperty line

between the Marina and The landing; is that correct?Yes.

Has the -

MR. BRENNAN: Actually Judge, I think I

finished with 34. That's the one you wanted me to

finish with. Okay.

THE COURT: Twenty-seven, yes.

l€t's go to 34-28, please. Directing your attention

to exhibit 34-28, do you recognize what's shown in

that photograph?

Yes.

In which direction, if you were standing where the

camera is, would that be looking south?

That is correct, looking south.

And there are certain walls, retaining walls shown on

the left-hand side of the photograph?

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I A Correct.

2 Q And then south ofthe lastblockwall you see an

3 embankment with vegetation?

4 A Conect.

5 Q Hasthatbeen altered sincethisphotographvias

6 taken?

7 A Yes.

8 Q In what manner?

9 A We took away the remainder of the bank and stabilized

l0 it with a segmo,ted concrete block wall that ran fromI I the point that you see, basically down to where the

12 boats are stored.

13 Q Thisphotograph was taken in 2008; correct?

14 A I think so. I think it's late 2008, well, late in

15 the season.

16 Q Okay. Based on thispicturethen, the areathatyou

l7 described where the segmented block wall is built, it18 would have been built in 2008?

19 A Itwouldeitherbe2007or2008. Idon't -

20 Q Directingyourattention to exhibit34-31, doyou

21 recognize what's shown in that photograph?

22 A Yes.

23 Q There are some buildings in the backgound of the24 photo$aph. Do you - can you orientate the court as

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LAI\DING v BORDEN LIGHT #254067 VoL.I1 to where that picture was taken?

2 A lt's essentially right in this area here

3 (indicating).

4 Q Which buildings are in the vicinity?

5 A Building 4 and 5 in here (indicating).

6 Q In the picture, that's buildings 4 and 5?

7 A lbelieveso.

8 Q And is that what's shown in this picture, a bank

9that's between those

buildinss and the Marinal0 property?

11 A Correct.

12 Q I-ooking at the embankment that's shown in that

l3 photograph, is that representative ofthe bank that

14 existed before you put the retaining walls in?

15 A Thafs representativeofthenarrowest sectionof

16 kind oflike the hourglass that I talked about

17 earlier, yes.

18 Q Howdoes it differ from some of the other sections?

19 A This portion was eroding awaybadly, real bad.

20 Q Is there now a retaining wall there?

2l A Yes.

22 Q Looking at exhibit 34-32, can you describe for the

23 court what is shown in that photograph?

24 A That is down at the southerly end where the entrance

- IJJ -

I to the marina on the southerly end was carved out.

2 Q Prior to undertaking that work, was there a driveway

3 or roadway or access point there?

4 A Yes.

5 Q What did you do to that driveway?

6 A We widened it, cleaned it up, moved dirt to get down

7 to the lower grade.

8 Q If you know, Mr. hnd, do you have an access easement

9 on the south end to access yourproperty?

10 A Two access easements.l1 Q Can you tell me what your understanding of those two

12 easements are?

I 3 A They are easements over The landing at South Park's

14 propertyto gain access into the Marinaproperty.

1 5 Q Looking at exhibit 34-32, would the King Phillip Boat

16 Club be to the right?

17 A Exactly. It's totheright-handsideofthe

18 arborvitae trees.

19 Q Areyoulooking at -is thatapictureof

20 building 3?

21 A No. That is - it's either building I or building 2

22 setbackaway. Building 1.

23

QThankyou. Directing yourattention to

24 exhibit 34-41, do you see that piece ofconstruction

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lul0lr0I equipment in that photograph?

2 A Yes.

3 Q Do you know what work was being done in that

4 photograph, and whan?

5 A That is somewhere in the oeriod of late '86/'87. in

6 that time ffame-

7 Q Where that piece of construction equipment is, is

8 that now where The landing buildings are?

9A No.10 Q Is that where Marina roadway is?

11 A Yeah. The lower grade is where the Marina roadway

12 and parking lot are.

13 Q Mr. Lund, as president of Borden Light Marina, could

14 you take a moment and describe for the court what the

l5 opefirtions, or what the operation of the Marina

16 consists of?

l7 A I guess I'll startwith nowbecause of the time of

l8 year, but now we haul vessels out, power wash therrr,

19 winterize them, store them for the winter. And

20 subsequently when that's done, we work on the

2l facility, winterize the docks, the clubhouses, the

22 little restaurant/bar that we have.

23 In the fall, we sign up our seasonal

24 customers for the following surnmer. Then usually

-lJ)-

I towards the end of January, we begin doing whatever

2 repairs are necessary to get the Marina rcady. That

3 takes us until the and ofFebruary, and then

4 beginning in March, we begin working on the boats,

5 prepping them, getting ready to put them back in the

6 water.

7 We usually start launching the boats in

8 April and May, and try for the most part to have them

9 - all ofthem in by June, depending on the weather.

10 Once -- summer season starts in May, the boats are inl l the slips, and then during the summer we nrn a number

12 ofactivities for the slip customers, fishing

13 toumaments, swimming lessons, and the like, and

14 cruises, and so forth.

15 Q Now, Mr. Lund, could you explain for the court how it16 is that you get a vessel out ofthe water and ready

17 for storage?

18 A Originally we hauled them on a boat ramp with a

19 hydraulic trailer that could haul vessels up to about

20 forty-five feet. We'd haul them up the ramp and we'd

2l place them in the parking lot throughout the properfy

22 on boat stands. And then in late 2000, we - as the

23boats grew and shapes changed, we installed a marine

24 travel lift, which is a straddle hoist crane. The

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LANDING v BORDEN LIGHT.#254067 VOL.II 11/10/10

I vessels drive in between two piers. We haul them out

2 with a lift. We then take the lift; we ddve through

3 the yard, rotate, and then set the boat down, and

4 then drive back with the lift over to the travel lift5 to haul the next one out.

6 Q Will you explain to me a little bit about the travel

7 lift? Howdo you operate it?

8 A lt's essentially operated by one man with a spotter.

9 It's got it's own gas engine. It's got hydraulics.10 It drives out onto the end ofthe piers; it lowers

11 thestraps. Theboatdrivesin,ithaulsthevessel

12 out; it drives back in. It usualiy gets power washed

13 inasecurearea. Andthenfromthereitdrivesand

14 unloads the boat, orrmloads theboatin aparticular

15 area, or unloads the boat onto another piece of

16 equipment that then moves it throughout the yard.

17 Q Is it a self-propelled piece ofequipment?

18 A No. You have to drive it. It's on four wheels, and

19 it rotates on it's own axis.

20 Q Self-propelled wasapoorchoiceofwords. Butyou

21 actually drive this lift; is that correct?

22 A Yes, you drive it. It has it's own engine, it's own

23 transmission. You get behind it and start it like

24 you would a car or a huck, and then you drive it.

- t)l -

I C dock, extended D dock, and then it progressively

2 grew, hauling those boats every winter and storing

3 them, as well.

4 Q How many slips do you now have?

5 A Now, I think, approximately 260/270 slips.

6 Q And are you continuing to groW?

7 A Under our license we're allowed to go up to -- our

8 latest license, I think, it's 305 or 310 or so.

9 Q Now, asto the storageofvessels during the winter,10 how has that progressed over the years?

11 A lt's increased as the marina's increased, and we have

12 stored the boats at the northerly end by the

13 clubhouse and as we've expanded through ourproperty

14 the southerly end, we've continued to add those boats

15 for storage.

16 Q Now Mr. [.und, is it fair to say that you've created

17 storage space over the years?

I 8 A Yes, as we've developed more of the property headed

19 south we've been able to accommodate more of the

20 vessels that store with us in the summer.

2 1 Q And has the methodology of creating the storage space

22 for the vessels changed at any time since the

23 beginning of the marina?

24 A No, it essentially - no.

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1 Q And by the methodology, I mean of creating space for

2 the storage ofboats?

3 A Yeah, we've excavated the filI that was put there.

4 We've added to the revetment and we've continued to

5 construct retaining walls.

6 Q Has that been the manner in which you've created

7 storage space since 1988?

8 A Yes.

9 Q And that continued through 2009?

l0 A Conect.11 Q Now Mr. [-r:nd, there was some direct testimony by one

12 ofthe board ofmanagers abouta meeting that you had

13 with one or two or three of them on the Tipsy

14 Seagull; is that conect?

15 A Conect.

16 Q Doyourecallthatmeeting?

l7 A Yes.

18 Q What is it that they asked you to do?

19 A At the time, a couple of board members lived at the

20 most southerly end ofthe property, and there was a

2l largo boat down there owned by somebody else that

22 lived at The l-anding. And they wanted me, because it

2l was so large, they asked if I could move it to24 another area before fourth ofJuly weekend when the

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' "::.:-.:n,-: .-:{i,-Bi .,.:- r

I Q Is it fair to say you could park it anywhere you

2 choose on any given night on the Marina property?

3 A lt's very - you could park it anywhere you wanted.

4 We predominantly try and park it right next to the

5 ramp - to the piers because you always get an

6 emergency in the middle of the night.

7 Q You mean, to remove a boat?

8 A Yeah, to remove a boat if it's sinking or in

9 distress, or something.

10 Q Now, you testified thatyou were -had been around11 the Marina since you were thirteen years old. So, do

12 you have a recollection ofthe Marina operations over

l3 the last twenty-two years?

14 A Yes.

15 Q Can you tell me - describe the Marina when it first

16 started?

17 A When it first started we had main docks A, B and D

18 dock,halfofDdock. Wehadaboutseventyorso

19 slips outofthe 410, and then subsequentlytheyhac

20 summer slips. We just had one club house, a little

21 grass area. That winter we hauled the boats, began

22 servicing them. There were probably twenty-f1ve or

23 so boats stored on land. The following year we added24 C dock. The following year we added fingers on

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LANDING Y BORDEN LIGHT #254067 VoL.II 11/10/101 fireworks were to take place.

2 Q When did that meeting - do you recall when that

3 meeting tookplace?

4 A Itwas before the fourth ofJulv. and Idon't knowif5 it was '08 or'09.

6 Q Do you recall the testimony being it was a Memorial

7 Dayweekend?

8 A I would think it would be around there, but I mean,

9Memorial Day weekend I'm pretty hartl pressed, running

10 around.

I 1 Q Did you, in fact, grant their request and move that

12 boat for them?

13 A Yes.

14 Q Otherthan thatone request, whether itbe in the

15 summer of '08 or the spring of '08 or the spring of16 '09, whatever time it was, other than that request to

17 move that boat, prior to June of2010, had you been

I 8 asked to move any boats from storage on The t-anding?

19 A No.

20 Q Never?

2l A Never.

22 Q Notone.

23 A They -no.24 Q There was some testimony that one of the board of

-141 -

I conditions had expired. We had to renew them, to

2 keep growing. We've had, I think, two other

3 amendments to our chaptff 9l license to put in the

4 travel lift, to put in the boardwalk. And in the

5 last one that we had in '02, we actually cut down on

6 the slips from 400 down to 300.

7 Q To your knowledge, Mr. Lund, has The l:nding at South

8 Park been active in any of the process of you

9obtaining your various permits?

l0 A Originallythey -itwasjust -itwasdonein

11 concertwiththedeveloper. Idon'tknowifthe

12 association had takar place yet. Their most active

13 participation to this date was back in the late'90s

14 when they appealed the local order ofconditions to

I 5 continue construction. We got a superseding order of

16 conditions. Theyhadappealedthat. Theyappealed

l7 to the state, as well. Then subsequentlythose

18 appeals were dropped, orders were issued, licenses

19 were issued, and I believe as an association, up

20 until the most recent conservation filing and

2l chapter 9l filing, there hasn't been any contesting

22 ofthose licenses or permits.

23 Q Without getting into the substance of the permit,

24 what is the most recent chapt€r 91 license that's

-I+J-

I issued to the Marina?

2 A The most recent one was a draft license that was

3 issued from the department lor us to expand the

4 boardwalk and do a number ofother thines on the

5 property.

6 Q And we all agree, that's not a final license at this

7 point.

8 A No. It is simply a draft, and they have asked for

9 input on rnatters such as public access and others.

l0 Q When you did the alterations to the access road atI 1 the southern end ofthe property, did you petition

12 the local conservation commission?

13 A h 2008, wewere issued an order ofconditions to

14 complete the roadway, in fact, pave it and install

l5 drainage all the way out the southerly entrance, but

16 that wasn't contested.

17 Q Was that 2008 or 2009?

18 A I might have - I think it started in '08, and I

19 think it was issued in early'09. I think we also

20 filed at that time a stormwater runoffplan with that

2l order.

22 MR. BRENNAN: Thank you. I have no further

23questions, Your Honor.

24 THECOURT: Cross exam?

-144-

I managers -thattheboardofmanagers'impression

2 was that the Marina does whatever they want in

3 disregardofanyoneelse'srights. Doyourecall

4 that testimony?

5 A Yes.

6 Q Now, would you - in order to rebut that, Mr. Lund,

7 wou'ld you tell me, without the substance of them,

8 what permitting process have you had to go tlrough in

9 order to develop the Marina?

l0 A Fromdayone?l1 Q Yes.

12 A You firsthave to go to local -you haveto go to

13 localzoningtohavethezoningchanged. Youhaveto

14 go to conservation to get an order ofconditions.

15 You have to go to the state wetlands division for a

16 supercedingorderofconditions. Ihadto gototbe

17 state waterways division. I had to do a MEPA

18 environmental impact study, the 400 slips, the

19 high- rise, 140 condos. Then you had to go and

20 submit, back in'87, to the Army Corp of Engineers.

2l Subsequently, like anything, as the project

22 evolves, you leam more about what you're doing, and

23 some of your needs change. We've applied for

24 amendmentsovertheyearc. Someoftheordersof

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Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING v BORDEN LIGHT.#254067 Vor,.I 11/10/10

1 MR.SEIGENBERG: Thankyou,YourHonor

2 CROSS EXAMINATION

3 (By Mr. Seigenberg:)

4 Q Mr. Lund, talking about - you mentioned just

5 recently about some DEP appeals; right, sir?

6 A Correct.

7 Q Isn't it a fact that there is currently an appeal -

8 there's currently a matter at DEP, that The landing

t has made an appeal?

10 A There's two.

11 Q There'snvo. Okay. So,thosearecertainly

12 contested.

13 A Yeah. I mentioned those.

14 Q I'm sorry. Those were contest€d in 2009120102

15 A Idon'tknow. Theymightbe'09. Themosttwo

16 recent filings, they've contested both.

17 Q Theywerecontested?

l8 A In'09 - I think it's'10, yeah, 2010.

19 Q Sir,thephotographsthatyourve -thatare

20 exhibit 34 that you've reviewed during your direct

21 examination, the dates on those photo$aphs, you're

22 the individual who inserted those dates: correct?

23 A Conect.

24 Q And youinserted thosedates in 2010; correct?

-145-

I buildings 3 to 5, that all occurred in 2009; correct,

2 sir?

3 A Correct.

4 Q And this letter has nothing to do with the work that

5 was done in 2009: correct?

6 A Correct.

7 Q During your direct examination you talked about part

8 of the operation of the Marina is to store boats over

9 the winter: correct?10 A Correct.

11 Q And once again,justso I'mclear, thewinter

12 storage, that operation, starts in what, October? Is

13 thatapproximatelycorrect?

14 A Some of the boats start early October if they're

15 owned by snowbirds, yes.

I 6 Q And the storage of the boats requires the boats to be

17 taken out ofthe water: correct?

18 A Correct.

19 Q Cleaned off; correct?

20 A Correct.

2l Q And eventually placed somewhere within the Marina

22 property; correct?

23 A They're -

24 Q For storage.

-147 -

I A Yeah. Theyte basically placed everywhere, with the

2 exception ofprobably the driveway.

3 Q And that storage, everywhere but where?

4 A He tries just about everywhere but where the driveway

5 is.

6 Q So, you put the boats wherever you have available

7 room?

8 A Well, you leave the driveway open and then you put

9 them on either side ofthe driveway.

l0 Q The areas whereyou store theboats includes the

I I boardwalk area that you constructed; correct?

12 A Conect.

I 3 Q Now, this operation goes from early October, that is

14 the storage operation that is hauling the boats out,

15 placing for winter storage, until what date,

16 December?

17 A The activity of hauling them?

18 Q Right.

19 A td say October to December.

20 Q So, approximately a three month period of time;

2l correct?

22 A Correct.

23 Q During thatperiod oftime,you indicated thatyou24 purchased a new piece ofequipment to assist in this

-148-

I A Correct.

2 Q hr 1986,howoldwereyou?

3 A I guess thirteen/fourteen years old,

4 Q Now sir, exhibit 38 was the letter from The landing.

5 That's that 2008 letter. You rnav want to look at it6 to verify that ietter.

7 A Yeah.

8 Q There'sbeen a greatdeal oftestimonyduring this

t hial relative to exhibit 38: colrect, sir?

10 A Correct.

1 1 Q This letter that thanks you, that was thanking Borden

12 Light Marina for the extra blocks that were placed

t3 near the swimming inol; isn't that correct?

14 A I think it was - there were two sections built in

15'08. Onewasinthatarea.and theotherwas around

16 the comer at the southerly entrance.

17 Q Well, let's break it down then. You would agree with

18 me that when The Landing was thanking you, the thank

l9 you certainly included the extra block that was

20 placed near the swimming pool?

21 A Yeah. Ithinkitactuallyincludedboth,butthe

22 emphasis was by the swimming pool.

23 Q Right. And the major construction, that is the24 excavation and the erection ofthe wall near

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LANDING v BORDEN LIGHT #254067 Vor,.III tU10n0I operation -

2 A Conect.

3 Q - correct? And what did you call that, a -

4 A Travel lift.

5 Q - travel lift. And this travel lift, as you

6 indicated, you keep it - you like to keep it when

7 it's not in operation near the piers; correct?

8 A When wete not running it, we put it out by the pier

9 that we constructed in early 2000.10 Q And this travel liftisbeing utilized byBordan

11 Light Marina ftom October through December to assist

12 with the winter storage?

13 A It'sused throughouttheyear.

14 Q Throughouttheyear. Okay. Now, inthespring,

15 obviously what happens is, ifBorden Light starts the

16 operation in reverse to basically take the boats that

17 were stored and put them back into the water;

18 correct?

19 A Correct.

20 Q That operation starts when, April, sir?

21 A td - it starts the beginning of March.

22 Q Beginning of March, and that will extend until June,

23 is that correct?

24 A The contractperiod tobeon land ends May lst. A

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I you not, sir?

2 A Yes.

3 MR. SEIGENBERG: And specifically, Your

4 Honor, ifs exhibit4"

5 Q And sir, your understanding of the visual easement is

6 thatthevisualeasementwassothatpeopleonlots I

7 and 2, The landing property, would have a view of

8 Mount Hope Bay, and views of water would not be

9 blocked. Isn'tthatyourbelief,sir?10 A Mybelief is thatno structures -

11 Q Is thata corect statement ofyourbelief, yes or

12 no?

13 A Wellthen,no.

14 Q Well, let me break it down. Would you agree that the

l5 visual easement, so that structures would not be

16 erected in front oflots I and 2 that would block the

l7 views?

18 A Yes.

19 Q And also, sir, so that The knding, people at The

20 landing would have a view of the Marina, but they

2I wouldn't have a building built up in front ofthem

22 that blocked their view; right?

23 A Theywouldn'thaveastructure -

24 Q Astructure -

-t5l-

I A - in front ofthem that blocked their -

2 Q - that blocked their view.

3 Now, there's no question, sir, that that

4 lift that you utilize, that would block a view, would

5 it not, of Mount Hope Bay?

6 A Yeah. I would say - I would disagree.

7 Q You would not a$ee with that?

8A No.

9 Q Okay. And the boats that are stored that exceed

l0 twenty feet, wouldn't they block the views of The

l l [anding, sir?

l2 A Boals aren't structures.

13 Q That's not my question.

14 My question is, wouldn't the boats block

l5 the view of Mount Hope Bay for people at The landing?

16 A I think the boats are part of the view of Mount Hope

17 Bay.

18 Q I1l try one more time.

19 MR. SEIGENBERG: Your Honor, can I have a

20 direct answer to the question? I think it was a

21 fairly direct question.

22 THE COURT: Please answer "yes" or "no" to

23 "yes" or "no" questions.24 A No, I don't think they block the view of Mount Hope

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I lot ofit depends on the ppring weather.

2 Q So, sometimes it goes beyond May 1?

3 A Sometimes it goes beyond.

4 Q So, once again we have approximately a three month

5 operation oftaking the boats from storage and

6 placing them into the water; correct?

7 A Correct, putting them in.

8 Q During thishalfyear,thatliftisutilized;

9 correct?

10 A Yes.1l Q Howhighisthatlift?

12 A I mean, I don't lmow exactly. I'd guess probably

l3 twenty feet high, twenty-two feet high.

14 Q The Marina's property is basically a level ten MSL;

15 correct?

16 A Correct.

17 Q Ten feet MSL. So, to the extent that that travel

I 8 lift is utilized and kept on your premises, you would

19 agreethatitwouldextandbycertainly -atleast

20 ten feet above the nineteen feet visual easement,

2l MSL: correct. sir?

22 A I'd say it extends above the nineteen feet; correct.

23Q

Okay. Now, the visual easement thatwe've been24 referring to, you're familiar with the document, are

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LANDING V BORDEN LIGHT #254067 VoI.II LUt0n0I Bay.

2 Q Okay. And you would agree it's your understanding of3 the visual easement that it applies to all oflot 3,

4 exceptwhere the highrise was contemplated, and the

5 maintenance shed near Almond Sheet is located:

6 correct?

7 A Itappliedto -

8 Q Sir, answer that question, please.

9 A Well, then, I guess define it a little bit more,10 maybe, on the plan.

I I Q I1l be happy to do that.

12 MR. SEIGENBERG: If I may, Your Honor?

13 THECOURT: Yes.

14 Q First of all, where the high-rise was to be located

15 is somewhere over here, sir?

16 A Correct. Right up againstthatcomerofthe

17 retaining wall.

18 Q Right off of Almond Street; conect?

19 A Justtotherightofbuilding 11.

20 Q And the maintenance shed, that's located somewhere

21 over here, too, sir?

22 A, A little further down; correct.

23 Q Overhere?

24 A No, further north.

-153-

I boundary line between the Marina and The Landing, rs

2 all within the twenty foot easement?

3 A All of that wall and - all of the wall.

4 Q All of the walls, right- Now sir, in this case,

5 you're aware that the court issued a preliminary

6 injunction; correct?

7 A Yes, Im aware of that.

8 Q Sir, can you tum to exhibit 15? Doyou havethatin

9 frontofyou?l0 A Yes.

11 Q That's the preliminary injunction that was issued by

12 this court on May 23rd,2000; correct?

13 A Yes.

14 Q At that time, Borden Light Marina, they were

15 represa,ted by Attorney Edward Brennan; were they

16 not?

17 A Yes.

18 Q And in fact, AttomeyBrennan has represenled Borden

19 Light Marina in this'litigation

since 1999; isn't

20 that correct?

21 A Conect.

22 Q So, Borden Light Marina at all times has had the

23 benefit of having cousel directly involved with this

24 case; correct, sir?

-155-

I A Correct.

2 Q And Attomey Brennan, is he someone that you see on a

3 regularbasis - strike that.

4 Is Attomey Brennan someone that you have

5 seen on a regular basis since approximately 2000 to

6 2010?

7A No.

8 Q Is it fair to say that you see Attomey Brennan about

9 once a year, twice a year?

10 A No.I I Q He's certainly available to talk to, is he not?

12 A Yes.

13 Q Attomey Brennan, has he handled other matters for

14 Borden Light Marina, other than this litigation?

15 A I don't think so.

16 Q Okay. Now, sir, Borden Light Marina has never

l7 requested this court to modi$ that preliminary

18 injunction;correct?

19 A No.

20 Q This preliminary injunction that issued, you were

2l involved in the proceedings whan that occurred;

22 correct?

23 A Correct.24 Q Conect me if I'm wrong, but my understanding is that

-156-

1 Q Further north towards Almond Street once again?

2 A Yeah, but -- very close to me, in that direction;

3 correct, yes.

4 Q So, other than those two, the area where the highrise

5 was to be located and the maintenance building, it6 was your understanding ofthe visual easement that

7 they would have an unobstructed view, they'd have of8 unobstructed Mount Hope Bay all along the westerly

9 side up to here (indicating). Wouldn't you agree,

10 sir?

ll A Yes.

12 Q Now, you're also aware, are you not, of the twenty

13 footslopedeasement?

14 A Yeah.

15 Q Would you agree with me, sir, that all of the walls

16 that has been constructed near the boundary line

17 between the Marina and The landing, was within that

18 twenty foot easement?

19 A I'm sorry. I wasn't palng - I was - what was that

20 again?

2l Q Yes. No problem. Relative to the graded sloped

22 easement, would you a$ee with me that all of the

23 wall that has been constructed by Borden Light24 Marina, along or in the vicinity of that common

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LANDING v BORDEN LIGHT #254067 VOr,.II 1 1/10/10

1 first ofall, this tand Court action was brought in

2 1999; correct?

3 A Correct.

4 Q While this tand Court action was panding in 2000,

5 Borden Light Marina excavated a portion ofthe bank

6 and erected a concrete block wall: correct?

7 A ht 2000?

8 Q Right.

9 A I don't - that's not my memory -l0 Q Iappreciatethat.

ll A -myrecollection.

12 Q lsn'tthatthough -yourunderstanding,didn'tThe

13 l,anding come into the court in 2000 with memorandums

14 of law, affidavits, and complain to the court that

15 Borden Light Marina, without permits, and within the

16 twenty foot erosion control easement, had excavated

17 the easement and erected a concrete block wall? Do

18 you remember that now, sir?

19 A What concrete block wall?

20 Q My understanding, sir, according to the papers in

2l this case, it was near building 5 and the swimming

22 pool. Do you remember that now, sir?

23 A No,no.

24 MR. SEIGENBERG: Your Honor, I ask the

-157 -

tti,

I MR SEIGENBERG: I'd be happy to explain.

2 THECOURT: Butwouldyoujust -

3 MR SEIGENBERG: Yes, I'd be happy to, Your

4 Honor. Firstofall -

5 MR. BRENNAN: We have stioulated the

6 injunction.

7 THE COURT: Exactly. The injunction

8 issued, and it was issued after there was a complainl

9 that the wall had been constructed within thel0 easement. Is that what you're t yng to get at?

11 MR. SEICENBERG: No.

12 THECOURT: No.

13 MR. SEIGENBERG: It's not. What happened

14 in 2000 is eerily similar to what has happened here

l5 in 2009 thatbrought the civil contempt complaint.

16 Samescenario. Theaffidavitandthedocumentsthat

17 were submitted to the court, which the court can take

18 judicialnoticeof,youjusthaveto -

19 THE COURT: Just let me read the file, yes.

20 MR. SEIGENBERG: Of course you do. Right.

2l But I think I'm -

22 THECOURT: And Iwill.

23 MR. SEIGENBERG: And I think I'mrequired

24 to bring that to the court's attention, and that's

-159-

I all I was doing here.

2 THECOURT: Okay.

3 MR. SEIGBNBERG: And it's the same

4 scenario. Ifs - they made the same arguments that

5 they're making today, that they did the same thing.

6 Theyjust went in and excavated the bank, didn't do

7 it with permits, based on that the court issued a

8 preliminary injunction. They made the same arguments

9 they're making here today.

t0 THE COURT: Okav. Well. I think we can1l movebeyond that.

12 MR. SEIGENBERG: I was also -

13 THE COURT: I'll read the file and you

14 know, the preliminary injunction issued. Obviously

l5 the matter was not adjudicated at that point.

16 MR. SEIGENBERG: Fullv adiudicated. It was

17 not fully adjudicated.

l8 THECOURT: Itwasnotfullyadjudicated.

l9 It was just that the court determined that there was

20 more likelihood than not, that there would be a

21 prevailing on the merits, but - and with the

22 balancing, so -

23 MR SEIGENBERG: The other-

24 THE COURT: - it didn't establish

160 -

1 court to takejudicial notice ofthe pleadings that

2 havebeen filed in this case, particularly

3 affidavits, the motion and the memorandum of 1aw that

4 were the basis for this court to issue the

5 preliminary injunction back in 2000.

6 MR BRENNAN: Your Honor, the preliminary

7 injunction issued speaks for itself. Then we have a

8 complaint and we have the answer. The other

9 pleadings, I think, this trial substitutes for what

10 the other pleadings might state in the form ofI I affidavits, et cetera. Weke here now to decide the

12 issue. So, suffice it to say, the preliminary

13 injunction issued. We have a complaint and the

14 answer, and the injunction. I would venture that

I 5 that would be the only pleadings that would be

16 appropriate to eonsider once the trial is commenced

l7 on the ultimate decision by the court. I don't see

l8 how an aflidavit from 1999, when the person's not

19 here, subject to cross examination, is suffrcient for

20 trialpurposes. Itmaybeforaninterlocutory

2l matter, such as a preliminary injunction, but

22 certainly not in the ultimate finding of facts.

23THE COURT: I'm not sure where you're going

24 here.

158

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:.llLANDING v BORDEN LIGHT #254067 VOL.III 11/10/10

I anl.thing. All right.

2 MR. SEIGENBERG: Agreed.

3 THECOURT: Okay.

4 MR. SEIGENBERG: Except for the fact, the

5 other reason I was byng to utilize that is because

6 obviously I'm trying to refresh the witness'

7 recollection ofwhat the events were, because it's

8 clearly my mderstanding that the wall was - there

9was a wall constructed

in2000, and thought that

10 might refresh the witness'recollection ofwhat

I 1 occurred.

12 MR. BRENNAN: I think the appropriate way

13 to do thatwould be to showhimapleadingifyou

14 want to refresh his recollection. Sulfice it to say,

15 YourHonor -

16 MR. SEIGENBERG: I'd be happy to do that ifl7 you really want me to.

l8 MR.BRENNAN: Iwouldjustliketopoint

19 out a laches defense and a decade has passed.

20 THECOURT: Mm-hmm.

2l MR. SEIGENBERG: And I'd be happy to use

22 their mechanism, except it's time consuming for the

23 witness to go through it, so lll move on with it.

24 THECOURT: Okay.

-161-

1 A I think it was a little bit less than that, but I

2 mean, it's within that area, but -

3 Q So,approximately600 feetofwall; correct?

4 A lt's in the area. We connected those two points.

5 Whatever that distance is.

6 Q Sir, would you agree with me that the walls that have

7 been constructed from the northerly end down to the

8 southerly end, right -

9 A Mm-hmm.10 Q - that's approximately I 800 feet of wall?

ll A Giveortake,yes.

12 Q And so the construction activitythatoccurred in

l3 2009, that was one third ofthat wall length;

14 correct, sir?

15 A No, because it's whatever the measurement is from

16 the -justpastthecomerofbuilding5tojust

l7 past the comer of building 3. I don't know what

18 that number is. You want to measure it? I'll asree

19 to it.

20 Q Okay. Very good. I'll move on.

21 Now, you didn't obtain any building permits

22 in advance ofthat work: correct. sir?

23 A No.

24 Q And you knew you needed building permits; correct?

-163-

lANo.2 Q You know now you needed building permits; correct?

3 A Correct.

4 Q As a matter of fact, all the work that was done from

5 2000 to the present, on the excavation ofthe bank

6 and the construction ofthose walls, all that worft

7 was done without building permits in advance;

8 correct, sir?

9 A Building permits in advance? I believe so.

10 Q And you're now aware, are you not, sir, that you were1 1 required to obtain building permits to construct

12 those walls?

13 A Yes.

14 Q Now, your father's an attomey; correct?

15 A Mm-hmm.

16 Q Your father's a graduate of Boston Univosity law

17 School: correct?

18 A Correct.

19 Q And he was president of Borden Light Marina until

20 what,2007; is that correct?

2l A Correct.

22 Q And in 2007, you tookover as president; correct?

23A

Conect.

24 Q But your father still stayed involved Borden -

-164-

1 Q Now, you would agree with me to the extent that the

2 Marina consfucted a wall in 2000. there was no

3 permission granted by The tanding to construct that

4 wall; correct?

5 A I don't recall - are you talking about before the

6 preliminary injunction, after the preliminary

7 injunction?

8 Q lm talking, the wall that was constructed in between

9 theissuance -thefilingofthiscomplaintin 1999,

l0 and the wall that was constructed in 2000: that'sl1 correct. Was there any permission granted by any

12 member of the board of The knding for the Marina to

13 go ahead and construct that wall?

14 A I don't recall what block wall you're talking about,

15 because the block wall in front ofthe pool got built

16 a few years ago.

17 Q Nowsir,in 2008 and 2009 -strikethat.

18 In 2009 is when the major construction

19 occurred along the building 3 and 5; correct?

20 A It's when we connected the segmented wall from the

21 comer, just past the comer of building 3 to the

22 segmented wall up by building 5.

23

QThat was about 620 feet, approximately, of wall that

24 was constructed, sir?

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LAI\DING v BORDEN LIGHT #254067 VoL. tut0t10I strike that.

2 Your father has still remained very much

3 involved with Borden Light Marina; correct, sir?

4 A He's my dad.

5 Q So, I guess that's a "yes" to the question, right?

6 Yes?

7 A Yes.

8 Q Now, the excavation and the erection of the wall that

9occurred

in 2009 on that southerly border, those10 walls that were constructed, and the excavation that

I I occurred, they were the closest ofany ofthe walls

12 that had been constructed; correct? That's closest

i3 to the buildings.

14 A Correct.

15 Q And they're also theclosestwalls to theproperty

16 lines; correct, sir?

17 A Ithink -no.

18 Q What's closer - what wal1 is closer to the property

19 line, other than the walls -

20A The-

2l Q -southerlyon3to5?

22 A The wall that was erect€d in 1988, the sheet pile

23 wall in front of building 10, and the wall that was

24 erected by Keith Development in the'90s that runs

-165-

I answer.

2 'lHE COURT: Mm-hmrn.

3 MR. SEIGENBERG: To the question?

4 'lHE COURT: Well. vou asked if the

5 closest -

6 MR. SEIGENBERG: Right. I think he's

7 building the whole wall again. If you want to hear

8 it. All right, but I'm not so sure it was

9 responsive.l0 A The third closestarea is theportionthatwas

I I constructed in '08 or'09.

12 Q Nowsir, you indicated during yourdirectexamination

13 that the Marina has dramatically expanded ifs

14 operations over the years; correct?

15 A It's built out to what it was originally permitted.

16 It took twenty years to do.

17 MR.SEIGENBERG: YourHonor,couldlhavea

l8 direct answer to the question, please?

19 THECOURT: Yes.

20 A Yes.

2l THE COURT: Try very hard to -

22 THE WITNESS: I'm sorry.

23 THE COURT: - just answer

24 THEWITNESS: I'msorry.

_167 _

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MR. BRENNAN: And at that poinl dramatic

leaves a little bit for the witness to deal with. My

brother will ask you a question without embellishing

the words, and I think it would be easier for the

witness. Dramatic's a little hard to handle.

THECOURT: Okay.

MR. SEIGENBERG: I thousht it was

appropriate, but I'll rephrase.

TFIE COURT: Okay.

First of all, sir, did you have a problem - nevermind.

You would agree that the operation ofthe

Marina has expanded significantly since it's

beginnings in the late I 980s?

It's expanded as it was originally permitted.

MR. SEIGENBERG: Your Honor. if I mav have

an answer to the question.

It's expanded, yes. It's built out. It's built out.

MR. SEIGENBERG: He needs to throw in the

little extra and - I know. but it's - it rnakes it

diffrcult to cross examine when the witness just -

THECOURT: Tryand ask uyes" and "no"

questions.MR. SEIGENBBRG: I did.

168 -

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perpendicular to Almond Street.

The northerly end which was done by the developer of

The tanding, Keith Development; correct?

One portion ofit was, one portion was built by us.

I appreciate that. So, you added on to that wall,

did you not -

No.

- to raise the height?

No. You got it wrong.

You did the initial wall; correct?Yes.

On the development ofthe two parcels; correct?

If you let me finish, the sheet pile wall, which is

after the low wall that we constructed, was built.

That's right - that's the closest one to the wall,

and that was constructed in'88 and'89. The second

closest wall along the entire property line was

constructed by Keith Development, and that ran

perpendicular to Almond Street. And that was

constructed in '90 or '91. Then the next closest

after that -

Sir -

- are the walls -

MR. BRENNAN: May the witness finish his

r66 -

NOTES:



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT.#254067 VoI.II rutut0I THE COURT: And I'm sure vour attomev has

2 explained to you -

3 THE WITNESS: Im sorry, Your Honor.

4 THE COURT: - only answer the question

5 thatwasasked. Ifyourattorneywantstoaskyou

6 anything more, he will when this is over.

7 THE WITNESS: Okay.

8 THECOURT: Okay.

9 MR. SEIGENBERG: Thank vou. Thank vou for10 that, Your Honor.

I I Q The expansion Marina was - the Marina's obviously a

12 money making operation; correct? The Borden Light

13 Marina?

14 A Yes.

15 Q And by expanding the operation, the Marina makes more

16 money locafing boats at the Marina, and also storing

17 the boats; correct?

18 A Correct.

19 Q And in fact, sir, in 2009, didn't you prepare a flyer

20 advertizing, "boat storage available Novenrber 1?"

21 A Yes.

22 Q How many people did you send that out to?

23 A We send that out to registered boat owners.

24 Q How many people was that sir, approximately?

-169-

I A We do it within a radius of Fall River. I'11 say

2 2500/3,000. Idon'tknowtheexactfigure.

3 Q ht Novernber l, 2009, for the storage, that was the -

4 so, you obviously were in a hurry, as Borden Light

5 Marina was in a hurry in 2009 to complete that

6 excavation and construction ofthe wall near

7 buildings 3 and 5 so that you could have room for

8 that boat storage that you advertized; correct, sir?

9 A Not correct.

10 Q So, you're salng that Borden Light Marina was not inl1 a hurry; is that correct?

12 A No, we weren't in a hurry. We've been sending those

13 flyers every year since 1990.

14

I 5 Q So, you had plenty of time to do your construction in

16 2009? Isthatyourtestimonythen,sir?

17 A Yes.

18 Q When did you finishthe constructionin 2009?

19 A Ithinkwe finished itaround Septemberof2009.

20 Q Are you sure ofthat date, sir?

21 A No, I'mnot.

22 Q Itcould havebeen October of 2009; right, sir?

23 A Well, it's right within that time fiame. My memory24 is that we finished before the boat show or right

-170-

around the boat show.

And in fact, Borden Light Marina had two contractors

working on that wall in 2009; correct, sir?

Correct.

And as one started from the farthest southerly end,

the other one started towards the - near building 5,

and they sort of met in the middle during the

construction: correct, sir?

Correct.And those contractors were Furtado and - is itJerevek (phonetic)?

It's Green - I think it's Green Earth, is the actual

name of the company.

Who's the individual who's involved with Green Earth?

Alan Jerevek.

Jerevek, okay. That operation, in expanding the boat

storage area near buildings 3 and 5, how many boats

wete stored there in 2009 and in 2010?

In the area along the wall?

I meant in the area in fiont ofbuildings 3 and 5.

Do you know which photo is the overhead showing it,

because I'll count them.

You don't need to; lm just trying to get your best

memory as a witness, sir.

l7l -

I A I wouldn't want to misspeak.

2 Along the wall, I would guess somewhere

3 around thirty, but -

4 Q Along the wall?

5 A Yeah. And then on this old stone pier, probably five

6 orsix. Itvariesyear-to-year,dependinguponthe

7 slze of the width of the vessel. so I would have to.

8 you know, lefs say thirty boats, plus another five

9 or six.

10 Q The Marinacharges forboatstoragebythe linear

I I feet ofthe boat; is that correct?

12 A Correct.

I 3 Q What's the current rate for storage per linear feet?

14 A Thirty-two dollars a foot.

15 Q And then,sir, approximatelyhowmuch does The

16 landing -strikethat.

17 How much does the Marina make for the boat

18 storage that is nowbeing done between buildings 3

19 and 5?

20 MR. BRENNAN: Objection, Your Honor.

2l That's confidential business information. I don't

22 know why this would matter to -

23 THE COURT: I'm not sure why it's relevant.24 MR. SEIGENBERG: Two reasons, Your Honor,

172 -

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Phone: (978) 777-SgA2 FAX: (978) 777-5803



LANDING v BORDEN LIGHT #254967 VoL.IIII two major reasons. One is that this is a contempt

2 proceeding, and -

3 THE COURT: Well, we've already found

4 contempt. We found that at the hearing, so thafs

5 done.

6 MR. SEIGENBERG: Butthere's a penalty

7 portion ofthe contempt.

8 THECOURT: Mm-hmm.

9 MR. SEIGENBERG: And certainly the court10 would want to know if somebody does something in

1 1 violation ofthe court order. I would like to think

12 that the court would want to know how much money

13 they've realized by the violation ofthat court

14 order, and that's what ifs aimed at. Also, I want

15 to show the court the financial motivation that these

16 people had to do the type ofthings they've done.

1'l THE COURT: Well, I think that's pretty

l8 evident.

19 MR. SEIGENBERG: I agree. But the -

20 MR.BRENNAN: They'reabusiness;theymake

21 money.

22 THECOURT: They'reabusiness. Youknow,

23 I mean. that doesn't have to be demonstrated.

24 MR. BRENNAN: I don't think their income on

lt)-

I boats storage may be public information, Your Honor.

2 I objected at the deposition to confidential business

3 information. If someone wants to cotmt the boats and

4 do the math, Im sure they can. But to inquire and

5 to disclose, that is not right.

6 THE COURT: I think your getting to the

7 number of boats, how much per liner foot, we've got

8 photographs. I think there's a way to at least

9 estimate that amount. You're trying to get at the

l0 difference between before the wall was built and

I I after the wall was built. I think we can do that by

12 the number ofboats or the size ofthe boats that

13 were stored there and go with that.

14 MR. SEIGENBERG: Okay.

15 MR. BRENNAN: I don't think itpertains to

16 the remedy on contempt.

17 THE COURT: Well -18 MR. SEIGENBERG: Potentially it does, Your

19 Honor. It'suptoyou,whatyoudecidetodo.

20 Q So, those thity to thirty-hve boats that are stored

2l in the vicinity ofbuildings 3 and 5, how many linear

22 feet ofboat are stored there?

23 A Again, it varies year to year.24 Q trt's talk about this year.

71i

lu10n0I A I don't know this year.

2 Q Do you know the avemge size of the boat that's

3 stored there?

4 A I'm going to estirnat€ about thirty feet

5 MR. SEIGENBERG: I have nothing further,

6 Your Honor. Thank you.

7 THE COURT: We were going to take a short

8 break. Do you want to take it before or after you

9 finish with this witness?l0 MR. BRENNAN: I only need five minutes with

ll him, so I can get him -

12 THECOURT: Okay.

13 MR. BRENNAN: - offthe stand quickly.

t4

15 THECOURT: Okay,fine.

16 REDIRECTEXAMINATION


18 Q Mr. llnd, you were asked about the storage ofboats,

19 howmanyadditional -howmanyboatsyoustored

20 betweenbuildings3and5. Howmanyboatsdoyouget

2l to store between 3 and 5 in the easement ar€a, in

22 addition to what you can do otherwise? It's in the

23 easement area; correct?


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I lt's not relevant. The easement area has nothing to

2 dowithit. They'veexpandedtheiroperation

3 illegally, and they oth€rwise wouldn't have boat

4 storage there. So, the easement area, and as we've

5 talked about, the visual easemenl applies to all of

6 lot 3, and notjust to the easement area itself.

7 THE COURT: I'm telling you, I don't know

8 where you people are going with this. I've got a

9 book full ofphotographs showing me where the boats

l0 are, how big they are, where they're stored inI 1 relation to 3 and 5, where they're stored in relation

12 totheeasementarea. Idon'tknowhowmany

13 questions we have to keep going with this.

14 MR. BRENNAN: Well, my only point was that

l5 additional boats as a result ofthe excavation in the

16 easement area is, I think, a limiting factor -

17 THECOURT: Okay.

18 MR.BRENNAN: -versuswhattheycouldput

l9 down there outside the easement.

20 THECOURT: Okay.

2l MR.BRENNAN: So,myonlypointwastoask

22 Michael, in between 3 and 5, how many additional boat

23 go in the easement area? That was my only point.24 THE COURT: We'll allow that.

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Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 VoL. tt/10/10I A I mean, I - to answer that, I'll have to look at the

2 photos from '06. We probably in '06 - it's a matter

3 ofefficiency. kr'06,alotoftheboatswere

4 blocked in, and they were to the right. After the

5 construction ofthe wall, they were single stacked so

6 you had easier access. I mean, I don't think the

7 numbers grew substantially since then.

8 Q Thank you. That will suflice, Mr. Lund. Only one

9 other question.10 You were asked about having two contractors

l1 working at the same time in '09. Would you tell the

12 court how that came about?

I 3 A It came about because the individual who we tried to

14 hire, and has been working - it was actually the guy

15 whotoredowntheshacks,keptputtingusoff. He

16 saidhe'dbethere;hekeptputtingusoff. And the

17 otherconfactorhadajobcancel. Hereferredusto

18 him to come and do the work. Halfway, or not

19 halfway, but somewhere in the process, the original

20 guy we wanted said that he could come back and heln

21 He was freed up, so we said, "terrific," well get

22 the work done quick, twice as fast, and you know,

23 make the neighborhood happy, get the equipment out of24 there.

-177 -

I like to break up a trial like this, but as you know,

2 the court is moving in early December, and they're

3 starting to dismantle things in Novanber. So, I

4 don't even think I'll have a courtroom available

5 until after we move.

6 MR. BRENNAN: Im confident when we do

7 reconvene it will be one day.

8 THE COURT: Okay. I,et me see what I've gol

t here. Exactlyoneday. Icould giveyouthe2lstof10 December.

11 MR. SEIGENBERG: I can do it-

12 THE COURT: Otherwise, it's going to have

l3 to be the middle ofJanuary.

14 MR. BRENNAN: On the 2lst of Januarv. I

15 havea -

16 MR. SEIGENBERG: December?

17 MR.BRENNAN: -ofDecernber. Ihavea

18 reoccurringboardofdirectorsmeetingatalocal -

19 it'sasmall bankand -

20 THECOURT: -yes. Okay.

2l MR. BRENNAN: - I'd hate to cancel.

22 THE COURT: Okay. Well, then I really - I

23 don't have a courtroom available is the problem,

24 lrfssee. Firstweekin January,the6thofJanuary

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I or the week of the l6th of January.

2 MR. SEIGENBERG: I can do the 6th. Your

3 Honor.

4 THE COURT: The 6th. We may be in fairly

5 cramped quarters. but -

6 MR. SEIGENBERG: Well, we've gottor closer,

7 Your Honor. so...

8 MR. BRENNAN: Judge, Im sorry. I just

9 asked my expert; he's going to be out ofthe

l0 country -11 THECOURT: Oh,okay.

12 MR. BRENNAN: - the first week in January.

13 THECOURT: Allright.

14 MR. BRENNAN: I don't know whv I didn't ask

15 himfirstbeforewe -

16 THECOURT: Thenwe'vegottogooverto

17 the week of the l6th. The 19th. the 20th? What

18 would you -

19 MR. BRENNAN: I seem to be the holdup,

20 Judge, so fll take anything that's good for the

21 others.

22 THECOURT: Okay.

23 MR. SEIGENBERG: Either of those davs are24 okay with me.

-180-

I Q That's just the way it worked out then?

2 A That's just the way it worked out.

3 MR. BRENNAN: No further questions, Your

4 Honor.

5 MR. SEIGENBERG: No questions, Your Honor.

6 THE COURT: All right. If we're done with

7 this witness, why don't we take just a short break,

8 and we'll be back by ten after three, and we will go

9 fromthere.

10 (Witness stepped down.)I I (Brief break taken.)

12 THE COURT: All right. Wete going to try

1 3 and go for another hour or so, and then we're going

14 to have to stop for the day. We had talked about

15 whetherornotwecould continueonFriday,but -

16 let's see, you've got one client in addition to

17 this - in addition to the your engineer, right?

18 MR. BRENNAN: I have Mr. Rosen now, and I

I t have a structural engineer. The other client may not

20 be necessary.

21 THECOURT: Yes. Iamconcernedbecausel

22 don'thaveallofFridayto giveyou. I'vegotsome

23 things scheduled that moming, so I think we're going24 to have to, unfortunately, because I really do not

-178-

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Phone: (978) 777-5802 FAX: (978) 777-5803



LAI\DING v BORDEN LIGHT.#254067 Vor,. tllt0noI THE COURT: All right.

2 MR. SEIGENBERG: You know Blackberries are

3 $eat when you know how to use them.

4 MR. BRENNAN: Youte brave to trv that in a

5 courtroom.

6 MR. SEIGENBERG: I was good until we -

7 THE COURT: I was going to suggest, if we

8 schedule it for the 19th, we can kind of make the

920th a snow day.

1 Q And your address?

2 A 30 Mann Street, Hingham, Massachusetts.

3 Q Are you employed?

4 A Yes, Iam.

5 Q Inwhatcapacity?

6 A I'm an associate professor of geology at Northeastem

7 University, and lm an environmental consultant at

8 GEO Plan Associates.

9 Q What's the name of the business again?l0 A GEO Plan.

11 Q And where is GEO Plan located?

12 A GEO Plan Associates is at 30 Mann Street.

13 Q Starting with where you graduated fiom high school,

14 would you walk through your education, please?

15 A I graduated from Glenn Cove High School in 1966.

16 Q Where is that?

17 A That is Glenn Cove, New York on l-ong Island.

l8 THE COURT: lmg Island, very closd to

19 where I used to live.

MR. SEIGENBERG: I was bom in Glenn Cove.

MR. BRENNAN: Oh, you don't know each

22 other.

23 MR. SEIGENBERG: Despite my Boston accent,

24 YourHonor.

-183-

I MR. BRENNAN: I think there's a conflict.

2 YourHonor.

3 Q Okay. So, we're on Inng Island. And after high

4 school?

5 A I went to the state University of New York at

6 Potsdam, Potsdam State College, majored in geology

7 and graduated in 1970.

8 Q Thatwas froman undergraduate?

9 A With a bachelor's degree in ge{logy, undergraduate.

l0 I then went to the University ofl l Massachusetts in Amherst, got a master's in geology

12 withaspecializationincoastalgeologyin 1972.

13 And in 1976, I went to the College of William and

14 Mary, a school of marine science. Got a PhD in

15 marine science in 1976, with a concenhation in

16 geological oceanography. I then went to the

17 Geological Survey ofCanada and served a two-year

18 post doctoral fellowship with the Geological Survey

19 ofcanada, and subsequently came to Boston.

20 Q What year was it that you ended up in Boston?

2l A lg79,Ibelieve.

22 Q For how long have you been an associate professor at

23 Northeastem?24 A Ibelievethirty-twoyears.

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10 MR. SEIGENBERG: I'm there. Your Honor. the

l1 19th is great

t2 THE COURT: All right. And we will sort of13 reservethe20thjustincase, Okay.

t4 MR. SEIGENBERG: Should we take a qack at

15 scheduling a view tentatively, as well?

16 THE COURT: I don't know when I'm going to

17 need to view at this point. Right now, I'll decide

18 at the end.

lo MR. SEIGENBERG: Your Honor. could vou

20 resewe at the er,d ofthe day here, at least five

2l minutes, so we can address - I'd like to address at

22 least one issue with you.

23 THECOURT: Ifwecanwrapupthis24 testimony. But if we're - unless we're in a good

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I break point, or a little earlier, as I told you, we

2 have to get out ofhere by 4:15, so...

3 MR. SEIGENBERG: Right. And thaCs whyl4 brought it to the court's attention. Whatever we can

5 do, thank you.

6 THECOURT: Okay. Andyouknowthatthat

7 will be in the Pemberton Square courthouse, the

8 highrise.

9 MR. BRENNAN: Unfortunately.

10 THE COURT: No comment.l l MR. SEIGENBERG: lrss so for you, Your

12 Honor. It's a great spot, obviously.

l3 THECOURT: Okay. Movingalong.

14 MR. BRENNAN: Your Honor, my next witness

l5 will be Peter Rosen.

16 * * * * * * * * * * * * *

17 PETERROSEN

l8 * * * * * * * * * * * * *

19 (Wiaress swom.)

20 DIRECT EXAMINATION

2l @y Mr. Brennan:)

22 Q Mr. Rosen, would you please state your name for the

23 court, please?

24 A My name is Doctor Peter S. Rosen.

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20

2l

NOTES:



Phone: (978) 771-5802 FAX: (978) 771-5803



LANDING V BORDEN LIGHT #254067 VoI.III 1ut0t101 Q Now, do you -

2 A No, no, no, a professor - assistant, and then

3 associate professor.

4 Q So, you've been affiliated with Northeastern for

5 thirty-two years?

6 A Correct.

7 Q Do you hold anyprofessional licenses?

8 A Yes,ldo.

9 Q In what states?l0 A I'ma certified professional geologistfromthe

I I American Ijnstitute of Professional Geologists, which

12 is a national certification, and I'm a certified or

13 professional geologist in North Carolina, South

14 Carolina, Virginia and Flodda.

15 Q Now, could you explain forthe courtwhata coastal

16 geologist is?

17 A Yes. Acoastal geologistdealswith thephysical

18 processesthattakeplaceonshorelines. Welookat

l9 the interface ofwater and land, and look at the

20 evolution of the shorelines. So, we're dealing with

2l waves, we're dealing with currents and we're dealing

22 with earth materials, sediments that form the up'land

23 adjacentto the shoreline.

24 Q Could you describe for the court some examples of the

-185-

I 310.0, Ibelieve.

2 Q Haveyou evertestified as an expedwitness in a

3 matter, a case such as this before?

4 A I've testified in Massachusetts I-and Court one other

5 time, yes.

6 Q Any other tribunals, any other courts?

7 A I testified in several courts in Massachusetts,

8 Plymouth, Boston; in Rlode Island and in Maine. I've

9 testified in U.S. Federal Court in New York.10 MR. BRENNAN: Dan, do you have any

1 I objection to this curriculum vitae?

12 MR. SEIGENBERG: No.

13 MR. BRENNAN: Your Honor, there's no

14 objection. I'd like to have his curriculum vitae

15 marked as the next exhibit.

16 THECOURT: Okay. We'reuptoexhibit44.

17 (Exhibit Number 44, marked in

18 evidencel CurriculumVitae of

19 Peter S. Rosen)

20 MR. BRENNAN: Your Honor, at this time,

2l based on the qualifications ofthis \Mitness, I would

22 ask that he be qualihed as an expert to render an

23 opinion on coastal geological matters.

24 THE COURT: Any objection?

-187 -

I MR. SEIGENBERG: No. there's not. Your

2 Honor.

3 THECOURT: Okay.

4 MR. BRENNAN: Thank you, Your Honor.

5 THE WITNESS: Thank you.

6 Q Doctor Rosen, have you had an opportunity to visit

7 the site in Fall River that is the subiect matter of

8 this litigation?

9 A Yes,Ihave.

l0 Q And bythat,doyouunderstand thattobetheI I property owned by Borden Light Marina, and sharing a

12 common boundary line with The landing at South Park

13 Condominium?

14 A Yes.

15 Q Onhowmanyoccasions haveyou visited the site?

16 A Ivisited thesitethreetimes.

I 7 Q In addition to visiting the site, have you taken any

l8 other steps to familiarize yourself with the Borden

19 Light Marina property and The Landing at South Park

20 property?

2l A Yes.Ihave.

22 Q Could you explain for the court what else you've

23 consulted or looked at?24 A I reviewed chapter 91 license documents, construction

-188-

1 type ofprojects you've worked on that involved

2 coastal geology, just by example of what a work day

3 might be, or a project might be for a coastal

4 geologist?

5 A Projects that I'm involved in now, including the

6 shoreline processes in Boston Harbor shorelines,

7 we're looking at the processes oferosion and retreat

8 ofthe glacial islands, which are retreated coastal

9 banks. Thefateofthatsedimentbuildingupis

l0 beachesandotherareas. I'mdealingwithsandduneI I proc€sses in several areas, trying to deal with the

12 transport and deposition ofsand forming coastal sand

13 dunes.

14 And then from the consulting standpoint, I

15 deal with coastal structures and a definition ofl6 wetlands boundaries, banks, dunes, barrier beaches,

17 beaches and other coastal wetland areas.

18 Q Are you familiar with the code of Massachusetts

19 Regulations thatpertain to chapter 91 waterway

20 licenses?

2l A Yes, Iam.

22 Q What other regulations are you familiar with in the

23 CMR that would be pertinent to a coastal geologist?24 A Primary regulations are the wetlands regulations,

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LANDING V BORDEN LIGHT #2s4067 VoI.II 11il0/101 plans, historic plans, a range ofhistoric

2 photographs, both photographs from the land and

3 aerial photographs going back to 1996. I've looked

4 at the nature of Mount Hope Bay in larger scale maps,

5 looked at the water body that's adjacent to it.

6 Q Haveyoureviewed anyphotographs?

7 A Ithink I'vereviewed anumberofphotographs,

8 several dozen photographs, yes.

9 Q Anyhistorical

data about the site?10 A The photographs go back into historical time. Many

l1 ofthemwereolderphotographs,yes. Andtheaerial

12 photographs also went back to 1995.

13 Q Whatabout -do youhaveanyinformationon the

14 historical usage ofthat particular site prior to the

15 Marina and the condominiums?

I 6 A I understand that this was a railroad yard, and that

l7 subsequent to it's use as arailroad yard, a fill was

18 added.

19 Q Now, Dr. Rosan, giving the proximity of the Marina

20 property and the land configuration of the Marina

2l property and The I-anding at South Park condominium

22 parcel, are there any geological features there that

23 you would classify as a - say, a coastal bank?

24 A Yes, there are two coastal banks on the property.

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I The other is a vertical buffer to floodins and flood

2 damage.

3 Q Based on your obsewation of the Borden Light Manna,

4 you've stated that there are two coastal banks. And

5 I would direct your attention to the most inland one

6 ofthetwo. Ofthetwodefinitionsyoujustgave,

7 which coastal bank would that one fall into?

8 A Of the two frmctions I mentioned -

9 Q Functions.10 A - the landward coastal bank is a vertical buffer to

1 I flooding. It is not a sediment source, and I believe

12 DEP has recognized this as only a vertical buffer to

13 flooding, and not a sediment source, also.

14 Q Just so we know, what does a sediment source mean?

15 A A sediment source is ifabank can erode, and the

16 eroding sediment might feed an adjacent beach, as an

l7 example. So, that has some value. So that in this

l8 case the upperbank was not determined by DEP, and by

19 my observations, to be feeding sediment to any

20 beneficial purpose.

2 1 Q So, if it's not feeding sediment to another beach for

22 any beneficial purpose, what is it's sole role as a

23 coastal -

24 A Thesolerole is avertical bufferto floodingand

-l9t-

I storm damage.

2 Q As a coastal geologist, do you have a need to, or the

3 expertise to calculate storm surges or wave height,

4 for example?

5 A Yes.Ido.

6 Q And what significance does wave height have to a

7 coastal geologist in a fact pattem, such as the

8 Borden Light coastal bank?

9 A The size of the wave determines in part how high the

I0 waterlevelcanextend. ItalsodetermineshowmuchI I energy will be expended against that wall, or against

12 that coastal bank.

13 Q Having observed Mount Hope Bay, and having some idea

14 ofit's size, et cetera, could you explain to the

15 court what size wave might be generated during a

16 particular weather evett on Mount Hope Baf And

17 maybe you should pick a weather event that is

18 significant to a coastal geologist.

19 A Mount Hope Bay is a virtually enclosed body of water.

20 There's two small openings. Tidal currents such as

2l storm swge, can readily move through them, but no

22 significant amount ofwave energy is going to pass

23 through the two narrow openings that are going !o24 impact the bay. So that the waves that are alfecting

-r92-

I Q Could you describe for the court what - could you

2 describe each coastal bank for the court?

3 A There are two coastal banks forming a stairstep-like

4 form. The lower coastal bank extends from somewhere

5 near water level up to, I believe, elevation ten

6 feet. Thenthere'sahorizontalexpanseofland,

7 which is most of the usable property of the Marina.

8 From there a second coastal bank or a landward

9 coastal bank extends up to the condominiumproperty.

l0 Q Whatmakes a parcel of land a coastal bank?11 A Coastal bank are defined in apolicyofthewetlands

12 regulations, and in the regulations themselves,

13 coastal banks are an elevated land form adjacent to

14 the water.

15 Q Need a coastalbankbe anaturallyoccurring land

l6 formation, or can it be manmade or crealed?

l7 A Theycan benatural orthey can be manmade or

18 created.

19 Q Now, can a coastal bankbe - does ithave to consist

20 ofdir! or could itbe a vertical wall?

21 A It can be a vertical wall or other materials.

22 Q Again, what purpose does a coastal bank serve?

23A

Coastal bank in general serve two purposes.One is24 a sediment source to other wetland resource areas.

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LANDING v BORDEN LIGHT #254067 VoL.I lut0ltOI the shorelines in Mount Hope Bay are waves that are

2 generatedwithinthebay. Thebay -thesizeofthe

3 waves is a function - the generalization, the

4 theoretical wave is a function ofthree factors; how

5 fast the wind blows, how long the wind blows and the

6 fetch. or the distance of water over which the wind

7 blows.

8 Q Do you have an idea of what the fetch would be across

9 Mount Hope Bay?I 0 A The fetch is very limited in most directions, except

I I the southwesterly direction. From the southwest,

12 it's approximately a five mile fetch.

13 Q If I were to askyou ifyou could calculate a wave

14 height, wouldn't we have to discuss what that weather

15 event would be? There's such temrs as a ten-year

16 storrn, a twenty-year, a five-year storm and a

11 hundred-year storm.

18 A Right.

19 Q So, if I were to ask you to determine the worst case

20 scenario ofwave height on the Borden Marina

2l property, which storm event would you use?

22 A lts general practice to use the 100-year storm.

23 Q It sounds self-evident, but what does 100-year storm

24 mean?

I six-and-a-halffeet above the flood elevation,

2 because part ofthe wave is below water level and

3 part of the wave is above water level.

4 Q Have you had an opportunity to review any data that

5 gives you the flood elevations ofthe prop€rty at the

6 Borden Light Marina and The Ianding condominium?

7 A My understanding is that the FEMA elevation, which is

8 the 100-yearstormelevation,or 100-yearflood

9 elevation. is elevation 22.l0 Q And in theprocess of you forming an opinion on any

I 1 matters pertaining to this coastal bank, is that a

12 significant elevation to you? Does that factor into

13 your opinion?

14 A Very much so, yes.

15 Q Having visited this Borden Light Marina property on

16 three occasions, could you describe for the court

17 your observations ofwhat you observed there, as far

18 as a retaining wall goes, and did you walk the

19 property up and down, upper and lower levels?

20 A I walked the property upper and lower levels all

2l three times I was on the site, yes.

22 Q Could you - starting from the north, and if this is

23 ofanyassistance -

24 MR. BRENNAN: May I approach, Your Honor?

-195-

I THECOURT: Yes,youmay.

2 Q Ifthis is ofanyassistance, this is aplan of -

3 that shows the condominiums, and it shows the way the

4 Marina -- it's called the elevation plan, and it's

5 beenidentifiedasnumber2l. Isthattherightone,

6 exhibit 21?

7 A Exhibit 21.

8 Q I've got 21. So, this may help orientate you with

9 your testimony with the south end being Club Street,

l0 and with the north end being up at the end of Almond

1 I Street. Could you describe for the court what you

12 observed whan you walked the property, starting at

l3 the northerly end where the Marina office is,

14 proceedingsoutherly. Couldyoujustnarratively

15 tell the court what you observed?

16 A Iobserved averticalwall throughoutthe entire

17 lengthoftheproperty. Thewallwasasolid

18 concretewaltatthenorthend. Therewasasection

19 ofsheet pile wall, and then there was a concrete

20 block wall, which formed the southern end of the

2l property. That forms the upper coastal bank.

22 Q Did you then walk across the top of the wall on The

23 I-anding property?24 A Yes, Idid.

196 -

193 -

I A The 100-year storm is the storm - it isn't

2 self-evident, in that the 100-year storm is a

3 storm -

4 Q Now you know why lm on this side of the podium.

5 A - that has a one percent probability of occurring in

6 any givor year, so that in 100 years there should be

7 l00percentprobabilityofthatstormoccurring. It

8 doesn'toccurevery 100 years.

9 Q Thank you. Applying the 100-year storm criteria to

10 Mount Hope Bay, and assuming the longest fetch that

I I mightoccur, what type ofwave height might the

12 Marina be confronted with in a 100-year storm?

13 A In this setting, I was able to determine the maximum

14 theoretical wave height without other variables

15 entering into it because this is a fetch limited

16 setting. So that in five-and-a-half - five miles I

17 was able to look at the largest wave that that fetch

18 cansupport. Andldeterminedthatthat'sabouta

19 six-and-a-halffootwave.

20 Q Whathappens to flood elevations during a 100-year

2l storm? In other words. where would that six foot

22 wavebe?

23 A That six foot wave is going to be superimposed24 upon - on top ofthe flood elevation. It's not

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LANDING v BORDEN LIGHT #254067 VoL.II rur0tr0I

2

3

4

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Q Could you describe what you observed there for the

court?

A Off the top of the wall at the upper bank, there was

a grassy slope, relatively low slope that extended up

to the condominium buildings. It was not a uniform

slope, but generally a low slope extanding up to the

condominium buildings. Within that slope there was a

drainage system. I observed several storm drains

along the way. The slope was grassy and fairlyuniform.

Q Vr'hen waves encounter a coastal bank, could you

explain to the court what action occurs, and how does

the wave dissipate'it's energy?

A When a wave approaches a bank, at some point - well,

a vertical bank or a sloping bank?

Q Well, let's talk about a sloping bank first.

A A sloping bank. When a wave approaches a sloping

bank, at some point the wave is going to become

unstable and break. When the wave becomes unstable

and breaks, the water in the wave first crashes down.

That energy is expended physically against the bank

itself, qeating a lot of turbulence, and if there's

loose sediment, potentially erosion. Following the

breaking, the momentum in the water keeps moving

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I Q Ifawaveshould overtop acoastalbank, eithera

2 vertical or a sloped coastal bank, what h+ppens. when

3 the wave actually goes over the top ofthe bank?

4 A If the wave goes over the top of the bank, like

5 runup, as long as there is horizontal momentum, as

6 long as the water has energy to move, it'll continue

7 flowing up until it runs out of anergy, and then

8 gravity will take the water and it will flow back

9 downward again.l0 Q Does one ofthetwo walls, either avertical or

I I coastal bank, or the sloped coastal bank, does one

12 have less likelihood oferosion than the other?

13 A Thevertical coastalbank, ifit's comprised of14 concrete,hasaverylowlikelihoodoferosion. It

15 also creates a point above the bank that the slope is

16 relatively gentle, so that ifwater overtops a

17 con$ete vertical wall, it's going to go up a gartle

18 slope, and therefore the backwash is going to go down

19 a more gentle slope, have a lower velocity and less

20 potential for erosion.

2l Q You'veusedtheterm"sloped"here. Toacoastal

22 geologist, what does "sloped" mean?

23 A Slope is a surface where one end is higher than the

24 other erid, so that slope is an).thing but a horizontal

_199_

1 surface.

2 Q So, there is no - you don't have to be to a

3 particular degree ofslope before it's a slope?

4 A No,bydefinition,no.

5 Q Are you familiar with the word "graded?"

6 A Yes.

7 Q What would that word mean to you as a coastal

8 geologist?

9 A Grading a surface is to level offirregularities.

l0 kveling offirregularities can be of a slope or it1 I can be ofa vertical surface, as long as you take out

12 the irregularities in the surface.

13 Q Mr. Rosen - Doctor Rosen - I've got to get that

14 straight - Doctor Rosen - strike that.

15 MR. BRENNAN: Your Honor. I have one more

16 question.

l7 Q You have a binder ofexhibits in front of you?

18 A Yes.

19 Q Would you turn to page number 5, please - I mean,

20 exhibit number 5. Do you see the document entitled

2I "non-exclusive easement?"

22 A Yes,Ido.

23 Q Have you seen that document before?24 A Yes.Ihave.

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1 landward and rushes up the bank until it runs out of2 energy. Atthatpoint, thewateriscarriedby

3 gravitybackdownslope,lmownasthebackwash. That

4 has the potential, also, for eroding and transporting

5 sediment.

6Q The-

7 A Thebackwash.

8 Q - wave on a vertical slope.

9 A We were talking about a slope -

10 Q Imean,onaslope?11 A Yes.

12 Q Now, could you describe forthecourtwhathappens

13 when a wave encounters a vertical coastal bank?

14 A On a vertical coastal bank, the wave mayormaynot

15 break. Ifthewavebreaks,itbreaksagainstthe

16 vertical wall. Butbeforebreaking takes place, or

l'l uponcontact,partoftheenergyisreflected. Like

l8 light on a mirror, part ofthe energy ofthe wave is

19 movedbackintheseawarddirection. Partofthe

20 energycanbreakagainstthewall. Atthatpoint,

2l the water in the wav€ has nowhere to go o(cept up.

22 So, the remaining energy that isn't reflected and

23 isn't actually transferred down the wall, potentially24 will go straight up.

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i

LANDING v BORDEN LIGIIT #254067 VoI.III tur0n0I Q Giving due regard to the language in exhibit

2 number 5, midway through the first paragraph, do you

3 see where it says, "for construction and maintenance

4 ofdrainage systems?"

5 A Yes.

6 Q Could you just follow along with me, starting at that

7 pointwhere itsays, "forconstruction and

8 maintenance ofdrainage systems, and for construction

9 and maintenance ofa sloped graded erosion and floodl0 protection barrier." Did I read that correctly?

I I A Yes, you did.

12 Q As a coastal geologist, could you tell me what a

13 sloped graded erosion and flood protection barrier

14 means to you?

15 A A flood protection barrier is some form that retards

16 flooding,elevatedwaterlevel. Aslopedgraded

l7 erosion and flood protection barrier means it has

18 slopetoit. Itmeansoneendishigherthanthe

19 other, which can involve any level ofslope, from a

20 very slight increase in elevation to vertical. And

2l graded means that it is a smoothed off, leveled

22 surface on that slope.

23 Q In preparing for your testimony here today, do you

24 have an understanding ofthe nature ofwhat this

-201 _

I was irregularly vegetated, and it extended fiom what

2 I viewed as the present road level more or less to

3 what is presently the top ofthe slope.

4 Q Were you able to determine any, at least visually

5 from the photographs, characteristics ofthe soil

6 material that were in the photos?

7 A The characteristics of the soil material I would call

8 soil,clay,sandandasmallamountofgravel. There

9 was also some debris in the fil'l.I 0 Q Doctor Rosen, based upon your observations you made

I I during the site visit, or site visits, and the

12 materials, records, photographs that you reviewed in

13 preparation ofbeing here today, combined with your

14 own education, experiorce and training, do you have

15 an opinion to a reasonable degree ofscientific

16 certainty in the field ofcoastal geology as to

17 whether or not the current vertical wall located in

l8 the southerly 650 feet ofthe site interferes with

19 The Ianding at South Park's rights under the

20 non-exclusive easement for erosion control and flood

2l protectionpurposes?

22 MR. SBIGENBERG: Objeoion, Your Honor.

23 THECOURT: Sustained.

24 Q Doctor Rosen, do you have - based upon your

-203 _

I observations you made during the site visits, and the

2 materials, records, photographs, diagrams that you

3 reviewed, combined with your education and your work

4 experience and faining, do you have an opinion to a

5 reasonable degree ofscientific certainty in the

6 field ofcoastal geology, as to whether or not the

7 vertical wall that you observed provides erosion

8 control and flood protection for The I-anding at South

9 Parkproperty?

10 MR SEIGENBERG: Objection, Your Honor.

I I THE COURT: What's your objection?

12 MR. SEIGENBERG: I rhink it's beyond his

1 3 expertise. He assumes things that he's not competent

14 to testifu about, particularly -

15 THE COURT: No. This is his opinion as to

16 whether or not the wall provides flood protection.

17 MR. SEIGENBERG: I think - let me explain

l8 the nature of my objection. It's simply the fact

l9 that he doesn't know the quality ofthe wall, and

20 that'sthedifficulty. Andthat'soneofthekey

21 points in this case.

22 THE COURT: And that's what you'll point

23 out to me.24 MR. SEIGENBERG: Okay. Thank you, Your

-204 -

I litigation is about, what the subject matter of the

2 litigationis?

3 A Ibelieveso,yes.

4 Q Could you tell us whatyourunderstandingofthe

5 issues in litigation?

6 A My understanding is that there was a pre-existing

7 geritler slope on this easementproperty, and that the

8 vertical wall that forms the second or upper coastal

9 bankwasconstructed. Andlbelievethere'ssome

l0 quesfion whether that is consistent with what isI I specified in the easement, this vertical wall.

12 Q When youwerepreparing torenderan opinionhere

13 today, you testified thatyou viewed various

14 photographs; is thatcorrect?

15 A Correct.

16 Q And were some of the photographs of this areaprior

17 to a construction ofthe vertical wall?

18 A Yes.

19 Q Generally, could you tell the court what you observed

20 about this coastal bank prior to the construction of2l the wall, gorerally, in the photographs that you

22 observed?

23A

From thephotographs that I observed, I saw the24 coastal bank was unprotected soil or sediment. It

-202 -

NOTES



Phone: (978) 777-5802 FAX: (978) 777-5803



LANDING V BORDEN LIGHT #254067 Vor,. tutOtt0Honor.

Do you have an opinion ifthat vertical wall, and

we're talking about the last 650 feet -

Yes.

- provides erosion control and flood protection for

The landing at South Park property?

Yes. I do.

What is that opinion?

I believethat it

provideserosion and flood confrol

protection for the property that exceeds that - that

existed when it was an unstabalized soil slope.

What is -

MR. SEIGENBERG: Objection. Move to strike

the last parts, Your Honor. That's way beyond his

qualifi cations. That requires an evaluation of the

quality of that wall. The first part of the answer

is okay.

THE COURT: Okay. Yes. Move to strike.

The motion to strike the second part is allowed.

Go ahead.

Doctor Rosen, what is the basis of that opinion?

The basis is that the unprotected slope is very

susceptible to both erosion, loss of sediment, which

means the slope is going to retreat towards the

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4A5Qo

'1 A

8Q

9Al0

il12Q

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18

19

20

21 Q

22 A,

23

24

1 condominium buildings as a result ofsuccessive

2 flooding, and that the unprotected slope is - the

3 lower slope is going to have a higher runup up and

4 over the buildings. No, lm sorry, over - towards

5 the buildings.

6 Q Asking the same question, Doctor Rosen, for that

7 portion ofthe retaining wall that you observed

8 northerly ofthe 650 feet, do you have an opinion on

9 that retaining wall?

l0 A Northerly, Ibelieve, is solid concreteand sheet| 1 pile sections. I have the same opinion.

12 Q Doctor Rosan, asking you thesame question, and

13 assuming in your question that the retaining wall,

14 block segmorted retaining wall, has been constructed

15 in accordance with an engineered plan, with that

16 assumpt'ion, do you have an opinion as to whether or

17 not that vertical wall would render flood protection

18 and erosion control for The l-anding at South Park

19 property superior to that ofthe sloped embankment,

20 ifthe wall was properly constructed?

21 A Yes,Ido.

22 MR SEIGENBERG: Objection, Your Honor

23 Two problems with the question. Those are notthe24 facts in evidence. It wasn't properly - it wasn't

-206 -

I engineered, and the only evidence so far is it was

2 not properly constructed.

3 THE COURT: I haven't heard: -

4 MR. SEIGENBERG: You can't do hypotheticals

5 on facts on theevidence.

6 THE COURT: I haven't heard any real

7 foundation to this question. And maybe you can go

8 back and explore it a little differently.

9 Q DoctorRosen, in thecourse ofyourpreparation forl0 testifying today, in your site visits, is it fair to

I I say - strike that.

12 Did you have an opportunity to view and

13 examine the segmented block wall on the property?

14 A Yes. Idid.

15 Q Now, you didn't do any testing of that wall, did you

16 not?

17 A No, Ididn't.

18 Q Keeping in mind the wall that you observed, and

19 assuming for purposes ofthis question that that wal,

20 was constructed in accordance with engineered plans,

2l forpurposesofthisquestion. Doyouhavean

22 opinion as to whether or not that wall would provide

23 flood protection and erosion control for The L:nding

24 property superior to the sloped $ade that you

-207 -

I observed in the photographs?


3 Once again, there's two problems with that question.

4 One is, I was going to let go, and that was the

5 engineered plans, because that's not the evidence.

6 But then again, now he's evaluating the quality of7 the wall versus the bank he sees in a photograph.

8 That seems a little beyond his qualifications to do

9 so. I have no problems a$eeing the testimony that

10 I'm sure any surface, but certainly a wall, is goingI I to provide some erosion or flood protection control.

12 It's the comparative analysis that's a real problem

13 for us.

14 THE COURT: Isn't the comparative analysis

l5 is, if the wall were built in accordance with

16 requirements and an angineered plan that met all

l7 standards, et cetera, et cetera, in the best ofall

18 worlds if this wall was properly built, would it19 provide. Would that satisfy you?

20 MR. SEIGENBERG: But then he compares it,

2l and that's where it becomes difficult

22 THE COURT: Compares it to -

23 MR. SEIGENBERG: He cornpares it to, I24 guess, the bank that was there previously, at least

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NOTES:


Danvers. Massachusetts 0l 923

Phone: (978) 777-5802 ['AX: (978) 777-5803



LANDING V BORDEN LIGHT #254067

1 what he's seerr in photographs previously. I think

2 that's far afield. I do believe that -

3 THE COURT: I think he can answer that as a

4 hypothetical, I think.

5 MR. BRENNAN: Your Honor, if Irecall -

6 well, do answer that before I lose the opporhmity.

7 THE COURT: Do you need it read back?

8 THE WTNESS: Unfortunately, I would like

9 to hear the question again, so I can answer it.t0 Q DoctorRosen, assuming forpurposes of this next

I 1 question, that the vertical retaining wall, the

12 vertical coastal bank, ifyou may, that you observed

l3 out there on the property during your site walk,

14 assume that that wall has been constructed in

15 accordance with all code requirements and engineering

16 standards,andwithanaccepted -withinaccepted

17 engineering practices. For purposes of the question,

l8 assume that, and keeping in mind the coastal bank

19 that you saw prior to the construction ofthe

20 retaining wall, with that in mind, do you have an

21 opinion as to whether or not the vertical wall

22 provides flood proiection and erosion control

23 superior to that ofthe coastal bank that you

24 observed in the picture?

-209 -

I A Yes.

2 Q What is that opinion?

3 A I believe that it provides superior or increased

4 flood protection and erosion control cornpared to the

5 pre-existing conditions based on the photographs.

6 Q Why is that?

7 A Because waves breaking on a hard structure are not

8 going to cause erosion, and because a steep slope,

9 which is the pre-existing condition, is going to

10 promote runup of waves, which is going to lead to

l1 erosion, in addition to the wave impact. Waves

12 breaking on a vertical wall are pushing against the

13 soil, so that a - blocks approaching perhaps one ton

14 in weight, just an estimate, against a bank can

15 withstand direct - significant direct wave impact.

16 Q Thankyou.

17 Now, Doctor Rosen, you testifled during

l8 your qualifications that you are familiar with the

19 CMR Department of Environmental Protection

20 regulations pertaining to chapter 91 waterways

21 license; is that correct?

22 A Yes.

23 MR. BRENNAN: Your Honor, Im going to ask24 the witness to reference exhibit number 23. It's

-210 -

I kind of voluminous, so may I approach the witness and

2 advance that exhibit to where I would like to

3 inquire?

4 THE COURT: Sure. There's page numbers

5 here. Whydon'tyoujust -

6 MR. BRENNAN: Well, unfortunately, they're

7 differentsectionsofthecode. They'renot

8 consecutively numbered. Actually, they're stapled.

9 Q So, ifyou go to the firct portion of the regs thatt0 are stapled. There's 310 CMR 9.01 at the top in the

I I last section.

12 MR. BRENNAN: Your Honor, Im directing the

13 witness's attention to 310 CMR 9.02, which is a

14 portion ofexhibit number 23 in the agreed upon

15 exhibit list" and it's definitions under that section

16 of the CMR.

17 Q And I would ask the witness if he would tum to the

18 dehnition ofstructure, and he can find that

19 alphabetically within the definifions. Have you been

20 able to find that?

2l A Yes,Ihave.

22 MR. BRENNAN: Your Honor, have you had the

23 opportunity to catch up on that definition?

24 THECOURT: Ibelievelhave. Ijustwant

-2t1 -

1 to - Ive got 9.03. Is it the one immediately

2 before? No. I'mgoingfroml0.3coastalbanksto

3 9.03. Is itbeyond that?

4 MR.BRENNAN: YourHonor,lhaveanextra

5 copy in my binder. May I -

6 THECOURT: Okay.

7 i[4R. BRENNAN: Ifs just to keep this moving

8 along.

9 THECOURT: Thankyou.

10 MR.BRENNAN: Thankyou,YourHonor. And

I I that is part ofexhibit 23, Judge.

12 Q Doctor Rosan, directing your attention to 310 CMR

13 9.02, which is definitions under a particular

14 section. Are you familiar with that section of the

15 CMR?

16 A Generally, yes.

17 Q Now in your employment oryour work as a coastal

18 geologist, is the term "structure" used on occasion

19 or in part ofyour work, the term "shucture?"

20 A Yes, it is.

2 I Q And you understand that these regulations pertain to

22 chapter 91 ofthe Massachusetts statutes and the'23

licensing of marinas?24 A Yes.

VoL. 1lil0/10

l

NOTES:

KS COURT RBPORTING14 Palmer Avenue


Phone: (978) 777-5802 FAX: (978) 777-5803



3

LANDING v BORDEN LIGHT.#254067 VoL. 11/10/10

I Q Directing your attention to the definition of

2 structure, which is in the definitions, could you

3 take a moment and review that, please?

4 A (Witness reviewing document.)

5 Q Have you reviewed that?

6 A Yes,Ihave.

7 Q Doctor Rosen, as a coastal geologist, and being

8 familiar with licensing activities within coastal

9 zones, do you - based on that definition, do you10 have an opinion as to whether or not a boat is a

I I structure within the terms ofthose regulations?

12 A Yes,Ido.

13 Q What is that opinion?


15 THE COURT: Sustained.

I 6 Q Have you ever worked in the process of licensing any

17 marinas?

18 A Yes.lhave.

l9 Q At any time in the course of your employments or your

20 duties oflicensing marinas, did the definition of

2l structure ever arise?

22 A Yes, it has.

23 Q Could you tell thecourtinwhatcontexttheterm

24 "structure" came up in a licensing of a marina?

- zt) -

1 MR. SEIGENBERG: Yes.

2 THE COURT: Do you want to start now, or do

3 you want to break now, review the issues that you

4 wanted to consider, and continue the cross

5 examination the next time we get tog€ther?

6 MR. SEIGENBERG: It's going to be more than

7 fifteen minutes. Your Honor.

8 THE COURT: Then I think that we'll have to

9 start again in a month. What is it, two months now,10 unfortunately,but -

11 MR. SEIGENBERG: Your Honor, lm sorry, can

12 the witness leave?

13 THE COURT: Yes, the witness - you're

14 excused for now. Thank you.

15 (Witness stepped down)

16 MR. SEIGENBERG: The only issue I wanted to

17 present to the court - I knowthe court's very

l8 mindful ofthe fact that we did have a hearing on the

l9 motion for preliminary injunctions some time ago, and

20 I only bring that to the court's attention, the

2l obvious, and hope the court might rule on that having

22 how heard some evidence in this trial, Your Honor.

23 I'm not looking to have you do it from the bench,

24 YourHonor.

- 2t5

1 THE COURT: Not from the bench. I am

2 considering it. I don't know whether I'11 have a

3 response out to you. I don't know when that will be,

4 but I am considering it. It's still under

5 advisement.

6 MR. SEIGENBERG: Thank you, Your Honor.

7 THE COURT: And so is - I've decided I am

8 not going to - do you want to be heard at all with

9 respect to the motion for the directed verdict on a

l0 portion or -11 MR. BRENNAN: I can't add anything to what

12 I represented to the court previously, other than the

13 plaintiffs put in no evidence.

14 THE COURT: Does the plaintiff want to

15 respond at all?

16 MR. SEIGENBERG: Yes, Your Honor. We

t7 certainly did put in evidence, visual evidence. We

18 have the elevation plan that shows elevation ofthe

19 wall. There was testimony about the -

20 THE COURT: I think this had to do with the

2l encroachment.

22 MR. BRENNAN: No. it had to do with the two

23 buildings-

24 THE COURT: Buildings.

-2t6-

I MR. SEIGENBERG: Objection, Your Honor,

2 relevance to this proceeding. This isn't the

3 licensing of a marina. We're not -

4 THE COURT: Yes. fll hear it.

5 Q Could you explain for the court the nature or how the

6 term, "structure" came to arise in the licensing ofa

7 marina?

8 A The term "structure" has arisen in determining what

9 characteristics or features need to be licensed under

l0 chapter 91, which led to a definition, so that thingsI I like buildings, piers, banks, anything attached and

12 permanent on the ground is considered a structure.

l3 Features that are floating and not permanently

14 attached to the ground or the surface is not a

15 structure.

16 Q So, it would be fair to saythatbased on your

17 experience and your expertise that in order to

18 determine what a structure may or rnay not be within

19 the context ofa chapter 9l waterways license, you

20 would look to this definition?



23 Your Honor.24 THE COURT: Cross exam?

-214 -

NOTES:



Phone: (978)777-5802 FAX: (978) 771-5803



LANDING v BORDEN LIGHT #254067 Vor.. tln0n0I MR. BRENNAN: - thattheyoffered no

2 evidence whatsoever as to the location ofthose

3 buildings on lot 3.

4 THE COURT: That's okay.

5 MR.BRENNAN: Andit'soutonapier. It's

6 pile head supported buildings, and they offered

7 nothing. The court cannot tell where those buildings

8 are on lot 3 or ifthey're on lot 3, or ifthey're on

9 Commonwealth tidelands. no evidence. And it's too10 late for thern to address that.

11 THE COURT: Well, do you know what? I12 don't want to do this in a piecemeal way. I mean,

13 I'm going to have to look at all ofthe evidence.

14 I'm going to have to, you know, be examining this.

l5 lt's certainly something you can argue in your

16 post-trial memorandum, and certainly something - I

17 don't think it's necessary that we consider right

18 this minute. I would like to examine the evidence a

19 little more closely before I make that determination.

20 So, you know, again, you poinled it out. I am

2l mindful of it and vrill certainly consider it. Okay.

22 MR. BRENNAN: Thank you, Your Honor. We'll

23 see you in a couple of months.

24 THECOURT: Thankyou.

- zt I -

I MR. SEIGENBERG: Good luck with the move if2 I don't see you, Your Honor. That's got to be a

3 monumental achievement.

4 (Hearing suspended;

5 Day 4 of trial is Wednesday,

6 January 19, 2011 at 9:30 a.m.

7 at3 Pemberton Square

8 courthouse.)

9

t0llt2

IJ

l4

l5

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l8to

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231A

-218-

COMMONWEALTH OF MASSACHUSETTS

I, Karen V. Smith, Professional Court Reporter and

Notary Public in and for the Commonwealth of

Massachusetts, do hereby certify that the foregoing

record, Pages 1 to 218, inclusive, is a true and

accurate transcript of my system 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

in the matter in controversy.

IN WITNESS WHEREOF. I have hereunto set mv hand and

Notary Seal this 28thjfof

REN V. SMITH. Notarv Public

My Commission expires: 1 0/1 8/201 3

Documents

Trial Transcript Day 3