Volume: II Pages: 234 3 Exhibits:

!+1
-,;i.

4-i

COMMONWEALTH

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

1.

BRISTOL, SS.

2
3

4 5 6 7
8

****************** Before:
THE LANDING AT SOUTH
PARK

Cutler, J.

CONDOMINIUM ASSOCIATTON

Plaintiff
vb.

9
10
11

BORDEN LIGHT MARINA, INC.

Defendanl

*" ,q- 6
I

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

L2 13
1.4

15

16 77
18

19 20
21

Tuesday, November 9, 2010 Courtroom 5 226 Causeway St.reet Boston, Massachusetts O2LL4

22 23
,'4.

;8;r

24

'*i

*j..
. .' -''::1"

:ii

KAKEN SMITH
Court Reporter

'i: .:i:l

'''iil:: -:{,

.::::li ':r:: r::i'

14 Palmer Avenue

Danvers, Massachusetts

0I

923

G@PY

(978) 777-s802
Fax (szs) 777-sBoJ

LANDING v BORDEN LIGHT #254067.Yot.

Volume: II
Pages:234

lu9tr0
INDEX
WITNESS

Exhibits:

DIRECT CROSS REDIRECT RECROSS

COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. I/.ND COURT DEPARTMENT OF THE TRIAL COURT MISC. CASENO. 254067

DON LEFFORT @y Mr. Watsky)

45
31

* * * *** * * * * ** * * * +* *
CONDOMINIUM
AS

THE T-ANDING at SOUTH PARK

SOCIATION

Before: CUTLER.

J.

(By Mr.

Brennan)

Plaintiff
vs.

MARCELLDAQUAY
BORDEN LIGHT MARINA, INC.

** + * * ** ** +* +* * ** *

Defendant

(By Mr. (By Mr.

Seigenberg)

65 87

to7

Brennan)

JAMES HOLMES @y Mr. (By Mr.

Tuesday, November 9, 2010

Seigorberg)

I 14

150 139

Brennan)

Courtroom 6 226 Causeway Street Boston, Massachusetts 021 t4

CHARLES EUGENE SCHNITZLEIN JR (By Mr.

Seigarberg)

174

APPEARANCES:

EXHIBITS
DANIEL R. SEIGENBERG, ESQ MAT'|HEW WATSKY, ESQ.
2 Commercial Street Sharon, Massachusetts 02067

No.

Description
Page
1

Id.

Evid.

(781)784-8800 Representing the Plaintiff

33
33

180 156

Pages 2 and 3 Pages

33
EDMUND BRENNAN, ESQ.
Brannan, Recupero One Church Green P.O. Box 488 Taunton, Massachusetts 02780 (508)822-01?8 Representin g the Defendant

4,5 and 6 (REMOVED)

tJo
172

42

Deposition transcript of William Sterling

Wall, taken 10/28110, with exhibits l-7

andAandBattached

NOTES:

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Phone: (978)

777-5802 ['AX:

(978) 777-5803

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PROCEEDINGS

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that we weren't going to finish on Wednesday, I would
keep him on as a rebuttal witness.

COURT CLERK: Novenrber 9, 2010, miscellaneous case number 254067, The l-anding at South Park Condominium Association versus Borden

THECOURT: Yes.
MR. SEIGENBERG: Frankly, at the pace wete
going, depending on what we're going to do with the
coastal geologist - coastal - I'm sorry, not

Light Marina, lncorporated. THE COURT: I just wanted to

see

if we were

all on the same page as to how we're going forward

here, and how you're planning to proceed in the next

geologist THE COURT: So, you have one, poss'ibly two

more experts?

couple

of - Im

assuming this is going to go at

leastanothertwodays. Doesthatseemright? MR. BRENNAN: I would estimate through

tomorrow aftemoon, Your HonorTHE COURT: Yes. So, let's ta'lk about how
we see this going forward. And our plan today is what?

MR. SEIGENBERG: Correct. We have

coastal geologist, I believe. They have a coastal

geologist they want to take out oftum or call at

sonre point in

time. Our coastal geologist, we've

agreed he's unavailable. We have his deposition, so

MR. SEIGENBERG: Well. we have - can I stay seated, Your Honor, ifthat's okay?

THECOURT: Yes.
MR. SEIGENBERG: We have Don
Don

we'dbereadinginportionsofthedeposition. So, it would proceed that way. It might be a little THECOURT: And thafs agreed upon? MR. BRENNAN: I understand - when the time
comes, Your Honor, I would ask that my brother simply

lrffort,

where

he's on cross currently. So, we'll finish up with

put on the record the nature ofhis unavailability.

kffort.

I know Attomey Brennan has requested

Accepting that it's true, I'm not going to object.

that we take a witness out of tum. THE COURT: Right. So, is that going to be this aftemoon or is that going to be -

THECOURT: Okay.
MR. SEIGENBERG: So, we have that situation. Then I have two more witnesses from The

-5I
z
J 4

-7

MR. BRENNAN: I can have - if it's

necessary to take him out of hrm, because he's also

available tomonow afternoon, as well.

MR. SEIGENBERG: Okay. That makes MR. BRENNAN: It's just tomorrowmorning he was - he teaches at Northeastern.
THE COURT: Oh, okay. All
have you talked about the flow

6
7 8 9

right. Well,

this. Is it going to interrupt

as opposed to

l0

ifwe take him today, tomorrow or how is, I spoke

ll
12

MR. SEIGENBERG: The only diffrculty I have

to

- I told the court the other day,

l3 t4
15

Your Honor - I actually do feel comfortable - force of habit, I think, over the years. I talked to Jim Holmes. He was the other structuml engineer. He
was the shuctural engineer that I told you about

16
17

yesterday

l8
lo
20

THECOURT: Yes.
MR. SEIGENBERG: - with the insurance company. He's not available at all tomorrow. I told
him we were going to have a discussion this morning,
and that frankly,

2l
22

it would be easier if I, I guess,

2)
1A

had him come in this aftemoon. And I know you had suggested

it may be rebuttal. Now, to the extent

1 knding, fwo of the board of managers. 2 TtlE COURT: So they are former or current 3 board of 4 MR. SEIGENBERG: They're current. 5 THECOURT: Theytecurrent. Okay. 6 MR. SEIGENBERG: One should be 7 significantly less lengthy than the other. 8 THE COURT: Right. Okay. 9 MR. SEIGENBERG: I would expect the more 10 lengthy witness to be similar to the one who's 1I already testified. 12 THE COURT: Conceivably your witnesses 13 could take up the rest ofthe day? 14 MR. SEIGENBERG: Absolutely, Your Honor. 15 THECOURT: Yes. Includingcross 16 examination and all of that, which would leave 1,7 tomorrow to - you have how many? 18 MR. BRENNAN: I have a surveyor; I have a 19 structural; I have a coastal geologist and my 20 clients. 2I THE COURT: Clients. 22 MR. BRENNAN: There are two clients. 23 THE COURT: Yes. Okay. Wele not going to 24 finish up tomorrow, it sounds like.
-6-

-6NOTES

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ruglr0
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easement issue. It's either

":1

MR. BRENNAN: Well, I would consider - our structural engineer, given Your Honor's inclination
yesterday on the structural issue, we've heard from

it violates the easement

or it doesn't violate the easement. Very straight, black and white, the issue. I agree 100 percent. The issue over the conternpt complicates this a litt'le

one. I know my brother wants to call yet another. I'm not sure what it adds to the first. I mean, I
would consider maybe not calling the structual

bit in my mind. And I don't know if it does with you, Your Honor, which is probably more important. THE COURT: Well, it does, only in terms
because the contempt is there. That's in place.
-

angineerifweagreethat -I'mnotsurewhatthey

addto THE COURT: Why don't we look at it this way. Okay. If this wall - let's assume for the
sake of argument this wall were permissible within the easement area.

think that's admitted. I don't think there's any question that the wall was built in violation ofa
standing injunction that was as clear as bell. I
mean, there's other issues as you

Ifthat's the case. then the

structural element and all of that, seems to me wind

up in Superior Court ifther's nuisance, ifthere's damage to the foundation because ofthe construction,

know. There's the questionoflaches,youknow. There'sotherthings that will come into play in tems of what the ultimate damages or the - not damages, I shouldn't
say. Ishould MR. SEIGENBERG: Remedy. THE COURT: - say the remedy is for the contempt. I'm trying to keep those two things
separate as we go forward, but I'm afraid they're

all of that is in Superior Court.

If however. we frnd the wa'll shouldn't have been built within this easement, let me tell, you
whether it has a building permit or it doesn't have a

building permit, whether it has DEP permits or

doesn't, thafs not going to affect the outcome

it

of

sortofconflating MR. SEIGENBERG: Right. THE COURT: - as the testimony is coming

this case in terms of what the remedies are going to

be. I can assure you that. Okay.

So,

ifyou want to push this

issue and get

in. I just

don't want you to put too much emphasis

-9I
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3

ll

it on the record that there is or there isn't

sure how much it's going to stop you, you

in terms of spending your client's time and money to

prove that there were nuisances as a result ofthis

permit, or whatever, at the end ofthe day I'm not

help. lm not going to

as

wall being built, that there was physical damages to

property and noise and, you know, things ofthat

4
s

know. I think it's irrelevant, but

long as it's not taking up too much time, and you want to get someone in here for five minutes to swear that there's a permit or not, I don't see the harm in

sort. That's not going to come into play so much.

Okay.
So, when we were talking originally, when

o
7 8 q 10

it.

I'11

take

it for what it is. I don't think it

crux of the issue.

we got together and we were talking about experts and what I wanted to hear about this, my understanding
was that these engineers were really going to be

goes to the

MR. SEIGENBERG: Interesting. And I

understand what the court's saying, but the only

l1
12

question I guess I have is that there's already an understanding, an agreement that these walls,

talking more to the question ofhow does or does not the construction of this wall materially interfere with the ability ofthe plaintiffs to have advantage

l3 l4
lf lo
1-1

particularly the ones in 2008/2009, were constructed in violation ofthe court order
THE COURT: The contempt is something else
again.

oftheir easernents. All right. And I haven't heard

anyofthatsofar,justsoyouknow. Andit'snot
this is just as good as, thafs not what I want to

18

MR. SEIGENBERG: Right. THE COURT: The issue is whether the

damages are the result of a contempt, or the damages are the result

l9
20
21

hear. I want to hear, does it or doesn't it interfere with this easement, in what way exactly. What did they have before? What could they do before? What can't they do now
So, almost think of
as a result?

ofthe wall being constructed in the

it in terms of, the

22

easement. okay.

z)
AA

MR. SEIGENBERG: And that's sort of where I guess - I agree with the court 100 percent on the

easement hasn't been - that the wall hasn't been built yet. If this were someone coming in for declaratory judgment, is there a right to build a

l0NOTES:

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wall there? I mean, you almost have to go from that
point mther than, no blood, no foul, the wall's up, who cares, you

know

I don't think that's the point.

see.

MR. SEIGENBERG: I

THE COURT: So, I would like you, if you

were going to have all these engineers, focus more on

that aspect of the case, as opposed to, what's the resulting damage because the wall was built in

violation ofthe order. MR. SEIGENBERG: I understand that, Your Honor. But getting back to the contempt, I mean, I th'ink you pointed out the correct, I guess it would
be the dilemma we all have, that there's an

acknowledged contempt. And the question then

becomes, what's the remedy? And that's where it's

different than the easement case, and that's why

we're attempting to try this case

differartly,

because the decision - we actually - we just wanted

totrythecontemptcase. Youmadethedecision,and I think rightfully so. It's an old case. kt's get the easement issue resolved, too. But in my view THE COURT: The contempt, as far as lm
concerned, there's contempt. You know, nobody has to

prove there was contempt. That was established at

I 2 3 4 5 6 7 8 9 10 1I 12 13 14 15 16 l7 l8 l9 20 2l 22 23 24 1 2 3 4 5 6 1 8 9 10 1l 12 13 14 15 16 l'7 l8 19 20 2l 22 23 24

Forget everything else, that violates it, end

of

story. But to the extent that you don't

see this

black and white as I do on the easement area, then we're back to the contempt. And the contempt is
going to give us the remedy that we're looking for,
as

well, which is at this point in time to have

T}IE COURT: You know that you've got

slippery slope here because ofthe laches argument.

Okay. So, I'm not sure that you get 100 percent even

if you win.
Again, I would just like you - I don't
want to drag this on unnecessarily long. I think that I don't want to confuse. but I also want to make

it very clear. I'm not confused in my mind

forward.

as we go

So, concern to the defendant that lestimony about the structural integity of the wall is going to infect my findings with regard to the - to whether or not it's adequate within the easement, really is not going
unnecessary time

to. I understand that ifyou

the two

thingsareseparate. Ijustdon'twanttospend
can agree on whether the

permits were issued, whether they weren't issued, you

know, end of story. We don't need lengthy commentary

-13thehearing. Thequestionis,whatistheproper
remedy.

-15on that.

MR. SEIGENBERG: Your Honor, we\e had this discussion. I still have the - I talked to
a

MR. SEIGENBERG: And this is why wete

tryrng to present you with evidence ofthe fact that,

city

counselor, counsel for the city ofFall River, and I

okay,thewallisthere. Ifthatwallwasperfect,
right, and it doesn't cause any problems, you may
make a decision not to order that wall removed in the

still have the building inspector on standby. Your

client's already testified at deposition that that's

theissueofpermits. Ithinklsentasubpoenaor
intended to, before I did his deposition. Is that

contempt. However,ifyoufind,basedonthe
evidence, that it's not struchrrally sound and that

ifs causing damage to the units, it's going to create a catastrophic failure, I would think in
evaluating all those remedies, you would want to know that, including whether permits were applied for
because permits are important. Whether or not DEP

still an issue. I told her I'd call her back and tellherwhetherornotweneeded thebuilding MR BRENNAN: I don't want to waste anyone's time, either. And I think we agreed
yesterday that there were no permits pulled for the '08/'09

work. What I wasn't clear on and my clients

MR.SEIGENBERG: Nottogetintothis,but

approval was obtained, all these types ofissues so you can make the bestjudgment possible on what the contempt remedy should be. And that's why would think, to the court. I agree.

weren't clear on is probably the previous work.

he testified at his deposition to that effect.

this I

what we've been trying to establish is so important

Thafs why, I mean, I'll still have him come in

if

Ifyou find a

youwant,but MR. BRENNAN: I had suggested that you -

if

the case is an easy one, from my view is an easy

one, but that's my

view. I mean, if you find

violation of the easement, then I would say, we

already know it's a structure, the nineteen feet,
lA

ifwe decided we need him. I think it would be a one question. Maybe I

that we put him at the end,

wall. It's over

car resolve the answer between now and then. THE COURT: That's what I'm thinking is,

MSL. They violated the easement.

-16-

NOTES

14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

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at 9:30 tomorrowmoming.

,M
THECOURT: Okay. MR. BRENNAN: And then I have - I finish

you may have time to either get a statement of the record or something like that, that you both agree on, and just then can stipulate there is or there isn't a build'ing permit.

the moming session between the surveyor and my two

MR. SEIGENBERG: That's what she's going MR, BRENNAN: I alreadv did it. It's a
good suggestion.

clients. And then in the aftemoon. I have - at

2:30IcanhaveMr.Rosenhere. He'sthe THE COURT: He is the structural MR. BRENNAN: - coastal geologist. THE COURT: Oh, he's the coastal geologist.
Okay.

MR. SEIGENBERG: She's going to fax me over

something today, basically -

MR. BRENNAN: This is the building

inspector regarding building permits?

MR. BRENNAN: I'm betwixt and between with

the structural - with the structural engineer.

MR. SEIGENBERG: Exactly, yes. So, Im going to get something today. Ill talk to counset.

THECOURT: Mm-hmm.
MR. SEIGENBERG: Maybe we can resolve that.

Ifit

THECOURT: Yes. MR. BRENNAN: I don't' want to waste time. appears that it's a part ofth contempt

Itdoessoundlikemaybelllcall -I'mhopingl
get a chance -

portion of the case, then I will feel compelled to call him. I don't need him for the easement. THE COURT: Okay. So, you think it matters
was built, ifI can get this straight, in violation ofthejudge's orderin this, the injunction, you think it matters whether there was permit, whether it's structurally sound, or not?

THE COURT: And there's no question about whetheronewasneeded. Imean,that'snotanissue

here.

ifthe wall

MR. BRENNAN: Apparently not. -- it was

required. THE COURT: So, today, if we can just go over this.

MR. SEIGENBERG: Franklv. with injunction, it -

an

-17I
2 3
A

-t9_
THE COURT: It doesn't matter, right? MR. SEIGENBERG: But I'm not the judge
who's going to determine what the remedy

MR. SEIGENBERG: I think what we'd like to

do, Your Honor, is we finish up with Don l-effort. would call James Holmes. the other structural
engineer and have him come

is. But if

in.

He should be -

you were going to consider remedies, and you were

5 o 7 8

certainly the direct should be fairly

briel

And so

we'd get him done, as well, because I don't know what's available. He's certainlv not available tomorrow.

thinking of anything other than having that wall come down, I would say it does matter if we know whether
that wall is structurally sound or

not. It

seems to

me somewhat in the nature of, you know, like a

THECOURT: Okay.
MR. SEIGENBERG: He is available this aftemoon. So, ld call him, and then we have two more, like I said, two more l-anding representatives,
current board members.

l0

ll
t2
IJ 14 15

deminimis encroachment. almost. THE COURT: What you're saying is, if I were to find that that wall. even if I were to find
that that wall could be constructed within the
easement, that you could envision a remedy in which

THE COURT: And they're here today? MR. SEIGENBERG: They are here today.
THE COURT: So, you can follow up, if you finish with Don l.effort this moming, you can start them while youte waiting for your structural
engineer.

would order the wall taken down solely because it was built in violation ofthe iniunction and is structurallyunsound. MR. SEIGENBERG: Amongst other things, yes,
absolutely.

l6
t7
18

l9
20
21

THECOURT: Isee. Okay.

MR. SEIGENBERG: And that's what equitable

MR. SEIGENBERG: Exactly. THE COURT: And you are going to bring your
suweyor?

is all about. You find a violation, which we

22
23 1^

already have a contempt, and so what's the remedy going to be. We're certainly

MR. BRENNAN: With that in mind, Your

Honor, I would suggest that

]l!*

*r **.r-

not - I would like to

-20 -

n"."

suggest we're not going to allow a structuraily

NOTES:

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777-5802 FAX:

(978) 777-5803

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unsound wall that threatens a condominium complex to remainstanding. Ifitservedallthepurposes,if

it was structurally sound, maybe you would look at it differently. But the former point seems like pretty
crystal clear, I would suggest. I guess I'm arguing to some extent. If you find contempt, they constructed a wall in violation ofthe court order

wall stays up in it's current composition, that there'll be further damage to the units. It all goes back to that contempt. And I see now where the

6
7 8

court - where you were going early on in this case, Your Honor, because you were looking at it more as an easement case, the case in chief. But we're here as
you know, as a lawyer, you worry atrout getting all yourcase in -

within the easement area, and the wall's unsound, I'd argue, yes, the wall has to go down and we have to that would be one ofthe remedies, amongst others.
So, that's why we were trying !o present and certainly what we were trying to do, like I said

l0

THE COURT: Right. MR. SEIGENBERG: - on everything. And

that was the concern that we obvious'lv had.

ll
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IJ

THECOURT: Okay.
MR. SEIGENBERG: So THE COURT: All right. But I also want to, you know - to tell you the truth, I haven't had the
foundation yet that these structures are within the
aegis of the board of managers, the trustees. I have
seen

before, these are, you know, in contempt you have discretion in your remedies. And certa'inly one

of
15

the factors that I would ask the court to consider is not only they violated an injunction, there were not

16

building permits which have some importance. They

had not DEP approval.

t7

l8
19

nothing. I've seen that you've got the trustees

THE COURT: There is an altemative. and that is

and that they are representing the unit owners, and that's

if I found that the wall could

be

built in

20

it.

So, I don't even know if these buildings

that easement, I could require that it be repaired and fixed.

2l
22 23

are the responsibility, and the maintenance of these

MR. SEIGENBERG: Which would require

buildings are the responsibility ofthe trustees, just so you know that. MR. SEIGENBERG: Oh, interesting.

testimonytoseeifitcouldberepaired. Idon't

24

-23 disagree THE COURT: I mean, that's the other aspect

ofit.SoMR. SEIGENBERG: And I don't disaeree with

it.

That's why THE COURT: That's why I had wanled to wait

on some of this until after we've heard the principle case. Butifyouwanttoproceedtogether,wecan
proceed together. I think the reason we had

originally talked about having it all together was

because there were going to be experts'involved.

MR. SEIGENBERG: And it does make

sense,

but THECOURT: Ijustwanttolimit -Ijust

want to make sure that werre clear that to the extent

if

any, that there was some kind of damage to the

buildings

as a result ofthe construction ofthe wall. I'm not getting into the nature of the damage, howmuch itcosttorepair. Asfaras I'mconcerned,

that's a separate case someplace else, not here.

MR. SEIGENBERG: I agree with that except with one caveat. Certainly you would want to hear
that there's already been damage to units, and you would want to hear that there is a concem

ifthat

I 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 2l 22 23 24

THECOURT: Okay.

MR SEIGENBERG:
in.

We could

look - if you

really want the condo documents, we could put those THE COURT: Or agree - I need to lnow that they have an even standing to talk about that,
because I'm hearing, you know, you had a witness here yesterday who was talking about his own personal

unit. Irt
here.

me

just tell you, thafs not an issue

MR.SEIGENBERG: Andlmadeaoointthatcall board members.

THE COURT: Right, right. And I

understand, I understand.

MR. SEIGENBERG: But I do think the statute

-Ihavetoreviewit. Ithinkthestatute
of
goup that's responsible for the

does in fact provide for that, that the board rnanagers, that's the

condominium complex

as a whole. I recognize it's different for individual units. Ifvou reallv want

the THE COURT: It depends upon how it's

defined in the condo documents, how the units are defined and who's resoonsible for what. That's
aA

-22
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usually laid out in the condo documents, so ifyou're going in that direction, you

, ;drti;"ir--.

,.1t) '.

know -

MR. SEIGENBERG: I don't think it's - by

the way, in the answer - the complaint and answer,

it's admitted that I do believe that we're -

tiat

the board ofmanagers has that fesponsibility and

authority. I don't think that's ever been denied. MR. BRENNAN: Yes. Idon'trecall THE COURT: So, you don't challenge that at all. MR. BRENNAN: I filed an amended answer.

THECOURT: Yes. MR.BRENNAN: Idon'trecatl;Ifurther amended it yesterday to add the statute of

limitations.

THECOURT: Okay. MR BRENNAN: So, I had to get another one. THECOURT: Okay. MR.BRENNAN: Wecancertainlyiookat that. And whatever my answer says MR. SEIGENBERG: Otherwise, do you really
want me to get the condo docs brought

in? Is that

whatyou -lmean THE COURT: No, not necessarily, if you can

I the documents- Again, depending upon the 2 condominium, these things are oftor described 3 differently. So, sometimes the unit owners are, in 4 . fact, responsible for the exterior work on their 5 property. And so you need to know what is - who 6 owns or controls what aspect ofthe building. 7 MR. SEIGENBERG: I don't think we have a 8 difference of opinion on that. We al1 agee that the 9 common areas are not owned ifthey have an undivided 10 interest. Butthey'retheresponsibilityofthe 1I board ofmanagers. 12 THE COURT: That's right. 13 MR. SEIGENBERG: We also agree that 14 anything inside the walls is the unit owner's. 15 THE COURT: But sometimes it goes outside 16 wal1, and sometimes it doesn't. It depends upon 17 MR. SEIGENBERG: Right. 18 THECOURT: -howthecondo 19 MR. SEIGENBERG: But I don't think that 20 I'm not so sure that's an issue in this case because 2l we're talking about walls in the common area, and the 22 only relation to the units is the fact that 23 there's - based on work in the common areas there 24 was damage to individual units.
11

agree.

MR. SEIGENBERG: I think we just did.

THECOURT: Okay. MR. BRENNAN: We can look at it. THECOURT: Okay.

MR. SEIGENBERG:
answer on that.
I

just want to look at my

THECOURT: All right.

MR. SEIGENBERG: That doesn't sound like
agreement.

THECOURT: Okay.
MR. SEIGENBERG: I'm going to bring it up in testimony
as to what

their understanding is and

what the responsibilities are, and I can bring condo documents and the -

in

you know, I could call a title examiner and bring the

THE COURT: I don't need it to that level. MR. SEIGENBERG: You need something.
THE COURT: I need something.

MR. BRENNAN: The statute would say, I think, that the board ofmanagers has that responsibility. Andtheniftheyaretheduly
elected board ofmanagers -

THE COURT: Unless otherwise set forth in

1 2 3 4 5 6 7 8 9 l0 1 1 12 13 14 15 16 17 l8 19 20 2l 22 23 24

THE COURT: Again, when we're talking about

damage to individual

units -

MR. SEIGENBERG: And I'm not trying

agree 100 percent.

to - I

THE COURT: - that's outside this space. MR. SEIGENBERG: We have no intention to
present anything as to the monetary damage to the -

THECOURT: Okay. MR. SEIGENBERG: - individual units. Thereareonly,onceagain -andonceagain,l'm

glad the court is having this discussion with us now

It goes to the whole conternpt issue, what's your

remedygoingtobe,giventhatcontempthere. Andit just seemed to me, and it still seems to me that

knowing that there's already been damage to individual units directlyrelated to this excavation,
that's something I think the court would want to know

when THE COURT: No. If it's related to the

excavation, it's not related to the construction
the wall, is it?

of

MR. SEIGENBERG: The excavation was part of

the construction of the

wall. That's the excavation.

Your Honor,

yes.

-26NOTES:

-28-

KS COURT REPORTING
Phone (978)777-5802 FAX: (978) 777-5803
14 Palmer Avenue I)anvers, Msssachusetts 01923

LANDING
t
3

BORDEN LIGHT.#254067 Vor,.I rr/9tr0

I

THE COURT: Yes. It's very complex here. Okay. But let's get back to our organization. So,
today we're finishing up with Mr.

THECOURT: Okay.
other people

z
J ^

kffort's

cross

MR. BRENNAN: - 2:30 tomonow, and the will be here. They're all waiting on THE COURT: Okay. Certainly. (Trial paused) THE COURT: Mr. Seigenberg, are you -

examination and recross. We're having the second

5

telephone ca11s.

structural engineer in the afternoon. Wete having

the two current board managers.

5 6
7 8

deposition that geologist.

MR. SEIGENBERG: And we also have the will THE COURT: And the deposition of that

9
10

ll
t2
IJ 1i

l0 to -

MR. SEIGENBERG: Which we've tried

we've tried to'limit somewhat, Your Honor. THE COURT: Okay. That will be this afternoon.

ll
t2

MR. SEIGENBERG: I'm sorry, Your Honor? THE COURT: Are we ready? MR. SEIGENBERG: Oh, yes. I'm sorry, Your Honor. I thought Mr. Brennan was going to call Mr.

kffort.
THE COURT: He's your witness, though. MR. SEIGENBERG: No. no. It's Don lrffort.
I think we're still on cross with Don Iffort.

l3 t4
l)
16

l5
16

MR. SEIGENBERG: Yes: I think that would

get us through today.

t7
18 19

MR. BRENNAN: I feel safe, Your Honor thal starting - I feel safe having my witnesses available of 9:30 tomorrow morning. THE COURT: I think that works, yes. If we break a little early today, that's fine. Yesterday we went a little too long. I just want to remind you
as

I7
18 19

THE COLIRT: Oh, okay. MR. BRENNAN: Finishine Mr.

morning.

kffort

this

THE COURT: All right. Mr. l,efforr, can

you please - you're still under oath from yesterday.
Resumed Cross Examination of DON LEFFORT

20
21

20

2l
22

22

(By Mr. Brannan:)

Good moming, Mr. teffort. Good moming. A.

z)
aA

that, you know, rye are not fully staffed any longer, and we need to make rur" ,nl;;u_*ody is out of the

23Q
24

3l -

I 2 3 4 5 6 7 8 9 l0 ll 12 13 14 15 16 17 18 19 Z0 Zl 22 23 24

courtrooms by 4:15 so that the court officer can

leave on time and close

up. So, it really is

important to keep that - because me, I could stay

here all

night. That's not an issue. But we do have

So, okay. With that, I think we're ready

otherpersonnel to be concemed about.

to go. MR. BRENNAN: If we don't frnish tomonow, will we resume Friday moming? THE COURT: It me just - I didn't bring my calendar in w.ith me. Yes, I think there's one thing on Friday morning. I mean, if we only have one
witness to finish up, or a cross examination or something, we probably could do that on Friday. But
we might have to interrupt

it with something

as we're

goingforward. Ifitlookslikewe'vegotseveral
witnesses to go, I think we're going to have to schedule another day and we can figure that out

tomorrow.

All right. You maybring - and I think we'llgountil ll:15. We'lltakeabreakforten minutes, and then we'll go again until 12:30. Okay. MR. BRENNAN: Your Honor, I'm going to have my client notify Mr. Rosen -

I Q 2 3 4 5 6A ?Q 8 9 10 A 11 Q 12 13 A 14 Q 15 16 A l7 8Q 19 20 2I 22 A
1

At the end of yesterday's session, we were talking a

bit about what you have done or hadn't done
investigation-wise about the historical use ofthis

siteinquestion;isthatcorrect? Doyourecall
that? lt's correct. And by the site in question, do you understand that
means the embankment area between The

tanding

property and the Marina property? That's correct.

Now, there was some mention of consolidated materials. Do you recall that?
Yes.

Is theterm,consolidated orunconsolidated? Idon't recall.

lt'snaturalvirginsoilthat'sconsolidated,
compacted.

If I recall correctly, your testimony was that your

opinion was based on this embankment providing particularbenefits to The l-anding property as consolidated material; is that correct? That's correct. consolidated material,

-30NOTES:

z) 24 Q And you said that if it wasn't

-32-

14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING v BORDEN LIGHT.#254067

I 2A 3Q 4 5A 6Q 7 8A 9 10 11 12 Q i3 14 15 16 17 18 19 20 Q 21 22 23 24
1A 2 3 4Q 5 6 7 8 9 l0 I1 A 12 13 Q 14 A 15 Q 16 17 l8 19 20 Q 2l 22 23 24
that could affect your opinion? That's correct.

VoI.II tugn0
1A
2

Visually, I can't make material. not -

a statement

if it's fill

Mr. kffort, do you still have the index of exhibits

in front ofyou?
Yes.

3Q
4
5

Is there any characteristics shown in that photo

of

the earth material that would lead you to believe

that it's
place.

fill material?

If you would, Mr.

number 34-9?

Irffort, would you tum

to exhibit

6A
7

It appears that there is some erosion that's taking I'd like to show you a photograph, exhibit 34-1
ask you also

Okay. I found it. MR. BRENNAN: May I approach the witness,

Your Honor?

8Q
9

l,

and

ifyou would take a look

at that

l0
l1
12 13 see the photo you're

photograph and teli me whether or not from that photograph

THECOURT: Yes,youmay. Mr. tcffort, if I could

referring to.

if

there's anyhing in there that would

indicate whether the material shown is consolidated materiat or fiIl material?

A,

MR.BRENNAN: YourHonor,Idohavea better copy made. It's the same copy as that. May I have it with this witness? THE COURT: Okay. Would you testifu from
that, then.

14
15

Again, without doing any exploratory work on that, couldn't tell you

if it

was

fill

or

not. Again

l6 though, it's eroded material. 17Q Sure. So, it's fair !o say that l8 shown in that photograph?

It's erosion. there is erosion

THE WITNESS: Yes.

19A
20Q
2l
22

Absolutely. I'd like to show you a photograph marked

Mr. lrffort, looking at exhibit 34-9, and looking at

the earth materials that are shown in thatpicture,
can you tell me whether or not that

would - the

exhibit 34-12. And I've also got a glossy photo, you would look at that? Now, looking at that photograph, do you
recognize that as being the s:o::herly end of the

if

materials would be consistent with conso'lidated materials or

)1
1A

fill materials? -33

-

The exposed areas are disturbed. material.

It's - it would

be

I
2A

Borden Light Marina/landing South Park Property?

I can't be certain. Is the building on the top left,

probably hard to state that this was

fill

or not

fill

Well, looking at what is shown in that picture,

if
of

that were in fact the existing conditions in front

buildings 3 and 4 prior to the construction ofthe wall in question, would that change your opinion in any way as to whether or not the wall would provide

sufficientprotectiontoThel-andingpropertyfroman
ocean event as you described? There would certainly be serious erosion during a

hurricane event.

Iflmay -maylplease?
Yes.

fd like to

ask you

ifyou would lookat what

is

exhibit number 34-10. MR. BRENNAN: And I also have

photo, an original for you.
a better

THECOURT: Okay.
Take a moment and look at 34-10, and Iwould askyou

ifyou could tell

me based on what you see in that

photograph whether you could determine whether or not

the earth materials were consolidated materials or

fill materials? ,34 -

3 is thatbuilding 3? 4 Q Directingyourattention tothephotograph,ifthe 5 southemmost building on that photograph is building 6 number 3, does that orientale you as to where it is 7 on the property? 8 A Yes. 9 Q Would it be fair to say that's in the southerly end? l0 A Yes,that'scorrect. 1 I Q Do you see the access road coming in from the 12 southerlyend? 13 A Yes. 14 Q And do you see the embankment to the left of the 15 access road? 16 A Conect. 17 Q Fromthatphotograph, is there any way you can l8 determine whether or not that embankment was 19 consolidated materials or as a result ofprevious 20 fill? 21 A From this photo it's concrete debris which we would 22 call fill. 23 Q fd liketo directyourattention to exhibit34-31. 24 And I'd ask you, looking at that photograph, if I
-36-

NOTES:

14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING

V BORDEN LIGHT #254067 Vor,. I were to tell you that that - if you would assume for 2 a moment that that is in front of building number 3, 3 could you describe what's shown in thatphotograph? 4 A It loolc like in the winter, and all the vegetation 5 is obviously dormant. 6 Q Do you observe anything in that photograph that would 7 indicate erosion ofthe embankrnent? 8 A Yes. Around the centerofthebuildingthereis some 9 soil movement. l0 Q Now again, exhibit number 34-37,I would ask you if 11 youwouldtakealookatthatphotograph. Andifl 12 were to tell you that that is the King Phillip Boat 13 Club, do you know where that is in orientation to The 14 l-anding and Marina properties? l5 A Ibelievethat's south ofthe site. 16 Q So, it would be King Phillip Boat Club is shown in 17 that photograph. Would it be fair to say that the 18 building number 3 would have been built or was built 19 to the left ofthat? 20 A Yes. 2l Q Can you tell me what's described, or what - would 22 you describe what you see in that photograph? 23 A There's quite abitofconstruction debris laid in 24 the sun.
-37 -

tr/9tr0
I 2
3A
southerly end ofthe property, northerly towards where the Marina and the club house are now built? I'm sorry. I probably can't because I'm not fam'iliar

4
5Q

with it.
Is there anything in that photograph that would allow

6 7 8 t0
11

you to make - form an opinion as to whether or not that construction area depicts consolidated matedal there is construction debris

or fill material? 9 A Yeah. You can see that on the top surface.

Q A Q A Q

Now, Mr.
Yes.

kffort,

directing your attention to exhibit

12
13 14 15 16

number 5 in the binder that vou have before vou. That is entitled a non-exclusive easement; conect? That's correct. Have you had an opportunity prior to this moming to review and read that document?

17
18 19 20

A I'velookedatitpriortothis Q Would it be fair to say you're familiar with it? A I am familiar with it, yes. 2l Q Do you understand that this document forms at least 22 the basis ofsome part ofthis case thaCs pending, 23 and you're here this morning for? 24 A Yes, correct.
-39 -

I Q Would it be fair it doesn't show consolidated 2 material? 3 A It's hard to say. There is vegetation here. 4 Q Well, vegetation alone certainly is not an indication 5 ofconsolidated materials; is that correct? 6 A Right. 7 Q Thevegetationcould growonfill. 8 A Absolutely. 9 Q You do observe construction material on that site l0 A That's correct. ll Q -inthephotograph? 12 A Yes. 13 Q fd like to showyou one morephotograph, which is t4 marked 34-38, and I would ask you ifyou would take a 15 look at that and tell me ifyou recognize what is 16 shown in that photogaph? 17 A There's construction debris on the top surfaceof 18 this material. 19 Q Mr. l-effort, when you were out at the property, did 20 you have an opportunity to observe the tank farm, the 2l oil tanks to the north of the Marina? 22 A No. I did not. 23 Q Looking at that picture, can you orientate yourself 24 as to whether or not that is looking from the
i

I Q Directing your attention to midway down through the 2 firstparagraph, starting with thewords, "as hereinafter described," do you see where that is? 3 4 A Yes. You mean, here and after described it for 5 construction? 6 Q Skip down to the second sentence after that, starting 7 with the words, "for construction and maintenance of 8 drainage systems, and for construction and maintenance ofa sloped gtaded erosion and flood 9 protectionbarrier." Didlreadthataccurately? l0 l1 A Yes,that'scorrect. I 2 Q Now, given the photographs that you just examined, 13 and your testimony on cross examination yesterday 14 that your opinion may vary, depending on whether it 15 was consolidated or unconsolidated materials, after 16 looking at these photographs in the vicinity of 17 building number 3, would it be fair to say that a l8 retaining wall, a vertical, segmented block retaining 19 wall constructed in the area ofthe soils that you 20 observed in those three - on those exhibits, would 21 act as a flood protection barrier for The l-anding at 22 South Parkproperty? 23 A If itwere designed properly, yes, itcould. 24 Q That opinion is based in part upon your review of the
-40-

-38NOTES

KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978)

777-5802 FAX:

(978) 777-5803

LANDING
I
2A 3Q

BORDEN LIGHT #2s4067 Vor,.I

a

tugn0
1
2Q

exhibits that wejust went over; is that correct? Correct.

And would it be fair to say that

4 constructed as youjust described, would also 5 adequately serve or be better than a sloped graded 6 bank ofthis unconsolidated material forerosion 7 control? 8 MR. SEIGENBERG: Objection, your Honor, 9 form of the question. It assumes it,s unconsolidated 10 material. I think that,s what the witness said. II THE COURT: Do you want to rephrase your 12 question? t3 MR. BRENNAN: yes, your Honor. 14 Q Mr. trffort, based on your examination of the photos 15 that we went over moments ago, it,s youf testimony 16 that you observed fill material in a number of those 17 photos; is that correct? Construction debris? 18 A Yes, north of the site and south of the site. 19 Q Conect. Now, it would be fair to say that 20 construction debris would not be consolidated 2l material? 22 A That is correct. 23 Q So, givan the presence in the vicinity of buildings 24 on the southerly end ofThe tanding at South park
- +l I
2 J
A

retaining wall

3 4 5 6
7A

THE COURT: I,m not allowing the question. Mr. trffort, the photographs that you examined, which were exhibits 34-39, 37 , 31, g,10, I 1 and 12, you identified the area in those photos as being the southerly end in the vicinityofthe King phillip boatyard - I mean, Boat Club?
Yes, correcl Do you understand buildings 3 and 4 to be in the southerly end of The I_anding at South park property?

9 l0 A Yes, north of the King phillip. I I Q In the photo$aphs, you have identified the 12 embankment as consisting at least in part of 13 construction debris; is that correct? 14 A Yes, the one that was shown by King phillip. 15 Q Givor the fact that that embankment in the vicinity 16 of - would you agree that's in the viciniW of 17 building 3? 18 MR. SEIGENBERG: Objection, your Honor, 19 just to the vagueness of term, ,'in the vicinity.,' 20 THE COURT: No. I,ll allow the question. 2l Q Doyouagreethat 22 A Itappears to be in the vicinity ofbuilding 3. 23 Q Right. So, givor that t1pe of soil material in the 24 vicinity ofbuilding 3, and focusing your attention I 2 3 4
5A 6Q
on building 3, would it be fair to say that a retaining wall constructed as you described, would afford The landing in South park erosion control and

8Q

property, given the presence ofthe construction debris, which we agree is unconsolidated materiat, would it be fair to say that a retaining wall constructed as you described, would serve the

function oferosion control and flood protection

equal to or better than an embankrnent unconsolidated material?

flood protection? Yes, that's conect. Given the soil materials that you have seen in these photographs, at least those that consist of construction debris, would it be fair to say that the retaining wall would give The landing at South park
greater erosion control and flood protection than the photographs that you observed, which you testified showed erosion; is that fair to sav?

6 7
8

of

o
10

ll
t2
13

MR. SEIGENBERG: Objection, your Honor The dilficulty is, he,s talking about debris that's not necessarilynear the blocked area. As such, it's not necessarily unconsolidated. So, he's asking the
witness to give an opinion on facts that are not in
evidence.

l4 l5
16

THE COURT: I'm not sure he's asking in the vicinity of the premises as we have defined them. I think he's talking about in general, ifthere were
construction debris, would a wall replacing that construction debris adequately serve for flood

l7 l8
lo
20
21

control. It's a MR. SEIGENBERG: It's a hypothetical.

THE COURT: It's a hypothetical.

22
LJ 1/

MR. SEIGENBERG: Which doesn't have any reality, any basis in reality in this case. MR. BRENNAN: I'm sorry, your Honor?

7 8 9 l0 1I 12 13 A 14 Q 15 16 l7 18 19 20 A 21 22 23 24

That'sfairtosay.
Youtestified yesterdayabouterosion to coastal banks, and different ways coastal banks may erode. When a reta.ining wall has been constructed in a
coastal bank area, what

lpe

oferosion would you,

as

an engineer, be concerned with, on the top wa1l, or on the bottom of the wall?

ofthe

At the base of the wall is - in a storm event is

subject to the most scouring and erosion based about the waves as it hits the wall. A lot of energy is
absorbed right in that area, which

ifnot properly
ofsoil.

addressed, you could lose quite a bit

_44NOTES:

KS COURT REPORTING
Phone: (978)

14 Palmer Avenue Danvers, Massachusetts 01923 777-5802 FAX: (978) 777_5803

LANDING v BORDEN LIGHT #254067 VOT,.I

I Q 2 3 4A 5 6Q 7 8 9A l0 II Q 12 13 14 15 A 16 17 18 19 20 21 22 23 24 Q I 2 3 4 5 6A 7 8 9 10 1 I 12 13 14 15 16 17 18 19 20 21 22 23 Q 24
Now, itbeing avertical wall, would itbe fair to say that it will absorb from a perpendicular impact
most ofthe energy from a storm wave?

tugn0
I 2 3 4 5Q 6A 7Q 8 9 10 11 12 A 13 Q 14 15 A 16 Q I7 A 18 19 Q 20 2l 22 A 23 24 I
3A
think that's exhibit 5.

'"

illfmliDr.pt'.tr.r*o'tl,
I

Could you turn to that exhibit again, please?

MR. WATSKY: Dan, if you could bring that to me. You got it, Mr. lffort?
Yes, yes, correct. Counsel had pointed you to the language and part that
reads,

Yes. If it's the - on certain waves, the majority

ofthe waves do hit straight on. And is it then your opinion that the erosion that may occur is at the base ofthe wall, and thafs a
gteater concem than on the top Yes, because

ofthe wall?

"for construction and maintenance ofdrainage

it could result in sudden failure of the

as

systems, and for construction and maintenance

ofa

entire wall if the base is compromised. In your engagement with The landing at South Park
a consultant/expert

sloped graded erosion and flood protection barrier;" correct? Correct.

for them, were you asked to look

at The l-anding at South Park's drainage system at

Tell me something. Is something that's vertical

sloped?

all?

No, it was notMR. BRENNAN: Thank you. I have no further

questions, Your Honor.

No, ifs not.

What is

it?

What does sloped mean?

Anything that's greater than horizontal, up to, but

not including vertical.

THE COURT: Redirect?

MR SEIGENBERG: Your Honor. could I have

just
a moment?

And so,whatwould thenormalmeaningfroman

engineering perspective, be it having a sloped graded erosion and flood protection barrier mean? It would be service de$ees

THECOURT: Mm-hmm. REDIRECT EXAMINATION

(By Mr. Watsky:)

soil - it would

be a grade

of

material that has a slope to it, anywhere from zero

Mr. lrffort, you were asked on cross examination to

to - I mean

one degree to eighty-nine

A1

-45talk about the different alternatives ofways to

restore stability 0o the slope. Could you explain to us why you chose, and why you testified on direct degrees.

2 Q Butif it's
But it has

to

- you know, and maintain,

examination that doing the lifts and rebuilding the

coastal bank?

Yeah. That was one of the preferred solutions. We

looked at other altemates such as reinforced concrete retaining walls, sheet piling, auger piles.
The difficulties with the reinforced concrete wall

would be that a fair amount of The tanding's property would have to be excavated beyond the property line. And in close proximity to the buildings there wasn't
adequate enough room to construct that type

ofwall.
The

An altemate plan would have probably used

asheetpilingmechanismofaverticalwall.

concems we had with that is that driving sheet piles

so close to a building could be detrimental to the

building. Inter-finishescouldbequiteabitof damage. Didn't seem - it would be a very risky type

ofconstruction. And giving thoseparameters,
would seem like the logical thing we'd do is to
restore the embankment as

it

it originally was.

Counsel hasjust asked you questions about the

easement, the so-called non-exclusive easement.

4 maintainable. 5 Q It has to be maintainable. So, if one is 6 constructing and maintaining a sloped graded erosion 7 and flood protection barrier, would you interpret 8 that to mean a coastal engineering structure that's 9 made of con$ete blocks or is that to be of some 10 other material? 1l A Of othermaterial, not concrete blocks. 12 Q What would it be? 13 A It would be - you could use - it would be soil. It 14 could be earth. 15 Q What's the meaning of the word, "graded," used in 16 that tefm? 17 A The pitch of the material, the slope of the material. 18 Q Butdoyou gradeconcreteblocks? 19 A No. 20 Q What do you - what is something - when it's 21 referring to something that's graded, whatis that 22 referring to? 23 A That would refer to soil. 24 Q Soil. So, ifthere'saverticalconcretewall,isit
-48-

-46NOTES:

14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING
I 2
3 4 5 6
there?

BORDEN LIGHT #254067 Vor-.

ru9n0
I 2 3Q 4 5 6 7A 8Q 9 10 II 12 13 74 15 16 A 17 18 19 20 21 Q 22 23 24 A I Q
2A
four feet in width, two feet underneath the b'lock,
two feet into the soil.
So, in a standard pract'ice as an engineer, would

possible than to actually have a graded sloped area

A Q A Q

It would seem - no, you could not.

One is exclusive

oftheother; is that correct?

you - strike that.

Did you use standard engineering practices
to determine the number oftest pits that you needed? lt's a judgmort, yes, it's an engineering judgment. Do you agree then with counsel's characterization that you only really have an understanding of fow
feet out have an understanding

Correct.

Ireferyou toexhibit 34-23. Tellme when you've

found it. Yes, I have it.
Just orient us at flrst, before I ask you a question.

7
8A 9Q

l0 Can you tell me what we're looking at here? l1 A It would appear that we're looking in the southwest 12 direction along the shoreline in front ofThe 13 landing. 14 Q And just !o get oriented, along the water side, can 15 you see where there's a stone wharf? 16 A Yes. I 7 Q And you see a vegetated area that's between that and 18 the last building of The l:nding? 19 A Yes,Ido. Iseeafullyand vegetated area, yes. 20 Q Okay. Would this area constitute a sloped and gr"aded arca'l 2l 22 A Yes,youarecorrect. 23 Q Is what you're seeing in those photographs depicting 24 something that's consistent with the language used in
-49-

ofthe 500-p1us feet, or do you feel you ofthe conditions along this
MR. BRENNAN: Objection. kading. THE COURT: I'11 allow it. lll allow the

entire wall?

question.

Yes. We seemtohaveabetterunderstandingof
what's there, as well as we were able to review an

invoice on the material, the amount of material that was purchased for the site, and it seemed like it was
consistent with our determination.

Youjustreferred to aninvoice. Ibelievethat's in the book as exhibit 37. Mr. kffort. Would you tum
to exhibit 37? Yes, that is correct.

-51 Can you identify exhibit 37, please?

I
2A

the easement?

Yes, it does.

Exhibit 37 is an invoice for geogrid that was

purchased from Noah (phonetic) Environmental Corporation to Borden Light Marina. What's your understanding of what this repressnts? It describes the quantity of material that was

3 4 5 6
7Q

MR. BRENNAN: Objection, Your Honor. That

would be for Your Honor's determination.

3 4
5Q

THE COURT: Yes, I agree. Sustained. MR WATSKY: I'll rephrase. Im sorry.

Would what you're seeing here be consistent with the words sloped and graded?
Yes, correct. me move

6A

8
9A
10

Q lrt A Q

on. I'm just going to orient you. On

I L2
I

direct examination yesterday, you testified about doing your four test
Yes.

pits -

13 14

-whereyouexaminethe geofabdc. And thenon

cross examination, counsel asked you a number

15 16 17
18

of

questionsaboutit. Tellme,whydidyoutakefour
test pits?

Webased itonengineeringpractices. Wefigured that based on the length of the wall, four pits would give us a good indication of what was installed

19 20 21 22 23 24
NOTES

behindthewall. Becauseitdidnotvaryfrompit from observation pit to observation pit, it was the

same. We did not see any variation in

it.

So, our

feeling was that the amount ofgeo grade was only

7 purchased for the site, and it appears to be the only 8 invoice showing the amount purchased, total amount 9 purchased. l0 Q Now, tell me, using just basic math, were you able to l1 determine whether the quantity of gmfabric shown rn 12 that invoice was sufficient to provide the amount of 13 geofabric necessary that you testified to yesterday, 14 extording back into the bank? 15 A Itseemed to bea lesserquantityneeded to fulfill 16 thestabilityneeded. Andactuallyit -conversely 17 we were able to verify our findings mathematically, I because ifyou take the quantity that they purchased 19 over the length of the wall, it would only leave you 20 a little over three feet ofmaterial per layer for 2t the entire wall, and assuming that the wall was only 22 eight feet for the entire length, although we know it 23 doesjump up to ten feet in spots. 24 Q lrt me ask you to elaborate on that and clarify.
1

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I 2 3
4A
5Q
What do you mean by, "It only provides a little over

I Lugn0
I 3 4 5 6A 7 8 9 l0 1l 12 l3 14 15 16 Q 17 18 A 19 Q 20 2l 22 23 24
2Q
stable.

threefeetofwidth?" Isthatpercouse,usedper
course? Per layer, yes, geogrid being every two feet.

Over time, what happens to the earth within the

drainage - the flood protection erosion control

easement, and then the earth behind it with the wall
as it's been constructed?

Is thatthree feetextending from the backofthe

6
7A 8Q

wall into the slope, or thre feet total?

Three feet total. So, lefs assume that the geogrid was installed such

9 10 1I
12

As the wall will progressively move outward until the soil behind the wall will have to fill in the void spaces, which will cause settlement. And that will continue to propagate until the wall is to a point where it's totally unstable and will fail and fall

that it's underllng all of the two feet of each

block. How much geogrid is there available to extend

behind the blocks into the slope?

A Q A Q A

over. And thejeopardyofthatisthatthebuildings

behind there would also be subject to soil settlement
issues, which could be detrimental to the buildings.

Itwould appearbased on whattheypurchased, it

should only been about a foot. What did you observe out there when you actua'lly did your test? We actually observed a liule bit more in spots two feet.

13
14

15
16

MR. WATSKY: May I

Honor?

have

just

a moment,

your

of

Mr.
Yes.

17
18

Ifffort,

111

redirect your attention to

xhibit 34, number 23. Tell me when you have it.

Could youcomparethe apparentstabilityofthe sloped and graded area as visible there with the

Howmuchwas actuallyneededbased onyour

calculations?

19
20

2l 22 23 24

the - depanding on where you are on the site, because ofthe grade, behind the wall changes
Based on

condition that now exists with the wall having been

from about l0 percent to about 26 percent in slope. We figured that it would go from anywhere from seven
to nine feet.

built the way you described it? question, Mr. I-effort.

-f,)-

kt

me rephrase the

Can you compare what's visible in that

-53I 1 3

MR. BRENNAN: I'm sorry, Your Honor. I

couldn't hear that.

THE COURT: I didn't understand the question. I didn't understand the question or the
answer. Could we go through that again?
Just to

6Q
7 8

clarifu. This is something you testified

about yesterday. How much geogrid did you determine would actually be necessary at each course ofb'lock to extend into the slope? That would be seven to nine feet in lensth.

104

11 Q Pardon? 12 A. Seven to nine feet in length.

13Q

What's the purpose of the geofabric again? That is to reinforce the soil that is behind the

14A
15 16

t7

block, and integrate the block with that soil mass a stable mass, so that it would retain soils behind that from moving.

as

t8Q
19

So, let's assume that there's only one to two feet of geogrid behind each block of this wall. How does that affect the stability of the earth within the flood protection and erosion control easement? It doesn't provide enough stability for maintaining a stable slope for the site. So, there's a potantial

20

2l

22}^
L) 1^

failure of the wall based on the fact that it's not

-54NOTES:

I 2 3 4A 5 6 7 8 9 10 It 12 13 Q I4 A 15 16 Q 17 18 19 A 20 21 Q 22 A 23 24 Q

photograph to the conditions that you have described with the wall as it is today for flood protection and erosion control purposes? The wall as it's built today would not provide
adequate flood protection, the fact that because

it

it does not have any scour protection at the

a stone

base. The block wall is laid on stone,

course

with absolutely no protection from scouring

a hurricane event or a storm event with significant waves. And with the wall being - not providing arough stability, there will be a serious

during

erosion problem with the material behind the wall. That's a serious erosion problem as compared to what?
Based on the original vegetation down on the southern

part ofthat photo.

Mr. kffort, Im going to tum youl attention to

couple of other photos, letter

a
3

if I may, photo exhibit

I,

Q.

What do you see there?

Q is a picture of the existing segmented wall to the right, and boat stored to the left.

Any impression about the wall in that location? You can see the geogrid further down, sficking out of the wall adjacent to the boat.

Areall ofthe section ofthewall installed

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I 4
'improperly in this location?

tugn0
I 4 5 6 7 8
2A 3Q
that easement? That is correct. Is the idea ofhaving vegetation -

2 A From this photo, there's a waviness to the wall. 3 Q Okay. I'll move on. kt's turn to photograph U in
section 31. With me?

7 as the condition of the bank after it was excavated 8 prior to installation ofthe next section ofwall. 9 What do you observe about the condition ofthe soils 10 in this location? ll A Thesoilslookrelativelywell fromthis -ldon't 12 see any fill consistent with what we had assumed of 13 uniform-type gravel material. I 4 Q Counsel on cross examination showed you pictures of 15 construction debris that were lafng on the surface 16 andthelike. Isthereanyconstructiondebrisin 11 this area? l8 A No,notatall. 19 Q Does this appeartobe arelativelynatural 20 consolidated-typesoil? 2 I A Again, without going further into investigation of 22 the material, but I certainly don't see any debris 23 that would tell me this is fill material. 24 Q And so, it would appear to be what?

5 A U, yes, correct. I'm sorry. 6 Q Noq I believe that this has already bean identified

MR.BRENNAN: Objection. Idon'tmindthe

witness testifoing what he observed, Your Honor, but not confirming what counsel is testifoing. Object to leading.

9 Q Mr. Irffort,

10 1I
12

THE COLIRT: Yes. Okay. Sustained. let's talk about the difference between slope and vertical as it relates to wave energy.
When a wave hits a vertical face, what happens? The changing of the wave, the energy fromthe wave
has to be absorbed by the vertical structure.

13 Q 15 A 16 Q 17 18 19 A 20 2l 22 23 Q 24
14

Is the waveenergydeflected ordissipated?

It'smostdeflected andnotdissipated atall.

Compare that to what happans when a wave hits something that's sloped, the way something would be sloped

ifit's

sloped and graded.

The advantage

ofa sloped surface under a waveis

that a large amount ofthe wave force can be dissipated as it travels along the stoped surface, and absorbed by the material itself. Compare for me the location of the area that you've
seen in the photograph that's called "sloped."

-)/

It

I A
2Q

It could be natural material.

Therearesomeotherphotos. Tumtophotograph

S,

3
4A
5Q
6A

justbeforethe Yes. I have it. What do you see in photograph S?

[t would appear

dur - it looks during construction

7 l0 II 12 13 Q 15 16 I7 A 18 19 Q 20 21 A 22 Q 23 A 24 Q
14
NOTES

of the retaining wall.

onceagain, you see
be

8 Q Mm-hmm. 9 A And to thetop of thephoto

material that would be

well - it would probably I

termed well graded gravel material, no debris.

Again, it's happening during construction, so couldn't testifu what was there prior to that.
Does

itappear -doyouseevegetationinthat

photograph on the material where construction hadn't

already removed it?

Further up I see what appears to be vegetation, north

at the top ofthe photo.

Would that be consistent with the term "sloped," as it's used in the Yes.

-theeasement?

Correct. It seemed to match with the Is that consistent with the term "graded,,,as used in

_58-

I was in the last photo we looked at. I think 2 thafs S3 A Yes. 4 Q Horizontally, in relation to where the top of the 5 wall is. 6 A Repeat tha! I'm - I'm sorry. Could you repeat that 7 question? 8 Q Illdoitasahypothetical instead. 9 IfThe I-anding maintained the sloped and 10 graded flood protection and erosion control easement l1 as you've described something would be s'loped and 12 graded with vegetation, and it was throughout that 13 twenty feet, where would waves be breaking, and where 14 would the wave energy be as cornpared to where it is 15 today, givar the construction ofthe retaining wall? 16 MR. BRENNAN: Objection, Your Honor. This l7 was all gone over on direct yesterday. This is l8 essentially the same direct that went through 19 yesterday. It'sbeenaskedandanswered. 20 THE COURT: I don't think so. no. I think 2l this is a little bit different, and it follows up on 22 some ofyour questions. 23 A On the sloped portion, the wave would be dissipated 24 along it's length to a smaller amount up to the top -60-

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14 Palmer Avenue Danvers. Massachusetts 01 923 777-5802 r'AX: (978) 717-5803

LANDING v BORDEN LIGIIT.#254067 VoL.

I
3

tugn0
lQ
3

of the wall, or up to the top of the slope. Wlere as opposed to, the wave would not be - there would be
no anergy dissipated all until it hit the vertical

Do you rernember that he noted that the rnap amendment

had changed the

V zone elevation from elevation I 9 to 22. Do you remember that?

Yes.

4
5

sfucture, which would be in close proximity of the buildings, in some cases only eleven feet away, with the possibility of spray or ovrtopping and hitting
the buildings.

4A
sQ
o 7

Tell me,

ifthe elevation

has changed in the southem

1

6
7 8

end of the property from elevation and wave energy along the top
area2

9 to elevation

22, what is the effect with regard to flood levels

And in my opinion, it would probably be,

the wave topped the wall, at a higher velocity than

if

8 9

ofthe wall in that

9
10
11

it would hit the buildings

it would have been if it

10A It'll be higher than

11 Q It's thepredicted tz
TJ

had traveled up the slope, because the slope would

have been able to dissipate some of that energy. Energy?

- the predicted, yes.

13Q

14A

From the wave.

t4
15

lsQ
16

With the slope, where is the wave - where's the

energy start being dissipated

MR. WATSKY: I have no further redirect. YourHonor. Thankyou. THE COURT: Do you have anything further, Mr. Brennan? MR. BRENNAN: Just one question, Your
Honor. RECROSS EXAMINATION

ifyou have the slope

16

l7
18

in place instead ofthe wa1l, horizontal

relationship? Further from the buildings at the toe of the
slope, closer to the shoreline would actually be the

t7
18

19A Right.
20
21

l9
2A

(By Mr. Brennan:)

up the word "graded" in the dictionary, it would
read, "to level

first

areas where dissipation

ofthe wave or even

21 Q Mr. Iffor| if I were to tell you that if you looked

22
23

22
L)

possibly, everr breaking ofthe wave could take place, lower and further away fiom the buildings.

offto

a smooth or sloping surface."

24Q

During a storm event

whe*:1"I_r flooding

and these

)L

Would you have any reason to disagree with that?

63-

I 2 3 4A 5 6 7 8 9 l0 Q II 12 13 14 l5 16 A 17 18 9 20 21 Q 22 23 24 A
1

waves, is it just flooding and waves that are moving and gets against a slope, or are the waves carrying

IA
2Q
5

No, I wouldn't. And

ifI

looked up the word "slope," it would be, "a

anything else?

surface ofwhich one end is higher than the other, a

Typicallyin ahurricaneevent,youwouldprobably you would find debris with that water due to possibly boats that weren'ttaken

rising or falling surface." Would you -

out. Docks orpiers that

5A 6Q
7 8

That's correct.
- have any reason to disa$e with that? So, when they talk about a sloped and graded easement, there's nothing in the easement that

were broken up there in the storm usually are on top

ofthe water and could become missiles or projectiles

as they crash on shore.

tells you what that slope or grade must be; is that correct?
Just a sloped and graded.

Now again, compare the relative affect of a sloped

graded area throughout that 2O-foot easement, and

l0 12Q

11 A There's no language of the slope - how much?

it's affect on those, you call it projectiles, as

cornpared to the function

ofthe

wa11,

particularly

where the wall is in it's positions closest to the

13A 14Q
l5 l6

That's correct.
So, sloped and graded at two percent,

buildings.
The debris on the surface

it would be fair to say then that if it was it wou'ld be sloped

ofthe wateras it

approaches the vertical faced wall,

ififs

on top

of

17A
l8

and $aded? True.

the wave, which would most likelihood, it's floating,

MR. BRENNAN: Thank vou. No further

questions, Your Honor.

could go over the wall and could be a projectile into

the buildings.

l9
20
21

THE COURT: Okay. I think now is probably

the best time to take a break. and then we'll resume

Bettermovealong. Counselaskedyouoncross
examination about the letter of maD amendment.
Remember that? Yes.

22
23

in ten minutes at I 1 :15, and continue with the next

witness.

z4

MR. SEIGENBERG: Thank you.

-62NOTES

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14 Palmer Avenue Danvers, Massachusetts 01923 717-5802 FA* (978) 777-5803

LANDING v BORDEN LIGHT #2s4067 Vor,.

I 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 16
17
(Morning break) MR. WATSKY: Your Honor. Attornev
Seiganberg is

lugno
I A
2Q
And thebiggerproblems,too. Specifically, you mentioned the common areas. Wnar
do you understand to be the common areas ofthe condominium complex known as The landing? That would be the land, the hallways, the outside the buildings, the garage spaces, the roadway.

THE COURT: Call your next witness.

3 4
5A

MR. SEIGENBERG: Oh, thank you, your Honor.

I don't know ifhe's been swom yet, Your Honor.

of

6
7Q

THE COURT: Not yet. You haven't called

So, for a common area, certainly an example would be

himyet. MR. SEIGENBERG: Oh, I,m sorry, Your Honor.

IcallMarcellDaquay. Thankyou,YourHonor. ************* MARCELLR. DAQUAY

****

***

****

(Witness swom.)

DIRECT EXAMINATION (By Mr. Seigenberg:)

Q A Q A Q A Q

Sir, could you please state your full name and spell

18
19

it, the last name? Marcell R. Daquay, D-A-Q-U-A-Y.

Sir, where do you live? 700 ShoreDrive,
Can you try

20 21 22 23 24

Unir40l. tospeakupjustalittlebit?

Okay.
Where do you live?

8 like - a swimming pool would be a common area? 9 A Yes. l0 Q There's been testimony during this trial which you've l1 heard about, and you're aware personallyof 12 excavation and construction ofwalls that has 13 occurred on or near The l-anding property; is that 14 correct? 15 A That's correct. 16 Q And that area, is that something that's the 17 responsibility ofyou, as a board ofmanagers ofThe 18 hnding? 19 A Yes,Iwouldsayso. 20 Q Nowsir, can you tell us whatyoureducational 2l backgrotmd is? 22 A I went to URI, high school, Rogers, and I've done 23 education mostly through General Dynamics. I worked 24 there for 34 years.
-67 -

-65-

I A 2 3Q 4 5A 6Q 7 8A 9Q 10 A 11 Q 12 13 14 A 15 Q 16 17 A I8 Q l9 20 21 A 22 23 24 Q
NOTES

Fall River, Mass., 700 Shore Drive, Unit 401, at The t anding. And specifically, when did you move to The I-anding in that particular unit?
December of '02.

I Q
2A

What was your position at General Dynamics? I was a special projects in the Trident pro$am, responsible for electronics weapon systerns, hydraulic systerns, ship control. I did that for 34 years

Sir, you're currently a member of the board

managers

of

ofThe l-anding; is thatconect?

That's conect.

When did you become a member of the board?

2005,inApril,Ibelieve.
How many board members have there been since strike that. How many members serve on the board? Five.

And that's been since you'vebeen amember in 2005;

correct?

Conect.
Can you tell us what the responsibilities and duties are as a member

ofthe board ofmanagers at The

tanding?
Well, we're responsible for the financing, the common
areas, safety and welfare of the unit owners, about every little problem that comes up.

just

And the bigger problems that come up?

3 4 5 6 7Q 8A 9Q 10 A 11 Q 12 A 13 Q 14 15 16 A 17 18 19 Q 20 2l 22 23 A 24

there. I also did quality assurance for them for

twelve years. I see. What's your current occupation? I o!r,n a restaurant and I cook there. What's the name of your restaurant?

Moulin Rouge.
Where is that located?

Tiverton,Rhodelsland.
I see. Now, sir, you indicated you moved to The

tanding in 2002. Could you describe The landing

property when you moved in?

Well, when I moved in, it was - the reason I bought there was that it had a nice view ofthe bay, a lot ofsailboats, nice views, and it was quiet.
As a member of the board of managers of The Ianding, what do you believe is your duty and responsibility relative to the views and the area that The is situated?

hndins

_66-

Wel1, I mean, when I first bought unit, one of the first things that was told to me was that we had a

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I 2 3 4 5 6 7 9 l0 ll
12
water view visual easement ofsome sort that the real estate told me about. And, you know, at the time made a lot of sense that the views would not be

Thatshouldbe3.
And next to

it

2Q

4 - then there's 4, and I assume the

obstructed in the future, you know. And that was a selling point. I like the area, you know, it was

quiet. Itwasmoreofanelderlypopulation,andit

wasMore than as a unit owner, I think my question was, what duties and responsibilities did you feel thatyou have - do you

8 Q I appreciate that.

haveasaboardofmanagerrelativetothese -

Well, to maintain all that, to maintain the rights

the unit owners, and to, you know, maintain the

of

13 14 15
16

property, make sure that the finances are in place,

and that we keep

it up, so to speak.

Sir, I wantto showyou - it should be in

that? Yeah.

frontof

17 18 A 20 Q 2l 22 23 24
19

you,anexhibitboolgthebluebook. Doyousee

Ifyou could tum to exhibit 34, and then ifyou go - each ofthose photographs are numbered 1 throughanumberofothernumbers. Andifyoucould turn to photo$aph 23 in exhibit 34. Are you able to
locate that okay?

3 next building would be building 5; correct? 4 A Correct. You base this - two edges of the building 5 because it's L-shaped, so to speak. 6 Q Alsodepicted onthatphotograph,belowthe 7 buildings, going towards the water, do you see that 8 green sloped area? 9 A Mm-hnnn. Yes. 10 Q I take it that's how that area looked when you moved ll in in 2002? 12 A Yeah. 13 Q Did that - the composition of that area remain the 14 same up until 2008? 15 A Correct. 16 Q Now sir, there's been testimony during a previous l7 witness'examination, Mr. Bouffard, about a 18 settlement agreement in 2006. Do you recall that? 19 A Well, there was - in 2006, there was an agreement 20 between Borden Light Marina and The Landing regarding 21 a condominium complex that the Lunds wanted to build 22 atthenorthend. Andtheywantedustohaveno 23 opposition to it. 24 Q Were you involved in that settlement agreement as a
-71 -

-69-

I A
2Q

Okay. That would be 23 on 34. Correct. And that photograph should have on the top

I
2A 3Q

member ofthe board ofmanagers ofThe landing?

Yes.

3
4A
5Q

left,thedateof200l. Doyouseethat?
Conect. Now sir, when you moved

And specifically, whatrole, ifany, did youhaveas

a board

4
in
- this photograph, 34-23,

ofmanager? of the agreement with

5A

Wel'1, we worked out the details

6 7
8A 9Q

is that a fair and accurate depiction of The

hnding

area from the water when you moved'in in 2002? Yeah. I'd say it looked about the same, yeah.

And specifically, can you locate for Her Honor where

l0 1I
12

building 4 was, buildings 3, 4 and 5, where they're

depicted on that photograph?

A Is this looking fromnorthto south orsouth to 13 north? 14 Q Well, I suggest the fact that it's in the water that 15 totherightwouldbethesouth,andtotheleft 16 A So, it would be the second building to the lastfrom l7 the top ofthe picture. 18 Q Well, let's do this. I asked 19 A In otherwords, to theright, itwould be the second 20 building. 2l Q Would be building 4? 22 A Conect. 23 Q But what about the first building on the right? What 24 building is that, sir?
NOTES:

6 7Q 8 9A l0 Q il A 12 13 Q 14 15 A 16 17 Q 18 A 19 Q 20 2l A 22 Q 23 24

the attomeys and with Mike Lund.

Now, you mention attorneys, who, ifanyone, was

representing Borden Light Marina? I'm not sure. I think it was -

Ithinkcounsels agree that itwas Ed Brennan. Yeah. Ineveractualiygotinvolvedwiththe

attomeys, per se.
I-et me ask you a question. Are you aware of what

attomey,

if any, represented The hnding?

We have attomeys up in Braintree that we used, the condo attomeys.

Was that law

firm Marcus Errico?

That'sconect. You indicated they were the condo attomeys. What do

you mean by that?

Well, they're supposed to specialize in condo law.

Prior to the discussions about that settlement
agreement, you, as a board ofmanager, were you aware

of any l-and Court litigation that was sti'll pending?

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Phone: (978)

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LANDING

V BORDEN LIGHT #254067 lANo. 2 Q What knowledge did you as aboard ofmanagerhave as 3 to any preliminary injunction issued by the Land 4 Court? 5 A Iknewnothingofit. 6 Q During these discus - strike that. 7 ltakeitdudngthese -letmerephrase 8 thatquestion,iflcould. Atsomepointintime 9 while there was discussions with the board, did l0 either Michael or John I-und come and appear before II the board? 12 MR. BRENNAN: Objection, Your Honor. 13 Discussions ofwhat? 14 MR. SEIGENBERG: The settlement agreement. 15 MR. BRENNAN: It's a written document, Your 16 Honor. It speaks for itself. 17 THE COURT: I don't think he's asked what l8 itsays. Ithinkhejustasked,didanybodyappear 19 before the board in connection with it. 20 MR.SEIGENBERG: Right. Iwasjusttrying 2l to focus the witness. 22 MR. BRENNAN: I'm sorry- I withdraw m; 23 objection.
24

VOI.II lug/r0
1 A Mike Lund.

2Q

What did Michael Lund say to you?

3A

Well, I mean, he said that this - he basically went

through what they wanted to do, and he said the

4 5 6 7 8 9
10

litigation was still open. And he said it in a way which it appeared that the litigation went his way.
Before that, I didn't - I had heard about the

lawsuit,butthoughtitwasclosed. Ineverthought
that it was actually still open, you know.

Q Noqwhenyouhad

thisconver -whentheboardof

11 12 13
14

managers had this conversation with Michael Lund,

where was Michael Lund living?

A A

15 16
17

MR. BRENNAN: Obiection. Your Honor. ldon'tknow. MR. SEIGENBERG: I'd be happy to explain
the relevance

ifthe court would like.

Ihavenoidea.
MR. SEIGENBERG: Michael Lund lives in The Landing. I think it is potartially germane. THE COURT: Why does that matter?

18 19 20 21 22 23 24

MR. SEIGENBERG: Because I guess to the

extent that they're even making the - even though there's litigationthat's been pending since 1999, even ifthey're making a claim oflaches, obviously

-73 -

I 2 3A 4Q 5A 6 7 8 9 l0 l1 12 Q 13 14 A 15 16 Q l7 i8 A 19 Q 20 2l A 22 23 24 Q

THECOURT: Okay.
MR. SEIGENBERG: Thank you. Yes. Mike Lund came to a meetins Inwhatyear?
- to discuss what his intentions were as far as, you know, he was going to build a condo complex. And he kind ofgave a history ofthe whole thing, that this wasaprojectthathad -Iguesstheyhad contemplated this back

in

- before. And now they

revised it, and they wanted our agreement to go along

with it. At this poinl in time, did you know where Mike this was in 2006, sir: is that corect? It was 2006, late 2006, maybe, maybe the beginning

of

2007. I'mnotsure.
Was

it before or after the settlement agreement was

signed?

Oh, itwasbefore,yeah. What,

if anything, did Michael Lund

say about the

land Court litigation?

Well, that's when I first heard that the litigation

wasstillopan. Open,butkindofdormant,theyway he described it,

Who did you hear that from?
1A

1 you would want - it would tre relevant for the court 2 if Michael Lund was also a unit owner at The landine. 3 THE COURT: He wasn't a board member. 4 right? 5 MR. SEIGENBERG: He was never a board 6 mernber as far as I know. I'll move on. 7 THE COURT: I don't think it mat0ers. 8 MR. SEIGENBERG: That's fine, Your Honor. 9 I appreciate that, thank you. l0 Q So, you had this conversafion with Michael l,rrnd. I II want to direct your attention now to 2008/2009. Did 12 something happen relative to any construction work at 13 The landing? 14 A In 2008 and 2009, theystarted constructionofthe 15 segmented wall on the southern portion ofthe 16 property. l7 Q And that was near what building, sir? l8 A Theentrancewayand towards thenorthem partof 19 the -well,towardslguess,building5. 20 Q Prior to this excavation and construction work 21 occurring, commencing in 2008, did you, as a member 22 oftheboardofmanagers -strikethat. 23 Were you, as a member of the board of 24 rnanagers, aware ofthe construction work that was
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KS COURT REPORTING

LANDING
I
2A 3Q

BORDEN LIGHT #254A67 Vor,.I

tu9tr0
1

going to be done? Not until it started, no. And you were describing the construction, hrstthe southerly entrance, and what other work occurred,
sir? I think the southerly, and also around buildings 5 and

I don't

knowifit

was Paul or

2
3Q

I'm not sure. That was

if it was Charlie. in 09. Oh, Bert was, yeah.

BertBouffard?
Yeah. What responsibilities,
as the chairman

4 5
6A

4A
5Q

'1 8

6. And then in2009, they completed

those

6 7
8A

if any, did Mr. Bouffard take of the board of managers relative to

these concerns that the board was having?

sections, married them up.

Well, he went to city officials, fire department,

mayor's office, building inspector, for a number

9 Q After the

construction work began, was this an issue

11
12

l-anding?

Yeah. We were concemed about

a number

of things,

13 14 15 16
17

yeah. When it started, the closeness to the buildings and the sleepness ofthe slope, you know. It was stafiling how much land they were taking. Now. we were told it was all his land and so forth.

9 10 11 12 13 14
15

of

different concems. We were concerned about safety with the fire department. And he started looking to
the building permits, and that's why he went to the

buildinginspector. Ittookusawhiletogetthe
information.

16
17 18

Q A Q

Thiswas
Yes.

a1l

informationthatwas reportedbackto

the board by Mr. Bouffard as

chair -

Q A

You were told it was all his land. Who told you that. sir? I'm sure Mike told the board that all the work was being done on his land. I know he had conversations

18
19

Specifically -this I-andCourtlitigation,who,

anyone, represented The

if
of

20 2l 22
23 24

with Bert and so forth. I did not directly have

conversations with Mike on that.

19 20 2l 23 24 I
2Q
3A

landing in the [:nd Court

a board

litigation from the time that you were

managers, up until 2009?

22 A No one. No,

we had no attomey working on

that. My

Q A

Okay. l'm justasking But that was our frame of mind.

understanding afterwards was that the attomey that

they had at that time was discharged, and no one was

-77

2A 3Q

1 Q Oftheboardofmanagers?
Yeah. These were discussions that occurred at the board; is

replaced.

Isee.

And we,

as a board, were

involved in other things

that correct, sir?

5A 6Q

Yeah. Yes.
As a result of the concems that the board

4 5
of

after that, and never got involved in it, and mostly

because we thought

it had ended.
as to what

7 8 9 l0 A 1l 12 13 Q 14 15 A 16 Q 17 A l8 19 20 2l 22 23 Q 24
NOTES

6Q

Now sir, after Mr. Bouffard reported track

managers had relative to this construction and

excavation work that was occurring, what,

il

7 8
9A

had occurred based on his investigation, what's the

next thing that the board ofmanagers did, sir? Well, with the fire department, we wrote them a letter requesting what their plan ofaction was in
case of a fire, because we were concemed with the

anything, did the board ofmanagers do, sir? Well, one of the first things we did was, we hired

Mount Hope Engineering to put our property lines in

so that

we

'

Why did the board of managers hire Mount Hope

Engineeringtodeterminetheirboundarylines?
Well, you mean that particular firm? No, any engineering firm.

Okay. We wanted to get an idea because there seemed to be a lot ofdoubt on where the property line was.
There were different stakes that were here and there

l0 II 12 13 14 15 16 17 18 19
20

fact that you couldn't get around the buildings. We

were concemed that the boats that now were ten or

twelve feet away from the buildings, ifthey caught on fire, what would happen? With the building

inspector,wefoundouttherewerenopermits. And
we then went to the mayor's office and registered our complaint there and we got some feedback from them.

Not much, but...

allthroughoutthepropertyline. Somepeople
thought the fence was the property line; some people

What was the next thing that the - after not getting
any satisfactoryresults, what's the next thing that the board ofmanagers

didn't.
time?

We

just didn't know.

21 22
24

ofThe l-anding did?

Who was the chairman of the board of managers at that

23 A Well, we

hired attorneys.

And the attomey would have been Attomey Watsky; is

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KS COURT REPORTING

LANDING VBORDEN LIGHT #254067 Vol.

I that correct? 2 A Yes. And as a matter of fact, we were told about an 3 advertisement in October or September of a '91 4 license that the Marina was asking for. And Bert 5 looked into that, because that's atrout the same time 6 we hired Matt 7 Q Isee. 8 A - and we started looking into that. 9 Q This work that was done in 2008, and then was done in l0 2009, as a board ofmanagers, can you please tell us II what impact, if any, it's had on The landing 12 facility? 13 A The work that was done in 2009 became extremely close 14 to the buildings, and it's made it almost irnpossible 15 to walk safely around the corners ofthe buildings 3, 16 4,5and6. It'shardtomaintaintheareainback 17 ofour buildings as far as cutting grass, and so 18 forth. We have a number of elderly people that used 19 to use that area, walking, you know, in the 20 summertime. And I know there was a couple of 21 incidents where, you know, someone almost fell. So, 22 it's become unsafe to use. And so I think there's a 23 lack ofuse now back there because ofthat. 24 Q What concerns, if any, did the board of managers have
-81 -

I tu9n0
1A
It increased dramaticallv because there was more area te storeboats. As a member of theboard of managers ofThe tanding, can you tell us the impact that that boat storage had on the l-anding complex? and 5, theboat storagewas closeto

2 4 5
3Q

6 A Buildings 3,4

7 8 9 l0 II
12

thebuildings,soitwas -theystoresome significantly large boats in that area now. And a lotoftheunitownerscomplainedthat -especially
the unit owners that only have first floors, they lost their entire view. Now, sir, did you personallyobservesome of the excavation that occurred near building 4?

l3
14
15 16

Q A Q A

Ohyeah. Iwatchediteveryday.
Canyoudescribe the excavationworkthatyou saw? Well, they dug within a few feet of the buildings. And they had, basically,
a nine

17 18 19
20

foot drop, maybe four Theyput

orfivefeetawayfromthebuildingcomer. theirblocks up and wentrightby.

Q A

Is there a particular day that you recall relative to

2l
22

the excavation that occurred near building 4, sir?

Yeah. They basically ended the day at my building,

and then resumed the next day. So, basically I had
an exposed area for twenty-four hours in front

23 24 1

ofmy

-83building.
"exposed area," you mean -

I
2A

as to the

wall itselfthat was constructed?

We felt it was unsafe and it was poorly constructed. And as we progressed through the stages
some engineering expertise to look at

3 4 5 6 7 9 l0 l1 12 13
14
1

2 Q You say,

offinding

3A

With no protection, no wall.

The next day did you made any observations, sir?

how close it was to the property line and getting

4Q
5A

it to give us

their opinion, you know, we found that the wall was not constructed to standards that are safe.

6
7Q 8A

Yeah. I started receiving crack from thern until probably May of 2010. Where? In your unit, sir?
Yeah. Time-wise, how was that related to the excavation?

8 Q Nowsir,

afterthis excavationofthebankarea

occurred - strike that. Prior to this work being done in 2008 and
2009, what use,

9Q

if any, was used of

the Marina

property at the bottom of the bluff, towards the wateredge, nearbuildings 3 to 5?

15 6Q 17 l8 A 19 Q 20 A 2l 22 23 Q 24

Well, there was a little activity that I noticed in the years that I lived there.
And after the wall was erected, what was the level

of

activity? Itincreaseddramatically.
Can you descdbe that, please?

Well, I mean, there wasn't an ealhance at the south end at all. Nowthere is. And there's the traffic
that goes by this is increased dramatically. What impact,

if any did it have on the amount of boat

-82 -

storage that occurred in that area, sir?

l0 A II 12 13 14 15 16 17 18 19 20 2l 22 23 24 Q

Well, Imean, when theywentbymyunit, within

or two after that, I start seeing new cracks. I can actually measure the cracks. One day it would be
three inches, and the next day

a day

it would be larger.

MR. BRENNAN: Are the cracks in the wals

thatyoulereferringto? THEWITNESS: Yeah. MR. BRENNAN: In the wall of the unit? THEWITNESS: Yeah.

MR.BRENNAN: YourHonorhasalreadymoved
thatalong.

THECOURT: Yes,yes.
THE WITNESS: Okay. MR. SEIGENBERG: I'll move on.
Sir, I want to direct your attention to December

of

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NOTES:

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KS COURT REPORTING

LANDING
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BORDEN LIGHT #2s4067

VoI.II tu9n0
lANo.
2 Q Didtheboard
ofmanagers ever givepermissionto

2009. Do you recall any meeting or conversation that

you had at that time?
Excuse me?

4 Q fd like to direct

your attention to December

of

5 6
7A

2009. Doyourecallanyconversationyoumighthave
had with Michael Lund at that time?

3 4 5 7 8 9 10 1I Q 12 A 13 Q 14 15 A 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 24 A

Borden Light Marina to proceed with any of the excavation and construction work that occurred in 2005 to the present?
I don't think we were ever asked of either.

6 A No.

Oh, yeah. It was in December of 2009. Mike came to

MR. SEIGENBERG: Thank you, sir. Nothing

further. CROSS EXAMINATION

8 9 10
11 Q 12 A 13 Q 14 A 15 Q 16 A 17 Q 18 A

therestaurantonaFridaynight. Iwasn'tthereat
the time, my son was. He left a number to call, and I cal'led him later on

thatnight.

You called
Yes.

him. That would be Michael Lund?

Michael Lund?

{By Mr. Brennan:) Mr. Daquay, you - did I pronounce that correctly? lt's good. Daquay, yeah, fine. Mr. Daquay, you moved into The I-anding in December
'02; is that correct? Yeah.

Did yourecognizethatpe$onas
Yes.

of

Tell

us

whattheconversationwas,sir.

He asked me about the lights.

And you mentioned that one of the reasons you moved

there was the view?

Heaskedyouaboutthelights?

Thelighting. Oneoftheissues thatwas taking

place was he put security lights along the back, and they had no deflectors or anything, so they were

Yeah.

19 20 2l 22 23 24 I 2 3 4 5 6
7Q

Didyou everinvestigate whatlega'l rights

No, just what I was told.

unit

owner may have to a view or not to a view? You just relied upon something someone told you about

shining into a lot of the units. And he asked me why

[ was against that, and I told

him. I said, "You

know, my unit has lights coming in but it didn't bother me, in particular." But it did bother other

aview, nothing further?

Correct. at the time.

-85unit owners, and as a board membet, you know, I have to follow through with those conplaints. And then he said, "Well, what issues do you have personally?"

-87-

And I said, "Well, the wall. I'm afraid of the wall, that it's not safe and my unit being one of the
closest ones to

it."

So...

Did you also haveaconcem as aboard ofmanagers about the safety ofthat wall?

9 A Yes. l0 Q What, if anything, did Mr. l-und say to you, sir? I I A He got very agitated and basically said, "I'11 get 12 you for this." 13 Q Howdidyoutakethat? 14 A Itookitasathreat. 15 Q Now, sir, howdoes itworkon theboard? Since 16 you've been on the board ofmanagers since 2005, how l7 are decisions made by the board ofmanagers? 18 A They're made as a group. 19 Q I'm sorry? 20 A Theyte made as a group. In other words, we vote on 21 ever).thing, and you know, majority takes place. 22 Q Did the board of managers at any point in time, sir, 23 ever have a meeting where there was any vot on the 24 excavation or construction that occurred? -86NOTES:

I Q Now, you mentioned that the board of managers is the 2 responsible party for the common areas ofThe Ianding 3 at South Park; is thatcorrect? 4 A Yes. 5 Q Would that also include balconies that project off a 6 second floor ofa unit? 7 A They'renon-exclusive -well, itdepends. There's 8 some balconies that are common to more than one unit, and there's some balconies that are common just to 9 10 oneunit. Imean,therearesomebalconieswhere 1I more than one unit shares it. Okay. 12 Q Would the exterior sheathing of a balconybe under 13 the control ofthe board ofmanagers? 14 A Yes, I would say so. 15 Q So, theboard ofmanagers is responsible forthe l6 maintenance and repair ofthe balcony? 17 A Yes. 18 Q When you moved in in 2002, there was a board of 19 managers formed at that time; correct? 20 A Yes. 2 I Q To your knowledge, there has been a board of managers 22 since the condominium project was created. Would 23 that be fair to say? 24 A Yes.
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Phone: (978)

14 Palmer Avenue Danvers. Massachusetts 0l 923 777-5802 FAX: (978) 777-5803

LANDING
I Q 2 3 4A 5Q 6 7A 8Q 9A 10 Q 11 12 13 A 14 Q 15 16 A 1'7 18 19 20 2l Q 22 23 24 A I Q 2 3A 4Q 5 6 7A 8Q 9 l0 II 12 A 13 14 15 16 17 Q 8 19 20 2l A 22 23 24
1

BORDEN LIGHT #254067 Vor,.I

the - the common interest of the

tt/9n0
I 2
4A
3Q
all sorts ofstuff, and he wanted in it. Yeah. Right, right. Gorightahead.
It was not him specifically talking about the lawsuit that slarted
Yeah.
us to be

So, there's been someone in charge ofrepresenting the interests of

involved

unit owners since the condominium was created? Correct.

{t's never been a rudderless group

So, that's what started the negotiation.

ofunit owners.

5 Q Andyoudo -Imsorry.

It's always had

Yes.

6A

7
8Q 9A

it.

lt was -

-boardofmanagers?
Yes.

It was the high-rise, we'll refer it.

When you moved in, did you observe boats being stored

inthenorthem -towardsthenorthernendofthe
property?
Yes. The storage of boats came down ptobably midway; would

that be fair to say, in 2002?

There was a fewboats at the southem end all the

time. They looked like they were abandoned, but

there wasn't a lot, you li:now. I know there was one

in front of my unit, a small one, there for

time.

a long

Would you agree that the Marina was using the southem end of the property for some Marina purposes
since you moved in? Yes.

Q A 12 Q 13 14 15 A 16 17 I8 Q 19 20 A 21 Q 22 23 A 24 Q
10 11

Ithinkitwasreferred to
Right.

as

thehigh-rise.

And once he approached The hnding at South Park, The landing board of managers then retained an attomey out of Marcus, Errico, Emmer and Brook in Well, I think they were always retained by us for
quite a while. It wasn't that specific incident. We

just used them since they were already retained.

And the board of managers brought them into the loop on the negotiations?

Correct. Yes.
Do you recall how extensive the negotiations were and how long it took to arrive at an agreement? It was a couple of months.
So, as the dateofthatagreemsnt, certainlythe

-89
Theboard ofmanagers nevertookissuewith that; is
that correct? Correct.
So, the board ofmanagers acts onbehalf of the best

-9t

interest ofthe unit owners, and you've be.en on that

I 2 3 4 5
6A

board ofmanagers that was in place on the date that

agreement was signed, and I believe

it was March of

2006, you would a$ee that at that point, the board

of managers was fully cognizant of the litigation

that was pending in this court? We were only cognizant that it was still open. We

boardsince 19 -I'msorry,2005;isthatcorrect?
Yes.

April of2005? And you testified that - why don't you tell me, when is it that you flrst became aware
ofthe litigation that was pending in this court
since 19 - since 2000? When Mike Lund came to a board meeting, which believe was in 2006, to describe the fourteen-story

I
And

7 8 9 l0 1I 12
13

didn't investigate what it even pertained to, because

part

of

- the way Lund approached it, was that

if

you agreed to all this, the lawsuit would be dropped,

landswouldbeexchanged,andsoforth. Andwe didn't actually go and investigate, you know, pull

out the lawsuit and start reading it.

Did you know that you were the plaintiff in that

case?

condominiumcomplexthattheywereproposing.
about, that the lawsuit was still active.

14
15

part ofhis conversations to the board was he told us

Was that what instigated the negotiations between The

tanding board of managers and the Marina, which

resulted in the settlement a$eement that's been marked as exhibit number 39?

Well, what started the negotiation was, he was proposing putting a condominium complex there. And
he was proposing that there was a number

ofthings

that he wanted to do. He wanted to put a gate up and

A No. 16 Q Andyoutook 17 A Ineverreadituntil 18 Q Until you obtained Attomey Watsky? 19 A Yeah,basically. 20 Q Thatwould havebeen in the fall of2009? 21 A Nine, yeah. 22 Q Inyourcapacityasrepresentatives ofthe unit 23 owners, you agreed to the dismissal ofa lawsuit, as 24 pursuant to that settlement agreement, and you don't
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Phone: (978)

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(978) 777-5803

LANDING v BORDEN LIGHT #254067 Vor,.I

1 2
4Q
even know what the lawsuit was about: is that

tt/9trO
I A
2Q
Say that again?

correct? not know. You're testifying here todayonbehalfof theboard ofmanagers?

You've testified that you were unaware of t*re lawsuit

3 A At the time, yeah, did

5
6A 7Q

Myknowledgeon the board ofmanagers, yeah. At that time, did you agree the board of managers
included Bert Bouffard, yourself, Joseph Richards,
Paul Beatty and Charles? I'm going to let you say Gharles's last name for me.

8 9 l0 II A 12 Q 13 A 14 Q 15 A l6 17 Q l8 A 19 Q 20 A 21 Q 22 23 24 A I
3A

Schnitzlein.

Which are fouroutofthe fivecurrent Right.

-boardofmanagers.

Right. Georgeisno longerthere. Actually, there's

only four boards ofmanagers right now.
Has someonerecentlyresigned? Yes. Was that Mr. Flanagan?

Yes. And we haven't had time

to

While we're talkiag about that, you have a member the current board ofmanagers who is a practicing
attomey; is that correct?

of

Iknowhewasan attomey. Idon'tknowifhe -93 practices. his name? Dan Vevieros. How long has Mr. Vevieros been a member of the board ofmanagers? In April it will be three years, I believe,

3 4A 5 6 7 8 9 10 II 12 13 14 15 l6 17 18 19 20 21 22 23 Q 24 I 2
3A 4Q 5A 6Q 7A 8Q 9A

until 2009, when you retained Attomey Watsky? No, that's not true. I was aware of the lawsuit

probablyin2003. Iheard -therewasalwaystalk by the unit owners about the lawsuit. They said,
"Oh, we don't want to spend money on lawsuits." But I always thought that the lawsuit was closed out

until Mike Lund came to

a meeting

in '06 and '07 and

told us that it was active. It wasn't until '09 that I knew about the content ofthe lawsuil

MR. BRENNAN: Your Honor, may I approach

the witness?

THECOURT: Yes,youmay.
MR. SEIGENBERG: Can I
showing him first.
see what vou're

MR. BRENNAN: It's the aganda of April

2007.

I,

MR. SEIGENBERG: Can I take a look? MR. BRENNAN: Yes. MR. SEIGENBERG: Thanks.
(Counsel reviewing document.)

Mr. Daquay, I'd like to show you a document that's

entitled, "agenda" for the

April 1 lth, 2007 meeting

-9J-

2 Q Wtals

ofthe board ofmanagers, and ask you ifyou will look at paragraph 28.
"No update on lawsuit."
Firut, do yourecognizethatas an agordaofmeeting? Yeah. Were you on the board at that time? Yeah. What is the topic identified in paragraph 28? It says, "no update on lawsuit." What is the date of that? That's

4Q

5
6A

7
8Q

April, 'l l.
At what point in time was Mr. Bouffard doing his investigation at city hall on behalfofthe board of
managers?

9 10 A 12 13 I4 Q 15 16 A 17 Q l8 A 19 Q 20 2l A 22 Q 23 24
11
NOTES

Iwould sayfrom -towards theend of'09,probably

starting in October or November, maybe, or it could havebeen August. As a member of the board of managers, the board keeps minutes; is that correct?

At the meetings, yeah.

At the meetings. Do they post The monthly meetings.

- they generate agendas as to whatthe topics are going to be at a meeting? Right. And yourtestimonyis thatyou were unawareofthe lawsuit until the fall of2009. when vou retained Attomey Watsky?

l0 Q 1I A 12 Q 13 14 15 A 16 17 Q 18 A 19 Q 20 A 21 22 23 24

April

1, 2007.
a

Would it be fair to say that

lawsuit?

prior board

of

managers meeting, there was some question about the

Oh, yeah. But this lawsuit's not the one that wete

talking about.

All right. Which one are you talking about?

Thisonehere?
Yes.

Well. we had a lawsuit with one of the unit owne$ to

get into his unit

to

- because there was

contamination probtems, mold problems. And I believe that's the lawsuit that theyte talking about there. We also had - because

ifs a resident

issue, we also

-94 -

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BORDEN LIGHT #254067 Vor,.I

tlt9no
1 A Oh, I'm sorry. 2 Q Mr. Daquay, I'd like
to show you minutes of a meeting

had lawsuits when we were trying to collect condo

So, your best recollection is that that reference on

that agarda is not to this case? No, no. It wouldn't be a resident.issue. We would probably put it in another area. But this lawsuit

5A

6 7 8 9
10

hereisaboutresidentissues. Itwouldbeoneof
those two, and you could probably go to a number

of

meetings, because that thing went on for over a year.

Okay. Thankyou. MR. BRENNAN: May I approach the witness, Your Honor? THECOURT: Yes,youmay.

l1 12 13
14

Mr. Daquay, Id like to show you some board m'inutes fiom

a

l5 16 l7 A Q 20 A 21 Q 22 23 A 24 Q
18 19

meeting, May 13th, 2009, and ask

if you will

directyourattantiontoparagraphtwo. Putacheck
mark there. Okay.

Haveyou had anopportunitytoread that?

Yes.

Now, would
Yes.

itbefairto saythatthatparagraph

references the wall construction bv the Marina?

And in the vicinity of unit 301, which was owned by

3 4 5 6A 7Q 8 9 l0 ll 12 A 13 14 Q 15 A 16 Q 17 A 18 t9 20 Q 2l 22 23 24 I A
2Q

from June 3rd, 2009, and I would ask ifyou would look at the paragraph I have checked off, artitled, "Marina."
(Witness reviewing document.) Okay.
Based on the minutes of

the - and I'll double check

the meeting time, of June 3rd,,2009, which you've

just referenced, does that refresh your memory that the board ofmanagers discussed the wall and the
fence being constructed by Borden Light Marina?

Itappearstobe, though that's notmethat

theyte But do you recognize these Yeah. Correct. -theboardofmanagers?

Yes.
as minutes

of

MR. BRENNAN: I apologize, Your Honor. I didn't flag that one. Mr. Daquay, from
a board

September 12th,2009, and I

of managers meeting of will direct your

attention to paragraph D on the top ofpage 3, and

I'll ask you if you will take a minute of your time

to just read that paragraph.

-99-

I
2A 3Q

Sharon Cnace?

Which paragraph was it? Thetopparagraph.

Yes.

Correct.
Does

it say that when - the last sartence says,

3 A Thisonehere?

4 5 6

"Paul said you

will call John and Mike on what's

4Q
6Q

going to be done with the wa11." Who do you

understand Paul to be?

5 A Okay.

(Witness reviewing document.)

Do you recognize this documents as being minutes

of

7A

Paul Beatty.

8Q

9 A 1l Q L2 l3 14 15 16 A 17 Q 18 A I9 Q 20 21 A 22 Q 23 A 24 Q
10

And itsays, "Dannywill also go byand inspectthe wall area." Who do you understand Danny to be?
The other board member, Dan Vevieros. Vevieros,

lm sorry. Would it be fair to

say that

the minutes certainly reflect that on May 13th, 2009, the board ofmanagers, the governing body

ofthe

condominiums, were discussing the wall construction -Yeah.

- that's reflected in the minutes?

Yeah. So, certainly the board of managers had knowledge the wall construction at that time?

of

Well, we were watching

it going

up.

Evayday,yousaid. Yeah. Thatwasprobably There's no question.

7 the board of managers meeting? 8 A Yes. 9 Q Thedate on the meeting is September 121hof2009? 10 A Ididn'tseethat. Septemberl2th,yeah. 11 Q Is it fair to saythatbased on yourreview of these 12 minutes, that Paul - who do you understand Paul to 13 be? 14 A Paul Beatty, one ofthe managers. 15 Q - states that, "until all theretaining wall is 16 done, you will not replace anything." 17 MR. SEIGENBERG: Objection, Your Honor 18 Thedifficulty -iflmaybeheard,thedifficulty 19 with these things is what they discuss at board 20 meetings, while it might be relevant that the board 2l was discussing the excavationand construction 22 projecq which we would stipulate to, but to the 23 extent he's asking what an individual board member 24 may say at the meeting - 100-

-98NOTES:

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14 Palmer Avenue I)anvers, Massachusetts 01923

Phone: (978)

777-5802 FAX:

(978) 777-5803

LANDING
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fees.

BORDEN LIGHT #254067 VoI,.II

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Oh,

had lawsuits when we were trying to collect condo

So, your best recollection is that that reference on

lm sorry.

2Q

4
5A

that agarda is not to this case? No, no. It wouldn't be a resident issue. We would probably put it in another area. But this lawsuit
here is about resident issues. It would be one

3 4 5
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of

Mr. Daquay, Id like to show you minutes of a meeting from June 3rd,2009, and I would ask ifyou would look at the paragraph I have checked off, entitled, "Marina." (Witness reviewing document.) Okay. Based on the minutes of the - and I'11 double check
the meeting time, of June 3rd,2009, which you've just referenced, does that refresh your memory that theboard ofmanagers discussed the wall and the fence being constructed by Borden Light Marina?

6 7 8 9
10

of

those two, and you could probably go to a number

meetings, because that thing went on for over a year.

Okay. Thankyou. MR. BRENNAN: May I approach the witness, Your Honor?
THE COURT: Yes, you may.

l1 lZ 13
14

8 9 l0 1l
12

13 Q A 16 Q l7 A l8 19 20 Q 2l 22 23 24
14 15

Mr. Daquay, I'd like to showyou someboardminutes ffom

a meeting,

Itappearstobe, though that'snotmethat theyte Butdo you recognize these as minutes of Yeah. Correct. -theboardofmanagers?
Yes.

l5 16 17 A Q 20 A 21 Q 22 23 A 24 Q
18 19

May 13th, 2009, and ask if you will

directyourattantiontoparagraphtwo. Putacheck
mark there. Okay.
Have you had an opportunity to read that?

MR. BRENNAN: I apologize, Your Honor. I didn't flag that one. Mr. Daquay, from
a board

Yes.

of managers meeting of

Now, would itbe fair to saythat thatparagraph

references the wall construction bv the Marina? Yes.

September 12th,2009, and I

will direct your

attention to paragraph D on the top ofpage 3, and

And in the vicinity of unit 301, which was owned by

I'll ask you if you will take a minute of your time tojust read that paragraph.

-97 -

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Sharon Grace?

Which paragraph was it?

The top paragraph. This one here?
Yes.

Correct.
Does

2Q
3A
will call John and Mike on what's

4 5 6

3Q

it say that when - the last sentence says,

"Paul said you

4Q 6Q

going to be done with the wa11." Who do you

understand Paul to be?

5 A Okay.

(Witness reviewing document.)

Do you recogrize this documents as being minutes

the board ofrranagers meeting? Yes.

of

7A
8Q 9 l0 A 1l Q 12 l3 14 15 16 A 17 Q 18 A I9 Q 20 2l A 22 Q 23 A 24 Q

Paul Beatty.

7
8A 9Q
10

And itsays, "Dannywill also go byand inspectthe wall area." Who do you understand Danny to be?
The other board member. Dan Vevieros. Vevieros,

Thedate on the meeting is September 12thof2009?

lm sorry. Would it

be fair to say that

the minutes certainly reflect that on May 13th, 2009,

the board ofmanagers, the goveming body

ofthe

condominiums, were discussing the wall construction -Yeah.

- that's reflected in the minutes?

Yeah. So, certainly the board of manage$ had knowledge the wall constnrction at that time?

of

Well, we were watching it going up.

Evay day, you said. Yeah. That was probably There's no question.

A Ididn'tsee that. September l2th,yeah. 1l Q Is it fair to saythatbased on yourreview of these 12 minutes, that Paul - who do you understand Paul to 13 be? 14 A Paul Beatty, one ofthe managers. 15 Q -states that, "until all theretainingwall is l6 done, you will not replace any'thing." 1'7 MR. SEIGENBERG: Objection, Your Honor 18 Thedifficulty -iflmaybeheard,thedifficulty 19 with these things is what they discuss at board 20 meetings, while it might be relevant that the board 2l was discussing the excavation and construction 22 project, which we would stipulate to, but to the 23 extent he's asking what an individual board member 24 may say at the meeting -100-

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was completed, meaning the wall that Borden Light

THE COURT: Yes, it's hearsay, it is. MR. SEIGENBERG: It's irrelevant because it's only of the board. THE COURT: Well, I mean, what the board whether the board took action. it's relevant.
a vote

Marina I don't think that's what that means there. Why

3 ^ 5

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don't I read that again?

Certainly.
(Witness reviewing document.) Where it says, "Paul, until the retaining wall is done, he will not replace

6
7 8

MR- SEIGENBERG: It's agreed. THE COURT: Not what individual members mav
have said.

7 8
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anything." Corect.

9 10

MR. SEIGENBERG: Thank you, Your Honor. MR. BRENNAN: Your Honor. the witness has identified the individual at a meeting of the board of managers, and the minutes of the board reflect that a board member as participating in a discussion of
the board said

ll
l2
IJ 14 15

until all the retaining wall is

the

done, he

will not replace anything, referencing

l6
17

fence. So, it's certainly relevant. THE COURT: It's hearsay. I don't know who took those minutes. This is not based upon a
transcript.

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21

MR. BRENNAN: But the witness has identified these

as the minutes

of the board of

22

managers of which he's a member.

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THE COURT: But they're minutes, that's all it is. There's no record ofa vote. or is there?

l0 A l1 12 3 14 15 l6 17 Q 18 A 19 Q 20 21 A 22 23 24
1

Ithinkwhatthey're talking aboutis that Borden

Light Marina wasn't going to put up
a fence,

which we

were concemed about because ofthe steepness ofthe

slope, that people would fall off, especially kids. And I think - the way I interpret that is, that

Bordan Light wasn't going to take any action to our complaint.

fix

Until the wall was done? And thafsprobablywhat theysaid, yeah. So, the board had knowledge ofthat statementby
Borden Light Marina as reflected in those minutes?

Yeah, And at that time, on September l2th, the wall was probably three weeks from being completed,
because they had two crews and going very fast. Because I know by October,

it was pretty much done, I

r0l -

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MR. BRENNAN: It'sjustminutes. THE COURT: So, it's discussed. I think

the content ofthe discussion is not evidence, but
the minutes. Just the topic.

I
2Q

think.
It was completed with full knowledge of the board

of

Mr. Daquay, do you have anyrecollection ofattending

the minutes

6 7
8A

of - Im

sorry, the meeting

of

September 12th,2009? I attended every meeting except for one, over my

seven years. So, I must have attended that one.

9 I0 Q 1I 12 13 14 Q 15 16 17 18 19 A 20 Q 2l 22 A 23 Q 24

Do you have any recollection of the board of managers discussing not taking any action until Borden Light Marina had completed the wall construction?

MR. SEIGENBERG: Objection, Your Honor. Doyou,personally, haveanyrecollection? MR. SEIGENBERG: It's
a

discussion. It's
as

not a note -- the question; I'm sorry, Your Honor.

THE COURT: He can testify

recollects was discussed by the board. Can you say thatagain?

to what he

Yes. Do you havearecollectionofattendingthe

board of managers meeting on September 12th,2009 -

Yes.
- in which there was discussion by the board members that the board would take no acfion until the wall

3 managers? 4 A Well, we knew it was going up, yeah. 5 Q Now, you testified that you felt threatened by 6 Michael Lund? 7 A Thatonetime,yes. 8 Q What did you do about that? 9 A Nothing. 10 Q You mentioned traffic incrsase in the souther'ly end II of the Marina property now that the wall has been 12 completed; is that correct? 13 A Yes. 14 Q Do you believe the traf{ic, automobile/truck haffic 15 to b within the 20-foot easement? 16 A I'm not sure. What youle asking me is that - is 17 the roadway within the 20-foot easement? l8 Q Doyouknow? 19 A Not without measuring it, because the roadway is more 20 towards the water, you know what I'm saying? 2l Q Conect. 22 A I know the boat storage is within. I don't know 23 where that line is, how close it is to the road. 24 Q Noq the other thing that you mentioned on direct
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Engineering in, I guess it was September or October

2 3

examination, as a member of the board of managers, you're concerned that people can't walk around the

of '09.
Based on your observation of those survey stakes, did

buildings now that the wall has been in place?

Yeah. Do you understand that - is it your understanding that under the easement that's at issue in this case, that Marina - I'm sorry, landing at South Park unit
owners can walk up and down the 20-foot easement; is

4A
5Q
6
7 8

you observe parts ofThe landing property on the water side, the seaward side ofthose stakes? The knding property, do you mean buildings

or -

that your understanding? what they did before. I won't disagree with that. So, you don't knov/? You don't know whether the easement gives them the right to walk? I know that the property line is probably two feet away from the building, and that the area they walked

10A All I can say is, that's

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15'

to

tt
18

in was in the twenty - probably in the 20-foot easement, yeah. Especially at the comer of the buildings, anyway.
But you're talking about The landing at South Park property line being two feet or whatever, you testified to. as off the comer of the A.

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20

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22
1A

In relationship to my building anyway.

23Q

Are you aware ofany encroachments ofThe Landing al South Park buildings onto

T1;:a

erceeffy?

8 9A l0 II 12 13 14 15 Q 16 17 18 19 A 20 Q 2l 22 23 24 A I Q 2 3A 4 5Q 6 7A 8Q 9 10 A l1 Q 12 13 14 15 A 16 Q 17 18 19 20 A 21 Q 22 A 23 Q 24

7Q

Buildings or patios, or air conditioning pads, or anlhing to the seaward side ofthe stakes?
It's

a*ful

close on

building

I 1, but you know, you

have to look down the site.

MR. BRENNAN: Thank you. I have no further

questions, Your Honor.

REDIRECT EXAMINATION (By Mr. Seigenberg:)

Sir, I want to get the time framework with everything

thatwasinvolvedhere. Youwereaskedduringcross
examination about a settlement agreement that was
dated in March Yes.

of2006: correct?

Withoutgoingthroughthespecificsofthat
settlement agrement, you are aware that there was a trigger effect of that settlement agrcement, were you

not. sir?
Yes.

to7

IA
2Q 3A
4

Yes.

What was your understanding as to the trigger effect

Which ones?
There's two air conditioning pads and a deck that

of that settlement agreement.

They had to get their building permis for the project in place. For how long did Borden Light Marina have to get their permits under that settlement agreement? Three years.

fve been told is

else?

a couple

of inches onto - into the

2o-foot easement.

6Q Anlhing
7
8

MR. SEIGENBERG: Objection. Obviously it's hearsay. Certainly it's his understanding. THE COURT: It's his understandine. That's all it is.
Q

Threeyears. So,theyhaduntilMarchof2009;
correct, sir? Correct. lt's also your unde$tanding that that settlement
agreement was going to deal

9
10

11

1) A 13Q
t4

Any other encroachments that you're aware of? No.

What is the basis ofyour understanding ofthose encroachments onto [-anding - onto Marina property? I've been told by Bert; I've been told by Mike t und. And ifyou look - and after we got the survey done, you can see where it's very close on that building

with the issues that were

involved in the land Court litigation by dismissal of this land Court litigation; correct, sir? Thatwas part of the agreement, yeah.
When did you, as aboard of managers, become aware that the trigger event, or the condition ofthis settlement agreement was not going to be accomplished

15A
t6 l7 l8

l0

or

ll.
ofat
any point in time, there being

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20
11

Are you aware

by Borden Light Marina?

Could you

any suwey marks, such as a

drill hole in any ofthe

cement pads for either the patios or the air

22

231.

conditioning pads for any unit owners? I don't know ofanything like that. All I know is, the survey markers that were put in by Mount Hope

Sure. AsaboardofmanagerofThelanding Yeah.

- when did you become aware that the trigger

event -

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to

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Was not going to happen? Was not going to happen; right.

relevant to this lawsuit is, it explains why The I-anding did not take any action relative to the land Court litigation until at least 2009. So, that's all I'm trying to go into, and that is relevant ean

2Q 3A

4 5 6 ? 8Q 9A 10 11 Q 12 13 14 A 15 16 Q 17 l8 19 20 21 A 22 Q 23 A 24 Q I A
2Q

Probably February of '09. I mean, I would say that once the economy tumed, I probably even had a pretty good idea that they - because who was going to build condo complexes during - but to say definitely is
one thing.

MR. BRENNAN: It's in evidance and we

briefthat one. THECOURT: Yes.

MR. SEIGENBERG: I agree, and I'm just trying to go through with the witness. THE COURT: It's in evidence.

I'm not looking I certainly had an opinion that it wasn't going to happen at a certain point, yeah.

When did youhavea definitiveunderstanding asto

the trigger evort not occurring? Would that have been the February, 2009? Yeah, yeah. I felt happen. So, givan

MR.SEIGENBERG: Well,Idon'tthinkitis,
though. It's not marked. MR. BRENNAN: Itis. MR. SEIGENBERG: Is it really?

it defrnitely wasn't going to

THECOURT: Yes.
MR. SEIGENBERG: I didn't realize it eot
added

thefactthatthere was a settlement agreement in effect that didn't end until February of
2009, did that in any way impact the actions or
inact'ions of the board of managers relative to this

in

Land Court litigation?

No, it had no impact.

Do you understand the question, sir? No. I'm sorry?

THE COURT: But you were objecting to questionsaboutthecontentofwhatitmeant. I was MR. SEIGENBERG: I didn't - and youYe

righttoraisethat,YourHonor. Ididn'trealizeit
was an

exhibit. I had it in my notes that it hadn't

been introduced even though we talked about

lll

it.

So,

-109I'mnotsure. I-etme tryto go throughitwithyou. Theboard of

managers enters into a settlement agreement -

great. So, I withdraw my objections

contents, because it's an exhibit. this through, though.

as to the

Irt

me try to get

3 4A 5Q 6 7 8 9 l0 lI 12 13 l4 15 16 17 l8 19 20 2l 22 23 24
NOTES

Right. - in March of 2006 that's going to resolve the [and Court litigation; correct?

So, you have a settlement agreement that's exhibit

5
6A 7Q

39, that was entered into byThe Landing; correct?

Yes.

MR. BRENNAN: Your Honor, I object. He's leading the witness. If he wans to ask the witness
what the settlement agreement means to him, that's

What was the understanding of The landing as to that l-and Court litigation that was pending, up until February of2009?

8 9
10

fine. Buthe's MR. SEIGENBERG: I already did that.

THECOURT: Yes.

MR SEIGENBERG: lf

I may, Your Honor.

All

I'm doing is rehashing what he's already testifred to, bringing the witness to a point where I can ask

him the question. I'll rephrase if you'd like me to,

though.

THE COURT: Well, I think you were the one

who objected to having the content ofthe settlement agteementdiscussed.

MR. SEIGENBERG: Your Honor, I'm happy to

enter

into - lm happy to enter it as an exhibit, this settlement agrement, if you would like. I just
said the only way the settlement agreemant is even

A Itreallywasn'taconsideration. l l Q Why is that? 12 A Because we didn't know what was in it. 13 Q Okay. 14 A What we mostly were concerned about were the other 15 things that were on the table in that settlement at 16 the time. 17 Q Noq you indicated thatin SeptemberorOctober, 18 that's when Mount Hope did their survey of the 19 property; is that correct? 20 A Yeah. 21 Q What other activities was The t-anding doing - was 22 the board ofmanagers ofThe landing doing or 2l discussing relative to the - this is in 2009 24 relative to the work that was being performed by

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Phoner (978)

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LANDING v BORDEN LIGIIT. #254067 VoL.II

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Borden Light Marina? This would be in the September time frame? No, in any time in 2009. Well, we were concerned with the wall, how close
was to get an idea

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DIRECT EXAMINATION (By Mr. Seiganberg:)

it

J i 5

a
a
A

Good aftemoon, sir.

A Good aftemoon.
Would you please state your full name for the record?
James Edward Holmes.

was. We wanted to find out where the property line

ofhow everything was fitting

together. We were concemed about our 20-foot going away, so to speak, in the whole southem end.
And this was all before September/October of 2009?

a
8 9

Mr. Holmes, what is your residential address?

Massachusetts

A It's 50 Robinson Creek Road, Pembroke,

eQ

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12 IJ

Are you currently employed, sir? Yes. Who are you employed with?

Yeah. Also, that license came up

license came

for

- the

9l

l0 A

up. We were trying to educate ourselves

ll a
13
1A

on all these fronts, on our property line, on what the Marina was doing, how it was affecting orn residents, how

t2 A Aegis Engineering Services, Inc.

THE COLIRT: Speak up a little bit, please. THE WITNESS: I'm sorry.

t4 l5 l6
t7
18

it was affecting our property line, the entrance, you know. Tliere were a lot of things going on. We were trying to get up to speed. So, that was our frame of mind. Thafs what we were
We were talking about getting lawyers.

l)
16

THECOURT: Thankyou.

A Il's Aegis Engineering Services.

t7 a And you spell Aegis how?

doing.

t9
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l8 A A.E-G-I-S. l9 a What is your position

20

at Aegis Engineering?

2l
22
23

too. We had our flood elevation problems that a lot ofour residents
There were other things going on, were facing, and we had to get Mount Hope Engineering

I'm a structural engineer.

Sir, could you tell us your educational backgror.md?
Science and a Master's

2l a
22
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aA

A Yes. I have a Bachelor's of

Polvtech Institute.

to solve that problem. So, there was a lot

of

of Science in civil engineering, both from Rensselaer

24

activity going on that we were trying to get our

- 113 _

-i15I Q What year did you graduate with your Bachelor's from 2 Rensselaer? 3 A 1998. 4 Q And once again, your degree was what, again, sir, a 5 BSin 6 A Civil engineering, with a concentration in structural 7 engineering. 8 Q You also indicated you obtained your Master's also 9 from Rensselaer Polytech? 10 A Yes. 11 Q What year did you obtain your Master's? 12 A 2000. 13 Q Specifically, what was that Master's degree in, sir? 14 A Same thing. Civil engineering with a concentration 15 in structural engineering. 16 Q Mr. Holmes, can you tell us your work experience? 17 A Yes. Since2000, I'veworked atvariouscompanies l8 doing structural engineering senrices, be it design 19 ofstructures, analysis ofstructures, field 20 monitoring to make sure that things were constructed 2l as per plans. That includes residential, commercial 22 properties, various materials, wood, concrete, steel, 23 basically anything that, you know, the common 24 building materia'ls that structures are constructcd -l16-

I 2 3 4 5 6 7 8 9 l0 II 12 l3 14 15 16 17 18 19 20 21 22 23 24

handles on, you know.

MR SEIGENBERG:

Thank you, sir.

THE COURT: You have no further questions?

MR.BRENNAN: No. THECOURT: Okay. Youteexcused.

(Witness stepped down.)

THE COURT: We'll take

and when we come back, we

a break

for lunch,

will have -

in at

two. If we

MR. SEIGENBERG: Mr. Holmes. He's coming have additional time, we have some

other things we could do for the court.

THE COURT: Okay. Well, lefs come back at

quarter oftwo?

MR. SEIGENBERG: That's fine. THE COURT: Quarter of two. MR. SEIGENBERG: Crreat, great. Thanks
(Lunch Break)

MR. SEIGENBERG: With the court's permission, can I proceed by calling James Holmes?

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

THECOURT: Okay.
JAMES HOI},IES

****++*******

(Witness swom.)

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What was your position at Gale Associates?

3 4 6
8A

if you would, tell us the employers that you've had since 2000. Is that when you
Can you tell us, commenced your employment?

Also

a prqiect engineer doing design of commercial

3 4
5Q

and residential properties, building evaluations,

things like that.

5 A Yes. From 2000 to 2004, it was Engineers Design

Group ffom Cambridge, Mass. From 2004 to 2006 -

You were with Gale Associates until 2008; is that

correct? I'm sorry. And after 2006, who were you employed

6
8Q

7 Q kt'sjustslowdownasecond.
Yes.

I'msorry.

7 A Until 2006.

A Engineen Design Group. 1l Q They're in Cambridge, Massachusetts; conect? 12 A I believe they're in Medford now. They were in 13 Cambridge when I was there. 14 Q What was your position at that company, sir? 15 A Project eng'ineer. I wasn't licensed as a structural l6 engineer yet, so my title, it was a project engineer. l7 Q Andsir,areyoucurrentlylicensed 18 A Yes. 19 Q -inanycapacity? 20 A Yes. 2l Q What are your licensures in, sir? 22 A, A, licensed structural engineer in the state of 23 Massachusetts. 24 Q When did you obtain your license, sir?
10

9Q

The first company was what, again, sir?

I

I
10

with?

A Iwas

-during2006,twocompaniesduring2006. I

t 12 13 14 15 16

had pre-stint with Ocean and Coastal Consultants out

of P1)rnouth. And I spant the summer in the field

doing construction monitoring, making sure that a waterfront sffucture, a seawall, was built appropriately, as per the design, and also to address
any issues that came up in the field.

20
21

17 Q Where was that seawall located? 18 A Everett, Mass. 19 Q And specifically, whatdid you torelative to that
seawall, again, sir?

It was basically full-time on site resident

angineering, to make sure that things were built as per the plans, and I had also - it was a fairly

22 23 24

complexjob, so there were also a lot ofissues that

-1t7 1

-l19I came up as the construction went along, things that 2 couldn't be foreseen in the design phase. So, I was 3 sort ofthe point ofcontact there when they had a 4 specific question regarding the structure, questions 5 that needed to be addressed, fixes that needed to be 6 done. I would handle those. 7 Q From a structural engineering 8 A Yes. 9 Q - perspective? l0 A Yes. 1 I Q Have you been involved in any other coastal-type 12 projects? 13 A Yes. Ive actually - later in 2006, I worked at 14 Coastal Engineering Company in Orleans, 15 Massachusetts. I did a lot of work on Cape Cod. So, 16 we've done a lot of seawalls, retaining walls, things 17 like that. So, yeah, I do have experience doing 18 waterfrontstructures. I 9 Q Once again, either constructing or evaluating the 20 structures from a structural engineering component? 2l A Yes, or monitoring. 22 Q Or monitoring. 23 A Yeah. 24 Q What was your next emp'loyer, sir? -t20-

A h

2006.

2Q

What's the requirements in order to obtain that

license?

3
4A

You need to have a minimum number of years

of

5 6 ? 8 9 10 11 12 13 14 Q A Q 18 A 19 Q 20 A 21 Q 22 A 23 Q 24 A
16 17
NOTES

service, I believe it's four years ofworking in the industry, before you can apply to take the test. At that time, you have to apply, have references from employers who attest to your ability at that point,
at which time you're allowed to take the professional

engineertest. It'saneighthourtest,andupon
passing that, youte granted licensure in whatever

field you've taken the test in, you lnow, civil or

sfructura'I, environmental. There's all the different

fields. And the testyou tookin, was it2006?

Yes.

15

Thatwas forstructuralengineering Yes.

- correct?
Yes.

After 2004, who was your employer?

Gale Associates, and theyte out

of -

G-A-L-E? G-A-L-E, in Weymouth, Massachusetts.

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Adjustment.

After that, Aegis Engineering, where I'm currently

employed.
Where is Aegis Engineering located, again?

And they are an adjustment company for an insurance

cornpany; is that correct? Yes. What insurance company is that,

3Q

4A
5Q

Rockland. Massachusetts. What's your position at Aegis Engineering? Structural angineer.

As part of your employment at Aegis Engineering, tell
us the type

6A
7Q
8

ofprojects you've been involved with.

9A
10
11

We - what we do is, fororsic inspections of typically failures. My job is, any failure that
occurs that insurance corpanies want investigated,

t2 l3
l4
15

will go out there and gather all the information, all

the evidence, measurrnents, photographs, and

typically determine cause, you know, be it a failure of

a roof or a settlement, or a

wall failure,

lo
11

anything like that, fire damage, explosions from Hyde

l8 l9
20

Park. I'm very busy with now the adjacent properties. Things like that, where structurai
damage has occurred, determining the extent

of

damage, and potentially the cause of that damage.

2lQ
22

In your employment with Aegis Engineering, how many retaining walls have you evaluated? I would say probably about twenfy. And once again, from a structural component?

23

A.

24Q

3 4A 5Q 6A 7Q 8 9A l0 Q 11 A 12 Q 13 A t4 15 Q 16 A 17 18 19 20 21 22 23 24

if you know?

Philadelphia hsurance.
So, the first thing that you did is, you went up to the site; is that correct? Yes. What was the date you went up to the site, again?

March 4th. Couldyou tell us whatyoursitevisitrevealed?

Yes. Bytheway, Ithink Isaid 2009, before, when I was out there, it was March 4th of 2010? Was it'10 or'09?

2010. Yes. When I went out there I met with some of

the residents, and we looked at the damages to the units numbers 301 and 401.

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

going to testifu, it would appear, to damages to

units THE COURT: Well. he hasn't testified to

the damages to the

unit. He says that is what

123 -

he did

when he went out to the site. He looked at those

-t211

Yeah. Either movernent, failure, you know, collapse

versus movement, things like that, yes.

2
3Q

Sir, when did you firsthaveany involvement, ifany, with The l-anding property?

5A
6Q

My first involvement was in March of 2009, I believe.

Are you sure on the date?

7A

I don't know the exact date. It would be on mv report.

8
9Q

lmnot

Do you have your report with you?

l0 A 11 12 13 14 15 Q 16 l7 18 A 19 Q Z0 2l A 22 Q 23 24 A

Actually, I believe it is in my
permission, can

MR. SEIGENBERG: With the court's

hejust -

THECOURT: Yes.
MR. SEIGENBERG: Thank you.
Sir, could you look atyourreport and see
were first involved in this project?

if that

refreshes your recollection as to the date that you

I visited the sit on March 4th, 2010.

Priorto goingto thesite, was thereanythingelse

that you did relative to this project? Only just setting up the appointments. That was it.

And specifically, who retained you to go out to The landing?

We were retained by Friedline, Carter and Rotondi

1 units. So, that's fine. 2 MR. SEIGENBERG: Thank you. I understand 3 the court's understanding ofthe case, so, thank you. 4 Q Go ahead. 5 A So, we looked atthose units, and then afterwards, we 6 went out and took a look at the block retaining wall 7 that was recently constructed behind the property. 8 Q At any point in time, did you take any photographs of 9 inside. or l0 A Yes. I tookphotographs ofinside each unitofthe 11 site, and of the wall. 12 Q Idirectyowattentionto - it shouldbe overin l3 front ofyou, an exhibit book, exhibit 33. 14 MR. SEIGENBERG: If I may, Your Honor, 15 approach? 16 A Yes. l7 Q In the firstphotograph, sir, can you describe what 18 that is? 19 A This photographwas aphoto tlatlobtained, an 20 aerial photograph. I believe it was a camera called, 2l This Google Earth, a windows local aerial photograph 22 that showed the condition of the property prior to 23 construction of the retaining wall. 24 Q I see. And specifically, you have identified the
ta/

NOTES:

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KS COURT REPORTING

LANDING
I
2A
Yes.

BORDEN LIGHT #2s4067

you - are those your labels you

VoL.II tvgn0
I Q kt's talk about the top photograph. Can you tell us 2 what that photograph depicts? 3 A Itdepicts the location ofthe recently, atthat 4 time, built block retaining wall. 5 Q Does itshowsomeofThe tanding buildings, as well? 6 A Yeah, it shows the proximity of the units to the 7 wall, and it also shows the line ofexcavation as 8 shown by the disturbed soil. It's a little bit t harder to see in the black and white. 10 Q And you also made anotation, "newretaining wall 11 built closer to insured's property." Why did you 12 make that notation, sir? 13 A I was trying to illustrate the difference in the 14 location ofthe retaining wall versus the sloping 15 hillside that was shown in the previous photo. 16 Q kt thebottomofpage 2 there's a secondphotograph I7 What does that depict, sir? 18 A Itdepicts essentiallythe same as theprevious, 19 showing the location of the new wall, it's proximity 20 to the comer of 301. And it also shows that again, 2l that there was work being done behind the wall, based 22 on the tracks in the dirt. 23 Q That was my next - I know it's difficult, once 24 again, with the black and white here, but are there, I 2
3A

buildings that are depicted on that photogaph, sir?

Once again, I think

3Q

put there, sir?

Yes. So, specifically,

5A 6Q

sir -

7 8

MR. SEIGENBERG: Just to move this alono Your Honor.

- unit 31, thatwould be in building 3; is that your understanding?
Yes.

9Q

10 ll A 12 Q 13 A 14 15 Q 16 A l7 Q l8 19 20 21 A 22 Q 23 24 I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16
17

Do you even knowthat?

I'mnotsure whatbuildingnumbers. Ijustknowwhat these two units Fairenough.

-are.
Now, ifyoujustmove on, sir, the next page there's

acoupleofotherphotographs.
sir? Yeah. Can you te'll us

Thetopphoto$aph,

can you tell us, is that a photograph that you took,

what

THE COURT: Can I just

clarify - I'm

sorry. Did you say 2010, March, 2010 -

-125THE WITNESS: Yes. THE COURT: - was the first thing that you did, but you said you took this photograph? Did hearthat?

in fact - where are these tracks that youire referring to?

They are, as youte looking at the photo,just to the

MR. SEIGENBERG: I think he said he took the first photograph, Your Honor. I think he
indicated he got it from Google

or

THE WITNESS: Yeah, for that first photograph that was THE COURT: That you obtained from where? THE

WINESS: Ifs somewhere off of

the

intemet that has aerial photographs. THE COURT: All

right. I missed that. I

justwanted to clarify that. THE WITNESS: Because I wanted to try to get a sense ofwhat was there before.

And I'll clari$

it.

These second photos, these are

l8 19 A 2l Q 22 A 23 Q 24 A
20

second photos on page 2, sir, those are photos that

you took, though?

Yes.

Whendidyoutakethosephotographs? March4th,2010.
When you went out to the site?

Duringthatinspection,yes.

4 5Q 6A 7 8Q 9A l0 Q II 12 A 13 Q 14 15 A 16 Q I7 A 18 19 20 2l 22 23 Q 24

leftofthe white

fence.

And you understood those to be what, sir? I understood those to be from the work that was done to construct the wall. Now, ifyou go to the page 3 ofthatexhibit, sir Mm-hmm.

-thosetwo otherphotographs. Onceagain,thetop one that says, "blocks have shifted" Mm-hmm.

-did youtakethatphoto -these twophotographs,

as we1l, sir?

Yes.

Idid.

Whatdoes thetopphotographdepict,sir? lt's showing that the interlock between the concrete

blocksisnotatightinterlock. Andwhatthat
indicates to me is that either the wall was not

initially constructed properly, tight, with the locks in - the interlocks, or it was and has since moved,
forcing the displacement to occur.
What is the significance of any of that observation, sir?

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KS COURT REPORTING
14 Palmer Avenue

Danvers.

LANDING

V BORDEN LIGHT #2s4067 Vor.. I A Those would both indicate some instability in the 2 wall. If had moved after the fact that they were 3 constructed initiallytight, and nowthey're in this 4 position, it indicates to me that obviously the wall 5 has moved. and it's not stable. If it was 6 constructed in that position, again, that illustrates 1 to me some poor worknanship, in that tight interlock 8 oftheseblocksisrequiredforthewallto -for 9 it's strength. 10 Q And specifically, the wall that you observed, can you 1 describe the construction, not the quality, but the 12 type of construction it was. 13 A Yeah. Itwasbuiltusing, Ibelieve, six footby two 14 foot by two foot corrcrete blocks. 15 Q You saysix feetbytwo feetbytwo feet. That's six 16 feet 17 A Six feet long by two foot high by two footwide, 18 approximately. Asyoucanseeinthefirstphotoon 19 that same page, you know, it appears that at least 20 some of them have some interlock potential. I 2l couldn't verify that all ofthe blocks were 22 constructed like this. The blocks themselves, they 23 didn't appear to be part ofany sort ofa 24 manufactured system. These blocks to me looked like
1

rugtrO
I Aretaining wall this heightbycode, Massachusetts 2 code, is required to have an engineered design by a 3 registered professional, a civil engineer or a 4 structural engineer or a geotechnical engineer, 5 someone like that. And there was no indication that 6 that was done. 7 Q Well, you were talking about these were a different 8 type ofblocks, though. 9 A Mm-hmm. 10 Q What did you mean by that, sir? ll A Itindicates to me that it was notpartofa systm. 12 Like I said, typically there are systems where they 13 setout -thesearetheblocksyouuse,theseare 14 the geogrid reinforcing you use. They provide you 15 this information and the materials, and you build it 16 with that. This, to me, look like it was more of 17 just sort ofleftover block that was used. I mean, 18 you can see on that photo on the lower, you know, 19 there'ssomegraffrtietchedintothe 20 Q lrt's talk about the next photo on page 3, the bottom 21 one. 22 A Yeah. 23 Q What does that photo depict, sir? 24 A Again, it's just - it's demonstrating the unevenness
-131-

-129-

I 2 3 4 6

oftentimes they're poured on a construction - on a

concrete site, leftover concrete from trucks. They

I
2Q 3A

and misalignment of the wall.

typically will pour large blocks like this, and they get used for walls at times.
going to try to get back to that question, but you were describing how this wall was constructed -

5 Q Im

7 A Yes. 8 Q -butnotquality. 9 A Okay.

4 5 6 7 8
9Q

What's the significance, if any, of Again, it's similar to my explanation on the photo before that either the wall was not constructed even and aligned, and the interlocla that are therc are doing theirjob, or they were and the wall has since moved and become displaced and put into this position. From your experience sir, and your training and education, would you expsct to see a properly
designed wall with this type of misaligned blocl<s?

l0 Q l1 A 12 13 14 15 16 Q l7 l8 It 20 21 A 22 23 24
NOTBS

So, you had the

Yeah, had the

block. block, and I could see in between some

see them

10 1l
12 13

ofthe courses ofblock, I couldn't

extending into the high side, the
the wall.

all,

geofabric, or something thatresembled a geofabric,

A Q A A Q A

No, I would not.

hill

side behind

14
15
I

Nowsir, you indicated you talked to unitowners, you took a visit ofthe site; correct?
Yes.

What's the significance, ifany, ofthe factthatyou indicated that these blocks appeared to be not part

6Q

Did you speak to anyone else or go

part ofyour investigation, sir?

anyi;vhere else as

17
18

ofan angineered system, but where they were like, how did you describe it, concrete blocks that were just make at a concrete plant?

Yes. After inspecting the Foperty, I visited the

Fall River Building Department. Why did you go to the Fall fuver Building Departrnent?

l9
20 21

Right. Typically,blockretainingwalls are they're part of a fully engineered system. There are
various manufacturers that produce the blocks and
have their own desigr specification to go with them.

Iwas intsrested to
plans for this wall,

see

if

there were anydesign

22 23 24

if

there was anything that was

a

submitted to the building department. Like I said,

wall this height in proximity to the building needs

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KS COURT REPORTING

LANDING
1 2 3 4 6 7 8
10

BORDEN LIGHT #254067 Vor,.

ifany ofthose were available for

rugtr0
I
2Q 3A 4Q
hndings. On the geofabric; correct?
Yes.

tobeproperlyengineered. Theyshoutdhaveplans
and engineering documents submitted. So, Iwas interested to see

5Q

review at the Fall fuver Building Department. And based on your review at the investigation at the Fall River Building Department, did you, in fact, find out whether or not there are any plans as required?
There were not.

From your experience, as part of your investigation,

9A

I 12
I

Q A Q A

Now, you said that in a retaining wall of this nature, engineered plans were required to be submitted prior to the building inspector?
Yes.

13 14 15

Underwhat -isitacodeprovisionor Yeah. TheMassachusetts statebuildingcode,seventh

edition, under which this was constructed, section
1806.4, retaining wall design states, "Retaining

16 17 l8 19 Z0 Zl 22 23 24

walls that support unbalanced height ofretaining material $eater than six feet in any retaining system or slope that could impact public safety or
the stabilify

ofan adjacent structure shall be

designed by a registered design professional."

MR. SEIGENBERG: This is part of the

regulations that are part ofthe agreed upon

5 ifin fact you found out therc was an engineer who's 6 alreadymade an evaluation ofthe structural wall 7 that you were reviewing, would it be common pracf,ce 8 for you to contact that engineer? 9 A Yes. I 0 Q Now sir, based on your observations and inspections ll of this wall, the information provided to you, and 12 your education, training and experiance sir, do you 13 have an opinion as to the construction ofthis wall? 14 A Yes. It's my opinion that the wall was not built 15 properly. 16 Q And when you saythe wall was notbuiltproperly, 17 what do you mean by that? 18 A I mean, based on my observations of the misalignment 19 ofthe block, which indicates either it was not 20 initially built properly, or has since moved, and 21 discussions with Mr. lrffort, who informed me that 22 the geogrid reinforcing only extanded about two feet 23 behind the wall, in my opinion that's not sufficient 24 length to develop enough weight to hold the wall in
-135-

_133_
I

exhibits, Your Honor.

I
2Q
3A

place. In a concrete block retaining wall like

Yes.

a
A

So, in your professional opinion, this wall required engineered plans to be submitted? Yes.

this -

J
^

4Q
a

a
6
7 8 9 10

Did you determine whether or not

I was told that there was not.

building permit

5
6A

had been issued when you did your investigation?

a
A

Did you speak to anyone else, sir,

investigation?
I spoke to

as part

of your

Mr. trffort.

li a
IJ

Don

lrffort?

t2 A Don Lrffort at Northeast.

Why did you speak to Don I-effort?

I spoke to Mr.

t4
15 16

lrffort

because

our - my evaluation

was visual at the time we were asked to go out there, and based on what we can obtain visually to provide

7 8 9 l0 II 12 13 14 15 16
17

-whatis the significance, ifany, ofgeofabric to the structural soundness ofthe wall? A geofabric will - it locla in between the blocks and extends into the uphill side, and it works to use

ofall that retained soil, and the geogrid will hold all that soil together. And if the wall
the weight tries to move outward, tries to displace,

it

essentially has to drag that geogrid through all that

massofsoil. So,itessentially -you'reusingall ofthat soil behind the wall to help keep the wall in
place. So you need to have that geogrid extend far
enough that it catches enough ofthe soil trehind the

wall to hold it in place.

t7

our opinion. From speaking with some of the condominium residents, they had informed me that

This geognd, is it something that in the normal -

l8
19

Mr.

kffort

had also been out there to do some work.

8 l9
1

following proper procedure would be placed along each

row ofthe concrete blocks? depending on the design, on the height ofthe wall. It could be every - it could be every other cowse

20
1l

So, I contacted him to see what information he had

20 A Notnecessarilyeachrow. Itdepends -itvaries,

available regarding construction of the

understood he did test

wall. I

22 23
AA

pits.

He dug out behind the

wall to determine if the geofabric was present and the length of it. So, I spoke to him to discuss his

21 22 23
24

ofblock. Itreally -itdepends.

It would depend on the calculations?

-134NOTES

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14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

I A Yeah. There's no one answer to that. 2 Q In orderto determine the amountofgeofabric that 3 would be necessary to provide structural support for 4 a wall ofthis nature, how would a structural 5 engineer or a professional engineer determine that.i 6 A Well, he would have to take into account all the 7 various factors, the weight ofthe wall itself, the 8 soil conditions behind the wall. The various soil 9 conditions will play a large role in how much l0 geofabric you would need. Different soil conditions I1 exefi different pressures on the wall, so I would _ 12 in one that I was doing, I would employ a 13 geotechnical engineer to go out there and take a look 14 at the soils themselves, and tell me the various 15 properties ofthese soils that you need to know to 16 properly design the wall. 17 Q So, these are calculations that are 18 A Yes,yeah. 19 Q Are they based on state building code or engineering 20 standards? 2l A Engineering standards, definitely, yeah. 22 Q And is there - strike that. 23 You indicated earlier that a wall of this 24 nature based on the state building code had to be
- lJ I -

LANDING v BORDEN LIGHT #254067 VoL.

rlt9n0
I Based on your education, training and 2 experience and observation ofthis wall, sir, do you 3 have any recommendations as to what could be done, or 4 what should be done relative to this wall? 5 A My recommendation would be that this wall be removed 6 and either rebuilt - there,s many methods you could 7 do it, but rebuilt properly, or the hillside be 8 replaced back to it's original condition. 9 Q Aspart ofyour duties orservices, that,s not a l0 determination that you made, right, as to what was II the best course? 12 A No, no. I was not asked to determine a fix. 13 Q Sir, whatconcems, ifany, do you haverelative to 14 this wall as constructed? 15 A Based on myobservations and potential movernent, I i6 would be concerned prirnarily with further movement of 17 that wall and potential failure, collapse. l8 MR. SEIGENBERG: Thankyou. Ihavenothins 19 furtherofthiswitness, yourHonor. 20 THE COURT: Mr. Brennan. 2I CROSS EXAMINATION 22 @y Mr. Brennan:) 23 Q Mr. Holmes, the use of a segmented block wall under 24 certain circumsiances and designs is an accepted
-139-

.l:

''|.

I 4 5
2A 3Q

engineered, that is, with engineering plans. Yes.

I
2A

engineering design; is that correct?

Yes. So, the use ofasegmented blockwall in this area, this location in which youVe inspected the wall, the fact that it,s cement blocks doesn't make the wall

As partofthatengineering, would oneofthe requirernents be to determine the amount of geofabric

that was necessary? Yes.

6A

-8

7Q

Did you see any tlpe calculations when you went to the building inspector?

4 5 6 9 l0
11

3Q

bad; is that correct? Conect.

7A

9 A No, nothing. l0 Q Sir, underthe statebuilding code, would itbe II appropriate for a non-engineer to do those 12 calculationsthemselves? 13 A No. 14 Q Alandowner? 15 A No. Ithastobealicensed,registereddesign l6 professional. 17 Q So,sir, based on youreducation, trainingand 18 experience and observations ofthis wall, do you have l9 an opinion or not whether this wall is structurally 20 sound? 2l A Yeah. I don't believe that it is. 22 Q As partofyouranalysis, did you make any 23 detffmination as to what could be done _ strike 24 that. l,et me withdraw that question.
-138_
NOTES

8Q

12

13
14 15

A Q A Q A

Now, did you inspectthatportionofthe blockwall that nrns approximately from building 4, southerly to the entrance to the Marina property? I'm not sure which direction south is. I,m sorry. Well, if your back was to the bay, and you were looking at the condos, south would be to your right.
Yes.

16
17

Howmany - is itapproxirnately500 feetofblock wall thatyou inspected? Idon'trecallthelength. Based on thephotograph,

l8
19

thatlook -

Did you inspectanyrhingnorthofbuilding4?

I went as far as the block wall terminated. I believe it terminates at a sheet pile, a steel sheet

20 A

2l 22
23 Q

pile wall.
So, yourresponsibilities were to lookat thatblock wall, and I'mgoing to saysoutherly, ifyou now

24

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KS COURT REPORTING

LANDING v BORDEN LIGHT.#254067 VOL.II

I
understand I understand. Yes. - the direction. And you didn't look at anything
else, the other wall going north, past that point.

tugn0
I would attempt to locate, I would say, two laye$.

3Q 6Q
7 8

No. Now, do you have - in the course of your investigation, did you make any determinations as to
where a property line

2Q 3A 4Q 5A 6Q
7 8

And then make an assumption based on what you Yes.

- found in the first two layersr

Yes.

Givor a length of a wall, and let's use 500 feet, averaging tor feet high, how many holes would you
dig, looking for the geofabric along that lineal length of 500 feet?
I would - a 500 foot length of wall, I would probably, to get a general idea of the placement the geogrid, I would probably dig at somewhere between four to six locations. What would determine whethelit was four or six?

was -

9A loQ

No.
- between the Marina and The tanding?

10A
1l

llA
l3

No, sir. back and forth across the top of the embankment, over the retaining
Yes.

of

12Q Did you walk

wall -

t2 l3

14A
15Q

14Q

- I should say.
Yes.

15A
lo

16A
17Q
l8 l9
20
21

It could just be the budget. It could just be as simple as that, how much money they're willing to
pay, some site logistics. I mean, I can't tell you

When you spoke with Mr. strike that.

trffort,

he indicated -

l7 l8

sitting here right now. Well, you're familiar with the site?
Oh, yeah.
So,

Ifyou were going to do an investigation

into an examination as to how much geofabric might be
present on a particular wall of 500 feet in

))a
23Q

length -

Mm-hmm.
- how would you go about that investigation?

leQ 20A 2lQ 22A

23Q

givan - assume for a moment that -

Yes.

- you're doing this investigation for a person who wants to limow and hasn't given you a budget.

24l.
I Q
2A 3Q

To determine how - I'm

sorry,;; determ;ne

if

r43 The existence Yeah.

I A
2Q

Okay. I'm not saying, go to an extreme. Go to whafs acceptable engineering practices along a 500 foot wall with costs not being a factor.
I would probably go somewhere between - maybe every

-non-existent Yeah.

3 A No,Iunderstand.

4A

4Q

5 Q - orextort of geofabric behind aretaining wall. 6 A I would dig test pits behind the wall at ceriain

5
6A

7 8 l0 ll A 12 Q 13 A 14 Q 15 A 16 Q 17 18 A 19 Q 20 A 21 Q 22 23 24
NOTES

intervals to determine

if

- to see what was there,

see what

basically,justto dig up and

length -

9 Q Now, do you go down to the

Atthebase?

- and look for the first

rowofgeofabric, ordo you go down to the second - row? Well, starting from the top. Yeah.

I'll say the top is the first and go down.

Okay.

Ifyou were digging from the top, would you dig down in an effort to find the first length ofgeofabric?
Yes. Yeah, I would, at minimum.
Would you go beyond that? Yeah.

Ithinklwould. block, how

So, on a wall that's approximately ten feet high, made out of two-by-two-by-six foot cement

far down would you go in order to form a professional opinion as to how much geofabric was behind a wall?

7 8 9 l0 Q II A 12 I3 Q 14 15 16 l7 A 18 Q 19 20 2l 22 23 24

seventy-five feet or so. I think that thafs - I

thinkanythingcloserthanthat,youjust probablyjustaskingforrepetition.
Well, say six holes, then?

-you're

Yeah. I don't think - I think an).thing more than thatwould be excessive.

You mentioned that

that based on your observation

ofthe cement blocks, you formed an opinion that they

were not what you referred to as, "aTgineered

blocks:" is that correct?

Right. Partofanengineered system,yes.

Anengineered systernis atotalpackage. And what
makes a block suitable for an engineered package?

MR. SEIGENBERG: Excuse me, Your Honor.

Just for the record. he nodded. I don't think there was an audible answer.

THECOURT: Okay. THE WTNESS: Sorry.

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KS COURT REPORTING

LANDING
1 2
3A
Yes.

BORDEN LIGHT #2s4067 Vor,.I

tu9n0
I 2 3 4 5 6 7 8 9 10 11 12
13
taking it down and rebuilding it, were you rpferring

MR.SEIGENBERG: Youstillneedtoeivehim
your answer.

toby "many other methods?"

MR. SEIGENBERG: Otrjection. That's not
what the witness testified

4 5
6Q

THECOURT: Yes.
MR. SEIGENBERG: Thank you, Your Honor. What makes a cement block suitable for an engineered
package?

to. That's a misstatement

of the witness'testimony, Your Honor. THE COURT: Yes. That's not what I
remember.

7
8A

What makes it suitable is that

it's - it's part of

MR. SEIGENBERG: He did not say that.

THE COURT: Objection sustained. MR. SEIGENBERG: Thank you, Your Honor. MR. BRENNAN: I don't take very good notes, I guess.

9 10 11
12

an entire system where the block is designed to work

in unison with the geofabric, with the footing. With the soil mass it's all - it all works together.

13 14
15

Q A

So,

howis it that you can tell by looking at a

block, whether ornot it's suitable for an engineered

system? The systems that I'm referring to are

14 i5
16 17

Q A Q A Q A Q

If you did testify that a way to remedy this wall, in your opinion, would be to take it down and rebuild

it? Didyoutestifyto
Yes.

that?

16 l7 I8
19

pre-manufactured block from a manufacturer; they're

delivered. And the block that I see here looks like it was just site cast, poured on site.

18
19

Now,thatwouldbeto address thestructural integrity ofthe wall; correct?

Yes.

Q So, it looked a little rough? A Yes. 2 1 Q Does that mean that ifs not suitable for integrating 22 into a segmented block wall? 23 A No. Ifall theotherparts areproperlydesigned,it 24 could.
20
145

20

Areyou awareofanyothermethods thatcould be

utilized or onployed in order to address what you
opine as structural integrityofthe wall?

2l 22
23 24

Withoutremoving Yes.

-147-

I Q 2 3 4 5 6A 7Q 8 9 l0 II A 12 13 14 Q 15 16 A 17 Q 18 19 20 2l A 22 Q 23 24
NOTES

You testified abitaboutthe heightofthe wall, and would it be fair to say that if a segmented block wall is constructed so
as not to exceed a

2
5 6 7 8

I A

- without taking the wall down and reconstructing

ir? Yes.

particular

height, that it could be a straight gravitywall, and not require geofabric? Would that be ffue?
Yes, it's true,

3Q 4A

The only one that comes to mind immediately is somehow buttressing the wall from the 1ow side, basically where the boats are being stored, to prevent the wall from being pushed outward further, to basically - to buttress the wall. You have to bear with me here. When you say, "buttress the wall," would that be by sheathing, for example, or some other method? How would you buttress the wall from the bay side, let's say.

itcould.

Now, is there a height requirement for getting into geofabric? Forexample, could you do what I'll refel
to as a gravity wall up to maybe six feet without geofabric? It's a possibility. Again, it depends on a lot

9Q

of

different factors, soil conditions, things like that. And that would be up to the engineer to determine. So, there isn'tan automatic heightthattriggers geofabric? It's an engineering determination? Yes,sitespecific,yes.
You were asked on direct examination - you were
asked a lot of things. I-et me find my notes.

10 l1 12
13

You could install a sheet pile in the wall, or

Oh, your recommendation was that the wall

be taken down and Yes.

14 15 16 17 l8 19
20 Q

actuallypmviding at certain intervals, a large wall, basicallyperpandicular to the retaining wall,

it will restrain it from moving forward. ifyou will, just to keep it from moving the - from pushing
so that

Basically, a large, heavy structure, outward.

rebuill is that correct?

Would lowering the wall be an option? Yeah, lowering the wall would reduce the forces and
the pressures acting against the

You mentioned that as one possible solution to a wall that was not structurally sound. And you mentioned that there were many methods. What, other than

2l A 22 23 24

wall. Again, I

don't know how far you'd have to lower it, and how that would affect the foundations nearby ofthe

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I condominium. 2 Q Thatwould be an engineering calculation? 3 A Yes. 4 Q So, it may be that you would have to lower the wall 5 and move it further on to the Marina property, for 6 exarnple, in order to address that concem? 7 A lt'sapossibility. 8 Q Itwould be increasing the slope? 9 A I'm sorry. Excuse me? l0 Q If you lowffed the wall and you moved it closer to 11 the water, or further onto the Marina property, 12 that's a possible solution? 13 A lt's possible, yes. 14 MR. SEIGENBERG: Objection, Your Honor. 15 I'm not so sure we're dealing with possibilities in a 16 court of law. We ganerally deal with probabilities l7 or18 THECOURT: Well,youopenedthedoorto 9 that. You asked what the options were for correcting 20 the situation. So 2l MR. Seigarberg: I withdraw my objection, 22 Your Honor. I appreciate that. I take it that's 23 overruled. 24 THE COURT: Overruled. -t491

I tlt9n0
I 2
3A
would that impact the struc - how would that.impact, if at all, the structural stability of this watl? Thedesignstrength,theactual strengthofthe
concrete, I would not expect to be a factor in this. It's more stability of the wall, whether it's going to overtum, whether it's going to slide, whether the blocks are going to - the interlocks are going to

4 5 6 7 8 9 l0 II
12

fail.

The PSI, the design strength, the pounds per

square inch, the stratgth

ofthe concrete, that would

basically be crushing on the concrete, under ifs own

13 14 15
16 17

weight. lt's not really an issue in my opinion. Nowsir, you were also asked during cross examination about test pits. As part ofyour - were you aware,
by speaking to Don performed?

Irffort,

how many test pits he

l8 19
20 21

A No,Iwasnot. Q You indicated A Q

Yes.

that in your mind, the appropriate amount, givor this length ofwall, would have been

between four to six test pits, total; correct? What results - strike that. What impact,

22 2l 24 I
2A

if any, would the results of

these test pits have on your determination as to the

amount of test pits? Do you understand the question?

-151[,et me rephrase.

I Q 2 3A 4Q 5A 6Q 7 8 9A l0 Q II 12 A 13 14 15 16 11 18 19 20 Q 2l 22 23 A 24 Q
NOTES

You did not do any geotechnical investigation, for example, No.

testanyofthesoilsthatareoutthere -

No, Idon't.
thequestion.

3 Q I'mnotsosurelunderstand

-isthatcorrect?
No, I did not. And you didn't do any testing of the cement that was
used to make the blocks that are out there: is that correct?

4 5 6 7
8A 9Q
10

My question is, if the results of the test pits were consistent with each other, would that have
any impact to you as an engineer as to the number test pits that you utilized?
Yes.

of

No. And cementhas different,what, PSlratings? Isthat how cement gets calculated?

How would that have an impact?

If in doing my initial test pits that I determined

was adequate,

Different strengths, yeah. There's different design

strengths, yes.

MR. BRENNAN: I have no further questions, Your Honor. MR. SEIGENBERG: A few on redirect. if I could. Thank you. REDIRECT EXAMINATION (By Mr. Seigenberg:)
The lastquestion you were asked had to do with different design strengths ofthe concrete block. That's the PSI; correct?
Yeah. The relative strength of these concrete blocks, how

I 12 13 14 15 16
I

if

I was finding consistent results

throughout, I would be satisfied.

Ifl

was finding

some large variation throughout, that would sigtrify

that there's obviously a large variation throughout, and that more test pits would be required to get a true sense ofthe construction.

17

18 19 20
21 22

And so that's why - it's because of mathematical probability is why four to six test pits would be
engineering acceptable for a wall ofthis length; correct?

A Q

Yes.

23 24

Now hlpothetically, if in fact, four test pits were built in this area, and all four ofthese test pits
revealed that the geofabric was one or two inches

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from the block. Would that indicate to that additional test pits needed to be done, or not? No,

3A
4

if I was finding this because this was the

with that.

MR. SEIGENBERG: And so, for the record, just so the record's clear, the court would move, at this point in time, to inhoduce the first three
photograph on exhibit 33, and based on the court's

results in al1 four, I would be fine

sQ
t)

lastly, you were asked about the - I guess the one

possible other option other than tearing down the wall, and that was buttressing with sort of like
another type

5 6 7
8

ruling, we would delete the last three pages to show the individual units. THE COURT: You know, I stil'l need, to tell that you the truth, I don't think there was anough foundation on this first exhibit as to where it came

7 8 o

ofwall; correct, so it wouldn't fall

down? Right?
Yeah, yeah.
Is that something that you in your professional experience would recommend in this situation?

l0A llQ
12

9 10

from. I'mnotsure MR. SEIGENBERG: I'm sorry? THE COURT: - Im still not sure where
this first photo was taken from.

ll
11

13A
t4

No.

l3
MR. SEIGENBERG: Nothing turther. MR. BRENNAN: No further questions.
THE COURT: Nothing further? Okay. Thank

t+

MR. SEIGENBERG: There was testimony where

l5 l6
t7
18 19

l5

l6
1'l

it from, Your Honor. It's also just consistent with other photographs that have already
he got been admitted into evidence. In fact, I don't think there is an objection on them.

you very much.

(Wihess stepped down.) MR. BRENNAN: Your Honor, may I ask one question? Just a clarification on the exhibit that we were just using.

t8
19

20

20

THE COURT: I don't knowwhen this was taken, prior to 2009, but I don't know when. I don't know who look
Honor?

2l
22 23

2l
22
L)
1A

24

THECOURT: Mm-hmm. MR. BRENNAN: With a motion in limine allowed - does it allow in part certain photographs

it. I don't know where this came from. MR. SEIGENBERG: Can I do this. then. Your
THECOURT: Mm-hmm.

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I 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 l6 17 18 19 20 2l 22 23 24
NOTES

would be excluded? I don'trecall whetherthat, in fact, happen with the stenographer's - the official version, Your Honor.

THE COURT: Under 33? MR. BRENNAN: lt's on 33, and there were
pages 4

of6,5 of6

and 6

of6 thatwere to be

removed. THE COURT: I don't have 4 of 6. It's out oforderhere,4and5 areattheend. So,wewill justmarkthemas -thosewerecontested.

MR. BRENNAN: That was - that went think THE COURT: That went to the interior
the units,

to - I of

right. Yes.

MR. BRENNAN: I just noticed I had still had it in my book, so Ijust wanted to clari$r that.
THE COURT: Right, but they were marked on
the list as contested

and -

STENOGRAPHER: All of them, right? All 33?

All with number 33? THE COURT: All 33 were contested, and I
just said that in terms of the motion in limine we
would eliminate the ones showing the interior. And they're out oforder here in my book.

I 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 16 17 18 19 20 21 22 23 24

MR. SEIGENBERG: Given the court's concem,

| czn deal with this with another witness. Perhaps

we could, at this point in

time THE COURT: That would be helpful. MR. SEIGENBERG: - admit photos 2 ofthe photos onexhibit THECOURT: Yes. MR. SEIGENBERG: - 33. We'lI leave page 1

pages 2 and 3

in the book, and I will elicit testimony from another

witness. Your Honor.

THECOURT: Okay.
MR. SEIGENBERG: If Iremember. Thankyou, Your Honor. THE COURT: Just so wele clear, pages 4,
and 6 are excluded, right?
5

MR. SEIGENBERG: That's what you've ruled, Your Honor.

THECOURT: Yes. MR. BRENNAN: Yes. Conect, Your Honor.

STENOGRAPHER: I should take out 4.
and 6?
5

THECOURT: Yes. (ExhibitNumber 33, pages 2 and

in evidence)

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(Exhibit Number 33, pages 4, 5

and 6 removed from evidence.)

+
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MR. SEIGENBERG: And just for the record, Your Honor, just to make it a record, I would object, I do think that the damage to these individual units, Your Honor, is
a relevant consideration

I 2 3

*****
Eeading from the deposition transcript of William Sterling Wall, taken on r0/28/r0)
Good aftemoon. Would you please state your name and residential address? name is William Sterling Wall. My residential address is Eight Sheep Pen [ane,

6 7
8

for the court

6 8 9
10 11

in the contempt action. And I'd make an offer of proofjust for the record that we would have elicited
testimony, ifallowed, indicating that the excavation done in consfucting these walls did, in fact, cause
damage to these individual units, Your Honor.

7 A My full

9
10

Chilmark, Massachusetts.

ll
12 IJ

Q A

Could you state youreducational background? Educational backgromd. High school and college education with a Bachelor's degree in geology, concentration in coastal geology from the University

THE COURT: I understand you would have,

yes

l4
l)
16

MR SEIGENBERG:

Thank you, Your Honor.

MR. WATSKY: With the court's permission, we'd cal'l our next witness. This is Sterling Wall. THE COURT: I'm sorry. STENOGRAPHER: Page 1, is still in the
book?

12 13 14 15
16

of Massachusetts. And then approximately 32 years

professional work in the area ofcoastal wetlands.

of

Q A

Where did you first work as a professional in the

area ofcoastal wetlands?

t7

17
18

l8 l9
20
21

I was first employed by Commonwealth of Massachusetts through the Coastal Zone Management Program to serve
as a consulting coastal geologist to

THE COURT: Page

yet.

has not been decided

22 23
1A

STENOGRAPHER: Okav. 2 and 3

are?

THECOURT: Yes.

STENOGRAPHU*:,k,t;td"n"".

19 20 21 22 23 24
1Q

utlat at that

time was the Department of Bnvironmental Quality Engineering, known as DEQE, which subsequentlyhas
been renamed the Department ofEnvironmental

Protection.

-159-

I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 17 l8 19 20
21 Q

THECOURT: Yes. MR.SEIGENBERG: Ournextwitnesswillbe Sterling Wall. That's the expert who was unavailable, so we're going to go through this. lll be on the witness stand and Attomey Watsky will be
asking questions for the record.

What were your responsibilities there at what is now known as the DEP?

2
3A

My responsibilities were several. One was the

THECOURT: Okay. MR. WATSKY: Deposition hanscript starts

with William Sterling Wall being properly identified and swom, testified as follows in answer to direct interrogatories. Would you go through the THE COURT: Could you spell the name,
please?

MR.WATSKY: It'sWilliamSterling,
S-T-E-R-L-I-N-G, and Wall, like a wall. THE COURT: Okay. So, it's three names. MR. WATSKY: Yes. He goes by Sterling, but
his first name is

William. Usually, just Sterling Wall.

MR SEIGENBERG:

22 23 24

MR. WATSKY: Just call him Sterling. Good afternoon. Would you please - Dan, we going to start page 4, line 23. MR. SEIGENBERG: You have to ask the
question.

4 implementation of the Wetlands Protection Act 5 regulations that are found at 310 CMRI0, 6 specifically, those regulations that pertain to 7 coastal wetland areas. My work also included 8 delineating for the department the boundaries of 9 these coastal wetland resource areas. l0 I also reviewed filings that were made to 11 conservation commissions in the coastal communities 12 of Massachusetts, with copies sent to the then DEQE, 13 for the purposes ofdetermining their completeness, 14 and that the proposals contained within what is 15 called a notice ofintent, were adequate to addrcss 16 protectionforpublicinterests. l7 Q Did you do any work with what is known as the Coastal 18 Zone Managernent Pro$am? 19 A Iworked extensivelywith staff at Coastal Zone 20 Managanent. Part of the work with Coastal Zone 21 Managernent included delineating certain areas, such 22 as beach barrier - I'm sorry, such as barrier beach 23 areas, and also working withCZM to identifyprojects 24 that were proposed, their compliance with CZM
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as

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subject to coastal storm flowage.

ii

{l

. ,i.1:.

.d. l

policies that pertain to coastal areas.

3 4A 5 6 7 8 9 l0 II 12 l3 14 15 Q 6 17 18 A 19 20 2l 22 23 24
1

Did you also have involvement with what is known the chapter 9l program while you were at DEP? I did. I had involvement with both, what is called
chapter 91, the Public Waterfront Act, as well as what is called the MEPA, MEPA unit, for the their
larger review ofprojects that exceeded certain

Is there a shorthand reference to "land subjectto

regulatorythresholds in dealing with the Public Waterfront Act and the regulations under chapter 91.
There was an area where there was overlapping jurisdictions between the Wetlands

Protection Act and the coastal wetlands and chapter 91, and it's regulations as they would pertain to something like the development of a marina. Could you describe for us, whatare the geographic
area's

jurisdiction that the Department

of

Environmental Protection has under chapter 91?

DEQE,nowDEP, underchapter90 [sicj, has jurisdiction on the coastal areas, certain rivers and great ponds in the Commonwealth. With respect to jurisdiction in coastal areas, which pertains to this
instant mattsr, theirjurisdiction is from the mean high waterline seaward, out to the Commonwealth three-mile limit.

-16lI 2 3 4 5
6Q
Theirjurisdiction also includes certain filled tidelands, that is,

3 4A 5Q 6 7A 8 9 10 11 12 13 14 15 16 l7 18 Q 19 20 A 2l 22 23 24 Q 1
2A

coastal storm flowage?" What do we do? We usually say LSCF, I trelieve it is. Could you describe how you would go atrout delineating
a coastal bank?

A coastal bank under the regulations, is an glevated

land form, and
a coastal

it lies landward ofa coastalbeach or

dune. It is not a coastal dune. It is usually unconsolidated materia'l,

glacial material, predominantly, that was left in place by the receding glaciers, but in positions

strike that - but in position where it is proximate to the coastal water body. In this case, that would
be Taunton River/Mount Hope been considered coastal beach.

Bay. In this case, it

would have been landward ofan area that would havc

acoastalbankin the areabetween The landing property and Borden Light Marina?
Is there

My examination of The I:nding at South Park is that

it's common boundary with Borden Light Marina is

approximately 1700 feet ofelevated land form that is consideredcoastalbank. What are the primary functions of the coastal bank
as

-163viewed under the regulations?

The primary functions would be a vertical truffer

lands that may have been some point, such that

they were previously flowed areas that were filled at

fill

extended seaward ofthe

historic high waterline.

And what were the years during which you were employed with the Commonwealth?
I was employed with the Commonwealth from 1978 to 1983.

7
8A

9
10

When you were describing your activities under the Wetlands Protection Act, you used the word,

1l 12 13 14
1

"delineating" when describing your activities, for delineatingresourceareas. Couldyoudescribe

what's involved in delineating a resource area?
The coastal wetlands regulations establish that there are several types ofcoastal resource areas,

5A

16 17 l8 19 20 2l 22 23 24
NOTES

for

instance, shellfish areas, areas that serve

fisheries'interests. But they're also

coastal dune, a coastal

areas that

are identified as a coastal beach. a tidal flat. a

bank. There are other areas

that are considered designated port areas, which would be an industrial port area that's been

identified through the CZM program. There is also

coastal resource area ganerally identified as land

3 protecting landward areas and sb:uctures from coastal 4 flood damage. It could be a bank that could function 5 as a sediment source for the adjacent coastal beach. 6 That is, when there is a coastal storm, and 7 ifit eroded the coastal bank, those eroded materials 8 would slump down onto the beach and supplement the 9 beach sediments to maintain a beach width and height. l0 Q Before we get into more detail on that, let's explore I1 a bit more about your work experience and expertise. 12 What did you do after you left the department in 13 1983, what's the nextjob you held? 14 A kr 1983 Ijoined acrew -a groupcalled theBSC 15 Group, where I functioned as a coastal scientist and 16 coastal - excuse me, coastal scientist and a project 17 manager for the BSC Group until, I believe, it was 18 1985. 19 I then became part ofthe staffat a group 20 called HMM Associates. And I was at HMM Associates 2l when they were purchased by Earth Tech Corporation. 22 And I remained with Earth Tech Corporation until 23 1995. And I performed the same functions at HMM and 24 Earth Tech as I performed it in Daylor - excuse me,
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BSC Group.

2Q

3A
6
7 e o

And what was next after the HMM Associates? After Earth Tech, I then joined the staff at Daylor
Consulting Crroup where I was a senior product
manager, a coastal geologist providing expertise in
A

think counsel has seen this. THE COURT: Right. Okay. And whar exhibit
was this?

coastal areas in Massachusetts and New England for Day'lor Consulting Group. And two years ago, 2008,

Daylor Consulting Group was sold to TekaTech, Inc.,

and I was on the staff at TetraTech up through
January of this year. And I now consult generally and specifically to TetraTech, lnc. on coastal

MR. SEIGENBERG: It's in the book. MR. WATSKY: It's in book MR. SEIGENBERG: It has to be near the end, Your Honor. I know that. Maybe 38, Matt? Matt, the index in the front. MR. WATSKY: I'm sorry. I'mjustnot finding it, Your Honor.
There are Sterling Wall photographs.

l0
l1
12

l0

ll
t2 l3 t4

maiters. you today ofyour resume or a

MR. SEIGENBERG: You know, Your Honor, this

is why witnesses should not speak out of

13Q Do you have a copy with l4 curriculum vitae?

tum. It

wasn't listed here.

15A
l6
tt

I do, I do, and I present it here as exhibit 1. (End of reading of deposition transcript.)

+****

l5 l6
t7

THE COURT: No, I don't see it. MR. WATSKY: I don't think it was. MR. SEIGENBERG: I'll go back to my role. MR. WATSKY: I don't believe any of the exhibits that were olfered and marked in the
deposition are actually part of the official record
yet.

t8

MR. WATSKY: And Your Honor. we had each of

the

l9
zo
21

exhibits. I'm not sure how you want to deat with this. Counsel has a full set, obviously fromthe

l8 l9
z0

22
L) a,

deposition, and I have extra copies here. I lnow the witness has one. To facilitate this, should I provide the court with two copies of eve44hing now?

al
22
23
1A

THE COURT: Right. And the deposition is not admitted yet. MR. WATSKY: Correct. What we were

-165-

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I 2 3 4 5 6 7Q 8 9A t0 ll 12 13 14 15 16 17 18 19 20 2l 22 23 24

THE COURT: Assuming that this is going to

come in, I guess we should wait to mark that until, you know, if the testimony is admitted, then we will mark that exhibit.

MR. WATSKY: We'll deal with it at the end. Okay. Very good, Your Honor. (Reading) "So, u,hat you've just handed me is, if you could,just describe it?

A four page CV. MR. WATSKY: I would like to offer this exhibitnumber l. Doyouwanttoseeit,Kevin?"
And it's referring to cotrnsel handling the
deposition.

as

MR. BRENNAN: I have no objection to that, Your Honor.

THECOURT: Okay. MR. BRENNAN: Your Honor, just a point of clarification, my partner called it "his deposition,"
so when they're talking about Attomey McAllister, he was my partner.

THECOURT: Okay.
MR. SEIGENBERG: I don't think this we'd like to step out of our role, Your Honor, I apologize, but this is an agreed upon exhibit. I

is -

I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 11 18 19 20 2l 22 23 24

hguring we were going to do is just have him read in, and then the actual document itselfwould not
necessarily have to become a part ofthe record, although counsel may ask that we do that.

it

THE COURT: Do you have any objections to having this deposition admitted
as testimony?

MR BRENNAN:

I have read it, Your Honor,

and there were objections raised

bymypartner. I

would say that the transcript could go in in it's

entirety,butbothdirectandcrossgoesin. And
that was the deposition that was taken with the understanding that Mr. Wall would not be present.
So, even though all objections except to form were

reserved, I think they were made on the record.

THECOURT: Mm-hmm. MR. BRENNAN: So, that would allow Your

Honor to rule on it as she's readins the

transcript -

THECOURT: Yes.
MR. BRENNAN: - and when you're
considering the case?

THE COURT: Well, my concern is, you still

need to establish the unavailability

ofthis.

MR. WATSKY: Yes.

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trans$ipt. It will be all one MR. WATSKY: All one document.
THE COURT: - all one document. Okay? MR. WATSKY: All right. Very good, Your
Honor.

THE COURT: That is where I was going.

MR. WATSKY: Why don't I address that now, Your Honor.

THECOURT: Yes. Okay. MR. BRENNAN: We discussed that this

morning.

MR. SEIGENBERG: Need it be read into the

record, Your Honor?

MR. WATSKY: Yes, we did. And I MR. BRENNAN: I understand the situation
and I'm not going to object to

it

as long as

ifs put

THE COURT: The entire deposition? MR. SEIGENBERG: I think the intent

is

onMR. WATSKY: Put on the record.

can I step down in my role again here, Your Honor?

THECOURT: Yes.
MR. SEIGENBERG: We went through this.
It's difficult enough for me. I can't imagine you having to listen to it.

THECOURT: Yes. MR. WATSKY: So, let me explain. Mr. Wall

is suffering from throat cancer. He is undergoing an

intensive rcgimen of both chemo and radiation

therapy. And by the time of this trial, it was

expected that the swelling that he would experiorce

THECOURT: Yes. MR. SEIGENBERG: But our intention, Your

Honor, is somewhat to highlight a little deposition.

bit

- we

of the radiation would make him unable to speak. And that's why we did the deposition early.
as a result

selected certain portions, hardly the whole

THE COURT: I think that satisfies the test for unavailability, so -

THE COURT: Well, I think you can highlighl

those in your post-trial memos,

if you wish to bring

MR. BRENNAN: Yes. No objection. THE COURT: Okay. So, you will be using
the entire deposition? Is that the intent here?

particular sections to my attention. MR. BRENNAN: I don't even know how to highlightthemifl'mjustreadingthetranscript.
- ltt -

-169MR. WATSKY: What I had anticipated doing,

actually, if we were going to read it in was, there
were sections I was going to skip past that dealt

You can only say what

it

says.

'tHE COURT: Right. MR. BRENNAN: So, howdo you highlight it

other than reflecting your voice in some manner.

specifica'lly with details of the DEP's Wetlands Protection Regulations and how things are defined, and the procedures under those regulations. So,
was going to skip, I don't know, thirty pages or

THE COURT: No, no. I mean pointing to

specific statements made by this witness as being evidence or not being evidence.

something like that.

MR. BRENNAN: By that, you mean in our

briefs?

MR. BRENNAN: I think he should put it all in- YourHonorcancertainly MR. WATSKY: It's up to you, Your Honor.
THE COURT: Yes. I
preference.

think -

THE COURT: In your briefs, yes. MR. BRENNAN: Yes. I agree with that, yes. THE COTIRT: So, I think unless there are specific concems that you have about it, introducing
the entire testimony, relevancy or anything ofthat sort, his competence to testit/ or whatever, I think we

MR. WATSKY: Ifs whatever is your THE COURT: I think the whole thing should

goin. Ifpartofitgoesin,youknow,Ithinkwe
ought to see the whole thing.

will take it

as

it comes. And your objections are

on the rccord, and

lll

consider those at the time.

MR. WATSKY: Okay. Very good, Your Honor So, your preference, Your Honor, we'll just put the entire THE COURT: Right. MR. WATSKY: - deposition transcript, plus
the exhibits?

And I think wete done.

MR. SEIGENBERG: May I step down, Your

Honor?

THE COURT: And wirh their exhibits ro the

THECOURT: Yes. MR. WATSKY: Your Honor, would you prefer the full size - I'll step to the microphone - the full size deposition or the consolidated version?

-170_
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14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

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2Q
3A
Charles Eugene Schnitzlein Junior. What's yourresidential address, sir? 700 Shore Drive, That is correct. Where is building 2 in relation to buildings - units 3 and 4 - I'm sorry, buildings 3 and 4. lt's behind buildings 3 and water side. Can you tell us briefly your work experience, sir?

THE COURT: I would prefer the full size version. My eyes are not that great.

(Exhitrit Number 42, marked in evidence; deposition transcript of William Sterling Wall taken
10/28/10 with exhibits t_? and Aand B attached)

u it202,

Fall River, Mass.

4Q
5A

So, you're in building 2; correct?

6Q

MR. WATSKy: Now, is that 42? THE COURT: Were there two copies, or just
one? Canyougetasecondcopytous?

7 9

8A
10 Q 1l A 12 13 Q 14 A 15 16 Q 17 18 A 19 Q 20 A 2l Q 22 23 A 24

4.

We,re not on the

MR. SEIGENBERG: Of thedeposition? THE COURT: Of the deposition and the

attachments.

I'vebeen in control ofthecorporations through

various times in my life. Are you currently employed now?

MR WATSKy:
size.

I have the consolidated

version. Idon'thaveasecondcopyofthefull

I'm self-employed. I have my own business, somewhat

semi-retired.

And sir, you currentlyhave

THECOURT: Okay.
the original, the

a position at The

MR. SEIGENBERG: Would you like us ro rake full size? We can bring it

landing? Yes,Ido.
What's your position at The landing?

tomorrow to court with a copy. THE COURT: yes. That would be hetpful because as I read. it, I have, you know, a separate copy to mark up

Chairpersonoftheboard.

ifl

need so.

STENOGRA?HER: I'll give this back to them

Howlonghaveyoubeen thechairperson oftheboard ofmanagers ofThe Landing? I'vebeen chairperson, this time, since April of
2010.

-173-

-175-

I for now? 2 THECOURT: yes. 3 STENOGRAPHER: Okay. 4 THE COURT: So, you'll retum that 5 tomorroW? 6 MR. WATSKy: yes. Thank you, your Honor. 7 MR. SEIGENBERG: I was quick to volunreer 8 that when he has to make the copies. With the 9 court's permission, I'd call our next witness. l0 THECOURT: yes. II MR. SEIGENBERG: Charles Schnitzlein. 12 THE COURT: Before we start, I really l3 what's your preference about taking any kind ofa 14 break? Do you feel you need to before we go to the l5 next witness, or are you okay? '16 Okay. Let's go. 17 ***************** 18 CFIARLES EUGENE SCHNITZLEIN JR. ***************** lg 20 (Witness swom.) 2I DIRECT EXAMINATION 22 @y Mr. Seigenberg:) 23 Q Sir, good aftemoon. Can you please state your full 24 name?
-174-

2A

I Q

Ten. And prior to that, did you serve on the board?

Yes,

Idid.

3Q

4A 5Q

What years did you serve on the board? 2005 through the current year. Sir, can you tell the court your understanding as to what the responsibility and duties are ofthe board

6 7 9 10 I1 12 13 14 15 16 17
18

ofmanagers ofThe tanding?

is a fiduciaryone, whicn

8 A Responsibilityoftheboard

is intended to oversee the common areas, deal with the business ofthe condominium association on behalf

of the unit owners to protect their rights, to make sure that the property is properly maintained, and anything else that may come under our jurisdiction, which would be common areas. Litigation that may be necessary to protect unit owners'rights, or to collect monies,just a general responsibility to take
care

of

areas,,.

19 20 22 23

Understood. When you use the term, "common

what does the term, "common areas.mean in The Landing complex? Commonareas can include thepool area, the club house, hallways, areas where there may be easements. Those are our rights to protect. The Landing at South park, is thata

21 A

24 Q In fact,

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2A 3Q
condominiumassociation? Yes. it is. Organized in general laws? Yes, under 183Sir, when did you move into unit202?
1998. Have you lived in

I A
2Q

Yes, sir.

Are those buildings designated in any way other than

4A
5Q ?Q

6 A Approximately

the - have you lived at The

8
9A
10

Landingsince 1998?
That is correct. Are you - have you been ayearround resident at The

11
12

A 13 Q 14 15 16 17 A 18 19 20 21 A 22 23 Q 24 A I Q
2A

landing? Yes,Ihave.
So

Idon't forget,could you please open up the

exhibit book to exhibit 33 on the first photograph

thatyou'llseethere? Doyouseethatphotograph,
sir?

Areweworking forwardorbackwards?
MR. SEIGENBERG: May I just sort
the witness going on the

of - with

THE COURT: To help locate 33? I'm not sure whether this is 33 or this is 33

(indicating).
That would be 33 (indicating). Okay.

3 building 3? For example A and B, or anlhing of that 4 nature? lrtmerephrase. 5 This building 3 depicted on this photograph 6 is a V shaped building; conect? 7 A Yes. it is. 8 Q Is there anydistinctionbetween the sizeofthe V of 9 the building? 10 A No. l1 Q So,that'sbuilding3. Andsir,therestofthe 12 buildings that are along the waterfront, what are the l3 building numbers? 14 A Itruns frombuilding 3 throughbuilding 11. 15 Q Do you knowhowmany buildings there are along the 16 waterfront? Maybe I can help you out here a little t7 bit. 18 A Nine buildings along the waterfront. MR. SEIGENBERG: I think we have a phasing 19 20 plan, Yow Honor, as one ofthe agreed upon exhibits, 2l if I can just locate it. While I'm looking, I1l ask 22 the witness another question. 23 Q Earlier on, you had spoken about the cornmon areas. 24 How do the cofitrnon areas relate to the units
-179-

-LIIWe stopped at tab -

Okay. That's what I didn't

see.

4 5 6 7

3 Q Understood. Lnoking at the first photograph exhibit 33 on page l, do you recognize that
photograph, depicts? It depicts Yes or no, sir.

on

sir - strike that.

Do you recognize what that photograph

8A 9Q

l0 A Yes. i 1 Q And what does that photograph depict, sir? 12 A Buildings at The landing which here have been marked 13 301 and 401. 14 Q Are you able to tell us which buildings are depicted 15 in that photograph, sir? l6 A Building 3,building4 and itappears partof 17 building5. I'mnotsure. Itlooksthatway. l8 Q Well, if you look at it sir, do you see the arrow 19 pointing to unit 401? 20 A Okay. No, it's actually building - I'm sorry, this 21 isthebackofbuilding3. So,itwouldbebuilding 22 3 and a part ofbuilding 4. 23 Q And specifically looking at the first building, which 24 is - it looks like a V shape; correct, sir?
-178NOTES

I themselves? What's cornmon areas in a unit or outside 2 the unit? 3 A Common areas are all the areas of the condominium 4 association from the studs, out. Anything from the 5 studs in, becomes the unit itself. 6 Q Noq before I moveon to thatphasing plan, going 7 back to exhibit 33 once again, what does that 8 photograph depict again, sir? 9 A It depicts The tanding - building 3 and part of 10 building 4 at The landing at South Park, and part of 1l the waterfront. 12 Q Noq sir, are you ableto tell fromthis photograph, 13 approxifiiately when this photograph was taken? 14 A Itwastakenpriorto2008. 15 Q How are you able to make that determination, sir? 16 A There's no wall there. 7 Q And when you say "there," where are you referring to? l8 A There's no wall by the bank. 19 MR. SEIGENBERG: Your Honor, at this point 20 in time. I move that document be admitted that is 21 31-l asthenext -asinclusionofexhibit33. 22 THECOURT: Okay. It'sexhibit43? No, 23 I'm sorry. It was part of exhibit 33 to begin with, 24 so thatis in. Right.
1

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knows. Thank you, sir.
Actually, one other thing while we have this phasing plan up. There is some - you've been
here during the

(Exhibit Number 33,page in evidence) Now, sir, if you could go to

Yes.
1,rrur

marked

book, exhibit 20.

Are you able to locate that, sir? And thedocumentyou're looking at says, "phase 11, phasing plan for The tanding;" is that cofiect? That is correct.

trial. There

was some talk about a

5A 6Q

proposal back in 2006 for the - by the Lunds or the Marina to construct a high-rise. Did you hear that testimony? Yes,

7 l0 ll
8A 9Q

Idid.

Looking at this photograph, can you please describe to the court the buildines that are located on The tandingproperty?
As you enter at the south, you have building

Looking at this phasing plan, can you tell the court approximatelywherethe -basedonyour
understanding, where the high-rise was proposed?

10 I1
12

12

I and 2
2

A Q

The high-rise would be to the left

ofbuilding

I,

13 14 15
I

in the back. In front ofbuilding 1 and building is 3. Then comes 4, 5,6. Building 7, which includestheclubhouse Is clubhouse designated on that plan, the

13 14
15

pretty much next to Almond Street - I mean - I'm sorry, to the right of building
So,
1

ifAlmond Streetextended further, that's where

17
18 19

6Q

'location

of

16 A I8 Q 19 20 A 21 Q 22 23 24 A
17

the proposal was for the high-rise building?

it? Yes, it is. And that's rightto the

Thatiscorrect.
Do you know whose property that currently is, where that high-rise was proposed?

A Q 20 A 2l 22 Q 23 24 A I 2 3 4 5 6Q 7 8 9 l0 A l1 Q 12 A 13 Q 14 15 A 16 Q 17 18 A l9 Q 20 2l A 22 Q 23 A 24 Q

leftofbuilding 7; correct?

That is to the left ofbuilding 7 and the pool behind

it.
Or in ftont of it, depending on which way you're

My understanding, it Admiral Realty Trust. Now, sir, when you moved into The landing in 1998, can you describe the setting ofThe landing, other
than the buildings thatyoujustdescribed? The setting ofThe tanding was sortofarural

looking at it, right?

Yeah, depending.

-181Thenyouhavebuilding8. Thenalongthe
water you have building 10, I 1; 9 is set back next to
8, and behind building 10. And then you have

-183-

building 12, closest to Almond Street at the north

exit.

Now specifically, sir, you had mentioned the

southerly entrance. Is there a roadway - is there a public roadway that leads to the southerly entrance to The tanding?
Yes.

1 2 3 4 5 6 7 8
9Q

setting in Fall River, in a

city. It

had a view

of

Mount Hope Bay. There was

across the

a marina at the north end,

whichreallyhadnotbeenexpanded. Youcouldsee

river. You could

see heading towards part

of Newport. You could

see Braga

Bridge. We had a

grass area, a slope that went down to the water. There was a fence that ran the middle ofthe back

of

the lot. What about in the southerly side? Was there any when you moved in, was there any entrance on the southerly side, down to the Marina property, down below?

What street is that?

ThatwouldbeClubStreet.
Is that, in fact,shown on thephasingplan,sir, on the left-hand side?

10 1l 12
13

There was what was really a path. It wasn't really

an entrance as we know

14 Q 16 l7 A 18 Q 19 A 20 Q 2l 22 23 24
15

it today.

Yes,itis.
When you moved into The l-anding, sir, were these the

When you say, "an entranceasweknowtoday," you

mean what. sir?

buildings that existed at The hnding?

Theywere. Also, looking at this phasing plan, towards the top

Thatwhichhasbeen excavated since 2008/2009.

So, you mean the driveway-type way?

Thatiscorrect.
Sir, I wantyou to, book,

of it there is written, "Mount Hope Bay."

Yes.

ifyou would, please, in your ifyou could look at what's been marked as
For point ofreference, sir, there's these

And tha! ofcourse, is what sir? The water. Where is the - never mind. I'm sure the court

exhibit 34.
- when you get to 34, these photographs are labeled

-182NOTES:

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us what

on the bottom right-hand side. The first one would

be 34-1, and they continue on numerically,

building - first of all, 6, if you look

1

so - but I'm going to direct you to some photographs

specifically.

down to the back right ofthe photograph, do you see a pier extording out?

4A
5Q

Yes, I do. Do you know what pier that is? That's King Phillip Yacht Club. And that's, once again, that's on the southerly border of The Landing property? That is correct. What does this photograph depict, sir?
3

5 6 7 8

If you could go to 34-6, sir, the first photograph. Were you able to locate that?
Yes.

6A
7Q
8

Can you tell us what that photogaph depicts?

o
10
11

A That depicts The landing at South Park. a Oh, I'm sorry. You know, I didn't - you moved in
1998, didn't you? Right, sir?

9A
10Q

t2
t5
15 16

That is correct.

11 A It depicts building3,4 and I believe a small t2 portion - no, actually I think it's just building

So, maybe I can move up here a little

bit.

Sir,

if

13

and 4. Is this photograph a fair and accurate depiction as the bank looked when you moved in

you could please go to number - photograph 14. Have you located that? Yes, I have. It depicts the back of one of the buildings at The

14Q t)

in 1998?

16A

Yes, it is.

t7 a Can you tell us, sir, what photograph l4 depicts?

l8 l9
20

17Q At least the bank. as it was located around l8 building 3,4 and towards 5; correct?

Ianding at South Park, with

that are placed at the water.

a slope

bank and rocks

is

19A
20Q
zl

Yes, it is. Sir, are you aware of what the - what purpose that bank served for The landing?
The purpose

2l a Are you able to tell us which building that

22 23
1A
A

depicted there, or buildings?

Based on the wall that's there -

22A
L)
1A

ofthe bank, it's my understanding now,

is that it was there to maintain erosion contro'l in the case of a high storm, so that the water wouldn't

You're referring to that concrete wall?

r85 -

-187-

I A This is a short concrete wall. I think that may be 2 part of building 6. It's not building 3 Q Is this photograph a fair, - the date on it is 1998. 4 A 1998. 5 MR- SEIGENBERG: Just so the court's aware, 6 that's something that I think Michael Lund has put on 7 these photogaphs. That will come out, Your Honor. 8 Q Is thata fairdepiction of thatareain 1998 when 9 you moved in, sir? l0 A Yes, it is. 1l Q Why don't we go to the next photograph, 15. 12 A Pardon? 13 Q Go to the nextphotograph,number 15. Areyou there, 14 sir? 15 A Yes. Iam. 16 Q Do you krowwhat thephotograph depicts? 17 A That'sbehind building 7, looking upward to The 18 landing property from the Marina. 19 Q And there are someboats located in there? 20 A That is correct. 2l Q Canyouus wherethoseboats arelocated? 22 A Theyte located at what we now know is a sloped 23 easement. 24 Q And then ifyou could, there's 16, sir. Can you tell
NOTES:
186 -

I 2 3 4 5
6Q

rise to the buildings itself, and it would protect

as

it

abarrier. MR. SEIGENBERG: I apologize for the delay.

The exhibits were interchanged at the start oftrial.

I had to organize them in different ways. And ifyou could, sir, if you could tum to number 23 in the same exhibit. And can you tell me whai that

7 8
9A

photograph depicts? That's looking from Mount Hope Bay at the Marina south, to King Phillip Yacht Club.

10 1l Q 12 A 13 Q 14 15 A 16 Q l7 18 19 20 2l A 22 23 24

Thedateonthisphotograph is 2001. 2001.

Is

thatafair depiction of The landing and the

coastal bank in that area at that time?

Yes, it is. Sir, there's been some testimony already in this

trial about various construction activities that have

occurredalongthebank. Startingfrom2000,canyou
tell
us what the

first excavation and construction

that you can recall in the bank area?

Ibelievetheconstruction thatlfirstcanrecall
was sheathing that was being put that time.

in

- I almost want

to think somewhere around 2002/2003. somewhere around

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Phone: (978)

777-5802 FAX:

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MR. BRENNAN: The document soeaks for
itself. THE COURT: I guess it's his understanding
as opposed

That was located near what building, sir?

I want to say somewhere around

Which building, sir?

I'm not sure whether

it was building 10 or somewhere

there, and

to what does the document say.

I'11

allow

around building

6. There's two sheathings

rt.

I wasn't active on the troard at that time, and

a board member

MR. SEIGENBERG: Thank you.

That they, at some point in time, would construct
steel sheathing wall, running at least a part of the

Well, why don't we do this. You indicated you became

in 2005: correct?

That is correct.
So, lefs talkaboutthe activities thatoccuffed

8 9
10

length ofthe property.

Q A Q A Q

Was it your understanding that that would - that

these type

whileyouwereatroardmember,iflcould.

Firstof

all, that you were aware that there was already marked as an exhibit in this matter, a settlement
agreement?

11 12
13
14

ofwalls wouldn'tbe consfucted until

certain triggerevents occured?

Thatiscorrect.
What was the trigger event in the board's mind or the board'sunderstanding?

Yes,lamaware.
And that settlement agreement is marked - that
settlement agreement is dated March of 2006. Can you

15
16

My understanding was that the trigger event would

have been basically the shovel going in the ground to start building the high-rise condominium.

tell

us what involvement,

ifany, the board had

l7 18
19

relative to that settlement agreement? We were approached try Michael Lund, represanting

And specifically,theconcrete -strikethat.

The retaining walls that were constructed

Bordar Light Marina.

When you say "we," you mean the board?
The board, yes. And we were asked for cooperation so

20 2l 22
23 A
24

in 2008 and 2009 in front ofbuilding 3 and 4 and 5,

what type of construction were they, sir? Concrete block. Obviously, not the sheathing?

that we not oppose when the land was - when their

-189deal was consummatec.

-1911 A Not sheathing.

This is the high-rise again? That is correct. In other words, that we would not
oppose the high-rise construction.

2Q

Now sir, also referring to exhibit 39, it talks about

a dismissa'l at a certain time

3A

4 6 7
8A

3 4
5A 6Q

of the so-called - of

a lawsuit; correct?

5 Q And in retum for

return?

that, what do you understand the -

Thatiscorrect.
And that you now understood to be the - this tand

just in general, what would The [-anding receive in

The t and'ing would receive property that was behind
the wall that was in the north side, or lands

7
8A
that -

Courtaction?
Yes.

9 I0 1l 12 13 14
I

9Q

As a member of the board, what was your understanding

as to the

landsbehindupper -atthenorthendwouldbe
tumed over. We would receive $200,000 for development gates. We had previously put a gate in
the back end to secure the property, and that would

10 11
12

tand Court litisation back in March of

20062

Itwas aproperfy dispute, and part of itdealt with

visual easement of a cuoola that was on the Marina

have helped compensate for that security. Directing your attention,

13 14
15

piopefy.

5Q

if I could, to exhibit

39,

16 17 18
19

which is the settlement agreement, and specifically

to page 4, there's some talk about new retaining

walls. Do you

see that, sir?

A Yes.ldo. 20 Q And specifically, what was your understanding as a 21 board member, as to the tlpe of retaining walls that 22 would be constructed 23 MR. BRENNAN: Objection, Your Honor. 24 Q - if the settlement went through?
-190-

Q Didyouknowthatin2006? 16 A As faras thevisual portion, yes. l7 Q Right. Were you aware of any - in 2006, what 18 knowledge do you have as a board member as to whether 19 or not the court had a preliminary injunction in 20 effect? 21 A I had none at all. 22 Q Now sir, the land Court litigation, was the board 23 represented in that tand Court litigation in 2006? 24 A I don't understand the question.
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18

1.:.:li

Did you have a - I'm sorry. I'm talking about this Land Court case, did the board have an attomey who
represented the board in the l-and Court, this l-and

THE COURT: His state of mind doesn't rcally go to the state of mind of the board. MR. SEIGENBERG: I'm happy to rephrase. THE COURT: You know I'll take it for what

Court case we're here today on? No. What's the year that The action? 2009. Sir, can you tell us what your state of mind was relative to the dispute involving The landing and the Lunds as you went into 2006 and 2007 and 2008?

land

- what year, if any,

it is. I don't see MR. BRENNAN: To the extent that. what did
board members know at the time based on the settlement agreement, I can understand that. But his

did The landing retain counsel in this l-and Court

individual state of mind MR SEIGENBERG: Your Honor, I can I'm sorry, counsel. I can tie this in. THE COURT: Will you rephrase it? MR. SEIGENBERG:
answer that question,

tie

My state of mind as a board member was that we would try to live harmoniously with the Matina, and to
cooperate rather than end up in a situation like we're in today.

Iwill. If Icanhavehim I'll tie it in, Your Honor, so

it's the board's state of mind.

THECOURT: Allright. [rt'sdo MR. SEIGENBERG: Thank you.

And specifically, sir, did the settlement agrement

have any impact as to your view as a board member,

Q A

You

as a board member, sir, what was your state

of

relative to the dispute with The tanding?

Idon'tunderstandthequesfion. Okay. There's

a settlement agreement that was

19 20
21

mind relative to that dispute, given this settlement

agreement and the trigger point?

Thatwehad resolved a lotofthings. Therewasn't

executed in March of 2006. And let's talk about

this. Therewasatriggerevent,wastherenot,sir?
Therewas. r93 What was the trigger event that made this agreement - allowed this agreement to be accomplished? Again, the shovel in the gromd that would have allowed or started to commence when the building What was your understanding as to the period of fime that the Marina had to obtain their permits to begin construction? It would expire, I believe, somewhere between March and May of 2009. No, I'm sorry. I think 2010,

22 23 24
1

goingtobealotofconfrontationanymore. Andwe
werejust waiting to
rise.
195 see whether they

built the high-

Frombeingamemberoftheboard, was thatyour

understanding as to the feeling ofthe board at that time. as wel'l?
I think the members of the board at that time would be in agreement

2 3
4A

5 6
8A

with that. Again, thafs only my

opinion.
From being on the board, yeah, I think the board was

7 Q Butfrombeingontheboard?

9
10

looking for harmony at that point.

So,

youasaboardmember -strikethat.
Based on your understanding, when did the

right.
It was either a three or four year trigger; correct? That'scorrect.
So, once again, sir, knowingthattherewas

I 12 13
I

board first become aware ofthe preliminary

injunction that was entered in this

case?

that

14

When Attomey Watsky was hired to do the legal work

three year or four year trigger point, what was your state of mind as a board membet, relative to disputes

15
16 17 18 19

for us in the 91 hearings.

thatexisted involving The landing and Borden Light

Marina? I thought most'ly -

MR. BRENNAN: Objection, Your Honor. We're talking about the board, not the individual. THE COURT: Correct. THE WITNESS: That's what fm saying. MR. BRENNAN: His state of mind 194 -

Q Oh, the title or section 1991 [sic]? A tught. Q What year was that, sir? A 2009. 20 Q Now, you described some sheathing wall of 2l construction that was done. I think vou said 22 A 2002/2003. 23 Q And what was the next area of construction, if any, 24 onthe -relativetobuildingofwallsbythe
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lll9ll0
I
this construction that was being done?
I know

There was a block wall that extended from the back

3 4Q 5A 6Q 7 8A 9 .10 II 12 13 Q 14 A 15 Q l6 l'1 18 A 19 Q 20 2I 22 A 23 Q 24

2A
4Q
6
7 8

it was authorized by Borden Light Marina. I

building T,going south towards building 6. Approximately how large an area was that wall?
Maybe 200/250 feet. What was the board's position relative to that construction? We did not really take note of it because it didn't

don't know who the contractor was. Could you turn on your exhibit book to 328E, in recognizing they go A throughZ, and than goes AA, B, C. So, you might be better off starting at the end

of 32 to get there.

A I'mthere. Im there.

affect - it was way out. You know, we had an

agreement in place, and although they were premature

l0

in what they were doing, the board assumed that thrs

thing was going to happen. That is the settlement agreement?
Based on the settlement agreement, yes.

ll
t2
13

Can you tell us what photograph 32EE depicts, sir? 32EE depicts the - what remains of the parking lot that we had, and the now opened excavationed area with concrete block opposite where the fence, and also you can see the yacht club. That building there is the King Phillip Yacht Club? That's King Phillip Yacht Club. Fish club? No, yacht club. also shows a white rail fence ofsorts. When was that fence constructed relative to the excavation of the guest parking lot? That was constructed after Mr. Bouffard complained about the hazard to BLM.

14Q

And also, sir, back in2}06,the board, as you,ve already testified, wasn't aware of the preliminary injunction? No, it wasn't. Back in 2006, had theboardreceived anycounsel relative to their rights, relative to the visual
easement or the graded sloped easement?

15A
16Q

17A
19

18Q And sir, it

20

2tA
22

Not that I'm aware of.

And certainly as a board member, you don't recall any

23Q

such 197

And specifically, when this work started in 2008, into 2009, who was the chairman of the board? r99 Beft Bouffard.
Were there discussions at the board level relative to this construction that was occurring both in 2008, and extending into 2009?

As a board member -

I
3
A

a
A

So, let's take this up to 2008?

2008. What happened in

2Q

I woke up one morning and people were digging a hole. They were tearing out part of a parking lot. It
appeared they were excavating what had been a very

3 4
5A 6Q

6
7 8 9

Well, we were furious of the fact that Firstofall,weretherediscussions?

Yes, there were. What were the concems of the board - what were the concems of the board at that time? The concems of the board at that time were how far they encroached in proximity to the buildings, some

nanow piece of land with boulders in it, and were making a roadway.

7A
8Q

l0
11

Prior to that construction commotcing, was the board in any way informed that the construction was going
to be occurring?

12

Not at all.

l3 a And if you would, describe the construction that took

l4 place in 2008 and then in 2009? l5 A The construction in 2008 opened up a roadway on the
t6
11 18 19

south end,

it took away part of

parking lot that we

have had for more years than I had lived there. As a matter of fact, when that parking lot was tom apart,

20
21

it became ahazard for anybody who wanted to park in there, because ifthey backed up, they would have
gone over where they were excavating, So, there was no fence there at the time? There was no fence at that time.

22Q

234
24Q

Do you know who did this

":i;I"t*,

or who ordered

9 l0 A l1 12 13 14 15 16 17 Q 18 19 A Z0 2l 22 23 24 Q

of the poor worhnanship, at least in what I saw, in my opinion, of the construcfion of the wall, their destroying land that was coastal, interrupting an
ecosystem. All of that disturbed me as a board member.

Whataboutthe general attitude oftheboard,

expressed -

as

I think the general attitude of the board was also upset, and the fact that they had done this work

without even consulting us. And it was like, we put the shovel in the ground, and it's too bad, we,ve
already done it.

And from your experience, was that consistent or

- 200

NOTES:

14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978)777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING v BORDEN LIGHT #254067 Vor..

I 2
3A
inconsistent with what Borden Light Marina has done over the years? Over the years, Borden Light Marina's done whatever
they pleased without asking the

tugn0
I 4
2A 3Q 5A
2009; correct? That is correct.
Can you describe for us the work that was done in

4 5
6Q
7A 8Q

Marina - without

2009,

ifyou

can recall?

asking The Landing at South Park. You were not on the board in 2002; conect? No. I was not. You're now aware there were some discussions back rn
2002: correct?

The work in 2009 was, hurry up and get it done. They were working from the north end and from the south end to meet in the middle, sort of like the

9 l0 A 1l Q 12 13 A 14 15 Q 6A 17 18 9 20 21 22 23 Q 24
1 1

Yes.ldo. Now,ifyou could,sir, could you tum to thelast

photograph on exhibit 32? That would be - it looks like double H: is that
correct?

6 7 8 9 l0 II
12

Califomiarailway. Alotofdirt,alotofdust,a lot ofnoise, and it appeared they were trying to get it done before the storage season arrived, so that
they could store boats.

13
14

hr fact, did

they - and whatwas theperiod ofthat

construction in 2009? It ended in Novernber,just about Novernber lst,2009,

maybe mid-October, 2009. Is

Yes,right. Whatdoes thatphotographdepic! sir?

That photograph depicts the parking lot and the south
end prior to the excavation. You can see the

boulders that are in place that were blocking what

was best to say, a very naffow path that you mighl have gotten a Jeep down there, or something like that that was four-wheel drive, but you wouldn't want to take a car down there

ifthe boulders were removed.

So, sir, as a board then, the board had some concems about the work that was being done. What,

if

A 15 I6 Q 17 18 A 19 Q 20 21 22 A 23 24 I 2 3 4 5 6 7
10

it fair to say that the construction work that has

occurred over the years generally is in the fall?

Mostly, yes.
So, afterthis workwas done in 2009, what, storage ofboats?

if

anything, did Borden Light Marina do relative to

Theyjustbacked boats right up against the wall, mostly indiscriminately. They had raised the level ofthe roadway, put stanchions, or whatever
_203
_

-201 -

I
2A

anything, did the board do about it? We investigated. As a board, we've got a responsibility to do things properly, so we can't

Mr. Bouffard described them

them.

as, placed their boats on

3 4 5 6 ? 8 9 10 l1 12 13 14 15
16

I'm not even sure how stable that roadway

was to put boats on, because I never saw any

justjumpanddothings. So,thenweinvestigatedas
to what was going on. Mr. Bouffard approached the city an various agancies. We found that there were

compacting equipment to go in there. And I know that

there have been occasions where they've to realign boats based on the fact that they started to lean.

things lacking, like, permits, drawings, engineering,

et cetra, et cetera.

At that point, we also found

out that there was something going on with DEP. We found that through a newspaper advertisement. We contacted Attomey Watsky. When Attomey Watsky went into what was going on, he also unearthed the injunction. And that
was the first time we had any knowledge of the

8 Q Sir, I'd like 9 A Itwassortofhaphazard.

fd like you to tum, if you would, to exhibit

1, and

injunction.

Q A Q A Q A Q

Now, you indicated the board made complaints to the various govemmental agencies; correct?

17
18 19

Thatiscorrect.
What results, ifany, did the board receive by doing
that?

I 12 13 14 15 16 l7 l8 19
1

go to the second page. As you're looking at that,

sir, that easement - that document, which is a deed,

also provides that it's subject to an easement,

including a 20-foot wide easement for the benefit lot I and 2 for construction and maintenance ofa

of

drainage system, and for construction and maintenance

ofa sloped graded erosion and flood protection area.

Now, sir, that 20-foot easement area, do you know
where that - where that is located?

20
21 22 23 24

Basically,

thecityofFall River ignored

us.

20 21

A Q A

Yes. where

it was located.

Good point. And where was it located relative to The

And that's when you tumed eventually to counsel? That's when we tumed to counsel, yes. Now, sir, the construction occurred both in 2008 and

22
23

landing and Borden Light Marina properties?

Itwas located west of the Marina, s'lopingdown to
the water.

24

-202 NOTES

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14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LAI{DING
I Q 2 3 4 5A 6 7 8 9 l0 II Q 12 l3 l4 15 16 17 18 19 20 2l 22 23 Q 24 I A 2 3 4 5 6 7Q 8A 9 l0 II Q 12 13 A 14 Q 15 16 A 17 18 19 20 Q 21 A 22 23 24 Q
NOTES

BORDEN LIGHT.#254067 Vor,.I

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And specifically, sir, before - let,s talk about the construction and excavation that occurred in 2008 into 2009. You've already described the coastal bank

2A
3Q
4
5

excavation that occurred in 2008 and 2009 result Damaged portions ofit between buildings 5,4 and 3.

Now, sir, relative to buildings 3, 4 and

that.

- strike

thatwas there that Prior to the bank was an avemge coastal bank that had shrubs and grass, vegetation. There was debris
occasionally because people thought it was a good place to dump

I'm going to go tlrough this. Instead

of

o
'7

stuff. So, yeah, there would

be

that sloped graded bank that existed after the excavation and construction ofthe wall in 2008 and 2009, what existed after that?

occasional debris down there. Sometimes there were tires that were dumped. But it was a coastal bank.

9A
l0
11

A minimal area at the top of the bank - I mean, the top of the wa1l. Much of it, where they had actually
cut into the property, they didn't bother to seed; they didn't bother to do anything with - and actually while we were getting, and we presently are getting, is erosion over the wall. So, you say there's just a little bit on the other
side of the wa1l, you mean, going towards The L:nding

And from your understanding, sir, what benefit did that bank provide The Landing relative to flood - as
a flood protection barrier?

12

IJ

MR BRENNAN: Objection, Your Honor,

qualifications to render that opinion. MR. SEIGENBERG: It's understanding, your
Honor.

t4

15Q
16

buildings; correct?

THECOURT: Yes. MR. BRENNAN: It's understandins versus

opinion.

18A

That is correct.

leQ
tn

And when you say, "just a little bit," you mean the 20-foot wide easement, sir? There's only a little

THE COURT: It's understanding, what he

thought it

zl

that's all.

22A
23Q
1A

bit left? Right. Correct.

What's your understanding as to how much of the

We've already had expert opinion, but understanding, sir.

20-foot wide easement was excavated, sir?

-205 My understanding was that if there was to be any kind of high water, with any kind of wave effect, that the slope ofthis bank would first ofall, probably slow
the water down, and actually direct any kind

-207

ofwave

back towards Mount Hop Bay, rather than allowing to come up against the buildings. What about for erosion control? Where it was solid, sloping down from the buildings, it allowed water to flow naturally as drainage coming

it

offthe property, naturally down into the bay.

So, this sloped graded bank provided protection to

The landing; correct?

Thatiscorrect. Now, sir, whatuse, ifany, did The Landingmake of the easement area for drainage?
In the easementarea, we did havedrainage, a drainage system with PVC pipe that want into catch basins that then went into a master pipe, that went into the Fall River sewer lines. Howwere you aware ofthat, sir? Well, we knew there were grates there. We knew that
there were piping coming

offthe buitdings, going into that. That was visual and very obvious.
What impact,

if any, on this drainage system, did

-206 -

the

I A 2 3 4 5 6Q 7 8 9A 10 Q 11 12 13 A 14 Q 15 16 A l7 Q 18 19 A 20 2l 22 23 Q 24

In some places, all of it, plus more. In some cases, they excavated into actually our property, beyond the property line when they put up the wall, even though
the wall was

within that 2O-foot easemealt. It was

basically an invasion ofproperty in a lot ofplaces. After this excavation, sir, what use, if any, can The

landing make of the 20-foot wide easement in that areanearbuildings 3,4and5?

None.

Now, prior to the excavation and the construction of the wall in 2008 and 2009, you had described this
graded sloped vegetated area; correct?

Thatisconect.
What,

if anything, did The hnding

do to that slope

over the years? We maintained it. How did The landing maintain that graded sloped
easement area?

Wehavelandscapers thatwehire on an annualbasis

to tend to the property, and we also rnaintain the slope by cutting glass. And it was our understanding
that was our responsibility.

And you say it was your understanding it was your responsibility. Where did that understanding come

-208-

KS COURT REPORTING
Phone: (978)

14 Palmer Avenue Danvers, Massachusetts 01923 777-5802 FAX: (978) 777-5803

LANDING
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from?

BORDEN LIGHT #2s4067

Vol.I rugn0

.t:: ::: ;,.i1{tmrfi{biii.L.,.: t ^ - -^ -'

From Borden Light Marina. In what way did Borden Light Marina communicate to

4 you that it was The landing's responsibilig to 5 maintain that easement area? 6 A This is from Michael Lund himself. 7 Q And in what way was it - d'id Michael l,und 8 A Verbally. It was a verbal communication. 9 Q Do you know approximately when that happened? trO A No, but it's been I I Q Has anyone from Borden Light Marina ever attempted to 12 interfere rvith The l-anding's maintenance of that 13 graded sloped easement that you described? 14 A Yes,theyhave. 15 Q In what way? 16 A When litigation began, we were informed by Michael 17 [-und that if we cut the gmss, he was going to have 18 us arrested. 19 Q When you say, "whan litigation -" 20 A Well, it wouldn't mean us arrested - litigation that 21 wete presently here for. 22 Q kt's back up a little bit. This litigation was 23 instituted in 1999. Do you mean the contempt action 24 that was filed -209 -

I Q So, ifyou could directyourattantionto exhibits 2 32, we'll go through these with you. 3 Are these the photographs that you toolg 4 sir? 5 A Not looking at al1 of them, I would say yes, probably 6 these are all that I've taken. 7 Q Do you know approximately when these photographs were 8 taken? 9 A These were taken within the last thirty days. l0 Q So let's go through them. Going with A, what does A II depict, sir? 12 A That's looking north at the wall behind building 11, 13 and 14 Q Building I 1 would be on the right, top right-hand 15 comer? 16 A Thatiscorrect. 17 Q What's on the backgromd of the - towards the 18 background ofthe 19 A Background is Braga Bridge, part of the Marina, boats 20 that Borden Light Marina has in storage, and the 21 fence that 22 Q Now,alsoonthatexhibitA -photogaphA,there's 23 a concrete wall. Do you see that, sir? 24 A Yes.
1Q

I A
4Q

Yes.

Has thatwallbeenthere as longyou'vebeen around, sir?

2 Q -in2009/20102 3 A That is correct.

2
3A

Yes. As long as you've been at The landing, I should say

5
6A 7Q 8A

Okay. So, after that, there was a conversation with Michael t und.
That is correct. What did Mr. Lund tell you?
We were told that we could not cut the grass. He was

4Q

5 6
7A

And going to B, sir, what does that photograph

depict?

9 10 II 12 13 14
15 16

going to just let it grow to block the view of our residents. Hedidn'tcare.

Itwaslike,well,you

did this. Now, you're going to live with what I'm

goingtodotoyou. Andthishasbeenaconstant,
constantactionbythe -byMichaelandBordenLight
Marina.

Q A Q

Bywho? Sorqfl
By Michael and Borden Light Marina. It's been a

17
18

bullying effect forever. Well, forever,certainlywhileyou'vebeen

board?

onthe

19 A 2l Q 22 23 24
20
NOTES

Aslongas I'vebeen around,yes.

Sir, I'd like to go through with you various photographs that I believe you've taken.

MR. SEIGENBERG: Again, I think they're 32, Your Honor' Yes' 32'

8 9Q 10 ll A 12 Q 13 14 A 15 Q 16 A 17 18 19 Q 20 A 21 Q 22 A 23 Q 24

Actually, that's to the right of building I l. That's a wall that runs towards Almond Street.
There a'lso seems to be

- I guess, a boat there,

right?

Yeah. There's two boats there.

Are thoseboats in what's beencalled in this case,
as shrink wrapped?

Yes, they are.

Is thatshrinkwrapfairlyconsistent Well, actually, one appears tobe shrinkwrapped.

Theotherappearstobecanvas. Itmaybelongtothe
boat itself.

Which is shrink wrapped?

Shrink wrapped is to the right. The one with the Right.
- things sticking out there?

horrific -

2ro-

MR. BRENNAN: Objection, Your Honor, to at1

KS COURT REPORTING
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Phone: (978)

777-5802 FAX:

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LANDING
t 2 3 4 5 6 7 8 9 10
11
horrific.

BORDEN LIGHT.#254067
a bad attempt at humor.

VoI.II rugllo
IA
They're on the land.

MR.SEIGENBERG: No,it'sjusta-I'm sorry. It was

THE COLJRT: Yes. I don't think we need

2Q
3

And the boat on the left, what type of material is

that encased in? It appears to be shrink wrap. Then go to photograph
I have

that. Sfike that, please.

MR. SEIGENBERG: It's late in the aftemoon. I apologize, Your Honor. MR. BRENNAN; Unless I can cross examine mv
brother.

4A sQ 6A
7Q

E.

E.

it.

What does that depict, sir? It depicts the end of that concrete wall into an area where their travel
Where's the travel

8A
9

lift is lift. sir?

the right and south

MR. SEIGENBERG: That I'd welcome.

l0Q

12
13

Going to exhibit that depict?

- photograph C, sir, what does

llA
t2

The travel
afea.

lift is to

ofthe tent

A That's the same wall, looking south. That's behind 14 building 11. I 5 Q And to the right, what's depicted in the right of the 16 photograph? 17 A Thereareboats. There's theclubhouse, there's a 18 tent structure, roadway. Also in that picture, 19 there's a boundary marker towards the left, towards 20 the building, just behind the fence where it sort of 2l V's in. 22 Q lsee. So, that'sthebound -youbelievethatto 23 be the boundary line for the 24 A That's the boundary line that we had - we paid to
_213 -

13Q

It's that tall metal object? That is correct. When you say "travel
the use of that travel

14A

lsQ
16
18

lift," what do you understand

lift?
the seasons.

17A A travel lift

and

is to put boats in and out of the water

bring - during the changes of

leQ
20

And this grass here, to the right of the fence, who

naintains that? Who has maintained that?

The landing at South Park.
Has there ever been any objection to The l-anding

2tA
22Q
z)

maintaining that

area?

241.

Only after we filed the contempt. -215 -

t
2Q

have measured. Is it fair to saythat anything to the

rightof that

3 4 5
6A 7Q

boundary line would be the twenty - without anything, but the twenty feet to the right ofthat would be where the easement is located? That is correct. What building is there, do you knou/? Can you tell?

8
9A

Isitl0orll?
It's within the areaofbuildings 10 and 11.

l0 Q II 12 13 A 14 Q 15 A 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 24

And also, there is in theright-hand sideofthe

photograph, I know there's a better one coming up, but there's a building there above that tarped area?

Yes. That'stheirclubhouse.
I see. I think that's what they call it.

And going to D, and that's

- is that a picture

of

thatbuildingyoujustdescribed? Yes, it is. And the top of thatbuilding, is that the cupola
thafs been referred to in this litieation?
Yes. it is.
These boats that are depicted in D, sir, at least in

the foreground ofthe picture, those two boats, are

those on the land or

offthe land?
al
A

I Q And thafs when the statements were received by 2 Michael Lund that 3 A That is correct. 4 Q - you testified to? [rt's go to photograph F. And 5 that's generally the same area 6 A Same area. 7 Q And there's a picnic table there; is that correct? 8 A That is correct. 9 Q Has that picnic table been there - for how long, l0 sir? ll A Iwouldliketo sayprobably, maybetwoyears. I 12 truthfully - I can't say exactly. 13 Q Do you know who put the picnic table there? Was 14 it - first of all, did The hnding put the picnic 15 table 16 A No. We assume Borden Light Marina put it there. l7 Q And this also shows the travel lift alittle closer 18 up; correct? 19 A Thatiscorrect. 20 Q AndphotographG,sir? 2 1 A That's a picture taken behind, I believe, building 8, 22 looking out over the boats that are being stored on 23 land. 24 Q And if we go to H.
-216-

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777-5802 FAX:

(978) 777-5803

LANDING
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BORDEN LIGHT #254067 Vor,.

of

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2A

Again, this is depicting, and I can't tell which building this is, but it's somewhere in that area
boats being stored on land.

I Q

What have you determined visually, sir? That the lift exceeds nineteen foot MSL.

Now, sir, we have

as an

exhibit in this case, an

elevation plan that talks about the elevation level relative to mean sea level ofall these retaining

walls. Do you understand?

Yes,lunderstand. MR. SEIGENBERG: And I just poinr out to
the court that that elevation plan as an exhibit

would indicate that all the walls are - that exceed

19

MSL, mean

sea

level. So, I think it's important

for the court to understand as we go through these photographs to get views ofheights. Now, thattravel lift, sir, is thatkept at The

tanding, on The landing property year round? No, on Borden Light Marina.
I mean, Borden Light Marina.
Yes,

it is.

Based on the fact that the retaining wall is at least

nineteen feet mean sea level, are you able to determine the approximate height ofthat travel
that's kept on the Marina's property?

lift

MR. BRENNAN: Objection, Your Honor. The

3 4 5 6 7 8 9 l0 II 12 13 14 15 16 17 l8 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 l0 ll 12 13 14 15 16 17 18 19 20 21 22 23 24

THE COURT: Counsel, do we have a plan that shows the actual dimensions ofthe easement area, showing some of these objects within that - do we know, for example, that that lift is within that easementarea? Hasthatbeenestablished? MR. SEIGENBERG: I think I had asked that question. I think the witness had said it's kept on
the Marina's property year round.

THE COURT: On the property, but do we know that it's in the easement area? I don't want to have questions about the height ofthings that are outside
the easement area.

MR. SEIGENBERG: I understand. And that's

aimed more at the visual easement. Your Honor.

THE COURT: But the visual easement relates

to the easement area; am I correct?

MR. SEIGENBERG: No. THE COURT: You're salng it's an unlimited

area?

MR. SEIGENBERG: And I apologize I didn't bring this to the court's attention. The visual
easement encompasses at the minimum, all of lot 3.

-2t9 -

I witness is going to measure the heightofthe travel 2 lift. I don't think he's qualified to do that. 3 THE COURT: I don't think it's been 4 established whether he measured it or not. 5 MR. SEIGENBERG: I don't even think lm 6 asking to do that, Your Honor. I'm just trying to 7 I guess to have him state almost the obvious that 8 the -obviouslyvisually,ifyoutestandingonthe 9 wall, and you know the wall's at twenty mean sea l0 level, and you see a lift that extends fifteen feet II up, then you can know that it's going to be thirty to 12 forty feet at mean sea level. 13 THECOURT: Idon'tlnowifyou'dknowhow 14 many feet above sea level it would be. 15 THE WITNESS: May I answer the question, 16 Your Honor? 17 MR. SEIGENBERG: lrt me rephrase. Can I 18 rephrase it, Your Honor. 19 THECOURT: Okay. 20 MR. SEIGENBERG: lrt me rephrase. 2l Q Sir, knowing that the retaining walls are at least 22 nineteen feet MSL, are you able to visually determine 23 that that lift exceeds nineteen MSL?? 24 A Yes.
-218NOTES:

So, anything that's on lot 3, which is the Marina property, is subject to that nineteen feet visual easement.

THE COURT: And you a$ee with that? MR. BRENNAN: Oh, I couldn,t disagree more.

THECOURT: Okay.
MR. BRENNAN: Your Honor, let me just THE COURT: So, we've got a problem here. MR. BRENNAN: - clarify the point of
disagreement.

THECOURT: Okay. MR.BRENNAN: Idon'tsaythevisual

easement encompasses only the twenty feet.

THECOURT: Okay. MR. BRENNAN: But the visual easement. bv

it's definition, the specific term says "over portion oflot 3."
a

THECOURT: Okay. MR. BRENNAN: Ifs not over the entire lot. THE COURT: So, there's a dispute MR BRENNAN: But it's not limited THE COURT: - over the portion MR. BRENNAN: - to the point THE COURT: - that it covers.
220 -

l4 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING v BORDEN LIGHT #2s4067

I MR. BRENNAN: It's due west of The landine 2 property. 3 THE COURT: Due west. 4 MR. BRENNAN: The defendants will put in 5 evidence ofwhat due west means. 6 THE COURT: Okay. I don't wanr to get into 7 what the evidence will show, but just more, did we 8 have a plan that depicted where these items were in 9 relation to the easement? 10 MR. SEIGENBERG: No. But once again, ifs - aimed at the visual easement. 11 They may argue as to 12 the -obviouslywehaveadifferentviewofit,and 13 the portion. It seems to me clear from the 14 documents, the easements and plans that are attached 15 thar 16 THE COURT: Okay. I see where vou're l7 coming from. 18 MR. SEIGENBERG: So, that's all. 19 Q So, sir, Ithinkwe'vealreadyestablished this. 20 kt's go to photograph H, sir. 21 A I'm there. 22 Q Great. And whatdoesthatdepic! sir? 23 A Boat storage at Borden Light Marina. 24 Q Now, sir, have you determined, once again, relative -zztI

VoI.II 1u9n0
I A -firstofall, they'reblackandwhite. Andsecond 2 ofall 3 Q If you don't know, that would be 4 A - but based on -- my assumption is that they are. 5 Q Maybe this photograph will hetp you, sir, going to 6 photograph J. It looks like on the left-hand side 7 there's -8 A Oh, yes. This is a property boundary mark that was 9 put in by Mount Hope. And based on that, yes, they 10 would be within the 20-foot easement. I I Q And thor K, sir? 12 A Northem ord of building 7 with the pool. 13 Q Thefenced area is where the pool is located; 14 correct? 15 A Thatiscorrect. And theboatsthataredirectly 16 behind the pool are definitely within the easement l7 area. 18 Q Now, sir, in this photograph on theright-hand side, 19 there is aconcrete wall. I think it,s concrete. Do 20 you agree? 2l A Actually it's concrete block, I believe. 22 Q Concrete block. Do you lorow when that was 23 constructed? 24 A Ibelievethatwas 2005/2006.
-tzJ-

2A
3

to the wall, does that boat exceed nineteen MSL? Based on the height of the wall, we have numerous
boats that exceed nineteen foot MSL.

I Q
2A 3Q

That's that area you testified to?

Yes.

4Q
5

Once again, also,just to theright of the pool area,

there's numerous boats there: correct?

And these boats that are situated, do you know how long boats have been stored in that area as deDicted
on that photograph?

4
5A 6Q

That is correct.
Those boats have been - what season are those boats stored there?

7A
o

You mean, how long have they been this year,

been used for boat storage?

or -

8Q h
10A

7
8A

general, I mean, how many years back had that area

Usually somewhere starting late October until I would

say, May, very early June. And photograph L?

9 Q I A 12 Q 13 14 15 16 17 l8 19 20 2l A 22 23 24
10
I

ll
12Q

Probably as long as I've been there, in this particular area. Then going to photograph l, sir. Okay. What does that depict? That's looking south towards the end of the Marina. This is behind - actually this is behind building
I

Basically the same.

l3A
14Q

And then going to

M.

There's another wall there, a

Is

sectionofwallneartheboats,doyouseethat?
that the same concrete wall that you testified to earlier, concrete block wall,

15A
16

ifyou know.

t7

0, because next becomes building

8.

I can see the

MR. SEIGENBERG: Once again, geographically, Your Honor,just to situate the

court, these photographs are all taken, starting from
the northerly end, going to the southerly ard

l8 t9

pool, and then that would be building behind building 8, looking south.

6.

So, this is

20Q
2I

ofthe

In these first row of boats closest to the wall, are

they within the 20-foot easement, sir?

property.

22
2J

Actually, that's more behind building - I believe building 6. And really, thafs not the same
as the

A,

I'm

not - it's difficult to tell,

because I'm not

seeing Okay.

24Q
NOTES:

concreteblockwall. That'sanoldconcretewall that was there prior to 2000.

114

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KS COURT REPORTING

LANDING v BORDEN LIGHT,#254067 VoL. lQ And then going to photograph N. What dos that
z

tu9n0
I
z
indicates the following, "that John Lund and Brian Corey grant to The l-anding at South Park, *nc., the

depict, sir? It depicts the boats that are stored against the

3A
4
5

wall. And I'm saying

6, 5, 4 and 3.

here, probably behind

building
5 6
7 8

following perpetual right and easement in connection with the construction of 140 condominium units on the
premises directly to the west of the premises herein described, which shall run with the premises as hereinafter described, for a view unobstructed by any structure in the area, nineteen feet above mean sea

6Q

7A
8Q
9
10

Well, okay, going all the way in the back. Going - go all the way up, yeah.
I see. I think the

nextphoto - if you tum to O,

do you see that stake in the middle of the photograph?

Yes.

l0

level on the premises being bound and described follows."

as

11 A

llQ
T2

12Q

And sir, going back to photograph Q, what impact,

if

What is that stake? That's a property boundary marker that we had from surveying the property.
So, anything to the left

any, what's depicted on this photograph, have on that

13A
l4 15Q
16

t3

14A
15

ofthat would be The landing

visual easement? He didn't preclude anybody in any of the lower units from being able to see anything ofthe bay at all. Well, you can sort of see some of the bay, can't you? Not if you were in the bui'lding Okay. - looking out your window. Once again, is this the type ofstorage that occurs, once again, I think you said from October

property? That is correct. !o the right of that, at least twenty feet, would be the 20-loot wide easement: correct? Yes. it would. What building is that boundary stake directly across from, if you knov/? Again, I think it's building 6. Maybe this

l7A
l9

16Q
17
A.

18Q And anything

18Q

19A
20Q

20A

2lQ
22

to -

234
24Q

22A
24

This is typical.
standing, once again, property goes from southerly to northerly,
1aa

23Q Ifyoute

will - if you

go to photo$aph P, and

ifThe tanding if youte

-225 I
z
3

what does that depict, sir? That again, depicts the boat storage, the troundary marker, and this may be -

a
A
6
7 8

Where the sheathing wall starts, too?

That's where the sheathing wall starts, yeah.

When was that sheathing wall constructed, if you

knou/? be exact on

A I couldn't

it.

Was

it after - was it 2000 beyond?

l0 A
11

I believe so, but I can't testify to that.

Sir, based on your understanding, how much room

is -

12 IJ

to the sheathing wall to that stake, do you know

approximately how many feet there are?

t4 A I can tell you it's less than twenty.

l<
16

a
A

And photograph Q, sir, what does that depict? That was taken from behind one ofthe buildings, and depicts present storage ofboats. And this is moving towards the southerly end, but I can't tell you whether it's building 5 or building 4, or building I know it's not building 3. Based on the fence, I

17

l8 l9
20

2l
22

z)
z1

think it may be building MR. SEIGENBERG: Your Honor, I'm going to bring the court's attention, if I could at this point in time, to exhibit 4, the visual easement, and it

I 2 3A 4Q 5A 6Q 7A 8 9Q 10 A II 12 Q 13 A 14 15 Q 16 17 A 18 Q 19 20 A 2l Q 22 23 A 24

looking at Mount Hope Bay, what direction are you looking at?
West.

Sir, if we can go to photograph R. I'mthere.

Oh,great. Andwhatdoesthatdepict?
Absolutely no view at all. I have boats in my way. I can't even see the water for the most part. And that's what's I mean, I might be able to peek through and see'it,

but that's about it. And photograph S,

as

well, sir?

Thatis correct. Very, verylittleviewofthebay,

and that's standing on the land.

And that's once again, nearthat sheathing wall;

correct?

Thatiscorrect.
And then T, thafs going furthersoutherly; conect,
sir? That is correct.

Isthere -doyou seeany, onT,anystakeor

anything

in

There's a boundary marker, and it's up against the wooden fence.

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KS COURT REPORTING

LANDING
1Q

BORDEN LIGHT.#254067 Vor,.I

tltgn0
I A
2Q
No, that erosion wasn't there. Prior to that excavation in 2008 and 2009, what was

So once again, that wooden fence is right on the

2 boundary line, almost? 3 A Yes. it is. 4 Q And then go to photograph U. Does thatphoto$aph 5 also depict another boundary marker? 6 A Yes, it does. It's very difficult for me to see it 7 here, but yes, it does. 8 Q What kind of wall is this, sir? 9 A This is the latest block wall that BML 10 Q Oh, this is approximately 650 feet that was constructed in 2008 and 2009? II 12 A Thatiscorrect. 13 Q This is that concrete block wall. Now, on this 14 wall -depictedhereis also somesortofaroadway 15 area. Do you see that? 16 A Yes. l7 Q Did thatexistprior tothe excavationin 2008 and 18 2009? 19 A Notto thatextent. There mayhavebeen apath, but 20 not that roadway. 21 Q Wereboats stored there on thatlocationpriorto 22 2008? 23 A Not in the manner they are presently. 24 Q And specifically, goingfromthatboundarymark,
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3 to the right oftheboundary stake? 4 A Slope, going to the water. 5 Q Which The I-anding maintained? 6 A Yes. 7 Q AndphotographX? 8 A Again, behind building 3, shrink wrapped boats, I'm 9 standing there, again, having a visual view ofthe l0 bay, except a very small corner. I 1 Q And these boats, they're still in the easement area, 12 sir? 13 A Yes,theyare. 14 Q Once again, knowing the elevation of that wall, what is the elevation ofthese boats relative to nineteen l5 16 mean sea level? 17 A They'reaboveit. 18 Q And photograph Y? Is thatan example of one ofthe 19 shrink wrapped boats? 20 A That's an example of one of the shrink wrapped boats, yes. 2l 22 Q And going to Z, sir, what does that depict? 23 A More boat storage. 24 Q And going to double A, another boundary stake?
- Ltt -

1 approximately how much room is there from that 2 boundary mark to that concrete block wall in that 3 location? 4 A Maximum ten feet. 5 Q Photo V, sir, *tatdoes thatphotograph depict? 6 A Broken drain behind building 5. 7 Q Doyouknowwherethafslocatedprecisely? 8 A Behind building 5. 9 Q I know, but relative to where the concrete wall is or the easement area. l0 I I A It's in the easement area. 12 Q How are you able to determine that? 13 A Itookthepicture. 14 Q Okay. Fairenough. And going to W, sir, is that also another 15 16 stake in the middle left side ofthe photograph? 17 A Yes. 18 Q Whatelseis depicted on this photograph, sir? 19 A Building3,boatstorage 20 Q And I know it's difficult with 21 A -someofthe erosionthat's occurringbased on the 22 excavationbehind - actuallybehind the fence. 23 Q Was that there prior to the excavation that was done 24 in 2008 and 2009?
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I A
2Q

Yes. there is. How much room is there - once again, next to that

3 boundary stake, what is that, sir? 4 A To the left or the right? 5 Q To the left. I'm sorry. 6 A There's a dmin and a Pad. 7 Q Howcloseis thatbuilding to thatboundary stake, sir, approximately? 8 9 A Approximately five feet. l0 Q And from the stake, down to the concrete wall that's II there? 12 A Maybe six or seven. 13 Q And double B, sir? THE COURT: Counsel, are you planning to go 14 15 through every one ofthese MR. SEIGENBERG: Im trying to get through 16 17 before the break. THECOURT: WereallY -l'mafraidwe 18 19 really have to wrap up now and continue this 20 tomorrow. Okay. MR. SEIGENBERG: That sounds great. Thank 2l 22 you, Your Honor. THE COURT: So, tomorrowmoming we will 23 24 continue with this direct examination of this
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Phone:

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14 Palmer Avenue Danvers, Massachusetts 01923

LANDING v BORDEN LIGHT.#254067 Vol.

I 2 3 4 5 6 7 8 9
10

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witness, and we will move to comolete this witness. Tomorrow moming you will be closing or have, and I'm hopeful that issue.

MR. SEIGENBERG: The only other issue I will resolve with counsel, is the building inspector. But Im sure we'll resolve

THECOURT: Okay. MR. BRENNAN: I'm sorry to say this, but

for myplanning purposes, is this your last witness? MR. SEIGENBERG: It is. other than the building inspector issue. But I'm sure, I would think that you and I could resolve that.
THE COURT:

I 12
I

l3
ti l)

All right. Thank you.

l6
l7 l8
l9
20
21

MR. SEIGENBERG: Thank you, Your Honor. (Hearing suspended at 4:12 p.m. Trial to be resumed for Day 3 on
Wednesday, Novernber 10th, 201 0

22
LJ 1n

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COMMONWEALTH OF MASSACHUSETTS
I, Karen V. Smith, Professional Court Reporter and Notary Public in and for the Commonwealth of Massachuseus, do hereby certifu that the foregoing record, Pages

to 233,

inclusive, is a true and accurate hanscript of my system tapes to the best of my knowledge, skill and ability.
I am not connected by blood or marriage with any said parties, nor interested directly or indirectly in the

ofthe

matter ln controversy.

IN WITNESS WHEREOF, I have hereunto

Notary Seal this 28th day

set my hand and

of

V. SMITH, Notary Public Mv

ission expires: l0/18/2013

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KS COURT REPORTING