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Volume: III Pages: 2L9 2 Exhibits:


COMMOMIEALTH OF MASSACHUSETTS

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BRISTOL, SS.

2 3 4 5
6

I,AND COURT DEPARTMENT OF THE TRIAL COURT MISC. CASE NO. 254067

****************** Before:
THE I-,ANDING
SOUTH PARK ASSOCIAT ION CONDOMINIT}M

Cutler,

At

'J.

Plaint.if f
8

vtt. 9

BORDEN LIGHT MARTNA, INC.


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11

Defendant

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r:

12
1.3

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

1,4

15

t6
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18 19

Wednesday, November
6

10,

20L0

20
21"

Courtroom 226 CausewaY Street. Boston, Massachusetts

021-1-4

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23

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a

24

i i.' '' '''':-i1,:: -.i..] .:.ri"

::

KAREN SMITH
Court Reporter

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14 Palmer Avenue

COPY
923

.iia.:i!r::r'

.';

Danvers, Massachusetts

0I

(978)777-s802
Fax (978) 777-5803

LANDING v BORDEN LIGHT #254067.VoL.


Volume: III
Pages:219

rut0n0
INDEX
WITNESS:

Exhibits: #43144 COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. LAND COURT DEPARTMENT OF THE TRIALCOURT

DIRECT CROSS REDIRECT RECROSS

CHARLES SCHNITZLEIN (By Mr.

**

r* * ** *** *r* * * **
Plaintiff

MISC. CASE

NO. 254067

Seigenberg)

THE I.A,NDING at SOUTH PARK

(By Mr. Brornan)


Before: CUTLER.
J

t2

48

CONDOMINIUM ASSOCIATION

JAMES FIALL BORDEN LIGHT MARINA, INC.

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

Defendant

(By Mr.

Brennan)

55
IJ

80, 88
82

(By Mr. Seigenberg)

MICTIAELLUND
(By Mr. Brennan)
Wednesday, Novernber 10, 20 10 Courtroom 6 226 Causeway Street Boston, Massachusetts 021 14

9l
145

175

@y Mr. Seigenberg)

PETER ROSEN

(By Mr. Brennan)

182

APPEARANCES:

DANIEL R. SEIGENBERG, ESQ MATTHEW WATSKY, ESQ.


2 Commsrcial Street Sharon, Massachusetts 02067 (78 1)784-8800

EXHIBITS
No. Description

Id.

Evid.

Representing the Plaintiff

43 Planoflandshowingencroachments,
dated 10/29199

70

EDMUND BRENNAN, ESQ.


Brennan, Recupero One Church Green P-O. Box 488 Taunton, Massachusetts 02780 (508)822-0 1 78 Representing the Defendant

44

Curriculum Vitae of Peter S.

Rosen

87

l4 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-s802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING
1 2 3 4 5 6 7 8 9 l0 1l 12 l3 14 15 16 17 18 19 Z0 2l 22 23 24 I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 i8
19

BORDEN

LIGIIT

#254067 Vor,.

PROCEEDINGS COURT CLERK: Wednesday, November lOth, 2010, miscellaneous case number 254067, The

hnding

at South Park Condominium Association vs Borden Lieht

Marina, Incorporated. THE COURT: Good moming. MR. BRENNAN: Good moming, Your Honor. THE COURT: Are you going to stopbringing
up this rainy weather one day?

MR. BRENNAN: I apologize for that.

THECOURT: Iunderstand. MR. BRENNAN: Two hours-and-a-half to eo


thirty miles. THE COURT: I understand. MR. SEIGENBERG: It's been a chore for all ofus. MR. BRENNAN: Rather than staying in town. THE COURT: I know. So, we were in the middle or toward the end, I guess. MR. SEIGENBERG: Yes, we are. Your Honor,

if I may, before
size deposition

we

begin. l,ast night as we broke,

you requested that I make an extra copy ofthe full

tanscript -

THECOURT: Yes.

11/10i10 I Q Well, you say, "one of the buildings." Is that one 2 ofthose buildings either 3, 4 or 5, sir? 3 A Yes, it is. 4 Q Once again, these photographs that we've been going 5 through, they were all taken when, sir? 6 A Within this past month. 7 Q So,onceagain,itwould 8 A In the last thirty days. 9 Q - havebeen October, approximately, of 2010? l0 A Thatiscorrect. I I Q And the next photograph, photograph - strike that. 12 I mean, we're still on BB. Obviously, the boat 13 thafs depicted in BB, that's located on the Marina's 14 property? 15 A Theboats? 16 Q Yes,theboatthafs depicted there. And that'spart 17 ofthe winter storage? 18 A Thatiscorrect. 19 Q AndCC,whatdoes thatdepict? 20 A Thafs looking from the south, north, that's behind 21 building 3. 22 Q This is after that excavation, and construction of 23 that retaining wall was done in 2009; correct? 24 A That's conect. Ifyou see the lighterareaofthe
I
2Q 4Q
photo, you can see the erosion.

-5MR. SEIGENBERG: - that I had. I have


brought that in.

Isee. Andtheerosion I see. And to the left there are a few boats, and
these, once again, these are winter storage boats?

THECOURT: Thankyou. MR.SEIGENBERG: Butljustwantedtonote


for the record that I had made some indications in the transcript just to guide me as I was doing the
oral presentation on it to indicate where I would skip to, so there'is no intention to strike anl4hing

3 A Behind the fence.

5
6A

Actually, the boat in the picture - this is


has been there all summer.

7 8 10 1 1 12
9Q

second - that boat hadn't moved al'l summer. That And the other boats depicted in the photograph, are
they, what do you understand the reason -- there are
storage boats located on the Marina property out

fiom it. THECOURT: Okay.


MR. SEIGENBERG: And I didn't make any
commeflts as far as I can recall.

of

the water; correct?

THE COURT: So, I will disregard any stray writings on there.

All right. I thank you for doing that. My


eyes thank you for doing that. Resumed Direct Examination of CHARLES SCHNITZLEIN

13 A Right. 14 Q And in DD, what does that depict, sir? 15 A That's actually the south end where the wall

comes

(By Mr. Seigenberg:)

Q A Q A

20
21 22 23

Ithinkwhenweended yesterday, we were on photograph BB ofexhibit 32.


Yes.

16 17 18 19
20 Q

intotheareawheretheyopeneduparoadway. You
can see where the fence actually towards the left, then makes a somewhat 90 degree tum heading towards

Club Street.
Based on the

locationofthatstonewall,sir, does

21
22 A

that intrude at all onto The tanding's property? Yes, it does.

Can you tell us what that photograph depicts? That's looking at the Marina from one of the

24
NOTES

buildings, looking west.

23 24

THE COURT: I'm sorry. I didn't hear that. MR. SEIGENBERG: Surely. I asked him

if

-o-

-8-

KS COURT REPORTING
14 Palmer Avenue

Phone: (978)

Danvers Massachusetts 01923 777-5802 FAX: (978) 777-5803

LANDING vBORDEN LIGHT #254067 VoL.II


I 2 4 5A 6 7 8 9 10 I1 Q 12 13 14 A 15 Q 16 17 18 A 19 Q 20 A 21 Q 22 23 A 24 Q I A
2Q
3Q
that stone wall intrudes onto The tanding's property.
The answer was "yes." Can you tell us where,

wfin0
I
2Q
they excavated. Sir, you've bean on the board since 2005, as you've already testified
managers

sir? I know there's

a plan

that shows it,

but

Well, it inhudes on our property from where it tums back to a point, and that point isnt actually
referenced here. Actually,

thatpointis further

3 4 5 6 7 l0 I1
12

to. At

any point in time during

the period of time that you were on the board

of

ofThe I-anding, did the board ever provide

any authority or permission for the Marina to do any

ofthe excavation or consfuction ofthe walls?

down because it's indicated by a marker that is basically where the fence post and the property come
together.

8 A Notatall. We weren'teven asked forpermission. 9 Q And sir, let's focus on particularly the recent
expansionthafsoccurredin2003and2009. What impact, ifany, has that had on The l-anding property? It's opened up, firstofall, an exitthatwasn't therebefore. The Borden LightMarinahas notput

And photograph DD, that includes - that shows the southerly end ofthe concrete blockwall that was constructed in 2009: correct?

Thatiscorrect. Now sir, the area of the wall along The tanding's
property as it adjoins the Marina's properry, what is
the length

ofthat wall, sir?

Approximately600/620feet.
No, no, sir, the whole length of the wall.

Approximately 1800 feet. And the concrete wall that was constructed in 2009
approximately how many linear feet is that? You mean How many feet in length?

A 13 14 evan in a stop sign or a leld sign, and people l5 comingupoutofthatareajustplowinto -don't 16 loolg they just come into Club Street and, you know, 17 if somebody was coming the other way, we could have 18 anaccident. Therewasnoplantodoanytraffic 19 control. We'vegotnoise;we'vegotdust. MR. BRENNAN: Your Honor, objection to any 20 2l nuisance testimony because there's no nuisance action 22 in this case. 23 THE COURT: I aeree. Strike that 24 testimony.
t1

-9600/620 feet, approximately.


So, real quick math, and that

I
the - so, the wall

MR. SEIGENBERG: That's fine.


So, the question nonetheless, is there an impact on The I-anding by this recent construction, and

2Q

3 thatwas consFucted in 2009 encornpasses 4 approximately a third of the total wall length; 5 correct? 6 A That's correct. 7 Q And then photograph EE, sir? 8 A That depicts the -whafs left ofaparking lotthat we had use of. 9 10 Q The nextphotograph,sir, FF, thatwasn'ttaken in II 2010: correct? 12 A No. Thatwas taken somewhere inAugustof 2007. 13 Q What does that show, sir? 14 A It shows part of the Braga Bridge and the Marina l5 before the expansion. 16 Q And that photograph GG, sir? When was that 17 photograph taken? 18 A Again, thatwas taken around Augustof2007, and l9 that's how the Marina looked in the year of August,

3 4
5A

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

20
23 24

2007.

21 Q And I think the last photograph, photograph HH. 22 A Thafs a picture ofwhat the parking lot looked prior
to Borden Light Marina's excavation, and it shows the rocks that were in place, blocking the area before

6 7 8 9 I0 Q II 12 13 14 15 16 17 18 19 20 Q 21 A 22 Q 23 24 A

financing. We directly know that through


correspondence that they had with Attomey Watsky, tryrng to get financing and have been refused because

of the question of the structure of the wall. ht your opinion, sir, in your understanding,

has this

recent expansion ofThe l-anding and their winter


storage had any impact on the market value of The

landing'sproperties? MR. BRENNAN: Objection. No expertise.

THECOURT: Sustained.
MR. SEIGENBERG: I have nothing fuither.
Thank you, Your Honor. CROSS EXAMINATION

(By Mr. Brennan:) Goodmoming. Goodmoming.


Sir, could you elaborate a bit on your employment histo48 Do you have a college education? Yes,Ido.

-l0NOTES

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

KS COURT REPORTING

LANDING
I Q
2A

BORDEN LIGHT #2s4067 VOr,.II


which is now Pace University in New

tul0flO
I Q 2 3A 4Q 5 6A 7Q 8 9 10 II 12 13 14 15 Q 16 17 18 19 A 20 Q 21 22 23 24 A
1Q
with attomeys then, in the past?
Limited.

,;;*;;:

Where was that from?


Pace College,

So, you had experience working on business matters

3
4Q 5A
6Q

York. Did you haveamajorareaofstudy?


Accounting and business administration.

Butyou wereaware ofthe services theycould


provide? Yes.

After graduating from college, did you have any post


college education or courses or degrees?
I have taken various courses at BCC, mostly in the

7
8A 9 l0 Q II 12 13 14 A 15 Q 16 A 17 18 19 20 21 Q 22 23 24 A

IT

Now, in 2006, when you signed the settlement agreement MR. BRENNAN: Your Honor, may I check my file just to see the exhibit number on that I'm referring it to, but I have referred to the exhibit
number.

computer field, and not anything beyond that. So, itwouldbe strike that.

fairto saythatyou'vebeen -

Afteryou graduated, did you go into the businessworldandworkfor -haveacareer? rdid. Andthatcareerwasin whatfreld?
Warehouse management, accounting. The problem is,

MR SEIGENBERG:

39, Ed.

MR. BRENNAN: Okay. Thank you.


When you signed the settlement agreement that has
been marked as exhibit 39, there was a reference

in

I've had many things that relate to

it.

fve been

there to the dismissal of the lawsuit: is that correct?

credit manager; I've been confoller for

corporations. To answer the question, basically mostly in the finance field. So,you'vebeen -youwereinthebusinessworld with
a concentration

Thatiscorrect. If I understand your testimony correctly, when you


signed that document, you didn't inquire as to the trms of that litigation, or the subject matter that litigation, or the nature ofthe litigation? That's correct.

in the finance business for how

of

many years? Probably forty to forty-five years.

-13-

I Q Did you ever own a troat or a )acht? 2.{ No. 3 Q Now, you moved into The tanding at South Park, if I 4 recall correctly, in 1998; is thatconect? 5 A Approximately, yes. 6 Q You became a member of the board of managers in 2005? 7 A That's correct. 8 Q Your testimony is that prior to 2005, you were not 9 aware ofany pending litigation between The tanding l0 at South Park and the Marina? I I A That is correct. 12 Q You leamed about the fact that there was something 13 pending in 2005 when you became a member ofthe board 14 ofmanagers? 15 A If that's when the agreement was put together, then I 16 would sayyes. 17 Q Well, the agreement dated March 16th of 2006. 18 A So that's when Ireally gotto know that there was 19 something. 20 Q b the course of yourexperiance in thebusiness 21 world, did you have an opportunity to employ or 22 engage the services ofother professionals, be it an 23 attomey, for example? 24 A Yes.

So, you testified that you serve on a board

of

managers in a fiduciary capacity; is that correct?

-t4NOTES

3 A That's correct. 4 Q And as a fiduciary for the other - how many units 5 are there in The l-andine? 6 A One hundred forty. 7 Q One hundred forty. So, as a fiduciary for the other I 139 unit owners, it's your testimony you took no 9 action to determine what that litigation was about; l0 is that correct? ll A Atthatpoint,we were informedbyBLM that -and 12 Mr. Lund that it was strictly something that they had 13 won. Ifwecontinuedbeyondthatpoint,andwe 14 didn't come to some kind of ageement, they would 15 reopen the litigation. At that point in time there 16 was no course for us to really look at it. We l7 assumed it was going to b taken care of, and we've l8 always heard that it was dormant. And, no, we didn't 19 look at it. 20 Q Andyou agreethattheboard ofmanagers was 2l represanted by counsel in the preparation ofthis 22 agreement? 23 A Onlyin thepreparation ofthis. 24 Q Of the settlement agreement?
_16_

KS COURT REPORTING
Phone: (978)

14 Palmer Avenue Danvers, Massachusetts 01 923 777-5802 FAX: (978) 777-5803

LANDING
I A 3 4
5A 2 Q Right.

BORDEN LIGHT #254067 VOL.II


of

Iut0n0
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time on the board, Your Honor.

v:i

Of the settlement and nothing else.


But do you recall that the law firm Marcus, Enrico, Emmer and Brooks was on retainer at that time to the condominium association? They're not rctained. They act when we call them and

MR. SEIGENBERG: My understanding is that


sheathing work was probably prior to his period

of of

THE COURT: Correct. Change your line


questioning there.

6
7Q

theybill

us.

MR. SEIGENBERG: Thank you. Now, since you've become a member of the board of managers in 2005, subsequent to your appointment or
election to that position, did you observe any construction activity by Bordn Light Marina on the retaining wall?
Yes.

So, you had access to counsel on that matter, had you chosen to explore it. Yes. So you signed asettlementagreernentwithout

8
9A

l0 Q I1 12 13 A 14 15 16 Q 17 A 18 Q 19 20 2l 22 23 A 24 Q I 2 3 4
5A 6Q

understanding the nature ofthe litigation that you


were agreeing to dismiss?

I would have assumed at that time

if

there was

Keeping in mind that you were appointed in 2005, when

something present, Marcus Enrico would have brought

first after your election into that office did you


observe such activity?

it forth.
But you didn't inquire?
No.

Probablyaround 2008. And that's while you were


Yes.
a member

of the board?

Now, it's also your testimony, if I understand it correctly, that you were unaware of the preliminary injunction that issued in this court in May of 2000 until Attomey Watsky pointed that out to you in the fall of2009. Do Irecall thatcorrectly?
That is conect. Since 1998, when you became an owner at The tanding
11

Observing the wall construction for the first time in 2008 as a member ofthe board ofmanagers, what, anything, did you do next after making that observation? As a member ofthe board, the board discussed about

if

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

-lothe situation was. We knew there was an agreement in place. Andaslsaidinmytestimonybefore,there was probably premature building of the

at South Park, is it fair to say that you obsewed construction activities at different times by Bordan

Light Marina in the course of constructing the


retaining wall?
Somewhat.

also got to realize is that what we envisioned

wall. What we of

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


since that sheathing was absolutely opposite from it.

Could you explain "somewhat" for me? I live there. I didn't spend - mostly it was where
we ate, slept and went to work because I don't have a view

7A

Andyouobserved in 2003,thefactthatin the opinion ofthe board ofmanagers, that wall that was
going up was not what the board expected; is that correct?

8 9 10 II Q 12 13 14 A 15 16 Q 17 A l8 Q 19 20 2l 22 23 24

from. So, what went

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

ofit.

So, can you tell me when you first recall observing

Thafscorrect.
What, that? We started to investigate. As aboard representing owners, we tried to be conservative, especially where there are agrements in place. It wasn't like we were going to run down and start screaming and

construction activity on the retaining wall that's


the subject matter

if anything, did the board of managers do about

ofthis case.

Iheard pounding of sheet going in, so at thatpoint I looked and saw them putting in sheathing.
Do you recall when thatwas?

Not exactly. After you obsewed that activity, what, if anything, did you do? MR. SEIGENBERG: Objection, Your Honor.
The court has appropriately pointed out to me that

yelling. We needed to become informed, and it took


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

totally informed of what really was. During thatoneyearwhen youwere doing your
investigation, that would take you into 2009; correct? That is correct.

he's -it'sreallyanissueashimasaboard
member.

THE COURT: Correct.

-18NOTES:

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

777-5802 FAX:

(978) 177-5803

LANDING v BORDEN LIGIIT.#254A67


I Q 2 3 4A 5Q 6 7 8A 9Q l0 11 A 12 13 Q
l4
During that time you were investigating, is it fair to say that Borden Light Marina completed the retaining wall that they built? That is corrert. During thatyear, theboard ofmanagers tookno action to stop Borden Light Marina from building that wall? We were investigating our options.

VoI.III tu10n0
I 2
3A
Borden Light Marina to add a row ofblocks to any other area ofthe retainine wall?
Yes. Was there a discussion about the cost to do that? Yes.

4Q
5A

6Q
7A 8Q

What was that discussion? Who's going to pay for it. Who was the discussion

with - or between I should

thata "no?" Theboardofmanagers tookno action to stop Bordan Light Marina from building that wall?
Is

In asenseofphysically, wetookno action; investigatively , we did. Now, ld like to point out -

MR. BRENNAN: May I approach the witness, Your Honor?

l5 Q l8 19 20 2l A 22 Q 23 A 24 Q 1
2A
t6 17

THECOURT: Yes.
I'd like to point out a document that's been marked
as

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

I-anding at South Park to the Marina of October 2nd, 2008. Yes, I'm aware of it. You're aware of that letter?
Yes.

You agree that this letter did issue to Borden Light

9 l0 A II 12 Q 13 14 A 15 Q 16 A I7 Q 18 19 A 20 Q 2l 22 A 23 Q 24 I A
2Q

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

in that discussion.
Was

it

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

that had that discussion with someone else?


Yes. Was the discussion Yes.

with Borden Light Marina?

Were you apprised of the substance of that discussion


as

in being a member of the board of managos?

I was. What was the outcome as to who was going to pay for the additional blocks?

Itneverwasreallysettled.
Wtere in the retaining wall did you want to add the
blocks?

-2t
Marina on that date?
Yes.

I believe

-23 it was behind building 4, in that


area.

Was that going to increase the height of the

3
4A
Yes.

STENOGRAPHER: Canyou STENOGRAPHER: You need to speak up or sit a little closer to the mic. THE WITNESS: Okay. Sorry. STENOGRAPHER: Thankvou.
And in fact THE COURT: Excuse me. Do you need water? THE WITNESS: No, Im okay.

3
4A

retaining wall?

Itwould haveincreased theheightoftheretaining


wall. Now, there in the photos that you were walked through
on your direct examination, there are many photos showing an old cedar-post fence; is that correct? That's correct.

5 6 7 8
9Q

5
6Q

10 II 12 13 74
15

THE COURT: Are you sure? THE Wffi{ESS: Yes, thank you.

16 17 18 A 20 Q 2l 22 23 A 24 Q
19
NOTES

THECOURT: Okay. And in fact, exhibitnumber38 is athankyou to Bordan Light Marina for adding a row ofblocks to
section ofthe wall, and thereby increasing the height; is that correct?
Yes.

This letter issued then during the time you were doing your investigation into the activigr on the

wall; correct?
Yes.

At any other time did the board of managers ask

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

Thatfance belongs to The l:nding at South Park; is


that correct? That's not my understanding. Do you understand that Borden Light Marina owns that
fence?

Thatismyunderstanding.
Does The l-anding at SouthParkboard ofmanagers

object to that offense - to that fence, I should


say.

We have in the past objected to What was your objection?

it

yes.

Thedeteriorationofit. And itwas not an objection to the factthat there was a fence within any portion of the twenty foot
easement is that correct?

-22 -

-24 -

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

KS COURT REPORTING

LANDING v BORDEN LIGHT #2s4067 VOI.II


1 A That is correct. 2 Q At some point in time,
was additional new fence added

1ur0ltO
I Q Do you now understand that the easement is a 2 non-exclusive easement? MR SEIGENBERG: Objection, Your Honor. 3 4 That's ultimately for you to determine. There are 5 two - as I've said during my opaning, there are two 6 to three documents that deal with the twenty foot 7 easement. One is labeled non-exclusive; two prior do 8 not have a non-exclusivity. That's for you to 9 determine, Your Honor, not for this witness. And I would suggest it's not really a proper cross l0 II examination. 12 THE COURT: Well, are we going to get in 13 are any ofyou planning to get into the intent ofthe 14 easement? Are you going to be looking 15 MR. BRENNAN: My line of questioning, Your 16 Honor, at this point, would be what is the board of I7 managers' understanding of what that is. The intent 18 of the twenty foot easement, I believe, it would come 19 through in my case in chief, through the Borden Light 20 Marina witnesses. But I do - I am interested in 21 knowingwhattheboardofmanagersunderstands 22 THE COURT: I think that's a difficult area 23 to inquire into because certainly one member ofa 24 board cannot possibly have an idea ofwhat the
11

3
4A
5Q

to the area along the common boundary line?


Yes. Was Yes.

it

a PVC fence?

6A 7Q
8A

Who put that in? Borden Light Marina.

9 Q Did they do that at the request ofThe l-anding at l0 South Park? 1l A ldon'tremember. 12 Q You don'trecall anyboard ofmanagers discussion 13 about the new fence? 14 A I was not always - it's not something I was involved l5 in the discussion. 16 Q Well, when you saw it, did you approach the other 17 board members and inquire? 18 A Iaskedwhoputitin. 19 Q What were you told? 20 A Borden Light Marina. 21 Q Was the new fence placed ganerally in the same spot 22 as the old fence that had deteriorated? 23 A I'mnotsurebased onhowthe land was disturbed. 24 Q Given your testimony that the fence belongs to Borden
-25 -

I 2 3
5Q

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


remove the fence at anv time should thev choose to do that?

4 A Iftheywish 6A

to accepttheliability, yes.

That would be their chorce. It would be their choice to accept liability,


correct.

7
8Q 9A
10
I

And to rernove the fence?


Yes.

Q A Q A Q A Q A

I 12
13 14

Now,is ityowunderstanding,sir, that -you're aware ofthe non-exclusive twen8 foot easement: is
that correct?

Iamnow,yes. And that - well, okay. l-et me ask you, when did you
first become aware of that?

15
16

Probablywhenwe gotinto the litigation, I gota


basic understanding

l7
18

ofit,

yes.

Well, would that have been in the fall of 2009 when you first retained Attomey Watsky and he advised you

19 20
21 22

ofthe preliminary injunction? Prettymuchthen,yes.

So,priorto thatyou had no knowledge ofthe


easement?

23
24

(No verbal response.)

I 2 3 4 5 6 7 8 9 10 tI 12 I3 14 15 16 17 l8 l9 20 21 22 23 24

understanding ofthe entire board is.

MR. BRENNAN: He's the chairman. THE COURT: He can express what he,
has any knowledge of, you know, that there were
as

chairman ofthe board had an understanding, and discussions that werc held about

ifhe

it.

But he doesn't

know the mind set ofthe board


there's documentation of that.

as a body unless

MR. SEIGENBERG: And the other problem, of


course, these documents go back to 1986. We would
agree that he wasn't around

in 1986 in that arca.

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


necessarily find it helpful to know his understanding

ofwhat the easement is.


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

will be testimony

as to the other

question. I'm sure there's going to be testimony from the Lunds about this issue, but I would suggest
that our position is that these documents are clear, unequivocal documents for the court to interpret according to their common language. And based on the circumstances that existed, which you've already heard some description ofhow there was the development ofthe two properties and so on, that's

-26 NOTES

-28 -

14 Palmer Avenue Danvers, Massachusetts 0l 923 Phone: (978) 777-5802 FAX: (9?8) 777-5803

KS COURT REPORTING

LANDING v BORDEN LIGHT.#254067 VoT,.II


I 2 3 4 5 6 7 8 9 10 ll 12
13
pretty much the circumstances, Your Honor.

THE COURT: I don't think I'm going to allowthatquestion. MR. SEIGENBERG: Thank you. MR. BRENNAN: Your Honor, on direct, he was testifying at length as to what he observed within
the twenty foot easemant -

THE COURT: Right. MR. BRENNAN: -- i.e., the storage


vessels. May I inquire about his observations that?

of of

THE COURT: Yes, you may.

Sir, you testified thatyou arenowaware thatthere


is such a thing as a twenty foot easement running

14 15 18 l9
20 A

along the common property.

16 A Thatiscorrect. 17 Q On direct examination, you testified as to the


storage ofboats

within that twenty foot easement; is

that correct?
Yes.

2l Q 22 23 24 A I 2 3 4 5
6Q

What is the significance to you as the chairman


the board ofmanagers

of

ofthe fact that therc are

boats stored within the twenty foot easement? First, the residents or owners'view is being

11/10/10 I A I think my testimony stands, yes. 2 Q And you also testified that during that time period 3 you were just trying to live harmoniously with the 4 Marina: correct? 5 A That is correct. 6 Q Now, when you say they do whatever they want to do, I 7 thinkthatwasaquote,areyouawareofany -do 8 you mean by that that they didn't seek permits that 9 were necessary to do the work? 10 A Ithinkitgoesbeyondpermits,butyes ll Q Areyou 12 A -permits,yes, Iwould saytheydidn'tseek 13 permits. 14 Q So, that's part of - their failure to seek permits 15 is part ofthe basis upon which you state they do 16 whatever they want to do? 17 A Thatiscorrect. I 8 Q Are you aware of what permits Borden Light Marina has 19 obtained in the course ofthe development ofthe 20 Marina? 2l A Some of them. 22 Q Are you aware that they have, in fact, received three 23 different licenses from the DEP for Marina purposes 24 since 1988 to t9 -to2010?
-31 -

-29 obstructed. Secondofall,there -immyopinion,


there has been damage to what should be a slope graded easement that was to take care ofsafely,

water drainage, and give stability to a bank that had

buildings above it.


So,

if Iunderstand itcorrectly, it's youropinion

7 that the entire twenty foot easement was to rernain as 8 a sloped graded bank; is that correct? 9 A I would believe that, yes. l0 Q Do you understand that Borden Light Marina could use that twenty foot easernent for any purpose? II MR. SEIGENBERG: Objection, Your Honor. 12 13 A Ican'tanswerthatquestion. 14 MR. SEICENBERG: I guess that takes care of 15 my objection, Your Honor. MR.BRENNAN: You1lprobablywantto 16 17 withdraw it, Dan, right? 18 Q Now, you testified on direct examination that in your 19 opinion, the Borden Light Marina, they did just about 20 anything they wanted to do and they didn't ask permission from anyone; is that correct? 2l 22 A That is correct. 23 Q Now, would that also pertain to the time period of 24 2008 and 2009?
-30NOTES:

I A I'm not sure I would understand what those permits 2 arc. Andl'mnotsureifthosepermitsareactually 3 permits allowing them to do what they want to do. 4 THE COURT: And I'm not sure it's relevant, 5 quite frankly. 6 MR. BRENNAN: Well, he has testified that 7 partofwhythey -heconside$themtodo whatever 8 they want to do with the Marina, that they haven't 9 got permits. I think it's significant to point out 10 to the witness that they have three chapter 91 licenses and six orders ofconditions. II THE COURT: I don't think it's relevant 12 13 whether he thinks that they do whatever they want to 14 do without permission or not. MR. SEIGENBERG: And also, counsel makes 15 16 misleading argument to the court because those 17 permits didn't permit this work. They have 18 expiration dates. l9 THE COURT: Again, I think this is totally 20 an irrelevant line ofinquiry, and let's move offit. 2l Q Noq you mentioned that in the course of the work 22 that tookplace on the south entrance to the Marina, 23 that the Marina had taken some parking spaces that 24 The Landing at South Park was using; is that conect? -32'

KS COURT REPORTING
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(978) 777-5803

LANDING
I A 2Q 3 4 5A 6 7Q 8A 9 10 Q I1 12 A 13 Q 14 A 15 Q 16 A 17 Q l8 19 20 2l A 22 23 Q 24 A I Q 2 3 4A 5Q 6A 7Q 8 9A 10 Q ll A 12 13 Q 14 A 15 Q 16 A 17 Q 18 A 19 Q 20 A 21 Q 22 A 23 Q 24 A
NOTES

BORDEN LIGHT.#254067 VOL.II

Lul0lt0
I Q 2 3 4A 5 6Q 7A 8Q 9 l0 A ll Q 12 13 A 14 Q 15 A 16 Q l7 18 19 A 20 2l Q 22 A 23 Q 24 A l Q
2A
Areyou aware in yourcapacityas a memberofthe
board of managers, how long the Marina has been in operation? Probably very close to the time that The l"anding at South Park has been there, probably 1987/'88. Since that time, has the Marina expanded? Yes.

That is correct.

Doyou understand thoseparkingspacestobewithin


an access easement in which the Marina has riehts to
use it?

difficult question to answer, depending on interpretation ofthe easement.


That's a

Ofthe access easement?


Yes, and on the interpretation easement.

ofthe access

And generally, did it grow from


direction? Yes.
Is

notth to a south

Do you understand there to be two access easements at


the south end?

it fairto saythattheboard of managers always

Ido. Andisoneafortyfooteasement?
Ibelieveso.
And one is a fifty?

understood that the Marina would exoand?

No.

lt'snot?
No. Was it tho understanding of the board of managers in 2005, when you became a member, that the Marina would
expand?

Ibelieveso.
There's a question as to whether

ornot

portion

of

that forty foot access easement encroaches,


area; isn't that correct?

shouldn't say encroach, includes part ofthat parking Again, I'm not capable of determining what the
easement allows Borden Light Marina to do.

Werealized theywereexpanding. We didn'tknowto


what extent they would finally extatd to.

But you were aware of that in '05?


Yes.

But you are aware that there's a question?


Yes.
-JJ.

And'06?
Yes.

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

'07? Yes.

it's fair to say that what the Marina did, they may
have the right to do?

3 Q '08,'09 and'10?

They may, not definitely they had the right. Or definitely not? Correct. You testified, in one ofthephoto$aphs, youpointed out a tent; is that correct?
That's correct.

4A

Yes.

5 Q Noq you reside in building 1; is that correct? 6 A Building 2. 7 Q I'm sorry. Building 2. Where do the other board of

8
9A

managers reside?

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

When was that tent on the Mafina property? That went up for a very short period of time. It's where the pool area is.

Doyourecallwhen thatwas?
It was in October. Do you knowthepurposeofthe tent?

Yes.ldo.
What was it?

It was for Michael's brother's wedding. Howlongwas itupfor?


I can't tell you exactly. I didn't take

a-

Twodays? - day-by-daycheck.
Three days?

Maybe three, maybe

five. I don't know.

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

building 8. And those are the four active members at this time?

Thatiscorrect.
Former member reside in building 3, Mr. Bouffard? Yes.

Mr. Daquay's in 4?
Yes.

In 2005, is it fair to say the Marina was using a portion ofthe twenty foot easement area for boat
storage on the northerly and

ofthe property?

Yes. Are you aware of any objection to thatby the board

of managers in 2005 whor you became a member? No.


Is it fair to say that the objection to the storage

-34-

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KS COURT REPORTING

LANDING
I

BORDEN LIGHT.#254067
it reached the southerly

VoI.II

I 1/10/1 0

of boats within the twenty foot easement area first


arose in 2009, after

I A
2Q
3A

Rocks,snow-Is that the - shrub.


Is that the embankment that you're referring to

terminus of the Marina?


I think we were starting to object in 2008 based on

4A
6Q

4Q

complaints from unit owners.

5
6A

that's the subject matter ofthis suit?


I can't tell from the photo totally. Can you see the buildings behind it? I can't idenfiry them.

Unit owners in building 4 and 3?


Yes.

7A
8Q

Prior to that, there were no complaints?


There were no boats there.

7Q 8A

9A l0Q il
121.
13

I mean, about storing them in the northerly or mid-section of the Marina. No, they didn't interfere with the view.

10
11

9 Q But would it be fair

to say that that's the property

in front ofthose buildings?

A Q

It's the property in front of buildings at The

12
13

tanding.
Well maybe, lefs direct your attention to 34-10, and
ask you

MR. BRENNAN: May I approach the witness, Your Honor?

l4 l5

14
15 16
exhibit 34-12. I'm just going to

ifyou recognize what's in that photograph.

THECOURT: Mm-hmm.
Sir, directing your attention to a photograph that
has been marked as

16Q
t7

l8
19

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


seen before?

20A
21 Q
22

Yes, I have.
Does that picture depict what's referred to as the

King Phillip Boat Club?


Yes.

z)

24n.

A Iseethewateffront Q Doyousee l7 A -andtherailingfancethatthis 18 Q Doyouseeastonepier? 19 A Yes. 20 Q And orientating yourself to the stone pier, can you 2l determine what buildings are shown in the upper 22 left-hand comer of that picture? 23 A Probably building 5, maybe building 4. I can't 24 again, it's the southerly end.
-39 -

37-

1Q

Would it be fair to say that whafs depicted in that picture is in front of building 3?
Yes.

2
3A

4Q

When you look at that picture, sir, can you see a driveway coming down in between building 3 and the

5 6
7A 8Q 9A

King Phillip Boat Club?


I'm not sure it's a driveway. Well, do you see a roadway? I'm not even sure it's a roadway. I'm seeing what
can be a path.

10 II Q 12 13 A 14 ls Q 16 A 17 Q 8 19 20 A 21 Q 22 23 A 24 Q
1

Sir, I'd like to show you the same photo, but this is
a glossy. It might help you to look at it.

All right. But Idon'thaveaclearviewto thetop


fromhere.
Right.
So, Ican't saythatthere's aroadway there. So, it's

yourpositionoryourtestimonythat

photograph or exhibit number 34-12, you can't determine that that's a roadway; is that correct? That is correct. I'd like to show you exhibit 34-31 and ask you would take a look at that photo. (Witness reviewing photo.) 34-31,2009?

ifyou

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

I Q Referring to exhibit number 34-10, is that the sloped 2 graded embankment that you've been referring to in 3 this case? 4 A Pretty much. 5 Q When you say, "pretty much," is it an accurate 6 representation ofaportion ofit? 7 A Again, Imlooking ata 1988 photographwhen Iwasn't 8 there. So, Icansaythatlwouldntknowwhatit 9 looked like at that time. Again, I can't tell you 10 what it looked like exactly in 2008 or 2009. 1 1 Q But you do agree that it is the embankment or 12 A Iwouldagreethat 13 Q -whatyourefertoas 14 A - ifs the embankment in 1998 [sic]. ls Q '88. 16 A '88. I'msorry. l7 Q Thankyou. 18 A '88. 19 MR. BRENNAN: That's all I have, Your 20 Honor. 21 THE COURT: Redirect? 22 MR. SEIGENBERG: Yes. olease. ***** 23 ***** 24
-40-

-38NOTES:

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

KS COURT REPORTING

LANDING v BORDEN LIGHT #254067


I 2
3Q
REDIRECT EXAMINATION
@y Mr. Seigenberg:) You were shown a photograph that was dated 1988.
Just for clarity's sake, you moved into The l-anding

VoI.III

4 5
6A

in 1998?
1998. Were you familiar with the condition of the property

8 9A 10 Q I1 12 13 14 A 15 16 l7 18 Q 19 A 20 Q 21 A 22 Q 23 24
1A

7Q

prior to 1998?
No. You were asked about - I guess you were critiqued
about your work as a board member. Tell us please,

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


board ofmanagers meet? We're required to meet monthly, which we

do. And we

meet when there are certain things that need to be discussed, which becomes an executive session, and

that would be the only reason why we would meet.

But garerally the board meets once

a month; correct?

Onceamonth. Is the position a paid or unpaid position?


Unpaid. And I take it board members have a life outside
the board?

of

MR. BRENNAN: Objection.

11/10/10 I expert, but as a visual look at the top ofthe wall, 2 that does not mesh evenly, cleanly. 3 Q So,just to moveus along, you as aboard member are 4 concemed about the construction ofthe wall: 5 correct? 6 A Yes. 7 Q what about the type of the wall? 8 A lt'saconcreteblockwall. 9 Q As a board member, do you have any concems regarding 10 that? 1l A Yes. 12 Q Now, you were shown exhibit 38, which is a letter 13 dated October 2nd,2008, where there was the 14 increased height being added to the wall. It was 15 inoeased height added to the wall. Remember that 16 letter? 17 A Yes. 18 Q Nowsir, did theboard - this letterwas written 19 what, aft - strike that. 20 Were there discussions between the board. 2l or members of the board, and Borden Light Marina 22 about adding another course to the wall? 23 A There was. 24 Q Did these discussions occur before or after the wall
-43-

,i

-4tYes.

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

had been alreadyconstructed?

2 3 4 5 6 7
8Q

2A

Before.

could.

3 Q Whydid
MR. BRENNAN: No, that's fine.
I'11

theboardhavediscussions of thatnature

4
5A

with Borden Light Marina?


A1l

withdraw the objection. It was spontaneous.

right. After the wall had already been

MR. SEIGENBERG: I guess the point - okay.


Thank you. You were also asked about the

6
7Q 8A

constructed, yes.

I missed

i!

so -

wall - strike that.

Imisunderstoodyou.

9 l0 l1 12 l3 14
15

Some of the walls that were constructed in

2008 and 2009, and I think your testimony was something along the lines, "wall put up was not what expected." Now, as a board member, did you have
concerns about the

ffpe ofwall that was constructed

in 2008 and 2009?

lnoking atitas itwasbeingconstructed, Ihad


concems. As you sit here today, testifying as the chairman the board, what is specifically some was constnrcted in 2009?

16
7Q 18 19 20 21 A 22 23 24
I

of

ofthe concerns

that the board and you have relative to the wall that Up the top of the wall at this point, you've got blocks that have definite separation between what should bejoints where they don't even lock in
together, and probably should. Again, not being an

9 Q So, the board had - after the wall was constructed, l0 the board had discussions with Borden Light Marina; II correct? 12 A Correct. 13 Q Whydid theboard atThe landingrequestanother 14 course ofconcrete block on that wall? 15 A Because they left us with a slope that was about like 16 this, which was unsafe (indicating). 17 Q Andbyasking forthatcourseof -additional 18 course, sir, was it the board's view that the wal'l 19 was acceptable to the board? 20 A After - I'm not quite sure. 2l Q You asked forthecourse,butby gettingthatone 22 additionalcourseofconcreteblock didthatmake 2l the wall acceptable to the board ofmanagers? 24 A Atthatmoment,yes.
AA

-42NOTES

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

KS COURT RBPORTING

LANDING v BORDEN LIGHT #254067 VoI,.II l1l10/10


1

2 3 4 5

But I mean in it's entirety, the construction, the


location.

I A
2Q

Yes.

As a board member, do you still have concems about


the concrete block wall that

MR. BRENNAN: Objection, Your Honor. That


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

THECOURT: Yes.
What do you mean by your answer, "yes," sir? It had become safe for people to be able to walk

6Q 7A

8 around at that point, thafs all. 9 Q Did it address all the concems that the board had at 10 that time? 11 A I think so. I'm not - I would 12 Q Well, let's go ttnough it. What concems - you 13 indicated during your direct testimony, you had 14 certainconcernsoftheboardaboutthewall. I 15 think, for example, one issue was the construction of 16 the wall: correct? 17 A Wete talking about which wall? I am confused right 18 now. 19 Q Okay. Maybe that's the thing. And you're right. I 20 appreciate that. Youte referring to a wall that was 21 done in 2008; correct? And there are walls that 22 were 23 A There wasn't anything added to the wall in 2008. 24 Q lrt me try this again. I think I'm making this more
-45-

3 4A 5Q 6 7A 8Q 9 l0 11 12 A 13 Q l4 15 16 A 17 I8 Q 19 20 21 A 22 Q 23 24 I 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 16 17 18 19
20

sits during your

Yeah.

And those are

as you already expressed

direct Yes. - testimony? And

that - strike that.

Now, you had this discussion about the parking spaces in the guest parking area being
eliminated? Yes.

And

pdorto -as

you understand it, theremaybe an

issue in the easement rights and things

ofthat

nature, which you don't decide, I would think.

truly -

This is something that the court would have to Prior to the excavation of that parking lot, were you
aware

ofany request for ajudicial decision by

Borden Light Marina on the easement issue? No.

And absent this easement issue, the area that was excavated, it is your understanding that that was the
property ofThe landing?

_47

I 2 3 4 5
6A ?Q
8A

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

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


aTreadytestified he doesn'tknow.

was - the concrete retaining - the concrete block wall that we've been talking about for three days
that was consfucted

MR. SEIGENBERG: Wel1. I said. "absent


easement."

of

in - it was constructed

near

buildings 3,4 and 5.


I'm with you now. When was that constructed? That was 2008/2009.
So, when you were referencing the wall

9 Q Right.

in

l0 II
12 13 14
I

this October 2nd, 2008 letter, what wall were you referring to?

THE COURT: Counsel. what is the relevance ofthisparkingarea. Isthisparkingareawithin any ofthe easement areas that we're talking about? MR. BRENNAN: I don't believe it is. THE COURT: We have spent a tremendous amount of time talking about that. I unde$tand the
issue and I think we can move on from there. Okay?

A Q A

It would be what was done in 2008.

MR. SEIGENBERG: I appreciate


you, Your Honor. (Counsels reviewing documents.)

it.

Thafs

Whatwasthat? Thatwas towards the -thatwas thecurentconcrete block wall in 2008/2009. They added looking at where they added
a course because

whatcounts. Ihavenofurtherouestions. Thank

5 16 l'1 18
19

there was adangerous slope. Aad again,

I'mnot

MR. BRENNAN: May I approach, Your Honor?

it.

Yes, they added

it

per a request to eliminate a hazardous problem.

THECOURT: Yes. RECROSS EXAMINATION


(By Mr. Brennan:)

Q A Q

But sir, was there additional - wasn't there


additional concrete block wall that was constructed

20 2l
22 23

Sir, I'd ask you

in 2009?
Yes. And wasn't the major part of the wall constructed in 2009 after this letter was written?

24
NOTES

2I 22 23 24

at a document and see

if you'd just take a moment and look ifwe can refresh your

recollection. And it's board of minutes meeting


October 14 of 2009. And
been highlighted.

of

if vou will look


_48_

at what's

-46-

KS COURT REPORTING
Phone: (978)

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

LANDING
1A

BORDEN LIGHT #254067 Vor,.I

tltt0n0
I 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 17 18 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 l0 1I 12 13 14 15 16 17 l8 I9 20 2l 22 23 24
MR. SEIGENBERG: No questions, Your Honor. Thankyou.

(Witness reviewing documant.)

2 3 4 5 6 7 8 9 l0
11

MR. SEIGENBERG: Your Honor, while the witness is looking at that document, I will be making objection to any line ofinquiry on this, because
this is obviously - where are we? This is recross. lt's not gerrnane or relevant, and it's not related at all to what I brought up in redirect. THE COURT: question.

THECOURT: Okay. Thankyou.


(Witness stepped down.)

MR. SEIGENBERG: The only other thing we


have as the plaintiffs, is the fact that we

still

kt

me wait to hear the

haven'tresolvedthisbuildinginspectorissue. I have a suggestion on it, though. I was supposed to


receive documentation from the building inspector's

MR. SEIGENBERG: I understand, Your Honot.

officeandcorporatecounsel.

Ididnot. Ihavea

Sir, redirect examination a moment ago, you were


asked about the timing ofconversations between the

feeling it will be cleared up after the defendanfs case. Ijustreservetherighttopotentiallybring that issue to the court's attention

12 13 14
15
16

board ofmanagers members about adding blocks to a

if

I need to.
a subpoena served

wall; is thatcorrect?

THECOURT: Okay.
MR. SEIGENBERG: There is
on this individual.

A Q

Correct.
Based on the document that you were minutes

just looked at, which

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

ofOctober l4th, 2009, does that refresh

THE COURT: It doesn't look like we're


going to finish up today. So -

your recollection when those conversations took


place?

Somewhat. How does it refresh your recollection? The minutes, there was discussion at
a

MR. SEIGENBERG: Thank you, Your Honor. THE COURT: - at the rate wete going. Okay. Now, lm assuming you're not going to do so, you have nothing further other than that? MR. SEIGENBERG: That would be the

board meeting

which you have the minutes for.

Right. When you read thos minutes, did you recall

plaintiffs'case.
_

-49-

5l

I
2A
3Q

that discussion?

THE COURT: Okay. All right. Defendant's


case.

Irecollected the discussion, yes.


And you agreed that the minutes ofOctober 14th,2009 actually reflect that discussion correctly? I am not sure as to what you're asking.

MR. BRENNAN: Your Honor, I just wanted to


look at the complaint for one moment.

4
5A 6Q

THECOURT: Sure.
(Counsel reviewing document.)

Well, those minutes, in fac! document that the


discussion tookplace on that date; correct?

7
9Q l0 l1 A 12 Q 13 A 14 Q 15 16 17 A l8 Q 19 20 A 21 Q 22 A 23 24

8 A Discussionofwhat,please?
Thewall, the adding ofblocks to the wall,justwhat
the minutes said.

THE COURT: Heads up, I'd like to take a breakabout 10:30. Andwe'lljusttakeatenminute

brcak -11:30,sorry. Andwe'lljusttakeaten


minute break so people can stretch their legs, unless

Therewasadiscussion
On that date.

ofit.

it looks like we can do it a liule bit earlier,


depending upon whereyou're at.

Butitgoes furtherthanthat.
You testified a moment ago that you asked for some blocks to be added because the slope at the top was too steep.

MR. BRENNAN: The plaintiffhas rested. I would ask the court to entertain finding against the plaintiffon
hespass and violation
a a motion to direct a

portion of ifs

complaint. Andthatportionbeingincount

I,a

Notmyself,personally, theboard did. The board. Before the wall went up, what was the
slope

ofvisual easement by way of the construction oftwo buildings that the pleadings
allege violate the visual easement. The plaintiffs put in no evidence as to those buildings, where they
are, what their elevations are, and how,

ofthat bank? fm not an engineer, so I can't give you that. Wasn't it greater before than after? I don't lmow. Again, Im not an engineer. MR. BRENNAN: I have no further questions,
YourHonor.

ifany, they

violate the easement.


was zero evidence on

Iflrecall

correctly, there

that. And I would ask -

THE COURT: This is the amended complaint.

-50NOTES:

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LANDING v BORDEN LIGHT.#254067 Vol.


I
2 3 ^

I Lut0n0
I 2 3 4 5 6 8
10
I

MR. BRENNAN: Correct. It would be count I


starting with paragraph 41. THE COURT: What page are we on?

*****+****+*r *************
JAMES HALL

6
1 8

MR. BRENNAN: They're not numbered THE COURT: Page 8? Am I looking at the I'm looking at the amended complaint MR. BRENNAN: Correct.
THE 4th?

(Witness sworn.)

DIRECTEXAMINATION
(By Mr. Brennan:)
p'lease state your name for the

COURT: - that was filed on October

7 Q Mr. Hall, would you


court?
James D. Hall.

9A
MR. BRENNAN: Correcr.

l0
11

12

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


entit'led "trespass and violation oferosion control
easement."

l3

l4
l5
16

t7

THE COURT: I thought you said count 1. MR. BRENNAN: I did. It's count l. I'm sorry. I went to the wrong page.

l8

l9
20

THECOURT: Countl? MR. BRENNAN: Paragraph 41, and the next


page,42, talks about the Captain E.G. Davis building and a guard shack. And they allege that those two truildings violate the visual easement by virtue trespass. One is the

2l
22 23

of

their height. They have two elements to prove that

.n*n.:.".t:*

Ouildings, and

Q I A 12 Q 13 A 14 Q 15 A 16 Q 17 A 18 Q 19 A 20 Q 21 22 A 23 Q 24 A I Q 4
2A 3Q 5A 6Q 7A

Where do you reside?


I reside in Swansea, Massachusetts.

Are you employed?

Iam.
Inwhatcapacity?
I am a partner in Mount Hope Engineering. Where is that located?

Thatis in Swansea, Massachusetts. Atwhataddress?


1788 G.A.R. Highway.

For how long have you been - did you say, "co-owned?" Co-owned.

Who is the other owner?


I have a partner, Todd Chaplain.

I 2 3 4 5 6 7 8 9 I0 ll 12 13 14 15 16 17 18 19 20 2l 22 23 24
NOTES

numbertwo,thatthebuildingsareonlot3.
offered no evidence.

They,ve

How long have you owned Mount Hope Engineering? Since 1992. Could you tell me, or explain to the court the nature

THE COURT: So, your motion for directed

verdict on this is solely in relation to the buildings? MR. BRENNAN: That's correct.
THE COURT: Not the equipment?

of the business of Mount Hope Engineering?


We are a civil environmental engineers. Could you elaborate a bit on what that means? We generally do mostly site related engineering, residential development, commtircial development, and

MR.BRENNAN: No. THE COURT: Okay. I will let you know after this afternoon. I'11 take it under advisement. MR.BRENNAN: YourHonor.mvfirstwitness will be James Hall. THECOURT: Okay. Mr. Hall. MR. BRENNAN: Please state your name.
THE WITNESS: James Hall.

8 9
10

Q A Q A Q A

all the engineering associated with such. Do you surveyproperty lines in the course ofthat
ernployment? We dohavesurveyors thatdo that.

1l
12 13

14
15 16 17

Now, could you tell me when you first started working in the angineering field?
I started in 1982.

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


Has the witness been sworn?

THECOURT: I'msorry. MR. BRENNAN: Has the witness been swom? THECOURT: Notyet. Ijustwaswaiting for everyone to settle down. Are we all set now'?
Okay.

***** *****
<A

18 I9 Q 20 21 A 22 Q 23 A 24 Q

hwhatcapacity? Iwas adesigneruntil about 1986, acivilengineer from'86 to '92, at which time we started the firm.
a

Directing your attention to your education, you have high school education?

Ido.
Where was that? Joseph Case High School.

And

a college education?

-56-

14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 717-5802 FAX: (978) 777-5803

KS COURT REPORTING

LAIIDING v BORDEN LIGHT #254067


A Collegeeducation,two years. 2 Q Where was that? 3 A BCC, Bristol Community College in Fall River. 4 Q Did you have a course of study at Bristol Cornmunity? 5 A It was civil engineering. 6 Q When did you graduate from there? 7 A I actually didn't graduate. I had two courses left, 8 and Iendedupgettingrelocatedoutoftown. So, 9 allbuttwo courss. l0 Q When did you take tiose courses? I I A That was between '79 and '82, at which time I got 12 relocated. so I didn't finish. 13 Q Was your relocation employnent orientated? 14 A It was. 15 Q What type of anployment was that? 16 A Thatwas - Iactually gotrelocated to the Seabrook 17 Nuclear Power Plant up in Seabrook, New Hampshire, 18 and then went into the midwest and did site 19 engineering for that business until '86, and then 20 camebackhome. 21 Q So, forhowlong haveyoubeen in the civil 22 engineeringbusiness? 23 A Twarty-four years, twenty-four years locally. 24 Q And in total?
1
_

Vol.I

Llll0lr0
2A 3Q

I Q

But

as the owner does

maintaining -

Right. - the records fall under your purvieu/?

4A
5

It does.
Have you had an opportunity to do any survey work on

6Q

7 the common property line between Borden Light Marina 8 and The bnding at South Park? 9 A I have been involved, actually, for both parties, The l0 landing and the Marina. 1l Q At what point in time were you first asked to go out 12 to that - to the Borden Light Marina site and take a 13 lookat the corffnon property line? 14 A h 1997, the files that I reviewed reflect that that 15 was the beginning ofgetting contacted by Borden 16 Light Marina at the time. And it was ongoing back l7 then,Iwanttosayuntilroughly2000. There's probably a three year window in there where there was l8 19 work performed. 20 Q Could you describe forthe court thenature ofthat 21 work? 22 A Thatworkatthe time, there has a lotofdifferent 23 tasks. The initial task, obviously, what you have up 24 here was a survey to do the property line for the
-59-

\.7

I A
2Q

In total, it would be twenty-eight years. Do you hold any professional licenses? I am a construction supervisor, mlimited; I am a title 5 inspector. Could you explain a little bit about what types

Marina, relative to ownership.


when you say, "the property line," could you

3 A I am a Massachusetts soil evaluator;

2 Q Noq

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

of of

projects you work on, maybe give us some examples


survey projects that you've been involved with?

Pretty much anyhing commercially. If a bank - we do a lot ofwork with banks, siting new offices or new headquarters. We do residential development. We

would do - we could do condominium developmer,ts. And it's been a mix over the years, whether it's retail, commocial, residenfial.
As theowner -areyou a fiftypercentownerof

Mount Hope?

lam. Areyoutheredaily? lam.


Would it be fair to say that you are the individual who is responsible for the records of Mount Hope
Engineering?

I think that - I guess you could say that. Obviously, it's


a collaborative

effort, but -

3 explain the property - which property line? 4 A Well, the one property line, obviously from the high 5 tide mark all the way to the property line on The 6 landing. 7 Q Did you survey the cornmon prcperty line between The 8 Landing at South Park and the Marina? 9 A Thatwassurveyed. Iwasactuallypartofthecrew, l0 obviouslyourR[S,andyouknow,chiefofparty. I II was product manager. So, there was various hands in 12 the mix there on thatparticularproject. 13 Q lunderstand. 14 MR. BRENNAN: Your Honor, may I mark this 15 particular plan for identification? 16 THE COURT: What is this plan? I'm sorry, 17 I can'tread the 18 MR. BRENNAN: Well, actually the plan 19 I'11 withdraw that request -20 THECOURT: Okay. 2l MR. BRENNAN: - Your Honor, because I am 22 going to offer it as evidence. 23 THE COURT: All right. 24 Q Mr. Hall, you mentioned that you participated in a
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LANDING
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Correct.

BORDEN LIGHT #254067

VoI.III tln0n0
I A 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 l7 18 19 20 2l 22 23 24
- is in the file.

survey ofthe common property line between Borden

Light Marina and The landing at South Park?


Do you recall when that was? I'm going !o say, you know,'91 to'99 field workwas done. Ibelievethatplanis'99that'spostedup

MR SEIGENBERG:
question is leading. this as well,

The same problem. Every


get through with

Id like to

but he's

THE COURT: Well, I think in the

just trying

6 7
8Q 9A

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

there. So, I don't have the exact dates, obviously. Did you work with a registered land surveyor? Yes,wedo.
Who is the individual you worked with? It was Donald MacNeill.

Q A 12 Q 13 A 14 Q 15 16 A 17 Q 18 19 20 2I 22 23 24
10 11

file. I don't think it's really - I mean, let'sjustgettherefast. Allright. MR. BRENNAN: I am, except for the fact MR. SEIGENBERG: Here's the problem, and I know it's - he didn't - this is not his survey
plan.

Did you know Mr. MacNeill prior to 1999? Yeah. I've actually worked with him since 1989. When you say you worked with him, do you mean doing
survey work? Right.

THE COURT: Correct. MR. SEIGENBERG: And he's going to try to


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

Did Mr. MacNeill workfrequentlywith MountHope


Engineering?

around.

THE COURT: Well, he's bringing it in


apparently, as a business record, the fact that
was done, that it's in the

MR. SEIGENBERG: Objection, Your Honor,

it

formofthequestion. There'saboutsixleadingina row. I think we're a little beyond the - his


educationalbackgrotrnd,whichlwou'ldn'tobjectto,
but this goes to the substantive matter. So, as to
the form

file.

Whether he can

testify about how it was done is a different story.


Okay?

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


that's a business record either.

ofthe question, Your Honor. -61 -

-63 THE COURT: Wel1. let's establish whether 1 2 it is or it isn't. MR. SEIGENBERG: Thank you. 3 4 Q Mr. Hall, does your office keep files? 5 A Yes. 6 Q Could you explain to the court how your files are 7 kept? 8 A Byproject. 9 Q Could you elaborate a bit more when you say l0 "project?" I I A Every project that comes in, you know, we'd have an 12 estimate written, and then a project number tagged to 13 it for tracking, research done and survey done, and 14 engineering done, obviously, would all be partitioned 15 into that file and then stored accordingly by date 16 and year. 17 Q Would you explain for the court the procedure that 18 Mount Hope Engineering has used to maintain it's 19 files since you went to work or became an owner of 20 Mount Hope Engineering? 21 A Yeah. We obviously have folders and all the paper 22 that obviously is generated is in those folders and 23 stored. 24 Q Stored where?

I
3
A

THE COURT: All right.

MR. BRENNAN: I'll rephrase it.


THE COURT: Rephrase it.

MR. SEIGENBERG: Thank you.


How long did you know Mr. MacNeill?

sQ 6A
7

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


'89 on, professionally. When you say, "professionally," could you describe
the professional relationship you had with

8Q
9

l0

Mr. MacNeill.
Like any engineering firm, we need professional
engineers and registered land surveyors, and his

llA
l2 l3
t4

portion of our business was relative to the land suwefng portion. Now,
as you sit here today, do you have any

lsQ
l6
t'7

recollection of going out to this site and working on


the preparation

ofthis plan?

18A

Oh. sure.

leQ
20

Did you bring with you your file for the work that was done for the preparation of this plan?
I did. Was a copy of this plan in your file?

2lA
22Q
24

231^ Acopy MR. SEIGENBERG: Objection.

62NOTES:

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KS COURT REPORTING

LANDING v BORDEN LIGHT #254067 Vor,.


I A 2Q 3A 4Q 5
6 Stored on premises.

tUt0n0
1 2 3 4 5 6 7 8 9 10 11 72 13 14 I5 16 l7 18 19 20 2l 22 23 24 1 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 l7 18 19 20 2l 22 23 24
THE COURT: He's deceased.

Do you have access to those?

MR BRENNAN:

He's deceased, and I have

Ido.
Explain to the court the business practice maintaining your records.
We basically, in our particular business, keep all records, because a lot oftimes projects

this plan with an original stamp on

it.

I have a

of

gentleman on the witness stand who is in the field. I have the owner ofthe business that keeps the records, and it certainly is a record. A record

7A

doesn'thavetobeaninvoiceorpaid. It'swhatever
the nature of the business

8 9 10 II 12 13
14

will become

is. And I maintain this

reoccurring, or you end up going back to that

certainly is a business record.

information. So, we basically, you know, we don't


throw anything out because even something from ten or fifteen, twenty years ago can resurface and obviously
there's value in those records.

THE COURT: I think these are files kept in theordinarycourseofbusiness. Ithinkwe've established that. And ifthis was in the file for
this project number, I think it's sufficiant to say that this is on file with the business and is a
business record that he's responsible can say that

Q A

Did you have an opportrrnity to review your business


records for records pertaining to this plan?

15
16

for. And if

he

rdid.
MR. SEIGENBERG: Objection, Your Honor. I
object to the idea that this is a business record.
H'is basic view, where we're moving with this thing

it was in the file, it was there.

17 18 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 '10 II 12 13 14 15 16 l7 18 19 20 2l 22 23 24

MR. SEIGENBERG: Can I be heard on that, Your Honor?

THECOURT: Yes.
MR. SEIGENBERG: It strikes me
as

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


He's basically going to make the argument that

that's -

ifthatconstitutsabusinessrecord -I'mnot
trying to be confrontational with the court by any
means, but under that interpretation, any document

anlthing that goes in any business's file, ifthey

it in the file, it becomes a business record. That's not the rule. The normal business record is
keep

that is ever in any business would come in as a - o/ business record.

-65an invoice generated. It's kept in the ordinary

course. It's a business record.

THE COURT: No, that is not true. MR. SEIGENBERG: I can't think of somethins
that under that - it's basically saying that
a lawyer

A suwey done by somebody else is not a business record, Your Honor. It's a document that's prepared for a client. It's not a business record.
And so, lm trying to
a business record. save time

- as

I'm saying, Im
a project, a

a lawyer, and some other

here. That's no way

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

opinion on
It's a

zoning opinion, that was kept

THE COURT: All right. Do you have an objection to this particularpiece MR. SEIGENBERG: The plan. THE COURT: - of evidence, the plan,

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

file.

That wouldn't go into evidence, Your

itselfl

You don't want it in?

Honor. Thisisnodifferentthanthat. THE COURT: I may have missed a question here, or maybe I heard something different. My
understanding is that the suwey was done in connection with the project done by Mount Hope, and that this surveyor basically worked for Mount Hope in

MR. SEIGENBERG: The reason is, if I could just sort of move ahead a little with it?

THECOURT: Yes.
MR. SEIGENBERG: It was done in 1999. We
don't believe it's accurate. We have a document already in evidence, the elevation plan, that has different bounds, and it has a different conclusion

doing the survey for the particular client. MR. SEIGENBERG: I think the testimony was
that Mr. Hall works for

thathewasoutinthefield. Butlthinkiflwas
allowed to voir dire witness, he would indicate that
he wasn't the person who did the actual -

a partner

in Mount Hope,

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

knowaboutthissurveyin 1999. Hemighthavebeen


out there.

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

THE COURT: No, he did not do the actual suwey. I thought I heard that the surveyor worked for Mount Hope Engineering. Am I wrong about that?

-66NOTES:

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KS COURT REPORTING

LANDING
I
2 3

BORDEN LIGHT.#254067 Vor,.I

MR. SEIGENBERG: I think vou're absolutelv right.


THE COURT: Okay. So, this was a project that was contracted with the Marina to have a survey
done by Mount Hope Engineering. And you're were hired to do in the
a business record?

5 6 7 8

salng

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

file for that project is not

o
10

MR. SEIGENBERG: I would say the plan is


not a business record, absolutely not. THE COURT: Oh, I disagree.

ll
12 13

MR. SEIGENBERG: You make a decision.


THE COURT: It's a business record.

l4
l5

MR. SEIGENBERG: Note mv obiection. Thank


you, Your Honor.

l6
l7
18

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


offer this as the next exhibit number. THE COURT: What is it?

to
20

MR. BRENNAN: After itwas marked, I was


going to start going into the details. THE COURT: Could you just give me a title

2l
22

of the plan that we're marking


It's entitled, "plan of land,

as an

exhibit?
a plan.

z)
24

MR. BRENNAN: Certainly. It's

rt-Tit

encroachments

11/10/10 plan. I 2 TbtECOURT: Inotetheobjection. 3 MR. SEIGENBERG: Thank you. I appreciate 4 it. 5 Q Mr. Hall, on this plan, I'd like to direct your 6 attention to what's shown on the left-hand side of the plan. 7 8 A Mm-hmm. 9 Q Are there two buildings shown at that point? l0 A Thereare. l1 Q Noq you may have to stand up to get a little closer 12 to it but could you tell me in relation to the 13 property line as shown on that plan, could you tell 14 me the relation ofthe building to the property line? 15 A The plan depicts building 1 [sic] and building 10 for 16 The landing, and the plan, I believe, has four 17 notations.ofan air conditioning pad over the line by l8 1.4 feet, a concrete step overby .4 feet, and I9 another air conditioning pad over by .4 feet, on a 20 porch ovohang on building number 10 over 2.3 feet. 21 Q Nou Mr. Hall, you said building I and building 10. 22 Would you take another look at the designation ofthe 23 building to the left. 24 A Sorry. Building 11 andbuilding 10.
1

-71 -

I 2 3 4 5 6 7 8 9 10 1l
12

from The [anding at South Park over Borden Light Marina property in Fall River, Massachusetts, dated
October 29th,1999, Mount Hope Engineering."

1 Q If

THECOURT: Okay. MR. BRENNAN: It has an original - I


believe this is an original seal and signature by Donald MacNeill, registered land surveyor. THE COURT: This is Exhibit 43?

2 3 4 5 7 8
9A

I give you a marker, would you highlight the notation on the plan where those encroachments are that you just testified to, just so ifs easier for
us to see.

(Wihess marking plan.)


yourself to exhibit number 43, you highlighted - made certain highlight notations on the plan; is that correct? That's correct.

6 Q Mr. Hall, oriortating

(Exhibit Number 43, marked in


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

Q A Q

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


that's been marked as exhibit number 43?

13
14 15

Ido.
Could you explain for the courtwhatthatplan is, and to your knowledge, the purpose for which the plan
was prepared? I believe in the late '90s

16 l7
I

8A

it was prepared to

19 20 2l 22 23 24

establishthepropertyline.
documented on this plan.

Andwhendoingso,I

believe encroachments were noticed, and obviously

MR. SEIGENBERG: Your Honor, just to save


time, I'll have an ongoing objection,

ifI

could, as

to the substance ofthis testimonybased on this

l0 Q 1I 12 13 14 A 15 Q 16 A 17 Q 18 A 19 Q 20 A 2l Q 22 23 A 24 Q

Moving from the left of the plan to the right of the plan, would it be fair to say that the first notation
is an air conditioning pad over the property line, 1.4 feet?

Thafs correct.

Andthesecondnotationiswhat? A conffete step over by .4 feet. Thethirdnotation? Is an airconditioningpad overtry 1.4 feet.
What building are those three encroachments on? That's building
1

1.

Directing your attention to building number 10, is


there a similar highlight mark?

There is aporchoverhang overby 2.3 feet.

And that's on building number l0?


11

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KS COURT REPORTING

LANDING v BORDEN LIGHT #2s4067


A 2Q 3 4A 5 6Q 7 8 9A l0 Q ll A 12 13 Q 14 15 A 16 17 18 19 20 2l 22 23 24 Q
1
Correct.
When you say, "an overhang," what do you mean by that? There's various porches on the three - roughly

VoI.III

three-storybuildingsthere.
Do thoseportionsofthosebuildings

infact,

encroach upon Borden Light Marina property based on

thatplan?
That's true. I'm sorry?

Thatistrue.
(Counsels conferring.) You testified that you have a copy of Mr. McNeill's plan in your files; is that correct?

Ido.
MR. BRENNAN: I have no further questions, Your Honor.

THECOURT: Okay.
MR. SEIGENBERG: If I may, Your Honor. Thankyou. Iflmayapproachthewitness,iflmay? THECOURT: Yes. CROSS EXAMINATION (By Mr. Seigarberg:)
That's marked as exhibit 43, that's stamped by Mr.

11/10i10 I A Mm-hmm. 2 Q I'm afraid to move it. Are you familiar with that 3 plan? What involvement did you have with exhibit 21, 4 the elevation plan? 5 A The elevation plan was produced for The [anding due 6 to an inaccuracy with a FEMA floodline that was 7 recently re-established, I believe, maybe a year or 8 two ago, where The l^anding was contacted by, I 9 believe, their financial institution, or maybe FEMA, 10 andtheywereneverdesignatedinafloodzone. And II now after twenty-some years or so, they were 12 obviously pushed into the flood zone. They contacted 13 us and asked us the process and for some help on 14 really what was going on there. 15 Q As part of the work that was performed in 2009, did 16 you and your firm go out and actually do some l7 add'itional survefng to find out the bounds of the 18 property? 19 A We actually subcontracted S. Roy land Survelng for 20 the bound - you're sort of mixing two things here, I 2l think. You've got the FEMA portion which is an 22 elevation survey. Okay. And then once we got into 23 that, for whatever reason The Ianding also wanted us 24 to put monuments in, establishmonuments, and that
-/f-

I 4
2A 3Q 5A

McNeill's; correct?
That's correct.

I 2
3Q

was performed, obviously, with S. Roy [-and Surveying. So, there's two different tasks there.

And he really is the land surveyor who was primarily

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

responsibleforthisprojectbackin 1999;conect?
Correct. And he is the one who drew this plan, not you, sir; correct? No, not true. He was the overseeing

6Q

7
8A

R[5

at the fime

9 l0 11
12 13

for obviously many people that were involved. So,


the review and the determination, the final

determination was obviously him reviewing it, and us

Q A

Right.

14 15 16 Q A I9 Q 20 21 A 22 Q 23 24
17 18
NOTES

Butthepreparationbetweenthe -youknow,if youte refening to the CAD work, the field worlg and
everything leading up to it, he didn't do it solely,

obviously. Buthedidreviewthefinalproduct. Andhe signed offontheplan?


He did sign

offon the plan.

Sir, as you indicated, you did some additional work on this site also for The
That's correct.

hnding,

as

well; correct?

And sir, I'm going

to

- I have a larger version --

MR. SEIGENBERG: It's exhibit 21, Your


Honor, the elevation plan.
1A

4 and supervision; is that correct? 5 A No, he's an R[5, and I obviously have to, you know, 6 tell him the scope of work, and then what we're 7 tryrng to achieve as project manager. And then he 8 actually makes the property line determination, 9 obviously according to the Mass. General law. 10 Q And so, those suweying marks were placed on the ground in 2009; correct? iI 12 A I believe so, yeah. 13 Q Andbased on thosemarks, yourofficeprepared 14 exhibit2l; correct? 15 A Conect. I 6 Q Exhibit 21 also showed buildings l0 and I 1; correct? 17 A Yeah. 18 Q Based on the survey thatwas done in 2009, this 19 survey plan did not show any encroachments of 20 building 10 or ll, does it, sir? 21 A It's not the intention of the plan. 22 Q But it doesn't show it, does it? 23 A No. it does not. 24 Q The elevation plan also shows the elevation to mean
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I sea level; correct, sir? 2 A Conect. 3 Q And so, for example, are you aware that this is the 4 southerly end ofthe property? 5 A Iam. 6 Q Are you also aware that the wall was constructed 7 approximately in 2009 up to approximately 8 A Iamawareofthatwallbeingconstructed. Im 9 unsure ofwhether when we did the elevation survey if 10 thewallwasinornot. Ican'tactuallyrecall 11 because there was - the time lines are all pretty 12 shortin there. So, Ihonestlycan'trecall. 13 Q But this elevation plan determined mean sea level at 14 the top of the wall. Wouldn't that indicate that the 15 wall was 16 A Yeah. So, ifitcalls it out on thatplan, then the 17 top of the wall was probably in place at the time. 18 Q Do youknowJohn Lund, bythe way? 19 A ldo. 20 Q How long have you known John Lund? 2l A I believe he called me in '97. 22 Q So,you'veknownhimsince 23 A Yeah. 24 Q -',91'-!
-77 -

VoI.II tUt0n0
I A
2Q
Yeah.

And then it goes down to


20.15 MSL: correct?

3 4
5A 6Q

in front of building 5 I

see three notations on the top

ofthe wall,

Mm-hmm. The next is 19.87 MSL; correct? Mm-hmm.


The next one is 21.05 MSL; correct, sir?

7A
8Q

9A
10

Yeah.
So, all ofthoseelevations areobviouslyover 19 MSL: correct?

1l
12

Q A Q

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


and listed that way.

13
14

And so the wall thafs constructed thereexceeds


19 mean sea level, does

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

it not?

Thatwouldbetrue.
And in fact, to move this thing along, looking to
this entire wall, it appears that every elevation that's noted as the top of the wall exceeds 19 MSL; isn't that correct. sir?

Thatistrue.
MR. SEIGENBERG: I have nothine further
Thank you, sir.

REDIRECT EXAMINATION

-79 -

1A

Yeah.

1
2Q

(By Mr. Brennan:)

2Q
3A

Were you friends with John Lund? Outside of the professional world, no, I wouldn't say

4
5Q 6A 7Q
8A

that. I've never Socialized?

3 4
5A

Mr. Hall, you mentioned that you worked for both The landing at South Park and Borden Light Marina; is
that correct? That is correct.

-socialized,no. Okay. Justabusinessrelationship? Yeah, ifs business. Actually, with him and The
l-anding, it'sjust besn basically professional, so...
So, the top of the wall here on the southerly end,

6Q

And you were recently retained by The landing at


South Park to assist them in amending the FEMA map;
is that correct?

7 8
9A

9 l0 Q II 12 A 13 Q 14 A 15 Q 16 17 A 18 Q 1'9 A 20 21 Q 22 A 23 Q 24

That's one of many things we did, yeah. Was that a successful amendment? Yes, it was actually recently. What else have you been retained by The tanding to do?
I would say the three tasks are the FEMA Flood

you determined that top of the wall was over 24.09 Okay.

-meansealevel;correct?
That's correct.

And thatwall - firstof all, that is nota straight line for that wall, is it?

No,no.
Describe that wall with the I believe, you know,

if it's the whole length of the

Marina, it obviouslyjogs back and forth from the From the wall itself?
The whole wall, yeah, up and down, back and forth.

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

l0 Q II A 12 Q 13 14 A 15 16 l7 t8 19 20 2l 22 Q 23 24 A

Elevation Project an installation ofthe monumentation between The


Street, which was sort

hnding

and the Marina, and

issues with the southem easement issue

offClub
The

ofajoint venture between


as far as payment

tanding and the Marina


there.

went. They

both agreed to pay me to try to resolve the issues So, at that point, it would be fair to say you're

working forboth of them?

Iwasworkingforbothofthern.

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I Q And that was recently, wasn't it? 2 A Yeah, within the last twelve months. 3 Q You mentioned monumentation. Would you explain for 4 the court what you mean by that? 5 A I believe after the wall went in, The l:nding was 6 unsure ofactually where they're ownership was 7 between them and the Marina. And they had contacted 8 us, and no monumentation existed, or very litt1e 9 monumentation existed for the whole run. So, they 10 contacted us and, you know, obviously we got the RLS 11 together and ten years or so later start redoing the 12 property line and getting monuments in there. 13 Q Did you install monuments? 14 A We did. 15 Q Now, when you say, "a monument," is that a cement l6 four-by-four or six-by-six block? 17 A That is correct. RLS installed, Ibelieve, 18 approximately every 200 feet and every change of 19 direction, a monument with a drill hole. 20 Q To your knowledge, are those monuments still there? 2l A Ibelieveso,yeah. 22 Q Back in 1999, did you make any marks as to where the 23 propertylines were? 24 A I don't believe so. If they were, they were only
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11/10/10 I Q Correct. 2 A No, I don't believe so. 3 Q So, in fact, what your company did is, added 4 permanort monumentation, drill holes along various 5 points ofthe property line; correct, sir? 6 A Yeah, The l-anding contracted us to put monumants with 7 drill holes every 200 feet or on change ofdirection. 8 Q And sir, didn't the property line change based on the 9 more recent monumentation that was done in 2009? 10 A Icouldn'ttellyou. 11 Q You couldn't tell us? 12 A No. Ididn'tactuallydothecalculations. So,if 13 the monuments reflect a slight change from'99 to 14 2009,youknow, that'snotwhat -wewerejusthired 15 to put the monuments in. So, it was, again, based 16 offthe tracks. 17 Q And cercainly as we alreadywentthrough, the 18 elevationplandoesn'tshow -elevationplanthat 19 was done in 2009, that doesn't show any 20 encroachmentsicorrect? 21 A No. we weren't hired to do that. 22 Q Sir, the question, does not show any encroachments? 23 A Right. 24 Q And to the contrary, what it shows is no
-83-

1 2 3 4 5 6 7 8
9Q
10

probably temporary at the fime, meaning, you know,


wooden stakes or something. But I actually don't

recall exactly what we may have put in.

MR.BRENNAN: Thankyou. Ihavenofurther


questions, Your Honor.

MR. SEIGENBERG: I have a few.


RECROSS EXAMINANON (By Mr. Seigenberg:)
So,

in 1989 [sic], when exhibit43 was prepared -

I 2 3 4 5 6 7 8 9
10

encroachments. There's actually a property line, and


all The

hnding buildings

are on the other side

of

the property line on their own property - strike

that. Let me try that again.


The plan that was done in 2009 with this new lines and permanent monumentation, it depicts the

buildings ofThe landing, and does not show any encroachment ofthose I-anding buildings relative to
the Marina property line; correct, sir?

A Actually,'99. I 1 Q '99, thank you. In 1999, there was no permanent 12 monumentation on the ground when the survey was done; 13 conect? 14 A Not between the - there was a monument near 15 building I where that wall's falling over there. 16 Thatmonument,Ibelieve,waspresent. Therewas l'l also monumentation out on Almond Sheet. And the l8 records I reviewed before coming up here revealed 19 that the monumentation that we found to derive 20 everything came offthe railroad. 21 Q Okay. Buttherewerenoperrnanentdrillholes as 22 were inserted in 2009; correct? 23 A No. You mean between - are you talking between The 24 tanding and the Marina?
1

I think you might be mixing the two up. The elevation survey for the FEMA, the FEMA map amendment that was required, was an elevation survey to see where those buildings fell relative to mean sea

11 12 13 14 15 16 17 18 19 20
21

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

or -it'sactuallyafilingjusttofilewithFEMA.
So, they're easiest

not - let me say it this way, the way. We were hired to do an elevation

survey, not an encroachment survey or a property line

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

Q A Q

22
23 24

Wait a second, Mr. Hall. You were initially hired to do a FEMA plan; correct?
That's correct.

And then you've told us during cross examination that

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KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923

Phone: (978)

777-5802 FAX:

(978) 777-5803

LANDING
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BORDEN LIGHT #254067


as

VoI.II

you were - during direct examination that you were


subsequently retained to do a property survey, well, and that's what you did; correct, sir?

That is correct.

And that's why you put the permanent monumentation


down on the grounds based on the site lines that were determined in 2009; isn't that correct, sir? No, thafs not correct.
That's not correct.

The FEMA the flood

if Icould, the FEMA survey, we were

hired for first when they got notified about being in

plain. We did an elevation survey. After

that was complekd, they hired us to do a monument installation, where there's no plan. There was no plan created

offthat. So, there's two different

tasks at two different times.

Agreed. Butbothweredonein2009. lt's probablytrue, butnotin the same survey, not in the same window of time. Butnonetheless,theyweretransposedonthesame
plan, the elevation plan. No, they were not. That's
was created to send to

my - that's what l'm


It was not a plan

trying to say. The elevation survey that you had up

FEMA.

of

11/10/10 1 and building 11. 2 MR. SEIGENBERG: May I approach and just 3 put it directly in front of the witness, Your Honor? 4 THECOURT: Yes,youmay. 5 MR. SEIGENBERG: Thankyou. 6 Q You locatebuilding l0 and building 11 on the 7 elevation plan, do you not, sir. 8 A That depiction on that flood plan is a more gateric 9 building to show elevation. Ifs not an encroachment l0 plan or a survey plan to try to depict, because quite 11 honestly, I don't think FEMA would really care about 12 encroachments. It's an elevationplan to showgrades 13 around the building, first floor, relative to flood 14 plain. 15 Q I-et me try a differort (way. You're not saying these 16 buildings are placed on this plan arbitrarily, are 17 you? I 8 A No, they're not arbitrarily, but the detail that was 19 sent to FEMA is not a detailed site plan. [t's a 20 site plan to show that when they want to insure each 2l one of those buildings, they need the data on the 22 buildingtoshowelevation. Andthat'sit. That's 23 what the task was. The task wasn't about 24 encroachments at that time.
1::)l.l

: :,..;

-85property line, nor did The l-anding hire us to do the I 2 monumentation at that time. The monumentation came 3 afterthatplanwassenttoFEMA. There'sjusttwo 4 different things, two distinctly different windows of 5 time there. 6 Q I see. So, there is monumentation now on the ground? 7 A That's correct. 8 Q Is that reflected on the plan that was prepared by 9 Mount Hope? l0 A No. The '99 plan by Don MacNeill is what we have up ll here. Thereisnoplanbecausetheydidn'trequesta 12 p'lan for monumentation to be shown on the plan. I 3 Q So, nonetheless, sir, when you were out after these 14 permanent monumentations were placed in the ground 5 around 2009, did you, sir, notice any encroachments? 16 A I didn't looh to be honest with you. We put the 17 monuments between two points. We weren't hired to do 18 that. Weputthemonumentsinbasedontheproperty 19 lineofwhattheyowned,and that's it. Ihonestly 20 could not tell you whether or not - if youte trying 2l to say'09 and'99 are two different surveys, I 22 couldn't even answer that. 23 Q Once again, going back to the elevation plan, you 24 show, for example, you show locations ofbuilding l0
1

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I Q 2 3A 4Q 5 6A 7Q 8 9 l0 A 1l Q 12 13 14 A 15 16 l7 18 19 20 2T 22 23 Q 24

The elevation plan, sir, that does show the property

line: correct?
It does show the property line; correct.
Is thepropertylinedepicted

accuratelyinthis

plan?

Ibelieveso. Wouldn't your company thar, locate the buildings


accurately on the plan as well, based on the property

line that's described?


Yeah,yeah.

And so, based on thatsurveyon this plan, no


en$oachments are shown on building correct, sir?

l0 and

I 1;

Right. Thafs true.


MR. SEIGENBERG: Thank you. THE COURT: Are you done with this witness?
Are we done, Mr. Seigenberg?

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

Iapologize. Iwas done,yes. THECOURT: Okay. REDIRECT EXAMINATION


(By Mr. Brennan:) Mr. Hall, directing your attention to what you were just testifoing about, the elevation plan; conect?

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Phone: (978)

14 Palmer Avenue Danvers. Massachusetts 01923 177-5802 FA* (978) 777-5803

LAI\DING

BORDEN LIGHT,#254067

VoL.III

I 1/10/10
I
2
J i 5

I A Mm-hmm. 2 Q This plan shows footprints ofbui'ldings, does itnot? 3 A Correct. 4 Q But does it show air condit'ioning concrete pads? 5 A It does not. 6 Q Does it show concrete steps? 7 A ltdoesnot. 8 Q Doesitshowporchoverhangs? 9 A No. It may show the patios or porch overhangs, but itdoesnotshowthe -youknowthedetailofthe l0 11 building that would be sent to FEMA and such, you 12 l:now. for what the task was at hand' 13 Q Which one ofthese twoplans wasprepared for 14 encroachments? 5 A The plan on the easel was prepared for encroachment. 16 Q Exhibit40? 17 A Correct. MR. BRENNAN: I have no further questions, 18 19 Your Honor. MR. SEIGENBERG: Nothing further, Your 20 2l Honor. THE COURT: All right. [rt's take a break 22 23 for about ten minutes, and we'Il come back and go 24 until 4:30.
1

all, these are ali the dimensions that were taken on


the plan, exhibit 43, all came from a southerly

direction. The measurements of this plan all come from the northerly direction. The other thing that is significant, Your Honor, is these buildings are
depicted on this plan, exhibit - the elevation plan, 2 I . And they're relative to the property line, which
are totally different what's shown the other exhibit.

6
7 8

THE COURT: And I will


know, I can read a plan and I

see those when, you

l0
11

will examine

those.

t2
13

MR. SEIGENBERG: Thank You. THE COURT: They come in as they come in MR. SEIGENBERG: I understand. I
appreciate the time. Thank you.

t4
15

lo
t7 l8
19

MR. BRENNAN: Your Honor, mynext witness will be Michael Lund.

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

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

MICHAELLUND

20

(Witness swom.)

2l
zz
23
aA

DIRECT EXAMINATION (By Mr. Brennan:) Mr. Lund, would you please state youl name and
address?

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1 2 3 4 5 6 7 8 9 l0 1I 12 13 14 l5 16 l'7 18 19 20 21 22 23 24

(Witness stepped down.)

(Moming break) MR. SEIGENBERG: We're not going to be


doing closing arguments in this, and givot the procedure of the Iand Court, where it's a long time before the court get our written findings, I would

like the opportunity just to spend a minute with counsel and Your Honor, and just superimpose those
two plans that were the subject matter of the testimony, so the court can get a close look at these two plans and compare.

THE COURT: You know, you will have

an

opportunity. Imayhaveyoucomebackinfororal argument after you've Iiled your memorunda. So' you
know, there will be more opportunity to rwiew these

things,butifyoucan enlightenmetogetheron MR. SEIGENBERG: I appreciate that. THE COURT: - the differences in those
plans, that would be okay.

MR SEIGENBERG:
best thing to do is

Thank you. Probably the

little

bit.

I know it's

tojust superimpose these a hard. The first time I saw

this plan myself, it was hard.

Justacoupleofobservations. Firstof

I A Michael Lund, 700 Shore Drive, Unit 316. Q Unit what? You're going to have to speak up so we 3 can4 A 316. 5 Q Is that at The tanding at South Park? 6 A lt's at The I-anding at South Park. 7 Q How many units do you own at The landing? 8 A Two. 9 Q What are the numbers? l0 A Unit 808 and unit 316. 11 Q Now, Mr. Lund, are you enPloYed? 12 A Yes. 13 Q Bywhom? 14 A Borden LightMarina, lncorporated. 15 Q Inwhatcapacitl4 16 A I serve as the president. I 7 Q For how long have you been employed by Borden Light? I 8 A Probably since I was fifteen years old/sixteen years 19 old. 20 Q Howoldareyounow? 2l A Thirty-seven. 22 Q Were you familiar with the property that - or are 23 you familiar with the property, and were you familiar 24 with it in 1986 that is now the Borden Light Marina
2
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landing at South Park?

Do you know how it is that your father came to acquire the title to the property, that is, from whom did he purchase it?
Yes.

3Q

Could you describe for the court what the property


was like prior to the construction of the Marina and the construction

4 5

ofThe t-anding at South Park?

4A sQ

Who was that?

6A

The land at the top of the embankrnent, the ernbankment encroached almost all the way out to the water. There was o1d cement and old railroad tracks up

6A
7
8

7 8 9 l0 11 12 13 14 l5 16
17

it was E.G. Davis, who was - not E.G. Davis. It was a company that was assisting the owner
I believe

of the property. Did your father purchase the property with another individual?
Correct. Who was that?

there. Down below the embankmant on the northerly


end, there were a bunch ofhouses or shacks on

eQ
10

pilings that some people lived in; some were abandoned. And then as you - ifyou could walk
along the water and you went down the southerly end by Kennedy Park and King Phillip Boathouse, there
were probably another thirteen or fourteen houses

llA
12Q

13A
14Q
15

Brian Gory (phonetic).


Were you personally down on the property on the premises around the time this picture was taken in
1987?

built on stilts.

l6
a binder

Q Noq
Yes.

Mr. [-und, do you have

of exhibits in

17A
18Q

In a limited capacity, but yes. In what capacity were you there?


Just going to work with my dad.

18 A 20 Q 21 22 A 23 Q 24 A
19

front ofyou? Would you please turn to exhibit number


have it?

19A
34-l?
Do you

20Q

But you recall that time period, do you not? Directing your attention to exhibit 34-2, would it be fair to say that that picture depicts one ofthe buildings that war

21 A Correct.

Yes. Do you recognize whafs shown in that photograph?


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

22Q
ZJ

24

**"t*:;f:t

-93 -

I
2Q

created his vision. There's a date on that photo

I A
of 1987. Did you put

Correct. Do you recall that event?


I recall the following day, having to cornplain about
a fire watch. Now, are you familiar with the manner in which Borden Light Marina and The landing at South Park were

3
4A
5Q

2Q
3A

thatdate on there?
Yes,

Idid.

4
5Q
or'87. in the

Is that your recollection of when that picture may

6 8 9Q l0 l1 A 12 Q l3 14 15 16 l7 A l8 19 20 Q 21 A 22 23 24 Q

havebeen taken?
I believe it's either late '86

7 A Yes.

6 7
8A

marketed?
Yes.

early years.
Does that picture accurately depict what was there at

9Q

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


there?

that time?

10
11

Yes,itdoes. Now, just walking you chronologically through the


sequence, starting with that exhibit, number 34-1,

if

that's what the property looked like back in late '86/'87, what, ifanything, next happened to develop thatproperty? The first thing was theremoval of the houses along
the shoreline on the both the southerly end and

northerly end ofthe property.

Howwasthataccomplished?
Well, some people bumed them, but for the most part

it was accomplished by tearing them all down and


shipping out the debris. Do you know when it

is

- strike that.

A Yes. 12 Q Doyouknowthoseindividuals inthatpicture? 13 A Yes. 14 Q Do yourecatl when thatpicturewas taken? 15 A Thatwas taken, I'm going to sayprobably'88, late 16 '87,'88. 17 Q Atwhattypeofevent? 18 A Itwasata - Ibelievethatwas ataboatshow. 19 Q Was The l,anding at South Park marketed at that event? 20 A Yes. 2l Q Isthatdepictedinthispicture? 22 A Yes. 23 Q Now, looking at that picture, do you see a reference 24 to Borden Light Marina on the right?
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14 Palmer Avcnue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING v BORDEN LIGHT #254067 VOL.III tlt10n0


I A
2Q 3A
Yes.

I
2Q
originally

What do you see on the left?


The picture of the Marina was what was

and then building 6 is being constructed. Now, youte talking about The I-anding at South Park; correct?

3
4A 5Q

4 5 6 7 8 9
10

permitted, 410 slip marina, entering in on the northerly portion, running all the way down cornmon boundary line in front

Conect. In that photograph, would that be looking in


southerly direction?
There is looking in a southerly direction; correct.
a

ofall

140 units, and then

leaving out though the southerly end by Kennedy


Park, and the proximately

it was on Narragansett Bay,

7A 8Q

Wlrat part of that picture shows what is now the Marina?

and in terms of highways for the condominiums.

Q A

1 12
I

After the shacks were removed from the property, do you recall what, if anyhing, next happened to
develop The l-anding at South Park and the Marina?
There were a number of improvements firade to lower

13

14 15 16
17

Kennedy Park at the southerly end by my father, his

partnerand Ibelieve, thedeveloper. And then


construction began on The I-anding.

Q A

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

18
19

Marina started first?

TheLandingbuildingswere
because

startedfirst. Theywere

20 2l 22 23 24 1
2Q

granted relief on some of the permitting reviews

ofthe investment that my father and the

other developer had made in lower Kennedy Park, and their effors to clean up the old abandoned houses along the waterfront. The Marina subsequently had to

9 l0 A II 12 13 14 15 Q 16 17 18 A 19 Q 20 A 21 22 23 24 I Q
2A

Theentirepicturefromwhere the photographeris


standing and looking along the embankment past the very first building to where the - almost to where the two very large trees are at the southerly most

point.
picture where

Directing your attention to the bottom halfofthat itjust shows, you know, the disturbed
material and the water.

Mm-hmm.
What is there now?

Now there is

roadway. There is a large shed for


a

boatrepair and storage. There is a mechanic's shed area. There is boardwalk. There is the piers

of

where you walk to the office. l,ooking all the way down the waterfront?

-97 go through a much more rigorous permitting process.

-99 No, that's -

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


could you take a look at that and describe for us

kl that immediate area, there's fuel tanks

3 4 5 6
7A 8Q

what - well, strike that.


Would you take a look at that picture,
please?

Yeah.
There's a date on that date on there -

picture. Did you put that

9
10 11

A Correct. Q -in 1987? 12 A Conect. 13 Q Do you have a recollection of the propertybeing as 14 itis shown in thatpicture 15 A Yes. 16 Q - so it fair and accurately represents the Marina 17 property? 18 A Yes. 19 Q lnoking atthatpicture, on the top third ofthe 20 picture you can see some new construction; is that 2l correct? 22 A Cortecl. 23 Q Would you know what those buildings are? 24 A It'sbuilding 3,building4, Ibelievebuilding 5, -98NOTES

3 undergtound, the big sheds and parking and the 4 boardwalk, and a boat ramp. 5 Q Now, I think I asked you, this is looking in a 6 southerly direction; is that correct? 7 A Correct. 8 Q I-et's look at the next exhibit, 34-5. And I'd like 9 to ask you ifyou recognize what's shown in that picture. l0 I I A This picture is standing on the southerly end, 12 looking in the northerly direction back at the black 13 tanks, which are still there. 14 Q There's abuildingbeing constructed in that 15 photograph? 16 A Correct. 17 Q Would you be able to tell what building that is? 18 A I believe that's the building just past the swimming 19 pool, which is I think, building 7. 20 Q Now, in that picture, Mr. Lund, you can see cerlain 21 earth work has taken place on the site? 22 A Conect. 23 Q Are you familiar with the work that's taken place? 24 A lmean,Im watching it as a young kid, yes.
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KS COURT REPORTING

LANDING v BORDEN LIGHT #254067 Vor,.III


2A

rut0n0
I A
2Q
Yes.

:."

:i

I Q

Doyourecallthat?
Yes. the left ofthe building that's being constructed, there's an embankment there: is that correct?

Can you orientate the court as to where that might be along the property line between Borden Light Marina
and The l-anding?

3 Q Noq lookingatthatexhibitnumber34-5,rightto

4 5

3 4
5A

6A
7Q

Correct.
Is that still there?

6
7Q

It is essentially, standing at the comer of building 5, and looking in a southerly direction. There's a stone pier shown in this photograph. Is
that still there?
Stone pier's stil'l there.

8A 9Q 10 A 11 12 13 14 15 Q 16 17 A 18 Q 19 20 A 21 22 Q 23 A 24 Q I A 2 3Q 4A 5 6Q 7 8A 9Q l0 II A 12 13 14 15 Q 16 17 A 18 Q 19 20 A 21 Q 22 A 23 Q 24

No. What happened to it?


The area by the swimming pool, probably sometime

8
9A
in in 10
1

Now, there's a fence that's shown in this photograph;


correct? Correct. Do you know - d'irectingyourattention to 1988, do you know whose fence that was?

2000 -late2005106,well,hadbeenexcavatedyears
ago, had been cut way back, and then more recently the last ten years a retaining wall was put by the area ofthe pool.

But directing your attention to what's shown in this exhibit, therc is


Correct.
a

building under construction.


see

And to the left of thebuilding, what do you


there? Do you see an embankment?

Yeah, you see the embankment's been cmved away by excavation.

Thatwasin1987.
Conect. 2010, has anypartof that embankmentstill there?

A Q 14 15 A 16 7Q l8 19 20 21 A 22 23 Q 24
12 13
1

Itwas The landing at South Park, the developerof


the condos installed it.

Directing your attention to the gravel, or the dirt


material shown on the right-hand side ofthat photograph, and as we stand here today, is that embankment still there?

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


retaining walls have been put in. Can you tell from looking at this photograph, what construction technique was used for the retaining

-101 ICs

-103-

cutfurtherback towards theedge ofthe

I
2A
of

walls in this picture, orientating to the building?

swimming pool. What,

Fromthis point, standing, fromthispointofthe

if any'thing, replaced the embankment?

Throughout the whole property line, an assortment retaining walls.

If you had to locate where the swimming pool is in


this photograph, where would that be? In terms of The

hnding?

No, in terms of this photograph, directing your attention to the right-hand side.
The swimming pool,

it appears

as

kind of the short,

wood, picket fencejust in front ofwhat's

buildingT. There'slikeathree-and-a-half/four
foot wood picket fence.
And you say - is that where the swimming pool was

ultimatelyconstructed?

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


Directingyourattention to exhibit34-6, areyou familiar with that photograph?
Yes.

And it's dated 1988? Yes.

Did you - do you recognize what's in that


photograph?

3 photo looking south, was a segmorted block wall. 4 Q You mentioned - how much - strike that. 5 Have retaining walls been built along the 6 common property line between Borden Light Marina and ? The hnding? 8 A They've been on the very first chapter 9l license 9 from day one. l0 MR. SEIGENBERG: Objection, Your Honor. 11 A And they've been built 12 MR. SEIGENBERG: It speaks for itself, Your 13 Honor. 14 THE COURT: Answer the question. The 15 wihess should answer the question directly. 16 Q The question, Mr. Lund, is has a retaining wall been 17 built along the common property line benveen Borden 18 Light Marina and The Landing at South Park? l9 A Yes, since day one. 20 Q Now, when, to yourknowledge, did the firstretaining 21 wall - was the firstretaining constructed, and 22 where? 23 A Firstretaining walls were constructed in 1988. The 24 first one was constructed in the middle of the
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14 Palmer Avenue Danvers, Massachusetts 0l 923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING

BORDEN LIGHT #254067 Vor,.I

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I A
2Q 3A
Yes. In what manner? The developerofThe t-anding asked myfatherto add on to the height of the wall.

property, down towards now which is the second main I 2 access point for the docks. That's basically in the 3 m'iddle of the property. The second retaining wall 4 was constructed at the northerly end ofthe property 5 in front buildings l0 and I l. And then there was a 6 small segmanted block wall that was constructed down, 7 right around building 4, back around that same time 8 ffame. And then there was also a sheet pile wall 9 that was constructed directly in front ofbuilding l0 10 at that same time period. l1 Q Haveyou described all oftheretaining walls that 12 had beenbuilt? 13 A You mean in terms of the t)ryes of construction or 14 Q Types ofconstruction and walls. 15 A Yeah. Thosewere theareas ofthe wallsbuiltat 16 that time. 17 Q So, does thatdescription take you fromalong the 18 entire common property line of the Marina and The 19 landing? 20 A Today? 21 Q Yes. 22 A There's an assortment of block wall, sheathing wall 2J and poured wall thatruns along the entireproperty 24 line.

4 5 6 7 8
9Q

MR. SEIGENBERG: Objection, Your Honor.


What the developer told his father is

fiple

hearsay.

THE COURT: Correct. MR. SEIGENBERG: Thankyou, YourHonor


Just directing your attention to the question, has

l0 1l A 13 Q 14 A 15 16 Q 17 A l8 Q 19 20 21 A 22 Q 23 A 24 Q
12

the wall changed from what's shown in that photograph? Yes.

Bywhomwas thewall changed?


Keith Development added on to the height of the wall

it was even. Isthatwallstilltheretoday?


at either end so

Yes.

Looking at exhibit number 34-7, inthe upper right-hand corner you see some automobiles or trucks
parked there? Correct.
Is that looking in a southerly direction?

Correct.

Now, you

see a gravel embankment

in the right-hand

-1051

-107-

I believe you testified that the first wall was

I
2A

comer? Correct. that still there?

2
3A

constructed in 1988 Correct.

3Q k

4Q
5A 6Q 8Q

-orthereabouts?
Thereabouts. When was the last wall conpleted?

7 A Iwould saySeptemberof2009.
Now, looking at the next exhibit, 34-7, is it fair to

9 say - would you tell the court what is shown in that photograph? l0 ll A In exhibit 34-7, that is one ofthe firstretaining 12 walls that got built in the northerly end ofthe 13 project. That'salsotheaccesspointtothefirst 14 two docks of the Marina. The revetment stone has 15 beenputinplace, goingdowntowards -alongthe 16 road towards the next clubhouse. 17 Q Loohng at the retaining wall in 34-7, it looks like 18 it'sattwodifferantheights. Isthatfairtosay? 19 A Conect. 20 Q And the taller portion of the wall is located in 2l front ofwhat building? 22 A 'foday it is located in front of buildings 10 and I l. 23 Q Hasthatwall changed sincethedateofthis 24 photoFaph?
_ 106 -

4A No. 5 Q What happened to it? 6 A That got dug out before we opened up in '89 and drove ? a sheet piling wall. 8 Q And again, the two buildings shown in that photogaph 9 are buildings what? 10 A The building furthest away from the embankment is 1l building 8, Ibelieve. Buildings l0 and 11 haven't 12 been constructed. 13 Q So, which one is in front of the retaining wall, what 14 number? 15 A Therereallyisn'tone. Itlooks likeit,butthat 16 buildingissetquiteawaysback. Thereendedup 17 being two buildings in front of that building. 18 Q Now you mentioned some sheetpilingwall thatwas 19 installed in the area depicted in the upper 20 right-hand comer of 34-7. With that in mind, would you tum to thenextexhibit,34-8? 2l 22 A Yeah. 23 Q What's shown in that picture? And I'11 ask you no 24 questions about the garb ofthe people shown in the
-108-

NOTES:

KS COURT REPORTING
Phone: (978)

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

LANDING v BORDEN LIGHT. #254067 Vou


1 picture. 2 A It'smyfather. Thatis asheetpilewall that got 3 put up for the season, and that was for the first 4 annual fishing toumament. 5 Q That sheet metal piling, is that the one you were 6 referring to a moment ago in a previous exhibit? 7 A Correct. 8 Q Thenextexhibit, 34-9,ifyouwould. Areyou 9 familiar with what's shown in that photograph? 10 A Yes. I 1 Q Can you oriantate the court for where that area is at 12 Borden Light Marina? 13 A That is the southemmost area, standing on the old 14 granite pier that you saw in an eatlier picture, 15 looking back at the property, the embankment where 16 the condominiums are going to be built. 17 Q Are you looking gorerally in a northerly direction at 18 that point? 19 A Youte looking - you're almost looking easterly 20 towards shore. 2l Q I'm sorry? 22 A No. I guess easterly - northeast. 23 MR. BRENNAN: Your Honor, may I attach 24 exhibit number 2l to the board? It may assist all of
-109-

III

I 1/10/10
I
2

number from?

2l

where that photograph would have been taken

3A
.)

The stones you see are these stones here, and basically looking back in this direction

ifs

(indicating). Thatbuilding's 3 and 4.


Would the photographer have bean on the stone pier?
He'd be standing out on the stone pier.

6Q

7A
8Q

And facing what is now what two buildings?


It would be which is now building 3 and building 4.

9A
10Q
1l

l-ooking at exhibit number 34-9, on the upper third


photograph, there seerrrs to be a plateau there? Correct. What is that?

of

t2A
13Q

14A
l5
t7

That was the top of the bank where the condominiums got constructed. stepping down one level, do you see another area on there that would appear to be a plateau?
Yes.

16Q Noq

l8A
leQ 20A
11

What is that? That was originally where the Hope was to build a marina all at once, where the Marina, the other access - the road was, and where I think there are about ten/eleven houses that got taken down. Could you drive across that area?
lll -

22

z)

24Q
1A

I us in orientating towards 'lHE COURT: Okay. 2 MR. SEIGENBERG: That's the elevation plan. 3 MR> BRENNAN: Yes. 4 MR. SEIGENBERG: That's what I meant. the 5 6 elevationplan. 7 Q Mr. ["und, lookingataplan thathas justbeen 8 attached to the easel, this is exhibit number 21. 9 And I'd ask you if you'd just take a moment and 10 familiarize yourself with that plan. Do you II recognize what's depicted on it? 12 A Yes. 13 Q Can we agree that that shows Borden Light Marina, the 14 bank? 15 A Well, it shows the property; it doesn't show the 16 Marina. 17 Q And it shows The l-anding and shows a common property 18 line. 19 A Correct. 20 Q So, in your testimony of these photographs, maybe you 2l can use this to assist the court 22 A Okay. 23 Q - understanding where thephotograph were taken. 24 Going back to exhibit 34-9, can you tell on exhibit -ll0NOTES:

You could drive down to a certain, but then there was debris in the middle, so you couldn't drive all the

2 3
4Q

waythrough.
So,

ifyou wanted to

access the northem end

ofthe

5
6A

Marina property in 1987, how would you do that?


You'd come through Club Street through the lower Kennedy Park, past the boat club, and then down the

7 8 A l1 Q 12 13 A 14 15 16 Q 17 A l8 Q 19 20 21 A 22 23 Q 24
10

hill.
to access the southerlyend; correct?
be the next

9 Q Butthatwas
That's all question.

Sorry. Thatwas -

right. That was going to

That'sthesoutherlyend. Toaccess thenortherly


end, you came down Ferry Sheet and you came right

into the property.

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


No.

In 1987, is it your testimony today, a vehicle could be driven from the southem access point to what's
shown in this picture?

In 1987, you could drive from Club Street down into


that area.

At any time since 1987 through today, except for any


barricades the Marina may have put up, could you

-ttz-

KS COURT REPORTING
14 Palmer Avenue I)anvers. Massachusetts 01923 Phone: (978)

777-5802 FAX:

(978) 777-5803

LANDING VBORDEN LIGHT #254067


1 2
3A
access the southem point some extent by vehicle?

VoI.III Lu10lr0
I A We use it for boat storage, boat handling and parking 2 on big weekends. 3 Q You testified that the retaining wall has been built. 4 You described the types of walls, and the time 5 period, iflrecall correctly, was'88 to 2009; is 6 that correct? 7 A Correct. It might evor be'87. 8 Q Now, the area seaward of the retaining walls that 9 you've constructed, what do you use that area for? l0 A We use it for boat storage, parking. There's a 11 swimming pool in that ara, shuffle board, travel 12 lift, boardwalk, cookout areas. 13 Q Are you familiar with what is referred !o or has been 14 referred to in this case as the 2O-foot easement? 15 A Yes. 16 Q Whatdoyouunderstand the 20-footeasementtobee 17 A Itwasa MR. SEIGENBERG: Objection, Your Honor. 18 19 The problem is, ofcourse, is that the easement is on 20 the line which THE COURT: And you asked the same question 2l 22 ofall ofyour witnesses, what does he understand it 23 to be. That's all. MR. SEIGENBERG: If I may, Your Honor. I 24
- l15 -

ofthe Marina property to

Conect.

4Q

5 6
7A 8Q

Now, Mr. [.und, directing your attention to exhibit 34-12, do you recognize what's shown in that
photograph?
Yes.

Could you orientate the court on exhibit number 21 as to what's shown in thatphotograph?

9 l0 A I1 12 13 14 15 Q 16 l7 18 A 19 Q 20 2l A 22 23 Q 24 I A
2Q

You areessentially standingagain, righthere, looking kind

ofin

a, I guess, southeasterly

direction. Thafsthecomerofbuilding3,where
the "for sale" sign is, and the boathouse is right

abouthere(indicating)? Now,you mentioned thatyoucould access fromthe southern end to a point, and then you'd encounter
construction debris?

Yeah,revetementstoneallpiled up,and gravel.

tnoking at what's shown on exhibit number 34-12, is


that what you're referring to there for the debris?

Correct. Someofitwas leftoverfromthehouses

thatgottomdown. l-ooking tt34-l2,there's abuilding inthe upper


left-hand comer. What building would that be?

- 113 That's the comer of building 3.

3 4 the driveway you were referring to? 5 6 A Yes. 7 Q Directing your attention to the area that's to the 8 left ofthat driveway, is it fair to say that was a 9 bank that went up towards The tanding? 10 A Correct. 11 Q Towardsthefence? 12 A Correct. 13 Q Is that embankment still there? 14 A No. 15 Q Could you tell the court how it's changed from what's 16 shown in this photograph? I 7 A Over the years we excavated dirt out of it for either 18 fill on the road as we expanded, and then in 2008 we 19 constructed the wall to go to clean up the entrance 20 down the south end, come around the comer, and heading towards building 3 with the segmented block 2l 22 wall. 23 Q Directing your attention to the area that you 24 excavated, what do you use that area for? -l14NOTES:

Directing your attention to the area immediately below what I think you identified as the King Phillip Boathouse - Boat Club, does that show a portion of

I 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18
19

don't think I've ever asked my witnesses what their

understandingofthe20-footeasementwas.
is the key document in the case and -

Iasked

them their understanding about other things, but this THE COURT: Well, his understanding is his understanding.

MR. SEIGENBERG: I know, Your Honor. THE COURT: It doesn't form a legal opinion, so, Imean, whatdoes he understand be? He's the president of the Marina here.
You're
case

itto

right. Once you put

MR. SEIGENBERG: Iknow, that's right. the word "understanding"


as you

in, it has limited value, but

know, the
let it go.

law THE COURT: I know.


I'11

fll

take

itforit's

value.

MR. SEIGENBERG: I appreciate it, Your


Honor.

My understanding is, the non-exclusive


install

use

for

- to

20 21 22 23 24

a drainage pipe, drainage system to collect

the runoff from the roofs within that twenty fet,

and to be able to take measures for erosion control.

And that I had the right to use that property, provided I didn't specifical'ly interfere with those

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

KS COURT REPORTING

LANDING v BORDEN LIGHT,#254067 Vor,. III,


rights that were ganted to The l-anding.

llll0ll0
lQ
2
J

2Q
3
i

Is that a letter you received from the board managers?

of

Now, in the course of the various retaining walls


that had been constructed, other than the litigation
that's now pending and brings us here today, has anyone at The l-anding ever approached you or tried to

A Yes.

a
5

What does it say? height of the wall between the Marina and The

A That they wanted to thank me for increasing the tanding. And they received compliments ofhow
notably. What portion of the retaining wall do you understand the board ofmanagers was referring to? They were referring to a portion, my recollection is
great

stop you from building those retaining walls?

6
7

7A
8

wer happened was when this case originated back in, I think, I imagine it must be ,99
The only time that

8 9

the work is, and how it has improved the landscape

9 10

or 2000. But other than that" they've been constructed actually with -

10Q
11

u
t2
13

MR. SEIGENBERG: Objection, Your Honor. I think the question's been asked and answered.

12A
13

THECOURT: Yes.
MR. SEIGENBERG: Thank you.
Have you ever received any communications from The

l4 15Q
to
lt

t1

l5
t6 t7

of a segmented block wall that I built by the swimming pool in the - kind of in the belly of The I-anding property. And the southerly entrance, I think, including the southerly entrance when I came
around the comer. When did you do the southerly entrance and come around the comer? I think that was done

landing at South Park board ofmanagers relative to


construction ofany part of that wall?
Yes.

18A

leQ
20A
21

l8Q
l9
20n^
1l

What was that communication?

initial communications, I believe, were around '01/'02 when The landing at South Park dropped all
The

in

- that was done in '08.

think. Directing your attention onto exhibit number 34-13,


can you tell from looking at that photograph, which

22

their appeals of the order of conditions to construct


the walls, and

22Q
z)
24

z)
zq

it talked about commancing

construction again and building the walls.

buildings are shown?

-1t7 -

n9I A
2Q 3A
34-8? Thirteen.

I 2 3 4 5 6 7 8 9 l0 II 12 13 t4 15
16

MR. SEIGENBERG: Objection, Your Honor.

Ijust have an answer, if I may, Your Honor. If the witness just


kept his answer to the question, I wouldn't have to
stand up and delay these proceedings. But he starts

He's referring to documents, and

Thirteen. Yes, that'sbuilding


That's building 13? Excuse me. That's building 3.

13.

4Q
5A

talking about

a document and what

it says. I have to

preserve the record, Your Honor.

6Q 7A

Is that the southemmost building?

That's the southemmost buildins.

THE COURT: Are these documents in


evidence?

8 Q Andexhibit34-14?

MR, BRENNAN; Yes, one of them is. THE COURT: Well, why don't you change your question -

MR.BRENNAN: Okay. Iwill.


THE

COURT: - so that he will direct it

more specifically.

Q A Q A

17 18
19

Mr. [,r:nd, at some point in time, did you receive a letter from the board ofmanagers ofBorden Light Marina [sic]?
When I was president, yes.

20 2l
22

MR. BRENNAN: May I approach the witness, Your Honor?

fd like to showyou exhibitnumber38 and askyouif


you recognize that? Yes.

23
24

9 A That is building - that is building 6, right there (indicating). l0 l1 Q Now, in front ofbuilding 6 in thatphotograph, do 12 you see any portion ofa retaining wall? 13 A Yes. That's the conffete poured wall that got put in 14 in late'87/'88. 15 Q Who put that wall in? 16 A Myfather. l7 Q Has thatareaas depicted in thispicture, changed 18 since this picture was taken in 1998? 19 A Yes. 20 Q In what manner has it changed? 21 A All of thedebris downbelowhas been cleared out. 22 There's been a boardwalk put along the revetement 23 stone, a cookout area. WeVe cleaned up on top of 24 the wall and made a nice finish, and it's been used
-120-

l l8
NOTES

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

KS COURT REPORTING

LANDING
I 2 4
3Q

BORDEN LIGHT #254067

VoI.II tut0tr0
I A
2Q
The swimming pool.

for parking in the summer and boat storage in the winter, and for the boardwalk.

Directing your attention to exhibit 34-17, can you


orieritate the court as to where that area shown in
the picture is located in the Marina property? So, this is in the middle of the hourglass, down

Now, when you say - when you mention the boardwalk, where in this picture would the boardwalk in 2010? oftherevetement
us

3 4 6 7 8 10
11

5 A Theboardwalkrunsrightontop

5 A Yes. Thepropertytrasicallyis likeanhourglass.


towards -attheendoftheconcretepouredwallin this area here (indicating).
So, would that be one of the narrowest areas

6
7Q

stone along the water's edge.

8
9A 10 II Q 12 A 13 Q 14 A 15 Q 16 A l7 Q 18 A 19 Q 20 2l A 22 Q 23 A 24

Directing yourattention to 34-15, can you tell what buildings are shown in that picture?
I believe that is building 7, overlooking the

9Q

ofthe

swimming pool. In that picture, do you see the different boats?


Yes.

Marina property?

A Q

That's thenarrowsecfion,

offofbuilding

5 and some

12
13

Did Borden Light Marina place those boats there?


Yes.

ofbuilding 4. Noq has thatnarrowpointalong the Marina


property, has that been altered in any way from when the Marina purchased the property? Yes. How? When we were looking at the shoreline, you see some

Forwhatpurpose?
Storage.

14 15 A 17 Q l8 A I9 20 21 22 23 24
16

And that was in 1998?

Thatwasin1998.
Has that areabeen altered in any way since this

photograph was taken?


Yes.

old armor stone or revetement stone. That revetement wasaddedontoandcontinued. Therestoftheroad

basehasbeenputin. Behindit,Idon'tknowifthe
boardwalk on the armor stone goes down that far, but

In what manner?
Where the picture's taken from is the

pier. That

it ends before it. And then the embankment that


you're seeing has been excavated, and on that portion

pier now has a clubhouse with bathrooms, showers.

t2l
I 2 3 4 5 6 7
8Q
in'99, isnowgone,cutup. There'saboardwalkonthe reveternent stone running north. There are retaining
walls all along the embankment.
A11 the

- tz)

The sump barge, which is what brought us here

I 2
3Q

a segmented - on that

portion some sheet pile, and

then a segmented block wall. So, the areashown onthe left-hand sideof that photograph, was that a sloped banked area at one

overgrown

brush is cleaned up, and it's used for parking and boat storagg parking in the summer and boat storage

4 5
6 7 8 9

point in time?

in the winter.
What is your best recollection as to when a retaining

9
10

wall was built in the area shown in this photograph? The retaining wall directly below the swimming pooi,
I think was '07 or '08. But years before that, the retaining wall was built to the left down to building 7.
Is

A Q A Q

lfthat's whatyou call it. It rose up from the It rose up from the lower elevation of the Marina. Do you recall it being in that condition as depicted

1l 12 13 I4 Q 15 16 A 17 Q 18 A 19 20 2l 22 23 Q 24
NOTES

of

- almost

building 7 the building on the right-hand side in

that photo$aph?
It's both buildings, they're connected.

Okay.

So,ifsan L-shapedbuilding. So,totheleftof


building 7, was a sheet pile wall that was done in theearly2000s. Ontherightofthewhitefence with the swimming pool is, then becomes the concrete
poured wall. What's behind that white picket fence shown in this photo?

l0 in this picture? ll A Yes. 12 Q Now, exhibit 34-21, where would that be on the Marina 13 property? 14 A This is atthe end ofthe original poured concrete 15 wall. Building 6 is behind it as you approach 16 building 5, building 4 and building 3 headed south. 17 Q Was that retaining wall altered in any way at some point in time? l8 19 A That retaining wail wasn't. 20 Q So, the heightofthatretaining wall is as it 21 originally was? 22 A T\atwas - I believe that was the very first one put 23 in. 24 Q Directing your attention to exhibit 34-23, would that
114

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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
be looking in a southerly Yes.

VoI.II

direction -

- on the Marina property?


Yes. Has that area been altered from when this photo was

4A
5Q

taken in 2001, to what you see out there today?


Yes.

7A
8Q

Would you describe for the court how it's been

9 altered? l0 A To the left of the haybales, the embankment has l1 been -weputupawallofbothsheetpilesand 12 segmented b'lock. Along the shore line, the 13 revetement has continued all the way south, picking 14 up some ofthe larger stones that you see by 15 themselves on the beach. And coming up to the stone 16 pierthafsstickingoutfromtheshoreline. There's l7 boardwalk along portions of the revetment. There's l8 a road paved; it's lit up and it's boardwalk for 19 walking. It's parking in the summer and boat storage 20 in the wintertime. 21 Q Now, is thenextphotograph a continuation ofthe 22 work that you - on number 24, is that a continuation 23 of what's shown in 23? 24 A It'sjust -yeah. It'sjustmoreofacloseup.
_125-

11/10/10 I Q I'm asking you to identi! the buildings, starting 2 with the pool, not with the extreme left of the photograph. 3 4 A So, with the swimming pool to the right is building 7 which has the poured concrete wall that got put in in 5 6 '87 that you saw in the earlier photos. The next 7 building - then you next have building 6, where you 8 have a sheet pile wall, which is the area that you 9 saw in the two earlier exhibits. Then it runs along andyou'vegot -youseetheone-halfofbuilding5. l0 I I Q Directing your attention to the next exhibit, 12 number 26, which is also an aedal photograph. 13 A Correct. 14 Q Does that show the entire common propefiy line 15 between Borden Light Marina and The [anding at South 16 Park? 17 A Yes. 18 Q Justdirectyowattention, ifyou would, to the 19 middle of the photo$aph on the lower half. There 20 appears to be aparking lot there. 2l A Yes, in the Marina. 22 Q l,eft of the sheet metal building? 23 A Yes. 24 Q Have you been here all week, and have you heard the
-127 -

Jtft
[,],.,t!:

I Q Directing your attention to 34-25, which is an aerial 2 photograph 3 A Yes. 4 Q - are you familiar with that photo? 5 A Yes. 6 Q Directingyourattention to thisphotograph, ifyou 7 go from left to the right, following along the Marina 8 property line, at some point in time, do you see 9 where the retaining wall ends and the land area l0 strrts? ll A Yes. 12 Q Has the Marina grown in that direction, the southerly 13 direction? 14 A Yes. 15 Q What buildings - keeping in mind the pool is in l6 frontofwhichbuilding? 17 A Thepoolisin frontofbuilding7. 18 Q So, would itbe fair to saythen, we're looking at 19 building 6, 5 and 4 in thatphotograph 20 A Building 2l Q -goinglefttoright? 22 A Yes. Building 6 is the building that was - the wall 23 that's in front of that, the concrete wall, the was 24 the original wall poured way in the beginning.
-126NOTES

I
2A
3Q

testimony of the other witnesses? Yes.


There was some discussion about permitting and

4
5A

building ofa high-rise building?


Correct. Can you point out to the court where on exhibit number 34-26 that high-rise would have gone, had
been built?

6Q

7 8
9A

it

It was going to go in the gravel parking'lot that was west ofthe driveway, and where you see the steel
shed.

l0 l1
12

Q A Q

Would it include - would the shed have to be


demolished? Yes, taken down.

13
14 15

Would the high-rise have included - it's footprint, would it have included that area to the left ofthe
shed?

16 17 l8 A 19 Q 20 A 21 Q 22 23 24

It was thatparking area to the left of the shed.


Who owns that parcel?
That is owned by Admiralty, lnc.

tooking a134-26 TIIE COURT: Counsel, when you're finished


with 26, I think we're going to take
a

break. Okay?

MR.BRENNAN: Okay. Thankyou,Judge.

-t28-

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

KS COURT REPORTING

LANDING v BORDEN LIGHT.#254067 Vor,.III. lQ Looking at34-26 in the upper left-hand comer, you
2

ltllOll0
I
2

can see where the retaining walls stop and the

vegetation starts? Correct.


Has that, as it now in 2010, as a result

4A
5Q
6
7

3Q
4

Resumed Direct Examination of MICHAEL LUND @y Mr. Brennan:) Mr. Lund, prior to taking a lunch recess, we were

looking at exhibit34-27

Do you recall that?

ofwork in

'08 and '09, do the retaining walls now run to the

5A 6Q
7 8

very upper left-hand comer of this photo? They run all the way along -- the vegetation by the pool area is now gone; it's grass. Where the
sheathing wall ends, right around where the paved

Corrert. And I asked you if you could idattify what's shown in that picture. And I believe I asked you if that
shows the southerly half of the common prcperty line

8A
9

between the Marina and The landing; is that correct?


Yes. Has

l0
t1

driveway ends, and you can see shrubbery and the white fence line, now the wall goes all the way through that shrubbery, down to where those boats are
stored and around the comer.

l0A ltQ
t2
13 IA 15

the MR. BRENNAN: Actually Judge, I think I

t2

l3 t4

finished with 34. That's the one you wanted me to

finish with. Okay. THE COURT: Twenty-seven, yes.


go to 34-28, please. Directing your attention to exhibit 34-28, do you recognize what's shown in that photograph?
Yes.

15Q
16

In the upper left-hand corner, you can see the stone pier that we've referred to before? Correct.
Does that have a sailboat on it?

16Q lt's
II
18

l7A
18Q

19A 20Q
)l
22

It has a sailboat on it.

19A
20Q
2l

And there's another pier to the - irrnnediately above that. Does that belong to the King Phillip Boat
Club? That belongs to the King Phillip Boat Club.

In which direction,

if you

were standing where the

camera is, would that be looking south?

22A
23Q
aA

That is correct, looking south.

23A 24Q I 2
3A

And there are certain walls, retaining walls shown on


the left-hand side of the photograph?

And the

access

point at the southern end ofthe

_t29_
Marina property, does it go between the King Phillip Fishing Club and building 3?
Yes.

-131-

I A
2Q

Correct.

And then south ofthe lastblockwall you

see an

4Q

And so, the roadway that's shown in this photograph, nowextends to the extreme southem end ofthe property and out to Club Street; is that correct?

5 6
7A

Yes,butnotpaved. MR. BRENNAN: Your Honor, the break


back here at about two o'clock. (Lunch Break)
norV?

8 9 l0 1l 12 13 14 15 l6 17 l8 19 20 21 22 23 24
NOTES

THECOURT: Yes. We'lltakeabreakandbe

MR. BRENNAN: Your Honor. we had discussed


possibly taking an expert out oforder.

THECOURT: Yes. MRBRENNAN: Andmyexpert,acoastal geologistjust arrived a halfhour early, which is good. Would itbe appropriate - would itbe okay with everyone if we take him nov/? THE COURT: Well, I'd like not to intenupt
thecurrentwitness. Ifyoucoulddoitafterthat,
that would be fine, yes. So, we

will go until

terr

after three, I'm thinking, take a very quick break, like, five minutes or something, and then start right up again and go until ten after

four. Okay?

3 embankment with vegetation? 4 A Conect. 5 Q Hasthatbeen altered sincethisphotographvias 6 taken? 7 A Yes. 8 Q In what manner? 9 A We took away the remainder of the bank and stabilized l0 it with a segmo,ted concrete block wall that ran from II the point that you see, basically down to where the 12 boats are stored. 13 Q Thisphotograph was taken in 2008; correct? 14 A I think so. I think it's late 2008, well, late in 15 the season. 16 Q Okay. Based on thispicturethen, the areathatyou l7 described where the segmented block wall is built, it 18 would have been built in 2008? 19 A Itwouldeitherbe2007or2008. Idon't 20 Q Directingyourattention to exhibit34-31, doyou 21 recognize what's shown in that photograph? 22 A Yes. 23 Q There are some buildings in the backgound of the 24 photo$aph. Do you - can you orientate the court as
-132-

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KS COURT REPORTING

LAI\DING v BORDEN LIGHT #254067 VoL.I


1
2A
to where that picture was taken? lt's essentially right in this area here

lul0lr0
I
2A 3Q
equipment in that photograph?
Yes.

3 4Q 5A 6Q 7A 8Q 9 l0 11 A 12 Q l3 14 15 A 16 17 18 Q 19 A 20 Q 2l A 22 Q 23 24 A I
2Q

(indicating).
Which buildings are in the vicinity?

Do you know what work was being done in that photograph, and whan? That is somewhere in the oeriod of late '86/'87. in that time ffameWhere that piece of construction equipment is, is that now where The landing buildings are?

4
5A

Building 4 and 5 in here (indicating).


In the picture, that's buildings 4 and 5?

6
7Q

lbelieveso.
And is that what's shown in this picture, a bank
that's between those buildinss and the Marina

property? Correct. I-ooking at the embankment that's shown in that photograph, is that representative ofthe bank that existed before you put the retaining walls in? Thafs representativeofthenarrowest sectionof

kind oflike the hourglass that I talked about


earlier, yes.

Howdoes it differ from some of the other sections?


This portion was eroding awaybadly, real bad.
Is there now a retaining wall there? Yes.

Looking at exhibit 34-32, can you describe for the


court what is shown in that photograph? That is down at the southerly end where the entrance
- IJJ -

8 9A 10 Q 11 A 12 13 Q 14 l5 16 l7 A l8 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 10 ll 12 13 14
15

No.
Is that where Marina roadway is?

Yeah. The lower grade is where the Marina roadway and parking lot are.

Mr. Lund,

as president

of Borden Light Marina, could

you take a moment and describe for the court what the opefirtions, or what the operation of the Marina consists of? I guess I'll startwith nowbecause of the time

of

year, but now we haul vessels out, power wash therrr,

winterize them, store them for the winter. And subsequently when that's done, we work on the

facility, winterize the docks, the clubhouses, the little restaurant/bar that we have. In the fall, we sign up our seasonal
customers for the following surnmer. Then usually

-lJ)towards the end of January, we begin doing whatever repairs are necessary to get the Marina rcady. That
takes us until the and ofFebruary, and then

to the marina on the southerly end was carved out. Prior to undertaking that work, was there a driveway or roadway or access point there?
Yes.

3
4A
5Q 6A

beginning in March, we begin working on the boats, prepping them, getting ready to put them back in the water. We usually start launching the boats in

What did you do to that driveway? We widened it, cleaned it up, moved dirt to get down to the lower grade.

7
8Q

If you know, Mr.

hnd,

do you have an access easement

9
10

on the south end to access yourproperty?

April and May, and try for the most part to have them - all ofthem in by June, depending on the weather.
Once -- summer season starts in May, the boats are in the slips, and then during the summer we nrn a number

A Two access easements. l1 Q Can you tell me what your understanding of those two 12 easements are? I 3 A They are easements over The landing at South Park's 14 propertyto gain access into the Marinaproperty. 5 Q Looking at exhibit 34-32, would the King Phillip Boat 16 Club be to the right? 17 A Exactly. It's totheright-handsideofthe 18 arborvitae trees. 19 Q Areyoulooking at -is thatapictureof 20 building 3? 21 A No. That is - it's either building I or building 2 22 setbackaway. Building 1. 23 Q Thankyou. Directing yourattention to 24 exhibit 34-41, do you see that piece ofconstruction
1

ofactivities for the slip customers, fishing


toumaments, swimming lessons, and the like, and cruises, and so forth.

Q A

Now, Mr. Lund, could you explain for the court how
is that you get a vessel out ofthe water and ready

it

16 17
18

for storage? Originally we hauled them on


a boat ramp

with

19 20 2l 22 23 24

hydraulic trailer that could haul vessels up to about forty-five feet. We'd haul them up the ramp and we'd
place them in the parking lot throughout the properfy
on boat stands. And then in late 2000,

we - as the

boats grew and shapes changed, we installed a marine travel lift, which is a straddle hoist crane. The

NOTES:

134 -

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KS COURT REPORTING
14 Palmer Avenue

Phone: (978)

Danvers Massachusetts 01923 777-5802 FAX: (978)777-5803

LANDING v BORDEN LIGHT.#254067 VOL.II


I 2 3 4 5 7
8A
vessels drive in between two

piers. We haul them out

with

lift.

We then take the

lift; we ddve through

the yard, rotate, and then set the boat down, and then drive back with the

lift over to the travel lift

to haul the next one out. to me a little bit about the travel

6 Q Will you explain

lift? Howdo you operate it?


lt's essentially operated by one man with a spotter. It's got it's own gas engine. It's got hydraulics. It drives out onto the end ofthe piers; it lowers

9 10 11 12 13 14 15 16
17 18

thestraps. Theboatdrivesin,ithaulsthevessel
out; it drives back

in.

It usualiy gets power washed

inasecurearea. Andthenfromthereitdrivesand unloads the boat, orrmloads theboatin aparticular


area, or unloads the boat onto another piece

of

equipment that then moves it throughout the yard.

Q Is it a self-propelled piece ofequipment? A No. You have to drive it. It's on four wheels, and 19 it rotates on it's own axis. 20 Q Self-propelled wasapoorchoiceofwords. Butyou 21 actually drive this lift; is that correct? 22 A Yes, you drive it. It has it's own engine, it's own 23 transmission. You get behind it and start it like 24 you would a car or a huck, and then you drive it.
- t)l -

.:-.:n,-: . ":: ' -:{i,-Bi 11/10/10 I C dock, extended D dock, and then it progressively grew, hauling those boats every winter and storing 2 3 them, as well. 4 Q How many slips do you now have? 5 A Now, I think, approximately 260/270 slips. 6 Q And are you continuing to groW? 7 A Under our license we're allowed to go up to -- our 8 latest license, I think, it's 305 or 310 or so. 9 Q Now, asto the storageofvessels during the winter, 10 how has that progressed over the years? 11 A lt's increased as the marina's increased, and we have 12 stored the boats at the northerly end by the 13 clubhouse and as we've expanded through ourproperty 14 the southerly end, we've continued to add those boats 15 for storage. 16 Q Now Mr. [.und, is it fair to say that you've created 17 storage space over the years? I 8 A Yes, as we've developed more of the property headed 19 south we've been able to accommodate more of the 20 vessels that store with us in the summer. 2 1 Q And has the methodology of creating the storage space 22 for the vessels changed at any time since the 23 beginning of the marina? 24 A No, it essentially - no.

.,.:-

-1391 Q And by the methodology, I mean of creating space for 2 the storage ofboats? 3 A Yeah, we've excavated the filI that was put there. 4 We've added to the revetment and we've continued to 5 construct retaining walls. 6 Q Has that been the manner in which you've created 7 storage space since 1988? 8 A Yes. 9 Q And that continued through 2009? l0 A Conect. 11 Q Now Mr. [-r:nd, there was some direct testimony by one 12 ofthe board ofmanagers abouta meeting that you had 13 with one or two or three of them on the Tipsy 14 Seagull; is that conect? 15 A Conect. 16 Q Doyourecallthatmeeting? l7 A Yes. 18 Q What is it that they asked you to do? 19 A At the time, a couple of board members lived at the 20 most southerly end ofthe property, and there was a 2l largo boat down there owned by somebody else that 22 lived at The l-anding. And they wanted me, because it 2l was so large, they asked if I could move it to 24 another area before fourth ofJuly weekend when the

I Q Is it fair to say you could park it anywhere you 2 choose on any given night on the Marina property? 3 A lt's very - you could park it anywhere you wanted. 4 We predominantly try and park it right next to the 5 ramp - to the piers because you always get an 6 emergency in the middle of the night. 7 Q You mean, to remove a boat? 8 A Yeah, to remove a boat if it's sinking or in 9 distress, or something. 10 Q Now, you testified thatyou were -had been around 11 the Marina since you were thirteen years old. So, do 12 you have a recollection ofthe Marina operations over l3 the last twenty-two years? 14 A Yes. 15 Q Can you tell me - describe the Marina when it first 16 started? 17 A When it first started we had main docks A, B and D 18 dock,halfofDdock. Wehadaboutseventyorso 19 slips outofthe 410, and then subsequentlytheyhac 20 summer slips. We just had one club house, a little 21 grass area. That winter we hauled the boats, began 22 servicing them. There were probably twenty-f1ve or 23 so boats stored on land. The following year we added 24 C dock. The following year we added fingers on
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14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 177-5803

KS COURT REPORTING

LANDING
1
2Q

BORDEN LIGHT #254067

VoL.II

fireworks were to take place. When did that meeting - do you recall when that

3 meeting tookplace? 4 A Itwas before the fourth ofJulv. and Idon't knowif 5 it was '08 or'09. 6 Q Do you recall the testimony being it was a Memorial 7 Dayweekend? 8 A I would think it would be around there, but I mean, 9 Memorial Day weekend I'm pretty hartl pressed, running 10 around. I 1 Q Did you, in fact, grant their request and move that 12 boat for them? 13 A Yes. 14 Q Otherthan thatone request, whether itbe in the 15 summer of '08 or the spring of '08 or the spring of 16 '09, whatever time it was, other than that request to 17 move that boat, prior to June of2010, had you been I8 asked to move any boats from storage on The t-anding? 19 A No. 20 Q Never? 2l A Never. 22 Q Notone. 23 A They -no. 24 Q There was some testimony that one of the board of
-141 -

11/10/10 I conditions had expired. We had to renew them, to 2 keep growing. We've had, I think, two other 3 amendments to our chaptff 9l license to put in the 4 travel lift, to put in the boardwalk. And in the 5 last one that we had in '02, we actually cut down on 6 the slips from 400 down to 300. 7 Q To your knowledge, Mr. Lund, has The l:nding at South 8 Park been active in any of the process of you 9 obtaining your various permits? l0 A Originallythey -itwasjust -itwasdonein 11 concertwiththedeveloper. Idon'tknowifthe 12 association had takar place yet. Their most active 13 participation to this date was back in the late'90s 14 when they appealed the local order ofconditions to I5 continue construction. We got a superseding order of 16 conditions. Theyhadappealedthat. Theyappealed l7 to the state, as well. Then subsequentlythose 18 appeals were dropped, orders were issued, licenses 19 were issued, and I believe as an association, up 20 until the most recent conservation filing and 2l chapter 9l filing, there hasn't been any contesting 22 ofthose licenses or permits. 23 Q Without getting into the substance of the permit, 24 what is the most recent chaptr 91 license that's
-I+J-

I 2 3 4
5A

managers -thattheboardofmanagers'impression

I
2A

issued to the Marina? The most recent one was a draft license that was issued from the department

in disregardofanyoneelse'srights. Doyourecall
was that the Marina does whatever they want

that testimony?
Yes.

3 4 5
6Q

lor

us to expand the

boardwalk and do a number ofother thines on the property. And we all agree, that's not a final license at this

6Q

Now, would you - in order to rebut that, Mr. Lund,


wou'ld you tell me, without the substance of them,

7 8 9 l0 A l1 Q 12 A 13 14 15 16 17 18 19 20 2l 22 23 24

point. It is simply
a

what permitting process have you had to go tlrough in


order to develop the Marina?

8 A No.

draft, and they have asked for

Fromdayone?
Yes.

You firsthave to go to local -you haveto go to

localzoningtohavethezoningchanged. Youhaveto
go to conservation to get an order ofconditions.

You have to go to the state wetlands division for a

supercedingorderofconditions.
state waterways

Ihadto gototbe
a

division. I had to do

MEPA

environmental impact study, the 400 slips, the high- rise, 140 condos. Then you had to go and submit, back in'87, to the Army Corp of Engineers. Subsequently, like anything, as the project
evolves, you leam more about what you're doing, and some of your needs change. We've applied

for

amendmentsovertheyearc. Someoftheordersof

9 input on rnatters such as public access and others. l0 Q When you did the alterations to the access road at I1 the southern end ofthe property, did you petition 12 the local conservation commission? 13 A h 2008, wewere issued an order ofconditions to 14 complete the roadway, in fact, pave it and install l5 drainage all the way out the southerly entrance, but 16 that wasn't contested. 17 Q Was that 2008 or 2009? 18 A I might have - I think it started in '08, and I 19 think it was issued in early'09. I think we also 20 filed at that time a stormwater runoffplan with that 2l order. 22 MR. BRENNAN: Thank you. I have no further 23 questions, Your Honor. 24 THECOURT: Cross exam?
-144-

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

KS COURT REPORTING

LANDING v BORDEN LIGHT.#254067 Vor,.I


1 2 3
4Q
MR.SEIGENBERG: Thankyou,YourHonor CROSS EXAMINATION
(By Mr. Seigenberg:) Mr. Lund, talking about - you mentioned just
recently about some DEP appeals; right, sir? Correct. Isn't it a fact that there is currently an appeal there's currently a matter at DEP, that The has made an appeal?

6A 7Q

8 t
10 11

landing

A Q

There's two.

There'snvo. Okay. So,thosearecertainly


contested.

12
13 14 15

A Yeah. I mentioned those. Q I'm sorry. Those were contestd in 2009120102 A Idon'tknow. Theymightbe'09. Themosttwo
recent filings, they've contested both.

16
17

Q Theywerecontested? l8 A In'09 - I think it's'10, yeah, 2010. 19 Q Sir,thephotographsthatyourve -thatare 20 exhibit 34 that you've reviewed during your direct 21 examination, the dates on those photo$aphs, you're 22 the individual who inserted those dates: correct? 23 A Conect. 24 Q And youinserted thosedates in 2010; correct?
-145-

11/10/10 I buildings 3 to 5, that all occurred in 2009; correct, 2 sir? 3 A Correct. 4 Q And this letter has nothing to do with the work that 5 was done in 2009: correct? 6 A Correct. 7 Q During your direct examination you talked about part 8 of the operation of the Marina is to store boats over 9 the winter: correct? 10 A Correct. 11 Q And once again,justso I'mclear, thewinter 12 storage, that operation, starts in what, October? Is 13 thatapproximatelycorrect? 14 A Some of the boats start early October if they're 15 owned by snowbirds, yes. I 6 Q And the storage of the boats requires the boats to be 17 taken out ofthe water: correct? 18 A Correct. 19 Q Cleaned off; correct? 20 A Correct. 2l Q And eventually placed somewhere within the Marina 22 property; correct? 23 A They're 24 Q For storage.
-147 -

I A
2Q
3A

Correct.

hr 1986,howoldwereyou?
I guess thirteen/fourteen years old, Now sir, exhibit 38 was the letter from The landing. That's that 2008 letter. You rnav want to look at to verify that ietter.
Yeah.

4Q

5 6
7A 8Q

it

There'sbeen a greatdeal oftestimonyduring this

t
10

hial relative to exhibit 38: colrect, sir?

A Correct. 1 1 Q This letter that thanks you, that was thanking Borden 12 Light Marina for the extra blocks that were placed t3 near the swimming inol; isn't that correct? 14 A I think it was - there were two sections built in 15'08. Onewasinthatarea.and theotherwas around 16 the comer at the southerly entrance. 17 Q Well, let's break it down then. You would agree with 18 me that when The Landing was thanking you, the thank you certainly included the extra block that was l9 20 placed near the swimming pool? 21 A Yeah. Ithinkitactuallyincludedboth,butthe 22 emphasis was by the swimming pool. 23 Q Right. And the major construction, that is the 24 excavation and the erection ofthe wall near
-146NOTES:

I A Yeah. Theyte basically placed everywhere, with the exception ofprobably the driveway. 2 3 Q And that storage, everywhere but where? 4 A He tries just about everywhere but where the driveway 5 is. 6 Q So, you put the boats wherever you have available 7 room? 8 A Well, you leave the driveway open and then you put 9 them on either side ofthe driveway. l0 Q The areas whereyou store theboats includes the II boardwalk area that you constructed; correct? 12 A Conect. I 3 Q Now, this operation goes from early October, that is 14 the storage operation that is hauling the boats out, 15 placing for winter storage, until what date, 16 December? 17 A The activity of hauling them? 18 Q Right. 19 A td say October to December. 20 Q So, approximately a three month period of time; 2l correct? 22 A Correct. 23 Q During thatperiod oftime,you indicated thatyou 24 purchased a new piece ofequipment to assist in this
-148-

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

KS COURT REPORTING

LANDING v BORDEN LIGHT #254067 Vor,.III tU10n0


I
2 3 4 5
operation -

?t

I
2A
a
-

you not, sir?


Yes.

A Q A Q

Conect. - correct? And what did you call that, Travel lift. - travel

3 4
5Q

MR. SEIGENBERG: And specifically, Your


Honor, ifs exhibit4"

lift.

And this travel lift,

as you

And sir, your understanding of the visual easement is

6 7
8A

indicated, you keep

it

- you like to keep it when

it's not in operation near the piers; correct? When wete not running it, we put it out by the pier that we constructed in early 2000.

9
10

6 7 8 9
10 11

thatthevisualeasementwassothatpeopleonlots I and 2, The landing property, would have a view of


Mount Hope Bay, and views of water would not be blocked. Isn'tthatyourbelief,sir? Mybelief is thatno structures Is thata

Q A Q

11 12
13 14

liftisbeing utilized byBordan Light Marina ftom October through December to assist with the winter storage?
And this travel It'sused throughouttheyear.

12
13 14

A Q A Q

corect statement ofyourbelief, yes or

no?

Wellthen,no.
Well, let me break it down. Would you agree that the
visual easement, so that structures would not be
erected in front

Throughouttheyear. Okay. Now, inthespring,


obviously what happens is, ifBorden Light starts the operation in reverse to basically take the boats that
were stored and put them back into the water; correct?

15 16 17 18
19

l5 16 l7
18 19

oflots I and 2 that would block

the

views?

A Correct. 20 Q That operation starts when, April, sir? 21 A td - it starts the beginning of March. 22 Q Beginning of March, and that will extend until June, 23 is that correct? 24 A The contractperiod tobeon land ends May lst. A
-149-

A Q

Yes.

20 2I 22
23 24

And also, sir, so that The knding, people at The landing would have a view of the Marina, but they wouldn't have
a

building built up in front ofthem

that blocked their view; right?

A Q

Theywouldn'thaveastructure Astructure -

-t5lI A
2Q
- in front ofthem that blocked their - that blocked their view.

I
2Q

lot

ofit

depends on the ppring weather.

So, sometimes Sometimes

it goes beyond May

1?

3A
4Q

it

goes beyond.

So, once again we have approximately a three month

5 6
7A

operation oftaking the boats from storage and placing them into the water; correct? Correct, putting them in. correct?

8 Q During thishalfyear,thatliftisutilized;

9
10

A Yes. 1l Q Howhighisthatlift? 12 A I mean, I don't lmow exactly. I'd guess probably l3 twenty feet high, twenty-two feet high. 14 Q The Marina's property is basically a level ten MSL; 15 correct? 16 A Correct. 17 Q Ten feet MSL. So, to the extent that that travel I8 lift is utilized and kept on your premises, you would 19 agreethatitwouldextandbycertainly -atleast 20 ten feet above the nineteen feet visual easement, 2l MSL: correct. sir? 22 A I'd say it extends above the nineteen feet; correct. 23 Q Okay. Now, the visual easement that we've been 24 referring to, you're familiar with the document, are
-150NOTES:

3 Now, there's no question, sir, that that 4 lift that you utilize, that would block a view, would 5 it not, of Mount Hope Bay? 6 A Yeah. I would say - I would disagree. 7 Q You would not a$ee with that? 8A No. 9 Q Okay. And the boats that are stored that exceed l0 twenty feet, wouldn't they block the views of The ll [anding, sir? l2 A Boals aren't structures. 13 Q That's not my question. 14 My question is, wouldn't the boats block l5 the view of Mount Hope Bay for people at The landing? 16 A I think the boats are part of the view of Mount Hope 17 Bay. 18 Q I1l try one more time. 19 MR. SEIGENBERG: Your Honor, can I have a 20 direct answer to the question? I think it was a 21 fairly direct question. 22 THE COURT: Please answer "yes" or "no" to 23 "yes" or "no" questions. 24 A No, I don't think they block the view of Mount Hope
-152-

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

777-5802 FAX:

(978) 777-5803

LANDING
I
2Q
Bay.

BORDEN LIGHT #254067


of
it applies to all oflot 3,

VoI.II LUt0n0
I 2 5 6
7A 8Q
boundary line between the Marina and The Landing, rs
all within the twenty foot easement?

Okay. And you would agree it's your understanding


the visual easement that

3 4 5 6
8Q

exceptwhere the highrise was contemplated, and the maintenance shed near Almond Sheet is located: correct?

3 A All 4 Q All

of that wall and - all of the wall. of the walls, right- Now sir, in this case, you're aware that the court issued a preliminary injunction; correct?
Yes, Im aware of that. Sir, can you tum to exhibit 15? Doyou havethatin

7 A Itappliedto 9A

Sir, answer that question, please. Well, then, I guess define it a little bit more,

10 maybe, on the plan. I I Q I1l be happy to do that. 12 MR. SEIGENBERG: If I may, Your Honor? 13 THECOURT: Yes. 14 Q First of all, where the high-rise was to be located 15 is somewhere over here, sir? 16 A Correct. Right up againstthatcomerofthe 17 retaining wall. 18 Q Right off of Almond Street; conect? 19 A Justtotherightofbuilding 11. 20 Q And the maintenance shed, that's located somewhere 21 over here, too, sir? 22 A, A little further down; correct. 23 Q Overhere? 24 A No, further north.
-1531

9 l0 A 11 Q 12 13 A 14 Q 15 16 17 A 18 Q 19 20 21 A 22 Q 23 24

frontofyou?
Yes.

That's the preliminary injunction that was issued by this court on May 23rd,2000; correct?
Yes.

At that time, Borden Light Marina, they were represa,ted by Attorney Edward Brennan; were they
not?
Yes.

And in fact, AttomeyBrennan has represenled Borden Light Marina in this


that correct? Conect.
So, Borden Light Marina at all times has had the

'litigation

since 1999; isn't

benefit of having cousel directly involved with this


case; correct, sir?

-155-

Further north towards Almond Street once again? Yeah, but -- very close to me, in that direction; correct, yes.
So, other than those two, the area where the highrise was to be located and the maintenance building, was your understanding

2A

3
4Q

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

it
of

ofthe visual easement that

they would have an unobstructed view, they'd have


side up to here sir? Yes.

unobstructed Mount Hope Bay all along the westerly

(indicating). Wouldn't you agree,

Now, you're also aware, are you not, of the twenty


footslopedeasement? Yeah.

Would you agree with me, sir, that all of the walls
that has been constructed near the boundary line between the Marina and The landing, was within that twenty foot easement? I'm sorry. I wasn't
again?

palng

- I was - what was that

Yes. No problem. Relative to the graded sloped


easement, would you a$ee with me that all of the

wall that has been constructed by Borden Light Marina, along or in the vicinity of that common

I A Correct. Q And Attomey Brennan, is he someone that you see on a 3 regularbasis - strike that. 4 Is Attomey Brennan someone that you have 5 seen on a regular basis since approximately 2000 to 6 2010? 7A No. 8 Q Is it fair to say that you see Attomey Brennan about 9 once a year, twice a year? 10 A No. I I Q He's certainly available to talk to, is he not? 12 A Yes. 13 Q Attomey Brennan, has he handled other matters for 14 Borden Light Marina, other than this litigation? 15 A I don't think so. 16 Q Okay. Now, sir, Borden Light Marina has never l7 requested this court to modi$ that preliminary 18 injunction;correct? 19 A No. 20 Q This preliminary injunction that issued, you were 2l involved in the proceedings whan that occurred; 22 correct? 23 A Correct. 24 Q Conect me if I'm wrong, but my understanding is that
2
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14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803

KS COURT REPORTING

LANDING v BORDEN LIGHT #254067 VOr,.II


1 2
3A
first ofall, this tand Court action was brought in
1999; correct?

1/10/10

tti,

Correct.

4Q

5 6

While this tand Court action was panding in 2000, Borden Light Marina excavated a portion ofthe bank
and erected a concrete block wall: correct?

7 A ht 2000? 8 Q Right. 9 A I don't - that's

not my memory -

l0 Q ll A 12 Q 13 14 15 16 17 18 19 A 20 Q 2l 22 23 A 24 1 2 3 4 5 6 7 8 9 10 II 12 13 14 I5 16 l7 l8 19 20 2l 22 23 24

Iappreciatethat. -myrecollection.

lsn'tthatthough -yourunderstanding,didn'tThe
l,anding come into the court in 2000 with memorandums of law, affidavits, and complain to the court that Borden Light Marina, without permits, and within the twenty foot erosion control easement, had excavated
the easement and erected a concrete block

wall? Do

you remember that now, sir? What concrete block wall?

My understanding, sir, according to the papers in


this case, it was near building 5 and the swimming

pool. Do you remember that now, sir?


No,no. MR. SEIGENBERG: Your Honor, I ask the

I 2 3 4 5 6 7 8 9 l0 11 12 13 14 l5 16 17 18 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 t0 1l 12 13 14 l5 16 17 l8 l9 20 21 22 23 24

MR SEIGENBERG: I'd be happy to explain. THECOURT: Butwouldyoujust Honor.

MR SEIGENBERG: Firstofall -

Yes, I'd be happy to, Your

MR. BRENNAN: We have stioulated the injunction. THE COURT: Exactly. The injunction
issued, and it was issued after there was a complainl

that the wall had been constructed within the easement. Is that what you're t

yng to

get at?

MR. SEICENBERG: No. THECOURT: No. MR. SEIGENBERG: It's not. What happened in 2000 is eerily similar to what has happened here in 2009 thatbrought the civil contempt complaint. Samescenario. Theaffidavitandthedocumentsthat
were submitted to the court, which the court can take

judicialnoticeof,youjusthaveto THE COURT: Just let me read the file, yes.

MR. SEIGENBERG: Of course you do. Right. But I think I'm -

THECOURT: And Iwill.


MR. SEIGENBERG: And I think I'mrequired
to bring that to the court's attention, and that's

-157 court to takejudicial notice ofthe pleadings that havebeen filed in this case, particularly

-159all I was doing here.

THECOURT: Okay.
MR. SEIGBNBERG: And it's the same scenario.

affidavits, the motion and the memorandum of


were the basis for this court to issue the

1aw that

Ifs

- they made the same arguments that

preliminary injunction back in 2000.

they're making today, that they did the same thing.

MR BRENNAN: Your

Honor, the preliminary


a

Theyjust went in and excavated the bank, didn't do

injunction issued speaks for itself. Then we have


complaint and we have the answer. The other pleadings, I think, this trial substitutes for what the other pleadings might state in the form

it with permits, based on that the court issued a preliminary injunction. They made the same arguments
they're making here today.

of

THE COURT: Okav. Well. I think we can movebeyond that. MR. SEIGENBERG: I was also THE COURT: I'll read the file and you know, the preliminary injunction issued. Obviously
the matter was not adjudicated at that point.

cetera. Weke here now to decide the issue. So, suffice it to say, the preliminary affidavits,
et

injunction issued. We have


answer, and the

complaint and the

injunction. I would venture that

that would be the only pleadings that would be appropriate to eonsider once the trial is commenced on the ultimate decision by the court. I don't see how an aflidavit from 1999, when the person's not
here, subject to cross examination, is suffrcient

MR. SEIGENBERG: Fullv adiudicated. It was


not fully adjudicated.

THECOURT: Itwasnotfullyadjudicated.
It
was

for

just that the court determined that there was

trialpurposes. Itmaybeforaninterlocutory matter, such as a preliminary injunction, but


certainly not in the ultimate finding of facts. THE COURT: I'm not sure where you're going
here. 158

more likelihood than not, that there would be a

prevailing on the merits, but - and with the balancing, so -

MR SEIGENBERG:

The other 160 -

THE COURT: - it didn't establish

NOTES

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14 Palmer Avenue Danvers. Massachusetts 01923

Phone: (978)

777-5802 FA*

(978) 777-5803

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I 2 3 4 5 6 7 8 9 10 I1 12 13 14 15 16 l7 l8 19 20 2l 22 23 24
1Q
anl.thing. All right. MR. SEIGENBERG: Agreed.

:.ll

1A

2
3Q

mean, it's

THECOURT: Okay.
MR. SEIGENBERG: Except for the fact, the
other reason I was

it was a little bit less than that, but I within that area, but So,approximately600 feetofwall; correct?
I think

4A

lt's in the area. We connected those two points. Whatever that distance is. Sir, would you agree with me that the walls that have
been constructed from the northerly end down to the

byng to utilize that

is because

5
6Q

obviously I'm trying to refresh the witness' recollection ofwhat the events were, because it's clearly my mderstanding that the wall was - there
was a wall constructed in 2000, and thought that

7 8
10

southerly end, right

9 A Mm-hmm.

might refresh the witness'recollection ofwhat occurred.

MR. BRENNAN: I think the appropriate way


to do thatwould be to showhimapleadingifyou want to refresh his recollection. Sulfice it to say,

YourHonor MR. SEIGENBERG: I'd be happy to do that


you really want me to.

if

MR.BRENNAN: Iwouldjustliketopoint
out a laches defense and a decade has passed.

THECOURT: Mm-hmm.
MR. SEIGENBERG: And I'd be happy to use
their mechanism, except it's time consuming for the witness to go through it, so

lll

move on with it.

THECOURT: Okay.

Q - that's approximately I 800 feet of wall? ll A Giveortake,yes. 12 Q And so the construction activitythatoccurred in l3 2009, that was one third ofthat wall length; 14 correct, sir? 15 A No, because it's whatever the measurement is from 16 the -justpastthecomerofbuilding5tojust past the comer of building 3. I don't know what l7 18 that number is. You want to measure it? I'll asree 19 to it. 20 Q Okay. Very good. I'll move on. 21 Now, you didn't obtain any building permits 22 in advance ofthat work: correct. sir? 23 A No. 24 Q And you knew you needed building permits; correct?
-163-

-161Now, you would agree with me to the extent that the Marina consfucted a wall in 2000. there was no permission granted by The tanding to construct that

lANo.
2Q 3A 4Q
You know now you needed building permits; correct? Correct. As a matter of fact, all the work that was done from 2000 to the present, on the excavation ofthe bank
and the construction ofthose walls, all that worft was done without building permits in advance;

2 3 4
5A

wall; correct?
I don't recall - are you talking about before the

6 7 9 l0 l1 12 13
14

preliminary injunction, after the preliminary injunction? talking, the wall that was constructed in between theissuance -thefilingofthiscomplaintin 1999,
and the wall that was constructed in 2000: that's

8 Q lm

5 6 7 8
9A
10
1

correct, sir?

Building permits in advance?

I believe so.

And you're now aware, are you not, sir, that you were
required to obtain building permits to construct
those walls? Yes.

correct. Was there any permission granted by any


member of the board of The

knding for

the Marina to

1 12
13 14 15 16

go ahead and construct that wall?

I don't recall what block wall you're talking about,


because the block wall in front a few years ago.

15 16
17

ofthe pool got built

Q Nowsir,in 2008 and 2009 -strikethat.


In 2009 is when the major construction occurred along the building 3 and 5; correct?

18 19
20

A Q

It's when we connected the segmented wall from the comer, just past the comer of building 3 to the segmented wall up by building 5.

21 22
23

That was about 620 feet, approximately, of wall that


was constructed, sir?

24

A Q A Q 17 18 A 19 Q 20 2l A 22 Q 23 A 24 Q

Now, your father's an attomey; correct?

Mm-hmm. Your father's a graduate of Boston Univosity


School: correct? Correct.

law

And he was president of Borden Light Marina until what,2007; is that correct?
Correct.

And in 2007, you tookover


Conect.

as president; correct?

But your father still stayed involved Borden -

-162NOTES:

-164-

KS COURT REPORTING
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14 Palmer Avenue Danvers, Massachusetts 01923

LAI\DING v BORDEN LIGHT #254067 VoL.


I strike that. 2 Your father has still remained very much 3 involved with Borden Light Marina; correct, sir? 4 A He's my dad. 5 Q So, I guess that's a "yes" to the question, right? 6 Yes? 7 A Yes. 8 Q Now, the excavation and the erection of the wall that 9 occurred in 2009 on that southerly border, those 10 walls that were constructed, and the excavation that II occurred, they were the closest ofany ofthe walls 12 that had been constructed; correct? That's closest i3 to the buildings. 14 A Correct. 15 Q And they're also theclosestwalls to theproperty 16 lines; correct, sir? 17 A Ithink -no. 18 Q What's closer - what wal1 is closer to the property 19 line, other than the walls 20A The2l Q -southerlyon3to5? 22 A The wall that was erectd in 1988, the sheet pile 23 wall in front of building 10, and the wall that was 24 erected by Keith Development in the'90s that runs
-1651

tut0t10
I answer. 'lHE COURT: Mm-hmrn. 2 3 MR. SEIGENBERG: To the question? 'lHE COURT: Well. vou asked if the 4 5 closest 6 MR. SEIGENBERG: Right. I think he's 7 building the whole wall again. If you want to hear 8 it. All right, but I'm not so sure it was 9 responsive. l0 A The third closestarea is theportionthatwas II constructed in '08 or'09. 12 Q Nowsir, you indicated during yourdirectexamination 13 that the Marina has dramatically expanded ifs 14 operations over the years; correct? 15 A It's built out to what it was originally permitted. 16 It took twenty years to do. 17 MR.SEIGENBERG: YourHonor,couldlhavea l8 direct answer to the question, please? 19 THECOURT: Yes. 20 A Yes. 2l THE COURT: Try very hard to 22 THE WITNESS: I'm sorry. 23 THE COURT: - just answer 24 THEWITNESS: I'msorry.
_167
_

perpendicular to Almond Street.


The northerly end which was done by the developer

I of
z
J leaves a

MR. BRENNAN: And at that poinl dramatic

2Q
3

little bit for the witness to deal with. My


ask you a question without embellishing

The tanding, Keith Development; correct?


One portion

brother

will

4A
o

ofit

was, one portion was built by us.

4
5

the words, and I think it would be easier for the

I appreciate that. So, you added on to that wall, did you No. - to raise the height?

witness. Dramatic's

not -

o
7
8

7A
8Q

9A l0Q
Itn

No. You got it wrong.


You did the initial wall; correct?
On the development

a little hard to handle. THECOURT: Okay. MR. SEIGENBERG: I thousht it was appropriate, but I'll rephrase. TFIE COURT: Okay.

10Q

First of all, sir, did you have mind.

problem - never

11 A Yes. ofthe two parcels; correct?

ll
t2

You would agree that the operation ofthe Marina has expanded significantly since it's
beginnings in the late I 980s? It's expanded as it was originally permitted.

13A
t4

If you let me finish, the sheet pile wall, which is after the low wall that we constructed, was built.
That's

l3 t4

l5 l6

right - that's the closest one to the wall,


in'88 and'89. The second

15A
l6
l1

and that was constructed

MR. SEIGENBERG: Your Honor. if I mav have


an answer to the question.

tl
18

closest wall along the entire property line was

constructed by Keith Development, and that ran perpendicular to Almond Street. And that was constructed in '90 or '91. Then the next closest after that - are the

18A
l9
20

It's expanded, yes. It's built

out. It's built out.

l9

tn
21

2l
22

22Q Sir -

MR. SEIGENBERG: He needs to throw in the little extra and - I know. but it's - it rnakes it diffrcult to cross examine when the witness just THECOURT: Tryand ask uyes" and "no"
questions.

23A
24

walls MR. BRENNAN: May the witness finish his


r66 -

z)
1A

MR. SEIGENBBRG: I did.


168 -

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around the boat show.

THE COURT: And I'm sure vour attomev has explained to you THE WITNESS: Im sorry, Your Honor. THE COURT: - only answer the question thatwasasked. Ifyourattorneywantstoaskyou
anything more, he

2Q

And in fact, Borden Light Marina had two contractors working on that wall in 2009; correct, sir?
Correct.

4A
5Q
6 7
8

And

as one started

from the farthest southerly end,

will when this is over.

the other one started towards

the - near building 5,

THE WITNESS: Okay.

and they sort of met in the middle during the

THECOURT: Okay.
MR. SEIGENBERG: Thank vou. Thank vou for that, Your Honor.
The expansion Marina

construction: correct, sir? Correct.

was - the Marina's obviously

9A l0Q ll
12}^
13

And those contractors were Furtado and - is


Jerevek (phonetic)?

it

money making operation; correct? The Borden Light Marina?


Yes.

It's Green - I think it's Green Earth, is the actual


name of the company.

14Q

Who's the individual who's involved with Green Earth?

And by expanding the operation, the Marina makes more


money locafing boats at the Marina, and also storing
the boats; correct?

15A
16Q
t7

Alan Jerevek.
Jerevek,

okay. That operation, in expanding the boat

storage area near buildings 3 and 5, how many boats

Correct. And in fact, sir, in 2009, didn't you prepare a flyer advertizing, "boat storage available Novenrber 1?"
Yes.

l8

wete stored there in 2009 and in 2010? In the area along the wall? I meant in the area in fiont ofbuildings 3 and 5. Do you know which photo is the overhead showing it,
because

19A 20Q

2lA
22

How many people did you send that out to? We send that out to registered boat owners. How many people was that sir, approximately?

I'll count them.

23Q
1A

You don't need to; lm just trying to get your best memory as a witness, sir.

-169We do it within a radius of Fall River. ht Novernber


I'11

l7l
say

2500/3,000. Idon'tknowtheexactfigure.

l, 2009, for the storage, that was the -

so, you obviously were in a hurry, as Borden Light

Marina was in a hurry in 2009 to complete that excavation and construction ofthe wall near

buildings 3 and 5 so that you could have room for


that boat storage that you advertized; correct, sir?

Not correct.
So, you're
a

salng that Borden Light Marina

was not

in

hurry; is that correct?

No, we weren't in a hurry. We've been sending those flyers every year since 1990.

5 Q So, you had plenty of time to do your construction in 16 2009? Isthatyourtestimonythen,sir? 17 A Yes. 18 Q When did you finishthe constructionin 2009? 19 A Ithinkwe finished itaround Septemberof2009. 20 Q Are you sure ofthat date, sir? 21 A No, I'mnot. 22 Q Itcould havebeen October of 2009; right, sir? 23 A Well, it's right within that time fiame. My memory 24 is that we finished before the boat show or right
-170-

I A I wouldn't want to misspeak. 2 Along the wall, I would guess somewhere 3 around thirty, but 4 Q Along the wall? 5 A Yeah. And then on this old stone pier, probably five 6 orsix. Itvariesyear-to-year,dependinguponthe 7 slze of the width of the vessel. so I would have to. 8 you know, lefs say thirty boats, plus another five 9 or six. 10 Q The Marinacharges forboatstoragebythe linear II feet ofthe boat; is that correct? 12 A Correct. I 3 Q What's the current rate for storage per linear feet? 14 A Thirty-two dollars a foot. 15 Q And then,sir, approximatelyhowmuch does The 16 landing -strikethat. 17 How much does the Marina make for the boat 18 storage that is nowbeing done between buildings 3 19 and 5? 20 MR. BRENNAN: Objection, Your Honor. 2l That's confidential business information. I don't 22 know why this would matter to 23 THE COURT: I'm not sure why it's relevant. 24 MR. SEIGENBERG: Two reasons, Your Honor,
172 -

14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-SgA2 FAX: (978) 777-5803

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two major reasons. One is that this is a contempt proceeding, and THE COURT: Well, we've already found

I A
2Q

I don't know this year. Do you know the avemge size of the boat that's
stored there?

contempt. We found that at the hearing, so thafs


done.

MR. SEIGENBERG: Butthere's portion ofthe contempt.

a penalty

THECOURT: Mm-hmm.
MR. SEIGENBERG: And certainly the court
would want to know

if somebody does something in

violation ofthe court order. I would like to think that the court would want to know how much money they've realized by the violation ofthat court
order, and that's what

3 4A 5 6 7 8 9 l0 ll 12 13
t4

I'm going to estirnat about thirty feet MR. SEIGENBERG: I have nothing further, Your Honor. Thank you. THE COURT: We were going to take a short break. Do you want to take it before or after you finish with this witness? MR. BRENNAN: I only need five minutes with him, so I can get him -

THECOURT: Okay. MR. BRENNAN: - offthe stand quickly. THECOURT: Okay,fine. REDIRECTEXAMINATION
(By Mr. Brennan:)

ifs aimed at. Also, I want

to show the court the financial motivation that these people had to do the type ofthings they've done. THE COURT: Well, I think that's pretty evident.

MR. SEIGENBERG: I agree. But the -

MR.BRENNAN: They'reabusiness;theymake
money.

THECOURT: They'reabusiness. Youknow,


I mean. that doesn't have to be demonstrated.

MR. BRENNAN: I don't think their income on lt)boats storage may be public information, Your Honor.

15 16 17 18 Q 19 20 2l 22 23 24
I 2 3 4 5 6 7 8 9 l0 I1 12 13 14 l5 16 17 18 l9 20 2l 22 23 24

Mr. llnd, you were asked about the storage ofboats, howmanyadditional -howmanyboatsyoustored betweenbuildings3and5. Howmanyboatsdoyouget
to store between 3 and 5 in the easement ara, in addition to what you can do otherwise? It's in the
easement area; correct?

MR. SEIGENBERG: Objection, Your Honor.

-175lt's not relevant. The easement area has nothing to

I objected at the deposition to confidential business

information. If someone wants to cotmt the boats and do the math, Im sure they can. But to inquire and
to disclose, that is not right.

dowithit. They'veexpandedtheiroperation illegally, and they othrwise wouldn't have boat


storage there. So, the easement area, and as we've

talked about, the visual easemenl applies to all

of

THE COURT: I think your getting to the number of boats, how much per liner foot, we've got photographs. I think there's a way to at least
estimate that amount. You're trying to get at the

lot 3, and notjust to the easement area itself. THE COURT: I'm telling you, I don't know
where you people are going with

this. I've got


in

book full ofphotographs showing me where the boats


are, how big they are, where they're stored

difference between before the wall was built and after the wall was

built. I think

we can do that by

relation to 3 and 5, where they're stored in relation

the number ofboats or the size

ofthe boats that

totheeasementarea. Idon'tknowhowmany
questions we have to keep going with this.

were stored there and go with that.

MR. SEIGENBERG: Okay. MR. BRENNAN: I don't think itpertains to


the remedy on contempt.

MR. BRENNAN: Well, my only point was that


additional boats as a result ofthe excavation in the
easement area is, I think, a

THE COURT: Well

MR. SEIGENBERG: Potentially it does, Your

limiting factor THECOURT: Okay. MR.BRENNAN: -versuswhattheycouldput THECOURT: Okay. MR.BRENNAN: So,myonlypointwastoask

Honor. It'suptoyou,whatyoudecidetodo.

down there outside the easement.

So, those

thity

to thirty-hve boats that are stored

2l 22
23 24

in the vicinity ofbuildings 3 and 5, how many linear


feet

ofboat are stored there?

A Again, it varies year to year. Q trt's talk about this year.


71i

Michael, in between 3 and 5, how many additional boat go in the easement area? That was my only point. THE COURT: We'll allow that.

-176-

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Phone: (978)

777-5802 FAX:

(978) 777-5803

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like to break up a trial like this, but as you know, the court is moving in early December, and they're
starting to dismantle things in Novanber. So, don't even think I'll have a courtroom available

- to answer that, I'll have to look at the

photos from '06. We probably in

'06 - it's a matter ofefficiency. kr'06,alotoftheboatswere blocked in, and they were to the right. After the
construction ofthe wall, they were single stacked so you had easier access. I mean, I don't think the numbers grew substantially since then. Thank you. That other question. You were asked about having two contractors working at the same time in '09. Would you tell the court how that came about? It came about because the individual who we tried to hire, and has been working - it was actually the guy

until after we move. MR. BRENNAN: Im confident when we do


reconvene it will be one day.

will suflice, Mr. Lund. Only one

THE COURT: Okay. I,et me see what I've gol here. Exactlyoneday. Icould giveyouthe2lstof
December.

MR. SEIGENBERG: I can do itTHE COURT: Otherwise, it's going to have to be the middle ofJanuary. MR. BRENNAN: On the 2lst of Januarv. I

whotoredowntheshacks,keptputtingusoff. He saidhe'dbethere;hekeptputtingusoff. And the otherconfactorhadajobcancel. Hereferredusto


him to come and do the

havea MR. SEIGENBERG: December?

work. Halfway, or not

halfway, but somewhere in the process, the original guy we wanted said that he could come back and heln
He was freed up, so we said,

MR.BRENNAN: -ofDecernber. Ihavea reoccurringboardofdirectorsmeetingatalocal it'sasmall bankand THECOURT: -yes. Okay. MR. BRENNAN: - I'd hate to
cancel.

"terrific," well get

the work done quick, twice as fast, and you know,

THE COURT: Okay. Well, then I really - I


don't have a courtroom available is the problem,

make the neighborhood happy, get the equipment out


there.

of

-177 That's just the way That's just the way

lrfssee. Firstweekin January,the6thofJanuary -179or the week of the l6th of January.

3 4 5 6 7 8 9 10 II 12 3 14 15 16 17 18 It 20 21 22 23 24
1

it worked out then? it worked out. MR. BRENNAN: No further questions, Your
MR. SEIGENBERG: No questions, Your Honor.
THE COURT: All

MR. SEIGENBERG: I can do the 6th. Your


Honor.

Honor.

THE COURT: The 6th. We may be in fairly


cramped quarters.

but -

right. If we're done with


will go

MR. SEIGENBERG: Well, we've gottor closer, Your Honor. so... MR. BRENNAN: Judge, Im sorry. I just
asked my expert; he's going to be out

this witness, why don't we take just a short break,


and we'll be back by ten after three, and we

fromthere.
(Witness stepped down.)

ofthe

country -

(Brief break taken.)


THE COURT: All

THECOURT: Oh,okay.
MR. BRENNAN: - the first week in January.

right. Wete going to try

and go for another hour or so, and then we're going

to have to stop for the day. We had talked about

THECOURT: Allright. MR. BRENNAN: I don't know whv I didn't ask

whetherornotwecould continueonFriday,but let's see, you've got one client in addition to

himfirstbeforewe THECOURT: Thenwe'vegottogooverto


the week of the

this - in addition to

the your engineer, right?

l6th.

The 19th. the 20th? What

MR. BRENNAN: I have Mr. Rosen now, and I


have a structural engineer. The other client may not be necessary.

would you MR. BRENNAN: I seem to be the holdup,


Judge, so others.

fll

take anything that's good for the

THECOURT: Yes. Iamconcernedbecausel don'thaveallofFridayto giveyou. I'vegotsome


things scheduled that moming, so I think we're going to have to, unfortunately, because I really do not

THECOURT: Okay.
MR. SEIGENBERG: Either of those davs are
okay with me.

-178NOTES:

-180-

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

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I 2 3 4 5 6 7 8 9
10

tllt0no
2A
1 Q And your
address?

THE COURT: All right. MR. SEIGENBERG: You know Blackberries are when you know how to use them. $eat MR. BRENNAN: Youte brave to trv that in a
courtroom.

30 Mann Street, Hingham, Massachusetts. Are you employed? Yes, Iam.

4A 5Q
6A

3Q

Inwhatcapacity?
I'm an associate professor of geology at Northeastem University, and lm an environmental consultant at GEO Plan Associates. What's the name of the business again? GEO Plan.

MR. SEIGENBERG: I was good until we THE COURT: I was going to suggest, if we
schedule

it for the 19th, we can kind of make the

7 8
9Q

20th a snow day.

MR. SEIGENBERG: I'm there. Your Honor. the


19th is great

l1
t2

THE COURT:

All right. And we will sort of

13
t4

reservethe20thjustincase, Okay.
MR. SEIGENBERG: Should we take a qack at scheduling a view tentatively, as well? THE COURT: I don't know when I'm going to need to view at this point. Right now, I'll decide
at the end.

15
16

17 18
lo

l0 A 11 Q 12 A 13 Q 14 15 A 16 Q 17 A
l8

And where is GEO Plan located?


GEO Plan Associates is at 30 Mann Street. Starting with where you graduated fiom high school, would you walk through your education, please? I graduated from Glenn Cove High School in 1966. Where is that? That is Glenn Cove, New York on l-ong Island.

THE COURT:
where I used to live.

lmg

Island, very closd to

MR. SEIGENBERG: Your Honor. could vou


resewe at the er,d ofthe day here, at least five minutes, so we can address - I'd like to address at
least one issue with you.

19
20

20 2l 22 23 24 I 2 3 4 5 6 7 8 9 10 ll 12 l3 14 l5 16 17 l8 19 20 2l
22

2l

MR. SEIGENBERG: I was bom in Glenn Cove. MR. BRENNAN: Oh, you don't know each
other.

THECOURT: Ifwecanwrapupthis
testimony. But if we're - unless we're in a good

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

MR. SEIGENBERG: Despite my Boston accent, YourHonor.

-181break point, or a

-183MR. BRENNAN: I think there's a conflict. YourHonor. Okay. So, we're on Inng Island. And after high
school?
I went to the state University of New York at

little earlier,

as I told you, we

have to get out ofhere by 4:15, so...

MR. SEIGENBERG: Right. And

thaCs

whyl

brought it to the court's attention. Whatever we can do, thank you.

THECOURT: Okay. Andyouknowthatthat will be in the Pemberton Square courthouse, the


highrise.

Potsdam, Potsdam State College, majored in geology and graduated in 1970.

Thatwas froman undergraduate? With


a bachelor's degree

MR. BRENNAN: Unfortunately. THE COURT: No comment. MR. SEIGENBERG: lrss so for you, Your Honor. It's a great spot, obviously.

in ge{logy, undergraduate.

I then went to the University

of

Massachusetts in Amherst, got a master's in geology

THECOURT: Okay. Movingalong. MR. BRENNAN: Your Honor, my next witness will be Peter Rosen.

*************
PETERROSEN

withaspecializationincoastalgeologyin 1972. And in 1976, I went to the College of William and Mary, a school of marine science. Got a PhD in marine science in 1976, with a concenhation in
geological oceanography. I then went to the Geological Survey ofCanada and served a two-year post doctoral fellowship with the Geological Survey

*************
(Wiaress swom.)

ofcanada, and subsequently came to Boston.


What year was it that you ended up in Boston?

DIRECT EXAMINATION
@y Mr. Brennan:)

lg79,Ibelieve.
For how long have you been an associate professor at Northeastem?

Q A

Mr. Rosen, would you please state your name for the
court, please?

23
24

My name is Doctor Peter S. Rosen.

Ibelievethirty-twoyears.

-182NOTES:

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310.0, Ibelieve. Haveyou evertestified
as an

Now, do you No, no, no, a professor - assistant, and then


associate professor. So, you've been affiliated with Northeastern

2A

expedwitness in

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for

thirty-two years?
Correct. Do you hold anyprofessional licenses?

Yes,ldo.
In what states?

I'ma certified professional geologistfromthe


American Ijnstitute of Professional Geologists, which
is a national certification, and I'm a certified or

professional geologist in North Carolina, South Carolina, Virginia and Flodda. Now, could you explain forthe courtwhata coastal geologist is?

Yes. Acoastal geologistdealswith thephysical processesthattakeplaceonshorelines. Welookat


the interface ofwater and land, and look at the

evolution of the shorelines. So, we're dealing with


waves, we're dealing with currents and we're dealing

with earth materials, sediments that form the up'land adjacentto the shoreline.
Could you describe for the court some examples of the

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6Q

matter, a case such as this before? I've testified in Massachusetts I-and Court one other time, yes.

Any other tribunals, any other courts? I testified in several courts in Massachusetts, Plymouth, Boston; in Rlode Island and in Maine. I've
testified in U.S. Federal Court in New York.

MR. BRENNAN: Dan, do you have any objection to this curriculum vitae? MR. SEIGENBERG: No. MR. BRENNAN: Your Honor, there's no objection. I'd like to have his curriculum vitae
marked as the next exhibit.

THECOURT: Okay. We'reuptoexhibit44. (Exhibit Number 44, marked in


evidencel CurriculumVitae
Peter S. Rosen)

of

MR. BRENNAN: Your Honor, at this time,


based on the qualifications

ofthis \Mitness, I would

ask that he be qualihed as an expert to render an

opinion on coastal geological matters. THE COURT: Any objection?

-185type ofprojects you've worked on that involved coastal geology, just by example of what a work day

-187 MR. SEIGENBERG: No. there's not. Your


Honor.

might be, or a project might be for a coastal geologist?


Projects that I'm involved in now, including the

THECOURT: Okay.
MR. BRENNAN: Thank you, Your Honor. THE WITNESS: Thank you. Doctor Rosen, have you had an opportunity to visit
the site in Fall River that is the subiect matter this litigation?

6 7 8 9 l0 II 12 13 14 15 l6 17
18

shoreline processes in Boston Harbor shorelines, we're looking at the processes oferosion and retreat

ofthe glacial islands, which are retreated coastal banks. Thefateofthatsedimentbuildingupis beachesandotherareas. I'mdealingwithsanddune
procsses in several areas, trying to deal with the

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of

Yes,Ihave. And bythat,doyouunderstand thattobethe


property owned by Borden Light Marina, and sharing a common boundary line with The landing at South Park

transport and deposition ofsand forming coastal sand


dunes.

Condominium?
Yes.

And then from the consulting standpoint, I deal with coastal structures and a definition of
wetlands boundaries, banks, dunes, barrier beaches,
beaches and other coastal wetland areas.

Onhowmanyoccasions haveyou visited the site? Ivisited thesitethreetimes. In addition to visiting the site, have you taken any other steps to familiarize yourself with the Borden Light Marina property and The Landing at South Park
property?

Are you familiar with the code of Massachusetts Regulations thatpertain to chapter 91 waterway
licenses?

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Yes, Iam. What other regulations are you familiar with in the

Yes.Ihave.
Could you explain for the court what else you've
consulted or looked at? I reviewed chapter 91 license documents, construction

CMR that would be pertinent to a coastal geologist?


Primary regulations are the wetlands regulations,

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BORDEN LIGHT #2s4067


ofhistoric

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The other is a vertical buffer to floodins and flood
damage. Based on your obsewation of the Borden Light Manna,

plans, historic plans, a range

photographs, both photographs from the land and

aerial photographs going back to 1996. I've looked


at the nature of Mount Hope Bay in larger scale maps,

looked at the water body that's adjacent to it.

6 Q Haveyoureviewed anyphotographs? 7 A Ithink I'vereviewed anumberofphotographs,


several dozen photographs, yes.

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you've stated that there are two coastal banks. And I would direct your attention to the most inland one

ofthetwo. Ofthetwodefinitionsyoujustgave,
which coastal bank would that one fall into?
Functions. - the landward coastal bank is a vertical buffer to

8 A Of the two frmctions I mentioned

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Any historical data about the site? The photographs go back into historical time. Many ofthemwereolderphotographs,yes. Andtheaerial
photographs also went back to 1995.

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Whatabout -do youhaveanyinformationon the historical usage ofthat particular site prior to the
Marina and the condominiums? I understand that this was a railroad yard, and that
subsequent to it's use as arailroad yard, a added.

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flooding. It is not a sediment source, and I believe


DEP has recognized this as only a vertical buffer to

flooding, and not a sediment source, also.


Just so we know, what does a sediment source mean?

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fill

was

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Now, Dr. Rosan, giving the proximity of the Marina property and the land configuration of the Marina
property and The I-anding at South Park condominium parcel, are there any geological features there that you would classify as a - say, a coastal bank?

Yes, there are two coastal banks on the property.

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14

A sediment source is ifabank can erode, and the eroding sediment might feed an adjacent beach, as

an

example. So, that has some value. So that in this case the upperbank was not determined by DEP, and by
my observations, to be feeding sediment to any beneficial purpose.
So,

if it's not feeding sediment to

another beach for

any beneficial purpose, what is it's sole role as a

coastal Thesolerole is avertical bufferto floodingand

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-l9tstorm damage. As a coastal geologist, do you have a need to, or the

I Q Could you describe for the court what - could you 2 describe each coastal bank for the court? 3 A There are two coastal banks forming a stairstep-like 4 form. The lower coastal bank extends from somewhere 5 near water level up to, I believe, elevation ten 6 feet. Thenthere'sahorizontalexpanseofland, 7 which is most of the usable property of the Marina. 8 From there a second coastal bank or a landward 9 coastal bank extends up to the condominiumproperty. l0 Q Whatmakes a parcel of land a coastal bank? 11 A Coastal bank are defined in apolicyofthewetlands 12 regulations, and in the regulations themselves, 13 coastal banks are an elevated land form adjacent to 14 the water. 15 Q Need a coastalbankbe anaturallyoccurring land l6 formation, or can it be manmade or crealed? l7 A Theycan benatural orthey can be manmade or 18 created. 19 Q Now, can a coastal bankbe - does ithave to consist 20 ofdir! or could itbe a vertical wall? 21 A It can be a vertical wall or other materials. 22 Q Again, what purpose does a coastal bank serve? 23 A Coastal bank in general serve two purposes. One is 24 a sediment source to other wetland resource areas.
190 -

3 expertise to calculate storm surges or wave height, 4 for example? 5 A Yes.Ido. 6 Q And what significance does wave height have to a 7 coastal geologist in a fact pattem, such as the 8 Borden Light coastal bank? 9 A The size of the wave determines in part how high the I0 waterlevelcanextend. Italsodetermineshowmuch II energy will be expended against that wall, or against 12 that coastal bank. 13 Q Having observed Mount Hope Bay, and having some idea 14 ofit's size, et cetera, could you explain to the 15 court what size wave might be generated during a 16 particular weather evett on Mount Hope Baf And 17 maybe you should pick a weather event that is 18 significant to a coastal geologist. 19 A Mount Hope Bay is a virtually enclosed body of water. 20 There's two small openings. Tidal currents such as 2l storm swge, can readily move through them, but no 22 significant amount ofwave energy is going to pass 23 through the two narrow openings that are going !o 24 impact the bay. So that the waves that are alfecting -r92-

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the shorelines in Mount Hope Bay are waves that are

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six-and-a-halffeet above the flood elevation,
because part

generatedwithinthebay. Thebay -thesizeofthe


waves is a

ofthe wave is below water level and

function - the generalization, the

part of the wave is above water level. Have you had an opportunity to review any data that gives you the flood elevations ofthe proprty at the Borden Light Marina and The Ianding condominium?

theoretical wave is a function ofthree factors; how


fast the wind blows, how long the wind blows and the

fetch. or the distance of water over which the wind blows. Do you have an idea of what the fetch would be across Mount Hope Bay?
The fetch is very limited in most directions, except the southwesterly direction. From the southwest,

My understanding is that the FEMA elevation, which is


the 100-yearstormelevation,or 100-yearflood
elevation. is elevation 22.

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And in theprocess of you forming an opinion on any


matters pertaining to this coastal bank, is that a

it's approximately a five mile fetch.

If I were to askyou ifyou could calculate

a wave

significant elevation to you? Does that factor into your opinion? Very much so, yes. Having visited this Borden Light Marina property on
three occasions, could you describe for the court your observations ofwhat you observed there, as far
as a

height, wouldn't we have to discuss what that weather


event would be? There's such temrs as a ten-year storrn, a twenty-year, a five-year storm and a

hundred-year storm. Right.


So,

retaining wall goes, and did you walk the

if I were to ask you to determine

the worst case

property up and down, upper and lower levels?


I walked the property upper and lower levels all

scenario ofwave height on the Borden Marina

property, which storm event would you use?

three times I was on the site, yes.

lts general practice to use the 100-year storm.


It sounds self-evident, but what does 100-year storm
mean?

Could you - starting from the north, and if this is ofanyassistance MR. BRENNAN: May I approach, Your Honor?

193 The 100-year storm is the storm - it isn't self-evident, in that the 100-year storm is a
storm -

-195THECOURT: Yes,youmay.
this is aplan

2 Q Ifthis is ofanyassistance,

of

that shows the condominiums, and it shows the way the

Now you know why

lm on this side of the podium. in


100 years there should be

Marina -- it's called the elevation plan, and it's

- that has a one percent probability of occurring in any givor year, so that

beenidentifiedasnumber2l. Isthattherightone,
exhibit 21? Exhibit 21.
I've got 21. So, this may help orientate you with your testimony with the south end being Club Street,

l00percentprobabilityofthatstormoccurring.
doesn'toccurevery 100 years.

It

8Q

Thank you. Applying the 100-year storm criteria to

Mount Hope Bay, and assuming the longest fetch that mightoccur, what type ofwave height might the
Marina be confronted with in a 100-year storm? In this setting, I was able to determine the maximum theoretical wave height without other variables entering into it because this is a fetch limited

9 l0 1 I 12 l3 14 15
16

with the north end being up at the end of Almond Street. Could you describe for the court what you
and

observed whan you walked the property, starting at


the northerly end where the Marina office is, proceedingsoutherly. Couldyoujustnarratively

tell the court what you observed?

setting. So that in five-and-a-half - five miles I


was able to look at the largest wave that that fetch

Iobserved averticalwall throughoutthe entire

cansupport. Andldeterminedthatthat'sabouta six-and-a-halffootwave.


Whathappens to flood elevations during a 100-year

storm? In other words. where would that six foot


wavebe? That six foot wave is going to be superimposed

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lengthoftheproperty. Thewallwasasolid concretewaltatthenorthend. Therewasasection


ofsheet pile wall, and then there was a concrete block wall, which formed the southern end of the property. That forms the upper coastal bank.
you then walk across the top of the wall on The I-anding property? Yes,

22 Q Did

upon - on top ofthe flood elevation. It's not

Idid.
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Ifawaveshould overtop acoastalbank, eithera vertical or a sloped coastal bank, what h+ppens. when
the wave actually goes over the top

Q A

Could you describe what you observed there for the


court?

4
5 6 7 8

Off the top of the wall at the upper bank, there was a grassy slope, relatively low slope that extended up
to the condominium

ofthe bank? If the wave goes over the top of the bank, like

buildings. It was not a uniform

runup, as long as there is horizontal momentum, as long as the water has energy to move, it'll continue

slope, but generally a low slope extanding up to the

condominium buildings. Within that slope there was a


drainage system. I observed several storm drains

flowing up until it runs out of anergy, and then gravity will take the water and it will flow back
downward again.
Does one

along the way. The slope was grassy and fairly

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uniform.

ofthetwo walls, either avertical or

Q A Q A

Vr'hen waves encounter a coastal bank, could you

coastal bank, or the sloped coastal bank, does one have less likelihood oferosion than the other?

explain to the court what action occurs, and how does


the wave dissipate'it's energy?

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Thevertical coastalbank,

ifit's

comprised

of

When a wave approaches a bank, at some


a vertical bank or a sloping bank?

point - well,

concrete,hasaverylowlikelihoodoferosion. It
also creates a point above the bank that the slope is

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Well, let's talk about a sloping bank first.

relatively gentle, so that ifwater overtops

A sloping bank. When a wave approaches a sloping bank, at some point the wave is going to become
unstable and break. When the wave becomes unstable and breaks, the water in the wave first crashes down.

con$ete vertical wall, it's going to go up a gartle


slope, and therefore the backwash is going to go down
a more gentle slope, have a lower

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21

velocity and less

potential for erosion.

That energy is expended physically against the bank itself, qeating a lot of turbulence, and

You'veusedtheterm"sloped"here. Toacoastal
geologist, what does "sloped" mean? Slope is a surface where one end is higher than the other erid, so that slope is an).thing but a horizontal

22
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if

there's

loose sediment, potentially erosion. Following the

breaking, the momentum in the water keeps moving

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_199_
surface. So, there is

1 landward and rushes up the bank until it runs out of 2 energy. Atthatpoint, thewateriscarriedby 3 gravitybackdownslope,lmownasthebackwash. That 4 has the potential, also, for eroding and transporting 5 sediment. 6Q The7 A Thebackwash. 8 Q - wave on a vertical slope. 9 A We were talking about a slope 10 Q Imean,onaslope? 11 A Yes. 12 Q Now, could you describe forthecourtwhathappens 13 when a wave encounters a vertical coastal bank? 14 A On a vertical coastal bank, the wave mayormaynot 15 break. Ifthewavebreaks,itbreaksagainstthe 16 vertical wall. Butbeforebreaking takes place, or l'l uponcontact,partoftheenergyisreflected. Like l8 light on a mirror, part ofthe energy ofthe wave is 19 movedbackintheseawarddirection. Partofthe 20 energycanbreakagainstthewall. Atthatpoint, 2l the water in the wav has nowhere to go o(cept up. 22 So, the remaining energy that isn't reflected and 23 isn't actually transferred down the wall, potentially 24 will go straight up.
-198NOTES

no - you don't

have to be to a

3 particular degree ofslope before it's a slope? 4 A No,bydefinition,no. 5 Q Are you familiar with the word "graded?" 6 A Yes. 7 Q What would that word mean to you as a coastal geologist? 8 9 A Grading a surface is to level offirregularities. l0 kveling offirregularities can be of a slope or it 1 I can be ofa vertical surface, as long as you take out 12 the irregularities in the surface. 13 Q Mr. Rosen - Doctor Rosen - I've got to get that 14 straight - Doctor Rosen - strike that. 15 MR. BRENNAN: Your Honor. I have one more 16 question. l7 Q You have a binder ofexhibits in front of you? 18 A Yes. 19 Q Would you turn to page number 5, please - I mean, 20 exhibit number 5. Do you see the document entitled 2I "non-exclusive easement?" 22 A Yes,Ido. 23 Q Have you seen that document before? 24 A Yes.Ihave.
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LANDING v BORDEN LIGIIT #254067


I Q Giving due regard to the language in exhibit 2 number 5, midway through the first paragraph, do you 3 see where it says, "for construction and maintenance 4 ofdrainage systems?" 5 A Yes. 6 Q Could you just follow along with me, starting at that 7 pointwhere itsays, "forconstruction and 8 maintenance ofdrainage systems, and for construction 9 and maintenance ofa sloped graded erosion and flood l0 protection barrier." Did I read that correctly? I I A Yes, you did. 12 Q As a coastal geologist, could you tell me what a 13 sloped graded erosion and flood protection barrier 14 means to you? 15 A A flood protection barrier is some form that retards 16 flooding,elevatedwaterlevel. Aslopedgraded l7 erosion and flood protection barrier means it has 18 slopetoit. Itmeansoneendishigherthanthe 19 other, which can involve any level ofslope, from a 20 very slight increase in elevation to vertical. And graded means that it is a smoothed off, leveled 2l 22 surface on that slope. 23 Q In preparing for your testimony here today, do you 24 have an understanding ofthe nature ofwhat this
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1

was irregularly vegetated, and

it extended fiom what

I viewed as the present road level more or less to

what is presently the top ofthe slope. Were you able to determine any, at least visually from the photographs, characteristics ofthe soil material that were in the photos? The characteristics of the soil material I would call

soil,clay,sandandasmallamountofgravel. There
was also some debris in the fil'l.

Doctor Rosen, based upon your observations you made during the site visit, or site visits, and the
materials, records, photographs that you reviewed in preparation ofbeing here today, combined with your own education, experiorce and training, do you have
an opinion to a reasonable degree

ofscientific

certainty in the field ofcoastal geology as to whether or not the current vertical wall located in
the southerly 650 feet

ofthe site interferes with

The Ianding at South Park's rights under the non-exclusive easement for erosion control and flood protectionpurposes?

MR. SBIGENBERG: Objeoion, Your Honor.

THECOURT: Sustained.
Doctor Rosen, do you have - based upon your

-203

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i

litigation is about, what the subject matter of the litigationis? Ibelieveso,yes.


Could you tell us whatyourunderstandingofthe
issues in litigation?

observations you made during the site visits, and the materials, records, photographs, diagrams that you reviewed, combined with your education and your work experience and faining, do you have an opinion to a

4Q

5
6A

My understanding is that there was a pre-existing


geritler slope on this easementproperty, and that the vertical wall that forms the second or upper coastal

7 8 9 l0 II
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ofscientific certainty in the field ofcoastal geology, as to whether or not the vertical wall that you observed provides erosion
reasonable degree

control and flood protection for The I-anding at South

bankwasconstructed. Andlbelievethere'ssome
quesfion whether that is consistent with what is specified in the easement, this vertical wall.

Parkproperty?

MR SEIGENBERG:

Q A Q A Q

When youwerepreparing torenderan opinionhere today, you testified thatyou viewed various photographs; is thatcorrect? Correct.

Objection, Your Honor. THE COURT: What's your objection? MR. SEIGENBERG: I rhink it's beyond his

13 14
15 16

expertise. He assumes things that he's not competent to testifu about, particularly THE COURT: No. This is his opinion
as to

And were some of the photographs of this areaprior


to a construction ofthe vertical wall?
Yes.

whether or not the wall provides flood protection.

17
18 19

MR. SEIGENBERG: I think - let me explain


the nature of my

objection. It's simply the fact

Generally, could you tell the court what you observed about this coastal bank prior to the construction
the wall, gorerally, in the photographs that you observed?

20 2l 22
23

that he doesn't know the quality ofthe wall, and

of

that'sthedifficulty. Andthat'soneofthekey
points in this case.

THE COURT: And that's what you'll point


out to me.

From the photographs that I observed, I saw the


coastal bank was unprotected soil or sediment.

24
NOTES

It

MR. SEIGENBERG: Okay. Thank you, Your

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ifthat vertical wall, and
feet for

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engineered, and the only evidence so far is it was not properly constructed.

2Q
3

Do you have an opinion


Yes.

we're talking about the last 650

4A
5Q
o

THE COURT: I haven't heard: MR. SEIGENBERG: You can't do hypotheticals


on facts on theevidence.

- provides erosion control and flood protection

The landing at South Park property? What is that opinion?

THE COURT: I haven't heard any real


foundation to this question. And maybe you can go back and explore it a little differently.

'1 A Yes. I do.

8Q

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l3

it provides erosion and flood confrol protection for the property that exceeds that - that existed when it was an unstabalized soil slope.
I believe that

9Q

What

is MR. SEIGENBERG: Objection. Move to strike

DoctorRosen, in thecourse ofyourpreparation for testifying today, in your site visits, is it fair to say - strike that. Did you have an opportunity to view and
examine the segmented block wall on the property? Yes. not?

l4
15

the last parts, Your Honor. That's way beyond his qualifi cations. That requires an evaluation of the quality of that
is okay.

l6
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wall. The first part of the answer

THE COURT: Okay. Yes. Move to strike.


The motion to strike the second part is allowed.

20

Go ahead.
Q
A,

21 22
23 24

Doctor Rosen, what is the basis of that opinion?


The basis is that the unprotected slope is very

susceptible to both erosion, loss of sediment, which


means the slope is going to retreat towards the

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Idid.

Now, you didn't do any testing of that wall, did you No, Ididn't.
Keeping in mind the wall that you observed, and assuming for purposes ofthis question that that wal,
was constructed in accordance with engineered plans,

forpurposesofthisquestion. Doyouhavean
opinion
as to whether or not that

wall would provide

flood protection and erosion control for The L:nding property superior to the sloped $ade that you

-205 -

-207 observed in the photographs?

1 2 3 4 5
6Q

condominium buildings as a result ofsuccessive

flooding, and that the unprotected slope


over the buildings. No,
the buildings.

is

- the

MR. SEIGENBERG: Objection, Your Honor.


Once again, there's two problems with that question. One is, I was going to let go, and that was the
engineered plans, because that's not the evidence.

lower slope is going to have a higher runup up and

lm sorry, over - towards

Asking the same question, Doctor Rosen, for that


portion ofthe retaining wall that you observed northerly ofthe 650 feet, do you have an opinion on that retaining wall? Northerly, Ibelieve, is solid concreteand sheet pile sections. I have the same opinion. Doctor Rosan, asking you thesame question, and assuming in your question that the retaining wall,

7 8 9 l0 A |1 12 Q 13 14 15 16 17 18 19 20 21 A 22 23 24

But then again, now he's evaluating the quality of the wall versus the bank he sees in a photograph.
That seems a little beyond his qualifications to do

so. I have no problems a$eeing the testimony that


I'm sure any surface, but certainly a wall, is going to provide some erosion or flood protection control. It's the comparative analysis that's a real problem

for
is,

us.

block segmorted retaining wall, has been constructed in accordance with an engineered plan, with that
assumpt'ion, do you have an opinion as to whether or

THE COURT: Isn't the comparative analysis

if

the wall were

built in accordance with

requirements and an angineered plan that met all


standards, et cetera, et cetera, in the best

not that vertical wall would render flood protection


and erosion control for The l-anding at South Park

ofall

worlds

if this wall

was properly built, would

it

property superior to that ofthe sloped embankment,

ifthe wall was properly constructed? Yes,Ido.

provide. Would that satisfy you? MR. SEIGENBERG: But then he compares it,
and that's where it becomes difficult

MR SEIGENBERG: Objection, Your Honor


Two problems with the question. Those are not the
facts in evidence. It wasn't

THE COURT: Compares it

to -

MR. SEIGENBERG: He cornpares it to, I


guess, the bank that was there previously, at least

properly - it wasn't -206 -

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kind of voluminous, so may I approach the witness and advance that exhibit to where I would like to
inquire?

what he's seerr in photographs previously. I think

afield. I do believe that THE COURT: I think he can answer that

hypothetical, I think.

THE COURT: Sure. There's page numbers here. Whydon'tyoujust MR. BRENNAN: Well, unfortunately, they're differentsectionsofthecode. They'renot
consecutively numbered. Actually, they're stapled.
So,

MR. BRENNAN: Your Honor, if Irecall well, do answer that before I lose the opporhmity. THE COURT: Do you need it read back? THE WTNESS: Unfortunately, I would like
to hear the question again, so I can answer

it.

ifyou go to

the firct portion of the regs that

DoctorRosen, assuming forpurposes of this next question, that the vertical retaining wall, the vertical coastal bank, ifyou may, that you observed out there on the property during your site walk,
assume that that wall has been constructed accordance

in with all code requirements and engineering standards,andwithanaccepted -withinaccepted


engineering practices. For purposes of the question,
assume that, and keeping in mind the coastal bank

t0 II 12 13 14 15 16
17

are stapled. There's 310 CMR 9.01 at the top in the last section.

MR. BRENNAN: Your Honor, Im directing the


witness's attention to 310 CMR 9.02, which is a

portion ofexhibit number 23 in the agreed upon exhibit list" and it's definitions under that section of the CMR.

that you saw prior to the construction ofthe retaining wall, with that in mind, do you have an

to whether or not the vertical wall provides flood proiection and erosion control opinion
as

superior to that ofthe coastal bank that you


observed in the picture?

18 19 20 2l A 22 23 24 1 2 3 4 5 6 7 8 9 10 II
12

And I would ask the witness if he would tum to the dehnition ofstructure, and he can find that
alphabetically within the definifions. Have you been
able to find that?

Yes,Ihave. MR. BRENNAN: Your Honor, have you had the


opportunity to catch up on that definition?

THECOURT: Ibelievelhave. Ijustwant

-209 Yes.

-2t1 -

to - Ive got 9.03. Is it


before?

the one immediately

2Q 3A

What is that opinion?


I believe that

No. I'mgoingfroml0.3coastalbanksto MR.BRENNAN: YourHonor,lhaveanextra

it provides superior or increased

9.03. Is itbeyond that?


copy in my binder. May

4 flood protection and erosion control cornpared to the 5 pre-existing conditions based on the photographs. 6 Q Why is that? 7 A Because waves breaking on a hard structure are not 8 going to cause erosion, and because a steep slope, 9 which is the pre-existing condition, is going to 10 promote runup of waves, which is going to lead to l1 erosion, in addition to the wave impact. Waves 12 breaking on a vertical wall are pushing against the 13 soil, so that a - blocks approaching perhaps one ton 14 in weight, just an estimate, against a bank can 15 withstand direct - significant direct wave impact. 16 Q Thankyou. 17 Now, Doctor Rosen, you testifled during your qualifications that you are familiar with the l8 19 CMR Department of Environmental Protection 20 regulations pertaining to chapter 91 waterways 21 license; is that correct? 22 A Yes. 23 MR. BRENNAN: Your Honor, Im going to ask witness to reference exhibit number 23. It's 24 the
-210 NOTES:

THECOURT: Okay. i[4R. BRENNAN: Ifs just to keep this moving


along.

THECOURT: Thankyou. MR.BRENNAN: Thankyou,YourHonor. And that is part ofexhibit 23, Judge.

13 14 15
16 17

Doctor Rosan, directing your attention to 310 CMR 9.02, which is definitions under a particular section. Are you familiar with that section of the CMR?

A Generally, yes. Q Now in your employment


Yes, it is.

oryour work

as a coastal

18 19 A 2 I Q 22 '23
20 24

geologist, is the term "structure" used on occasion or in part ofyour work, the term "shucture?" And you understand that these regulations pertain to chapter 91 ofthe Massachusetts statutes and the licensing of marinas?
Yes.

KS COURT RBPORTING
14 Palmer Avenue Danvers, Massachusetts 01923

Phone: (978)

777-5802 FAX:

(978) 777-5803

LANDING v BORDEN LIGHT.#254067 VoL.


I Q Directing your attention to the definition of 2 structure, which is in the definitions, could you 3 take a moment and review that, please? 4 A (Witness reviewing document.) 5 Q Have you reviewed that? 6 A Yes,Ihave. 7 Q Doctor Rosen, as a coastal geologist, and being 8 familiar with licensing activities within coastal 9 zones, do you - based on that definition, do you 10 have an opinion as to whether or not a boat is a II structure within the terms ofthose regulations? 12 A Yes,Ido. 13 Q What is that opinion? MR. SEIGENBERG: Objection, Your Honor. 14 15 THE COURT: Sustained. I 6 Q Have you ever worked in the process of licensing any 17 marinas? 18 A Yes.lhave. l9 Q At any time in the course of your employments or your 20 duties oflicensing marinas, did the definition of 2l structure ever arise? 22 A Yes, it has. 23 Q Could you tell thecourtinwhatcontexttheterm 24 "structure" came up in a licensing of a marina? - zt) I 2 3 4
5Q
MR. SEIGENBERG: Objection, Your Honor,
relevance to this proceeding. This isn't the

11/10/10 1 MR. SEIGENBERG: Yes. 2 THE COURT: Do you want to start now, or do 3 you want to break now, review the issues that you 4 wanted to consider, and continue the cross 5 examination the next time we get togther? 6 MR. SEIGENBERG: It's going to be more than 7 fifteen minutes. Your Honor. 8 THE COURT: Then I think that we'll have to 9 start again in a month. What is it, two months now, 10 unfortunately,but 11 MR. SEIGENBERG: Your Honor, lm sorry, can 12 the witness leave? 13 THE COURT: Yes, the witness - you're 14 excused for now. Thank you. (Witness stepped down) 15 16 MR. SEIGENBERG: The only issue I wanted to 17 present to the court - I knowthe court's very l8 mindful ofthe fact that we did have a hearing on the l9 motion for preliminary injunctions some time ago, and 20 I only bring that to the court's attention, the 2l obvious, and hope the court might rule on that having 22 how heard some evidence in this trial, Your Honor. 23 I'm not looking to have you do it from the bench, 24 YourHonor.
-

2t5

licensing of a marina. We're

not -

THE COURT: Yes.

fll

hear

it.

Could you explain for the court the nature or how the term, "structure" came to arise in the licensing marina? The term "structure" has arisen in determining what characteristics or features need to be licensed under chapter 91, which led to a definition, so that things

6 7
8A

ofa

9 l0 II 12 l3 14 15
16

like buildings, piers, banks, anything attached and


permanent on the ground is considered a structure.
Features that are floating and not permanently attached to the ground or the surface is not a

structure.

So,

it would be fair to saythatbased on your

17 18 19 20
21

experience and your expertise that in order to determine what a structure may or rnay not be within the context ofa chapter

9l

waterways license, you

would look to this definition?

That's correct.

22 23 24

MR. BRENNAN: I have no further questions, Your Honor. THE COURT: Cross exam?

1 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 t7 18 19 20 2l 22 23 24

considering

THE COURT: Not from the bench. I am it. I don't know whether I'11 have a

response out to

but I am considering
advisement.

you. I don't know when that will be, it. It's still under

MR. SEIGENBERG: Thank you, Your Honor. THE COURT: And so


not going

is

- I've decided I am

to

- do you want to be heard at all with

respect to the motion for the directed verdict on a

portion

or MR. BRENNAN: I can't add anything to what

I represented to the court previously, other than the

plaintiffs put in no evidence. THE COURT: Does the plaintiff want to


respond at all?

MR. SEIGENBERG: Yes, Your Honor. We


certainly did put in evidence, visual evidence. We
have the elevation plan that shows elevation

ofthe

wall. There

was testimony about

the -

THE COURT: I think this had to do with the


encroachment.

MR. BRENNAN: No. it had to do with the two

buildings THE COURT: Buildings.

-214 NOTES:

-2t6-

14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978)777-5802 FAX: (978) 771-5803

KS COURT REPORTING

LANDING v BORDEN LIGHT #254067 Vor..


I 2 3 4 5 6 7 8 9 10 11 12 13 14 l5 16 17 18 19 20 2l 22 23 24 I 2 3 4 5 6 7 8
9

tln0n0
COMMONWEALTH OF MASSACHUSETTS
I, Karen V. Smith, Professional Court Reporter and Notary Public in and for the Commonwealth

MR. BRENNAN: - thattheyoffered no


evidence whatsoever as to the location ofthose

buildings on lot

3.

THE COURT: That's okay.

of

MR.BRENNAN: Andit'soutonapier. It's


pile head supported buildings, and they offered nothing. The court cannot tell where those buildings
are on lot 3 or

Massachusetts, do hereby certify that the foregoing

record, Pages 1 to 218, inclusive, is a true and


accurate transcript of my system tapes to the best of my

ifthey're on lot 3, or ifthey're on

knowledge, skill and ability.

Commonwealth tidelands. no evidence. And it's too late for thern to address that.

I am not connected by blood or marriage with any of

THE COURT: Well, do you know what? don't want to do this in a piecemeal way. I mean, I'm going to have to look at all ofthe evidence.
I'm going to have to, you know, be examining this. lt's certainly something you can argue in your

the said parties, nor interested directly or indirectly

in the matter in controversy. IN WITNESS WHEREOF. I have hereunto


Notary Seal this
set mv hand and

28thjfof
REN V. SMITH. Notarv Public

post-trial memorandum, and certainly something - I


don't think it's necessary that we consider right this minute. I would like to examine the evidence a

little more closely before I make that determination. So, you know, again, you poinled it out. I am mindful of it and vrill certainly consider it. Okay. MR. BRENNAN: Thank you, Your Honor. We'll
see you

My Commission expires:

0/1 8/201 3

in

a couple

of months.
- zt I -

THECOURT: Thankyou.

MR. SEIGENBERG: Good luck with the move


I don't see you, Your Honor. That's got to be a

if

monumental achievement. (Hearing suspended; Day 4 of trial is Wednesday, January 19, 2011 at 9:30 a.m.

at3 Pemberton Square


courthouse.)

t0

ll
t2
IJ

l4
l5
16

l7

l8
to
20

2l
22 23
1A

-218-

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

777-5802 FAX:

(978) 777-5803

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