Trial Transcript Day 1

8/3/2019 Trial Transcript Day 1

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Exhibits: L-4I

COMMONWEALTH OF MASSACHUSETTS

LAND COURT DEPARTMENT

OF THE TRIAL COURT

MISC. CASE NO.: 254067

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BRISTOL, SS

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THE LANDING AT SOUTH PARK

CONDOMINIUM ASSOCIATION,Plaintiff

VS.

BORDEN LIGHT MARINA, INC.,

Defendant

Before: CUTLER, J.

Monday, November 8, 201-0

Day 1, Courtroom 6

226 Causeway StreetBosLon, Massachusetts 02:-.]-4

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KAREN SMITHCourt Reporler

14 Palmer AvenueDanvers, Massachusetts 0 I 923

(978) 777-s802'Fax (978) ??7-5803

GOPY



APPEARANCES:

DANIEL R. SEIGENBERG,MATTHEW WATSKY, ESQ.2 Commercial Street.Sharon, Massachusetts

(781) 784-8800Representing the

ESQ.

02067

Plaintiff

EDMUND BRENNAN, ESQ.Brennan RecuperoOne Church GreenP.O. Box 488Taunton, Massachusetts 02790(so8) 822-0178

Represent.ing the Defendant



WITNESS:

BERTRAND

(eY Iulr "

(By Mr.

DONALD N.

(BY Mr.

(By Mr "

BOUFFARD

Seigenberg)

Rrannrn'\! vrrrrs.r/

LEFFORT

Watsky)

Brennan)

INDEX

D]RECT CROSS

113

L62

2TT

49

REDIRECT RECROSS

I49

156

104



EXHIBITS

No. Description

1 Deed from Leo M. Kelly, Trustee toJohn C. Lund and Brian R. Corey, daLed9 /30 / 86, recorded in book 1,i24 ,

page 301

2 Deed from Leo M. Kelly, Trustee toThe Landing at South Park, Inc., dated9/30/86, recorded in book \724,page 303

3 Plan of Land in Fa11 River,MassachuseLLs drawn for the GreenRiver Realty Trust, November 17, 1981,Rev. April a2, \982, recorded inBook 72, page 98

4 Visual Easement dated 9/30/86,recorded in book t724, page 305

5 Non-Excl-usive Easement dated 9/30/96,recorded in book 1724, page 327

6 Partial Release of Easement, dated9/30/87, recorded in book :.gg2,page 2

7 Waterways License No. 1848 wit.h planPIan Book 90, page 1-5, dated

1,2 / 19 / 88 , recorded in book 2052 ,page 91

B Deed from ,John C. Lund and Brian R,Corey to Borden Light Marina, dated7/25/89, recorded in book 2L30,page 5

9 Order of Conditions - Mass. WetlandsProtect.ion Act., dated 2/8/9l-,record.ed in book 2309, page 299

10 Final Order of Conditions - Mass.

Wetlands Protection Act, dated5/24/ 99 , recorded in book 363't ,page 69

11 Wat.erways License No . 8 0 01 , recordedin book 3664, page L94

ro. t;vlct.

I



No.

L2

EXHIBITS (Continued)

Descript j-on

Order of Condltions - Mass. WetlandsProtectlon Act, dated 9/22/99,recorded in book 3705. page 345

Order of Condi-t.ions - Mass. WetlandsProt.ection Act, dated 6/L3/OL,recorded in book 409L, page lO2

Waterways License No. 9816 wi-th p1an,recorded in book 5499, page 20

Preliminary Injunction, dateds/23/2000

Plan "Division of Land in Fall Rlver,Massachusetts Belonging to Green

River Realty Trust , " dated 1 / 1,4 / 86 ,recorded in plan book 79, page B0

Non-Exclusive Easement, dated 9 / 30 / 87,recorded in book l-882, page 5

Asslgnment. Keith Development toJohn Lund, Brian Corey and KingPhili-p Yacht CIub, dated 3/31-/88,recorded in book 1950, page 185

Plan of Land in Fall River, Brist.ol

Co., Mass. Prepared for Brian R.Corey and 'John C. Lund, datedFebruary IJ, L987, recorded inplan book 81, page 40

Phasing Plan for The Landing at.South Park, recorded in plan book101, page 45

"Elevati-on Pl-an for the Landing,"dat.ed 9/L8/09, revised 5/28/tO,prepared by Mt. Hope Engineering

Records from Fall- River BuildinoInspector

"RegulaLions"

Borden Light Marina Notice of Intentwj-th P1an, dated 1"/L0 / 09

rct. Evid.

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No.

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31A-FF

5ZA_HH

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EXHIBITS (Continued)

Description

Borden Light Marina Order ofConditions, dated 2/1-O/09, recorded inbook 7290, page 84

Borden Light Marina Supercedj-ng Orderof Conditions, dated 2/26/88, recordedin book 1945, page 154

Landing at South Park - March 2OO9Newspaper

John Lund letter, dated 10/B/02

Landing at Sout.h Park letter, datedLo/ro/02

Sterling Wal1 photographs

Bert Bouffard photographs

Charles Schnitzlein phot,ographs

Aegis photographs, pages 1-6

Borden Light Marina photographs(51 phot.os)

rd. Evid.

7

7

7

35 Curriculum Vit.ae of .James Holmes

36 Curriculum Vit.ae of Daniel Leffort

37-L Invoice #3469, dated 9/22/09

37-2 Invoice #3488, dated I0/L/09

38 l-,etter from Board of Manaqers to John Lund

39 Settlement

40 Letter from The Landing at South Parkto Borden Light Marina, dated March2009

4l PIan View of site showinq wall I81

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LANDING vS BORDEN LIGHT #254067 Vor,. 1ll8n01 PROCEEDINGS

2 (Exhibitnumbers 1 through 37

3 marked in evidence before start

4 oftrial.)

5 THECLERK: - 254o6j,ThelandingatSourh

6 Park Condominium Association versus Borden Light

7 Marina, Incorporated.

8 THE COURT: Swear in the court reporter.

9 (Stenographer swom.)

10 THE COURT: Cormsel identify themselves,

I 1 please.

12 MR. SEIGENBERG: Good moming, your Honor

13 Daniel Seigenberg representing the plaintiff, Landing

14 at South Park Condominium Association.

15 MR. WATSKY: Matthew Watskv, also counsel

l6 for the association.

17 MR. BRENNAN: Good moming, your Honor.

18 Edmund Brennan representing the defendant, Borden

19 Light Marina.

20 THE COURT: kt's sort of get things in21 order here. I have a motion in limine, I see, that's

22 been filed.

23 (Court reviewing motion.)24 THB CO{JRT: I will hear you, Mr. Brennan.

I MR.BRENNAN: Thankyou,yourHonor. Good

2 moming.

3 Your Honor, the motion in limine addresses

4 what I would anticipate the evidence offered by the

5 plaintiffs in this rnatter that go to certain

6 permitting issues that are pending before the

7 Massachusetts DEP.

8 There are matters pending atboth the

9 Southeast Region in t-akeville, and there are matters

l0 pending in Boston in front ofthe appeal procedureI I for the DEP. And the issues before the court this

12 moming and in the case that's pending, in fact,

13 relate to a visual easement and a 2O-foot

14 nonexclusive easement and whether or not a wall may

I 5 be constructed within the 20-foot easement and/or

16 whether or not the storage ofvessels may violate the

l7 visual easement. The storageofvessels within the

l8 20-foot easement is also an issue.

19 The matters pending before the DEp - the

20 administrativeremedieshavenotbeenexhausted. The

2l matters are all pending and, at this point, no one

22 knowswhattheoutcomewillbe. Imean,itisjust23 as likely that the defendant will prevail at the

24 administrative hearings as the plaintiff will.

-8-

I So, to bring in evidence that the DEp has

2 questioned activities within certain protected areas

3 under the Wetland Protection Act and/or chapter 91,

4 the waterways statute, it's irelevant to the

5 easement. We'rc talking about private property

6 rights between the dominant and the servient estate

7 And I wouldjust ask -

8 THE COURT: Is it relevant in terms of

9 whether or not the activity that has gone on there -10 in particular, the taking down ofthe original slope

1 1 area and installing a retaining wall - affected the

12 flood storagability or erosion control capabilities

13 that could have been there under natural conditions?

14 MR. BRENNAN: Well, your Honor, both sides

15 have coastal geologists intending to testify on that

16 matter. Theadminishativeproceedingsarenot

L7 final. So, ifthey were final, I may have a

18 different view on thatpoint.

19 Now, we have agre€d to authenticity of many

20 documants, reserving our rights to relevancy. For

2I example, there are three waterway licenses thatare

22 in evidence at this point, but those are final.

23 They've been final for a number ofyears now.

24 So, those have value as to what the

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I intention of the owners of the marina were and how

2 they developed it and how they were entitled to

3 developunderthechaptergl license. Butthey're

4 final. There's no appeals pending. So, all parties

5 know exactly what they say and what they mean and the

6 relevance, unlike matters that are under appeal and

7 are being vigorously pursued by both sides.

8 So, I think there is a vast difference

9 between matters pending before the state agencies and

10 final licenses or orders ofconditions that may have

1 I issued that were not appealed, or were appealed and

12 appeals were withdrawn. So, I see a vast difference

13 between the two, and I'm simply asking your Honor to

14 rule on matters on which final decisions havenot yet

I 5 issued from the state agencies.

16 THE COURT: Would this also mean any

17 evidence ofadministrative or, rather, enforcement

18 orders fromDEP?

19 MR. BRENNAN: Enforcement orders that are

20 underappeal;yes. Actually,aslstandhere,judge,

2l I can't think ofone that's under appeal.

22 You know, I'm sure the plaintiffs wilt want

23 to offer correspondence from state agencies, but we24 have an opportunity to respond to that

-10-NOTES:

Phone: (978) 777-5802 FA* (928) 777-5803

KS COURT REPORTING14 Palmer Avenue

Danvers, Massachusetts 0I923



LANDING vS BORDEN LIGHT #2s4067 Vor,. 11/8/10I correspondence, and that will all shake out on the

2 frnal outcome of the administrative end of things.

3 And then, when all the administrative remedies have

4 been exhausted, they would have their right to appeal

5 to the Superior Court. So, I think it's unduly

6 prejudicial to the defendant to allow something in

7 that would create the impression that they somehow

8 misstepped under state regulations when that's under

9 appeal.

10 And the other part of my motion in limine,

1 I Your Honor, is to exclude any testimony or evidence

12 olnegligence in the construction ofthe wall or

1 3 resulting damage that may or may not have occurred to

14 the adjacent condominiums. I suggest that that,s

I 5 clearly outside of the l-and Court's jurisdiction. It

16 isanegligenceactionwhichthey- iftheyseefit,

17 they certainly file in Superior Court and pursue

18 theirremediesthere. Butanvevidenceof

19 negligence -

20 You know, the issue is, can a wall be

2l built, not whether the wall - the experts differ on

22 whether the structural integrity ofthe wall is there

23 ornot. So,Iwouldaskanyevidenceofdamageto24 the resulting units be excluded because it,s not

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I properly before the court, or negligence on behalf of2 Borden Light Marina.

3 THE COURT: Wto's going to respond?

4 MR. SEIGENBERG: I will, Your Honor. Once

5 again, Your Honor, good moming.

6 On the first issue, I think I can, perhaps,

7 assist the court in this issue. I would agree that

8 to the extent that there's an order that's under

9 appeal, then the substantive decision would not be

10 admissible for the substance of it. What we're11 offering - what we're proposing to - wtry we're

12 proposing to offer those particular exhibits is to

l3 establish what permits were filed and when they were

14 filed and, probably most importantly, whether or not

15 they had a permit from DEP to proceed with the work,

16 particularly the most recent work that occurred in

17 two thousand -

l8 THECOURT: Whyisthatrelevant?

19 MR. SEIGENBERG: It is relevant for a

20 coupleofreasons,YourHonor. Obviously,thisis -

21 it is a declaratory judgment case that you're going

22 to interpret various easements, but this case

23 involves two other aspects.

24 Number one, wele here on a contemptta

I proceeding, where the court has equitable powers to

2 determine what should be the contempt penalties.

3 Also, we're looking for equitable relief in the

4 complaint, as well.

5 THE COURT: But why is it relevant whether

6 they got a DEP permit?

7 MR. SEIGENBERG: Because -

8 THE COURT: If they violated the injunction

9or they

violated the easement, a DEPpermit

wouldn't10 help them; would it?

I I MR. SEIGENBERG: That's up to you to

12 determine, Your Honor.

13 THECOURT: Well -

14 MR. SEIGENBERG: I would suggest, Your

15 Honor, to the extent that work proceeded without the

I 6 necessary building permits, DEP approvals, that is a

17 relevant consideration for this court to determine

18 whether or not this wall should so down or what thc

19 remedyshould be.

20 Substantively, where ifs under appeal, we

21 agree. You should not look at the substance - the

22 decision as such. But it seems to me, Your Honor,

23 particularly relevant that these people proceeded;

24 that the defendants proceeded without permits from

_13-

I the building inspector, without permits from DEP.

2 And as Attorney Brennan has indicated, we have

3 experts who will testif as to the permitting

4 requirements and whether or not they were followed or

5 not.

6 So, I would suggest to the court where this

7 is in the very nature ofan equitable proceeding,

8 that this court would want to hear that in making its

9 ruling because, ultimately, what wete going to be

10 lookingforthecourttodo -andthis,basically,11 relates to the next issue, too. We're going to be

12 looking for this court to make an order having this

l3 wa'll torn down, and that relates to the next issue

14 that Attorney Brennan raised; that he doesn't want

15 the court to hear any evidence as to whether or not

16 thatwall was constructed in a negligent or faulty

17 rrnnner. I mean, I would say, Your Honor, that's

18 particularly germane for you to determine whether or

I 9 not that wall should come down or not.

20 It is our position in the evidence that

21 we'll present in this case today that that wall was

22 constructed negligently and faultily, wasn't

23 according to state building code, andit

isa

failed

24 wall, and it will only fail greater in the future,

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r*G;".Mnt

NOTES


Danvers, Massachusetts 01 923

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



LANDING vs BORDEN LIGHT #254067 Vor,. ru8n0I and that it is a major problem for The landing in the

2 future. So,Iwouldsuggestthatthat,ofcourse,

3 requires this court to evaluate that evidence _

4 THE COURT: So, you,re saying that in terms

5 of the contempt issue and the ultimate order of6 whether or not to require the wall to be taken down,

7 that is the relevance. It,s not the relevance as to

8 whether or not the wall was built within the

9 easement.

10 MR. SEIGENBERG: That is correct.

1 1 There's another factor for the court to

12 consider,aswell. TheyVealleged,amongstother

i3 things,anequitabledefenseoflaches. Ifsan14 equitable defense. They can,t come in here with

15 so-called dirf hands and try to avail themselves of16 an equitable rernedy.

17 The evidence that we,ll submit in this case

l8 is that, once again, theyproceeded with construction

19 despiteacourtorder,theinjunction. Theydidn't

20 apply for permits. There's a whole litany of things

2l that they did wrong. And under those circumstances.

22 we'd be arguing to the court that the court should

23 not avail themselves ofan equitable defense such as

24 laches.

-ls-

I So, I do believe, your Honor, that

2 cefiainly at this stage, the court should hear the

3 evidence and evaluate the evidence.

4 The other issue, I guess, on the so-called

5 damages issue - we're not going to present any

6 evidence as to the cost to remedy the damage to those

7 two units, but it is our intention to present

8 testimony as to the damage to those two units which9 are directly related to the excavation that occurred

10 in2008 -l1 THE COURT: Well, Ill tell you right now I12 am not going to hear damage to the units, and lve13 told you that. I told you that on the time of the

14 contempt hearing; I told you that at the pretrial

15 conference. Thisisnotadeterminationasto

16 whether or not the units were damaged by the

17 construction ofthe wall. It's a totally separate

18 matter involving separate parties; not totally

19 sepamte parties but different plaintiffs.

20 MR. SEIGENBERG: I appreciate the court's21 viewpoint on that. I'm just concerned that, once

22 again, it goes to what remedy the court will order _

23 THE COURT: Well, no. Thafs not goingto24 be something that I find is going to be relevant. I

-16-

I mean, you're going to really have to - you may be

2 submitting some evidance, but I'm not garerally going

3 to be determining that there was damage to the units

4 by the construction. That's a different case and a

5 different court, and I think we discussed that at the

6 pretrial conference.

7 MR. SEIGENBERG: I rhink we had a

8 discussion about that. I'm not so sure - I

9 certainly read the court's detemination at that10 point in time.

ll THECOURT: Yes.

12 MR. SEIGENBERG: But once again, it all

13 gets back to the fact that what wete asking the

14 courttodo -Imean,there'salotofdifferent

15 thingsthecourt- assumingthecourt- weprove

16 our cas€ that they violated the easements, violated

17 the injunction, things ofthat nature, there are

18 numerous remedies that the court could avail

19 themselves of. Certainly, in making a decision what

20 the court should do relative to that wall, I think

21 the court would want to hear at least some evidence.

22 And I appreciate - we're not going to go

23 into the monetary damages but hear some evidence as

24 to what the excavation has caused and what may result

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1 in the future unless steps are taken. I would say

2 that's parficularly - it's a little di{ferent than

3 what I think the court was saying.

4 THE COURT: To help me with rhis, let me

5 just talk to you a little bit about how you see the

6 presentation ofevidence going forward. Are you

7 planning to present it all in one sort offell swoop

8 of"they violated the easements, they violated the

9 order, and there's damage,,' or are you thinking that

l0 you're going to address the principal issue ofthell case, which is, was there a violation ofthe easement

12 and the order, and then, ifthatis determined, we

13 would go on to a further trial on the issue ofwhat14 the remedies would be?

15 MR. SEIGENBERG: Well, I would cerrainly

16 suggest - we?e all here. We have three days of17 trial. It'snotajurycase. Iwouldsuggestthat

18 alltheevidencebeheardatonce. That'sthenormal

19 course, Your Honor, and I would - that,s what we

20 anticipated doing.

2l THECOURT: Thatisyour -

22 MR. SEIGENBERG: ln other words, we,re

23 goingtobasicallyrecallwitnesses. Itseernsto24 make more sense, Your Honor. It's an issue the

t8 -NOTES



Phone: (978) 777-5802 FAX: (928) 777-SgO3



LANDING VS BORDEN LIGHT #254067 Vor,.I lu8n0I court's going to have to address. So, bifurcating

2 the case, I would suggest, wouldn't make sense here.

3 THE COURT: Mr. Brennan, do vou have a

4 response?

5 MR. BRENNAN: Yes, Your Honor. Well, I6 think Your Honor is correct on any issues of7 negligarce or damage to the units. And to that

8 effect, Your Honor, my brother and I had agreed on an

9 exhibitnumber 33, which was photographs ofa unit.

10 We had agreed on the authenticity ofthe photographs

ll butreservingrightsofrelevancy. So,inlightof12 that showing damage to the units, ld ask that

13 exhibit number 33 be stricken from the list.

14 The other issue is. we've indicated to the

l5 court each time we've been before Your Honor that

16 work took place within the 2O-foot easement

l7 subsequent to the 2000 injunction. So, as far as

18 that goes, I think we all know that that work took

19 place. What remedy, if any, Your Honor will fashion

20 as a result ofthat, should you find the need that

2l the contempt needs to be purged, is another issue, as

22 you indicated. So, I think I'm correct on the motion

23 in limine as far as the administrative matter that

24 are pending and as far as issues ofdamages to the

-19-

I units.

2 Tl'ere is one other matter, Your Honor. If3 I may jump to a different matter?

4 THE COURT: Outside this motion?

5 MR. BRENNAN: Yes.

6 THE COURT: No. [,et's deal with the morion

7 first; okay?

8 MR. SEIGENBERG: Could Ijustrespond

9 briefly to - I mean, some of this DEP permitting and

10 things ofthatnature- wecould shortcutsomeofI I this. To the extent that counsel would stipulate

12 that the work that was done in 2008 and 2009 was not

13 done with DEP permitting and approval, wed save a

14 lot of time, and we wouldn't have to go into the

15 substantivedetermination -

16 THE COURT: Well, that's true.

17 MR. SEIGENBERG: Butldon'tknowif he

18 objects to that or - certainly, otherwise -

19 THE COURT: Is that somethine that's

20 contested?

2l MR. BRENNAN: Your Honor. that is - rhe

22 DEP filings started in 1986, and they've been - for

23 example, the chapter 9i waterways licensehas been

24 amended three times, and a fourth time a draft permit

_20 -

I issued which is under appeal. So, lm not

2 comfortable agreeing that the permits - there wasn't

3 sufficient licensing or permitting in place as a

4 resultofallofthepreviousorders. Ithink

5 there's five order ofconditions that have issued for

6 the marina, some of,which show the wall in question.

7 So, I don't think I can agree to that.

8 THE COURT: Well -

9 MR. BRENNAN: I think it would be an errorl0 on mypart.

ll THECOURT: - letmejusttellyou. It

12 can be relevant, and I'm not sure how these appeals

13 wereinstigated. Inotherwords,istheplaintiff

14 here involved in any ofthose appeals?

15 MR. BRENNAN: They're not.

16 THE COURT: To that extent, I think it can

17 go to the issue of, you know, the defendant's

18 defenses, ifyou will; that The tanding sat on its

19 rights and didn't object and that sort of thing. So,

20 you know, I think that I would - the question of

21 whether there are appeals and who instigated them, I

22 think, and when is relevant. The question ofwhat

23 the rulings are, whether they violate DEP

24 requirements, that is not relevant, and I would allow

-21 -

1 the motion in limine on that aspect.

2 MR. BRENNAN: We both understand the same

3 thing for once, but it would be whether an appeal had

4 been filed -

5 THE COURT: Right.

6 MR. BRENNAN: - who the parties are -

7 THE COURT: Right.

8 MR. BRENNAN: - and when?

9 THE COURT: Right.

10 MR. SEIGENBERG: And hopefully, I didn'tI i hear the court correctly, or maybe i misinterpreted.

12 You're not suggesting that the issue ofwhether or

13 not they had DEP approval before they did the work

14 is-15 THE COURT: No. To me, that's not

16 relevant.

l7 MR. SEIGENBERG: Even though, once again,

l8 this is - a lot of what we're doing here is,

19 obviously, in equity, Your Honor, and they'veraised

20 defenses oflaches.

2l THE COURT: And that's why we'll go to, )ou22 know, was there some kind of an adminishative remedy

23pursued by the plaintiff here? When

the work was24 done, you say without the necessary permits, was this

-22 -

NOTES:


Danvers. Massachusetts 01923

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



LANDING Vs BORDEN LIGHT.#254067 Vor,. r 1/8i101

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raised by the condominium association? If that's

where youte going, fll hear that.

MR. SEIGENBERG; That was a very short

street we were going down, Your Honor. The longer

street and the more inportant street is the fact

that, once again, in evaluating any -

THE COURT: I am not going to determine

whether there was a violation of the DEP rules. That

will not be part of this trial.

MR. SEIGENBERG: Note my objection, Your

Honor, for the record.

THECOURT: Yes.

MR SEIGENBERG: I appreciate the court's

ruling, but I do believe that it would be relevant.

And certainly, where this is not ajury case, I would

suggest the court at least hear some of the evidence

and make a determination as the evidence comes in

versus doing it in a motion in limine.

THE COURT: That will be a matter before

DEP and any rulings that follovi from there and any

appeals from there as to whether or not there were

violations of the DEP requirements.

As for the negligent construction, I willwait to rule on that. I think td like to see where

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were before you, you allowed the plaintiffs motion

to amend their complaint, and I filed my answer. I

omitted the statute of limitations defense, and I

realized that this moming as I was reviewing my

pleadings. May I verbally amend to add the statute

of limitations?

THE COURT: I didn't see your - you know,

I have to tell you. These days, as you know, wete

kind ofshort-staf,fed, and I may have not receivedyour answer yet. So -

MR. BRENNAN: I just want to make sure Ican - if I had to further amend to plead statute oflimitations. The answer to my counterclaim - I

don't know if the plaintiffs have filed that yet or

not, but we carried forward the counterclaims in my

amended answer. But I did notice that I didn't plead

statuteoflimitations. Iwould like to add that. I

can have my office do that and file that. It was

Fedexed to the cour! so it's probably somewhere in

the clerk's office.

THE COURT: Okay.

MR. BRENNAN: It should have arrived last

Thursday moming -

THE COURT: Well, why don't you do that.

)<_

I You can go down and check either during the break or

2 during lunchtime and see where that is, and ifyou3 want to add that, thafs okay.

4 MR. BRENNAN: Your Honor, I also have a bit

5 ofanunusual- treenputinabitofanunusual

6 position in that another attomey in Fall fuver asked

7 me if I would submit something to the court. He

8 couldn't be here this moming, but there are 38 unit

9 owners that - they wanted to have some input on this

10 hearinginthestartday. AndI'mnotanadvocate.11 I'm not - please don't kill the messenger, but I'm a

12 messenger. If I may submit that?

13 THE COURT: No. Unit owners are not

14 involved here. They've got their own issues. If15 they wanted to intewene, that was a long time ago.

16 So, we're going to proceed.

17 [€t mejust go over a couple ofiterns.

l8 We've gotten kind of a late start here, so I think we

19 will dispense with the moming break unless people

20 feel a real need, because we're going to go r.mtil

21 12:30. That's about two hours and 15 minutes. Does

22 anybody object to going without the break?

23 MR. SEIGENBERG:No, Your Honor. Thar's24 fine. Thank you.

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I you're going and see ifthere's rel€vance as to

2 particular issues that you're raising. Im not sure.

3 There may be some relevance there, but I don't want

4 to go too far.

5 Again, this is not a trial on whether or

6 not the defendants have damaged anything on any

7 private property. This is strictly on whether or not

8 the construction was in violation of the easement, in9 violation ofthe order, which has actuallybeen

10 conceded. That's been - I think we determined thatI I during the contempt hearing. The work was done.

12 Whether that violated the easement and what the

13 paralty is for having performed the work, whether

14 there is a penalty during that outcome is a different

15 matter.

16 Ifyoute going toward the equities ofthel7 whole situation, I may be willing to listen to some

18 ofit,butlwantlohearthequestions. Iwantto19 see where you're going with it before I decide

20 definitely.

2l MR. SEIGENBERG: That's howwe'll proceed

22 then, Your Honor.

23 THECOURT: Mr.-24 MR. BRENNAN: Your Honor, last week when we

.A


Danvers, Massachusetts 01923

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



LANDING VS BORDEN LIGHT #2s4067 VoL.I ru&ll0I TI{E COURT: So, we will break at 12:30, and

2 we will start again promptly at 2:00 and go till3 between 4:00 or 4:1 5, depending upon how things are

4 going. And then, I'm assuming this will be

5 continuing till tomorrow; right?

6 MR. SEIGENBERG: Yes, Your Honor.

7 THE COURT: I just want to check with the

8 court reporter. Are you okay with disparsing with

9the moming break, or are you -

10 THECOURTREPORTER: IthinKso.

11 THECOURT: ktmeknow;okay? Yes. If12 anybody, you know, feels that they need five minutes,

13 please let me know, and we can figure that out.

14 Also, because ofour staffing issues, the

15 courtrooms will be locked during lunch. So, you

l6 won't be able to stay here or return before the court

17 officerisbackonduty. Thatwillbejustbefore

18 two o'clock.

19 Agreed facts and exhibits; have we got

20 them?

2l MR. SEIGENBERG: We've submitted an exhibit

22 book,YourHonor. Ontheexhibits,there'sjustone

23 thing fd like to bring the court's attention -

24 THE COURT: I'm not seeing it.

-27 -

1 THE COURT REPORTER: Here's the list.

2 THECOURT: So,there'sjustonecopyhere?

3 There's not a -

4 MR. SEIGENBERG: We have -

5 THECOURT: - benchcopy?

6 MR. BRENNAN: The bench and the

7 stenographerboth have a copy.

8 MR. SEIGENBERG: We have two.

9 Relative to the exhibits, Your Honor, one

l0 thing we haven't submitted at this point in time andll justbringtothecourt'sattention -thisisa

12 contempt proceeding. The court could, obviously, as

13 one of the remedies, order attomeys' fees. It would

14 be our suggestion, Your Honor, that we be allowed to

15 file affidavits ofcormsel after the evidence.

16 THE COURT: After the evidence; yes.

l7 MR. SEIGENBERG: Thank you, Your Honor.

18 THECOURT: Andwe'vegotsomepremarked?

I 9 What have you got premarked?

20 So, is that 37 that we've got here? Is

21 that -

22 MR. SEIGENBERG: I'm sorry, Your Honor?

23 THE COURT: ThirW-seven exhibits are

24 premarked? lsthat -_Zg_

1 MR. SEIGENBERG: That is correct. Your

2 Honor.

3 THE, COURT: And then. the others -

4 MR. SEIGENBERG: Actually, the only thing

5 we're missing - actually, 35 and 36 are curriculum

6 vitaes. We'll add those as we go along, Your Honor.

7 THECOURT: Okay.

8 MR. SEIGENBERG: But everything else is

9premarked.

10 THE COURT: And the remaining three

11 exhibits - there arenone; okay.

12 THE COURT REPORTER: My question is, the

13 ones he asked to be struck, are they struck?

14 THE COURT: Well, I'm not sure which is -

15 you know, he hasn't asked for particular exhibits

16 except for 33.

17 THE COURT REPORTER: Yes. That's what -

18 THE COURT: Right. So, 33 was the damage

19 to the wall. We're not going to strike it yet.

20 THE COURT REPORTER: We'll leave it in.

21 Okay

22 THE COURT: It's just contested now. I

23 think it's offthe agreed list.

24 THE COURT REPORTER: It's offthe agreed

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1 list.

2 THECOURT: Yes.

3 Are we going to have any opening statements

4 or-5 MR. SEIGENBERG: Yes. We've discussed

6 that.YourHonor. Ithinkthedefendant'scounsel

7 wanted to do an opening, so lll do an opening, Your

8 Honor, ifI could.

9 Your Honor, certain things in this case are

l0 undisputed. We're going to spend several days tryingI 1 a case that, frankly, a great deal ofthe facts are

12 really not in dispute.

13 As we've already talked about, it's clear

14 that Borden Light Marina violated the preliminary

15 injunctionofthiscourtdated Mayof2000. The

l6 injunction in clear unequivocal language indicated

17 that Borden Light Marina should perform no

18 construction work within the 20-foot-wide erosion

19 control easement. It's undisputed that, despite that

20 order, Borden Light Marina has gone forward on a

2l numberofoccasions and, in fact, done construction

22 work, including excavation ofthe coastal bank and

23 erections of walls, all within this 2O-foot erosion

24 control eassment.

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It's also undisputed that BLM, as

indicated, has excavated within this 2O-foot graded

slope easement and has also placed on its property

and within the erosion control easement boats forstorage. And it's also undisputed as part of the

exhibits and what the evidence will establish that

these boats exceed 1 9 feet mean sea level: that thev

tower over these walls.

It's also undisputed,based on exhibits inthis case, that the actual walls that were

constructed exceed 19 mean sea level, and these walls

are on The landing's property - strike that -- these

walls are on BLM's property in violation of the

visual or view easement, Your Honor.

So, a great deal of what we're try.ing here

is, frankly, not in dispute.

What I'd like_to do, if I could, youl_

Honor, is, just by utilizing some of the exhibits in

this case, just give you a general sense -- and to

the extent the court doesn't find it helpful, cut me

off at any time - just what is involved with this

case and what we're dealing with.

I bring the court's attention to exhibit2l , which is a document that was prepared by Mount

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1 in 2008 and 2009, that whole area, basically along

2 the whole boundary line, your Honor. or within the

3 easement itself, there is now wall. Over a period of4 time, that's what Borden Light has done. They've

5 excavated the bank, erected walls.

6 You will also see, your Honor, that we havc

7 the borefit ofseeing what the elevations are at the

8 topoftheseexistingwalls. Forexample,the

9 existing wall in front of buildings J. 4 and 5 starts10 at a little over 20 feet in fiont ofbuilding 5 and

I I goes as high as 24 in building 3.

12 So, once again, I don't know what Borden

13 Light Marina's argument is that - I mean, I would14 suggest certainly under the easement, that would be a

i5 structure. It's a wall, and they,ve constructed it.16 Down below, your Honor, from The tandins17 - _ propqgygoing - you,ll see Mount Hope Bay, and

18 between Mount Hope Bay and The landingproperty rs

19 the property of Borden Light Marina.

20 Now, the documents that we're going to be

21 looking at and hopefully most of or:r focus will be on22 are the various easements, as well. Given the fact

23 that there's no question that the defendants are in24 coniempt ofthe court's order issued in 2000, the

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court, I know, will want to interpret these various

easements. And so, Ijust want to spend - I know

the-court's probablylooked at these; -butjust go

real quickly as to what occurred and where these

easements originated from, starting with exhibit 1,

Your Honor.

In 1986 -- The Landing's property is lots 2

and 3, I believe, and the marina is lot 1. Actually,

I think I mixed that. I'm sorry. tnt 1 and 2 is The

Landing property and lot 3 is the marina,s property.

Green fuver Realty Trust owned all three

parcels back in 1986, and so there is a series ofdeeds out. The first one is exhibit I, where itconveys the property which is the marina,s properfy

to John Lund and Brian Corey. They were the

principals of Borden Light Marina. They were the

developers of Borden Light Marina. And it indicates

that's about 3.5 acres that they acquired.

And on the second page, it makes clear that

that conveyance was subject to two major easements.

The first one was the so-called visual easement.

which is in that second paragraph on the second page,

Your Honor, that indicates that for the benefits oflot 1 and 2, which is The landing,s properfy, "no

34-

I Hope Engineering, which is ,'Elevation plan of the

2 t-anding." Now, this document, your Honor, amongst--3 --otherthings;shows-T,helandingproperty; And-4 auached to that, ifyou look, your Honor, on the

5 left-hand side of the document where it says ',Club

6 Street," that's th€ so-called southerly end ofThe7 landing property, and it extends -- you'll see a

8 common boundary line to the northerly end of The

t hnding property.

10 Depicted on this elevation plan are theI 1 various buildings that have been erected on The

lZ t-anding propefiy. These are multi-unit condominium

13 buildings that were constructed sometime between l9g614 up until about 1994. And you will see, your Honor,

15 thefurthestbuildingsoutherlyisbuilding3. The

16 next - these are touards the water, your Honor;

17 building 3, buitding 4 and building 5. And what rhe

18 evidence will show, Your Honor, is that it,s in front

19 ofthese buildings 3, 4 and 5 that the most recent

20 and the most egregious construction took place, where

21 approximately 600 to 650 feet ofthe coastal bank was

22 excavated in 2008 and 2009 and a wall was constructed

23 at that point in time.

24 With that last construction that occurred

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structure shall be erected above I 9 feet mean sea

level on that portion of lot 3 directly to the west."

Directly to the west, Your Honor, is --

once again, as I indicated, you have the southerly

portion, the northerly portion. West is towards

Mount Hope Bay.

And you also have another easemant, Your

Honor; actually, two other easements. One I think we

can dispense of pretty quickly. There was talk about

a public walkway, and one ofthe documents here shows

that there was a release of that easement right. So,

it's not relevant to this court.

The other easement is the so-called erosion

control easement, and I think focus on the language

that is very important. And it says there's a

20-foot-wide easement for construction and

maintenance of a drainage system and for construction

and maintenance ofa sloped graded erosion and flood

protection barrier.

The evidence in this case will show, Your

Honor, that the way these properties were situated is

the fact that The landing property was on top of a

bluff. There's an exhibit that indicates that that

top of the bluffwas about 19 MSL, thereabouts. And

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down below at about l0 MSL was the marina property

And there was a bank that went down between the

propefties, and that's where the 2O-foot easement is

located. So, I think the circumstances that existed

back in I 986 illuminates the purpose of this graded

sloped easement that's referred to here.

Also, the evidence will indicate that itwas anticipated that The Landing would utilize a

portion of that 20-foot-wide easement for drainage

purposes. The graded slope erosion control, ofcourse, is near the waler. You'll hear evidence

about the concerns about 100-year floods and things

ofthat nature. And so, that was the purpose. You

wanted to have a natural barrier that was going to

protect The tanding.

The idea of this also, Your Honor, was to

sort of allow fwo potantially competing interests to

existharmoniously. And the evidence in this case

will suggest that that's, in fact, what happened.

The marina started out as a relatively small

operation. The l-anding was constructed on top ofthe

bluffwith beautiful views of Mount Hope Bay, and itworked great. I mean, it was a great marketing tool.

It was a real incentive for people to purchase and to

36-

I live at The [anding, and things went very well for a

2 period of time.

3 Now, the documents continue, Your Honor,

4 and the next document I refer the court to is exhibit

5 3. And lm sorry if I didn't - and exhibit 2, Your

6 Honor, is, ofcourse, the deed into The l:nding, and

7 thzt, in fact, contains those same easements that I

8 justreferredto. Page2indicatesthatthe

9conveyance

is appurtenant to -- this conveyance has10 the benefit ofthat visual easement and that sloped

1 1 graded easement, identical language as exhibit 1.

12 Exhibit 4, Your Honor, is the so-called

13 visualeasement. Evorthoughtherewasavisual

14 easement contained in exhibits 1 and 2, there is a

15 visual easemert grant by John Lund and Brian Corey,

16 who were then the owners of the marina propedy, thal

17 is, and they conveyed to The landing at South Park,

18 Inc. a so-called visual easement.

19 And the language ofthis visual easernent is

2Q particularly important, Your Honor, because it is

27 different. It's more - potentially broader than the

22 othervisual easementthatwas referred to in exhibit

23 1 and 2. And ifs in the firstparagraph, and it24 says, "The following perpetualright and easement in

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I connection with the construction of 140 condominium

2 units on the premises directly to the west ofthe

3 premises herein described which shall run with the

4 premises as hereinafter described for a view

5 unobstructed by any structure in the area 19 feet

6 above mean sea level."

7 And once again here, one thing that I would

8 point out, the language about erection ofstructures

9 is no longer in that document, Your Honor. And it

l0 makes clear that the idea ofit was to provide a viewI I for The l-anding so they would have unobstructed vrews

12 of Mount Hope Bay.

13 Now, also, there's an exclusion on the

14 definition ofthe word "structures" because thafs

15 going to be one ofthe issues for the court to

16 determine; what are structures. And you'll see that

17 to the extent that the marina is going to be arguing

18 that "structure" only refers to buildings, I would

l9 suggest two things.

20 Number one, it would have been easy to

2l simply say "buildings." "Structures," obviously, has

22 a much broader meaning than a building. And what the

23 court would need to do, ofcornse,is look at the24 exclusions. You look at the exclusions to determine

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what the meaning of "structure" was.

Now, these exclusions have things like

picnic tables and things of that nature. Now,

obviously, a picnic table wouldn't be a building. It

shows a structure is essentially what the dictionary

definition is, as a manmade objectput together. And

I would suggest to the court that what the evidence

in this case will say is that the intent and the

language was to protect the view of the residentsofThe I-anding. And what has happored with these boat

storage right against the walls - it has obstructed

the view.

And I only refer the court to - that

there's another document. It's exhibit 5. which is a

so-called nonexclusive easement. That has to do

with, once again, the graded slope easement, and Ijust highlight one portion ofthat, Your Honor. The

language is otherwise identical to exhibits I and 2,

except at the end of the first paragraph where itsays - and it talks about it being a nonexclusive

easement, and it says "so long as such use does not

interfere with the exercise of this rieht and

easement."

So, in other words, yes; we a$ee that,

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I potortially under that document, the marina could

2 utilize portions ofthe easement area, but they can't

3 do it to the extent that it interferes with the

4 exerciseofThefanding'srightsandeasements. And

5 I would suggest what the evidence in this case will

6 show that not only has the use of the easement

7 interfered with the use, it has effectively

8 eliminated any use of that easement by The landing.

9 So, I would suggest that the evidence in

10 this case will show unequivocally that there was aI 1 violation ofboth the visual easement, or the view

12 easement, and also the graded slope easement by the

l3 fact they've essentially eliminated it.

i4 Just a few other points here, Your Honor,

15 I'd like to bring up to the court, and that is,

16 really,howdidweall getheretoday? And Ithink

l7 that's important to understand the situation.

18 As I said, the two entities coexist fairly

19 well up until 1999, and in 1999 things became

20 difficult. They were so difficult that The landing

21 felt it necessary to file this action here. So, if22 there's any idea that, somehow, The Innding sat on

23 their rights, it is simply not supported by the fact

24 that there was a complaint filed in this court in

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1999.

Then, what next happaned? What next

happened is that, even though the action was filed,

in 2000, the marina, Your Honor - the marina went

forward with construction of a portion of that

coastal bank and did excavation and constructed a

wall. That caused The [anding to come immediately to

this court and complain of that.

And ifyou look at the papers in this, manyof the argumants that were made during that

preliminary injunction hearing are the same arguments

they're making here today which the court didn't

acknowledge because the court entered a preliminary

injunction that prohibited them from doing any

construction within that erosion control easement.

You couldn't have a clearer order.

Unfortunately, what then happens is,

despite this order, the marina, in the pursuit of the

almighty dollar, just continues to do what they want

to do, and what they wanted to do and that their plan

was - they were going to excavate that whole bank,

and they were going to erect walls, and they were

going to utilize - once they excavated the area and

put the walls, they then""tl;;,:tr.

a portion of

it for their boat storage, and that's what happened.

They did some excavation in 2002. You'll

hear evidence that there were discussions about that.

The parties discussed it. There were complaints from

The landing about that work. There was an attempt to

try to resolve the dispute, unsuccessfully. Then,

there was additional construction around 2005 and

2006, and then it brings it up to the most recent

work in 2008 and 2009. And what you'll hnd, Your

Honor, is, instead ofsitting on their hands, whenThe tanding -

First ofall, The landing, unfortunately,

doesn't have institutional memory because they are a

board. People on the board come and go. So, the

evidence will show that The l-anding didn't have a

true understanding oflitrat their rights were in this

case until sometime in 2009 when they hired counsel.

But when this work started in 2008 and

2009, the work that was the closest to the boundary

line in some cases went over the boundary line and

trespassed on The [anding Foperty Then they

complained. They complained to the building

inspector, city council that's in the City of Falltuver. They contacted DEP.

):t*"0 to talk ro

NOTES:



Phone: (978) 7'17-5802 FAX: (978) 777-5803



LANDING VS BORDEN LIGHT #254067 Vor,.I ru8/10I the marina people to try to stop this work. And the

2 marina, as they have done throughout, has simply used

3 bullying-type tactics, threatening to take away a

4 balcony, threatening to take away their pool, things

5 ofthat nature. So, that's the institutional state

6 ofmind that The fanding was under during this pedod

7 of time.

8 Finally, it got so egregious. There were

9 difficulties with the wall itself beingfaulty

and

10 thedamagetotheunitsthernself. Therewasareal

i 1 danger. Finally, The l-anding - their counsel, prior

12 counsel in this action withdrew. They obtained new

13 counsel. Newcounselreviewedtheissue,sawthere

14 was a preliminary injunction, and immediately frled a

l5 complaint for contempt.

16 So, I would suggest that the evidence willl'7 indicate that The tanding, in all instances, acted

18 appropriately, and certainly there's no evidence to

1 9 support an equitable claim of laches in this matter.

20 Really, what this case should come down to,

2l Your Honor, I would suggest, is really what the

22 remedy is going to be. You're going to hear evidence

23 that, frankly, this is a dangerous condition; that it24 threatens The [anding's buildings; it threatens the

I peace and harmony; there's noise. There,s so many

2 other factors, particularly on this most recent

3 excavation, thatrequires this court to take severe

4 actions against these people.

5 Thank you, Your Honor.

6 MR. BRENNAN: Your Honor. as far as

7 institutional memory goes, the evidence will show

8 that a number ofthe current board ofmanagers were

9 in common with the board in 2005 and 2006, they were

10 represented at that time try vely competent counsell1 from Marcus, Errico, Emmer & Brooks. and that there

12 was much discussion about the walls and the

13 preliminary injunction and all of the matterc that

14 they seem to now have lost their institutional memory

15 of. Theyapparentlyfofgotthattheyalso -andthe

16 evidence will show - thanked the marina in 2008 for

17 aportionofthewallthatwasconstructed. So,

18 there's something else going on here.

19 They allowed my client to phase the wall in

20 over 23 years, and when the last part ofthe wall was

21 constructed, they expressed their displeasure.

22 Now, yes; they were in here in 1999, and

23 Judge Kilborn entered the preliminary injunction in

24 May of 2000. I was counsel at that time. and I do

I recallthehearing. Thepartiesthencoexistedfrom

2 2000upuntil2009. Theywereabletocoexist.

3 The wall, in part, as the evidence will4 shou is as close to me as it is - I,m standing to

5 counseltothepropefiyline,ifnotcloser. So,no

6 one will tre able to say they didn,t know the wall was

7 going in, and I suggest the evidence will be clear

8 that they didn't do any.thing. They allowed the work

9 to take place. That was their state of mind. I,ml0 not saying that that's a defense to the contempt, but

I I that was the state of mind of the parties.

12 So, when they were interpreting this

13 2O-foot easement, I think Your Honor will hear a lor

14 ofevidence that they were aware ofthe 20-foot

15 easement, 'it was an erosion flood protection -- slope

16 graded erosion and flood protection barrier was the

17 purpose- anddrainage- thepurposeofthe

18 easement.

19 The evidence will show that there's no

20 erosion taking place on tanding property. The

2l drainage system is working fine. And there will be

22 expert testimony on what this wall affords as far as

23 stormprotection and flood -

24 So, Ithink the laches in this case. I

I think, is a classic case ofpeople sitting on their

2 rights, and then in January or February of2010

3 expressing their displeasure.

4 The area that my brother represents is the

5 entranceonthesouthendofthemarinaproperty -

6 there was a new entrance created. and I am told and I

7 understand and I don't have evidence to contradict

8 that a portion of the wall built by my client went

9 onto Landing Foperty. To the extent that my brother

10 raises that as an issue - and I don,t want to get

I I into settlement negotiations, but if it,s over, we

12 said we'd move it. I don't know what else I can do

13 on that. Ifit's a trespassjust on that - the only

14 comeron the entrance south. So, they raise it as a

15 cause ofaction, and that's where we are on that_

16 The marina itself was the vision of John

17 [.und, who's sitting at comsel table with me here

l8 today, and he and a partner at the time purchased a

19 verydilapidated industrial property. You,ll see the

20 photosofitwhentheyboughtit. Ithadall21 squatters'shacks all along the water, and they

22 bought it with the intention of developing the marina

23 and developing the condominium project in concert.24 It was always the development theme.

-46-NOTES


Dsnv€rs, Massachusetts 01923

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



LANDING vs BORDEN LIGHT,#254067. VoL. tu&/10l So, in l9g6il9g7, when the lots were2 divided and the 20-foot easement was put in place,3 there was no question that the use ofthat 20_foot4 easement had to be nonexclusive. It had to be or the5 marina would not have been able to build itself our6 along the waterfront; thus, the nonexclusive use.

7 They have the right to use it for marina8 purposes, provided it doesn,t interfere with the9 rightsoftheeasement. Andlsuggesttoyouthat

l0 the evidence will be that the drainage is fine, theI I erosion control is fine, and they have adequate storrn'1,2

protection in the event of a weather event that is a

l3 threat to the condominiums.

14 The issue ofthe structure and the visuall5 easement is interesting because your Honor will have16 evidence presented ofstatebuilding codes, possibly17 over objection ofdefendants. I suggest the besti8 place to go to determine what a structure is on a19 marina is to the Code of Massachusetts Regulations20 that govern chapter 9l licenses, wherein a vessel is2l excluded from a structure, from the definition of22 "structure," and it,s an exhibit that's in the23 binder. A vessel is excluded from the definition

of24 a shucture so long as the vessel is not permanently

I affixed to the $ound.2 So, lm going to - you know, my thrust of3 that is going to be, when your Honor is to determine4 whether or not a vessel is a structure, that the best5 place to go is not Fall fuver zoning, although you6 may consider that, or state building code, although7 you may consider that, but there are regulations in8 place that answer that question. And I would suggest9 that the regulations under chapter 91 are the answer

l0 for the structure question, and that would take care

I 1 of the view easement.

12 As far as the 20-foot nonexclusive, I13 suggest we're not interfering with the rights granted14 therein.

15 That,s it, your Honor.

16 THE COURT: Great. plaintiff will call its17 first witness.

18 MR. SEIGENBERG: Thank you, your Honor.I 9 Can I out one of the exhibit books in front of the20 witness? It might make it easier. Thank you, your2l Honor. The first witness is Bert Bouffard.22 THEWITNESS: I,msorry.23 THE COURT: It's all right. Take your

24 time.-48

NOTES:

MR. SEIGENBERG: Good moming.THE WITNESS: Good morning.

MR SEIGENBERG: Welcome to Boston.THE WITNESS: Not a crutch_friendly city.MR. SEIGENBERG: Not durine the bad

weather.

+f*t**********

BERTRAND BOUFFARD*t************

(Witness sworn.)

DIRECT EXAMINATION(By Mr. Seigorberg):

Can you tell us, first of all, your name, sir?

My name is Bertrand Bouffard. I live with my wifeMarlene at 700 Shore Drive, Unit 304, in Fall River"Mass.

That's unit 304? And is that the farthest southerlyunit?

Yes. That's the last building to the south -I see-

- on the water.

And can you tell us when you and your wife moved to

The landing?In November of200l.

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I Q And specifically, was there anyreason that you moved2 to The l-anding?

3 A Yes. We moved there because, number one, it was on4 the water, it afforded beautiful views of5 Narragansett Bay and Mount Hope Bay, and it was6 quiet. It was like an oasis in the middle of Fall7 River. Whan you're at The l-anding, you would never8 guess you were in Fall River with all the hustle and9 bustle. It.s a nice place. It was nice.

l0Q

And sir, in thatregard,I would askyou ifyou couldI I tum to, in the exhibit book, exhibit number 34. It

12 isaphotographmarked 16.

13 A Number4?

14 Q Thirty-four, firstofall.15 A Thirty-four?

16 Q Do you see howthey,re numbered on theoutside?17 A Yeah.

18 Q That's where it should be.

19 A Thirry-four?

20 Q And then, you're looking at 16.

21 MR. SEIGENBERG: May I assist the witness,22 Your Honor?

23 THECOURT: yes;youmay.

24 MR. SEIGENBERG: Thank you.

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LANDING VS BORDEN LIGHT.#254067 Vol.I ru8./10I

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THE WITNESS: Thirty-four what?

MR. SEIGENBERG: They're numbered here, so

- all of the other ones have letters. Your Honor.

And Im showing you a photograph that's number 16.

And sir, tell the court if you recognize

that photograph; what it depicts, anyways.

Yes. That's how it was in 2001. Basically, you

could not drive from the north end of the complex to

the south end. It was - once you got aroundbuilding 5, maybe, it was simply a walk path.

You're talking on the marina properfy?

On the marina property.

And on this photograph, there shows a bank.

And that's approximately what the bank

looked like when you moved in in 2001, sir?

Yes. It was simply, for want of a better word, just

wild vegetation. There was simply vegetation.

And on the right-hand side in the middle of the

photograph, there's a pier sticking out?

Right. That's the King Phillip Fishing Club.

And thafs -

That's on the far south €nd of the property.

Isn't that the King Phillip Yacht Club?

Yacht club, fishing - I'm sorry-

You call it yacht

)l -

1 club; we call it fishing club.

2 Q Fair enough.

3 And thafs beyond the southerly side of4 the-5 A Right. That'sjustto thesouthofourproperty

6 line.

7 Q I see. And you're in building 3?

8 A Right.

9 Q Is that depicted at all in that photograph, sir?

10 A Yes. It's the last point - the last building thatI I you can see, and you can barely - in fact, you can

12 - ifyou look down right below that little balcony,

13 that's my unit right there.

14 Q I see.

15 Now, sir, can you tell us briefly what your

16 work experience is?

17 A Iwas a teacherin the Fall Riverpublic school

l8 system. I also worked with - in the aluminum window

19 and doorbusiness, I did land development, and I was

20 assistantharbormasterfortheTownofPortsmouth;

21 sort ofa bunch ofdifferent things.

22 Q And what's your occupation now, sir?

23A

Iamretired. Andfmalso alicensedcaptainwitha24 50-ton master's license.

<a

So, obviously, as you said, being near the water was

important to you?

Yes. That was one of the requisites. I wanted to

look - that's what we looked for because I lived in

Portsmouth, and we had - it wasn't on the water, but

this was so much better because you could have

beautiful views, sunsets. Everything was there.

MR. SEIGENBERG: Your Honor, I was going to

have the witness go through an exhibit, which is thatelevation plan with the various buildings, but I

wonder if that's even necessary. Would it helo the

court at all?

THE COLIRT: No.

MR. SEIGENBERG: I didn't think so. So,

I'll move off from that one.

Now, sir, you moved in in 2001.

When you moved into the property in 2001,

did you know John Lund?

Yes. I've known John since probably the early'80s.

How did you know John Lund?

John Lund was involved in politics in the city, and I

believe he was a city solicitor. fm not sure, but I

know he had - he was involved in Fall fuver

oolitics --53-

I Q Andarcyou -

2 A - along with Brian.

3 Q Along with Brian Corey?

4 A Yeah. I went to school with Brian Corey, and we -

5 Q Are you aware that John Lund and Brian Corey

6 certainly were attomeys?

7 A Oh, yes. I've known - everyone knows that John's an

8 attorney. I mean, if you live in Fall River, you

9 know John's an attomey. I mean, I don't think he's

l0 ever hid that fact.

11 Q I'mnotsuggesting that- someofusrun fromthat.

12 I don't think he is.

13 Now, when you moved into the property, did

14 you have a meeting on-site with John Lund?

15 A I lived there fora fewmonths priorto that. And

16 there was a lot ofdiscrepancy because ofthat 2000

17 lawsuit, and it was a lot ofhearsay, and I wanted to

18 hear it from the horse's mouth. So, sometime in the

19 spring, I asked John to please explain to me exactly

20 what was going on. You know, "he said/she said" typc

2l thing, and I wanted to hear from John exactly what

22 had happened.

23 Q And did you and Mr. Lund walk the properfy together?24 A Sometime in the spring of 2002. I couldn't tell you

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LANDING VS BORDEN LIGHT #254067 Vor,. 11/8/10I whan, but when we walked, we had - we started up in

2 the north end, and he pointed the balconies and he

3 pointed the concrete pads, and he said that, you

4 know, that was on his property and that he could do

5 - that's his property- He can do whatever he wanted

6 to. And then, he showed me the differentbreaks

7 along the property lines, the five breaks, and there

8 were stakes there. Then he showed me the pool area;

9 that the pool area was on his property, that he could

10 take the fence out, part ofthe wall out; that was

1 I his. And then, he showed me on the far south end of

12 the property that the parking lot was on his

i 3 property, and there was a nail in the - there's

14 always been a nail in the asphalt.

15 Q And specifically, when Mr. Lund referred to that,

16 according to him, the pool was on the marina's

l7 property -

18 A Hecould lakepaft of the apron out; he could do

19 whatever he wanted with it. "It's on my properfy."

20 Q And did he make any comment as to what The I-anding

2l needed to do?

22 A Yeah. Basically, it was that you had to follow -

23 youknow,hehadaplan. Youknow,followalong.24 You know, "Do what I say because 'ifyou guys upset

-)f,-

I the apple cart" - I don't know exactly what he said,

2 but we had to listen to what he was telling us.

3 Otherwise, he would take it out because he won the

4 lawsuit. And I was also told that he won the

5 lawsuit.

6 Q Im sorry?

7 A I was told that he won the lawsuit.

8 Q That's what Mr. Lund told you -9 A Yes.

10 Q --inthatconversation?I I Now, did he also show you a balcony area

12 near building I I --

13 MR. SEIGENBERG: - which is the northerly

14 end towards the water, Your Honor.

15 A Yeah; thebalconyand the apron area, which I found

16 - you know, which -

17 Q What did Mr. Lund say to you, first?

18 A He said thatitwas on his property, that he could

19 take it out if he wanted to --

20 Q And what -

Zl A - and either we, you know, comply or -

22 Q And did he express any opinion as to whether he cared

23 or not about that alleged trespass?

24 A No. It was incidental to him b,ecause it was, you

-)o-

1 know -

2Q What-

3 A Itwasjustafewsquarefeet, moreorless. He

4 didn't really care, but "It's on my property." He

5 was very emphatic about that.

6 Q But did Mr. Lund say he didn't care about that?

7 A It hangs over, you know.

8 Q Now, I want you to look in that exhibit book, sir.

9 Ifyou could lookat 31 -

10 MR. SEIGENBERG: Once again, maybe I could

1 I help the witness, if I could?

12 Q Exhibit3l; atthe veryend.

l3 A Thirty-one?

14 Q Now, sir, youVe indicated earlier during your direct

15 examination that when you moved into The I-anding

16 property,itwasanicesettingonthewater. And

17 fll show you exhibit 3 1CC.

1 8 Is that a fair depiction of what the marina

19 looked like at about the time that you moved in?

20 A Right. Therewasonlytwoorthreefingerpiers. It

2l wasn't anything l'ike it is now. It wasn't that

22 large. It was very quiet. It was like a mom and pop

23 operation. It was very quiet.

24 Q And can you tell us about the expansion of the marina

-57 -

I since that time?

2 A Since that time, they probably have gone - they

3 probably increased by probably two more finger piers

4 and probably increased by 100 boats, easily, on the

5 water, in water storage and throughout the year.

6 Q And do you know approximately how many boats were at

7 the marina when you firct moved in? I'm not talking

8 storage; I'm talking utilize the -- seasonal use of

9 the marina.

10 A Iwould saya coupleofhundred.11 Q Andwhatdoyou -

12 A Twohundred, giveortake,maybe.

13 Q And howmanydo youbelievethere arenou/?

14 A Over300l330.

15 Q Those arejustrough estimates on yourpart, sir?

16 A Well, I actually counted them from a he'licopter.

17 Q Okay.

l8 A I took a picture and counted them just to prove my

19 point.

20 Q Noq sir - so, you have this conversation with John

21 Lund in 2001 or 2002.

22 Do you recall any work being done in 2002

23 around where the -

24 A T\erewas no workdone in 2002 that Iknowof.

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LANDING vS BORDEN LIGHT #254067 Vor,. rt/8/r0I Q What's the next work, if any, that was done?

2 A Possibly in 2004/2005. I heard the pounding ofthe3 sheet metal wall going in, and I wasjust curious.

4 And for somereason I went out there, and I took5 pictures ofthe sheet metal going in.

6 Q Now, sir, ifyou could tum to - once again, staying

7 on exhibit 3 1 , in the very front of it, there's two8 photographs that are marked as ,'A,,and "8."9 A Thirty-one?

10 Q Yes. You already should be on 31, andjust go to the

I I front ofthat.

12 A Yes; 31A and B.

13 Q And what do photographs 31A and 31B depict, sir?

14 A Well, that - there was originally - there was a

15 slope going down to the water, and what happened is,

16 when they put the sheathing in, theyremoved the

17 slope, put the sheathing in. And then, you can see

18 the - on those pictures, you can see the earth mover

19 istakingawaytheslopearea. Andagain,there's

20 the property line. But again, John told me that,

2l basically, itran along the fence.

22 Q That's what John Lund -

23 A Yeah.24 Q - toldyou?

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I A Which we - yeah.

2 Q And so, when you saw that construction going on, what

3 was your viewpoint ofthe construction?

4 A Well, it was on - again, you know, "This is my

5 property. This is your property.,, All the work

6 being constructed was on his property, and I felt no

7 one had told me otherwise. If it's on your property,

8 you have every right to do what you want on your own

9 property.

l0 Q Now, the wall that was constructed; do you know inI 1 front ofwhat building that was constructed, sir?

12 A I'm sorry?

13 Q Do you know in ftont ofwhat building of The landing,14 or buildings, that it was constructed?

15 A I'm going to saythis is the upperpart, possibly

16 aroundbuildingTand8. Theproblemisthatwhen

17 you look at the water side, they look almost all the

18 same. You know, there's very little on first blush

19 that you can tell them apart.

20Q Now-2l A Probably around building 7, I would say.

22 Q And when this work was being done, were you aware

23 that there was a preliminary injunction that had been

24 issued by this court?

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I MR. BRENNAN: Objection, your Honor

2 kading question.

3 MR. SEIGENBERG: I'll rephrase. I'll be

4 happy to do it.

5 Q Sir, ataboutthis time, were you aware ofanyorders6 issued by this court at that -

7 A No. Iwas notawareofanythingexceptthatwelost

8 the case.

9 Q And that case -

10 A Playnice.

1l Q That came from Mr. Lund?

12 A Yes, and also other- you know, thatwas the

13 consensus. We lost.

14 Q Now, sir, at some point in time, did you become a

15 member of the board at The tanding at South park

16 Condominium?

17 A Approximately2004; 2005,probably.

18 Q And forhowlong did you remain on theboard, sir?

19 A For six years. So, it was 2004.

20 Q Untilwhatyear?

2l A Until March of 2010.

22 Q Two thousand ten, sir? This year?

23 A Yes.

24 Q I'mjust -

I A Yeah. I'mjust- sorry. Iwas justcounting

2 backwards. I'm sorry.

3 Q And at any point in time, did you become the chairman

4 ofthe board?

5 A The last year I was the chair.

6 Q So, were you aware that in 2006 - w.ithout going into7 the actual terms ofthe settlement discussion, were

8 you aware that there were some settlement discussions

9 between the parties?

10A The marina wanted to build a high-rise on thenorth11 endofthebuilding. So,theyapproachedtheboard,

12 Attorney Grogan [sic] -

13 Q Attomeywho?

14 A Grogan?

15 Q Brennan?

16 A Brennan; I'm sorry. Attomey Brennan had contacted

l7 us, and we sat down and we had a three-year agreement

18 wheretheboardwouldnotobjecttoanything -tol9 the expansion ofthe high-rise, and in retum for20 that, we would get what we originally wanted in 2000,

21 which was the boundary line would now be the edge of22 the wall, that they would fix the fence, that they

23 would landscape above the fence, and they would give

24 us $200,000 to help us out. And the triggo would be

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Danvers, Massachusetts 01923Phone: (978) 777-5802 FAX: (978) 777-5t03



LANDING vs BORDEN LIGHT #254067 VoL. 1 1/8/101 when they had all their permits - once Bordan Light

2 had all their permits in-hand and the shovel went in

3 the ground, then everything would be done, and we

4 would live happily ever after.

5 Q And if the permits were not obtained, what would

6 happen to the agreement?

7 A In three years, it would expire, the one we signed.

8 I don't know the exact date. I'm sorry. I remember

9 signing the document, but I don't remember the exacl

I0 date ofthe document.

I I Q Now, you were referring to some high-rise.

12 Do you lcrow where Borden Light Marina or

13 John Lund wanted that to be constructed?

14 A On the north end of the complex, next to building 1l

15 on Ferry Street.

16 Q Itwould be, essentially, to therightofbuilding

t7 il?18 A Yes.

19 Q It wouldn't be directly in front of building I I . It20 would be on the --

21 A Therewas acouplesetofplans. So,youknow- but

22 it would be - partially, it would. It would block

23 partially, but - not directly in front ofit, but it24 would anele fiom it.

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I Q So, in any event, as far as you know, the permits

2 were never obtained; correct, sir?

3 A No. The permits were never obtained. Nothing ever

4 happened.

5 Q And that was the end of that settlement agreement;

6 correct?

7 A Yeah. We were just hoping, though, because we really

8 - we were just hoping that this would go away.

9 Q So, that settlement agreement would receive some

10 monetary contribution, and there would be some sort11 ofagreement -

I 2 A And we would know where our boundaries were, we would

13 haveanactual- itwouldbeattheendofthe

14 consFuction thatwas there.

15 Q And was Mr. Brennan involved at that time for -

16 A Yes.

17 Q - representingthemarina?

18 A Yes.

19 Q Now, at or about the time of that agreement, sir, was

20 there some work done, additional work along the

2l common boundary line?

22 A Yes. In, Ibelieve, 2007, theydidoneoftheLego-

23 block construction wall, which is whafs there now;

24 thatinterlockingblockwallthattheyhave. They

-64-

I star0ed to build it. And then, when they were almost

2 completed, because I knew John, the board asked me to

3 approach John and ask him ifhe would please raise it4 one or two blocks because the slope was so steep that

5 you couldn't - we couldn't maintain the area, which

6 wasoneofthe- that2000conditionthatwewere

7 always told. We had to maintain the banks; that we

8 had to cut it, make sure that everything was neat and

9 clean. And we would always ask permission, but we10 couldn'tgetatitbecauseitwassosteep. Andnow,

l1 the way it was constructed, we no longer were able to

12 walk between the pool and that.

13 So, they were very - he said, "Wait a

14 minute." He says, "I've got to check with mjr

15 engineer to make sure that the wall can support the

16 extrablocks." Andthen,hecamebackacoupleof

l7 days later, and he said, "No problem." He raised it18 withacoupleofblocks. Hebackfilledit,and I

19 remember Mike wouldn't put loam and grass. He says

20 that was our responsibility.

21 Q That's Mike Lund?

22 A Mike; yeah.

23 Q Mike Lund?

24 A He wouldn't grass ig so we -

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1 Q Now, this construction work that occurred, you

2 believe, around 2007, in what area ofThe tandine did

3 that -

4 A That was right next to the pool area.

5 Q Which is near what buildings?

6 A Building 7. We actually sent them a letter safng,

7 youknow,"Thankyouverymuch." Youknow,the

8 stakes were there. Theyhad surveying stakes on the

9 property, and it was very clear and evidence that he

l0 was doing a'll of the work on his property. So, weI I were -- sort ofwent and said, "Gee, you know, can

12 you please help us? Can you - you know, we can't

13 maintainthisbank. Canyoupleaseraiseitoneor

14 two blocks?" And he was very accofirnodating. John

15 did it.

16 Q Now,before theworkwas done, did anyone fromThe

17 Landing - strike that - did anyone from the marina

18 come to The tanding and ask permission to do the

19 work?

20 A No;neverdid. Itwas onhis propertywherethey -

2l you know, we felt they had every right to do what

22 theywere doing.

23 Q Now, when the work commenced, did you, in fact, have24 a conversation with John [.und after the work had

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LANDING VS BORDEN LIGHT #2s4067 Vor,. 1 1/8/10I commenced?

2 A Yes. I thanked him. They were very accommodating

3 for us. We were worried that, you know, we would -

4 that the bank would be so eroded that no one could

5 walk there; you know? But -6 Q But before the extra block conversation occurred. did

7 you question Mr. Lund about the work that was beins8 done?

9 A Yes.

10 Q And do you recall what Mr. Lund said?

Il A Yes. Iwasshown thestakesintheground, andthe

12 stakes were next to building 8, and he says - you

13 know, again, the idea with thepool. "This area, yor,

14 know, is mine. I can do what I want. you know,

15 we're doing you guys a favor.',

16 Q And did Mr. Lund tell you what would happan if you

1'7 didn't go along?

18 A Yes. Theywould takewhatwas theirs, takeapartthe

19 poolwall,andjusttakeeverythingout. So,then,

20 we were like sort of, you know, very begging-type

21 thing, for want ofa better word.

22 Q So, in any event, after you had that conversation,

23 that's when you had, at some later -

24 A I had to go back to the board because one board

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member does not have a right to speak for the board.

I went back to the board and told them that, you

know, "Hey, you know, let's ask him. He's agreed -

you know, we're going to wait till the engineering

report comes back, make sure that the wall can

support the extra blocks lor the weight; you know?',

And he did it. "Thank you.',

Now, that area -

That was a concrete block wall; is that

correct?Yes.

And what was the length of that concrete block wall,

ifyou recall?

A hundred and fifty feet, maybe, give or take. you

know, I never measured it. I'm sorry. A hundred and

thity/150 feet. I had no - you know, why should I

measure it; you lnov/? We were very happy.

So, in any event, you were on the board at that point

in time; correct?

Yes.

And so, you had a conversation with Mr. Lund, then

you went back to the board -

Yes.

- and you related what Mr. Lund had told you;

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I correct" sir?

2 A Right. Yes. And --

3 Q And then, you had that other conversation -

4 A And we had the other conversation in regards to, you

5 know, helping us out to raise it.

6 Q Now, you referred to a correspondence that the board

7 put together after Mr. Lund agreed to increase the

8 height ofthat concrete block wall: correct, sir?

9 A (No verbal response.)10 MR. SEIGENBERG: I'm going to introduce

11 this, Ed.

12 MR. BRENNAN: What is it?

13 MR. SEIGENBERG: I'm sorry. It's probably

14 no marked. This is it. Excuse me, your Honor. It's

15 something you

16 MR. BRENNAN: No objection, your Honor

17 MR. SEIGENBERG: And if I -

18 THE COURT: Is this marked? Is this -19 MR. SEIGENBERG: It is not, at this point

20 in time. I could mark it if the court would like.

2l It would be exhibit 38, Your Honor, on our list.

22 THE WITNESS: I did sign it, your Honor

23 THECOURT: Okay.

24 THE WITNESS: I did -

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I THE COURT: I see. It,s not in the book

2 but-3 MR. SEIGENBERG: It's not in the book. your

4 Honor. It's one ofthose ones thatjust fell through

5 the cracks. So, if I may, Your Honor, or -

6 THE COURT: Can we add it to the list?

7 MR. SEIGENBERG: Thank you, your Honor.

8 (Exhibit number 38, marked in

9 evidence: lrtter fromBoard

10 ofManagers to John Lund)ll MR.SEIGENBERG: Andjusttosavetime,may

12 I approach the witness with this as soon as it,s

13 marked?

14 THECOURT: Yes.

15 THE COURT REPORTER: You can have that.

16 MR. SEIGENBERG: Great. Thankyou.

17 THEWITNESS: Yeah. I -

18 MR. SEIGENBERG: Wait a second, sir.

19 Q Sir, I'm showing you what's been marked as exhibit

20 38. Do you recognize that correspondence?

21 A Yes. Thatwastheletterthatwas sentto John.

22 Q And once again, when this letter was written, what

23 was your understanding as to the land Court24 proceeding that was still parding?

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LANDING VS BORDEN LIGHT #254067 Vor-. 11/8/10I A Well, we - I don't undetstand the question. Would

2 youplease -

3 Q You're aware now that there was a preliminary

4 injunction issued by this court?

5 A We didn't know that. When this letter was written,

6 we had no idea that there was an injunction. We had

7 no idea whatsoever. We thought we were being very

8 helpfu'l because we wanted to be quiet. You know, we

9 wanted that three-year $200,000. That's what we were

10 thinking about when we did this.

11 Q Youte referring to that settlement agreement.

12 So, there was a settlement agrerment still

l3 potential'ly in effect?

14 A Yes.

15 MR. BRENNAN: Objection, Your Honor.

16 kading the witness.

17 MR. SEIGENBERG: I'm just trying to move

18 it, Your Honor.

19 MR. BRENNAN: I have to obiect to some of

20 this.

2l THECOURT: Yes.

22 A It was that -

23 THE COURT: You've been leadine -24 A It was that -

1 THE COURT: - quite a bit.

2 A It was that three-year - we were waiting - we

3 didn't want to do anything in the three years to

4 jeopardize our position on our original agreement.

5 Q Now, at any point in time, sir, did the board from

6 The landing ever give permission to the marina to

7 perform this construction work that occurred in -

8 A Never-

9 Q - 2007?

10 A Never, to my knowledge.1 1 Q And once again, can you tell us the process -

12 First ofall, was there a policy that the

13 board had as to how any decision had to be made?

14 A No board member has a right to negotiate anything for

15 theentireboard. Proposalsarebroughttothe

16 board,andithastobevotedon. Thereisno

17 one-member - whether it's the chair or it's a clerk,

18 no one has the right to make any decision.

19 Everything has to be voted on at open session.

20 Q Now, sir, what was the next construction work, if21 any, that was performed -

22 A Thenextconstructiononitwas done during 2008, I

23 believe, and thafs when the construction began on

24 the far south end. And when it was cleaned up, he

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I cleanedoutsomeofthederelict- tookoutsome

2 barrels. Hedidanicejob,youknow,cleaningit

3 up. But again, I, living there - I was looking at

4 the survefng stakes that were there, and all the

5 workthathewasdoingwasonhisproperty. So,I

6 just kept my mouth shut.

7 And then, I want to say in May of 2008,

8 Memorial Day weekend, myself, Paul Beattie and Marcel

9Duquay went to the Tipsy Seagull with

MikeLund

to10 have a meeting with him. And at that time, we

1 I brought a list ofprobably a halfa dozen concems.

12 We were concerned about the condition of the wall; we

13 wereconcemedaboutthefence. Someofthefence

14 was there. All the parts of the fence - it was like

15 astraightl2-footdropdown- Ourdrainagesystem

16 was violated. It was just - the pipes were tom out

17 ofthe $ound. The slope was gone.

18 And the one thing that really bothered a

19 lot of residents was that he was storing boats

20 against the property line, which was his property

2l line but - and we had lost our visual easement. So,

22 now, we can no longer see the bay because the boats

23 were so tall.

24 Q h this particular construction that occurred in 2008

-73 -

1 and 2009, how was that different, ifat all, relative

2 to the proximity or the closeness of the construction

3 to the buildings at The landing?

4 A Prior to this construction on the south end. the work

5 that was being done was away fiom this property line.

6 It was not on the property line. Now, when you come

7 to buildings 3,4 and parts of5, it's virtually on

8 the property line; you know? So now -- when the

9 boats were 20 feet in, you know, it didn't obstruct

l0 the views like it was now. So, 2008 comes along, andI I all ofa sudden now. he's also raised the road four

12 feet,maybefivefeetinsomecases. So,ifyou

13 raise- andyouputtheboatsontopofthis,it's

14 really blocking everyone's view. So, we had quite a

15 few complaints that they've lost their views.

I 6 Q And during this construction, you referenced some

17 road. Was that part of the construction that

18 occurred in 2008 and 2009?

19 A Yes. Heraisedtheroad

20 MR. SEIGENBERG: Hold on a second.

21 A Therewasno -

22 MR.SEIGENBERG: Sir,justholdona

23 second. Let me give you a question.

24 THE WITNESS: Okay.

1A



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



LANDING VS BORDEN LIGHT #2s4067 Vor,. l1l8/101 Q Where was this road youte referring !o?

2 A The road was on the water side. It was on BLM's

3 property, and itran along the waterfront.

4 Q And where was the entrance to that?

5 A The entrance - there was a path enffance prior to

6 this. Butwhenhestartedtoconstructthewallon

7 the south end, he bulldozed every.thing out, and he

8 putin gravel. Andhetookthetopsoitandhejust

9 made a nice slope, and he started tobuild

this tcgo-

10 block walls on both sides ofit to keep the dirt

1i back. and he made a road.

12 Q And this is,what, fromthe southerlyentrance?

13 A From the south; yes.

14 Q And priorto constructing thisroad, was thereany

i5 access for vehicles or boats from the southerly side?

16 A No. Youreallycouldn'tget- youcouldn'tget

17 through.

i8 Q And so, where was the access to, I guess, the beach

19 area where the marina property was -

20 A Itwas -

2l Q - beforethat?

22 A Everlthing was done on the north end. Everything was

23 done on the north end. That was the main entrance.

24 Q Sir, what I'd like to do now is go through some

I photo$aphs with you. Maybe you can illuminate thrs

2 a little bit. Why don't we start -

3 Once again, staing on 31, if you go to

4 photograph C and D, sir? Have you got them yet?

5 MR. SEIGENBERG: If I may, Your Honor?

6 THEWITNESS: Allright.

7 MR. SEIGENBERG: See how they're marked?

8 THE WITNESS: Yes.

9 MR. SEIGENBERG: Great.

l0 A Yes. "C" was taken from mv unit.I I Q kt's talk about "C".

12 What does photograph 31C depict, sir?

13 A Thatshows you, firstofall, themarina. Thatnew

14 fingerpier,Ithink,wasjustinstalled. Andit15 also shows the fence that was just meandering and the

16 slopedbankthatwentdown. Itwassteep,butthere

17 was vegetation on it to hold it up.

1 8 Q And approximately when was this photograph taken?

19 A And "D" shows -

20 Q Sir, when was this photograph taken? When was this

2l photograph taken, ifyou know?

22 A Two thousand and - I'm not sure.

23

QYou took the photograph?

24 A I did; yeah. It's probably 2007.

-76 -

I Q Seven, sir?

2 A lm not sure. I'm sorry. Can I take that back? I

3 don't know.

4 Q We just want your best answer.

5 A I took it, but I'm not sure.

6 Q And what about photograph D, sir? What does that -

7 A It's taken at the same time, but that just shows you

8 thepositionoftheboatswheretheywere. Priorto

9that wall being constructed,

the boatswere

basically1 0 against the water side. They weren't on the property

1 1 line. They were stored on the water side.

12 Q And inreferencing that, I'11 showyou -lookat

13 photograph 3lE, sir.

14 Does that depict what youjust described?

15 A Yes. Now,thatshows you theboatsthatwerethere,

16 butthey'resmallboats. Youcanseeovertheboats.

1 7 Q Then, sir, going to "F," what does that depict, sir?

18 A That's goingbackprobablytobuilding 8 or- that's

19 the piling wall, I believe.

20 Q That's the -

21 A That's the piling wall, the -

22 Q I see.

23 Now, there are also boats in this

24 photograph, sir. Do you see the - seem to be -

I A Yes. You can see the boats were stored on the water

2 side again, not against the building side.

3 Q But do you see - it seems like there's some

4 stanchions on thatboat, sir. Do vou see that?

5 A Yes.

6 Q And based on your observations, sir, how have these

7 boats been stored whan theyte out ofthe water?

8 A They're stored on poppets, the stanchions like that,

9 and there's usually four, plus fwo keel blocks.

10 That's the average way of doing it. But they were1 I stored against the water side. They were never

12 stored against the condominium side.

I 3 Q And so, based on your understanding -

14 A For the most part. I mean, there was always a couple

15 ofstragglers. lmnotsafngl00percentbyany

16 means, please.

17 Q Butbased on yourunderstanding as to *trere the

1 8 location of the 20-foot easement is, are these boats

19 within the easement or not?

20 A Not even close to the easement; no. They were always

2l - evanifyoulookatoneoftheotherpictures,

22 you'll see that nothing was stored close to the

23easement.

24 Q And.lefs go to photograph G, sir.

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



LANDING vS BORDEN LIGHT #254067 Vol. tu8tr0I A Yes.

2 Q And what is thatphotograph?

3 A Thephotograph- thatshows theend ofmybuilding4 3, and that shows Mike Lund,s new unit, and it shows

5 the fence, how it was before. And it shows that you

6 could actually walk - you know, prior to this wall

7 going in, you could walk from one end ofthe complex

8 to the other. It was plenty of walking. Now, you

t have to be a goat. I can't walk there. It's so

l0 steep. And it's all gravel; it's dirt; it's a mess.

1l Q So, this photograph depicts the areapriorto the

lZ excavation -

I 3 A Prior to the excavation.

14 Q - in 2008 and 2009?

15 A Yes.

I 6 Q And there's also some boats on the left-hand side of17 the photograph, sir?

18 A Right.

19 Q Can you describe that?

20 A Again, they were on the water side, and they,re small

2l boats. You can see over them.

22 Q Now, sir -

23 A He was a good neighbor, you know, up to this point.24 Q And going to "H," sir, it's an aerial photograph?

-79 -

I A Yes.

2 Q Now, were you involved in taking aerial photographs,

3 sir?

4 A Yes.

5 Q And when was this aerial photograph taken?

6 A Novemberof2008.

7 Q After the work had been -

8 A After the work had been done. And now, you can see

9 the boats from the picture I took. It's at - the

10 boats are all jammed against thebuilding. And we1l were concemed - the reason this was taken is, we

12 were concemed ofa fire safety hazard because the

13 boats were either six to ten feet away, depending on

14 how you looked at it. And now - and you notice the

15 sizeofsomeoftheseboats. Theyare- andbecause

16 theroadwasraised,youcan'tseeovertheboats. I17 mean, it blocked everybody's view on the grormd

18 floor.

19 Q Now, lookingatthis photograph,sir, on the far

20 right-hand side, can you describe in words where that

21 road is that was constructed?

22 A Thisis on thefarsouth end. Thatbuildingto the

23 farright, that's the fishing club; okay?

24 Q That's the King Phillip Fishing Club or yacht Club;

-80-

1 correct, sir? That's the King -2 A I'm sorry. Yes; yacht club. yacht club.

3 Q So,that'sthefarright. Thatbuilding -

4 A You know, I'venever heard itcalled the yacht club.

5 IVe got to tell you this. I'm sorry, but it's the

6 fishing club. The fishing club has always been on -

7 the yacht club's on the right-hand side, and there's

8 that new wall, and right against the wall youll see

9 that

-to impede the entrance

coming in, you'll see10 the boats that are stored right against the fence.

1 I Q And sir, is that road -

12 A And so, ourconceln was afireenginecouldn,tcome

13 down.

14 Q And the roadway that you indicated was constructed in

15 2008 or 2009, where is that, sir?

16 A Where is what?

17 Q Where's the road that you -18 A Theroad - ifyou startftom the top and you come

19 down, it would go right to almost the break in this,

20 the break where you can see -

2 1 Q In the top right of the photograph, there's a street

22 depicted in that. What street is that, sir?

23 A That'sShoreRoad. That'sthebeginningofShore24 Road.

- 8t -

I Q Shore Road?

2 A Club Street. Club Sfeet/Shore Road.

3 Q I see. And the building - strike that.

4 This photograph also depicts The tanding

5 buildings, as well?

6 A Yes. The last building; that's my building, building'7 3.

8 Q The last building on rhe right is building 3?

9 A Right. And onthesideofthat,youcan seethe

10 parking lot.ll Q Yes.

12 A Andyoucansee -

13 Q You're talking on the right -

14 A - theroadrightthroughtheparkinglot.

15 Q So,holdonasecond.

16 Once again, looking at this photograph, to

I7 the right ofbuilding 3, there is a parking lot, sir;

l8 correct?

19 A Yes.

20 Q And what parking lot was that?

2l A That's guestparking.

22 Q And during this construction that occurred in 2008

23 and 2009, what, ifanything, happened to that guest

24 parking area?

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Danvers, Massachusetts 01923Phone: (978)

777-5802 FAX:(978)

777-5803



LANDING VS BORDEN LIGHT #254067 Vor-. tu8/10I A The guestparking- afencewaserected,partofour

2 land was taken away - let me start back. The land

3 was taken away. Mike put a fence up. The stone wall

4 went up, that wall. The block wall went up, and at

5 this time, we still weren't sure what was going on.

6 Q But I takeitbefore2008,sir, there was a guest

7 parking area?

8 A There was a guest parking area; yeah. Now, it's -

9Q

Slowdown.

10 And based on the construction that occurred

1 I in 2008/2009, what, ifanything, happened to the size

12 ofthat parking area?

13 A We probably lost maybe frve to eight feet on the far

14 south side, and a wall took its place.

15 Q You sayyou lost it. Howdid you lose it?

16 A Well, the wall was placed there, and tlre fence went

17 up --

18 Q And who -

19 A - and theentrancewaywas shortened up.

20 Q And who did the excavation, sir? Not the contractor.

21 A Okay.

22 Q Under whose direction?

23 A BLM.24 Q Borden Light?

-6J-

I A Borden Light Marina.

2 Q Now, at any point in time before this work was done

3 in 200812009,was there any conversation with Borden

4 Light Marina or any representative of Borden Light

5 Marina about this work that was done?

6 MR. SEIGENBERG: kt me rephrase that.

7 That was very poorly stated.

8 Q Before the work commenced in 2008/2009, did you have

9 any conversation with any representative ofBorden

l0 Light Marina?1l A No. Itwasneverbroughtup. Theconstructionwas

12 neverbroughtup,neverasked. Nooneeversaid

13 any.thing.

14 Q And you were on the board at that time?

15 A Yes.

16 Q And so, as the chairman of the board at that time,

17 how did you leam ofthis construction work?

18 A When I came back from Florida in that 2008, it was

19 cleanedup,andthewallwas- theystartedworking

20 on the road, and there was construction, and that's

Zl when I started taking pictures.

22 Q Sir, ifyou go to the nextphotograph, which is

23 marked, I think, "T" - is thata "T"? Is that

24 another aerial photograph?

-84-

1 MR. SEIGENBERG: I'm sorry. That's "I,"

2 Your Honor. lm sorry.

3 Q "I;" that's another aerial photograph?

4 A Yes.

5 Q And what does that depict, sir?

6 A Thatjustshowed you thattherewas no longerthat

7 sloping bank; that the wall is there. It's

8 constructed, and all the -now, you can see the

9large boats that were blocking everybody's view.

10 That's what the pictures show, and that's what people

1 I - and they're so close to the buildings that we were

12 concemed with a fire issue.

13 Q Now, sir, Im going to have you move to photograph K.

74 It's dated November 19th,2009.

15 A Yes.

16 Q What does that depict, sir?

17 A This shows the drains aftertheywere altered.

18 Originally, they went into pipes.

19 THECOURT: Excuseme. I'msorry. I'm

20 sorry to'interrupt you. What exhibit are you -

21 MR. SEIGENBERG: "K," Your Honor.

22 THECOURT: "K'?

23 MR. SEIGENBERG: I moved over one of the

24 aerials.

-85-

I A These pipes were all tied into a plastic PCV [sicl2 pipe which brought all ourrainwater from the gutters

3 and the tops to the catch basins in the back ofthe

4 building -

5Q And-6 A - drainage.

7 Q And what is your understanding as to where those

8 catch basins were located?

9 A Theyarebetween thetwo points ofabuilding.

10 There'sacatchbasinthere. AndlwasalwaysledtoI I believe that these pipes drained into a PVC pipe, and

12 the PVC pipe - they were teed together, and that

13 brought the water to the catch basins.

14 Q And do you know, sir, where those pipes and drainage

15 systems were relative to the 2O-foot-wide easement?

16 A Theywereinourproperty; yes. Theywere- that's

17 the part we weren't sure of. And so - well, if you

18 - whenwehadthepropertysurveyed,itwas

l9 definitely in that area between the easementand the

20 property line. They were there.

21 Q You mean in the easement area, sir?

22 A Yeah.

23Q

And based on that construction that occurredin24 2008/2009, based on your observations, what, if

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NOTES:


Danvers. Massachusetts 01 923

Phone: (9?8) 717-5802 FAX: (978) 777-5803



LANDING Vs BORDEN LIGHT #254067 Vor,. 11/8/10I any.thing, happened to the drainage system?

2 A This - what happened was, the pipes were cut. They

3 were dead-ended, and they were extended so that the

4 water from our system now drained over into the bay,

5 over into Mike's property, BLM property.

6 Q And going to the next photograph -

7 A I tookpictures ofthat, too.

8 Q - photographl-

9 A Now, this shows what we had to do to stop it from

t0 draining into the bay. What we had to do was, we had

I 1 to stop the water from draining into the bay, and

lZ thatjustshowshowwehadtofixit. TheI-anding

13 fixed it.

14 Q Canyouturn tophotograph R,sir? Youtalked about

15 a drainage pipe going into the bay.

16 A Right. That's how they were. Picture R is - I took

17 this picture to show that our drain system was no

18 longer the way it was hooked up into the catch basin,

19 andnowtheywerecut,andtheywent -alloftheZO pipes went over into the bay, into the -

21 Q And this alteration of the drainage system, was this

22 done by the marina?

23 A Yes; BLM.24 Q BLM?

-8'7 -

I overgrown. It was strictly - it was a bank,

2 basically, where you had the grass, and it was a

3 pathway. That'sallitwas. Youcouldnotbringa

4 car down there. It was strictly a walk back that the

5 guys used to use to go fishing.

6 Q And after the excavation that was performed in 2008

7 and 2009, what use, ifany, was made ofthis roadway

8 that was constructed?

9 A Thisroadwaywas anothermeans ofegress for thel0 marina, and I was told by the hre chief it was a

ll fire lane.

i2 Q And this is the southerly end; correct?

13 A Thesoutherlyend;right.

14 Q Sir, going to photo$aph N, what does this photograph

i5 depict, sir?

1 6 A Photograph N shows the new fence that was installed

17 by BLM. It shows the new fence that they put up and

18 the storage ofboats. And ifyou can see the breaks

19 in the ground, that's on our property, and that was

20 all dug up by BLM. See the different colors? My

2l pictures were in color, but you can see definitely

22 where the green grass was simply excavated out and

23 just filled in.

24 Q The court has color photos.

-89-

I A I'm sorry.

2 Q No problem.

3 And let's move on to the next photograph,

4 which is "O." What does that deoict. sir?

5 A "D.? Is that "D"?

6 Q. No. Youprobablycan'treadit. Ifs"O." Trust

7 me.

8 A "O"? Is that "O"?

9 Q Yes.

10 A "O"? That's- Iwasconcernedabouterosioninto1 I the bay because all of this work was done without any

12 erosion control - no barriers, no silt screens,

13 nothing. Andafteritrained,youcouldseewhere

14 it's a washout. The water was simply going right

15 into the bay and against the CSO policy ofthe city.

16 So, I took pictures to bring to the city.

l7 Q Isee.

18 And photograph P, sir, thenextphotograph.

l9 what does that depict?

20 A It shows how close the boats are to the wall and to

21 the property line, and it shows the erosion, and it22 shows the digging on our property, because the fence

23line is basically

ourproperty.

24 Q And this photograph; where is this in relationship to

-90-

I

2

3

4

5

6

7

8

9

101t

1a

13

14

t5

i6

tt

18

l9

z0

2l

22

z)

24

a

a

a

a

a

Now, sir, going to photo$aph M, if you

would, please? You referred earlier during your

direct testimony about a guest parking area?

tught.

Ard what does photograph M depict, sir?

This shows how the asphalt was cul okay?

Where is the guest parking area -

The guest parking lot - you can see my car there on

the right-hand side.

I see.That's in the guestparking lot. And this shows how

- it was asphalted - I don't know exactly how many

feet; all right? Maybe six feet, more or less, to

the left of that, and they cut it with the saw, and

they proceeded to build a wall.

And -

Now, this was -

Towards the left of the photograph, sir, there

appears to be a roadway thefe. Tell us about the

roadway.

Originally, this roadway was - it was a combination

of two things. There was a lot of large boulders,

riprap boulders, and there was a couple ofjunk

boats, a couple ofhailers, and every'thing was

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NOTES:



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



LANDING VS BORDEN LIGHT #254067 Vor,. tuB/r0I the-

2 A This is the comer of buildine --

3 Q -guestparkingarea?

4 A, - 3,and at the end of the parking lot, and it's

5 probably right over there.

6 Q The next photograph, Q, sir?

7 A "Q" shows the block wall construction and - why did

8 I take this? Because the boats are - the boats and

9 debris on the side ofthe wall, and you can see how

10 high the boat'is above the wall. You l,:now, that

1l l9-foot easement - the top of the wall is, you know,

12 21 feet. The boat's going to be six feet above it.

13 Q And wherewas this photograph taken fron1 sir,just

14 sowe -

15 A Thatwastaken -

16 Q l-ookingwhere,sir?

l7 A Itwas on ourpropertybythe easement,but looking

18 north.

19 Q And photograph R, sir?

20 A Photograph R; my building - well, you can't see my

21 unit here, but my unit is right to the left ofthis.

22 And this shows the erosion and the digging ofour

23 property, and it shows, you know, the safetymethod

24 thattheyused- apieceoftapetostoppeoplefrom

-91 -

1 falling down 12 feet - and it shows the drain going

2 overboard.

3 Q Right.

4 A And at the heightoftheboat, you can seethe

5 shrinkwrap, again blocking everybody's view.

6 Q Andbased onyourunderstandingofthis excavation

7 arca, where was that relative to The l-anding's

8 property? Was that on The landing's property; the

9 excavation?

10 A It was - when this was taken, it was on his1l property. We were told that it was his property.

12 Mike said he could do what he wanted. It was his

13 property;hecoulddowhathewanted. Itwashis

14 property.

15 Q And what'syourunderstandingnow,sir?

16 A He's l00percentwrong.

17 MR. BRENNAN: Objection, Your Honor. It

I 8 calls for a legal conclusion.

19 THE COURT: I'11 sustain that.

Z0 MR. SEIGENBERG: We have exhibits, Your

Zl Honor, that show where the property line is and so

22 on, but that's fine.

23

QSir, going to photograph S -

24 A "S" shows the pontoons that were stored above the

-92 -

I wall.

2 Q Who stored those there, sir?

3 A Mike actually put them there with the crane, and that

4 was - again, that's on our property. And you can

5 seethebankwhere -youcanseepartofthebank

6 being removed. You can see the bulldozer there, and

7 you can also see the - ifyou look at it, there was

8 a nice sloped bank. You can see how they're cutting

9it back,

cutting it back toput

the wall in.10 Q And this was taken around 2009, sir?

11 A It was - yes. It was takor in May.

12 Q And goingtophotographT,sir-

13 A Yeah.

14 Q - whatdoesthatdepict?

15 A "T' shows the boats on the public right of way, and

16 it shows that the boats are stored on stanchions.

17 Q And then, going to photograph U, sir, what does that

l8 depict?

19 A "U" is thebankbeingremoved, and again,where -

20 Q And whatbuildings are there, sir?

2l A This is building 3. Aird you can see where, you know,

22 the fence is being removed and the safety tape is up,

23 and you can see the blocks being constructed and the

24 geogrid materials over there, fourth block down.

-93-

1 Q And then, going to photograph V, sir -

2 A "V" shows that the block wall was stopped to the left

3 ofthat,andnowyou- whatitdidis--youdon't

4 see the angle on this, but it became a very steep

5 angle for the woman in building 301, for unit 301,

6 and she wanted two more or three more block because

7 when you came out of her unit, it was quite a goat's

8 path. It goes down very steep. And that's the drain

9 that was - originally went into, I thought, into our

10 catch basin, and now it's cut off, and itjust hangsI 1 over into the water; 'into his property, actually.

12 And Mike said that it was all risht because it was

13 his property.

14 Q And let's skip over, if we could, to photograph Y.

15 Doyouseethat? Itshouldbeadrain.

16 A "X/Y'? "Y" shows thedrain thatwas dug up andjust

l7 left in the gromd like that. It doesn't go

18 anyplace. And you can see all the erosion, all the

19 pebbles around it.

20 Q And then, going to photograph Z, sir -

21 A "2"?

22 Q Yes.

23 A "2" shows the - that's the drain on ourproperty.

24 Thatwas - and itisjustbarelyonourproperty,

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Danv€rs, Massachusetts 01923

Phone: (978) 777-5802 FAX: (978) 7'17-5803



LANDING VS BORDEN LIGHT #2s4067 Vor,. 11/8/10I but that drain is on our property, and that's where

2 we thought all our gutters and downspouts went into

3 this catch basin.

4 Q And then, if we go to double "B" --

5 A Double what?

6 Q Double "B."

7 A "BB" shows the - this is that drain pipe coming out

8 on the right-hand side.

9Q

And what building is that, sir?

10 A That's the corner ofbuilding 3; 38. They call it11 38; okay? And this shows the proximity of the dig.

12 lfyou notice the difference in color, on the

13 left-hand side where it's all unearthed, and on the

14 nght-hand you have grass, and it shows the snow

15 fence that we put up and howbig the boats are stored

16 againstthewaterside -wallside. Andyoucansee

17 howfar -ifyounotice,youcanalsoseea

18 permanentmarkerthatoursurveyor -thatJimHall

19 of Northeast put in.

20 Q Which perrrurnent stake - which is that? Is that that

2l stake, sir, in the left-hand -

22 A Yeah. It's right in the middle of the excavated

23 dirt.

24 Q Will you just showthe courtwhere that is by using

-95-

I your photograph? Just point.

2 A That's pretty much -- (Witlress pointing to area of

3 exhibit number 3 1BB.)

4 MR. SEIGENBERG: And for the record, he's

5 pointed to what, Your Honor? Ijust - -

6 THECOURT: Whydon'tyoushowme -

7 THE WITNESS: I'm sorry.

8 THE COURT: - the color photograph.

9 MR. SEIGENBERG: Thank you, Your Honor.

10 THECOURT: I'msorry.I I THE WITNESS: Right there. (Witness

12 pointing to area of exhibit number 3 I BB.) That's the

13 permanent survefng marker that we had put in.

14 THE COURT: You're showins in the middte of15 thephotograph -

16 THE WITNESS: What I was trying to explain

17 is. I don't have it in color. So -

18 THECOURT: Yes.

19 THE WITNESS: - please excuse me. This rs

20 where they dug in, this is the comer of that

21 building 38, and this is - you can see where it's

22 allbeenexcavated. Seehowtheexcavationline

23 goes -

24 THECOURT: Okay.

-96-

I THE WITNESS: That's an official marker.

2 THE COURT: So. let the record show that

3 the witness is pointing to a marker located

4 approximatelyinthecenterofthephotograph. On

5 the upper side ofthe property to the right ofthe

6 photograph are the condominium buildings. The marker

7 is located in what appears to be disturbed earth

8 area, and on the left side ofthe marker is

9 additional disturbed area, a snow ferce, a top ofa10 wall. and boats.

11 MR. SEIGENBERG: Thank you. Your Honor. I

12 appreciate it.

13 Q Sir, ifyou go to the lastphotograph, which is

14 marked as "FF" --

15 A Yes.

16 Q - whatdoesthatdepict,sir?

17 A "FF"?

18 Q Right.

19 A "FF" shows the electricity thatwas brought to the

Z0 boats, and it shows the size ofthe boats that are

21 being stored against our boundary line. They're ali

22 big boats, 40-foot big sailboats, ard you can see how

23 high they are as compared to the pickup truck.

24 Q Sir, you were telling us earlier about a meeting that

-97 -

I you had with Michael Lund with, I think you said,

2 Marcel and another individual - was it Paul Beattie?

3 A Paul Beattie.

4 Q - at the Tipsy Seagull.

5 A Right.

6 Q First of all, is Paul Beattie a member of the board?

7 A Yes.

8 Q And what about Marcel?

9 A Marcel was a member of the board.

10 Q And what's Marce'l's last name?i I A Duquay, D-U-Q-U-A-Y. Duquay.

12 Q And this meeting involved Michael Lund; correct?

13 A Yes.

14 Q And what is the Tipsy Seagull?

15 A The Tipsy Seagull is thebarthat's at Borden Light

t6 Marina.

17 Q Isee.

18 And do you know approximately when this

19 convemationtookplace?

20 A It was in - it was Memorial Day of 2008, I believe.

21 Q Was it 2009, sir? Do you know? I'm sorry. you -

22 A I'm not -

23 QEither

way. I'm sorry.24 A Iknowitwas Memorial Day. Itwas aniceday.

-98-NOTES:



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



LANDING VS BORDEN LIGHT #2s4067 Vor,. 11/8/10

I Q And where was this relative to the construction that

2 you'vejust described that occurred in 2008?

3 A The construction - I believe it was 2008, okay,

4 because the construction was coming to a halt at that

5 time, but we needed some answers. We needed some -

6 we needed the fence fixed because there was a

7 drop-off. We needed - our problems with the drains

8 because didn't conform to the city. The CSO outflow

9 thing;we were

concemedabout

that.We

didn't want10 to get fined. We were concemed about the boats

1 1 being stored there because they were all the boats

12 for sale. He moved them all down the south end. So.

13 now, when you build a doghouse on a boat, there was

14 no view, especially with the shrinkwrap rapping and

15 making all this noise, and people in building 3 and 4

16 were really upset. The halliards were banging. You

11 know - and the dust. People were - they used it

18 nowasaracewaytogetoutofthemarina. So,the

19 dustandnoise- itwasgettingoutofhand. So -

20 Q And did you express these complaints to Michael Lund

21 at this meeting at the Tipsy Seagull?

22 A Yes.

23 Q Andwhat,ifanything,did Mr. Lund say?

24 A Well, he agreed - he's a nice guy. He a$eed to

-99-

1 everything, but he didn't do anything. That was our

2 problem. He agreed to everything. You couldn't ask

3 for, you know, a more - nicer guy. You l,rrow, he

4 said he was going to, you know, try to $ade the -

5 make the grade better, and he was going to put a

6 fence up, and he was going to fix the drains. You

7 know, "Don't worry about it," you know, but he didn't

8 do anything.

9 Q Now, sir, I want you to tum, if you would, to

10 exhibit 30A. It's anotherphotograph, sir.il A Okay.

12 Q And whatdoesthatphotographdepict?

13 A (Witness reviewing exhibit.) This is before me.

14 Q I'm sorry?

15 A 304 is before me.

16 Q You don't think that's building 3 there, sir?

l'7 MR. BRENNAN: Objection, Your Honor.

18 MR. SEIGENBERG: I'll withdraw the

19 question.

20 THE COURT: It's sustained.

2l Q Now, in 2009, did you begin to make other

22 observations as to the construction work that was

23 performed by Borden Light Marina?

24 A I'm sorry? I didn't -

-100-

i Q ln 2009, did you make additional observat'ions as to

2 the construction work that was nerformed bv Borden

3 Light Marina?

4 A Yes. In, I'mgoingto say,Septemberof2009, one

5 moming there was a tremendous amount of excavation

6 noise. Icouldhearbackhoesrunning. Excavators

7 were running. And so, I went outside, so - and they

8 were - I went outside. and the construction crew was

9 rightonthecomerofthebuilding. So,Iasked -10 Q The comer of which building, sir?

l1 A My building; building 3. And I asked the guy in the

12 hole and the excavator guy. I says, you know, "How

13 did you guys ever get permits to dig so close to the

14 building?"

15 Q What, if anything, did he say, sir?

16 MR. BRENNAN: Objection. Is this

17 conversation with whom?

18 THE WITNESS: This is with the guys in the

19 hole, Jimmy -


2l THE COURT: Sustained.

22 MR. SEIGENBERG: If I may be heard, Your

23 Honor? Obviously, it's out-of-court statements. It24 would otherwise be hearsay ifl was offering it for

-101-

1 the truth of the matter asserted. It's with James

2 Furtado, the engineering company - strike that; not

3 the engineering company - James Furtado, the

4 excavator hired by Borden Light Marina, and it simply

5 goes to the complaints that were expressed by The

6 tanding to the various construction work. This is

7 what we talked about during the motion in limine.

8 THE COURT: I think I've got it.

9 MR. SEIGENBERG: Thank vou. Your Honor.

l0 appreciate that.I 1 Q So, in any evort, you had a conversation with

12 Mr. Furtado: correct?

13 A Yes.

14 Q And he was in the excavator; correct?


16 (lndiscemible - simultaneous speech.)

17 MR. SEIGENBERG: I'm not going to -

18 MR. BRENNAN: - someone in the hole. It

19 wasn't with Mr. Furtado. That's inconect.

20 Q Do you know who James Furtado is?

21 A He was the excavator; )€s.

22 Q Did you know him?

23A

I knew him just from being in the construction

24 business. Ihadnopersonalcontactwithhim,butl

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NOTES



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



LANDING VS BORDEN LIGHT #254067 Vor.. lu8,tr0Itrl3

4

5Ao

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knew who he was; yes.

Now, sir, based on that conversation you had with

that person who was involved with the excavation,

whafs the next thing that you did?

I went to the building inspector, and I asked to see

all the permits pertaining to the construction going

on.

And specifically, sir -

So, I - actually, it was Joe Biscoe.

And who -

And so, Joe made me wait in his office. I waited for

approximately - well over an hour, and he just says

that I had to come back.

MR. BRENNAN: Objection, Your Honor, to

Mr. Biscoe's testimony.

MR. SEIGENBERG: Once again -

THE COURT: Sustained.

MR. SEIGENBERG: Once again, it's not for

the truth of the matter assefled, just the complaints

and the reaction they were receiving so the court can

evaluate what The landing did in response.

THE COURT: I mean, l'imit the questioning

to that instead ofopen-ended.

MR. SEIGENBERG: I appreciate that.

-103-

So, you made a complaint to -

I made it to the building inspector.

- the building inspector?

I wanted to see all of the records pertaining - I

wanted to see electrical - I wanted to see building

permits, electrical permits, plumbing permits,

conservation permits. I asked for that.

Now, Michae'l Lund; you know who Michael Lund is,

obviously?

Yes.And in 2009, can you tell the court what position, ifany, he had with the City of Fall River?

He's a sitting councilor, city councilor.

And Mr. B'iscoe? Is that his name?

Joe Biscoe.

How long has Mr. Biscoe been the building inspector

for the City of Fall River, if you know?

THE COURT: Where are we going with this?

MR. SEIGENBERG: Building a wall. ttlmove on, Your Honor. I just -

THE COURT: Yes. Move on. Move on.

MR. SEIGENBERG: Fair enough.

Once again, itjust goes to the fact that

the issue has been raised, and I'm just trying to

_104_

I address the issue.

2 "lHE COURT: Raising the issue is one thing.

3 Getting into the city politics is something else.

4 MR. SEIGENBERG: Fair enough.

5 Q So, you had a conversation with Mr. Biscoe.

6 And did you determine whether or not

7 building permits had been issued?

8 A There are no permits issued whatsoever for any

9 construction done in the last five years.l0 MR. BRENNAN: - Mr. Biscoe's testimony.

11 They just back-ended into Mr. Biscoe's testimony.

12 THE COURT: That's all rieht. I'll allow

13 it.

14 A That's what he told me, and that's when I hired Jim

15 Donnelly. ThafswhentheboardhiredJimDonnelly

16 to lookinto this.

17 Q Who?

18 A JimDonnelly.

19 Q Who's that?

20 A Jim Donnelly is an attomey in Fall River.

2l Q Isee. Andwhatotheractions -

22 First of all, when you went to the building

23 inspector's office, in whose behalfwere you acting?

24 A When I spoke - Joe Biscoe said that we had -

-105-

I MR. BRENNAN: Objecfion, Your Honor.

2 MR. SEIGENBERG: lrt me -

3 THE WITNESS: I'm sorry.

4 A Ineeded to getthepropertysurveyed.

5 Q No, sir.

6 A Is that what -

7 Q No. Thafs -

8 A That's not what -

9 Q Try to listen to the question.

l0 A Okay.1 I Q I know you've been up there awhile, so -

12 When you went to see the building

13 inspector --

14 A Yes.

15 Q - did you go there on anyone's behalfotherthan

16 your own?

17 A Thetanding's.

18 Q And specifically -

19 A Iwas - yeah; as the chairman ofThe landingboard,

20 I was trying to find out what was going on.

2l Q So,youwentto thebuilding inspector.

22 And after seeing the buitding inspector,

23who else did you see?

24 A l saw Manny - I don't know his last name - the

106 -

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LANDING Vs BORDEN LIGHT #254067 Vor,.I 1r/8n0I plumbing inspector, and somebody in conservation.

2 Q And specifically, did you -

3 A Liz. I don't know her last name.

4 Q No. But specifically, did you make any -

5 A I wanted to see the permits.

6 Q And did you speak to anyone else, sir? Did you

7 contact anyone else about the excavation and

8 construction work that was occurring near The t:nding

9 property in 2009?

10 A Yes.

l1 Q Who else, sir?

12 A I spoke to the mayor's office, Will Flanagan. Is it13 Will Flanagan? Well - and I also spoke to Torres,

14 who is the corporation counsel -

15 Q And forwhatreason did you talkto thosetwo

l6 individuals?

l7 A Because Icould not get thebuilding inspector to

18 stop the work going on atthe marinabecause he was a

19 city councilor -

Z0 MR. BRENNAN: Objection, Your Honor. He's

21 testirying he couldn't get the building inspector to

22 do anything because Michael Lund's a city councilor.

23 Hejust -

24 A They wanted me to cross Ts and dot I's.

t07

I conversation you had with Joe Biscoe in 2009, the

2 building inspector for the City ofFall River, did

3 you retain the sewices ofanybody?

4 A We retained the services of Jim Hall on the advice of5 counsel so that we knew definitively where our

6 property ended and began, and Jim Hall surveyed The

7 l-anding going back to the state certified markers.

8 Q And Jim Hall is with Mount Hope -

9 A MountHopeEngineenng.10 Q Thankyou.

11 A The same one that Mike uses.

12 Q And then, having spoke to DEP, did you contact

l3 somebody else in behalfofThe I-anding?

14 A We contacted - let me see. Yes. I contacted Matt

15 Watsky, who is another attomey.

16 Q And after contacting Attomey Watsky, did you leam

17 anything about this land Courtproceeding?

18 A Yes. Once--

19 Q What did you learn?

20 A, - we hired Matt, he was the one who found out that

2l there was an injunction in place.

22 MR. BRENNAN: - Mr. Watsky stated.

23 THE COURT: I'm sorry?

24 MR. BRENNAN: Objection to what Mr. Watsky

-109-

I told the witness. Mr. Watsky -

2 THE COURT: I don't think rhat's exactly

3 what he's testiflng. He's testifying what he found

4 out.

5 MR. SEIGENBERG: His understanding, Your

6 Honor, at that time.

7 THE COURT: His understanding.

8 THE WITNESS: That's - he told us that was

9 an injunction in place that prevented him from

l0 altering the drains and doing all ofthe work that1 I was being done.

12 Q And before that time, sir, were you aware that there

l3 was a preliminary injunction in effect from [-and

14 Court?

15 A I never knew until Matt told me.

16 Q And did it ever come up in any board meetings prior

17 to that time?

18 A Never, to my knowledge, did it ever come up that -

19 Q Now, I want to direct your attention, if I could, to

20 November or December of2009.

2l Do you recall another conversation you had

22 with Mike Lund?

23A

Yes.

24 Q And tell us about that.

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7

8

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THE COURT: We'll strike that.

Now, in addition to speaking to the city officials,

did you speak to anyone in any state agencies about

the work that was being doner

At that same time, we were notihed about the renewal

license for the marina, very similar - in that same

time, and the problem was lhat all our correspondence

was going to the wrong address. And so, we had no

notice what was going on.

MR. SEIGENBERG: Do me a favor. Onceagain, I know you've been up there awhile. Just try

to answer the question directl;.

THE WITNESS: Okay.

Andrea langhauser.

Did you speak to any state authorities?

Yes.

And who did you speak to?

Andrea l:nghauser with DEP.

And why did you speak to someone at DEP?

Because we had - we were trying to find out if he

had a state license to do the work, to excavate the

bank, get rid ofour drains, and do all the work that

he was doing.

Now, after your initial conversation, your first_108_

NOTES:



Phone: (978) 177-5802 FAX: (978) ?77-5803



LANDING VS BORDEN LIGHT.#254067 Vor,. r1/8/101 A I came home one day to find Mike with a can of spray

2 patnt, painting arrows in the front ofbuilding 3.

3 And I asked Mike what he was doing, and Mike said

4 that he was marking it so that the bulldozer could

5 take out the front stairs ofbuilding 3 because it6 was his property and he could do what he wanted.

7 Q And did he say anything else?

8 A No. Hejustlooked atmeandcontinued goingdown,

9 spray painting where the bulldozer was going to take

10 offthe stairs and the groundwork ofbuilding 3.

1 I Q And did Michael Lund say anything about the actions

12 of The l-anding at that time?

13 A Yeah; thatwehad to stopthe foolishness.

14 Q Referring to what, sir?

15 A Hejust said - Itake itto saythatlitigationand,

16 you know, against his license and what he was doing;

17 that he just thought he could do whatever he wanted.

18 It was his property.

1 9 Q Now, in December of 2009, did you have a conversation

20 with John Lund?

2l A Yes. John Lund -

22 Q Where did that conversation take place?

23 A In my condo.24 Q And once again, you had known John I-und at that point

- 111-

1 in time for how many years?

2 A Since the'80s.

3 Q And tell us about that conversation, sir.

4 A John came over to the condo because I had spoken to

5 John and told him that the new lights that were in

6 the marina were lighting up my condo. It was like a

7 24-hour daylight condition. The lights - it was

8 spotlighs in the condo. It was absolutely terrible.

9 I told him I could read the Herald news. And then -

10so, John came over and very

nicely said, "You're1l right," and he said he would talk to Michael and take

12 care of it. And he says, "Remember, this is my

13 property, though. You know, it's still our properff.

14 Ican dothis." And that's it.

15 Q Did you have any conversation at that point in time

16 with John Lund about him having or not having

17 permits?

18 A Ido notrecall. Electricalpermits Idid,butnot19 about the rest ofit.20 Q And do you recall anything else that Mr. Lund, John

2l Lund, said during thatconversafion?

22 A No;ldon't.

23 Q At any point in time, sir, while you were a member of

24 the board ofThe tanding, did you ever give

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8

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permission for any ofthe work that has been

described?

Never had, ever. Never did I ever give permission to

do any work.

And were you aware of any votes of The l_anding -

strike that.

MR. SEIGENBERG: I have no further

questions for this witness at this time, Your Honor.

Thank you.

THE COURT: Thank you. No; you're not done

yet.

THE WTINESS: I'm running out of water,

Your Honor.

CROSS EXAMINATION

@y Mr. Brennan):

Now, Mr. Bouffard, you've testified here this moming

that you're a retired school teacher -

Yes.

- is that correct?

And you have a license -

Captain's license.

- captainrs license? What are the limitations on

that?

Fifty-ton.

I Q Fifty-ton?

2 A Master's license.

3 Q Master's license up to 50 tons; is that correct?

4 A (No verbal response.)

5 Q And you were an assistant harbormaster somewhere?

6 A Town of Portsmouth.

7 Q That's Portsmouth, Rhode Island?

8 A Yes.

9 Q Andhowlongdid youhavethatposition?

10 A Ten years.11 Q What years?

12 A I'm going to say'89 to about'98/'99.

13 Q Where did you reside at that time?

14 A Portsmouth, Rhode Island; 30 Oakdale Avenue.

15 Q Noq you alsostated thatyou hadbeen involved in

16 some kind ofbusiness; is that correct?

17 A Yes.

l8 Q Did you have your own business?

19 A Was it my own?

20 Q Yes.

21 A Idon't -

22 Q Well, did you own a business?

23 A We put - my friend and I put money together to

24 develop property.

- | l4 -

tl3

NOTES


I)anvers. Massachusetts 01923Phone: (978)

777-5802 FAX: (978) 777-5803



LANDING vS BORDEN LIGHT #254067 Vor,. luB/r01 Q Okay.

2 A (Indiscemible.)

3 Q What type of business was it, exactly?

4 A It was land development.

5 Q And what do you mean by that?

6 A It means thatweboughtarawpiece ofland, divide<i

7 it up, and made house lots out of it and sold 'it.

8 Q And for how long did you do that?

9 A A couple ofyears, maybetwo

-

10 Q Howmany -

I I A Till the house lots were gone. I don't - you know,

12 maybe a year-and-a-ha1f, maybe -

13 Q Howmanyhouse lots didyoudevelop?

14 A Fourteen,Ithink; twelveorfourteen.

15 Q Did you buy a rawpiece of land and go through the

16 approval process and -

17 A Yes; we did.

18 Q - createthefourteenlots?

19 A Yes.

20 Q And in thecourse of doing that, you had to layouta

2l road, for example?

22 A No.

23 Q No? How did you subdivide the propsrty?

24 A We looked for a piece of property that was bounded on

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three sides. That was one of the - that Joe wanted,

was looking for, so you wouldn't have to play with

the roads.

So, it was all street fiontage lots -

Yes.

- you might call?

And then, you had the lots created, cut out

ofthe larger piece, and you ended up with about 14

lots?

I believe so. It could be twelve. I'm not - twelveor fourteen.

But in the course ofdoing that, you would have hired

a surveyor, for example?

Yes; we did.

And who did you hire? Do you recall?

I think it was Kamal (phonetic). I don't remember

his last name.

And in the course ofdeveloping those fourteen lots,

did you have an occasion to hire an attorney to

advise you on subdivision control or zoning matters?

Yes.

So, you recognized the need for some professional

advice in the course of developing that propeffy;

colTect?

-il6-

I A Yes;Idid.

2 Q Now, you're testifying here this moming that when

3 you moved into The t-anding in 2001 - is that

4 correct?

5 A Yes.

6Q -that-7 A November.

8 Q - you did not lnow anything about the litigation

9 that had been pending in this court; is that correct?10 A I found out after.

11 Q When did you become -

12 Were you, at some point, chairman of the

13 board ofmanagers?

14 A 2008/9. Two thousand and nine.

15 Q Were you on the board before that?

16 A I was on there in 2005.

17 Q So, you found outatsomepointthat therewas

18 pending litigation?

19 A Yes;in2009.

20 Q Well, in 2009? That was the fi$t time you leamed

2l about this case?

22 A T1,e [and - I mean, the injunction? You're mixing

23 everything up to me. I don't understand what you're

24 trying to tell me. Please help me.

- tt'7 -

1 Q The question is very simple.

2 When did you first leam about this case?

3 A When Matt told me that there was an iniunction in

4 place.

5 Q So, it's your testimony that prior to your

6 conversation with Attomey Watsky, you were unaware

7 ofthis litigation?

8 A Not with the injunction; no. I knew that there was

9 - that we had lost the case in regards to the

10 boundary lines and all ofthat, and that's why we

1 i signed that agreement with you in 2006.

i 2 Q So, your testimony is that before learning about or

13 before your conversation with Attomey Watsky, that

14 you thought the case was over?

15 A Because ofthat documentthatwe signed withyou.

16 Q And you were represented during those negotiations

l7 with a law firm in Braintree: is that correct?

18 A (Noverbalresponse.)

19 Q Do you remember the name of the law firm of Marcus,

20 Brrico, Emmer & Brooks?

21 A Something like that; yes.

22 Q So, you were advised by counsel throughout that

23proceeding?

24 A Yes.

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LANDING VS BORDEN LIGHT #2s4067 VoL. 1 1/8/1 0

I Q And it resulted in a document that was an agreement

2 between the parties; is that correct?

3 A I believe so. Yes; absolutely.

4 MR. BRENNAN: May I approach the witness,

5 Your Honor?

6 THECOURT: Yes;youmay.

7 THE WITNESS: I signed it, also. Ibelieve

8 I signed it; right?

9Q

fd like to ask you if you would take a moment and

.10 look at a document.

11 A (Witness reviewing document.) It look like the one.

12 Q Would you identify that documenl please, for the

13 court?

14 A This was the document that we signed not objecting to

15 the high riser on the north and ofthe building.

16 Q And what's it entitled?

17 A "Settlement."

18 Q And how many pages is it?

19 (Witness reviewing document.)

20 MR. SEIGENBERG: Objection, Your Honor. At

21 this point in time, I don't have any problems with

22 counsel going into this except for the - obviously,

23 settlement agreements in and of themselves are not24 admissible. I understand it's not being offered. To

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I the extent the court understands and there's a ruling

2 made that it's not offered for the huth of the

3 matterandjustforstateofmind,lhaveno -

4 THE COURT: The fact that it was done.

5 MR. SEIGENBERG: Thank vou. Your Honor. I

6 appreciate it.

7 A Nine pages.

8 Q Would you turn to page 6, please? Paragraph 10?

9 A Yeah. Yes; sorry.

I 0 Q l,ooking at that paragraph, does that refresh your1l memory as to when you may have first known about the

12 pending litigation?

13 A This paragraph, the way it was explained to me was,

14 it had to do with establishing definitive boundary

15 lines between us and the marina and the fence and all

16 that. Ididn'tknowanythingaboutdrainage.

17 Q Wel1, I'm asking about your knowledge of this case.

18 Wouldn't it be fair to say -

19 You've testified thatyou signed that

20 document, and the document is dated -

21 A, ldon'tdenythat.

22 Q - March 22nd of2006?

23 A Yeah.

24 Q So, do you recall how long it took to put this

-t20-

1 agreement together?

2A No.

3 Q Months?

4 A You guys were back and forth on this.

5 Q Months? Would it be -6 A Yeah. It was --

7 Q -- fair to say it was several months?

8 And you were represented by counsel;

9correct?

10 A Yeah.

I 1 Q And you sigaed that document?


13 Q And isnt it fair to say that document references the

14 litigation?

15 A No.

16 Q It doesn't?

17 A Not the way I look at it.

18 Q Well -

19 A Well, you're asking me, so I'm telling you it doesn't

20 look at it like that. To me, it doesn't say anlthing

2l about the easements and the drainage. It's not in

22 there. What this says to me - when this was given

23 to me, it referred to the boundary lines, the fence,

24 theencroachmentoftheproperty. That'swhatl1tl

I signed. That's what I interpreted this as.

2 Q Paragraph 4,page2; what is that entitled? Just

3 whatthatparagraph caption is.

4 A ktter of support.

5 Q I'm sorry.

6 A Letterofsupport?

7 Q No;paragraph 4 onpageZ.

8 A Paragraph 4?

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

l0 THEWITNESS: Ithink- I'msorry. I -11 Q Onpage2 -

12 A I'm on page 2. What number?

13 Q Paragraph4.

14 A Four? Retainingwall?

15 Q Conect.

16 So, this agreement addressed a retaining

l7 wall; is that conect?

18 A Yes. lmreadingitnow.

19 Q Page4,paragraphB. Ishould saypamgraph 68 on

20 page 4; what is that captioned?

21 A Henevergotthepermit,though.

22 Q We're talking atrout what you knew at the time just

23 the state of mind.

24 What is that captioned? Not what it reads,

-t22-NOTES



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



LANDING VS BORDEN LIGHT #254067 Vor,.I tU8n01 just what's it captioned? What's the name of that

2 paragraph'!

3 A "New retaining walls."

4 Q And the paragraph above that -

5 A "Retainingwall construction."

6 Q So, this agreement addressed new retaining walls and

7 retaining wall construction -'8 A Right.

9 Q - in2006?10 A Yes. Butyou leftoutthepartthatwe didn'tknow

1l MR. BRENNAN: There's no question before

12 the witness.

13 THEWITNESS: I'msorry.

14 MR. BRENNAN: Your Honor, at this poin! I

15 would offer the settlement agreement as the next

16 exhibit, as evidence ofThe Landing at South Park's

17 state ofmind; not as an enforceable contract but ofi 8 their state of mind before and after certain wall

19 construction took place by Borden Light Marina. I'm

20 not offering it as an enforceable contract, but this

21 is clear and convincing evidence that The landing at

22 SouthParkboardofmanagers -

23 MR. SEIGENBERG: No objection.

24 MR. BRENNAN: - was absolutely

,123 -

I MR. SEIGENBERG: I don't think --

2 ,n'dR. BRENNAN: - absolutely understood -

3 THE COURT: No objection.

4 MR. BRENNAN: - what the state of mind -

5 MR. SEIGENBERG: No objection.

6 THE COURT: We have no objection, so

7 it's -

8 MR.BRENNAN: I'msorry. Ithoughthewas

9 intemrpting me with an objection.

10 MR. SEIGENBERG: I was trying to say okay.1l THE COURT: Do you want to mark this

12 exhibit, and we'll take a five-minute break here?

13 THECOURTREPORTER: Okay.

14 MR. SEIGENBERG: It would be 39.

15 MR. BRENNAN: Is this 39?

16 MR. SEIGENBERG: Yes.

l7 THECOURTREPORTER: Yes.

18 MR. BRENNAN: The witness has one, and I19 have one here.

20 THE COURT REPORTER: The witness has one?

21 THE WITNESS: I've got one of this.

22 MR. SEIGENBERG: - take a five-minute

23 break.


124 -

I evidence; Settlement)

2 THE COURT: Is there a second copy of that

3 or -dowehaveasecondcopyofthatagrc€ment?

4 MR. SEIGENBERG: Your Honor, he can use

5 mine.

6 MR. BRENNAN: Yes. Both have been marked

7 The stenographer has one, the witness has one -

8 THECOURT: So,when -

9 MR. BRENNAN: I haven't got one for the10 bench, though, Your Honor.

11 THE COURT: All right. Thank you. So, sit

12 and relax for a few minutes.

13 (Briefbreak taken.)

14 Q Mr. Bouffard, a document has been marked as exhibit

15 number38,whichis -Idon'tknowifyoustillhave16 acopyofthatwithyou. Ithinkyoudorightthere.

17 A Yes.

18 Q That's aletterfrom The l-anding at South Parkto

19 Borden Light Marina; correct?

20 A Correct.

21 Q And in thatletter,you'rethankingthemfor

22 increasing the height ofthe wall between the marina

23 and The l-anding; is that correct?

24 A That's correct.

t25 -

I Q And that work was done in 2008, close in time to the

2 lettet2

3 A That was - yes. It was actually started prior to

4 that,butaround- weli,l'llaccept- yeah;around

5 there.

6 Q And the board ofmanagers, at thatpoint, was

7 complimenting the marina on the quality of the work?

8 A Theydid a goodjobon thatpart.

9 Q Now, you testified a bit on direct examination about

10 theworkthatwasdoneontheentrancetothe -lll11 call it the south entrance to the marina; is that

12 correct?

13 A Yes.

14 Q And is it your testimony that the board of managers

15 was somehow dissatisfied with the work that was done

t6 by Borden Light Marina on that access on the south

I7 end?

18 A Idon'tknowwhatyou meanby - Idon'tknowwhat

19 you're trying to ask me.

20 Q let me try to be more clear.

2l When the work was done by Borden Light

22 Marina in the south end, would it be fair to say they

23improved the access road at the

south end ofthe24 marina property?

-t26-

6.r.&,


I)anvers, Massachusetts 01923

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



LANDING vs BORDEN LIGHT #254067 Vor,. tU8/10I A Yes.

2 Q And that south end shares a common property line with3 The [anding at South Park all the way to that area;

4 is that correct?

5 A Ibelieveso.

6 Q And areyouawareofcertainaccess easements that

7 exist down on the south end?

8 A Yes. There are five of them.

9 Q And isn't it true that you had or the board of10 managers had Mount Hope Engineering survey those

I I access easements?

12 A Yes. Mike paid half the cost.

13 Q And the access easementsrun to thebenefitofboth

14 Borden Light Marina and The tanding at South park; is

15 that corfect?

16 A No.

17 Q Itdoesn't?

l8 Is it your understanding that the access

19 easement that goes across the afea that you refer to

20 as guest parking -- is it your understanding that

2l Borden Light Marina has no right to use that access

22 easement?

23 A No.24 Q What is your understanding of that access easement?

I A Pass-through. They can have the right to go back and

2 forth from their property to our property.

3 Q That's what I meant by use it.

4 A I'm sorry.

5 Q I don't mean permanent. I mean for access purposes.

6 A Ijustdidn'tunderstandwhatyouwere -

7 Q And it's true that the area that they have the right8 to use for access purposes coincides with a portion

9 ofyour guest parking lot; is that correct?

10 A I'mnotsure. Ican'tanswerthatquestion. There'sI I five of them that are in place. That's my problem.

12 Q Now, in March of 2009, did the board of managers

i 3 thank the marina for the work they did on the south

14 end ofthe access road?


16 Q Did they issue any statement onbehalfof The

17 l-anding?

18 A No.

l9 MR BRENNAN: May I approach, your Honor?

Z0 THECOURT: Yes;youmay.

2l Q If you would take a minute and read what I'll check

22 offjust so it will make it easier?

23 Mr. Bouffard, have you had a chance to look

24 at that document?

1ANo.2 Q Would you?

3 A I'm sorry. I thought you said previously. This is

4 the first time I've seen. That,s why -

5 Q You've never seen that before?

6A No.

7 Q Well, take a moment and, if you would, read the

8 paragraph entitled "Marina Road.,,

9 A(Witness

reviewing document.) I remember we did10 discuss it.

1 I Q Does that document refresh your memory about The

12 l-anding at South Park's position on the work that was

13 done Lry the marina at the south access?

14 A Yes.

15 Q Would itbe fairto saythat The l-andingatSouth

16 Park was pleased with that work?

17 A Yes.

18 Q And could youread, if you would, thatparagraph

19 entitled "Marina Road"? Would you read that out

20 loud, please?

21 A Right. It was on their property.

22 Q No. Would you read the paragraph out loud, please?

23 Ifyou could read it out loud, please?

24 A (Reading.) "The marina has constructed an egress

-129_

I road before you enter The landing. The road is on

2 marina properf and is essential for fire and safety

3 reasons. Themarinadidnottakealloftheland

4 it's entitled to, and we would like to thank the

5 marina for its p'lanning."

6 MR. BRENNAN: Your Honor, may I offer that

7 as exhibit 39, I believe?

8 THE COTIRT: Yes; you may.

9 MR. SEIGENBERG: No obiection.

10 Thirty-nine?11 THECOURTREPORTER: Forty.

12 MR. SEIGENBERG: We already have a 39.

13 THE COURT REPORTER: That's 40.

14 THE COURT: This is 40, I believe.

15 MR. BRENNAN: Forty?


17 evidence; [€tter ftom The

18 landing at South Park to Borden

19 Light Marina, dated March 2009)

20 Q Now, Mr. Bouffard, you testified on direct

21 examination that you were concemed with the manner

22 in which Borden Light Marina was storing vessels anrl

23whether a fire

truck could get through there; is that24 correct?

130 -28

NOTES



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



LANDING VS BORDEN LIGHT #254067 VoL. 11t8n0I A Yes.

2 Q And are you aware that, in fact, the fire chiefhas

3 approved the layout of the boat storage?

4 MR. SEIGENBERG: Objection, Your Honor.

5 Withdrawn to the extent he only asked for his

6 understanding, Your Honor. I don't know if it's true

7 ornot -

8 THE COURT: Only as to his understanding,

9 not as to conversations.

10 A I don'tthink Ican answerthatin a "yes" or "no."

I I I have to expand on it. I'rn not sure.

12 Q Well, first -

13 A Youknow, Idon'tunderstand whatkind of answer

14 you're trying to get.

15 Q Thetruth.

16 A Okay.

17 Q That's all.

18 A I received a letter from - can I say I received a

19 letter from ChiefFord?

20 Q lwon'tobject.

2l A Okay. I received a letter ffom ChiefFord, and in

22 that letter, he lold me -

23 MR. SEIGENBERG: Your Honor, I don't think24 we want to go into hearsay documents like this.

-131-

1

2

3

o

7

8

9

l0

t4

15

16

II

l8

19

20

2l

22

L)

24

a

a

THE COURT: Right.

MR. SEIGENBERG: Thank you, Your Honor.

Now, Mr. Bouffard, you testified that when you wanted

to find out about the litigation, you went right to

John Lund and/or Michael Lund. is that corr€ct. and

asked John Lund about that?

Yes. Well, yes. I wanted to know what was going on.

And again, do you recall when that convercation took

place?

I'm going to say sometime in the spring of 2002.So, about a year after you moved in?

Six months to - yeah.

And when did you first - what caused you to go see

Mr. Lund? How did you leam about the litigation,

find out about it?

I was - frompeople at The tanding. You know, there

was a lot of hearsay, a lot of different stories

going back and forth, and I wanted to get it from

John, from the horse's mouth, what the hell was going

on.

Are you lamiliar with a person by the name of Jackie

Doire?

Dore.

Doire? D-O-I-R-E; is that correct?

132 -

1 A No. D-O-R-E, I believe. It's something like -

2 that's close -

3 Q Do you know who Jackie Doire is?

4 A Yes.

5 Q Who is she?

6 A She's the pastchairman of theboard ofdirectors of

7 The Ianding.

8 Q Does she still reside at The landing?

9,A' No.l0 Q Was she the chairman of the board of managers when

l1 you first moved into The t-anding?

12 A Idon'tthinkso. Ithinkshewastherethelast

13 year. I'mnotsure.

14 Q Did you -notwhatthe conversations werebutyes or

15 no; did you ever speak with her about the litigation?

16 A Idon'tthinkso. I'mnotsure.

17 Q Areyouaware -

18 A Maybe.

19 Q I'msorry.

20 A I'm not sure.

2 1 Q Are you aware of any conversations or communications

22 that took place between her, Jackie Doire, as

23 chairmanoftheboardofmanasers -

24 A No.

t33 -

1 Q - and John Lund?

2A No.

3 Q Have you ever seen any such writlen communications

4 between the two in October of 2002?

5A No.

6 Q In preparation for this trial and your testimony here

7 today, you have not reviewed any documents between

8 Jackie Doire and John l-und in 2002?

9 A No. All I was told is that there was a document.

10 That's it. I had never read the document.l l Q So, can you recall who it is that first mentioned

12 this litigation to you that caused you to go have a

13 conversation with Mr. Lund?

14 A Blanche Thibeau (phonetic).

15 Q Was she a manager?

16 A Yes.

17 Q So, did you ask her if you could look at any of The

18 fanding's files?

19 A No.

20 Q Did you askherwhatherunderstanding - notwhat it

21 was, but did you ask her what her understanding o1'

22 the litigation was?

23A

I don't understand your question.

24 Q You were a harbormaster for - assistant or

- lJ4 -

::

a:4

a

A

a

a

a

NOTES



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



LANDING VS BORDEN LIGHT #2s4067 Vor,. ru8/roI harbormaster?

2 A Assistant.

3 Q Assistant harbormaster in portsmouth for mavbe ten

4 years?

5 A Yeah; approximately. It could have been eight.

6 Q What were your duties as harbormaster?

7 A Iwas in chargeofthepaperworkinregards to

8 mooring and placement of it, and I was to go out and

9 patrol with a police officer.

10 Q And in thecourse ofyourduties as assistant

I I harbormaster in Portsmouth, did you have any

12 occasions to take boats out into Mount Hope Bay and

13 up the Taunton River?

14 A I had my own personal boat; yes.

15 Q So, you were familiar with the area?

16 A Yes-

17 Q So, isn't itfairto saythatthere aremarinas in

18 Somerset? Is there a marina in Somerset?

19 A Up and down the nver.

20 Q Swansea?

2l A Twothatlknowof.

22 Q And then, there's O'Connell's? Where is O,Connell's

23 Marina?

24 A That's probably the furthest in. That's like on the

-13s-

I north end, right next to Ark Bait.

2 Q And where is Brewer's? Is that in Portsmouth?

3 A Which one?

4 Q Brewer's North.

5 A Yes.

6 Q Two hundred slips?

7 A There's Brewer's North and South. I don,t know - I

8 couldn't tell you which one has which.

9 Q So, there's anotherone. There's Brewer,s South. as

10 well; is that correct?11 MR. SEIGENBERG: Objection. Relevance,

12 YourHonor. Itdoesseemabitfarafield.

13 MR. BRENNAN: Your Honor, Im going to tie

14 all ofthis in to this gentleman who purchased a

15 condooverlookingamarina. Iwanttoestablishhis

16 knowledgeofwhatmarinasare,whattheydo -

17 THE COURT: Why is that relevant?

18 MR. BRENNAN: Because he testified on

19 direct examination that he bought this condominium

20 that overlooked the bay.

2l THE COURT: This has nothing to do with his

22 concems or his view. This has to do with a lawsuit

23 brought on behalfofthe condominium associatiqr.

24 MR. BRENNAN: Well, that,s rrue, your

-136_

I Honor. Butasamemberoftheboardofmanagersat

2 one point in time, and him testifying on behalfof

3 the board, I think he can testify as to what a

4 typical marina mighr -

5 THE COURT: His understanding -

6 MR. BRENNAN: - arise to or encompass.

7 THE COURT: All right.

8 MR. BRENNAN: So, I stand conected on

9 focusing on him as a unit owner and will emphasize10 hisroleasa -

I I THE COURT: But let's not get, you know,

12 too far.

13 MR.BRENNAN: No. I'malmostdone.

14 Q Is there a Quality Yachts? Quality yachts; is that a

15 boatyard or a marina you're familiar with?

16 A That'sonthe -

17 Q AndEastPassage? EastPassage?

18 A EastPassage.

19 Q So, in your familiarity v/ith aU of these marinas,

Z0 could you describe what functions they serve for boat

Z1 owners or yachtsmen?

22 A T\ey'rc full marine facilities.

23 Q What does that mean, though?

24 A Gas - they have winter storage, and they have summer

_137 -

I storage, and they have in-water storage; they have

2 dry-dockstorage.

3 Q So, would itbe fairto say thatthe storageofboats

4 is a service that marinas provide for its customers?

5 A Yes.

6 Q Noq are you familiar with how boats are stored in

7 the winter?

8 A Absolutely.

9 Q Could you describe for me the tpical method of

10 taking a boat out ofthe water and storing it for the

1l winter outside?

12 A Typical boat is thatyou'll haul it outon your

13 travel 1ift, you'll power-wash the bottom, make sure

14 thatalloftheresidualbottompaint- everything

15 goesintoacontainmentarea. Thenyou,regoingto

16 make sure that it's going to be moved over. Then

17 you're going to send your mechanics over it. Then

18 you're going to possibly use glycol alcohol in the

19 watering system, and then youte going to use gas

20 stabilizer.

21 You'll run your engines, then you'll

22 possiblyuse- ififsanlO(phonetic),youle

23going

to use your muffs on it and pour - make sure24 that the whole block is filled with glycol alcohol.

-138-

.-:=tt:a!a



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



LANDING vs BORDEN LIGHT #254067 Vor,.I rU8,trOI Then, you've got to take your batteries out, or2 you're going to run it first, ofcourse, then you

3 would take your batteries out, put them into storage

4 with a trickle charger. Then you,re going to build,5 usually, a doghouse on it, and you're gomg to

6 shrinkwrap it.

7 Q And after it comes off the travel lift, do they

8 maneuver this boat into someplace usually on the

9 marina property?

10 A Ijust said that, so they can service it.I I Q But how do they physically cause the vessel to stand

12 up on dry land?

13 A Magic; wirh poppets.

14 Q With what?

15 A Poppets.

16 Q What are those?

17 A Poppets.

l8 Q Poppets?

19 A Yeah.

20 THE COURT: Could you spell that?

2l THE WITNESS: p_O-p_p_E-T_T-S[sic].

22 Q Well -

23 THE WITNESS: They're called - they're

24 stanchions. Youcallthemstanchions. Thenautical

-139-

r terrn ls poppets.

2 Q The nautical term is poppets?

3 A Poppets.

4 Q So, a poppet; is that a screw-gpe stanchion that you

5 put on the ground, and you tum the screws until it6 supports to vessel?

7 A Yeah. They're made in Mattapoisett.

8 Q kt's take a sailboat as a typical example. How9 is-

l0 A A sailboat's not a tlpical example.

11 Q lrt's take a sailboat as an examnle.12 A Okay.

13 Q When theboatisput- when thepoppets areused to14 prop up the vessel, what does the keel sit on?

15 A The keel will siton -- depending on the sizeon the

16 keel, you can either put three or four blocks.

17 You're going to put - there,s usually a bouse on it,18 and you're going to put four other ones to stabilize

19 it and chain them together so they don't kick out.20 Q Now,the -bobbetsorpoppets?

2l A Poppets, with a',p.,'

22 Q -poppetsarenot -they,reportable? youjustgo

23 and get one and put it against the boat?

24 A Yes. Depending onthesizboftheboat, theycould- 140-

NOTES

I betwofeettall,theycouldbe 12feettall. It2 depards on the size ofthe boat.

3 Q But they are not affixed to the grormd in any way?

4 When you're done with them, you pick them up and you

5 put themsomewhere?

6 A Yeah. You stack them, hopefully.

7 Q And then, next year, you go and get them and bring8 them back for another boat?

9 A Well, hopefully - yeah; hopefully. you,ve got to

l0 have a boat to put them under, too.

I 1 Q And the blocks that the vessel sits on _ and the -_

12 A Thecribbing.

13 Q - example Iused was thekeel -thosearejustlaid14 on the ground, and the vessel sits down -

15 A No. They'renotjustlaid ontheground.

16 Q What are they?

17 A Youhave tomake sure that theyteplaced correctly

l8 so there's no shifting ofthe keel.

i9 Q So,they'vegottobe level?

20 A Ithastobelevel. Ifthatkeelshifts -

21 Q kvel and stable?

22 A Yeah. They'renotjustputdown.

23 Q Butnotaffixed tothe ground? Theylenotfastened24 to the ground -

-141-

lANo.2 Q - permanently; is that correct?

3 A That's right.

4 Q Now, when you purchased your condominium in 200 1. did5 you personally -

6 MR. BRENNAN: I'm running up the same road.

7 Q When you purchased your condominium _

8 MR. BRENNAN: Strike that, your Honor. If9 I may have a moment, your Honor?

l0 THECOURT: yes.

1 1 (Briefpause.)

12 Q Would it be fair to say, Mr. Bouffard, that since

13 2001, based on your observations as a unit owner and

14 a member of the board of managers, that the marinat5 has gradually grown from a north to a south

16 direction? Is that correct?

17 A Yes.

1 8 Q And has the growth of the marina, as you've observed,

19 inasoutherlydirection- doyouknowifit,sbeen20 constructed the same way that it was constructed on

2l the northerly and?

22 A That's a good question.

23 Q Well, do you know?

24 A No.

t42 -

.:]

KS COURT REPORTINGI4 Palmer Avenue

Danvers, Massachusetts 0I923Phone: (978) 777-5802 FAX: (978) 777-5t03



LANDING vS BORDEN LIGHT #2s4067 Vor,. 1r/8/r01 Q Since you've lived there, and based on your personal

2 observations as a member ofthe board ofmanagers,

3 wou'ld it be fair to say that the marina has developed

4 by excavating berth material and building retaining

5 walls?

6 A Yes.

7 Q And then, thatexcavated area is used fortroat

8 stomge --

9 A Yes.10 Q - and access; is that correct?

11 A Yes.

1 2 Q Is The l:nding at South Park's drainage system right

l3 now malfunctioning in any way?

14 A Idon'tknow.

15 Q Does The landing at South Parkhaveanyerosion

16 issues thatyou'reawareof -

17 A Yes.

l8 Q - onitsproperty?

19 A Yes.

20 Q And wherewouldthatbe?

21 A Buildings 3,4,5 -22 Q And you're saying that -

23 A, - and possibly 7.

24 Q And you're -

-t43-

I A I haven't been able to walk in the last vear because

2 of my crutches.

3 Q And it's your testimony, I believe, that prior to

4 late 2009 and into 2010, that The tanding at South

5 Park tookno action to stop the marina fiombuilding

6 the retaining walls in the manner in which we just

7 described; is that correct?

8 A I'mnotsureofyourdates.

9 Q Well, you said you consulted with an attomey, Jim

10 Donnelly, in December of '09; is that conect?I I A No. It was before then. I believe it was Seotember.

12 I'm not sure.

13 Q So,canwesay -

14 A Itwas -

15 MR.BRENNAN: YourHonor,l'mnotgoingto

16 ask anything about the conversation with Attorney

l'7 Donnelly -

18 MR. SEIGENBERG: My objection is, asked and

19 answered. Healreadywentthroughindirect

20 examination as to the various steps they took

Zl relative to try to deal with the excavation in -

22 THE COURT: He can certainly ask -

23MR. SEIGENBERG:

-2009.

24 THE COURT: He can certainly ask about

1 those steps and confirm what was -

2 A I believe it was -

3 THE COURT: - he answered.

4 MR. SEIGENBERG: Thank you, Your Honor

5 A I believe it was maybe September or October. I'm not

6 - I know it wasn't March or April. I know it was

7 like thebeginning of - like early fall.

8 Q And it would be fair to say, then - early fall; fll

9 give you late summer/early fall of 2009. That wasl0 subsequenttoOctober2nd,2003;correct? Itwas

ll afterthat?

12 A Okay.

13 Q And exhibit number 38 was a communication that the

14 board ofmanagers generated to Borden Light Marina;

15 is that correct?

16 A Yeah,but that wall was 20 feet arilay from our

17 property line, not - it wasn't against my building.

18 That's what I complained about; that -

19 Q Againstyourbuilding?

20 A - it was against - yeah. The wall was right

21 against - I mean, how could they build so close?

22 That was my question, and they couldn't answer me.

23 Q They're close to your unit?

24 A No. I says as close to the building. How could you

_145-

1 - remember, my question was, "How could you get a

2 permit to build so close to the building?" And they

3 couldn't answer me, and that's why I went to the

4 building inspector.

5 Q And when they were build'ing that wall in the vicinity

6 ofyourbuilding,youdidn'tstopthem -

7A No.

8 Q - correct?

9 A I didn't know my rights.

10 Q And as far as you know, no other member of the board11 of managers of which you're chairman, were chairman

12 at the time -- no one else took any steps to stop the

13 marina from building the wall?

14 A To thebestofmyknowledge,no.

15 Q When you complained to John Lund about the lights

16 that were shining into your unit, he fixed them;

17 didn't he?

18 A Yes. Threetimes.

19 Q Noq youtestified aboutaconversation thatyou had

20 with Mr. Lund in your unit in November or December

2l Mr. John Lund -

22 A Yes.

23 Q - inyourunitinNovemberor Decemberof2009.24 Do you recall that?

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NOTES



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



LANDING VS BORDEN LIGHT.#254067 Vor,. 11/8/101 A Yes.

2 Q That was the conversation about the lights -

3 A About the lights.

4 Q - isthatconect?

5 And it's your testimony that during the

6 fall of 2009, you had contacted the building

7 department -

8 A Mm-hmm.

9

Q- theDEP -

l0 A Yes.

li Q - the electrical department -

12 A Yes.

13Q -themayor'soffice-

14 A Yes.

15 Q - corporatecounsel -

16 A Yes. Conservationcommittee.

17 Q Conservationcommittee? Anyoneelse?

18 A Thecityangineer.

19 Q Cityengineer? Anyoneelse? So,there's--

20 A The fire chief.

21 Q Fire chiefl We're up to eight.

22 Those are eight municipal departments that

23 you inquired about what was going on at the marina?24 A Yes.

-t47 -

1 Q Yet, your testimony is that John Lund comes to your

2 unit, your condo, and you have a conversation with

3 him, and you only mention the lights; is that

4 correct?

5 A Because that's all that he was there to talk about

6 was the lights.

7 Q Butyou were asked ifyoumentioned anything elseto

8 him about the other permitting issues, and your

9 answer was no?

t0 A(No

verbal response.)I I MR. BRENNAN: I have no further questions,

lZ Your Honor.

13 THECOURT: It's 12:30. Ifwe'regoingto

14 have any further questioning ofthis wiuress, we'll

l5 do it after lunch.

16 MR. BRENNAN: I'm sorry.

17 THE COURT: So, we will take a break until

18 exactly two o'clock, and try and be here on time,

19 please. Andaslsaid,theroomwillbelocked,so

20 --justsoyouteawareofthat. So,ifyouhave

21 anything you need to take with you, take it now.

22 Thank you.

23 MR. SEIGENBERG: Thankyou, YourHonor

24 (tunch break taken.)

-148-

I REDIRECT EXAMINATION

2 (By Mr. Seigenberg):

3 Q - the last one in the book.

4 Do you have it, sir?

5 A Yeah. There's nothing there.

6 THECOURT: Idon'tthinkitwasinthe

7 book, is the problem.

8 THEWITNESS: I'msorry.

9 MR. SEIGENBERG: It's no problem at all.

I 0 Q Sir, before today, had you ever seen that document?

ll A No.

12 Q Now, you were on theboard forhowmanyyears,sir?

13 A Six.

14 Q And that document; is that something that the board

15 puts out?

16 A No. It's usually done as a newsletter -

17 Q Theboard doesn't do it, then?

18 A Theboarddoesnotdo it-

19 Q And had you, as a board member, everseen that

20 document to authorize its transmittal?

2l A No. Not until this moming.

22 Q Now, you were also asked about various marinas in the

23 area.

24 And have you ever seen a marina quite like

-r49-

I Borden Light Marina?

2.A No.

3 Q And why do you say that, sir?

4 A Because it abuts a residential property. Most

5 marinas are out of the way. They're in commercial

6 zones. The marina that Mr. Brennan talked about,

7 theyle in commercial zones. They're isolated. Very

8 few ofthem are in such a heavy residential area.

9 Q And you were also asked about, from your experience,

10 the storage ofboats during the so-called winterI I season; correct, sir?

12 A Yes.

13 Q And fromyourexperience,sir, whatlocations are

14 utilized for boat storage?

15 A Most of the area boats, most of the storage is done

1 6 offsite or away from people, basically. They're out

17 oftheway. Ispokeaboutacoupleofmarinas.

18 Captain O'Connell's; he's out of the way.

19 Q Now, you were also asked during cross examination

20 atrout - at least I think you testified about

21 shrinku,r'ap on boats; correct?

22 A Yes.

23

QAnd once again, can you describe what a shrinkwrap

24 is?

-150-

I

NOTES:



Phone:(978)

777-5802 FAX:(978)

777-5803



LANDING VS BORDEN LIGHT #2s4067 Vor,.I luBtrO1 A Shrinkwrap is a material that is usually placed on a

2 boat. There's usually a frame thafs constructed,

3 and then the wrap is put over it, and then it's

4 heated. Then when it's heated, it's reduced by maybe

5 - depending on the type you use, anywhere from 60 to

6 70 percent so it makes a structure over the vessel

7 that's being - to winterize.

8 Q And the material that's used for shrinkwrap, is that

9 something thatone can see through?

10 A No. It's usually done - the ones at the marina are

li white.

12 Q White shrinkwrap?

13 A White shrinkwrap.

14 Q That you cannot look through; correct?

15 A Youcannotlookthroughit; no.

16 Q And what impact, if any,does theboats thathave

l7 been stored with shrinkwrap have on the views of18 The tanding?

19 A Itblocksourviews. Fromthe ground level,it

20 blocks them completely. You've lost your view. If2l you're sitting down at your condo, all you see is the

22 big white shrinkwrapped boats.

23 Q Now, during your examination, you were asked a number24 ofquestions about the work that was performed by

-151 -

I Borden Light Marina in 2008 and 2009.

2 As a board member, what was your impression

3 of the work that was performed by Borden Light

4 Marina?

5 A It looked very shoddy. The construction - it looks

6 like a second $ade put it together with the l€go

7 blocks. There were spaces; the wall was not

8 straight; it meandered along; it went up and down.

9 Itjust -itdidn'tlookgood. Aesthefically,it

10 was ugly.11 Q Andwhatabout -

12 A And it looked unsafe.

13 Q And whataboutthelocation,sir?

14 A The location was atthe south end, starting at

15 approximately building 5 and moving down towards

16 building 3, towards the south end.

17 Q And what -

18 A And that is reallyterriblelooking, and itlook19 unsafe.

20 Q When you say it look terrible, what do you mean by

21 that, sir?

22 A Well, there's spaces; there's large spaces in the

23 wall; there's geogrid materials hanging out from the

24 wall. There's- it'snotstraight; it'slumpy

-152-

I looking. Someoftheblocksarekickedout. It2 doesn't look like it would hold up to anything.

3 Q And whatimpacts, ifany, has the excavationofthe

4 bank and the construction ofthe wall thatoccurred

5 in 2008 and 2009 - impact does it have on The

6 tanding?

7 A Well, in my case --


9 A -- especially, and in building

3-

10 MR BRENNAN: Obiection to that. Was he -

11 A lt's noisy.

12 MR. BRENNAN: Was that a question as to

l3 what impact the wall had on The landing property?

14 MR. SEIGENBERG: I thought my question was,

15 what was the impact, ifany, as to the excavation and

16 construction ofthe wall on The l:nding; correct.

17 MR. BRENNAN: I would object. This witness

1 8 does not have any expertise to render an opinion as

19 to the structural integrity of the wall or how it may

20 have impactThe landing property.

2l THE COURT: Well, he can testify as to his

22 understanding as a board member ofwhat effects this

23 has on The landing property. That would tre - not24 his opinion

-153-

I MR. SEIGENBERG: Exactly. Maybe I can -

2 THE COURT: - as an expert.

3 MR. SEIGENBERG: And maybe I can satisfy

4 counsel's concem. I wasn't looking for an expert

5 opinion, just a general view as to the impacts, if6 any, that it might have had. Thank you, Your Honor.

7 MR. BRENNAN: And it should be in the

8 capacity as a member, not as an individual.

9 THE COURT: As a board member. not as an

10 individual unit owner; yes.I I MR. SEIGENBERG: Correct, Your Honor.

12 THE WITNESS: May I answer?

13 MR. SEIGENBERG: Yes.

14 THE WITNESS: Can I answer?

15 MR. SEIGENBERG: Please.

16 A The condition ofthewall is - numberone, by

l7 cutting offthe slope, it's unsafe. Our residents

18 frequently have complained to more than one board

19 member that they can no longer walk the perimeter of20 the property. It's much too steep; it's muddy; it's

2l unsafe, and portions ofthe construction eliminated

22 the fence. People are concerned about slipping and

23 falling down 12 feet onto boats.

24 There's the erosion. You can't walk

-154-

'1$ftf

'n'*n'- ;.:S -:fr*.t;

NOTES


I)anvers, Massachusetts 01 923Phone: (978)

777-5802 FAX: (978) 777-5803



LANDING VS BORDEN LIGHT #2s4067 Vor,. rU8n0i because ofthe mud, I mean, unless, you know, you

2 wear galoshes or whatever you want to wear. And

3 then, by putting the boats right next to the wall,

4 the noise drives you crazy. The halliards are

5 constantly, constantly banging away; you know, bang

6 bang. Andthisisgoingon24/7;youknow?

7 Then, you have the shrinkwrap. The

8 shrinkwrap is going crinkle, crinkle, crinkle. You

9 know, imagine a bag, you know, crinkling and

1 0 uncrinkling, and it's going on constantly. It drives

11 people crazy. It drives me qazy. And then, you

12 have the cars going by. You know, on a Saturday,

13 there's going to be, you know, 100 cars -

14 THE COURT: I think we're talking about

15 construction. I thought we were limiting the -

16 THE WITNESS: I'm sorry, Your Honor.

17 THE COURT: - the question to the impacts

l8 ofthe construction; right?

19 THE WITNESS: Well, the consfuction -

20 MR. SEIGENBERG: Well,not- if Imay -

2l THE WITNESS: - made a road. That's -

22 there was no road there, and the construction made a

23 road. Now, we have a road to deal with.24 MR. SEIGENBERG: Your Honor, I'm going to

-155-

I leave it at that. Thank you.

2 THECOURT: Moveon;yes.

3 MR. SEIGENBERG: No further questions.

4 RECROSS EXAMINATION

5 (By Mr- Brennan):

6 Q Mr. Bouffard, you have no ffaining or expertise as a

7 structural engineer; is that correct?

8 A That's correct.

9 Q So, your testimony as to your observation of the wall

10 is what you see when you look at it;correct?l1 A Absolutely.

12 Q And you can't see the wall from The tanding property;

13 correct?

14 A No..15

Q You'd have to go down to the marina property, tum

16 around, and look at the wall?

17 A (lndiscernible.)

18 Q You can see thewall face fromyourproperty?

19 A Not thewall face, but you can see the wall from the

20 property.

21 Q The top of the wall?

22 A Yes.

23 Q The top course?

24 A Top course.

-156-

I Q That's it? Otherwise, you'd have to go on The

2 Landing [sic] property to see the rest ofthe wall;

3 correct.

4 A No; not on The hnding property.

5 Q I mean, on the marina property?

6 A Yeah.

7 Q Now, you talked a minute ago about there not being

8 any other marinas similar to this and with the

9 proximity to residential and the marina,and thel0 other ones aren't set up that way; is that correct?

I I A For the most part, yes

i2 Q And you arc aware that the marina and The t-anding

13 were developed as part ofa development scheme

14 whereby you would have condos overlooking the marina;

15 is that correct?

16 A Yes.

17Q So-18 A As a selling point.

i9 Q It's a selling point. It's an attraction.

20 So, matter of fact, do you linow if any of2l The l-anding residents keep boats at the marina? Do

22 you know the answer to that question?

23 MR. SEIGENBERG: Objection, Your Honor.

24 Scope.

- t5'7 -

I MR. BRENNAN: Just if he knows.

2 A Idon'tknow.

3 THECOURT: Ifheknows. Justifheknows.

4 Q You don't know?


6 Q So, as you stated, the marina is a selling point for

7 the condominiums; is that correct?

8 A Yes.

9 Q And none ofthe othermarinas thatyoureferenced or

10 referring to have a similar development scheme; is1 I that comect?

12 A The ones that you referenced; yes.

13 Q Do you knowofany others thatmight have

14 condominiums overlooking a marina?

15 A One.

16 Q Which one's that?

17 A Bristol.

18 Q And you're personally familiar with that?

19 A No.

20 Q They store boats there, though; don't they?

21 A No; not to my knowledge. Not on-site.

22 Q Now, you talked a moment ago about people are

23 complaining, residents of The tanding are complainrng

24 that they can't walk along the perimeter any longer;

-158_


Danvers, Massachusefts 0l 923Phone: (978)

777-5802 FAX: (978) 777-5803



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LANDING vS BORDEN LIGHT.#254067 Vor..I.lllSll0is that correct?

Yes.

Now, to your knowledge, other than a small part on

the southerly end of the wall that was constructed in

2008 and 2009, is any ofthe retaining wall built on

The hnding property, or is it built within the

20-foot easement?

Could you rephrase that again, please?

Yes.

Do you know whether or not any ofthe

retaining wall that was built in the year 2008 and

2009 is on The landing property, or is it all within

the 20-foot easement?

It's on The landing proper{y.

Where is it on The t anding property?

The south end.

Is that where the access point was improved by Borden

Light Marina in the summer of 2008?

[€t me see. Improved? Your words; yes.

They did work in 2008 -

They did work.

Okay.

I'll say yes to "they did work."And it's your testimony that some of that retaining

159 -

1 wall they built is on The landing property?

2 A Yes.

3 Q Do you know how many feet?

4A No.

5 Q Other than thatpoint, areyou aware of anyofthe

6 retaining wall being built on The l-anding property?

7 Il{R. SEIGENBERG: Objection to the form,

8 Your Honor. "Property" is a broad terminology.

9 Easement potentially is a property right.

10 MR. BRENNAN: Ifs anon-possessoryright.I 1 An easement is a non-possessory right.

12 MR. SEIGENBERG: I just want to make sure

I 3 the record's clear that -

14 THE COURT: Why don't you just - just

15 clarify for the record exactly what you're referring

16 to.

17 Q Mr. Bouffard, other than the wall at the southem

1 8 access point that you just mentioned, are you aware

19 of any of the retaining wall that was built by the

20 marina being across the property line and onto

2l property owned by The t-anding at South Park?

22 A No.

23

QAnd you are aware, are you not, that the easement

24 that we're talking about here and that you're seeking

-160-

I to enforce the rights on behalfofThe tanding at

2 South Park is a sloped easement, and it says that in

3 the document itself; does itnot?

4 A Yes.

5 Q And it doesn't set a limitation on the slope; is that

6 correct?

7 A I don'l know. I'm not an engineer.

8 MR. SEIGENBERG: Obiection.

9 QWell, you can

read-

l0 THECOURT: Yes. Imean -

11 MR. SEIGENBERG: This is far beyond.

12 MR. BRENNAN: I don't know

13 THE COURT: - he doesn't understand.

14 MR. SEIGENBERG: And Your Honor, this is

15 recross examination. I didn'tbring up anyofthese

16 areasonredirect. So,itshouldn'tbetrroughtup

17 now.

l8 MR. BRENNAN: But this witness testified

l9 they were complaining they couldn't walk around the

20 perimeter, and my point is that that easement, the

21 nonexclusive easement doesn't give them the right to

22 walk on the property. So, if they're complaining

23 they can't walk on the easement, they don't have the

24 right to walk on it anyways. It's the drainage storm

-161-

I protection slope.

2 THE COURT: I've gotten that point. So, I

3 think we can continue. Yes; I think that came

4 across.

5 MR. BRENNAN: No further ouestions. Your

6 Honor.

7 THE COURT: I think we're -

8 MR. SEIGENBERG: The next witness is going

9 to be Don lrffort, but I don't see my co-counsel,

l0 who's going to be doing the -I 1 Sir, you can step down.

12 THE WITNESS: Am I done? Thank you.

13 (Witness stepped down.)

14 MR.WATSKY: Mynextwitness,YourHonor-

15 with the court's permission, we'll call Don l,effort.

16 THE COURT: You may be seated.

17 MR. WATSKY: Good afternoon. Mr. Irffort.18 * * * * * * * * * * * * * *

19 DONALDN. LEFFORT

20 *************x

21 (Witness sworn.)

22 DIRECT EXAMINATION

23(By Mr. Watsky):

24 Q Could you please state your full name for the record?

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



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LANDING vs BORDEN LIGHT.#254067 Vol.I lu8n0Donald N. kffort.And what's your home address and business address,

sir?

My home address is 51 Jordan Road, Franklin,

Massachusetts. My business address is 55 John Clark

Road, Middletown. Rhode Island.

What's the name of the business that vou're

affiliated with?

Northeast Engineers and Consultants.

MR. WATSKY: Make sure - wait until after

I've finished my question so that we can all hear

your answer clearly.

How long have you been employed at Northeast

Engineers?

I've been employed over five years.

And could you please tell me your educational

backgrormd, sir?

I got a bachelors of science in engineering from

Union College in i 981 .

And do you have any degrees beyond that?

Yes. I got a degree in civil engineering cum laude

from Union College.

Do you have any certifications or licenses?

Yes. I have a license in the State of Massachusetts.

163 -

I Connecticut, Rhode Island, Pennsylvania.

2 Q What licenses do you hold?

3 A These are engineering licenses. ln Massachusetts, I

4 have a structural engineering license.

5 Q So, in order to have a structural engineering license

6 in Massachusetts, is that a separate category from

7 just a general professional engineering license?

8 A Yes. In Massachusetts, it's discipline related

9 certifications and licensing.

10 Q Howdoesonegetthat?1 1 A You need to take an exam after you've practiced under

12 a professional engineer for four to five years.

13 Q Howlong have you been in practice as an engineer?

14 A Since l98l to today.

i5 Q Can you tell us; where were you employed following

16 school?

l? A Myfirstemploymentwas with Stone& Websterin

18 Boston, and then after that worked with Anderson

19 Engineering ' Anderson Structural Engineers,

20 Marshfield, Massachusetts.

21 Q Whatyearswereeachof -

22 A I'm sorry. For Stone & Webster, it was 1981 to 1984,

23 and with Anderson Shuctural Engineering, it was from

24 1984 to 1990.

-164-

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And what was next?

Ashford Associates from - I'm sorry. Worked with a

developer, Volta Oil Company, from l99l to 1994, and

then from 1994 to 2000, I worked with Ashford

Associates Engineers and Architects. After that,

worked with - for Tectonic Engineering from 2000 to

2005, and then presently working at Northeast

Engineers from 2005 to the present date.

Now,do

youhave

aparticular specialty?

Structural engineering would be my specialty.

Have you done work before in coastal areas?

Yes: I have.

Tell me what kinds of issues that you would typically

deal with in coastal areas-

Most coastal work that I'm involved in is designing

bulkheads, sea walls, retaining walls that are

subject to forces from the wave forces, flood forces,

that associate rvith strucfures along a shoreline.

And have you also designed buildings?

Yes. Multiple-type buildings - schools, libraries,

commercial retail, high-rise, and even bridges.

Have you done any - I'll call it continuing

education or training post-graduation in your

specialties?

-165-

I A Yes. I've taken numerous seminars through my career,

2 which is essential to keep yourselfupdate and within

3 the new codes and help your growth.

4 Q Haveyoutaken anyofthoserecently?

5 A I took one recently in Albany. It was on wind loads.

6 It was a twoday seminar discussing different

7 variations ofwind and how they affect buildings,

8 structures -- small structures, large structures.

9 Q Are you amemberofanytrade organization?

10 A I'm a member of the American Society of - American1 I Institute ofSteel Construction.

12 Q Anyothers?

13 A No. That'spresentlyit.

14 Q As arepresentative of a client, have you ever

I 5 testified at any hearing or judicial proceeding as an

16 expert?

17 A Yes.

18 Q Can you give me some examples, please?

19 A Irepresented aclient who had the misfortune of

20 having poorly constructed trusses - it was

2l fabrication erro$ - and represented the purchaser

22 ofthose trusses in determining the forensics or

23doing the forensics

ofwhythe trusses failed.

24 Q And where was thatproceeding?

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NOTES:



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



LAi\DING VS BORDEN LIGHT #2s4067 Vor,. 1 1/8/10I A That was in Providence.

2 Q Was that in a court?

3 A Yes. I'msorry;yes.

4 Q Anyothers?

5 A I've been representing cell phone - the industry in

6 Connecticut in siting council hearings as far as

7 siting new ce11 tower locations.

8 Q And were structural issues integral to youtestimony

9 in those cases?

l0 A Yes. Oneofthe large -oneoftheconcernsforthe

i I public is, you know, the safety ofthe tower and, you

12 krow, assurances that these towers do meet the codes

13 for whatever particular state that they're associate.d

14 in.

15 Q In addition to judicial proceedings, have you also

16 testified orrepresented clients in frontof

17 non-judicial proceedings, such as at municipal boards

18 or in front ofstate agorcies?

19 A Yes. I'vebeen to zoninghearings andplanningboard

20 hearings.

21 Q Could you give us an idea, roughly, ofhowmanyover

22 the last 20-odd years that you've been in practice?

23 A Maybe a dozen or so planning board and zoning

24 hearings. Most of that was when I was working with

-167 -

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ofproperties that had been contaminated by petroleum

products. So, they would find a use that would be

associated with that type of contamination in the

soils, and we would go through the zoning and hearing

procedures.

Can you tell us roughly how many projects you've

worked on where you were designing or reviewing the

design of coastal engineering structures, such as --

you named revetments and walls?Numerically, you know, I would say at least a dozen

type ofprojects that were involved with coastal.

That's your answer?

MR. WATSKY: If the courtpleases, I wish

to present Mr. leffort as an expert witness as a

structural engineer with particular expertise in

coastal engineering.

MR BRENNAN: Your Honor, I do not

challenge his expertise, but I resewe my right to

object on the relevancy of the shuctural integnty

of the wall as we discussed preliminarily and how itrelates to this issue being about whether simply a

wall can be in the 20 feet. So, I would reserve mv

right on relevancy.

-168-

I Q Mr. lrffort, you've treen retained by The tanding; is

2 that correct?

3 A Yes. That's correct.

4 Q What did The l-anding retain you to do?

5 A To do anevaluation oftheexistingretaining wall

6 along the - between The [anding's and Borden Light

7 Marina.

8 Q When you say evaluate it, what kinds of things were

9you considering

or trying to determine?10 A The structural stability of the wall as it was

I I constructed.

12 Q Anythingelse?

13 A Also, there was concems of damages within the units

14 and -

15 MR. BRENNAN: I obiect to that. The

16 expertise -

17 THE COURT: Well, he's only testifying as

18 to what he was asked to do. So. I think that's fine.

19 MR.WATSKY: Ihaven'taskedhimtodrawa

20 conclusion for the court on that yet.

21 THECOURT: Yes.

22 MR. BRENNAN: But knowing Your Honor's

23 ruling on the damages on the negligence action, I

24 would ask my objection be noted.

-169-

I Q Anything else, Mr. Irffort?2 A That's all.

3 Q Anyhing relating to proximity to property lines or

4 buildings?

5 A We measured the retaining wall as it relates to the

6 locations to the comers of the buildings. Our

7 concem, obviously, was the surcharge from the

8 buildings onto the retaining walls.

9 Q We'll get to that, and you'll elaborate on what you

l0 mean by "surcharge" in a bit.I I How did you go about familiarizing yourself

12 with the site?

13 A As far as the retaining wall, we walked the wall from

14 unit 3 all the way to unit 5, took physical

15 measurements of the wa'l'I. how it was constructed.

16 photographed it, made notations on the type of

17 construction. Also, we reviewed the topographic

18 conditions with the change in grade between the high

19 and the low side, as well as the slope behind the

20 wall for the different buildings.

21 Q So, didyouvisititpersonally?

22 A Yes;Idid.

23

QAnd did you reviewplans?

24 A There were no plans given to us at that time. We

-t70-

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NOTES:



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



LANDING vS BORDEN LIGIIT #2s4067 Vor,. IU8trOI were told there were no plans ofthe construction of2 the wall.

3 Q But through the course of your work for The l"anding,

4 have you reviewed plans?

5 A Yes. [:teron,plans weresubmitted as tothe

6 construction of the wall-

7 Q Could you describe for us your best recollection at

8 this time of what you observed in your initial

9inspection ofthe property?

10 A The retaining wall, we would say, was probably built

I I in poor practice. There were numerous gaps between

12 the blocks, and the geogrid, which at the time we -

l3 well. we didn't know the exact embedment into the

14 earth, was hanging off the wall. So, we were

15 concemed that there was less than adequate embedment

16 forthegeogrid. Youcouldseesoilhadalready

17 started to migrate through the wall because ofthe

I 8 large gaps, and the wall, although struchlally not a

19 concern,wasnotstraightasintheplan. Itwas

20 very inconsistent in its planned dimension.

2l Q You used a fewterms here, and I'd like to haveyou

22 clarify them for us.

23 You referred to blocks when you were

24 referring to the wall. What kind of wall111

1 construction is this?

2 A This is what's called a segmental wall construction.

3 It's concrete block. In this particular case, they

4 aretwo-foot-wide- twofootindepth,fourfeetor

5 to eight feet in length, and about two feet in

6 height. They're laid stacked, and in between the

7 stacking in the blocks, there's an elemant of gmgrid

8 that is used to reinforce the - geogrid that's

9 between the blocks that typically are embedded into

10 the earth. The system is what we would call a1l composite system, where the geogrid is a

12 reinforcement ofthe earth, to reinforce the earth

13 mass as well as integrate the mass from the large

14 concrete blocks, which would give it its stability

15 liom being overtumed by the soil pressures that yorr

16 would get from the differential in height from the

17 high side to the lowside.

18 Q What is geogrid?

19 A Geogridis a -it'sa -there's differenttypes out

20 there. The more common type are a polymer. It looks

2l more like a netting. They come in rolls of different

22 dimensions, depending on what you need for embedments

23 and your project; kind oflike a roll ofpaper

24 towels.

r72 -

1 Q You referred to geogrid as a polymer. What type of2 material is that, for those of us who don't know?

3 A Plastic, I guess, would be the best definition.

4 Q And describe again, how would one go about installing

5 this geogrid material in the ideal situation where a

6 segmortal wall is being started from scratch? So,

7 you'vegotthefirstlayerofblocks. Howwouldone

8 go about doing that?

9 A The firstprocess

would be to put down a stone bedl0 for the block to sit on, and the first blocks are

1 1 usually embedded a foot or two feet into the low

12 gade side of where the retaining wall will be going.

13 And then, at that point, the first set ofblocks had

14 laid, and geogrid is typically laid between the

15 blocks, and it would be laid outhorizontally.

16 Depending on the height ofthe wall, it dictates how

17 much embedment you would need into the high grade

18 side. The soil is placed in cornpacted lifu ofa

19 foot on top ofthe geogrid until the next layer is

20 rolled out, again horizontally, and thatprocedure

2l continues until you get to the top ofthe wall.

22 Q How many blocks high is this wall?

23 A This wall is - it varies. There is -- down by

24 building 3, we counted - again, they're two feet in_ r'73 -

I height -fiveblocks,five-and-a-halfblocksin

2 spot, but the norm was about four/four-and-a-half

3 blocla for the remaining part of the wall between

4 units 3 all the way to 5.

5 Q I'm sorry. Did you say between buildings 3 and 5, it6 was fiveblocks high?

7 A At building 3, it was five blocks high. It was ten

8 feet, and that was starting near where the access

9 road was. It tapered up to about that height, and

10 then it dropped right after the southern comer ofl1 buiiding 3. About five feet fiom that comer, it12 dropped down to eight feet.

13 Q As I understand it, each time there is a layerora

14 course ofblock, in the tlpical design, there's a

15 layerofthisgeogridthat'slaiddown -

16 A Yes.

17 Q Is that what you're saying?

18 A Yeah; that'scorrect. Fortheseblocks, they'retwo

19 feetinheight. So,standardpracticeisnotto

20 exceed two feetbetween your geogrid. So, you're

21 forced to place it at every layer.

22 Q So, ifyou have a section ofthewall that's got five

23courses

ofblocks,how

many layers ofgeogrid would24 be used?

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LANDING VS BORDEN LIGHT #2s4067 Vor,. tU&/10I A You would expect at least five layers. Or four

2 layers. I'm sorry; four layers.

3 Q One in between each block?

4 A Yes. Thatiscorrect.

5 Q Did you do any testing of the site, the wall, to

6 examine -

7 A Well, yeah. To do our due diligance on the analysis

8 of the wall, we needed to have some parameters of9 what was there, and at the time, there were no plans.

10 So,wehireda -Thelandinghiredanexcavator,and

l1 we did test pits behind the wall to evaluate the qpe

12 of soils, as well as to see if we could determine the

i3 length of the geogrid that is into the embankment on

14 thehighsideoftheretainingwalls. Andinour -

15 this took place in February 26, 2010.

16 Q What did you obsewee

17 A We observed that the geogrid that we measured behind

18 the wall was only, at most, two feet beyond the

19 insidefaceofthewall. So,ifyouweretotakethe

20 wall width plus the amount that we saw of ernbedment

21 into the embankment, it was total width of about four

22 feet- It was less in certain cases because some of

23 the geogdd was actually laid beyond the exterior24 face, the ocean side face ofthe block a couple of

-ll)-

I feet.

2 Q Now, you said total embedment of four feet. So.

3 that's two feet that are actually undemeath blocks

4 ofconcrete, and then two feet into the soilbehind

5 the wall -

6 A That is correct.

7 Q Is that what you're saying?

8 A Two feet, yeah, within the block width and then two

9 feet into the soil.

l0Q

And something that you mentioned abit earlier.

you

1I said that you obsewed that there was soil migrating

12 What did you mean by that?

13 A Therewerelarge gapsbetween theblocks. Theway

14 they laid it up, they hadn't kept a level elevation

15 forthetopfacesoftheblock. So,therewouldbe

16 spots where it would be several inches ofvoid space

17 between the blocks, and you could see from rainwater

18 that seeps down through, it washes out the fine

19 materials. Andyoucouldseethat,actually,there

20 were pockets ofit in between the walls and actually

2l went through the wall.

22 Q So, migration of soil means soil moving from behind

23 the wall to in front of the wall?


_176-

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

2 just trying to restate -

3 THE COURT: Rephrase the question.

4 MR. WATSKY: I can rephrase it.

5 Q Which direction is the soil moving if it,s migrating?

6 A The soil is moving away fiom the buildings, The

7 tanding's side, and going towards the bay, which -

8 Q What's the significance of that?

9A Over time, it could have an impact

or will have ani0 impact as on the buildings because as the soil

l1 mig€tes out, it settles behind the wall, and the

12 settlement of and loss of material could - it will

l3 evortually impact the buildings.

14 Q Now, did you do somecalculations ofyourown to

15 determine, using your expertise and training, the

16 length ofgeogrid that you believe should have been

17 used. at least as a minimum?

18 A Yes. Yes;wedid.

19 Q Whatconclusions did youreachforthose

20 calculations?

2l MR. WATSKY: Yes?

22 THE COURT: I think I understand what

23 you're doing here, but I'm trying to get at the

24 issues in the trial before me, and I think this is

- 11-t -

I going a little bitbeyond that.

2 MR. WATSKY: Allright.

3 THE COURT: Whether the wall was

4 constructed well or poorly is really not the critical

5 issue here. What I want to hear, frankly, is, how

6 does this affect the erosion and drainage rights that

7 The l:nding has, and how and where is this located

8 within the easement, is really the more important -

9 MR. WATSKY: I'll certainly have him tum

10 to where it is in the easement, Your Honor, and I canll bringthewitnesstothis. Butthepoint,ofcourse,

12 is, ifthe wall is not stable, then that affects the

13 abilify of that area within the easement, assuming

14 the wall is in the easement, to serve its required

15 functions under the easement.

16 THECOURT: Imnotsurethewallhasa

17 function under the easement.

18 MR. WATSKY: That's -

19 THE COURT: - the question before us -

20 MR. WATSKY: That is.

2I THE COURT: - wall interferes with the

22 function -

23 MR. WATSKY: I should have phrased that

24 differently. It's a question ofhow is the wall

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LANDING vS BORDEN LIGHT #254067 Vor,. tu8,/r0I adversely affecting, ifit is, the way the easement

2 is functioning.

3 THECOURT: Conect.

4 MR. WATSKY: Yes.

5 THE COURT: kt me put it another way.

6 MR. WATSKY: Yes.

7 THE COURT: How does it adversely affect

8 the ability ofThe landing to use its easement to

9conhol erosion and to service its drainage?

l0 MR. WATSKY: Why don't I pose exactly that

I I question to the witness.

12 MR. BRENNAN: If you use exactly that

13 question, howcan I object to it?

14 MR. WATSKY: I think that was mypoint.

15 THE COURT: I'm just trying to get us out

16 ofhere within -- you know, so we don't have to have

17 a 24-week trial; that's all. I just want to move it18 along -

19 MR. WATSKY: It won't be that long.

20 THE COURT: - to the key elements here:

21 okay?

22 MR. BRENNAN: I agree, Your Honor. My

23 objection is going to come at the opinion level, but

24 I'm fine with this.

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Mr. lrffort, have you formed an opinion about how the

wall as it's present affects the function of the

easement, the 20-foot flood protection and erosion

control easement?

MR. BRENNAN: Objection to the opinion.

That he has one I won't object to it. I will object

to the -

THE COURT: What is your objection?

MR. BRENNAN: This witness has not been

qualified in any way to give an opinion on what theeasement says, what the rights of the respective

parties are, and how this wall would affect the

rights of the parties personally. He can't determine

that. He can say a wall was built, he can say it's

within the 20 feet, but whether or not he can say itinterferes with the rights of The landing in the

nonexclusive easement area versus the rights of the

marina to use that portion of the 20 - I don't think

he's qualified to give that.

He's very qualified as a struchrral

engineer. I don't challenge that. But we're asking

him to give an opinion, a legal conclusion on how

this affects the rights of the parties. I don't

think he can testify as to the rights ofthe parties.

-180-

I THE COURT: Yes. Youte correct. Try

2 again.

3 MR. WATSKY: I can rephrase. That's fine.

4 Q Mr. [-effort, have you formed an opinion the way in

5 which the wall, as constructed, affects the erosion

6 within the easement?

7 A Yes. Our analysis of the existing wall shows that

8 the wall is unstable, and over time, it will fail to

9 stay vertical, which will cause a sudden loss of10 soil, or it could be a gradual loss ofsoil ofThe

l l I-anding's property into the - towards the Mount Hope

12 Bay.

13 Q Haveyou actuallydonemeasurements of thewall to

14 determine whether it's begun moving already?

15 A Yes. We actually - we placed bench markers on the

16 top ofthe wall and monitored it over a course of17 three months, and in one section of the wall, we hac

18 actually noticed a one-inch movement towards the

19 Mount Hope Bay, which we felt was significant over

20 such a small period of three months. Gmnted that

2l there was in that time period large amounts of rain,

22 which adds to satuated soils, which are heavy, but

23 that also gave credence to our conclusion that the

24 wall is unstable.

I Q And over time, what would happen if the wall

2 continued moving like that?

3 MR. BRENNAN: Objection.

4 THE COTIRT: Sustained.

5 Q Do you have an opinion about whether the wall would

6 continue to move? You say you observed it over a

7 three-month time period?

8 A Yes.

9 MR. BRENNAN: Objection.

l0 THE COURT: No. let me hear the answer.

I I A Yes. We are convinced that the wall will be moving

12 over the course oftime, and the degree ofhow fast

13 itmovesisdependentonthesoilproperties. The

14 amounts of moisture that occur within the - behind

15 the wall from grotmdwater or rainwater will make a

16 function of how long it would take for this wall to

17 become actually to a point where ifs unstable and

18 could fall. Soil does - you know, it's a

19 characteristic of - one ofthe characteristics of

20 soil is, it's very slow in developing movement. It's

2l just the characteristics ofsoil.

22 Q Would your conclusions about the way the wall would

23 move also affect flood control?24 A Yes. It would - in the way the wall is constructed,

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LANDING vS BORDEN LIGHT #254067 Vor,. ru8n01 our concems are is the wave force that would be

2 placedontheverticalsurfaceofthatwall. Asa

3 segmental wall, they're individual pieces. It's not

4 a - theyte not - these pieces aren't actually held

5 together as a unit. They're all individual pieces.

6 And under a wave load scenario from hurricane forces,

7 the water level in this area of Fall River is

8 predicted to be up to elevation 22. Still water

9 elevation would be around 18 to 19, which would leave

l0 about three-foot-high waves, which could be very

I I damaging to this type wall. And the waves could

12 break over the wall, too, and cause serious erosion

13 behind it.

14 Q Youhad indicated before thatifleft untended, the

15 wall could continue moving laterally and you said

16 ultimately tip over.

17 What happens to the flood protection

18 banefit The landing has from its easement ifthis

19 wall fails, as you described?

20 A In the event that the wall were to fail, the breaking

21 ofthe waves would be occurring relatively close to

22 the buildings because the original contour was about

23 afwotooneslopefromtheshoreline. Nowthatarea24 has been excavated away, so the wave forces can

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prcpagate much closer to the buildings. And if the

wall's not there to absorb any of the energy, it will

continue to go into the embankment and possibly into

the - damaging the buildings.

You mentioned a moment ago that you did your

measurements for a three-month time period.

Could you first describe how you did those

measurements?

What we did is placed surveyor markers on the top of

the wall lnd then located them relative to corners ofthe buildings and established the first day we were

there as we would call zero movement, the initial

setup. And then, every two weeks, we would go out,

and we would measure those pin locations, again from

the comers of the building, and determine if there

had been any movement, increase in distances between

the pin and the comers of the building, which would

tell us that the wall was moving away from the

building.

And again, what was the conclusion that you reached

at the end of that period?

There was a section of the wall that we indicated

that had moved an inch away from the -

Why did you only measure in this way for three

-184-

I months?

2 A Wel1, after three months, we were convinced that

3 there is some movement. Again, as we pointed out,

4 the soil characteristics are slow in develop.ing. It

5 will take some time to establish how much the wall

6 moves, and after three months, we figured that the

7 intervals ofmeasurements could be increased.

8 Q Did something happen that changed with regard to your

9benchmarks?

10 A Yes. I'm sorry. Our measurements stopped after

I I three months because the markers on top ofthe wall

12 were removed. We couldn't find them any longer. So,

13 wenolongerhadthesamebenchmarks. So,westopped

74 atthatpoint.

15 Q What do you mean the markers were removed?

16 A We couldn't find them. We could no longer locate

17 where they were, although we did see where the holes

18 were in the - where the nails were placed. We did

19 see a couple ofholes, but we no longer had what we

20 felt was a valid point. We would have to start over.

21 Q What did you use as a marker?

22 A We used a surveying nail. It's a - it has a head of

23 about -- probably less than a dime in diameter. It's

24 made out ofstainless steel, and they're driven --

-18s-

I Q Howaretheyset?

2 A I'm sorry?

3 Q How are they set?

4 A They're driven into the concrete.

5 Q Driven like with a -

6 A A hammer.

7 Q - hammer?

8 A Yes.

9 Q Did you have any inclination, anything that you

10 observed to give you an idea ofhow that marker was11 removed?

12 A Well -


14 THE COURT: Sustained.

15 Q Can youtell me; haveyou gone outand done

16 measurements specifically with regard to the location

17 ofthe wall in relation to the property line and the

18 easement?

19 A Yes. Ourofficehas goneoutandmeasured the

20 distances from the buildings to the property line and

2l to the wall.

22 Q Did you prepare aplan?

23A

Yes. Ourofficedid,yes,prepareaplanto indicate24 those such dimensions.

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LANDING vs BORDEN LIGHT #254067 Vol.I ruSnoI MR. WATSKY: May I approach the witness,

2 Your Honor?

3 THECOURT: Yes.

4 MR. BRENNAN: Is that 2 up there? Did vou

5 put 2 up there?

6 MR. WATSKY: Your Honor, may I have this

7 markedjust for identification?

8 THECOURT: Yes.

9 MR. WATSKY: Ill eive it to the witness

l0 and -

t I (Exhibit number 41, marked for

12 identification; plan view of13 site showing wall)

14 Q Mr. lrffort, can you identifu - this is exhibit 41,

15 I believe.

16 A Yes. It's a plan view of the site indicating where

17 the location ofthe retaining wall is relative to the

18 property line, as well as measurements from the

i9 comers ofthe building out to the outside face of20 the retaining wall.

2l Q And howdid you go aboutpreparing this plan?

22 A Oursurveyors wentout and tookmeasurements.

23 Q Was there a base plan that you used for -24 A Yes. We superimposed our information over the survey

-187-

I done by Mount Hope Engineering.

2 Q So, take me through, let's say, starting at around

3 building 3 on the south end, how you went about -

4 THE COURT: Do we have this in evidence

5 yet? Are we -

6 MR. WATSKY: Not yet. I thought you'd want

7 to have it qualified before we have it admitted into

8 evidence.

9 THE COURT: It sounded like you were asking

10 him about what was on the plan. So...l l MR. WATSKY: Understood. Can we have

12 exhibit 41 entered into evidence?

13 MR. BRENNAN: Probably no objection, your

14 Honor. Justalittlemorefoundationabouthowhis

15 firm prepared this. Was it an actual on the $ound16 surveyandpeopleunderhiscontroldidit? Justa

17 bit more -

18 THECOURT: Alinlemore.

19 MR. BRENNAN: - so [m satisfied that it20 was the result ofan on-the-ground survey.

2 I Q Mr. l-effort, could you elaborate further on how this

22 plan was prepared?

23 A Yes. The surveyors from our office were tasked to go

24 out and to locate locations of the comer of the

188 -

I building and to the exterior face ofthe retaining

2 wall, and they did that. And anywhere they could

3 physically make measurements, they physically went

4 out with measuring tapes and GPS equipment.

5 Q Did they do so rmder your direction?

6 A Yes.

7 Q And did you personally go out there, as well?

8 A Yes. During our initial assessment of the wall, we

9went

out and measured. also.I 0 Q Then, once they took the measurements, how were the

1l measurements then reflected on the plan?

12 A Theywere able to drawdimensions and indicate the

13 distances shown on the plan from the comers ofthe

14 building to the outside face.

15 Q And whenwas this done?

16 A ThiswasdonelastThursday.

17 MR. WATSKY: Your Honor, I offer the

18 exhibit.

19 MR. BRENNAN: No objection.

20 THECOURT: Exhibit4l.

2l (Exhibit 41, moved into evidence)

22 Q Mr. Leffort, why don't we start on what we've been

23 referring to as the southem end, yourbuilding 3.

24 THE COURT: Do I have a copy of this? Tha

-189_

lnk2 you

3

4 Q First, for clarification, Mr. Lrffort, could you help

5 us understand which line is which here? Which one is

6 property line and which is wall, as you're looking at

7 the area near building 3?

8 A If you're starting on the building 3 southem comer

9 where the I l-foot dimension is shown right between

l0 top of wall elevations of 24.09 and 24.02, the wallI 1 - is to the wall, and then to the right oftha!12 there's a - we labeled it so you could see that that

13 line is indicating the outside face ofthe retaining

14 wall. Justinsideofthatisthepropertyline,

15 which is givan - there's a distance and an angle of16 that - strike - ofthe property line as a - and

17 that's actually right at building 4. You will see

18 the notation.

19 Q May I just back up a little bit, Mr. l,effort? you

20 sayonthesouthemendofbuilding3. Iseesome

2l numbers. There's a number indicatine l1 feet.

22 That's a dimension?


24 Q What is that a measurement between?

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LANDING VS BORDEN LIGHT #254067 Vor,.I 11/8/10I A That is from the comer of the building to the

2 outside face ofthe retaining wall.

3 Q And again, how wide is the retaining wall -

4 A The retaining wall is two feet.

5 Q Two feet thick?

6 A Right. So, that would leave you with nine feet

7 between the face of the wall and the comer of the

8 building.

9 QNow, are you familiar with the 2O-foot easement

l0 that's applicable - that exists on this property?

11 A Yes.

12 Q And is this wall within the easement?

13 A It would appear that the wall was built within the

14 easement.

15 Q Do you know,sir, whetherthereare sections ofthe

16 wall that actually cross over the property line, as

l7 well?

I 8 A Yes. You notice that building 3 to the - proceeding

19 southward - I'm sorry; that would be to the

20 southwest - that the property line and the face of21 the wall were either on the same line or that,

22 actually, the wall was inside the property line for

23 The Landing.

24 Q kt's move on to the northem end of building 3.

-191-

1 What's the dimension between the closest

2 point ofbuilding 3 and the outside ofthe wall?

3 A Fourteen feet.

4 Q And how is that in relation to the property line?

5 A Thepropertyline is inside ofthatbysix feet, five

6 to six feet.

7 Q So, have you reached a conclusion on whether that

8 section of the wall is within the easement or outside

9 of the eas€ment?

i0 A It was our feeling that it was still within theI I easement.

12 Q Why don't we try to move this a little more quickly.

13 What are the closest points that you see in

14 buildings 4 and buildings 5 ofthe truildings to the

1 5 outside face of the wall?

16 A Eleven foot is what we've measured. and that was also

17 forbuilding 4 and 5.

l8 Q Where are those points?

l9 A Both of them are in the southwest comers of buildins

20 4 and building 5.

21 Q Otherthan the area thatyou'veindicated a little

22 bit earlier where the wali is actually on The l-anding

23 property, is there any location along the property

24 that you've provided us this plan on exhibit 4i where

-192-

I the wall is located seaward ofthe 20-foot-wide flood

2 control easement?

3 A (Witness reviewing exhibit.) No. We didn't - the

4 wall seemed to be within the easement lines between

5 buildings 3 and 5.

6 Q Between building what and what?

7 A Building 3 and building number 5.

8 Q Howaboutbuilding6?

9 AWe

didn'tassess

that area.10 Q From what's shown on the underlying plan prepared by

1 1 Mount Hope Engineering, did you draw conclusions

12 about the location of the wall with -

13 A It would seem from the Mount Hope Engineering plan

14 that they did not correctly indicate where the wall

15 was. We seem to have came up with a discrepancy as

16 far as the location and plan ofwhere the wall is

17 located.

18 MR. WATSKY: Well, I'd like the witness to

19 refertotheexhibitbookasexhibit2l. Doeshe

20 have that available there?

21 Q Did you find that, Mr. trffort?

22 A Yes. I'msorry. Yes.

23 Q Can you identit/ - are you familiar with this plan?

24 A Yes. We have seen this plan.

_193_

1 Q And can you tell us; as shown on this plan, is there

2 any point from the southem boundary up to, let's

3 say, the middle of building 10 where the wall is not

4 inside the 2O-foot-wide easement?

5 A (Witness reviewing exhibit.) I'm sorry, but I don't

6 think I can form an opinion beyond building 5 to 10.

? Q I'm sorry. I couldn't quite hear you, Mr. trffort.

8 A I'mnotfamiliarwith this plan as faras the

9 easement is concemed from buildinss 6 to 10. We

l0 didn't look at that.1l Q You didn't -

12 A We didn't review that.

13 Q I understand, butas a plan sitting in frontofyou,

14 can you tell usjust from'interpreting the plan

l5 whether this plan is showing us -

16 A I'm sorry. Yeah. It would appear that it's

17 within -

18 Q - information?

19 A Yeah. Itwouldappearthat -

20 Q What conclusion would you draw from looking at this

21 plan, assuming Mount Hope Engineering surveyed

22 accurately?

23A

(Witness reviewingexhibit.)

Well,it would appear24 that the wall was constructed within the easement.

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LANDING VS BORDEN LIGHT #254067 Vol.I rU8tr0That entire structure?

For the entire length; yes.

You've referred to differcnt calculations that you

did in order to give yourself some guidance or to

help you reach conclusions. Where did you get those

calculations from?

We formulated those calculations ourselves.

But is there a source that gives you guidance on what

calculations to use?Yeah. We used the Massachusetts building code as one

ofour references as far as determining the types of

loading that you would have to apply to a retaining

wall of this height.

What kinds ofconsiderations do you have to use in

order to determine whether a wall is stable or not?

MR. BRENNAN; Your Honor, this goes to the

previous objections as to the wall placement. The

location of the wall is one thing; how well it was

built is another. And I think it goes to - that

it's irrelevant as to the structural integrity of the

wall as a matter of where the wall

THE COURT: Do you have something to say?

MR. WATSKY: Again, Your Honor, I think itgoes to the question of whether the easement can

-195-

I function for erosion control and flood protection,

2 and the source ofthe guidance that Mr. teffort has

3 used, I think, is important in demonstrating the

4 creditrility ofthe opinion that he reached.

5 THE COURT: Yes. I'll let him testifi/ as

6 to that.

7 Q Mr. kfforl, if you can explain the different

8 criteria that you used?

9 A From the Mass. building code, you apply the soil

10 pressures that are developed due to the abrupt change

I I in grade from the high side to the low side ofa

12 retaining wall. Along with that, you have to

l3 consider flood loading, wave loading ifit's in

14 what's called a velocity zone, which is a flood area

I 5 in which wave heights are three feet or higher.

16 Plus, you have to consider seismic conditions during

17 a seismic event.

18 Q Whatdo you mean bysoilpressure?

19 A Thatis the forces that the - when youmakean

20 abrupt change in grade, the soil has a tendency of2l wanting to move out, and the retaining wall is trying

22 to constrain those type forces.

23 Q And if the wall moves - and you described it moving24 one inch - whathappens to the soil behind itthen?

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1 A Wel1, the soil - once the wall moves, there's a void

2 space behind the wall that has to be filled in by the

3 soil. The soil eventuallywill exceed its share

4 capacity. So, therefore, it will settle into that

5 void space, and it will exert forces again on the

6 wall. And if the wall is still - and being that the

7 wall is unstable, this will continue to propagate

I over time, where the wall would continue to move, the

9 soil behind will - the soil will fill in the void10 space, which does cause settlement in the area behind

I I the wal1 as that soil is being displaced and to fill12 in the voids from the moving wall.

13 Q Wlat do you mean by flood loading?

14 A In an event of a storm, hurricane, the waterlevels

15 in this area will rise up to elevation 22. That's

16 based to storm surges from records developed by FEMA.

17 In this area. because ofthe distance fiom the

18 surface water to the grade level, waves - this could

19 support waves as high as three feet with that storm

20 surge.

2l Q When you say "as high as" -22 You also mentioned that this is a "V" zone?

23 A Yes.

24 Q What is a "V" zone?

-197 -

I A A uV'zone is a flood area in which there is wave

2 loadings- wavesofthreefeetorhigher,depending

3 - and the wave - and determining the calculation of

4 the wave height is dependent on the topographic

5 conditions in that area, the distance from what you

6 would call the surface to the still water elevation.

7 Q So, in the exhibit 21 where we have references to

8 zone VE and there are different elevations -

9 A Yes.

10 Q - you're talking about the wave he'ights?

11 A Yes. Thatwould be the topofthe waveelevation22.

12 Q Thatwouldbe the top of thewave?

13 A That's correct.

14 Q And is three feet the maximum height wave or a

15 minimum? What size wave are we talking about?

16 A It would be -- in this situation, it's about - it's

I7 three feet based on the FEMA maps.

18 Q Youthinkitis aboutthreefeet?

19 A Yeah.

20 Q Not higher?


22 Q Would that depend on the storm event?

23 A Yeah. That is the maximum storm event that - based24 on FEMA's records.

198 -

NOTES:



Phone: (978) 717-5802 FAX: (978) 777-5803



LANDING vS BORDEN LIGHT #2s4067 Vor,. lu8n01 Q And you mentioned seismic loads. What's a seismic

2 load2

3 A During a - well, a seismic event is a disturbance in

4 the tectonic plates in the area, and they generate

5 ground motion. And a retaining wall would certainiy

6 have to maintain the amount of rnass of earth that's

7 behind it, considering that that mass has now been

8 accelerated by the seismic event.

9 Q Now, taking all of those considerations into account,

l0 did you reach an opinion about what length geofabric

I i would be necessary behind the wall or being set into

12 each course of the wall for the wall to be stable?

13 THE COURT: I think we went there already.

14 MR. WATSKY: I'll move on, Your Honor.

15 THE COURT: That objection was sustained

16 earlier. So,doitagain.

17 Q Mr. Irffort, have you formed an opinion on what would

I 8 be the best means ofrestoring the stability of the

l9 20-foot flood protection and erosion control

20 easement?

21 MR. BRENNAN: Obiection to the form of the

22 question.

23 THE COURT: What is your objecrion?24 MR. BRENNAN: To the form of the question.

-i99-

I lt's not to within a reasonable - certain degree of2 certainty with any particular field ofexpertise.

3 THE COURT: Do you want to ask vour

4 question again?

5 Q Mr. Lrffort, on thebasis ofyourexperience and

6 training and to a reasonable degree ofengineering

7 certainly, have you formed an opinion on the best

8 means ofrestoring the stability ofthe flood

9 protection and erosion control easement?

10 MR. BRENNAN:Objection,

yourHonor, to the

I I stability. They havan't proven that it's not stable.

12 So, to restore the stability is something that I

13 believe Your Honor has - the stability issue, I14 believe,hasbeenexcluded. So,torestorethe -

15 THE COURT: Well, the stabiliw of the

16 wall -

17 MR. BRENNAN: Correct.

1 8 THE COURT: The stabiliry of the wall is

19 notinquestion. Thestabilityof -lthinkwhat20 he's talking about - and corect me if I,m wrong -

2I is the stabiliff of the former barrier that was

22 there. or is that -

23 MR. BRENNAN: The question was wall.

24 Q Mr.--200 -

1 THE COURT: Why don,t you do it again.

2 l.{R. WATSKY: I,ll do it again.

3 Q Mr. lrffort, you've indicated that the area behind

4 the wall is soil?

5 A That's correct.

6 Q And you've indicated that that soit is moving

7 laterally or has the potential to move laterally; is

8 that correct?

9 AThat's correct.

I 0 Q So, if that soil is moving laterally, is it stable or

1 l unstable?

12 A It's unstable.

13 Q Again,to areasonabledegreeofengineering

14 certainty on the basis ofyour train.ing, have you

15 formed an opinion ofthe trest means ofrestoring the

l6 stability ofthat soil?

I 7 A Given the restrictions that are on the site. such as

l8 the wall's close proximity to the properly lines of19 The landing, there isn't rnany conventional types of20 reiaining wall systerns that could be used without

2l goingoverthepropertyline. Butoneofthe- a

22 way to rectify the problem would probably to restore

2l the entire site back to its original grades.

24 Q How would one do that?

- 201

I A It could be - it would have to be controlled fill2 mateial, material brought in that would be compacted

3 in one-foot lifts. It would - we protrably would

4 recommend a geogrid or geosyrthetic material placed

5 to help stabilize the embankment untii its natural

6 vegetation can take hold.

7 Q What do you mean by one-foot lifts?

8 A lt's conxnon practice in bringing in fill material to

9 bring it in layers ofanyrvhere from a foot to i8

l0 inches and no greater so that you can compact theI I soil to get it back to its density that it - optimum

12 density so that it won't succumb to settlements or

l3 erosion issues.

14 Q Take us through that sortofstep bystep. you bring

15 in fiIl material --

16 A Yes.

1? Q - in l8-inch depths, and then what?

18 A Well, yeah. You bring in - the fill material would

19 be brought in large containers of, you knoq whatever

20 dump trucks, and it would be spread out. piles of2l this would be spread out in controlled thicknesses,

22 and a compactor - it would be eithervibratory

23 compactor - would be rolled on top of thatmaterial24 to pack it down to its optimum density.

- z\ll -

Kemon

NOTES



777-5802 FAX: (978) 777-5803



LANDING vS BORDEN LIGHT #2s4067 Vor,. rUBtr0I Q And then, you do that, what, in -

2 A And you do that - yeah -

3Q -consecutive-

4 A Yeah.

5 Q - lifts, as you called it?

6 A Yes.

7 Q What is the goal in doing that?

8 A To try to retum the material to its - as dense a

9 form as possible because, you know, once you have

10 excavatedsoil,itbecomesloose. It'snolonger

1 I compacted to its natural compaction. So, you have to

12 try to retum it back to that state.

13 Q Comparethe currentexistingwall orthecurrent

i4 existing sediment, the soils that are being held by

l5 the wall, to the condition that existed before any of

16 the excavation occurred, and then compare that to

17 what you have recommended, what you just testified to

18 aboutdoingitinliftsandrestoringtheslope. Can

19 you compare the three together in terms oftheir

Z0 ability to provide flood protecfion and erosion

21 control?

22 A The original topographic conditions, the slope that

23 was there, one ofthe advantages is, ifthey're in a

24 storm event, a lot ofthe wave energy could be

_203 _

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dissipated up the land that slopes up towards the

buildings. The breaking of the waves may actually

occur further down, closer to Mount Hope Bay than the

buildings.

Unfortunately, with the way the wall's

built presently, the amount of soil that was there

before it's displaced, and the wave can propagate

much closer, and before it breaks - it actually

won't break until it hits the wall. which could be

damaging to the buildings since the buildings, youknow, are only I 3 - an).where from 1 1 to 13 feet away

from the wall.

Can you compare the relative compaction ofthe soils,

what was there nafurally before it excavated and our

current condition and then what you're trying to

achieve ifyoute using the one-foot lifts?

Well, we never had any geotechnica! information on

what was there prior to the wall being built. So, I

couldn't probably assess that comparison.

Assuming that it had not been excavated and was in a

natural repose, could you draw some conclusions?

MR. BRENNAN: Objection, Your Honor.

THE COURT: Sustained.

MR. WATSKY: I'11 move on, Your Honor.

-204 -

1 Q Mr. kffort, r*trat's the goal of bringing in the lifts

2 and compacting it -

3 MR. BRENNAN: Obiection: asked and

4 answered.

5 Q - creatingaslope?

6 A (No vertral response.)

7 Q Mr. lrffort, you stated a bit earlier ago that using

8 standard construction methods that you didn't feel it9 was feasible to stabilize the soils behind the wal'I.

10 Can you describe for us the basis for the conclus'ion?

11 A Yes. The proximity of the property line to the

12 location ofthe wall doesn't give anough space for

13 conventionaltypeofretainingwalls. Theytypically

14 - forasegmentalwallofthisheight,basedonthe

15 loadings that are behind the wall, they would need

l6 anyuvhere from seven to nine feet ofembedment, which

17 would take it over the property line in certain

18 cases, or it would go over the propefty line during

19 construction because ofthe excavation ofthe soil to

20 properly install the geogrid. Or if it's a

21 conventional reinforced concrete retaining wall, the

22 footing would put it - would require that the soil

23 be removed fiom The l-anding using conventional

24 construction practices- 205 -

1 Q So, asanexample, ifonewerereconstructingthis

2 wallandinstallingthegeogrid let'sstartatthe

3 bottom course ofblock.

4 How far back, using standard consfuction

5 methodology, would the slope have to go, and how far

6 would it cross over The landing property? I-et's

7 assume where the wall is sitting. trt's pick a

8 distance. Ten feet from the property line right now.

9 So, whatwould happen?

10 A The geogridorreinforced - we'll say- ifthis1l were staying with the segmental wall, it would go

12 back, like we said, eight to nine feet from the face

i3 ofthe wall, but the excavation would have to be

14 roughly a one on two slope in order to maintain

15 stability during construction, so that the workers

16 are protected.

17 Q So, howfarback would that go ifyou had to excavate

18 to the top ofthe first block?

19 A We did some rough numbers, and we were befween 2?

20 30 feet.

21 Q Again, is there anyplace along this property line

22 fiom the southem property end south ofbuilding 3 up

23 to - is it building 10 with which you're familiar

-24 where there's that distance between the wall and the

- 206

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717-5802 FAX:(978)

777-5803



LAI{DING vs BORDEN LIGHT #254067 Vor,. rU8/r0I Q Whataboutduringconstruction?

2 A And during construction, there would be controlled

3 construction procedures in which the angineer would

4 have to provide onsite services to observe the

5 construction of the wall to make sure it conforms to

6 the plans and specifications that were laid out by

7 the engineer.

8 Q Tell me; as a technical matter, what,s the definition

9 of"slope"?I 0 A It's the relationship between the change .in vertical

I I to - or the change in horizontal and vertical

12 directions. So,ifitwasatwoononeslope,that's

13 referred to as going horizontatly two and going up

14 one. So,ifitwereinfeet,itwouldbeovertwo

15 feet and up one foot would be the grade.

16 Q I-et me ask you two questions together.

17 Ifsomething is horizontal, is it sloped,

l8 and ifit's vertical, is it sloped?

19 A Well, if it's horizontal, it's not sloped, and if20 it's vertical, it's 90 degrees.

21 Q Do you havean opinion on whetherthis wall is

22 sloped?

23 A The wall is vertical; yes.

24 (Briefpause.)

-209 -

I Q One thing I realized I didn't ask you to do - I have

2 your curriculum vitae here, Mr. kffort. I think I3 provided a copy to counsel.

4 MR. WATSKY: And Your Honor, I'd just ask

5 that we have his curriculum vitae marked as an

6 exhibit, and I'll have him identify it.

7 'lHE COURT: Okay.

8 Q Mr. [,effort, you've been handed exhibit 42 -

9 MR. WATSKY: Or he hasn't treen?

10 THE COI"JRT REPORTER: His CV is 35.

11 MR. BRENNAN: It's already been marked,

12 MR. WATSKY: Im sorry. It,s already in

13 there. That's right. Strike that question.

14 Q Mr. hffort, you've been handed exhibit 36?

15 A Yes.

16 Q Canyou identifythatforus,please?

17 A That is my resum6.

18 MR. WATSKY: Your Honor, Irequest this be

19 entered into the record.

20 THE COURT: Any objections?

2l MR. BRENNAN: No, Your Honor. Ifs agreed

22 upon.

23 Q Mr. L,effort, finally, just as a point of24 clarification, could you tell us; what does it mean

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prop€rty line?

No. No. There is none.

Is it feasible to just remove two courses ofblockfrom along the top ofthe wall and then grade from

the property line to the top of the wall without

reinstalling geofabric on the remainder of the wall?

For this particular site, it would not be feasible.

Why not?

Because the back slope, which is the grade behindthewall towards - going from the wall up to the

bui'ldings, in some cases it's already two to one, and

in other spots it's even greater than that. So, in

order to drop down the block a couple of courses, the

grade would have to be much steeper, in some spots

almost one to one pitch, which would be an erosion

rssue. But more imporlantly, it would - I don't

think it would mitigate the stability issue behind

the wall because the back slope pressures are almost

- would still maintain an unstable wall.

What do you mean by the back slope pressures would

maintain an unstable wall?

The grade behind the wall - ifit were flat, there

is no surcharge from the grade behind the wall.However, ifyou staft to pitch or grade the wall -

-201 -

I the grade behind the wall anywhere from 4 degrees to

2 26 degrees or greater, that adds an actual surcharge

3 load to the wall, including the grade change, as

4 well. So, it's a surcharge load that would have to

5 be accounted for.

6 Q So, you're saying that the steepness ofthe slope

7 causes pressure -

8 A Yes.

9 Q - to beplaced againstthe backofthewall?

l0 A Right; exactly.ll Q trt me just jump back to somerhing.

12 Is this wall that's higher than four feet

13 in height, is it a structure subject to regulation

l4 underthe statebuilding code?

15 A Yes. Walls higher than ten feet - four feet; I'm

16 sorry -- yes - are required.

17 Q And is thisawallhigherthanten feet?

18 A No. Well, there is - over by building 3, we did

19 find four-and-a-halfcourses ofblocks. So. that

20 would make it over ten feet: almost 12 feet.

2 I Q Are there special procedures that are necessary under

22 the state building code for walls that are ten feet

23 orhigher?

24 A Itmustbe designed byaprofessionalengineer.

-208-

NOTES



Phone: (978) 777-5802 FAX: (978) 777-5903



LANDING Vs BORDEN LIGHT #254067 VoL. lu8tr0I when we say something is a two to one slope?

2 A The grade - as you go horizontally out two units,

3 you rise one unit in elevation.

4 Q And so, a three to one slope would be -

5 A Would be less ofan angle because you go outthree

6 units and then go up one. So, it would be less ofa7 slope.

8 Q As a slope gets steeper, assuming ifs an

9 unconsolidated soil, what happens to its stability?

10 A It becomes more unstable.

I I MR- WATSKY: I have no further questions.

12 THE COURT: It's 3:30. We're going to go

13 foraboutanother45minutes. Doyouwanttotakea

14 five-minute break, or do you want to continue?

15 MR. BRENNAN: Five minures would be fine.

16 judge.

17 THE COURT: You can step down for five

18 minutes. We'llretum -

19 (Aftemoon break taken.)

20 THE COURT: Mr. Brennan, you've got cross

2l examination?

22 MR. BRENNAN: Thank you, Your Honor.

23 CROSS EXAMINATION24 (By Mr. Brennan):

al r

I technique. I think he's - you already had

2 questioning about whether or not this was - you

3 know, was it as good or was this worse than a sloped

4 area, and I think the question is sort ofthe

5 opposite.

6 MR. WATSKY: Right. But without the

7 benefit of us having the witness explain why this

8 wall wasn't properly constructed -- he's using a

thlpothetical

-10 THE COURT: This doesn't have to do with a

I 1 properly or irnproperly constructed wall. It's

12 assuming a properly constructed wall. Does it serve

13 the same function as a slope, and the opposite

14 question was asked on direct.

15 MR. WATSKY: Right. But how can you make

16 - I appreciate that, but the question is, how can

17 you have hypothetical questions ofthat nature when

I 8 you don't even know, number one, if you can put a

19 properly constructed wall under these circumstances

20 there and without allowing testimony -

21 THECOURT: Well, Imean, I'lljusttakeit22 for the weight ofwhat it is; okay?

23 MR. WATSKY: We'll leave it that way.

24 Thank you, Your Honor.

- zt ) -

1 Q Do you remember the question --

2 A (lndiscemible.)

3 Q - trecauseldon't.

4 THE COURT: Could you read the question,

5 please?

6 MR. BRENNAN: If you would, please?

7 (The stenographer read back the question.)

8 A Yes. That'scorrect. Itcanbe.

9 Q Now, have you had an opportunity to read the

l0 nonexclusive easement that's, in part, the subject ofI I this case today? Have you had a chance to read the

12 document itselfl

13 A I'velookedthroughthedocument; yes.

14 Q And do you recall that the easement in question

15 refers to a -

t6 . THE COURT: I'm going to object to that. I

17 think, you know, I can read the easement --

18 MR.BRENNAN: Ijust -

19 THE COURT: - and he is not an attomev.

20 So-2l MR. BRENNAN: I just wanted him to

22 acknowledge that the easement doesn't refer to a two

23 to one - or there's no particular s'lopeset forth.24 THB COURT: Well, I think the easement

- Lll -

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Mr. Irffort, you referred to the wall construction

that you were retained to examine as a segmattal

wall; is that correct?

That's correct.

And is it your opinion that a segmental wall cannot

be used in the proximity ofwater, such as this one

is in proximity to Mount Hope Bay?

No.

In fact, if properly built, a segmental wall works

within this particular area in relation to the water;is that correct?

That's correct.

Now, you testified somewhat about the fact that there

was previously a gradual slope within this 20-foot

easement area, and now there's a vertical wall.

Ifa vertical wall is properly constructed,

it can serve a purposejust as well as a sloped

graded area; can it not?

MR. WATSKY: Objection, Your Honor. The

difiiculty with this line of testimony is the fact

that you made a ruling that we couldn't go into the

proper building technique utilized in this wall, and

nowhe is -

THE COURT: He's getting into the

1t1

NOTES



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



LANDING VS BORDEN LIGHT #254067 Vor,. lu8/10I eventofal00-yearstorm?

2 A Yes. Yeah; the buildings are subject to flood and

3 wave damage from a 100-year storm.

4 Q So, in forming your opinion, did you rely upon ,,zone

5 VE elevation 19," for example, in the upper left-hand

6 comer? Wasn't that part of your consideration?

7 A Yes.

8 Q And then, on the far right-hand comer, ',zone VE9 elevation 22;" wasthatpartofyourcalculation?

10 A That was information from FEMA; correct.

11 Q And ifthatlinehas, in fact,changed, would that

12 change your opinion regarding the potential for13 damage to the buildings, flood damage and erosion

14 damage as the result ofa 100 year storm?

15 A Well, it doesn't change my opinion. I mean, the

16 buildings are in the flood zone.

17 Q Basedonthatdashedline -

18 A Yes.

19 Q - that goes across there?

20 A, If, in fact, that line is correct.

21 Q And what if it isn't correct? What if, in fac! the

22 line is 22 feet and runs along the top ofthe bank?

23 Would that change your opinion?24 A You mean along the top of the retaining wall?

-219 -

1 Q Well, let me -

2 MR. BRENNAN: May I approach the witness,

3 Your Honor?

4 THECOURT: Yes.

5 Q I'd like to show you a document that,s entitled

6 "ktter of Map Amendment" and ask you if that s a

7 document you're familiar with. Not that particular

8 one but -

9 A Yeah. Iam -

10

Q- form.

1l A Yes. I'mfamiliarwith -

12 MR. SEIGENBERG: your Honor. Im a little13 concerned with this document given the fact that we

14 did have an agreement that we would exchange

15 documents that were going to be either uncontested or

16 contested. I still haven't seen the document. So -

I1 THECOURT: Yes.

18 MR. SEIGENBERG: - it's kind of toueh ro

19 comment on it.

20 MR. BRENNAN: It's just cross examination,

21 Your Honor. I had no idea this witness was going to

22 testify that his opinion was based on lines that we

23 have information that those Iines have been changed.

24 So, ifs cross examination on this witness. I didn't

220 -

I know that he would testify that way.

2 THE COURT: And I believe you reserved

3 rebuttal; right?

4 }r{R. SEIGENBERG: yes. I know, your Honor,

5 but to say that - I mean, the Mount Hope plan, which6 webothputinasajointagreed uponexhibit -no7 issue was ever raised about the accuracy ofthe Mount

8 Hope plan by the other side. Obviouslv, we could

9change

-10 THE COURT: Well, I didn't see where you

11 agreedupontheaccuracyoftheplan. youagreed

12 that it was an exhibit.

13 MR. WATSKY: That's true, your Honor.

14 That's true. But nonetheless, it,s still - ifsl5 hard to believe that counsel didn,t have this

16 document, whatever this document is --

17 THE COURT: Well

18 MR. WATSKY: -- in advance -19 THE COURT: - since we,re going to be

20 going only till 4:15, you will have some time to, you

2l know, think about this and come up with any other

22 issues that you want to bring up in relation to the

23 FEMA line.

24 MR. WATSKY: That's fine.

- zzt -

I MR. SEIGENBERG: Could we, perhaps, see the

2 document

3 THE COURT: Yes. I think -

4 MR. BRENNAN: I'm jusr going ro see if I5 have -

6 THE COURT: I didn't realize vou didn't

7 haveacopy. Sorry.

8 MR. BRENNAN: - that we received from the

9 plaintiffs.

10 MR. WATSKY: I don,t think so, your Honor,11 but I don't think it really matters. We did not

12 provide this document.

13 MR.BRENNAN: Iknowitwasonatablefor14 distribution to the unitowners at The landing at

15 South Park. That's where this document came from.

16 It was prepared by The tanding, at their request, at

17 their expense, to amend the FEMA map. So, itI I shouldn't be a surprise to anyone.

19 THECOURT: Well -

20 MR. WATSKY: We're all set.

2l THECOURT: Okay.

22 Q Mr. kffort, are you familiar with that particular

23 form?

24 A Yes. I'm familiar with the form.1aa

NOTES


Danvers, Massachusetts 0l 923Phone: (978)

777-5802 FAX: (978) 7j7-5803



LANDING vS BORDEN LIGHT. #254067 Vor,.I tl/8tr01Qz

3

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Now, if you look at the front of the form, it says

"1 percent annual chance flood elevation NAVD 88,"

and it says 22.0?

Yes.

What does that mean?

That's the 10O-year storm elevation.

Now, on the exhibit number 41, where it says "zone VE

elevation 19" in the upper left-hand comer -

Yes.

- isn't that the same designation as the I percent

annual chance flood elevation?

(No verbal response.)

And, in fact, it's recently been amended?

(Witness reviewing exhibit.) I'm not sure where the

elevation 19 came from.

Well, let's go to the - if you look at the m'iddle of

exhibit number 41, where it says "existing estimated

flood line per map" --

Yes.

- isn't that the 1 percent annual chance flood

elevation --

Elevation -

- previously?Yeah; at elevation 22.

1

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24Q

What does "slab equals" - for example, in

bui'lding 3, "slab equals 25.44;" what does that mean?

We didn't prepare this. Again, this is off of Mount

Hope's document, which is exhibit 21. But I believe

that is the bottom slab elevation of the buildings,

would be my guess.

And that's a guess?

Yes.

What does the designationimmediately undemeath that

"t-A.G = 24.5" - what does that mean to you?

Typically, that notation is lowest adjacent grade.

Now, I'm not sure in the content of this drawing,

since we didn't prepare it, if that's what their

intent was.

Now, you were retained by The Landing at South Park

to inspect and give an opinion on the wall between

the south end of The tanding property and building

number 4; is that correct?

Up to the southem - southv/est comer of building 5.

The southwest comer of buildine 5?

Yeah. Ibelieve -

Ald is that where the measurement is 1 I -

Yes.

- feet?

-zz)-

I Q Right.

2 So, that dashed line is the old line, is

3 thatconect, on exhibitnumber 41?

4 A Ibelievethat'sthecurrentline.

5 Q And then, looking at the document that you have in

6 your hand, which is entitled "lrtter of Map

7 Amendment," 1 percent annual chance flood elevation,

8 hasn't it now not been changed to 22 feet?

9 A (Witness reviewing exhibit.) Arc you asking that

10 it's elevation 22?1 1 Q Correct.

l2 A Yes. ltiselevation22.

13 Q So, there's a difference, then, between the elevation

14 19 and the elevation 22; correct?

I 5 A Well, conect, but I'm not sure where elevation 19 -

16 we didn't generate that note. That came from Mount

17 Hope.

18 Q Butyou did testify thatthatelevation had some

19 bearing on the formation ofyour opinion?

20 A Elevation22;conect.

21 Q Now, looking at exhibitnumber 41, each one ofthe

22 buildings has three notations. It says "building,,'

23 and then it has the number ofthe building, and then

24 it has "slab equals" and a number.

1a^

a1<

1 A Yes. That is correct.

2 Q IfI intenupted you - I'msorryiflcutyou off.

3 MR. WATSKY: Yes. I'm going to suggest -

4 could the wifress have - he didn't get a chance to

5 really finish his answer. I think -

6 MR. BRENNAN: I didn't realize I cut him

7 off.

8 Q Was there something else, Mr. I-effort, that you were

9 goingto sa/

10 A Thatcorresponds withthe newconstruction ofthe11 wall.

12 Q And so, if we wanted to identify on exhibit number 4l

13 where it is that yourresponsibilities lied, it would

14 be between the south end ofthe property line and

15 that point where it says i I feet; is that correct?

16 A Thafscorrect.

17 MR. SEIGENBERG: Objection.

18 THE COURT: What is the objection?

19 MR. SEIGENBERG: I was going to object,

20 Your Honor. I know it's cross examination. It

21 seemed a little bit misleading to say -- "his

22 responsibility" was the terminology -

23 THE COURT: In other words. what was he

24 hired to do for The landing.

-226-

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



LANDING YS BORDEN LIGHT #254067 Vol.I ru8n0I MR. SEIGENBERG: Which would have been

2 fine. Your Honor.

3 THE COURT: What was the scope that he was

4 hired to do? I understood it.

5 MR. SEIGENBERG: Thank you.

6 Q Mr. Leffort, at any time, did you measure the length

7 ofthatwall? Doyouknowhowmanylinearfeetyou

8 were asked to lookat?

9 A No. I did not measure that.

10 Q What's your best estimate as to the length of the

i I wall that you examined?

l2 A About 500 feet, if Iwere to guess.

13 MR. WATSKY: I'm sorry. I couldn't hear

14 the answer.

15 MR. BRENNAN: Fivehundred -

16 THE WITNESS: Five hundred feet. Sorry.

I 7 Q Now, in the course of your rendering the services to

18 The t-anding at South Park, you mentioned thatyoL

19 observed some ofthe geofabric hanging out ofthe

20 front of the wall, meaning on the marina side?


22 Q Of what significance would it be that there was

23 geofabric coming out the ftont side of the wall?

24 A Thatwould deducton the amountofgeogrid that was

I

2

1r)4

5

6A7Q8A9

10QllA12Q

13At4Ql5

16

17Al8Q19

20

2lA22

23Q24

supposedly placed on the back side orinto the

embankment for stability.

So, you've got to help me a little bit.

When you buy geofabric, how do you buy it?

What does it come as?

It comes in rolls.

And how wide are the rolls?

They can vary. It depends, you know, on the

particular project, the widths.

So, you might be able to buy a 36, a 48-inch or -Yes.

- 60-inch?

Yeah, depending on construction techniques.

So, observing what's sticking out of the front side

of the wall doesn't tell you how much they cut offthe roll and put behind the wall; does it?

That is correct.

So, there's no significance to what you observed

coming out the front of the wall because you don't

know what's behind the wall?

Until we did our site measurements, we determined

what that was.

But that's site specific, and I'm asking you about a

generalization that you made --

_228 _

1 A Thafs correct.

2 Q - that it was coming out the front.

3 That's really ofno significance?


5 Q So, let's talk a bit about the s.ite specific testing

6 that you did.

7 Directingyour attention to exhibitnumber

8 41, could you tell me where it is that you dug the

9 test holes and how many?10 A We did approximately four. One was at, again, the

l1 north -I'msorry -thesouthwestareaofbuilding

12 3, and then one to the northeast also ofbuilding 3,

13 and then one in the approximate middle of building 4,

14 and then one between 3 and 4.

15 Q Now, you said you did approximately four holes.

16 Is it because you don't recall whether it17 was three or four but you -

18 A Fourholes.

19 Q You did four?

20 A Yes.

21 Q Now, how did you decide where to do those test holes?

22 A We originally started further back, just to - one of

23 concems was, we did not want to hit the geofabric

24 material or disturb. And then, we moved closer to

I the wall as we realized there was no geogrid that far

2 back.

3 Q Now, I wasn't clear in my question.

4 How is it where you determined along the

5 approximately 500 feet oflinear feet where you dug

6 the hole?

7 A It was random. Accessibility for the backhoe

8 factored - you know, we just - random.

9 Q And was this one of those mini backhoes, the smaller

10 ones? Itwasn'tafull-sizebackhoe?1l A 'No. It was a small one.

12 Q And thebuckets; whatare they, eight inches, ten

13 inches?

14 A Itcouldhavebeen. Ididn'tmeasurethebucket

15 size.

16 Q But they're made to dig a narrow trench; correct?

17 A Yes.

18 Q Designed for that, I should say.

19 And so, ifthe bucket was even a foot wide

20 and you dug four trenches, out of500 feet, than you

2l would have left 496 feet unexamined; correct?

22 A, T\zt is correct.

23 Q Andyour

opinion is based on those four holes along24 approximately 500 feet?

-230 -

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LANDING vS BORDEN LIGHT #254067 VoL. 11/8/10I A That is correct.

2 Q And it would be fair to say that you don't know what

3 geofabric may lie in the ground along the other 496

4 feel?


6 Q Is it fair to say that you, then, offer no opinion as

7 to the wall north ofthe 500 feet that vou were

8 retained to examine?

9 A Yes. Beyond building 5 -

l0 Q Correct.

11 A - the comer in the southwest. Yeah: we did not

12 look at any ofthe walls beyond that.

13 Q Thankyou.

14 Now, in the design of a wall, is there a

15 point where you can use these blocks as a gravity

16 wall that will not require any geofabric?

17 A Yes;thereis.

1 8 Q And is there a regulation or something that dictates

19 how high you can go without geofabric?

20 A There is no regulation. It's actually engineering;

21 that you can prove the stability based on the ballast

22 weight of the block and the type of soil that you're

23 retaining and any additional surcharge loads that you

24 might have to account for.

-231 -

I Q Now, you gave an opinion on direct examination that

2 -- your opinion was that, given the proximity of this

3 block wall to the buildings, there wasn't enough room

4 to excavateand applygeofabric as maybeneeded to

5 statrilize the wall; is that conect?

6 A Proximity to the property line, because you would be

7 actually going onto The l-anding's properfy.

8 Q That's right. I mean in relation to the existing

9 block wall and the property line.

l0 A That'scorrect.l1 Q You're safng that you couldn't add geofabric without

12 going over the property line in situations; is that

13 correct?

14 A Yes. You would have to go over the property line in

15 order to excavate properly. That is correct.

i 6 Q And there's no other way to shore up an ernbankment,

17 to use some type of steel sheathing or something to

18 hold an embankment up while you're working at it?

19 A Youcould.

20 Q You could? So, there are engineering ways to -

21 A Yes.

22 Q - get around - I shouldn't say get around, but to

23 address the issue ofa two to one slope required

24 under the building code?

- z5z -

1 A Thatiscorrect.

2 Q So, itcould be done?

3 A Right. And I think the question was conventional

4 construction -

s Q Right.

6 A - and that is how I answered it.

7 Q Noq that's implying the two to one slope?


9 QBut I

thinkyou may have used the term

in theideal

10 situation or in a perfect world, which we often find

11 ourselves we're not in?

12 A True.

13 Q So, you do agree, then, that givan other construction

14 techniques, geofabric could be added behind this

15 wal'I, if needed?

16 A Yeah. Ifyou don'tgobeyondthepropertyline.

l7 That is correct.

18 Q And my question is, staying on the marina's side of

19 the property line.

20 A Yeah.

2l Q So,itcanbedone?

22 A Yeah.

23 Q And isn't it also fair to say that you could move the

24 wall in a westerly direction and thereby pick up area

- L)) -

1 to add geofabric?

2 A Thatwouldbegoingontothe -

3 Q Towards the marina -

4 A - marina. Yeah; you could do that.

5 Q Well, I guess what I'm salng - the marina could

6 move the wall west and then use its own property -

7 A Yes.

8 Q - on the 20-foot easement for the geofabric?

9 A That'is comect.

10 Q So, there's two ways to address that issue, then?11 A Absolutely.

12 Q Andmaybemore?

13 A Could be. As an engineer, we tend not to live in a

14 box and try to figure out all kinds ofcreative ways

15 to --

16 Q You put a man on the moon; right?

17 A Absolutely.

18 MR. SEIGENBERG: Wel'I, not you personally;

19 right?

20 MR. BRENNAN: I'm lumping him in with

21 astronauts.

22 Q Now, explain to me a little bit how it is that you

23 tested the wall for movement. Do I understand that

24 you drilled holes and then used a tape measure from

_234 _

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Phone: (978)'l'17-5802 FAX: (978) 777-5803



LANDING vS BORDEN LIGHT #254067 Vor,. r1t8tr01 some fixed point over that three-month period?

2 A That is correct; yes.

3 Q So, there it wasn't anything more technical, like a

4 seismograph or something like that?

5 A No. No. We didn't have -

6 Q Because I heard that term, and I thought maybe it v/as

7 used, and I didn't know what it really was, so I was

8 going to askyou.

9 What is a seismograph?10 A Well, a seismograph would be more of movernent of the

1 1 ground, motion ofthe ground itself, not necessarily

12 structures.

13 Q Now, you testified that you detected movement of one

14 inch in the wall as a result ofthis testing;

15 correct?

16 A Yes.

17 Q How many points did you measure?

18 A We measured four.

19 Q Where were they?

20 A They were adjacent to the north - I'm sorry - the

2l southwest comer of building 3; we had one at the

22 southwest ofbuilding 4, and then also on the

23 northeast of4, and the one directly in the comer of24 buildins 5.

-235 -

1 Q Where did you detect the one inch of movement?

2 A kt the northwest - no; I'm sorry - northeast corner

3 ofbuilding 4.

4 Q So, building4 shows onexhibitnumber4l as a

5 9O-degree angle; correct? Actually, it looks like a

6 "V" as you're looking at it?

7 A Yes. That's coffect.

8 Q Where in relation to the two legs of the "V" did you

9 set the drill hole and the measurement? Was it right

10 where the property is shown as I I feet? There's a

11 designationthere"ll feet."

12 A Yes.

13 Q Is thatwhereyouhad thedrillhole?

14 A Thatiscorrect.

15 Q And you measured to apredetermined pointon the

16 building?

17 A Yes.

18 Q And it's your determination that the wall moved and

19 not the building; is that correct?

20 A Yes, based on our observations of the building; that

2l the building, if it were to move, would have been in

22 dire distress, but it seemed to be fine.

23Q

When was the last time youmeasured the difference -24 let me strike that.

-236-

I When did you detect the one inch of2 movernent?

3 A That was in early April.

4 Q And you measured how many times? Four, did you say?

5 A We had four points, but we measured every other week

6 for three months.

7 Q So, twice a week for three months?

8 A No. No. It would be twice a month.

9 Q I'm sorry. Twice a month for three months?l0 A Yes.

11 Q And you measured all four points?

12 A Yes.

13 Q And you detected this deflection atoneofthe four

14 points?

15 A Thatiscorrect.

16 Q Was it early on, midway, or at the end of your

17 testing? Wheninthecourseoftestingdidyou

l8 detect this movement?

19 A Probably midway through the testing.

20 Q So, that would have been in May?

21 A April. It should have been in April. We started in

22 March.

23 Q And is it fair to say the last time you took that

24 measurement would have been sometime in late April?

1 A True.

2 Q And no more measuring has taken place since?

3 A No. We stopped.

4 (Briefpause.)

5 Q Now, Mr. kffort, in the course of preparing to

6 rander your opinion in this matter, did you review

7 any data about the history ofthis particular site

8 and its prior uses and whether or not the land bank

9 that we're all referring to had previously been

l0 disturbed in anyway?11 A No; I did not.

12 Q So, youropinionisfounded on - strikethat.

13 Howwould you describe the embankment that

14 we're talking about, in your mind, in randering your

15 opinion? What was that embankment? What was it

16 comprised ofl Was it a naturally occurring bank?

1 7 A It appeared from the photos that that's what it was.

18 Q Now, there was aquestion, Ithink, orareference to

19 - isitconsolidatedmaterials?

20 A Yes.

21 Q What does that mean?

22 A Well, virgin soils are soils that have been

23 compressed based on glacier movements over the years,24 and theyte about as dense as the soils will become

-238 -

:j'

:

NOTES



Phone: (978) 777-5842 FAX: (978) 777-5803



LANDING VS BORDEN LIGHT #254067 Vor.. 11/8/101 - can become of that type of material-

2 Q And your opinion as to storm surge protection,

3 erosion control protection is based upon those type

4 ofsoil materials: is that correct?

5 A Yes.

6 Q And if, in fact, the embankments in question had

7 previously been excavated and filled within the last

8 15 years, would thatchange youropinion?

9 A It could,yes,

depending on how it was filled.10 Q If it was excavated and then the same material was

I 1 put back in, would that change your opinion?

12 A If it were put back in in a controlled environment,

13 thatwouldbeone. Ifitwasjustrandomfill,that

14 would be a dilferent opinion.

15 Q And ifit was excavated and then justrandom filled,

16 would it be fair to say that you wouldn't get the

17 same erosion control and storm protection that you

18 would have gotten from consolidated materials?

19 A That's correct. You are correct.

20 MR. BRENNAN: Your Honor, I just wanted to

21 use some photos. Are we going to go till 4:15, or

22 would this be a -

23 THE COURT: We're really - you know, we

24 don't have the staff that's available. You know,

- 239

I wehe just a stand-alone court. We don't have a lot

2 ofcourt officers, so we really do need to close

3 promptly at 4:15. Do you mind if I ask a question

4 just to clarify a point on this?

5 MR. BRENNAN: Not atall. Your Honor.

6 THE COURT: I'm just trying to determine -

7 there's a notation on exhibit 41 that says, "This

8 figure is a compilation of plans and field

9 measurements by NE&C and is not the result of a

l0 ground survey by Northeast Engineers and Consultants,1 i Inc." But I see a notation on here that says "field

12 surveyed flood elevation," and I'mnotseeing that

13 notationontheexhibit3l plan. So,I'mwondering;

14 did you actually do that field survey ofthe flood

15 elevation or -

16 THEWITNESS: Which- 31?

1'7 THE COURT: This is - on 41, it says -I 8 right above building 5, there's a note that says

19 "field surveyed flood elevation," and itpoints to -

20 THE WITNESS: We didn't do that.

21 THE COURT: You didn't do that? That was

22 the compile?

23THE WITNESS: Yes.

24 THE COURT: And also - but the measurement

240 -

1 from the edge ofthe building to the outside face

2 wallthatyouindicateonyourexhibit4l site

3 figure, was that an actual field measurement, or did

4 you measure itjust based upon what was already on

5 the plan?

6 THE WITNESS: No. That was our actual

7 physical measurements.

8 THE COURT: I just wanted to clear that up

9 for myself. Thank you.10 Is this a good time to just break, and

11 we'll resume again -

12 MR. BRENNAN: It would be very helpful for

13 me because I know I'm going to disrupt my binder, and

14 it'll never be the same --

15 THECOURT: Okay.

16 MR. SEIGENBERG: I have - if I mav. Your

17 Honor?

18 THECOURT: Yes.

19 MR. SEIGENBERG: I have, like, a couple of

20 comments, perhaps, to ask the court about some

2l witnesses.

22 THE COI-JRT: Yes. I think the witness carr

23 step down for now. You know, you'll have to be

24 called back tomonow.

_24t _

I THEWITNESS: Okay.

2 (Witness stepped down.)

3 MR. SEIGENBERG: Thank you, Your Honor.

4 THE COURT: - we'll start first thing, at

5 9:30.

6 MR. SEIGENBERG: Your Honor. I have

7 subpoenaed two witnesses, and based on some ofthe

8 court's rulings today, I'm trying to make a determine

9 whether I should have these people traipse into

10 Boston. Oneoftheindividuals I'vesubpoenaedisI I the building inspector for the City ofFall River,

12 who would testifu as to building permits or the lack

13 thereofrelative to the construction.

14 THE COURT: I reallv don't see that it's

15 relevant.

16 MR. SEIGENBERG: That's why I asked the

l'7 court -

l8 THECOURT: Yes.

19 MR. SEIGENBERG: For the record, I do feel

20 strongly, as I've indicated, Your Honor, that knowing

2l whether these projects were done with building

22 permits, which would require review by a govemmental

23 agency, and also under the code, it would require a24 structural engineer to evaluate these structures

141

NOTES:



Phone: (978) 777-5802 FAX: (978) 777-58A3



LANDING VS BORDEN LIGHT #2s4067 VoL. 11/8/10

I before they could construct it and submit it, I would

2 suggest, would be relevant for this court to

3 determine what the remedy would be if they find a

4 violation ofthe injunction and/or the easements.

5 THE COURT: I see where you're going.

6 Okay. I was thinking in ierms of the actua'l -

7 whethertherewasaviolationoftheeasement. So,

8 you're saying that if there was no building permit

9 issued, no blood, no foul in requiring them to tearl0 it down? Is that your -

11 MR. SEIGENBERG: I'mnot quite saying that.

12 I'mjustsayingthatifyou- firstofall,in

i3 equity, you have to come in with clean hands, and you

t4 have to cornply with the law in order to seek the

15 court'sbestjudgment. Thedifficultyis,isthat

16 the state building code is obviously adopted so that

l7 structures like walls ofthis nature are properly

18 builtand -

19 THE COURT: So, if it was properlybuilt

20 and there was a building permit, you wouldn't want to

2l see it tom down or - I mean, is it going to matter

22 in what you're asking for?

23 MR. SEIGENBERG: I don't think it would,

24 Your Honor. The better question is, would it matter

-z+J-

1 to you? To me, I know the remedy wete looking for.

2 It just seems to me - and I pray the court's

3 judgment on this. It just seerns to me that if4 someone goes out and without building permits builds

5 structures that are clearly under the terms ofthe

6 state building code requiring structural engineers

7 and building permits, that's a relevant

8 consideration.

9 THB COURT: Is this something we can

10 stipulate to, that there was no building permit for a

1 1 portion of the wall?

12 MR. SEIGENBERG: I've asked counsel that.

13 Hehasn'thad -Idon'tknowifhe'shadachanceto

14 consider that proposal, because lm trying to avoid

l5 - obviously, the building inspector -16 THE COURT: Because that would be the only

17 thing I would be interested in, not whether it could

18 have gotten a building permit, would get a building

19 permit tomorrow. That's not an issue.

20 MR.BRENNAN: Maylbeheard,YourHonor?

2l THECOURT: Yes.

22 MR. BRENNAN: I think we can stipulate that

23 the building permit did not issue pdor to the24 construction ofthe last 650 feet ofthe wall which

I we seem to be focused on. But we did apply for a

2 buildingpermitafterthe fact, and itissued based

3 on a plan, calculations, and affidavits filed with

4 the building department. Now, that's an

5 after-the-fact build'ing permit. So, to the extent

6 that that matters to Your Honor, I can agree to both

7 ofthose.

8 THE COURT: Does it matter to You or

9 anything, or is that- no, because that wasn't

l0 appealed to the state building code board or

I I anything.

12 MR. BRENNAN: So, I mean, that's what

13 happened. We can both agee that it didn't issue

14 prior to the construction. It issued

15 post-construction.

16 THE COURT: Can you both agree to that, to

17 those two factors?

18 MR. SEIGENBERG: Well, I think there's

19 already an agreed upon exhibit as to the submittals

20 that were made for the building permit after the wall

2l was constructed. So, to the extent that we have

22 that, that might suffice.

23 I also would like to - there's other

24 sections ofwalls that have been constnrcted which

245

I also required building permits, and as far as we

2 know, no building permits were ever applied for or

3 ever issued. And obviously, to the extent I'm going

4 to excuse the Fall River building inspector, -- we

5 had a stipulation on that, as well.

6 MR. BRENNAN: Historically, judge, this

7 wallhas goneupsince i988 insegments. Ihaveno

8 idea what building permits issued or didn't issue

9 over the last 20 years, 22 yearc.

t0 MR. SEIGENBERG: I'm sure the Lunds would1l know that, Your Honor. I'm not that concemed about

12 anything that was constructed before 1999, Your

13 Honor. We're concerned with walls that were

14 constructed after this litigation.

15 THECOURT: Andhowmany- wheredoesthat

16 start?

17 MR. SEIGENBERG: There's several sections,

18 Your Honor.

19 THECOURT: So,itwasbuiltindifferent

20 - yes.

2l MR. SEIGENBERG: There was construction

22 done in 2000, which brought about the injunction -

23 THECOURT:Well,letmejustsay,You

24 know, if you feel it's important to demonstrate that

-246 -

NOTES:



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



LANDING VS BORDEN LIGHT #254067 Vor,. l1l8/10I there was no building permit for that and you cannot

2 get an agreed statemen! I don't think the building

3 inspector's going to be too happy, and I don't think

4 the city is going to b€ too happy to have him dragged

5 up here.

6 MR. BRENNAN: Your Honor, keep in mind I do

7 agr*forthislast'08and'09activity. Ijust

8 don't know before thar.

9 THE COURT: You don't know, so you can't -

10 MR. BRENNAN: Right.

11 THE COURT: Is that something that could be

12 investigated by going to the building inspector

13 and -

14 MR. BRENNAN: We could call him out of15 order if necessary. I would have no objection to my

l6 brother calling him during my witnesses ofdefense.

17 I mean, we may have to accommodate -

18 THE COURT: - if you need it?

19 MR. SEIGENBERG: Yes. Can I - which is

20 fine, except this shouldn'tbe an unknown issue.

2l Part ofthe discovery in this case was a request for

22 production ofdocuments, requesting any govemmental

23 permits I wouldn't have this issue. My brother

24 objected, but then he indicated -

-247 -

I THE COURT: Right. But it should be

2 something relatively simple to get fiom the city

3 hall; right?

4 MR. SEIGENBERG: Right.

5 THE COURT: A copy of a building permit

6 that was issued or a statement -

'7 MR. SEIGENBERG: Right.

8 THE COURT: - that, "I've searched the

9 building inspection files for this property, and

10 there is no copy of a building permit in the fiIe."11 Now, that doesn't establish, nor can probably this

12 building inspector say for certain, that a permit was

13 or wasn't issued; am I right?

14 MR. SEIGENBERG: Well, yes and no. The

15 firstpart,yes. Thesecondpart- theykeep

l6 records, obviously.

17 THE COURT: Well, I mean, let's hope that

18 their records are, you know, pretty up-to-date and,

19 you know, they have a record ofall ofthe building

20 permits issued at least since 2000 --

2l MR. SEIGENBERG: What I'11 do. then -22 THE COURT: - I would hope.

23 MR. SEIGENBERG: -- Your Honor - I,ll

24 continue to confer with counsel, and maybe we can

-248 -

I come to an agreement on this --

2 THECOURT: Yes. Imean -

3 MR. SEIGENBERG: - avoid that if we can

4 agree.

5 The other issue I wanted to bring to the

6 court's attention - the second individual I have

7 subpoanaed to testify tomorrow is an individual name

8 of James Holmes. He's a sfructural engineer from

9Aegis Engineering, and

he was retained - there's an10 insurancecompanyinvolvedhere. Andso,he's

I I somewhat independent in his evaluation, and he would

12 give an opinion that the wall that was constructed is

13 notstructurallysound. Ithastoberemoved

14 because, otherwise -- similar to what youjust heard

15 from this witness.

16 Now, I'm not ovoly - I'm a little bit

t'l confused as to what testimony is going to come from

18 the other side and what the court's going to allow as

19 to the structural soundness and altematives relative

20 to the wall. To the extent that they're going to

2l call an expert to talk about that, I'11 bring Mr.

22 Holmes in tomorrow, and he can give his opinion on

23 that issue. He also is going to give an opinion on

24 the two units, which I think the court's been quite

-249 -

1 clear on.

2 So, once again, I pray the court's

3 judgment. It seems to me particularly important to

4 know ifthis wall is going to fail or not and whether

5 it's structurally sound, and Mr. Holmes would add

6 testimony on that regard. So, to the extent the

7 court's going to allow me to ask him those type of

8 questions, then I'll have Mr. Holmes come in

9 tomorrow.

10 MR. BRENNAN: Is he a structuml engineer?1l MR. SEIGENBERG: He is a structural

12 engineer.

13 MR. BRENNAN: So, it's the same -

14 THE COURT: How does it -

15 MR. BRENNAN: - as the gentleman here.

16 THECOURT: Whatwas -

1'7 MR SEIGENBERG: Because I think they might

18 be calling a structural engineer salng to the

19 contrary.

20 THE COURT: Well, why don't you save that

21 as a rebuttal?

22 MR. SEIGENBERG: I could do thar. Your

23Honor.

24 THE COURT: And that would resolve it at

-250 _

NOTES



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



LANDING VS BORDEN LIGHT #254067 Vol. I lu8,lt0I least for tomorrow; okay?

2 MR. SEIGENBERG: That's a great suggestion.

3 Thank you.

4 MR. BRENNAN: Your Honor, just

5 planning-wise for all our witnesses, I don't know -

6 I have a coastal geologist, my brother has a

7 depositiontranscriptofone. Ijustdon'tknowif8 we'll get to them tomorrow, and my coastal geologist

9 is not available on Wednesday. And the court has

l0 indicated previously you would not take a view?

l1 THE COURT: I didn't say whether I would or

12 not.

13 MR.BRENNAN: I'msorry. Ithoughr -

14 MR. SEIGENBERG: And I think counsel brines

15 upagoodpointaboutthecoastalgeologist. tmnot

l6 so sure, once again, as to what the court wants to

l'7 hear from the coastal geologist.

18 THE COURT: Who have you got for tomorroril?

19 MR. SEIGENBERG: Well, we certainly would

20 finish up with Mr. [rffort, we've already dealt with

21 Mr. Holmes, and then I have at least two

22 representatives from The l-anding.

23 MR. WATSKY: And the deposition -24 MR. SEIGENBERG: Well, we have a transcript

-251 -

I ofthe coastal geologist.

2 THE COURT: So, you're expecting to take

3 all day tomorrov/?

4 MR. SEIGENBERG: It's often difficult to

5 determine

6 THE COURT: Right.

7 MR. SEIGENBERG: Certainly, one of the

8 representatives will be a lot quicker than the first

9 witness, but it's possible; yes.

10 THECOURT: Andyourwitnesscannotcome1 1 except tomorrov/?

12 MR. BRENNAN: He was available today and

13 tomorroq and I told him don't come today, and he was

14 not available on Wednesday.

15 THE COURT: I'm not even sure at this rate

16 we're going to be done on Wednesday. Would you have

17 an objection to having him called out oforder

18 tomorrow?

19 MR.SEIGENBERG: Iwouldnot,YourHonor

20 THECOURT: Okay.

2l MR. SEIGENBERG: - if thar's - we,ll

22 accommodate the witness.

23 THE COURT: So, you know, at 9:30, what I24 would like to do is have a brief meeting with counsel

-252 _

I intheconferenceroom. Ijustwantto -youknow,

2 I think we need to really structure this a tittle bit

3 better here and figure out who's coming when and how;

4 okay2

5 MR. BRENNAN: Thank you, judge.

6 THECOURT: So -

7 MR. SEIGENBERG: Thankyou, Your Honor.

8 THE COURT: - see you tomorrow moming.

9 (Whereupon trial was suspended at

10 4:22p.m.)

I I (To be resumed on Novernber 9,

12 2010 at 9:30 a.m.)

13

l415

l6

17

18

19

20

2I

22

z-t1^

-253 -

COMMONWEALTH OF MASSACHUSETTS

I, Karen V. Smith, Professional Court Reporter and

Notary Public in and for the Commonwealth of Massachusetts,

do hereby certify that the foregoing record, Pages I to 253,

inclusive, is a tlue and accurate transcript ofmy system

tapes to the best ofmy knowledge, skill and ability.

I am not connected by blood or marriage with any ofthe

said parties, nor interested directly or indirectly in thematter in controversy.

IN WITNESS WHEREOF, I have hereunto set mv hand and

- 254

..:

NOTES

1

Notary Seal this 28th day o[

V. SMITH, Notary Public

Commission expires: October 18,2013



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



LANDING vS BORDEN LIGHT.#254A67.VoI-. I. 11/8/10

Word . . .. Word Page Word ......Page Word ...... Page Word .... Page

$200,000 ...62,711 ...'1, 34, 37, 39, 223, 224

10 ... 36, 120,194,206

100 ... 36, s8,78,92, rss,2r9,223

1 r ... 56, 63, l 90, 204,22s,

226,236

t2 ... 26, 27, 73, 92, 14t,148, 154,208

12:30 ...26,21,14813...20414 ... I 16

140 ... 38

15 ... 26, 27, 221, 239, 240

150 ... 68

16 ... 50, 51

18 ... 183,202

19... 31, 35, 38, 91, 183,

218,219,223,224

1981 ... 163,164

1984... 164

i986 ... 20, 32, 34, 36, 47

198'7 ...4'7

1988 ...246

1990... 164

1991 ... 165

1994 ...32, t651999 ...40, 41,44,246l9th ... 85

2 ... 27, 14, 37, 39, 122, 181

2:00...2720 ... 8, 19,30,31, 33,35,

36,45,47,48,74,78,86, 145,159, r67, 168,

I 80, 1 9 1, 193, 194,

t99,2r2, ...216,234,246

2000 ... 19, 30, 33, 41, 44,

4s,54,62,6s, 16s,

246,248

2001 ...49,51,53, 58, 1 17,

1422002 ... 42,54,58, 132, 134

2004...59,612005 ... 42, 44, 59, 61, tl7 ,

165

2006 ... 42,44,62, tt8, 120,

t/)

2007 ...64,66,72,'162008 ... 16, 20, 32, 33, 42,

44,72-74,79-84,86,89, 98, 99, 117,126,

145, t52,153, 159

2009 ... 20, 32, 33, 42, 45,

74,79,8r-86,89,91,98,100,101,104,107,109-111,1t',7,128,

130, t44-147, ... 152,153, t59

2010 ... 46, 6t, t44, t7 5,

253

2l ... ]1, 91, 193, 198, 215,

216,225

22 ... 183, 197, 198, 218,

219,223,224,246,253

22.0 ...223

22nd ... 120

23 ...44

24 ... 33, rr2, 155, 179,

190,225

24.02 ... 190

24.09 ... 190

24.5 ...225

2s,44...2252s4067...726 ...l't5,20827 ..- 206

2nd ...7453 ... 32-3s,37 , s2,74,79,

82,91,93,95,99-101,111,143,152,153, r70, r'73,

t74, t88-193,206, ...

208,211,216,225,?tq ?15

3.s ...343:30 ... 2l I

30 ... 26, 27, 114, t48, 206,2rt,242,252,253

300 ... 58

301 ... 94

304 ...4930A... 100

3t ... 57 , 59,76,24031A... 59

318...59318B...9631c...76Jtcc ...57318...'r733 ... 19,29

330 ... 58

34 ... 50

35 -..29,21036...29,2t0,22837...7,2838 ... 26, 69, 70, 125, t4539 .,.124,13038 ... 95, 96

4 ... 27, 32, 33, 37, 50, 7 4,99,122,143,190,r92,208,215,221,225,229,235,236,239,240,253...

4:0O...274:15 ... 27, 221, 239, 240

4:22...25340 ...97, t3041 ...187-189,192,

215-218,223,224,

226,229,236,240,241

42 ...21045 ...21148...228

496...230,23rs ... 32-34, 39,st,'7 4, t43,

152,170,174,192-194,225,231,235,240

50 ... 52, 1 14

500...227,230,2315l ... 163

55... 163

6 ...120,193,19460... 15i,228600 ... 32

650...32,24468 ... t227...60,66,143,15570 ... 151

700 ...497th ...2188...60,67,'7788 ...223

9 ...117,242,252,2539:30 ...242,252,25390 ...209,23691 ...9, 10,20,47,48

Aa.m....253ability ... 178, 179, 203

able .-. 27, 45, 47, 65, 144,

189,228

above ... 35,38, 62,91,92,123,240

abrupt... 196

absorb... 184

abuts... 150

accelerated ... 199

accept...126

access ... 7 5, 126-129, 143,159,160,174Accessibility... 230

accommodate ... 247, 252

accommodating ... 66, 67

according... 14,55

account... 199,231

accounted ... 208

accuacy ..- 21'l ,221accurately... 194

achieve ... 204

ackrowledge ...4I,214acquired ... 34

acres ... 34

across ... I27 , 160,162,219

Act... 9

actnd ...43

acting... 105

action .-..1 1, 40, 41, 43, 46,

I r44, loy

I actions...44, 105, 111

Iactivities ... 9

I activity ...9,247

Iactual ... 31, 62, 64, 188,

I 208,24r,243

I add ... 2s, 26, 2s, 70, 212,

I zz+,zso

Iadded ... 233

Iaddition... 108, 167

Iaddress... 18, 19, 105, i08,

| 163,232,234

Iaddressed ...122,123

Iaddresses ... 8

I adds ... 181,208

Iadequate ... 47,171

Iadjacent ... 11, 225,235

I adminishative ... 8-1 1, 19,

l))t--I

admissible ...12, 119

I admltted ... tu6

Iadopted ... 243

Iadvance ...221^^^

I aovanEges ... luJ

Iadversely... 179

I advice ... 109. 1 i6

advise...116

advised ... I 18

advocate ... 26

Aegis ... 249

aeial ...79,80, 84, 85

aerials ... 85

Aesthetically... 152

affect... 166, 178-180, 182,

218

affected ... 9

affecting... 179

affects... 178, 180, 181

affidavits ... 28,245affiliated ... 163

affixed...48, 141

afforded ... 50

affords ... 45

afield... 136

Afternoon ... 162,211

against ... 39, 44, 7 ),'7'7, 78,

80, 81, 90, 95,97, rrt,140, 145,208

agancies ... 10, 108, 167

agency...242agree ... 12, 13, 21, 39, 17 9,

233,245,247,249agreed .,. 9, 19, 27, 29, 68,

69,99, 100, 2t0,221,24s,247

agreeing ... 21

agreement ... 62-64,1 1,72,

118,119, t2t-t23,125,220,249

agreements ... 119

Albany... 166

alcohol... 138

alleged... 15,56

allow -.. 11, 21, 36, 105,

249,250allowed ... 25,28, M,45allowing ...213

almighty...4lalone...240alteration ... 87

altercd ... 85

altering... 110

altematives ...249aluminum... 52

amend...25,222amended ... 20, 25, 218, 223

Amendment ...220,224American ... 166

amongst ... 15,32

amount... 101, 175, 199,

204,227

amounts... 181,182

analysis... 175, 181

Anderson ... 164Andrea... 108

angle ... 63, 94,190,211,236

annual ... 223,224

anticipate... 8

anticipated... 18,36

anyplace .-.94,206anyivays...51,161

anywhere ... 151, 189, 202,

204,205,208apparently ... 44

appeal ... 8, 10-13, 21, 22

appealed ...10,245appeals... 10,21,23

appear ... 191,194,215

appeared ... 238

appears ... 88,97

apple ... 56

applicable... 191

applied ... 246

apply ... 15, 195, 196, 232,

245

appreciate ... 16, 17, 23, 9'7,

102,103,120,213approach... 65,70, I 19,

122, 128, 187 ,220approached ... 62

appropriately... 43

approval ...20,22, 115

approvals... 13

approved... 131

approximate ... 229

approximately ... 32, 51, 58

61,76,9'7,98, 103,

135,152,229,230appurtenant ... 37

April ... 145,237apron ... 55, 56

Architects ... 165

area ... 9, 33, 38, 40, 41, 46

55,56, 59,65-68,7 s,

79,82,83,86,88,91,92,96,97,121,128,135, ... 138, 143,149,

150, 178, 180, 183,

t90,192,193,196-199, 20r,212,)11 ))O )1,7

areas ... 9, 1 6 1 , 1 65

arguing... 15, 38

argument ... 33

arguments ...41

arise... 137

Ark... 136

arrived ... 25

arrows ... 111

Ashford... 165

aspect ...22

aspects...12

asphalt ... 55, 88

asphalted ... 88

asserted...102,103

assess... 193,204

assessment ... 189

assist ... 12, 50

assistant ... 52,ll4, I34,135

associate... 165

associated... 167, 168Associates... 165

Association ..- 1, 23, 136

assurances... 167

astronauts ... 234

auached ... 32

^tte'rlpt...42attention ... 21, 28, 31, I i0

229,249

Attorney ... 14,26, 54, 62,

105, 109, I 16, i 18,

144,214



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



LANDING vS BORDEN LIGHT.#254067 Vor,.I lu8tr0Word ...... Pa

attom€ys ... 54

athaction... 157

authenticity...9, 19

authorities... 108

authorize... 149

avail... 15, 17

available ... 193, 239, 251,252

Avenue ... 114

average... 78

avoid...244,249aware ... 45, 54, 60-62, 7 I,

110,113, t27,r3r,133, 143, 148, 157,

160,218

awhile ... 106, 108

Bbachelors... 163

back ... 17, 27, 34, 36, 65,67,68,75,77,83,84,86,89,93, 103, 105,

109, 121, 128,132,141,190, ...201-203,

206-208,214,228-230,

239,241

backfilled ...65

background ... i63backhoe ... 230

backhoes... 101,230

backwards ... 62

bag... 155

Bait... 136

balconies ... 55

balcony ... 43,52,56ballast... 231

bang... 155

banging...99, 155

bank... 30, )2, 33, 36, 41,

5t,66,67,76,85,89,93, 108, 1s3,2r9,238

banks ... 65

bar -.. 98

barely ...52,94barrels ... 73

barrier... 35, 36, 45, 200

barriers ... 90

base... 187

based ... 31, 78, 83, 86, 92,

103, t42,143,197,198,205, 216,219,220,230,231,236,238,239,24t,...242,245

basin... 86,87,94,95basins ... 86

basis ... 200,201,205batteries ... 139

bay ... 33, 35, 36, 38, 50, 73,

87,90, 135, 136,t',17,

181,204,2t2BB ... 95

beach ... 75

beaing ...224

Beattie ... 73, 98

beautiful ...36,50,53became ... 40,94become ... 61,62, 117 , 182,

238,239

becomes...203,2ll

caused ... 17, 4l, 132, 134

causes ... 208

cell ... 167

center.-. 97

certain ... 8, 9, 30, 123, 127,

175,200,20s,248certainly... I 1, 16-18, 20,

23,33,43,54,144,118,199,2st,2s2

certainty ...200,201certifications ... 163, 164

certified... 109

chain ... 140

chak .-.62,72chairman ... 62,84, 106,

lt7, 133, 146

challenge... 168, 180

chance ... 128, 214, 223,

224,226,244change ... 170, 196,208,

209,219,221,239changed ... 185, 218-220,

224

changes...2l5chapter ... 9, 10, 20, 47, 48

characteristic... 182

characteristics ... I 82, 185

charge... 135

charger... 139

check ... 26,27,65,128Chief...89,131,147circumstances ... | 5, 36, 21

city ... 42, 49, 53, 90, 99,

104, 105, 107-i09,

147,242,247,248civil... 163

claim... 43

clarification ... 190, 210

clarify ... 160, 11 l, 240

Clark ... 163

classic ... 46

clean ...65,243cleaned ... 72,13,84cleaning ... 73

clearer ... 4lclerk...7,'12clients... 167

close... 45, 78, 85, 90, 101,

126, 133, 145, 146,

181,201,240c'loseness ... 74

closer ... 45, 184, 204, 229

closest...42, 192

club ... 32, 51, 52, 80-82

co... 162

coastal ... 9, 30, 32, 41, 165

168,251,252

Code ... 14, 47,48,195,196208,232,242-245

codes ... 47,166,167coexist ... 40,45

coexisted ... 45

coincides ... 128

College... 163

color ... 89, 95, 96

colors ... 89

combination ... 88

come ... 14, 15,4I-43,66,74, 81, 103, t10,172



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

bed... 173

began ...72, 109

begging ...67

begun... 181

behind ... 170, 175-177,

1 82, 1 83, 196, 197 ,

199, 20t , 205, 207 ,

208,228,233below ... 33, 36, 52

bench ... 28,125,181benchrrarks... 185

benefit ... 33,37 , 127 , 183,

213

benefits ... 34

Bert...48berth... 143

Bertrand ... 49

bifurcating... l9big ... 9s, 97, 151

binder...41,24lBiscoe... 103-105, 109

bit ... 18, 26, 72, 7 6, 126,

136,170,176,t78,188, 190, 192,205,

215,226,228,229,

2]4,249,253...Blanche ... 134

BLM ... 31, 83, 87, 89

block ... 63, 64, 67 -69, 7 5,

83,91,93,94, 138,

173-176,206,207 ,)11 'r'|.')

blocked ... 80

blocking...74,85,92blocks ... 65, 66, 68, 78, 93,

94,140, t41,151-153,171-174,

r76,208,231blood ... 243

bluff ... 35, 36

blush ... 60

board ... 42, 44, 61, 62, 65,67 -'70,72,84,98,105, 106, 110, il2,rr7 , 123, 126-128,

133, t37, t42, ... 143,

145,146, t49,152-154, t67,245

boards..- 167

boat ... 39, 42, 78, 91, 92,

99,131,135,t37-14t,143, 150,

15iboats ... 31, 58,73-75,

77-8t,85,88-91,93,9s,97,99,13s, 138,

1 50, 1 5 1 , 1 54, 1 55,

157,158boatyard ... 137

bobbets ... 140

book ... 27, 50,57,'70,149,193

books ... 48

Borden ... 7, 12, 30, 33, 34,63, 83, 84, 98,

100-102,123,

t25-t27,130,145,150,152,159,169

Boston ... 8, 49, 164, 242

both ,.. 8-10, 22,28,40,75,12s, t27 , r92, 221,245

bothered ... 73

bottom... I38,206,225Bouffard ... 48, 49, ll3, 125,

128,130,132,142,1s6,160

bought... 46,115,136boulders ... 88

boundaries ...64

boundary ... 32, 33, 42, 62,

64,97 , 1r8, 120, 121,

194

bounded...115

bouse... 140

box ...234

Braintree ... i 18

break ... 26, 27, 81, 124,

125, t48, t83,204,21t,241

breaking ...183,204breaks ... 55,89,204BRENNAN ...7-t0,14,

19-22,24-26,28,44,

61,62,64,69,7r,92,100-103,105-107,109,

113, 1i9, ...t22-125,128, 130, 136, t17,142, t44,148, 150,

1s3,154,156,158,

t60-t62,168, ... 169,

177,t79,180,182,186-189, 195,199,

200,204,205,210,21r,214,220,222,...226,22'1,234,239 -24t , 244-247 ,

250-253

Brian ... 34,37, 54

bridges... 165

Brief ... 125, 142, 209, 238,252

brings ... 42,25iBristol ... 158

broad... 160

broader ... 37, 38

Brooks ... 44, I l8brother ... 19, 46, 247, 25Ibrought ... 72, 7 3, 84, 86, 97,

136, 161,202,246

bucket... 230

buckets ... 230

build ... 4?, 62, 65, 7 5, 88,

99,139,145,146building ... 13, 14, 32, 33,

38,39,42,47-49,5t,

52, 56,60,62, 63, 66,67,77-82,86,91,93-96,99-101,...

103-107,109,111,

tr9, 143-147 , 152,

153, 173, 174,184,

187-196,206,208,

212, ...215-217 ,224,22s,229,23t,232,23s,236,240-248

buildings ... 32, 33, 38, 43,

53, 60, 66,74,82,8s,

93,9'7,143,165, 166,

1'70, r74, 177, 183,

1 84, 1 86, ... 192-194,204,207 ,215,218,2r9,224,225,232

builds ... 244

built... 1 l, 15, 46, 159, 160,

171,180,191, r95,204,212,243,246

trulkheads... 165

bulldozed ... 75

bulldozer ... 93, 1 1 1

bulllng ...43

bunch ... 52

business ... 52,102, I14,115,163

bustle ... 50

buy... 115,228

Ccalculation ... 198, 219

calculations ... I7'7, 195, 245

call ... 48, 51,52,95,116,126, r39,162,16s,t72, 184, 198,247 ,

249called ... 15, 1 6, 32, 34, 35,

37,39,81, 139, 150,

r72, 196,203,241,252

calling ... 24'7,250

calls ... 92

can ... 1 1, 12, 21, 25-27, 35,46, 48, 49, 52, 55, 57 ,

59,60, 65-68,70,72,

73,76-82,85,87-89,9l-97, ...103, 104,

111, 112, 125,128,

131,134,137,139,140,144,150, i51,153, 154, 156,,..

161-164,166, 168,

r77-r8r,183, 186-188,

193-t96,202-205,210-2t4,228,231,233, ...239,241,244,245,24't -249

capabilities ... 9

capacity ... 154,197

captain...52, 150

captidn... 122

captioned ...122,123car... 88,89

care ... 48, 57, 112

cared ... 56

career... 166

carried ... 25

cars ... 155

cart... 56

case ... 8, 12,14,15,17-19,23,30,31,35,36,39,40, 42, 43, 45,46, 61,117,118,120, i53,172, ... 214,247

cases ... 42, 74,161, l'75,205,20'7

catch ... 86, 87,94,95category...164

cause ... 46, 139, 1 81, 1 83,

197



3

LANDING VS BORDEN LIGIIT . #254067.VoL. I. 1 1/8/1 O

Word...... Word Pase Word ......Pase Word...... Word

179,221,228,243,249,2s0,252

comes ... 23, 68,'1 4, 139,148,228

comfortable... 21

coming ... 81, 95, 99,

227-229,253

commenced ... 66, 67,84comment ...55,220comments... 241

commercial ... 150, 165

comm'ittee... 147

corrunon ... 32, 44, 64, 127 ,

172,202

communication ... 145

cornmunications ... 133, 134

compact... 202

compacted ... 17 3, 202, 203

compacting ...205

compaction ...203,204compactor ... 202

company ... 102, 165, 249

compare ...2O3,204

cornpared ... 97

comparison ... 204

competent ..- 44competing... 36

compilation... 240

compile ... 240

complain ...41

complained ... 42, 145, 146,t54

complaining ... 158, 161

complaint ... 13,25, 40,43,104

complaints ... 42, 7 4, 99,102,103

completed ...65completely... 151

complex ... 51, 63,79complimenting ... 126

comply ..,56,243composite... 172

compressed ... 238

comprised ... 238

conceded ... 24

concern ... 81, 154, 170, 17lconcerned ... 16, 73, 80, 85,

90, 99, 130, 154, t7t,194,220,246

concerns ... 36, 7 3, 136, 1 67,

169,183,229

concert ... 46

conclusion ... 92, 169, 180,

r8l,184, t92,t94,20s

conclusions ... 177, 182,

r93, t95,204concrete ... 55,68, 69,172,

176, 186,205

condition ... 43, 65, 7 3, 112,154,203,204

conditions ... 9, 10, 21, 170,196, 198,203

condo... 111, 112, 136, 148,| 5l

condominium ...'7, 23, 32,38,46,61,78,97,136,142

condominiums ... 11, 47,

158

condos... 157

confer ... 248

conference ... 16, 17 ,253confirm... 145

conflicts ... 215

conform... 99

conforms... 209

confused...2l5,249Connecticut ... 164, 167

connection ... 38

consecutive ... 203

consensus ... 6lConservation... 104, 107,

t47consider... 15, 48, 196, 244

consideration ... 13, 219,

244

considerations ... 195, 199

considering... 169, 199

consolidated ... 238, 239

constantly... 155

constrain... 196

construct ...75,243

constructed ... 8, 14, 31-33,36,4t,44,60, 63,65,

77, 80, 81, 85, 89, 93,

t29,142,151, 159,

166, 169,... r70, 178,

181, 182, 1,94,212,

2r3,245,246,249constructing... 75

construction ... 1 1, 15-17,

23,24,30,32,35,38,41,42,60,64,66,72-74,82-84,86,91,99-103, 105,... 107,

t23, 152-155, 166,170-t72,205,206,209,212,226,228,

233,242,244-246Consuitants ... 163, 240

consulted... 144

contact... 102, 107, 109

contacted ... 42, 62, 109,147

contacting... 109

contained ... 37

containers ... 202

containment... 138

contains ... 37

contaminated ... 168

contamination ... 168

contempt ... 12, 13, 15, 16,19,24,28,33, 43,45

content..-225

contested ... 20, 29, 220continue ... 37 , 162,

1 82-l 84, 197 ,2rr,248

continued...111,182continues ...41,173continuing ...27,165contour... 183

contract... 123

contractor... 83

conhadict...46conhary... 250

contribution ...64control ... 9, 30, 31, 35, 36,

41, 47 ,90, tt6, t79,180,182,188, 193,

196, 199,200,203,239

controlled .., 202, 2O9, 239

convenfional ... 201, 205,z))

conversation ... 56, 58,

66-69,84,98, 101-103,

105, 108-1 12, I 18,

r32,134, t44,146-148conversations ... 131, 133

conveyance ... 34,37conveyed ... 37

conveys ... 34

convinced...182,185

convincing... 123

copied ... 218

copy... 28, 125, 189, 210,

222,248Corey ... 34,3'7,54comer ... 46, 91, 95, 96, 101,

174,188, 190, 191,

215-219,223,22s,23t,235,236

comers ... 170, 184, 187,

189, t92,2t7corporate... 147

corporation... 107

corrected... 137

correctly ... 22, 1 41, I93correspondence ... 10, I 1,

69,70, 108

corresponds ...226

cost... 16, 127

council ...42, 167

councilor -.. 104, 107

counsel ... 7, 20, 28, 30,

42-46,107,109,118,

tt9, 121, 147 ,162,210,221,244,248,7\t 7<)

counted ...58, 173

counterclaim ... 25

counterclaims ... 25

counting... 62

couple ... 12, 26, 58, 63, 65,78, 88, 1 15, 150, 175,

t85,207,241course... 15, 18,36-38, 115,

1 16, 135, 139, 156,

l7l,174,178, 181,

182, t99,206,216,227 ,237 , ... 238

courses .-. 17 4, 207, 208

court ... 7-31, 34, 35, 37 41,44,48,50,51,53;60,6t,69-72,85, 89, 92,

95-97, 100-105,

108-1 10, ... I 13, I 17,

119, 120, 124, 125,

128,130-132,136,

t37,139, t42,144,145,148, ...149,153-156,158,160-162,

167 -169, 17'7 -t82,186-189,195,196,

199-20t,204,210-214,... 220-222,226,227 ,

239-253

courtrooms ... 27

cracks ... 70

crane... 93

crazy... 155

create...l1,l15created ... 46, 1 l6creating ... 205

creative ...234credence... 181

credibility... 196

crew... 101,216cribbing... 141

crinkle... 155

crinkling... 155

criteria... 196

critical... 178

cross ... 107, 113, 150, 191,

206,211,220,226crutch ...49crutches ... 144

cso ... 90,99cum... 163

curious ... 59

cunent ... 44, 203, 204, 224

curriculum...29,2l0customers ... 138

cut ... 31, 65, 87, 88, 94,

tr6,226,228cuning...93, 154

cv...210

Ddamage... ll, 16-19, 29, 43,

218,2t9damaged ... 16,24

damages... 16, 17, 19, 169

damaging ... 183, 184, 204

danger ... 43

dangerous ... 43Daniel ... 7

dashed ... 219,224

data ... 238

date...63, 165,248

dated ... 30, 85, 120, 130,

218

dates... 144

day ...26,73,98, 111, 166,

184,252

daylight ... I 12

days... 18,25,30,65dead ... 87

deal ... 20,30, 31, 144, 155,

165

dealing ... 31

dealt ... 251debris ... 91

December ... 110, 111, 144,

146

decide...24,229decision ... 12, 13, l7,'/2decisions... l0declaratory... 12

deduct ...227

deed ... 37

deeds ... 34

defendant ... 7, 8, 1 Idefendants ... 13, 24, 33, 47

defense ... 15, 25, 45, 247

defenses ... 21,22

definitely ... 24, 86, 89

definition ... 38, 39, 47,17209

defin'itive ... 120

definitively... 109

deflection ...237degree ...

163,182,200, 20z5b

degrees ... 163, 208, 209

demonstrate ... 246

demonstrating ... 196

dense... 2O3,238density... 202

deny... 120

DEP ... 8-10, 12-14,20-23

42,108,109,r47department ... 147,245

departments ... 147

dependent... 182, 198

depict ... 59,7 6, 77, 85,

88-90,93,97, 100

Depicted ...32, 52,8Idepiction ... 57 ,215depicts ... 51,79,82deposition ... 251

depth... 172

depths ... 202

derelict ... 73

describe... 79, 80, 137, 13

150,171,173,184,205,238

described ... 38, 77, 99, 1 1

144, r83,196

design ... 168,174,231

designation ... 223, 225, 23

Designed ... 165, 208, 230

designing... 165, 168

despite... 15,30,41

detect... 236,237

detected ...235,237determination ... 16, 17, 20

LJ, ZJO

determine ... 13, 14, 23, 3847, 48, 105, 169, 17 s

177 , 180, 1 8 1 , 1 84,

195,240,242,243,252

determined ... 18,24, 228,

230

determining ... 17, 1 66, 19

198

develop ... 10, 1 14, I I 5

developed... 10, 143, 157,

196,197

developer... 165, 168

developers ... 34

developing ... 46, 116, 182

185

development ... 46, 52, 11

157,158

diameter... 185

dictates ... 173,231

dictionary ... 39

differ ... I l, 215

difference ... 10, 95, 224,

236

different ... 9, 16-18, 20, 2



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



LANDING VS BORDEN LIGHT #254067 Vor,.I I 1/8/10

*g

37,52,55,'14,89, t32,166,170,172,195,196, 198,215,239,246

differential... 172

differently... i78differs...215difficult ...40,252difficulties -.. 43

difficulty ...212,243dig ... 95, 101, 230

digging ... 90, 91

dilapidated ... 46

diligence... 175

dime ... 185

dimension ... l7l,190, 192

dimensions ... 172, 186, 189,

217

dire ... 236

Directing ... 229

direction ... 83, 142, 177,

r89,233directions ... 209

directly... 16, 35, 38, 63,

108,235

directors -.. 133

dlfi...75,79,95dirty... 15

discipline... 164

disclaimer ... 217

discovery... 247

discrepancies ... 216

discrepancy ... 54, 193, 21 5,

216

discussing... 166

discussions ...42,62dispense ... 26,35

dispensing ... 27

displaced ...197,2O4displeasure ...44,46dispute... f0,31,42

disrupt ... 241

dissatisfied ... 126

dissipated ... 204

distance... 190, 197, 198,

206,2t6distances... i84, 186, 189

distress ... 236

distribution ... 222

disturb ... 229

disturbance... 199

disturbed ... 97 ,238divided ... 47, 1 15

dock... 138

document ... 31, 32, 37 40,63, ll8-121,125,128,129,134,149, 16l,

214,220-222,224,225documents ... 9, 33, 35, 37,

131, 134,220,247

doghouse...99, 139

Doire ... 132-134

dollar... 4ldominant... 9

Don... 162

Donald... 162, 163

Donnelly... 105, 144

door ... 52

Dore ... 132

10 0tex'isted ... 36,203

exists... 191

expand...131expans'ion ... 57,62

expect... 175

expecting ...252

expense ...222

experience ... 52, I50,200expert ... 45,154,166, i68,

249

expertise... 153, 156, 168,

169,177,200

experts...11,14expire ... 63

explain ... 54, 96, 196, 213

21s,234

explained... l20express ... 56,99

expressed...44,lO2

expressing ... 46

extended ... 87

extends ... 32

exterior... 175, 189

extra ... 65, 67, 68

Ffabrication... 166

face... 156, 175, i87,189-192, 206,217,24

faces ... 176

facilities... 137

factored ... 230

factors ...44,245fail ... 14, 181, 183,250

failed... 14, 166

fails...183fajr ... 52, 57, 104, 105, 12

121, 126, 129, 135,

138, 142, 143,145,

215,231,233,23'7,

239fairly ... 40

Fall ... 26, 42, 48-50, 52-5

104,105,109, 145,

147,182,183, 218,

242,246

falling ...92,154familiarity ... 137

familiarizing... 170

far... 19, 24, 44, 45, 48, 5

55,64,72,80,81,83,95,136,137,146, l6167 , 170, I 93-l 95,

206, ...216,218,219230,246

farthest ... 49

fashion... 19fast ... 182

fastened ... 141

faultily... 14

faulty ... 14,43

favor.-. 67, 108

feasible ... 205,201

February ... 46, 17 5

Fedexed ... 25

feel ... 26, 205, 242, 246

feeling... 192

feels ...27fees ... 28



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

dot... 107

double...95downspouts ... 95

dozen ... 13,167,168draft... 20

dragged ...241

drain ... 87, 92,94,95drainage ... 35,36, 45, 47 ,

73,86,87,120, t2t,143, 161, 178,179

drained... 86,87draining... 87

drains ... 85, 99, 100, 108,

110

draw... 169, 189, 193, 194,

204

drawing ...217 ,225drawings ...216

drill ... 236

drilled -.. 234

Drive... 49,51

Driven ... 185, 186

drives... 155

drop...73,99,207dropped... 174

dry... 138, 139

due... 175, 196

dug ... 89, 94, 96, 229, 230

dump...202Duquay...73,98dust ... 99

duties... 135

duty ...27

Eeach ... 19, 164, l7 4, 11 5,

199,224

earlier ... 57, 88, 97, 17 6,

t92,199,205early...53, 145,237

earth ... 59, 9'7,171,172,

199easement ... 8, 9, 13, 15,

t8,19,24,30,3t,33-37,3941,45,47,48, 73, 78, 86, 91,

t21,159-r6t, ...

178-181,183,186,

191-195, 199,200,212,2t4,234,243

easements ... 12, 17,18,33-35,37 ,40, 12t,127 ,243

easier...48, 128

easily ... 58

East... 137

easy... 38

Ed ... 69

edge..-62,241Edmund...7education... 165

educational... 163

effect ... 19, 71, 1 10

effectively ... 40

effects ... 153

egregious ... 32, 43

egress ... 89, 129

eight ... 83, 135,147,l'72,r7 4,206,230

elaborate... 170, 188

electrical ... 104, l12, 147

electricity ... 97

element... 172

elements ... 179

elevation ... 32, 53, 176, 183,

r91 ,198,211,218,2t9,223-225,240

elevations... 33, 190, 198

Eleven... 192

eliminated ... 40,154embankrnent ... 175, 184,

202,228,232,238embankments ... 239

embedded ... 172, 173

embedment ... 17 l, 17 3, 17 5,

176,205embedments ... 172

Emmer...44, 118

emphasize ... 137

emphatic... 57

employed ... 163,164

emPlol,rnent... 164

encompass ... 137

encroached ... 217

encroachment... 121

energy... 184,203enforce... 161

enforceable... 123

enforcement ... l0engine ... 81

engineer ... 65, 147 ,156,l6l, 164, 168,180,

208,209,234,242,

249,250

Engineering ... 32,68, I02,109, t27 ,163-16s,168,188,193,194,

200,201,215,231,232,249

Engineers ... 163-165, 240,1^A

engines... 138

enter... 130

entered ... 41, 44, 188,210entire ... 72, 195,201entities ...40entitled ... 10, 119,122, 129,

t30,220,224entrance ... 46, 75,81, 126

entranceway... 83

environment... 239

equals ... 224,225

equipment... 189

equitable ... 13-15,41

equities ... 24

equiry...22,243erect... 4l

erected ..- 32,33, 35,83erection ... 38

erections... 30

eroded ... 67

erosion ... 9, 30, 31, 35, 36,

41, 45, 4'7 ,90, 91, 94,

143,154,178-181,

183, 196, 199,200,

202,203, ...207 ,219,239

Errico ... 44, I 1 8

error ... 21

errors... 166

essential ... 130, 166

essentially ... 39, 40, 63

establish ... 12, 31, 136, 185,

248

established... 184

establishing... 120

estate ... 9

estimate .-.227

estimated ...218,223estimates ... 58

evaluate... 15, 16, 103, 169,

175,242evaluating ...23evaluation ... 169,249

evortually ... 177,197

everyone... 54

Everything ... 29, 53, 63, 65,

67,'72,75,88,100,117,138

evidence ... 7 -1 1, 14-18, 23,28,31,32,3s,36,39,40,42-4'7,66,70,723,125, t30, 1 88, 1 89

exam... 164

EXAMINATION ... 49, 57,113,t26,130,136,144, 149-151, 156,

161,162,21t,220,226,232

examine ... 17 5, 212, 231

examined ...227

example ... 9, 20, 33, 1 15,

116, 140, 14r,206,)1q'r)\

examples ... i66excavate ... 41, 108, 206,

z)zexcavated ... 3l-33,41, 89,

95,96, 143, I 83, 203,

204,239

excavating -.. 143

excavation ... 16, 17 ,30, 41,

42,44,'19,83, 89, 92,

96,101, t03,r0'7,r44,153,203,20s,206

excavator... 101, 102, 175

Excavators... 101

exceed ... 31, 17 4, 197

except ... 29, 39, 61, 119,)a1 1<)

exchange ... 220

exclude... 11

excluded ...11,47,200exclusion ... 38

exclusions ... 38, 39

exercise ...39,40

exert... 19?exhausted ... 8, I 1

Exhibit ... 7, t9, 27, 31, 34,35, 37 , 39, 4t , 48, s0,53,s7,59,69,70, 85,

96,100, t23-125,t30,145,... 187-189,

192-194,198, 210,

2t5-218,22t,223-226,229,236,240,24t,24s

exhibits ... 12, 27 -29, 31, 37,



;?

LANDING VS BORDEN LIGHT #254067 Vor-. llt8n0Word ...... P

feet ... 3 1-33, 35, 38, 57, 68,74, 80, 83, 88,91,92,i4l, r45, 154, 160,

168, 172-176,180,

190-192,... 196-198,

204-206,208,209,

2t5,216,219,224-227,230,231,236,244

fell... 18,70feIt... 40, 60, 66, 181, 185

FEMA... 197, 198,218,219,22r,222

fence ... 55, 59, 62, 7 3, 7 6,

79,81,83,89,90,93,95,97,99,100,120,tzt, t54

Ferry...63FF ... 97

field ... 200, 216,217 ,24O,241

Fifty ... 68, I 13, I l4figure ... 27, 234, 240, 241,

253

figured... 185

file ... 1 l, 25, 28, 40, 248filed ... 7, 12, 22, 25, 40, 41,

43,245

files ... 134, 248

filings ... 20

fill ... 197,202,239filled ... 89, 138,197,239final ... 9-l I

find ... 16, 19, 31, 42, 106,

108,111,132,168,185,193,208,233,243

fine ... 26,45, 47 ,92, 169,

176,179,181,211,221,227,236,247

fined ... 99

finger ... 5'l ,58,76fire ... 80, 81, 85, 89, 130,

l3l,147firm ... I 18, 188

First... 12, 20, 34, 37, 39,42,48-50,56, 58, 60,

72,76,98,105,108,l1?,118,120,t29,I 3 I -1 34, ... 139, 164,

173, t84,190,206,242,243,248,252

Fishing ... 51, 52, 80, 81, 89

fle ... 21, 27, 55, 7 4, 83,t0s, r24,127,128,163,164, t74, t7 5,

192,21r,227

fix...62,87, 100fixed ... 87, 99,146,235Flanagan... 107

flat ...20'lflood ... 9, 35, 45, 165, 180,

182,183,193,

196-200,203,218,

219,223,224,240floods ... 36

floor ... 80

Florida... 84

focus ... 33,35

Word

height ... 69,92, 125,

172-t74,195, 198,

205,208

heights... 196, i98held ... 183,203

helicopter ... 58

heII...132help ... 13, 18, 53, 57 , 62,

66,117,166, r90,19s202,228helpful...31,7l,24lhelping... 69

Herald ... 112

herein ... 38

hereinafter... 38

Hey... 68

hid ... 54

high ... 33, 62, 63, 91, 97,1 19, 16s, I 70,

1'72-175,183,196,

l9'7,231higher... 196, 198,208

highlight...39hire ... 1 16

hired ...42, 102, 105, 109,

I 16, 175,226,227Historically ... 246

history... 238

hit...229hits ... 204

hold ... 74, 76,82,153,164202,232

hole ..- 101, 102, 230, 236

holes ... 185, 229,230,234

Holmes ... 249-251

home ... 1 I l, 163

Honor ... 7-14,16, 18-20,

22-24 , 2645 , 47 , 48 ,

50,51,53,56,61,69-'71,76,8s,92,96,97, 100-i04,... 106,

107,110,1i3,1i9,120, t22,123,125,128,130-132,136,

137,142,t44, ...145148, 153-155, 157,

1 60-t 62, t68, t'|'1 -17

186-189,195,199,

200,204,2r0-2t3, ...

220-222,226,227,

239-248,250,253

hooked ... 87

Hope ... 32, 33, 35, 36, 38,

50, 109, t27 , 135, 18

188,193,194,204,

212,215,216,221,

224,248...

hopefully ... 22, 33, 141

hoping... 64

horizontal ..,209

horizontally ... 17 3, 209, 21

hour ... 103, 1 12

hours ... 26

house... i15hundred ... 58, 68, 136, 227

hurricane... i83, 197

hustle... 50

hypothetical ...213

IKS COURT REPORTING

14 Palmer AvenueDanvers. Massachusetts 01923

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

focused ... 245

focusing... 137

follow... 23, 55

followed ... 14

following ...37,164foolishness...111

foot... 8, 19, 30, 31, 35, 36,

45,41,48,73,78,86,91,97,159,172,173,180,183,190-194,r99,202, ...204,209,212,230,234

footing ... 205

force... 183

forced... 174

forces... 165, 183, 196,197Ford ... 131

forensics ... 166

forgot ... 44

form ... 160, 194, 199, 203,)1o 7)) 1'1L

formation...224formed ... 180, 181,

r99-201

former... 200

forming... 219formulated ... 195

forth ... i21, 128, 132, 214

Forty... 130

forward ... 18,25, 30,41foul ... 243

found ... 56, 109, 110, I l7foundation... 188

founded ... 238

four ... 50, 51,74,78,122,140,164, 172,

174-t76,208,229,230,235,237

fourteen ... I 15, 1 16, 192

fourth ... 20, 93

frame... 151

Franklin... 163frankly... 30, 31, 43, 178

frequently... 154

friend ... 114

friendly...49front ... 8, 32,33, 48,59,

60,63, lll, 167,176,

194,2t5,223,227-229

frontage ... 1 16

full ... 137, 162, 216, 230

function ... 178, 180, 182,

t96,213functioning... 179

functions ...137,178Furtado... 102

further... 18,25, 113, 148,156, 162, 1 88, 204,

zrt,215,229furthest... 32, 135

future... 14, 15, 18

Ggaloshes... 155

gaps ... 111,176

Gas ... 137, 138

gave...181,232general...31, 154, 164

generalization ... 228

generally... 17

gererate ...199,224gorerated... 145

gentleman ... 136,25O

geofabric ...199,207,227-229,23r-234

geognd ... 93, 152, 17 1-17 5,

r77,202,20s,206,227,230

geologist...251,252geologists ... 9

geosynthetic ... 202

geotechnical ... 204germane ... 14

get ... 7, 40, 46, 62, 65, 7 5,

99,10r,106-108,130-132, 137 , 140,t4t, 146, 164, 170,r72, r73, t7'/, ... 179,195,202,226,232,

239,2M,24'7,248,251

Eets ... 17,211give... 31, 58, 62, 68, 72,

74, tt2, I 13, 145, 161,

166,167 , 172, t80,186,187,195,205,225,249...

given...33, 121, 170, 190,

201,220,232,233gives... 195

glacier ... 238

glycol... 138

go ... 8, 13, 17, 18, 20-22,

24,26,2',7,29,34,42,47 , 48, 53,59, 64,67 ,

75,76,78,81,84,89,94,95, ...97 ,106, 115,

t28,131, r32,134,13s,140, l4l,156,157,168,170,t73,

184, 187-189, ... 20s,206,211,212,218,223,23r-233,239

goal ... 203,205goat...79

going ... 12, 14, 16-19, 23,

24,26,27 ,29,30,33,36,38,41, 4345,48,53,54,59, 60,62,68,69,77, ...79,83,8s,87-94, 100-104,

106-109,111, ll4,119,132, t36,138-140, 144,147,

148,... 155, t62,173,t77-179,201,207,

209,2r1,214,220-222,226,232,

234,235,239, ...24t,243, 246,247 , 249,

250,252gone ... 9, 30, 58, 73, I 15,

186,246

Good ... 7, 8,12,49,79,126,142,152, t62,

2r3,241,2s1govem ...47

govemmental ... 242, 247

GPS ... 189

grade ... 100, 152, 170,173,196, r97,207-209,21t,225

graded ... 31, 35-37, 39, 40,45,212

$ades ... 201

gradual... l8l,2I2gradually ...142graduation... 165

grant ...37Granted ...48, 181

grass ...65, 89,95gravel ...75,79grav'ity ... 231

greater ... 14, 202, 207, 208green ... 34, 89

Grogan... 62

ground ... 48, 63, 67, 73, 80,

89,94,140,141, 1s1,

188,199,231,23s,240

groundwater... 182

groundwork... 111

grown ... 142

growth ... 142,166guess ... 16, 50,75,173,

225,227,234guest... 82, 83, 88,91, i27,

128

guidance... 195, 196

gutters ... 86,95guys ... 55, 67 ,89, 101, I2l

Hhalf ... 73, 115, 127 , 174,

208

Hall ...95, 109,248

halliards...99, 155

halt... 99

hammer... 186

hand ... 32, 51, 63, 79-81,88, 95, 99, 2t7-2t9,223,224

handed ... 210

hands...15,42,243hanging ... 152, 17 l, 227

hangs... 57,94happily... 63

happy... 61,68,24'7

harbormaster ... 52, I l 4,

134,135

hard ...221harmoniously... 36

harmony -..44haul... 138

hazard ... 80

head... 185hear ... 7, 14, 16, l'7, 22-24,

36,42,43,45,54,101,163, 178, 182,194,

22't ,251heard ... 18, 59, 81, 101,

235,244,249hearing ... 16, 24, 26, 41, 45,

166,168

hearings ...8, 167

hearsay ... 54, 101, l3l,132heated... 151

heavy... 150, 181



LANDING VS BORDEN LIGHT #254067 Vor,. lu8n0

ideal ..,173,233identical ...37,39identification... 187

illuminate ... 76

illuminates .-. 36

imagine... 155'immediately ... 41, 43, 225

impact ... 151,153,177impacts ... 153-155

impede... 81

implying... 233

important ... 23,35,37 , 40,s3, 178, 196,246,250

importantly ... 12,207

impression... 11,152improperly... 213

improved ... 126,159Inc ...37,240incentive ... 36

inch ... 181, 184, 196, 202,

228,215-237

inches ... 1'16, 202, 230

incidental ... 56

inclination... 186

inconsistent ... 171

Incorporated ... 7

incorrect... 102

increase...69, 184

increased ... 58, 185

increasing... 125

indicated ... 14, i9,30,31,35, 57,81, 183, 184,

192,201,242,247,

251

indicating... 187, 190

Indiscemible ... 102, 1 15,

rs6,214industrial ... 46

industry... 167

initial ... 108, 171, 184, 189

injunction ... 13, 15, 17, 19,

30, 41, 43,44, 60,7 1,

109, i10,117,118,243,246

input...26inquired... 147

inside ... 17 5, 190-192, 194

inspect ... 225

inspection ...171,248inspector ... 14, 42, 103,

104, 106, 107, 109,

146,242,244,246-248

install ... 205

installed,..76,89installing ... 9, 173,206

instigated ... 2lInstitute... 166

institutional ... 42-44insurance ... 249

integral... 167

inLegrate ...172

inregriry... 1 1, 153, 168, 195

intending ... 9

intent ... 39, 225

intention ... 10, 16,46

interesting ... 47

interests ... 36

interfere...39,47interfered ... 40

Word

194,218,...223,227,231

looked ... 34, 51, 53, 57, 80

111, ll5,152,2t4looking ... 13, 14, 33, 50, 7

80,82,91, 1 16, 120,

t52-r54, 1 90, 1 94,

224,236,244

loose...203

lose ... 83

loss... 177, 181

lost ... 44, 61, 73, 74, 83,118,151

lot ... 17, 20, 22, 34, 35, 45

54,55,73,82,88,91,128, 132,203,2rs,240,252

lots ... 34,47, 115, 116

Ioud...129low... 170, 172, 173, 196

lowet...2I7lowest... 225

lumping... 234

lumpy... 152

lunch...27, 148

lunchtime ... 26

Lund ... 34, 31,46,53-59,61,63,65-70,13,98,99,104,110-112, 132

134, 146, 148

Lunds ... 246

MMagic ... 139

main..,75maintain ... 65, 66, 199, 20

207

maintenance ... 35

major... 15,34

make ... 14, 18, 19,23,25,48, 55, 65, 68,72,10

101, 107, 128, 138,141,160,163,182,

189,196,...208,209213,2t7,242

making... 14,17,41,99malfunctioning... 143

man...234manager... 134

managers ... 44, 70, 1 17,

123, 126-128, 113,

137 ,142, 143, 145,

146

maneuver... 139

manmade ...39

Manny... 106

many ... 9, 41, 44, 58, 88,

I 12, I 15, 119,149,160,167,168,173,

174,20t,227,229,235,237,246...

Map ... 218, 220, 222-224

maps... 198,218

Marcel ... 73, 98

March ... 61, 120, 128, 130

145,237

Marcus ... 44, 118

marina ...'1, 10, 12, 21, 30

33,34,36,38,40,41,43,44, 46, 47 , 5l, 5'/



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

interferes ... 40, 178, 180

interfering ... 48

interlocking ... 64

interpret ...12,34interpreted...122

interpreting -.. 45, 194

interrupt... 85

interrupted ... 226

intemrpting ... 124

intervals... 185

intervene ... 26

introduce ... 69

investigaled ...247involves... 12

IO... 138

irrelevant... 9, 195

kland ... 114,163,164isolated... 150

issue ... 8, ll,12, 14-16,

18, 19,21,22,43,46,47,85,t04,105,128,168, 178,200,207,221,232,...234,244-247,249

issued ... 10, 21,33,60,61,

71, 105,243,24s,246,248

issues ... 8, 19, 24, 26, 27,

38,143,148,16s,167 , 1'17 ,202, 221

items ...26

JJackie... 132-134

James ... 102,249jammed...80

January...46jeopardize ... 72

Jim... 95, 105, 109, 144

Jimmy... 101

job...73,126

Joe... 103-105, 109,

116jog .-.216

John ... 34, 37, 46, 53, 54,

58, s9,63, 6s,66,70,111,112, t32,t34,146, 148, 163

joint...22lJordan... 163

Judge ... 10, 44, 211, 246,

253judgment ... 12, 243, 244,

250judicial... 166,167

July ... 218jump ...20, 208junk... 88

jurisdiction...

lljury...18,23

KKamal ... 116

keel ...78, 140, 141

key ...179kick... 140

kicked... 153

Kilbom...44kiil ... 26

kinds ... 165, 169, 195,234

Krng ... 51,80,81

knowing ... 169,242knowledge ...72, 11O, 120,

136, 146, l 58, I 59known ... 53, 54, I 1 1, 120

knows ... 8, 54, 158

Llabeled... 190

laches... 15,22,43,45

lack ...242LfuG...225laid ... 141, 172-176, 209,

2t7lakeville ... 8

I-and ... 1 l, 52, 70, 83, 109,

110,115, rr7,t30,t39,204,238

I-anding ... 7, 15, 21, 32-43,45,46,49,50,55, 57,

60, 61,66, 72,74,82,87,102,103,106,107,109, ... I I 1-1 13, I 17,

r23,125,12'1-130,

132, t33, t4f, t44,151,153,156-161,

169, t7t, ... 175,178-i80,183,191,192,201,205,206,217 ,2t8, 222,

225-22'7,25r

landscape ... 62

lane ... 89

langhauser... 108

language ... 30, 35, 37 -39

large... 57, 85, 88, 152, 166,

t67,171, t72, t76,t8t,202

larger ... I 16

late ... 26, 144, 145, 237

later ... 65,67 , 17Ilaterally... 183,201

laude... 163lawsuir ... 54,56,136layet .,. 173,114

layers... 174,175,202layout ... 13 Ileading ... 61, 71

leam... 84, 109, 118, 132

leamed ... 117

learning...118

leave ... 29, 156, 183, 191,

2t3led ... 86

Leffort ... 162, 1 63, I 68-170,

180, 181, 187-190,

r93,194, t96,199-201, 20s,2r0,

212,215,222, ...226,227,238,251left ... 32,'1 9, 88, 91, 94, 95,

9'7,123,183,2t8,219,))1 )1n

legal...92, 180

l*go ...64,75, 152

legs ... 236

length ... 68, 172, 17 5, 177,

195,199,227

letter ... 66, 70,71,122,125,1,26,130, 131,220,224

letters ... 51

level... 31, 35, 38, 141, 151,

t76,179,183,197levels... 197

libraries... 165

license ... 10, 20, 52, 108,

1 I 1, 1 13, 1 14, 163,

164

licensed ... 52

licenses ... 9, 10, 47, 163,164

licensing -..21,164fien ...226lies ... 215

Iift... 138, 139

Iitu... 173,202-205

Light ... 7, 12, 19,30,33,34,63, 83, 84, 98,

100-102, r23,r2s-127,130, 145, 150, 152,

159,169...lighting... 112

lights ... 112, 146-148

limine ... 7, 8, lI, 19, 22, 23,

r02

limit... 103

limitation... 16i

limitations ...25, 113

limiting... 155

line ... 32, 33, 42, 45, 52, 59,

62, 64,73,7 4,7'r ,86,90,92,96,97, t27,145,160,186,187,190-192, ...20t,205-207 , 2t2,215-2t9 ,

22t,223,224,226,)'t) )11

linear... 216,227,230lines ... 55, 118, 120, 121,

170, t93,201,220list ... 19, 28-30, 69, 70, 73

litany... l5litigation... 111, 1 17, 1 18,

120, t2r,132-134,246lived...53,54, 143

Liz.., 107

load... 183, 199,208loading... 195-197

loadings... 198,205

loads ... 166, 199,231loam... 65

locate... 185, 188

located ... 36,86,97 , 178,184, t93,215

location ... 78, 152, 186,

187,192,193, 195,

20s,217

locations... 150, 167, 170,

184,188

locked ... 27, 148

long ... 26, 39, 47, 61, 104,

114,115, t20,16t,1 64, 179, 182

longer ... 23, 38, 65, 73, 85,87,154,158, 185,203

look... 13, 32, 38, 41, 52,53,57,60,77,78,93,105,119, 12r,128,134,151-153,156,



LANDING vS BORDEN I,IGHT, #254067, VoT,. I. LIISIIO

Word . .ord...... Word Paee Word......Paee Word......58,62-64,66,72,75,76,84,...87,89,98-102,107,108,112,

120, r23,125-130,

135-137 , 139, 142-147 ,

t49-152,156-160, ...

169, 180,227,234

marinas ... 135-138, 149,

150, 1s7, 158

marine... 137

mark... 69, 124

marked ...'7, 50, 59, 69,'1 0,

7 6, 84,97 , r24, 125,130, 187,210,2r5

marker... 95-97, 185, 186

markers ... 109, 181, 184,

185

marketing... 36

marking ... 111

Marlene... 49

Marshfield ... 164

mass ... 49, 172,196,199

Massachusetts ...8, 47, 163,

164, r9s

material ... 143, l5l, 173,

t'7'/ , 202, 203, 229 ,

239

materials ... 93, 152, 17 6,

238,239

Matt... 109, 110, 118

Mattapoisett... 140

matters ... 8, 10, 19, 44, 116,

222,245

Matthew...7maximum... 198

meandered ... 152

meandering...76means ... 78, 89, 1 15, 176,

r99-201

meant... 128

measure ... 68, 184, 216,

227 ,230,234,235,241

measured ... 68, 170, 175,

186,189, r92,215,216,235-23'7

measurement ... 190, 216,

225,236,237,240,241

measurements ... 170, 181,

184-187, t89,2t7,228,240,241

measuring ... 189, 238

mechanics ... 138

meet... 167

meeting ... 54, 7 3, 97 -99,

252

meetings ... 110member ... 61, 68, 72, 98,

rtz,13'7 , 142, 143,

146, t49,152-154, 166

Memorial ... 73,98

memory ... 42,44,120, 129

mess ... 79

messenger ... 26

metal ... 59

method... 91, 138

methodology... 206

methods ...205

Michael ... 98,99, 104,

107,111, tt2,t32Middletown... 163

midway...231migrate... 171

migrates ... i77migrating ... 176, 177

migration... 176

Mike ... 65,73,79,83,92-94, 109-1.11, 127

mine... 67, 125

mini ... 230

minimum ...177,198misfortune ... 166

misinterpreted ...22misleading... 226

missing ... 29

misstepped ... llmitigatn...207

mixed ... 34

mixing... 117

Mm... 147

moisture... 182

mom... 57

monetary... 17, 64

money ... I l4monitored... 181

month... 182,184,215,237

months ... 54, 121,1,32,

181, 185,237

moon... 234

mooring... 135

moming ... 7, 8, 12, 25-27,

49, 101, I 13, 1 17,

t49,253motion ... 7, 8, ll, 19, 20,

22,23,25,102, 199,

235

Mount... 31, 33, 35, 36,

38, 50, 109, 12'7,135,

181, r88, r93,r94,204,2t2,215-218,221,224,225...

mouth... 54,73,132move... 46, 53, 71, 85, 90,

104, 156, 1',19,182,

t91,192, 196, t97,

199,201,204,233,234,236

moved ... 49-51, 53, 54, 57,

58, 85, 99, t17,132,1 33, 1 38, 1 84, 1 89,

229,236

movement... 181, 182, 184,

185,234-237

movements...238

mover... 59moves... 182, 185, 196,

197

moving ... 152,176, 177,

181-184, t96,191,201

MSL... 35, 36

much ... 38, 44, 53, 66,96,t54,1'73,184,185,204,207,228

mud... 155

muddy... 154

muffs ... 138

multi ...32Multiple... 165

municipal ... 147,167

Nnai1...55, 185

nails... 185

named -.. i68

Narragansett... 50narrow ... 230

natural ... 9, 36, 202-204

naturally ...204,238nautical... 139, 140

NAVD..,223NE...217,240near ... 36, 53, 56, 66, l0l,

174,190

neat... 65

necessary ... 13, 22, 40, 53,

199,208,247

needed ... 55, 99, 106, 17 5,71) )11

negligence ... 11, 12, 19, 169

negligent ...14,23

negligortly... 14negotiate... 72

negotiations ... 46, I 18

neighbor... 79

netting... 1?2

new ... 43, 46, 7 6, 79, 81,89, tt2, t23, 166, 167 ,

226

news ... 112

newsletter... 149

nice ... 50, 57,61,73,75,93, 98,99

nicely... 112

nicer... 100

nine ... I 17, 120, 130, 191,

205,206

nk...190

noise... 44, 99, 101, 155

Inoisy... 153

I non... 160, 167

I nonetheless ... 22i

Inonexclusive ... 8, 39, 47,

| 48, 161, 180,214

Inor ... 248

I norm... 174

I normal ... tE

Inorth ... 51,55,62,63,75,

| 91,119, 136, 142,21s,

| 229,231,2fs

Inortheast... 95, 163, 165,

| zts,229,23s,236,

| 240

I northerly...

32, 35, 56, 142Inorthern ... 191. 215, 216

Inorthwest ... 236

I notation ... 190, 216, 218,

| 22s,240

Inotations ...170,224

INote... 23,224,240

I noted .,. 169

Inotrce ... 25, 80,95, 108,

I tqll'-'Inotified ... 108

INovanber... 49, 80, 85,

| 110,1r7,146,2s3

numbered ... 50,51 |

numbers ...7,190,206 |

Numerically ... 168|ol

Oakdale... I 14 I

oasis... 50 |object ... 21,26, 39, 62, 7 l,

I

l3l,153,168. 169,I

179, 180,214,226 |

objected... 247|

objecting... I 19|

Objection ...23,47,6l, 69,I

7r,92, 100-103, 106,I

107, 109, ilg, t23,I

124,130, r31, r36,I

144,1s3,... 157, r60,l

l6l. 169, 177,179,

I 80, I 82, I 86, 188,

189, 199,200,204,205,212,226, ...247 ,

252

objections ..- 195,210

objects ... 20

observation ... 156

observations ... 78, 86, 100,10t, 142, 143, 236

observe ... 1'75,209

observed ... 142, 17 1, 17 5,

176,182,186,227,,te

observing ... 228

obstruct ... 74

obstructed ... 39

obtained ...43,63,64occasion ... 1 16

occasions ...30, 135

occupation ... 52

occur... 182,204

occurred ... ll, 12, 16, 32,

34,66,61,12-74,82,

83,86,99, t53,203occurring ... 107, 183,238

ocean... 175

October .-. 134,145

odd... 167

offer ... 10, 12, 123, 130,

189,231

offered ... 8, 119, 120

offering ...12, 101,123

office...25, 103, 105, 107,

147, 186, 188,215

officer...27, 135

officers ... 240

official ... 97

officials ... 108

offsite... 150

often...2J3,252oil ... i65old ...224omitted ... 25

one ... 8, 10, 12, 18,2Q,27,

28,34,35,38, 39,45,

48, 50, 53, 57 , 59, 60,

63-67 ,'10,72,73,78,79,...84,8s, r0l, l0s.109, i11,116,119,

I 124,12s,136,137,

| 140,146,149,lsl,I rs+, r58,... 164, 166,

t67,173,175,180-183,190,195,

196,20t-204,206,207,209-214,220,...

224,229,230,232,233, 235-23'7 , 239,)a) )\1 )\)

ones ... 29, 51,70, 140, 151,

157, t58,230onsite ... 209

open...72, 103

opening ... 30

operation ..-36,57op'inion ... 56, 153, 154,

179-182,194, 196,

199-201 , 209, 212,

2t6,218-220,224,225,230-212,238,...

239,249

opposite ... 213

optimum... 202

order ... 7, 12, 14-16,18,2124,28,30,33, 4r, 164

r95,206,201 ,232,243,247,252

orders ... 10,21,61organization... 166

original ... 9, 72, 183, 201,

203

originally... 59, 62, 85, 88,

94,229

originated ... 34

Otherwise ... 20, 39, 56, 60

t01,157,249ourselves ... 195,213

outcome...8,1l,24outflow... 99

overboard ... 92

overgrown ... 89

overlaid...2l7overlay ... 217

overlooked... 136overlooking... 136, 157, 15

overly ...249overtumed ... 172

own...26,60, 106, 114,

135,177,234

owned ... 34, 160

owner ... 13'7 ,142, 154

on/ners ... 10, 26, 37, 137,

222

Pp.m. ...253

pack...202pads ... 55

paid ,..127

paint... 111,138

painting... ilipapers ... 4lpaperwork... 135

parameters... 175

parcels ... 34

Park ... 7, 31, 61, 123, 125

127,t29,130,143,144, 160, 16t,211,)1t ))< ))1

parking ... 55, 82, 83, 88, 9

127,128

partially ... 63



Phone: (978) 717-5802 FA* (978) 777-5803



LANDING VS BORDEN LIGHT #254067 Vor,. 11/8/10

Word ...... P

particularly ... 12-14, 18,37 ,

44,250parties ... 10, 16,22, 42, 45,

62,119,180partner... 46

parts...73,14Pass... 128

Passage... 137

past...133

path ...51,75,94pathway... 89

patrol... 135

Paul ... 73, 98

pause... 142,209,238PCV... 86

pe ce ...44pebbles ... 94

penalties... 13

penalty ...24pending... 8, 10, 19, 70,

117, t20Pennsylvania... 164

people ... 13, 26, 36, 42-44,

46, 85, 91, 99, r32,150,154,155,158,

188,242

percent ... 78, 92, l5l, 223,

224

perfect... 233

perform...30,72performed ... 24, 1 2, 89, I 00,

tol,151,152perhaps ... 12,222,241perimeter... 154, 158, l6iperiod ... 33,37,43, l8l,

t82, r84,235permanent ... 95,96, 128

permanently ... 47, 142

permission ... 65, 66, 72,

113,162

permit ... 12, 13, 20, 122,

t46 )41-74\ )A't )4*.permirs ... 12-15, 21, 22, 63,

64,101,103-105,107,ltl 7a) )4L )46-14R

permitting ... 8, 14, 20, 21,

148

perpetual ... 37

person -.. 103,132

personal ... 102, 135, 143

personally ... 1 42, 1 58, 17 0,

180, 189,234

petroleum... 168

phase ... 44

Phillip ... s1,80phone... 167

photocopied ... 216

photograph ... 50-52, 7 6-82,84,85,8'7 -94,96,97,100

photographed ... 170

photographs ... 19, 59,'76,

80

photos ... 46, 89, 238, 239

phrased ... 178

physical ...170,241physically... 139, 189

pick... 141,206,233

pickup ... 97

Word ...



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

realize... 222,226realized ... 25, 210, 230

Realty... 34

reason... 50, 59, 80, 107

reasonable...200,201

reasons...12,130

retruttal ... 221,250

receive... 64

received ... 25,

tJl,222

receiving... 103

recent... 12,32,42,44recently... 166,223

recognize... 51,70

recognized... l16recommend ...202

recommended ...203

reconstructing ... 206

records... 104, 197, 198,

248

RECROSS... 156, r61

rectifu... 201

redirect ... 149, 16lreduced... 151

referenced...74,l58references ... 121, 195, 198

referancing ... 77

referred ... 36, 37, 55,69, 88

t2l,171, 173, 195,

209,2t2refers ... 38, 2i4reflected... 189

regards...69, 118, 135

Region...8regulation ...208,231

regulations ... 11, 47 , 48

reinforce... 172

reinforced ...205,206reinforcement... 172

reinstalling ... 207

relate ... 8

relation ... 186, 192,212,

22t,232,236relationship ... 90, 209

relative ... 17, 28, 7 4, 86, 9

99, 144, 184,187 ,20242,249

relatively ... 36, 183, 248

relax... 125

release ... 35

Relevance .-. 10,15,24, 13

relevancy...9, 19, 168

relief...13rely ...219

remain ...61

remainder... 207

remaining ...29, 174

remedies ... 8, I I, l?, 18, 2

remedy ... 13,15, 16, 19,243,243,244

remove... 207

removed ... 59,93, 185, i8205,249

render... 153,238

rendering ...227,238renewal ... 108

report ... 68

REPORTER ... 7, 27 -29, 7

124, r30,210repose ... 204

picnic ... 39

Picture... 58,80, 87

pictures ... 59,78, 84, 85,

87, 89, 90

piece...91, l15,116pieces ... 183

pier... 51,76piers ... 57, 58

Piles ... 202

piling ... 77

pin... 184

pipe ... 86, 87, 95

pipes ... 73, 85-87

pitch...207pits ... 175

place ... 19, 21, 32, 45, 47,

48, 50, 83, 98,

109-111,118,123,

r28,132, r33,174,t75,2r5,217,238...

placed ...31,83, 141, 151,

173,181,183-185,

202,208,215,228placement... 135, 195

plaintiff ... 7, 8, 21, 22, 48

plaintiffs ... 8, 10, 16, 25,

222

plan ... 32, 41, 53, 55, 171,

186-189, 192-194,

2ts-218,221,240,241,245

planned... l7lplanning... 18, 130, 167,

251

plans ... 63, 170, l7l,175,209,215,240

Plastic...86, 173

plates... 199

play ... 61, 1 16

plead ... 25

pleadings ... 25

pleased ... 129

pleases... 168

plenty ... 79

plumbing... 104, 107

pockets ... 176

pointed ... 55,96, 185

pointing ... 96,97,216points ... 40, 86, 192, 235,

237,240police... 135

policy... 72, 90

politics ... 53, 105

polymer ... 172, 173

pontoons ... 92

pool...43, 55,65-67poor ... 171

poorly... 84, 166, 178

pop... 57

poppet... 140

poppets ...78, 139, 140

portable... 140

portion ... 35, 36, 39, 41,

44,46, t28,180,244portions .-.40,154Portsmouth ... 52, 53, ll4,

135,136pose... 179

position ... 14, 26,72,77,

104, 114,129possessory... 160

post... 165,245

potential ... 201, 218, 219

potantially .-. 36, 37, 40, 7 I,160

pounding... 59

pour... 138

power... 138

powers ... 13

practice ... 164, 167, l7 l,174,202

practiced... 164

practices ... 205

pray.-.244,250predetermined ... 236

predicted... l83prejudicial ... 1 Ipreliminarily... 168

preliminary ... 30, 41, 43, 44,

60,71, 110

premarked ...28,29premises ... 38

preparation... 134

prepare... 186,225

prepared ..- 31, 188, 193,

215,222preparing... 187,238

present... i4, 16, 18, 165,

168,180

presentation... l8presented ...47pressure... 196,208

pressures ... 172, 196, 207

pretrial ... 16, 17

prevail.-. 8

prevented ... I l0previous ...21,195previously ... 129, 212, 223,

238,239,251principal... l8principals ... 34Prior ... 43, 54, 7 4, 7 5, 77,

79, ltD,118,126, 144,

204,2J8,244,245pivate...9,24problem... 15, 60, 65, 90,

r00, 108, 128,r49,201

problems ... 99, 119

procedure ...8, 173

procedures ... 168, 208, 209proceed ... 12, 24, 26, 215

proceeded... 13, 15,88proceedings ... 7, 9, 167

production ... 247

products... 168

professional ... I 16, 164, 208prohibited ...41

project... 46,172,228projects ... 168,242

promptly ...27 ,240prop... 140

propagate ... 184, 197, 204

ptoper..-212properly ... 12, 205, 212,

)11 )17 )A7

properties ... 35, 36, 168,

182

property ... 9, 24, 3l -37, 42,

4s, 46, 5t-5'1 , 59, 60,66, 7 3-7 5,'7'7, 86, 8'1,

89-95,97,106,107,109,... 111,112,I l4-l 16, t2t, t26-t30,139,t43,145,150,153, 154, 1s6,157,159-161, ... 170,

r7t,181,186,18?,

190-192,20r,20s-207 ,

217 ,218,225,226,232-234, ... 236,248

proposal ... 244

Proposals ...72proposing... 12

protect... 36, 39

protected ...9,206protection ... 9, 35, 45, 47 ,

162,180,183,196,199,200,203,239

proven ... 200

provide ... 38, 138, 203, 209,

222

provided ... 47 , 192,210

Providence... 167

proximiry... 7 4, 95, 157,

170,201,205,212,232

public ... 35, 52, 93, 167

purchase ... 36

purchased ... 46, 136, 142

purchaser... 166

purged ... 19

pursue ... I Ipursued ...10,22pursuit... 41

puts ... 149

putting... 155

PVC... 86

aqualified... 180, 188

Quality ... 126,137questioned ... 9

questioning ... 103, 148, 213

quicker ... 252

quickly ... 34,35, 192

quiet... 50, 57, 7l

Rraceway ... 99

rain ... 181

rained ... 90

rainwater ...86, 176, 182

raise ... 46, 65, 66, 69,74

raised ... 14,22,23, 65,74,

80,104,221

raises ... 46raising...24, 105

ran ... 59, 75

random... 230,239rapping ... 99

rcte...252rather... 10

raw...115reach ... 177,195,199reached ... 184, 192, 196

reaction... 103

reads... 122



LANDING VS BORDEN LIGHT #254067 Vor.. 11/8/10

Word

representation ... 217

reprcsentative ... 84, 166

representatives ... 251, 252

rcpresented ... 44, 1 18, 121,

166,167

request ... 210, 222, 247

requesting ... 247

require ... 15, 205, 231, 242

required ... 178, 208, 232,

246

requirements ... 14, 21, 23

requires ... 15,44requiring ...243,244requisites ... 53

reserve... 168

reserving...9, 19

reside... 114,133

residential ... 150, 157

residents ... 39, 73, 1 54, 1 57,

158

residual... 138

resolve... 42,250

respective... i80respond ... 10,12,20response ... 19, 69, 103, I 14,

118, 121, 128,148,158, 198,20s,223,

229

responsibilities ... 226

responsibility ... 65, 226

restore... 200,20Irestoring ... 199 -201, 203

restrictions ... 201

result... 17, 19,21, 188,

217,219,235,240resulted ... I 19

resulting ... I 1

resume ... 241

resumed ... 253

retail ... 165

retain ... 109, 169

retained ... 109, 169, 212,2Zs,231,249

retaining ... 9, 122, 123, 143,

r44,159,160,165,t69-t7t, r'73,175,

187,189-191,195,

196,199, ...201,205,215,217,2t9,231

retired ... 52, 1 13

retum ... 27, 62, 203, 211

revetments ... 168

reviewed ... 43, 134, 170,

1'71

reviewing ... 7, 25, 100, I 19,

129,168,193, t94,216,223,224

Rhode... 114, 163, 164rid... 108

rights ... 9, 19, 21, 40, 42,

4648,146,161,178,180

riprap ... 88

ise ...62,63, 165, 197,211

riser ... I 19

River ... 26, 34,42,48-50,52-s4, 104, 105, 109,

135,183,218,242,

246

Word

KS COURT REPORTINGl4 Palmer Avenue


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

solicitor ... 53

someplace ... 139

Somerset... 135

somewhat ... 212,249

sound ... 249,250

sounded ... 188

soundness ..- 249

source... 195, 196

south ... 7, 37

,46,49,5I,

52,55,6r,72,74,75,80,83,99, 123,

125-t30, 136, 142-t4

152,159-161,...188,206,217,222,225-227

Southeast ... 8

southerly ... 32, 35, 49, 52,'7s,89,142, r59

southem... 160, 174, 189,

190,194,206,225southward ... 191

southwest ... 191, I92,215225,229,21t,235

space ... 176, 197,2Q5

spaces... 152

speaks ... 215

special ... 208

specialties... 165

specialty... 165

specific ... 228,229

specifications ... 209

speech... 102

spell... 139

spend ... 30, 34

spoken... ll2spot... 174

spotlights ... I 12

spots ... 176,207

spray...ll1spread ... 202

spring...54, 132

square ... 57

stability ... 169,172,199-201,206,207 ,

211,228,231stabilize ... 140, 202, 205,

232

stabilizer... 138

stable ... 141,1'18, 195,

199-201

stack... l4lstacked ... 172

stacking... 172

staff... 239

staffed ... 25

staffing ... 27

stage... l6stainless ... 185

stairs... lllstake ... 95

stakes ... 55, 66, 67 ,73stanchion ... 140

stanchions ... 78,93, 139

stand ... 10, 137, 139, 240

standard ... 17 4, 205, 206

standing ... 45

start ... 7, 26, 21, 1 6, 81, 8

185, 189,206,207,242,246

started ... 20,36, 42, 55, 6

Word

road ... 7 4,75, 80-82, 84,

115, 126,128-130,

142, Iss, t63,174roads... 116

roadway ... 8l, 88, 89

role... 137

roll ... 172,228

rolled... 173,202

rolls ... 172,228

room... 148,232,253

rough ... 58,206rule ... 10, 23

rules ... 23

ruling ... 14,23, 120, 169,

212rulings ... 21,23,242run ... 38, 54, lZ'7,138, 139

running ... 101, 113, 142

runs...2l9

Ssafety... 80, 91, 93, 130,

r67

sailboat... 140

sailboats ... 97

sale ... 99sat...21,40,62satisfied ... i88satisfy... 154

saturated... 181

Saturday... 155

save ...20,'70,250saw... 43,60,88, 106, 175

scale ... 216

scaling ... 216

scenario..- 183

scheme ... 157, 158

school ... 52, 54, 113, 164

schools... 165

science... 163

scope... 157,227

scratch ... 173

screens ... 90

screw... 140

screws ... 140

sea...31,35,38, 165

Seagull ... 73,98,99searched ... 248

season ... 150

seasonal ... 58

seated ... 162

seaward ... 193

second ... 34, 70, 7 4, 82,

125, 152,248,249

sections ... 191, 245, 246

sediment... 203

see ... 7, 10, 11, 18,23-26,

32,33,38,46,49,50,52, 59,70,73,76-82,85,88-98, 103-107,

r09,132,...151,156,t57 , t59, 162, t7 1,

175,176,185,190,

r92,215,211,218,22r,222,240, ... 242,

243,253

seeing ... 27 ,33, 106,240

seek ...243

seeking... 160

seen... 129, 134, t,49,193,

220

seeps... 176

segmental ... 172, 173, 183,

205,206,2r2segmorts ... 246

SEIGENBERG ... 7, 12, 13,

15-18,20,22-24,

26-30,48-5r, s3, s6,

57, 6t, 69-7t,74,76,84,85,92,...96,97,100-106, 108, I 10,

r13, r19,120,123-125, t30-132,136,144, 145, 148, 149, ...

153-157, t60-162,

, 220-222,226,22'7,t7a )41-7\1

seismic ... 196, 199

seismograph ... 235

selling... 157, 158

seminar ... 166

seminars ... 166

serrt... 66, 70

separate... 16, 164

September... l0l, 144, 145

series ... 34

serious... 183

serve ... 137, 178, 212, 213

service... 138, 139, 179

services ... 109, 209, 227

servient... 9

session ... 72

set... 63, 157, 161, 173, 186,

199,214,222,236

setting ... 57

settle... 197

Settlement ... 46, 62, 64, 7 I,119, 123, 125, 177 ,lo?

settlements ... 202

settles...177

setup... 184Seven ... 28,'17,205

several ... 30, l2l, 17 6, 21 5,

246

severe ... 44

shacks ... 46

shake ... 1 Ishall ... 35, 38

share... 197

shared ...218

shares ... 127

sheathing ...59,232sheet... 59

shifting ... 141

shifb... 141

shining ... 146

shoddy... 152shore...49,8I,82,232shoreline... 165, 183

shortcut ... 20

shortened ... 83

shove'l ... 63

show... 21, 32, 35, 40, 42,

44,45,56, s7,77,85,87 ,92,95-97 ,2t6,220

showed ... 55,85

showing ... 19, 5i, 70, 96,

18'7 ,194

shown ... 67, 189, 190, 193,

r94,211,236shows ... 32, 35, 39, 51, 7 6,

'77,79,8s,87-9s,97,

181,236

shrinkwrap ... 92, 99, 139,ls0,151,155

shrinkwrapped ... l5lshut... 73

side ... 32, 51, 52, 60,75,77-83,88,9t,95,97,r70,172,173, t75,r77,796,216,221,227,228,233, ...249

sides ...9, 10,75, 116

sign ... 69

signed... 63,118-122

significance ... 177, 227 -229

significant... 181

signing ... 63

silt... 90

similar... 108, 157, 158,249

simple ... 118, 248

simply... 10,38, 40,43, 51,

89,90, 102, 168

simultaneous ... 102

sit...125,140,173site... 54, 158, 170, 175,

t87,201,207,228,229,238,241

siting... 167

sits ... 141

sitting ... 42,46, 104,l5I,194,206

situated ... 35

situation ... 24, 40, 173, 198,

z))situations ... 232

six... 61, 80, 88, 91, 132,

149,192

size ... 80, 83, 97, 140, 141,

198,216,230skip ...94slab...224,225slight ... 216

slipping ... 154

slips... 136

slope ... 9, 31,36,39,40,45,59,65,73,75,154,161,t62, i70,183,203,20s-209,211-2t4,

sloped ... 35-37, 7 6, 93, 16i,209,2t2,213

slopes ... 204

sloping ... 85

Slow... 83, 182, 185

small ... 36, 77,79,159,166, 181,230

smaller... 230

snow... 95,97Society... 166

soil ... 171-173, 176, 171,

181,182,185,196,197,20r-205,211,23t,239

soils ... 168, 175, 181,

203-205,238

sold... 115



LANDING vS BORDEN LIGHT. #254067,VOL. 11/8/10

Word ...... P

7 5,84, 126, 17 t, r73,

229,237

starting ... 34,152, i74, 188,

190

sta(s ... 33

state ... 10, 11,14,43,45,47,48, 108, 109, 120,

t22,124, 162, 163 ,

167 ,203,208,243-245statement ... 128, 247, 248

statements ... 30, 101

statute ... 9,25stay...27, 181

staying ... 59, 7 6, 206, 233

Steel... 166, 185,232

steep ... 65, 7 6, 79, 94, 154

steeper ... 207 ,211steepness ... 208

stenognpher ... 7,28, 125,

214

step ... 162, 202, 2ll, 241

stepped ... 162,242

steps... 18, 144-146

sticking -..51,228stipulate...20,244stipulation ... 246

stone ... 83, 164,173

stop ... 43, 87,91, 107, 1 I l,144,146

stopped ... 94,185,238storagability ... 9

storage... 8, 31, 39, 42, 58,

89, 131, 137-r39,143,150

store... 158

stored ... 77, 78, 8I, 92, 93,

95,97,99,138,15istories...132

storing...73, 130, 138

storm ... 45, 41, 161, 197,

198,203, 2t9,223,

239stragglers ... 78

straight ... 7 3, 152, 17 1, 215

Street ... 23, 32, 63, 81, 82,

116

stricken... 19

strictly ...24, 89

Strike ... 29,31,66,82, 102,

108,113,142,190,210,236,238

strongly ... 242

struck ... 29

structuml ... 11, 153, 156,

164, 165, 167-169,

r80, 195,242,244,249,250

structurally ... 1'7 1, 249, 250structure ... 33, 35, 38, 39,

47,48,15t,195,208,253

structures ... 38, 165, 166,

t68,235,242-244subdivide... 115

subdivision..- 116

submitta'ls ... 245

submitted ... 27, 28, 17 |submitting ... 17

subpoenaed...242,249

Word

underneath.-.176,225

understands... 120

understood ... 124, 188,22'7

undisputed ... 30,31

unduly ... 1 Iunearthed ... 95

unequivocal... 30

unequivocally ... 40

unexamined ...230

unfortunately ... 41, 42, 204

Union... 163

unit ... 19, 26, 32, 49, 52, 7 6'r9,91,94, 137 , 142,

145, 146,148, 154,

170, 183,211,222

units ... 1 i, 16, 17, 19, 20,

38,43, 169, 174,2t1,249

unknown ... 247

unless ... 18,26, 155

unlike... 10

unobstructed ... 38

unsafe ... 152,154

unstable ... 181, 182, 197,

20r,207,211

unsuccessfully .,. 42untended... i83unusual -.. 26

update... 166

upper ... 60, 91, 218, 219,

LZ)

upset... 55, 99

uses ... 109,238

using ... 95, 177, 204-206,

zt3

utilize ... 36,40,41, 58

utilized ... 150,212

utilizing ... 3l

Vvalid ... 185

value ... 9

variations... 166

varies... 173

vary ...228vast... 10

vE... 198,2t8,219,223vegetation ... 51, 7 6, 202

vehicles ... 75

velocity... 196

verbal ... 69, 114, 118, 121

1 28, 148, 1 58, 1 98,

205,223,229

versus ... 7, 23, 180, 215

vertical ... 181, 183,209,

2t2vessel ... 47, 48, 139-141,

151

vessels.-.8,130

vlbralory ...202

vicinity... 146

view ... 9, 31, 38-40, 48, 7

80, 85, 92, 99,136,151,154,181,251

viewpoint... 16,60

views ... 36, 38, 50, 53, 74

151

vigorously... 10

violate ... 8, 21

violated ... 13, 17 , 18,24,



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

175,187, ... 189,23'7

tool ...36top ... 33, 35, 36, 7 4, 81, 91,

9'l,156,173, 176, 181,

1 84, 1 85, 1 90, 1 98,

202,206,207,219topographic ... 170, 198, 203

tops ... 86

topsoil ... 75

tom...14,73,243Torres... 107

total... 175, 176

tough...220towatd ...24towards ... 32, 35, 56, 88,

152, 177 , 1 8 1 , 204,

20'7,234

towels ... 1?2

tower...31, 167

towers ,.. 167

Town ... 52, 114

trade... 166

trailers ... 88

training ... 156, 165, 177,

200,201

traipse..-242tuoncnrinf 7\1

hansmittal ... 149

travel... 138, 139

tremendous ... 101

trench ... 230

trenches ... 230

trespass ... 46,56trespassed ...42trial ... 7, 18, 23, 24, 134,

177,l'79,253trickle... 139

trgger...62truck...97, 130

trucks ... 202

trusses... 166

Trust... 34, 90tnrth... 102, 103, 120, 131

tum ... 50,59,87, 100, 120,

140,1s6,178twelve ... 115, 116

twice ...23'lTwo ... 10, 12, 16,26-28,

34-36,38, 40,s7-s9,

6t,65,66,76,78,86,88, 94, 107, 1 15, 1 17,

t34-136,... 141, 148,

166, t72-176,183,184, 191,206,207,209,211,214,232-234,236, ... 242,

245,249,251

types... 172, 195,201typical ... 137, 138, 140,174

tlpically ... 165, 17 2, 17 3,

205,225

Uugly... 152

ultimate ... 15

unaware... 118

unconsolidated ... 21 1

uncontested ... 220

uncrinkling... 155

underlying... 193

subsequent... 19, 145

substance ...12, 13

substantive ...12,20Substantively... 13

succumb ... 202

sudden...74, 181

suffice ... 245

sufficient ... 21

suggestion... 28,251

surrmer... 137, 145, 159

sunsets ... 53

superimposed... 187

Superior... i Isupport ... 43, 65, 68, 122,

197

supported ... 40

supports...140

supposedly... 228

surcharge ... 170, 207, 208,

23rsurface... 183, 197, 198

surge... 197,239

surges... 197

swpise.-.222survey... 127, 187, 188,

215,217,240surveyed ... 86, 106, 109,

194,240

surveying ... 66, 73, 96, 185

surveyor ... 95, I 16, 184

surveyo$... 187, 188

suspended ...253

sustain ... 92

Sustained ... 100, 101, 103,

182, 186, 199,204

Swansea... 135

Swear...7

swoop... 18

swom ... 7,49,162system ... 35, 45, 52,'73,

87,138, r43,172

systems ... 86,201

Ttable ...39,46,222tables ... 39

tactics ...43taking ... 9,45, 59, 80, 84,

138,199

t:,ll ...'73, 141

t2pe...91,93,234tapered... 174

tapes... 189

tasked ... 188

Taunton... 135

teacher ... 52, 1 13

tear ...243

technical ...209,235technique ...212,213techniques...228,233

tectonic... 165, 199

teed ... 86

telling... 56,97,121ten...61,80, 114, 135,

174,206,208,230tendency... 196

term... 140,233,235terminology ... 160, 226

terms ... 9, 15,62, l7t,203,243,244

terrible ... 112,152

test...175,229tesrnd...234

testimony ... I 1, 16, 45, 88,

103,105,118,126,

r34,144, r4'7 , 148,

156, 159, 167,212,

213,215,249, ...250

tesfing ... 17 5, 229, 235, 237

Tha... 189

thanked ... 44,67

thanking... 125

theme ...46

themself ...43

thereabouts ... 35

thereby ... 233

therefore... 197

therein ... 48

thercof ...242

these ... 13, 21, 25, 3l-35,39,44,78,80, 86, 99,

r37,161,164, 16'7,

174, 183,213,23r,242

Thibeau ... 134

thick... 191

thicknesses ... 202

Thirty. . 28, 50, 51, 57, 59,

68, 130

thousand ... 12, 61,76, ll7threai ...4'7

threatening ... 43

threatens ... 43

three ... 9, 18,20,29,34,57,62,63,71,72,94,116,140, 146,181-18s,

196-198,203,2r1,224,229,...235,237

thrust ...48

Thursday ...25, 189

thus ... 47

tie... 136

tied ... 86

time ... 16, 17, 19,20, 26,

28,31-33,37,43,44,46,48, s7 , 58,61,62,64, 68-70, 72,73,77,83, 84, ... 99, 108,

110-114,117,119,

122,126,129, r37,

146,148,170,171,174,175, l7?,181,...182,184,185,197,

22r,227,236,237,241

times ...20, 146,237

tip... 183

Tipsy... 73,98,99today ... 14, 40, 41, 46, 134,

149,164,214,242,

252

tomorrow... 27, 241, 244,

249-253

ton ... 52,1 13, 1 l4tons... 114

took... 19, 32, 58, 59, 73,

75-77,80,83, 87, 90,

98, 120, 123, 132,133,r44,146,166,170,



\

,.i

LANDING VS BORDEN LIGHT #254067 Vor,.I 11/8/10

30,73violation ... 18, 23, 24, 31,

40,243

violations ... 23

virgin... 238

vision ... 46

visit... 170

visual ... 8, 31, 34, 37, 40,

47,73vitae ... 210

vitaes ... 29

void... 176, 197

voids... 197

Volta... 165, 168

votd...72votes... l13

wwait ... 23,65, 68, 70, 103,

163

waited ... 103

waiting... 72

walk ... 51, 54, 65, 67, 79,

89,144,154,158,161

walked .-. 55, 170

walking... 79walkway... 35

wall ... 8, 9, 11, 13-17 ,21,29,32,33,4\,4346,55, 59, 60, 62,64,65,61 -69,73,7 5,77 ,79,81, 83-85, ... 88, 90,

9r,93-95,9'7 , 104,

122, t23,125,145,146,152-157, r59,r60, 168-178, ...

180-187,189-197,

199-201 , 203-209, 212,

213,2t5-217,219,225-228,230,236, ...

141 )LA-)A6 )Aq )aO

walls... 30, 31, 33, 39, 41,44,75, t23,143, t44,

165, 168, 170,17s,

r76,205,208,23t,243,245,...246

wanting... 196

wants ...251

wash ... 138

washes ... 176

washout... 90

water ... 32,36, 46,49, 50,s3, s6-60,75,77-79,

86, 87, 90, 94,95,113,1 38, I 83, 197 , r98,212

ways...232,234wear... 155

weather ...47,49Webster... 164

Wednesday ... 251,252week ...24,179,237weekend... 73

weeks ... i84

weight... 68,213,231Welcome...49west ... 35, 38, 234

westerly ... 233

Wetland...9whatsoever... 71, 105

whereby... 157

wherein ...47

Whereupon...253White ... 151

whole ... 15, 24, 33, 41, 138

wide ... 30, 35,36,86,172,191, 193, 194,228,

2f0width ... 175,176

widths ...228

wife ...49wild...51will ... 7,8, 10-12, 14, 16,

t9,2t,23,26,27,31-36,39, 40,4245,47, 48,95, 107 , 128,

137, t40, ... r48, t'73,

177,180-182,184,

185, 190, 197,221,23t,238,252

willing... 24

wind... 166

window... 52

winter... 137, 138, 150

winterize... 151

wise ... 251

wish... 168

withdraw... 100

Withdrawn... 10, 131

withdrew...43wihess ... 48-51, 53, 51,

69-',71,74,76,96,97,

100, l0l, 106, 108,

ll0,113,119,122-t25, t29,139, ...

148,149,153-155,

161, 162, 168,

1 78-1 80, 1 87, 1 93,

194,213,216,220,223,224, ...226,227,240-242,249,252

witnesses ... 18, 241, 242,

165,171,2t7worked ... 36, 52, 164, 165,

168

workers ... 206

working ... 45,84, 165, 161 ,

L)Z

work ...212

world ... 233

worried ...67worry... 100

worse ... 213

wrap... 151

written ... 70,71, 134

Yyacht... 51,80,81Yachts ... 137

yachtsmen... 137

year ... 36, 58,61,62,71,'72, t15, t32, t33, 14t,144,159,2t9,223

years ... 9, 44,61,63,72,105,112, l14,1i5,135, 149, 163, 164,

167,238,239,246

Zzero... 184

zone ... 196-198, 218, 219,223

zones... 150

zoning...48, ll6, 167, 168

Trial Transcript Day 1

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Transcript of Trial Transcript Day 1