Trial Transcript Day 4

8/3/2019 Trial Transcript Day 4

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COMMONWEALTH OF MASSACHUSETTSBRTSTOL, SS.

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APPEARANCES:

DANIEL R. SEIGENBERG, ESQ.MATTHBW WATSKY, ESQ.2 Commercial StreetSharon, Massachusetts 02067(781) 784-8800

Representing the PlaintiffEDMUND BRENNAN, BSQ.Brennan, Recupero1 Church GreenP.O. Box 488Taunton, Massachusetts 02180(s0B) 822-0L18

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WITNESS:PETER

(By(By

JOHN(By(By

ROSENMr P,ronn:n \Mr [n]: I e krr \r! s e v.Lj /

COLLINS LUNDMr Rrann:n \Mr Qo i aanl-rarn \vrrvv! Y /

INDEXDIRECT CROSS

103

REDIRECT RECROSS

r42158

4050

63


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L70that the defendant not benefit in a monetary way bybeing able to use the area that was cleared.

MR. BRENNAN: So, I will file that, YourHonor. And you want that withln

THE COURT: Within a week.MR. BRENNAN: The next week.THE COURT: Yes. And again, I want a good

faith estimate of time and rational-e behind it, sothat I can make a reasoned decisi-on on this. I don'twant to reject it out of hand. I want to be able toconsider the factors involved

MR. BRENNAN: Thank you, Judge.THE COURT: Thank you. The court's

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


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L71,COMMONWEALTH OF MASSACHUSETTS

I, Karen V. Smith, Professional Court Reporterand Notary Public in and for the Commonwealth ofMaqqrnhrr


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PROCEEDINGSCOURT CLERK: Wednesday, January 79, 201L,

miscell-aneous case number 254061, The Landing atSouth Park Condominium Association versus BordenLf dnr tvttrt na

THE COURT: Good morning. Welcome back.This is the start of our third dav of trial and --

MR. BRENNAN: Dav four.THE COURT: Four' sorry. That's right.

And I think we had been about to begin crossexamination of the defendant's expert.

MR. BRENNAN: That's correct.THE COURT: Okay. And would you call him

i n nl a:qa?MR. BRENNAN: Peter Rosen is my witness and

startinq cross examinati-on.THE COURT: And You're alreadY sworn,

Mr Rnqon - sr^l rzrrrr'rF sti I I under oath.\vuvrrt rv _Yv*MR. WATSKY: Good morning, Your Honor, and

happy new year.THE COURT: Good morning. Happy new year.

Cross Examination of PETER ROSEN(By Mr. Watsky: )

O Doctor Rosen, I'11 ask you first some questions with


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5regard to the coastal engineering structure. Are youfamiliar with the regulations of the DPN 310CMR10.30, that's the wetland regulations governingcoastal banks?A Yes, I am.

O Could you t.urn to exhibit 23? The first page thereis L0.02, I believe it is about the fourteenth pagein that we get to a page that's entitled, *10.30,coastal bank." Have vou found that?

A Yes, I have.O On the second page of that section, subparagraph 3,

it says, "No new bulkhead revetment seawall, groinor other coastal engineering structures shal-l- bencrmiffecl- et cefera- et cetera." I want to focusv evrs tnow just on what we mean by bulkhead revetment orseawall. Could you give me your understanding ofwhat a bulkhead is?

A A bulkhead is a structure that supports land behindLt.

O Would a bulkhead typically be vertical- or at a slopedangle?

A The bulkhead can be either.O It can be either. How about a seawall?A A seawall is often seaward in the water, and it's


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main purpose is to break waves approachlng fand.O Woul-d a seawall typically be sloped or close to

vertical?A They can be either. Most typically they're sloped.O A seawall is typically sloped, sir?A Common event.0 How about a revetment?A A revetment's similar to a bulkhead. It is a

structure against land to di-ssipate wave activityagainst it.

O And a revetment is typically sloped, is it not?A \/orrr nfl-r-- -3n, YS.O Is a revetment really -- for something to call-ed a

revetment, isn't it true that it would be a slopedstructure, wouldn't it, sir?

A I can't sav that for sure.O What would be a typical angle that you would find in

a revetment?A There is no typical angle. Typically, one-to-one or

qf aana r

a Would you agree, sir, that there's a state policythat would express a preference to have a vegetatederosion protection for coastal banks as opposed tostructures ?


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A My understanding is that there's a policy for when acoastal bank is determined to be a sediment source.

0 Are you familiar wi-th the coastal zone managementoffice in Massachusetts?

A Yes, I am.A Are you familiar with the coastal zone manaqement

policies ?A In general, ys.O I'm going to read you a statement from chapter 4 of

the coastal zone management program policy. Tt says'"Coastal enqineerinq structures versus non-structuralalternatives." It says, "non-structural alternativeapproaches to coastal hazards reduction are preferredover structural alternatives. " Do you agree ordisagree with that statement, sir?

A It isn't a black or white situation. Often I'I1agree with that. There are cases particular todeveloped shorelines where I don't agree.

O Do you agree that the coastal bank in this area infront of seaward of The Landing was not asignificant source of sediment to the shoreline priorto any work by Borden Light Marina; correct?

A That's my understanding, ys.O And thus, it was not a coastal bank that was subject


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to significant erosion; is that correct?A You're saying it doesn't follow the previous

statement.O No, sir. It was not a significant source ofsediment. Do you agree that there was not a

significant amount of sediment coming off of thiscoastal bank?

A I don't know if it was determined to be not asignificant source of sediment because there was nobeach. Another second coastal- engineering structureat seaward from the photographs I saw, even thoughit was veqetated it looked like there was a eroslontaking place.

O What photographs did you actually look at?A I can't specify specifically but the phot.ographs

showlng the bank, the landward coastal bank prior tothe construction of engineering structures.

O Could you look j-n the exhibit book and tell mewhet.her you see the specific photograph that youreferred to.

A Can you guide me or should I just start looking?O Pardon me?A Can you guide me where to look?O WelI, I don't know what photographs you're comments


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

A (Witness reviewing photographs. ) I see an exhibitlabeled 1998.a Each of the photographs has a number on the page?A Number L4.O Do you have it?A This was the photograph that came to mind when you

asked the question. There are other photographs thatshow the bank, such as number 15.

O Tf voltt re I nnki nrr for nhnf ocrranhq J_ L-+ -^^^r 1l !! Jvu !c fUUNIrlg !U! IJrlvLvVIqyrlJ LlloL yvu Isuqfspecifical-Iy being shown in the legend showingerosion takinq place.

A I believe it's the photo that show the coastal banksprior to the construction of the upper structure.

O Are there any others that you recal-I seeing?A Number L9, number 31.O Sir, tell me, do you know where, relative to the

various buildings to The Landing vanlage number 14is?

A I can't say.n ^-l \/or sa\/- lookino et nttmher t n "L-L -^^!^ of AIf(l L:dlI Jvu oql t rvv\+.r:, Lat WllctL f dL(j

erosion might have been occurring on that coastal


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10bank to the extent do you see specific areas wherethere's active erosion taking place on the coastalbank depicted in number L4?I do not see specific erosion on 14, definitively thefar ri oht-hand corner is SLrsner:f - Tf .l ooks like Is! r rYrrsee bare so1l there, and then the col-or is not cl-ear.Once again, looking at number 14, assuming that TheLanding were to exercise it's rights under aneasements and maintain vegetation there. Can you sayat what rate the coastal bank will recede in inchesnr feef ner rrear?-v"- J

MR. BRENNAN: Objection, Your Honor, to theform of the question as to "The Landing exercising1Lhair r.irrhfs.r, mL^!r^ ,,1.-,.,,^t-^ l-^-^ j_s torrEf! !ryrrLD. IIIctL > wlry wg !g trErYt Idetermine that..

THE COURT: Sustained. Ask the question adifferent way.Sir, if the vegetation were maintained along thisbank, would you anticj-pate a significant rate oferosion?OnIy during the coastal stormsHow often would a coastal storm cause erosion?A coastal storm would reach t.he bank on an order ofevery ten to a hundred years.


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Isn't it true that it is a verv coinmonpractice j-n the state that with a vegietated coasta]bank to just re-vegetate an area if there is someerosion that's taken place during a storm?

A Havrns come out of a series of coastal storms thiswi-nter, I find many cases where engineering has to bedone, fill has to be added, a grading has to be doneprior to re-vegetation. I've also seen structuresthis season where people give up on the coastal banksand are buildinq hard structures.

n Rrr{_ vn,rr referrino f o afeas Whefe Stfike that.z jvu!There are areas where there are hiqh

very hiqh energy waves comlng to shore, and there areareas that are somewhat more protected; correct?

A That's correct.O And you previously testified that thj-s is an area

where it's not open ocean, but we could have amaximum of six to six-and-a-half high waves during a-1 OO-rza:r qJ-rrrm: rirrhf? ev!rrl/

A That's correct. It/s a V zone.0 ft is a V zone, but it is an area that has vegetated

bank; correct or prior t.o the construction byBorden Light Marj-na it had vegetated banks; correct?


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Correct.Qn 'i f' r^ra -aqqrrmo anc'l r.zr-lrr/ rF ,an eynorf - Tt'l I oi rre vollv f !! wu qruurllu / qrru j vu ez:t/e! v t J -"a hypothetical. If we assume that The Landing wereto re-vegetate any area that was affected during acoastaf storm, woul-d you anticipate any significantrecession or erosion of this coastal bank?

Let me rephrase it. fn an area like this,with the wave enerqy you would expect to see in thisarea, rf someone were to maintain the vegetation andmaint.ain the bank with that vegetation, would you--f -l ^-i ^-{-^ - si oni f i r:ant receSSiOn Or erOSiOn Of theaIILIL.TPOLg A O!Yrrr!ruqllL !\coastaf bank over time?Flrrr-i nn nnrq1_ al qf rrrmq \/AqSLLLLY I Jve.And then following a coastal storm, let's assume that.there's some amount of erosion that happened during aparticular coastal storm. Now, Iet's assume thatsomeone had restored, repalred the area of vegetationthereafter.For erosion on a steep sloped bank like t.his oftentakes the form of creating gullies. Once you formgullies on the bank, water in the future is directedin one area, and so there's a greater tendency forerosion to take place. So, vegetation alone can'tnecessarily maintain a bank once erosion has taken

AO


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13pl-ace.

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

A I don't understand the question.O Give me a moment. I think we'Il come back to thatbecause I'm not seeing the photograph.

Sir, did you familiarize yourself with thenorm'i f sr ^ -^ #l.^-^ ^-rrr nermi ts i ssued in this case?g!rrrf LD: nrg \-IIELE crIrJ t/e!rrl!LJ !JJ

A I'm generally familiar with the permits. The chapter97 plans come to mind.

O Would you agree that any work done on a coastal bankwould require a val-id wetlands permit issued undernh:ntar 1 31 - se.r:t'i on 40?

A If it's determined to be a coastal bank, a notice of-i nJ_ ani. nrn-oq q r q ronrr i rorl \zae" _v-

O You expressed an opinion that the area, the slopelying between The Landing and Borden Liqht Marina 1sa coastal bank; correct?

A Yes.O So, the work on that coastaf bank would require

wet.lands permits that are in place and val-id?A Yes.O And it's your understanding, is it not, that wetlands

permits are valid for three years; is that correct?


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L4A Yes.O Let me point you to exhibit 13. That appears, dt

l-east from the l-ist of exhibits, to be the mostcurrentlv issued order of conditions from thewetl-ands logs to Borden Light Marina; correct?

A If you told me so, yes.O Well, do you see any other wetlands orders of

conditions on the exhibit l-ist that are more current?MR. BRENNAN: I think the witness would

ncod dn \/nr, r---.^ - ^^^,, Of the witness -- Of thergY\r uu yvLr lldvu d ,-\JtJyexhibit Iist?

THE WITNESS: Unless 1t's in this noteMR. BRENNAN: It would be the first page

thatA That's the most recent order of conditions on the

exhibit list, yes.O So, that order of conditions was issued June 15 of

20AI, right? That's what it says on this front. So,by it's terms it expired in 2004; correct?

A Correct.O And the function of the wetlands permit process is tohave pre-construction review of the work that's

subject to jurisdiction so that it can be determinedwhether it's in compli-ance with the regulatory


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15standards.General-ly correct. Somet j-mes it' s post-construct.ion.The review is being done post-construction, thenconstruction must have happened without a permit.That would've been illegal; right?It would have taken place without the permit, yes.It's a proper time for a determination, whether anannronri ate sol-ution to the control of a coastal- bank_Y_Y'from eroding, the question whether to use vegetationor a wall, is to do that through the permittingprocess; correct?a,^-^---l 1 ,benerarry, yes.Did you review coastal change maps? I think that'sthe term that the mapping that shows the rate oferosj-on or recession along the coastline, rel-ative tothis coastline?tr^!._^r.r,, t.,r+- r rtn ^^l reCaII the resul_ts.fl.(-Lucrr-Lyr YeDr rJuL J_ r,lu lrurIf this were a coastal bank that was eroding at asi-gnifi-cant rate and contributing sediment to theshoreline, would you agree that The Landing would nothave been permitted to build a revetment or seawallor other structure to control that erosion?

MR. BRENNAN: Objection, Your Honor. It'sbeen determined that this bank was not a sediment


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bank, and that's beenrrrraqf -innq q217inn t-h:t_YuuJ LrvrlJ Jqy rrI9 LIIAL

1,6established. So, askingit is a sediment bank woul-d be

i-rrel-evant.THE COURT: I thought I'm sorry, I --MR. BRENNAN: It's not a sediment source.THE COURT: You're correct, ys.MR. BRENNAN: His question was, if it was

sediment source.THE COURT: Sediment source, right. You

know, counsel, I'm not sure, you know, how much moreof this I mean, I think it's pretty much beenestablished that the work was done without thewetlands order. But I think that's established. Idon't know how much more we have to qet involved inthe permitting issues.

MR. WATSKY: Okay, Your Honor. I' 1l- moveon.

THE COURT: Okav.Doctor Rosen, let me give you a hypothetical. Let'sassume that the coastal bank had not been excavated,and that the seaward edge of it wasf let's sdy, fiftyfeet closer to the shore than where the wal-l- is, andthat coastal bank was vesetated and maintained.Would you agree that during these coastal storm


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events that that seaward faced coastal bank wouldprovide greater flood protection to The Landing thanthe seawall where it is now?

MR. BRENNAN: Objection, Your Honor. Evenfhorroh it's A l-,,^^+r-^+.i^-1 the area that thiS CaSerrvuyrr ru r q IIyyULIIELJUO!7is about is a 2O-foot easement. So, to say -- ask ahypothetical question that involves a fifty footembankment incl-udes a fact that isn't possible underthe facts of this case, because we're only talkingabout twenty feet. If the question was a 2}-fooLembankment, I would not object.

THE COURT: Okay. Willi-ng to change yourquestion?

MR. WATSKY: T ,,^ ^ ^^.i ^ ^ ..) WOf k_ WctD 9\Jrrr9 L!step-by-step.

THE COURT: Why don't we cut to the chase.MR. WATSKY: Cut to the chase?THE COURT: Yes.

So, Doctor Rosen, let's assume that there was a wellvegetated and maintained coastalbank twenty feetfurther seaward than where t.he seawafl is presentlyl-ocated. Where would theThc rrnner r-nestal bank wall- is the seawal-I?| ' m c^rr\/ /


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18A There are two structures. This is the wall within

rr^^ ^^-^,nonl- rznrr/ rA r-al I i ncr 1_ he seaWaf f .IIC Cct>grtlellL yLr\-t rC (-qrrrrr9 Ltls JeqO Are you famil-iar with where the property l-ine is

between these two properties?A Yes.O Are you familiar with the would you cal-I it a

seawall that was constructed verv close to thatrrrnrrar1- rr Iine?

l Tt'l'l ^A alnnn r^rith fhri ferm if fh^-t^ "L^! "^"trafl I J-I 9() qrvrry wrurr urrqL evlrrrr -.lctL > wIIdL yUu Ls

referring to, yes.O What f err "^.'] ^ "se? -v,,tt wuuru yuu uiA I'd cal-l that the bulkhead.O Okay. You call it a bulkhead, butA I just wanted to clarify --O Why don't we explore that further, let's say that the

bulkhead does it matter in vour mind whatmaterial-s are used to build a structure for it to becalled a bulkhead? There are some sections of thestructure along the property Ii-ne that are made ofdi-fferent materials?

A No.A So, you call this a bulkhead. Very good. We'll use

your term.T,et' s A ssilme - finni- nr Rnqan , that thef e iS a evvvvL


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L9well vegetated coastal embankment where thevegetation was maintai-ned, twenty feet seaward of thebul-khead that's along the property l-ine between thesetwo properties. Let/s explore first, where wouldwaves typically be cresting and breaking, 1et's sdy,drrri nrr f he ten-vear stOrm.

A Most commonly, the waves in that case would be basedon the

a So, they would be some twenty feet further away fromThe Landing buildings as compared to where thebulkhead is presently located, in a hypothetical?

A Yes.O T,at, q I onk a1- a f i ff V-\/ear stOrm pyanl- f)n \zn rr knOWx v +vvi! qu JEq! oLVrrLL J"*

what elevation a fifty-year storm event would be'sir?

A Not off-handr Do. Higher than the Len-year event youjust referred to.

O So, I'm asking, you're familiar with the fifty-yearn+- nrm ..,lrora r'l nnn i- h:l_ hrrn^f hof i r-: r --^^^f -f ^'JSLOllttt WIIE!s afvrry ulrclL rryyvLllsLruqr vEVELaLsucoast.al bank would waves break duri-ng the fifty-yearstorm?

A From the base of the elevate the base of the slopeto a higher el-evation.

O It would depend on whether the storm event happened


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20at high water or low water?

A High water or l-ow water would depend on the height ofthe waves.

O And during a fifty-year storm, would any of thosewaves have water wash horizontally all the way to thenrnnar1_rz line?! vi/vr I j

A The waves breaking the sloping surface hassignificant runoff, so there's a potential for it,

O Assuming that the area is heavily vegetated, couldthat decrease or affect the amount runoff?

A A heavv r-^^^!^r'r^-- ^^-r affect the runoff once the- ----. f vg9ELclLa\Jrr t/arvegetation is eroded, or if the vegetation is eroded,it wouldn't be effective.

O My hypothetical is assumi-ng that the vegetation ismaintained, and it's present at the beginning of thestorm.

A At the beginning of the storm, yes.0 Are you able to say wi-th scientifj-c certainty how

high up such run off would be?A That's something that can be calculated, but I can't

I don't have those calculations.O Let's talk about the existing bulkhead i-n a

100-year storm, some time period when waves are


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coming against t.he structure during a 100-year stormevent at the maxj-mum elevation, where are those wavesrel-ative to the top of the existing bulkhead?Thcrrt re at i. ha l-nn nf f he WaVeS afe at Of abOVe rrv] !u qL u"ythe top of the waII, elevation 22, I bel-ieve.There are portions of the wall that are at a 20-footel-evation. So, where's the how high is thehighest wave during a 100-year storm?f don't know how high the highest wave is. The wavewe know from FEMA is at least three feet hiqh. Justtooking at the distance the size of Mount Hope B"y' Iestimated that wave in theory to be up to six feethigh. It dj-dn't take into account the fact that ithas to go over the shoreline and over a lower bank.Just to help us understand your view of the wavear-f inn here . 4 F L--'^ - six foot wave f irst ofULIvII II9!u t LL yVLl llOVg Aall, height of the wave relative to the top of wal-l-?The bottom of the wave is at or bel-ow the top of the,.,-11 -^,,^l, 'l .,wq!I t !vuvrrry .At or below. How far below?Tt denends on +]-^ l-^.i ^l-+ ^f the wave. If wet re u uvyvrruJ vrl LlIE lrE!YIr L V.talking about FEMA, because definitely there's athree foot wave, it woul-d be one foot below the stil1water l-evel.

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zzO I need you to explain this. You told us that you

bel-1eve that the waves would be six to six-and-a-halffeet hiqh, ofl direct examination. And so, yourhaving told us that the waves woul-d be six tosix-and-a-half feet high, I'm asking You, during the100-year storm, where is the bottom of the waverelative to the top of the wa11. Let's say it's in alocation where the wall is at or iust about a 2O-footelevation.

A If that six or six-and-a-half foot wave from offshoremakes it across the lower seawall and across thestructures, assuming thatts the case, that wave wouldbe the bottom of the wave would be below the topof the wall.

0 How far below, sir?A If t.he elevation out of twenty-two is the top of the

highest wave, which is the conventional FEMA, thesix-foot wave would extend from -- from elevationsixteen up to elevation twenty-two. The bottom ofthe wave, the troth of the wave, which I believe iswhat you're asking, would be below the top of thewave befow the top of the wa1l.

O A FEMA elevation of twenty-two, that's beenestablished on this site; is that correct?


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23A Yes.a So, using the FEMA elevation of twenty-two, what wave

height does that assume?A FEMA assumes a minimum of a three foot wave heiqht.O So, where would the bottom of the wave be using a

three foot wave height at a FEMA elevation oftwenty-two?

A Elevation ni-neteen.O If you then increase that wave height to six feet

high, where woul-d the bottom of that wave then be?A Elevation sixteen, ds I said earlier. The FEMA

elevation represenls the highest point of the wave.A larger wave is going to still have the highestpoint of the wave at elevation twenty-two.

O I see. So, you're saying that even if the waves arehigher than FEMA is predicting at a minimum, the topof the wave that you're predicting would still be atelevat i-on twentv-two?

A Based on the FEMA analysis, ys.O So, you're not saying that the wave woul-d be higher

than t.he FEMA el-evation that was previouslyA Would you repeat the comment?O Sorry?A I didn/ t hear what you -- the end of your


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24O Strike that. I'11 refer you to some photographs, try

and find section 31. Would you find photograph J.And t.hen f want you to keep that page handy.

A Is photograph J the aerial photograph?O The aerial- photograph that shows The Landinghrri l,-li ncr- f he seawal I and bOatS aIOno the seawa l I.qrtvrrrY r urrvSo, keep a finger in that page, and turn also toexhibit 34-27. Did vou find that?

A Yes, I did"n [nlnrr'l rl \r/rl] rnroa J- hrj_ j_ haqa nhnj_ nnr:^1.' 1 f l.rnrrnhv vvvufu yvu qv!99 urrqL LrruoE t/rlvLvY!qt-r1I- t dL Lrl(JLrvtl

taken at different times/ are on roughly the samearea of the property?

A Yes.0 Tell me, during a 100-year storm event with the waves

breaki-ng at high tide, where would the waves bebreaking in the picture 31-J?

A On 31-J at high tide, they would be breaking againstthe bulkhead at the other bank.

O Okay. So, I believe it's The Landing building 3,that's the lowest the buildinq towards the bottomof that page. Do you see that?

A Yes.O With one building corner very/ very cfose to what

appears to be a white fence?


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25A Yes.O So, where would the waves be breaking in relation to

the corner of that buildinq?A At the concrete block wall.O Which is some number of feet, but very cfose to the

corner of that buildinq?A Tn nr^vimitrz l-n fha l-rrrilrlinn \/aqn f Il I,IVAIILLf Ly Lv LlIg vuJlurlry t J9o .O Would you agree that there would be water washing up

that's not reffecting back, there will- be runup goingover the top of that wall and hitting the building?

A Under maximum 100-year flood conditions there will betop of the wal-l, yS.

A I'm sorry, because of t.he cough, I couldn't hear you.Say it again.

A Over the maximum 100-year flood conditions at hightide, there wiLl be water going up over the wall,yes.

O And will it hit the building?A From this photograph, I can see that it's close, but

f don't know the elevations off-hand.O What elevation strike that.

Let's look at the other photograph, whichis 34-27. Do you see the area with the greenrreoef at i on - f h^ "^^^f ^f ^'r :oastal- bank Seaward ofEVsLqLrvllT LIIE VgggLALgU L


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26building 3?

A Building 3 is on the left?O Yes. This is a photograph that you would rotate

ninetv dcrrrccq r-.\rrn1_ ef CIOCkWiSe.A Is building 3 now on the bottom?n VaqYA And yes, I do see it.O Would you agree that the seaward face of that coastal-

bank 1s some distance further seaward from where thebulkhead now exists that you referred to in 31-J?

A The base of the slope is further seaward, and the topof the slope is in the proximity of the bul-khead.

O With the condition that's visible in the photograph31 to 34-21, so that's the vegetation. Through muchof the storm event the waves will be washinq andbreaking lower down on that coastal bank; correct?

A Not if it's durinq maximum --O Refnre \,zrlrr crcl- 1-o the maximum --z _yvs YveA -- becauseO before you get to the maximum.A Will you repeat the question and I/ 1l- try and give

you an answer.0 Yes. At storm events lesser than a 100-year storm

event, the waves would be breaking along the face of


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27that coastal bank; correct?

A YeS.O Would you agree the waves will be breaking perhaps

ten or twenty feet further seaward than they would inthe condition it's shown in 31-J?A This is when the erosion takes place? Yes.0 And is there a phenomenon with waves where t.hey are

tripped up by I'm not sure if that's exactly theterm when a wave gets tripped by an obstruction, bywhet.her j-t's a shorel-ine, a beach or a bank, and itbegins to break?

a .r.i nni nn Often referS tO an ObStrUCtion Or a beaCh r r lyurrrYthat causes a wave to break.

O So, with the vegetated coastal bank as shown in34-2-1, where would you say the wave would begintripping during a 100-year storm event?

A That can take place at the lower coastal bank.0 Which you referred to as what?A A seaward structure, which is the western coastal

bank, I believe.O You say that there are two coastal banks on theA That's correct.a So it would begin tripping. What would the seaward-

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


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28f n f he nrnnerf .' l'ina hnr^r urggfd that af feCt it?V LrrV t rlvYvHow would the vegetated sl-ope affect those waves?Affect those waves; yes. Where would the waves beginbreaking in relation to that vegetated bank?The waves woul-d begin breaking on the surface of thatbank.Qn q^ma .l-r^rantrz foal- frrrthar arrrA\/ frnm 1_hp nronorj.rr?v f tvltlv uIvuIIu jOnIy if they're breaking at the base of the bank,which would be the smallest storm event.So, for a storm event that's a ten-year storm event/the waves would be at the base of that, so twenty.F^^+ ^,,-.,. .i ^ +r-^f ,,tr--+ ..^,1 Said?CgL dwO.yr fD LTIO.L wllOL yULThey would be breaking on the vegetated slope. Idon't know if it's a ten-year evenl, but a small-storm event they would be breaking at the base of theqlnno nnj-onf..r-'rr, ,^.i-^ erosion at the base of the-L\JPvr PULsrrLrO.rry \-o'uJlrryslope, yes.

STENOGRAPHER: You need to repeat thatquestion, pJ-ease.What level, what intensity storm event strike!L-! mtr'^-' ^arr that cl rir-i no A -- sfri ke that.IICIL. l-IICy >qy urrqu uu!lrry q JL!rNv

Where will waves break along that vegetatedslope during a 100-year storm event?Drrri no a 100-rrear sf orm erzent - clrrri no the hours ofvq! vvvrrut


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29maximum tide, they will be breaking along the top of!1--+ ^l ^,naL slope.

O At the top of the sIope, you're talking about it.being some ten or twenty feet further seaward thanwhere the top of the bulkhead is now?

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

31-J. Do you see the boats?A Yes, I do.0 So, during a 100-year storm event, what happens to

any boat that happens to be stored along thatbulkhead?

A There's a potential that those boats could bedamaged.

O That the boats could be damaged. How would they bedamaged?

A Tharr r-nrrld ha dam:r'rarl l'rrz fhe crreaf i'.^-^+ ThevJ---- wctvc rrttlJouL'coul-d be damaged by shifting on their stands. Theycould be damaged by pushing against each otherr orthey could be damaged by being forced against the- -^ f lWd..LI.

O You're calting it a wall. Are you referring to thebulkhead?

A The bulkhead.


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30O Is there a potential during a 100-year storm event in

the summer, that all of these boats could actuallyend up coming off of their stands and float.ing?

A During a 100-year storm event in the sufiImer, that I'mnot familiar with, but in that case, the boats couldfloat, ys.

0 There are boats that are st.ored along this bulkhead.A Yes.O Let's assume that there's a 100-year storm event that

happens while many boats are stored along thebul-khead.

A Yes.O What happens to those boats during that 100-year

storm event?A I said they coul-d be damaged. You asked me, would

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

waters become hiqh enough to have the boats thatwe're seeing along the bulkhead float?

A Yes.O Anrl i_hcrztrc rrn'i nrr fo he sirlriecf fo --^--^ ^^ri^^ "outVe f1]Il,t Llley rc 9\_Jr119 Lv t/E ouvJevL Lv wavg cl9Lr\Jrr y

indicated as much as six to six-and-a-half foot highwaves ?

A Potentially, yes.


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31O So, while they're floating, and they're being dashed

around by wind and six-and-a-half foot high waves/:ra {. horr of rrri nn ^i ^^ :nrl q.|_ :hl o a\r Ara ]_ horz rnr-k'i nrr!g LIIEy D LdyJf f 9 lll-UE qltu J Lqvlu, vL !v9^!llY

back and forth? What's happening to them?A They're probably being shifted by the waves.0 What do you mean by "shj-fted?"A Shifted means pushed by the waves, possibly against

the vertical wal-1.0 And with the masts on sailboats, would they be

staying nice and still and vertical, ot would they berocklng wildly back and forth as the boat is beingwashed around bv the waves?

A The masts would probably be rocking whil-e the boatsthey're attached to are rocking.

O Would you say it's reasonably certain in such anevent that the masts of those sailboats would extendlandward of the top of what you've referred to as thebul-khead, and can strike buildings?

A f don't know if they would strike buildings.O Would you agree -- well, we'lI take it one step at a

time. Would you agree that the masts coul-d extendlandward at the top of boat?

MR. BRENNAN: Objection, Your Honor. Thewitness is a coastaf geologist. I'm not sure if the


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5Zaffect on the masts and the storm are within his areaof expertise. He keeps on sliding questions outsidethis witness's area of expertise.

THE COURT: I/11 allow this question, but1et's, you know, let's move on to other issues.A The question was, can the top of a mast extend

landward of the top of the existing bulkhead, and myFxneri en69 is

O During a 100-year storm event.A The answer would be yes.n To ]- hara - ^^f ^-{-; -'l ^1^^ Ftr-^+ !^}lfiS COUId bev 15 LIrere d fJULelrL.rd.-L d-LD\-r7 LlraL uel

washed over the top of the bulkhead during such astorm?

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

Have you located that?A Yes, I have.O Do you see the vegetated slopes on either side of

that vertical retaining wa11?A Yes, I do.O Am I using the correct term, retaining wall?A TotaIly appropriate.O Would you agree that the slopes on either si-de of

that wal-I are sloped and graded?


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33A They are sloped and they appear to be gradedr !s.O How about si-r, the photograph that's exhibit 34-33?

I believe that there's a sign visible there that'sindi-cating that the condominiums are for sale. So,even though this isn't dated, f,m assuming this goesback to sometime in the 1980's. would vou aqree thatthe slope that's seaward of the buildi_nqs there issloped and graded?

A The slope is a slope, vs, and it appears to begraded. Although undergoing, it l-ooks like there aresome alteration at the right-hand side at the verytop, which would be graded.

O Can you te]l from looking at. this, roughly, wherethere this is in relation to The Landing deveropment.?Is this building 3, building 4? Can you tell?

A I can't tel_l off-hand.a I'l-1 refer you then to a photograph. It,s exhibit

34-16. Are you able to tell whether, although wehave a different perspective, the area that, s visiblein 34-76 is the same rough area as what is visible in33?

A YAA

0 Wel-I, Iet's compare those two photographs. So, it's34-16 and 34-33, in case you have dropped the


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3434-33 indicated t.hat's sloped and appears to begraded. And at that moment, it was not veget.ated-Would you agree that the image that's visible in34-16 is also sloped and graded, but in this case iti s mosf 'l v weoetated?-YT d'iq:draa Tl- iq n:rl-iallrz rzeoetatecl- Tt annearsuloqYlgv. ru Jo yqrurqlrJto be nearest the unvegetated surfaces in the bank.Tn r-er1- a i n snecif ic Iocations?fn certain specific locations, yes.Rrrf r^rorrlcl \zcrlt ecrreF thaf fl-^ -^i^-.:+" ^f whatts_t - * qV ! es urrq L utIEi rtto J \Jl r Ly vlvisible in that photograph is a vegetated coastalbank?The foreground and the background look fullyvegetated. The middle area photographs show asignificant amount of bare soil and steep slopes.Would you agree that the in terms of the stabilityof the coastal bank, the extent to which i-t issubject to erosion during coastaf storms, that theimage in number 16, the condition that's shown in L6,is much more stable than what's shown in number 33?Image 76 in the middle of the slope is shows avertical unvegetat.ed surface. The areas that arevegetated are probably more stable than figure 33.You say probably?


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35A True.O It's certainly more stableA The areas thatO than 33.A are vegetated based on what I can see in the

photographs appear to be more stable, the area innhnl_ anr:nh f i nrrro 1e f L'a+ i - rrnrraaaf :{_ aApnoLograp.. -br tnat IS an unvegeLaLeQ, verysf een s'l onc - T'm r-nnr-erned abOUt. There iSLvvlr t f rlrinstability.

O Doctor Rosen, Lhe opinions that you've expressed inregards to the flood protection offered by thebulkhead, are opinions that. are based on anassumption that that bulkhead is properly constructedand is itself stable; is that correct?

A It's based on mv observations of the structure in thefield.

A Did you examine the engineering plans for thatstructure?

A I examined all- the plans that existed, yes.O I'm sorry. Did you examine plans showing the extent

to which a qeofabric was called for behi-nd the wall?A No, I didn't.0 Did you do any independent testing in addition

behind the wa11, to determine whether geofabric had


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36been installed?

A The only determination I could make is that it wasgeofabric incorporated in the structure, but Icouldn't determine to what extent the extendedO So, you made no independent engineering analysis andreached no engineering conclusions about thestability of the wall-; is that right?

A I'm not an engineer.0 In your experience as a coastal- geologist, have you

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

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

100-year storm event, is it fair to say that thecoastal bank behind it is then sub-iect to intenseerosion, and becomes unstabl-e?

A If a coastal engineering structure fails, the bankbehind it is subjected to wave action, yes.

O And during the time that it is subjected to waveaction, J-mmediately following the failure of thatcoastal structure, is it more or l-ess subject toeroding than if that coastal bank had been eitherwell protected by the structure or heavily vegetatedbefore the storm?


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37A Could you repeat that question, please?0 I'll take it one part at a time.

If a coastal bank is exposed suddenlyduring a storm event by the failure of a bul-khead,there would be a vertical face of the bank exposed;correct?

A Some portion of a vertical face, Yes.a Would that vertical face that's exposed be more or

less subject to erosion during that storm than a wellvegetated coastal bank that's more seawardly?

A That storm even intensitv could have removed thevegetation and eroded the bank back by that sameperiod of the storm that the wall collapsed. So, I'mnot able to answer.

a Are you determined the extent strike that.Can you say with a reasonable degree of

sci-entific certaintv the amount of horizontal erosionthat would take place on this shoreline, or thatwould have taken place on this shoreline with avegetated coastal bank during a bigger storm event?

A No, that's too general a questj-on.O So, 1et's just focus then on what happens and I'11

iust ask thls one more time.What happens when the bulkhead fails and


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38you have a vertical face, a coastal bank exposed towave action durinq a storm?

A Waves woul-d be breaking for the period of the storm,and the period of higher tides of the storm, thesediment present goes to the bank.

O If that failure were to happen in one of the areaswhere that bulkhead comes within several feet of abuilding, that can actually significantly damage thebuilding?

A I couldn't say that without it is possible then ina 100-year storm, a building near the flood z_orte,near the B zone can be damaqed.

.\ nix \'^rr ohlserrre an\/ arFas alono .|_his bUlkhead Whefel urv Jvuthere was erosion taking place from behind thebulkhead?

A I don't recall.O How about exhibit 32-P? Did you find that?A Yes, I did.O What do you see here?A I see significant l-oss from behind the wall in this

area. I see f see the wal-l doesn't exist in thearea where the erosion's takinq place behind thewall.

n n] .i ar:i-rral'l rz see l.his location when vorr rz'i sited ulu yvu quLuqrry DgE urllD rvvqLrvll wlrElr Jvu v ror uvu


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39the site?

A I don't specifically recall. I might have.n Ttm enrr\/ T nnrrIrlntt ha:r \/rrlr\l r rrr rv!!]' tA I don't specifically recall-. I might have.O When you were on the site, did you take any test pits

or soil sampl-es?A I didn't take deep test pits, and I didn't take soil

samples. I did look at the soil.O What soil did you look at?A At the top of the bank I looked at the soil. There

seemed to be generally a loam. That's what I saw.0 At which point along the top of the bank did you look

at the soil?A I made general observations as I looked along the

wall. I didn't see anv sediment that stood out.0 Doctor Rosen, Iet's assume that the wall- was not

properly constructed and subject to faj-lure. Whatwould happen relative to the flood and erosj-onprotection? How would that affect the floodprotection and erosion control for The Landing?

A If the wall failed, it would provide protection up tothe point that it fails. Subsequent to that, therewould be erosi-on of the soil behind the wa1l.

MR. WATSKY: I have no further suestions.


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THE COURT: Redirect?MR. BRENNAN: Sure.

RED]RECT EXAI{INATION(By Mr. Brennan: )l-tnnf nr Rrrqan \/rllr wFrF asked on Cross examination to 1""make reference to a particular wetland regulation,10.30, regarding sediment providing banks?Yes.Do you reca]l that?Yes, I do.Can we agree that the bank in question in this caseis not a sediment providing bank?Yes.So, that section of the CMR, that does not apply; isthat correct?The section of the regulations referrj-ng to sedimentsources does not apply in this case; correct.Vnrr rafaranaa6] \/ntt rrqarl f arm \trlarral nnorlUtf !E!gIgtlUEu Jvu uoEu LELlttt UE VEavygVshoreline" j-n one of Vour answers on cross.you explain what a developed shoreline is?The developed shoreline is a shoreline thatdominated by human activities, structures,

Coul-d

ASbulldings,very, veryusiness activities, so it is not it is

different from a natural- shoreline


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4LO Would you agree that what we're dealing with in this

case is a developed shoreline?A f-l a: rl rzn f)nr-t- nr Rosen - af f he si f e 'i n ouest ton in this CaSe,z I vv

\/ou macle -^+^ {-n the fact that there are two-)/vu rlrquu !E!E!grrug Lvcoastal banks; is that correct?

A Correct.0 Could you explain for the court the location of the

lower, which we call the first coastal bank, inrelati-on to the bav?

A The lower coastal bank is seaward. The upper coastal-bank is in direct contact with the water under, Ithink, all conditions.

O Has that first coastalbank been altered in any way?A From it's natural conditions?n VaqYA Yes. That coastal bank is fully structured, and I

believe it's a vertical bulkhead.0 Does that afford some storm and flood protection to

the Borden Liqht Marina property?A That's the first l-ine of defense for flood protection

and wave protection against the Borden Light Marina,\/a q

O Doe.s f he existence of two coastal banks is that a


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42factor in the opj-nions that you've rendered here inthis case?

A The fact that there is a lower bank taking a portionof any incoming wave activity is an important factorin my opini-on, yes.

O Now Doctor Rosen, directing your attention to aphotograph that's been marked as exhibit 34,number 74, which you were asked questions on on crossexamination. Do you see that photo?

A Yes, I do.0 In that photograph, do you see a retaining walJ- in

t.he middle?A Yes, I do.0 Do you know when that was constructed?A No, f don't.O Do you know from looking at this picture that it's

within the 2O-foot easement area?A Because i-t is seaward of the white fence that I saw

in the fie1d, I believe it's within the easementa!go.

O Directing your attention to exhibit number 34-15, doyou see on t.he right-hand corner, a stone pierprojecting into Mount Hope Bay?

MR. WATSKY: Objection, Your Honor.


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43Leading the witness. It's up to the witness to say,,1,--+ L^wtld L llE JccJ "

THE COURT: No. I' 11 all-ow the suestion.A I see a pier, ys.O When you did your site walks, did you have an

nnnnr{-rrn'i 1_ rr f n nhqorrra f hal- n'i cr?lJ}Jvr uull! LJ uv vvJ9! v u urrq L yrv! .A Yes, T did.n rl- miaht. be better if we l_ook at 34-27. In that a u rrLJYrrL

^la^+-^^*-nh _ oncF aoa i r -r-1 e tO lOCate thatJIIULU9!dPrrr vrrvE qVorrl.t o.Is yvu apLstone pier?

A Yes, I am.0 Could you tel-l me where it is in the photograph?A It is in the bottom of the photograph.A Do you understand that the retaining wall in question

in this case and the common property line, generallyrun in a north/south direction?

A I'm aware of that, yes.O When you gave an opinion as to the wave height that

could be generated on a 100-year storm, do I recall-that the dominant direction of the waves would befrom the southwest?

A Major storms come from the southerly sector, ys.O Looking at photo 34-2'7, would that stone pier have

any impact as storm and flood protection for the


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44Borden Light Marina property?

A That pier would be one of the factors that candissipate incoming wave activity, Ys, oY diminishir.0 You have used the term, "100-year storm" at differenttimes during your testimony here. The 100-yearstorm, are we talking about a hurricane event?

A WeIl, a 100-year storm is defined by the highestwater leveI. In this part. of Massachusetts, 100-yearsLorms are often hurricane events, yes.

O Would you agree that as we stand here in 20II, thehurricanes are fairly weII predicted?

A Hurricanes now are wel-I predicted. There's a lot ofwarning before a hurricane approaches the coast ofNew England.

O You were asked the question as to whether or notstorm or debris and the boats that are stored in thevicinity of the retaining waII could in fact, end uprrr.l rln The T,anrl'i no nronertrz in 1-he event of a storm;y lqrrurrrY t/rvyv! eJcorrect? You were asked that question?

A I said, at least that they be moved towards TheLanding property.

O Would that result occur, in your opinion, whetherthere was a sloped, graded embankment and/or a


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45retai-nino wall-? Would the same resuft occur?

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

of a retaining wa1l, such as the one that's thesubject in this case. Is it common for a coastalstructure to fail in a 100-vear storm versus beriamaoecl 'i n a 10o-rzear storm? And is there adifference between failure and damaqe?

MR. WATSKY: Objection, Your Honor. It'sso general a question, in what conditions, thequestion whether the wal1 was properly designed orn n1-

THE COURT: l' m not sure where you're goinghere, because het s not a structuraf engineer. So

MR. BRENNAN: WelI, he was asked theconsequences to the land behind the retaining walleventually failing. And I want to have the witnesstell me whether or not a retaining waII may besubjected to damage versus a total fail-ure, becausethe question asked on cross was failure. So, I'dlike the witness to tell me whether or not coastal-structures generally are a total failure, ot ifthere's a damaqe to coastal structures.

THE COURT: WelI, he can only testify as to


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46what he's seen as an experience. I mean, that's it.

MR. BRENNAN: Right.THE COURT: Okay.MR. BRENNAN: Well, then that's the way thecrrrestion should be drafted.

0 Doctor Rosen, based on your experience as a coastalrron'lr-rr-ri q1- harre \/olt h,=.l 3n n^^n r1-rrnjf17 fo examine--Jll aII vyl/v! L urlr LJ uv vAqrtlrrrcoastal structures after a 100-year storm event?

A Yes, I have.a In your experience, does a structure generally fail

in it's entirety, or is a structure subject todamage?

A Most frequently, when I use the term "failurer " T'mreferring to some leveI that affects the structure.I wasn't referring to, when I used the term"failurer " absolute loss.

O Genera'l -'l " ': I r---rrro f he strrtcturev usrrE!qrry I I L L/O.lI UarltqVE UrlE o u! qv LA Yes.O Do you have experience in repairing coastal

structures after storm damage?A Extensively, and that's where f was yesterday'

repairing coastal sLructures.O Now, you've testified that you have been on the site,

T holiorro \/orrr 1_esi- imon\/ was- af leasf three timesIIgVg JVU! LVJU vrqvt


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47you went on a site view of the

A Yes.0 Borden Light Marina; correct?A Yes.O Based on the questions that you were asked on cross

examination, and having personally observed the wall,the block segment of the wall that's been dealt with,which woul-d you prefer, the walf that you saw there,or the sloped embankment that you've seen at various


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48wall that's there, or the sloped embankment that wasthere?

MR. WATSKY: Objection, Your Honor.THE COURT: Sustained.MR. WATSKY: What the witness woul-d prefer?THE COURT: I think, you know, are you

asking hi-m as an indi-vi-dualMR. BRENNAN: No, a coastal engineer.THE COURT: -- or are you asking him as an

expert? Okay.MR. BRENNAN: I was trying to question

O Doctor Rosen, ds a coastal geologist, and havingobserved the wall that's the sesmented block wal-l onthe southerly 650 feet of the site, have younaraAn:l lrz nl-rqarrrarl J_ h-f anrl h:rrin6 rorlieulorlIJv!ovlrqrJy VUJE! Vsu UrlOL, qIlU llAVlrry IsVIsWguextensive photographs of what was there prior to theseomented wal I clo vor r'^--'^ ^^irion as to whicheyrrretr uuu wqr! t vv J vu lla v g orr vyrrlworrlcl nrorride srrnerior flood nrofer:tion and erosion!v v rvvcontrol for The Landinq at South Park?

A I believe the segmented wall is superior protectionto wave i-mpacts and erosion.

O One other question, Doctor Rosen. You were asked toi rlanl_ i f rli n nrrl- i nrrl:r an ovhi hi l- ho'i nn ilra l:1- oq1-I sLL vzrr!+v+ u forder of conditions that issued to Borden Liqht


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49Marina. Do you recall that question?

A Yes, I do.0 The date on that, I believe, is 2007. Would you look

at exhibit number 24? And woul-d you agree thatexhibit number 24 is a notice of intentA Yes.0 that was dated 2009?A I see the date, 2009, conditions of int.ent, ys.0 f'm sorry, exhibi-t number I'm mistaken, exhibit

number 25, an order of condj-tions.A I see an order of conditions on exhibit 25, ves.O And are you aware that issued in 2009? Well, do you

see some recording information in the upper right-hand corner?

A f see the date, what appears to be an official or anumber stamp as I0/21/2010.

A And that is an order of conditions toA That is an order of conditions, yes.

MR. BRENNAN: I have no further guestions.THE COURT: You know, I think unl-ess you're

going to have Lwo or three questj-ons, I think we'Iltake a break for about ten minutes at this point,rrn'l ess \/nlt 1- hi nk rrnrrt re onl,, -^.i *^ !^ *^.ke tenlrrsJD yvu LrrfrrN yvu !e vrrry 9\Jrrr9 LU Lcrmr-nutes.


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50MR- WATSKY: I don't anticipate being very

lnnn Vnrrr l]^nnr l-rrrl- Tf m naranllr' '-'.il'l .i^^ fa 1----^vrrv, rvu! rrvrrv! | puL a lrr lJg!rcuLl_y w_LIJI_I1g L(-) IIdveus take a ten minute break.

THE COURT: I'd prefer to wait until 11:00,hrrt T irrst di dn't Want tO j n1-arrrrnf rznrrr crrrest i oni ncrLv 4rrLE!t uyu yvu! yusJ Lrvtrrrry .Qn T nrracc ..'hat I/m aSkinO \/olt i s. dn \/^,r lar-,^ -,,-fv I r rrl qo^lrry yvu f D / ltrJ ytju IId ve J u5 La couple of questions, or are you in for the longhaul- ?

MR. WATSKY: Your Honor, I don't anticipatebeing very 1ong.

THE COURT: I hope not, because this is a,you know, recross. This should be verv short.

MR. WATSKY: Yes.THE COURT: Okay. Thank you.

RECROSS EXAMINATION(By Mr. Watsky: )

O Doctor Rosen, why don't we start with the last icemwhich you were asked with regard to notice of intentspermit that are reflected in exhibits 24 and 25. I'mreferring to page 2 of the exhibit 24. It's theproject description.

ft's common practice, is it not/ to give adescription of what work is actually proposed in anotice of intent?


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51A Yes.O The general project description that's on the second

page in exhibit 22, it says, "construction ofwaterfront walkway, reconfiguration of thebreakwater, driveway construction;" is t.hatcorrect?

A Correcl.a Absolutely no indication that constructi-on of several

hundred feet of a retaining wall or bulkhead alongthe coastal bank was proposed; is that correct?

A As long as reconfiguration of breakwater is in thefront of that structure.

O WeIl-, why don't we take another a closer look.Resource areas would typically be indicated. Whatresource areas would be affected by a project, andit's also reflected in a notice of intent? So, thisnotice of intent third and fourth pages, it says/"resource areas affected by the proposed workindicate l-and under the ocean. " That's not thecoastal bank; correct?

A Correct.0 Then it says, "rocky inter-tj-dal shores." That's not

coastal bank; correct?A Correct.


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52O Then it says, "land containing shellfish." That's

not coastal bank; correct?A Correct.O So, there's no j-ndication in this notice of intent ofany request for permission to build several hundred

feet of retaining walI or bulkhead, ds you'rereferri-ng to it, along the coastal bank; correct?

A Based on what you've quoted; correct.O Just to make that point a littte exhibit 25. Exhibit

25 is the order of conditlons. The order ofconditions are very specific in setting forth whlchresource areas work is permitted in when the work ispermitted; correct?

A Correcl.O Let's turn to the second -- let's turn to the third

page of that order of conditions. This lists all thecoastal resource areas. The coastal resource areasidentified are land under the ocean; correct?

A Correct.O And land containing shellfish; correct?A Correct.a So, this permit does not all-ow any work on a coastal

bank, and thus doesn't permit construction of aretaining wall; correct?


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53A Correct.O On your redirect you were asked questions about there

being two coastal banks, a l_ower one and an upperone. Do you recall that?A Yes, I do.

0 In response to the question about the lower one, youwere asked 1f the lower one had been altered, and yousaid, "Yes, there was a vertical bul_kheadconstructed. " Where, s that located?

A That vertical bul-khead is at the west side of theBorden Light property.

O West side of theA Seaward side.O Okay. Where is it in relation to, let,s sdy, we'll

refer to the southern part of the property versus thenorthern part of it. Now, where is the vertical-bulkhead?

A There are structures along the rower bank. T ber-ieveI recall seeing it towards the l_ower bank in theproperty, and I'm not sure what structures I saw/ thesouthern end of the property there is al_so riprap orstone in that area.

O You refer to there being a vertical bulkhead. fsthere any photograph in the record that you could


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54^^.i n1_ f n to tell us where is it a vertical bulkhead?IJ\Jrrl L LV

A Would you l-ike to review all the photographs?0 No. If there's any one that you can point to- I'm

looking for something for comparison.A I'm looking at 34, photograph 25, you can see whatappears to be a vertical bulkhead on the left-handside side of the Marina property- And I seeri nran ex1_ end i no f o th^ cnrrf lr =nA then thef e iS ar[/!qy ezrev!.g.....:, -.lE D\JLlLrIt olruwooden platform in the middle of the Marina. And I'mnot sure what the structure is next to it. It.:nno:rs to be a vertical structure to the right ofvvvs! vthat wooden platform.

0 So, these vertical- structures are bulkheads- They'resloped similarly to they're vertical just likemuch of the, which you've referred to, both asretaining wall and bulkheads along the property; isthat correct?

A Yes.0 I find it curious that you refer to them as vertical

as opposed to sloped in a prior definition of sloped.A Vertical is the ultimate slope. Vertical i-s very

sreep.0 It's perfectly steep.

You answered a question about the effect of


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a lower bank, and you said 1t will take some waveenercrv so if ts effectCorrect.Tn far:f - f he F"F.MA manni nrr that's been done has errvalreadv taken that lower bank into effect intoaccount in mapping the extent of the 100-year floodat the bank, has it not?It's likely.Then opinions that you gave before about the heightof the waves being six to six-and-a-half feet, andthen the height of the 100-year storm event also,took i-nto account the lower bank?No. What I sai-d about the six to six-and-a-half feetis that it's highest wave, given the di-stance ofwater over which the wind is blowinq. The near shoreeffects and the effects of the structures were takeninto accountWere or were not?Were not.

That is wind blowinq over that fetch landcould generate waves that I didn't look at the depthof the waters. I didn't look at the effects of theIower bank. T didn't do a FEMA flood profile, whichis a full analysis of not only the waves that coul-d

n

A


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56occur, but then factors that could dissipate the waveFnFr.r\/ hefore reach'i no the shore.Qn i n nrrlar Fnr \/^rr J_ n :nt,,-1 'l -' e-+-Al rr nfOfli r-i-JUI -LIl \-/!LlEr M yU(l LL/ o.\-LLtdIIy cl\-UU!OLsfy !/!EUJUU

and state with some scientiflc certainty the effectof that storm here, and how much it might or mightnot reduce wave energy, you would need to do thatkind of a detailed studv; is that correct?In order to state that it will- dissipate some waveenergy, I can do that based on my observations andI ooki ncr at the mans of fhe Sites.

MR. BRENNAN: I move to strike. It'snon-responsive, Your Honor.

THE COURT: If you answer Yes or Do, sirCertainly.In order for you to state with scientific certaintythe extent to which the stone pier would affect thewave energy, you would have to do that kind of adetailed anal-ysis, which you have not done; is thatcorrect?It is correct that I did not, yes.On redirect, you were looking at photograph 34-21.Again, there was a questj-on about wave effects, FEMA'^^-.i* l-^^ -Ireaclrr menned .i-. !1-^ fnd it mUSttVdIlft IIct> dI!sauy rttql/I/eu -LII LIIC; dLEaJ chave taken into effect the affect of this stone

A

A

AO


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57pier when mapping the FEMA flood zone on The Landingproperty, right?

A Not necessarily. FEMA runs profiles every ordistances, and then they make reasonable estimates offlood heights between them. So, I would have to do

^- ^'l ,,-.i - +- 1-. -f ^in analysas on E.nat p1er.O Have you actually personally examined the FEMA study

to determine whether it took this into account ornot ?

A No. I'm not able to get access to the FEMA study.0 So, you're commenting about whether it has or has

not, you're only speculating? You can only speculateabout whether it did or did not take it into account.

A I cannot asree that he did take it into account.O One thing I do note about this photograph 34-27, you

have two boats stored out there on that stone pier-And you previousty testi-fied that during a 100-yearstorm event if those boats were there at the time ofthe storm event, they/ re going to get washed up onthat pier.

A There's a reasonabl-e chance, Ysr dS are boats at theMarina.

O On direct, you were asked regarding the storm effect,the debris of boats could move around the property,


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58and asked whether the result would occur if either asloped, graded, or a retaining wall- were present. Doyou remember that question?

A I believe so, yes.O And your response was, "yes." Again, I find it

'i nf erest i no that both the orresf i on and vour answer isIdistinguishing between sloped and graded area and ara{- ri ^i -^ '.'a'l I rrarf i nrl rof ri ni nn ur:l ICLO.IIIIrl9 WctI!t ve! L!uqr !ELqrrrrrly wqrr.

THE COURT: Are you t.estifying, counsel?MR. WATSKY: No, Your Honor.

O On cross examination, you did distinguish between thelocation of the bank twenty feet further away.Tlrarzt ra roa I I rr nnf rlrr ri nn : | -l o: ql- q^ma nnrf i nn qrrrv_y !u !vqf rJ rrvL uu!f rrY qu rvqJ9 Jvfrlv yv! u!vrruof storm events if boats or debris are washinq aroundthe coastalbank that's twentv feet further from thenroncrtrz 'l ino will block those boats or the debrisand keep them further from the property l-ine again,the retaining wal-l that's at the property l-ine.

MR. BRENNAN: Objecti-on. I don't recallthat testimony. I don't think the witness testifiedas to

THE COURT: f don'L remember.MR. BRENNAN: I don't think that was the

iaq]-imnnrr


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59THE COURT: Could vou ask i-t in a little

al oarar chnrlgl VefSiOn?lvq! e! tMR. WATSKY: I'11 rephrase.THE COURT: Okay.

O Wnrr I rl \/.)rr 3^raa F)nnirlp Rnqen - f hat clti ri no at 'l eaStv: VYUU!U yVU AylgEt UVVLv! l\vJErrt Lrrqu vu!r1rYq.rma i f not most nortions of a storm event, that aI LLsloped coasLal bank will keep boats and otherfloating debris further from the property Iine thanthe vertical retaining wall that is now present?

A In the lower water level portions of a storm, itwill debris and boats will be kept horizontallyfurther from the property line.

O On redirect, you gave an opinion that the segmentedwal] would be superior in protection against waveimpacts and erosj-on as compared to a sloped coastalbank. In order to give that opinion, YOU assume thatthe retaining wall is properly constructed and notsubject to failure; is that correct?

A A11 coastal- engineering structures are subject tof ai-lure.

O The degree of potential fail-ure differs though,depending on how well the structure is built, does itnot?

MR. BRENNAN: Objection, Your Honor. My


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60question to this witness was specific to the wallthat he looked at on the site based on hisobservation of that particular wall. It wasn't ahrznothef ical - It was what he observed in the fieldon that wall versus what he saw in the photographs ofthe bank. That was how my question was

THE COURT: I believe you did -- I believeyou did ask him his experience in observing failuresof walls.

MR. BRENNAN: Oh, I did. But on theoninion- when T oot to the nnininn- T asked him baSedI/fIIlvlI/ wllsll r YvL Lv vy+rrrvrr/ !on thaf exoerience and his observations of that wallversus what he observed in the photographs, what washis oninion- what was the waII as he saw it.I/+rrrvrr /

MR. WATSKY: Your Honor, the question thatI'm asking is directed at his underlying assumptionsthat the witness is using to reach that conclusion.

MR. SEIGENBERG: And aIso, Your Honor, hespecifically made mention of that, that he's not anonrri neer The witness --

THE COURT: All right. We'Il- have oneattornev at a time

MR. SEIGENBBRG: Sorry, Your Honor.THE COURT: -- responding here. Okay. How


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6lmany more questaons are we

MR. WATSKY. lt m almost at the end.THE COURT: AII right. We're taking a

break no later than 11:15 at this point. SoMR. WATSKY: T' m at the end, Your Honor.THE COURT: AlI right. Ask the question

once more so we can understand it.O In giving the opinion, Doctor Rosen, that you gave

regarding the segmented wall providing erosionprotection, isn't one of your underlying assumptionsthat the wall was properly designed and properlyconstructed so that it functions as intended?

A My assumptions were based on the wal1 that Iobserved. I observed the wall that had interlocklngblocks. I estimated those blocks at one ton or more'each. I saw the bl-ocks were interlocked. I sawthere was some amount, unknown amount ofgeo-technical fabric, which I couldn't put anyjudgment on how much, but there is some sort of backsupport from that geo-technical fabric. And myopinion is based on those observations.

MR. WATSKY: That's all, Your Honor.THE COURT: Okay.MR. WATSKY: No further questi-ons.


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62(Witness stepped down. )THE COURT: We'II take a break until- twenty

aft.er eleven, and I just want to what's the planafter this?

MR. BRENNAN: I have one remaining witness,Mr. Lund, John Lund.

THE COURT: I thouqht we took this witnessout of order. Am I correct?

MR. BRENNAN: No. Vfe took someone else.THE COURT: Oh, I'm sorry, yes.MR. BRENNAN: He's still my witness. I

just put him -- referred him too late on Tuesdayafternoon.

THE COURT: Right. So, let's get back herein ten minutes and we'11 continue.

(Morning break. )THE COURT: Just to l-et you know, I have a

meeting at 12:30, so we will promptly take a break atthat time and return at quarter to two thisafternoon, if we need to. So, why don't you go aheadand nrnr-ccd Mr. Bf ennan.rrv y! vvvvvt

MR. BRENNAN: I call- Mr. John Lund.>k*)k*******


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63*************

..IOTIN COLLINS LT'ND*************

(T{itness sworn. )DIRECT EXA}TINATION

(By Mr. Brennan: )0 Mr. Lund, would you please state your full name?A John Collins Lund.O Where do you reside, Mr. Lund?A 161 Harbor Road, Swansea, Mass.O Are you presently employed?O Are you presently employed?A Yes.O In what capacity?A At Borden Light Marina for (indiscernible.)n Ttm cnrr!?YA Just variousO You're going to have to raise your voice.

In what capacity are you employed at BordenLiqht Marina?

A Monitoring different activities at the Marina.O Do you work daily?A Not in the winter, but in the summer, ys.O Now, Mr. Lund, could you state for the court your


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64college education?

A I graduated from Bates Co1lege.O What year?A In '65.O After graduating -- what was your major at Bates?A Political Science.rt t{-ar dra-1,':f i nn f rnm Rateq - rti rl \/olt frirf hcr \/atllfv flrLgr 9!d.L,rLrduJ-rl9 r!vrLL uquso, urv Jvu J"*

education?A I went to Boston University in Boston.O When did you graduate?A 1968.O After graduation from law school, did you seek

emn'l orrment?A Yes, I did.O What did you do?A I spent two years in the Peace Corps in Brazil,

building houses.O After completing that period with the Peace Corps,

what, Lf anything, did you do next for employment?A I worked for the law firm of Clark (indiscernible)

and Tucker for one vear.O Is it fair to say that upon graduation from law

school, you passed the bar exam?A In 1968, yes.


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65O And then you worked one year for a l-aw firm?A That's correct.O What next in the course of your employment after

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

i_ ha crrnaf iOf COUf t.ut/v IO Was that in Bri-stol County?A Bristol County Superior Court.O And a f ter that?A After that, for a title law firm.O What was the name of the firm?A Corey and Lund.O Was your partner Brian Corey?A That's correct.O Do you recalt the years in which you were employed at

Corey and Lund?A !914 through '90/'9I.O Now, Mr. Lund, at some point in time, did you become

familiar with the property which is now known asBorden Light Marina and The Landing at South Park?

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

first came upon that property?A In 1995, fry partner's son (indiscernible) on the


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66waterfront. And we had done different subdivisionsand whatnot, and we were looking for another project.What, Lf anything, did you to further the purchase ofthe Marina land?We got in or I got in touch with Paul Geru(phonetic) who was the broker for the property, andrhon 'irr.qf oafhered information on what uti-lities wereJqsu Y*"rrrail:hla i_hs v s+rsv4v, -..e prace .Coutd you describe for the court your observation ofthe property back when you first started to look ati f Phvsi cal I rz- r^rhat .lir.l it look like?u. !rrlurvqfrj,Physically, it was an abandoned -- well, it had beenowned bv the Penn Central Railroad and the trackswere taken out . It was a turntabl-e. In the mi-ddleof it t.here were twenty-six shacks along thewaterline.Along the waterfront?Along the waterfront.Now, at some point in time, did you make an offer topurchase the property?Yes, we did.Do you recall who owned the property at the time?Tr- r'-raan Ri rrcr Rea'l l- rz Trrrst. whi r:h waS the EG&G-L WdD \lIgEIl nIVE! I\gqrLy MJL, vvrMrrrealty arm. EG&G really never owned real estate

oAO

7\nOA


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67themselves. They're separate entities which ownedthe real- estate.

O ni.l \/crll nrri_ i_he nrnneri-rr rrnrlar r-nnl.13glJ\z ulu J vu I/u L Lrlv lrr vt/vr uJA In November of '85 we obtained an option to purchasethe premises.n nh^ ,.,}a^h ^-.' \\"^ ,t da rrnrr ma.ar1 \/a\ll :nrl Mr C.rrprr?V flIIL,l WIIeII yUu >dy WCr uv yvu rrluqrr yvu qlru !'lr. vv!eJ:A Mr. Corey and myself/ yes.O lrlnr^r- ,af1-er qer:rrrino 1.ha nn1-inn r^rh:! --^"+ r":r ".U dO l\uw7 a!Ls! JEvu!!rrV LrI UPL-LUrIt wlLdL rtc^L ufu yu

f n An nl I nr.r l-ha nrnian1- ^n f l^ri q nrnnarl_ rz?Ll/ vv !vf Ivw urrg I/rvJ EUL vrr urrlo I/lvyE! uJ ;A fn terms of the option, we were required to remove

the twenty-six houses, or the shacks that weresituated on the property.

O And in fact, did you do that?A Yes, we did.O Did you undertake at some point in time, doing any

preliminary design work as to what your intentionsmi nhi. l-ro F^Y {- l. i o nrnnartrz?r[rYrr L ve I\JI LrtrD IJr Uys! LJ :

A Yes. We came up with a concept of what we wanted todo with the property, and which we real-ly knew at thetime when we signed the option agreement, the planwas to seek the variances and seek a special- permitfrom the ci-ty of FalI River to build condomj-niums oncrne side- on the outward land side. And then vrr^.,^----ts^ ^'l ^^^uovqus qrvrro the water and have the Marina at a


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69A And then we were going to have a high-rise, and we

presented it to the on the initial phases, wpresented it to t.he zoning board of appeals on thesoutherly extremity of the property with, like, ahundred -- I think it was a sj-xteen-story high-risebuilding.

n Nlnr^r \2.)r.r irrst sfafecl tL^# +l^-+ ^^+^ni-.iFl hicrh-r-i Se\l L\UWt yUu J uoL JuqLLu LlldL LIIaL yuLElrLra! rrrYrr !!was sixteen stories?

A Yes.O And originally your concept was to put that on the

southerly end of the property?A That is correct.O And southerly, that being the King Phitlip Boat Club?A King Phillip, that's right.O Did you propose any other improvements to the Marina

n rnna r.l- rr ?t/!vt/v! ul, .A We had some buildings between The Landing and the

snore.O What were the potential uses for the buildings?A We didn't really have a specific thing in mind. We

were you're talking about the originaln Cnrrar-1_YA storage, marina related activities.O Now, at some point in time, did a third party


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ann1^1-1:f-h \rnr1 :l.rnrrf nrrt-.in.inrl-inn i- fhi q nr^i^-f2tly!vqvrl yvu ouuuL yd.r LJ\-Jyd LrIIg III urrro _11!vJsuu.A Well, we employed the services of a broker to find

somebody to construct the condominium units. We hadnever intended to build the condominium units.O And as a result of employing a broker, did a personcome to your attention who was j_nterested in thecondominiums?

A Yes.O What was his name?A It was Keith Development Propert.ies.a Where are they located?A Thev were }ocated in Sf orrohf on.O What, if anything, happened after Keith Development

expressed an interest in the condominium project?A We rro1- f nr'ref hor and r-hanaorl f ha nnncanJ- drrr^ri nnJ"u urlu! qrru vrtqttyEu Llts uvrrvs}JL urqwJltv

of fhe fon side should be arrdnoed-"vMR. SEIGENBERG: I know this is backqround.

The problem is, he's talking about conversations bythird parties at this point in time.

THE COURT: Yes. I mean, this has beenofettv free ran.tF reqnr^lnqoe hora Qn I et'S be av Ilittle more snecifir: 'i n vorrr orresf ions- and I,1l askrr ')'vu! YuuuLrvlIrtthe wit.ness to please tailor your answers to thequestions.


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77Mr T.rrnr{ :f1-r, *,-er you were approached by it's trueyou were approached by a third party who wasinterested in the condominium aspect; correct?Inial I - wc snrrrr!'11 them OUt.And after the person became known to vou, what, Lf=nrrl- hi nn .l i rl rrn11 rln ]_ n frr11_ halt-ha nrnionl- maan-i naellyLIrfrr9t UIU yVU UV Lv !u!LlIs! ullE -y!vJEeu, rLlvqrr!rlY

you and -- was it Mr. Corey? What did you and Mr.Cnrarr rln f n frrrf hor 1-ho nrni ar-12YLV)WeIl, it was Mr. Keith and his employees that Ir^rnrkorl vrifh and Mr /Tnr^lisr-ern'i hle) fo further the qrrs rr!. \rrrvrevv t vvnrnianf :lnnnWhat did you do to further the project?We discussed how to develop this property, in amutually beneficial- way. And as a result of theseconversations, there were certain changes made.

MR. SEIGENBERG: Obiection. I move tostrike that. The difficulty is once agaln, he'srelating the conversations he had with a third party.While it wasn't particularly significant here, I'mconcerned this will be an onqoinq concern as weproceed.

THE COURT: All right. Let's just try andsti-ck to what he did and knew.Mr. Lund, as a result of your conrmunications with

07\n


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

A The project changed by the high-rise was moved awayfrom the south.O Where did it go?

A It was moved to the northerly portion of then rnna rt rr

n n.i ,-.1 -h!,r-h-i ncr e'l se r:han^o f rnm \/^rr r initia]- urLr arly Lrr!rrY s!Js urrqrrvg !!vlLL Jvu!rl orral nnmanl_ n'l rn far J- l'ro r-rrnrrorJ- rr?

A Some of the buildings were eliminated.0 On the Marina property?A The Marina property.O And at some point in time, did in fact did You, in

F;a+- ^^nrrerz f he nronerf rr to Mr- Keith or to KeithAULt UUTIVEJ urrE y!vyg! uy Lv !'l!. l\sDevelopment?

A We gave Keith, or we sold to Keith an option for thetop two l-ots. The site is divided into three lots.We had an option to buy all the land. We divided itinto three 1ots. We sold an option to Keith to thetop two lots.

O To your knowledge, did Keith Development purchasethose two lots?A Yes.O Who ultimately developed the condominium project?


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13A Keith Development Corporation.O Did you and Mr. Lund [sic] purchase lot number 3 at

the same time Keith Development purchased lot l- and6z!

A Yes, we did.a Was it a simul-taneous closing?A Yes.O At some point in time, were there certain view

nraaman+. 'rcnmnnt {-lrrt. r^l:e qinno|ed$eflrerrLs, or a v]-ew edserrrer]L LirdL ,,--encumbering the Marina property?

A Yes.O When was that?A That was at the closing.n \rnr.r t.rhan \\ ^! f he cl nq i t1't _ " WaS thiS the t\t/w t wllgll yL,u -dY r d' L LrrE urvDrrrg,

closing in which you purchased lot 3?A Right.O Who prepared the easement?A Well, the view easemenf rrTaq nrrt nf the documents,

the deeds.MR. SEIGENBERG: Objection. The question

was, who prepared theTHE COURT: Yes. Please answer the

^ fall-rn nranared the document or a deed?.A (No verbal response. )


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74O Were they recorded simultaneously to your knowledge,

with the deed?A No.O When was the view easement recorded?A The view easement was in the deeds. John Keith and I

had a conversation about view easements - That wasthe topic.

0 As a result of that conversation, what, rf anything'did you do?

A Nothing. He prepared the easement. He prepared thatportion of the deed that was going to come to us andto himself. The oriqinal easements were in thosedeeds from Green River Rea]tv Trust to KeithDevelopment and to Brian and myself.

O Do you recal-l- and Green River was the grantor in\/orrr rJeed?,z vu!

a kl nnr

O At some point in time, did you create Borden LightMarina, Inc. ?

A Yes, two years later, the following year or the year-f{-^-! Lg! .

O Is there al-so an entity cal-Ied Admiralty, Inc.?A Yes, there is.O Who are the principals of Admiralt.y?


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75A At the time it was myself and Brian Corey.O Does Admiralty, Inc. own any property adjacent to

Borden Light Marina?A YaqO Which site does it own?A It owns a 200-by-80 parcel of land adjacent to Almond

Street.a At any point in time strike that. What is the

intended purpose of the parcel owned by Admiralty'Inc. ?

A That was the high-rise parcel.0 You mentioned earlier that the high-rise development

was originally on the southerly end of the parcel.A That's correct.a And you relocated it to the northerl-y end?A That is correct.O Was it relocated to the Admiralty, Inc. parcel?A What became the Admiralty, Inc. parcel.O What is now the Admiralty, Inc. Now, you were aware'

Mr. Lund, of the view easement that we made referenceto earlier? You're familiar with that document?

A Yes.O Is the Admiralty, Inc. parcel within the view

easement ?


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78chapter 91 license all-owed for the development of theMarina?

MR. SEIGENBERG: Ob j ection. This woul-d bebeyond the scope of this wj-tness. We don't have anyissue, Your Honor. Cou1d we move this along? Wedon't have any probl-em that they did apply for achapter 9I ficense to develop the Marina. We're okaywith it. It's what happened after the fact, with theexcavation of the bank, the erection of the wall,which is

THE COURT: I/11 all-ow the witness toanswer what his understanding was of what he wasallowed to do under that Ilcense. I will allow it.

MR. BRENNAN: He was the applicant for it.THE COURT: Yes.MR. BRENNAN: And he has answered the

question that a license did issue. And in fact, YourHonor, it's been an agreed upon exhibit. And thefirst chapter 9t license to issue, I believe isexhibit number 1. And I will agree, Your Honor, thatdocument speaks for itself. So, I won't ask thewitness to go over the minute details of the permitand the accompanying plans, because they have beenadmitted.


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79THE COURT: Okay.

Sn r^rifh that in m.inrj_ Mr r,.^r +-!--+. .,1U answefedJfJr WILII LIlAL -Ll1 lttltIUl L'!L. !UIIU7 LlIAL ylf he (lile.st.i ()n -^r-^^ +1-,rF - Ij_cenSe did issue. Couldtrs yuuoL!vrr ct-l\'\;!,t, LllO.L o\/.'\rr -irrqi- .l_ ol I the Court weII, firSt, Iet me aSk "*t-h'i q arroql_inn ni.l \.rrrll narf ir-inej-e nerson:llrli n thetrra YuEo Lrvrr. vrv J vu yqconstructi-on of the Marina?Yes.Would you tell the court what it is that you did?I prepared the notice of intent. I prepared ther-h:nter 91 I i ^^-^^ -^*'1 -: ^^tion. I' m the one that-rrolrLs! JL rr(icIIDE dyyrr(-a'sent notices to all the parties involved. I' m theone who sent the notice to John Keith, Lelling himwhat we were requesting under the licenses. Hehadn't filed any objections or entered into any ofi_he nror-ecdinos- T was i_ he one who was there whenwe built the first wall in the middle of thenrnnar.Frr T hol .i arro irrq1_ ^^,,r1.- ^4 f l-^ n^^l i n f fnnl-fJ!L/PgrLyt I J.JEIJEVeT JuoL 5(TL1LII \JI LIIE P\J\JrJ ILL !!vItL

f hr11 tdf nd hvur rurrrY

Well, let me ask a questi-on about that. When youbuilt the first you just testified that you werethere when they built the first part of the wall.What wall were you referring to?The wall the concrete wall. The poured concreter^ral I 'i t sf arf s nrnlralrl rr f sp feet SOuth of The Lv

nnon

O

A


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80Landing pool.

O Now, do you know if that wall j-s within the20-foot easement area, that's subject in thislitigat ion?A Yes, it is.

0 Do you recall what year you may have buil-t that firstseomented wall?

A 1989. It woul-d have been 1-989.0 Woul-d it be fair to say that that wal-l was a

retaining wa1l?A Yes.A Did any excavation on the property take place by you?A Yes.O Would you explain for the court how the site was

excavated?A We started in the northerlv section. And 200 feet

south of the northerlv end is where the bank started'and we excavated the bank to provide for all theitems that appear on our chapter 9I plan.

O Did youA We went down to the southerly we took the roadway

down to the southerlv end.0 Now, when you sdy, "the roadwayr " can you explain for

the court what vou mean by that?


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81A There was an eighteen foot wide roadway on the plan.O Was it ultimately constructed by you?A Well, it was yes.O Did the construction proceed from the north or the

south?A We started constructj-on on the northerly side.O Did you complete the road to the southerly side, to

the southerly end, I should say.A Not in it's entirety. We excavated the majority of

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

n f-nrron.l-YA And then our next thing we did was, w built the

bank -- we built the retaininq wall in front ofbuilding 12

Trial Transcript Day 4

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Transcript of Trial Transcript Day 4