Professional Documents
Culture Documents
!+1
-,;i.
4-i
COMMONWEALTH
OF MASSACHUSETTS
LAND COURT DEPARTMENT OF THE TRIAL COURT MISC. CASE NO. 254067
1.
BRISTOL, SS.
2
3
4 5 6 7
8
****************** Before:
THE LANDING AT SOUTH
PARK
Cutler, J.
CONDOMINIUM ASSOCIATTON
Plaintiff
vb.
9
10
11
Defendanl
*" ,q- 6
I
******************
L2 13
1.4
15
16 77
18
19 20
21
Tuesday, November 9, 2010 Courtroom 5 226 Causeway St.reet Boston, Massachusetts O2LL4
22 23
,'4.
;8;r
24
'*i
*j..
. .' -''::1"
:ii
KAKEN SMITH
Court Reporter
'i: .:i:l
'''iil:: -:{,
14 Palmer Avenue
Danvers, Massachusetts
0I
923
G@PY
(978) 777-s802
Fax (szs) 777-sBoJ
lu9tr0
INDEX
WITNESS
Exhibits:
COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. I/.ND COURT DEPARTMENT OF THE TRIAL COURT MISC. CASENO. 254067
* * * *** * * * * ** * * * +* *
CONDOMINIUM
AS
SOCIATION
Before: CUTLER.
J.
(By Mr.
Brennan)
Plaintiff
vs.
MARCELLDAQUAY
BORDEN LIGHT MARINA, INC.
** + * * ** ** +* +* * ** *
Defendant
Seigenberg)
65 87
to7
Brennan)
Seigorberg)
I 14
150 139
Brennan)
Seigarberg)
174
APPEARANCES:
EXHIBITS
DANIEL R. SEIGENBERG, ESQ MAT'|HEW WATSKY, ESQ.
2 Commercial Street Sharon, Massachusetts 02067
No.
Description
Page
1
Id.
Evid.
33
33
180 156
33
EDMUND BRENNAN, ESQ.
Brannan, Recupero One Church Green P.O. Box 488 Taunton, Massachusetts 02780 (508)822-01?8 Representin g the Defendant
tJo
172
42
andAandBattached
NOTES:
KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923
Phone: (978)
777-5802 ['AX:
(978) 777-5803
LANDING
I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 17 18 19 20 21 22 23 24
rr/9trO
I 2 3 4 5 6 7 8 9 10 II 12 13 I4 15 16 17 18 19 20 21 22 23 24
that we weren't going to finish on Wednesday, I would
keep him on as a rebuttal witness.
COURT CLERK: Novenrber 9, 2010, miscellaneous case number 254067, The l-anding at South Park Condominium Association versus Borden
THECOURT: Yes.
MR. SEIGENBERG: Frankly, at the pace wete
going, depending on what we're going to do with the
coastal geologist - coastal - I'm sorry, not
see
if we were
couple
of - Im
MR. SEIGENBERG: Well. we have - can I stay seated, Your Honor, ifthat's okay?
THECOURT: Yes.
MR. SEIGENBERG: We have Don
Don
we'dbereadinginportionsofthedeposition. So, it would proceed that way. It might be a little THECOURT: And thafs agreed upon? MR. BRENNAN: I understand - when the time
comes, Your Honor, I would ask that my brother simply
lrffort,
where
kffort.
that we take a witness out of tum. THE COURT: Right. So, is that going to be this aftemoon or is that going to be -
THECOURT: Okay.
MR. SEIGENBERG: So, we have that situation. Then I have two more witnesses from The
-5I
z
J 4
-7
MR. SEIGENBERG: Okay. That makes MR. BRENNAN: It's just tomorrowmorning he was - he teaches at Northeastern.
THE COURT: Oh, okay. All
have you talked about the flow
6
7 8 9
right. Well,
l0
ll
12
to
l3 t4
15
Your Honor - I actually do feel comfortable - force of habit, I think, over the years. I talked to Jim Holmes. He was the other structuml engineer. He
was the shuctural engineer that I told you about
16
17
yesterday
l8
lo
20
THECOURT: Yes.
MR. SEIGENBERG: - with the insurance company. He's not available at all tomorrow. I told
him we were going to have a discussion this morning,
and that frankly,
2l
22
2)
1A
had him come in this aftemoon. And I know you had suggested
1 knding, fwo of the board of managers. 2 TtlE COURT: So they are former or current 3 board of 4 MR. SEIGENBERG: They're current. 5 THECOURT: Theytecurrent. Okay. 6 MR. SEIGENBERG: One should be 7 significantly less lengthy than the other. 8 THE COURT: Right. Okay. 9 MR. SEIGENBERG: I would expect the more 10 lengthy witness to be similar to the one who's 1I already testified. 12 THE COURT: Conceivably your witnesses 13 could take up the rest ofthe day? 14 MR. SEIGENBERG: Absolutely, Your Honor. 15 THECOURT: Yes. Includingcross 16 examination and all of that, which would leave 1,7 tomorrow to - you have how many? 18 MR. BRENNAN: I have a surveyor; I have a 19 structural; I have a coastal geologist and my 20 clients. 2I THE COURT: Clients. 22 MR. BRENNAN: There are two clients. 23 THE COURT: Yes. Okay. Wele not going to 24 finish up tomorrow, it sounds like.
-6-
-6NOTES
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
ruglr0
I 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 18 19 20 2l 22 23 24 1 2 3 4 5 6 7 8 9 l0 II 12 l3 14 15 I6 l7 l8 19 20 2l 22 23 24
easement issue. It's either
":1
MR. BRENNAN: Well, I would consider - our structural engineer, given Your Honor's inclination
yesterday on the structural issue, we've heard from
or it doesn't violate the easement. Very straight, black and white, the issue. I agree 100 percent. The issue over the conternpt complicates this a litt'le
one. I know my brother wants to call yet another. I'm not sure what it adds to the first. I mean, I
would consider maybe not calling the structual
bit in my mind. And I don't know if it does with you, Your Honor, which is probably more important. THE COURT: Well, it does, only in terms
because the contempt is there. That's in place.
-
angineerifweagreethat -I'mnotsurewhatthey
addto THE COURT: Why don't we look at it this way. Okay. If this wall - let's assume for the
sake of argument this wall were permissible within the easement area.
think that's admitted. I don't think there's any question that the wall was built in violation ofa
standing injunction that was as clear as bell. I
mean, there's other issues as you
know. There's the questionoflaches,youknow. There'sotherthings that will come into play in tems of what the ultimate damages or the - not damages, I shouldn't
say. Ishould MR. SEIGENBERG: Remedy. THE COURT: - say the remedy is for the contempt. I'm trying to keep those two things
separate as we go forward, but I'm afraid they're
If however. we frnd the wa'll shouldn't have been built within this easement, let me tell, you
whether it has a building permit or it doesn't have a
it
of
in. I just
-9I
z
3
ll
4
s
long as it's not taking up too much time, and you want to get someone in here for five minutes to swear that there's a permit or not, I don't see the harm in
o
7 8 q 10
it.
I'11
take
we got together and we were talking about experts and what I wanted to hear about this, my understanding
was that these engineers were really going to be
goes to the
l1
12
question I guess I have is that there's already an understanding, an agreement that these walls,
talking more to the question ofhow does or does not the construction of this wall materially interfere with the ability ofthe plaintiffs to have advantage
l3 l4
lf lo
1-1
particularly the ones in 2008/2009, were constructed in violation ofthe court order
THE COURT: The contempt is something else
again.
anyofthatsofar,justsoyouknow. Andit'snot
this is just as good as, thafs not what I want to
18
l9
20
21
hear. I want to hear, does it or doesn't it interfere with this easement, in what way exactly. What did they have before? What could they do before? What can't they do now
So, almost think of
as a result?
22
easement. okay.
z)
AA
MR. SEIGENBERG: And that's sort of where I guess - I agree with the court 100 percent on the
easement hasn't been - that the wall hasn't been built yet. If this were someone coming in for declaratory judgment, is there a right to build a
l0NOTES:
-12-
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978)777-5802 FAX: (978) 777-5803
KS COURT REPORTING
know
MR. SEIGENBERG: I
that aspect of the case, as opposed to, what's the resulting damage because the wall was built in
violation ofthe order. MR. SEIGENBERG: I understand that, Your Honor. But getting back to the contempt, I mean, I th'ink you pointed out the correct, I guess it would
be the dilemma we all have, that there's an
differartly,
totrythecontemptcase. Youmadethedecision,and I think rightfully so. It's an old case. kt's get the easement issue resolved, too. But in my view THE COURT: The contempt, as far as lm
concerned, there's contempt. You know, nobody has to
I 2 3 4 5 6 7 8 9 10 1I 12 13 14 15 16 l7 l8 l9 20 2l 22 23 24 1 2 3 4 5 6 1 8 9 10 1l 12 13 14 15 16 l'7 l8 19 20 2l 22 23 24
of
see this
black and white as I do on the easement area, then we're back to the contempt. And the contempt is
going to give us the remedy that we're looking for,
as
Okay. So, I'm not sure that you get 100 percent even
if you win.
Again, I would just like you - I don't
want to drag this on unnecessarily long. I think that I don't want to confuse. but I also want to make
as we go
So, concern to the defendant that lestimony about the structural integity of the wall is going to infect my findings with regard to the - to whether or not it's adequate within the easement, really is not going
unnecessary time
the two
thingsareseparate. Ijustdon'twanttospend
can agree on whether the
-13thehearing. Thequestionis,whatistheproper
remedy.
-15on that.
MR. SEIGENBERG: Your Honor, we\e had this discussion. I still have the - I talked to
a
city
okay,thewallisthere. Ifthatwallwasperfect,
right, and it doesn't cause any problems, you may
make a decision not to order that wall removed in the
theissueofpermits. Ithinklsentasubpoenaor
intended to, before I did his deposition. Is that
contempt. However,ifyoufind,basedonthe
evidence, that it's not struchrrally sound and that
ifs causing damage to the units, it's going to create a catastrophic failure, I would think in
evaluating all those remedies, you would want to know that, including whether permits were applied for
because permits are important. Whether or not DEP
still an issue. I told her I'd call her back and tellherwhetherornotweneeded thebuilding MR BRENNAN: I don't want to waste anyone's time, either. And I think we agreed
yesterday that there were no permits pulled for the '08/'09
approval was obtained, all these types ofissues so you can make the bestjudgment possible on what the contempt remedy should be. And that's why would think, to the court. I agree.
this I
if
Ifyou find a
if
car resolve the answer between now and then. THE COURT: That's what I'm thinking is,
-16-
NOTES
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I 2 3 4 5 6 7 8 9 l0 I1 12 13 14 15 16 17 18 19 20 2l 22 23 24
Vol.I rU9n0
1 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 l9 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 10 II 12 13 14 l5 16 17 l8 19 20 21 22 23 24
at 9:30 tomorrowmoming.
,M
THECOURT: Okay. MR. BRENNAN: And then I have - I finish
you may have time to either get a statement of the record or something like that, that you both agree on, and just then can stipulate there is or there isn't a build'ing permit.
MR. SEIGENBERG: That's what she's going MR, BRENNAN: I alreadv did it. It's a
good suggestion.
2:30IcanhaveMr.Rosenhere. He'sthe THE COURT: He is the structural MR. BRENNAN: - coastal geologist. THE COURT: Oh, he's the coastal geologist.
Okay.
MR. SEIGENBERG: Exactly, yes. So, Im going to get something today. Ill talk to counset.
THECOURT: Mm-hmm.
MR. SEIGENBERG: Maybe we can resolve that.
Ifit
THECOURT: Yes. MR. BRENNAN: I don't' want to waste time. appears that it's a part ofth contempt
Itdoessoundlikemaybelllcall -I'mhopingl
get a chance -
portion of the case, then I will feel compelled to call him. I don't need him for the easement. THE COURT: Okay. So, you think it matters
was built, ifI can get this straight, in violation ofthejudge's orderin this, the injunction, you think it matters whether there was permit, whether it's structurally sound, or not?
ifthe wall
an
-17I
2 3
A
-t9_
THE COURT: It doesn't matter, right? MR. SEIGENBERG: But I'm not the judge
who's going to determine what the remedy
is. But if
in.
He should be -
5 o 7 8
briel
And so
we'd get him done, as well, because I don't know what's available. He's certainlv not available tomorrow.
thinking of anything other than having that wall come down, I would say it does matter if we know whether
that wall is structurally sound or
not. It
seems to
THECOURT: Okay.
MR. SEIGENBERG: He is available this aftemoon. So, ld call him, and then we have two more, like I said, two more l-anding representatives,
current board members.
l0
ll
t2
IJ 14 15
deminimis encroachment. almost. THE COURT: What you're saying is, if I were to find that that wall. even if I were to find
that that wall could be constructed within the
easement, that you could envision a remedy in which
THE COURT: And they're here today? MR. SEIGENBERG: They are here today.
THE COURT: So, you can follow up, if you finish with Don l.effort this moming, you can start them while youte waiting for your structural
engineer.
would order the wall taken down solely because it was built in violation ofthe iniunction and is structurallyunsound. MR. SEIGENBERG: Amongst other things, yes,
absolutely.
l6
t7
18
l9
20
21
MR. SEIGENBERG: Exactly. THE COURT: And you are going to bring your
suweyor?
22
23 1^
already have a contempt, and so what's the remedy going to be. We're certainly
]l!*
*r **.r-
n"."
NOTES:
KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923
Phone: (978)
777-5802 FAX:
(978) 777-5803
LANDING
I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 17 l8 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 l0 1 I 12 13 14 15 l6 l7 18 19 20 21 22 23 24
tugn0
I
2
J
it was structurally sound, maybe you would look at it differently. But the former point seems like pretty
crystal clear, I would suggest. I guess I'm arguing to some extent. If you find contempt, they constructed a wall in violation ofthe court order
wall stays up in it's current composition, that there'll be further damage to the units. It all goes back to that contempt. And I see now where the
6
7 8
court - where you were going early on in this case, Your Honor, because you were looking at it more as an easement case, the case in chief. But we're here as
you know, as a lawyer, you worry atrout getting all yourcase in -
within the easement area, and the wall's unsound, I'd argue, yes, the wall has to go down and we have to that would be one ofthe remedies, amongst others.
So, that's why we were trying !o present and certainly what we were trying to do, like I said
l0
ll
t2
IJ
THECOURT: Okay.
MR. SEIGENBERG: So THE COURT: All right. But I also want to, you know - to tell you the truth, I haven't had the
foundation yet that these structures are within the
aegis of the board of managers, the trustees. I have
seen
before, these are, you know, in contempt you have discretion in your remedies. And certa'inly one
of
15
the factors that I would ask the court to consider is not only they violated an injunction, there were not
16
t7
l8
19
and that they are representing the unit owners, and that's
be
built in
20
it.
2l
22 23
buildings are the responsibility ofthe trustees, just so you know that. MR. SEIGENBERG: Oh, interesting.
testimonytoseeifitcouldberepaired. Idon't
24
it.
on some of this until after we've heard the principle case. Butifyouwanttoproceedtogether,wecan
proceed together. I think the reason we had
sense,
if
buildings
as a result ofthe construction ofthe wall. I'm not getting into the nature of the damage, howmuch itcosttorepair. Asfaras I'mconcerned,
MR. SEIGENBERG: I agree with that except with one caveat. Certainly you would want to hear
that there's already been damage to units, and you would want to hear that there is a concem
ifthat
I 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 2l 22 23 24
THECOURT: Okay.
MR SEIGENBERG:
in.
We could
look - if you
really want the condo documents, we could put those THE COURT: Or agree - I need to lnow that they have an even standing to talk about that,
because I'm hearing, you know, you had a witness here yesterday who was talking about his own personal
unit. Irt
here.
me
-Ihavetoreviewit. Ithinkthestatute
of
goup that's responsible for the
does in fact provide for that, that the board rnanagers, that's the
condominium complex
as a whole. I recognize it's different for individual units. Ifvou reallv want
-22
NOTES:
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
, ;drti;"ir--.
,.1t) '.
know -
tiat
authority. I don't think that's ever been denied. MR. BRENNAN: Yes. Idon'trecall THE COURT: So, you don't challenge that at all. MR. BRENNAN: I filed an amended answer.
THECOURT: Okay. MR BRENNAN: So, I had to get another one. THECOURT: Okay. MR.BRENNAN: Wecancertainlyiookat that. And whatever my answer says MR. SEIGENBERG: Otherwise, do you really
want me to get the condo docs brought
in? Is that
I the documents- Again, depending upon the 2 condominium, these things are oftor described 3 differently. So, sometimes the unit owners are, in 4 . fact, responsible for the exterior work on their 5 property. And so you need to know what is - who 6 owns or controls what aspect ofthe building. 7 MR. SEIGENBERG: I don't think we have a 8 difference of opinion on that. We al1 agee that the 9 common areas are not owned ifthey have an undivided 10 interest. Butthey'retheresponsibilityofthe 1I board ofmanagers. 12 THE COURT: That's right. 13 MR. SEIGENBERG: We also agree that 14 anything inside the walls is the unit owner's. 15 THE COURT: But sometimes it goes outside 16 wal1, and sometimes it doesn't. It depends upon 17 MR. SEIGENBERG: Right. 18 THECOURT: -howthecondo 19 MR. SEIGENBERG: But I don't think that 20 I'm not so sure that's an issue in this case because 2l we're talking about walls in the common area, and the 22 only relation to the units is the fact that 23 there's - based on work in the common areas there 24 was damage to individual units.
11
agree.
THECOURT: Okay.
MR. SEIGENBERG: I'm going to bring it up in testimony
as to what
what the responsibilities are, and I can bring condo documents and the -
in
THE COURT: I don't need it to that level. MR. SEIGENBERG: You need something.
THE COURT: I need something.
MR. BRENNAN: The statute would say, I think, that the board ofmanagers has that responsibility. Andtheniftheyaretheduly
elected board ofmanagers -
1 2 3 4 5 6 7 8 9 l0 1 1 12 13 14 15 16 17 l8 19 20 2l 22 23 24
units -
to - I
THE COURT: - that's outside this space. MR. SEIGENBERG: We have no intention to
present anything as to the monetary damage to the -
of
Your Honor,
yes.
-26NOTES:
-28-
KS COURT REPORTING
Phone (978)777-5802 FAX: (978) 777-5803
14 Palmer Avenue I)anvers, Msssachusetts 01923
LANDING
t
3
THE COURT: Yes. It's very complex here. Okay. But let's get back to our organization. So,
today we're finishing up with Mr.
THECOURT: Okay.
other people
z
J ^
kffort's
cross
MR. BRENNAN: - 2:30 tomonow, and the will be here. They're all waiting on THE COURT: Okay. Certainly. (Trial paused) THE COURT: Mr. Seigenberg, are you -
telephone ca11s.
5 6
7 8
MR. SEIGENBERG: And we also have the will THE COURT: And the deposition of that
9
10
ll
t2
IJ 1i
l0 to -
ll
t2
MR. SEIGENBERG: I'm sorry, Your Honor? THE COURT: Are we ready? MR. SEIGENBERG: Oh, yes. I'm sorry, Your Honor. I thought Mr. Brennan was going to call Mr.
kffort.
THE COURT: He's your witness, though. MR. SEIGENBERG: No. no. It's Don lrffort.
I think we're still on cross with Don Iffort.
l3 t4
l)
16
l5
16
t7
18 19
MR. BRENNAN: I feel safe, Your Honor thal starting - I feel safe having my witnesses available of 9:30 tomorrow morning. THE COURT: I think that works, yes. If we break a little early today, that's fine. Yesterday we went a little too long. I just want to remind you
as
I7
18 19
kffort
this
20
21
20
2l
22
22
z)
aA
that, you know, rye are not fully staffed any longer, and we need to make rur" ,nl;;u_*ody is out of the
23Q
24
3l -
I 2 3 4 5 6 7 8 9 l0 ll 12 13 14 15 16 17 18 19 Z0 Zl 22 23 24
to go. MR. BRENNAN: If we don't frnish tomonow, will we resume Friday moming? THE COURT: It me just - I didn't bring my calendar in w.ith me. Yes, I think there's one thing on Friday morning. I mean, if we only have one
witness to finish up, or a cross examination or something, we probably could do that on Friday. But
we might have to interrupt
it with something
as we're
goingforward. Ifitlookslikewe'vegotseveral
witnesses to go, I think we're going to have to schedule another day and we can figure that out
tomorrow.
All right. You maybring - and I think we'llgountil ll:15. We'lltakeabreakforten minutes, and then we'll go again until 12:30. Okay. MR. BRENNAN: Your Honor, I'm going to have my client notify Mr. Rosen -
I Q 2 3 4 5 6A ?Q 8 9 10 A 11 Q 12 13 A 14 Q 15 16 A l7 8Q 19 20 2I 22 A
1
siteinquestion;isthatcorrect? Doyourecall
that? lt's correct. And by the site in question, do you understand that
means the embankment area between The
tanding
Now, there was some mention of consolidated materials. Do you recall that?
Yes.
lt'snaturalvirginsoilthat'sconsolidated,
compacted.
-30NOTES:
-32-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
VoI.II tugn0
1A
2
a statement
if it's fill
3Q
4
5
of
that it's
place.
fill material?
to exhibit
6A
7
It appears that there is some erosion that's taking I'd like to show you a photograph, exhibit 34-1
ask you also
8Q
9
l,
and
at that
l0
l1
12 13 see the photo you're
if
MR.BRENNAN: YourHonor,Idohavea better copy made. It's the same copy as that. May I have it with this witness? THE COURT: Okay. Would you testifu from
that, then.
14
15
Again, without doing any exploratory work on that, couldn't tell you
if it
was
fill
or
not. Again
l6 though, it's eroded material. 17Q Sure. So, it's fair !o say that l8 shown in that photograph?
19A
20Q
2l
22
would - the
exhibit 34-12. And I've also got a glossy photo, you would look at that? Now, looking at that photograph, do you
recognize that as being the s:o::herly end of the
if
)1
1A
It's - it would
be
I
2A
fill
or not
fill
if
of
buildings 3 and 4 prior to the construction ofthe wall in question, would that change your opinion in any way as to whether or not the wall would provide
sufficientprotectiontoThel-andingpropertyfroman
ocean event as you described? There would certainly be serious erosion during a
hurricane event.
Iflmay -maylplease?
Yes.
fd like to
ask you
is
THECOURT: Okay.
Take a moment and look at 34-10, and Iwould askyou
3 is thatbuilding 3? 4 Q Directingyourattention tothephotograph,ifthe 5 southemmost building on that photograph is building 6 number 3, does that orientale you as to where it is 7 on the property? 8 A Yes. 9 Q Would it be fair to say that's in the southerly end? l0 A Yes,that'scorrect. 1 I Q Do you see the access road coming in from the 12 southerlyend? 13 A Yes. 14 Q And do you see the embankment to the left of the 15 access road? 16 A Conect. 17 Q Fromthatphotograph, is there any way you can l8 determine whether or not that embankment was 19 consolidated materials or as a result ofprevious 20 fill? 21 A From this photo it's concrete debris which we would 22 call fill. 23 Q fd liketo directyourattention to exhibit34-31. 24 And I'd ask you, looking at that photograph, if I
-36-
NOTES:
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
V BORDEN LIGHT #254067 Vor,. I were to tell you that that - if you would assume for 2 a moment that that is in front of building number 3, 3 could you describe what's shown in thatphotograph? 4 A It loolc like in the winter, and all the vegetation 5 is obviously dormant. 6 Q Do you observe anything in that photograph that would 7 indicate erosion ofthe embankrnent? 8 A Yes. Around the centerofthebuildingthereis some 9 soil movement. l0 Q Now again, exhibit number 34-37,I would ask you if 11 youwouldtakealookatthatphotograph. Andifl 12 were to tell you that that is the King Phillip Boat 13 Club, do you know where that is in orientation to The 14 l-anding and Marina properties? l5 A Ibelievethat's south ofthe site. 16 Q So, it would be King Phillip Boat Club is shown in 17 that photograph. Would it be fair to say that the 18 building number 3 would have been built or was built 19 to the left ofthat? 20 A Yes. 2l Q Can you tell me what's described, or what - would 22 you describe what you see in that photograph? 23 A There's quite abitofconstruction debris laid in 24 the sun.
-37 -
tr/9tr0
I 2
3A
southerly end ofthe property, northerly towards where the Marina and the club house are now built? I'm sorry. I probably can't because I'm not fam'iliar
4
5Q
with it.
Is there anything in that photograph that would allow
6 7 8 t0
11
you to make - form an opinion as to whether or not that construction area depicts consolidated matedal there is construction debris
or fill material? 9 A Yeah. You can see that on the top surface.
Q A Q A Q
Now, Mr.
Yes.
kffort,
12
13 14 15 16
number 5 in the binder that vou have before vou. That is entitled a non-exclusive easement; conect? That's correct. Have you had an opportunity prior to this moming to review and read that document?
17
18 19 20
A I'velookedatitpriortothis Q Would it be fair to say you're familiar with it? A I am familiar with it, yes. 2l Q Do you understand that this document forms at least 22 the basis ofsome part ofthis case thaCs pending, 23 and you're here this morning for? 24 A Yes, correct.
-39 -
I Q Would it be fair it doesn't show consolidated 2 material? 3 A It's hard to say. There is vegetation here. 4 Q Well, vegetation alone certainly is not an indication 5 ofconsolidated materials; is that correct? 6 A Right. 7 Q Thevegetationcould growonfill. 8 A Absolutely. 9 Q You do observe construction material on that site l0 A That's correct. ll Q -inthephotograph? 12 A Yes. 13 Q fd like to showyou one morephotograph, which is t4 marked 34-38, and I would ask you ifyou would take a 15 look at that and tell me ifyou recognize what is 16 shown in that photogaph? 17 A There's construction debris on the top surfaceof 18 this material. 19 Q Mr. l-effort, when you were out at the property, did 20 you have an opportunity to observe the tank farm, the 2l oil tanks to the north of the Marina? 22 A No. I did not. 23 Q Looking at that picture, can you orientate yourself 24 as to whether or not that is looking from the
i
I Q Directing your attention to midway down through the 2 firstparagraph, starting with thewords, "as hereinafter described," do you see where that is? 3 4 A Yes. You mean, here and after described it for 5 construction? 6 Q Skip down to the second sentence after that, starting 7 with the words, "for construction and maintenance of 8 drainage systems, and for construction and maintenance ofa sloped gtaded erosion and flood 9 protectionbarrier." Didlreadthataccurately? l0 l1 A Yes,that'scorrect. I 2 Q Now, given the photographs that you just examined, 13 and your testimony on cross examination yesterday 14 that your opinion may vary, depending on whether it 15 was consolidated or unconsolidated materials, after 16 looking at these photographs in the vicinity of 17 building number 3, would it be fair to say that a l8 retaining wall, a vertical, segmented block retaining 19 wall constructed in the area ofthe soils that you 20 observed in those three - on those exhibits, would 21 act as a flood protection barrier for The l-anding at 22 South Parkproperty? 23 A If itwere designed properly, yes, itcould. 24 Q That opinion is based in part upon your review of the
-40-
-38NOTES
KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978)
777-5802 FAX:
(978) 777-5803
LANDING
I
2A 3Q
tugn0
1
2Q
4 constructed as youjust described, would also 5 adequately serve or be better than a sloped graded 6 bank ofthis unconsolidated material forerosion 7 control? 8 MR. SEIGENBERG: Objection, your Honor, 9 form of the question. It assumes it,s unconsolidated 10 material. I think that,s what the witness said. II THE COURT: Do you want to rephrase your 12 question? t3 MR. BRENNAN: yes, your Honor. 14 Q Mr. trffort, based on your examination of the photos 15 that we went over moments ago, it,s youf testimony 16 that you observed fill material in a number of those 17 photos; is that correct? Construction debris? 18 A Yes, north of the site and south of the site. 19 Q Conect. Now, it would be fair to say that 20 construction debris would not be consolidated 2l material? 22 A That is correct. 23 Q So, givan the presence in the vicinity of buildings 24 on the southerly end ofThe tanding at South park
- +l I
2 J
A
retaining wall
3 4 5 6
7A
THE COURT: I,m not allowing the question. Mr. trffort, the photographs that you examined, which were exhibits 34-39, 37 , 31, g,10, I 1 and 12, you identified the area in those photos as being the southerly end in the vicinityofthe King phillip boatyard - I mean, Boat Club?
Yes, correcl Do you understand buildings 3 and 4 to be in the southerly end of The I_anding at South park property?
9 l0 A Yes, north of the King phillip. I I Q In the photo$aphs, you have identified the 12 embankment as consisting at least in part of 13 construction debris; is that correct? 14 A Yes, the one that was shown by King phillip. 15 Q Givor the fact that that embankment in the vicinity 16 of - would you agree that's in the viciniW of 17 building 3? 18 MR. SEIGENBERG: Objection, your Honor, 19 just to the vagueness of term, ,'in the vicinity.,' 20 THE COURT: No. I,ll allow the question. 2l Q Doyouagreethat 22 A Itappears to be in the vicinity ofbuilding 3. 23 Q Right. So, givor that t1pe of soil material in the 24 vicinity ofbuilding 3, and focusing your attention I 2 3 4
5A 6Q
on building 3, would it be fair to say that a retaining wall constructed as you described, would afford The landing in South park erosion control and
8Q
property, given the presence ofthe construction debris, which we agree is unconsolidated materiat, would it be fair to say that a retaining wall constructed as you described, would serve the
flood protection? Yes, that's conect. Given the soil materials that you have seen in these photographs, at least those that consist of construction debris, would it be fair to say that the retaining wall would give The landing at South park
greater erosion control and flood protection than the photographs that you observed, which you testified showed erosion; is that fair to sav?
6 7
8
of
o
10
ll
t2
13
MR. SEIGENBERG: Objection, your Honor The dilficulty is, he,s talking about debris that's not necessarilynear the blocked area. As such, it's not necessarily unconsolidated. So, he's asking the
witness to give an opinion on facts that are not in
evidence.
l4 l5
16
THE COURT: I'm not sure he's asking in the vicinity of the premises as we have defined them. I think he's talking about in general, ifthere were
construction debris, would a wall replacing that construction debris adequately serve for flood
l7 l8
lo
20
21
22
LJ 1/
MR. SEIGENBERG: Which doesn't have any reality, any basis in reality in this case. MR. BRENNAN: I'm sorry, your Honor?
7 8 9 l0 1I 12 13 A 14 Q 15 16 l7 18 19 20 A 21 22 23 24
That'sfairtosay.
Youtestified yesterdayabouterosion to coastal banks, and different ways coastal banks may erode. When a reta.ining wall has been constructed in a
coastal bank area, what
lpe
as
an engineer, be concerned with, on the top wa1l, or on the bottom of the wall?
ofthe
ifnot properly
ofsoil.
_44NOTES:
KS COURT REPORTING
Phone: (978)
tugn0
I 2 3 4 5Q 6A 7Q 8 9 10 11 12 A 13 Q 14 15 A 16 Q I7 A 18 19 Q 20 2l 22 A 23 24 I
3A
think that's exhibit 5.
'"
illfmliDr.pt'.tr.r*o'tl,
I
MR. WATSKY: Dan, if you could bring that to me. You got it, Mr. lffort?
Yes, yes, correct. Counsel had pointed you to the language and part that
reads,
ofthe waves do hit straight on. And is it then your opinion that the erosion that may occur is at the base ofthe wall, and thafs a
gteater concem than on the top Yes, because
ofthe wall?
ofa
entire wall if the base is compromised. In your engagement with The landing at South Park
a consultant/expert
all?
it?
soil - it would
be a grade
of
to - I mean
2 Q Butif it's
But it has
to
would be that a fair amount of The tanding's property would have to be excavated beyond the property line. And in close proximity to the buildings there wasn't
adequate enough room to construct that type
ofwall.
The
asheetpilingmechanismofaverticalwall.
it
it originally was.
4 maintainable. 5 Q It has to be maintainable. So, if one is 6 constructing and maintaining a sloped graded erosion 7 and flood protection barrier, would you interpret 8 that to mean a coastal engineering structure that's 9 made of con$ete blocks or is that to be of some 10 other material? 1l A Of othermaterial, not concrete blocks. 12 Q What would it be? 13 A It would be - you could use - it would be soil. It 14 could be earth. 15 Q What's the meaning of the word, "graded," used in 16 that tefm? 17 A The pitch of the material, the slope of the material. 18 Q Butdoyou gradeconcreteblocks? 19 A No. 20 Q What do you - what is something - when it's 21 referring to something that's graded, whatis that 22 referring to? 23 A That would refer to soil. 24 Q Soil. So, ifthere'saverticalconcretewall,isit
-48-
-46NOTES:
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I 2
3 4 5 6
there?
ru9n0
I 2 3Q 4 5 6 7A 8Q 9 10 II 12 13 74 15 16 A 17 18 19 20 21 Q 22 23 24 A I Q
2A
four feet in width, two feet underneath the b'lock,
two feet into the soil.
So, in a standard pract'ice as an engineer, would
A Q A Q
Correct.
7
8A 9Q
l0 Can you tell me what we're looking at here? l1 A It would appear that we're looking in the southwest 12 direction along the shoreline in front ofThe 13 landing. 14 Q And just !o get oriented, along the water side, can 15 you see where there's a stone wharf? 16 A Yes. I 7 Q And you see a vegetated area that's between that and 18 the last building of The l:nding? 19 A Yes,Ido. Iseeafullyand vegetated area, yes. 20 Q Okay. Would this area constitute a sloped and gr"aded arca'l 2l 22 A Yes,youarecorrect. 23 Q Is what you're seeing in those photographs depicting 24 something that's consistent with the language used in
-49-
ofthe 500-p1us feet, or do you feel you ofthe conditions along this
MR. BRENNAN: Objection. kading. THE COURT: I'11 allow it. lll allow the
entire wall?
question.
Yes. We seemtohaveabetterunderstandingof
what's there, as well as we were able to review an
invoice on the material, the amount of material that was purchased for the site, and it seemed like it was
consistent with our determination.
Youjustreferred to aninvoice. Ibelievethat's in the book as exhibit 37. Mr. kffort. Would you tum
to exhibit 37? Yes, that is correct.
I
2A
the easement?
Yes, it does.
3 4 5 6
7Q
3 4
5Q
6A
8
9A
10
Q lrt A Q
I L2
I
direct examination yesterday, you testified about doing your four test
Yes.
pits -
13 14
15 16 17
18
of
questionsaboutit. Tellme,whydidyoutakefour
test pits?
Webased itonengineeringpractices. Wefigured that based on the length of the wall, four pits would give us a good indication of what was installed
19 20 21 22 23 24
NOTES
it.
So, our
7 purchased for the site, and it appears to be the only 8 invoice showing the amount purchased, total amount 9 purchased. l0 Q Now, tell me, using just basic math, were you able to l1 determine whether the quantity of gmfabric shown rn 12 that invoice was sufficient to provide the amount of 13 geofabric necessary that you testified to yesterday, 14 extording back into the bank? 15 A Itseemed to bea lesserquantityneeded to fulfill 16 thestabilityneeded. Andactuallyit -conversely 17 we were able to verify our findings mathematically, I because ifyou take the quantity that they purchased 19 over the length of the wall, it would only leave you 20 a little over three feet ofmaterial per layer for 2t the entire wall, and assuming that the wall was only 22 eight feet for the entire length, although we know it 23 doesjump up to ten feet in spots. 24 Q lrt me ask you to elaborate on that and clarify.
1
-50-
-{r-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 717-5802 FAX: (978) 777-5803
KS COURT REPORTING
I Lugn0
I 3 4 5 6A 7 8 9 l0 1l 12 l3 14 15 16 Q 17 18 A 19 Q 20 2l 22 23 24
2Q
stable.
threefeetofwidth?" Isthatpercouse,usedper
course? Per layer, yes, geogrid being every two feet.
6
7A 8Q
9 10 1I
12
As the wall will progressively move outward until the soil behind the wall will have to fill in the void spaces, which will cause settlement. And that will continue to propagate until the wall is to a point where it's totally unstable and will fail and fall
A Q A Q A
13
14
15
16
have
just
a moment,
your
of
Mr.
Yes.
17
18
Ifffort,
111
19
20
2l 22 23 24
the - depanding on where you are on the site, because ofthe grade, behind the wall changes
Based on
from about l0 percent to about 26 percent in slope. We figured that it would go from anywhere from seven
to nine feet.
kt
me rephrase the
-53I 1 3
THE COURT: I didn't understand the question. I didn't understand the question or the
answer. Could we go through that again?
Just to
6Q
7 8
about yesterday. How much geogrid did you determine would actually be necessary at each course ofb'lock to extend into the slope? That would be seven to nine feet in lensth.
104
13Q
What's the purpose of the geofabric again? That is to reinforce the soil that is behind the
14A
15 16
t7
block, and integrate the block with that soil mass a stable mass, so that it would retain soils behind that from moving.
as
t8Q
19
So, let's assume that there's only one to two feet of geogrid behind each block of this wall. How does that affect the stability of the earth within the flood protection and erosion control easement? It doesn't provide enough stability for maintaining a stable slope for the site. So, there's a potantial
20
2l
22}^
L) 1^
-54NOTES:
I 2 3 4A 5 6 7 8 9 10 It 12 13 Q I4 A 15 16 Q 17 18 19 A 20 21 Q 22 A 23 24 Q
photograph to the conditions that you have described with the wall as it is today for flood protection and erosion control purposes? The wall as it's built today would not provide
adequate flood protection, the fact that because
it
a hurricane event or a storm event with significant waves. And with the wall being - not providing arough stability, there will be a serious
during
erosion problem with the material behind the wall. That's a serious erosion problem as compared to what?
Based on the original vegetation down on the southern
a
3
I,
Q.
Q is a picture of the existing segmented wall to the right, and boat stored to the left.
Any impression about the wall in that location? You can see the geogrid further down, sficking out of the wall adjacent to the boat.
-56-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAk (978) 777-5803
KS COURT REPORTING
tugn0
I 4 5 6 7 8
2A 3Q
that easement? That is correct. Is the idea ofhaving vegetation -
2 A From this photo, there's a waviness to the wall. 3 Q Okay. I'll move on. kt's turn to photograph U in
section 31. With me?
7 as the condition of the bank after it was excavated 8 prior to installation ofthe next section ofwall. 9 What do you observe about the condition ofthe soils 10 in this location? ll A Thesoilslookrelativelywell fromthis -ldon't 12 see any fill consistent with what we had assumed of 13 uniform-type gravel material. I 4 Q Counsel on cross examination showed you pictures of 15 construction debris that were lafng on the surface 16 andthelike. Isthereanyconstructiondebrisin 11 this area? l8 A No,notatall. 19 Q Does this appeartobe arelativelynatural 20 consolidated-typesoil? 2 I A Again, without going further into investigation of 22 the material, but I certainly don't see any debris 23 that would tell me this is fill material. 24 Q And so, it would appear to be what?
5 A U, yes, correct. I'm sorry. 6 Q Noq I believe that this has already bean identified
9 Q Mr. Irffort,
10 1I
12
THE COLIRT: Yes. Okay. Sustained. let's talk about the difference between slope and vertical as it relates to wave energy.
When a wave hits a vertical face, what happens? The changing of the wave, the energy fromthe wave
has to be absorbed by the vertical structure.
13 Q 15 A 16 Q 17 18 19 A 20 2l 22 23 Q 24
14
ifit's
The advantage
that a large amount ofthe wave force can be dissipated as it travels along the stoped surface, and absorbed by the material itself. Compare for me the location of the area that you've
seen in the photograph that's called "sloped."
-)/
It
I A
2Q
Therearesomeotherphotos. Tumtophotograph
S,
3
4A
5Q
6A
7 l0 II 12 13 Q 15 16 I7 A 18 19 Q 20 21 A 22 Q 23 A 24 Q
14
NOTES
Again, it's happening during construction, so couldn't testifu what was there prior to that.
Does
itappear -doyouseevegetationinthat
Would that be consistent with the term "sloped," as it's used in the Yes.
-theeasement?
Correct. It seemed to match with the Is that consistent with the term "graded,,,as used in
_58-
I was in the last photo we looked at. I think 2 thafs S3 A Yes. 4 Q Horizontally, in relation to where the top of the 5 wall is. 6 A Repeat tha! I'm - I'm sorry. Could you repeat that 7 question? 8 Q Illdoitasahypothetical instead. 9 IfThe I-anding maintained the sloped and 10 graded flood protection and erosion control easement l1 as you've described something would be s'loped and 12 graded with vegetation, and it was throughout that 13 twenty feet, where would waves be breaking, and where 14 would the wave energy be as cornpared to where it is 15 today, givar the construction ofthe retaining wall? 16 MR. BRENNAN: Objection, Your Honor. This l7 was all gone over on direct yesterday. This is l8 essentially the same direct that went through 19 yesterday. It'sbeenaskedandanswered. 20 THE COURT: I don't think so. no. I think 2l this is a little bit different, and it follows up on 22 some ofyour questions. 23 A On the sloped portion, the wave would be dissipated 24 along it's length to a smaller amount up to the top -60-
KS COURT REPORTING
Phone: (978)
tugn0
lQ
3
of the wall, or up to the top of the slope. Wlere as opposed to, the wave would not be - there would be
no anergy dissipated all until it hit the vertical
4
5
sfucture, which would be in close proximity of the buildings, in some cases only eleven feet away, with the possibility of spray or ovrtopping and hitting
the buildings.
4A
sQ
o 7
Tell me,
ifthe elevation
6
7 8
end of the property from elevation and wave energy along the top
area2
9 to elevation
if
8 9
9
10
11
13Q
14A
t4
15
lsQ
16
MR. WATSKY: I have no further redirect. YourHonor. Thankyou. THE COURT: Do you have anything further, Mr. Brennan? MR. BRENNAN: Just one question, Your
Honor. RECROSS EXAMINATION
16
l7
18
t7
18
19A Right.
20
21
l9
2A
first
22
L)
possibly, everr breaking ofthe wave could take place, lower and further away fiom the buildings.
offto
24Q
whe*:1"I_r flooding
and these
)L
63-
I 2 3 4A 5 6 7 8 9 l0 Q II 12 13 14 l5 16 A 17 18 9 20 21 Q 22 23 24 A
1
waves, is it just flooding and waves that are moving and gets against a slope, or are the waves carrying
IA
2Q
5
ifI
anything else?
Typicallyin ahurricaneevent,youwouldprobably you would find debris with that water due to possibly boats that weren'ttaken
5A 6Q
7 8
That's correct.
- have any reason to disa$e with that? So, when they talk about a sloped and graded easement, there's nothing in the easement that
tells you what that slope or grade must be; is that correct?
Just a sloped and graded.
l0 12Q
ofthe
wa11,
particularly
13A 14Q
l5 l6
That's correct.
So, sloped and graded at two percent,
buildings.
The debris on the surface
ofthe wateras it
ififs
on top
of
17A
l8
l9
20
21
Bettermovealong. Counselaskedyouoncross
examination about the letter of maD amendment.
Remember that? Yes.
22
23
z4
-62NOTES
64-
KS COURT REPORTING
Phone: (978)
lugno
I A
2Q
And thebiggerproblems,too. Specifically, you mentioned the common areas. Wnar
do you understand to be the common areas ofthe condominium complex known as The landing? That would be the land, the hallways, the outside the buildings, the garage spaces, the roadway.
3 4
5A
of
6
7Q
****
***
****
(Witness swom.)
Q A Q A Q A Q
Sir, could you please state your full name and spell
18
19
20 21 22 23 24
Unir40l. tospeakupjustalittlebit?
Okay.
Where do you live?
8 like - a swimming pool would be a common area? 9 A Yes. l0 Q There's been testimony during this trial which you've l1 heard about, and you're aware personallyof 12 excavation and construction ofwalls that has 13 occurred on or near The l-anding property; is that 14 correct? 15 A That's correct. 16 Q And that area, is that something that's the 17 responsibility ofyou, as a board ofmanagers ofThe 18 hnding? 19 A Yes,Iwouldsayso. 20 Q Nowsir, can you tell us whatyoureducational 2l backgrotmd is? 22 A I went to URI, high school, Rogers, and I've done 23 education mostly through General Dynamics. I worked 24 there for 34 years.
-67 -
-65-
I A 2 3Q 4 5A 6Q 7 8A 9Q 10 A 11 Q 12 13 14 A 15 Q 16 17 A I8 Q l9 20 21 A 22 23 24 Q
NOTES
Fall River, Mass., 700 Shore Drive, Unit 401, at The t anding. And specifically, when did you move to The I-anding in that particular unit?
December of '02.
I Q
2A
What was your position at General Dynamics? I was a special projects in the Trident pro$am, responsible for electronics weapon systerns, hydraulic systerns, ship control. I did that for 34 years
of
That's conect.
2005,inApril,Ibelieve.
How many board members have there been since strike that. How many members serve on the board? Five.
Conect.
Can you tell us what the responsibilities and duties are as a member
tanding?
Well, we're responsible for the financing, the common
areas, safety and welfare of the unit owners, about every little problem that comes up.
just
3 4 5 6 7Q 8A 9Q 10 A 11 Q 12 A 13 Q 14 15 16 A 17 18 19 Q 20 2l 22 23 A 24
Moulin Rouge.
Where is that located?
Tiverton,Rhodelsland.
I see. Now, sir, you indicated you moved to The
Well, when I moved in, it was - the reason I bought there was that it had a nice view ofthe bay, a lot ofsailboats, nice views, and it was quiet.
As a member of the board of managers of The Ianding, what do you believe is your duty and responsibility relative to the views and the area that The is situated?
hndins
_66-
Wel1, I mean, when I first bought unit, one of the first things that was told to me was that we had a
-68-
14 Palmer Avenue Danvers. Massachusetts 01 923 Phone: (978) 777-5802 FAX: (978) 777-3803
KS COURT REPORTING
Thatshouldbe3.
And next to
it
2Q
obstructed in the future, you know. And that was a selling point. I like the area, you know, it was
quiet. Itwasmoreofanelderlypopulation,andit
wasMore than as a unit owner, I think my question was, what duties and responsibilities did you feel thatyou have - do you
8 Q I appreciate that.
haveasaboardofmanagerrelativetothese -
of
13 14 15
16
it up, so to speak.
frontof
17 18 A 20 Q 2l 22 23 24
19
you,anexhibitboolgthebluebook. Doyousee
Ifyou could tum to exhibit 34, and then ifyou go - each ofthose photographs are numbered 1 throughanumberofothernumbers. Andifyoucould turn to photo$aph 23 in exhibit 34. Are you able to
locate that okay?
3 next building would be building 5; correct? 4 A Correct. You base this - two edges of the building 5 because it's L-shaped, so to speak. 6 Q Alsodepicted onthatphotograph,belowthe 7 buildings, going towards the water, do you see that 8 green sloped area? 9 A Mm-hnnn. Yes. 10 Q I take it that's how that area looked when you moved ll in in 2002? 12 A Yeah. 13 Q Did that - the composition of that area remain the 14 same up until 2008? 15 A Correct. 16 Q Now sir, there's been testimony during a previous l7 witness'examination, Mr. Bouffard, about a 18 settlement agreement in 2006. Do you recall that? 19 A Well, there was - in 2006, there was an agreement 20 between Borden Light Marina and The Landing regarding 21 a condominium complex that the Lunds wanted to build 22 atthenorthend. Andtheywantedustohaveno 23 opposition to it. 24 Q Were you involved in that settlement agreement as a
-71 -
-69-
I A
2Q
Okay. That would be 23 on 34. Correct. And that photograph should have on the top
I
2A 3Q
3
4A
5Q
left,thedateof200l. Doyouseethat?
Conect. Now sir, when you moved
4
in
- this photograph, 34-23,
5A
6 7
8A 9Q
hnding
area from the water when you moved'in in 2002? Yeah. I'd say it looked about the same, yeah.
l0 1I
12
A Is this looking fromnorthto south orsouth to 13 north? 14 Q Well, I suggest the fact that it's in the water that 15 totherightwouldbethesouth,andtotheleft 16 A So, it would be the second building to the lastfrom l7 the top ofthe picture. 18 Q Well, let's do this. I asked 19 A In otherwords, to theright, itwould be the second 20 building. 2l Q Would be building 4? 22 A Conect. 23 Q But what about the first building on the right? What 24 building is that, sir?
NOTES:
6 7Q 8 9A l0 Q il A 12 13 Q 14 15 A 16 17 Q 18 A 19 Q 20 2l A 22 Q 23 24
attomey,
-72 -
KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923
Phone: (978)
717-5842 FAX:
(978) 777-5803
LANDING
V BORDEN LIGHT #254067 lANo. 2 Q What knowledge did you as aboard ofmanagerhave as 3 to any preliminary injunction issued by the Land 4 Court? 5 A Iknewnothingofit. 6 Q During these discus - strike that. 7 ltakeitdudngthese -letmerephrase 8 thatquestion,iflcould. Atsomepointintime 9 while there was discussions with the board, did l0 either Michael or John I-und come and appear before II the board? 12 MR. BRENNAN: Objection, Your Honor. 13 Discussions ofwhat? 14 MR. SEIGENBERG: The settlement agreement. 15 MR. BRENNAN: It's a written document, Your 16 Honor. It speaks for itself. 17 THE COURT: I don't think he's asked what l8 itsays. Ithinkhejustasked,didanybodyappear 19 before the board in connection with it. 20 MR.SEIGENBERG: Right. Iwasjusttrying 2l to focus the witness. 22 MR. BRENNAN: I'm sorry- I withdraw m; 23 objection.
24
VOI.II lug/r0
1 A Mike Lund.
2Q
3A
4 5 6 7 8 9
10
litigation was still open. And he said it in a way which it appeared that the litigation went his way.
Before that, I didn't - I had heard about the
lawsuit,butthoughtitwasclosed. Ineverthought
that it was actually still open, you know.
Q Noqwhenyouhad
thisconver -whentheboardof
11 12 13
14
A A
15 16
17
MR. BRENNAN: Obiection. Your Honor. ldon'tknow. MR. SEIGENBERG: I'd be happy to explain
the relevance
Ihavenoidea.
MR. SEIGENBERG: Michael Lund lives in The Landing. I think it is potartially germane. THE COURT: Why does that matter?
18 19 20 21 22 23 24
-73 -
I 2 3A 4Q 5A 6 7 8 9 l0 l1 12 Q 13 14 A 15 16 Q l7 i8 A 19 Q 20 2l A 22 23 24 Q
THECOURT: Okay.
MR. SEIGENBERG: Thank you. Yes. Mike Lund came to a meetins Inwhatyear?
- to discuss what his intentions were as far as, you know, he was going to build a condo complex. And he kind ofgave a history ofthe whole thing, that this wasaprojectthathad -Iguesstheyhad contemplated this back
in
with it. At this poinl in time, did you know where Mike this was in 2006, sir: is that corect? It was 2006, late 2006, maybe, maybe the beginning
of
2007. I'mnotsure.
Was
signed?
1 you would want - it would tre relevant for the court 2 if Michael Lund was also a unit owner at The landine. 3 THE COURT: He wasn't a board member. 4 right? 5 MR. SEIGENBERG: He was never a board 6 mernber as far as I know. I'll move on. 7 THE COURT: I don't think it mat0ers. 8 MR. SEIGENBERG: That's fine, Your Honor. 9 I appreciate that, thank you. l0 Q So, you had this conversafion with Michael l,rrnd. I II want to direct your attention now to 2008/2009. Did 12 something happen relative to any construction work at 13 The landing? 14 A In 2008 and 2009, theystarted constructionofthe 15 segmented wall on the southern portion ofthe 16 property. l7 Q And that was near what building, sir? l8 A Theentrancewayand towards thenorthem partof 19 the -well,towardslguess,building5. 20 Q Prior to this excavation and construction work 21 occurring, commencing in 2008, did you, as a member 22 oftheboardofmanagers -strikethat. 23 Were you, as a member of the board of 24 rnanagers, aware ofthe construction work that was
-76 -
NOTES:
14 Palmer Avenue Danvers, Massachusetts 0l 923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I
2A 3Q
tu9tr0
1
going to be done? Not until it started, no. And you were describing the construction, hrstthe southerly entrance, and what other work occurred,
sir? I think the southerly, and also around buildings 5 and
I don't
knowifit
was Paul or
2
3Q
BertBouffard?
Yeah. What responsibilities,
as the chairman
4 5
6A
4A
5Q
'1 8
those
6 7
8A
9 Q After the
11
12
l-anding?
a number
of things,
13 14 15 16
17
yeah. When it started, the closeness to the buildings and the sleepness ofthe slope, you know. It was stafiling how much land they were taking. Now. we were told it was all his land and so forth.
9 10 11 12 13 14
15
of
different concems. We were concerned about safety with the fire department. And he started looking to
the building permits, and that's why he went to the
buildinginspector. Ittookusawhiletogetthe
information.
16
17 18
Q A Q
Thiswas
Yes.
a1l
informationthatwas reportedbackto
chair -
Q A
You were told it was all his land. Who told you that. sir? I'm sure Mike told the board that all the work was being done on his land. I know he had conversations
18
19
if
of
20 2l 22
23 24
19 20 2l 23 24 I
2Q
3A
22 A No one. No,
that. My
Q A
-77
2A 3Q
1 Q Oftheboardofmanagers?
Yeah. These were discussions that occurred at the board; is
replaced.
Isee.
And we,
as a board, were
5A 6Q
Yeah. Yes.
As a result of the concems that the board
4 5
of
it had ended.
as to what
7 8 9 l0 A 1l 12 13 Q 14 15 A 16 Q 17 A l8 19 20 2l 22 23 Q 24
NOTES
6Q
il
7 8
9A
next thing that the board ofmanagers did, sir? Well, with the fire department, we wrote them a letter requesting what their plan ofaction was in
case of a fire, because we were concemed with the
anything, did the board ofmanagers do, sir? Well, one of the first things we did was, we hired
we
'
Engineeringtodeterminetheirboundarylines?
Well, you mean that particular firm? No, any engineering firm.
Okay. We wanted to get an idea because there seemed to be a lot ofdoubt on where the property line was.
There were different stakes that were here and there
l0 II 12 13 14 15 16 17 18 19
20
twelve feet away from the buildings, ifthey caught on fire, what would happen? With the building
inspector,wefoundouttherewerenopermits. And
we then went to the mayor's office and registered our complaint there and we got some feedback from them.
allthroughoutthepropertyline. Somepeople
thought the fence was the property line; some people
What was the next thing that the - after not getting
any satisfactoryresults, what's the next thing that the board ofmanagers
didn't.
time?
We
21 22
24
23 A Well, we
hired attorneys.
-78
-80-
14 Palmer Avenue Danvers. Massachusetts 01 923 Phone: (978) 777-58A2 FAX: (978) 777-5803
KS COURT REPORTING
I tu9n0
1A
It increased dramaticallv because there was more area te storeboats. As a member of theboard of managers ofThe tanding, can you tell us the impact that that boat storage had on the l-anding complex? and 5, theboat storagewas closeto
2 4 5
3Q
6 A Buildings 3,4
7 8 9 l0 II
12
thebuildings,soitwas -theystoresome significantly large boats in that area now. And a lotoftheunitownerscomplainedthat -especially
the unit owners that only have first floors, they lost their entire view. Now, sir, did you personallyobservesome of the excavation that occurred near building 4?
l3
14
15 16
Q A Q A
Ohyeah. Iwatchediteveryday.
Canyoudescribe the excavationworkthatyou saw? Well, they dug within a few feet of the buildings. And they had, basically,
a nine
17 18 19
20
Q A
2l
22
23 24 1
ofmy
-83building.
"exposed area," you mean -
I
2A
as to the
We felt it was unsafe and it was poorly constructed. And as we progressed through the stages
some engineering expertise to look at
3 4 5 6 7 9 l0 l1 12 13
14
1
2 Q You say,
offinding
3A
4Q
5A
it to give us
their opinion, you know, we found that the wall was not constructed to standards that are safe.
6
7Q 8A
Yeah. I started receiving crack from thern until probably May of 2010. Where? In your unit, sir?
Yeah. Time-wise, how was that related to the excavation?
8 Q Nowsir,
afterthis excavationofthebankarea
occurred - strike that. Prior to this work being done in 2008 and
2009, what use,
9Q
the Marina
15 6Q 17 l8 A 19 Q 20 A 2l 22 23 Q 24
Well, there was a little activity that I noticed in the years that I lived there.
And after the wall was erected, what was the level
of
activity? Itincreaseddramatically.
Can you descdbe that, please?
Well, I mean, there wasn't an ealhance at the south end at all. Nowthere is. And there's the traffic
that goes by this is increased dramatically. What impact,
l0 A II 12 13 14 15 16 17 18 19 20 2l 22 23 24 Q
a day
it would be larger.
thatyoulereferringto? THEWITNESS: Yeah. MR. BRENNAN: In the wall of the unit? THEWITNESS: Yeah.
MR.BRENNAN: YourHonorhasalreadymoved
thatalong.
THECOURT: Yes,yes.
THE WITNESS: Okay. MR. SEIGENBERG: I'll move on.
Sir, I want to direct your attention to December
of
-84-
NOTES:
14 Palmer Avenue Danvers, Massachusetts 01 923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
1 2
3A
VoI.II tu9n0
lANo.
2 Q Didtheboard
ofmanagers ever givepermissionto
4 Q fd like to direct
of
5 6
7A
2009. Doyourecallanyconversationyoumighthave
had with Michael Lund at that time?
3 4 5 7 8 9 10 1I Q 12 A 13 Q 14 15 A 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 24 A
Borden Light Marina to proceed with any of the excavation and construction work that occurred in 2005 to the present?
I don't think we were ever asked of either.
6 A No.
8 9 10
11 Q 12 A 13 Q 14 A 15 Q 16 A 17 Q 18 A
therestaurantonaFridaynight. Iwasn'tthereat
the time, my son was. He left a number to call, and I cal'led him later on
thatnight.
You called
Yes.
{By Mr. Brennan:) Mr. Daquay, you - did I pronounce that correctly? lt's good. Daquay, yeah, fine. Mr. Daquay, you moved into The I-anding in December
'02; is that correct? Yeah.
Did yourecognizethatpe$onas
Yes.
of
Tell
us
whattheconversationwas,sir.
Heaskedyouaboutthelights?
Yeah.
19 20 2l 22 23 24 I 2 3 4 5 6
7Q
unit
owner may have to a view or not to a view? You just relied upon something someone told you about
know, my unit has lights coming in but it didn't bother me, in particular." But it did bother other
-85unit owners, and as a board membet, you know, I have to follow through with those conplaints. And then he said, "Well, what issues do you have personally?"
-87-
And I said, "Well, the wall. I'm afraid of the wall, that it's not safe and my unit being one of the
closest ones to
it."
So...
Did you also haveaconcem as aboard ofmanagers about the safety ofthat wall?
9 A Yes. l0 Q What, if anything, did Mr. l-und say to you, sir? I I A He got very agitated and basically said, "I'11 get 12 you for this." 13 Q Howdidyoutakethat? 14 A Itookitasathreat. 15 Q Now, sir, howdoes itworkon theboard? Since 16 you've been on the board ofmanagers since 2005, how l7 are decisions made by the board ofmanagers? 18 A They're made as a group. 19 Q I'm sorry? 20 A Theyte made as a group. In other words, we vote on 21 ever).thing, and you know, majority takes place. 22 Q Did the board of managers at any point in time, sir, 23 ever have a meeting where there was any vot on the 24 excavation or construction that occurred? -86NOTES:
I Q Now, you mentioned that the board of managers is the 2 responsible party for the common areas ofThe Ianding 3 at South Park; is thatcorrect? 4 A Yes. 5 Q Would that also include balconies that project off a 6 second floor ofa unit? 7 A They'renon-exclusive -well, itdepends. There's 8 some balconies that are common to more than one unit, and there's some balconies that are common just to 9 10 oneunit. Imean,therearesomebalconieswhere 1I more than one unit shares it. Okay. 12 Q Would the exterior sheathing of a balconybe under 13 the control ofthe board ofmanagers? 14 A Yes, I would say so. 15 Q So, theboard ofmanagers is responsible forthe l6 maintenance and repair ofthe balcony? 17 A Yes. 18 Q When you moved in in 2002, there was a board of 19 managers formed at that time; correct? 20 A Yes. 2 I Q To your knowledge, there has been a board of managers 22 since the condominium project was created. Would 23 that be fair to say? 24 A Yes.
-88-
KS COURT REPORTING
Phone: (978)
LANDING
I Q 2 3 4A 5Q 6 7A 8Q 9A 10 Q 11 12 13 A 14 Q 15 16 A 1'7 18 19 20 2l Q 22 23 24 A I Q 2 3A 4Q 5 6 7A 8Q 9 l0 II 12 A 13 14 15 16 17 Q 8 19 20 2l A 22 23 24
1
tt/9n0
I 2
4A
3Q
all sorts ofstuff, and he wanted in it. Yeah. Right, right. Gorightahead.
It was not him specifically talking about the lawsuit that slarted
Yeah.
us to be
involved
ofunit owners.
5 Q Andyoudo -Imsorry.
6A
7
8Q 9A
it.
lt was -
-boardofmanagers?
Yes.
When you moved in, did you observe boats being stored
inthenorthem -towardsthenorthernendofthe
property?
Yes. The storage of boats came down ptobably midway; would
a long
Would you agree that the Marina was using the southem end of the property for some Marina purposes
since you moved in? Yes.
Q A 12 Q 13 14 15 A 16 17 I8 Q 19 20 A 21 Q 22 23 A 24 Q
10 11
Ithinkitwasreferred to
Right.
as
thehigh-rise.
And once he approached The hnding at South Park, The landing board of managers then retained an attomey out of Marcus, Errico, Emmer and Brook in Well, I think they were always retained by us for
quite a while. It wasn't that specific incident. We
Correct. Yes.
Do you recall how extensive the negotiations were and how long it took to arrive at an agreement? It was a couple of months.
So, as the dateofthatagreemsnt, certainlythe
-89
Theboard ofmanagers nevertookissuewith that; is
that correct? Correct.
So, the board ofmanagers acts onbehalf of the best
-9t
I 2 3 4 5
6A
it was March of
boardsince 19 -I'msorry,2005;isthatcorrect?
Yes.
April of2005? And you testified that - why don't you tell me, when is it that you flrst became aware
ofthe litigation that was pending in this court
since 19 - since 2000? When Mike Lund came to a board meeting, which believe was in 2006, to describe the fourteen-story
I
And
7 8 9 l0 1I 12
13
of
if
condominiumcomplexthattheywereproposing.
about, that the lawsuit was still active.
14
15
Well, what started the negotiation was, he was proposing putting a condominium complex there. And
he was proposing that there was a number
ofthings
A No. 16 Q Andyoutook 17 A Ineverreadituntil 18 Q Until you obtained Attomey Watsky? 19 A Yeah,basically. 20 Q Thatwould havebeen in the fall of2009? 21 A Nine, yeah. 22 Q Inyourcapacityasrepresentatives ofthe unit 23 owners, you agreed to the dismissal ofa lawsuit, as 24 pursuant to that settlement agreement, and you don't
-92 -
-90NOTES:
KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923
Phone: (978)
777-5802 FAX:
(978) 777-5803
tt/9trO
I A
2Q
Say that again?
5
6A 7Q
Myknowledgeon the board ofmanagers, yeah. At that time, did you agree the board of managers
included Bert Bouffard, yourself, Joseph Richards,
Paul Beatty and Charles? I'm going to let you say Gharles's last name for me.
8 9 l0 II A 12 Q 13 A 14 Q 15 A l6 17 Q l8 A 19 Q 20 A 21 Q 22 23 24 A I
3A
Schnitzlein.
-boardofmanagers.
to
While we're talkiag about that, you have a member the current board ofmanagers who is a practicing
attomey; is that correct?
of
Iknowhewasan attomey. Idon'tknowifhe -93 practices. his name? Dan Vevieros. How long has Mr. Vevieros been a member of the board ofmanagers? In April it will be three years, I believe,
3 4A 5 6 7 8 9 10 II 12 13 14 15 l6 17 18 19 20 21 22 23 Q 24 I 2
3A 4Q 5A 6Q 7A 8Q 9A
until 2009, when you retained Attomey Watsky? No, that's not true. I was aware of the lawsuit
probablyin2003. Iheard -therewasalwaystalk by the unit owners about the lawsuit. They said,
"Oh, we don't want to spend money on lawsuits." But I always thought that the lawsuit was closed out
a meeting
told us that it was active. It wasn't until '09 that I knew about the content ofthe lawsuil
THECOURT: Yes,youmay.
MR. SEIGENBERG: Can I
showing him first.
see what vou're
I,
MR. SEIGENBERG: Can I take a look? MR. BRENNAN: Yes. MR. SEIGENBERG: Thanks.
(Counsel reviewing document.)
2 Q Wtals
ofthe board ofmanagers, and ask you ifyou will look at paragraph 28.
"No update on lawsuit."
Firut, do yourecognizethatas an agordaofmeeting? Yeah. Were you on the board at that time? Yeah. What is the topic identified in paragraph 28? It says, "no update on lawsuit." What is the date of that? That's
4Q
5
6A
7
8Q
April, 'l l.
At what point in time was Mr. Bouffard doing his investigation at city hall on behalfofthe board of
managers?
9 10 A 12 13 I4 Q 15 16 A 17 Q l8 A 19 Q 20 2l A 22 Q 23 24
11
NOTES
- they generate agendas as to whatthe topics are going to be at a meeting? Right. And yourtestimonyis thatyou were unawareofthe lawsuit until the fall of2009. when vou retained Attomey Watsky?
l0 Q 1I A 12 Q 13 14 15 A 16 17 Q 18 A 19 Q 20 A 21 22 23 24
April
1, 2007.
a
prior board
of
Oh, yeah. But this lawsuit's not the one that wete
talking about.
to
contamination probtems, mold problems. And I believe that's the lawsuit that theyte talking about there. We also had - because
ifs a resident
issue, we also
-94 -
-96-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 771-5803
KS COURT REPORTING
LANDING
t 2 4
3Q
fees.
tlt9no
1 A Oh, I'm sorry. 2 Q Mr. Daquay, I'd like
to show you minutes of a meeting
that agarda is not to this case? No, no. It wouldn't be a resident.issue. We would probably put it in another area. But this lawsuit
5A
6 7 8 9
10
hereisaboutresidentissues. Itwouldbeoneof
those two, and you could probably go to a number
of
Okay. Thankyou. MR. BRENNAN: May I approach the witness, Your Honor? THECOURT: Yes,youmay.
l1 12 13
14
l5 16 l7 A Q 20 A 21 Q 22 23 A 24 Q
18 19
if you will
directyourattantiontoparagraphtwo. Putacheck
mark there. Okay.
Now, would
Yes.
itbefairto saythatthatparagraph
3 4 5 6A 7Q 8 9 l0 ll 12 A 13 14 Q 15 A 16 Q 17 A 18 t9 20 Q 2l 22 23 24 I A
2Q
from June 3rd, 2009, and I would ask ifyou would look at the paragraph I have checked off, artitled, "Marina."
(Witness reviewing document.) Okay.
Based on the minutes of
just referenced, does that refresh your memory that the board ofmanagers discussed the wall and the
fence being constructed by Borden Light Marina?
of
MR. BRENNAN: I apologize, Your Honor. I didn't flag that one. Mr. Daquay, from
a board
-99-
I
2A 3Q
Sharon Cnace?
Correct.
Does
3 A Thisonehere?
4 5 6
4Q
6Q
5 A Okay.
of
7A
Paul Beatty.
8Q
9 A 1l Q L2 l3 14 15 16 A 17 Q 18 A I9 Q 20 21 A 22 Q 23 A 24 Q
10
And itsays, "Dannywill also go byand inspectthe wall area." Who do you understand Danny to be?
The other board member, Dan Vevieros. Vevieros,
say that
the minutes certainly reflect that on May 13th, 2009, the board ofmanagers, the governing body
ofthe
of
it going
up.
7 the board of managers meeting? 8 A Yes. 9 Q Thedate on the meeting is September 121hof2009? 10 A Ididn'tseethat. Septemberl2th,yeah. 11 Q Is it fair to saythatbased on yourreview of these 12 minutes, that Paul - who do you understand Paul to 13 be? 14 A Paul Beatty, one ofthe managers. 15 Q - states that, "until all theretaining wall is 16 done, you will not replace anything." 17 MR. SEIGENBERG: Objection, Your Honor 18 Thedifficulty -iflmaybeheard,thedifficulty 19 with these things is what they discuss at board 20 meetings, while it might be relevant that the board 2l was discussing the excavationand construction 22 projecq which we would stipulate to, but to the 23 extent he's asking what an individual board member 24 may say at the meeting - 100-
-98NOTES:
KS COURT REPORTING
14 Palmer Avenue I)anvers, Massachusetts 01923
Phone: (978)
777-5802 FAX:
(978) 777-5803
LANDING
I 2
3Q
fees.
lugltO
1A
Oh,
lm sorry.
2Q
4
5A
that agarda is not to this case? No, no. It wouldn't be a resident issue. We would probably put it in another area. But this lawsuit
here is about resident issues. It would be one
3 4 5
6A 7Q
of
Mr. Daquay, Id like to show you minutes of a meeting from June 3rd,2009, and I would ask ifyou would look at the paragraph I have checked off, entitled, "Marina." (Witness reviewing document.) Okay. Based on the minutes of the - and I'11 double check
the meeting time, of June 3rd,2009, which you've just referenced, does that refresh your memory that theboard ofmanagers discussed the wall and the fence being constructed by Borden Light Marina?
6 7 8 9
10
of
Okay. Thankyou. MR. BRENNAN: May I approach the witness, Your Honor?
THE COURT: Yes, you may.
l1 lZ 13
14
8 9 l0 1l
12
13 Q A 16 Q l7 A l8 19 20 Q 2l 22 23 24
14 15
Itappearstobe, though that'snotmethat theyte Butdo you recognize these as minutes of Yeah. Correct. -theboardofmanagers?
Yes.
l5 16 17 A Q 20 A 21 Q 22 23 A 24 Q
18 19
directyourattantiontoparagraphtwo. Putacheck
mark there. Okay.
Have you had an opportunity to read that?
MR. BRENNAN: I apologize, Your Honor. I didn't flag that one. Mr. Daquay, from
a board
Yes.
of managers meeting of
I'll ask you if you will take a minute of your time tojust read that paragraph.
-97 -
-991
I
2A
Sharon Grace?
Correct.
Does
2Q
3A
will call John and Mike on what's
4 5 6
3Q
4Q 6Q
5 A Okay.
of
7A
8Q 9 l0 A 1l Q 12 l3 14 15 16 A 17 Q 18 A I9 Q 20 2l A 22 Q 23 A 24 Q
Paul Beatty.
7
8A 9Q
10
And itsays, "Dannywill also go byand inspectthe wall area." Who do you understand Danny to be?
The other board member. Dan Vevieros. Vevieros,
lm sorry. Would it
ofthe
of
Evay day, you said. Yeah. That was probably There's no question.
A Ididn'tsee that. September l2th,yeah. 1l Q Is it fair to saythatbased on yourreview of these 12 minutes, that Paul - who do you understand Paul to 13 be? 14 A Paul Beatty, one ofthe managers. 15 Q -states that, "until all theretainingwall is l6 done, you will not replace any'thing." 1'7 MR. SEIGENBERG: Objection, Your Honor 18 Thedifficulty -iflmaybeheard,thedifficulty 19 with these things is what they discuss at board 20 meetings, while it might be relevant that the board 2l was discussing the excavation and construction 22 project, which we would stipulate to, but to the 23 extent he's asking what an individual board member 24 may say at the meeting -100-
-98NOTES:
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I
THE COURT: Yes, it's hearsay, it is. MR. SEIGENBERG: It's irrelevant because it's only of the board. THE COURT: Well, I mean, what the board whether the board took action. it's relevant.
a vote
3 ^ 5
4
6A
5Q
Certainly.
(Witness reviewing document.) Where it says, "Paul, until the retaining wall is done, he will not replace
6
7 8
MR- SEIGENBERG: It's agreed. THE COURT: Not what individual members mav
have said.
7 8
9Q
anything." Corect.
9 10
MR. SEIGENBERG: Thank you, Your Honor. MR. BRENNAN: Your Honor. the witness has identified the individual at a meeting of the board of managers, and the minutes of the board reflect that a board member as participating in a discussion of
the board said
ll
l2
IJ 14 15
done, he
l6
17
fence. So, it's certainly relevant. THE COURT: It's hearsay. I don't know who took those minutes. This is not based upon a
transcript.
l8
l9 tn
21
of the board of
22
z)
1A
THE COURT: But they're minutes, that's all it is. There's no record ofa vote. or is there?
l0 A l1 12 3 14 15 l6 17 Q 18 A 19 Q 20 21 A 22 23 24
1
which we
fix
Until the wall was done? And thafsprobablywhat theysaid, yeah. So, the board had knowledge ofthat statementby
Borden Light Marina as reflected in those minutes?
Yeah, And at that time, on September l2th, the wall was probably three weeks from being completed,
because they had two crews and going very fast. Because I know by October,
r0l -
-103-
I 2 3 4
5Q
I
2Q
think.
It was completed with full knowledge of the board
of
6 7
8A
of - Im
of
9 I0 Q 1I 12 13 14 Q 15 16 17 18 19 A 20 Q 2l 22 A 23 Q 24
Do you have any recollection of the board of managers discussing not taking any action until Borden Light Marina had completed the wall construction?
MR. SEIGENBERG: Objection, Your Honor. Doyou,personally, haveanyrecollection? MR. SEIGENBERG: It's
a
discussion. It's
as
to what he
Yes.
- in which there was discussion by the board members that the board would take no acfion until the wall
3 managers? 4 A Well, we knew it was going up, yeah. 5 Q Now, you testified that you felt threatened by 6 Michael Lund? 7 A Thatonetime,yes. 8 Q What did you do about that? 9 A Nothing. 10 Q You mentioned traffic incrsase in the souther'ly end II of the Marina property now that the wall has been 12 completed; is that correct? 13 A Yes. 14 Q Do you believe the traf{ic, automobile/truck haffic 15 to b within the 20-foot easement? 16 A I'm not sure. What youle asking me is that - is 17 the roadway within the 20-foot easement? l8 Q Doyouknow? 19 A Not without measuring it, because the roadway is more 20 towards the water, you know what I'm saying? 2l Q Conect. 22 A I know the boat storage is within. I don't know 23 where that line is, how close it is to the road. 24 Q Noq the other thing that you mentioned on direct
-104-
t02
NOTES:
l4 Palmer Avenue Danvers. Massachusefts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
ll19ltO
I 2 4 5
3Q
6A
Engineering in, I guess it was September or October
2 3
examination, as a member of the board of managers, you're concerned that people can't walk around the
of '09.
Based on your observation of those survey stakes, did
4A
5Q
6
7 8
you observe parts ofThe landing property on the water side, the seaward side ofthose stakes? The knding property, do you mean buildings
or -
that your understanding? what they did before. I won't disagree with that. So, you don't knov/? You don't know whether the easement gives them the right to walk? I know that the property line is probably two feet away from the building, and that the area they walked
llQ
t2
IJ
14A
15'
to
tt
18
in was in the twenty - probably in the 20-foot easement, yeah. Especially at the comer of the buildings, anyway.
But you're talking about The landing at South Park property line being two feet or whatever, you testified to. as off the comer of the A.
leQ
20
zl
22
1A
23Q
Are you aware ofany encroachments ofThe Landing al South Park buildings onto
T1;:a
erceeffy?
8 9A l0 II 12 13 14 15 Q 16 17 18 19 A 20 Q 2l 22 23 24 A I Q 2 3A 4 5Q 6 7A 8Q 9 10 A l1 Q 12 13 14 15 A 16 Q 17 18 19 20 A 21 Q 22 A 23 Q 24
7Q
Buildings or patios, or air conditioning pads, or anlhing to the seaward side ofthe stakes?
It's
a*ful
close on
building
thatwasinvolvedhere. Youwereaskedduringcross
examination about a settlement agreement that was
dated in March Yes.
of2006: correct?
Withoutgoingthroughthespecificsofthat
settlement agrement, you are aware that there was a trigger effect of that settlement agrcement, were you
not. sir?
Yes.
to7
IA
2Q 3A
4
Yes.
Which ones?
There's two air conditioning pads and a deck that
a couple
2o-foot easement.
6Q Anlhing
7
8
MR. SEIGENBERG: Objection. Obviously it's hearsay. Certainly it's his understanding. THE COURT: It's his understandine. That's all it is.
Q
Threeyears. So,theyhaduntilMarchof2009;
correct, sir? Correct. lt's also your unde$tanding that that settlement
agreement was going to deal
9
10
11
1) A 13Q
t4
involved in the land Court litigation by dismissal of this land Court litigation; correct, sir? Thatwas part of the agreement, yeah.
When did you, as aboard of managers, become aware that the trigger event, or the condition ofthis settlement agreement was not going to be accomplished
15A
t6 l7 l8
l0
or
ll.
ofat
any point in time, there being
leQ
20
11
22
231.
conditioning pads for any unit owners? I don't know ofanything like that. All I know is, the survey markers that were put in by Mount Hope
event -
-108NOTES:
l4 Palmer Avenue Danvers, Massachusetts 01 923 Phone: (978) 7'77-5802 FAX: (978) 777-5803
KS COURT REPORTING
LAIIDING
1A
I tugn0
I 2 3 4 5 6 7 8 9 10 11 L2 13 14 15 16 l7 18 19 20 21 22 23 24 I 2 3
4Q
to
) 4
relevant to this lawsuit is, it explains why The I-anding did not take any action relative to the land Court litigation until at least 2009. So, that's all I'm trying to go into, and that is relevant ean
2Q 3A
4 5 6 ? 8Q 9A 10 11 Q 12 13 14 A 15 16 Q 17 l8 19 20 21 A 22 Q 23 A 24 Q I A
2Q
Probably February of '09. I mean, I would say that once the economy tumed, I probably even had a pretty good idea that they - because who was going to build condo complexes during - but to say definitely is
one thing.
I'm not looking I certainly had an opinion that it wasn't going to happen at a certain point, yeah.
MR.SEIGENBERG: Well,Idon'tthinkitis,
though. It's not marked. MR. BRENNAN: Itis. MR. SEIGENBERG: Is it really?
THECOURT: Yes.
MR. SEIGENBERG: I didn't realize it eot
added
thefactthatthere was a settlement agreement in effect that didn't end until February of
2009, did that in any way impact the actions or
inact'ions of the board of managers relative to this
in
THE COURT: But you were objecting to questionsaboutthecontentofwhatitmeant. I was MR. SEIGENBERG: I didn't - and youYe
righttoraisethat,YourHonor. Ididn'trealizeit
was an
it.
So,
as to the
Irt
me try to get
3 4A 5Q 6 7 8 9 l0 lI 12 13 l4 15 16 17 l8 19 20 2l 22 23 24
NOTES
Right. - in March of 2006 that's going to resolve the [and Court litigation; correct?
5
6A 7Q
MR. BRENNAN: Your Honor, I object. He's leading the witness. If he wans to ask the witness
what the settlement agreement means to him, that's
What was the understanding of The landing as to that l-and Court litigation that was pending, up until February of2009?
8 9
10
THECOURT: Yes.
MR SEIGENBERG: lf
All
I'm doing is rehashing what he's already testifred to, bringing the witness to a point where I can ask
into - lm happy to enter it as an exhibit, this settlement agrement, if you would like. I just
said the only way the settlement agreemant is even
A Itreallywasn'taconsideration. l l Q Why is that? 12 A Because we didn't know what was in it. 13 Q Okay. 14 A What we mostly were concerned about were the other 15 things that were on the table in that settlement at 16 the time. 17 Q Noq you indicated thatin SeptemberorOctober, 18 that's when Mount Hope did their survey of the 19 property; is that correct? 20 A Yeah. 21 Q What other activities was The t-anding doing - was 22 the board ofmanagers ofThe landing doing or 2l discussing relative to the - this is in 2009 24 relative to the work that was being performed by
-110-
-ttz-
KS COURT REPORTING
14 Palmer Avenue Danvers. Massachusetts 01923
Phoner (978)
777-5802 FAX:
(978) 777-5803
tu9n0
I
2A 3Q 4A
5 o 7 8
it
J i 5
a
a
A
A Good aftemoon.
Would you please state your full name for the record?
James Edward Holmes.
together. We were concemed about our 20-foot going away, so to speak, in the whole southem end.
And this was all before September/October of 2009?
a
8 9
eQ
l0A ll
12 IJ
Are you currently employed, sir? Yes. Who are you employed with?
for
- the
9l
l0 A
ll a
13
1A
on all these fronts, on our property line, on what the Marina was doing, how it was affecting orn residents, how
t4 l5 l6
t7
18
it was affecting our property line, the entrance, you know. Tliere were a lot of things going on. We were trying to get up to speed. So, that was our frame of mind. Thafs what we were
We were talking about getting lawyers.
l)
16
THECOURT: Thankyou.
doing.
t9
z0
at Aegis Engineering?
2l
22
23
too. We had our flood elevation problems that a lot ofour residents
There were other things going on, were facing, and we had to get Mount Hope Engineering
2l a
22
L)
aA
of
24
- 113 _
-i15I Q What year did you graduate with your Bachelor's from 2 Rensselaer? 3 A 1998. 4 Q And once again, your degree was what, again, sir, a 5 BSin 6 A Civil engineering, with a concentration in structural 7 engineering. 8 Q You also indicated you obtained your Master's also 9 from Rensselaer Polytech? 10 A Yes. 11 Q What year did you obtain your Master's? 12 A 2000. 13 Q Specifically, what was that Master's degree in, sir? 14 A Same thing. Civil engineering with a concentration 15 in structural engineering. 16 Q Mr. Holmes, can you tell us your work experience? 17 A Yes. Since2000, I'veworked atvariouscompanies l8 doing structural engineering senrices, be it design 19 ofstructures, analysis ofstructures, field 20 monitoring to make sure that things were constructed 2l as per plans. That includes residential, commercial 22 properties, various materials, wood, concrete, steel, 23 basically anything that, you know, the common 24 building materia'ls that structures are constructcd -l16-
I 2 3 4 5 6 7 8 9 l0 II 12 l3 14 15 16 17 18 19 20 21 22 23 24
MR SEIGENBERG:
a break
for lunch,
will have -
in at
two. If we
MR. SEIGENBERG: Mr. Holmes. He's coming have additional time, we have some
MR. SEIGENBERG: That's fine. THE COURT: Quarter of two. MR. SEIGENBERG: Crreat, great. Thanks
(Lunch Break)
MR. SEIGENBERG: With the court's permission, can I proceed by calling James Holmes?
*************
THECOURT: Okay.
JAMES HOI},IES
****++*******
(Witness swom.)
- 114-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 177-5802 FAX: (978) 777-5803
KS COURT REPORTING
tugn0
2A
I Q
3 4 6
8A
if you would, tell us the employers that you've had since 2000. Is that when you
Can you tell us, commenced your employment?
Also
3 4
5Q
6
8Q
7 Q kt'sjustslowdownasecond.
Yes.
I'msorry.
7 A Until 2006.
A Engineen Design Group. 1l Q They're in Cambridge, Massachusetts; conect? 12 A I believe they're in Medford now. They were in 13 Cambridge when I was there. 14 Q What was your position at that company, sir? 15 A Project eng'ineer. I wasn't licensed as a structural l6 engineer yet, so my title, it was a project engineer. l7 Q Andsir,areyoucurrentlylicensed 18 A Yes. 19 Q -inanycapacity? 20 A Yes. 2l Q What are your licensures in, sir? 22 A, A, licensed structural engineer in the state of 23 Massachusetts. 24 Q When did you obtain your license, sir?
10
9Q
I
10
with?
A Iwas
-during2006,twocompaniesduring2006. I
t 12 13 14 15 16
20
21
17 Q Where was that seawall located? 18 A Everett, Mass. 19 Q And specifically, whatdid you torelative to that
seawall, again, sir?
22 23 24
-1t7 1
-l19I came up as the construction went along, things that 2 couldn't be foreseen in the design phase. So, I was 3 sort ofthe point ofcontact there when they had a 4 specific question regarding the structure, questions 5 that needed to be addressed, fixes that needed to be 6 done. I would handle those. 7 Q From a structural engineering 8 A Yes. 9 Q - perspective? l0 A Yes. 1 I Q Have you been involved in any other coastal-type 12 projects? 13 A Yes. Ive actually - later in 2006, I worked at 14 Coastal Engineering Company in Orleans, 15 Massachusetts. I did a lot of work on Cape Cod. So, 16 we've done a lot of seawalls, retaining walls, things 17 like that. So, yeah, I do have experience doing 18 waterfrontstructures. I 9 Q Once again, either constructing or evaluating the 20 structures from a structural engineering component? 2l A Yes, or monitoring. 22 Q Or monitoring. 23 A Yeah. 24 Q What was your next emp'loyer, sir? -t20-
A h
2006.
2Q
3
4A
of
5 6 ? 8 9 10 11 12 13 14 Q A Q 18 A 19 Q 20 A 21 Q 22 A 23 Q 24 A
16 17
NOTES
service, I believe it's four years ofworking in the industry, before you can apply to take the test. At that time, you have to apply, have references from employers who attest to your ability at that point,
at which time you're allowed to take the professional
engineertest. It'saneighthourtest,andupon
passing that, youte granted licensure in whatever
15
- correct?
Yes.
of -
- 118 -
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
lugltO
1
2Q
Adjustment.
3Q
4A
5Q
6A
7Q
8
9A
10
11
We - what we do is, fororsic inspections of typically failures. My job is, any failure that
occurs that insurance corpanies want investigated,
t2 l3
l4
15
wall failure,
lo
11
l8 l9
20
Park. I'm very busy with now the adjacent properties. Things like that, where structurai
damage has occurred, determining the extent
of
2lQ
22
In your employment with Aegis Engineering, how many retaining walls have you evaluated? I would say probably about twenfy. And once again, from a structural component?
23
A.
24Q
3 4A 5Q 6A 7Q 8 9A l0 Q 11 A 12 Q 13 A t4 15 Q 16 A 17 18 19 20 21 22 23 24
if you know?
Philadelphia hsurance.
So, the first thing that you did is, you went up to the site; is that correct? Yes. What was the date you went up to the site, again?
Yes. Bytheway, Ithink Isaid 2009, before, when I was out there, it was March 4th of 2010? Was it'10 or'09?
he did
-t211
2
3Q
Sir, when did you firsthaveany involvement, ifany, with The l-anding property?
5A
6Q
7A
8
9Q
lmnot
l0 A 11 12 13 14 15 Q 16 l7 18 A 19 Q Z0 2l A 22 Q 23 24 A
Actually, I believe it is in my
permission, can
hejust -
THECOURT: Yes.
MR. SEIGENBERG: Thank you.
Sir, could you look atyourreport and see
were first involved in this project?
if that
1 units. So, that's fine. 2 MR. SEIGENBERG: Thank you. I understand 3 the court's understanding ofthe case, so, thank you. 4 Q Go ahead. 5 A So, we looked atthose units, and then afterwards, we 6 went out and took a look at the block retaining wall 7 that was recently constructed behind the property. 8 Q At any point in time, did you take any photographs of 9 inside. or l0 A Yes. I tookphotographs ofinside each unitofthe 11 site, and of the wall. 12 Q Idirectyowattentionto - it shouldbe overin l3 front ofyou, an exhibit book, exhibit 33. 14 MR. SEIGENBERG: If I may, Your Honor, 15 approach? 16 A Yes. l7 Q In the firstphotograph, sir, can you describe what 18 that is? 19 A This photographwas aphoto tlatlobtained, an 20 aerial photograph. I believe it was a camera called, 2l This Google Earth, a windows local aerial photograph 22 that showed the condition of the property prior to 23 construction of the retaining wall. 24 Q I see. And specifically, you have identified the
ta/
NOTES:
14 Palmer Avenue I)anvers, Massachusetts 01 923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I
2A
Yes.
VoL.II tvgn0
I Q kt's talk about the top photograph. Can you tell us 2 what that photograph depicts? 3 A Itdepicts the location ofthe recently, atthat 4 time, built block retaining wall. 5 Q Does itshowsomeofThe tanding buildings, as well? 6 A Yeah, it shows the proximity of the units to the 7 wall, and it also shows the line ofexcavation as 8 shown by the disturbed soil. It's a little bit t harder to see in the black and white. 10 Q And you also made anotation, "newretaining wall 11 built closer to insured's property." Why did you 12 make that notation, sir? 13 A I was trying to illustrate the difference in the 14 location ofthe retaining wall versus the sloping 15 hillside that was shown in the previous photo. 16 Q kt thebottomofpage 2 there's a secondphotograph I7 What does that depict, sir? 18 A Itdepicts essentiallythe same as theprevious, 19 showing the location of the new wall, it's proximity 20 to the comer of 301. And it also shows that again, 2l that there was work being done behind the wall, based 22 on the tracks in the dirt. 23 Q That was my next - I know it's difficult, once 24 again, with the black and white here, but are there, I 2
3A
3Q
5A 6Q
sir -
7 8
9Q
10 ll A 12 Q 13 A 14 15 Q 16 A l7 Q l8 19 20 21 A 22 Q 23 24 I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16
17
-are.
Now, ifyoujustmove on, sir, the next page there's
acoupleofotherphotographs.
sir? Yeah. Can you te'll us
Thetopphoto$aph,
what
clarify - I'm
-125THE WITNESS: Yes. THE COURT: - was the first thing that you did, but you said you took this photograph? Did hearthat?
MR. SEIGENBERG: I think he said he took the first photograph, Your Honor. I think he
indicated he got it from Google
or
THE WITNESS: Yeah, for that first photograph that was THE COURT: That you obtained from where? THE
the
justwanted to clarify that. THE WITNESS: Because I wanted to try to get a sense ofwhat was there before.
it.
l8 19 A 2l Q 22 A 23 Q 24 A
20
Whendidyoutakethosephotographs? March4th,2010.
When you went out to the site?
Duringthatinspection,yes.
4 5Q 6A 7 8Q 9A l0 Q II 12 A 13 Q 14 15 A 16 Q I7 A 18 19 20 2l 22 23 Q 24
leftofthe white
fence.
And you understood those to be what, sir? I understood those to be from the work that was done to construct the wall. Now, ifyou go to the page 3 ofthatexhibit, sir Mm-hmm.
-thosetwo otherphotographs. Onceagain,thetop one that says, "blocks have shifted" Mm-hmm.
Yes.
Idid.
Whatdoes thetopphotographdepict,sir? lt's showing that the interlock between the concrete
blocksisnotatightinterlock. Andwhatthat
indicates to me is that either the wall was not
initially constructed properly, tight, with the locks in - the interlocks, or it was and has since moved,
forcing the displacement to occur.
What is the significance of any of that observation, sir?
-126-
-r28-
KS COURT REPORTING
14 Palmer Avenue
Danvers.
LANDING
V BORDEN LIGHT #2s4067 Vor.. I A Those would both indicate some instability in the 2 wall. If had moved after the fact that they were 3 constructed initiallytight, and nowthey're in this 4 position, it indicates to me that obviously the wall 5 has moved. and it's not stable. If it was 6 constructed in that position, again, that illustrates 1 to me some poor worknanship, in that tight interlock 8 oftheseblocksisrequiredforthewallto -for 9 it's strength. 10 Q And specifically, the wall that you observed, can you 1 describe the construction, not the quality, but the 12 type of construction it was. 13 A Yeah. Itwasbuiltusing, Ibelieve, six footby two 14 foot by two foot corrcrete blocks. 15 Q You saysix feetbytwo feetbytwo feet. That's six 16 feet 17 A Six feet long by two foot high by two footwide, 18 approximately. Asyoucanseeinthefirstphotoon 19 that same page, you know, it appears that at least 20 some of them have some interlock potential. I 2l couldn't verify that all ofthe blocks were 22 constructed like this. The blocks themselves, they 23 didn't appear to be part ofany sort ofa 24 manufactured system. These blocks to me looked like
1
rugtrO
I Aretaining wall this heightbycode, Massachusetts 2 code, is required to have an engineered design by a 3 registered professional, a civil engineer or a 4 structural engineer or a geotechnical engineer, 5 someone like that. And there was no indication that 6 that was done. 7 Q Well, you were talking about these were a different 8 type ofblocks, though. 9 A Mm-hmm. 10 Q What did you mean by that, sir? ll A Itindicates to me that it was notpartofa systm. 12 Like I said, typically there are systems where they 13 setout -thesearetheblocksyouuse,theseare 14 the geogrid reinforcing you use. They provide you 15 this information and the materials, and you build it 16 with that. This, to me, look like it was more of 17 just sort ofleftover block that was used. I mean, 18 you can see on that photo on the lower, you know, 19 there'ssomegraffrtietchedintothe 20 Q lrt's talk about the next photo on page 3, the bottom 21 one. 22 A Yeah. 23 Q What does that photo depict, sir? 24 A Again, it's just - it's demonstrating the unevenness
-131-
-129-
I 2 3 4 6
I
2Q 3A
typically will pour large blocks like this, and they get used for walls at times.
going to try to get back to that question, but you were describing how this wall was constructed -
5 Q Im
4 5 6 7 8
9Q
What's the significance, if any, of Again, it's similar to my explanation on the photo before that either the wall was not constructed even and aligned, and the interlocla that are therc are doing theirjob, or they were and the wall has since moved and become displaced and put into this position. From your experience sir, and your training and education, would you expsct to see a properly
designed wall with this type of misaligned blocl<s?
l0 Q l1 A 12 13 14 15 16 Q l7 l8 It 20 21 A 22 23 24
NOTBS
10 1l
12 13
all,
A Q A A Q A
hill
side behind
14
15
I
Nowsir, you indicated you talked to unitowners, you took a visit ofthe site; correct?
Yes.
What's the significance, ifany, ofthe factthatyou indicated that these blocks appeared to be not part
6Q
anyi;vhere else as
17
18
ofan angineered system, but where they were like, how did you describe it, concrete blocks that were just make at a concrete plant?
l9
20 21
Right. Typically,blockretainingwalls are they're part of a fully engineered system. There are
various manufacturers that produce the blocks and
have their own desigr specification to go with them.
Iwas intsrested to
plans for this wall,
see
if
22 23 24
if
-130-
-132-
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 r'AX: (978) 777-5801
KS COURT REPORTING
LANDING
1 2 3 4 6 7 8
10
rugtr0
I
2Q 3A 4Q
hndings. On the geofabric; correct?
Yes.
tobeproperlyengineered. Theyshoutdhaveplans
and engineering documents submitted. So, Iwas interested to see
5Q
review at the Fall fuver Building Department. And based on your review at the investigation at the Fall River Building Department, did you, in fact, find out whether or not there are any plans as required?
There were not.
9A
I 12
I
Q A Q A
Now, you said that in a retaining wall of this nature, engineered plans were required to be submitted prior to the building inspector?
Yes.
13 14 15
16 17 l8 19 Z0 Zl 22 23 24
walls that support unbalanced height ofretaining material $eater than six feet in any retaining system or slope that could impact public safety or
the stabilify
5 ifin fact you found out therc was an engineer who's 6 alreadymade an evaluation ofthe structural wall 7 that you were reviewing, would it be common pracf,ce 8 for you to contact that engineer? 9 A Yes. I 0 Q Now sir, based on your observations and inspections ll of this wall, the information provided to you, and 12 your education, training and experiance sir, do you 13 have an opinion as to the construction ofthis wall? 14 A Yes. It's my opinion that the wall was not built 15 properly. 16 Q And when you saythe wall was notbuiltproperly, 17 what do you mean by that? 18 A I mean, based on my observations of the misalignment 19 ofthe block, which indicates either it was not 20 initially built properly, or has since moved, and 21 discussions with Mr. lrffort, who informed me that 22 the geogrid reinforcing only extanded about two feet 23 behind the wall, in my opinion that's not sufficient 24 length to develop enough weight to hold the wall in
-135-
_133_
I
I
2Q
3A
a
A
So, in your professional opinion, this wall required engineered plans to be submitted? Yes.
this -
J
^
4Q
a
a
6
7 8 9 10
building permit
5
6A
a
A
as part
of your
Mr. trffort.
li a
IJ
Don
lrffort?
t4
15 16
lrffort
because
our - my evaluation
was visual at the time we were asked to go out there, and based on what we can obtain visually to provide
7 8 9 l0 II 12 13 14 15 16
17
-whatis the significance, ifany, ofgeofabric to the structural soundness ofthe wall? A geofabric will - it locla in between the blocks and extends into the uphill side, and it works to use
ofall that retained soil, and the geogrid will hold all that soil together. And if the wall
the weight tries to move outward, tries to displace,
it
massofsoil. So,itessentially -you'reusingall ofthat soil behind the wall to help keep the wall in
place. So you need to have that geogrid extend far
enough that it catches enough ofthe soil trehind the
t7
our opinion. From speaking with some of the condominium residents, they had informed me that
l8
19
Mr.
kffort
8 l9
1
20
1l
wall. I
22 23
AA
pits.
wall to determine if the geofabric was present and the length of it. So, I spoke to him to discuss his
21 22 23
24
-134NOTES
-136-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
I A Yeah. There's no one answer to that. 2 Q In orderto determine the amountofgeofabric that 3 would be necessary to provide structural support for 4 a wall ofthis nature, how would a structural 5 engineer or a professional engineer determine that.i 6 A Well, he would have to take into account all the 7 various factors, the weight ofthe wall itself, the 8 soil conditions behind the wall. The various soil 9 conditions will play a large role in how much l0 geofabric you would need. Different soil conditions I1 exefi different pressures on the wall, so I would _ 12 in one that I was doing, I would employ a 13 geotechnical engineer to go out there and take a look 14 at the soils themselves, and tell me the various 15 properties ofthese soils that you need to know to 16 properly design the wall. 17 Q So, these are calculations that are 18 A Yes,yeah. 19 Q Are they based on state building code or engineering 20 standards? 2l A Engineering standards, definitely, yeah. 22 Q And is there - strike that. 23 You indicated earlier that a wall of this 24 nature based on the state building code had to be
- lJ I -
rlt9n0
I Based on your education, training and 2 experience and observation ofthis wall, sir, do you 3 have any recommendations as to what could be done, or 4 what should be done relative to this wall? 5 A My recommendation would be that this wall be removed 6 and either rebuilt - there,s many methods you could 7 do it, but rebuilt properly, or the hillside be 8 replaced back to it's original condition. 9 Q Aspart ofyour duties orservices, that,s not a l0 determination that you made, right, as to what was II the best course? 12 A No, no. I was not asked to determine a fix. 13 Q Sir, whatconcems, ifany, do you haverelative to 14 this wall as constructed? 15 A Based on myobservations and potential movernent, I i6 would be concerned prirnarily with further movement of 17 that wall and potential failure, collapse. l8 MR. SEIGENBERG: Thankyou. Ihavenothins 19 furtherofthiswitness, yourHonor. 20 THE COURT: Mr. Brennan. 2I CROSS EXAMINATION 22 @y Mr. Brennan:) 23 Q Mr. Holmes, the use of a segmented block wall under 24 certain circumsiances and designs is an accepted
-139-
.l:
''|.
I 4 5
2A 3Q
I
2A
6A
-8
7Q
Did you see any tlpe calculations when you went to the building inspector?
4 5 6 9 l0
11
3Q
7A
9 A No, nothing. l0 Q Sir, underthe statebuilding code, would itbe II appropriate for a non-engineer to do those 12 calculationsthemselves? 13 A No. 14 Q Alandowner? 15 A No. Ithastobealicensed,registereddesign l6 professional. 17 Q So,sir, based on youreducation, trainingand 18 experience and observations ofthis wall, do you have l9 an opinion or not whether this wall is structurally 20 sound? 2l A Yeah. I don't believe that it is. 22 Q As partofyouranalysis, did you make any 23 detffmination as to what could be done _ strike 24 that. l,et me withdraw that question.
-138_
NOTES
8Q
12
13
14 15
A Q A Q A
Now, did you inspectthatportionofthe blockwall that nrns approximately from building 4, southerly to the entrance to the Marina property? I'm not sure which direction south is. I,m sorry. Well, if your back was to the bay, and you were looking at the condos, south would be to your right.
Yes.
16
17
l8
19
thatlook -
20 A
2l 22
23 Q
pile wall.
So, yourresponsibilities were to lookat thatblock wall, and I'mgoing to saysoutherly, ifyou now
24
-140-
14 Palmcr Avenue Danvers, Massachusetts 0l 923 Phone: (978) 777-5802 FAX: (978) 777-SBO3
KS COURT REPORTING
tugn0
I would attempt to locate, I would say, two laye$.
3Q 6Q
7 8
No. Now, do you have - in the course of your investigation, did you make any determinations as to
where a property line
2Q 3A 4Q 5A 6Q
7 8
Givor a length of a wall, and let's use 500 feet, averaging tor feet high, how many holes would you
dig, looking for the geofabric along that lineal length of 500 feet?
I would - a 500 foot length of wall, I would probably, to get a general idea of the placement the geogrid, I would probably dig at somewhere between four to six locations. What would determine whethelit was four or six?
was -
9A loQ
No.
- between the Marina and The tanding?
10A
1l
llA
l3
No, sir. back and forth across the top of the embankment, over the retaining
Yes.
of
wall -
t2 l3
14A
15Q
14Q
- I should say.
Yes.
15A
lo
16A
17Q
l8 l9
20
21
It could just be the budget. It could just be as simple as that, how much money they're willing to
pay, some site logistics. I mean, I can't tell you
trffort,
he indicated -
l7 l8
sitting here right now. Well, you're familiar with the site?
Oh, yeah.
So,
))a
23Q
length -
Mm-hmm.
- how would you go about that investigation?
Yes.
- you're doing this investigation for a person who wants to limow and hasn't given you a budget.
24l.
I Q
2A 3Q
sorry,;; determ;ne
if
I A
2Q
Okay. I'm not saying, go to an extreme. Go to whafs acceptable engineering practices along a 500 foot wall with costs not being a factor.
I would probably go somewhere between - maybe every
-non-existent Yeah.
3 A No,Iunderstand.
4A
4Q
5 Q - orextort of geofabric behind aretaining wall. 6 A I would dig test pits behind the wall at ceriain
5
6A
7 8 l0 ll A 12 Q 13 A 14 Q 15 A 16 Q 17 18 A 19 Q 20 A 21 Q 22 23 24
NOTES
intervals to determine
if
length -
rowofgeofabric, ordo you go down to the second - row? Well, starting from the top. Yeah.
Ifyou were digging from the top, would you dig down in an effort to find the first length ofgeofabric?
Yes. Yeah, I would, at minimum.
Would you go beyond that? Yeah.
So, on a wall that's approximately ten feet high, made out of two-by-two-by-six foot cement
far down would you go in order to form a professional opinion as to how much geofabric was behind a wall?
7 8 9 l0 Q II A 12 I3 Q 14 15 16 l7 A 18 Q 19 20 2l 22 23 24
thinkanythingcloserthanthat,youjust probablyjustaskingforrepetition.
Well, say six holes, then?
-you're
- t+z-
-144-
l4 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
1 2
3A
Yes.
tu9n0
I 2 3 4 5 6 7 8 9 10 11 12
13
taking it down and rebuilding it, were you rpferring
MR.SEIGENBERG: Youstillneedtoeivehim
your answer.
4 5
6Q
THECOURT: Yes.
MR. SEIGENBERG: Thank you, Your Honor. What makes a cement block suitable for an engineered
package?
of the witness'testimony, Your Honor. THE COURT: Yes. That's not what I
remember.
7
8A
9 10 11
12
in unison with the geofabric, with the footing. With the soil mass it's all - it all works together.
13 14
15
Q A
So,
14 i5
16 17
Q A Q A Q A Q
If you did testify that a way to remedy this wall, in your opinion, would be to take it down and rebuild
it? Didyoutestifyto
Yes.
that?
16 l7 I8
19
delivered. And the block that I see here looks like it was just site cast, poured on site.
18
19
Q So, it looked a little rough? A Yes. 2 1 Q Does that mean that ifs not suitable for integrating 22 into a segmented block wall? 23 A No. Ifall theotherparts areproperlydesigned,it 24 could.
20
145
20
2l 22
23 24
Withoutremoving Yes.
-147-
I Q 2 3 4 5 6A 7Q 8 9 l0 II A 12 13 14 Q 15 16 A 17 Q 18 19 20 2l A 22 Q 23 24
NOTES
You testified abitaboutthe heightofthe wall, and would it be fair to say that if a segmented block wall is constructed so
as not to exceed a
2
5 6 7 8
I A
particular
height, that it could be a straight gravitywall, and not require geofabric? Would that be ffue?
Yes, it's true,
3Q 4A
The only one that comes to mind immediately is somehow buttressing the wall from the 1ow side, basically where the boats are being stored, to prevent the wall from being pushed outward further, to basically - to buttress the wall. You have to bear with me here. When you say, "buttress the wall," would that be by sheathing, for example, or some other method? How would you buttress the wall from the bay side, let's say.
itcould.
Now, is there a height requirement for getting into geofabric? Forexample, could you do what I'll refel
to as a gravity wall up to maybe six feet without geofabric? It's a possibility. Again, it depends on a lot
9Q
of
different factors, soil conditions, things like that. And that would be up to the engineer to determine. So, there isn'tan automatic heightthattriggers geofabric? It's an engineering determination? Yes,sitespecific,yes.
You were asked on direct examination - you were
asked a lot of things. I-et me find my notes.
10 l1 12
13
14 15 16 17 l8 19
20 Q
it will restrain it from moving forward. ifyou will, just to keep it from moving the - from pushing
so that
Would lowering the wall be an option? Yeah, lowering the wall would reduce the forces and
the pressures acting against the
You mentioned that as one possible solution to a wall that was not structurally sound. And you mentioned that there were many methods. What, other than
2l A 22 23 24
wall. Again, I
don't know how far you'd have to lower it, and how that would affect the foundations nearby ofthe
-t46-
-148-
KS COURT REPORTING
14 Palmer Avenue Danvers. Massachusetts 01923
Phone: (978)
777-5802 FAX:
(978) 777-5803
I tlt9n0
I 2
3A
would that impact the struc - how would that.impact, if at all, the structural stability of this watl? Thedesignstrength,theactual strengthofthe
concrete, I would not expect to be a factor in this. It's more stability of the wall, whether it's going to overtum, whether it's going to slide, whether the blocks are going to - the interlocks are going to
4 5 6 7 8 9 l0 II
12
fail.
13 14 15
16 17
weight. lt's not really an issue in my opinion. Nowsir, you were also asked during cross examination about test pits. As part ofyour - were you aware,
by speaking to Don performed?
Irffort,
l8 19
20 21
that in your mind, the appropriate amount, givor this length ofwall, would have been
between four to six test pits, total; correct? What results - strike that. What impact,
22 2l 24 I
2A
-151[,et me rephrase.
I Q 2 3A 4Q 5A 6Q 7 8 9A l0 Q II 12 A 13 14 15 16 11 18 19 20 Q 2l 22 23 A 24 Q
NOTES
testanyofthesoilsthatareoutthere -
No, Idon't.
thequestion.
3 Q I'mnotsosurelunderstand
-isthatcorrect?
No, I did not. And you didn't do any testing of the cement that was
used to make the blocks that are out there: is that correct?
4 5 6 7
8A 9Q
10
My question is, if the results of the test pits were consistent with each other, would that have
any impact to you as an engineer as to the number test pits that you utilized?
Yes.
of
No. And cementhas different,what, PSlratings? Isthat how cement gets calculated?
MR. BRENNAN: I have no further questions, Your Honor. MR. SEIGENBERG: A few on redirect. if I could. Thank you. REDIRECT EXAMINATION (By Mr. Seigenberg:)
The lastquestion you were asked had to do with different design strengths ofthe concrete block. That's the PSI; correct?
Yeah. The relative strength of these concrete blocks, how
I 12 13 14 15 16
I
if
Ifl
was finding
that there's obviously a large variation throughout, and that more test pits would be required to get a true sense ofthe construction.
17
18 19 20
21 22
And so that's why - it's because of mathematical probability is why four to six test pits would be
engineering acceptable for a wall ofthis length; correct?
A Q
Yes.
23 24
Now hlpothetically, if in fact, four test pits were built in this area, and all four ofthese test pits
revealed that the geofabric was one or two inches
-150-
-152-
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I
from the block. Would that indicate to that additional test pits needed to be done, or not? No,
3A
4
MR. SEIGENBERG: And so, for the record, just so the record's clear, the court would move, at this point in time, to inhoduce the first three
photograph on exhibit 33, and based on the court's
sQ
t)
5 6 7
8
ruling, we would delete the last three pages to show the individual units. THE COURT: You know, I stil'l need, to tell that you the truth, I don't think there was anough foundation on this first exhibit as to where it came
7 8 o
down? Right?
Yeah, yeah.
Is that something that you in your professional experience would recommend in this situation?
l0A llQ
12
9 10
from. I'mnotsure MR. SEIGENBERG: I'm sorry? THE COURT: - Im still not sure where
this first photo was taken from.
ll
11
13A
t4
No.
l3
MR. SEIGENBERG: Nothing turther. MR. BRENNAN: No further questions.
THE COURT: Nothing further? Okay. Thank
t+
l5 l6
t7
18 19
l5
l6
1'l
it from, Your Honor. It's also just consistent with other photographs that have already
he got been admitted into evidence. In fact, I don't think there is an objection on them.
(Wihess stepped down.) MR. BRENNAN: Your Honor, may I ask one question? Just a clarification on the exhibit that we were just using.
t8
19
20
20
THE COURT: I don't knowwhen this was taken, prior to 2009, but I don't know when. I don't know who look
Honor?
2l
22 23
2l
22
L)
1A
24
THECOURT: Mm-hmm. MR. BRENNAN: With a motion in limine allowed - does it allow in part certain photographs
it. I don't know where this came from. MR. SEIGENBERG: Can I do this. then. Your
THECOURT: Mm-hmm.
-153-
-155-
I 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 l6 17 18 19 20 2l 22 23 24
NOTES
would be excluded? I don'trecall whetherthat, in fact, happen with the stenographer's - the official version, Your Honor.
THE COURT: Under 33? MR. BRENNAN: lt's on 33, and there were
pages 4
of6,5 of6
and 6
of6 thatwere to be
removed. THE COURT: I don't have 4 of 6. It's out oforderhere,4and5 areattheend. So,wewill justmarkthemas -thosewerecontested.
MR. BRENNAN: That was - that went think THE COURT: That went to the interior
the units,
to - I of
right. Yes.
MR. BRENNAN: I just noticed I had still had it in my book, so Ijust wanted to clari$r that.
THE COURT: Right, but they were marked on
the list as contested
and -
All with number 33? THE COURT: All 33 were contested, and I
just said that in terms of the motion in limine we
would eliminate the ones showing the interior. And they're out oforder here in my book.
I 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 16 17 18 19 20 21 22 23 24
time THE COURT: That would be helpful. MR. SEIGENBERG: - admit photos 2 ofthe photos onexhibit THECOURT: Yes. MR. SEIGENBERG: - 33. We'lI leave page 1
pages 2 and 3
THECOURT: Okay.
MR. SEIGENBERG: If Iremember. Thankyou, Your Honor. THE COURT: Just so wele clear, pages 4,
and 6 are excluded, right?
5
-154-
-156-
LANDING
I
z
3
VoI.II tlt9no
4
5Q
;ll.l: :\r:i::::l
+
5
MR. SEIGENBERG: And just for the record, Your Honor, just to make it a record, I would object, I do think that the damage to these individual units, Your Honor, is
a relevant consideration
I 2 3
*****
Eeading from the deposition transcript of William Sterling Wall, taken on r0/28/r0)
Good aftemoon. Would you please state your name and residential address? name is William Sterling Wall. My residential address is Eight Sheep Pen [ane,
6 7
8
6 8 9
10 11
in the contempt action. And I'd make an offer of proofjust for the record that we would have elicited
testimony, ifallowed, indicating that the excavation done in consfucting these walls did, in fact, cause
damage to these individual units, Your Honor.
7 A My full
9
10
Chilmark, Massachusetts.
ll
12 IJ
Q A
Could you state youreducational background? Educational backgromd. High school and college education with a Bachelor's degree in geology, concentration in coastal geology from the University
l4
l)
16
MR SEIGENBERG:
MR. WATSKY: With the court's permission, we'd cal'l our next witness. This is Sterling Wall. THE COURT: I'm sorry. STENOGRAPHER: Page 1, is still in the
book?
12 13 14 15
16
of
Q A
t7
17
18
l8 l9
20
21
I was first employed by Commonwealth of Massachusetts through the Coastal Zone Management Program to serve
as a consulting coastal geologist to
22 23
1A
are?
THECOURT: Yes.
STENOGRAPHU*:,k,t;td"n"".
19 20 21 22 23 24
1Q
utlat at that
time was the Department of Bnvironmental Quality Engineering, known as DEQE, which subsequentlyhas
been renamed the Department ofEnvironmental
Protection.
-159-
I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 17 l8 19 20
21 Q
THECOURT: Yes. MR.SEIGENBERG: Ournextwitnesswillbe Sterling Wall. That's the expert who was unavailable, so we're going to go through this. lll be on the witness stand and Attomey Watsky will be
asking questions for the record.
What were your responsibilities there at what is now known as the DEP?
2
3A
MR.WATSKY: It'sWilliamSterling,
S-T-E-R-L-I-N-G, and Wall, like a wall. THE COURT: Okay. So, it's three names. MR. WATSKY: Yes. He goes by Sterling, but
his first name is
MR SEIGENBERG:
22 23 24
MR. WATSKY: Just call him Sterling. Good afternoon. Would you please - Dan, we going to start page 4, line 23. MR. SEIGENBERG: You have to ask the
question.
4 implementation of the Wetlands Protection Act 5 regulations that are found at 310 CMRI0, 6 specifically, those regulations that pertain to 7 coastal wetland areas. My work also included 8 delineating for the department the boundaries of 9 these coastal wetland resource areas. l0 I also reviewed filings that were made to 11 conservation commissions in the coastal communities 12 of Massachusetts, with copies sent to the then DEQE, 13 for the purposes ofdetermining their completeness, 14 and that the proposals contained within what is 15 called a notice ofintent, were adequate to addrcss 16 protectionforpublicinterests. l7 Q Did you do any work with what is known as the Coastal 18 Zone Managernent Pro$am? 19 A Iworked extensivelywith staff at Coastal Zone 20 Managanent. Part of the work with Coastal Zone 21 Managernent included delineating certain areas, such 22 as beach barrier - I'm sorry, such as barrier beach 23 areas, and also working withCZM to identifyprojects 24 that were proposed, their compliance with CZM
-160-
-158-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
1
2Q
rr/9n0
I
2Q
subject to coastal storm flowage.
ii
{l
. ,i.1:.
.d. l
3 4A 5 6 7 8 9 l0 II 12 l3 14 15 Q 6 17 18 A 19 20 2l 22 23 24
1
Did you also have involvement with what is known the chapter 9l program while you were at DEP? I did. I had involvement with both, what is called
chapter 91, the Public Waterfront Act, as well as what is called the MEPA, MEPA unit, for the their
larger review ofprojects that exceeded certain
regulatorythresholds in dealing with the Public Waterfront Act and the regulations under chapter 91.
There was an area where there was overlapping jurisdictions between the Wetlands
Protection Act and the coastal wetlands and chapter 91, and it's regulations as they would pertain to something like the development of a marina. Could you describe for us, whatare the geographic
area's
of
DEQE,nowDEP, underchapter90 [sicj, has jurisdiction on the coastal areas, certain rivers and great ponds in the Commonwealth. With respect to jurisdiction in coastal areas, which pertains to this
instant mattsr, theirjurisdiction is from the mean high waterline seaward, out to the Commonwealth three-mile limit.
-16lI 2 3 4 5
6Q
Theirjurisdiction also includes certain filled tidelands, that is,
3 4A 5Q 6 7A 8 9 10 11 12 13 14 15 16 l7 18 Q 19 20 A 2l 22 23 24 Q 1
2A
coastal storm flowage?" What do we do? We usually say LSCF, I trelieve it is. Could you describe how you would go atrout delineating
a coastal bank?
glacial material, predominantly, that was left in place by the receding glaciers, but in positions
strike that - but in position where it is proximate to the coastal water body. In this case, that would
be Taunton River/Mount Hope been considered coastal beach.
acoastalbankin the areabetween The landing property and Borden Light Marina?
Is there
approximately 1700 feet ofelevated land form that is consideredcoastalbank. What are the primary functions of the coastal bank
as
fill
7
8A
9
10
When you were describing your activities under the Wetlands Protection Act, you used the word,
1l 12 13 14
1
5A
16 17 l8 19 20 2l 22 23 24
NOTES
for
areas that
that are considered designated port areas, which would be an industrial port area that's been
3 protecting landward areas and sb:uctures from coastal 4 flood damage. It could be a bank that could function 5 as a sediment source for the adjacent coastal beach. 6 That is, when there is a coastal storm, and 7 ifit eroded the coastal bank, those eroded materials 8 would slump down onto the beach and supplement the 9 beach sediments to maintain a beach width and height. l0 Q Before we get into more detail on that, let's explore I1 a bit more about your work experience and expertise. 12 What did you do after you left the department in 13 1983, what's the nextjob you held? 14 A kr 1983 Ijoined acrew -a groupcalled theBSC 15 Group, where I functioned as a coastal scientist and 16 coastal - excuse me, coastal scientist and a project 17 manager for the BSC Group until, I believe, it was 18 1985. 19 I then became part ofthe staffat a group 20 called HMM Associates. And I was at HMM Associates 2l when they were purchased by Earth Tech Corporation. 22 And I remained with Earth Tech Corporation until 23 1995. And I performed the same functions at HMM and 24 Earth Tech as I performed it in Daylor - excuse me,
-164-
-162-
KS COURT REPORTING
Phone: (978)
LANDING
I
Vor,.II.lll9ll0
1
BSC Group.
2Q
3A
6
7 e o
And what was next after the HMM Associates? After Earth Tech, I then joined the staff at Daylor
Consulting Crroup where I was a senior product
manager, a coastal geologist providing expertise in
A
think counsel has seen this. THE COURT: Right. Okay. And whar exhibit
was this?
coastal areas in Massachusetts and New England for Day'lor Consulting Group. And two years ago, 2008,
MR. SEIGENBERG: It's in the book. MR. WATSKY: It's in book MR. SEIGENBERG: It has to be near the end, Your Honor. I know that. Maybe 38, Matt? Matt, the index in the front. MR. WATSKY: I'm sorry. I'mjustnot finding it, Your Honor.
There are Sterling Wall photographs.
l0
l1
12
l0
ll
t2 l3 t4
tum. It
15A
l6
tt
I do, I do, and I present it here as exhibit 1. (End of reading of deposition transcript.)
+****
l5 l6
t7
THE COURT: No, I don't see it. MR. WATSKY: I don't think it was. MR. SEIGENBERG: I'll go back to my role. MR. WATSKY: I don't believe any of the exhibits that were olfered and marked in the
deposition are actually part of the official record
yet.
t8
l9
zo
21
exhibits. I'm not sure how you want to deat with this. Counsel has a full set, obviously fromthe
l8 l9
z0
22
L) a,
deposition, and I have extra copies here. I lnow the witness has one. To facilitate this, should I provide the court with two copies of eve44hing now?
al
22
23
1A
THE COURT: Right. And the deposition is not admitted yet. MR. WATSKY: Correct. What we were
-165-
-t67 -
I 2 3 4 5 6 7Q 8 9A t0 ll 12 13 14 15 16 17 18 19 20 2l 22 23 24
MR. WATSKY: We'll deal with it at the end. Okay. Very good, Your Honor. (Reading) "So, u,hat you've just handed me is, if you could,just describe it?
A four page CV. MR. WATSKY: I would like to offer this exhibitnumber l. Doyouwanttoseeit,Kevin?"
And it's referring to cotrnsel handling the
deposition.
as
THECOURT: Okay. MR. BRENNAN: Your Honor, just a point of clarification, my partner called it "his deposition,"
so when they're talking about Attomey McAllister, he was my partner.
THECOURT: Okay.
MR. SEIGENBERG: I don't think this we'd like to step out of our role, Your Honor, I apologize, but this is an agreed upon exhibit. I
is -
I 2 3 4 5 6 7 8 9 l0 II 12 13 14 15 16 11 18 19 20 2l 22 23 24
hguring we were going to do is just have him read in, and then the actual document itselfwould not
necessarily have to become a part ofthe record, although counsel may ask that we do that.
it
THE COURT: Do you have any objections to having this deposition admitted
as testimony?
MR BRENNAN:
bymypartner. I
entirety,butbothdirectandcrossgoesin. And
that was the deposition that was taken with the understanding that Mr. Wall would not be present.
So, even though all objections except to form were
transcript -
THECOURT: Yes.
MR. BRENNAN: - and when you're
considering the case?
ofthis.
-166_
NOTES:
168
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 717-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 I8 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 l0 ll 12 13 14 15 16 l7 18 9 20 2l 22 23 24
1
VoL.II rugtr0
I 2 3 4 5 6 7 8 9 l0 11 12 13 14 15 16 17 l8 19 20 21 22 23 24 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2l 22 23 24
trans$ipt. It will be all one MR. WATSKY: All one document.
THE COURT: - all one document. Okay? MR. WATSKY: All right. Very good, Your
Honor.
MR. WATSKY: Yes, we did. And I MR. BRENNAN: I understand the situation
and I'm not going to object to
it
as long as
ifs put
THE COURT: The entire deposition? MR. SEIGENBERG: I think the intent
is
THECOURT: Yes.
MR. SEIGENBERG: We went through this.
It's difficult enough for me. I can't imagine you having to listen to it.
bit
- we
of the radiation would make him unable to speak. And that's why we did the deposition early.
as a result
MR. BRENNAN: Yes. No objection. THE COURT: Okay. So, you will be using
the entire deposition? Is that the intent here?
particular sections to my attention. MR. BRENNAN: I don't even know how to highlightthemifl'mjustreadingthetranscript.
- ltt -
it
says.
specifica'lly with details of the DEP's Wetlands Protection Regulations and how things are defined, and the procedures under those regulations. So,
was going to skip, I don't know, thirty pages or
MR. BRENNAN: I think he should put it all in- YourHonorcancertainly MR. WATSKY: It's up to you, Your Honor.
THE COURT: Yes. I
preference.
think -
THE COURT: In your briefs, yes. MR. BRENNAN: Yes. I agree with that, yes. THE COTIRT: So, I think unless there are specific concems that you have about it, introducing
the entire testimony, relevancy or anything ofthat sort, his competence to testit/ or whatever, I think we
MR. WATSKY: Ifs whatever is your THE COURT: I think the whole thing should
goin. Ifpartofitgoesin,youknow,Ithinkwe
ought to see the whole thing.
will take it
as
lll
MR. WATSKY: Okay. Very good, Your Honor So, your preference, Your Honor, we'll just put the entire THE COURT: Right. MR. WATSKY: - deposition transcript, plus
the exhibits?
THECOURT: Yes. MR. WATSKY: Your Honor, would you prefer the full size - I'll step to the microphone - the full size deposition or the consolidated version?
-170_
NOTES:
-172-
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I 2 3 4 5 6 7 8 9 t0 ll 12 13 14 15 16 17 18 19 20 21 22 23 24
rugtrO
I A
2Q
3A
Charles Eugene Schnitzlein Junior. What's yourresidential address, sir? 700 Shore Drive, That is correct. Where is building 2 in relation to buildings - units 3 and 4 - I'm sorry, buildings 3 and 4. lt's behind buildings 3 and water side. Can you tell us briefly your work experience, sir?
THE COURT: I would prefer the full size version. My eyes are not that great.
(Exhitrit Number 42, marked in evidence; deposition transcript of William Sterling Wall taken
10/28/10 with exhibits t_? and Aand B attached)
u it202,
4Q
5A
6Q
MR. WATSKy: Now, is that 42? THE COURT: Were there two copies, or just
one? Canyougetasecondcopytous?
7 9
8A
10 Q 1l A 12 13 Q 14 A 15 16 Q 17 18 A 19 Q 20 A 2l Q 22 23 A 24
4.
MR WATSKy:
size.
version. Idon'thaveasecondcopyofthefull
THECOURT: Okay.
the original, the
a position at The
MR. SEIGENBERG: Would you like us ro rake full size? We can bring it
landing? Yes,Ido.
What's your position at The landing?
tomorrow to court with a copy. THE COURT: yes. That would be hetpful because as I read. it, I have, you know, a separate copy to mark up
Chairpersonoftheboard.
ifl
need so.
Howlonghaveyoubeen thechairperson oftheboard ofmanagers ofThe Landing? I'vebeen chairperson, this time, since April of
2010.
-173-
-175-
I for now? 2 THECOURT: yes. 3 STENOGRAPHER: Okay. 4 THE COURT: So, you'll retum that 5 tomorroW? 6 MR. WATSKy: yes. Thank you, your Honor. 7 MR. SEIGENBERG: I was quick to volunreer 8 that when he has to make the copies. With the 9 court's permission, I'd call our next witness. l0 THECOURT: yes. II MR. SEIGENBERG: Charles Schnitzlein. 12 THE COURT: Before we start, I really l3 what's your preference about taking any kind ofa 14 break? Do you feel you need to before we go to the l5 next witness, or are you okay? '16 Okay. Let's go. 17 ***************** 18 CFIARLES EUGENE SCHNITZLEIN JR. ***************** lg 20 (Witness swom.) 2I DIRECT EXAMINATION 22 @y Mr. Seigenberg:) 23 Q Sir, good aftemoon. Can you please state your full 24 name?
-174-
2A
I Q
Idid.
3Q
4A 5Q
What years did you serve on the board? 2005 through the current year. Sir, can you tell the court your understanding as to what the responsibility and duties are ofthe board
6 7 9 10 I1 12 13 14 15 16 17
18
8 A Responsibilityoftheboard
is intended to oversee the common areas, deal with the business ofthe condominium association on behalf
of the unit owners to protect their rights, to make sure that the property is properly maintained, and anything else that may come under our jurisdiction, which would be common areas. Litigation that may be necessary to protect unit owners'rights, or to collect monies,just a general responsibility to take
care
of
areas,,.
19 20 22 23
what does the term, "common areas.mean in The Landing complex? Commonareas can include thepool area, the club house, hallways, areas where there may be easements. Those are our rights to protect. The Landing at South park, is thata
21 A
24 Q In fact,
-176-
KS COURT REPORTING
Phone: (978)
I A
2Q
Yes, sir.
4A
5Q ?Q
6 A Approximately
8
9A
10
Landingsince 1998?
That is correct. Are you - have you been ayearround resident at The
11
12
A 13 Q 14 15 16 17 A 18 19 20 21 A 22 23 Q 24 A I Q
2A
landing? Yes,Ihave.
So
thatyou'llseethere? Doyouseethatphotograph,
sir?
Areweworking forwardorbackwards?
MR. SEIGENBERG: May I just sort
the witness going on the
of - with
THE COURT: To help locate 33? I'm not sure whether this is 33 or this is 33
(indicating).
That would be 33 (indicating). Okay.
3 building 3? For example A and B, or anlhing of that 4 nature? lrtmerephrase. 5 This building 3 depicted on this photograph 6 is a V shaped building; conect? 7 A Yes. it is. 8 Q Is there anydistinctionbetween the sizeofthe V of 9 the building? 10 A No. l1 Q So,that'sbuilding3. Andsir,therestofthe 12 buildings that are along the waterfront, what are the l3 building numbers? 14 A Itruns frombuilding 3 throughbuilding 11. 15 Q Do you knowhowmany buildings there are along the 16 waterfront? Maybe I can help you out here a little t7 bit. 18 A Nine buildings along the waterfront. MR. SEIGENBERG: I think we have a phasing 19 20 plan, Yow Honor, as one ofthe agreed upon exhibits, 2l if I can just locate it. While I'm looking, I1l ask 22 the witness another question. 23 Q Earlier on, you had spoken about the cornmon areas. 24 How do the cofitrnon areas relate to the units
-179-
see.
4 5 6 7
3 Q Understood. Lnoking at the first photograph exhibit 33 on page l, do you recognize that
photograph, depicts? It depicts Yes or no, sir.
on
8A 9Q
l0 A Yes. i 1 Q And what does that photograph depict, sir? 12 A Buildings at The landing which here have been marked 13 301 and 401. 14 Q Are you able to tell us which buildings are depicted 15 in that photograph, sir? l6 A Building 3,building4 and itappears partof 17 building5. I'mnotsure. Itlooksthatway. l8 Q Well, if you look at it sir, do you see the arrow 19 pointing to unit 401? 20 A Okay. No, it's actually building - I'm sorry, this 21 isthebackofbuilding3. So,itwouldbebuilding 22 3 and a part ofbuilding 4. 23 Q And specifically looking at the first building, which 24 is - it looks like a V shape; correct, sir?
-178NOTES
I themselves? What's cornmon areas in a unit or outside 2 the unit? 3 A Common areas are all the areas of the condominium 4 association from the studs, out. Anything from the 5 studs in, becomes the unit itself. 6 Q Noq before I moveon to thatphasing plan, going 7 back to exhibit 33 once again, what does that 8 photograph depict again, sir? 9 A It depicts The tanding - building 3 and part of 10 building 4 at The landing at South Park, and part of 1l the waterfront. 12 Q Noq sir, are you ableto tell fromthis photograph, 13 approxifiiately when this photograph was taken? 14 A Itwastakenpriorto2008. 15 Q How are you able to make that determination, sir? 16 A There's no wall there. 7 Q And when you say "there," where are you referring to? l8 A There's no wall by the bank. 19 MR. SEIGENBERG: Your Honor, at this point 20 in time. I move that document be admitted that is 21 31-l asthenext -asinclusionofexhibit33. 22 THECOURT: Okay. It'sexhibit43? No, 23 I'm sorry. It was part of exhibit 33 to begin with, 24 so thatis in. Right.
1
- 180-
KS COURT REPORTING
Phone: (978)
LANDING
1 2
3Q
BORDEN
LIGIIT
I
#254067
Vol.I w9na
1 2 3 4 5 6 7
8A 9Q
knows. Thank you, sir.
Actually, one other thing while we have this phasing plan up. There is some - you've been
here during the
marked
Are you able to locate that, sir? And thedocumentyou're looking at says, "phase 11, phasing plan for The tanding;" is that cofiect? That is correct.
trial. There
5A 6Q
proposal back in 2006 for the - by the Lunds or the Marina to construct a high-rise. Did you hear that testimony? Yes,
7 l0 ll
8A 9Q
Idid.
Looking at this photograph, can you please describe to the court the buildines that are located on The tandingproperty?
As you enter at the south, you have building
Looking at this phasing plan, can you tell the court approximatelywherethe -basedonyour
understanding, where the high-rise was proposed?
10 I1
12
12
I and 2
2
A Q
ofbuilding
I,
13 14 15
I
in the back. In front ofbuilding 1 and building is 3. Then comes 4, 5,6. Building 7, which includestheclubhouse Is clubhouse designated on that plan, the
13 14
15
pretty much next to Almond Street - I mean - I'm sorry, to the right of building
So,
1
17
18 19
6Q
'location
of
16 A I8 Q 19 20 A 21 Q 22 23 24 A
17
Thatiscorrect.
Do you know whose property that currently is, where that high-rise was proposed?
A Q 20 A 2l 22 Q 23 24 A I 2 3 4 5 6Q 7 8 9 l0 A l1 Q 12 A 13 Q 14 15 A 16 Q 17 18 A l9 Q 20 2l A 22 Q 23 A 24 Q
leftofbuilding 7; correct?
it.
Or in ftont of it, depending on which way you're
My understanding, it Admiral Realty Trust. Now, sir, when you moved into The landing in 1998, can you describe the setting ofThe landing, other
than the buildings thatyoujustdescribed? The setting ofThe tanding was sortofarural
-181Thenyouhavebuilding8. Thenalongthe
water you have building 10, I 1; 9 is set back next to
8, and behind building 10. And then you have
-183-
1 2 3 4 5 6 7 8
9Q
city. It
had a view
of
whichreallyhadnotbeenexpanded. Youcouldsee
see Braga
Bridge. We had a
grass area, a slope that went down to the water. There was a fence that ran the middle ofthe back
of
the lot. What about in the southerly side? Was there any when you moved in, was there any entrance on the southerly side, down to the Marina property, down below?
ThatwouldbeClubStreet.
Is that, in fact,shown on thephasingplan,sir, on the left-hand side?
10 1l 12
13
14 Q 16 l7 A 18 Q 19 A 20 Q 2l 22 23 24
15
it today.
Yes,itis.
When you moved into The l-anding, sir, were these the
Thatiscorrect.
Sir, I wantyou to, book,
ifyou would, please, in your ifyou could look at what's been marked as
For point ofreference, sir, there's these
And tha! ofcourse, is what sir? The water. Where is the - never mind. I'm sure the court
exhibit 34.
- when you get to 34, these photographs are labeled
-182NOTES:
-184-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LANDING
I
z
3
I tugtrO
I
us what
down to the back right ofthe photograph, do you see a pier extording out?
4A
5Q
Yes, I do. Do you know what pier that is? That's King Phillip Yacht Club. And that's, once again, that's on the southerly border of The Landing property? That is correct. What does this photograph depict, sir?
3
5 6 7 8
If you could go to 34-6, sir, the first photograph. Were you able to locate that?
Yes.
6A
7Q
8
o
10
11
A That depicts The landing at South Park. a Oh, I'm sorry. You know, I didn't - you moved in
1998, didn't you? Right, sir?
9A
10Q
t2
t5
15 16
That is correct.
11 A It depicts building3,4 and I believe a small t2 portion - no, actually I think it's just building
bit.
Sir,
if
13
and 4. Is this photograph a fair and accurate depiction as the bank looked when you moved in
you could please go to number - photograph 14. Have you located that? Yes, I have. It depicts the back of one of the buildings at The
14Q t)
in 1998?
16A
Yes, it is.
l8 l9
20
17Q At least the bank. as it was located around l8 building 3,4 and towards 5; correct?
a slope
19A
20Q
zl
Yes, it is. Sir, are you aware of what the - what purpose that bank served for The landing?
The purpose
22A
L)
1A
is that it was there to maintain erosion contro'l in the case of a high storm, so that the water wouldn't
r85 -
-187-
I A This is a short concrete wall. I think that may be 2 part of building 6. It's not building 3 Q Is this photograph a fair, - the date on it is 1998. 4 A 1998. 5 MR- SEIGENBERG: Just so the court's aware, 6 that's something that I think Michael Lund has put on 7 these photogaphs. That will come out, Your Honor. 8 Q Is thata fairdepiction of thatareain 1998 when 9 you moved in, sir? l0 A Yes, it is. 1l Q Why don't we go to the next photograph, 15. 12 A Pardon? 13 Q Go to the nextphotograph,number 15. Areyou there, 14 sir? 15 A Yes. Iam. 16 Q Do you krowwhat thephotograph depicts? 17 A That'sbehind building 7, looking upward to The 18 landing property from the Marina. 19 Q And there are someboats located in there? 20 A That is correct. 2l Q Canyouus wherethoseboats arelocated? 22 A Theyte located at what we now know is a sloped 23 easement. 24 Q And then ifyou could, there's 16, sir. Can you tell
NOTES:
186 -
I 2 3 4 5
6Q
it
7 8
9A
photograph depicts? That's looking from Mount Hope Bay at the Marina south, to King Phillip Yacht Club.
10 1l Q 12 A 13 Q 14 15 A 16 Q l7 18 19 20 2l A 22 23 24
occurredalongthebank. Startingfrom2000,canyou
tell
us what the
Ibelievetheconstruction thatlfirstcanrecall
was sheathing that was being put that time.
in
- I almost want
-188-
KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923
Phone: (978)
777-5802 FAX:
(978) 777-5803
LANDING
I Q 2A 3Q 4A 5 6 7Q 8 9A l0 Q l1 12 13 14 15 A 16 Q 17 18 19 20 A 2l 22 Q 23 A 24 I
2Q
VoI.II tugn0
1 2 3 4 ) 6
7A
MR. BRENNAN: The document soeaks for
itself. THE COURT: I guess it's his understanding
as opposed
I'11
allow
around building
rt.
in 2005: correct?
That is correct.
So, lefs talkaboutthe activities thatoccuffed
8 9
10
Q A Q A Q
whileyouwereatroardmember,iflcould.
Firstof
all, that you were aware that there was already marked as an exhibit in this matter, a settlement
agreement?
11 12
13
14
Thatiscorrect.
What was the trigger event in the board's mind or the board'sunderstanding?
Yes,lamaware.
And that settlement agreement is marked - that
settlement agreement is dated March of 2006. Can you
15
16
tell
us what involvement,
l7 18
19
relative to that settlement agreement? We were approached try Michael Lund, represanting
20 2l 22
23 A
24
This is the high-rise again? That is correct. In other words, that we would not
oppose the high-rise construction.
2Q
3A
4 6 7
8A
3 4
5A 6Q
of the so-called - of
a lawsuit; correct?
Thatiscorrect.
And that you now understood to be the - this tand
7
8A
that -
Courtaction?
Yes.
9 I0 1l 12 13 14
I
9Q
landsbehindupper -atthenorthendwouldbe
tumed over. We would receive $200,000 for development gates. We had previously put a gate in
the back end to secure the property, and that would
10 11
12
20062
13 14
15
piopefy.
5Q
if I could, to exhibit
39,
16 17 18
19
walls. Do you
A Yes.ldo. 20 Q And specifically, what was your understanding as a 21 board member, as to the tlpe of retaining walls that 22 would be constructed 23 MR. BRENNAN: Objection, Your Honor. 24 Q - if the settlement went through?
-190-
Q Didyouknowthatin2006? 16 A As faras thevisual portion, yes. l7 Q Right. Were you aware of any - in 2006, what 18 knowledge do you have as a board member as to whether 19 or not the court had a preliminary injunction in 20 effect? 21 A I had none at all. 22 Q Now sir, the land Court litigation, was the board 23 represented in that tand Court litigation in 2006? 24 A I don't understand the question.
-192-
KS COURT REPORTING
Phone: (978)
tu9n0
1 2 3 4 5 6 7 8 9 10 1l 12 13 14 15 16 17
18
1.:.:li
Did you have a - I'm sorry. I'm talking about this Land Court case, did the board have an attomey who
represented the board in the l-and Court, this l-and
THE COURT: His state of mind doesn't rcally go to the state of mind of the board. MR. SEIGENBERG: I'm happy to rephrase. THE COURT: You know I'll take it for what
Court case we're here today on? No. What's the year that The action? 2009. Sir, can you tell us what your state of mind was relative to the dispute involving The landing and the Lunds as you went into 2006 and 2007 and 2008?
land
it is. I don't see MR. BRENNAN: To the extent that. what did
board members know at the time based on the settlement agreement, I can understand that. But his
individual state of mind MR SEIGENBERG: Your Honor, I can I'm sorry, counsel. I can tie this in. THE COURT: Will you rephrase it? MR. SEIGENBERG:
answer that question,
tie
My state of mind as a board member was that we would try to live harmoniously with the Matina, and to
cooperate rather than end up in a situation like we're in today.
Q A
You
of
19 20
21
this. Therewasatriggerevent,wastherenot,sir?
Therewas. r93 What was the trigger event that made this agreement - allowed this agreement to be accomplished? Again, the shovel in the gromd that would have allowed or started to commence when the building What was your understanding as to the period of fime that the Marina had to obtain their permits to begin construction? It would expire, I believe, somewhere between March and May of 2009. No, I'm sorry. I think 2010,
22 23 24
1
goingtobealotofconfrontationanymore. Andwe
werejust waiting to
rise.
195 see whether they
2 3
4A
5 6
8A
opinion.
From being on the board, yeah, I think the board was
7 Q Butfrombeingontheboard?
9
10
So,
youasaboardmember -strikethat.
Based on your understanding, when did the
right.
It was either a three or four year trigger; correct? That'scorrect.
So, once again, sir, knowingthattherewas
I 12 13
I
case?
that
14
three year or four year trigger point, what was your state of mind as a board membet, relative to disputes
15
16 17 18 19
MR. BRENNAN: Objection, Your Honor. We're talking about the board, not the individual. THE COURT: Correct. THE WITNESS: That's what fm saying. MR. BRENNAN: His state of mind 194 -
Q Oh, the title or section 1991 [sic]? A tught. Q What year was that, sir? A 2009. 20 Q Now, you described some sheathing wall of 2l construction that was done. I think vou said 22 A 2002/2003. 23 Q And what was the next area of construction, if any, 24 onthe -relativetobuildingofwallsbythe
-196-
KS COURT REPORTING
14 Palmer Avenue
LANDING
I
2A
Marina?
lll9ll0
I
this construction that was being done?
I know
3 4Q 5A 6Q 7 8A 9 .10 II 12 13 Q 14 A 15 Q l6 l'1 18 A 19 Q 20 2I 22 A 23 Q 24
2A
4Q
6
7 8
building T,going south towards building 6. Approximately how large an area was that wall?
Maybe 200/250 feet. What was the board's position relative to that construction? We did not really take note of it because it didn't
don't know who the contractor was. Could you turn on your exhibit book to 328E, in recognizing they go A throughZ, and than goes AA, B, C. So, you might be better off starting at the end
of 32 to get there.
A I'mthere. Im there.
l0
ll
t2
13
Can you tell us what photograph 32EE depicts, sir? 32EE depicts the - what remains of the parking lot that we had, and the now opened excavationed area with concrete block opposite where the fence, and also you can see the yacht club. That building there is the King Phillip Yacht Club? That's King Phillip Yacht Club. Fish club? No, yacht club. also shows a white rail fence ofsorts. When was that fence constructed relative to the excavation of the guest parking lot? That was constructed after Mr. Bouffard complained about the hazard to BLM.
14Q
And also, sir, back in2}06,the board, as you,ve already testified, wasn't aware of the preliminary injunction? No, it wasn't. Back in 2006, had theboardreceived anycounsel relative to their rights, relative to the visual
easement or the graded sloped easement?
15A
16Q
17A
19
2tA
22
23Q
such 197
And specifically, when this work started in 2008, into 2009, who was the chairman of the board? r99 Beft Bouffard.
Were there discussions at the board level relative to this construction that was occurring both in 2008, and extending into 2009?
As a board member -
I
3
A
a
A
2Q
I woke up one morning and people were digging a hole. They were tearing out part of a parking lot. It
appeared they were excavating what had been a very
3 4
5A 6Q
6
7 8 9
nanow piece of land with boulders in it, and were making a roadway.
7A
8Q
l0
11
Prior to that construction commotcing, was the board in any way informed that the construction was going
to be occurring?
12
Not at all.
l4 place in 2008 and then in 2009? l5 A The construction in 2008 opened up a roadway on the
t6
11 18 19
south end,
have had for more years than I had lived there. As a matter of fact, when that parking lot was tom apart,
20
21
it became ahazard for anybody who wanted to park in there, because ifthey backed up, they would have
gone over where they were excavating, So, there was no fence there at the time? There was no fence at that time.
22Q
234
24Q
":i;I"t*,
or who ordered
9 l0 A l1 12 13 14 15 16 17 Q 18 19 A Z0 2l 22 23 24 Q
of the poor worhnanship, at least in what I saw, in my opinion, of the construcfion of the wall, their destroying land that was coastal, interrupting an
ecosystem. All of that disturbed me as a board member.
as
I think the general attitude of the board was also upset, and the fact that they had done this work
without even consulting us. And it was like, we put the shovel in the ground, and it's too bad, we,ve
already done it.
NOTES:
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978)777-5802 FAX: (978) 777-5803
KS COURT REPORTING
tugn0
I 4
2A 3Q 5A
2009; correct? That is correct.
Can you describe for us the work that was done in
4 5
6Q
7A 8Q
Marina - without
2009,
ifyou
can recall?
asking The Landing at South Park. You were not on the board in 2002; conect? No. I was not. You're now aware there were some discussions back rn
2002: correct?
The work in 2009 was, hurry up and get it done. They were working from the north end and from the south end to meet in the middle, sort of like the
9 l0 A 1l Q 12 13 A 14 15 Q 6A 17 18 9 20 21 22 23 Q 24
1 1
6 7 8 9 l0 II
12
Califomiarailway. Alotofdirt,alotofdust,a lot ofnoise, and it appeared they were trying to get it done before the storage season arrived, so that
they could store boats.
13
14
hr fact, did
So, sir, as a board then, the board had some concems about the work that was being done. What,
if
A 15 I6 Q 17 18 A 19 Q 20 21 22 A 23 24 I 2 3 4 5 6 7
10
Mostly, yes.
So, afterthis workwas done in 2009, what, storage ofboats?
if
Theyjustbacked boats right up against the wall, mostly indiscriminately. They had raised the level ofthe roadway, put stanchions, or whatever
_203
_
-201 -
I
2A
anything, did the board do about it? We investigated. As a board, we've got a responsibility to do things properly, so we can't
3 4 5 6 ? 8 9 10 l1 12 13 14 15
16
justjumpanddothings. So,thenweinvestigatedas
to what was going on. Mr. Bouffard approached the city an various agancies. We found that there were
out that there was something going on with DEP. We found that through a newspaper advertisement. We contacted Attomey Watsky. When Attomey Watsky went into what was going on, he also unearthed the injunction. And that
was the first time we had any knowledge of the
1, and
injunction.
Q A Q A Q A Q
Now, you indicated the board made complaints to the various govemmental agencies; correct?
17
18 19
Thatiscorrect.
What results, ifany, did the board receive by doing
that?
I 12 13 14 15 16 l7 l8 19
1
including a 20-foot wide easement for the benefit lot I and 2 for construction and maintenance ofa
of
20
21 22 23 24
Basically,
us.
20 21
A Q A
Yes. where
it was located.
And that's when you tumed eventually to counsel? That's when we tumed to counsel, yes. Now, sir, the construction occurred both in 2008 and
22
23
24
-202 NOTES
-204 -
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
LAI{DING
I Q 2 3 4 5A 6 7 8 9 l0 II Q 12 l3 l4 15 16 17 18 19 20 2l 22 23 Q 24 I A 2 3 4 5 6 7Q 8A 9 l0 II Q 12 13 A 14 Q 15 16 A 17 18 19 20 Q 21 A 22 23 24 Q
NOTES
ru9tr0
I
And specifically, sir, before - let,s talk about the construction and excavation that occurred in 2008 into 2009. You've already described the coastal bank
2A
3Q
4
5
excavation that occurred in 2008 and 2009 result Damaged portions ofit between buildings 5,4 and 3.
- strike
thatwas there that Prior to the bank was an avemge coastal bank that had shrubs and grass, vegetation. There was debris
occasionally because people thought it was a good place to dump
of
o
'7
be
that sloped graded bank that existed after the excavation and construction ofthe wall in 2008 and 2009, what existed after that?
occasional debris down there. Sometimes there were tires that were dumped. But it was a coastal bank.
9A
l0
11
A minimal area at the top of the bank - I mean, the top of the wa1l. Much of it, where they had actually
cut into the property, they didn't bother to seed; they didn't bother to do anything with - and actually while we were getting, and we presently are getting, is erosion over the wall. So, you say there's just a little bit on the other
side of the wa1l, you mean, going towards The L:nding
And from your understanding, sir, what benefit did that bank provide The Landing relative to flood - as
a flood protection barrier?
12
IJ
t4
15Q
16
buildings; correct?
18A
That is correct.
leQ
tn
And when you say, "just a little bit," you mean the 20-foot wide easement, sir? There's only a little
zl
that's all.
22A
23Q
1A
-205 My understanding was that if there was to be any kind of high water, with any kind of wave effect, that the slope ofthis bank would first ofall, probably slow
the water down, and actually direct any kind
-207
ofwave
back towards Mount Hop Bay, rather than allowing to come up against the buildings. What about for erosion control? Where it was solid, sloping down from the buildings, it allowed water to flow naturally as drainage coming
it
Thatiscorrect. Now, sir, whatuse, ifany, did The Landingmake of the easement area for drainage?
In the easementarea, we did havedrainage, a drainage system with PVC pipe that want into catch basins that then went into a master pipe, that went into the Fall River sewer lines. Howwere you aware ofthat, sir? Well, we knew there were grates there. We knew that
there were piping coming
offthe buitdings, going into that. That was visual and very obvious.
What impact,
the
I A 2 3 4 5 6Q 7 8 9A 10 Q 11 12 13 A 14 Q 15 16 A l7 Q 18 19 A 20 2l 22 23 Q 24
In some places, all of it, plus more. In some cases, they excavated into actually our property, beyond the property line when they put up the wall, even though
the wall was
basically an invasion ofproperty in a lot ofplaces. After this excavation, sir, what use, if any, can The
Now, prior to the excavation and the construction of the wall in 2008 and 2009, you had described this
graded sloped vegetated area; correct?
Thatisconect.
What,
do to that slope
over the years? We maintained it. How did The landing maintain that graded sloped
easement area?
to tend to the property, and we also rnaintain the slope by cutting glass. And it was our understanding
that was our responsibility.
And you say it was your understanding it was your responsibility. Where did that understanding come
-208-
KS COURT REPORTING
Phone: (978)
LANDING
I
2A 3Q
from?
Vol.I rugn0
From Borden Light Marina. In what way did Borden Light Marina communicate to
4 you that it was The landing's responsibilig to 5 maintain that easement area? 6 A This is from Michael Lund himself. 7 Q And in what way was it - d'id Michael l,und 8 A Verbally. It was a verbal communication. 9 Q Do you know approximately when that happened? trO A No, but it's been I I Q Has anyone from Borden Light Marina ever attempted to 12 interfere rvith The l-anding's maintenance of that 13 graded sloped easement that you described? 14 A Yes,theyhave. 15 Q In what way? 16 A When litigation began, we were informed by Michael 17 [-und that if we cut the gmss, he was going to have 18 us arrested. 19 Q When you say, "whan litigation -" 20 A Well, it wouldn't mean us arrested - litigation that 21 wete presently here for. 22 Q kt's back up a little bit. This litigation was 23 instituted in 1999. Do you mean the contempt action 24 that was filed -209 -
I Q So, ifyou could directyourattantionto exhibits 2 32, we'll go through these with you. 3 Are these the photographs that you toolg 4 sir? 5 A Not looking at al1 of them, I would say yes, probably 6 these are all that I've taken. 7 Q Do you know approximately when these photographs were 8 taken? 9 A These were taken within the last thirty days. l0 Q So let's go through them. Going with A, what does A II depict, sir? 12 A That's looking north at the wall behind building 11, 13 and 14 Q Building I 1 would be on the right, top right-hand 15 comer? 16 A Thatiscorrect. 17 Q What's on the backgromd of the - towards the 18 background ofthe 19 A Background is Braga Bridge, part of the Marina, boats 20 that Borden Light Marina has in storage, and the 21 fence that 22 Q Now,alsoonthatexhibitA -photogaphA,there's 23 a concrete wall. Do you see that, sir? 24 A Yes.
1Q
I A
4Q
Yes.
2
3A
5
6A 7Q 8A
Okay. So, after that, there was a conversation with Michael t und.
That is correct. What did Mr. Lund tell you?
We were told that we could not cut the grass. He was
4Q
5 6
7A
9 10 II 12 13 14
15 16
going to just let it grow to block the view of our residents. Hedidn'tcare.
Itwaslike,well,you
goingtodotoyou. Andthishasbeenaconstant,
constantactionbythe -byMichaelandBordenLight
Marina.
Q A Q
Bywho? Sorqfl
By Michael and Borden Light Marina. It's been a
17
18
onthe
19 A 2l Q 22 23 24
20
NOTES
MR. SEIGENBERG: Again, I think they're 32, Your Honor' Yes' 32'
8 9Q 10 ll A 12 Q 13 14 A 15 Q 16 A 17 18 19 Q 20 A 21 Q 22 A 23 Q 24
Actually, that's to the right of building I l. That's a wall that runs towards Almond Street.
There a'lso seems to be
right?
Theotherappearstobecanvas. Itmaybelongtothe
boat itself.
horrific -
2ro-
KS COURT REPORTING
14 Palmer Avenue I)anvers, Massachusetts 0l 923
Phone: (978)
777-5802 FAX:
(978) 777-5803
LANDING
t 2 3 4 5 6 7 8 9 10
11
horrific.
BORDEN LIGHT.#254067
a bad attempt at humor.
VoI.II rugllo
IA
They're on the land.
2Q
3
4A sQ 6A
7Q
E.
E.
it.
What does that depict, sir? It depicts the end of that concrete wall into an area where their travel
Where's the travel
8A
9
l0Q
12
13
llA
t2
The travel
afea.
lift is to
ofthe tent
A That's the same wall, looking south. That's behind 14 building 11. I 5 Q And to the right, what's depicted in the right of the 16 photograph? 17 A Thereareboats. There's theclubhouse, there's a 18 tent structure, roadway. Also in that picture, 19 there's a boundary marker towards the left, towards 20 the building, just behind the fence where it sort of 2l V's in. 22 Q lsee. So, that'sthebound -youbelievethatto 23 be the boundary line for the 24 A That's the boundary line that we had - we paid to
_213 -
13Q
It's that tall metal object? That is correct. When you say "travel
the use of that travel
14A
lsQ
16
18
lift?
the seasons.
leQ
20
2tA
22Q
z)
maintaining that
area?
241.
t
2Q
rightof that
3 4 5
6A 7Q
boundary line would be the twenty - without anything, but the twenty feet to the right ofthat would be where the easement is located? That is correct. What building is there, do you knou/? Can you tell?
8
9A
Isitl0orll?
It's within the areaofbuildings 10 and 11.
l0 Q II 12 13 A 14 Q 15 A 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 24
Yes. That'stheirclubhouse.
I see. I think that's what they call it.
- is that a picture
of
thatbuildingyoujustdescribed? Yes, it is. And the top of thatbuilding, is that the cupola
thafs been referred to in this litieation?
Yes. it is.
These boats that are depicted in D, sir, at least in
offthe land?
al
A
I Q And thafs when the statements were received by 2 Michael Lund that 3 A That is correct. 4 Q - you testified to? [rt's go to photograph F. And 5 that's generally the same area 6 A Same area. 7 Q And there's a picnic table there; is that correct? 8 A That is correct. 9 Q Has that picnic table been there - for how long, l0 sir? ll A Iwouldliketo sayprobably, maybetwoyears. I 12 truthfully - I can't say exactly. 13 Q Do you know who put the picnic table there? Was 14 it - first of all, did The hnding put the picnic 15 table 16 A No. We assume Borden Light Marina put it there. l7 Q And this also shows the travel lift alittle closer 18 up; correct? 19 A Thatiscorrect. 20 Q AndphotographG,sir? 2 1 A That's a picture taken behind, I believe, building 8, 22 looking out over the boats that are being stored on 23 land. 24 Q And if we go to H.
-216-
KS COURT REPORTING
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978)
777-5802 FAX:
(978) 777-5803
LANDING
I A 2 3 4Q 5 6 7 8A 9 l0 II 12 13 14 15 Q 16 17 A l8 Q 19 A 20 Q 2l 22 23 24
rltgn0
2A
Again, this is depicting, and I can't tell which building this is, but it's somewhere in that area
boats being stored on land.
I Q
What have you determined visually, sir? That the lift exceeds nineteen foot MSL.
as an
elevation plan that talks about the elevation level relative to mean sea level ofall these retaining
MSL, mean
sea
for the court to understand as we go through these photographs to get views ofheights. Now, thattravel lift, sir, is thatkept at The
tanding, on The landing property year round? No, on Borden Light Marina.
I mean, Borden Light Marina.
Yes,
it is.
nineteen feet mean sea level, are you able to determine the approximate height ofthat travel
that's kept on the Marina's property?
lift
3 4 5 6 7 8 9 l0 II 12 13 14 15 16 17 l8 19 20 2l 22 23 24 I 2 3 4 5 6 7 8 9 l0 ll 12 13 14 15 16 17 18 19 20 21 22 23 24
THE COURT: Counsel, do we have a plan that shows the actual dimensions ofthe easement area, showing some of these objects within that - do we know, for example, that that lift is within that easementarea? Hasthatbeenestablished? MR. SEIGENBERG: I think I had asked that question. I think the witness had said it's kept on
the Marina's property year round.
THE COURT: On the property, but do we know that it's in the easement area? I don't want to have questions about the height ofthings that are outside
the easement area.
MR. SEIGENBERG: And I apologize I didn't bring this to the court's attention. The visual
easement encompasses at the minimum, all of lot 3.
-2t9 -
I witness is going to measure the heightofthe travel 2 lift. I don't think he's qualified to do that. 3 THE COURT: I don't think it's been 4 established whether he measured it or not. 5 MR. SEIGENBERG: I don't even think lm 6 asking to do that, Your Honor. I'm just trying to 7 I guess to have him state almost the obvious that 8 the -obviouslyvisually,ifyoutestandingonthe 9 wall, and you know the wall's at twenty mean sea l0 level, and you see a lift that extends fifteen feet II up, then you can know that it's going to be thirty to 12 forty feet at mean sea level. 13 THECOURT: Idon'tlnowifyou'dknowhow 14 many feet above sea level it would be. 15 THE WITNESS: May I answer the question, 16 Your Honor? 17 MR. SEIGENBERG: lrt me rephrase. Can I 18 rephrase it, Your Honor. 19 THECOURT: Okay. 20 MR. SEIGENBERG: lrt me rephrase. 2l Q Sir, knowing that the retaining walls are at least 22 nineteen feet MSL, are you able to visually determine 23 that that lift exceeds nineteen MSL?? 24 A Yes.
-218NOTES:
So, anything that's on lot 3, which is the Marina property, is subject to that nineteen feet visual easement.
THE COURT: And you a$ee with that? MR. BRENNAN: Oh, I couldn,t disagree more.
THECOURT: Okay.
MR. BRENNAN: Your Honor, let me just THE COURT: So, we've got a problem here. MR. BRENNAN: - clarify the point of
disagreement.
THECOURT: Okay. MR. BRENNAN: Ifs not over the entire lot. THE COURT: So, there's a dispute MR BRENNAN: But it's not limited THE COURT: - over the portion MR. BRENNAN: - to the point THE COURT: - that it covers.
220 -
l4 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING
VoI.II 1u9n0
I A -firstofall, they'reblackandwhite. Andsecond 2 ofall 3 Q If you don't know, that would be 4 A - but based on -- my assumption is that they are. 5 Q Maybe this photograph will hetp you, sir, going to 6 photograph J. It looks like on the left-hand side 7 there's -8 A Oh, yes. This is a property boundary mark that was 9 put in by Mount Hope. And based on that, yes, they 10 would be within the 20-foot easement. I I Q And thor K, sir? 12 A Northem ord of building 7 with the pool. 13 Q Thefenced area is where the pool is located; 14 correct? 15 A Thatiscorrect. And theboatsthataredirectly 16 behind the pool are definitely within the easement l7 area. 18 Q Now, sir, in this photograph on theright-hand side, 19 there is aconcrete wall. I think it,s concrete. Do 20 you agree? 2l A Actually it's concrete block, I believe. 22 Q Concrete block. Do you lorow when that was 23 constructed? 24 A Ibelievethatwas 2005/2006.
-tzJ-
2A
3
to the wall, does that boat exceed nineteen MSL? Based on the height of the wall, we have numerous
boats that exceed nineteen foot MSL.
I Q
2A 3Q
4Q
5
And these boats that are situated, do you know how long boats have been stored in that area as deDicted
on that photograph?
4
5A 6Q
That is correct.
Those boats have been - what season are those boats stored there?
7A
o
or -
8Q h
10A
7
8A
9 Q I A 12 Q 13 14 15 16 17 l8 19 20 2l A 22 23 24
10
I
ll
12Q
Probably as long as I've been there, in this particular area. Then going to photograph l, sir. Okay. What does that depict? That's looking south towards the end of the Marina. This is behind - actually this is behind building
I
l3A
14Q
M.
sectionofwallneartheboats,doyouseethat?
that the same concrete wall that you testified to earlier, concrete block wall,
15A
16
ifyou know.
t7
8.
l8 t9
pool, and then that would be building behind building 8, looking south.
6.
So, this is
20Q
2I
ofthe
property.
22
2J
Actually, that's more behind building - I believe building 6. And really, thafs not the same
as the
A,
I'm
seeing Okay.
24Q
NOTES:
-222-
14 Palmer Avenue Danvers, Massachusetts 01923 Phone: (978) 777-5802 FAX: (978) 777-5503
KS COURT REPORTING
LANDING v BORDEN LIGHT,#254067 VoL. lQ And then going to photograph N. What dos that
z
tu9n0
I
z
indicates the following, "that John Lund and Brian Corey grant to The l-anding at South Park, *nc., the
depict, sir? It depicts the boats that are stored against the
3A
4
5
building
5 6
7 8
following perpetual right and easement in connection with the construction of 140 condominium units on the
premises directly to the west of the premises herein described, which shall run with the premises as hereinafter described, for a view unobstructed by any structure in the area, nineteen feet above mean sea
6Q
7A
8Q
9
10
Well, okay, going all the way in the back. Going - go all the way up, yeah.
I see. I think the
l0
as
11 A
llQ
T2
12Q
if
What is that stake? That's a property boundary marker that we had from surveying the property.
So, anything to the left
13A
l4 15Q
16
t3
14A
15
visual easement? He didn't preclude anybody in any of the lower units from being able to see anything ofthe bay at all. Well, you can sort of see some of the bay, can't you? Not if you were in the bui'lding Okay. - looking out your window. Once again, is this the type ofstorage that occurs, once again, I think you said from October
property? That is correct. !o the right of that, at least twenty feet, would be the 20-loot wide easement: correct? Yes. it would. What building is that boundary stake directly across from, if you knov/? Again, I think it's building 6. Maybe this
l7A
l9
16Q
17
A.
18Q
19A
20Q
20A
2lQ
22
to -
234
24Q
22A
24
This is typical.
standing, once again, property goes from southerly to northerly,
1aa
23Q Ifyoute
will - if you
go to photo$aph P, and
-225 I
z
3
what does that depict, sir? That again, depicts the boat storage, the troundary marker, and this may be -
a
A
6
7 8
A I couldn't
it.
Was
l0 A
11
is -
12 IJ
a
A
And photograph Q, sir, what does that depict? That was taken from behind one ofthe buildings, and depicts present storage ofboats. And this is moving towards the southerly end, but I can't tell you whether it's building 5 or building 4, or building I know it's not building 3. Based on the fence, I
17
l8 l9
20
2l
22
z)
z1
think it may be building MR. SEIGENBERG: Your Honor, I'm going to bring the court's attention, if I could at this point in time, to exhibit 4, the visual easement, and it
I 2 3A 4Q 5A 6Q 7A 8 9Q 10 A II 12 Q 13 A 14 15 Q 16 17 A 18 Q 19 20 A 2l Q 22 23 A 24
looking at Mount Hope Bay, what direction are you looking at?
West.
Oh,great. Andwhatdoesthatdepict?
Absolutely no view at all. I have boats in my way. I can't even see the water for the most part. And that's what's I mean, I might be able to peek through and see'it,
well, sir?
Thatiscorrect.
And then T, thafs going furthersoutherly; conect,
sir? That is correct.
in
-226 NOTES
-228 -
14 Palmer Avenue Danvers. Massachusetts 01923 Phone: (978) 777-5802 FAX: (978)?77-5803
KS COURT REPORTING
LANDING
1Q
tltgn0
I A
2Q
No, that erosion wasn't there. Prior to that excavation in 2008 and 2009, what was
2 boundary line, almost? 3 A Yes. it is. 4 Q And then go to photograph U. Does thatphoto$aph 5 also depict another boundary marker? 6 A Yes, it does. It's very difficult for me to see it 7 here, but yes, it does. 8 Q What kind of wall is this, sir? 9 A This is the latest block wall that BML 10 Q Oh, this is approximately 650 feet that was constructed in 2008 and 2009? II 12 A Thatiscorrect. 13 Q This is that concrete block wall. Now, on this 14 wall -depictedhereis also somesortofaroadway 15 area. Do you see that? 16 A Yes. l7 Q Did thatexistprior tothe excavationin 2008 and 18 2009? 19 A Notto thatextent. There mayhavebeen apath, but 20 not that roadway. 21 Q Wereboats stored there on thatlocationpriorto 22 2008? 23 A Not in the manner they are presently. 24 Q And specifically, goingfromthatboundarymark,
-229 -
3 to the right oftheboundary stake? 4 A Slope, going to the water. 5 Q Which The I-anding maintained? 6 A Yes. 7 Q AndphotographX? 8 A Again, behind building 3, shrink wrapped boats, I'm 9 standing there, again, having a visual view ofthe l0 bay, except a very small corner. I 1 Q And these boats, they're still in the easement area, 12 sir? 13 A Yes,theyare. 14 Q Once again, knowing the elevation of that wall, what is the elevation ofthese boats relative to nineteen l5 16 mean sea level? 17 A They'reaboveit. 18 Q And photograph Y? Is thatan example of one ofthe 19 shrink wrapped boats? 20 A That's an example of one of the shrink wrapped boats, yes. 2l 22 Q And going to Z, sir, what does that depict? 23 A More boat storage. 24 Q And going to double A, another boundary stake?
- Ltt -
1 approximately how much room is there from that 2 boundary mark to that concrete block wall in that 3 location? 4 A Maximum ten feet. 5 Q Photo V, sir, *tatdoes thatphotograph depict? 6 A Broken drain behind building 5. 7 Q Doyouknowwherethafslocatedprecisely? 8 A Behind building 5. 9 Q I know, but relative to where the concrete wall is or the easement area. l0 I I A It's in the easement area. 12 Q How are you able to determine that? 13 A Itookthepicture. 14 Q Okay. Fairenough. And going to W, sir, is that also another 15 16 stake in the middle left side ofthe photograph? 17 A Yes. 18 Q Whatelseis depicted on this photograph, sir? 19 A Building3,boatstorage 20 Q And I know it's difficult with 21 A -someofthe erosionthat's occurringbased on the 22 excavationbehind - actuallybehind the fence. 23 Q Was that there prior to the excavation that was done 24 in 2008 and 2009?
-230 NOTES:
I A
2Q
Yes. there is. How much room is there - once again, next to that
3 boundary stake, what is that, sir? 4 A To the left or the right? 5 Q To the left. I'm sorry. 6 A There's a dmin and a Pad. 7 Q Howcloseis thatbuilding to thatboundary stake, sir, approximately? 8 9 A Approximately five feet. l0 Q And from the stake, down to the concrete wall that's II there? 12 A Maybe six or seven. 13 Q And double B, sir? THE COURT: Counsel, are you planning to go 14 15 through every one ofthese MR. SEIGENBERG: Im trying to get through 16 17 before the break. THECOURT: WereallY -l'mafraidwe 18 19 really have to wrap up now and continue this 20 tomorrow. Okay. MR. SEIGENBERG: That sounds great. Thank 2l 22 you, Your Honor. THE COURT: So, tomorrowmoming we will 23 24 continue with this direct examination of this
-232 -
I rugflO
witness, and we will move to comolete this witness. Tomorrow moming you will be closing or have, and I'm hopeful that issue.
MR. SEIGENBERG: The only other issue I will resolve with counsel, is the building inspector. But Im sure we'll resolve
I 12
I
l3
ti l)
l6
l7 l8
l9
20
21
MR. SEIGENBERG: Thank you, Your Honor. (Hearing suspended at 4:12 p.m. Trial to be resumed for Day 3 on
Wednesday, Novernber 10th, 201 0
22
LJ 1n
-233
COMMONWEALTH OF MASSACHUSETTS
I, Karen V. Smith, Professional Court Reporter and Notary Public in and for the Commonwealth of Massachuseus, do hereby certifu that the foregoing record, Pages
to 233,
inclusive, is a true and accurate hanscript of my system tapes to the best of my knowledge, skill and ability.
I am not connected by blood or marriage with any said parties, nor interested directly or indirectly in the
ofthe
matter ln controversy.
of
-234 -
14 Palmer Avenue Danvers. Massachusetts 01 923 Phone: (978) 777-5802 FAX: (978) 777-5803
KS COURT REPORTING