the landing request for findings of fact

8/3/2019 The Landing Request for Findings of Fact

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COMMONWEALTH OF MASSACHUSETTSTHE TRIAL COURTI,AND COURT DEPARTMENT

BRISTOL, SSLANDING AT SOUTH PARK *CONDOMINIUM ASSN., *Plaintiff/Defendant-in- *Counterclaim **

)k*+

DOCKET NO. 254067

V. EFTEcoPYBORDEN LIGHT *MARINA, INC., *Defendant/Plaintiff-in- *Counterclaim *

PTAINTIFF / DEFENDANT.IN.COUNTERCLAIM.LANDING AT SOUTH PARK CONDOMINIUM ASSOCIATION'SREQUEST FOR FINDINGS OF FACTPlaintiffl Defendant-in-Counterclaim, Landing at South Park Condominium

Association, hereby requests that this Honorable Court make the followingFindings of Fact:

PARTIES1. Plaintiff/Defendant-in-Counterclaim, The Landing at South ParkCondominium Association (hereinafter referred to as the "Landing"),is the duly e stablished and authortzed organrzation of unit owners ofThe Landing at South Park Condominium pursuant to G.L. c. 183A g

8 and is the legal representaiive of said unit owners pursuant to G.L"c. 183,{ S 10.2. Defendant/Plaintiff-in-Counterclaim, Borden Light Marina, Inc.,{hereinafter referred to as the "Marina"), is a MassachusettsCorporation organized under G.L. c. 1568 rn'ith its principal office atOne Ferry Street, Fall River, Massachusetts.


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PROCEDURAL HISTORYOn Febru ary 4, Tggg the Landing, by its then Counsel, John J.Gushue, filed this complaint against the Defendant, Borden LightMarina, Inc. Said complaint inter alia sought a declaration of rightsrelative to the Visual Easement and the Erosion Control Easementand also aileged certain violations of said Easements.On August 5, 1999 Edward.]. Brennan, Esquire entered hisappearance for the Marina.On May 23, 2AOO the Landing filed an Ex-parte Motion for aTemporary Restraining order and Preliminary Injunction. In supportof said Motion, the Landing filed an Affidavit of Roland Richard.on May 23, 2ooo this court (Kilborn, c.J.) issued a preliminaryInjunction.On May 25, 2AOO the Marina filed a Motion to Dissolve theTemporary Restraining order and filed in support an Affidavit ofJohn Lund.The Landing fiied an opposition to the Marina's Motion to Dissolvethe Temporary Restraining order and filed in support an Affidavit ofMark A. Boucher, P.L.E.on May 26, 2o0a the Marina's Motion to Dissolve the TemporaryRestraining order was argued and denied by the court (Kilborn,c.J.).The issues raised by the parties relative to the Motion for PreliminaryInjunction and Motion to Dissolve the Injunction included theLanding's allegation that the Marina had excavated a portion of thecoastal bank and violated the Erosion control Easement. TheMarina, in opposition, argued that the excavation of the coastal bankdid not violate the Erosion Control Easement.on July 25, 2oa2, a Motion to withdraw was filed by John Gushueas the Landing's counsel. Said Motion was allorn'ed by the court.Thereafter, the case remained open with the preliminary injunctiondated Mav 23. 2OOO still in effect.

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The next activity on the case was when the Landing filed a Complaintfor Contempt on May 77,2OIO.On May 2I,2O1O this case was assigned to the Honorable Judith CCutler.On September 21,2O10 a Pre-Triai Conference was conducted. Atthe pre-trial conference the Court (Cutler, J.) determined that theissues involving the Complaint filed in 1999 would be heard with theCornplaint for Contempt. This case proceeded to trial and trial wasconducted on November 8,2O1O, November 9, 2010, November 10,2AlA and December 28,2O7O.On October 4, 2OlO the Landing filed a Motion for a PreliminaryInjunction and in support thereof filed the Affidavit of CharlesSchnitzlein.After completion of trial, the Court (Cutler, J.) on January Ig, 2O7lallowed the Motion for Preiiminary Injunction and ordered theDefendant, Marina, to immediately cause a removal of all boats andall related equipment, vehicies, and structures stored within theportion of the twenty foot wide Erosion Controi Easement areaextending adjacent to the 630 t foot long retaining wall, which theMarina constructed between 2008 and 2009 with said removal to becompleted no later than 5:O0 p.m. on February 19,2017. The Judgefurther ordered that the Marina, its officers, agents, servants, andemployees are enjoined from using said area for storage purposes ofany kind until further order of this Court.

PROPERTIES AND EASEMENTS18. The Landing at South Park Condominium was created by a MasterDeed dated September 25, 1987 and recorded in'the Bristol County,Fall River District, Registry of Deeds in Book 1881, Page 133.Amended Complaint 11 5 and Defendant's Amended Answer toPlaintiffs Amended Counterclaim. I

The Marina property consists of 3.1 t acres of shorefront land locatedin an industrial zoning ciistrict on the easterly shore of Mount Hope' An1,references stated after any'finding of fact are the sLrpporting authoritv in the record. Any referencemade to tlre Amended Complaint and Ansrver to the Anrended Complaint r.r,ould indicate an admission to theallegation. Any references to the trialtrar:script are denoted {Tr. l- } of day one trialtranscript r.vith theArabic numeral referringto the page in the trialtrarrscript where it cart be located. Days 2.3, and 4 of thetrial are referenced as Tr. 2-, Tr. 3-, and Tr. .:l-, for da1's 2. 3, and 4 respectil'ely. Any reference to trialerhibits is denoted as Tr. Exh. with the Arabic nnlneral referritt,g to the particular trial exhibit.

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Bay about one-half mile south of the Braga Bridge. AmendedComplaint fl 6.The Landing property consists of 7 .73 x acres of upiand abutting theMarina property along a common property line 1 ,934 + feet in length.Amended ComplaintnT.As of July 29,1986 all of the land now comprising both the Marinaproperty and the Landing property was owned by the Green RiverRealty Trust. Amended Complaint fl 9.On or about July 29, 1986 the Green River Realty Trust divided theland into three lots identified as Lots 1 ,2, and 3. Lots 1 and 2 arenow the Landing property and Lot 3 is the Marina property.Amended Cornplaint 1i 10.On September 30, 1986, the Green River Realty Trust conveyed Lot 3,comprising 3.5+ acres, to John C. Lund and Brian R. Corey, by deedrecorded in the Fall River Registry in Book L724, Page 301. Thisconveyance was made subject to two easements for the benefit of LotsI and 2, set forth in the deed to Lot 3 as follows:

"Subject to a vistlal easement for the benefit of Lot 1 and Lot2 on that plan of iand hereinabove mentioned under the termsof which no structure shall be erected above nineteen (19) feetMean Sea Level on that portion of Lot 3 directly to the west ofLot 1 and Lot 2. Excluded from the definition of structure andpermitted above nineteen (19) feet Mean Sea Level shall bepilings supporting floats and piers, hvac exhausts andlorintake which shall be reasonably screened, trees, shrubbery,picnic tables and things of like nature and subject further toa twenty {2Of foot wide easement for the benefit of Lots 1 and2 for construction and maintenance of drainage system andfor construction and maintenance of a sloped, gradederosion and flood protection barrier." (Emph. added)Amended Complaint fl 11; Tr. Exh. 1

On September 30, 1986 the Green River Realty Trust conveyed Lots Iand 2, comprising of 7.73x acres) to the Landing at South Park, Inc.,a Massachusetts business corporation, by a deed recorded in the FallRiver Registry in Book 1724, Page 303. This conveyance included therights of trnro easements over Lot 3 for the benefit of Lots 1 and 2, setforth in said deed which provided as follows:"Appurtenant to this conveyance is the benefit of a visualeasernent over a portion of Lot 3 on that plan of land

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hereinabove described under the terms of which no structureshall be erected nineteen (19) feet above Mean Sea Level onthat portion of Lot 3 directly to the west of Lot 1 and Lot2.Excluded from the definition of structure and permitted abovenineteen (19) feet Mean Sea Level shail be pilings supportingpiers and floats, hvac exhausts andf or intakes, which shall bereasonably screened, trees, shrubbery, picnic tables and thingsof a like nature and an easement for construction andmaintenance of a public walk way bicycle path, forconstruction and maintenance of a drainage system and forconstruction and maintenance of a sloped, graded erosionand flood protection barrier." (Emph. added). AmendedComplaint\ L2; Tr. Exh.2.

On September 30, 1986, John C. Lund and Brian R. Corey, asowners of Lot 3, granted a perpetual view easement (the "VisualEasement") to the Landing at South Park, Inc., the then owner of theLanding property and its successors, assigns, and lessees. SaidVisual Easement was recorded in the Fa1l River Registry in Book1724, Page 306. Amended Complaint fl 13, Tr. Exh.4.Said Visual Easement provided that the grant was "the followingperpetual right and easement, in connection with the construction of140 condominium units on the premises directly to the west of thepremises herein described, which shall run with the premises ashereinafter described for a view unobstructed by any stmcture in thearea 19 feet above Mean Sea Level on the premises being boundedand described as follows:A parcei of land in Fal1 River, Massachusetts, located on the rn'esterlyside of Almond Street, bounded and described as foilows, running:WESTERLY: south 59" : 53'- 55" West to the MountHope Bay; chance runningSOUTHWESTERLY: along the Mount Hope Bay to land now orformerly of the King Phillip Boat Club;chance runningEASTERLY: by land now or formerly of King Phillip BoatClub 96.44 feet; chance runningNORTHEASTERLY: by lot 1 and lot 2 on the plan hereinafterdescribed to the point of beginning as hereinspecified.


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Being a portion of Lot # 3 on that pian of land entitled: "Division ofLand in Fall River, Massachusetts belonging to Green River RealtyTrust Scale: 1" : 8O' Date: July 14, 7986, Prepared by: Site WorkAssociates, Inc. , 25I Bank Street, Fall River, Massachusetts",recorded with the Bristol County Fall River Registry of Deeds in PlanBook 79, Page 5O as deeded to Grantor by Instrument No. 15885recorded with said Registry of Deeds on October 1, 1986.

Excluded from the definition of the term structure as used inthis Visuai Easement and expressly permitted to occupy the area 19feet above Mean Sea Level on the premises are pilings, supportingpiers and floats, hvac exhausts andf or intakes which are reasonablescreened, trees, shrubbery and picnic tables." Amended Compiaint 1l13, Tr. Exh.4.Said legai description and the plan referenced thereto establishedthat the vast majority of the Marina's property and all of the Marina'sproperty that is due west (toward Mount Hope Bay) of the Landingproperty was subject to and burdened by the Visual Easement. Tr.Exh. 4 and 16.Both the Visual Easement contained in the deed dated September 30,1986 recorded at Book L724, Page 301 and the Visual Easementrecorded at Book 1724, Page 306 provide a view easement for thebenefit of the Landing and which burdens the property of the Marina.There are, however, differences in these two easements. The VisualEasement recorded at Book 1724, Page 306 includes language whichthe other easement does not, that the grant of the Visual Easement isa "perpetual right and easement, in connection with the constructionof 14O condominium units on the premises directly to west of thepremises herein described, ..., for a view unobstructed by structurein the area 19 feet above Mean Sea Level on the premises (boundedand described)." The Visuai Easement at Book 1724, Page 306 alsospeci{ically describes that portion of the Marina's property which issubject to the easement. Tr. Exh. 1 and 4.On September 30, 1986 John C. Lund and Brian R. Corey grantedthe Landing a perpetual twenty (20) foot wide drainage, erosion andflood protection easement (the "Erosion Control Easement") locatedalong the entire common property line between the Landing and theMarina. Said Easement was recorded in the Fall River Registry inBook 1724,Page 327. Amended Complaint 11 15, Tr. Exh. 5.Said Erosion Control Easement which was granted to the Landing atSouth Park, Inc. its successors, assigns, and lessees provides asfollows:

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"The following perpetual right and easement, in connectionwith the construction of a 14A condominium units on thepremises immediately adjacent to the premises hereindescribed, which shall run with the premises, as hereinafterdescribred, for construction and maintenance of a public walkway and bicycle path, for construction and maintenance ofdrainage systems and for construction and maintenance of asloped, graded erosion and flood protection barrier, boundedand described as follows; provided, however, that this right andeasement herein granted is not intended to preclude theGrantor, its successors or assigns, or others so entitled fromusing the premises hereby conveyed so long as such use doesnot interfere with the exercise of this right and easement..,' Tr,Exh. 5.

The location of the 2O'wide Erosion Control Easement is definitivelylocated both by the metes and bounds description contained in theeasement and by the plan attached thereto. Said 20'wide easementextends from Almond Street on the northerly end of the Landingproperty to the far southerly end of the Landing property near CiubStreet and extends along the entire portion of the common boundaryline between the Landing and Marina properties with the 2O'wideeasement extending2A'in a westerly direction toward Mount HopeBay from said common boundary line onto the Marina property. Tr.Exh. 5.On July 25, L989 John C. Lund and Brian R. Corey conveyed 3.1 tacres (Lot 3) to the Defendant herein, Borden Light Marina, Inc. bydeed recorded in Fall River Registry in Book 2I3O, Page 5. Tr. Exh.9.2

DEVELOPMENT OF THE PROPERTIESIn 1986, at the time of the execution of the easements at issue, theLanding property was situated at the top of a coastal bluffoverlooking Mount Hope Bay. The Marina propert5r was situated atthe bottom of the bluff and adjoined Mount Hope Bay. Tr. 4:67-68.Prior to the grant of the easements, the development plan was thatMarina properiy was to be developed as a Marina and the Landingproperty developed with the construction of a 14O condominiumunits. Tr. 2:97.

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t John C. Lund at that time rvas the President of Borden Light Marina, Inc. John C. Lund and Brian R.Corev. rvlro r.vere then larv paftners rvere the trvo shareholders of the Marina.


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35. Commencing in 1987 Keith Development, the developer of theLanding condominium compiex, began construction of thecondominium cornplex. Tr. 4: 72-73, 84.36. From Septembe r of 1987 to Augus t lgg4 the Landing condominiurnwas constructed in phases to include 14O condominium units and 13buildings plus a clubhouse and outdoor swimming pool.37. The condominium buildings were constructed and, particularly,building numbers 3, 4, 5, 6, 7, 8, 10, and 1 1 near the edge of thesteep coastal bank that sloped down to the Marina property. Tr. Exh.21"38. The development of the Marina initially commenced primarily on thenortherly end of its property. Tr. 4: 8O-81 . .39. The Marina property has been in operation since 1989.40" Since 1989 the Marina has expanded its operation by expanding itsoperation in a southerly direction. Tr. 3: 168.

PURPOSE OF EASEMENTS4I. The obvious purpose of the Visual Easement and the graded slopedeasement was to a1low the potentially conflicting uses of theseadjoining properties, a marina and a residential condominiumcomplex, to co-exist in a harmonious manner.42. To that end the Visual Easement was granted so that the residence ofthe Landing would have unobstructed views of Mount Hope Bay. Tr.Exh. 4.43. The approximate elevation of the Landing propert5r is 19' Mean SeaLevel. Tr. Exh. 21.44. The elevation of the Marina property is approximately 10'Mean SeaLevel. Tr. 3: 150.45" By granting a Visuai Easement that prohibits the erection of anystructure in excess of 19'Mean Sea Level the parties intended thatthe view owned by the residents of the Landing at Mount Hope Bayrn'ould not be obstructed by any structure higher than the elevation ofthe Landing propertv.


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46. Similarly, t]ne 2a' graced sloped easement was fashioned to preservethe natural sloped coastal bank that existed along the boundaries ofthese two properties and also to provide a buffer between theproperties. Tr. Exh. 34- 9, 12; Tr. Exh. 5.The coastal bank protected in the Erosion Controi Easement was toprovide The Landing with an area for the construction andmaintenance of a drainage system and for construction andmaintenance of the sloped graded bank for erosion and floodprotection barrier.

RETAINING WALLSSince 1987 11988 certain retaining walls have been constructed inthe vicini$ of the common boundary between the Landing's andMarina's property. Tr. 3: 120.Prior to 1999 only limited areas of retaining walls had beenconstructed. In 1988 the first wall was constructed toward themiddle of the property and the second retaining wall at the northerlyend of the property in front of buiidings 10 and 11 and then therewas a small section of block wall that constructed around building 4.All of these walls were constructed around 198s 11989. The first wallwas built, or expanded, by Keith Development, the developer of TheLanding, exercising its rights within the sloped, graded easement. Tr.1:104-1O5; Tr 4:83-84.Disputes arose between the Landing and the Marina relative to theVisual Easement and Erosion Control Easement which led to thefiling of this Complaint in 1999.The coastal bank at the Marina site formed the seaward face of theelevated land form on which the Landing buildings were built. and itis the land form that provides the Landing property with protectionfrom coastal storm damage due to storm waves and elevated stormqraters.In May 2000 the Marina performed substantial excavation work inthe coastal bank within the 20'easement. The total length of thebank disturbed between building 5 and the Association su'immingpool between building 6 was approximately 275 feet. Pleadings andAffidavits in support of 2000 Preliminary Injunction.Based on said excavation and other activities, the Landing filed aMotion for Preliminary Injunction in this action. This Court entered aPreliminary Injunction dated May 23,2000 which prohibited Borden

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Light Marina, its offices, agents, servants, and employees fromengaging in any construction within the 20'Erosion ControlEasement area. Tr. Exh. 15.54. Said action in seeking the Preliminary Injunction shows anaffirmative act by the Landing to protect its rights afforded to it bythe Erosion Control Easement and Visual Easement.55. Despite the injunction, Borden Light Marina in 2OO2 erected a sheetmetal pile wall. Said wall was erected in the area where theexcavation had occurred and which had precipitated the injunction.Tr. 4:94.56. Prior to erecting the sheet metal pile wall, there were discussionsbetween the Marina and the Landing relative to the erection of thiswall. The Marina made a proposal to the Landing to erect this walland, specifically referenced the need to modify the PreliminaryInjunction. Tr. Exh. 28;Tr.4:90.57. The Landing responded to this proposal with a counterproposal butsaid counterproposal was never executed by the Marina nor did theMarina ever obtain court approval to erect the sheet metal pile wall.Tr. Exh. 29;Tr.4: 106-107, 118.58. The proposal agreements only dealt with this sheet metai pile wallsection. Tr. 4: 113.59. In 2008 and in 2OO9 the Marina excavated an approximate 63O'ofthe coastal bank toward the southerly end of the Landing property.Said excavation work extended from an area in front of building 3 tobuilding 6. Prior to said excavation there was a natural sloped gradederosion and flood protection barrier. An additional block wall whichextended approximately 2OA l25O feet was erected in the back ofbuilding 7 toward building 6. Tr. 2:197.60. Eight of the Landings condominium buildings are at least partiallysituated on the westerly end of the Landing propert5r near the edge ofthe bank sloping dor,r'n to the Marina property. Said buildingsstarting on the southerllr end of the property consist of Buildings 3,4, 5, 6,7, 8, 10, and 1 1. Tr. Exh. 21.61. The walls constructed by the Marina in the vicinity of the commonboundary line between the Marina's property and the Landing'sproperty and which are iocated within the 20'wide Erosion ControlEasement consists of a poured concrete wall extending from thenortheriy portion of the Landing property in front of building 11 and

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extending and ending in the approximate middle of building 10. A12'shoring wall, also referred to as a sheet metal wall, extending pastbuitding 10 an additional concrete retaining wall extending frorrrbuilding 7 past building 6 and then a concrete biock wall that wasconstructed in 2008 andf or 2009 that extends from building 5 pastbuildings 4 and 3 to the far southerly end of the Landing property.Tr. E,xh. 21.All of the walls constructed extend above 19 MSL. Tr. Ex]n. 21.

63. The concrete block wall constructed in 2Oa812009 is approximately20 MSL in front of building 5 and rises to in excess of 24'MSL infront of building 3. Tr. Exh. 2164. Certain sections of the wall, particularly the walls along the farnortherly portion of the Landing property, were constructed in thelate 1980's at or about the time of the development of the Marina andthe Landing properties. The section of wall seaward of buildings i0and 11 was partially built by Keith Development within the 2O'graded sloped easement. These portions of the walls are not at issuein this case. Tr. 4:80-84.65. Prior to 7999 other than the northerly section of the wall constructedin the late 1980's and the construction of the sheet metal pile wall,the remainder and vast majority of the boundary line between theLanding and Marina properties consisted of a vegetated sloped bankwhich extended from the Landing property at approximately 19 MSLgradually down to approximate elevation of 1O MSL at the Marinaproperty. II:184-188; Tr. Exh. 34-14-16.66, The sloped bank, particularly in front of buildings 3 through 5, washeavily vegetated and sloped from the Landing property down towardthe waters edge. It served as a vertical buffer that protected theLanding buildings by providing a vegetated sloped landforrn thatwould have intercepted any storm waves during coastal storm events.-Sterling Wall Depo Trns, pp 54-55.; Tr. Exh. 34-16.67. The wal1 construction removed a volume of material from the coastaibank, bringing the top of seaward face of the landform 10' closer tothe Landing Buildings, and its base 15' closer. Sterling Wall Trns, p69-70.

The significance of the previousiy existing sloped coastal bank u'asthat the coastal bank served to disperse wave ener5/ in a mannerdifferent from a vertical wall. Sterling Wal1, Trns p55.68.

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The excavation of the coastal bank and construction of a vertical wallallows storm waves to come closer to the Landing's buildings. S WallTrns p 63-6a.In the event of a 100 year storm event, waves will break either on thewail vertical surface, or overtop the in'all and then scour out sedimentfrom the top of and behind the wall. Sterling Wall Trns p64-65.The sloped vegetated coastai bank provided a seaward face thatwould keep storm waters further distant from the Landing Buildingsas compared to the wall, and would have dissipated wave energymore effectively in both more frequent but lower intensity storms,such as 20 year and 2O year storms, as well as in the larger i00 yearstorm events. Sterling Wall Trn, p7O-7L.In 2OO0 the Marina performed substantial excavation of the slopedvegetated bank in the vicinity of the Landing buildings 5 and 6. Thissubstantial excavation was performed in the coastal bank within the20'drainage and erosion/flood protection easement. The total lengthof the active work area between building 5 and the Landingswimming pool was about 45O'but abouL I75'of the bank oppositebuilding 6 in the work area was not disturbed due to the presence ofa previously built concrete retaining wall. In this area the Marinaconstructed a section of wall. This excavation and the erection ofwall was within the 20'wide Erosion Control Easement. Affidavit ofW. Sterling Wall in Support of Motion for Preliminary InjunctionIt was based on this excavation that the Landing filed t-he Motion forPreliminary Injunction r,r'ith this Court in 2000.On May 23,2OOA this Court (Kilborn, J.) issued a PreliminaryInjunction dated May 23,2000 which enjoined Defendant, BordenLight Marina, inc. and its offices, agents, servants, and employeesfrom certain activity including engaging in construction within theErosion Control Easement. Tr. Exh. 15.In 2OO2 the Marina instituted discussions with the Landing andmade a proposal to add an additional 1O0'of sheet metal pile wall asa continuation of the sheet metal wail that had been constructed in1988. Tr. Exh.28.In said proposal, the Marina acknowiedged that there was a Courtissued injunction preventing it from working u'ithin the 20'ErosionControl Easement and recognized that to the extent any Agreement

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\ ras reached with the Landing that said injunction would have to bemodified. Tr. Exh. 28.On October 10, 2OA2 the Landing responded to said proposal andmade a counterproposal which provided that if the Counterproposalwas accepted then the Landing would be agreeable to modifying theInjunction to allow this approximately 100' section of sheet metal pilewall. Tr. Exh. 29.Though this counterproposal was never agreed to and though theInjunction was never modified, the Marina in 2OO2 erected the"ddition"l section of sheet metal pile wall. Tr. 4: 106- 107, 118'This court finds that the Landing's acquiescence, if any, to theerection of this 100' sheet metal pile wall in 2AA2 was based on theunderstanding that there was an agreement of the parties with thefurther understanding that the Marina would request a modificationon the Preliminary Injunction' Tr. Exhs. 28 & 29 'In 2O06 the parties, once again, entered into settlement discussions.The parties executed a Settiement Agreement on or about March 22,2006. At the time of the Settlement Agreement the Marina had madean application to the Fall River zoning Board of Appeals forpermission to construct a new 15 story buiiding with said proposedtuilding to be erected. north of the Landing property next to AlmondStreet. Tr. Exh. 39; II:183.The Settlement Agreement, if effectuated, would have resoived anumber of the disputes involving the parties including the resolutionof the litigation. If the Marina obtained approval of the projectincluding the erection of the 15 story building (trigger event) then theMarina would pay to the Landing the sum of $200,000.00 and alsowould construct several additional sheet metal piling retaining wallsat agreed upon locations, and also would be allowed to construct an"..."" way for pedestrian and vehicle traffic between building 3 andthe southerly 614 of the common boundary between the Marina andLanding property. Tr. Exh. 39.In 2006, prior to the accomplishment of the trigger event, the Marina,urithout permission erected an approximate 2OA l25O' block wa1lextending from the back of building 7 going south toward building 6'Tr.2: 197.Said construction included the excavation of the coastal bank andthe erection of this conci'ete block wall. The Marina never asked for

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any permission nor was it granted any permission to erect said wallTr. 1:66.Prior to the construction, John Lund told Bert Bouffard, the thenChairman of the Board that the area was his and he could do whathe wanted and that he was actually doing the Landing a favor andthat if the Landing ciid not go aiong the Marina would take apart thepool wall and just take everything out. Tr. l: 67 .In 20A6 the Landing was not represented by counsel in the litigationand was not aware of the issues involved in the litigation includingthe Preliminary Injunction issued by the Court in 2000 Tr.2: I92-193.The Landing did not object to the excavation and wali construction in2006 because of its members of the Trustees' lack of knowledgerelative to its rights involving the easements and the Land Courtlitigation, and because the parties had entered into a SettlementAgreement in 2006 and the Landing was attempting to liveharmoniously with the Marina. Tt- 2:193.The trigger event never occurred and the Settlement Agreementexpired under its own terms' Tr. Exh' 39; Tr. 2:L94,197.In 2OO8 the Marina then began additional construction on thesoutheriy end of the Landing property. Charles Schnitzlein, the thenChairman of the Landing Board first noticed the construction onemorning when he woke up and a construction company hired by theMarina was performing excavation work near the southerly portion ofthe Landing property and was excavating out the Landing's guestparking iot. Not only had the Landing not authorized this excavation,it had not even been informed in any way that this construction workwas going to be occurring. Tr. 2:198.The construction that took place in 2008 and 2009 included theexcavation of the coastal bank on the southerly end of the Landingproperty and particularly near the boundary of the King Phiilip BoatClub in which a roadwav for vehicular traffic was erected down to theMarina property and t approximately 630' of coastal bank in front ofbuildings 3, 4, and 5 was excavated. Said excavation was in excessof one-third. t',t'l of the length of the easement area. Tr' Exh' 5'Prior to the construction, the area r'l'est of buildings 3, 4, and 5included a sloped vegetated graded bank that extended down torn'ardthe water. After the excavation the sioped graded bank was

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9t.eliminated and a concrete block wall was constructed. Tr. 2: 2O5-208.This sloped graded vegetated bank provided erosion and flood controlprotection to the Landing. Tr.2:2O6-2O8.In addition, the sloped vegetated bank also provided natural drainagecoming off the property down into the Bay and also contained adrainage system with pipes that went into catch basins and provideda location for a portion of the Landing's drainage system. Tr. 2: 2A6.The excavation by BLM ripped out the Landing's drainage pipes andportions of the drainage system ceased to exist. Tr. 2: 206-207.During the excavation process the Marina trespassed onto theLanding property and excavated a portion of its property and most ofthe 20'wide Erosion Control Easement. Tr. 2:2O8.In some places all of the twenty foot easement was excavated. Tr. 2:206-207.After the excavation and wall construction, the Landing could makeno use of the easement. Tr. 2: 2O8.After the construction commenced in 2008 the Landing tooknumerous steps to express its concerns. In May 2008 members ofthe Board of the Landing met with Michael Lund, the then Presidentof the Marina, and expressed their objections and concerns. Tr. 1:72. The Board, through its Chairman, made complaints to theBuilding inspector, the Mayor's office, the Plumbing Inspector,members of the Conservation Commission, and also to DEP. Tr.1:102- 108.While the building inspector acknowledged that the walls wereconstructed withJut a permit, the building inspector refused to takeany action until the Landing had the propert5r surveyed. Based onthe direction of the building inspector, the Landing had Mount HopeEngineering perform a survey of its property. Tr- 1:1O5, 109.The Landing then contacted and hired Attorney Matthew Watsky,who investigated the situation in 2OO9 and determined that the LandCourt litigation was still active and that the Preliminary Injunctionissued in 2000 remained in full force and effect. Tr. 1: 109. Prior toobtaining said information from Attorney Watsky in 2009 ths f2nclinowas not aware that the Preliminary Injunction was in effect. Tr. 1:110. Until the Landing obtained the information from Attorney

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\ /all, there were no such discussions after Michael Lund becamePresident of the Marina tn 2OO7. Tr. 4: L16'l08. In constructing the rvall, the Marina did not hire any structuralengineer or any other expert to dsign or provide engineeringmonitoring of the construction of the wall. Tr. 4: 133.109. The wall was not constructed in accordance with proper engineeringpractices and the wal1 is unstable and over a period of time will fall.Tr. 1:181.110. Based on meastlrements, Donaid Leffert, a structural engineerdetermined that the wall has already moved laterally further verifyingthe lack of its stabiliW. Tr. 1:784'1 1 l. Based on test pits, Donald Leffert determined that there was, at themost, 2' of geo-fabric extending into the soil and this amount was notadequate . Tt. 2: 5O-51.I12. In addition, based on the amount of geo-grid purchased by theMarina, there was not a sufficient quantity of geo-grid to fulfill thestability requirements and, in fact, mathematically, the amountpurchased would only provide a little over 3' of material per layer forthe entire wali and only I' of fabric into the soil. The actual amountof geo-fabric required in order to provide stability to this retaining*rall *ould require 7-9' in iength in per block. Tr.2: 53-54'113. With the inadequate amount of geo-fabric there is not enoughstability to maintain a stable siope for the wall and the wall willbecome progressively more unstable, the soil will continue to fill, andthere will be settlement of the soil until there comes a point when thewal1 is totallv unstable, will faii and fall over. Tr. 2: 55.II4. In contrast to other walls constructed since 1990 the excavation andwall construction in 2OO8l20O9 was in close proximity to theLanding buildings.115. The southerly end of building 3 is only 9' to the face of the wall. Tr'1: 19O-191;Tr. Exh.21.i 16" The wall on the southerly end of building 3 is located on the propertyof the Landing. Tr- 1: 191.II7. The southwest corners of buildings 4 and 5 are only 9' from theretaining wall' Tr' 1: 192'

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I i8. Other than the portion of the wall that was erected on the Landingproperry, the remaining portions of the wall are all located within theErosion Control Easement. Tr' i: 193'l lg. All of the walls constructed by the Marina are located within theErosion Control Easement, other than those that are built on andtrespassing on the Landing's property' Tr' 1: 195'L2O. Block retaining walls are required to be part of a fuliy engineeredsystem. A retaining wall of 10 feet in height according to theMassachusetts Building Code is required to have an engineereddesign by a registered professional engineer, civil engineer, orstructural engineer, or a geotechnical engineer. Tr" 2: 130, 131.121. The concrete block wall constructed by the Marina was not inaccordance with an engineered plan and no plan was drawn prior tothe erection of said wall. Because of the Marina's failure to have aproperly engineered and constructed wall, the wal1 has already moved

"na tft" blocks have become misplaced and misaligned- A properlydesigned wall would not have the type of misaligned blocks that havebeen observed. Tr.2: l3I-132.122. The Massachusetts State Building code, 7thrE,d., $ 1806.4 forretaining wali design states: "Retaining walls that supportunbalanced height of retaining material greater than six feet in anyretaining system or slope that could impact public safety or thestability of an adjacent structure shall be designed by a registereddesign professional." Tr.2:L33. Don Leffertleffert, a registeredprofessional engineer retained by the Landing, and James Holmes, anengineer retained by the Landing's insurer, opined that the wall wasnot properly built. In particular, blocks were misaligned, and therewas an inadequate amount of geo-grid installed in order to supportthe wall. Geo-grid is a type of structural fabric that is essential for aproperly engineered concrete block wall to have adequate support "Tr.2: 136.I23. Based on the improper and faulty construction of the wali, both DonLeffert and James Holmes concluded that the wall must be removedand replaced u'ith a properly constructed wali or that the hillside bebrought back to its original condition. Leffert conciuded therestoration of the sloped, graded vegetated condition was feasible andthe preferable remedy. Tr' 2: 139; Tr' 7:2O1'124. in contrast to the testimony of two expert witnesses calied by theLanding, the Marina did not call any expert rn'itness to testify as tothe structural integrity of the wa1l. As part of the records of the Fall

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River Building inspector there is correspondence dated April 22,2OIAfrom the Marina's engineer, Robert A. Guay, who acknowledged that"[t]he section of wal1 between station 40 and 8O is higher-than theexisting design of the wal1 will allow and there is no geo-fabric at eachlevel of block. The wall in this section will have to be taken down...'Tr. Exh. 22.725. Given the restrictions on the site, such as the wall's close proximityto the property lines of the Landing, a conventional type retainingwall cannot be constructed without going onto the Landing propertyline, and as such, the only way to rectify the problem would be torestore the entire si.te back to its original grades. Tr. I : 2AL.126. Also under the State Code, during construction there would be

controlled construction procedures in which the engineer would haveto provide onsite services to observe the construction of the wail tomake sure it conforms to the plans and specifications that were laidout by the engineer' Tr. 1 : 2O9 '727. The wall constructed is vertical and, as such, is not sloped' Tr' 1:209.12g. The existing wall was determined to be unstable and over time willfail to stay vertical which wiLl cause a gradual loss of soil from theLand.ing's property into and toward the Mount Hope Bay" Tr- 1: 181'l2g. Relative to flood control, based on the vertical surface of the wall andund.er wave loads from hurricane forces, the waves wiil be verydamaging to thi.s wall and the waves could break over the wall andcause serious erosi.on behind it. In the event that the wall were to faiithe breaking of the waves would be occurring closer to the buildingsand the *.ne" will continue to go into the embankment and possiblydamage the buildings- Tr- 1: 182- 183'130. In order to restore stability to the slope and provide erosion controland flood protection, it was Donald Leffert's opinion that the logical

and best alternative would be to restore the embankment as it wasoriginally. Tr- 2:46.VIOLATION OF EASEMENTS

131. From an engineering perspective, a slope/graded erosion control andflood protection barrieruvouid be of graded materiai that has a slopeto it any.where from 1" to 89". Relative to the Erosion ControlEasement which provides for the construction and maintenance ofsioped graded erosion control and flood protection barrier, theI r-l


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common usage of the terms sloped and graded, and the clear intentwas to have a natural graded bank and not a concrete block wali.The slope was graded soon after the Landing buildings and BLM wetehrst developed in the late 1980s, and the slope is visible in thephotographs. Tr.2: 48.

I32. From an engineering perspective the natural vegetated bank thatexisted prior to the excavation and erection of the wa1l, constituted asloped and graded area. Tr. 2: 49.133. The wa}] as constructed would not provide adequate flood protectionand with the wall not being stable there will be a serious erosionproblem within the material behind the wall' Tr' 2:56'134. The prior existing naturaL vegetated bank was consistent with theterm graded. slope as contained in the Easement. Tr. 2: 58.13S. The benefit to a sloped surface such as the natural coastal bankversu.s a vertical retaining wall is that a large amount of the waveforce can be d.issipated as it travels along the sloped surface andabsorbed by the material itself. Tr' 2: 59'136. The Marina's purpose in excavating the coastal bank and in instaliingretaining walls was to expand its base of operations. The Marina is afull service marina which was initially developed along the northerly

end of the property. As an all purpose marina it also provides itscustomers with winter boat storage- Tr. 4: 68'I3T. The winter storage operalion of the Marina includes hauling theboats out of the water and placing them in a location for winterstorage. This part of the process cornmences in early October untilDecember- In March through June many, though not all of the boatsare then removed from winter storage and placed back in the water.Tr. 3: 747-I5O.13g" Since 20OO the Marina has installed a Marine Travel Lift, which is a

straddle-hoist crane to move the boats. Tr. 3: 136-137.139. The Marina's operation has expanded dramatically since thecommencement of its operation in 1988. Initially the Marina hadapproximately 70 slips and stored approximately 25 boats on land.The Marina has now expanded to 2601270 slips and as the Marinahas expanded so has the winter storage. Initially, the boats werestored on the northerly end of the property. As the Marina hasexcavated portions of the coastai bank and erected walls, it hasexpanded the amount and location of its winter storage. During the20


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\^,inter storage period of October 2AO9 through June 2AIO the boatshave been *6r.a on ali available land including in the vicinity of theretaining walls' Tr. 3: 138-14O,I48'I4O. The expansion of the Marina's winter storage operation hasprogressively intrud,ed on and impacted the Landing. The lift that isutilized rs 22'high. Where the Marina's property is level withelevation 10 MSL, the travel lift extends approximately 12' over the19' MSL provided for in the visual Easement. Tr. 3: 15O.14I. When the boats are stored in winter storage they are placed onstanchions with their hull located off the ground. Tr. l: 78, Tr' Exh.31 M, N, and T'142. The area utilized by the Marina for winter storage after thecompletion of the wall in 2OO9 was dramatically different than theareas previously used for winter storage by the Marina; the boats hadbeen stored on the water side and not in ciose proximity to thebuildings. Tr. l:77-78. With the new storage, the boats are largerand have been placed directly against the constructed retaining walland in close proximity to the buildings. Tr. 1 : 79; Tr- Exh. 32 G, H, I,and J.143. The stored boats are often shrink-wrapped with a non-transparentmaterial which further obstrrrcts the view from the Landing property'

Tr. Exh. 32.I44. The elevation of the wall constructed in the vicinity of buildings 3through 5 ranges from approximatgly 2^O'.- 24" MSL' The boats thatare stored theie far exceed the height of the wall and all extendbeyond 19' MSL' Tr. Exhs' 21,32 X, Y, Z' AA'U'145. The stored boats on stanchions, the concrete biock retaining wall,and the travel lift, all constitute structures within the meaning of theVisual Easement. Tr' trxh' 4'146. The purpose of the visual Easement was to provide residents of thelanamg with unobstructed vieu's of the water, Mount Hope Bay'I47 . The storage of these large boats and the utilization of the travel liftobstructtheviewoftheresidentsoftheLanding.148. At the time of the grant of the Visual Easement, the Marina plannedto store boats on its property' Tr' 4:68'

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l4g. While other objects such as trees and picnic tablesfrom the definition of structure the Marina did notfrom the definition of structure, though it certainlyso. Tr. Exh. 5'were excludedexclude boatscould have done

150. Mount Hope Engineering is an engineering firm that has beenretained at various times by both the Landing and the Marina'151. A plan dated october 29, Iggg prepared for the Landing by-l\4ountHope Engineering, initiaity indicated that certain sections of thebalconies on building 11 may encroach up to 2.3'. Tr. 3: 72-73.L52. Mount Hope Engineering was retained by the Landing in 2009specifically to do a survey of the property' Tr' 1:153. Mount Hope Engineering, based on the survey that was done in 2009determined thainone of building 1O encroached on the Marinaproperty and that an air conditioning pad on building 11 also doesnot encroach. Tr. Exh. 21. When Mount Hope Engineeringperformed their survey in 200O they instailed monuments with a drillhole every 200' and every change of direction. No such permanentmonumentation was utilized in the 1999 survey' Tr' 3: 80-8i.154. The compiete survey performed in 2oa9 with permanentmonumentations did not reveal any encroachments of the Landing'sbuildings reiative to the Marina property. Tr' 3: 83, 88; Tr' Exh' 43'

CONTEMPT155. The preliminary injunction dated May 23,2OOO was a clear anunequivocal order'156. At the time of the issuance of said injunction the Marina wasrepresented by Attorney Edward Brennan and the Marina remained

continuously iepresented by Attorney Brennan thereafter- Tr. 4: IO4"lST. John Lund testified and admitted that the preliminary injunction wasa clear order and that he at all times that he understood the order.Tr.4: IO4'158. The Marina understood and acknorn'ledged that the injunctionprohibited any construction work from being performed ivithin theiwenty foot easement area and that the Marina, in direct violation of

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the injunction, performed construction work within the twenty footeasement area. Tr.4: 1O4.159. John Lund is a graduate of Boston University School of Law, hasbeen a practicing attorney, and also an assistant clerk at the BristolSuperior Court in which he was involved with civil matters includingthe issuance of iniunctions. Tr.4: 105-106.160. He understood that injunctions issued by the court are in force andin effect unless they are modified by the court and was aware that hecould have requested through his attorney that the Court, at anytime from 2000 to the present modify or dissolve the injunction butdid not do so. Tr. 4: 106.161. The Marina, by excavating the coastal bank and erecting walls allwithin the twenty foot erosion controi easement committed a directand willfui violation of the preliminary injunction issued in 2000.

LACHES162. The Marina blatantly violated the 2000 Preliminary Injunction issuedby this Court in performing construction work within the twenty footeasement area and in erecting wails tn 2AO2, 2A06, and mostsignificantly in 2AOB I2OO9.163. The Marina performed excavations of a coastal bank without requiredapproval from DEP.164. Though building permits were required, the walls constructed by theMarina in 2AA2, 2AA6, and in 2OO8/2OO9 were constructed withoutobtaining a building permit from the City of Fall River.165. The Marina consistently bullied the members of the Board of theLanding by making untrue threats; such as, claiming that the poolarea was the property of the Marina and that if the Landing did notgo along with the Marina's plans that it would lose its pool area.166. The Marina failed to retain a structural engineer as required by theState Building Code to engineer the walls constructed.167. Based on these and other actions, the Marina had unclean handsand is not able to avail itself of the equitable defense of laches.168. The Landing did not delay in bringing suit in this case given that theLand Court case has been pending since 1999 '

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L6g. when the Marina excavated a portion of the coastal bank to erect aretaining wall in 2000 the Landing promptly brought this issue to thecourt's attention and as a result thereof this court

issued thePreliminary Injunction in May of 2000'

vA. The Marina cannot compiain that it was prejudiced by any inactivilyof the Landing in that the Marina at all times knew that its actionswere in violation of the Preliminary Injunction dated May, 2000 and, was well aware that it could have trought this issue to the attentionoftheCourtbymovingtomodifytheinjunction.171 . The Marina made a purposeful decision and a calculated risk not toseek a modification of a-preliminary injunction so that it would be

able to expand. its storage operations and realize a significanteconomic advantage'172. Given that there was a preliminary injunction in effect and that theMarina at all times knew that any excavation of the coastal bank andconstruction of retaining walls was a violation of the court order' itcould not possibly establish any alleged prejudicial delay of theLanding.L73. The Marina has failed to establish that it suffered any economicprejudice in that it has received income from the storage of boats

within the newly excavated areas and has realized income far inexcess of any costs incurred to excavate and build the walls'I74. The Marina has failed to meets its burden to establish prejudice giventhat it has presented no evidence to the court to establish that thestorage rees it has earned are less than the cost of construction andthe anticipated cost to remediate the violation by restoring the coastalbank'

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175. The Marina failed to present any evidencethat it would have acted

differently and would not have excavated the coastai bank anderected the walls absent any actions or inactions of the Landing'

ApriI29. 2OlIDate:

RespectfullY submitted,Landing at South Park Condominium Assn''Plaintiff,By their AttorneYs,LAW OFFICE OF DANIEL R. SEIGENBERG

{rA^./ {

30 Eastbrook Road, Suite 3O1Dedham, Massachusetts 02A26(7S1) 329-s009BBO # 546308

Daniel R. Seieefiberg,2 Commercial StreetSharon, MA 02067(781) 884-8800BBO # 451100

Matthew WatskY, Esqu

the landing request for findings of fact

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