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V <br /> r <br /> at the corner where the stairs are; boulders were placed most likely because of the erosion that was <br /> occurring in that corner. Attorney Costello states that there were boulders shown on the plan that was <br /> approved by the Concorm. Attorney Fogel states that in their view it was a misrepresentation to say that <br /> . there were existing boulders in the area where they are now placed. Attorney Fogel states that the <br /> problem with the bounders is that they now occupy beach and create high wave energy. Attorney Fuel <br /> states that the Commission could: through the action of an Amended Certificate of Compliance or <br /> Enforcement order to direct Bayswater to remove the boulders so that sand could core through all of <br /> the timbers. Agent McManus states that he recalls a meeting with woods Hole on site and part of the <br /> project was to dig back the bank to the original sands and that was where the boulders were. They <br /> were approximately 20-30' buried and Attorney Fogel agrees to the 20-30'feet of boulders in the <br /> corner. Attorney Fogel states that he heard Agent McManus say that he saw boulders approximately <br /> 2 -30' which he says is not in dipuite; there is a photo showing boulders out to 0' that are jaggered <br /> and erratic which the attorney says there were early discussions of taking the boulders that are not <br /> natural or existing and placing into the corner. Attorney Fogel states that the N01's. only reference is to <br /> eiting boulders that were to be replaced and out to only 20-30' in that corner. To bring this back into <br /> compliance with the approved plan, the boulders should be brought back.� Attorney Fogel sums up that <br /> Tidewatch's position as an abutter who has a beach easement on the property would choose between <br /> two ways of configuring the timbers in accordance with the approved plan which is to re-space thea or <br /> place spacers on therm and move the boulders back to the corner which would be consistent with the <br /> evidence of where boulders were; the last issue is the sand over the timbers. Chairman Fitzsimmons <br /> asks about the easement or entitlement and Attorney Fogel states that it is a beach easement that <br /> Tidewath owners have and gives access to the beach which goes down all the way to the golf course. <br /> Joe Colasuonno submits a photo to the Commission and states that the photo was taken by the <br /> engineer before the start of construction which he says clearly shows the rocks present. Each year <br /> they place beach nourishment which covers the rocks. Chairman Fitzsimmons asks why the rocks only <br /> go down part way and Mr. Colasuonno states that that is how far they go on the plan; the rocks that <br /> were there initially were a lot higher so when they spread therm out lengthwise, they had to keep the <br /> height down. Mr. Colasuonno states that the plan shows the rocks like that. <br /> Attorney Robert Mills asks if he could get some clarification as to why Bayswater was invited to <br /> tonight's meeting since he understood that from the previous minutes, there was a vote on July 26 I" to <br /> issue an Enforcement order and based on that Order, it was required to remove the 2 x 's and filter <br /> fabric. Attorney Mills confirms that they did remove the material but because there was no compliance <br /> date schedule, it was rescheduled to August. The attorney states that he thought at the August <br /> meeting, his understanding was to vote a compliance dame for the work that had already been <br /> completed; there was a vote taken but because Tidewater did not receive any actual constructive <br /> notice, the vote was withdrawn and tonight was just to formalize that vote. chairman Fitzsimmons <br /> states that they were advised by Town Counsel than they probably did not use the right procedure that <br /> day so they had to re-hear it. Attorney Costello says that he was not sure there was adequate notice <br /> posted properly for any action to be taken that night by the Commission. Attorney Mills says that he <br /> does not believe for an Enforcement Order that it needs to be posted or not and there is not any formal <br /> notice required to be given to any particular parties. Attorney Costello states that in order for a <br /> Commission to take action, they have to place notice on the agenda at least 48 hours in advance of <br /> what the post action will be; at least sufficient to alert potentially impacted parties on what matter will be <br /> discussed. Attorney Costello states than there was not any notice of action posted on than evening's <br /> agenda. <br /> Attorney Costello states the issues than he thought they had resolved through agreement apparently <br /> haven't been resolved so he had suggested to the Commission tonight to clear the air and let everyone <br /> have their say on the issues. To the extent of marking procedural issues, if any, if there are any rights t <br /> appeal which there may not be but that's to be decided on. The attorney says that his objective as <br /> Counsel for the Commission is to make sure that the Commission has all the relevant information so <br /> that they can make an informed decision. Attorney Mills states than he only asks for a point of order <br /> because it is a little disturbing when there are parties such as DEP that is a little dissatisfied with the <br />