After Court Ruling In Surfside Crossing Case, More Legal Filings And Pleas For Mediation

After a Superior Court judge overturned the state approval of the controversial Surfside Crossing condominium project earlier this month, its developers are taking one more shot at challenging that decision.

Last week in Nantucket Superior Court, Surfside Crossing attorney Paul Haverty filed a motion for reconsideration, asking Judge Mark Gildea to take another look at his ruling based on the assertion that two of the plaintiffs in the case, the opposition group Nantucket Tipping Point and the Nantucket Land Council, did not have standing to bring the complaint in the first place.

Meanwhile, the 13 acres at the Surfside Crossing construction site off South Shore Road remain barren and dormant, the Select Board is calling on the parties to participate in mediation, and project opponents are questioning whether they have some financial stake in the development.

"Nantucket Tipping Point responded to the Select Board’s request to mediate by asking for transparency in this important matter," Nantucket Tipping Point member Meghan Perry Glowacki told the Current. "The question that Nantucket Tipping Point asked of the town and the developers has been asked before and continues to go unanswered from both the town and the developer. The Select Board suggesting meditation when they had dropped out of the lawsuit and are no longer a party also raised more questions. The developers have not responded to the town if they would be involved in mediation but instead, the developers' answers came in the form of more litigation and saying Nantucket Tipping Point and Land Council have no standing, an issue that has been litigated. Another effort by these developers to try to silence the citizens of Nantucket. Clearly, the developers do not want anyone who cares for this island involved in this project."

Surfside Crossing developers Josh Posner and Jamie Feeley declined to comment but indicated they would be announcing their next steps in the case soon.

It was one year ago yesterday that Surfside Crossing's construction crews began clear-cutting the 13-acre property in preparation for the initial site work for the project under protest by project opponents. Despite the legal challenges they faced, developers proceeded with the work over 2023 on an "at-risk" basis, acknowledging the pending appeals but forging ahead nonetheless.

The Nantucket Land Council, the town of Nantucket, and a group of neighbors had appealed the state Housing Appeals Committee's approval of the project back in September 2022 and its ruling that Surfside Crossing's 156 condominium unit proposal under Chapter 40B did not constitute a "substantial change" from what had previously been approved by the Nantucket Zoning Board of Appeals: a scaled-down development of 60 units.

While the town ultimately dropped its appeal, the Nantucket Land Council and neighbors of Surfside Crossing continued their legal challenge. And on Jan. 3, Nantucket Superior Court judge Mark Gildea issued his ruling, calling the Housing Appeals Committee's decision "arbitrary, unreasonable, and inconsistent with the plain terms of the regulation itself" and stating that it was "plainly erroneous to conclude that the proposed changes were insubstantial..."

"This error of law," Gildea added, "requires reversal of the substantiality decision and remand to the board for consideration of the altered project in the first instance..."

If there is no appeal filed, Surfside Crossing’s condominium proposal heads back to the Nantucket Zoning Board of Appeals for what would likely be a six-month review period including public hearings. Any approval at the ZBA would again be subject to a potential appeal to the state Housing Appeals Committee as well as to the Superior Court.

The now-vacated permit for Surfside Crossing’s 156 condominium homes would have included 18-three-story buildings (two stories above grade) on 13 acres of pine forest off South Shore Road that were cleared last August. As a Chapter 40B development, 25 percent of those units are required by the state to be deed restricted for affordable housing, or a total of 39 units within the development, to residents earning at or below 80% of the area median income. The other 117 units would be sold at market rate, priced between $500,000 to $1.5 million.

Last April, the town announced that it was dropping its lawsuit against Surfside Crossing after reaching a “collaborative agreement” with the developers. The agreement outlines a commitment by the Select Board and the Surfside Crossing developers to earmark 75 percent of the 156 condominiums in the development to “directly serve year-round housing needs.” That goal would be accomplished through long-term deed restrictions at a variety of income levels. Critics noted at the time that there was nothing in writing that could bind Surfside Crossing's developers to such restrictions, and the dismissal of the town's lawsuit sparked frustration from ZBA board member Jim Mondani in May and “blindsided” the board as a whole.

Developer Jamie Feeley had said in a statement at the time that he hoped potential partnerships and collaborations with the town, as well as with island businesses and organizations, would result in up to 75 percent - the 117 market rate units - ending up in local ownership.

The plans for Surfside Crossing were filed under a state statute known as Chapter 40B, which allows developers to bypass local zoning regulations and increase density if at least 20 to 25 percent of the new units have long-term affordability restrictions.