The judge’s ruling has been filed, permits have been revoked, the construction site off South Shore Road is dormant, and project opponents have taken a victory lap. What happens next for the controversial Surfside Crossing development after last week’s Superior Court decision to overturn its state approval?
The Select Board opened that discussion Wednesday night with town counsel George Pucci, who had represented the local Zoning Board of Appeals during its review of Surfside Crossing.
“So, basically, it stops the project in its tracks,” Pucci said of Judge Mark Gildea’s ruling. “There’s no operative permit so the developer cannot proceed with any type of construction activities pursuant to their project while this order remains outstanding because the permit was vacated by that decision.”
Pucci told the Select Board that he had not yet heard from the developers’ attorney regarding any potential appeal of the judge’s decision, but noted that they have up to 60 days to do so. Pucci emphasized, however, that he does not believe Surfside Crossing would be successful if it decided to appeal the ruling.
“I don’t mind telling you in open session that my opinion is there’s very little likelihood of success on appeal of the Superior Court judge’s decision,” Pucci said. “It’s very well reasoned. It cites the regulation at issue and the regulation is pretty clear: when there’s a change in housing type from the original project, those types of changes should be remanded to the board of appeals for a public hearing in the first instance.”
Judge Gildea’s decision was a rare instance of a court overturning the state Housing Appeals Committee. After the Nantucket Zoning Board of Appeals approved a scaled-down version of the Surfside Crossing project totaling 60 units including single-family homes, the developers submitted a 156 condominium unit plan to the Housing Appeals Committee that it approved. The Nantucket Land and Water Council, neighbors, and the town all sued in Nantucket Superior Court, stating that the change was substantial and should have gone back to the ZBA for review. While the town dropped its legal challenge, the neighbors and Land & Water Council ultimately prevailed.
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.
During Wednesday night’s discussion, Pucci suggested that in the aftermath of the judge’s ruling, mediation among the parties could be an avenue to reach a compromise solution for the project.
“That is something the board might want to consider - for the developer, for the project opponents, or the Nantucket Land Council,” Pucci said. “That’s an option that’s out there, to go through a formal mediation process and see if there’s some sort of mutually satisfactory proposal that could be reached.”
Pucci stated that the ZBA could also be involved in the mediation, and there was essentially no limit on the number of parties that could be part of it if all agreed to sit down.
“I worry this could go six months or eight months and then get appealed to the court and appealed to another court and drag on forever,” Select Board member Matt Fee said. “There’s an acceptable, economically advantageous (proposal) if we could get the right parties in the room.”
The Select Board voted unanimously in favor of a motion to begin the process of proposing mediation to the parties involved, and to ask them to express their interest within 21 calendar days.
“Hopefully, this can turn into something positive for the community,” Select Board chair Dawn Hill Holdgate said.
In an email response to the Current’s inquiry about the Select Board's vote and the possibility of mediation, Surfside Crossing developer Josh Posner stated “We expect to have figured out where we go from here shortly.”
Nantucket Land & Water Council executive director Emily Molden said she had received the town’s inquiry regarding mediation but had not yet had time to reflect on the possibility.
“We did receive the town's request earlier today which we are reviewing and considering,” Molden said in an email.
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.