ZBA Blindsided By Dropping Of Surfside Crossing Lawsuit, Requests Town Not Dismiss Appeal

Blindsided by the news the Select Board had voted to drop its lawsuit against the controversial Surfside Crossing development, the Nantucket Zoning Board of Appeals - which had been listed as the town’s plaintiff in the litigation - voted unanimously on Thursday to request that the Select Board not dismiss the lawsuit. At least not immediately.

On Wednesday, the members of the Zoning Board of Appeals gathered for a special meeting, where they were formally informed by town counsel George Pucci about the Select Board’s decision to drop the lawsuit. They expressed a mixture of surprise, concern, and frustration about the decision - not only because they had not been consulted or informed about the 3-2 vote to drop the lawsuit until after it had been made, but also because the Select Board had not secured any written agreement that requires the Surfside Crossing developers to meet the principles outlined in a joint statement issued by the town and Surfside Crossing on Tuesday.

“For some reason we were usurped on this one,” said ZBA member Jim Mondani. “It’s frustrating to go through what we went through and our decision is usurped by HAC and then our decision making authority is usurped by the Select Board. I’m trying to understand what our role is. It’s very frustrating.”

The members of the ZBA voted unanimously to request that the Select Board not dismiss the lawsuit “unless there is a settlement agreement which includes the Zoning Board.” They also offered to assist the Select Board in implementing the conditions outlined in the joint public statement.

The ZBA is the town agency that has likely spent the most time reviewing the Surfside Crossing proposal, and the members who remain from those hearings made it clear that they believed the ZBA should have been part of the conversation, or at least given a heads-up.

Pucci - who said that he was restricted from sharing details about the decision due to the fact that it was made in executive session and because of attorney-client privilege - informed the ZBA that the Select Board had the ultimate authority to decide which litigation the town should be involved in.

“The Select Board controls litigation to which the town is a party as executive authority of the town,” Pucci said. “They voted to dismiss the litigation and not discuss the matter publicly until a statement had been issued…Unfortunately for constraints of the open meeting law, the ZBA as a named party, we couldn't notify you as a quorum unless it was a duly noted public meeting.”

As of Wednesday afternoon's meeting, Pucci said he had yet to file a dismissal with Nantucket Superior Court, and said "I assume counsel for the developer will forward me a dismissal, that would be signed-off on and filed with the court." By Thursday afternoon, the dismissal had been filed at the courthouse. 

Under questioning from the ZBA and the public, Pucci confirmed that the joint statement was only that and nothing more: there was no written agreement secured by the Select Board which would require the Surfside Crossing developers to abide by the set of principles in that statement. Pucci also disclosed that he had not assisted the Select Board in negotiating the list of principles in the document.

Select Board member Dawn Hill Holdgate told the Current Thursday that the principles had been drafted by the Select Board in consultation with Nantucket's municipal housing director Tucker Holland, town real estate specialist Ken Beaugrand, and Affordable Housing Trust chair Brian Sullivan.

Beyond their frustration with the Select Board, members of the ZBA also had tough questions for Pucci himself.

"So how can you say the town has attorney-client privilege, aren’t you serving us?" asked ZBA member John Brescher. Pucci replied that any discussions with the Select Board are subject to that privilege, regardless of the fact that Pucci was representing the ZBA in the appeal. 

"I’m not satisfied with that response," Brescher said. "It behooves us to have our own executive session on this. There are a lot of topics we need to get into that are subject to this litigation, or were subject to this litigation, which evidently can be dismissed without our approval or assent, even though we're a named party represented by the same counsel."

Other Surfside Crossing opponents, including South Shore Road property owners Bruce and Meghan Perry, along with Nantucket Land Council executive director Emily Molden, also spoke out at the meeting to commiserate with the members of the ZBA.

“I share in the expressed frustration on how this has proceeded and taken place,” Molden said. “It’s disrespectful to the board that's spent so much time on this, that the decision was made without consultation and discussion with the ZBA and without a formal agreement.”

As it stands today, Surfside Crossing’s 156 condominium homes would be contained within 18-three story buildings (two stories above grade) on 13 acres of undeveloped pine forest off South Shore Road. 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.

While Surfside Crossing has been hotly debated on the island since it was first proposed in 2018, the state Housing Appeals Committee approved the developers’ 156 condominium unit proposal in September over the objections of the Nantucket Land Council, along with a group of neighbors and community members known as Nantucket Tipping Point, and at the time, the town’s Zoning Board of Appeals (ZBA). The HAC's ruling vacated the ZBA’s previous decision to permit a scaled-down development of 60 units, and requires it to issue an amended comprehensive permit allowing for the 156 condominium units of the development to move ahead.