In Tense Remand Hearing, Surfside Crossing Back On The Hot Seat Before Nantucket's Zoning Board

After nearly a year out of the spotlight, the controversial Surfside Crossing housing development was back before the Nantucket Zoning Board of Appeals (ZBA) on Thursday, and it was quickly apparent that time had not healed any wounds.

Thursday’s remand hearing - the result of a Nantucket Superior Court judge’s decision back in January to reject the state approval for Surfside Crossing and send the project back to ZBA for further review - was tense and marked by acrimony.

The three-hour hearing was filled with accusations of conflicts of interest, demands for recusals, a split vote on which ZBA members would be voting on the 156-unit condominium development, disagreements over what aspects of the project the board would be able to consider during its review, and a contentious exchange between town counsel George Pucci and ZBA member Jim Mondani over Pucci’s legal advice. That back-and-forth ended with the ZBA voting to issue a request to its appointing authority - the Select Board - for independent legal counsel to replace Pucci during the remand hearing.

As expected, Thursday’s hearing ended with a continuance to the ZBA’s October meeting, and a formal decision will likely not come until early next year. But as the developers doubled down on their 156-unit, all-condominium proposal, and neighbors renewed their concerns over the impacts of the development, it became clear that the next chapter in the Surfside Crossing saga will be no less contentious than those that came before it over the past six years.

Nearly 100 people attended the hearing at the community room of the Nantucket Public Safety Facility on Fairgrounds Road, with dozens more watching online. Surfside Crossing developers Jamie Feely and Josh Posner were in attendance, and in his prepared remarks, Feeley continued to emphasize the island’s housing crisis and the potential for the project to help alleviate what he called the “revolving door of young professionals” leaving Nantucket due to unattainable housing.

“We all know the need is tremendous,” Feeley said. “If we as a community have any hope of retaining those so vital to our daily existence, we need to offer viable homeownership opportunities. We all know firemen, police officers, teachers, coaches, Steamship workers, restaurateurs, tradespeople, and retailers who have come for Nantucket’s beauty and charm, but when the hard realities around housing set in, pack it up for more affordable communities. We have a revolving door for our young professionals and entrepreneurs, that is not sustainable. This project is a solution. Not the solution, but part of the solution.”

Surfside Crossing’s 156 condominium units would be contained within 18-three-story buildings (two stories above grade) on 13 acres 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.

Former town counsel Paul DeRensis, who is representing abutting property owners, opened his remarks on Thursday by objecting to ZBA chair Susan McCarthy’s participation in the hearing. DeRensis referenced a formal complaint filed against the ZBA with the state Ethics Commission by Meghan Perry, one of the leaders of the political action group Nantucket Tipping Point which has opposed Surfside Crossing from the start. The complaint alleges that McCarthy and two other ZBA members signed an agreement between Surfside Crossing and the Massachusetts Housing Finance Agency that included a statement that there was no pending litigation against the developers, even though there was an ongoing lawsuit against them. The agreement - which had been reviewed last year by town counsel Vicki Marsh who gave the OK for the ZBA to sign it - was later used by the Surfside Crossing developers to obtain financing for the project.

“You need to stop and step out of the room and let someone else take over,” DeRensis said to McCarthy. “Until you get a ruling from town counsel, I ask that you step aside. A violation of these rules is a felony.”

McCarthy acknowledged the objection but continued to preside over the hearing.

In remarks that lasted more than 30 minutes, DeRensis alleged that the design of the Surfside Crossing development was unsafe for its future residents, for the abutting property owners, and for the community at large.

“The reason we’re here is a Superior Court judge ordered a remand back to the Board of Appeals,” DeRensis said. “The developers of Surfside Crossing opposed it. The Housing Appeals Committee opposed the remand. The Superior Court blew away those arguments in a very strong decision…Our position is today, as it has been all the way along, the citizens of Nantucket are entitled to be safe, to have developments that work, not only for the surrounding residents but for the future occupants of this development. And we will prove, and the record already submitted by the developer proves, this project has inferior safety features. We start with the assumption that all people should be treated equally regardless of their economic status. Why should some people have to live in housing that’s not safe? And that’s what’s being proposed for you to approve.”

Judge Mark Gildea's decision in January was the result of legal challenges brought against the project by the Nantucket Land Council and a group of neighbors. They had appealed the state Housing Appeals Committee's approval of the project 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 single family homes and 96 condominiums.

According to the remand order from the state Housing Appeals Committee, the members of the ZBA will be limited to considering "only the changes in the housing proposal or aspects of the proposal affected thereby," including: building types and their architectural style; the number, location, and size of the buildings; increases in building heights; the number and location of parking spaces; traffic circulation and roadways; and open space. But even that order was in dispute on Thursday, as ZBA member Jim Mondani argued that the original remand order by Nantucket Superior Court judge Mark Gildea was far more broad.

“It’s a new project,” Mondani said.

In perhaps the most contentious exchange of the hearing, Mondani suggested that town counsel George Pucci was representing the Select Board rather than the ZBA, and made a motion to request that he be replaced with an independent legal counsel for the remand hearing. It wasn’t the first time Mondani had made such a request, and he referenced the Select Board’s decision in April 2023 to drop the ZBA’s lawsuit against Surfside Crossing which was done without the ZBA members' consent.

“We have counsel on this, but it’s very conflicted,” Mondani said. “I don’t know who George’s real master is. Is it the town? Is it the Select Board? Sometimes he comes in and it’s us.”

Pucci strenuously objected to the characterization.

“I respectfully take exception to being accused of having a conflict,” Pucci said. “First of all, serving a master? Not to pontificate, but my mother didn’t put me through law school for me to have a master. I don’t have a master. I’m town counsel. I was engaged by the Select Board, your appointing authority, to advise you on this. You had sought separate counsel before when the Select Board wanted to dismiss the lawsuit I had filed on your behalf and the Select Board denied that request. You’re free to make a further motion today if you want to ask your appointing authority to appoint special counsel for you, and that’s perfectly appropriate and within your right, this is America, you can make that motion. But I don’t appreciate being charged with some sort of conflict of interest.”

The ZBA later approved Mondani’s motion on a 4-1 vote, with Joe Marcklinger the lone dissenter.

Several community members spoke out against the proposed 40B development at the tail end of the hearing, including Linda DeRensis - who emphasized the traffic on Surfside Road over the summer - along with Nantucket Land & Water Council executive director Emily Moldin, Mindy Levin, Chris Meredith, and Madeline Callahan.

The members of the ZBA were presented with more than 1,000 pages of documents ahead of Thursday's meeting, including a new letter from the Surfside Crossing developers.

"The applicant firmly believes that the project as modified presents a very attractive development that makes a significant contribution to addressing the serious community need for not only affordable homeownership units but also for market-rate units for year-round residents," Surfside Crossing attorney Paul Haverty wrote to the ZBA on behalf of Feeley and Posner. "The project as modified has already undergone a full review by the Committee, which has determined that there are no issues of local need that outweigh the regional need for affordable housing."

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 2022 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 project developers started clearing the property last August 2023 under protest and acknowledged they were starting construction on an "at risk" basis with the legal appeals still pending.

In April 2023, 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 Mondani in May and “blindsided” the board as a whole.

Feeley subsequently said in a statement 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.