A Nantucket Superior Court judge on Tuesday vacated the state approval of the controversial Surfside Crossing 40B project - a proposed 156-unit condominium development off South Shore Road - and remanded the matter back to the local Zoning Board of Appeals for further review.
The decision 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 units.
Nantucket Superior Court judge Mark Gildea called the Housing Appeals Committee's decision "arbitrary, unreasonable, and inconsistent with the plain terms of the regulation itself" and stated 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..."
In addition to the Nantucket Land Council, the plaintiffs in the case include neighbors Christopher and Linda Meredith, Jacques Zimicki, Joan Stockman, Marybeth Splaine, Jack Weinhold, Sean Perry, Bruce Perry, and Meghan Perry Glowacki.
"We are extremely pleased with Judge Gildea's decision to vacate Surfside Crossing's comprehensive permit and to remand the matter back to the ZBA," Nantucket Land Council executive director Emily Molden told the Current. "A project of this magnitude and impact must be reviewed and heard at the local level in the first instance and as the Judge stated in his ruling the changes made to the project during the appeals process should have been deemed "substantial" and the HAC should have remanded it back themselves. Unfortunately, the developers have proceeded to completely clear and prepare the site at their own risk, but now they will have to return to the ZBA to seek a new comprehensive permit in order to continue."
In a joint statement e-mailed to the Current, Surfside Crossing developers Jamie Feeley and Josh Posner expressed their disappointment with the judge's decision and indicated that the immediate next steps for the project are not yet clear.
"We are disappointed with the decision issued last night by the Superior Court regarding the process followed for making changes to the Surfside Crossing project," Feeley and Posner stated. "We strongly believe that the changes make for a better project that can serve many more year-round families. This unfortunate decision adds time and cost to what is already 5 ½ years of permitting addressing a long series of opposition tactics. The state Housing Appeals Committee determined that we had followed all appropriate rules. Unfortunately, the court disagrees. We are considering our next steps to get this badly needed development built so that it can meet more of the island’s urgent housing needs."
"I am thrilled with Judge Gildea’s decision confirming what Nantucket Tipping Point has been saying since the HAC decision - that the rights of the public to be involved were infringed," Meghan Perry Glowacki told the Current in text message Wednesday morning. "And we are so thankful to our loyal supporters who never gave up and helped make this happen! This is a true grassroots effort made by our community to stand up for what is right and fight back against risky high-density development and developers that threaten the health, safety, welfare, and the environment of our entire community. This court ruling goes to show it doesn’t matter how much money you have or who you are able to bamboozle- the law is the law and justice prevailed for the seemingly small but very mighty!"
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 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.
"Personally, it is nice that the court listened to the community where the state, town and developers did not," said Will Willauer, president of the Nantucket Tipping Point group, in a message to the Current. "Where the project goes is up to how the town and Surfside Crossing proceed but one thing I do know is that Nantucket Tipping Point will continue to be vigilant!"
The project developers started clearing the property last August under protest, and acknowledged they were starting construction on an "at risk" basis with the legal appeals still pending.
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 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 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.