Land Council Launches Effort To Appeal Surfside Crossing Permit

Jason Graziadei •

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With harsh words for the developers of the Surfside Crossing 40B housing project, the Nantucket Land Council last Friday announced that it would launch an effort to appeal the state-issued conservation management permit for the proposed development.

That permit - which has been hotly debated over the past month since it was discovered that several town departments failed to notify opponents of Surfside Crossing as well as town boards and commissions that it had been issued - allowed developers to begin cutting down trees on the property.

But the Land Council believes the permit does not meet the performance standards required by the Massachusetts Endangered Species Act (MESA), and has filed for an adjudicatory hearing before the state Division of Fisheries and Wildlife. The filing is a prerequisite for any potential appeal in Superior Court.

The Land Council is contesting "the substance of the permit because it does not meet the performance standards required under the Massachusetts Endangered Species Act (MESA) to mitigate the 'take' of a protected species and destruction of nearly twelve acres of protected species’ habitat. Specifically, it allows the permanent loss of that legally protected habitat for a payment of money, rather than setting aside over twenty acres of similar habitat elsewhere, as the law requires and as the Developer promised. If allowed to stand, this unprecedented “buy-down” of protected habitat would be the first of its kind on Nantucket."

Read the full filing here

In late January, crews started cutting down pine trees at the 13-acre property off South Shore Road where Surfside Crossing developers Jamie Feeley and Josh Posner hope to build 156 condominiums. Opponents of the development immediately cried foul, and not just because it pained them to see the trees come down.

The Surfside Crossing developers, opponents said, didn’t have the permits required to begin the clear-cutting. Specifically, they believed Surfside Crossing had not yet obtained a conservation and management permit from the state Division of Fisheries & Wildlife. Opponents - including neighbors, members of the group Nantucket Tipping Point, and the Nantucket Land Council - called the police and Sheriff Jim Perelman, they called their attorneys and town officials, and they called the courthouse, all in an effort to stop the clear-cutting.

But, as it turned out, Surfside Crossing developers did have the necessary permit. In fact, they had had it in hand since Aug. 31, 2022. The 21-day appeal period to challenge the permit had long since come and gone.

"Although the Land Council was a party in the administrative proceedings (appeal) at NHESP (Natural Heritage and Endangered Species Program), and was entitled to notice of the issuance of the Conservation Management Permit, we were never notified," the Land Council stated Friday in announcing its appeal. "This was clearly not about clearing the land in preparation for construction, this was about dropping the pitch pine as quickly as possible in order to get ahead of the original January 30th deadline for the uplisting of the Northern long-eared bat to Endangered Species status under the Federal Endangered Species Act."

The non-profit also had harsh words for Feeley and Posner, citing their involvement in the controversial Sconset Beach Preservation Fund geotube project:

"These developers are the same two individuals who were responsible for dumping contaminated sand over the bluff in ‘Sconset, and who utterly failed to meet their mitigation obligations under the Conservation Commission permit regarding the geotubes," the Land Council stated. "They have shown little regard for the regulatory process, or for the people or environment of Nantucket. The Land Council will continue to oppose these kinds of activities."

Feeley and Posner did not return a message seeking comment on the latest development in the dispute over Surfside Crossing.

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Surfside Crossing has been bitterly opposed by a group of neighbors and the group Nantucket Tipping Point, but last fall it received approval from the state Housing Appeals Committee. The plan to build the condos on 13 acres of undeveloped pine forest off South Shore Road is still facing a series of lawsuits.

Surfside Crossing would include 156 condominium homes contained within 18 three-story buildings (two stories above grade) off South Shore Road. Twenty-five percent of those units would be deed restricted for affordable housing to individuals and families making up to 80 percent of the area median income, or a total of 39 units within the development.

According to the Surfside Crossing web site, "the remaining 117 units are designed to target the $450,000 to $825,000 price point that is currently underserved, in order to meet the needs and interests of Nantucket’s middle-income community."

"We believe strongly that this project is the solution that Nantucket desperately needs and have begun pre-construction work," Surfside Crossing developers Josh Posner and Jamie Feeley said in a previous statement. "The preparation work follows the final approvals of the Housing Appeals Committee and the Conservation Permit from the Natural Heritage and Endangered Species Program, which were both issued in 2022, after more than 5 years since the process has started. Preliminary work at the property is taking place this winter and spring in compliance with the permit approvals’ conditions to prepare the site for the eventual start of construction. We are eager to move this project forward and assure that the benefits of new affordable housing for a wide range of year-rounder Nantucketers will be available to our community."

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