State Sides With Developers In Surfside Crossing Appeal

The state Housing Appeals Committee (HAC) has issued a proposed decision in favor of Surfside Crossing's developers, marking the latest chapter in the protracted legal fight over the controversial 40B housing development off South Shore Road.

The appeal to the HAC was filed by Surfside Crossing's developers, Jamie Feeley and Josh Posner, last April after the Nantucket Zoning Board of Appeals voted unanimously to deny its application for a 156-unit condominium complex off South Shore Road.

The proposed decision, which would overturn the ZBA's denial and allow the project to move forward, must still be finalized following a two-week period in which both sides will be allowed to provide comments or objections.

"The Housing Appeals Committee has reviewed the concerns of the Board and the opponents in detail, and concludes that the denial of a permit to this well designed development, which will address critical housing needs in Nantucket, was not based on substantial local needs that outweigh the regional need for affordable housing, that is, that the development will not compromise the health, safety, or other interests of nearby residents, of the occupants of the housing, or of the Town generally," the decision reads.

"Based upon review of the entire record and upon the findings of fact and discussion above, the Housing Appeals Committee concludes that the decision of the Board is not consistent with local needs," the HAC wrote. "The decision of the Board is vacated, and Board is directed to issue an amended comprehensive permit that conforms to the application of Surfside Crossing, LLC, as modified, and as provided in the text of this decision and subject to the following conditions."

The political action group Nantucket Tipping Point, which has opposed Surfside Crossing for years and initiated numerous legal challenges to block the project, released a statement critical of the HAC's decision.

"The proposed HAC decision by Presiding Officer Warner Lohe comes as no surprise, particularly given that he is the same presiding officer whose previous HAC decision regarding Surfside Crossing was decisively overturned by the Superior Court after Nantucket Tipping Point - together with our long-time partners at the Nantucket Land Council - appealed the ruling," said Tipping Point members Will Willauer and Meghan Perry in a statement. "In that case, the Superior Court found the HAC’s decision, led by the same hearing officer, to be arbitrary, unreasonable, and inconsistent. Many—if not all—of the serious questions raised by Nantucket Tipping Point remain unanswered. Given this lack of accountability and clarity, it is difficult to see how a future appeal before the Superior Court would lead to a different outcome for this development or this HAC proposed decision."

They added that Nantucket Tipping Point will be "weighing all available legal options regarding the Surfside Crossing matter."

Feeley and Posner, the project developers, declined to comment due to the fact the proposed decision is not yet finalized. 

Last April, after more than six months of hearings on the details of Surfside Crossing's proposed 156 condominium dwellings in 18 multi-family dwelling units and the potential impacts of such a dense development, the members of the ZBA were unanimous in their disapproval. They expressed deep reservations about the project’s potential impact on water quality, fire safety, and access to the site, concluding that those factors outweighed the need for additional housing units that would be created by Surfside Crossing.

"The Board finds that the stormwater management system, as proposed, poses undue risk of harm to the town’s public water supply," the board wrote in its decision. "Again, unfortunately, the applicant refuses to consider any alteration to its project design despite many requests by the Board for a good faith dialogue."

But throughout its 55-page decision, the HAC determined that those concerns did not "outweigh the regional need for housing."

Shortly after the ZBA's decision, Feeley and Posner filed the appeal to the HAC and released a blistering critique of the denial, which they called biased and the result of unequal treatment.

"The Board’s denial is evidence of a clear bias against this development and constitutes unequal treatment in violation" of state law, Feeley and Posner said in a statement. "The stormwater system we not only proposed, but installed, is in the highest tier of all other such systems on island, and in the Commonwealth. We respectfully believe we should be held to the same standards that the rest of the community, Town, and state are subject to. Our focus remains on human health - inclusive of the physical, fiscal, social, emotional and spiritual aspects - as related to the built environment. We are happy to be headed back to the Housing Appeals Committee for the next phase of this process, which we trust will be focused on only the changes from the original proposal."

The appeal by Surfside Crossing's developers was heard by the state committee which rules on disputes over 40B projects and previously endorsed the plans for Surfside Crossing, only to have a Superior Court judge remand it back to the ZBA for further review back in January 2024.

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 in August 2023. 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 percent of the area median income. The other 117 units would be sold at market rate, priced between $500,000 to $1.5 million.

The hearings before the ZBA in 2025 were considered a "remand," as it was the result of a Nantucket Superior Court judge’s decision back in January 2024 to reject the state approval for Surfside Crossing and send the project back to ZBA for further review. Judge Mark Gildea's 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 single-family homes and 96 condominiums.

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.