A hearing in the appeal of the controversial Surfside Crossing project, a 156-unit affordable housing development slated for 13 acres off South Shore Road, was conducted Monday in Nantucket Superior Court. The hearing lasted approximately four and a half hours and ended with Judge Mark Gildea taking the matter under advisement.
The lawsuits - brought by the Nantucket Land & Water Council and the Nantucket Tipping Point group - are challenging the state Housing Appeals Committee's (HAC) endorsement of Surfside Crossing
A 10-minute site visit at Surfside Crossing's now-cleared lot off South Shore Road took place before the hearing began. Nantucket Land Council attorney Dennis Murphy began the hearing arguing that the project was “radically redesigned” and should have gone back to the Zoning Board of Appeals for approval, but never did. He also suggested there had not been a formal Massachusetts Environmental Policy Act (MEPA) hearing for the project in which island residents would have had the opportunity to voice their concerns through testimony, witnesses and experts, and other pieces of evidence to support their claims.
“In our view, from the environmental group I represent, this was a major issue for them being deprived of an opportunity to have a review of the project,” Murphy said.
Murphy argued that when you put the original plan side by side with the redesigned plan that “not a single home or road looks the same.” He added that the 156-unit proposal approved by the HAC permits the building of significantly more units than the 60-unit plan approved by the ZBA.
“You had the entire elimination of single-family houses, which is a complete change,” Murphy said. “You go from houses that look like much of the rest of the neighborhood to nothing like the rest of the neighborhood. Condos are not the same building. They are a different style of building. Went from six or eight (condos in the original plan) to 18. That almost triples the number. That is a change in the building type.”
Paul Haverty, the attorney representing Surfside Crossing, said both projects were approved by MEPA. He said the HAC-approved project and the ZBA-approved version included the exact same amount of clearing of open space.
Eric Haskell, the HAC’s attorney, said there was no need to send this 156-unit project back to the ZBA and said any such effort would have been “futile.”
Gildea then posed the question of what constitutes “substantial change,” which is the threshold that would need to be met for the project to be sent back to the ZBA for approval.
Haskell argued that the change pertaining to the mix of building types to be built as part of the project was always there and that the HAC was not abusing its discretion by not ruling that as a substantial change.
Paul DeRensis, representing a group of four island families within 250 feet of the Surfside Crossing site, said there was very little done by the HAC to balance the local concerns with the regional need for affordable housing.
“Local concerns come from the local community,” DeRensis said. “They know the local concerns, what is happening at the site. The point of going back to the ZBA is so local concerns can be evaluated. There was very little balancing of concerns from local residents.”
Haverty said this modified project addresses several concerns expressed by the ZBA such as number of bedrooms, impact on the sewer system, parking, and open space. He said the local community’s concerns have been taken into consideration throughout the entirety of the project.
Haverty also said the standard referenced by DeRensis isn’t about balancing local concerns with regional need for housing but instead proving that the local concerns outweigh the need for affordable housing.
“It isn’t a balancing act. The odds are stacked in the favor of the creation of affordable housing because that is what Chapter 40B is meant to do,” Haverty said. “It is not a balancing of harms one side, harms the other side. It is ‘Is there an issue of local concern that outweighs the regional need for Affordable Housing,’ and (the ZBA and opposing groups) don’t even come anywhere close to meeting that standard.”
However, Murphy argued later in the hearing that preserving open space is of equal importance to the island as its need for affordable housing – adding that Nantucket’s Open Space Plan, which was approved by the island’s Planning Board and subsequently adopted at Town Meeting, is not just a recommendation but instead a document that needs to be considered when designing projects like Surfside Crossing.
“The number one priority for the Open Space Plan is preserving existing open spaces,” Murphy said. “It says explicitly that vacant land should not be developed. The HAC’s decision was that it is just a plan, a recommendation, aspirational, not binding, but these are not just recommendations. They aren’t toothless. They are not collecting dust on the shelf. These are things that the law requires to be considered. So the HAC committed a legal error by saying ‘You don’t need to pay attention to that.’ The one fact that is not in dispute is that these plans played no role in the design of the project. That is conceded. We have testimony from the developer and its consultant.”
He said the trimming of the project from 156 units to 60 units by the ZBA was in part because of the Open Space Plan and the importance of preserving vacant spaces. He said there can be a balance between housing and open space – highlighting that the abutting 40-unit Sachem’s Path affordable housing project/plan provides “a good road map” to achieving that.
Haskell argued that the town’s Open Space Plan is in fact just a recommendation. He said it describes itself as “general land recommendations.”
“The Open Space Plan expressly indicates developing on vacant land is inevitably going to happen for certain purposes, such as for affordable housing,” he said.
Laverty spoke towards the end of the hearing calling many of the concerns and allegations about the project as “speculative.” He said there is “substantial” evidence and documentation that has been provided by Surfside Crossing to support “each and every decision made by the Housing Appeals Committee.”
When asked by Gildea about any possible remedies he sees, Laverty said the only remedy in his eyes is the upholding of the HAC’s decision. He said if it is remanded back to the ZBA, it will waste months of time and lead everyone back to where they are today given the known opposition to this housing project.
DeRensis said there is no evidence of any sort of prejudice against the project and that even if there was in years past, board members have changed since then.
Surfside Crossing was proposed by developers Jamie Feeley and Josh Posner and is slated to include 156 condominium homes contained within 18-three story buildings (two stories above grade) on 13 acres of land off South Shore Road. Twenty-five percent of those units would be deed restricted for affordable housing, or a total of 39 units within the development.
The ZBA approved a scaled-down version of the project, which would have consisted of 60 units. Nantucket Tipping Point – a group of abutting property owners to the project – as well as the Nantucket Land Council have vocally expressed frustration following the HAC’s approval of the 156-unit project arguing that the ZBA never had a chance to review or weigh-in on the redesigned Surfside Crossing development.
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.
In April earlier this year, the town dropped their lawsuit against Surfside Crossing after reaching a “collaborative agreement” with the developers that 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. The dismissal sparked frustration from ZBA board member Jim Mondani in May and “blindsided” the board as a whole.