Surfside Crossing Plan Denied By Zoning Board Of Appeals; Developers File Appeal

With a unanimous, 5-0 vote, Nantucket's Zoning Board of Appeals (ZBA) denied the controversial Surfside Crossing 40B housing development off South Shore Road on Monday, issuing a blistering decision that calls out the developers for failing to compromise and raises a host of concerns about the project.

The ZBA's decision, which came after hearings that spanned more than six months, was immediately met with an appeal by Surfside Crossing developers Jamie Feeley and Josh Posner, who will ask the state Housing Appeals Committee to overturn the ZBA's denial.

But after diving into the details of Surfside Crossing's 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."

The appeal by Surfside Crossing's developers will be 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.

"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 released after the ZBA's vote. "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."

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.

During the public hearing, the ZBA heard from former Nantucket Fire Department members Beau Barber and Bob Bates, who both expressed concerns about the department's ability to combat a fire in such a large and densely constructed development. Dr. Tim Lepore added his voice to those in opposition to Surfside Crossing, stating "There are way too many risks and limitations at work here; please deny this project as presented. We simply can't handle it."

The board also heard conflicting testimony regarding the project's compliance with stormwater standards, with the developers' consultants at odds with those hired by the Nantucket Land & Water Council and Nantucket Tipping Point.

"Developer has failed to comply with stormwater standards, thereby creating a threat to the neighbors’ and to the town’s drinking water aquifer, for reasons presented by two separate Nantucket Land & Water Council experts and confirmed by a PFAS expert, Chemist Kristen Mello," wrote attorney Paul DeRensis, who represented Nantucket Tipping Point during the hearings.

The hearings before the ZBA over the past six months 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.