Tempers Flare Again Over Surfside Crossing At ZBA

Their lawsuit against Surfside Crossing was dismissed without their knowledge or consent, and the members of Nantucket’s Zoning Board of Appeals are still not over it.

In a tense meeting on Thursday, some members of the Zoning Board of Appeals (ZBA) doubled down on their criticism of the Select Board’s decision to dismiss the lawsuit against the 40B development. And ZBA alternate member Jim Mondani verbally sparred with town counsel George Pucci as he expressed his frustration over the situation, and launched an emergency motion to secure independent counsel for the ZBA in the Surfside Crossing matter.

“You are conflicted,” Mondani said to Pucci, who dismissed the ZBA’s lawsuit at the direction of the Select Board. “You had a duty to listen to this board. Knowing that, you should have waited and suggested a special meeting before filing this (dismissal). George has done a great job representing us. This is not personal. I just don’t agree with what he’s done in the last three weeks. Let’s not play games.”

With a court hearing looming later Thursday afternoon in Nantucket Superior Court - where lawsuits filed by the Nantucket Land Council and Nantucket Tipping Point against Surfside Crossing were proceeding - Mondani made an unusual bid to secure independent counsel for the ZBA through an emergency motion.

While his fellow board members voted 3-2 to place the item on its agenda for discussion, the motion ultimately failed on another 3-2 vote, with Mondani’s colleagues stating they did not believe they had the authority to appoint their own counsel. But not before Pucci and Mondani shared a terse exchange.

“Whatever you’re going to do on this unnoticed show, do it,” Pucci said. “And then get back to what’s on your agenda.”

He emphasized that the Select Board has final say over what litigation the town engages in, and that it took a 3-2 vote to end the town’s lawsuit against Surfside Crossing.

“You can take a vote on any motion you want to, but I’m just advising you, which has already been advised to Mr. Mondani, the Zoning Board does not have the ability to vote its own counsel and continue litigation that is not authorized by the Select Board,” Pucci said. “There’s no conflict of interest. I’ve been very clear with the board about how the vote went down with the Select Board."

Mondani said he hoped to appoint attorney Peter Fenn, who has previously represented the Nantucket Land Council on a variety of matters, to represent the ZBA in the 2 p.m. hearing on Thursday in which the Land Council was attempting to submit new evidence into the case related to the endangered northern long-eared bat.

“All I’m asking is to participate in litigation which technically we’re still a party to,” Mondani said. “This is an emergency. This is something that is occurring today. And I feel like we need to appoint counsel to represent us. We have no counsel.”

While Mondani’s fellow board members seemed to share his contempt for how the Select Board had handled the dismissal of the lawsuit, they also stated that they agreed with Pucci that the ZBA did not have the authority to appoint its own counsel. The final vote to reject Mondani’s motion was 3-2, with chair Susan McCarthy, John Brescher and Michael O’Mara voting against the motion.

“This is standard operating procedure,” O’Mara said. “Do I like the process? No, I don’t. But I think everything was done correctly.”

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.

But after the Select Board reached a “good faith” agreement to earmark 75 percent of the 156 condominiums in the development to “directly serve year-round housing needs,” it voted 3-2 to dismiss the lawsuit.

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 undeveloped pine forest off South Shore Road. 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.