Three New Lawsuits Filed Against Surfside Crossing Development

Just weeks after a state committee approved plans for the Surfside Crossing's 156 condominium units off South Shore Road, the controversial 40B development is facing new legal challenges.

Three new lawsuits have been filed in Nantucket Superior Court challenging the state Housing Appeals Committee's (HAC) endorsement of Surfside Crossing's plans to build the condos on 13 acres of undeveloped pine forest off South Shore Road.

The plaintiffs include the Nantucket Land Council as well as a group of neighbors facilitated by the non-profit group Nantucket Tipping Point - both of which were expected as those organizations had previously indicated their intention to appeal the HAC decision. The third plaintiff is the town's Zoning Board of Appeals, which filed its own complaint in Superior Court.

It had been an open question as to whether the town itself would get involved in further litigation with Surfside Crossing following the HAC decision on Sept. 16. Both the Land Council and Nantucket Tipping Point had urged the Select Board to join them in continuing to challenge the proposed development.

"The (Housing Appeals) Committee failed to balance the Town’s local concerns against the need for housing, failed to properly credit the Town for compliance with the affordable housing requirements of the Act, and ignored the Board’s unrebutted expert evidence on local infrastructure issues such as sewer service and fire safety," the Zoning Board's attorneys from KP Law wrote in the complaint. "The Board respectfully requests that this Court reverse and vacate the Committee’s decision, and remand the application to the Board for a public hearing and decision on the new project proposal which the Developer presented for the first time on appeal."

Surfside Crossing, proposed by developers Jamie Feeley and Josh Posner, 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, or a total of 39 units within the development. Feeley and Posner called the town's decision to join the appeal "incomprehensible" given the island's affordable housing crisis.

"Given the real and timely need for more housing options, the Town’s appeal of the recent HAC decision allowing Surfside Crossing to move forward is more than disappointing – it is incomprehensible," Feeley and Posner said in a statement shared with the Current on Tuesday. "The project will substantively improve the home ownership opportunities for Nantucket’s year-round residents: we have committed to reserving 50% of the homes for year-round islanders and remain interested in working with the Town or any other stakeholders, to reserve up to 75%, or even potentially 100% of the units for year-rounders. Unfortunately, the additional delays and associated legal costs make this increasingly difficult. Our team has made multiple efforts to identify collaborative paths forward, including possible compromises, all with the goal of creating additional year-round restricted units. We continue to urge the Town to work cooperatively with us to expedite the production of these units, and to find a feasible way to reserve an even greater percentage of this development for islanders. However, additional litigation is not serving this process, it only makes collaboration where our goals are aligned, harder to accomplish."

The HAC's ruling last month vacated the Nantucket Zoning Board of Appeals’ 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.

The 47-page decision was authored by Werner Lohe, the presiding officer of the HAC. Lohe wrote that “after concluding that the development is uneconomic at the much-reduced size approved by the Board (ZBA), we have reviewed the local concerns raised concerning the developer’s proposal, and conclude that they all have been or will be resolved in a manner that protects the health, safety, and other interests of the occupants of the housing and of nearby residents of the town.”

The Nantucket Tipping Point group, led by President Will Willauer and South Shore Road resident Meghan Perry, has continued to object to scale of the Surfside Crossing development, as well as the process by which it has proceeded at the local and state levels.

"The central argument is the extreme lack of due process," Perry said. "The HAC hearing was biased from the start and no local consideration was taken into account. There was a disturbing lack of the ability of local residents to be heard. The HAC decisions itself has several legal flaws that further remove local input to the process. We, like many including Nantucket Tipping Point, strongly believe this type of high density development is completely inappropriate for Nantucket and jeopardizes the health, safety, the environment and the general welfare of the entire community.”

The Nantucket Land Council has joined Nantucket Tipping Point in opposing the development over the past few years. Its appeal echoed the arguments of Nantucket Tipping Point, and also cited alleged procedural and substantive errors in the HAC decision.

"Our local Zoning Board of appeals never had an opportunity to review or weigh in on the redesigned Surfside Crossing development," Land Council executive director Emily Molden told the Current following the HAC decision last month. "We essentially have one agency and hearing officer in Boston deciding what is appropriate for this incredibly oversized development with zero local control or input. Nantucket’s local regulatory agencies, elected officials and community have no say in this permit...This development is not about providing affordable housing for the community. There is nothing to stop all remaining units outside of the state’s minimum required covenant units from becoming Short Term Rentals, and moving from a mixed housing development to all condos lends itself to that potential."

Surfside Crossing would include 117 market rate units at two price points – $450,000 to $825,000. The remaining 39 condos would be priced at affordable rates – between $261,000 and $373,000 – for qualifying individuals making 80 percent or below the area median income.

The state Housing Appeals Committee has final say over Surfside Crossing, even though the local Zoning Board of Appeals previously approved a scaled-down version of the project.

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.

Last May, when the Housing Appeals Committee conducted a site visit on South Shore Road, roughly 100 island residents turned out to protest the development and send a message to the committee in Boston.