Town And Land & Water Council Join Legal Challenge Of State Approval Of Surfside Crossing

The Town of Nantucket’s Zoning Board of Appeals (ZBA) and the Nantucket Land and Water Council (NLWC), a local environmental advocacy group, have filed suit to overturn a state Housing Appeals Committee decision that approved the controversial Surfside Crossing housing development.

In separate suits, the ZBA and the NLWC have joined a group of nine neighbors in attempting to block the Housing Appeals Committee’s recent decision, which would have allowed the 156-unit housing development to go forward.

“The Committee has now issued yet another decision which is premised on an erroneous interpretation of law under the Act and its implementing regulation…and is also not supported by substantial evidence on issues of Local Concern as defined therein,” the town wrote in its appeal. “The Committee's April 13, 2026 decision supplanting the [ZBA]’s comprehensive permit decision is legally erroneous, arbitrary and capricious, and not supported by substantial evidence.”

The Town had already promised to fight the Housing Appeals Committee’s decision, and the challenge from the NLWC, which has long opposed the development, was also expected following the Housing Appeal Committee’s approval of the controversial project.

“As outlined above, HAC's Decision exceeded the statutory authority or jurisdiction of the agency, based upon errors of law and unlawful procedure, unsupported by substantial evidence and was arbitrary, capricious and an abuse of discretion,” the NLWC wrote in their appeal.

Developers Jamie Feeley and Josh Posner have spent the better part of eight years battling opponents in court over the development, which was first proposed in 2018.

“Homeownership builds generational wealth. It creates stability. It gives people a stake in the community,” Josh Posner said in a statement provided to the Current after the Housing Appeals Committee decision was released. “If we are not collectively as a town, creating appealing ownership opportunities for working families, we need to ask why. What's the alternative being offered? More studies and task forces while another generation is displaced?”

The latest suit marks a change of course for the town, which had announced a “collaborative agreement” with the Surfside Crossing developers in 2023 after dropping its previous appeal of the project.

The ZBA’s suit accuses the Housing Appeals Committee of several procedural and legal failings, including ignoring the town’s ongoing affordable housing efforts and disregarding Nantucket’s unique local needs. It also claims that the decision “was arbitrary and capricious treating Nantucket as an ordinary ‘suburban’ community where affordable housing can be built to serve "regional" housing needs.”

In their lawsuit, the NLWC claims that the Housing Appeals Committee had “no jurisdiction” over drinking water regulations implicated in the case, ignored stormwater concerns, and did not consider all of the relevant evidence submitted as part of the appeal. The lawsuit also alleges other procedural issues, defects related to drinking water and stormwater, and a pattern of disregarding expert testimony.

“The agency cannot rest its decision making on credibility determinations when it never had the opportunity to see, hear or evaluate Plaintiffs’ experts, who were never called to testify on cross examination,” the lawsuit reads in part. “Testimony from Plaintiffs experts should have been given equal consideration as the testimony of other experts from Developer, but were not.”

The NLWC’s suit also raises the same concerns about the Housing Appeals Committee’s determination regarding regional housing needs that the ZBA’s suit does.

“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 Housing Appeals Committee decision reads in part.

In their suit, the neighbors allege that the Housing Appeals Committee’s decision was arbitrary and capricious, ignored serious pubic safety concerns, “impermissibly” waived the Nantucket Historic District Act, did not consider public health concerns related to blocking sewer mains, and involved a hearing officer who was unfairly biased against the project’s opponents.

The neighbors include prominent members of the Nantucket Tipping Point, an island advocacy group opposed to Surfside Crossing, such as Meghan Perry.

The Housing Appeals Committee is a state agency tasked with adjudicating disputes over subsidized housing projects. Surfside Crossing was proposed under Chapter 40B, a state law that permits housing under flexible rules in communities that have not already built sufficient affordable housing, if at least 20 to 25 percent of the new units have long-term affordability restrictions. Nantucket is in safe harbor from 40B now, meaning unfriendly developments can’t proceed, but it was not when Surfside Crossing was first brought forward.

Surfside Crossing’s opponents have not yet succeeded in blocking the project, but they have won years of delays, repeatedly pushing back construction. The return to Superior Court could be good news for them: in 2024, the Superior Court vacated a previous Housing Appeals Committee decision.

The Housing Appeals Committee overturned the ZBA’s initial ruling on Surfside Crossing, but the Superior Court vacated their decision and remanded the case back to the ZBA, which denied the development. The Housing Appeals Committee then overturned the ZBA’s denial a second time, and the case is back in Superior Court again. The ZBA and the NLWC will now hope the pattern continues to repeat itself.

Posner and Feeley have long maintained that the development is a key part of Nantucket’s fight against housing insecurity.

“We're happy to move past this hurdle and get back to work,” Feeley said. "We've rigorously invested our time, resources, and energy — all at risk — to create pathways to ownership for the teachers, nurses, tradespeople, and families who keep this island functional.”

Surfside Crossing’s 156 condominium units would be contained within 18 three-story buildings off South Shore Road that were cleared in August 2023. 39 of the units would be required to be deed-restricted to residents earning at or below 80 percent of Nantucket’s area median income, while the other 117 units would be sold at market rate, priced between $500,000 and $1.5 million.