Zoning Board of Appeals Signals Denial Of Surfside Crossing

Following a hearing the stretched over six months, the Nantucket Zoning Board of Appeals began its deliberations on Wednesday regarding the controversial Surfside Crossing project. It quickly became clear the board is prepared to deny the project, setting the stage for another appeal by the developer to the state Housing Appeals Committee. 

The 40B project - first proposed back in 2018 - would include 156 condominium dwellings in 18 multi-family dwelling units off South Shore Road, a portion of which would be sold at affordable rates. But members of the ZBA on Wednesday indicated that their concerns about the project’s potential impact on water quality, fire safety, and access to the site outweighed the need for additional housing units that would be created by Surfside Crossing.

"Given the testimony regarding the unknown issues associated with water quality and the other potential dangers relative to fire, the single access, all of those things, lead me to the conclusion that those potential risks don’t outweigh the need for this project," said ZBA member Lisa Botticelli. "It’s very hard. If you know there is potential to damage the aquifer, no one will know that until it's too late."

A formal denial is expected to be ratified by the ZBA in April.

While Surfside Crossing developers Jamie Feeley and Josh Posner declined to comment following Wednesday's hearing, they are expected to appeal a denial to the state Housing Appeals Committee, which rules on disputes over 40B projects and previously endorsed the plans for Surfside Crossing.

During a previous hearing, however, Feeley emphasized the dire need for housing solutions on Nantucket.

“We all know the need is tremendous,” Feeley said. “If we as a community have any hope of retaining those so vital to our daily existence, we need to offer viable homeownership opportunities. We all know firemen, police officers, teachers, coaches, Steamship workers, restaurateurs, tradespeople, and retailers who have come for Nantucket’s beauty and charm, but when the hard realities around housing set in, pack it up for more affordable communities. We have a revolving door for our young professionals and entrepreneurs, that is not sustainable. This project is a solution. Not the solution, but part of the solution.”

On Wednesday, after numerous hearings spread out over the past six months, the members of the Zoning Board of Appeals (ZBA) did not mince words about their dissatisfaction with the Surfside Crossing developers and their plans for the project.

"They’ve had plenty of time, plenty of chances and opportunities, and they have the resources with all their experts, they have not come forward with any suggestions or ways to remedy our issues, the town’s issues, and the abutters' issues," said ZBA member Elisa Allen. "They’re showing zero effort in reaching across the aisle on this and making anyone comfortable, especially with the water quality, the access, and the possibility of fire, and the dangers of that, the traffic, the density. There are just too many negatives...We’re all aware if they were willing to negotiate and willing to meet us halfway on anything they would have by now."

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 hearing before the ZBA was 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 in January 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.

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 last August. 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. The other 117 units would be sold at market rate, priced between $500,000 to $1.5 million.

The project developers started clearing the property last August 2023 under protest and acknowledged they were starting construction on an "at risk" basis with the legal appeals still pending.

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.