Select Board Drops Surfside Litigation Without ZBA

After nearly four years of litigation against the 156 unit Surfside Crossing 40b, the Select Board recently voted in a narrow 3-2 vote to walk away. Until then, the Nantucket Land & Water Council (NLC), along with a group of abutters and neighbors had been working in concert with the Town to challenge the negative impacts from this project.

While Nantucket has come a long way in the past 5 years to increase the amount of housing available to a wide range of community members, there is still much to be done. It is critically important, however, that we continue to balance other community needs and interests along the way. Surfside Crossing has failed miserably at doing so. That is precisely why the Zoning Board of Appeals (ZBA), just last fall, voted to appeal the Housing Appeals Committee (HAC) decision allowing the project to proceed. The NLC and the neighbors who also appealed the decision had their cases consolidated with the ZBA’s own case, and motions on this matter are scheduled to be heard as soon as May 11th.

So why did the Select Board act, with two dissenting votes, to dismiss the litigation? Apparently, it was in demonstration of some solidarity with the developers around a set of principles that considers the potential of restricting additional units within the development to better support the community’s needs. Town Counsel has made it perfectly clear that nothing about these principles is binding. There has been no successful negotiation or settlement. The Town has actually gotten nothing in return for walking away from the case. These principles also make it perfectly clear that any potential restrictions on additional units will not affect the developers’ bottom line and will need to be subsidized by third-party entities, or by the Town itself.

One of the most challenging aspects of the Select Board’s vote to understand is their failure to involve their own regulatory agency, the ZBA, whose members the Select Board appointed to be the experts on the regulation and permitting of 40b developments. The members of the ZBA are our community experts on this project. They did not believe the HAC’s decision did enough to mitigate for the negative impacts from this project and to balance the community’s needs. In fact, neither the ZBA, nor any local agency, has had the ability to review the most recent edition of the developers’ plans, which increased the number of units permitted by the ZBA, 60 mixed single family homes and condominium units, to 156 condominium units. This was one primary reason for their appeal. But the ZBA’s expertise and concerns have been usurped by a 3-2 vote of the “executive authority” governing litigation for the Town, without even consulting them.

The Nantucket Land & Water Council intends to move forward with its appeal of the HAC decision, together with the neighbors’ group, Tipping Point, as well as our appeal of the Conservation Management Permit issued from the Natural Heritage and Endangered Species Program.