NLC Appeals Surfside Crossing Conservation Management Permit


The proposed c. 40B 156 unit Surfside Crossing condominium development to be located on 13.5 acres on South Shore Road has been controversial since it was first proposed as a mix of single family homes and condominiums by developers Jamie Feeley and Joshua Posner in 2018. The Nantucket Zoning Board of Appeals, the local agency tasked with evaluating c. 40B projects on the Island, granted a responsible permit for a scaled down project of 60 units, consisting of 40 single family homes and 20 condominium units, which could have allowed a substantial project to be constructed while doing a better job of balancing additional community needs; still protecting the neighborhood and reasonable portions of the site.

The developers appealed to a state agency in Boston, the Housing Appeals Committee (HAC), which granted a permit for a newly revised project consisting of 156 condominium units (no single family homes), contained in 18 medium rise apartment buildings, allowing development on a scale totally unsuited to the area. The project, if built, will occupy virtually the entire 13.5 acre site, an environmentally critical Pitch Pine forest located in the middle of the Island in an area of low density housing and other open space, which is home to many rare and endangered species. The Land Council strongly supports the Island’s efforts to responsibly create housing for all of Nantucket’s residents. But, despite misinformation from its proponents to the contrary, the project will do little if anything to alleviate Nantucket’s low and moderate income housing crisis.  While ¼ of the units are required under state law to qualify as affordable housing (80% AMI), ¾ of the units will be market rate housing, and will likely become short term rentals as the developers have refused to commit to keep them as year round housing. This will only create a greater demand for services without providing adequate housing, while exacerbating traffic and unduly burdening infrastructure and the environment.

Thanks to significant effort by the Town and island housing organizations, Nantucket has now met the state mandated minimum goals for creating low and moderate income housing under c. 40B, and if this project were proposed today the Town would not even have to consider it.  Since it was proposed shortly before the Town met the requirements, the Town’s agencies and officials, and local interests and citizens, have had no real say in the state’s approval process.

As part of the ongoing regulatory process regarding this project, The Nantucket Land & Water Council participated as a full party in the c. 40B evaluation before the ZBA and at the permit hearing at the state agency, the HAC, which ultimately issued a permit approving the 156 condominium units.  The HAC didn’t even agree to let the Land Council participate, and had to be ordered to do so by the courts.

Clear-cutting of Surfside Crossing Undermines Endangered Species

The Nantucket Land & Water Council was incredibly disappointed by the very deliberate efforts of Surfside Crossing developers Jamie Feeley and Josh Posner to clear-cut the Surfside Crossing site on January 28th, before full review could take place. It took the intervention of the Nantucket Sheriff before representatives of Surfside Crossing produced a copy of their Conservation Management Permit (CMP) authorizing the clearing issued by the Natural Heritage and Endangered Species Program (NHESP).

While Surfside Crossing had completed the Massachusetts Environmental Policy Act (MEPA) filing process in 2020, the CMP is required to proceed with work when the state has determined that the proposed project will result in an actual negative impact to rare or endangered species, as is the case with Surfside Crossing. Although the Land Council was a party in the administrative proceedings (appeal) at NHESP, and was entitled to notice of the issuance of the Conservation Management Permit, we were never notified. This was clearly not about clearing the land in preparation for construction, this was about dropping the Pitch Pine as quickly as possible in order to get ahead of the original January 30th deadline for the uplisting of the Northern long-eared bat to Endangered Species status under the Federal Endangered Species Act.

NLC Appeals Surfside Crossing Conservation Management Permit

On February 17, the Land Council appealed the Conservation and Management Permit issued by the state Natural Heritage and Endangered Species Program (NHESP) for the Surfside Crossing site on South Shore Road, Nantucket. This initial administrative appeal was to the NHESP agency itself, a necessary prerequisite to any further appeal to Superior Court.

In the appeal, the Land Council contests the substance of the permit because it does not meet the performance standards required under the Massachusetts Endangered Species Act (MESA) to mitigate the “take” of a protected species and destruction of nearly twelve acres of protected species’ habitat. Specifically, it allows the permanent loss of that legally protected habitat for a payment of money, rather than setting aside over twenty acres of similar habitat elsewhere, as the law requires and as the Developer promised. If allowed to stand, this unprecedented “buy-down” of protected habitat would be the first of its kind on Nantucket.

As detailed in the Notice of Claim and Affidavit, copies of which can be found here, the Land Council has expended untold resources over many years to protect the unique mid-Island pitch pine habitat found on the Surfside Crossing site and nearby. The appeal furthers that investment, while preventing the odious precedent of allowing developers to simply pay to destroy legally protected land without preserving the species or its habitat.

Ongoing Appeal of Comprehensive Permit for Development

In addition to destroying rare habitat that should have been preserved for endangered species, clear-cutting the Surfside site was also done without any permit from the Town of Nantucket. No building permit has been applied for or issued. The comprehensive permit issued by the ZBA for the c. 40B project is not in effect, as the appeal from the decision by the state Housing Appeals Committee (HAC) overruling our local ZBA is still pending. That HAC decision is not a permit, and it is under judicial review in Nantucket Superior Court after three separate parties (NLC, Town ZBA, and Tipping Point) appealed for a host of reasons.

Less than 48 hours before clear-cutting the site, the Court had scheduled a hearing for later this spring (May 11, 2023 at 10:00 am in Nantucket Superior Court) on the consolidated appeals of the Land Council, the Town ZBA and Tipping Point abutters. The Developers’ actions to clear the site were deliberately calculated to undermine the Court’s review of the pending appeals, before they could even be heard.

These developers are the same two individuals who were responsible for dumping contaminated sand over the bluff in ‘Sconset, and who utterly failed to meet their mitigation obligations under the Conservation Commission permit regarding the geotubes. They have shown little regard for the regulatory process, or for the people or environment of Nantucket. The Land Council will continue to oppose these kinds of activities.  It is what we were founded to do, and what we have done for nearly 50 years.