News

 A draft decision from the Housing Appeals Committee (HAC) regarding Surfside Crossing (SSX) has been released.  HAC has chosen to approve with a rubber stamp this proposed 156 all condominium unit mid-island apartment complex thus continuing to enable aggressive for-profit developers to exploit the flawed 40B law.  Unfortunately, this draft decision further incentivizes vulturous profit seeking investors to over monetize Nantucket and in this case under the guise of providing some affordable housing as small part of the project.

While the island needs affordable housing, this law does not take into consideration protecting Nantucket’s National Historic Landmark Designation, the fragile natural environment and our health, safety and welfare in the overwhelmed infrastructure with dangerous overcrowding and snarled traffic as examples.  Given this, clearly the focus needs to pivot from trying to figure out how to accommodate the side effects of irresponsible development to determining basic carrying capacity thresholds from which informed decisions can be implemented to create change.

Nantucket Tipping Point (NTP) is determined to continue to combat reckless high-density development, preserve the island’s fragile habitats, encourage historic preservation and fight for our health, safety and welfare.  This past Thursday, in response to the draft decision, Nantucket Tipping Point (NTP) along with the Nantucket Land Council (NLC) and separately the Town of Nantucket (TON) have filed objections to the draft decision but ultimately the next step is Superior Court for which we will need significant support!   

October 29, 2020

 
Surfside Crossing

Claiming that the 60-unit plan approved by the Nantucket Zoning Board of Appeals (ZBA) in June 2019 is “uneconomic”, Surfside Crossing has appealed to the Housing Appeals Committee (HAC) in a de novo hearing. A de novo hearing means that the court will decide on the issue without any previous information as if the case is being heard for the first time and the fourteen months of ZBA hearings on Nantucket never happened.   In March 2020, Surfside Crossing submitted an all-new 156-unit development comprised entirely of eighteen multi-unit condo buildings, a community building, pool and game court - all only available to residents of the development.  

 Surfside Crossing's entirely new designed condo complex. Condos are in red and pavement or other impervious surfaces are in black 

The Housing Appeals Committee has determined that the submission of an all new plan, with only multi-unit condo buildings does not constitute a “substantial” change and does not require additional Nantucket ZBA involvement.

Nantucket Tipping Point is deeply concerned by the Housing Appeals Committee’s determination and their denial of local input on such a large, high-density development. We understand that this condo complex has the potential to gravely impact the health, safety, and welfare of the public, and the environment of the entire island. This development continues to be inconsistent with local needs and sustainability. Please keep in mind that anyone can purchase these condos. The 25% of the units deemed “affordable” are technically open to anyone living in Massachusetts who meets the income criteria. The rest of the units will be sold to the highest bidder.

Surfside Crossing argues that the 60-unit Comprehensive Permit approved by Town of Nantucket Zoning Board of Appeals renders the project “uneconomic” and each condition required by the ZBA has more than a minimal negative economic impact on the project. Surfside Crossing claims that 48 out of the 154 conditions from the Comprehensive Permit listed in the appeal render the project “uneconomic” citing basic conditions such as setbacks, appropriate lighting, etc. which any other home-builder would need to follow. (View original June 14, 2019 ZBA Comprehensive Permit here and the September 25, 2020 HAC Pre-Hearing Order here)

After over a year of ZBA meetings and endless review of legitimate concerns, Surfside Crossing claims the Town of Nantucket Zoning Board of Appeals “arbitrarily” and “capriciously” reduced the number of units. Please keep in mind that anyone can purchase these condos.

Our previous newsletter detailed that both the Town of Nantucket and the Nantucket Land Council submitted motions to replace the Presiding Officer of the Housing Appeals Committee citing conflict of interest concerns.  At this time, the officer in question, still stands to oversee HAC decision/determination.

Quick summary and actions of Legal Motions that have been filed:

The results of Motions that have been filed thus far - mostly under this new HAC presiding officer appointed in June 2020 – are:

1.  Based on the new plan submitted in March of 2020 the Town of Nantucket Zoning Board of Appeals filed a motion on May 13, 2020 for the project to be remanded back to the Board for Determination of Insubstantial Change. This would have allowed the ZBA to determine if the change was “insubstantial”. - Denied.
    
2. Town of Nantucket Zoning Board of Appeals filed a motion to dismiss the project due to lack of information or missed deadlines on September 6, 2019, February 12, 2020 and June 23, 2020- All Denied.
    
3. Town of Nantucket Zoning Board of Appeals filed a motion to Vacate Reassignment (replace the HAC Presiding Officer due to conflict of interest concerns), on June 15, 2020 – Denied by the HAC Presiding Officer.
    
4. Nantucket Tipping Point filed a motion to intervene which would have allowed for our participation in the HAC hearings on July 22, 2020- Denied.
    
5. Nantucket Land Council filed a motion to intervene which would have allowed for their participation in the HAC hearings on July 23, 2020- Denied.
    
6. Surfside Crossing officially requested a project change from their original 156-unit standalone single houses and some multi unit condo buildings plan to an all condo, 156-unit development comprised of eighteen multi-unit buildings, a community building, pool and game court - all only available to residents of the development. .  The Town, Nantucket Land Council and Nantucket Tipping Point filed opposition to the request at HAC however the new plan was accepted by HAC on July 31, 2020.
    
7. Town of Nantucket Zoning Board of Appeals filed a motion for Reconsideration of Ruling Entitled “Determination of Insubstantial Change” August 7, 2020 – Denied.
    
8. Town of Nantucket Zoning Board of Appeals filed a Motion to Stay in Nantucket Superior Court September 1, 2020. This motion seeks judicial review of the HAC acceptance of the new all-condo 156-unit plan as an “insubstantial” change from the original plan. Calling the HAC decision arbitrary and capricious, the motion requests that the matter be remanded back to the Nantucket ZBA, citing the removal of single-family homes, increase in building height and number of parking spaces, change in the landscape plans, and the decrease in usable open space and perimeter buffer areas, among several other changes. The Superior Court decision is yet to be determined.

Future timeframe of events:

November 4, 2020 – Deadline for Surfside Crossing to file their case trying to prove that the 60-unit plan approved by the ZBA and all the conditions of the plan (setbacks, appropriate lighting, etc.) are “uneconomic” and “arbitrary”.

December 16, 2020 – Deadline for the Town of Nantucket Zoning Board of Appeals to file their direct case as to why the permit detailing the decision and conditions issued in
June of 2019 should be upheld.

January 20, 2021 – Deadline for Surfside Crossing rebuttal of ZBA’s direct case filed
on December 16, 2020.

February 17, 2021–Deadline for Town of Nantucket Zoning Board of Appeals rebuttal of Surfside Crossing case filed on January 20, 2021.

February 24, 2021- Teleconference to schedule witnesses (for both SSX and TON) shall take place. The witness list can be found on the Order of Conditions here. Both the Town of Nantucket and Surfside Crossing can “strike any witness and any testimony from the record". While both Nantucket Tipping Point and Nantucket Land Council were denied as interveners, we are lucky to have Bruce Perry, environmental consultant and longtime island resident, and Emily Molden, Executive Director of Nantucket Land Council, listed as proposed witnesses.

March 3, 2021- At 10:00 a.m. The oral portion of the hearing will be held at Nantucket Town Hall. This meeting will be followed by a site visit. Nantucket Tipping Point encourages all who are on island during this hearing period to attend the hearing and let HAC know your concerns.  Additional sessions will be scheduled at the Committee’s offices in Boston.

Please know that we have always understood that 40B laws favor developers. The cards are stacked against the communities that are impacted by high-density developments, communities looking to mitigate the damage caused. Nantucket Tipping Point is committed to see this fight through, regardless of how difficult it is.

Last, but certainly not least, we would like to recognize the Nantucket Land Council and the Town of Nantucket for their tremendous and consistent support with their filing of Motions and Appeals in Nantucket Superior Court to challenge the determination and advocate for local review of the substantial changes to the Surfside Crossing development. We also could not work to protect Nantucket for future generations without the support of hundreds of Nantucket Community members – thank you!

PFAS update:

On October 2, 2020, the State of Massachusetts finalized the drinking water standards for PFAS that were in draft form since December 2019.

Massachusetts Department of Environmental Protection (MDEP) has set the Maximum Contaminant Level at 20 Parts Per Trillions (PPT) for the sum of six PFAS chemicals (PFAS6): PFOS, PFOA, PFDA, PFHpA, PFHxS and PFNA for all public water systems except transient non-community public water systems i.e. Golf courses, restaurants, motels, campgrounds and parks.

Acting proactively, Wannacomet Water Company, (The island’s public water supplier, tested five drinking water wells in early September for PFAS. Three drinking water wells came back with no PFAS compounds detected. Two drinking water wells came back with PFAS detected, but below the 20 PPT standard. Well 13 had 7.26 PPT and well 15 had 2.54 PPT. Detection of PFAS in public water supplies triggers Massachusetts Department of Environmental Protection Confirmatory sampling. Confirmatory results found levels of Non Detect in the drinking water well number 13 and results on well number 15 showed 2ppt so another set of testing results have been taken. Nantucket Tipping Point will provide updates as the information is made available..

Nantucket Airport continues the research and study the presence of PFAS in drinking water wells associated with the release of firefighting foam. The presence of PFAS in excess of the Massachusetts Department of Environmental Protection reportable concentration levels have been reported and a larger area of study is currently going on. Massachusetts Department of Environmental Protection will continue to evaluate and will expand the area as necessary.

Due to the ubiquitous nature of PFAS and the quickly evolving science pertaining to fate and transport of PFAS, source evaluation will be an on-going evaluation as data, sources, geology, etc. become available.

Most recently 8 soil samples were collected in the vicinity of Nantucket Memorial Airport’s Taxiway E. One sample detected PFOA above the Massachusetts Contingency Plan Soil Standard.

Meanwhile, Nantucket is leading the way in PFAS-free firefighter turnout gear. Firefighter Sean Mitchell has been presenting on multiple outlets and the Town of Nantucket has just granted funding for new turnout gear for the fire department that is PFAS free.

Nantucket Tipping Point will continue to attend meetings and keep you informed as more information is made available.

Have you had your drinking water tested or your blood tested for PFAS chemicals? Do you need help interpreting the results? Nantucket Tipping Point’s friend Dr. Laurel Schaider at the Silent Spring Institute, a world-renowned organization that has been leading the fight against environmental pollutants for decades, has created a helpful website here to help you better understand what your results mean and how to help limit your PFAS exposure.  Nantucket Tipping Point looks forward to more collaborations with Dr. Schaider and the Silent Spring Institute.

Once again, October marks the end of NTP’s $20,000 Match. We are so thankful for those who have helped donated so far, and ask that, if you can’ please make a tax-deductible donation to NTP here. 

September 11, 2020 

PFAS and Nantucket 

In July, Nantucket Tipping Point sponsored a PFAS (pre-and poly-fluoroalkyl substances) webinar hosted by John Coon, JD, PhD that explained what PFAS is, the cause of PFAS contamination, and the potential hazards - especially given Nantucket's sole-source aquifer. Dr. Coon addressed the complexity of this issue including the health, legal, environmental, and ethical concerns. He also held a question and answer session after his presentation. 

You may recall that Dr. Coon spoke at a Surfside Crossing Zoning Board of Appeals (ZBA) hearing in 2018. He focused on Nantucket’s carrying capacity, highlighting the danger of PFAS contamination and our sole-source aquifer and urged us to be aware of potential sources on the island.

The webinar was made available to the public by NCTV18 and was accessible live, on Zoom, and the NCTV18 YouTube channel. It is also available here.  

This webinar was very timely given that PFAS levels at Nantucket Airport monitoring wells, along with the wells of private homes near the airport, have been tested and came back with higher than allowable detection amounts. To date, 14 out of 48 wells have tested at unsafe levels of PFAS. Many members of the public have been encouraging the Wannacomet Water Company to test the Public Water Supply since it has not been tested since 2013. The state allowable levels for PFAS were updated in late 2019.  Wannacomet Water Company began testing the public water supply last week and results will be back roughly 10 business days later. Nantucket Tipping Point will post the results here when they become available.  

 Surfside Crossing Update

 The project is currently at the Housing Appeals Committee (HAC) in Boston with hearings starting very soon with a pre-hearing conference on September 16, 2020. Both the Town of Nantucket and the Nantucket Land Council submitted motions to replace the newly appointed Presiding Officer of the Housing Appeals Committee (HAC), Werner Lohe, citing conflict of interest concerns. Both motions were denied. 

 Mr. Lohe also denied motions by Nantucket Tipping Point and the Nantucket Land Council to intervene as interested parties, thereby denying them an official seat at the table. This means that Nantucket Town Counsel will be the only party in attendance to defend against Surfside Crossing's appeal of the Zoning Board of Appeal's 60-unit permit. (see timeline here). 

 Over the objections of Nantucket Tipping Point, Nantucket Land Council, and the Town of Nantucket, the Housing Appeals Committee determined that the new 156-unit, all condominium plan submitted by Surfside Crossing was an “insubstantial” change to the original plan submitted in 2017 (see timeline and images images here). Town counsel has filed a complaint in the Nantucket Superior Court seeking judicial review of that decision as arbitrary and capricious, and requesting that the matter be remanded (to the Nantucket Zoning Board of Appeals), citing the removal of single family homes, increase in building height and number of parking spaces, change in the landscape plans, and the decrease in usable open space and perimeter buffer areas, among several other changes. 

 The new Presiding Officer, Mr. Lohe, also denied a Motion to Stay filed by Town Counsel which asked that the Housing Appeals Committee delay the September 16, 2020 pre-hearing conference between themselves and Surfside Crossing until the Superior Court rules on the complaint mentioned above arguing that “The Housing Appeals Committee (HAC) proceedings overlap significantly and exist on a parallel track with the Superior Court case.  The Superior Court’s decision, however, will impact these HAC proceedings as it will result in the resolution of certain issues also pending before this adjudicatory body, one way or another…Therefore, it would be unnecessarily duplicative to proceed with the conferences and hearings before the Housing Appeals Committee in this case while the Superior Court action is pending.  Specifically, where these parallel proceedings affect the same project determinations, contain the same issues, and impact the same parties, they are so closely related that the judgment of the Superior Court will necessarily have an impact on the HAC proceeding". 

 What Happens Next: 

Nantucket Superior Court rules on Town Counsel’s complaint seeking judicial review of Housing Appeal's Committee's decision that the changes in the Surfside Crossing plan are “insubstantial”. 

Although Nantucket Tipping Point was denied the ability to be an intervener at the Housing Appeals Committee hearings, and therefore does not have an official “seat at the table",  we will continue to monitor the hearing process at the Housing Appeals Committee and keep you posted. 

 $20,000 Match

 Two generous Nantucket Tipping Point supporters have created the opportunity for a  $20,000 match challenge. Given the realities of fundraising during Covid, we have extended the deadline through October. Financial support for Nantucket Tipping Point has always represented a true cross section of the Nantucket community with donations from $5 to $10,000 being gratefully received! Please donate – in any amount – here. Thank you! 

July 3, 2020 

PFAS contamination found in wells on Nantucket 

In 2018, attorney John Coon, PhD, JD on behalf of Nantucket Tipping Point, brought the issue of groundwater contamination by chemicals such as PFAS and PFOS to the attention of the Nantucket Zoning Board of Appeals and the approximately 100 community members present at the meeting. 

On April 29, 2020 Weston Solutions,  an “environmental and infrastructure “ consultant that deals with hazardous waste and its remediation, issued an Immediate Response Action Plan (linked below) for Nantucket Memorial Airport (ACK).  This plan is a preliminary evaluation of the groundwater contamination in the airport area – “preliminary” because most of the properties in question are seasonal and the consultants were not able to get access to test the well water. The areas of immediate concern are at the airport and the 22 properties south of the airport in a residential area along Madequecham Valley Road.  Of the drinking water supply and monitoring wells that were tested, the presence of polyfluoroalkyl substances (PFAS) was confirmed (in varying concentrations).  Some of the levels of PFAS are at “concentrations representative of a potential Imminent Hazard (IH) condition if the water were to be consumed”. The report goes on to say that  "Additional water supply sampling may be required in residences located west of ACK, along Monohansett Road and Okorwaw Avenue, if it is determined that those residences are not supplied with municipal water."  

PFOS and PFAS are chemicals found in the fire-fighting foam used at airports for drills, training, and emergencies. The report states that “ACK is in the process of switching to fluorine-free foam, any potential release(s) are believed to be historical.”  And that the use of PFAS-containing foam is not “anticipated unless in response to an aircraft incident.” 

There are several reasons to be very concerned: 

• There are a number of significant health issues associated with exposure to PFAS.
• PFAS chemicals are of particular concern because once they are in the human body or the environment they are there forever - they do not break down.
• Remediation efforts, such as water filters, will need to be maintained indefinitely/forever.
• Contamination of Nantucket’s sole-source aquifer would be catastrophic.

See Links below for the reports submitted to the Nantucket Memorial Airport from Weston Solutions: