The Nantucket Conservation Commission on July 10 continued a hearing on a notice of intent for the Summer House of Nantucket Realty Trust at 10 and 16 Ocean Avenue so the applicant can supply documentation to prove a continuous, pre-1972 "dining in the dunes" use.

The matter before the commission, according to the applicant's attorney, is limited to removal of portions of an existing deck and relocation of a shed; the application does not seek approval for ongoing dining in the dunes. "We've provided the commission with several supplemental materials to augment the record," said Valerie Moore, attorney with Nader, McLennan & Fish, and she said the applicant also submitted affidavits and a coastal-geology report to support the position that the dining activity predates regulation.

Commissioners said the legal standard for a preexisting-use waiver requires proof that the activity has been in continuous use since before the Wetlands Protection Act (1972) and the Nantucket Wetlands Bylaw and that it has not been abandoned for any period of five years or more. The commission asked the applicant to provide definitive, year-by-year evidence — examples cited included affidavits, aerial photos, receipts, photographs and other documentation — showing the dining activity continued without a five-year interruption.

Stan Humphreys, a coastal geologist who submitted a supplemental report, told the commission by phone that his site visit and aerial-photo interpretation led him to conclude there is "a negligible value to the dune stability" from the sparse beach grass in the area used for dining and that, in his view, the activity would produce no adverse effect on the secondary dune. Project representative Art Gasparo (spelled in earlier materials as Art Casparo) said he and consultants marked the edge of the bare-sand area on the plans to show precisely where the activity occurs.

Public commenters included Willa Arsenal of the Nantucket Land and Water Council, who said allowing an unregulated commercial use on a sensitive dune area could create a precedent that would weaken the commission's ability to manage similar impacts across the island. Trustee Danielle De Benedictis, speaking for Nantucket Realty Trust, said she has personal and institutional knowledge of continuous food-and-beverage service on the site since the 1970s and offered to gather additional affidavits and historical materials.

The commission agreed to continue the hearing and gave the applicant time to compile and submit year-by-year evidence of continuous dining use; the applicant requested and the commission set the next hearing date for August 7 to allow submission of affidavits and supporting documents. The commission emphasized the burden of proof is on the applicant to demonstrate no five-year gaps in the claimed preexisting use before the commission can grant a waiver.

The commission did not make a determination on whether dining in the dunes is jurisdictional under the Wetlands Protection Act or the Nantucket Wetlands Bylaw; commissioners said if the activity is found jurisdictional and not grandfathered, they would then evaluate it under the statutory performance standards.

The public hearing remains open and the commission will consider the supplemental materials at the August 7 meeting.