Nantucket commission closes hearing on Summer House dune dining after split debate; final order deferred

The Nantucket Conservation Commission on Nov. 6 closed the public hearing on an application by the Summer House of Nantucket seeking to regularize seasonal dining on an open sandy area adjacent to the pool at 10 and 16 Ocean Avenue, but did not vote on a final order.

Counsel Valerie Moore told the commission the dining activity "predates both the bylaw and the act" and presented multiple sworn affidavits and expert analysis arguing the use is grandfathered. Owner Danielle de Benedictus said she has visited the property yearly since the 1970s and that the dining use has been "continuous and open." Coastal geologist Stan Humphreys testified the dune is a secondary dune and, he said, not demonstrably harmed by the activity.

Commissioners debated three narrow issues: whether the activity is jurisdictional under the Wetlands Protection Act and the Nantucket wetland bylaw; whether the submitted affidavits and aerial photos meet the commission's burden of proof for a preexisting-use waiver; and, if grandfathering is accepted, whether conditions limiting season dates and number/placement of tables are required. Chair Seth Engelberg said the commission must specify any permitted season and a maximum number of tables if it accepts a preexisting use. Will, staff, advised the commission that, if grandfathering is allowed, the order must expressly limit any allowed activity to numbers and dates supported by the record.

The hearing was initially put to a roll-call vote to close but did not carry on the first vote after several commissioners said they still had questions; after additional discussion and confirmation of the evidentiary record the commission later voted to close the hearing and asked staff to prepare both a positive order (permitting grandfathered use with conditions) and a negative order (denying the preexisting-use claim) for consideration at the next meeting. The commission set a further review of the item for Nov. 20 and asked staff to draft orders reflecting both outcomes so commissioners could move directly to a final decision then.

The applicants provided a seating plan from March 2023 (10 six-seat tables depicted) and the applicant's representatives said recent aerials (2023) show a smaller footprint in practice; counsel said the parties can provide exact seasonal opening dates (applicant said mid-June through mid-September) and that the applicant takes the chairs and tables down after service each day. Several commissioners said they remain concerned about potential dune impacts and foot traffic through vegetation and asked staff to include monitoring and firm limits in any positive order.

Next steps: staff will draft both positive and negative orders of conditions and place the item on the Nov. 20 agenda for a final vote. The commission did not extend the enforcement order beyond the record of tonight's meeting; staff said the record documents the applicant's attendance and the commission's proceedings.

Speakers (attributed in text above): Valerie Moore, attorney for the applicant; Stan Humphreys, coastal geologist; Danielle de Benedictus, property owner; Will (conservation staff); Chair Seth Engelberg. Subsequent references to commissioners use surnames as recorded in the meeting.