OCEAN CITY — An historic Ocean City property near the Inlet could soon be coming down after a Worcester County Circuit Court judge last month opined it was encroaching on the town’s property on the east side of the Boardwalk.
The iconic building on the east side of the Boardwalk at South Division Street has been home to different businesses and enterprises since at least 1910 and for the last several decades has been home to a Dumser’s Dairyland ice cream parlor. It is one of just a couple of buildings that sit on the east side of the Boardwalk.
The ownership of the land on which the historic building sits was called into question last year after a 50-year agreement reached between the heirs of the original owner, Nathan Rapoport, and the town of Ocean City in 1966 expired. The building is owned by Nathans Associates, which includes the heirs of Nathan Rapoport, and has been leased to Dumsers for several decades.
In 1966, Nathans reached an agreement with the town to tear down the existing structure and erect a new larger building with a commercial interest, now Dumsers, on the Boardwalk level with living quarters above on a second level. When the 1966 agreement expired last year, the Town of Ocean City asserted its ownership rights of the property and requested Nathans Associates vacate the premises. Nathans Associates then filed suit in Worcester County Circuit Court asserting the Town of Ocean City had essentially abandoned its ownership of the parcel by allowing the structure on the site for over a century.
In simpler terms, the town owns what is technically called Atlantic Avenue, or all of the land east of the deeded properties on the west side of the Boardwalk including the beach all the way down to the high water line at the ocean’s edge. Atlantic Avenue was dedicated to the town by an act of the General Assembly a century ago and includes the Boardwalk and beach.
However, Nathans Associates through its civil suit filed last year asserts the city has abandoned its rights to the property on which the current Dumser’s location sits essentially by allowing the structure to remain on its dedicated right-of-way for over a century. The case went to trial in April and last month Judge Dale Cathell rendered an opinion in favor of the town of Ocean City.
As a result, Nathans Associates is enjoined from any use of the property after Oct. 31 and the plaintiffs are required to remove or demolish the structure by Dec. 31 unless some new agreement can be reached. There have been no discussions about saving the building, according to City Solicitor Guy Ayres this week.
“In May 2016, the Mayor and Council sent a letter to the property’s heirs asserting the 1966 agreement had expired and demanded they vacate the premises,” he said. “Nathans Associates then filed suit in Worcester County Circuit Court asserting they owned the property because the town had essentially abandoned it. The court ultimately didn’t see it that way and ruled in favor of Ocean City.”
In his lengthy opinion, Cathell agreed the town has an easement for all of Atlantic Avenue, which includes the Boardwalk and the beach all the way down to the low water mark at the surf’s edge. The judge’s opinion asserts the town has never abandoned the easement, despite allow the Nathans’ building to occupy a portion of it for over a century.
“The court finds that the town has never abandoned its interest in the use of Atlantic Avenue,” the opinion reads. “There is no evidence that the town ever expressed or implied that it intended to abandon its rights in Atlantic Avenue and all the evidence indicates a continuous public use of Atlantic Avenue since before 1904 until the present.”
For decades, the original building on the site housed various tourism-related businesses and enterprises. In 1966, Nathans Associates approached the city about an agreement that would allow the original structure to be torn down and a new, larger building be erected. Through the agreement, Nathans would begin paying property taxes for the building to the city and in return, Nathans would be allowed to continue to have the building on the town’s Atlantic Avenue right-of-way. The 1966 agreement was set for 25 years, which expired in 1991, with an option for another 25 years. The second 25-year option expired in 2016 and the city opted to assert its ownership and requested Nathans Associates remove the building that has stood in the same location in different incarnations for over a century.
“Even if the court could or would hold that the town had abandoned the easement, which it does not, it would not revert to Nathans because they are not and never have been successors to or in privy with the fee simple owners of the bed of Atlantic Avenue that is subject to Ocean City’s easement,” the opinion reads. “Apparently, the plaintiff’s position is also that Ocean City abandoned that portion of Atlantic Avenue upon which the building sits because Ocean City has not heretofore required its removal and allowed it to remain where it is.”
The opinion continues, “To the east of the Rapoport property, the city has maintained a public parking lot for many years and has, for the whole length of the north-south dimensions of the plat, operated the easterly portions of Atlantic Avenue as a public beach upon which it has placed lifeguards and performed cleanup operations on a regular basis. To hold to the contrary would be to hold that there is no public beach in Ocean City.”