In 1987, Appeals Court Overturned Boardwalk Property Case

OCEAN CITY — Although most lower court appeals are unsuccessful, it appears in the ongoing case involving a landmark Boardwalk building that recent history might be on the side of the family.

In July, a Worcester County Circuit Court judge ruled in favor of the Town of Ocean City in a land ownership dispute with the heirs of an historic building on the east side of the Boardwalk near South Division Street near the Inlet. The ownership of the land on which the iconic building sits was called into question after a 50-year agreement reached in 1966 between the heirs of the original owners, Nathan Rapoport, and the Town of Ocean City expired.

The Rapoport heirs have until Oct. 31 to vacate the building, which they have leased to Dumser’s Dairyland for decades, and until Dec. 31 to remove or demolish the historic structure that lies in the city’s easement or right-of-way known as Atlantic Avenue. The Rapoport heirs, known as Nathan Associates, will appeal the decision.

The appeal has not yet been filed and it remains to be seen if it will be successful, but there is certainly precedent for it. In 1987, the Ocean City Mayor and Council brought action seeking to have Windsor Resort, Inc., or Trimper’s Rides, remove two buildings on the east side of the south end of the Boardwalk. One of the buildings is currently leased to Kohr Brothers, and has seen different tenants over the years including a Burger King for several years. The other has been home to Souvenir City for decades.

Essentially, the city contended the buildings represented an encroachment on or partial obstructions to the strip of easternmost land delineated as Atlantic Avenue. The Worcester County Circuit Court agreed and ordered Windsor to remove the buildings, but Windsor appealed. The Maryland Court of Special Appeals ruled the circuit court decision was erroneous and ruled in favor of Windsor and the buildings remain in place today.

In its 1987 opinion, the Court of Special Appeals asserted the Town of Ocean City had not been successful in establishing ownership of the land known as Atlantic Avenue.

“The appellant raised several issues of which we need only address two,” the opinion reads. “Does the city produce sufficient evidence to support a finding that it effectively accepted the dedication of the land on which the Windsor buildings stand? Does the city possess fee title to Atlantic Avenue? Our answer to both questions is in the negative, thus we shall reverse the judgment of the court below.”

The 1987 Court of Special Appeals opinion disputes the notion Atlantic Avenue, or the Boardwalk and beach, were ever dedicated to the town through an act of the General Assembly. It’s complicated to be sure, but essentially, the high court’s opinion suggests the land known as Atlantic Avenue was dedicated to the city, but the city never formally accepted the dedication.

“The first contention that the city is the owner of the land in question by virtue of dedication is patently erroneous,” the opinion reads. “The interest that the public or a governmental entity on behalf of the public can acquire through dedication of a street or way, or a park of any other facility for public use, is an easement or right of user, not a fee. The remaining bases for the city’s claim to ownership of Atlantic Avenue are equally flawed.”

Again, the Court of Special Appeals opinion in 1987 in favor of the Windsor appeal suggests the city had shown no real interest in the two buildings in the Atlantic Avenue right-of-way and hadn’t accepted the dedication through the act of the General Assembly.

“The city presented no evidence of any statute referring to Atlantic Avenue as it lies between South Division Street and South First Street that could possibly constitute acceptance by statute or other legislative act,” the opinion reads. “The record is totally devoid of any evidence that the city, prior to 1962, had ever expended public funds or undertook in any way to maintain any part of the beach area described on paper as Atlantic Avenue. It was the abutting landowners who maintained that land, constructing the Boardwalk and placing pilings in Atlantic Avenue to protect the beach and their properties.”

The Court of Special Appeals’ 1987 opinion suggested it was somewhat disingenuous of the city to lay a claim on the property on which the two buildings sit decades after they had been established.

“So far as the record indicates, the town had been incorporated for 82 years before it first demonstrated any municipal interest in Atlantic Avenue be accepting the responsibility for maintaining the Boardwalk, which had been damaged by the storm. By that time, Windsor clearly had acquired by adverse possession a fee interest in the land upon which its buildings stood.”

It remains to be seen if the Rapoport heirs will be successful in their appeal on the Dumser’s building, but the 1987 Court of Special Appeals’ opinion certainly provides precedent. While it is complicated and the issues are different in both cases, the fundamental principles appear to be similar.

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.