UPDATE: Ocean City Mayor Rick Meehan confirmed Thursday afternoon the town does not intend on enforcing these deadlines reported on below due to the ongoing court matter. Meehan said the town will let the process play out and not enforce any changes to the property while the court considers the appeal.
“The family has the right to the appeal process and we have no objection to everything operating as is until that plays out,” Meehan said. “This is the right thing to do for everyone involved. We will not enforce these ordinances until the court process is concluded.”
That essentially means Dumser’s Dairyland will be able to operate at the south Boardwalk location through the fall season while the matter is decided in court. It could be months before the matter is heard by the court and even a year before an opinion is rendered.
_________________________________________________________
OCEAN CITY — With the calendar flipping over to October this week, the fate of an iconic building on the east side of the Boardwalk still hangs in the balance while its heirs await a ruling on an appeal that could save it.
The historic building on the east side of South Division Street has been home to a Dumser’s Dairyland ice cream parlor for decades.
Ownership of the property was called into question last year after a 50-year agreement expired between the town of Ocean City and the heirs of the original owner, Nathan Rapoport, who first built the structure on the east side of the Boardwalk as far back as 1905. After a trial last April, a Worcester County Circuit Court judge this summer issued an opinion ruling in favor of Ocean City. As a result, the Rapoport heirs were enjoined from any use of the property after Oct. 31 and are required to remove or demolish the historic building before the end of the year.
Rapoport’s heirs, Nathans Associates, promptly filed an appeal with the Maryland Court of Special Appeals and that process is plodding along. In the meantime, Nathans Associates on Sept. 20 filed a motion to stay the operation or enforcement of the Circuit Court orders regarding the fate of the building while the appeal filed in Annapolis runs its course. However, that motion was denied by a Worcester County Circuit Court judge this week.
That decision was clearly a setback for the Nathans Associates and left in question the fate of the historic building with the clock now ticking on the order to vacate the premises by Oct. 31 and remove or demolish the building by Dec. 31, but the matriarch of the Rapoport heirs, Nathan Rapoport’s granddaughter Mona Strauss, was taking it in stride this week.
At 85 years old, Strauss is sharp, prepared and undaunted as she continues to lead her family’s battle to save the historic property. On the kitchen table of her north Ocean City home this week were binders filled with historic plats, legal documents, copies of letters exchanged over the years and countless photographs of the building in its various iterations.
Strauss said she was uncertain at this point what the fate of her grandfather’s historic building might be, but she was ready, willing and prepared to continue the fight to save it. The diminutive but feisty Strauss half-jokingly said she would chain herself to the building if that’s what it took, and it was easy to believe her with the conviction in her eyes. For now, however, she is content on letting the appeal run its course and allowing the appeals judges in Annapolis to make their decision.
“It’s a waiting game,” she said. “At my age, I have the patience to see this through. I just hope the judges are reading the material and make a reasonable decision on the facts because the proof is in the pudding.”
In 1966, Rapoport, in declining health and desirous of retiring in Ocean City where he and his family operated different businesses over the years in the building, reached an “agreement” with the city to tear down the existing structure and build a new and improved building on the site with a commercial interest on the Boardwalk level, now Dumser’s, and living quarters on the second floor.
The agreement expired in 1991 and the Rapoport’s heirs, now Nathans Associates, exercised their option on a second 25 years under the language in the agreement. That second 25-year option on the 1966 agreement expired last year and the city asserted its jurisdiction over the property, which sits in the right-of-way for Atlantic Avenue, or all of the property east of the deeded properties on the west side of the Boardwalk.
Strauss said this week she knew the agreement was set to expire, but because the building had existed on the site for over a century and was home to a popular, thriving business, she thought it might quietly pass and the arrangement would continue. However, not long after the agreement expired, she got a letter from City Solicitor Guy Ayres essentially saying the city was asserting its ownership.
“I knew the day would come when they would challenge this,” she said. “Well, that day did come right after the expiration of the agreement.”
The dispute over ownership, or in the town’s opinion jurisdiction, ended up in Worcester County Circuit Court last year after the town sent a letter to Nathans Associates essentially stating the 50-year agreement had expired and it was time for the Rapoport heirs to abandon it and turn over ownership to the city.
Nathans Associates essentially claimed the town had abandoned any ownership rights to the property after the building had sat on the site for well over 100 years. The town asserted Atlantic Avenue, essentially the Boardwalk and the land east of it, had been dedicated to the public by a decades-old act of the Maryland General Assembly and was to be maintained by the municipality, regardless of the 1966 agreement that expired in 2016.
The case went to trial last April, and this summer Worcester County Circuit Court Judge Dale Cathell rendered an opinion in favor of the town. While the appeal plods along, the clock is now ticking on the deadline to vacate the premises and ultimately remove it.
Not long after the Circuit Court opinion was handed down in July, Mayor Rick Meehan released a statement defining the town’s position.
“This property known as Atlantic Avenue has been dedicated to the public, and by an act of the General Assembly, was accepted as a public way and the town is responsible to administer the property for the benefit of the public. The court recently rendered their decision, however, the town has yet to decide how to move forward with the property.”
The mayor’s statement goes on to say the city was asserting its ownership of the building for the benefit of the public.
“Dumser’s has been paying hundreds of thousands of dollars over the years to the Rapoport heirs while the true beneficiaries of this property, the taxpayers of Ocean City, have received very little in return. After many years, the town now has the opportunity to manage and maintain this location in a way that will ensure fair return and the best interest for our taxpayers,” he said.
However, Strauss said this week Nathans Associates has been paying city, county and state real estate taxes on the property every year since the 1966 agreement and has a binder with every tax bill in those 50-plus years. Before the agreement, Rapoport made an annual $350 contribution to the city’s fire department because without a deed, there was no means to collect property taxes on it.
“There were two essential purposes of the agreement,” she said. “One was to build a better looking building for Ocean City. The other was to establish a basis for real estate taxes. We didn’t want something for nothing. My grandfather gave $350 to the fire department every year because there was no deed. For many years after the agreement, the taxes owed on the property were less than the $350 he paid all those years.”
The city has not expressed any plans for the future of the property if its favorable verdict in the Circuit Court case is upheld through the appeals process. Strauss said it would be different if the city had said it needed the property for some stated municipal project, a new police substation or a public works need, for example.
“At no time did the city exhibit any interest in trying to take the property,” she said. “There can be a governmental use, such as the need for some municipal purpose such as more restrooms or something like that, and there is a proprietary use, meaning they want it for some revenue purpose. They can’t have it both ways.”
One thing is certain, if the city remains successful in asserting its ownership, Dumser’s will not remain as its tenant despite decades of success at the iconic location. Dumser’s owner Don Timmons released his own statement this summer essentially saying his family business would not become a tenant if the town of Ocean City became the new landlord. Strauss’s eyes welled up a little this week when she brought up Timmons’ statement.
“For him to tell Ocean City he would not rent from the city was amazing to me,” she said. “Regardless of our long relationship, you just don’t find that loyalty today. This is a man of honor and a man of character.”
As part of the circuit court judge’s ruling, Nathans Associates could be required to pay to the city the amount of rent it received on the building since the expiration of the agreement last year. There was a disgorgement hearing set for November, during which the judge would make a ruling on the back rent, but that hearing has been canceled and not rescheduled. Strauss said week that issue shouldn’t be resolved until the ownership issue is decided first.
“If the city has no interest in the building, then the city has no interest in the rent,” she said. “How do they make a decision it should be vacated or demolished when the appeal hasn’t run its course?”
Meanwhile, public sentiment on the issue is clearly in favor of the Nathans Associates, Strauss and her family and, of course, Dumser’s, which is essentially caught in the middle of the dispute. In the wake of the court’s ruling this summer, social media sites popped up with thousands of followers expressing their support for saving the property as is. In addition, a petition with over 10,000 signatures was presented to the Mayor and Council last month.
“When you find out the public feels just like you do about the property, it is very gratifying,” Strauss said. “I worked in that building on the Boardwalk as a child when I was old enough to wipe the counter or sweep the floor, and we find out all these years later the public has the same emotional attachment to it as we do.”
For now, Strauss and her family are anxiously awaiting a ruling on the appeal by a three-judge panel in Annapolis and she shows no sign of backing down.
“I’m taking this as far as I have to go,” she said. “The city is wrong this time, just like they were wrong in 1991. If people are going to circumvent the truth, how do you fight that?”
