OCEAN CITY — Christmas came early for the heirs of the historic building facing possible removal on the east side of the Boardwalk when a state appeals court on Friday ruled against the Town of Ocean City, sending the case back to Worcester County Circuit Court for a new trial.
The building on the east side of South Division Street near the south end of the Boardwalk has been home to different businesses and attractions over the last century-plus after an enterprising young man first built in 1905. Since the 1970s, the iconic building has been home to a Dumser’s Dairyland ice cream parlor that has served the popular treat to generations of residents and visitors to Ocean City.
Ownership of the property was called into question in 2016 after the second of two 25-year agreements between the town of Ocean City and the heirs of the original owner, Nathan Rapaport, who first built the structure back in 1905, expired. In April 2017, a Worcester County Circuit Court judge issued an opinion in favor of the town of Ocean City. As a result of that ruling, the Rapaport heirs were temporarily enjoined from any use of the property and were given a timeline at that time to remove or demolish the historic building.
Rapaport’s heirs, Nathan Associates, appealed the Worcester County Circuit Court decision to the state’s Court of Special Appeals, which, on Friday, issued an opinion in favor of the heirs of the long-time property owners and, at least for the time being, against the town of Ocean City. The 27-page Court of Special Appeals opinion released on Friday is largely technical and full of legalese, but the long and short of it is, the town of Ocean City during the appeal process failed to show the iconic Dumser’s property lies within the town’s dedicated public easement.
As a result, the original Worcester County Circuit Court decision issued in 2017 was reverses and the case was remanded back to the circuit court level for a new trial.
“We hold, therefore, that Ocean City failed to present sufficient evidence to support the circuit court’s conclusion that the Property is located within the boundaries of the dedicated and accepted public easement of Atlantic Avenue,” the opinion reads.
The Nathans Associates’ appeal largely focused on four basic questions about the outcome in the circuit court trial, but answer to the first one, which reads “whether Ocean City presented sufficient evidence to support the circuit court’s finding that the property was physically located within the area of the dedication and public easement of the town of Ocean City,” proved to be all the appeals court needed to render its opinion on Friday.
“We shall answer the first question in the negative and hold that there was insufficient evidence to support the circuit court’s conclusion that the property was physically located within the relevant area,” the opinion reads. “In light of this holding, we shall not address the second and third questions. Because this case will be remanded to the circuit court, we shall address Nathans’ motion for recusal and, as we shall explain, find no abuse of discretion by the circuit court in denying the motion.”
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 Dumsers, and living quarters above 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 in 2016 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.
Nathans Associates has 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 in 2017 and Worcester County Circuit Court Judge Dale Cathell ultimately rendered an opinion in favor of the town of Ocean City. As a result, Nathans Associates was enjoined from any use of the property and the Rapoport heirs were required to remove or demolish the structure by the end of the year in 2017. Of course, those orders were put on the back burner when Nathans’ Associates appealed the lower court’s ruling to the Court of Special Appeals.
With the Court of Special Appeals ruling on Friday, the case now heads back to Worcester County Circuit Court for a new trial. In the meantime, it remains status quo for the iconic building on the east side of the Boardwalk that has housed Dumser’s for decades.
