UPDATE: Ocean City Loses Boardwalk Property Case; With Appeals Court Ruling, Circuit Court Must Change Decision

UPDATE: Ocean City Loses Boardwalk Property Case; With Appeals Court Ruling, Circuit Court Must Change Decision
“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 state’s Court of Special Appeals opinion read last month. File photo

OCEAN CITY — The heirs of the historic Dumser’s Dairyland building on the east side of the Boardwalk got an early Christmas present late last week when a state appellate court ruled against the town of Ocean City in its bid to potentially have it removed.

The state’s Court of Special Appeals last Friday reversed an April 2017 ruling by the Worcester County Circuit Court, opining the town of Ocean City had not presented sufficient evidence to prove ownership of the historic building on the east side of the Boardwalk at South Division Street, which, for decades has been home to the iconic Dumser’s Dairyland. With essentially the mere formality of remanding the case back to Worcester County Circuit Court to adjust its 2017 opinion to reflect the state appellate court’s opinion issued last week, there was some measure of closure in the long-battled case for the property’s heirs, who, along with their legions of supporters, were grateful for the outcome.

“We are extremely happy that the Court of Special Appeals has reversed the prior opinion and we are also very grateful that the public reaction to this decision has been so overwhelmingly positive,” Nathans Associates spokesperson and family member Mona Strauss said in a letter to the editor to be published in this publication on Friday. “It is very gratifying to know that the public that had been so supportive of the Timmons and Rapoport families in the past is as pleased about this decision as we are. The appellate court has ruled in favor of Nathans and Dumsers.”

The landmark 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.

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Rapaport’s heirs, Nathan Associates, appealed the Worcester County Circuit Court decision to the state’s Court of Special Appeals, which, last Friday, issued an opinion in favor of the heirs of the long-time property owners and 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 reversed. The necessary next step is to remand the case back to Worcester County Circuit Court so that the opinion issued in 2017 can be properly amended to reflect last Friday’s ruling by the Court of Special Appeals.

“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. “Because of this, the case will be remanded to the circuit court for the limited purpose of issuing an order consistent with this opinion. The judgment of the circuit court for Worcester County is reversed. The case is remanded for entry of an opinion consistent with this opinion.”

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 last 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.”

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 last Friday, the case now heads back to Worcester County Circuit Court where the opinion issued in the case in 2017 will be amended to reflect the high court’s opinion on ownership of the property. Ocean City could appeal the case to the higher Court of Appeals, but having lost at the Court of Special Appeals, and, perhaps more importantly in this case the court of public opinion, there has been no indication thus far the town will pursue the issue further.

In its opinion issued last Friday, the Court of Special Appeals asserted the only evidence of ownership presented by the town of Ocean City that the property in question was located in the public easement was the original deed platted way back in 1876 in the nascent days of the fledgling resort.

“The question for our consideration, however, is not whether it appears likely from a common-sense perspective that modern day South Division Street is identical to 1876 Division Street,” the opinion reads. “Our question is whether sufficient evidence was produced by Ocean City itself to establish this fact. The critical issue for our determination in this case is whether sufficient evidence exists in the record to support the circuit court’s conclusion that the property is located within a dedicated and accepted public easement,” the opinion reads. “Ocean City conceded at trial and in this appeal that Nathans had established continuous possession of the property for over 20 years in an actual, open, notorious, exclusive, and hostile manner, under claim of title or ownership.”

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.