OCEAN CITY — The case of determining ownership of the historic Dumser’s Dairyland property on the Boardwalk will go on with the Town of Ocean City filing a motion for reconsideration of a decision handed down by the state’s Court of Special Appeals in December.
The Court of Special Appeals in late December issued an opinion reversing an April 2017 ruling by the Worcester County Circuit Court opining Ocean City had not presented sufficient evidence to prove ownership of the building on the east side of the Boardwalk at South Division Street which, for decades, has been home to the iconic Dumser’s Dairyland. However, unsatisfied with the ruling, the town has now filed a motion for reconsideration of the Court of Special Appeals opinion reached in December.
The motion for reconsideration is essentially a middle step in the appeals process in the ongoing battle over ownership of the property. If the town is unsuccessful in getting the Court of Special Appeals to reconsider its opinion in favor of the Nathans Associates, or heirs of the property, it can reach out to the higher Court of Appeals to hear the case. However, the Court of Appeals has discretion over which cases it chooses to hear and there is no certainty the higher court would elect to do so.
The white, two-story building in question has been home to different businesses and attractions over the last century-plus after an enterprising young man first built it 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 given a timeline at that time to remove or demolish the historic building. A stay of that order was then successfully obtained while the appeal played out.
Last month’s 27-page Court of Special Appeals opinion 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.
“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 judgment of the circuit court for Worcester County is reversed.”
Ocean City officials through the entire legal battle have not expressed an intended purpose for taking over ownership of the historic property. In the wake of last week’s decision to continue to pursue the appeal, Mayor Rick Meehan issued a statement essentially asserting the land on which the iconic ice cream parlor sits belongs to the taxpayers of Ocean City.
“Since the expiration of our contract with Nathans Associates in 2016, our goal has been to protect the interest of the taxpayers we serve,” he said. “We are disappointed in the court’s opinion and disappointed in the process. We will continue to proceed with our attempts to reclaim the land on Atlantic Avenue that rightfully belongs to the taxpayers of Ocean City.”
While Meehan’s statement appears to suggest the town’s leadership is of one voice as it continues to pursue the appeal, at least one councilmember broke ranks with a public statement last week on social media. Councilman Mark Paddack, elected in November, issued the following statement on Facebook late last week.
“The Town of Ocean City announced today it will continue the Nathans Associates case with a request for reconsideration to the Maryland Court of Special Appeals,” he said. “I humbly admit I failed to persuade my colleagues with my sound reasoning. I heard my colleagues’ logic and reason and I tried to understand their points, but in the end they made no sense to me.”
Paddack’s said in his statement he is uncertain why the town will continue the appeal process after the Court of Special Appeals opinion released in December.
“While the cost in dollars now is ever so small, it just makes no sense to me,” he said. “To continue and attempt to crush a business that generates revenue and fosters memories for hundreds of families makes no sense to me.”
From the beginning, the case has generated a resounding outcry in the court of public opinion, a point not lost on Paddack.
“What the town will gain in the court of public opinion is unfortunately more public resentment, lack of trust and vocal outcry,” he said. “I encourage the public to please take a deep breath. I know this is frustrating news for thousands of you.”
Paddack urged the public to let the process run its course before leaping to judgment and vowed to continue to lead on its behalf.
“As a leader, I extend an olive branch of trust to the public who believe in Ocean City’s nostalgic history of a legacy structure and the Dumser’s business location for future generations to come,” he said. “Remember, the court decided in favor of Nathans on appeal. No new evidence can be presented to the court. Be strong and believe.”
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.
