OCEAN CITY – The state’s highest court on Friday denied a petition by the Town of Ocean City to hear an appeal in the battle over ownership of a Boardwalk property, essentially bringing closure to the longstanding case.
The state’s Court of Appeals on Friday denied a petition for writ of certiorari filed in February by the town against Nathans Associates, the heir and owners of the century-old-plus building the east side of the Boardwalk at South Division Street, which, for decades, has been home to the iconic Dumser’s Dairyland. The petition asked the Court of Appeals to hear the case after the lower Court of Special Appeals ruled twice against the town.
The high court’s denial of the petition brings closure to the case, which has made its way up and down the court system since a decades-old agreement between the town and Nathans Associates expired in 2016. The town prevailed in the initial case at the Worcester County Circuit Court level, but Nathans Associates appealed that outcome to the Court of Special Appeals.
In December, the Court of Special Appeals ruled in favor of the Nathans Associates, opining the town had not presented sufficient evidence to prove ownership of the historic building. About a month later, the town filed a motion to reconsider with the Court of Special Appeals, but that motion was also denied by the lower court.
Essentially down to its last option, the town filed the petition for writ of certiorari with the Court of Appeals in February. The high court denied the petition on Friday.
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 1912. 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 an agreement reached in 1966 between the town and Nathan Rapaport, who first built the structure in 1912, expired. The original agreement was for 25 years with a right to renew for the Rapaport heirs for another 25 years in 1991.
The Rapaport heirs exercised the 25-year renewal of the original agreement through 2016 and it was business as usual for the next two decades-plus at the historic building. When the agreement expired in 1991, the town exercised its option to evict and the case landed in Worcester County Circuit Court. In April 2017, a Worcester County Circuit Court judge issued an opinion in favor of the town. 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 and prevailed, essentially overturning the circuit court’s ruling. 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.
“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 Dumser’s, 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.