Officials claim property  on Boardwalk belongs to taxpayers, despite ruling

(Jan. 4, 2019) Two weeks after the Court Of Special Appeals in Annapolis reversed the Worcester County Circuit Court ruling on the fate of the Boardwalk Dumser’s property owned by Nathans Associates, the Town of Ocean City has plans to seek new legal options regarding the case.

Ownership of the property, which Dumser’s leases, was called into question in 2016 after the expiration of a long-term agreement between the city and Nathans Associates.

Located on the east side of South Division Street near the south end of the Boardwalk, the original structure was built in 1905 and owned by Nathan Rapoport. Since the 1970s, the two-story building later placed on the property has been home to a Dumser’s Dairyland ice cream parlor.

In 1966, Rapoport reached an agreement with the city to demolish the existing structure and to erect a better building on the site with a commercial interest on the Boardwalk level, and living quarters above on the second floor. The package offered two 25-year agreements between the town of Ocean City and the heirs of Rapaport, now known Nathans Associates.

The case went to trial in April 2017 and Worcester County Circuit Court Judge Dale Cathell gave an opinion in favor of the town of Ocean City. Nathans Associates was  ordered to remove or demolish the structure by the end of the year in 2017, according to Cathell’s ruling.

dumsers

Dumser's Dairyland located on the Boardwalk will continue to serve creamy treats to guests and residents after the Maryland Court of Special Appeals ruled in favor of Nathans Associates on Dec. 21.

Nathans Associates appealed to the state’s Court of Special Appeals, which found that maybe the building sits in a city-controlled public easement and maybe it doesn’t.

“It was a complete victory for Nathans,” said Gil Allen II, attorney for Nathans Associates. “The appellate court has ordered the circuit court to reverse the decision and … to enter an order declaring that Nathans Associates has successfully adversely possessed — that’s the legal term — that they’re the owner of the property on the Boardwalk.”

To exercise the right of adverse possession, the occupants of the property must have possession for a minimum of 20 years. With the property being occupied by Nathans for 106 years, this requirement was met.

As a result, the original Worcester County Circuit Court decision issued in 2017 was reversed and the case will be remanded back to the circuit court to incorporate last Friday’s ruling, removing the order to remove and demolish the property.

“The remand means the higher court is sending it back to the lower court but it said it’s for the limited purpose … of entering a new order,” Allen said. “It does not say it’s for the purpose for a retrial.”

The burden had been placed upon city government to establish the property was located within a public easement that it owned. However, the information provided by the 1876 deed, with handwritten site plans, proved to be illegible. An aerial photo also provided as evidence showed the current location of the property as well as surrounding buildings, but not necessarily the layout as drawn on the original map.

Despite these findings, the Town of Ocean City has announced it is looking at “other legal options.”

“This has always been about the taxpayers,” Ocean City Councilwoman Mary Knight said. “The taxpayers of Ocean City, we feel that they own the property, and that’s why we pursued and we are going to pursue other legal options.”

During the entire ownership of the property, Nathans has never paid rent to the Town of Ocean City, which was the basis for the suit. However, the city never had a claim to collect rent, Allen said.

“Nathans has never had a lease from Ocean City,” Allen said. “Nathans has never made any rent payments to Ocean City. Now that the court has declared Nathans owns the property, there is no basis for any lease [or rent]. They own the property, there’s no reason to lease anything. The town claimed it had an easement over the property, a public easement and the appellate court has now said, ‘No, you failed to prove that.’”

According to City Solicitor Guy Ayers, there are two possible courses of action the city could take.

“One is to file a motion for consideration with the court of special appeals, and the other would be to file a petition for a writ of certiorari to the court of appeals,” Ayers said. “There’s no automatic right of appeal from the court of special appeals to the court of appeals in this type of case. I have not discussed it with the council, I don’t know what the majority of the council wants to do.”

A writ of certiorari allows an appellate court to review a case at its discretion.

Allen hopes the city will not pursue further legal action for the sake of the taxpayers it claims it’s serving with the suit.

“I hope they listen to the public,” Allen said. “They’ve now lost this matter and the public’s reacted pretty strongly and I hope they let it end here.”

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