(Dec. 28, 2018) An iconic ice cream shop on the Boardwalk will continue to serve resort guests and residents, after the Maryland Court of Special Appeals ruled last Friday that the Town of Ocean City failed to prove its legal authority to have the business removed.
Ownership of the Boardwalk Dumser’s property was called into question in 2016 after a long-term agreement between the city and the building’s owners, Nathans Associates, expired.
Located on the east side of South Division Street near the south end of the Boardwalk, the structure was built in 1905 and owned by Nathan Rapoport. Since the 1970s, the two-story building 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 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 first 25-year agreement expired in 1991 and Nathans Associates agreed to the second 25 years under the language in the agreement. When that expired in 2016, the city asserted its authority over the property, which it claimed sits in the right-of-way for Atlantic Avenue, or all the property east of the deeded properties on the west side of the Boardwalk.
The case went to trial in April of 2017 and Worcester County Circuit Court Judge Dale Cathell gave an opinion in favor of the town of Ocean City. Nathans Associates were required to remove or demolish the structure by the end of the year in 2017, according to Cathell’s ruling.
Nathan Associates appealed to the state’s Court of Special Appeals, which found that, based on the evidence provided by the city, maybe the building sits in a city-controlled public easement and maybe it doesn’t.
“There was insufficient evidence to support the conclusion that a property was located within a public easement when the only evidence presented in support was a 150-year-old handwritten deed and hand drawn plat and no additional evidence, such as testimony from a licensed surveyor or other expert, was presented to establish the on-ground-location of the property today in relation to the area described in the 1876 deed and accompanying plat,” Judge Stuart Berger wrote.
The burden was placed upon the Town of Ocean City to establish the property was located within city boundaries. However, the information provided by the 1876 deed, with hand written 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.
“We agree with the circuit court that the aerial photograph establishes that the Property is located north of the center of South Division Street as the street is located today,” the opinion said. “As we shall explain, however, the evidence is, in our view, insufficient to establish that the Property is located north of Division Street as indicated on the 1876 Plat. Simply put, this case is not about the location of Atlantic Avenue and South Division Street as they exist today.”
The matriarch of Nathans Associate and granddaughter of Nathan Rapoport, Mona Strauss, was pleased with the decision.
“We own the ground,” Strauss said. “It’s encouraging when everyone is happy for you. We believe the New Year will be a good one for Nathans Associates and the Timmons family. We’re delighted with the verdict.”
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 level to incorporate last Friday’s ruling, removing the order to remove and demolish the property.
The Town of Ocean City could not be reached for comment.
The Boardwalk Dumsers will reopen for the season in March.