City asks state’s high court to consider its arguments
(Feb. 8, 2019) After receiving a prompt dismissal from the Court of Special Appeals to reconsider its decision on the Nathans Associates versus the Town of Ocean City, the City Council has decided to seek a hearing before the highest court of the state, the Maryland Court of Appeals.
The Court of Special Appeals responded rapidly to the city’s request for another review, denying the motion on Tuesday, Jan. 29.
This has not deterred the council, however, which hopes the high court will consider whether Nathans Associates and its lessee Dumser’s, lie within a public easement on the Boardwalk. The Court of Special Appeals, in overturning a circuit court decision that agreed with the city, ruled that Ocean City produced no evidence to substantiate its claim.
“It’s not that I disagree with the town,” Council Member Mark Paddack, a former police officer, said. “I just feel that as a man who has followed the rule of law for an entire career that when you sit down and look at the Windsor resort case in the ’80s, the Talbot case in the ’70s and you follow the original deeds from 1876, the court ruled that the town of Ocean City failed to prove ownership of that land.”
Pinpointing ownership of the land had been the focal point of the nearly three-year long court case.
“The city labels the land as public and I agree,” Paddack said. “However, since the (Nathans) agreement in 1966, 52 years ago, taxes have been paid by Nathans Associates not only for the building that they own but for the land in which the building sits upon and Dumsers has been leasing that property since the ’70s.”
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 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 Rapoport, now known Nathans Associates.
The case went to trial in April of 2017 and Worcester County Circuit Court Judge Dale Cathell gave an opinion in favor 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.
Nathans Associates appealed to the Court of Special Appeals, which found that, based on the scant evidence provided by the city, maybe the building sits in a city-controlled public easement and maybe it doesn’t.
The burden had been 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.
“Now, if the Court of Appeals does accept this, the town will be asked to present arguments, but they can only argue on what was heard in the lower court,” Paddack said. “They would only be able to provide the part that was ruled on. They can’t talk about what the court said that the Town of Ocean City failed to provide evidence they (Nathans) were squatting, so that’s where the adverse possession comes.”
The decision to continue to pursue the case has not been popular with residents and visitors, who have lambasted the city on social media.
“We got a lot of local residents that would like the status quo back in the ’70s,” Paddack said.
The Maryland Court of Appeals does not have to accept the case. In the event the court decides not to review the case, the decision made by the Court of Special Appeals will stand, which would be mean the circuit court would have to revise its ruling to reflect the appeals court’s finding.
For the time being, the ice cream parlor on the Boardwalk is expected to reopen for the season in March.