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Nancy Smith

Martin County Hit With Lawsuit for Imposing 'Secret' Land-Use Restriction on Hobe Sound Restaurant

August 27, 2014 - 6:00pm

The husband-and-wife owners of Flash Beach Grille, a small Hobe Sound restaurant, today filed suit to stop Martin County from illegally imposing a decades-old conservation easement (i.e., land-use restriction) on their property an easement they knew nothing about because the county never bothered to record it.

Attorneys with Pacific Legal Foundation (PLF), together with the restaurant's owners, announced the lawsuit at a morning press conference in Stuart.

Said the attorneys, "As part of its enforcement crusade for this previously secret easement, the county is threatening Robert and Anita Breinig with massive fines up to $1,000 per day that could cripple or kill their business."

PLF, the nonprofit representing the Breinigs, is a donor-supported, national watchdog organization for property rights, whose Florida office is in Palm Beach Gardens. PLF is representing the couple free of charge, as it does with all its clients.

The secret land-use restriction dates back to 1990, when a previous owner three owners back in the chain of title set aside 16 percent of the property as a conservation easement (under a Preserve Area Management Plan) in return for a county permit. Claims PLF, "Because the county negligently failed to record the easement, the Breinigs had no knowledge of it when they purchased the property in 2011. Even though they performed all required due diligence, including having a title inspection conducted, they discovered nothing because there was nothing to discover in the propertys recorded history."

The county rediscovered its unrecorded easement in 2012, when it was considering the Breinigs request for permission to expand their restaurant building. "Instead of acknowledging its mistake," said the attorney, "the county is going after the Breinigs with harsh demands and threats of sky-high fines."

When the Breinigs bought this property, they had no way to know about the easement from 21 years earlier. It was a secret easement because of the county's sloppiness in not having it recorded, said Mark Miller, managing attorney with PLFs Atlantic Center office in Palm Beach Gardens.

The county is scapegoating the Breinigs for its own negligence, Miller continued. Thats not just unfair, its illegal. Florida law says unrecorded easements have no force. County officials seem to think theyre above that law. Were asking the courts to tell them theyre wrong.

Florida Statutes Section 695.01 says good?faith buyers cannot be held to an unrecorded easement without notice. This statute recognizes that there must be transparency in real estate transactions, and encumbrances on property must be disclosed to buyers, said Miller.

PLF served notice on the county that it was in violation of Florida statutes in a July 18 letterdenied public posting for nearly a month.

The county literally blindsided us with demands and threats over a hidden easement and a situation the county created, said Robert Breinig. We believe in complying with the law, so we wonder why the county doesnt have to do so as well. Theyre supposed to record their own easements so people dont get hit with this kind of surprise out of the blue. Were being punished because the county was too disorganized or careless to do its job.

This is a real case of David versus Goliath, said Robert. We are simply trying to run our small restaurant and serve the public, and weve always obeyed all the rules. But the county which didnt obey the rules is threatening the very future of our business.

Robert and Anitas journey as entrepreneurs started years ago when they opened a small catering business. It started to flourish, and they eventually expanded into a small but locally popular restaurant, the Flash Beach Grille. Robert cooks and Anita manages.

In a June 21 story, Anita Breinig told Sunshine State News, "Things were going well for us until last year. We were realizing our plans to make the business a truly upscale beach grill. Then we applied for an expansion and liquor license permit. That's when we got the shock of our lives."

During Martin County's site check for the permit, officials discovered the Breinigs were violating the terms of a Preserve Area Management Plan (PAMP), which meant they weren't compliant with county code.

"We were storing a catering truck and other essential equipment out back -- we have to, we have no more room for storage in the restaurant," Anita Breinig said. "One of the earlier property owners promised to keep the area in pristine condition and empty, so we were told we couldn't keep our truck on the site."

"It was the kind of deal that local governments often exact from permit applicants," explained PLF attorney Christina Martin. "The problem is that Martin County never bothered to record the promise so that future purchasers would know about the county's 'preserve interest' (which you may better recognize as a'conservation easement')."

This is an impossible demand, because there isnt room elsewhere for all of the equipment they need to run the business, said Miller. Nevertheless, in a 3?2 vote, the County Commission rejected the Breinigs request that the county stop trying to enforce the unrecorded easement.

The Breinigs fight is a fight for the rights of all property owners and all property purchasers in Martin County, said Martin. It has come to light that more than 1,000 individual property owners have similar types of conservation easements on residential parcels in the county, an unknown number of which the county never bothered to record.

"The county is now discussing cracking down on these landowners, as well. So its essential to force the county to obey the law and to stop the county from punishing property owners for its own past abuses and negligence. Interestingly, the county now makes sure that all new conservation easements are recorded an implicit admission that it was in the wrong by failing to do this in the past. Property owners should not be made to suffer for governments wrongs.

We are so grateful to Pacific Legal Foundation for representing us in this fight for the survival of our business, and to stop the county from trampling on our rights and the rights of all property owners, said Anita Breinig.

Martin County Attorney Michael Durham told Sunshine State News Thursday afternoon that the lawsuit comes as a surprise. "We have a site inspection scheduled (at Flash Beach Grille) next week," he said. "There have been been no fines, no adjudication ..."

Durham said the suit still hasn't been served, but he has seen a copy: "Something will be resolved, I'm sure." He said a meeting is scheduled Sept. 19 with the restaurant's owners and attorneys. And at some point the County Commission will be briefed, probably in executive session.

Pacific Legal Foundation could be a difficult adversary for Martin County. It has won seven straight cases in the U.S. Supreme Court. In 2012 it won a unanimous decision in the high court against the Environmental Protection Agency.

On June 25, 2013, the U.S. Supreme Court issued a favorable decision on a Florida case, St. Johns River Water Management District v. Koontz, also successfully argued by PLF.

The lawsuit just filed is Breinig v. Martin County. More information, including the complaint, a video, and a podcast, is available at Pacific Legal Foundations website: www.pacificlegal.org. PLFlitigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country.

Reach Nancy Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter: @NancyLBSmith

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