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Nancy Smith

Martin County Threatens Business Couple for Violating 'Secret Preserve'

June 20, 2014 - 6:00pm

Entrepreneurs Robert and Anita Breinig had a dream of turning the Flash Beach Grille, their Hobe Sound catering business-turned-restaurant, into the finest eatery in Martin County, Fla..

And things were going well until last year, when unbeknown to the Breinigs, they ran afoul of county environmental protection rules -- rules the nation's oldest and most successful public-interest legal organization claims are "ludicrous and probably illegal."

Pacific Legal Foundation attorney Christina Martin made the couple's plight her main story Wednesday on the "PLF Liberty Blog."

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." PLF attorney Martin explained in her blog that previous owners twice removed from the Breinigs had made that promise.

"It was the kind of deal that local governments often exact from permit applicants," Martin said. "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')."

Like most states, she says, Florida has a law that protects subsequent purchasers from secret agreements like the one Martin County is now trying to enforce.

What the Florida law says is, a good faith buyer takes title free from any unrecorded burdens, unless he otherwise had notice when he bought the land.

"That's probably why Martin County now records its preserve agreements," the PLF lawyer said."But it's apparently not enough to get the county to leave the Breinigs alone."

Nicki VanVonno, director of the Martin County Growth Management Department, was unavailable Friday, but in anticipation of media questions, she had prepared a statement explaining the actions of county staff in the Flash Beach Grille case, and why the business is now in violation of county code.(See a complete copy of the statement in the attachment at the bottom of this story.)

In the statement, VanVonno says the county tried over the course of six months -- with fines suspended -- to work with the Breinigs on a modification plan for the conservation easement, but the couple opted to ask county commissioners to eliminate the preserve area altogether.

On May 6 this year, after reviewing the report of VanVonno's staff, the County Commission voted down the couple's request.

"To ... remove the preserve area would require a comp plan amendment," VanVonno said. "The board chose to maintain its plan policies and directed staff to proceed with the code enforcement action."

Lawyer Christina Martin put it this way: "Instead of acknowledging the county's mistake that probably extinguished the county's rights to enforce the promise, the County Commission is threatening massive daily fines (on questionable legal grounds) of up to $1,000 per day. That's enough to scare most people into complying."

Anita Breinig said, "We just need to store our equipment on that land, which the county won't allow. We get fresh fish from local fishermen every day. We have a real need for cold storage especially. And without a place for our equipment, I don't think we can go on."

She said, "They wanted us ... to take a 40-by-70 foot piece of property back to how it was 24 years ago. It would cost us thousands we haven't budgeted for. We were told we have to rebuild it, maintain it and pay taxes on it.

"This came completely out of the blue. We can't even afford a lawyer to fight it. We don't want to just walk away, we signed on the dotted line for this property. It wouldn't be right to walk away. But we don't know what to do."

She said her husband calls it a "David and Goliath fight."

Actually, there are some 1,048 small preserve interests in Martin County. Some of them likely belong to people who, like the Breinigs, could find out the hard way they have to abandon, restore and pay up.

"One can only hope that one of those unrecorded preserves turns out to be in a commissioner's backyard," quipped PLF's Martin. "Perhaps then the commission could acknowledge the injustice."

Martin would not say whether the Pacific Legal Foundation will officially take the Breinigs on as a client. Certainly, if it does, Martin County would find PLF a tough adversary. The organization has won seven straight cases in the U.S. Supreme Court. In 2012 it won a unanimous decision in the Supreme Court v. 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.

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

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