Martin County Threatens Business Couple for Violating 'Secret Preserve'

By: Nancy Smith | Posted: June 21, 2014 3:55 AM
Breinigs, Bob and Anita

Bob and Anita Breinig with Martin County Currents editor Barbara Clowdus, center, at Flash Beach Grille

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.


Comments (9)

Ed Thornburg
2:29PM JAN 8TH 2015
I'm not a lawyer but here's my opinion after buying over 100 homes in 7 counties last year. Furthermore, Every comment below about the county commissioner appears to be negative. WOW - Does that tell you something about commissioners serving the public interest. The current system is not serving the public interest when it penalizes unsuspecting parties. This restriction probably should have been disclosed by sellers if it was well known by them at time of sale. As a minimum the title company should have advised the buyers of restriction on deed, if that's the case. This case should have been handled with interest of victims having a priority, if it does not create a hardship on neighbors.........In my opinion, our state laws seems very complex at times and only serve the interest of those who lobby for the laws from what I've observed over the last 5 years. The law should be changed affecting new owners to code violation properties and but the costs where it actually lies, with previous owners. The code violation fines should stay with the previous owners and new owners should have a new code compliance when they purchase property. Any new violation or fines should then be assessed against the current owner. That would be a law that would be fair to all parties and serve the public's interest. I agree with John Schierbaum and others in their comments about the county commissioners and property rights are being eroded by the actions of the county commissioners. Bringing these code violations into compliance should be the sole priority of code enforcement and the commissioners, which is what the law was designed to do from the beginning. Profiting from code violations against new owners should be against the law. Code violation costs should be limited to the expenses of enforcement and not with added fines to new owners. This is an excellent story for Newspaper editors and advocacy groups for property rights in Florida since this is not just a Martin County issue, although limited to a few counties to my knowledge. Good Luck to all.
Cheryl Gothier
12:27PM JUN 22ND 2014
I believe this is completely unfair. This was not brought to their attention when the land was purchased and they should not be punished for something done by two owners ago and never disclosed to them. If you want small business to thrive and grow and create jobs you have to look at each case separately. This would not have been an issue if they had not wanted to expand and make changes to employee more Florida residents.
John Schierbaum "Trapper John"
12:59PM JUN 21ST 2014
This is clearly a property rights issue. In no uncertain terms, the majority (3-2 vote) of Martin County Commissioners are seeking to seize private property without compensation.
Gary Braswell
10:33AM JUN 21ST 2014
Government closest to the people is the foundation of our Republic. However, the distance between Hobe Sound and the Martin County Commission chambers cannot be bridged by a commission that fails to understand small business and its place in our economic engine and that the Breinig family business is not a threat to our environment. We pray reason prevails in any final decision.
Don Pickard
9:58AM JUN 21ST 2014
Given that an election is coming this sounds like a good reason to change a couple of commissioners
Karen Bracken
7:47AM JUN 21ST 2014
Br sure to vote EVERY one of those Commissioners out of office. That will require citizens to shut off American Idol and do their civic duty. Clean house then create a resolution to no longer recognize any agreement not legally recorded.
Karen Bracken
7:41AM JUN 21ST 2014
And this is what happens whenever people get hoodwinked into conservation easements. People do it for the money or to protect their property but eventually find out they were part of a deceptive plot of raducals to control as much private land as possible. I think it is time for all planning and zoning to be local and get these schemes to control our land and us off the books.
Martin Resident
6:48AM JUN 21ST 2014
Here we go again...Another lawsuit for the taxpayers of Martin County. Vote out the Incumbents. They are costing us too much money.
John Schierbaum "Trapper John"
1:06PM JUN 21ST 2014
The actions of the Martin County Commissioners have cost the taxpayers upwards of a million dollars in legal fees to fight lawsuits alleging property rights violations by the county. To make matters worse, when Martin County is awarded a judgement ($200,000+, unrelated case), the Commissioners voted to forgive payment of the judgement. This money was the Commissioners to give away. This money belonged to the Martin County taxpayers. Just one more in a series of bad decisions made by the majority of Martin County Commissioners.

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