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FL county’s unrecorded land restriction may put couple out of business

By   /   September 5, 2014  /   News  /   No Comments

By William Patrick | Florida Watchdog

TALLAHASSEE, Fla. — For Robert and Anita Breinig, the Flash Beach Grille is more than a building.

Photo courtesy of the Pacific Legal Foundation

SURPRISE: Robert and Anita Breinig are facing $1,000 per day fines for violating a 24-year-old land easement that the county never recorded.

The Hobe Sound seafood restaurant and catering business is the culmination of years of hard work, and represents their slice of the American Dream.

“We started as a mobile caterer. We used garages as kitchens for home parties,” Robert Breinig told Watchdog.org.

But after 17 years of sweat in the food service industry, the couple’s dream has taken a nightmarish turn.

The owners of Flash Beach Grille are locked in a land dispute with Martin County public officials over a seemingly insignificant 40-by-70 foot area behind the restaurant. But it’s no small fight. The outcome has the potential to affect property values, environmentally protected areas and the local title insurance market — not to mention put the Breinigs out of business.

In 2011, the small business entrepreneurs moved from a nearby storefront rental space — once a defunct pizzeria adjacent to a liquor store — to their current location at 9126 S.E. Bridge Road.

Inspired after a successful string of Monday night menu tastings, the couple decided to expand into the restaurant business. They moved into the now larger stand-alone building and were excited to buy it, rather than lease.

“We thought we had purchased enough space to continue to grow the business,” said Breinig. “Cover in the front, kitchen out the back.”

“Visit us at our new location,” their website still reads.

After more than a year at the new spot, the Breinigs applied for a liquor license. As required, a county investigator performed a site inspection.

Several days later, the couple received a surprise.

“Property not in compliance with the approved development order,” stated a Notice of Violation from county’s Growth Management Department, Environmental Division.

“I was flabbergasted,” said Breinig.

In 1990, the county placed a conservation easement, or environmentally protected area, on the property. But the county never recorded it, and no one ever told the Breinigs.

“Within 30 days from receipt of this notice the white refrigeration unit, the blue storage container, and the large white (catering) trailer are to be removed from the preserve area and bring the preserve area into compliance with the approved planting plan,” states the first of two separate Notices of Violation.

A Dumpster and two other trailers were also cited for removal. A code enforcement officer determined the items were within a 25-foot “landscape buffer” to the easement.

The notices threaten up to a $1,000-per-day fine, and $5,000 per day for repeat violations. The couple has been battling the county ever since.

“It will close us down,” said Breinig. “Five hundred a day would put me out of business in a week,” he added, while explaining Hobe Sound’s seasonal economy. “The easement should have been recorded over the last three or four owners of this property and we can’t understand why it hasn’t.”

According to records, the Breinigs purchased title insurance before buying the property. A title search was performed by the First American Title Insurance Company, a reputable firm. A land survey was also completed, but the land restriction didn’t show up.

After delaying the enforcement action for further review, the Martin County Commission voted in May to deny the Breinigs an exemption.

A commission document concedes the upland conservation easement wasn’t recorded with the county clerk — making enforcement an unusual practice. But neither were hundreds of other upland easements dating back to the 1990s.

“The development orders and preserve area management plans (or PAMPS) at this time were typically not recorded in public records,” a staff analysis reads.

The analysis didn’t address coastal, wetland and other types of easements also placed on Martin County land parcels over the past 24 years. Letting the Breinigs off the hook could open a Pandora’s box of legal challenges, and potentially undo significant governmental conservation efforts.

“The chances are good that other landowners could find themselves in a similar situation,” Christina M. Martin, the Breinigs’ lawyer, told Watchdog.org. Martin is an attorney with the Pacific Legal Foundation’s Atlantic Center in Palm Beach Gardens. Last week, she filed a lawsuit against Martin County to stop the code enforcement.

Hobe Sound is a quiet coastal community known for attracting wealthy out-of-state seasonal residents, often called snowbirds by Floridians. Increased development could put a damper on the reclusive nature of the affluent area north of Palm Beach, Broward and Miami-Dade counties.

“Subsequent buyers couldn’t have known,” Martin said. “We’re not asking for anything other than to use the property in a reasonable manner.”

According to state law, good faith buyers are generally protected against undisclosed items when purchasing real estate. The state constitution also provides protections when it comes to the public taking of private land. For their part, Martin County officials are moving full speed ahead. Further insight into the county’s reasoning should become clearer in upcoming legal proceedings. In the meantime it’s focused on compliance.

Breinig said he’s put $120,000 of savings into the Flash Beach Grille — the name being a reference to starting out as a flash-in-the-pan catering company.

“We work 60 to 90 hours a week, we have an equity line with the bank and a lien on our house. Everything we own is tied up in our business. We’re all in,” he said.

In June, the couple received more bad news. The title insurance company denied their claim for $155,120 in lost profit, lost use of the property, and costs incurred while battling the local government over the title issue.

The insurance company’s rejection letter asserts that “public records,” a key term, do not include unrecorded preserve management plans. Records filed pursuant to state recording laws are, however. As a result, the Breinigs are financially culpable for what they couldn’t have known.

A state circuit court judge will have the final say in the broader matter, and with far-reaching effects, according to Martin.

“If the county is immune from typical recording laws then title insurance prices are going to go up and property prices are going to go down,” she said. “It doesn’t make any sense to be worried about this little plot. It looks like a backyard.”

The Breinigs had planned to grow an organic vegetable and herb garden, along with fruit trees, on part of the disputed property. But according to the violation notices, those items don’t fit the county’s idea of environmental preservation. Instead, they’re expected to plant vegetation from a county-approved list.

“What if someone came into your backyard after you bought your house and said you can’t mow your grass anymore because there’s a conservation easement there? No picnic table, no flowers, no garden, you can’t do anything and no one ever told you,” Martin said.

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