June 18, 2014

Florida county threatens to fine landowners for violating secret preserve

By Christina M. Martin Attorney

Robert and Anita Breinig are entrepreneurs whose dream is threatened by ludicrous (and probably illegal) county rules.  Years ago, they started a small catering business, which they eventually expanded into a small but locally popular restaurant, the Flash Beach Grille, in Hobe Sound, Florida.  Robert cooks and Anita manages.  Things were going well enough until last year, when they requested a permit to expand their restaurant. Martin County conducted a site check for the permit and told the Breinigs that they were violating the terms of a “Preserve Area Management Plan” and consequently county code. They were storing their catering truck and other essential restaurant equipment on a small strip of land that a prior owner had promised to keep empty, in conservation condition.

Robert Breinig speaking at Flash Beach Grille about the county's demands.
Robert Breinig speaking at Flash Beach Grille about the county’s demands.

This promise was made in 1990 by owners twice removed from the Breinigs.  It was the kind of deal that local governments often exact from permit applicants.  The problem is that the 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”).  Florida, like most states, has a law that protects subsequent purchasers from secret agreements like the one the county is now trying to enforce. Florida’s law provides that 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.  But it’s apparently not enough to get the county to leave the Breinigs alone.

Last month, in a 3-2 vote, the County Commission rejected a request from the Breinigs to have the county’s alleged preserve interest altered so that they could continue to store vital restaurant equipment on part of it.  The Breinigs have explained that the space in their restaurant was too small to house everything they needed to run the small business and serve their customers.  Without the strip of storage in the back, they may not be able to make ends meet.  But 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 $1000 per day. That’s enough to scare most people into complying, regardless of the grounds for the county’s claim.

At the hearing, county staff disclosed that there are hundreds of small unrecorded preserve interests like the one threatening to cripple the Breinigs. In other words, many landowners across the county may soon find themselves in the Breinigs’ shoes.  One can only hope that one of those unrecorded preserves turns out to be in a Commissioner’s backyard.  Perhaps then the Commission could acknowledge the injustice.

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