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Nancy Smith

Pacific Legal Foundation 'Working Miracles' in Martin County Property Rights Case

February 2, 2015 - 6:00pm

Pacific Legal Foundation attorneys will ask a Martin County circuit judge Tuesday to temporarily hold off on their lawsuit against the county for imposing a "secret" land-use restriction on a Hobe Sound restaurant.

"We believe there is substantial progress in our discussions to resolve the suit," said Mark Miller, managing attorney with PLFs Atlantic Center office in Palm Beach Gardens. "Now the county needs enough time to take our agreement back to the Martin County Commission. It's the commissioners who must agree."

If Judge F. Shields McManus agrees, if there is no agreement, the lawsuit would still be on.

PLF filed suit in August 2014 on behalf of Robert and Anita Breinig,husband-and-wife owners of Flash Beach Grille. The county is trying to impose a decades-old conservation easement (i.e., land-use restriction) on their property an easement the Breinigs knew nothing about because the county never bothered to record it.

Miller told Sunshine State News on Monday, "We believe that since August Martin County has made a significant effort to work with the restaurant. Our clients' main goals were to be able to use their property without interference."

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 Mnagement Plan, or PAMP) in return for a county permit.

The Breinigs only sought out Pacific Legal after the County Commission voted 3-2 to reject their request to stop trying to enforce the unrecorded easement.

As part of the Martin County's enforcement crusade, the Breinigs were threatened with "massive fines" -- up to $1,000 a day -- for using their land to store restaurant equipment rather than maintain the easement as a PAMP. "It could kill our business," Anita Breinig said last August. Martin County has not yet imposed any fines.

Judge McManus will hear Tuesday that the deal worked out includes allowing the Breinigs to use the land they need for their equipment in exchange for moving the PAMP elsewhere on the property.

PLF still is likely to question why the Breinigs must deal at all. "Because the county negligently failed to record the easement," Miller said last August, "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 Miller.

The county is scapegoating the Breinigs for its own negligence, he 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 letter denied public posting for nearly a month.

Retired attorney Brian DeGray who has been watching the progress of the Flash Beach Grille case and others in the PLF stable told Sunshine State News, "I think Pacific Legal is working miracles. Martin County has been arrogant from the beginning. I'm sure they (PLF) want to really take a fight to this county, but they're putting their clients' interests first."

The lawsuit 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. PLF "litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country."

Tuesday's hearing before Judge McManus is set to begin at 11 a.m.


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

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