The latest two proposals designed to end the deadlock over the future of Captain’s BBQ at Bing’s Landing, the county park, again collapsed on Friday as Captain’s said it would not accept one of the options unless the county paid for a sewer connection and the Hammock Community Association said it no longer supported building a new restaurant on reclaimed land, as it had previously said it might.
The fate of Captain’s was on the Flagler County Commission’s 9 a.m. agenda Monday. The agenda item has been pulled. Negotiations continue, County Administrator Jerry Cameron said. But he was clearly frustrated by the shifting sands under the county’s feet.
“Both sides retreated from positions that they originally gave us was their fixed position,” Cameron said late Friday afternoon. “There was nothing to give the commission with which to make a decision on, and I’m not going to go in with them yelling and screaming at each other with no possibility of an outcome.” Cameron added: “We will continue looking for solutions and if we can find something that makes everybody happy, that would be great. It’s a bad lease we’re in, it doesn’t work well, if we can’t get ourselves extricated from that we’ve got legal constraints.”
Here’s where things had stood when the county thought it had two viable option.
Option One would have had Captain’s build a new restaurant on the reclaimed land along the Intracoastal Waterway, requiring a pavilion there to be moved. Captain’s would have built that facility at its own expense, then turned it over to the county. (Captrain’s claims it would cost $1 million, but that’s an entirely speculative number that’s never been verified: there’s been no designs, no permits, no plans. Captain’s wants to build a 150-seat restaurant, up from the 98 it is allowed to have currently, and have a full bar. The county was willing to go with that plan as long as it did not have to pay a dime.
Option two would have had the county build the same structure, but at its own expense (that is, at taxpayers’ expense), with 100 seats, not 150, and no full bar.
Initially, the Hammock Community Association was in agreement with Option Two. Initially, Captain’s was in agreement with Option One. It would have been up to the county commission Monday to decide which route to go.
Here’s where things now stand, post-collapse.
On April 12, Casey Arnold, a new attorney representing Captain’s (which is owned by Mike Goodman and Chris Herrera), sent a letter to the county that changed Captain’s tone and strategy. Previously, Jay Livingston, who had also represented Captain’s, had told the commission in a public meeting that Captain’s was not interested in suing: Captain’s wanted a cooperative rather than an adversarial relationship. The April 12 letter took a different turn, raising legal issues with the way the county commission had rescinded a vote on a Captain’s lease amendment.
“If the Commission moves and votes to rescind the Lease, this will be viewed as further nonperformance and considered a material breach of the Lease – notwithstanding the County’s prior actions, which would constitute a material breach,” Arnold wrote. “Captain’s will consider all remedies available
under the lease and Florida law, whether equitable or monetary.”
Captain’s also reversed its position on cost, abandoning the position that it would assume all costs of the new building. “Specifically, Caption’s [sic.] will not agree to pay for a sewer and water connection, if they incur the financial obligation of constructing a new building to their specifications. This is simply not financially feasible for a small business.” Cameron said that sewer connection would cost between $140,000 and $180,000. The only reason it would be needed is to accommodate Captain’s expansion to 150 seats.
Arnold left open the possibility for a lease amendment where the county would build and pay for a new building on the reclaimed land, “with the same capacity as the existing restaurant,” which means 98 seats. (See the full letter here.)
That may well end up being the county’s only option. Cameron says the existing Captain’s is simply not repairable. The county is under obligation to Captain’s, at least until 2026, when the current lease runs out (the current lease in the county’s understanding, not in Captain’s) to ensure that Captain’s has a place to operate from. Since the “bad lease,” as Cameron termed it, has no provision allowing the county to shut down the business while it builds a new facility, the county would be under obligation to build the new building while the existing one continues to be a restaurant. The county sees that building going on the reclaimed land. That’s Option Two. And it would not require a $180,000 sewer connection.
But the Hammock Community Association now opposes that approach. Joy Ellis, who heads the association, said engineers have examined the site and analyzed what a 150-seat restaurant’s impact would be and what moving the existing pavilion would entail. “They realized it wasn’t a good location for that size building,” Ellis said. “Even with the 100-seat restaurant we would run into the circumstance of moving the pavilion into the park and causing the same problems in the park with the pavilion that we were trying to avoid in the park, so yes, we have reevaluated.”
Ellis said the association is meeting with the Save the Park group Saturday to discuss a new proposal that would be submitted to the county. Ellis was not ready to discuss the proposal before it was vetted at the meeting. But she said the idea is “obviously not a building of the size they’re talking about, we don’t want to damage the park, and we want it to be controlled by the county.” She added: “We want a building that can ensure that they cannot do what they have done in the past, which is expand, expand, expand. We’re interested in keeping a small site with the county having control of it in an area that doesn’t damage the park.”
Under the existing lease, the county has no option but to accommodate a restaurant. Given various strains, Cameron agrees that the decision may end up being reached by default, with the county having to build a new building, but not to Captain’s specifications, and certainly not at 150 seats. And after 2026, Captain’s could remain there but the rent would have to go to market rates, which Cameron says would be around $5,000 a month, plus triple net responsibilities for maintenance and insurance, but still no taxes, since it’s county land.
“That is definitely an option the county could do, they could do that without having any other option,” Cameron said. The possible downside, he said, is Captain’s position that the county signed a lease allowing 150 seats–which the county did, before rescinding that vote. “Then we have to decide in court on whether they could have rescinded that signed agreement. It’s a bad set of circumstances. But we’ve got to work through it.”
That’s assuming the reclaimed land isn’t itself structurally compromised: new concerns are emerging, as documented by a set of images sent to FlaglerLive, that the land may not be suitable for a restaurant. See more images below.
The next possible discussion date for the commission is May 20.
“For the county it really doesn’t matter which option we go to, I of course don’t want to go find the money to build one. I want the best outcome for the Hammock that we can get without compromising the rest of the county,” Cameron said. “We will continue looking for solutions and if we can find something that makes everybody happy, that would be great.”
The likelier outcome is a solution that makes no one happy, but that would more closely reflect the nature of a compromise.