County Will take Back Control of All Plans and Construction for Captain’s at Bing’s in Major Concession to Hammock Group

The eight-month battle over the future of Bing’s Landing, the county park in the Hammock, appears to be over–if no litigation follows: in a major victory for Hammock residents who have fought any expansion of Captain’s BBQ at the park, the Flagler County Commission today voted to take over all construction responsibilities, including costs, for whatever building Captain’s BBQ is to occupy–whether it is to repair the current building or to build a new structure nearby.

Conceding to the Hammock Community Association on another demand, the county would not extend Captain’s lease past 2026, but essentially let the current lease move to its expiration date. In 2026, the county would then decide whether to draft a new lease or revert the building–whichever that building would be at that point–back to county uses.

In essence, commissioners’ unanimous vote was the adoption of much of the community association’s plan. The vote was a recognition of the political power of the Hammock, whose association members have been sustaining weekly protests since before the new year, raising money and wielding lawyers as assertively as Captain’s did. Just as clearly, the decision reflects a county commission now more assertive and intent on taking back the reins from its administration, rather than being led by options defined by the administration. That’s by design: Unlike his predecessor, Administrator Jerry Cameron has no interest in brokering big deals or playing kingmaker. He’s better known as a fixer.

County Commissioners were not eager to see Captain’s build its own building, as it had proposed since last year, nor were they willing to see a new county building match Captain’s current size, leaning more toward a smaller, 2,500 square foot building–should that building be necessary. That new building would be built in place of an existing pavilion near the Intracoastal, and the pavilion would move toward the peninsula on the Intracoastal.

Commission Chairman Donald O’Brien said he’d support building a 2,500 square feet where the pavillion is, and would have the county to build it. “I would support us taking back control of the entire situation,” continuing the current lease, satisfying it through 2026. Then, “we can decide whether we want to negotiate a new lease or revert it back to a community function.” He applauded Captain’s owners Mike Goodman and Chris Herrera for dealing “in good faith,” and for being “good citizens and good partners” in the community–two men whom he said should not be faulted for looking out for their interests, or for having worked with ex-Administrator Craig Coffey, who, O’Brien said–without mentioning his name–had his own ideas. It was a subtle way of blaming much of the controversial morass surrounding the Captain’s issue as Coffey fallout.

Commissioner Joe Mullins liked the idea of county control. “We build, and they pay, they pay for the rent. I don’t sense a problem with that,” he said. He motioned to have the county build the new building. Sullivan sought to change the motion: Captain’s would remain where the restaurant is at the moment, then have an “investigation” to determine if the building can’t be fixed for less than 50 percent of its value. If that’s not possible, only then the county would build a new building. Mullins liked that, and concurred.

Captain’s latest proposed lease was giving the restaurant three years to build a new building, were it done at Captain’s expense. That detail, Captain’s own, may come back to haunt the restaurant owners, as it now gives the county up to three years to figure out what to do with the existing building or line up dollars for a new building, should that prove necessary.

Today’s outcome, after nearly four hours of discussion, did not become clear until the very end of the discussion, when even Commissioner Greg Hansen seemed to be scratching his head: “We have an opportunity to do something here today, I’m not sure what that something is,” he said. But even as he spoke, he made clear that he was on the side of a smaller building and of county control.

In most regards, that’s not what Captain’s was hoping for.

According to the latest version of the proposed lease, which the county and Captain’s worked on through the weekend, Captain’s would have had up to three years to build the new restaurant itself, at its own expense. Rent would have remained at $1,000 a month for the first five years of occupancy, increasing only 3 percent a year starting with the sixth year and through 2041 (by which time it would still be under $2,000 a month), should Captain’s exercise its three five-year renewal options. The restaurant would have it written into the lease that it would not seek a liquor license. The building would be constructed on the so-called filled-in peninsula a few dozen feet to the southwest of the current building, closer to the Intracoastal.

The Hammock Community Association, whose supporters turned out by the score and wearing 50 shades of green, kept the focus on county control and the elimination of long-term subsidies or sweetheart deals for the restaurant, a private business. “Why would he want to take advantage of you any longer because you have been so generously gifting him with that low rent,” Carol Scott, an association member, told commissioners, saying Goodman won’t sue. “And I wonder how many times you’ve heard this fervent plea, please, let the lease run out and deal with this later. He’s not going to sue you. That’s greedy.”

But there’s not at all any certainty that there won’t be a lawsuit.

Jay Livingston, the attorney representing Captain’s, framed the restaurant’s approach in Captain’s willingness to hear community concerns and compromise along the way, back down to a 98-seat restaurant without a liquor license, built at its own expense. The threat of litigation has been bandied about by both sides. Livingston sought both to dispense with that and invite a lawsuit as a way for the county to clarify its own standing.

“At the end of the day once this building is built all of the concerns the county has and the responsibilities the county has with the current building go away. So in that light, we think it’s a really good deal for the county,” Livingston said. “If this is going to result in lawsuits, which has been made very clear by opposing counsel, then there is no better reason than for you to approve this lease because that way all of the issues can be put before the court including issues related to this lease, and the one that comes back to you, you will know where you stand on the law. So if there’s any reason that was given to approve this, it’s the threat of a lawsuit, because that way all of the issues will be before the court.”

At the top of the discussion, Commissioner Dave Sullivan announced his intention to make a motion supporting neither approach–not yet, anyway.

“The urgency here is, it’s been around for a long time, so personally I don’t feel like I have to absolutely make a decision today, because we’ve done that in the past under urgent conditions and made mistakes,” Sullivan said. He raised several fine-print issues, among them the near-future cost of replacing the park’s septic system whether or not a sewer line is extended now. He said Captain’s could buy a liquor license if it wants to, even if it has fewer than 150 seats. He found it contradictory that Captain’s owners would have up to three years to build a new restaurant when they are claiming that their existing structure is “falling apart,” in his words. And he raised questions about the physical soundness of the peninsula, where he said the sea wall is broken and the grounds themselves are sagging in the middle.

“I have a hard time approving anything until we’re sure that that peninsula is capable of supporting the building,” and until the sea wall is certified, Sullivan said. And he was displeased with the financial terms–rent that would subsidize the restaurant. “Essentially what Captain’s is doing is providing us high-cost financing to finance the building,” he said. He wanted the decision tabled for a year and the issues he raised better studied and addressed. “Eventually at this meeting I’ll make a motion along those lines.”

Commissioner Mullins reflected the weariness of colleagues when he said he’d “love to not even be making that decision.” But, he said, “both parties have come to the table and made some concessions and I think it’s time to move forward and make a decision in this lifetime.”

Attorneys Dennis Bayer and Jane West spoke as counsel for the Hammock Community Association, with Bayer prefacing his remarks by noting what he saw as the irregularities of the hearing: there was no county staff report, no county administration recommendation. “For the record we object on the grounds of due process,” Bayer said before delving into the history Captain’s lease and Bing’s own history as a product of the county’s tax-supported Environmentally Sensitive Lands program. He summarized the association’s proposal, placing the seat capacity at 100, as opposed to 80.

County Administrator Jerry cameron defended not having a staff report. “This has been reported many, many times, it’s time for any decision, and we won’t have a recommendation,” he told commissioners. “We will answer your questions, we will tell you what is feasible and what is not feasible. But there is no staff report because there will be no staff recommendation.”

Dozens of people spoke, somewhat evenly divided between supporters of Captain’s, particularly personalized support for Captain’s owners, who’ve made their mark as local business owners and in support of various causes–some of their supporters today were men and women whose own causes Herrera had lent his support to–though many of the arguments presented were repeats of arguments for and against the plans that have been presented over successive meetings since last fall.

“One thing I know is that Captain’s works. It’s clear. It’s been working,” Matt Hathaway said, citing its top rating on several online ranking sites. “For my demographic, we like to see that type of progress, we want to see things that work, we want to see things that bring positive and progressive approach to our county.”

Betty Ledyard, another Captain’s supporter, was referring to Herrera when she said, “I know you are aware of his fever to preserving this beautiful land, he is a local man and he absolutely can be trusted. I know we can all take his promises to heart. And he will rebuild Captain’s and still maintain the old Florida feel of it.”

Others sided with Sullivan’s caution or the Hammock’s plan.

There was no applause after the county’s vote: it was a reflection of the general weariness that’s attended the last few months of the controversy, and perhaps a sense that today’s vote was not a victory, exactly, but a concession, its details yet to be worked out, and its legal future still in doubt.