Flagler County commissioners on Monday got new options to resolve the stalled and controversial plan to move Captain’s BBQ to the center of Bing’s Landing, a popular county park on the Intracoastal Waterway in the Hammock.
The commissioners did not make a decision today. They were meeting in workshop to get the detailed overview of the Captain’s plan that they did not get late last year, before approving a lease amendment that appeared to be a done deal and drew so much opposition that the commission subsequently set aside its decision, pending deliberations like today’s.
The option that drew hints of support, at least from a few of the more than a dozen people who spoke (known as “option four”), is an alternative site that would keep the restaurant in its more off-center location, and move it further southwest, closer to the waterway. That plan would give Captain’s what it wants: a larger footprint and a new building it would build at its own cost, without having to shut down the existing restaurant meanwhile. And it would give opponents of the previous plan what they want: a park that preserves its character, tree cover and green zones while still enabling a popular amenity to carry on.
“There is a win-win solution embedded in this presentation, and that is option four,” Abby Romaine, a former president of the Hammock Community Association (when it was known as the Hammock Conservation Coalition) and a close supporter of Captain’s, said.
Mike Goodman, who owns Captain’s with Chris Herrera, told a reporter he would go with option four as a compromise. And when Joe Mullins, the newest county commissioner, asked for a show of hands from the audience regarding the favorability of option four, most hands went up. Commissioner Dave Sullivan said he was willing to “take a hard look at option four,” and was joined by Don O’Brien, the commission chairman, and Mullins. Commissioner Greg Hansen still favored the existing proposal, but said “if we can keep everybody happy and on board” with option four, he’d support it.
But most of those who spoke did so on terms framed by the last few months’ controversy–arguing either for or against the restaurant’s expansion, without taking account of today’s compromise options that would essentially make black-and-white pro and con arguments moot.
Supporters of the restaurant urged the commission to approve the restaurant’s expansion and recognize its value to visitors and the local business climate without sending “the wrong message to other businesses considering expanding or relocating to our county,” in the words of Flagler Chamber of Commerce President Jorge Gutierrez.
Opponents of the lease amendment urged the commission to take the park’s history and character into account, and to not “pick winners and losers,” one A1A restaurant owner said. “Changing the character of the park is unacceptable,” Dennis Clark, who chairs the Scenic A1A Committee, said, seeing in Captain’s growth indication that it has “outgrown the park.” He doesn’t oppose its existing location, but “anything larger should be located elsewhere.”
County Administrator Craig Coffey presented six options to commissioners, the first two being either to rebuild the restaurant at its present location or repairing it. Option three is the current, controversial plan to move the restaurant more to the center of the park. Option four is to build new at a site just to the southwest of the existing restaurant, in place of a pavillion, or even closer to the Intracoastal (as suggested by Commissioner Joe Mullins). Option five is to build it new further to the south, on a more untouched portion of the existing park. And Option six is to build it at the north end of the park, fronting on A1A.
Option four had the longest list of positives: minimal tree loss, less obstructed view of the Intracoastal, little cost to taxpayers, no restaurant closure, no legal liability. “This is an option that staff has resisted but if everybody thinks it’s good, that’s fine with us,” Coffey said.
The administration is recommending options three or four, and Coffey on a few occasions was clearly testing support for option four. Captain’s still prefers option three.
Coffey is not favoring rebuilding the restaurant at its present site.
Before going into the options, he gave commissioners a history of Bing’s, including the little that’s known about the early history of the building that houses the restaurant. That building, a Universal Engineering inspector Coffey brought in said, needs a new roof and exhibits wood rotted from termites, among other structural problems. “The only way to fix this is to remove that wood floor system” and rebuild the base, from where the rot is originating, the inspector said. “The problem with that is, we have to shut down the restaurant.”
Coffey, the consultant and Heidi Petito, the county’s facilities director, spent a lot of time discussing and illustrating the extent of the damage undergirding the existing building and how extensive repairs would have to be. “It’s a never ending thing,” Coffey said, referring to a 50 percent threshold that, once triggered, would mean that building new makes more sense. “He’s confirming what we knew as staff for a year, and the owners knew as well,” Coffey said of the Universal contractor.
The administrator also outlined other issues that attach to the Captain’s matter: septic, parking, the lease’s history through the commission (“no problems, no opposition,” Coffey said of previous amendments). He said the lease was drafted on the assumption that the restaurant was not a controversial business, nor would its move to a different site, and so would not warrant more than pro-forma ratification by the commission after elements of the plan went through the Scenic A1A committee and the county’s planning board.
In that regard, Coffey miscalculated: the plan’s lack of clarity at various steps raised more questions than it answered and eventually led to the public backlash. He never explained, for example, why today’s ample and options-rich presentation was not made to the commission before the commission was given only the one, controversial lease amendment to approve.
Coffey’s presentation also sought to show that the relatively low rent Captain’s has been paying and would be paying is not as low as it appears, once the county’s maintenance and other costs are accounted for: since Captain’s is willing to assume maintenance costs in the future, that saving to the county does not show up in its rent revenue, but remains part of the value the county is gaining, the administrator said.
Hadeed began the meeting by placing the issue in a legal context: Captain’s has a lease with the county. He interpreted the county’s obligations under that lease and the liabilities to which it may be exposed if the county breaches, interferes with or ends Captain’s ability to operate as profitably as it has.
His preface to the meeting was a warning: Captain’s could sue, and not just if the county were to end the lease outright, but if it merely did things that prevented Captain’s from continuing what he called its “rising trajectory of income.” That meant, in Hadeed’s view, that if the existing building was not structurally sound anymore, as both the county and Captain’s claim, Captain’s could have grounds to sue even if the county were to decide to build a new restaurant on the same footprint, and if the restaurant’s revenue was badly affected by the project. If Captain’s wins its suit, it would have the right to recoup all attorneys’ fees.
Though he did not say so explicitly, Hadeed’s preface was not a guide on what to do next, but a warning about what would happen if the county did not do what its administration pledged to do with and for Captain’s through its latest and most controversial lease amendment. The presentation seemed to give the county little room to set aside the amended lease or even to set aside the heart of the contested plan: that of moving Captain’s.
“We as a landlord have an obligation to provide them a facility from which they can operate,” Hadeed said. “Because of the potential exposure to an indeterminate amount of damages and potential for attorney’s fees that the county should not, could not, terminate the lease.”
Toward the end of the meeting, Jay Livingston, the attorney representing Captain’s, said there’d never been a threat of litigation, and that his clients were approaching the issue cooperatively, not litigiously.
Hadeed’s was not the only legal warning: Attorney Jane West, who with attorney Dennis Bayer is representing the Hammock Community Association, told the commission during the latter part of the workshop of the association’s own appeal of the lease the county approved in December. “There’s just so much left up in the air,” she said, calling it “not fair to your constituents.”
If Hadeed’s preface was narrowly tailored to the legalities of the issue, it did not discuss the administrative compromises in the works, such as the three other siting options Coffey and the administration have come up with since the controversy exploded, in addition to the contested option. Hadeed did not say how any of those alternative options would affect the county’s liabilities, likely because as long as the county is providing Captain’s a means of doing business while providing it with a sound structure, it’s fulfilling its lease obligations.
So the siting issue becomes an executive matter for the commissioners to decide.
Hadeed sought to correct the record about the purpose of the county’s $1 million acquisition of Bing’s Landing with Environmentally Sensitive Land tax dollars in 1989: It was not bought for habitat conservation, as were the River-to-Sea and Princess Place preserves, but to provide public boating access to the Intracoastal Waterway. “It was not bought for the preservation of historic resources,” Hadeed said, because at the time there was no awareness that there were “significant” historical resources on the property. That was an unforeseen benefit of the park.
Nevertheless, the “archaeological dig of the Mala Compra Plantation” has since become an integral part of the park’s purpose, as the county’s own web page on the park notes, on par with its “state-of-the-art boat launch, fishing pier, picnic and playground facilities.”