Four years after Captain’s BBQ sued Flagler County government in a breach of contract claim, a negotiated settlement calls for the county to pay Captain’s $800,000, and clear the way for a new, 5,000 square foot restaurant at the county park, on the so-called “peninsula” at the edge of the Intracoastal, just west of the current restaurant.
For Flagler County taxpayers, the dispute with Captain’s, just entering its fifth year, will have cost close to $1 million, when the county’s attorneys’ fees are included. Captain’s, which is still operating at the county park, is currently paying $980 a month in rent.
The county will pay $400,000 toward construction of the new restaurant, and will reimburse Captain’s $400,000 for money the restaurant has been spending on its existing building for upkeep.
Captain’s will have a 20-year lease from the moment it gets its certificate of occupation into the new building, a significantly larger structure than its current building, with seating for 150. It will pay $3,000 a month in rent and have the right to secure a liquor license.
In sum, the settlement is a financial shock to the county, a crushing disappointment to the Hammock community, and a huge victory for Captain’s, which may not have gotten all it wanted–such as building the 5,000 square foot restaurant in the center of Bing’s Landing, as it planned in 2018–but in some regards got a lot more, with county taxpayers picking up a large portion of the tab.
“It is a big disappointment in that we put so much effort in trying to get that to not happen,” Dennis Clark said in an interview this evening of the larger restaurant. Clark chairs the Scenic A1A Pride committee, is a member of the Hammock Community Association Board, and was largely instrumental in bringing to light what, in 2018, had been the county’s hushed plans to allow Captain’s to build bigger in the center of the park. “You took a sleepy park that had originally 1,500 square feet for the original bait and tackle shop, that has now grown to 4,700 square feet, and now that’s going to be 5,000 square feet.” Clark said that with a 150-seat restaurant plus employees, not to mention other users of what would remain of the park, “it’s going to turn a park into a parking lot for a restaurant, and I still think that’s going to happen.”
The Flagler County Commission has not approved the settlement. It was made aware of it in a closed session last week, but by law was not allowed to approve it behind closed doors, and delayed that decision until Nov. 20. It could still opt out of ratifying the agreement, but that appears unlikely at this point.
The location of the new restaurant on the peninsula is not a new idea. The County Commission had proposed it in 2019, after reversing course on the lease amendment (or reconsidering it). But Captain’s had rejected it at the time.
The county will draw the $400,000 from its reserves, which started the year at $5.9 million. It will use impact fee revenue and other sources for other amounts due. The two sides will pay their own attorneys’ fees, which in the county’s case had exceeded $153,153 as of July, and had been accumulating since.
Most of the peripheral terms of the settlement favor Captain’s BBQ.
Flagler County will be responsible for the upkeep and maintenance of the exterior of the new facility, including the grounds, and provide a sewer line once it’s available, at the county’s expense. Captain’s will be responsible for interior maintenance. The county will also be responsible for planning for “additional recreational opportunities and park enhancements to improve the overall public experience at Bings Landing,” according to a summary drafted by the county attorney’s office. Flagler County will also cover the cost of any permitting or impact fees associated with the new restaurant, including the cost of demolition and disposal of the existing restaurant.
To pay for it all, the county will “seek to establish a dedicated revenue source for Bings Landing with all proceeds derived from the park use, being utilized solely within the park for additional improvements and upkeep, as the County presently does at Princess Place and other properties that contain land management plans,” the agreement summary states. At Princess Place, the county built and leases “cottages” to generate revenue. It’s not clear how, without new, potentially disrupting amenities, the county intends to generate cash at Bing’s.
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The $400,000 reimbursement covers costs “since the filing of the lawsuit when the parties could not agree as to a schedule for structural repairs and for reimbursement of all costs expended in engineering, planning and design for the original site and later proposed site,” the settlement summary states. “The forgoing amount also includes the settlement of all claims of damage due to lost business and damage to good will of Captain’s BBQ, ensuring a comprehensive resolution of all disputes arising from the 2019 lawsuit.”
FlaglerLive a little before 11 this morning requested the settlement agreement from the county’s attorney’s office, as it had not yet been published at the time. Just before 3 p.m., the county issued a release stating that the County Commission will “deliberate on a landmark settlement agreement with Captain’s BBQ on Monday.”
The release, coyly, did not disclose any of the monetary terms of the proposed settlement, and tried to put a happy face on the county’s grim result, describing the future restaurant as “a state-of-the-art Captain’s BBQ restaurant that will include design elements of coastal Old Florida architecture.” County Commission Chairman Greg Hansen was quoted as saying, implausibly, that “This settlement reflects our commitment to fostering partnerships that benefit the community as a whole,” as if the county would have been glad to sign on to an $800,000 pay-out and a new building four years ago–as if the lawsuit had been a happy haggle with “a beloved establishment in our community,” all intended to “enhancing the recreational offerings at Bings Landing while contributing to the overall vibrancy of our county.” Hansen’s Gatsbyesque words were almost certainly written by lawyers and the administration.
Ahead of Monday’s meeting, the county prepared a presentation framing the $400,000 contribution to the new building in terms of “return on investment,” claiming that the building will be worth $2.8 million at the end of the 20-year lease, thereby yielding an ROI of 279 percent. The analysis goes on to assume a “conservative market appreciation of 2% annually,” resulting in a value of $4.08 million, or an ROI of 477 percent.
The calculation, of course, is preposterous, because it applies an open market, private-sector analysis to a county-owned building on county-owned land that can never be sold, making that ROI irrelevant. The calculation, in other words, is a transparently deceptive attempt at making a battlefield look like an Elysian victory.
The county’s defeat originated with the commission signing on to a lease amendment it had vetted poorly, and that had been agreed upon between then-Administrator Craig Coffey and Captain’s owners mostly out of public view. Once the commission voted to approve the lease, it had signed a contract, making any retreat legally difficult. Captain’s knew it, so when the county did retreat, a lawsuit seemed inevitable.
The case was set for trial early next year. Circuit Judge Chris France in September pushed the two sides back to mediation, leading to the settlement.
“After months of negotiations, both parties reached a consensus that not only resolves the legal disputes but also fosters collaboration to enhance the community’s recreational and dining experience,” County Administrator Heidi Petito was quoted as saying in the release. “Through the intricate dance of negotiating, we found harmony in compromise and turned the page on a chapter that once held uncertainty. As a participant in the negotiated settlement agreement, I am grateful to have played a role in bringing resolution to this longstanding issue.”
The county had briefed a majority of the members of the Hammock Community Association on the substance of the settlement before it was made public.
Had the matter gone to trial and the county lost, Captain’s would have been allowed to build in the center of the park, and the county’s costs would likely have been higher. Had the county won, it would still have had a hefty bill because of the existing building. “There’s really no good resolution out of this thing except trying to make the best out of it,” Clark said.
That’s what he was trying to focus on. “Having a restaurant on the water in the Hammock is a nice idea, so I guess we should grin and bear it,” Clark said. He was also taking some comfort in “what have we learned so we don’t do this kind of thing again. Our rapport with the county and the community is more transparent now. I think they’re really trying. That’s a good sign going forward, so I’ll take that as a positive.”
bings-settlement.pdf#page=54
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