By Joe Capozzi
A judge has rejected developer William Swaim’s request for an easement across land behind Ocean Ridge Town Hall so he can access two submerged lots his company owns in the Intracoastal Waterway.
Swaim’s Waterfront ICW Properties Inc. has appealed the Jan. 3 ruling by Palm Beach County Circuit Judge Donald Hafele, who cited several reasons for dismissing with prejudice the company’s request to access land owned by the town and Spanish Creek LLC.
For one, Hafele wrote, the access route sought in Swaim’s lawsuit “is not the ‘nearest practical route’ to” State Road A1A. The nearest route, the judge wrote, traverses land owned by Wellington Arms, which ICW Properties sued in 2015 before reaching a settlement with the condominium in 2020.
The judge also cited “concerns over the validity” of old deeds submitted by ICW Properties in the company’s claim that the land was part of a right of way dedicated to the public in 1955.
The state law cited by Swaim in his claim requires that the land seeking access to the nearest road be used for a specific purpose. The land is submerged and surrounded by water in an environmentally sensitive lagoon.
Residents and environmentalists have been horrified at the thought of someone ripping out mangroves and trucking in fill to turn the wildlife-rich lagoon into a construction site and another Florida development.
From the outset, Swaim has asserted that the lagoon is not a pristine natural wetland but rather a construction project by the Army Corps of Engineers, which dredged out the area decades ago for mosquito control.
That argument was bolstered by Hafele in 2019 in a separate case, against the state of Florida, when the judge ruled that the mangrove-rich lagoon was largely man-made and not navigable in its original state some 180 years ago. That decision recognized Swaim’s lots as buildable land that isn’t protected as sovereign by state statutes.
But in ICW’s two-day trial last summer against Ocean Ridge and Spanish Creek, “there was little to no evidence supporting a present and good faith intent” that the company intended to build anything on the submerged land, Hafele wrote Jan. 3.
“Mr. Swaim testified that he intends to ‘wait and see’ before ICW decides what to do with the property. Swaim further testified that ICW may sell the property to a developer or other commercial enterprise so they can develop the property as they wish. … ICW’s plan to ‘wait and see’ is not grounds for relief under state law.’’
The property sought by Swaim was acquired by the town in 1999 from a private landowner for the construction of Town Hall in 2008.
“In sum the evidence presented clearly reflected that this proposed route is not the nearest practical route nor is it even reasonably practical, given that it would traverse submerged property including well-established conservation areas,’’ wrote Hafele, who heard arguments in a nonjury trial in August.
Swaim’s request was just one of several legal maneuvers attempted over the years by companies he owns, including lawsuits and claims against other property owners and agencies. He is also involved in at least six similar lawsuits in Broward County.
In 2021 a federal lawsuit filed by ICW against the town alleging a claim for inverse condemnation and damages in the amount of $10 million was voluntarily dismissed without prejudice. That case is now closed.
In all cases, town officials have been careful to avoid making public comments, especially since Swaim on Jan. 28 filed an appeal to Hafele’s Jan. 3 ruling with the Fourth District Court of Appeal.
“A tremendous amount of work was put into this, and the judgment in our favor will help to protect the town’s investment in the Town Hall facility and drainage system, and help to maintain the environmentally sensitive lands located to the west of Town Hall, while also protecting the interests of our residents,’’ Town Manager Tracey Stevens told town commissioners Feb. 7 in rare public comments about Hafele’s most recent ruling, remarks that were part of her annual performance evaluation.
But an attorney for the law firm that successfully defended Ocean Ridge in the easement case held no punches in court papers requesting Swaim be ordered to pay the town’s legal fees.
“Fatally flawed from the moment of its filing, this lawsuit was a brazen attempt to misuse section 704.04, Florida statutes for purposes outside its plain language and scope,’’ Lyman H. Reynolds of Roberts, Reynolds Bedard & Tuzzio wrote in a Jan. 31 filing.
“Worse than that, the plaintiff manufactured the ‘evidence’ supporting its claim, acquiring deeds from defunct corporations, baselessly fabricating property boundaries to suit its narrative and otherwise promoting imaginary property rights to drive its meritless legal theory for access rights through submerged environmentally protected property to the middle of a creek.’’
By Joe Capozzi