Last month we reported that the town of Fort Myers Beach won the ADA lawsuit Estero Boulevard property owner Eddie Rood filed regarding the dune walkover he wants to build behind his home. Rood had 30 days to appeal that decision. Thursday he filed the appeal.
Rood notified the U.S. District Court for the Middle District of Florida here in Fort Myers that he was appealing the case to the United States Court of Appeals for the Eleventh Circuit. Rood says a 3-judge panel in Atlanta will decide whether or not to grant thee appeal.
In a 26-page ruling filed August 19th, District Judge Sheri Chappell ruled in favor of the Town after Rood was denied a special exception for a dune walkover to the beach behind his home.
Chappell wrote that this was an unusual ADA case because, despite a long, complicated history between the parties, it had nothing to do with Title II of the ADA. “That is until Rood lost at a zoning hearing.”
The judge wrote that despite having innumerable opportunities over several years, Rood did not request an ADA accommodation. She highlighted the years long battle over the walkover and pointed out that Rood never indicated to the town he was handicapped nor did he specifically request that the walkover be built because he needed wheelchair access to the beach. “Rather, Rood offered a six-page narrative about the project. The narrative made thoughtful (and convincing) argument on granting the Exemption. Nowhere in that document was any suggestion the Dune Walkover bore any relation to a disability.”
Chapell added that Rood needed to show the town had “enough information to know of both the disability and desire for an accommodation and that both are missing.”
On top of that, Chappell writes, that even if Rood did request the walkover, due to a disability, the ADA does not require that he be granted one. “If Rood requested an accommodation, the ADA did not require it. In short, the Dune Walkover was not a reasonable accommodation. ADA plaintiffs are not entitled to their most-preferred accommodations, just those that are reasonable.”
And in her ruling, Chappell added that the town’s rejection of Rood’s special exception was proper. “Arguing the exemption was a fundamental alteration, the town hits the nail on the head. On its face, building the Dune Walkover through an EC zone would change the complexion of the area by encroaching on land protected from development. Put another way, the Dune Walkover was “incompatible with surrounding land uses” of the “zoning scheme.”
She also wasn’t buying Rood’s argument that there have been other walkovers granted on the island. Here’s why. “True enough, the Town granted five exemptions for dune walkovers through EC land. This is a red herring though. All those structures are split between two public parks. So those exemptions are intrinsically different. Each connects a public park to a public beach in service of the entire community—including Rood. Again, the Dune Walkover differs. Even if it services Rood’s whole neighborhood, the structure is still behind the Property and allows a private citizen preferential beach access.”
Chappell wrote that nothing suggests the Dune Walkover was necessary
to address Rood’s disability. “The Court finds the Dune Walkover was an unreasonable accommodation. As the Town argues, this project seeks preferential treatment, which the ADA does not require.”
Rood has 30 days to file an argument that supports his request for an appeal. If he wins the appeal, the case will come back to Chapell here in Fort Myers with further instruction from the appeals panel.
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The judge’s opinion on that issue is irrelevant. They are not a wildlife expert and probably did not even walk the area. Proof of your assumption would only come from wildlife pros. And that is exactly what the council should insist on. You and this guy Captain America are merely opinionating. That should not be good enough.
It is opinion that the Judge overstepped her authority. When I was in corporate America when this law was first implemented, the person filing for ADA could identify whenever they were comfortable. Yes, the accommodation had to be reasonable, but it is hard for me to fathom that Rood willing to pay for his own walkover and asking the Town to grant an exception is not reasonable.
So how ma y private boardwalks are you willing to give to every homeowner who will want one? How many private boardwalks would you string along the beachfront?
Lee, If Rood is given a special exemption for his boardwalk the Town does not lose its ability to make decisions on a case by case basis. Two facts that nobody has ever been able to refute. 1) The State of Florida (FDEP & FWC) okay ed the walkover. 2) The Town which denied the application because of humans in the area wanted to allow the walkover if they would open it up to anyone & everyone. Clearly undermining their denial argument
The state long ago abandoned its power to protect state lands and preserves. Hell, it put hunters and oil rigs in state parks and the Everglades and some of its state recreational lands.
The town has the power to do the right thing and protect that preserve. It can’t do that based on opinions. It should insist on professional wildlife expertise to advise it on the stability of that small preserve.
By the way John, the DEP says and does what its political bosses tell it to say. That’s how we got oil rigs and hunters in state parks. The town should seek independent and objective advise.
I put in a request to operate a motorized boat on a lake in another township and the council there denied my request saying operating the boat and motor would be harmful to the environment. They later offered to approve my request if I allowed every property owner on the lake to take the boat out. Weird, huh?
I have a folder full of photos of elevated walkways and boardwalks through nature preserves and protected wildlife sanctuaries throughout SW Florida. Structure is helpful to wildlife as it provides cover and areas to nest and feed. On top of it all this particular walkover is in an area devoid of birds and nesting areas, they simply are not there. Go there and see for yourself, any day, morning or night, all year long.
Those other boardwalks are located in much larger spaces than the small preserve on the island. I am familiar with thst area and it ain’t that far away. Certainly close enough to hear the traffic and chatter crossing that boardwalk.
Since we are dealing in opinions here it is my opinion the boardwalk thru Matanzas Preserve I know so well has lessened the number of wildlife there. Just an opinion of course, one I am not willing to bet on any more than council should bet on the opions surrounding this preserve.
I bet if Rog could charge a fee for everytime somebody walked across the dune walkover he’d be in favor.
These shorebirds will not leave that area. They will adapt to their surrounds as they have done for millions of years. Perhaps having the walk over will create more vegetation for the dune area that’s protected. In many areas these walkovers have helped the wildlife thrive. Surely both sides can argue their point on what wildlife will be affected positively and negatively. In the end the walkover seems a win for the vegetation and wildlife.
Can you prove that Captain? Can you and Eddie present proof to support such a claim that a boardwalk along that preserve won’t disturb and even runoff the inhabited wildlife settled there? Surely his and your opinion should not be good enough.
Surely the council should require proof to such a claim before risking such a valuable and important island environmental resource as that preserve? Shouldn’t residents demand it?
Hello Lee, I do in fact have that information. There was a study and a report prepared by the Florida DEP and presented in a court proceeding that the Town filed against me, and that report was accepted as fact by the judge in that hearing. The judges opinion on that information is public information that can be read on the DOHA website.