The fight over a proposed dune walkover around the edge of the Critical Wildlife Area on the south end of Fort Myers Beach continues. In one corner is homeowner Eddie Rood, who wants the walkover. In the other corner is the town council, which is putting up a fight to make sure that doesn’t happen.
There are two rings where this fight is taking place. One is between Rood (and his neighbor Kurt Kroemer) and the State of Florida. In that fight, which is in the court system, the homeowners are attempting to prove they own the property behind their homes where the CWA now sits.
In the other ring is Rood versus the town. Rood filed an ADA lawsuit against the town when he was denied a special exception to have the walkover constructed. Earlier this week, we reported that the town filed a motion for Summary Judgment, asking the court to throw out the case. In a nutshell, the town said at the time Rood filed for the special exception it had nothing to do with him being handicapped. The town argues that this lawsuit is an after-the-fact attempt to get the walkover another way.
On Tuesday of this week, Rood responded to the town’s motion.
This 21-page Rood filing states that “the case involves a claim, under Title II of the Americans with Disabilities Act, that the town unlawfully refused to accommodate Rood’s disability by denying his request to construct a dune walkover, a “minor structure” under the Town’s Land Development Code.” That “minor structure” is 1,491.5 square feet (298.3 feet in length by 5 feet in width)
In its motion, among other things, the town argued that Rood was not disabled when he filed his application for the special exception. Rood responds that he did require a cane at the time of his application. He says he’s only able to walk short distances at a time, that he was instructed to avoid uneven ground, and he has fallen 8-10 times, twice leading to injury. His most recent fall was 3-4 months before his July 2021 deposition. The town council denied the application in 2019.
Rood also argues that his application included plenty of information tipping the town off to his needs. His filing states that the application included that “the five-foot width of the walkover remains adequate to accommodate the anticipated need for the use of a wheelchair or mobility devices by one of the applicants, the steps at the watery end of the proposed dune walkover were replaced with ramps also for use by a wheelchair or similar device, and steps were taken to minimize its footprint to the minimum necessary to allow access by wheelchair or mobility device.”
The town was also arguing that Rood’s need to have wheelchair accessibility to the beach was merely anticipated so the walkover was not “presently” necessary. Rood’s attorney’s argue that previous case law shows that an ADA Title II action accrues not when a plaintiff is diagnosed with a disability, but when he suffers an injury, and that does not occur until he is denied access to a public service because of his disability.
The town argued that a walkover is not needed because the town offers other avenues for him to get to the beach. Rood’s attorney’s countered that with the following: “Mr. Rood’s only access is public access next to a parking lot that is two miles away. There was an alternative access one-quarter mile away, but with no parking.”
Finally, the Town contends that the requested dune walkover is not a reasonable
accommodation. The Town argues “there are no federal or state regulations governing a beach or dune walkover in connection with the ADA.” Rood argues he is not seeking to compel the town – assuming it was a public accommodation and not a government body – to construct the dune walkover, but simply to extend a special exception for its construction by Rood.