Town Wins Dune Walkover ADA Lawsuit


In a 26-page ruling filed yesterday, U.S. District Judge Sheri Chappell ruled in favor of the Town of Fort Myers Beach in the American with Disabilities Act lawsuit filed by Eddie Rood after he was denied a special exception for a dune walkover to the beach behind his Estero Boulevard 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.”

Following the ruling, Rood told Beach Talk Radio News he’s not yet sure whether he’ll appeal Chappell’s ruling. “The fact that I am disabled has not been disputed by the Town. I have never wanted to publicize my disabilities, even though they were very much a concern of mine in the design of the walkover. I am a disabled person, not an attorney, and applied for the Special Exception as such. The judge’s decision that the Town was not adequately notified of my disability in the Special Exception application is a legal point. This is a learning experience, and I will proceed forward with the knowledge that I have acquired in this process.”

Rood has 30 days to appeal Chappell’s ruling or this case is over.



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