A right to travel case is decided in favor of a disabled person,
emphasizing that highways are for all legitimate users, including
pedestrians (and bicyclists and operators of NEVs and mopeds and
electric assist bicycles and ...).

Bob Shanteau

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Supreme Court sides with sidewalk activist
Disabled man wins push to clear way

By Margot Sanger-Katz Monitor staff
June 13, 2009 - 12:00 am

Bill Tinker likes to ride his scooter around downtown Tilton. The
Northfield man has respiratory, circulatory and orthopedic problems that
make walking or driving difficult. But he still likes to get out to the
post office, the grocery store and other local shops.

Now, he will be able to ride downtown all year long. This week, the New
Hampshire Supreme Court settled a longstanding dispute between Tinker
and Tilton about whether the town is required to clear snow from its
sidewalks to allow him and others with disabilities access. In short,
the court said it is.

"Disabled people have been stomped on long enough," Tinker, 63, said
yesterday, adding that he "cheered" when he heard about the court's
decision.

Molly McPartlin, the lawyer who represented the town, said that Tilton
will comply with the court's ruling and "make reasonable efforts with
regard to snow removal." She said that the town does not plan to appeal
the ruling or ask the court to reconsider.

Tinker and Tilton have been arguing over the sidewalks for years.
According to Tinker, he first hounded the town to install the sidewalk,
which runs parallel to Route 3. Then, when they built it, he prodded
them to maintain the way so he could use it year-round.

"All I wanted was access for pedestrians, whether walking rolling or
creeping," he said.

Tinker is firmly in the rolling category. He rides a four-wheeled
scooter, which he said can reach speeds of "with a tailwind, probably 11
mph." But without his scooter, Tinker said, he is much more limited, and
can't walk more than 100 or 200 feet at a time.

McPartlin estimated that it will cost the town between $15,000 and
$20,000 a year for the town to maintain the sidewalk, a cost that is
driven up because parts of the walkway are on a highway overpass, and
maintenance crews are barred from simply pushing the snow down onto the
interstate.

"He's been the only person who has ever requested snow removal services
on this sidewalk," McPartlin said. "The sidewalk is a very low traffic
area."

But Tinker, represented by James Fox of the Disability Rights Center,
argued that the federal Americans with Disabilities Act required the
municipality to accommodate disabled residents who could not safely
travel on an icy sidewalk or the shoulder of a busy state highway. The
law says that public entities must "give people with disabilities an
equal opportunity to benefit from all of their programs, services, and
activities," including transportation.

Failing to clear the walkway denied Tinker the opportunity to travel
around town, his lawyers argued.

"Once you have a curb, if you have a wheelchair or a scooter, if you're
using the road, it's very dangerous," Fox said.

On the advice of the trial court, the town initially opted to close the
sidewalk between December and April, arguing that because no one could
use it, they were not discriminating against disabled residents by not
clearing it.

The town even passed an ordinance that allowed the police to fine
pedestrians from using the sidewalk when it was closed.

But the Supreme Court said that the town's policy still violated the law.

"The refusal to remove any snow is not a reasonable limit upon the
removal of snow, but it is an abdication by the town of its obligation
altogether," the court wrote.

The court made clear that its opinion was narrow and applied only to
Tinker's case, but Fox said that the decision has made its
interpretation of the law quite clear, and he hopes the case will
prevent similar disputes in other communities.

"I never thought it was in any way ambiguous that they did have to
maintain it, and I think most towns know that," Fox said. "But if
there's any question, now I think this case should settle once and for
all that towns must maintain these sidewalks."

Tinker said that he'd never planned to sue the town. He hoped that
selectmen would understand his needs and clear the sidewalks. Now, he
said, the town is out four years of legal costs, and a $60,000 fee to
repay Tinker's lawyer. It would have cost less to do the road
maintenance, he said.

"All we wanted was for them to plow the sidewalks."