Jennifer Audette; Robert Audette v. Lake of the Woods County

United States Court of Appeals
For the Eighth Circuit
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No. 25-2472
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Jennifer Audette; Robert Audette
Plaintiffs - Appellants
v.
Lake of the Woods County; Lake of the Woods Board of Commissioners; James
Nordlof, in his official capacity as a Board member; Cody Hasbargen, in his
official capacity as a Board member; Joe Grund, in his official capacity as a Board
member; Jon Waibel, in his official capacity as a Board member; Edward Arneson,
in his official capacity as a Board member
Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 10, 2026
Filed: July 24, 2026
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Before LOKEN, L.R. SMITH, and STRAS, Circuit Judges.
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L.R. SMITH, Circuit Judge.
Robert and Jennifer Audette (collectively, “the Audettes”) own a home on the
Lake of the Woods in Minnesota. Without prior approval from Lake of the Woods
County (the County), the Audettes poured a 12-foot-wide concrete ramp from their

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property to the lake’s ordinary high-water mark. They attempted to get post-
construction approval but the County denied it. Following the denial of their
conditional use permit, the Audettes sued the County and its officials, alleging
discrimination under Title II of the Americans with Disabilities Act (ADA). The
district court1 determined that the Audettes missed their opportunity to request an
accommodation by violating the County’s instructions. The Audettes appeal. For the
following reasons, we affirm.
I. Background
Minnesota state law recognizes that conservation efforts require compromise
between development and preservation. The Minnesota legislature passed two acts,
the Shoreland Management Act and the Wetland Conservation Act, to balance the
interests between lakeshore development and water conservation. The Wetland
Conservation Act emphasizes avoidance of development and prohibits interference
with wetlands “unless replaced by actions that provide at least equal public value
under a replacement plan . . . .” Minn. Stat. § 103G.222, subd. 1(a). The Shoreland
Management Act, by comparison, creates minimum standards for construction, such
as structure setbacks and impervious surface limits. See Minn. Stat. § 103F.211.
In 2019 the Audettes bought a lakefront home within the Lake of the Woods
shoreland. In June 2020, Robert Audette (Robert) met with the County Land and
Water Planning Director Josh Strumland and an environmental specialist to discuss
plans for property improvements, including additions to the home’s garage. During
the site visit, the officials looked at a staked-out garage addition and informed Robert
that because the project would be on existing wetland fill, he would not need a
permit, “as long as he stays on the existing fill” and ensured that any new concrete
stayed under “400 sq[uare] f[ee]t”. R. Doc. 28-3, at 2.
1 The Honorable Laura M. Provinzino, United States District Judge for the
District of Minnesota.

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At that site visit, the County officials also discussed Robert’s interest in
paving a new driveway and installing a new septic system. Director Strumland,
unaware of Robert’s plans to pave any other part of the property, told Robert that he
could pour concrete to connect his deck to the corner of his garage. Strumland also
told Robert that he should install the septic system in a filled area to avoid any
wetland impact or necessitate an application to purchase wetland credits as required
for new fill.
Without County approval, the Audettes constructed a large concrete ramp
down to the Lake of the Woods ordinary high-water line. In June 2021, a site
inspection confirmed numerous violations resulting from the ramp’s construction.
The next month, a Lake of the Woods Soil and Water Conservation District (SWCD)
conservationist published a restoration order that identified approximately 2,122
square feet of wetland impact attributable to the new ramp—more than five times
the 400 square feet of new fill discussed at the site visit. The County issued a
restoration order directing the Audettes to restore the shoreline to pre-altered
conditions. Later that year, the SWCD chair informed Robert that removing the
state-funded shoreline riprap and pouring the concrete ramp violated a cost-share
project. Robert knew the ramp dismantled a cost-share project when it was
constructed.
In August 2021, Director Strumland also sent Robert correspondence
regarding the violations. Strumland noted the permitting requirements, but he
suggested that Robert apply for an after-the-fact permit.
In September 2021, Robert submitted an after-the-fact conditional-use permit
application describing a “12 ft wide concrete boat ramp” and stating the ramp would
provide safe lake access for his family and that “[t]his slab provides handicap
accessibility to the lake for my wife. It was built with access and safety in mind.” R.
Doc. 28-11, at 7, 11. Robert did not request the required preapplication meeting.

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In November 2021, the Lake of the Woods County Planning Commission
(Planning Commission) held a hearing. Robert’s representative informed the
Planning Commission that Robert “poured the concrete . . . because of his wife’s
health issues.” R. Doc. 34-2, at 2–3. Robert told the Planning Commission that
although he knew the state had installed the riprap he believed he “c[ould] legally
put in my own boat ramp.” Id. at 5. He said he did not apply to pour more concrete
because as he continued to pour, a windstorm damaged trees so he extended the
walkway “to make it look nice.” Id. at 6. One of the Planning Commission members
noted:
[W]e can pretty much do whatever, suggest whatever we want to the
[C]ounty [B]oard who makes the final decision. I guess, to me he went
over and above with the concrete that was not only the 12 foot boat
ramp going down but also the extension of the concrete from the garage
and the house forward on the property before the boat ramp even takes
off from there. You know, if it’s access for your wife and I understand
that I think a normal size sidewalk . . . would’ve been acceptable to me.
A 12 foot boat ramp with all the additional concrete is not acceptable.
Id. at 6–7. Another member noted that the water levels would not allow “any size of
[a] boat other than a kayak” in the lake, and Robert affirmed that building a boat
launch was “never my intention.” Id. at 9. Ultimately, the Planning Commission
recommended approval with conditions, including removing some concrete,
allowing a “12 foot wide walkway” to the lake, and replacing riprap to the edges of
the slab. Id. at 35.
On November 9, 2021, the County Board met to consider the permit
application. Director Strumland opened the meeting by addressing the County
Board.
[Director Strumland]: In the application[,] Robert did make mention the
reason for the 12-foot wide is wife currently has [multiple sclerosis]
and with the kids and everybody there[,] [t]he reason why he removed
the [riprap] was [medical], and there was a windstorm that came
through and one thing led to another and the trees that were falling

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down and all of a sudden I just kept going and one thing led to another
and you have access to the lake now via the 12 foot wide concrete slab.
R. Doc. 28-16, at 2. One County Board member asked Director Strumland, “He
could have [come] to you originally and asked for a ramp first. Correct?” Id. at 4.
Strumland replied that he had gone “out” to the Audettes’ property but the new ramp
“was not what we discussed” at that time. Id. He told the County Board that the boat
ramp was “[n]ever in [the] original discussion that we had.” Id. Another County
Board member asked Strumland “if it was just for . . . kayaking purposes, couldn’t
[Robert] have built a board lock or something?” Id. at 5. Director Strumland replied,
“Right.” Id. at 6.
The County Board noted that granting the permit after-the-fact would be a
“can of worms scenario. You approve it and then there’s just no credibility
whatsoever.” Id. at 8.
[Director Strumland]: . . . [W]e’re acknowledging that what he did is
not correct, but still have some allowance for his wife to still get down
to the lake. Now I’m not saying that currently that individual needs 12
feet. 12 feet is pretty wide. Now again, honestly within our ordinance,
like a four-foot-wide boardwalk or a four-foot-wide sidewalk is
typically allowed for residential structures. . . . Now is four foot not
enough? Is eight foot too much? I don’t know.
. . .
Depends on how severe this debilitating disease is that she has and how
quickly it moves. And I mean there[’]s a lot of ifs, ands and buts when
it comes to that.
[Board Member]: But if he’d come to you right away with that situation,
there would’ve been an avenue.
[Director Strumland]: So yes, we would’ve given them options.
Id. at 9–10.

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[Board Member 1]: Like I said, I don’t think we can approve it.
. . .
[Board Member 2]: He’s going to appeal it. He’s got a lawyer.
. . .
[Board Member 3]: . . . [W]e can look at it and say, alright, you did this,
and you should have done that. Going to cost you this. . . . [B]ut like I
said, I don’t think we could approve this. We should deny it . . . . [B]ut
like I said, my biggest fear in this thing is the trickledown effect. . . .
[Director Strumland]: We deal with after the fact stuff all the time still.
[Board Member 3]: No, I know you do, but also people that maybe have
tried to get things and they say no and then all of a sudden— You don’t
want to give people the free for all to just go do it.
[Director Strumland]: All it has happened on a case is where we said
may do this or recommend this and, yep, pretty soon, it’s not what you
recommend.
[Board Member 3]: An amusement park.
. . .
[Board member 4]: . . . [I]n my mind . . . his intent was obvious. He
knew he was going beyond what he was permitted to . . . . There [were]
other things [he] could have done. He could have—if it was just for
kayaks he could have built a boardwalk.
Id. at 19–21, 39.
Ultimately, the County Board voted to deny the Audettes’ after-the-fact
conditional use permit. It provided the following reasons in support of its denial:

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[1] The nutrient impairment of Lake of the Woods.
[2] Shoreland stabilization projects to prevent further erosion of
shoreline which reduces or eliminates sedimentation and excess
nutrients entering Lake of the Woods.
[3] The applicant didn’t follow process/protocol and is an egregious
violation of the Lake of the Woods County Zoning Ordinance
[(Ordinance)]. The applicant was aware of process/protocols in place
as two previous permits were applied for and approved for the
installation of septic system and addition onto the existing garage.
[4] Applicant sought project assistance from the Land and Water
Planning Office as noted in the file from a site visit to the property in
June 10, 2020 but, went ahead without the required approvals.
[5] Alternative solutions to gain access to the lake exist that would be
more environmentally friendly while still allowing the rock rip rap to
remain intact and still allowing access . . . ; however, applicant didn’t
seek project assistance from the Land and Water Planning Office
[(Planning Office)] prior to undertaking the project.
R. Doc. 28-17, at 4. The County Board directed the Audettes to restore their property
to “original conditions as existed prior to the project occurring” and additionally
required the Audettes to “restore[]” the riprap “to the previous engineered standards”
by no later than July 31, 2022. Id. at 5.
Neither Robert nor his attorney attended the County Board meeting, though
they were both informed of its time and location following the Planning Commission
hearing.
In July 2022, the Audettes submitted a Joint Application Form for Activities
Affecting Water Resources in Minnesota seeking approval of a wetland replacement
plan under the Wetland Conservation Act. Such applications are required for projects
“that may affect a water resource,” such as wetlands. R. Doc. 34-12, at 1. The
Audettes sought to keep the concrete and argued that the “concrete is crucial and the

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area surrounding needs to remain unharmed” “due to ADA compliant
accommodation for family members with disabilities.” Id. at 5. The Audettes
presented compliance options, including purchasing wetland credits, paying a fine,
repurposing wetland areas, or removing a portion of the concrete ramp.
In August 2022, the Planning Office denied the request after finding that the
proposal did “little to reduce the overall wetland impacts to accomplish the project
and no alternatives were identified.” R. Doc. 28-22, at 3. The Planning Office
observed that the boat ramp would remain in violation of County zoning ordinances
even if it complied with the Wetland Conservation Act. The Audettes appealed this
decision to the Minnesota Board of Water and Soil Resources. That board denied the
appeal “as without sufficient merit, pursuant to Minn. Stat. § 103G.2242, Subd. 9
and Minn. Rules Chapter 8420.0905, Subp. 4.” R. Doc. 28-33, at 6.
In September 2023, the Minnesota Department of Natural Resources issued
citations to the Audettes for failure to comply with a Wetland Conservation Act
restoration order, as the Audettes had failed to commence any restoration work and
thus remained in noncompliance.
The Audettes filed this suit against the County and its officials in March 2024.
They alleged that the “Board failed to reasonably accommodate Jennifer Audette’s
disability under the ADA by denying the Audettes’ conditional use permit
application.” R. Doc. 47, at 8. The district court granted summary judgment to the
County in June of 2025. We now affirm.
II. Discussion
The Audettes argue the district court “erred when it determined the County
had no obligation to accommodate Jennifer’s disability.” Appellant’s Br. 16. In their
view, the district court’s action requires “[d]isabled landowners” to “forfeit their
right to accommodations under the [ADA] when they mistakenly construct an
accommodating use without all proper permitting on their real property, and when
the government provides for an after-the-fact permitting procedure, and when the

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landowner follows that procedure.” Id. They also argue that the district court erred
“when it determined that no reasonable trier of fact could conclude that [County]
Board member’s statements and actions provided the discriminatory motive to deny
the Audettes’ accommodation request under either the direct or indirect evidence
test.” Id. at 19–20. Specifically, they contend that “[t]he County deviated from its
standard policies and procedures when it broke from the Planning Commission’s
recommendation, thus giving rise to an inference of discrimination.” Id. at 19.
A. Standard of Review
We review a “district court’s summary-judgment ruling de novo.” Huber v.
Westar Foods, Inc., 139 F.4th 615, 620 (8th Cir. 2025). We affirm the district court
when the evidence, viewed in a light most favorable to the nonmoving
party, shows no genuine issue of material fact exists and the moving
party is entitled to judgment as a matter of law. A genuine issue for trial
exists when a reasonable jury could return a verdict for the nonmoving
party.
Id. (citation modified).
B. ADA Claim
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. The term “public entity”
includes the County and its Board. See id. § 12131(1)(A)–(B) (defining “public
entity” as “any State or local government” and “any department, agency, special
purpose district, or other instrumentality of a State or States or local government”).
Implementing regulations promulgated by the Department of Justice require that
[a] public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the public entity can

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demonstrate that making the modifications would fundamentally alter
the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7)(i). A plaintiff may allege discrimination under Title II on
three different theories: disparate treatment, disparate impact, or failure to
accommodate. See One Love Hous., LLC v. City of Anoka, Minn., 93 F.4th 424, 435
(8th Cir. 2024). The Audettes raise both a failure-to-accommodate theory and a
disparate treatment claim. We will address both.
1. Failure to Accommodate
“For a prima facie Title II ADA violation, a qualified individual with a
disability must be excluded from participation in or denied the benefits of a public
entity’s services, programs, or activities, or be otherwise discriminated against by
the entity, by reason of the individual’s disability.” Folkerts v. City of Waverly, Iowa,
707 F.3d 975, 983 (8th Cir. 2013).2 By extension, “[f]ailing to make a reasonable
accommodation constitutes discrimination.” Mobley v. St. Lukes Health Sys., Inc.,
53 F.4th 452, 456 (8th Cir. 2022).
We note at the outset that “Title II does not require a plaintiff to receive her
preferred accommodation, but merely a reasonable one that provides meaningful
access to the public entity.” Bennett v. Hurley Med. Ctr., 86 F.4th 314, 326 (6th Cir.
2023) (citation modified). That is, a “reasonable accommodation[].” Folkerts, 707
F.3d at 983. Accommodation duties only arise when the public entity learns of the
need for the accommodation. See, e.g., Randolph v. Rodgers, 170 F.3d 850, 858–59
(8th Cir. 1999).
“To prevail under [Title II of] the ADA, [the Audettes] must show that the
accommodations offered by the County were not reasonable, and that [they] [were]
2 We note that “[t]he ADA and § 504 of the Rehabilitation Act [42
U.S.C. § 12132, et seq.] are similar in substance and, with the exception of the
Rehabilitation Act’s federal funding requirement, cases interpreting either are
applicable and interchangeable for analytical purposes.” Id. (citation modified).

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unable to participate equally in the proceedings at issue.” Duval v. Cnty. of Kitsap,
260 F.3d 1124, 1137 (9th Cir. 2001); see DeBoard v. Bd. of Ed. of Ferguson-
Florissant Sch. Dist., 126 F.3d 1102, 1106 (8th Cir. 1997) (“Title II does not define
discrimination as including the failure to make reasonable modifications, but [the
DOJ] regulation states a public entity must make reasonable modifications in
policies when necessary to avoid discrimination.”). The County’s Ordinance
proposes an accommodation for people with mobility disabilities that enables the
construction of a walkway to the lake. However, the Audettes never sought the
County’s permission to construct this offered accommodation. Instead, they
constructed a 12-foot-wide boat ramp without first engaging the County. Moreover,
they constructed the ramp with prior knowledge about the permitting regime and the
limits to their requested projects. On this record, the Audettes cannot show either
that the County offered unreasonable accommodations or that they could not equally
participate in the proceedings.
An ADA accommodation request must be reasonable. The Audettes argue that
because the County’s Ordinance “provides a process for landowners to submit after-
the-fact conditional use permits applications,” their request was reasonable.
Appellant’s Br. 21. They contend that because the County offers an after-the-fact
process, and because they notified the County of the disability during that process,
the required reasonable accommodation responsibility began in the after-the-fact
process. We disagree. The Audettes’ request in the after-the-fact application was not
a simple request that the County extend a reasonable accommodation to their
construction process. They instead asked the County to defer and rescind the
citation’s disciplinary consequences.
The County’s Ordinance mentions an after-the-fact conditional use permit
only in § 1110, titled “Enforcement and Penalties.” J.A. 1106. Section 1110 of the
Ordinance provides, in relevant part:
In the event of violation or threatening violation of this
ordinance, the County Board of Commissioners in addition to other

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remedies including prosecution, may institute appropriate actions or
proceedings to prevent, restrain, correct or abate such violations or
threatened violations, and it shall be the duty of the Lake of the Woods
County Attorney to institute such action.
. . .
Any person, firm or corporation who shall violate any of the
provisions herein, or who shall fail to comply with any of the provisions
herein, or who shall make any false statement in any document required
to be submitted under such provisions, shall be guilty of a
misdemeanor, and upon conviction thereof shall be punished by such
penalties and fines provided by law. Each day that the violation
continues shall constitute a separate offense.
Any application for a permit which is made after the work is
commenced and which requires a permit shall be charged an after-the-
fact administrative fee, as established by resolution of the Lake of the
Woods County Board of Commissioners. The Planning Commission
and/or Board of Adjustment may require administrative penalties,
correction and/or restoration of the property to its original state before
the permit is considered.
Id. at 1106–07.3 Section 1105 outlines the procedures for applying for a conditional
use permit, but it is silent as to an after-the-fact permit. While the County’s
Ordinance contemplates seeking a conditional use permit after-the-fact, it requires
the applicant to pay a fee. But the Ordinance is silent as to whether the after-the-fact
permit exists as of right for projects already in violation. Here, the Audettes only
sought the after-the-fact conditional use permit after they were already in violation
of the Ordinance and the instructions given during the initial site visit. The County
first learned of Jennifer Audette’s disability during its enforcement proceedings.
The Audettes are correct that “[a] disabled landowner does not forfeit their
right to ADA accommodations the moment the landowner violates a zoning
3 The ordinance is available online on the Lake of the Woods County website.
Lake of the Woods County Ordinances, https://lotwcounty.gov/land-
water/ordinances/ (last visited Jun. 26, 2026).

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ordinance,” Appellant’s Br. 22, but that is not what happened here. The Audettes
had prior knowledge of the Ordinance and received instructions regarding how much
fill they were permitted. They did not raise the disability at that time and instead
proceeded with an unlawful construction process. Then, after they were in violation
of the County’s Ordinance, they raised the disability. We note here that property
owners in Minnesota are “charged with knowledge of whether a local zoning
ordinance permits construction undertaken on the property.” Stotts v. Wright Cnty.,
478 N.W.2d 802, 805 (Minn. App. 1991) (citing Jasaka Co. v. City of St. Paul, 309
N.W.2d 40, 44 (Minn. 1981) (“It was the duty of [the property owner] to determine
for itself the propriety of the proposed construction it undertook, and had it done so
the most cursory inquiry would have disclosed the problems it now seeks to
correct.”)). Moreover, the Audettes did not only fail to seek a reasonable
accommodation at the appropriate time, they also failed to properly pursue the after-
the-fact permit. On this record, the County has not been shown to be in violation of
the ADA’s accommodation duties.
2. Discriminatory Treatment
The County also has not been shown to have discriminated against Jennifer.
In the employment context, we “ha[ve] long recognized that a party may prove
intentional discrimination under the ADA either by direct or indirect evidence.” Lipp
v. Cargill Meat Sols. Corp., 911 F.3d 537, 543 (8th Cir. 2018) (citation modified);
accord Bennett, 86 F.4th at 325 (“To show causation as part of an intentional
discrimination claim under Title II—that discrimination was ‘because of’ a
disability—a plaintiff can use either direct or indirect evidence of discrimination.”).
Absent direct evidence, the plaintiff bears the initial burden of showing the
reasonableness of the requested accommodation under the McDonnell Douglas4
burden shifting framework. Bennett, 86 F.4th at 325; cf. Schaffhauser, 794 F.3d at
906 (holding the same in the ADA employment context). “Direct evidence is that
which shows a specific link between the alleged discriminatory animus and the
challenged decision, sufficient to support a finding by a reasonable fact finder that
4McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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an illegitimate criterion actually motivated the adverse employment action.” St.
Martin v. City of St. Paul, 680 F.3d 1027, 1033 (8th Cir. 2012) (citation modified).
This “includes evidence of conduct or statements by persons involved in the
decisionmaking process that may be viewed as directly reflecting the alleged
discriminatory attitude, where it is sufficient to support an inference that
discriminatory attitude more likely than not was a motivating factor.” Lipp, 911 F.3d
at 543 (citation modified). Absent direct evidence, we look for indirect evidence. Id.
at 544.
The Audettes argue that the Board meeting provided direct evidence of
intentional discrimination. Intentional discrimination requires “more than intent as
volition or intent as awareness of consequences.” Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256, 279 (1979). “It implies that the decisionmaker, in this case a state
[board], selected or reaffirmed a particular course of action at least in part because
of, not merely in spite of, its adverse effects upon an identifiable group.” Id. (citation
modified). We find that the Audettes’ evidence provides no evidence of intentional
discrimination.
The Audettes point to three examples of alleged intentional discrimination,
where, they argue, the Board likened Jennifer’s disability to “insider trading,
underage drinking, and the construction of an amusement park.” Appellants’ Br. 51
(citation modified). These examples, even viewed most favorably to the Audettes,
fail to show animus by the board towards Jennifer’s disability status. Rather, the
comments concern the unreasonable delay in seeking a use permit for the
construction of the ramp and not seeking disability accommodation until penalties
were imposed. They do not provide any evidence that the Board based its decision,
even in part, on any animus towards Jennifer’s disability. We likewise find no
indirect evidence of discrimination.
III. Conclusion
For these reasons, we affirm.
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