Resident: Tanglewood roads are public, subject to county upkeep

Once a fixture at the entrance to Tanglewood Lakes, the card-controlled gates have been disabled until some decision can be reached on whether the roads in the development are public or private. (Journal file photo)

By Charlene Sims, info@linncountyjournal.com

MOUND CITY – Just as it seemed that the Linn County Commission had settled out the issues with whether the roads at Tanglewood Lakes were public or private, Eva Riojas-Mackey in a presentation on Monday, April 28, had county officials reconsidering the county’s stance. 

In her presentation, Riojas-Mackey, a long-time Tanglewood resident, used documents from state and county officials to support her claim that Tanglewood’s lake owners’ association had violated state law by depriving residents of access to their property and that the lake development’s roads were public and subject to maintenance by the county. The lake development was created by the late William Justus, a Pleasanton physician, around 1970.

Before Riojas-Mackey spoke, Linn County Counselor Jacklyn Paletta’s recommendation to the commissioners and the officials of Tanglewood Lakes was that the roads in the lake development were private and would continue that way.

“I’ve had the opportunity to speak with the attorney for Tanglewood and also review the history of Tanglewood as well as the county,” Paletta said. “And Tanglewood has been private, and it is the commissioner’s decision that it is going to remain private at this time. There is no resolution that needs to be passed or signed today because nothing is changing. It is going to continue to be the way that it has always been.”

Tanglewood resident Jim Hendershot went to the podium and said he was curious about how the guidance that Paletta was giving fit with the judge’s ruling that the roads are public.

“The bottom line is that the hearing that occurred in the court was a public criminal matter involving a specific defendant,” Paletta replied. “What was pending in the court was not a civil matter pertaining to any type of zoning or anything like that. So that order from that court is not inconsistent with what I’m saying.”

She continued saying that that did not have to do with the rights of the county or the homeowner’s association with regards to the maintenance of the roads.

“You said you did your research,” Hendershot said, “so I’m assuming that you’ve seen every plat that was filed or recorded and then accepted by the county commission in 1974. Each one of those says that those roads are public forever.”

“So as you know, the county has never undertaken any action to publicly use and/or maintain those roads. And so that’s how things are going to stay,” replied Paletta.

Hendershot said, “Please understand that I am only trying to avoid future issues. I just want to make sure we are going down the right path. I understand what your guidance is, and if you’ve spoken to our attorney, we will speak with him and see what his thoughts are. Thank you.”

Next, Tanglewood board president Chuck Stevens said that they had spoken to Commissioner Jason Hightower about having something in writing. He said he understood the attorney saying no resolution but wondered what would stop the next court case before the judge and Tanglewood residents would go all over this process again.

Paletta told Stevens that, since they are represented by an attorney and the county is represented by her, some things are sort of a matter of attorney client privilege. She said that her rules of professional conduct prevent her from having conversations with represented parties. For that reason, she had agreed that they would just issue a statement on behalf of the commissioners that indicated that since the case law is pretty clear and the statutes are pretty clear and since no action had been undertaken to make those roads public in any kind of way. 

Passing a resolution now would indicate that some time of change is happening. The road has and always will continue to be private.

Stevens asked if the partnership agreements had been discussed.

Hightower said that he would like to see those put in as assistance agreements.

Tanglewood resident: Board acted illegally

Riojas-Mackey gave her presentation to the commissioners about the issues at Tanglewood and the laws regarding the public roads there. Here is her speech in its entirety:

“Good Morning Commissioners: 

Thank you for allowing me to speak with you today. For those of you that don't know me, my name is Eva Riojas-Mackey and I’m a resident at Tanglewood Lake, a subdivision here in Linn County. 

“I am here today to talk to you about Tanglewood, the gates, and the roads. I am aware of the strong opinions the majority of you have about me for removing of the gates, and that is one of the things I will be addressing today. While we share in the frustration that an event like that even had to occur, I hope to help you understand how it got there. I feel like information has been overlooked and/or ignored due to the previous County Attorney’s misrepresentation of the status of Tanglewood’s roads, and I appreciate this opportunity to provide you all with some information, and a little backstory to this not-so-new issue. 

“Before I begin, in front of you, are the documents I used to prepare for today’s meeting as well as a copy of what I am reading. I apologize for the impersonalness of me reading directly to you, but there is a lot of information I would like to cover. Please note, some of the documents in your folders are not whole documents but rather the parts that are relevant. I do have a full copy of every document available should someone like to see it. In your folders, are copies of the following documents (in no specific order): 

"• Eva Riojas-Mackey’s presentation 

• June 10, 2019 commissioner meeting minutes 

•  Pages 1 and 10-14 of the LN-2021-CV-000071, Charles Toynbee, et al vs. Tanglewood Lake Owners’ Association, Inc., et al, Judgement Summary Judgement Statement of Facts and Conclusions of Law 

•  June 10, 2020 Linn County News article, Tanglewood residents fight gate card shutoffs, no accessibility for family 

•  July 29, 2021 letter from HUD to Sherri Toynbee and page 58 of their investigation 

•  July 13, 2021 email from Linn County Prosecuting Attorney Burton Harding to Tanglewood’s attorney, Darcy Domoney 

•  June 26, 2023 Letter from Gary Thompson to Tanglewood 

•  Final Plat Maps for Tanglewood Lake Plats 1, 7, 26, and 70 

•  August 27, 1993 Attorney General Opinion No. 93-117 

•  State of Kansas vs. Richard Carl Deines, No. 82, 433 

“On June 10, 2019, I came before this board of commissioners seeking help for numerous Linn County residents that were being locked in and/or out of their homes by the board of directors at Tanglewood. At that time, Tanglewood was a fully gated subdivision that required a key access card to enter and to exit the community.

“According to Judge Andrea Purvis, this made owners whose access cards were deactivated either homeless, (with their homes on the inside of the subdivision and them on the outside), or criminally restrained or prisoners (where residents were physically kept from leaving) from going to work, getting food, hauling water, being able to let someone in and out to pump their septic tanks, get medical treatments, etc. 

“Recognizing that local governments are usually left in an untenable position with home owners associations and their authority to govern, I contacted several other government agencies including, but not limited to; the Attorney General’s Office, Kansas Bureau of Investigations, Department of Aging and Disability (most of the residents without access were elderly and/or disabled), The Disability Rights Center of Kansas, The Federal Bureau of Investigations, and our sheriff’s department. 

“Every department I spoke with told me the same thing: They didn’t have jurisdiction or authority, that I needed to go to my county commissioners, and that my county commissioners were responsible for anything that has to do with the roads and accessing them. So, I came to my commissioner’s seeking assistance with something in which I believed you, as county commissioners, had the full and final decisions over: accessing roads, right of ways, easements, and utilizing easements. 

“However, after listening to me and a couple other individuals speak about the situation we were in, Mr. Thompson (former county counselor Gary Thompson) informed us there was nothing that the commissioners could do for us. When I informed Mr. Thompson of the other agencies I had already reached out to and their responses, he informed me it was because the roads inside the gates of Tanglewood were private, which meant that the commissioners didn’t have any authority or jurisdiction to help us either. 

“Mr. Thompson went on to further advise me that the most assistance this Commission could offer was the recommendation that we hire a lawyer and file a lawsuit with the district court. So, per the advice of the county counselor, and with no other option, an injunction against the board of directors for Tanglewood Lake was filed in the District Court requesting access to and from the subdivision for all owners. 

“Unfortunately, before the injunction could be heard, Covid-19 struck and everything shut down, including the courts. Everyone was on lock down or quarantine, except some of the owners at Tanglewood Lake, who were still being locked in and or out of their homes. 

“On June 8, 2020, I once again came before this board of commissioners, this time begging and pleading for help for myself and my community members to be able to access their homes. The number of residents that were being restricted access to their homes had doubled by this time, and we were in a national pandemic.

“I have elderly and disabled parents as well as an elderly and mentally disabled uncle all that reside in Tanglewood and rely heavily on me. Without a gate access card, caring for them was near impossible. No one in my family had the ability to even get water into their homes because it had to be hauled in, through the gates. 

“Yet, despite my pleas, the pandemic, and the fact that the consequences of allowing Tanglewood to continue to restrict people from their homes posed a serious concern for public safety; I was again, informed that this commission could not help me. I was told that what we were dealing with a civil matter that could only be handled by a district court judge. I was again told I needed to hire a lawyer and file a lawsuit; despite the fact we already did and were still waiting a day in court, and still had no access to our homes. 

“By mid-2021, frustrations within the community were reaching an all-time high, 737 owners access cards had been deactivated, the prosecutor, Burton Harding refused to charge TLOA Board for breaking the law and criminally restraining people.”

County attorney: Criminal charges possible

At this point in her presentation, Riojas-Mackey then read an email between Burton Harding and Darcy Domoney, the attorney for TLOA, dated July 13, 2021. County Attorney Justin Meeks, then an assistant county attorney also received the email.

“Burton Harding wrote:

“To: office@domoneylaw.com; Justin Meeks <jmeeks@linncountyatty.com>; Sara Lambert <slambert@linncountyatty.com>

Subject:Tanglewood Lakes Issue

“Hi Darcy,

I'm writing to follow up with you regarding the ongoing issues Linn County is having regarding gate cards being shut off at Tanglewood Lake. I spoke to you earlier this year about the issue and told you that the Sheriff's Office told me that if they received another complaint that they were going to send me a probable cause affidavit and send it to my office to consider filing criminal charges against the board of directors of Tanglewood.

“I am contacting you today because that has finally happened and I have a PC affidavit that could form the basis of the charge of Criminal Restraint in violation of 21-5411(a). That section reads that criminal restraint is ‘knowingly and without legal authority restraining another person so as to interfere substantially with such person's liberty.’ I have many thoughts when applying this language to what is happening in Tanglewood. I can foresee your argument that shutting off the gate card does not "substantially" interfere with anyone's liberty and that argument isn't without merit, however I think there is definitely a class of people for whom not being able to drive up to their property, or drive out of the association would absolutely substantially interfere with their liberty: someone disabled, elderly, on oxygen etc. So whether or not this part of the statute applies may vary based on the complainant.

“However, the language I think is more problematic for the board is ‘without legal authority’. I can also foresee your argument here that these lot owners took the land subject to the covenants and restrictions on it and are bound to them like everyone else and among those is consenting to the authority of the board to shut off gate cards for non-payment. However, I don't think that consent or the covenant and restriction trumps the language of 58-4608(6)(A)&(C) which says that a property owners association can suspend any right or privilege for failure to pay, but may not (A) deny that unit owners access to his or her property,or (C) do anything that would endanger their health, safety or property. As to (A), again I think you would have a difficult time convincing a judge or jury that shutting off the gate card and denying access to hauling in their basic necessities is something other than denying them access to their property and as to (C) I don't think it would be difficult to demonstrate that not being able to leave the community on the roads through the gate doesn't put some of their health or safety at risk.

“Finally, I have reached out to other lake communities and gated communities in Kansas to ask about their policy on delinquent assessments and the answer I always received was that it was their opinion that it was illegal to shut off a gate card and not allow access to the lot owners property if they lived there.

“Essentially, the purpose of this email is to inform you that it is beginning to appear to me, the more closely I look into it, that your board could very well be criminally liable under the statute of Criminal Restraint. At this time I am electing not to file any charges but want to invite you to explain to me your reasoning as to why I should not, or in the alternative, what reasonable changes can be made that would cure this issue and obviate any possible charges. For example, of the several gates available, can there be just one that a person with delinquent assessments would have access to? Regardless of how out of the way or inconvenient, if they can access their property at all, then all of my issues go away. Is it possible to agree that gate cards can be shut off provided the member doesn't live at the lake?

“I am open to any other reasonable solution as well.

“Please let me know your thoughts. I would very much prefer that we are able to resolve this civilly, however as stated above, I have really begun to form the belief that the actions of your board there are outside the boundaries of what is permitted by law and I want to sort this out before someone does get seriously hurt as a result of the boards policies and actions. I look forward to hearing from you soon.”

Riojas-Mackey then continued:

“However, that same prosecuting attorney had no problem charging my husband, and having him arrested for manually opening and closing the gate (behind him) to go to work in the morning. Our community was now beginning to fight amongst each other, trying to block and keep each other from coming in or out of the gates, and the police were being called out daily. 

“Yet, still, there was nothing anyone could or would do. Twenty twenty-two wasn’t any better. We were now four years without a gate access card, my husband ending up being charged and arrested more than a dozen times, leaving to going to work, and if anyone else on the inside needed to leave, they would have to have someone meet them on the outside of the gates, park their car somewhere inside the gates, crawl through the gates, and get in the other persons vehicle. 

“If you went shopping you had to unload everything outside the gate and pack it through the gate to wherever you left your vehicle. Sadly, this did not work for hauling in water. By the time 2023 came, my husband, a vet, who had never been in trouble before, has been arrested for opening the gate to go to work about 25 times now, all of which required him to bond out, miss work, and all of which were eventually dismissed. 

“I hope you are beginning to understand where the frustration levels are at this point, and take into consideration that 737 gate cards were deactivated, we still didn’t have a court hearing on our injunction, and people had been locked out for five years.

“Removing the obstacle was the option we had available; we exhausted every other remedy. We were not wild or unruly, we did not remove anything that was not blocking the road, and there was no violence or weapons. We simply were a group of people wanting to go home. Which brings me to the next thing I want to discuss with you: the roads. 

“But before I do, I want you to know it is extremely disheartening and discouraging to seek help from all your elected government officials, be denied that help, and then be ridiculed and shamed because you were forced to find your own solution. I came to you, to my board of commissioners, and my sheriff, and to the prosecuting attorney, looking for help, trying to prevent a problem from becoming an even bigger problem, and was denied. 

“If you notice, I started in 2018. Yeah, five years later on 2023, those gates were coming down. And be it they put them back up, the courts already ruled, I will open them again. Just saying, they close those gates, I’m opening them. They are restricting my road and I will never go through this again. Ever.

“As for the roads, the first time I addressed the board of commissioners in 2019, I asked how the roads were private when there was a dedication to the contrary on the face of the plat map, and of course, Mr. Thompson told me that the county had an agreement with Tanglewood about the roads. I tell you this because that dedication along with all the acceptances and seals is one of the three pieces of evidence used to prove to Judge Purvis that the roads were in fact public. 

“The second piece of evidence we presented was an attorney general’s opinion regarding the opening and closing of roads and bridges and the requirements. In it, the attorney general notes, KSA 68-115, ‘Thus once a survey and plat of the roads in a subdivision are recorded pursuant to KSA 68-102 et seq, the action necessary for establishing roads, those roads become county roads.’ 

“He goes on to further state ‘the county’s acceptance of the roads occurs at the time the survey and plat are so recorded.' His conclusion was, ‘a county road is established upon recoding the survey and plat of the same.” Finally, the last thing we submitted was the State of Kansas vs. Richard Carl Deines, No. 82,433 case law. In this case the court of appeals does a great job of explaining the road laws, and who is responsible for them according to the law all the way back to the late 1800s. 

“Given the dedications, survey, and filing and acceptance of the final plat maps (in 1970) with the county recorder of deeds, in addition to the recent court ruling, I don’t see how you guys can deny Tanglewood’s roads being public.

“I am fully aware that managing Tanglewood’s roads would require the county to shoulder an increase in expenses, however, the residents of Tanglewood Lake have been paying taxes for the last 55 years with getting little to nothing in return. 

“I understand the law is very strict on using taxpayer money on private property, yet we have a Linn County transfer station inside our subdivision, and you all are now discussing making Tanglewood’s old office a Linn County fire station. 

“However, I do believe in the law too. How do you justify taxpayer dollars locked behind a gate in a private community? I can remember back in 2011 when Pleasanton donated a fire truck to Tanglewood and we had to give it back because we weren’t a city. Nothing has changed since then, Tanglewood is still not a city or a taxing entity, and nor are they a 501(c)(3) corporation. 

“Therefore, I respectfully request that the board of county commissioners carefully consider the information I have shared with you today, and I hope I was able to provide some clarity. I appreciate your time and attention to this critical issue. I am confident that by working together, we can create a stronger and more vibrant community for all residents of Linn County. I am happy to answer any questions you all may have or provide any further information. 

“And just one more thing, the county counselor was correct that was a ruling made in a criminal case, but all that takes is a lawsuit filed in the court to have it enforced. And just so you know, there is a group of citizens willing to have that done. 

“So, if you think that we won’t be in court over this, you’re mistaken because the time for fixing that came and went 10 years ago when you guys had us locked out of our homes. We should have never had to gotten where we got on May 18. That should have never had to have come here. And the fact that I reached out to every entity to prevent it and nobody wanted to take care of it. But I’m at fault. I’ll be at fault again if they close those gates. You’ve been warned. Thank you for your time.

Paletta, who was attending the meeting via video teleconferencing, responded that because Riojas-Mackey had raised a plethora of legal issues, on behalf of the county she would take the notes and script of her statement and advise the commission accordingly.

“I’m advising the commission to allow the counselor the opportunity to review this information before the commission makes any public response,” Paletta said.

Riojas-Mackey offered more information to be given to the counselor also. County Clerk Danielle Souza will get copies and send the information to Paletta.

Commissioner Alison Hamilton told Riojas-Mackey that they would be in contact with her.