photo by: Mike Yoder

Queens Road is pictured on Nov. 29, 2018.

A Lawrence man who sued the City of Lawrence over the Queens Road taxing districts continues his legal efforts to stop the $5.3 million road project from proceeding as planned.

Last year, Queens Road homeowner Kurt Schaake filed a lawsuit against the city in Douglas County District Court claiming that the taxing districts the city set up to fund the project are arbitrary and capricious and therefore out of line with state law. A judge dismissed that lawsuit prior to trial for representation issues, but Schaake has now filed an appeal with the Kansas Court of Appeals.

In a statement recently filed with the court, Schaake, who lives in a formerly rural neighborhood and not in one of the new developments near Queens Road, states that the special assessment against his home for the improvements to the road and its intersection with Sixth Street totals $47,290. Schaake is asking whether the court made a mistake in dismissing his case, in ordering him to bear the cost of the action, and in denying his request to temporarily order a stop to the project until the case was resolved.

The two taxing districts the city set up — one for the street and the other for the intersection — to fund the Queens Road project have been a contentious issue with homeowners near the road in northwest Lawrence. All property owners in the districts will contribute toward the cost of the project in proportion to the square footage of their parcels.

The issues with representation began after Schaake’s attorney withdrew from the case and Schaake sought to represent himself. The lawsuit technically names James Kurt Schaake, trustee of the Donald Dean Schaake Revocable Trust, as the plaintiff, and Douglas County District Court Judge Amy Hanley determined that Schaake could not legally represent a trust as a nonlawyer. In November, Hanley issued an order dismissing the case for lack of prosecution.

In his statement to the Kansas Court of Appeals, filed Feb. 18, Schaake questions whether the district court was mistaken when it required him to obtain counsel. Schaake states that he was unable to obtain another attorney, saying that legal fees would likely exceed $100,000 and are cost prohibitive. Schaake argues that state law allows a trustee to represent a trust as long as there is no conflict of interest. He also states the dismissal prevents factual issues at controversy from being heard.

On Tuesday, the court issued an order to show cause in response to Schaake’s appeal. Kansas Court of Appeals Judge Kim Schroeder states in the order that based on the current filings, the court may not have jurisdiction to consider the appeal. Schroeder states the court has already ruled that corporations can only be represented in Kansas courts by a licensed attorney, but the court is unaware of any Kansas case law on pro se representation on behalf of a trust. Schroeder goes on to say, though, that other states have ruled that pro se litigants may not proceed on behalf of a trust.

Schroeder also addressed Schaake’s challenge regarding the district court’s denial of a temporary injunction to stop the project while the case proceeded. Schroeder said state law allows for immediate appeal of such a denial, and Schaake’s appeal was filed well outside of the allowable timeframe.

Schroeder orders Schaake and the City of Lawrence to provide a written response to the court by March 17 regarding whether the appeal should be dismissed. Regarding the injunction, he also directed both parties to explain whether the order had to be immediately appealed or whether the appeal could be filed later, after the final judgment in the case.

The city had been voluntarily putting the Queens Road reconstruction project on hold until the district court case was resolved. City Attorney Toni Wheeler said in an email to the Journal-World this week that the city has been in the process of acquiring necessary property interests for the project, including right-of-way, temporary construction easements, and utility and pedestrian easements, but that before proceeding further the city will analyze the court’s approach to the appeal.

Schaake’s lawsuit argued that the city’s taxing districts are out of line with state law because the city didn’t determine what special benefit accrued to properties within the districts; that the city improperly excluded properties; and that the properties within the districts were not benefited in equal relation to the financial burden imposed. The city denied those claims, arguing that the city provided reasons for why each area was included, including direct and indirect access to Queens Road and whether each area had previously been included in a district for another street in the area.

The Queens Road street project is estimated to cost about $4.83 million, of which the city will contribute about $640,000. There are about 400 properties in the Queens Road taxing district that will contribute toward the remaining $4.2 million, according to city documents. The Queens Road intersection project is estimated to cost about $450,000, all of which will be assessed to properties in the taxing district. There are about 515 properties in the intersection district, which includes the 400 from the street project district.

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