A Udall resident has sued Udall Zoning Administrator Jerry Hansen and the city of Udall for malicious prosecution and violating his civil rights.
The petition on behalf of Bob Williams was filed in Cowley County District Court Jan. 31. Hansen was reached by telephone but said “I can’t talk about it” and hung up. Williams is also seeking to be reimbursed his legal expenses and has requested a jury trial.
Williams alleges that Hansen wrote him July 2006 threatening to prosecute him for an alleged violation of a zoning ordinance that Williams claims was not in effect.
Bill Muret, attorney for the city of Udall, says the city has turned the case over to its insurance company, which has hired an attorney. The city’s stance on the issue is pretty clear:
“We did not violate any of his rights,” Muret said. “And we don’t owe him any money.”
THE DISPUTE
According to Muret, the incident started when Williams was cited for building a landing and steps for a trailer or mobile home in his backyard. Williams also attached utilities to the trailer. Udall requires a permit for the landing, steps and utilities, though the permits are free.
“They’re free mostly because we just want to make sure things are hooked up right and done right,” Muret said. “He had done some things that required a permit that he didn’t have.”
An attorney for Williams filed an appeal pointing out that the land use at issue predated the effective date of the zoning ordinance, which Williams also argues had not occurred at the time the complaint was issued.
Hansen wrote directly to Williams dismissing the complaint but stating the violations might be reissued at a later date. Williams’ attorney wrote back repeating his argument that the land use at issue would become a non-conforming use and would not be the basis for a complaint.
The city held a meeting in May 2007 and reappointed Hansen as zoning administrator. Williams states in his petition that he called various people to try and persuade the city to replace Hansen.
The day after the telephone calls, Williams received a complaint signed by Hansen alleging that on April 1, 2007 Williams was in violation of an ordinance that had adopted a set of zoning regulations applicable to the city.
The petition alleges that the complaint did not follow statutory form or identify the precise section of a specific ordinance Williams supposedly violated, nor did it charge all of the elements of any offense. The petition does not detail what zoning law Williams was accused of violating.
The complaint gave Williams 20 days to remedy any such violations.
“Hansen did not have probable cause to issue the complaint and did so with malice,” the petition states. “As zoning administrator, Hansen was the final policy maker of the city of Udall with respect to the issuance of complaints from the city’s zoning department and was the final authority within the city of Udall concerning whether and on what grounds to threaten to file and to file charges of a zoning violation.”
Williams’ attorney faxed Hansen May 18, 2007 explaining why the complaint appeared there was no violation. On or about May 29, 2007 Williams received a summons, at Hansen’s request, requiring him to appear in Udall Municipal Court.
Williams did not receive a notice to appear or warrant signed by a judge as he believes is required by Kansas law.
“The summons purported to require Williams to answer supposed violations of the Udall city code that were not identified and charged in the complaint,” the petition states. “Hansen lacked probable cause to pursue the complaint and have the summons issued and did so with malice.”
Then Williams’ attorney faxed a letter to Udall city attorney William Muret pointing out the “maliciousness” of the complaint and alerting the city that Williams felt there was no basis for the prosecution of the complaint.
A second letter was faxed to the city a week later explaining the insufficiency of the charging instruments and demanding the charge be dismissed before the time Williams was to appear in court.
The charges were not dismissed. The case was on the municipal court docket June 12, 2007 and Judge Jack Peggs requested additional information on Williams’ motion to dismiss.
Two days later, Williams’ attorney wrote to the city again saying no additional information was possible since the prosecution lacked cause and again requesting the complaint be dismissed.
Williams’ received no response and filed another motion on June 29, 2007. The city did not respond or attempt to inform Williams the city was not going to continue the prosecution, according to the petition.
Williams and his attorney appeared in Udall Municipal court Aug. 14, 2007. The city announced the charges were being dismissed.
Attorney fees and other expenses cost Williams $7,019.73. He demanded payment of his damages from the city. The city did not respond.
In the second count, Williams seeks judgment against Hansen both individually and in his official capacity with the city for the $7,000 legal tab.
EDITOR’S NOTE: Shane Farley contributed to this report.
