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board of adjustment

Board of Adjustment members file grievance against former assistant city attorney

Tuesday, June 4, 2019 by Jessi Devenyns

On Monday, Board of Adjustment Chair William Burkhardt and former Board Member Bryan King, with the support of Board Member Don Leighton-Burwell, filed a complaint with the State Bar of Texas against former Assistant City Attorney Brent Lloyd. The complaint alleges that Lloyd was in violation of the Texas Disciplinary Rules of Professional Conduct due to simultaneously representing the city of Austin and the Board of Adjustment on land use decisions and for misrepresenting the interests of the board to third parties.

According to the grievance, “Attorney Lloyd knowingly made false statements to his client the Board of Adjustment, had conflict of interests in representing his client the Board of Adjustment, and sought to undermine his client the Board of Adjustment’s legal objectives.”

In a statement, King said, “It also appears Mr. Lloyd made false statements to the BOA. When I asked him at a public hearing if he had discussed with the Drenner Group (an Austin real estate law firm) the Board of Adjustment’s new proposed rules, Mr. Lloyd stated he had not. However, evidence indicates that Mr. Lloyd earlier had discussed secretly with the Drenner Group opposing the BOA’s proposed new rules. His statements appear false.”

Evidence in the complaint shows a transcribed audio recording of a meeting between Lloyd and Greta Goldsby, an attorney for the Drenner Group. Lloyd is quoted advising Goldsby to write to City Council to oppose proposed rule changes at the Board. “I am here to tell you if this happens you may find all of the sudden a whole slew of stop work orders.”

Following an appeal case for the LifeAustin Amphitheatre that resulted in eight years of legal battles, the Board of Adjustment set to work revising its rules to prevent the appeal process from becoming a hotbed for legal challenges.

In public meetings of the board, Lloyd counseled against changing the rules, saying the language that the commissioners were suggesting was not consistent with Austin ordinances. Nevertheless, the rules were changed in February and are still in place.

In a statement Lloyd sent to the Austin Monitor, he said, “I advised the Board publicly that they had authority to reverse decisions by City staff approving development projects under appeal. On occasion, I also advised the Board on what I believed were limits on their legal authority, which was consistent with my duty as an adviser.”

When Burkhardt became aware of the taped discussion, he said he felt obliged to file the grievance. “The fact that Brent acted against his client, the Board, is the issue that really did push this to a head and precipitate a filing,” he told the Monitor. “An attorney, in my understanding, has a requirement not to act against his client, and … by virtue of the material on the tape, Brent was acting against his client, the Board of Adjustment.”

Beyond the allegation of undermining the interests of the board, the complaint alleges that Lloyd declined to step down as the board’s counsel despite the perception of a conflict of interest in appeal cases.

Lloyd, who is now serving as a development officer in the city’s Development Services Department, previously advised the Planning and Zoning Department on its administrative land use interpretations and also counseled the Development Services Department during appeals of staff decisions before the Board of Adjustment. At the same time, he provided legal advice on those decisions to the Board of Adjustment in ex parte communications.

The Board of Adjustment is intended to be an impartial, quasi-judicial tribunal for citizens to appeal staff decisions on land use.

This issue of a conflict of interest has arisen on several occasions at the Board of Adjustment. In 2017, the Board of Adjustment began holding public hearings about hiring outside counsel for advice. In June 2018, the BoA passed a resolution with an 8-1-1 vote asking the Austin City Council for separate outside counsel on administrative appeals. Outside counsel was never provided and Lloyd continued to advise the board until he moved departments in February of this year.

The city of Austin recognizes that, for a citizen making an appeal at the Board of Adjustment, having legal counsel representing both the interests of the city and the interests of the board could be perceived as a conflict of interest, but “the city does not believe our current practices advising the Board of Adjustment constitute a conflict of interest,” David Green, the city’s media relations manager, told the Monitor. However, “In those instances where the Board of Adjustment members feel separate representation is necessary, the city attorney’s office has advised the board that it will make the appropriate accommodations.”

Lloyd maintains that there was no inherent conflict in fulfilling both roles. He told the Monitor, “At all times during the 10 years I served as an attorney for the Board of Adjustment, I provided zealous representation on cases before the board and had no conflicts of interest … At all times, I sought to provide good counsel to the board and to respect their unique role in the city’s zoning process.”

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Photo of Bryan King and William Burkhardt by Jo Clifton.

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