County taxpayers paid legal tab for attorney now asking to sue DeKalb

Key dates in Druid Hills’ subdivision battle

February 2004: Robert Buckler and a business partner buy three lots on Clifton Road near Emory University. After tearing down a home at the properties, Buckler proposes to subdivide the land into smaller lots for new houses.

2004 to 2010: DeKalb County’s Historic Preservation Board repeatedly denies carving up the Buckler property, including proposals for as few as four and as many as 11 lots, saying a subdivision will erode the character of Druid Hills.

April 2011: DeKalb County’s Planning Commission approves the subdivision after Buckler produces a letter from the state Department of Natural Resources commissioner, whose office includes the Historic Preservation Division, that says property “does not seem to me to rise” to the level of a historic district and does not need approval from the DeKalb historic board. The Druid Hills Civic Association appeals the planning board vote, pointing to a local law requiring Historic Preservation Commission approval.

July 2012: Buckler and his partner sue DeKalb CEO Burrell Ellis, arguing an interim planning director Ellis appointed without County Commission approval has no authority to withhold a land disturbance permit so that work can begin on the property.

November 2012: The Board of County Commissioners votes 5-2 to overrule the Historic Preservation Commission’s denial for Buckler to install a fence and retention pond on the property. Commissioners Jeff Rader and Kathie Gannon, who represent Druid Hills, dissent.

December 2012: DeKalb County issues Buckler a land disturbance permit, allowing him to begin grading and excavating on the site. Two days later, he drops his lawsuit against the CEO and interim planning director.

January 2013: DeKalb initiates a temporary stop-work order to review its decision to grant Buckler his permits. After the county lifts its order, a DeKalb Superior Court judge issues a temporary restraining order, to stop the work until a court hearing can be held. Rader requests a legal opinion about the county’s actions, which is turned over to an outside attorney.

February 2013: The outside attorney who researched the county’s actions in the case, Frank Jenkins, asks to take over as attorney for the Druid Hills Civic Association, which is suing the county over the project.

DeKalb County taxpayers recently paid an attorney nearly $5,000 to provide legal opinions that he now wants to use in a lawsuit against the county.

According to documents obtained by The Atlanta Journal-Constitution, attorney Frank Jenkins was paid $4,770 in taxpayer money in January. His job: to research for County Commissioner Jeff Rader whether the county was right to allow Robert Buckler to carve three properties into a seven-lot subdivision in a controversial project near Emory University in the historic Druid Hills neighborhood.

Jenkins determined that Buckler needed additional approvals before he could start construction. His research ended up in a motion that the Druid Hills Civic Association filed days later. By February, Jenkins asked DeKalb Superior Court if he could represent the group which has been locked in a legal battle with DeKalb and Buckler for nearly a decade.

“It’s insane,” said Buckler, a partner with the Troutman Sanders law firm. “You can’t be doing work for the county and, at the same time, issue advice to the opponent in the case you are advising the county on.”

Superior Court Judge Asha Jackson will decide if Jenkins has a conflict in the case as part of a hearing slated for Monday. Jenkins, meanwhile, has defended himself in a letter he submitted to the Georgia Bar Association.

“I am confident there is no conflict of interest, or I would not be doing this,” said Jenkins, who specializes in land-use and insurance law from his Cartersville office.

The back-and-forth is the latest twist in the nearly decade-long battle over 4.6 acres that exemplify what makes Druid Hills, which is listed on the National Register of Historic Places, one of metro Atlanta’s special places.

The curving streets and leafy lots in the neighborhood, which straddles DeKalb County and Atlanta, were partially laid out by Frederick Law Olmsted, the landscape architect who designed New York City’s Central Park.

Houses range from large manors west of the Druid Hills Golf Club to the smaller cottages closer to Emory to the east.

Buckler’s three lots are closer to the university and slightly larger than the average lots in that area. Just one large house stood there when Buckler bought it in 2004. He tore down the derelict home and proposed cutting up the land into smaller properties for new houses.

Residents – who had battled other developers over building condos and adding a second-story to the one-level Emory Village retail area – immediately fought back. The proposal has been in one court or another ever since.

The latest court battle revolves around DeKalb’s decision late last year to grant a permit for Buckler to begin grading and excavating on the site. Also at issue is the lingering question of whether the project needs approval from the Historic Preservation Commission and not just the Planning Commission, whose approval last year paved the way for the permit.

Rader requested the county law department research both issues. But because county attorneys might be called to defend granting the permit, it hired Jenkins as the outside counsel on the issue.

There is nothing unusual about governments seeking outside attorneys in such cases, said Jim Grubiak, general counsel for the Association County Commissioners of Georgia.

Jenkins wrote the first opinion, that the county should yank the permit allowing Buckler to start work, on Jan. 15, records show. The second opinion, dated Jan. 22, supports the civic association’s claims that Buckler needs approval from the Historic Preservation Committee.

Rader said he shared the opinions first with the county, which opted not to act on them. On invoices submitted by Jenkins, he lists four calls to the civic association’s attorney, including calls before he filed his opinion.

Rader, who has long opposed Buckler’s proposal, said he allowed that exchange of information as Jenkins’ client. In DeKalb’s CEO-form of government, commissioners are explicitly allowed to challenge actions of the administration.

“I am entitled to the advice of the law department, and if they can’t give me advice, they have to provide counsel,” Rader said. “I am entitled to appeal these administrative decisions.”

A spokeswoman for the state bar said the organization generally allows actions pending in court to play out, noting it also only investigates when a formal grievance is filed. However, the bar does not confirm whether a grievance exists until an investigation ends by recommending discipline.

That leaves the issue up to Jackson, who will hear both sides’ take on a litany of issues during Monday’s hearing.

And even if the Jackson rules on the central question of the need for the historic preservation board’s approval, the battle is far from over. Both sides have pledged to appeal if Jackson rules against them.

State lawmakers, meanwhile, tabled a bill that would explicitly allow Buckler and other property owners to divide or develop vacant lands in historic districts statewide.

House Bill 474 died as a standalone proposal but could be attached to other legislation before the session ends later this spring.

“We are just trying to preserve our history,” said Leslie Joseph, a former fund-raiser who recently joined in the association’s fight against the project. “It’s a good fight.”