Driven to distraction

On a quiet stretch of Ross Avenue, in the shadow of the downtown Dallas skyline, a familiar pattern emerges: vacant lot, vacant lot, cluster of construction equipment; vacant lot, vacant lot, gleaming luxury apartment building. Call it urban renewal, gentrification, or what the Dallas City Council visualizes—gateway to a flourishing Arts District—but for one man, the word is unjust.

Hinga Mbogo’s perpetually smiling eyes, so dark they seem to glint navy, defy his frustration over city officials’ efforts to rezone the area retroactively, forcing his business to relocate. After immigrating from Kenya three decades ago, he opened an automotive repair shop in Dallas: “I had always wanted to own my own business, and here I had the opportunity.”

At issue is the council’s unconventional use of a measure called amortization, in which the city changes the zoning for a particular area and kicks aside some businesses. In the Ross Avenue case, residents of the adjacent Bryan Place neighborhood—mostly medical, business, and arts professionals—aimed to attract a different type of retailer and petitioned the city to clean up what had been one of the most crime-ridden areas of the city. In response, the City Council declared via amortization that, beginning in 2005, only certain types of businesses—mainly hotels, restaurants, and apartments—would have a place in the “Bryan Place Planned Development District.”

Conspicuously missing from the list of sanctioned businesses: auto repair shops. As Councilman Rickey Callahan, a real estate developer by trade, said at one public hearing this year, “Unfortunately, sometimes when you have a proliferation of these auto-related businesses, you’re not going to get national credit tenants coming in like Starbucks, Macaroni Grill, nice sit-down restaurants, and so forth.”

“Essentially, Mbogo doesn’t want the rules to apply to him in the same way they apply to everyone else.” —Philip Kingston

One by one over the course of a decade, the now-verboten small businesses chose not to battle City Hall, but Mbogo decided he’d rather fight than switch and gained pro-bono legal support from the Institute for Justice (IJ), a Virginia-based nonprofit civil liberties law firm. IJ attorney Bill Maurer notes that some courts have upheld the push-outs, and “this is one of the first challenges to it as a retroactive law. … You can’t go and change the rules after the game has started and say this is fair.”

Mbogo gained two extensions—in 2010 and 2013—to allow him to wind down his business, sell his land, and close. Addressing the City Council at a 2013 hearing, Mbogo asked for more time, saying real estate agents and developers, aware of his predicament with the city, have offered lowball figures for the property. The city granted him two additional years on Mbogo’s word that he would wrap up his business without asking for another extension. Still, in 2015, after his specific use permit expired, Mbogo requested another extension—which the city denied in April 2016.

Mbogo now is subject to fines of up to $1,000 a day for carrying on his business without a certificate of occupancy. Complicating the matter further, Mbogo is suing a former business partner—whom he says has not been involved in the business since the mid-1990s—to remove the business partner’s name from the property title. Even if Mbogo received a fair offer and wanted to sell, the proceeds would likely go to escrow until the litigation was finalized, leaving him in limbo for setting up shop elsewhere.

“This is slow-motion, uncompensated eminent domain. It’s like the difference between being shot and slowly poisoned to death; in the end the guy is still dead. That doesn’t make it ‘not murder.’” —Bill Maurer

The Texas Constitution seems to explicitly forbid this kind of retroactive lawmaking: Article 1, Section 16, says, “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” According to Maurer, that language reflects a long-standing position in American and English law: Regulations affecting existing agreements are inherently unfair and “should be viewed with a great deal of suspicion, if not outright banned.”

But Philip Kingston, councilman for Dallas District 14, in which Hinga’s Automotive Company resides, says: “Cities are allowed to change zoning at any time. … Some people may say, ‘Amortization is too harsh of a tactic to use,’ or, ‘You should allow the one holdout to remain, now that the others are gone.’ Essentially, Mbogo doesn’t want the rules to apply to him in the same way they apply to everyone else, particularly after the neighbors feel like they went out of their way to allow him an extension.”

Kingston says land values in the area are at an all-time high, so Mbogo will make a profit on his investment and is free to open his business in another location. But Chris Wiesinger, a Texas commercial real estate agent, says, “If he were forced to cash out in a high market, it would be hard to parlay that money into another good deal in [the Dallas area], where domestic and foreign money continue to drive commercial real estate values high.”

Mbogo says he’s 63 years old and not ready to retire, but he doesn’t have the energy and ambition to start over from scratch. He has leased a second property 2 miles south as a safety net, with one employee doing simple repair jobs, but he’s unwilling to lose his “life’s work” on Ross Avenue: “Here, I don’t have to pay rent. It’s my property that I’ve had for so many years. I feel disadvantaged that I should move out of here to go anywhere where I have to pay rent, fix it up … move all the equipment that I have, and most likely lose 70 percent of my customers.”

With four employees depending on his business, Mbogo feels a responsibility to keep the doors open. It’s stressful, he says, but his faith sustains him: “I believe that God has a purpose for us here.” Mbogo and his wife, Grace, worship at Highland Park Presbyterian Church’s All Nations service, and he’s drawn plenty of community support. An online petition in favor of Mbogo being allowed to stay on Ross Avenue has garnered nearly 100,000 signatures. He receives overwhelmingly positive reviews from customers.

Councilwoman Jennifer Gates was one of five council members who sided with Mbogo and against eight of her colleagues when officials in April denied Mbogo’s application to continue operating on Ross Avenue. At the hearing she noted that an auto repair shop across the street from Mbogo had been granted a 10-year extension in 2010 in contrast to Mbogo’s two-year extension in 2013. Those owners eventually chose to sell before the permit’s expiration.

Gates said amortization “essentially violates property rights.” She also noted that among the individuals within the notification zone for the planned development district—that is, over 200 property owners surrounding Hinga’s Automotive—none objected to Mbogo’s most recent request for an extension of a specific use permit. She also pointed out that in Midpark and Oak Lawn, similar development districts within the city, the City Council grandfathered in existing uses, rezoning only for incoming businesses.

The warring parties are hard-pressed to identify mutually agreeable alternatives. Mbogo insists he doesn’t want to be bought out. The City Council is loath to allow Mbogo to skirt the rules and remain on Ross Avenue when other businesses have already complied. Speaking on behalf of the Bryan Place Neighborhood Association, Board President Linda Collins said, “He has had 11 years to resolve his zoning problems. Various promises he made to the city have been broken.” She said the BPNA would accept “no alternative” to Mbogo closing his Ross Avenue location.

On Aug. 19, Mbogo’s attorneys tried unsuccessfully to convince a judge to dismiss the city’s claims against the business. That would have effectively eliminated the up-to-$1,000 daily fines. Other arguments—including the legality of Dallas’ amortization process that rendered Hinga’s Automotive nonconforming in its current location—remain to be litigated. As it stands, IJ attorney Maurer hopes for an opportunity to reverse “decades of bad law regarding the use of retroactive zoning.”

“This is slow-motion, uncompensated eminent domain,” he said, likening rezoning via amortization to the unpopular practice of government-enforced land buyouts for public use. “It’s like the difference between being shot and slowly poisoned to death; in the end the guy is still dead. That doesn’t make it ‘not murder.’”