For more than 30 years, Hinga Mbogo fixed the cars of Dallas residents at his shop on Ross Avenue. An immigrant from Kenya, Hinga came to this country and fell in love with Dallas. He opened his shop, Hinga’s Automotive, in 1986 and became one of the city’s most trusted and beloved mechanics.
The city of Dallas likes to talk about how welcoming it is for entrepreneurs, particularly small business owners. If Dallas were truly business-friendly, it would want to help a long-term, minority-owned businesses like Hinga’s thrive.
But instead of letting Hinga’s business be, the city wanted him off his own property. In 2005, Dallas changed the zoning along Ross Avenue to specifically exclude auto-related businesses. Using an oppressive and little-known process called “amortization,” the city gave businesses that did not conform to the new zoning rules a certain number of years to continue to operate. At the end of that time, the businesses had to either conform or close. And the city was not required to pay any of them a single dime for the disruption and harm that it caused.
Why did the city do this? It was part of an effort to drive the auto-related businesses from Ross Avenue because it wanted to transform the Ross Avenue area into a “gateway” to Dallas’s “arts district.” Having driven all of the other auto-related firms away (often to be replaced with trash-strewn vacant lots), Hinga stood alone. But the City wanted him gone so it will be easier to attract, as one city councilmember said, businesses “like Starbucks and Macaroni Grill.”
For Hinga, conforming to the new zoning rule forced him to close his mechanic shop and set up shop at a less-desirable location that he had to lease, as opposed to staying on the property he owns and which is fully paid off. He fought the city every step and has used every recourse available to him to allow him to keep his business on his land. Once those options where exhausted, he teamed with the Institute for Justice to fight this unconstitutional land grab. Unfortunately, even after ordering the case to be fully briefed and considering whether to take the case twice due to new developments in the law, the Texas Supreme Court ultimately denied review of the city’s actions and Hinga must sell his land. However, this is not the end, as both IJ and Hinga will take this fight to the Texas Legislature and urge it to ban this pernicious and cruel form of uncompensated taking of private property.
Managing Attorney of the Institute for Justice Washington Office
Dallas's Application for Temporary and Permanent Injunction
Hinga Mbogo's Answer, Motion to Dismiss and Affirmative Defense
Order Nunc Pro Tunc on the City's Plea to the Jurisdiction
Appellants Opening Brief
Appellees Response Brief
Reply Brief of Appellants
What is amortization?
Amortization is a powerful tool the government uses to remove properties that do not match the vision of city planners without having to pay any compensation to the property owner. Under this scheme, the government changes the zoning in the area in which a business sits and makes conducting that business at that location illegal (this is usually referred to as making the business a “nonconforming use”).
Simply showing up at a business and telling the owner it must shut down immediately would undoubtedly cause a public outcry and rightfully be seen as heavy-handed and abusive. So, instead, the government acts to get the same result, but does so in slow-motion. Under amortization, once it declares a business “nonconforming,” the government gives the business a certain time frame to ostensibly earn back, or “amortize,” its investment in the property. At the end of this period, the business owner must bring the property into compliance (even if it is not suited for the new zoning rules) or cease operation—and the government does not need to pay any compensation to the property owner.
Planning zealots believe that providing this period of time provides a property owner with compensation for any taking of the owner’s property. This is ridiculous—in a taking, the government is supposed to compensate a property owner, not have the property owner compensate themselves.
Nonetheless, cities across the country and in Texas have used amortization as slow-motion eminent domain without any compensation, often to force a transfer of the property to more attractive private owners. Unfortunately, in the middle of the last century, the courts, including Texas’s, largely found amortization laws to be constitutional, although a small number of courts have struck them down as takings without just compensation and a violation of due process.Compare City of University Place v. Benners, 485 S.W.2d 773 (Tex. 1972) (upholding a Texas municipality’s use of amortization) with Hoffman v. Kinealy, 389 S.W.2d 745, 752 (Mo. 1965) (striking down amortization in Missouri because “it would be a strange and novel doctrine indeed which would approve a municipality taking private property for public use without compensation if the property was not too valuable and the taking was not too soon …”). [/c]
The reasoning of the cases upholding amortization has since been undermined, especially in Texas. Amortization is, at its core, retroactive legislation. Using amortization, cities take legal, preexisting uses and apply new restrictions that make the uses illegal. Amortization disrupts settled business expectations and, often times, destroys businesses and livelihoods, all because a city planner has determined, after the fact, that the property owner who is already there does not fit into the new zoning scheme for the area. The Texas Supreme Court has recently revitalized the Texas Constitution’s prohibition on retroactive legislation. 1 Under the Texas Supreme Court’s interpretation of the state constitution, amortization should be unconstitutional because it unfairly changes the rules for property owners and imposes disabilities on them well after they changed their position based on a city’s previous law.
Moreover, five Justices of the U.S. Supreme Court have recognized that retroactive laws raise serious due process issues and must be closely examined by the courts. 2 If the courts apply this close examination to Dallas’s zoning laws, this would likely preclude the city’s use of amortization to disrupt Hinga’s long-established business.
How cities use amortization to gentrify neighborhoods
When he applied for another permit, the staff of the City Plan Commission recommended that the commission grant it and continue to allow Hinga to operate. But the Plan Commission rejected the recommendation of its own staff and voted to close his business down.
During a hearing before the Plan Commission, Commissioner Paul Ridley argued that Hinga’s business should be shut down in order to “enhance the physical appearance” and “urban character” of the area. And when the Dallas City Council considered Hinga’s appeal of the Plan Commission’s denial, City Councilmember Rickey Callahan said that driving auto-repair businesses from the neighborhood was necessary because otherwise it would be difficult for the area to attract businesses “like a Starbucks or a Macaroni Grill.”
This disdain for a long-time Dallas taxpayer is not surprising. Immigrant-and-minority-owned businesses are often the targets of planners who have a vision of a sterile, homogenous city-scape that looks just like every other gentrified city in America. Hinga is no different.
Time to end amortization in Texas and across the U.S.
In the United States—and especially in Texas, which bills itself as a haven for over-regulated businesses from other parts of the country—the government should not be destroying businesses just because a planner has a “vision” of a city that does not include small businesses that have been there for years. This is especially true when this “vision” has largely resulted in an area largely dominated by vacant lots.
Hinga is now working with the Institute for Justice, which has already spearheaded a massive effort to save his property. A Change.org petition supporting Hinga’s right to his own property earned more than 90,000 signatures. Both the City Council meeting and the Plan Commission meeting regarding whether to grant Hinga an extension were attended by dozens of Hinga’s customers, friends, and supporters. Nonetheless, the desire of the City to drive this entrepreneur off his property overcame this effort.
Dallas has sued Hinga to enforce its zoning code and, represented by IJ, Hinga has filed a countersuit arguing that the city’s actions are unconstitutional. But it never should have come to this—there is no good reason why Hinga should not be allowed to remain where he has been for decades. And, if the city wants to live up to its own self-proclaimed reputation as a good place to do business, it should stop using amortization against existing businesses in the future.
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