Zoning and the Rule of Whim

In 2005, Dallas used a little-known process called amortization to rezone land along Ross Avenue. Suddenly, many businesses that had operated in the same location for decades became illegal and they were given a few years to come into compliance. One of those businesses was Hinga Mbogo’s auto repair shop, which the Kenyan immigrant had opened in 1986. Mbogo applied for, and was granted, several extensions from the city to remain on his property. But the city has remained firm in making Mbogo move, despite his own desires.

The city has defended displacing business owners. Dallas City Councilman Rickey Callahan, a real estate developer, explained why he voted to evict Mbogo from his own property:

[S]ometimes when you have a proliferation of these auto-related businesses, you’re not going to get national-accredited tenants come in like Starbucks, Macaroni Grill or nice sit-down restaurants and so forth. They’re not going to spend a million dollars or two million dollars to be next door.

In other words, Dallas city officials want to encourage national chains while discouraging local businesses. And they will do virtually anything they can to accomplish that goal, including rezoning a parcel of land.

For nearly twenty years, Mbogo used his land in compliance with the city’s zoning laws. Then, when city officials decided that “too many” auto-related businesses were located in one area, they retroactively rezoned the area so that it would conform to their idea of what is proper. Their values and vision were imposed on business owners like Mbogo. Their whims overruled Mbogo’s rights.

The very nature of zoning is the rule of whim. Some, whether city officials or noisy civil groups, believe that their desires have political primacy, that if their vision is allegedly noble enough, they are justified in forcing that vision on others. They reject reason and persuasion as the means to convince others to join their cause. Instead, they seek to wield the club of government force. If they can’t convince you to move your auto repair shop, then they will pass a law that compels you to do so.

In 2016, an editorial writer for the Dallas Morning News opined on the case when Mbogo asked for another extension.

More than a decade after that decision was made, and with so many other small business owners already in compliance, it’s not fair to let one guy stay simply on the grounds that he managed to get delay after delay when others didn’t.

That brings me to the Woodard family, who operated Woodard Paint & Body Shop in Dallas since 1920. They didn’t want to move off Ross Avenue either. And in 2008, they asked the City Council for a special use permit that would allow them to stay open through 2012.

Like the narrative around Mbogo — who’s been in business on Ross since 1986 — the Woodard story is sad. It’s another reminder of the harsh fallout from the zoning decision.

But how do you say no to the Woodards and yes to Mbogo? What signal does the decision send to all the other businesses that already left?

In other words, since the city screwed other business owners, it wouldn’t be fair to not screw Mbogo. If the city lets one individual successfully fight city hall, others might get the idea that they can do the same. And if you believe in the supremecay of the nation, the State, the community, or any variation on the theme, this isn’t a good signal to send.

With the help of the Institute for Justice, Mbogo’s case is set to be heard by the Texas Supreme Court. Let us hope the the Court sends a strong signal to Dallas and other Texas cities: Your whims are not a license to destroy other individual’s lives.