Ori Feibush and Kenyatta Johnson Testify in Court Fight Over Point Breeze Properties
Trial hearings began Tuesday morning in a federal civil lawsuit filed by Point Breeze developer Ori Feibush, who claims that 2nd District Councilman Kenyatta Johnson refused to authorize the sale of two vacant lots on Cleveland Street as an act of political retaliation because Feibush was challenging him in a City Council race last year.
The case began as a suit filed by Feibush against Johnson, but it has effectively become a case between Feibush and the practice of Councilmanic Prerogative, the unwritten legislative tradition that gives Council members de facto control over land development in their districts. The court previously dismissed several complaints against Johnson specifically because he enjoys “legislative immunity,” which prevents lawmakers from being sued over law-making activity.
An eight-member jury heard testimony from four witnesses Tuesday. The trial is expected to conclude Wednesday, and the jury will likely need to consider a few key questions:
- Did Johnson or his office refuse to authorize the sale of two properties to Feibush because of either personal animosity toward the developer or political revenge?
- Would a reasonable person be deterred from running for office — an act of political speech protected by the First Amendment — because he or she was denied the purchase of two vacant lots?
In his opening statement, Feibush’s attorney, Wally Zimolong, described the acrimonious history between his client and Johnson. Feibush has been publicly critical of Johnson since almost the beginning of his tenure, and most pointedly in a May 2013 Philly Mag profile, in which he was quoted calling Johnson a “poverty pimp” and saying that he used his power for the forces of “evil.” Though Feibush more or less declared he would challenge Johnson in the Council race in that article, Zimolong said that Johnson tolerated the criticisms until December of that year, when Feibush held his first fundraiser and created a PAC.
The timeline is important. Earlier in December, Johnson had introduced a resolution approving the sale of six city-owned lots to Feibush. Johnson’s attorneys say that that proves he wasn’t acting out of political retribution when he later declined to approve the sale of the Cleveland Street lots, since Feibush had made his intentions public in May and officially filed as a candidate in November. But Zimolong says the creation of Feibush’s PAC was the pivotal moment.
In his opening statement for Johnson and the City, attorney Michael Miller laid out the two questions for the jury: Did Johnson act out of political retribution, and would the act cause a reasonable person to abandon a political campaign? Feibush wins if the jury says “Yes,” and Miller said the answer to both questions is “No.”
I’m going to dive into the weeds a bit now, because that’s where this case lives. If you’re only interested in the verdict — and potential compensatory damages — check back later today.
Brian Abernathy Testifies
Brian Abernathy was the executive director of the Philadelphia Redevelopment Authority (PRA) during the period in question. The PRA is one agency that manages the sale of city-owned vacant lots, among other things. Those sales follow one of three processes. There are competitive sales, in which multiple interested parties bid for the lots. There are direct sales, in which the lot is sold to one specific buyer without a competitive bid. And there are Requests for Proposals (RFPs), in which the Authority identifies a property or set of properties and asks interested developers to submit proposals for them.
In April 2014, Feibush was notified by the PRA that he was the winning bidder for the two Cleveland Street properties. Usually, after a competitive bid process is completed, the sale is considered by the Vacant Property Review Committee. After the Committee approves the sale — it usually does this with minimal discussion — it drafts a resolution and gives it to the Councilmember who represents the district in question.
Abernathy, who is now the first deputy managing director for the City, testified on Tuesday that Councilmembers are routinely consulted at the beginning of that process, before the bidding is opened, and at the end. The sale can’t be completed unless City Council approves a resolution authorizing it. That’s in the City Charter. Because of Councilmanic Prerogative, which isn’t in the Charter, that means that a sale won’t be completed if the District Councilmember doesn’t want to introduce the resolution.
Abernathy said that Johnson was consulted before the Cleveland Street properties were opened for bidding, but that after the properties went through the rest of the process and Feibush was selected as the buyer, Johnson declined to introduce the resolution. In Abernathy’s view, Johnson changed his mind about selling the properties because of growing concerns about market-rate development in Point Breeze. That’s Johnson’s claim, too: He decided the properties should be set aside for affordable housing in the neighborhood, and his refusal to introduce the authorizing resolution had nothing to do with Feibush.
Zimolong briefly called Johnson’s legislative director, Steve Cobb, to testify. Cobb handles day-to-day development issues for the 2nd District. Cobb affirmed that he’d had talks with Abernathy in which he described his personal dislike for Feibush, who he said was greedy and politically motivated. He said his opinion of Feibush didn’t change when he decided to challenge Johnson in Council.
When Johnson took the stand, he said he was familiar with Councilmanic Prerogative, and agreed with Zimolong that it shouldn’t be used as a tool for political revenge. He said he’d considered Feibush a candidate for the 2nd District Council seat ever since the May 2013 Philly Mag article was published.
Johnson acknowledged that he had never come out in full support of any of Feibush’s projects, but said that he had sent several letters of non-opposition to the zoning board. (Believe it or not, that is in fact the common phraseology among Council members and community groups weighing in on zoning matters.)
Between the time that the Cleveland Street properties had gone to bid and the day he received the resolution authorizing their sale, Johnson said the Point Breeze gentrification controversy had become all-consuming. He had decided that he was only going to support vacant-land sales for affordable housing development. Because Feibush didn’t plan on building affordable housing there, he decided not to introduce the resolution, he said. And because of Councilmanic Prerogative, neither did the other 16 members of City Council.
Johnson also acknowledged that the resolution was the only one he could recall refusing to introduce. Zimolong read a long list of other properties that Johnson had approved for sale after declining to approve the Cleveland Street properties, and Johnson said he couldn’t recall exactly how each property was supposed to have been developed. Johnson said he had just approved the sale of six other properties to Feibush, and he never thought he would end up in court over two properties.
When Feibush testified, he said that since creating a PAC to fundraise for his campaign against Johnson in December of 2013, he has been “frozen out” of the land-sale process in the 2nd District. All land sales in the district since that time have been direct rather than competitive, he said, so he hasn’t even had a chance to bid.
After being notified by the PRA that he’d won the bid for the Cleveland Street properties, Feibush says he bought other lots on the block through private sales and invested money in lawyers and architects to get the development started. He said he’d expected to make $132,000 in profit on each lot that Johnson declined to allow for sale after developing single-family homes there.
On cross-examination, Feibush acknowledged that Johnson had never supported any of his projects outright — either before or after he decided to run against him. But he said his “life got turned upside down” after December of 2013.
The trial continues — and is expected to conclude — today.
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