     Case: 17-20373      Document: 00514481630         Page: 1    Date Filed: 05/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                  FILED
                                      No. 17-20373                              May 22, 2018
                                                                               Lyle W. Cayce
                                                                                    Clerk
RESIDENTS AGAINST FLOODING; ANITA GIEZENTANNER; VIRGINIA
GREGORY; LOIS MYERS,

                                                 Plaintiffs - Appellants
v.

REINVESTMENT ZONE NUMBER SEVENTEEN, CITY OF HOUSTON,
TEXAS; MEMORIAL CITY REDEVELOPMENT AUTHORITY, also known
as TIRZ 17 Redevelopment Authority; CITY OF HOUSTON, TEXAS,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-1458


Before KING, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants, a nonprofit called Residents Against Flooding and
three individuals, sued Defendants–Appellees Reinvestment Zone Number
Seventeen, Memorial City Redevelopment Authority, and the City of Houston
for the implementation of some, and postponement of other, projects that
allegedly caused flooding of plaintiffs’ properties, seeking relief pursuant to


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-20373
42 U.S.C. § 1983 and the Texas Constitution. Defendants filed motions to
dismiss, which the district court granted. We AFFIRM.
                                       I.
      On July 21, 1999, the City Council of Houston adopted Ordinance 1999-
759, which approved the creation of Reinvestment Zone Number Seventeen
(“the Zone”) pursuant to Chapter 311 of the Texas Tax Code. The Zone is a
contiguous geographic area that comprises what is generally referred to as the
Memorial City Area. In the ordinance, the City Council found that the Zone
“substantially impairs and arrests the sound growth of the City, retards the
provision of housing accommodations, constitutes an economic and social
liability and is a menace to the public health, safety, morals, or welfare in its
present condition and use.” The ordinance also stated that “improvements” in
this area “will significantly enhance the value of all the taxable real property
in the proposed zone” and “be of general benefit to the City.” The Zone is
governed by a seven-member board of directors (“the Board”), which makes
“recommendations to the City Council concerning the administration of the
Zone.”
      Subsequent to the passage of the ordinance, the Board prepared and
adopted a Project Plan and Reinvestment Zone Financing Plan (collectively,
“the Plan”) for the Zone, which was then submitted to the City Council for
approval. The City Council approved it in Ordinance 1999-852 on August 11,
1999. It has since approved two amendments to the Plan. See Houston, Tex.,
Ordinance 2011-728 (Aug. 17, 2011); Houston, Tex., Ordinance 2014-1130
(Dec. 10, 2014). The Plan outlined potential improvements in the Zone,
including road and street projects, as well as sewer and drainage projects. On
August 14, 2002, the City Council approved the creation of the Memorial City
Development Authority (“the Authority”) in Ordinance 2002-26 pursuant to
Subchapter D of Chapter 431 of the Texas Transportation Code. The Authority
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is a local government corporation whose purpose is to aid in the
implementation of the Plan and in the “development of residential, commercial
and public properties in the Memorial City Area.”
      Residents Against Flooding (“RAF”) is a nonprofit association whose
mission is to advocate for flood relief. Its members reside and own property in
and around the Memorial City Area. RAF, along with five individuals who live
in neighborhoods adjacent to the Zone, sued the City of Houston, the Zone, and
the Authority in May 2016 pursuant to 42 U.S.C. § 1983 and the Texas
Constitution and amended their complaint in October 2016. The plaintiffs
alleged that infrastructure and drainage projects in the Zone were conveying
stormwater out of the Zone’s commercial areas and into residential
neighborhoods, causing these neighborhoods to flood during times of heavy
rainfall in 2009, 2015, and 2016. They also alleged that projects whose purpose
was to protect these neighborhoods, such as detention basins, were postponed.
They claimed that these government actions violated substantive due process
under the Fourteenth Amendment of the U.S. Constitution and substantive
due course of law under Article I, § 19 of the Texas Constitution. They further
claimed that the resulting flooding constituted an unreasonable seizure under
the Fourth Amendment of the U.S. Constitution.
      The plaintiffs sought a declaration that the defendants had violated their
constitutional rights. They also sought an injunction of the defendants’
unconstitutional actions and an order to remedy the defendants’ inactions. The
defendants filed motions to dismiss or, alternatively, for a more definite
statement. The district court granted the motions to dismiss. RAF and three of
the five original individually named plaintiffs appealed.
                                      II.
      We review de novo a dismissal for failure to state a claim under
Rule 12(b)(6). Snow Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 520 (5th
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Cir. 2016). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at
555).
                                        A.
        We first address the plaintiffs’ substantive due process and substantive
due course of law allegations and conclude that they have failed to state such
claims. The plaintiffs alleged that the defendants’ actions caused flooding of
plaintiffs’ homes, depriving them of their constitutionally protected right to use
their homes. A due process violation under the Fourteenth Amendment of the
U.S. Constitution has two elements: (1) the government’s conduct implicates a
constitutionally protected right and (2) this conduct is not rationally related to
a legitimate governmental interest. See, e.g., Simi Inv. Co. v. Harris County,
236 F.3d 240, 249–51 (5th Cir. 2000). We have previously acknowledged that
the standard governing a Texas due course of law claim is the same as that
governing a Fourteenth Amendment due process claim. See, e.g., Gates v. Tex.
Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 438 (5th Cir. 2008);
Arrington v. County of Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992).
                                        i.
        In this case, the plaintiffs have not adequately pleaded that government
conduct implicated a constitutionally protected right. The infrastructure and
drainage projects in the Zone did not involve the plaintiffs’ properties.
Moreover, their claimed right to use their homes is too broad and unsupported
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by caselaw. A protected property right must be “established through some
independent source such as state law.” Simi Inv. Co., 236 F.3d at 250 (quoting
Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1046 (5th Cir. 1998)). The
plaintiffs cite cases in which the government’s conduct implicated property
rights that are inapplicable here. Cf. Mikeska v. City of Galveston, 451 F.3d
376, 379 (5th Cir. 2006) (deciding not to disturb the uncontested district court
determination that the government’s condemnation of the appellants’ homes
and disablement of several utilities implicated “a constitutionally protected
right in their homes and in access to public utility services”); Conroe Creosoting
Co. v. Montgomery County, 249 F.3d 337, 341 (5th Cir. 2001) (“Texas recognizes
a corporation’s right to acquire and own realty and personalty.”); Simi Inv. Co.,
236 F.3d at 250 (stating that “an abutting property owner possesses an
easement of access . . . which is a property right” under Texas law).
                                        ii.
      Even     assuming    that   the    government     projects   implicated    a
constitutionally protected right, the plaintiffs have failed to state a substantive
due process claim because these projects were at least debatably rationally
related to a legitimate governmental interest. “Our review of [government]
actions must be measured against the deferential ‘rational basis’ test that
governs substantive due process.” Simi Inv. Co., 236 F.3d at 249. “The question
is only whether a rational relationship exists between the [government action]
and a conceivable legitimate objective. If the question is at least debatable,
there is no substantive due process violation.” Id. at 251 (quoting FM Props.
Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996)). “Substantive
due process analysis is appropriate only in cases in which government
arbitrarily abuses its power to deprive individuals of constitutionally protected
rights.” Id. at 249.


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                                    No. 17-20373
      Here, the government objectives were to improve its tax base and the
general welfare. As stated by the plaintiffs in the complaint, the government
projects enhanced roads and drainage, though in commercial areas in which
the plaintiffs did not desire these improvements. The plaintiffs have also
acknowledged in the complaint that “[t]he tax base has increased far above
projections.” It is “at least debatable” that a rational relationship exists
between the government projects and objectives. Id. at 251; see also Hackbelt
27 Partners, L.P. v. City of Coppell, 661 F. App’x 843, 847 (5th Cir. 2016) (per
curiam) (“Requiring a more cohesive mixed-use development that offers a more
desirable hotel is reasonably related to promoting the general welfare of the
City community.”); Tex. Manufactured Hous. Ass’n, Inc. v. City of Nederland,
101 F.3d 1095, 1106 (5th Cir. 1996) (concluding that it was “at least debatable”
that the government’s restriction on the placement of mobile homes was
rationally related to “maintain[ing] property values”); FM Props. Operating
Co., 93 F.3d at 175 (concluding that it was “at least debatable” that the city
policy was rationally related to the city’s stated goal of “guarding against the
hazards of substandard land development” and “thereby advancing the health,
safety, and welfare of the City and its citizens”); cf. Vulcan Materials Co. v.
City of Tehuacana, 238 F.3d 382, 388 (5th Cir. 2001) (stating that the plaintiff
had not alleged facts to support the conclusion that “the ordinance bears no
real and substantial relation to its objectives”).
      This case is analogous to York v. City of Cedartown, 648 F.2d 231 (5th
Cir. Unit B 1981) (per curiam). 1 In York, the plaintiffs argued that they had
asserted a due process claim pursuant to § 1983. Id. at 232. They alleged that
the government’s actions with regard to infrastructure and drainage resulted



      1 “[A]ll Unit B cases are precedent in the Fifth Circuit.” United States v. Rojas-
Martinez, 968 F.2d 415, 420 n.11 (5th Cir. 1992).
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in “water and sewage . . . deposited on [the] appellants’ property” during times
of “excessive rainfall,” depriving them of their property rights. Id. We held that
the appellants failed to allege facts that rose to the level of a violation of the
U.S. Constitution. See id. As in York, the plaintiffs here have failed to state a
federal due process claim. As the standards governing federal due process
claims and Texas due course of law claims are the same, see, e.g., Gates, 537
F.3d at 438, the plaintiffs have also failed to state a violation of the Texas
Constitution.
                                       B.
      The plaintiffs have also alleged that the defendants caused flooding of
their properties that constituted an unreasonable seizure under the Fourth
Amendment of the U.S. Constitution. We hold that they have not adequately
pleaded a Fourth Amendment claim. The elements of such a claim are (1) “a
meaningful interference with [plaintiffs’] possessory interests in [their]
property” (i.e., a seizure), which is (2) “unreasonable because the interference
is unjustified by state law or, if justified, then uncompensated.” Severance v.
Patterson, 566 F.3d 490, 502 (5th Cir. 2009). A seizure requires intentional
action. See Brower v. County of Inyo, 489 U.S. 593, 596 (1989) (“Violation of the
Fourth Amendment requires an intentional acquisition of physical control.”
(emphasis added)). A seizure does not follow from “unintended consequences
of government action” or “accidental effects of otherwise lawful government
conduct.” Id.; Laughlin v. Olszewski, 102 F.3d 190, 193 (5th Cir. 1996)
(concluding that there was no seizure when “any interference with [the
plaintiff’s] possessory interests in his property was a wholly unintentional
consequence of [the officer’s] otherwise lawful act”). Nor does it occur whenever
there is a “governmentally caused” action or whenever there is a
“governmentally caused and governmentally desired” action. Brower, 489 U.S.
at 596–97. Interference with property constitutes a seizure only when the
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interference is caused “through means intentionally applied” by the
government. Id. at 597 (emphasis removed). “[T]he detention or taking [of
property] itself must be willful.” Laughlin, 102 F.3d at 193.
      As stated in the plaintiffs’ complaint, the flooding of their residential
properties occurred during rainfall events in April 2009, May 2015, and April
2016. The plaintiffs claimed that the defendants knew of the risk of flooding in
the Memorial City Area and the surrounding neighborhoods. They also alleged
that several infrastructure and drainage projects in the Zone that the
defendants engaged in moved stormwater out of commercial areas and into the
residential neighborhoods.
      The plaintiffs have failed to state a Fourth Amendment claim. There was
no government “detention,” “taking,” or other “governmentally caused” action
related to the plaintiffs’ property. Cf. Severance, 566 F.3d at 502 (stating that
the government appropriation of an easement over a private landowner’s
property and denial of compensation amounted to a Fourth Amendment
violation). The infrastructure and drainage projects that were implemented
were government conduct, but they did not directly involve the plaintiffs’
properties.
      Even if there were government action that resulted in interference with
the plaintiffs’ possessory interests in their homes, the level of intentionality
and willfulness required for that action to constitute a seizure under the
Fourth Amendment is not present. The desired outcome of these government
projects was to improve the welfare of the Zone and, in turn, the City—albeit
by, as the plaintiffs claim in their complaint, benefitting commercial areas. The
alleged consequences of these projects—though perhaps negligent in light of
knowledge of the risk of flooding—were not “willful.” See Laughlin, 102 F.3d
at 193; cf. York, 648 F.2d at 232 (“[A]ppellants have failed to allege facts
suggesting an ‘abuse of governmental power sufficient “to raise an ordinary
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tort by a government agent to the stature of a violation of the Constitution.”’”
(quoting Suthoff v. Yazoo Cty. Indus. Dev. Corp., 637 F.2d 337, 340 (5th Cir.
Unit A 1981))). Thus, interference with the plaintiffs’ properties, if any, was
not caused by defendants “through means intentionally applied.” Brower, 489
U.S. at 597 (emphasis removed).
                                       C.
      We note that the district court dismissed the suit on multiple grounds.
The parties addressed all of these grounds in their briefs. In light of our
affirmance of the dismissal on the grounds above, we need not address the
other grounds upon which the district court based its judgment. See Portillo v.
Cunningham, 872 F.3d 728, 734 (5th Cir. 2017) (“Regardless of the district
court’s analysis, ‘[w]e may affirm for any reason supported by the record, even
if not relied on by the district court.’”(quoting Edge Petrol. Operating Co. v.
GPR Holdings, L.L.C. (In re TXNB Internal Case), 483 F.3d 292, 299 n.9 (5th
Cir. 2007))); United States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 330 (5th
Cir. 2003) (“Although both sides heavily briefed [a particular] issue . . . , this
Court need not address this issue in order to affirm.”).
                                       III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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