Fifth Circuit Upholds Dismissal of Complaint for Actions and Inactions of City of Houston


On May 22, the U.S. Court of Appeals for the Fifth Circuit, in an unpublished ruling, affirmed the District Court’s dismissal of a complaint that the actions and inactions of a City of Houston tax reinvestment zone, as well as the City of Houston, resulted in multiple serious flooding incidents that damaged their properties. The case is Residents Against Flooding, et al., v. Reinvestment Zone Number Seventeen, et al.

The plaintiffs are a nonprofit group whose mission is “to advocate for flood relief,” and they reside in neighborhoods adjacent to the TIRZ Reinvestment Zone. The TIRZ Reinvestment Zone was created by the City of Houston in 1999 pursuant to state law, and the enabling ordinance was modified and amended by the City over the years to take actions to improve the commercial tax base of the TIRZ Reinvestment Zone, and to take on a number of infrastructure and construction projects.

According to the plaintiffs, while the City failed to take actions to limit or address frequent flooding in their residential areas, the result of the projects in the TIRZ Reinvestment Zone were to convey storm water out of the commercial zone and into their neighborhoods in 2009, 2015, and 2016 (or just before the arrival of Hurricane Harvey in Houston, TX). Flooding caused the plaintiff homeowners to complain that persistent inaction by local units of government aggravated their damages.The plaintiffs alleged that these actions violated their federal and state constitutional rights, and accordingly sought a declaration to this effect, an appropriate injunction, and an order issued to the defendants to remedy the results of their inactions.

The Fifth Circuit held, in a per curium opinion, that the plaintiffs’ allegations of substantive due process and substantive due course of law violations failed to state a claim because they failed to adequately plead that this government conduct implicated a constitutionally protected right. Moreover, it held that, even if these government projects in the TIRZ Reinvestment Zone implicated a constitutionally protected right of the plaintiffs (i.e., to use their homes), the propriety of these projects were at least debatable, and hence, no substantive due process claim was adequately stated. Finally, the Fifth Circuit confirmed that the allegation that the flooding of their homes amounted to an illegal seizure in violation of the Fourth Amendment was inadequately pled because there was no claim that the government deliberately intended to harm their properties, and this is the test of that claim.