irvin i'm here on behalf of the plaintiffs appellants in this case and we're here today on a flooding cases houston floods we all understand that houston has flooded in the past houston will flood again in the future unfortunately and as we stand here today all houstonians are working together and thankfully trying to find solutions to some of these flooding problems that are now being recognized however this case is about residents who flooded long before hurricane harvey long before and this case is about residen alleged the plaintiffs alleged in this case that the flooding that they suffered in neighborhoods north and south of memorial city mall were caused by the actions of the defendants the defendants of the city of houston the memorial city devout redevelopment of oratory and turf seventy and long before hurricane harvey hit town our clients were advocating  solutions because the truth is that we all knew what the problems were and the s their attempts to use the political process fell on deaf ears fell on deaf ears with the turds with the authority and with the city four point i'd like to made one with their own twelve feet and the district court dismissed this case on twelve b one in twelve b six therefore there has not been an extensive factual development there was no oral argument on the twelve emotions but the question then becomes did they plaintiffs cleaved sufficient  a claim and were those courses of action viable course of action second point this is not a case about trying to control the entire zoning and flood control system of the city of houston we're talking about a small geographic area we're talking about the residential neighborhoods immediately north and immediately south of i ten you know north of the commercial area which is the author of t and the so we're not trying to us the court to become a super zoning or thora t to start regulating flooding in the whole of houston third point this small commercial area is unusual because it is what   areas are established and then the incremental benefit of the property taxes that are raised then allowed to be decided how they spend that allowed to be decided by the within that zone and here we have a target to seventeen that is entirely commercial and we alleged we think we sufficiently allege that the commercial decisions of the commercial entities that control that  e using public money the public face to benefit themselves at the expense of the residential neighborhoods north and south that's the only way water gets out of the fourth point and the us have developed super sophisticated models they know exactly how many inches of water are going to occur at a particular location in the residential neighborhoods they can tweak the dials to decide you know we build some now additional detention here how much less flooding will we get if we develop this property over here how much more flooding will we get so none of this is active god or  understood the engineers know how to fix this problem and in fact in two thousand and two the city the turbos the clock's ticking i'm really waiting to hear something about these claims because they there were several different claims but you have unitary board the same board members they identified the same board meetings the board meetings held identical times they do not have different board minutes so any decision by the authority is a decision by the t their clients represent and move it into the neighborhoods and then not address what happens the consequences of what happens when that water hits the neighborhoods the residential neighborhood to literally north and south of the turks and the authorities area and they they make decisions that's their policy is get water out of the ters fix the problems in the turf or the commercial entities move it into the neighborhoods and that is the very definition of an arbitrary governmental action they're favoring one entity if you look at a similar case that we've briefed they're favoring one landowner here the commercial entities in the open at the expense of the residents the residents north and south and for years they were seeking relief and they just did not get it so you know up a point that the you know first we are trying to seek a solution to this problem we did not ask for damages our clients did not seek a fifth amendment in the first condemnation case we're not asking for any damages any monetary awards against the city of houston what we're trying to do is get a solution to this problem and after years and years and years of trying to get that solution they finally asked to file a lawsuit and so where are you know our lawsuit is substantive due process and fourth amendment seizure claim complaints and the petitions from the citizens to actually step in and say these citizens have constitutionally protected property rights not to have a local governmental entity make decisions that benefit person who can only group that could assert claims like this and how do you aren't you really asking us to take care of your customers and forget what's happened out in the rest of the city answer yes  here and there but i sit here i would answer no your honor i think the key distinction here is we're not trying to take control of the entire city what is the difference here is the fact that the memorial city area is a family's and acres of commercial area that has been designated by the city and that families and acres is entitled to collect the property taxes within the commercial area and then decide themselves how to spend that public face and they have decided to spend that problem money in an way that benefits themselves at the expense of the residents north and south that's the difference it's not like the public fisc is going into a big pot of money then the city makes a global decision about where to spend it that that we think is a key distinction here is we i hesitate to use the word self healing and we didn't use it in our brief but you know that's kind of essentially what's going on the private entities the commercial entities making decisions about flood control and drainage projects using public money in their zone at the expense and causing damage outside the zone and then refusing to fix the problems that they real issue that the unique factor of the combination of this creation under texas tax law that encourages this kind of you know self interest using public money is a particular feature of this case i don't think that this is the case implicates you know these catastrophic far reaching consequences that we're asking a federal court to take over the seizure claim being the meaningful interference with our client's property rights and that's clearly recognized under state law what we have a big problem with with the district court's opinion is the district court essentially ignored w compensation we don't want just compensation we want injunctive relief and that's why we sought relief under the fourth amendment the severance case under the pressly case and substantive due process under see me and so what i would say about rational basis is a ters is formed under particular circumstances under state law and the turf is formed to resolve to fix a bite or a menace in  geographical area right that's the terms of the statute of three eleven of the texas tax code what is unreasonable and we don't think the government and we haven't seen it in the briefing the government can articulate any rational basis is to form a ters and then allow that hurts to fix their own problems fix their blight and then menace by transferring that menace into the residential neighborhoods north and south of them you know i mean we have you know we have in houston we have the homeless encampment it would not be rational if the city of houston simply said we're going to take the homeless encampment here we're going to move it over here and that's exactly what the turks and the authority in the city authorized here they took a blight drainage problems in memorial city where roads would flood and parking lots would flood and they just put it into the neighborhoods and we have not heard any rational basis justifying a legitimate government interest in transferring blight from one area simply to another area that is the substantive due process claim that we are making and the fourth amendment claim that we allege which i see much times over but to reserve  and i'm sorry that you have been notation there and there's two questions or this whether there's been a continuing violation of constitutional violation here aside from the allegations they have to abide by these requirements and indeed whether there's been any constitutional violation at all and second whether defendant's acts were reasonable or as judge jones talked about had a rational basis and i think the best way that the court can see those and see that the correct  decision of the district court is by looking through the lens of the statute of limitations this notion of a continuing violation because here you really get down to one alleged constitutional violation now the plaintiffs concede in this case that without the continuing violation doctrine they don't have a claim or they have won one point and that's the key to opening up things that happened in two thousand and nine two thousand and four two thousand and seven now we  judge harman that doctrine doesn't apply and we briefed that page forty three to forty eight of a brief in part because they said they put us on actual notice of a claim in two thousand and nine but they claim they were not on actual notice of a claim in two thousand and nine but for the purpose of this argument and for cutting through the weeds here let's assume that their argument applies let's assume that it applies they still don't have any evidence or pleading that there is a constitutional violation here or that the doctrine applies and you can see that because they can see it in their pleadings they can see to their briefing that the only alleged constitutional violation that took place within the limitations period that would open up all of the others or if it was a street act would open it up at least some of them is the two thousand and fifteen c ip capital improvement program that was approved they talk about this at page fifty five on their brief now that couldn't possibly be a constitutional violation project wasn't completed until june seventh two thousand and seventeen which was thirteen months after they filed suit and so it couldn't possibly have caused the flooding before more important the project expanded the detention pond they try to characterize it as a beautiful creation project expanded the detention pond and you can see that page five thirty three of the record it gave the city half an acre of land at gessner and i ten which isn't cheap to expand the detention pond and more important it included what's called vault attention which is underground storage that was designed specifically for the purpose of assisting with drainage for adjacent properties things like town houses and apartment buildings that are along with view so that was what that project is they can see and the court noted that they can see that page eight seventy eight of the record that those projects designed to eliminate blight designed to encourage private development alleviate traffic congestion congestion elevate the tax base and all of those things provide a rational basis for for those activities what they say however is that these projects diverted funds from their projects however the gould case that we cite says that failing to fund something failing to even if you pass  budget that doesn't include something doesn't count for statute of limitation purposes so the only thing this court really has to analyze is that two thousand and fifteen c ip now the plaintiffs would have you believe that there is sort of a binary choice that it was either that their projects this is the city of euston there are a thousand other projects that that could have gone to so our position here is there is no continuing violation because there was no constitutional violation and you can see that if you then look at the ultimate questions here which we can skip over to judge jones talked about them the first one is rational basis the due process due course of law have to be analyzed on a rational basis now the plaintiffs in this case of tried to shift that burden to us but the us supreme court in heller vs doe has said that the city has no obligation to produce evidence to sustain the rationality of the statutory classification in fact the burden quote is on the one attacking the legislative range meant to negative every conceivable basis which might support it whether or not the basis even has a foundation in the record they haven't even come close to do that they haven't tried to do that instead the only thing that they say is it benefited private interests gould isn't actionable or doesn't apply for the statute of limitation purposes and second as a factual matter i would vehemently disagree with the court as to the expenditure of funds i deal with the drainage fee on a daily basis and i can tell you that those funds have been have been expended but that's not part of this record what is part of the record though is their claim that somehow there is favoritism here that monies have been spent but they've been spent on the wrong projects the problem with that is that they can see it as suggested they can see that these projects would be perfectly fine that the two thousand and c r p projects would be perfectly fine if only you couple them with projects in their neighborhood so they're not saying they're bad they're not saying as was suggested i think by judge jones and freeman that you know the that the processes and procedures have not been complied with of the permits were improperly given they're just saying we didn't get iris to and that's not actionable and they cite to see me which judge king was the author of that opinion but those cases involve direct action against a particular property there's not any here now you would have the plaintiffs would have you believe that somehow there was you know a direct direct knowledge or direct action by the city in flooding these areas this is not like a release case this is not the king would case this is not the addicks dam case this is not like any of the other cases of that deal with with flooding i think arkansas wildlife case in the supreme court this is a case where there was a study that said if you do projects over here in some areas you might change the flow of water that's important because this is not a case in which the city had any information that if you do this particular project you're going to flood these people and that's a big big difference in terms of both causation knowledge and intent because they have to show intent now the courts have said with regard to rational basis that land use decisions are matters of local concern and they can't be transformed in substantive due process based only on the allegations of government officials acted with improper motive that's the united artists case that we sign that's the only thing they have here that we had some improper motive there is no case not simming not severance not any of these cases that says that that is that is an appropriate substantive due process claim the one that they've offered is the smith case where a bridge was given to another party but again there was direct action on a specific property there was a state created right in an easement and it was directed only to that party and there was a rational there was not a rational reason for it the party in sydney for example negated any possibility of meeting i think it was a five foot park and they negated all possibilities of rational basis fourth amendment requires reasonable miss and there's not reasonable there's not a pleading that these actions were unreasonable the fact the decisions and i think judge jones raised this in either this or the last case the fact that actions of a city are ill advised or even negligent don't state a fourth amendment case now i'm not suggesting that hours are but there is a protection for cities to be wrong to get it wrong and that's all that they're really suggesting here in fact again as i've suggested in freeman the court said that the ultimate test of reasonable is is fulfilled in this case by the city's adherence to the ordinance there's no suggestion in this case that the city did anything out of the ordinary except not put the plaintiffs first and that's a problem the first second third fourth seventh nine eleven circuits have already cautioned and already held that the federal courts do not see it as zoning boards a review that's all that this court is being asked to do in this case we're not they're not we agree with them they're not asking that they take over the entire case what they're asking is that that this court take over a certain part of town and i would suggest to you that if the court gives that relief and says that you now can force someone to appoint a special master force them to do projects that every taxpayer in town is going to want the same really for their area and you will have a wholesale takeover so that is to a specific property here they haven't even identified the properties they haven't given their addresses in most cases they've talked vaguely about neighborhoods they've talked vaguely about flooding the mall and our brief at no ten we talk about the cases that say that you've got to have an easement of some sort or a resuming or a permit or demolition something that deals with a specific property here they're talking in these kind of general terms about flooding the neighborhood the same is true for the fourth amendment the violation requires in that case an intentional acquisition of physical control you have to have a meaningful in interference with possessory interest but it has to be directed to a specific project in fact the l case out of the fifth circuit says that a willful decision is one directed to the seizure of specific property quote the occasions where seizure has been found about government action directed to the parties property not actions taken as to nearby land the effects of which were felt by the complainant in fact we have not recognized liability in this is what the kercher said where the government only knows that someday somewhere its performance of a general government function such as granting permits or approving plants were result and some  specified excuse me will result in damage to some unspecified parcel of land within its jurisdiction that is the only thing that they have asked for here that's not relief that they are entitled to they haven't pled any direct  action against their property nor have they shown any lack of rational basis lack of reasonable miss or any continuing violation as a result the trial court's decision was absolutely spot on if it was a little bit long my two clients don't belong in this lawsuit first with respect to the tax income reinvestments judge harman correctly concluded that under the darby decision the zone is not a suitable limited and it's not a suitable entity because it's instance the state law that we start with is the city charter of the city of houston which vests sole authority for of for the power to be sue and be sued in the city of houston itself the statutory authority that allows for the creation of these types of districts does not speak to any right to sue or be sued the the plaintiffs have attempted to skirt the incontrovertibly fact that there is no express authority conferred on the terms to be soon be sued by making an implied argument referencing the fact that certain general powers have been delegated to the term none of those however involve the ability to sue a d c and as the district court correctly concluded looking to the district court decision of skyway towers where the question was whether the city council of san antonio could be sued independently from the city that general grants of power do not suffice he said never pointed to any expressed grant of authority for it to be sued or to sit with respect to the memorial city redevelopment authority and the zone jointly judge harmon was correct for the reason judge gray's alluded to it is uncontroverted in this record matter of fact the plaintiff has pled that although the authority and the tears boards recommend projects the city council has final approval my clients recommand they administer they manage but they don't how to the power of the purse and they don't have the power to actually implement adopt party policies for the city of houston that requires an action of the city council of houston why is that significant under section one nine hundred eighty three that means the actions of my two clients are not actions by parties with the authority to establish final policy regarding the conduct that the plaintiff is complaining about why is that important it's important because that means my client's actions cannot be the moving force of any constitutional violation so for those two reasons we submit judge harmon was absolutely correct  concluding that neither the zone nor the authority is a proper party to this action and should be dismissed independent of the merits of the substantive arguments which also support dismissal unless the panel has other questions w the final decision maker we think that's not the analysis under the man now case clearly states you can be can have a policy you can have an ordinance you can have a regulation it doesn't matter exactly which one of those it is and what we believe and what we brief is that the turks and the authority the unified board make the policy of how to address drainage in the district and whether that causes impact outside of the district or it's undisputed i think that the city under an l is a potentially liable party because they passed those capital improvement plans as an actual ordinance even though the city i think might dispute that but i don't i don't know if they really realistically can they pass an ordinance to approve the budget plans but those budget plans recommended pursuant to the final policy which is the decision of the authority and the term that they make about how to address that on with respect to rational basis we believe that we met pleading burden on whether there was a rational basis for any of these is the plaintiff's burden to negate the city argues every single potential rational reason why a city might take an action i've never seen that in case law and i just don't think that is the current status of case law  going to you question judge king i don't believe and we argue this that we risk a case of massive expansion as the city argued of fourth amendment substantive due process cases in the city of houston we haven't seen that happen you know as i said in my direct in my main argument was that this is a specific situation this is a situation that's developed over you know on the government at the city's arguments about statute of limitations i'd like to say that we have alleged ongoing violations we brief that to the panel every single year except one when the city did not approve a budget plan but every single year the city by ordinance passes a budget plan every single year in the authority create a budget plan it's a five year plan it has various projects projects up here on the plan project disappear off the plan and that's a changing target right and each year we have projects that are being implemented with public money and most of those projects many of those projects are drainage projects and those change the situation constantly it's not like there was one decision in one nine hundred ninety nine to set up the turds or there was one event in two thousand and nine that changed flooding forever you know we have a changing situation on the ground that year to year alleged an ongoing violation we're not arguing favoritism for the residential neighborhoods over any other neighborhood in houston what we have allege  is harm to the residential neighborhoods caused by the arbitrary action of these governmental bodies spending public money in a way that benefits them selves and harms the residents and that should not be the standard for you know whether you know a plaintive residential plaintiffs has a right to argue their case in front of federal court so we u district court's opinion which conflated all fourth amendment subsidy of due process claims due process of law claims into a fifth amendment slash four claim we urged that that that decision was wrong and needs to be reversed and that the plaintiffs in this case have a right to go and argue their case whether we win or lose on subs summary judgment or on the merits we argue for the half right to do that thank you very much