IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20373

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.

United States Court of Appeals

Fifth Circuit

FILED

May 22, 2018

Lyle W. Cayce

Clerk

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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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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. RojasMartinez, 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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