Residents Against Flooding v. Reinvestment Zone Number Seventeen

Decision Date09 May 2017
Docket NumberC.A. NO. H–16–1458
Parties RESIDENTS AGAINST FLOODING, Anita Giezentanner, Virginia Gregory, Lee Martin, Lois Meyers, and Bayan Raji, Plaintiffs, v. REINVESTMENT ZONE NUMBER SEVENTEEN, CITY OF HOUSTON, TEXAS (TIRZ 17), Memorial City Redevelopment Authority (aka TIRZ 17 Redevelopment Authority) and The City of Houston, Texas, Defendants.
CourtU.S. District Court — Southern District of Texas

Michael Patrick McEvilly, Blackburn Carter PC, Charles W. Irvine, Irvine & Conner PLLC, Houston, TX, for Plaintiffs.

Barry Abrams, Blank Rome LLP, Patricia Lynn Casey, City of Houston Legal Department, Houston, TX, for Defendants.



The above referenced action seeks declaratory and injunctive relief to enjoin the use of arbitrary government action that benefits private commercial interests and developers within Reinvestment Zone Number Seventeen City of Houston, Texas ("TIRZ1 17") at the expense of substantial harm to hundreds of residential homes in nearby Memorial City neighborhoods, allegedly by Defendants' knowingly conveying stormwater out of the TIRZ 17 commercial areas into its residential areas, which lack adequate infrastructure to deal with the flooding. The flooding in effect allegedly seizes Plaintiffs' real property. Plaintiffs seek immediate prioritization of flood relief projects for their neighborhoods.

Pending before the Court are the following motions:

(1) Defendant the City of Houston's Rule 12(b) (1) (the "City's") motion to dismiss for lack of standing, Rule 12(b) (6) motion to dismiss for failure to state a claim, and, in the alternative, Rule 12(e) motion for more definite statement (instrument # 5) regarding all claims brought by Plaintiffs the Residents Against Flooding ("RAF"), Anita Giezentanner, Virginia Gregory, Lois Meyers,2 and Bayan Raji;
(2) Defendants Reinvestment Zone Number Seventeen, City of Houston, Texas (the "Zone") and Memorial City Redevelopment Authority's (the "Authority's"3 ) motion to dismiss, or, alternatively, for a more definite statement (# 7);
(3) City's Motion to Dismiss (# 17) First Amended Complaint; and
(4) Plaintiffs' motion for leave of Court to file their consolidated Sur–Reply (Sur–Reply, # 19 at p.4, electronic numbering).

(1) Because Plaintiffs filed their amended complaint (# 14) to expand their factual allegations in response to the Rule 12(e) motions for more definite statement and to address issues as they arose, (2) because the City in its reply (# 17) asked the Court to apply its motion to dismiss and subsequent briefing to Plaintiffs' amended complaint (# 14), which the City argues eliminated those of Plaintiffs' claims mooted by the passage of time, (3) because Plaintiffs have not filed any objections to the City's motion for leave to file consolidated Sur–Reply, and (4) because much has changed since the case was commenced, the Court grants Plaintiffs' motion for leave of Court to file their consolidated Sur–Reply. # 19 at p. 4 of electronic numbering. The Court will therefore review the pending motions to dismiss and other submissions with respect to this amended complaint (# 14). Moreover, because the briefing has been so extensive and has evolved as issues were raised and argued by the parties, the Court finds that further amendments are not necessary.

Furthermore, because the Zone and the Authority filed consolidated responses to both motions to dismiss, which overlap on any number of issues, the Court summarizes each of the motions to dismiss first, and then addresses the responses, replies, and surreply.

Plaintiffs' Allegations

Specifically, Plaintiffs complain that the City and the Authority have engaged in a pattern of: (1) implementing drainage and mobility infrastructure projects in and around TIRZ 17 that efficiently convey stormwater out of the TIRZ 17 commercial areas into the surrounding residential neighborhoods or into their over-strained storm systems; (2) approving private commercial development within TIRZ 17 that elevated the commercial properties, without any, or without sufficient, stormwater mitigation, causing more stormwater to enter the residential neighborhoods; and (3) postponing infrastructure projects to help the residential neighborhoods, often in favor of non-essential projects that benefit private commercial interests," causing repeated and terrible flooding in hundreds of homes in the Memorial City area in violation of the United States and Texas Constitutions. # 14, First Amended Complaint, ¶ 3.

Plaintiffs contend that Defendants had actual notice of the drastic need to improve the drainage conditions of TIRZ 17 from the repeated destructive floods (especially three "historic" floods in 2009, 2014, and 2015), from numerous complaints from Memorial area residents to the City, to its Planning Commission, to its Flood and Drainage Committee, and to City Council, and from multiple studies conducted by the City, the Authority, and engineering firms (including the Walter P. Moore engineering firm in 2003, Klotz Associates in 2004 and 2014, LAN Engineering in 2006, 2012, and 2014 Omega Engineering in 2008, and, in 2009, the Harris County Flood Control District ("HCFCD"), which regulates and maintains bayous and creeks). In addition, Plaintiffs claim that Defendants have a sophisticated hydrological model that can predict the depth of flooding in any area when new drainage infrastructure is added.

Currently, the Houston City Council appoints all Board members of the TIRZ, all of whom have significant property or business interests inside TIRZ 17, as well as those of the Authority; the same members are appointed to serve on both the TIRZ's and the Authority's boards contemporaneously. Upon information and belief, the two boards hold simultaneous joint Board Meetings, deliberate and take votes as a single unified entity without distinguishing which one is taking an action, and keep minutes and records as if they were a single committee. The City retains oversight over TIRZ 17 and has statutory power over the Authority to submit projects and budgets, and the City has final approval over all proposals. Approval of the TIRZ projects is memorialized in City ordinances. Such ordinances also approve its Capital Improvement Plans ("CIPs"), which are issued every five years. See # 14, Exhibits B, C, D. Now that TIRZ 17 and the Authority exist, the City no longer performs its own drainage projects in or near the TIRZ.

Plaintiffs bring four causes of action: (1) violation of substantive due process under the Fourteenth Amendment4 and 42 U.S.C. § 1983 ; (2) violation of the Texas Constitution Art. 1 § 195 (also known as the due course of law provision); (3) violation of the Fourth Amendment and 42 U.S.C. § 1983 by unreasonable seizure of their property; and (4) a declaratory judgment for state and federal constitutional violations.

The declaratory and injunctive relief Plaintiffs seek is

to require immediate prioritization of flood relief projects for neighborhoods; to enjoin the Defendants from using TIRZ 17 funds for private development agreements to enjoin the City from approving new commercial building permits on large lots within TIRZ 17 until a finding is made that the development does not increase flooding risks in three residential neighborhoods; and to appoint a Special Master that will oversee expenditure of TIRZ 17 funds and oversee projects designed to alleviate flooding in the nearby residential areas. Id. at ¶ 24.

Plaintiffs note that the City participates in the Federal Flood Insurance program and is therefore subject to federal statutory regulation under 42 U.S.C. § 4001, et seq. , and the federal regulations enacted under the authority of these statutes. Under 44 C.F.R. Part 65, participating communities are required to assist FEMA's efforts in providing up-to-date information on special flood and flood-related erosion hazards. On information and belief, Plaintiffs assert that the City has not met these obligations.

Standards of Review
Rule 12(b) (1)

Rule 12(b) (1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. The party asserting that subject matter exists, here Plaintiffs, must bear the burden of proof by a preponderance of the evidence for a 12(b) (1) motion.

New Orleans & Gulf Coast Ry. Co. v. Barrois , 533 F.3d 321, 327 (5th Cir. 2008) ; Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001).

In reviewing a motion under 12(b) (1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) (1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. Adv. No. 08-10466, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts , 992 F.Supp. 876, 878–79 (N.D. Tex. 1998), aff'd , 199 F.3d 279 (5th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b) (1) motion without accompanying evidence. Paterson v. Weinberger , 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water , 2011 WL 52525 at *3, citing Saraw Partnership v. United States , 67 F.3d 567, 569 (5th Cir. 1995).

If it is a factual attack, as is the case here, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin. , 874 F.2d 1092, 1096 (5th Cir. 1989). A defendant making a factual attack on...

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