HOUSTON (CN) – A group of flood-weary Houston homeowners asked the Fifth Circuit on Thursday to revive their claims the city is liable for approving construction projects that drain rainwater into their neighborhoods.
Houstonian Dean Bixler’s home about 12 miles west of downtown has flooded four times since 2009, but the worst damage did not come when Hurricane Harvey dumped record amounts of rain on the city last August.
“Harvey was the least of my floods. I get more water from a spring shower, a thunderstorm,” Bixler said in an interview.
Bixler is a member of Residents Against Flooding, a nonprofit that sued the city during the spring 2016 rainy season, which brought one of the wettest 60 days on record for Houston when a series of low-pressure systems stalled over the city, unleashing floodwaters that forced thousands to flee their homes.
The homeowners sought an injunction to stop the city from issuing building permits on large lots in Reinvestment Zone Number 17, a redevelopment zone run by a seven-member board of directors appointed by the Houston City Council.
These zones subsidize development in rundown areas by setting aside property taxes to finance projects. Zone 17 encompasses 1,000 acres along Interstate 10 in the Memorial City area.
Residents Against Flooding claimed that Zone 17 and city-approved private commercial development elevated the building sites, causing more storm water to run off into surrounding residential neighborhoods, infringing on their property and due process rights under the Fourth, Fifth and 14th Amendments.
U.S. District Judge Melinda Harmon dismissed the case in May 2017, finding Houston and the zone are protected by governmental immunity, declining what she saw as an invitation for her to take over city government functions.
Houston city attorney Collyn Peddie seized on Harmon’s logic Thursday in arguing against the homeowners’ appeal before a Fifth Circuit panel at the Houston federal courthouse.
“Federal courts do not sit as zoning boards of review … They are asking this court to take over part of town. If you grant relief every taxpayer in town will want the same thing,” she said.
U.S. Circuit Judge Carolyn King, a Jimmy Carter appointee, expressed concerns that Residents Against Flooding’s members were asking for special treatment in a region where flooding is a widespread concern. Rain from Hurricane Harvey flooded more than 100,000 Houston-area homes last August.
“Your client is not the only group to assert claims like this. Aren’t you asking us to take care of your customer first?” King asked Residents Against Flooding’s attorney Charles Irvine.
Irvine, with the Houston firm Irvine Conner, said the nonprofit is not asking to take control of the entire city’s flood control regulations, just in the 1,000 acres that make up Zone 17.
“We’re not asking for monetary damages,” he said. “We’re not asking to take over flood control, but to have a role to tell the city these people have constitutional property rights.”
Irvine said Judge Harmon erred by conflating all his clients’ Fifth Amendment due process claims with their Fourth Amendment claims that the city and Zone 17 enabled flooding that intruded on their property rights, forcing them to temporarily move from their homes.
Harmon’s dismissal order centered on her finding that the city had overcome the due process claims because it had provided a “rational basis” for approving six projects—road and apartment drainage improvements and commercial development – that the homeowners claim transferred “flooding blight” to their neighborhoods.
“We don’t risk massive expansion of Fourth Amendment claims,” Irvine told the panel. “This is a unique situation. We don’t have this in other TIRZ [tax increment reinvestment zones], this is unique to TIRZ 17. … We are not requesting favoritism; we are talking about government actions that have harmed particular plaintiffs.”
Residents Against Flooding board member Cynthia Neely said after the 40-minute hearing that a key point in its lawsuit not mentioned during the hearing was that the city agreed to build five detention ponds in the deal neighborhood leaders made with the city to allow creation of Zone 17.
Bixler, the area resident, said just one of those basins has been built, and at 40 acres, “It is significantly undersized.”
Bixler, who has lived in Zone 17 since 1996, said he has no plans to move. He said he spent $30,000 flood-proofing his home last summer, which protected it against Hurricane Harvey flooding.
“We only got about 2 or 3 inches from Harvey. I had a little bit of leakage. We just mopped it up. We were good,” he said.
He said that property values in the zone have not taken a major hit, despite the persistent flood problems.
“There are three new homes in the area going for $1.2 million. My house at the peak was probably worth about $450,000. So people like the neighborhood. So we’ll see,” he said.
The Fifth Circuit judges did not say when they would issue a ruling. U.S. Circuit Judges James Graves and Edith Jones filled out the panel.