HOMEWOOD VILLAGE LLC et al v. UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY GEORGIA

Filing 50

ORDER terminating based on Court's dismissal without prejudice of 36 Motion for Judgment on the Pleadings; 41 Motion for Judgment on the Pleadings; Motion for Hearing; 47 Motion for Judgment as a Matter of Law; 48 Motion to Stay; 48 Motion for Extension of Time to File Response/Reply. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/01/2016 (VACP).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
HOMEWOOD VILLAGE, LLC, HANCOCK
PULASKI PROPERTIES, INC.,
TIFFANY & TOMATO, INC., BAXTER
HARRIS, INC., OLD SOUTH
INVESTMENT ENTERPRISES, LLC,
and LUIS BONET,

*
*
*
CASE NO. 3:15-CV-23 (CDL)
*

Plaintiffs,
*
vs.
*
UNIFED GOVERNMENT OF ATHENSCLARKE COUNTY,

*

Defendant.

*
O R D E R

The Unified
Clarke”)

enacted

developed

Government of Athens-Clarke County (“Athensan

property

ordinance

to

fund

a

imposing

a

stormwater

fee

on

owners

management

of

program.

Plaintiffs are owners of developed property in Athens, Georgia,
and therefore must pay the fee.

Plaintiffs contend that the

stormwater fee violates their rights under the Takings Clause of
the Fifth Amendment, the Due Process Clause of the Fourteenth
Amendment, and the Equal Protection Clause of the Fourteenth
Amendment.

All parties have moved for judgment on the pleadings

(ECF Nos. 36 & 41), and the Plaintiffs have also filed a motion
for

summary

judgment

(ECF

No.

47).

Based

on

the

relevant

undisputed facts, the Court finds that it must abstain from

reaching

the

merits

in

this

action

due

to

comity

concerns.

Accordingly, this action is dismissed without prejudice.
BACKGROUND
The

Environmental

Athens-Clarke

to

create

Protection
a

program

Agency
that

(“EPA”)

prevents

required

contaminated

rainfall runoff from polluting nearby lakes and rivers.

Athens-

Clarke

program

initially

funded

its

stormwater

through its general tax revenue.

management

But in 2003, Athens-Clarke

found that its general tax revenue could not sustain the cost of
the stormwater program, and Athens-Clarke instead began charging
a fee to owners of developed property.
only

developed

runoff

properties

(undeveloped

therefore

it

only

contribute

property
assesses

Athens-Clarke found that
contaminated

actually
the

fee

absorbs

on

owners

rainfall

runoff),
of

and

developed

property.
Plaintiffs are owners of non-exempt developed property in
Athens,

Georgia.

One

plaintiff,

Homewood

Village,

LLC,

previously challenged the stormwater ordinance in state court.
After Homewood refused to pay the stormwater fee, Athens-Clarke
sued

in

state

court

to

collect

the

unpaid

fee.

Homewood

counterclaimed, arguing that the stormwater ordinance imposed an
unconstitutional
argument.

tax.

The

trial

court

rejected

Homewood’s

On appeal, the Georgia Supreme Court held that the

ordinance imposed a constitutionally-permissible fee, and that

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Athens-Clarke could require Homewood to pay the fee.

Homewood

Vill., LLC v. Unified Gov’t of Athens-Clarke Cty., 292 Ga. 514,
515, 739 S.E.2d 316, 318 (2013).

Homewood, along with the other

Plaintiffs, filed the present federal action asking this Court
to

declare

the

stormwater

ordinance

unconstitutional

prohibit Athens-Clarke from collecting the fee.

and

Homewood and

Luis Bonet also seek monetary damages pursuant to 42 U.S.C.
§ 1983.
Athens-Clarke previously sought dismissal of this action
for

lack

of

subject

Injunction Act (“TIA”).

matter

jurisdiction

based

on

the

Tax

The Court denied that motion, finding

that the stormwater assessment was not a “tax” as contemplated
by the TIA.

Homewood Village, LLC v. Unified Gov’t of Athens-

Clarke Cty., Case No. 3:15-CV-23 (CDL), 2015 WL 5559853, at *4
(M.D. Ga. Sept. 18, 2015).

The Court, however, reserved ruling

on whether it should abstain from reaching the merits of this
dispute due to comity concerns.

Id.

For the reasons explained

in the remainder of this Order, the Court decides today that
this action should be dismissed on comity grounds.
DISCUSSION
It is sometimes appropriate to dismiss an action in federal
court due to comity concerns even when the Tax Injunction Act
does not deprive the court of subject matter jurisdiction.

See,

e.g., Direct Mktg. Ass’n v. Brohl, 135 S. Ct. 1124, 1133-34

3

(2015)

(holding

that

the

TIA

did

not

require

dismissal

and

remanding to the lower court to determine if comity concerns
nevertheless supported dismissal); see also Levin v. Commerce
Energy, Inc., 560 U.S. 413, 424 (2010)(recognizing that “[t]he
comity

doctrine

Act].”).

is

more

embracive

than

the

T[ax

Injunction

Concerns about comity arise from “a recognition of the

fact that the entire country is made up of a Union of separate
state governments, and a continuance of the belief that the
National

Government

will

fare

best

if

the

States

and

their

institutions are left free to perform their separate functions
in separate ways.”

Fair Assessment in Real Estate Ass’n, Inc.

v. McNary, 454 U.S. 100, 112 (1981) (quoting Younger v. Harris,
401 U.S. 37, 44 (1971)).

Historically, comity concerns have

been raised in actions challenging the “collection of taxes or
other impositions made by state authority, upon the ground that
they are illegal or unconstitutional.”

Boise Artesian Hot &

Cold Water Co. v. Boise City, 213 U.S. 276, 281 (1909).

Federal

district courts should be reluctant to interfere in the fiscal
operations
particularly
dispute

of

state

and

sensitive

involves

a

to

local
avoid

governments
such

constitutional

and

interference

challenge

to

a

must
when
state

be
the
or

municipal tax or fee and an adequate remedy exists in state
court.

Id. at 282.

These comity concerns apply regardless of

whether the plaintiffs seek a declaratory judgment or damages.

4

See McNary, 454 U.S. at 107 (“[O]ur comity cases have thus far
barred federal courts from granting injunctive and declaratory
relief in state tax cases. . . . [W]e decide today that the
principle of comity bars federal courts from granting damages
relief in such cases . . . .”).
In

this

barring

action,

Plaintiffs

Athens-Clarke

from

seek

a

collecting

Plaintiffs also seek monetary damages.

declaratory
the

judgment

stormwater

fee.

It cannot reasonably be

disputed that if the Court granted Plaintiffs the relief they
seek,

this

federal

judicial

action

would

cause

a

material

disruption to the Athens-Clarke budget and intrude on the fiscal
operations of the municipality.
it

is

in

the

best

Athens-Clarke has decided that

interest

of

its

citizens

to

fund

the

stormwater program by assessing a fee on owners of developed
property.

It has determined that a rational connection exists

between the nature of these property owners and the stormwater
fee.

A declaratory judgment by this Court preventing Athens-

Clarke from collecting these fees from Plaintiffs would require,
through a federal judicial mandate, that Athens-Clarke abandon
the fee system and fund the program in another way.

This is

precisely the type of federal judicial interference that raises
comity

concerns

abstention.

that

counsel

in

favor

of

federal

court

See, e.g., McNary, 454 U.S. at 114-15 (concluding

5

that

comity

concerns

required

dismissal

because

the

relief

sought would disrupt the fiscal operations of the state).
The Court

recognizes that some constitutional

violations

can only be redressed by the interference of federal courts.
Thus, before a court abstains from deciding an action on the
merits due to comity concerns, it must be satisfied that an
adequate remedy exists in state court to vindicate the alleged
constitutional

violations.

See

Boise,

213

U.S.

at

282.

Plaintiffs argue that any state remedies would be futile given
the Georgia Supreme Court’s decisions in Homewood, 292 Ga. at
515, 739 S.E.2d at 318, and an earlier case upholding a similar
stormwater ordinance in Augusta, McLeod v. Columbia County, 278
Ga. 242, 242-43, 599 S.E.2d 152, 153-54 (2004).
Plaintiffs’ argument unpersuasive.

The Court finds

First, although the Georgia

Supreme Court upheld the Athens-Clarke ordinance in Homewood and
the Augusta ordinance in McLeod, neither opinion specifically
addressed all of the particular claims that Plaintiffs assert
here.

Furthermore,

Homewood, one of the plaintiffs in this

present action, could have brought the challenges it asserts
here in the earlier Homewood action, and the Court knows of no
reason why the other plaintiffs in this present action could not
assert their challenges in a future state court action.

It does

not matter that Georgia Supreme Court precedent suggests that
such claims may be unsuccessful.

6

Plaintiffs are not entitled to

a remedy that guarantees victory.
state

courts,

if

asked,

remedy . . . regardless

generally

of

whether

advantage of the state remedy.”
of

Flagler

Cty.,

Plaintiffs

clearly

202

What matters is “whether the

F.3d

have

would

provide

an

the

plaintiff

adequate

has

taken

Horton v. Bd. of Cty. Comm’rs
1297,

the

1300

(11th

opportunity

to

Cir.

2000).

press

their

constitutional challenges to the ordinance in Georgia’s state
courts.

If they can persuade those courts that the ordinance is

unconstitutional, they will prevail.

The fact that they may

lose does not mean they have no adequate remedy.1

The Court

finds that an adequate remedy exists in state court.
Plaintiffs also argue that comity concerns only arise in
the context of challenges to local “taxes” and not to local
“fees.”

The seminal case of Boise Artesian Hot & Cold Water Co.

v. Boise City, 213 U.S. 276 (1909), clearly disposes of this
argument.

In Boise, fee-payers sued a municipality to challenge

the constitutionality of an ordinance imposing a license fee.
The Supreme Court refrained from reaching the merits of the
action

because

comity

concerns

required

dismissal

given

that

“every possible defense to the collection of the license fee
which has been suggested by the company is available to it in”
state court.

Id. at 287.

Although comity concerns frequently

1

The Court also notes that the Plaintiffs would have the opportunity
to seek a writ of certiorari from the United States Supreme Court if
the Georgia Supreme Court ruled against them.

7

arise

in

challenges

to

local

challenges to local fees.

taxes,

the

relief

can

also

apply

to

The key issue is not whether the

ordinance imposes a tax or a fee.
(1) would

they

sought

The relevant questions are
unduly

disrupt

the

local

government’s fiscal affairs and (2) does a state remedy exist to
challenge the fee.
is yes.

In this case, the answer to both questions

Accordingly, the Court must abstain from deciding the

merits of this action due to comity concerns.
CONCLUSION
All federal district judges are anxious to vindicate and
protect federal rights.

However, we also have a responsibility

to avoid reaching the merits of a dispute when such a decision
would unduly interfere with the legitimate fiscal and budgetary
activities of local and state governments and when an adequate
state remedy exists to address the asserted claims.
reasons

explained

in

this

Order,

the

Court

For the

abstains

from

deciding the merits of the claims asserted in this action due to
comity

concerns

and

without prejudice.

dismisses

this

action

in

its

entirety

The parties shall bear their own costs.

IT IS SO ORDERED, this 1st day of April, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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