[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-11687

Non-Argument Calendar

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D.C. Docket No. 3:15-cv-00023-CDL

HOMEWOOD VILLAGE LLC,

a Georgia limited liability company,

HANCOCK PULASKI PROPERTIES, INC.,

a Georgia corporation,

TIFFANY & TOMATO, INC.,

a Georgia corporation,

OLD SOUTH INVESTMENT ENTERPRISES, LLC,

a Georgia limited liability company,

LUIS BONET,

individually,

Plaintiffs-Counter 

Defendants-Appellants,

versus

UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY, GEORGIA,

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DefendantCounter Claimant –

Appellee.

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Appeal from the United States District Court

for the Middle District of Georgia

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(February 7, 2017)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM: 

The Unified Government of Athens-Clarke County (defendant) enacted an 

ordinance imposing a fee on certain property owners to fund a stormwater 

management program. Homewood Village, Hancock Pulaski Properties, Tiffany 

& Tomato, Old South Investment Properties, and Luis Bonet (collectively, 

“plaintiffs”) are subject to the fee. Plaintiffs claim the 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. The district court, concerned about comity, abstained from 

considering the merits of the claims and dismissed the claims without prejudice. 

Plaintiffs now appeal, arguing that the court erred in abstaining. 

“We review an abstention decision only for an abuse of discretion.” See 31 

Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003). “A district court 

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abuses its discretion if it misapplies the law . . . or makes findings of fact that are 

clearly erroneous.” Ambrosia Coal & Const. Co. v. Pages Morales, 368 F.3d 

1320, 1332 (11th Cir. 2004).

“[T]axpayers are barred by the principle of comity from asserting 

[constitutional claims] against the validity of state tax systems in federal courts.” 

Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 116, 102 S. 

Ct. 177, 186 (1981); Levin v. Commerce Energy, Inc., 560 U.S. 413, 417, 130 S. 

Ct. 2323, 2327 (2010) (“[T]he comity doctrine applicable in state taxation cases 

restrains federal courts from entertaining claims for relief that risk disrupting state 

tax administration.”); see also Boise Artesian Hot & Cold Water Co. v. Boise City, 

213 U.S. 276, 282–87, 29 S. Ct. 426, 428–30 (1909) (declining to consider the 

merits of a challenge to a city-imposed license fee). “Such taxpayers must seek 

protection of their federal rights by state remedies, provided . . . that those 

remedies are plain, adequate, and complete.” McNary, 454 U.S. at 116, 102 S. Ct. 

at 186.

Based on our review of the record, and considering McNary, Levin, and 

Boise, we cannot conclude that the district court abused its discretion in abstaining. 

In deciding to abstain based on comity, the court found that a judgment in favor of 

plaintiffs would require defendant to abandon its stormwater fee system, thus 

materially disrupting defendant’s fiscal affairs. The court also concluded that an

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adequate remedy exists in state court to vindicate plaintiffs’ alleged constitutional 

deprivations. Plaintiffs have not shown that these determinations were improper, 

and applying McNary, Levin, and Boise, the determinations support abstention 

based on comity.

AFFIRMED.1

 1 Prior to the district court’s abstention decision, defendant requested dismissal based on 

the Tax Injunction Act (TIA). The district court rejected the request, finding that the TIA is not 

applicable to plaintiffs’ claims. Defendant cross-appeals that determination. However, 

“[b]ecause we conclude that the comity doctrine justifies dismissal of [plaintiffs’ claims], we 

need not decide whether the TIA would itself block the suit.” See Levin, 560 U.S. at 432, 130 S. 

Ct. at 2336–37.

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