Case: 16-11687   Date Filed: 02/07/2017   Page: 1 of 4


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT

                     ________________________

                           No. 16-11687
                       Non-Argument Calendar
                     ________________________

                 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,
               Case: 16-11687      Date Filed: 02/07/2017    Page: 2 of 4




                                                              Defendant-
                                                              Counter Claimant –
                                                              Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                          ________________________

                                  (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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