Petition for Writ of Certiorari — Homewood Associates Inc., et al., Petitioners v. Unified Government of Athens-Clarke County, Georgia

Supreme Court briefMar 13, 2026

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No. 25-___

IN THE

Supreme Court of the United States

————

HOMEWOOD ASSOCIATES, INC., et al.,

Petitioners,

UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY,

Respondent.

————

On Petition for a Writ of Certiorari to the

Supreme Court of Georgia

————

PETITION FOR A WRIT OF CERTIORARI

————

JOSH BELINFANTE

ALEXANDER DENTON

MILES C. SKEDSVOLD

ROBBINS ALLOY

BELINFANTE

LITTLEFIELD LLC

500 14th Street

Atlanta, GA 30318

(678) 701-9381

GARY GERRARD

GARY GERRARD, P.A.

219 Gilmer St.

P.O. Box 30648

Lexington, GA 30648

(706) 743-3080

PETER B. RUTLEDGE

Counsel of Record

SAMUEL E. MARTICKE

ANNIE M. MCCLELLAN

KATHLEEN E. FINK

TAFT STETTINIUS &

HOLLISTER LLP

3343 Peachtree Road, NE

1600 Atlanta Financial Center

Atlanta, GA 30326

(404) 233-7000

Brutledge@taftlaw.com

Counsel for Petitioners

March 13, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

In Koontz v. St. John’s River Water Mgmt. Dist., 570

U.S. 595 (2013) and Sheetz v. Cnty. of El Dorado, 601

U.S. 267 (2024), this Court held that certain monetary

exactions tied to an identified piece of property can be

subject to the nexus and rough proportionality

requirements set forth in Nollan v. California Coastal

Comm’n, 483 U.S. 825 (1987), and Dolan v. City of

Tigard, 512 U.S. 374 (1994), even where the

assessments derive from legislative action, not merely

ad hoc administrative action.

Picking up where Koontz and Sheetz left off, this

case concerns a constitutional challenge to a

legislatively mandated stormwater fee enacted by

Respondent, much like fees imposed by municipalities

around the country. Here, Respondent provided

Petitioners’ properties with no benefit, and the fees

charged bore no relation to the cost Respondent

incurred in relation to each property. For example, for

one petitioner, Homewood Village, LLC, quarterly

assessed fees totaled over $10,000 in one year.

Respondent’s property-specific cost amounted to no

more than $150 over three years, roughly the cost of

inspecting a small culvert.

The petition presents two questions:



Does the Takings Clause apply to municipal

ordinances imposing fees on classes of property

outside the permitting context?



If the answer to Question 1 is yes, does the

Nollan/Dolan framework govern the analysis

of such fees?

(i)

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

1. Petitioner Homewood Village, LLC is a

privately held company organized under the laws of

the State of Georgia. No publicly held company owns

10% or more of its stock.

2. Petitioner Homewood Associates, Inc. is a

privately held company organized under the laws of

the State of Georgia. No publicly held company owns

10% or more of its stock.

3. Petitioner Baxter Harris, Inc. is a privately held

company organized under the laws of the State of

Georgia. No publicly held company owns 10% or more

of its stock.

4. Petitioner Bonet Properties, LLC is a privately

held company organized under the laws of the State of

Georgia. No publicly held company owns 10% or more

of its stock.

5. Petitioner Hancock-Pulaski Properties, Inc. is a

privately held company organized under the laws of

the State of Georgia. No publicly held company owns

10% or more of its stock.

6. Petitioner L.E. Bonet Properties, LLC is a

privately held company organized under the laws of

the State of Georgia. No publicly held company owns

10% or more of its stock.

7. Petitioner Old South Investment Enterprises,

L.L.C. is a privately held company organized under

the laws of the State of Georgia. No publicly held

company owns 10% or more of its stock.

8. Petitioner Tiffany & Tomato, Inc. is a privately

held company organized under the laws of the State of

Georgia. No publicly held company owns 10% or more

of its stock.

iii

9. Respondent Unified Government of AthensClarke County is a municipal corporation organized

under the laws of the State of Georgia.

RELATED PROCEEDINGS

Superior Court of Athens-Clarke County:



Hancock-Pulaski Properties Inc. v. Unified Gov’t

of Athens-Clarke Cnty., No. SU17CV 1134 (July

9, 2024)



Unified Gov’t of Athens-Clarke Cnty. v.

Homewood Associates, Inc., No. SU16CV0845-S

(July 9, 2024)

Supreme Court of Georgia:



Homewood Associates, Inc. v. Unified Gov’t of

Athens-Clarke Cnty., No. S25A0555 (Oct. 15,

2025)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT .....

RELATED PROCEEDINGS ...............................

iii

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

CONSTITUTIONAL AND

STATUTORY PROVISIONS ...............................

STATEMENT OF THE CASE ............................

The Proliferation of User Fees .................

Respondent’s User Fee .............................

REASONS FOR GRANTING THE PETITION..

The Petition Raises Questions of

National Importance Explicitly Left

Unresolved by this Court in Sheetz that

Continue to Divide Courts Around the

Country .....................................................

A. The treatment of user fees under the

Takings Clause requires clarity ...........

B. Lower courts inconsistently apply this

Court’s exactions precedents...............

The Petition Presents an Especially Good

Vehicle for Resolving the Questions ........

CONCLUSION ....................................................

II.

APPENDIX

(v)

TABLE OF AUTHORITIES

CASES

Page(s)

Am. Council of Life Ins. v. Dist. of

Columbia Health Benefit Exch. Auth.,

73 F. Supp. 3d 65 (D.D.C. 2014) vacated

on other grounds 815 F.3d 17 (D.C. Cir.

2016) .......................................................... 23, 24

Am. Furniture Warehouse Co. v.

Town of Gilbert,

425 P.3d 1099 (Ariz. Ct. App. 2018) .........

Anderson Creek Partners, L.P. v.

Cnty. of Harnett,

876 S.E.2d 476 (N.C. 2022)................. 18, 20, 27

Armstrong v. United States,

364 U.S. 40 (1960) .....................................

Bldg. Indus. Assoc.-Bay Area v.

City of Oakland,

289 F. Supp. 3d 1056 (N.D. Cal. 2018) .....

Bolt v. City of Lansing,

587 N.W.2d 264 (Mich. 1998) ...................

Boyd v. United States,

116 U.S. 616 (1886) ...................................

Brushaber v. Union Pac. R.R. Co.,

240 U.S. 1 (1916) .......................................

Carpenter v. Shaw,

280 U.S. 363 (1930) ...................................

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ................................... 16-17

Chi. B. & Q.R. Co. v. City of Chicago,

166 U.S. 226 (1897) ...................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

City & Cnty. of San Francisco v.

Env’t Prot. Agency,

604 U.S. 334 (2025) ...................................

City of Gridley v. Superior Ct.,

104 Cal. App. 5th 1201 (Cal. Ct. App.

2024) ..........................................................

City of Wilmington v. United States,

68 F.4th 1365 (Fed. Cir. 2023) .................

Coalition for Fairness in SoHo & NoHo,

Inc. v. City of New York,

--N.E.3d--, No. 112, 2026 WL 88133

(N.Y. Jan. 13, 2026) .................................. 26, 27

Cohens v. Virginia,

6 Wheat. 264 (1821) ..................................

Colorado River Water Conservation Dist. v.

United States,

424 U.S. 800 (1976) ...................................

County of Maui, Hawaii v.

Hawaii Wildlife Fund,

590 U.S. 165 (2020) ...................................

Crossroads Grp., LLC v.

City of Cleveland Heights,

No. 1:23-cv-184, 2026 WL 233966

(N.D. Ohio Jan. 29, 2026) .........................

Dabbs v. Anne Arundel Cnty.,

182 A.3d 798 (Md. 2018) ........................... 26, 27

Dane v. Jackson,

256 U.S. 589 (1921) ...................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Dolan v. City of Tigard,

512 U.S. 374

(1994) .. 11, 12, 14, 16, 17, 19, 20, 22, 23, 25-27, 30

Douglass Props. II, LLC v.

City of Olympia,

479 P.3d 1200 (Wash Ct. App. 2021)........

Eastern Enterprises v. Apfel,

524 U.S. 498 (1998) ................................... 10, 15

England v. La. State Bd. of Med. Exam’rs,

375 U.S. 411 (1964) ...................................

Gluck v. City & Cnty. of San Francisco,

111 Cal. App. 5th 769

(Cal. Ct. App. 2025) ..................................

GRCO LLC v. Granby Ranch Metro. Dist.,

No. 23-cv-1351-RMR-STV, 2023 WL

9104819 (D. Colo. Dec. 21, 2023),

R&R adopted, 2024 WL 778032

(D. Colo. Feb. 26, 2024) .............................

Great Lakes Dredge & Dock Co. v.

Huffman,

319 U.S. 293 (1943) ...................................

Green v. Vill. of Winnetka,

135 N.E.3d 103 (Ill. Ct. App. 2019) ..........

Hill-Vu Mobile Home Park v.

City of Pocatello,

402 P.3d 1041 (Idaho 2017) ................ 17, 19, 21

TABLE OF AUTHORITIES—Continued

Page(s)

Homewood Vill., LLC v. Unified Gov’t

of Athens-Clarke Cnty.,

739 S.E.2d 316 (Ga. 2013) ........................ 8, 11

Homewood Village, LLC v. Unified Gov’t

of Athens-Clarke Cnty.,

No. 3:15-CV-23 (CDL), 2016 WL

1306554 (M.D. Ga. Apr. 1, 2016), aff’d,

677 Fed. Appx. 623 (11th Cir. 2017) ........ 8, 29

Horne v. Dep’t of Agric.,

576 U.S. 350 (2015) ...................................

Houck v. Little River Dist.,

239 U.S. 254 (1915) ...................................

Knight v. Metropolitan Gov’t of Nashville

& Davidson Cnty. Tennessee,

67 F.4th 816 (6th Cir. 2023) ............... 19, 20, 22

Koontz v. St. John’s River

Water Mgmt. Dist.,

570 U.S. 595 (2013) ... 3, 10-17, 20-25, 27, 28, 31

Lewiston Indep. Sch. Dist. #1 v.

City of Lewiston,

264 P.3d 907 (Idaho 2011) ........................

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419 (1982) ...................................

L.A. Flood Control Dist. v.

Nat. Res. Def. Council, Inc.,

568 U.S. 78 (2013) .....................................

Matthews v. Rodgers,

284 U.S. 521 (1932) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

McLeod v. Columbia Cnty.,

599 S.E.2d 152 (Ga. 2004) ........................

Moline Mach., LLC v. City of Duluth,

26 N.W. 3d 875 (Minn. Ct. App. 2025),

review granted (Nov. 26, 2025) .................

Monongahela Navigation Co.. v. United

States, 148 U.S. 312 (1893) .......................

Myles Salt Co. v. Bd. of Comm’rs of Iberia

& St. Mary’s Drainage Dist.,

239 U.S. 478 (1916) ...................................

N. Idaho Bldg. Contractors Ass’n v.

City of Hayden,

432 P.3d 976 (Idaho 2018) ........................

Nollan v. Cal. Coastal Comm’n,

483 U.S. 825

(1987) ... 11, 12, 14, 16, 17, 19, 20, 22, 23, 26, 27, 30

Page v. City of Wyandotte,

No. 339008, 2018 WL 6331339

(Mich. Ct. App. Dec. 4, 2018) ....................

Penn Central Transp. Co. v.

City of New York,

438 U.S. 104 (1978) ................................... 19, 20

Pennell v. City of San Jose,

485 U.S. 1 (1988) .......................................

Phillips v. Wash. Legal Found.,

524 U.S. 156 (1998) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Platt Convenience, Inc. v.

City of Ann Arbor,

No. 359013, 2024 WL 4428139

(Mich. Ct. App. Oct. 2, 2024) ....................

Santiago-Ramos v. Autoridad de Energia

Electrica de P.R.,

No. 11-1987 (JAG/SCC), 2015 WL

846750 (D. P.R. Feb. 26, 2015) .................

Sch. Bd. of Miami-Dade Cnty. v.

City of Miami Beach,

317 So. 3d 1203

(Fla. Dist. Ct. App. 2021) ..........................

Shaarei Tfiloh Congregation v. Mayor &

City Council of Balt.,

237 Md. App. 102

(Md. Ct. Spec. App. 2018) .........................

Sheetz v. Cnty. of El Dorado,

601 U.S. 267

(2024) ............ 3, 10-13, 16, 17, 21, 25, 26, 28, 30

Sheetz v. Cnty. of El Dorado,

No. 25-958 (docketed Feb. 11, 2026) ........ 30, 32

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) .....................................

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2003) ...................................

Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ...................................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Tapps Brewing Co., Inc. v. McClung,

No. 31959-4-II, 2005 WL 151932

(Wash. App. Jan. 25, 2005) .......................

Tyler v. Hennepin Cnty., Minn.,

598 U.S. 631 (2023) ................................... 12, 15

United States v. Sperry Corp.,

493 U.S. 52 (1989) ................................ 15-17, 19

Vill. of Norwood v. Baker,

172 U.S. 269 (1898) ................................... 12, 15

Zeyen v. Bonneville Joint Dist., #93,

114 F.4th 1129 (9th Cir. 2024) ................. 18, 19

ZF Autos. US, Inc. v. Luxshare Ltd.,

596 U.S. 619 (2022) ...................................

Zweig v. Metro. St. Louis Sewer Dist.,

412 S.W.3d 223 (Mo. Banc 2013)..............

CONSTITUTION

U.S. Const. amend. V ....... 3, 4, 8, 10-19, 22-27, 31

U.S. Const. amend. XIV ...............................

STATUTES AND REGULATIONS

28 U.S.C. § 1257(a) .......................................

28 U.S.C. § 1341 ...........................................

33 U.S.C. § 1251 et seq. ................................

§ 1323 ........................................................

§ 1362(14) ..................................................

40 C.F.R. § 122.34(a) ....................................

xiii

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Sup. Ct. R. 10 ................................................ 19, 20

COURT FILINGS

Petition, Sheetz v. County of El Dorado, No.

25-958 (Feb. 9, 2026).................................

Transcript of Oral Argument, Sheetz v.

Cnty. of El Dorado, No. 22-1074 (Jan. 9,

2024) ..........................................................

OTHER AUTHORITIES

Chris Mai & Maria Katarina E. Rafael,

User Funded? Using Budgets to Examine

the Scope and Revenue Impact of Fines

and Fees in the Criminal Justice System,

63 Socio. Persps. 1002 (2020) ...................

Christopher Serkin, Exacting Assessments:

Sheetz and the Problem of Stategraft,

2024 Wis. L. Rev. 641 ...............................

Duncan Stewart & Lee Shaker, Exploring

the Policy Value of Cable Franchise and

PEG Fees, 8 J. of Information Pol. 442

(2018) .........................................................

Elaine B. Sharp & David Elkins, The

Impact of Fiscal Limitations: A Tale of

Seven Cities, 47 Public Admin. Rev. 385

(1987) .........................................................

16 Eugene McQuillin, The Law of

Municipal Corporations (rev. ed. 2025) ...

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Joshua Smith, Stormwater Utilities in

Georgia (2006), available at https://river

center.uga.edu/wp-content/uploads/2021/

01/Storm water-Utilities-in-Georgia.pdf ..

6-7

Kenneth Stahl & Kristina Currans, The

Trouble With Traffic Studies: Why Bad

Traffic Predictions Are Making Our

Cities Worse And What Court Should Do

About It, 59 Real Property Trust & Estate

L.J. 325 (2024) ..........................................

Laurie Reynolds, Taxes, Fees, Assessments,

Dues, And The “Get What You Pay For”

Model of Local Government, 56 Fla. L.

Rev. 373 (2004)..........................................

Lee Anne Fennell & Edwardo M. Peñalver,

Exactions Creep, 2013 Supreme Ct. Rev.

287 (2013) ..................................................

Lee Anne Fennell & Timothy M. Mulvaney,

The Exactions Illusion: Sheetz’s Missing

Dissent, 135 YALE L.J. 1143 (Feb. 28,

2026) ..........................................................

Nathaniel R. Mattison, The Legal Case for

Stormwater Fees in New York City, 86

Albany L. Rev. 687 (2022-23) ...................

Nestor M. Davidson & Timothy M.

Mulvaney, Per Se Non-Takings, 104

Texas L. Rev. 103 (2025) ..........................

TABLE OF AUTHORITIES—Continued

Page(s)

Patricia L. McCarney, Increasing Reliance

on User Fees and Charges, in Proposition

2 ½: Its Impact on Massachusetts (L.

Susskind ed. 1983) ....................................

R. Aronson & J. Hilley, Financing State

and Local Government (4th ed. 1986) ......

State Policy Network, Fighting Unconstitutional Housing Fees in Nashville (Aug.

28, 2025), available at https://spn.

org/fighting-unconstitutional-housingfees-in-nashville-beacon-center-wins-bobwilliams-award-for-best-state-based-litig

ation/ ........................................................

Tonantzin Carmona, Inequitable fines and

fees hurt vulnerable communities. Now

policy-makers have an option for reform,

Brookings (Dec. 17, 2021), available at

https://www.brookings.edu/articles/ineq

uitable-fines-and-fees-hurt-vulnerablecommunities-now-policymakers-have-anopportunity-for-reform/........................................

1-2

Urban Institute and Brookings Institution,

Tax Policy Center Briefing Book, Updated

January 2024, https://taxpolicycenter.

org/briefing-book/how-do-state-and-localrevenues-charges-work .............................

17A Wright & Miller, Federal Practice and

Procedure (rev. ed. Sept. 2025) ................

OPINIONS BELOW

The trial court’s opinion granting Respondent’s

motion for summary judgment is not reported. It is

reproduced at Pet. App. 38a.

The Supreme Court of Georgia’s decision affirming

the trial court’s order is reported at 922 S.E.2d 90

(2025). It is reproduced at Pet. App. 1a.

JURISDICTION

The Supreme Court of Georgia issued its decision

here on October 15, 2025. It denied Petitioners’ timely

petition for rehearing on November 13, 2025. Pet.

App. 37a. On February 9, 2026, Justice Thomas

granted Petitioners’ application for an extension of

time. This petition is timely because it was filed on

March 13, 2026, the deadline set by that extension.

This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Relevant constitutional and statutory provisions are

reproduced in the Appendix. Pet. App. 96a–202a.

STATEMENT OF THE CASE

A. The Proliferation of User Fees

This case concerns a constitutional challenge to a socalled user fee imposed by a municipal corporation.

Such fees have been the fastest-growing component

of local government revenues for decades. See R.

Aronson & J. Hilley, Financing State and Local

Government 6-7 (4th ed. 1986); Tonantzin Carmona,

Inequitable fines and fees hurt vulnerable communities. Now policymakers have an option for reform,

Brookings (Dec. 17, 2021), available at https://www.

brookings.edu/articles/inequitable-fines-and-fees-hurt

-vulnerable-communities-now-policymakers-have-anopportunity-for-reform/. Especially since the Great

Recession of 2008, municipalities “operate in an

environment of dramatically reduced tax revenue,

requiring them to rely increasingly on non-tax forms

of revenue, such as exactions or user fees, to finance

roads, utilities, schools, and other municipal services.”

Kenneth Stahl & Kristina Currans, The Trouble

With Traffic Studies: Why Bad Traffic Predictions Are

Making Our Cities Worse And What Courts Should Do

About It, 59 Real Property Trust & Estate L.J. 325,

368 (2024) (footnote omitted). Many scholars and

policy experts have observed this trend. 1 By one

estimate, “[s]tate and local governments collected a

combined $570 billion in revenue from charges in

2021, or 14 percent of general revenue. As a group,

charges accounted for roughly as much revenue as

property taxes and provided more revenue than

general sales taxes and individual income taxes.”

Urban Institute and Brookings Institution, Tax Policy

Center Briefing Book, Updated January 2024, https://

taxpolicycenter.org/briefing-book/how-do-state-and-localrevenues-charges-work.

See 16 Eugene McQuillin, The Law of Municipal Corporations

§ 44:24 (rev. ed. 2025); Chris Mai & Maria Katarina E. Rafael,

User Funded? Using Budgets to Examine the Scope and Revenue

Impact of Fines and Fees in the Criminal Justice System, 63 Socio.

Persps. 1002, 1002-03 (2020); Laurie Reynolds, Taxes, Fees,

Assessments, Dues, And The “Get What You Pay For” Model of

Local Government, 56 Fla. L. Rev. 373, 408 (2004) (“[T]he breadth

and frequency of local fees have increased substantially since

their early days.”); Patricia L. McCarney, Increasing Reliance on

User Fees and Charges, in Proposition 2 ½: Its Impact on

Massachusetts 351-55 (L. Susskind ed. 1983).

These fees take many forms. Sometimes fees are

imposed on real property; in others, they are imposed

on intangible property. See Duncan Stewart & Lee

Shaker, Exploring the Policy Value of Cable Franchise

and PEG Fees, 8 J. of Information Pol. 442, 442 (2018).

In cases involving real property, municipal practice

varies widely. Some fees are imposed on developers at

the permitting stage; the City of Nashville tried one of

these, prompting a Takings Clause challenge and

eventual settlement.

See State Policy Network,

Fighting Unconstitutional Housing Fees in Nashville,

(Aug. 28, 2025) available at https://spn.org/fightingunconstitutional-housing-fees-in-nashville-beacon-cen

ter-wins-bob-williams-award-for-best-state-based-litig

ation/. Other fees are imposed on developed property;

Respondent’s fees, described below, are an example.

Some fees result from legislative enactments, like the

one examined in Sheetz; others are imposed by

administrative decision, like the one examined in

Koontz.

The imposition of user fees has triggered significant controversy. As one early study predicted,

“[d]iversification amounts to increasing the complexity

of the local revenue structure, and this, coupled with

the increased use of invisible forms of revenue, is

likely to mean a net decrease in accountability to the

public.” Elaine B. Sharp & David Elkins, The Impact

of Fiscal Limitations: A Tale of Seven Cities, 47 Public

Admin. Rev. 385, 391 (1987). Unsurprisingly, then,

litigation has proliferated, especially over stormwater

ordinances, the subject of this petition. Reported

decisions involve many challenges under federal law,

including the Takings Clause, and state law, including

claims that a city exceeded its authority or was

unjustly enriched. Just recently, the United States

successfully resisted one city’s effort to collect stormwater fees under 33 U.S.C. § 1323. See, e.g., City of

Wilmington v. United States, 68 F.4th 1365 (Fed. Cir.

2023) (holding that city’s stormwater fees were not

“reasonable service charges” under provisions of the

Clean Water Act applicable to federal facilities).

See, e.g., Zweig v. Metro. St. Louis Sewer Dist., 412 S.W.3d

223 (Mo. Banc 2013) (holding that metropolitan sewer district’s

charge was an unconstitutional tax); Lewiston Indep. Sch. Dist.

#1 v. City of Lewiston, 264 P.3d 907 (Idaho 2011) (same); Bolt v.

City of Lansing, 587 N.W.2d 264 (Mich. 1998) (same); Moline

Mach., LLC v. City of Duluth, 26 N.W. 3d 875 (Minn. Ct. App.

2025) (rejecting Takings challenge to municipal stormwater fee

but finding genuine issue of material fact over whether city

exceeded its authority or unjustly retained excess fees), review

granted (Nov. 26, 2025); N. Idaho Bldg. Contractors Ass’n v. City

of Hayden, 432 P.3d 976, 988 (Idaho 2018) (remanding case for

further consideration of, inter alia, Takings Clause challenge to

municipal sewer fee); Tapps Brewing Co., Inc. v. McClung, No.

31959-4-II, 2005 WL 151932 at *6-8 (Wash. Ct. App. Jan. 25,

2005) (remanding case for consideration that stormwater charge

violates Takings Clause). For other exemplary litigation against

municipal stormwater fees in lower state courts, see, e.g., Gluck

v. City & Cnty. of San Francisco, 111 Cal. App. 5th 769 (Cal. Ct.

App. 2025) (finding property owners stated claim under state-law

proportionality requirement); Platt Convenience, Inc. v. City of

Ann Arbor, No. 359013, 2024 WL 4428139 (Mich. Ct. App. Oct. 2,

2024) (rejecting state-law challenge to municipal stormwater fee);

Sch. Bd. of Miami-Dade Cnty. v. City of Miami Beach, 317 So. 3d

1203 (Fla. Dist. Ct. App. 2021) (holding that school district was

immune from municipality’s stormwater fee); Green v. Vill. of

Winnetka, 135 N.E.3d 103 (Ill. Ct. App. 2019) (rejecting property

owner’s challenge to municipal stormwater fee); Shaarei Tfiloh

Congregation v. Mayor & City Council of Balt., 237 Md. App. 102

(Md. Ct. Spec. App. 2018) (rejecting religious institution’s

challenge to stormwater fee).

B. Respondent’s User Fee

1. This petition involves a fee allegedly imposed to

fund the operation of a municipal stormwater

management system. The fee’s genesis lies in the

federal Clean Water Act of 1972 (“CWA”), 33 U.S.C.

§ 1251 et seq. The CWA regulates, among other

things, nonpoint sources of water pollution. See Cnty.

of Maui, Hawaii v. Hawaii Wildlife Fund, 590 U.S.

165, 170 (2020). Nonpoint sources of water pollution,

as the name implies, do “not come from a readily

identifiable source.” Id. at 174. Cf. 33 U.S.C.

§ 1362(14). Stormwater runoff, sometimes called

“rainwater runoff,” qualifies as one nonpoint source.

Hawaii Wildlife Fund, 590 U.S. at 175.

“Across the United States, stormwater management

is an increasingly important issue.” Nathaniel R.

Mattison, The Legal Case for Stormwater Fees in

New York City, 86 Albany L. Rev. 687, 687 (2022-23).

So, Respondent, like municipalities around the

country, operates a stormwater management system.

The CWA and its implementing regulations required

Respondent to obtain a Municipal Separate Sewer

System (“MS4”) National Pollutant Discharge Elimination System (“NPDES”) permit. See City & Cnty. of

San Francisco v. Env’t Prot. Agency, 604 U.S. 334, 340

(2025) (discussing NPDES permits); L.A. Flood

Control Dist. v. Nat. Res. Def. Council, Inc., 568 U.S.

78, 80 (2013) (discussing the MS4 program). As a

condition of the NPDES permit, municipalities

must minimize the extent to which pollutants in the

stormwater runoff enter open waterways. See 40

C.F.R. § 122.34(a).

Starting in 1992, Respondent financed its stormwater management program through general revenue

funds. Pet. App. 41a. Roughly a decade later, the

federal government raised its expectations for municipal stormwater management programs like Respondent’s in connection with the NPDES permitting

process. Id. So, in 2003, Respondent began to investigate the possibility of creating a stormwater utility

with a fee to fund “the existing and future stormwater

needs of the county.” 3 Id. at 41a–42a.

The next year, Respondent adopted a Stormwater

Utility Ordinance (“Ordinance”). 4 That ordinance

creates a stormwater utility funded by monthly

charges on owners of developed property. Three

components comprise the charge: (1) a “base charge”

allegedly to cover the utility’s annual administrative

costs; (2) a “quantity charge” allegedly based on

the property’s impervious surface area and factors

affecting the volume and rate of stormwater runoff;

and (3) a “quality charge” allegedly based on the

differences in pollutants generated by different types

of land use. Id. at 42a. Under this fee structure,

Respondent does not measure the sediment or pollutant load of any property within its jurisdiction.

(Pltfs.’ SOMF No. 80; Defts’ Resp.) See generally

Joshua Smith, Stormwater Utilities in Georgia at 8-9

(2006) (describing the Athens ordinance), available at

Other cities around the United States have done likewise

and continue to consider such fees today. See, e.g., Bristol

County, Tennessee; Prince William County, Virginia; Colorado

Springs, Colorado. For example in 2024, Billings, Montana

shifted its stormwater fee from the property tax statement to a

utility bill.

Adoption of the Stormwater Utility Ordinance occurred

shortly after Respondent adopted a Stormwater Management

Ordinance. The latter ordinance set forth several rules and

requirements to control the adverse effects of stormwater runoff

and nonpoint source pollution associated with new development

and redevelopment. See Pet. App. 97a-162a.

https://rivercenter.uga.edu/wp-content/uploads/2021/0

1/Stormwater-Utilities-in-Georgia.pdf.

These charges are not universally applied. Rather,

the Ordinance contains many exemptions and credits.

(As explained below, those credits exist in theory but

not in fact). For example, the Ordinance expressly

exempts roads. Pet. App. 6a. Additionally, property

owners can, theoretically at least, apply to reduce their

fee. For example, schools receive a marginal credit in

return for agreeing to teach a general environmental

science curriculum that includes water protection

measures. Pet. App. 195a. Yet a city official enjoys

unfettered discretion to decide whether to award such

credits. Pls. SOMF 83; Defts. Resp. Finally, owners

of “undeveloped property,” comprising somewhere

between 67.5 to 90% of the property in Athens-Clarke

County are not assessed any charge irrespective of the

quantity or quality of stormwater runoff. See D.E. 61,

Affidavit of Charles Wilson, Exhibit 22, map of

property types in ACC.

2. Petitioners own developed property in AthensClarke County. Their fees are burdensome. For

example, for one petitioner, Homewood Village, LLC,

five-year fees totaled nearly $129,000 and, with late

fees, exceeded $200,000. Pet. App. 9a, 94a. As discovery later revealed, Homewood and other petitioners

received no corresponding benefit. Respondent does not

treat the stormwater. Affidavit of Charles B. Wilson,

Exhibit 2; D.E. 70, ACC/Raessler Depo., p. 85-87,

Exhibit 2. Rather, Respondent’s only cost was the inspection of a small culvert under a road approximately one

mile downstream from Homewood’s property that took

place every three to five years and cost the city roughly

$150. Deft’s Responses to Pltfs’ First Interrogatories

at 5-6; D.E. 72, ACC/Kevin Gentry Depo., pp. 40-45.

In 2017, Petitioners filed this action challenging the

Ordinance on various grounds. 5 Federal constitutional grounds included, inter alia, a claim that the

Ordinance violated the Takings Clause of the Fifth

Amendment of the United States Constitution. 6

Respondent defended the Ordinance by reference to

the general, indirect, intangible and immeasurable

benefit that property owners received from the

provision of stormwater services. See Deft’s Responses

to Pltfs’ First Interrogatories at 5. See also McLeod v.

Columbia Cnty., 599 S.E.2d 152, 155 (Ga. 2004)

(embracing the indirect benefit theory to support

conclusion that county’s stormwater assessment

constituted “fee” and not “invalid tax”); Homewood

Vill., LLC v. Unified Gov’t of Athens-Clarke Cnty., 739

S.E.2d 316, 318 (Ga. 2013) (reaffirming McLeod).

Respondent could not, however, point to any propertyspecific benefits received by Petitioners and admitted

that it did not seek to measure specific stormwater

impacts of particular property parcels when designing

the stormwater fee. Deft’s Responses to Pltfs’ First

Interrogatories at 3 (“Defendant has never determined

a ‘special benefit or service’ to any particular property,

and it is not required to do so.”).

This challenge was consolidated with a separate proceeding

in which Respondent sought to collect the delinquent stormwater

fees from Homewood Associates, Inc. See Pet. App. 39a.

This case followed proceedings in federal court challenging

the constitutionality of the Ordinance. In those federal proceedings, the lower courts declined to intervene on grounds of

abstention and comity. See Homewood Village, LLC v. Unified

Gov’t of Athens-Clarke Cnty., No. 3:15-CV-23 (CDL), 2016 WL

1306554 (M.D. Ga. Apr. 1, 2016), aff’d, 677 Fed. Appx. 623 (11th

Cir. 2017) (Mem.).

Extensive discovery followed. That discovery revealed

several relevant facts:



Respondent cannot identify the cost of managing any stormwater that emanates from any of

the Petitioners’ properties. (Pls. SOMF 83;

Defts. Resp.)



None of the benefits claimed by Respondent

benefit Petitioners or any individual property

owner any differently than the public generally.

(Pls. SOMF 83; Defts. Resp.)



The above-described credit system was illusory.

None of the petitioners could receive a credit.

D.E. 62, Affidavit of Charles B. Wilson, ACC

Response to Fourth Request for Production ¶ 8

in Case No. SU17CV1134. Indeed, Respondent

could not identify a single instance in which a

credit had ever been awarded. Id. The criteria

governing credits were so opaque that Petitioners’ own expert could not even determine

what a property owner needed to do in order to

receive a credit. D.E. 54, Charles B. Wilson

Affidavit, ¶ 7.



Undeveloped property contributed to Respondent’s costs of maintaining the stormwater

system but still was exempt from the fee. Pet.

App. 10a.



Respondent admitted that it refused to issue a

liquor license to one Petitioner until he paid

Respondent’s claim for outstanding stormwater

fees. Pet. App. 48a, 88a.



Stormwater fees finance several services such

as the cost of sweeping streets and the labor cost

for street workers. Deposition of Kevin Gentry,

D.E. 72. 59:1–66:13.

Perhaps, most critically, discovery also revealed

that “to avoid all liability for stormwater fees

on the properties at issue, [Petitioners] must

return their properties to a pre-developed state.”

Deft’s Responses to Pltfs’ First Interrogatories at 7

(emphasis added).

Following discovery, the trial court granted

Respondent’s motion for summary judgment. Pet.

App. 38a-89a. In relevant part, it rejected Petitioners’

argument that the Ordinance violated the Takings

Clause. The trial court rested its decision mainly on

Justice Kennedy’s opinion in Eastern Enterprises v.

Apfel, 524 U.S. 498 (1998), and read that separate

opinion for the proposition that “the Fifth

Amendment’s Takings Clause is not triggered by a

simple obligation imposed upon a person to pay a

monetary sum from unidentified assets.” It also

rejected Petitioners’ invocation of this Court’s recent

decision in Sheetz v. Cnty. of El Dorado, 601 U.S. 267

(2024). The trial court distinguished Sheetz from this

case because Sheetz involved a permit fee required to

develop property. Likening the assessment here to a

user fee, the trial court emphasized this Court’s

statement in Koontz v. St. Johns River Water Mgmt.

Dist. that “[i]t is beyond dispute that taxes and user

fees are not takings.” 570 U.S. 595, 615 (2013)

(citations and internal quotations omitted).

On appeal, the Supreme Court of Georgia affirmed.

Pet. App. 1a-36a. In relevant part, like the trial court,

it rejected Petitioners’ claim grounded in the federal

Takings Clause. Unlike the trial court, the court

below did not rely on Justice Kennedy’s separate

opinion in Eastern Enterprises. Instead, drawing on

its prior decision in another case challenging the

Ordinance, it held that Petitioners derived a “special

benefit” from the stormwater charge. 7 It also held

that, under this Court’s Takings jurisprudence, “a fee

based on the provision of a service” does not constitute

a taking. Like the trial court, the court below stressed

the above-quoted line from this Court’s decision in

Koontz, omitting any reference to the Court’s

application of the Takings Clause to a monetary

exaction tied to an identifiable real property.

In a footnote, the Georgia Supreme Court recognized

that Petitioners’ argument implicated a question left

open by this Court in Sheetz. Pet. App. 19a-20a n. 11.

Sheetz held that the Takings Clause does not

distinguish between monetary exactions (like impact

fees) that are legislatively imposed and those that are

administratively imposed. 601 U.S. at 270. But

Sheetz expressly left open how this Court’s

Nollan/Dolan framework operates when the monetary

exaction affects a class of properties rather than a

particular development. Id. at 270, 280 (citing Nollan

v. Cal. Coastal Comm’n, 483 U.S. 825 (1987); Dolan v.

City of Tigard, 512 U.S. 374 (1994)). Curiously, while

recognizing that this Court left that issue unresolved

in Sheetz, the court below also concluded, without

explanation, that Sheetz did “not support an argument

that an individualized determination of the amount of

benefit received or cost created by each specific

property is required before a fee may be imposed.” Pet.

App. 19a n. 11.

In that prior decision, the Supreme Court of Georgia held that

the Ordinance did not violate Georgia’s constitutional rules

regulating municipal taxes. See Homewood Vill., LLC v. Unified

Gov’t of Athens-Clarke Cnty., 739 S.E.2d 316 (2013). The prior

case did not involve any federal claims, including the Takings

Clause. D.E. 186, p. 19-26.

REASONS FOR GRANTING THE PETITION

The Takings Clause of the United States

Constitution provides that “nor shall private property

be taken for public use, without just compensation,”

U.S. Const. Amend. V, and regulates states and

localities “through the Fourteenth Amendment,” Tyler

v. Hennepin Cnty., Minn., 598 U.S. 631, 637 (2023); see

also Chi. B. & Q.R. Co. v. City of Chicago, 166 U.S.

226, 236-37, 241 (1897). It “was designed to bar

Government from forcing some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.” Tyler, 598

U.S. at 647. Accord Armstrong v. United States, 364

U.S. 40, 49 (1960); Monongahela Navigation Co. v.

United States, 148 U.S. 312, 325 (1893). Its protections extend beyond outright condemnation and

expropriation of private property and also guard

against indirect ones like certain regulatory and

monetary exactions. Sheetz, 601 U.S. at 274-76, 280;

Koontz, 570 U.S. at 604-06, 611-17; Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.

302, 324-26 (2002); Vill. of Norwood v. Baker, 172 U.S.

269, 279 (1898).

Two terms ago, this Court held in Sheetz that the

guarantees of the Takings Clause do not distinguish

between legislative action and administrative action.

601 U.S. at 270. While resolving that much, Sheetz

left open how the rough proportionality framework

developed in Nollan and Dolan applied to legislative

action directed at classes of property unlike administrative (or other) actions targeting a particular

parcel. Every member of this Court recognized that

Sheetz was leaving open this important question. Id.

at 280; id. at 281 (Sotomayor, J., concurring, joined by

Jackson, J.); id. at 282 (Gorsuch, J., concurring); id. at

284 (Kavanaugh, J., concurring, joined by Kagan and

Jackson, JJ.).

This petition picks up where Sheetz and Koontz left

off. It involves an “as-applied” challenge under the

Takings Clause to a municipal ordinance that imposes

monetary assessments on classes of property. As Part

I explains, the petition presents issues of nationwide

importance, as municipalities around the country

have enacted ordinances imposing similar monetary

burdens on private property. The decision below

deepens disagreements among states’ highest

tribunals and federal circuit courts about how to

analyze these laws under the Takings Clause. As Part

II explains, the petition offers an especially suitable

vehicle for resolving important questions left

unresolved by Sheetz and Koontz.

I. The Petition Raises Questions of National

Importance Explicitly Left Unresolved by

this Court in Sheetz that Continue to

Divide Courts Around the Country.

A. The treatment of user fees under the

Takings Clause requires clarity.

This petition concerns how the framework developed in cases like Koontz and Sheetz extends beyond

pre-development impact fees. Some courts—including

the court below—interpret Koontz as an “argument

stopper.” They employ a formalistic approach to the

Takings inquiry: does a specific case fit cleanly in

Koontz’s pre-development permitting context? If so,

analyze more; if not, property owner loses. But this

is not what the Court said in Koontz (or its prior

decisions). Adopting a very different (and correct)

interpretation of those cases, other lower courts

undertake a functional inquiry.

The difference

between the two approaches directly affects the

outcome of cases. This petition offers a prime chance

to settle that confusion among the lower courts.

Many commentators have noted the difficulty of

differentiating between monetary exactions, triggering the Nollan/Dolan analysis, and certain taxes or

user fees that some scholars characterize as “Per Se

Non-Takings.” Nestor M. Davidson & Timothy M.

Mulvaney, Per Se Non-Takings, 104 Texas L. Rev. 103,

151-52 & nn.275 (2025) (collecting scholarly

commentary); Chirstopher Serkin, Exacting Assessments:

Sheetz and the Problem of Stategraft, 2024 Wis. L.

Rev. 641, 643 (“[T]he risks of illegal development

exactions are no greater than the risks of illegal

special assessments and other similar financing

tools.”). That lack of a clear line “invites a kind of

regulatory arbitrage, encouraging local governments

to impose costs on captive, in-place property owners

instead of developers because of the more deferential

constitutional review.” Serkin, 2024 Wis. L. Rev. at

645. Justice Kagan foresaw this line-drawing problem

in Koontz when she observed that “[t]he boundaries of

the majority’s new rule are uncertain [and] threaten[]

to subject a vast array of land-use regulations, applied

daily in States and localities throughout the country,

to heightened constitutional scrutiny.” Koontz, 570

U.S. at 620 (Kagan, J. dissenting).

While some “property taxes, user fees and similar

laws and regulations imposing financial burdens on

property owners” may be immune from the scrutiny

required by Nollan/Dolan, the government’s mere

label slapped onto a monetary assessment cannot

predetermine the constitutional analysis. Otherwise,

here too, “a State could ‘sidestep the Takings Clause’”

by cleverly characterizing monetary assessment as a

“user fee.” Tyler, 598 U.S. at 638 (citing Phillips v.

Wash. Legal Found., 524 U.S. 156, 167 (1998)). Cf.

Carpenter v. Shaw, 280 U.S. 363, 367-68 (1930)

(“Where a federal right is concerned we are not bound

by the characterization given to a state tax by state

courts or Legislatures, or relieved by it from the duty

of considering the real nature of the tax and its effect

upon the federal right asserted.”). United States v.

Sperry Corp. acknowledged this point: it did not

uncritically accept the Government’s characterization

of the fee in that case as a “user fee.” 493 U.S. 52, 60

(1989). Instead, it scrutinized that characterization by

putting the burden on the party challenging the fee “to

demonstrate that the reality of [the statute] belies its

express language before” a court would conclude “that

the [monetary assessments] are actually takings.” Id.

Accord Eastern Enterprises v. Apfel, 524 U.S. 498, 523

(1998) (plurality opinion). Koontz did likewise when it

acknowledged at some point “a land-use permitting

charge denominated by the government as a ‘tax’

becomes ‘so arbitrary … that it was not the exertion of

taxation but a confiscation of property.’” 570 U.S. at

617 (quoting Brushaber v. Union Pac. R.R. Co., 240

U.S. 1, 24-25 (1916)). Early decisions of this Court

similarly interpreted the Takings Clause to constrain

state monetary assessments when they concern “an

exercise of power determined by considerations not of

the improvement of plaintiff's property, but solely of

the improvement of the property of others,—power,

therefore, arbitrarily exerted, imposing a burden

without a compensating advantage of any kind.”

Myles Salt Co. v. Bd. of Comm’rs of Iberia & St. Mary’s

Drainage Dist., 239 U.S. 478, 485 (1916). 8

See also Village of Norwood, 172 U.S. at 279 (“[T]he exaction

from the owner of private property of the cost of a public

This petition implicates the line that Sperry

recognized but Koontz did not need to demarcate

with precision:

when does a state-denominated

“user fee” become “so arbitrary” that it amounts to a

“confiscation of property.” Cf. Pennell v. City of San

Jose, 485 U.S. 1, 23 (1988) (Scalia, J., concurring in

part and dissenting in part) (“Subsidies for these

groups may well be a good idea, but because of the

operation of the Takings Clause our governmental

system has required them to be applied, in general,

through the process of taxing and spending, where

both economic effects and competing priorities are

more evident.”). Both Chief Justice Roberts and

Justice Gorsuch tested that line during the oral

argument in Sheetz, see Transcript of Oral Argument

at 22–23, 55, Sheetz v. Cnty. of El Dorado, 601 U.S.

267 (Jan. 9, 2024) (No. 22-1074), but the Court’s

opinion did not resolve the questions raised by both

Justices. Here too, this petition picks up where Sheetz

and Koontz left off.

While this Court has never expressly addressed this

issue, its jurisprudence hints that Nollan/Dolan could

extend beyond the permitting context. In Cedar Point

Nursery v. Hassid, the Court determined that the

Nollan/Dolan framework applied to government

health and safety inspection regimes. 594 U.S. 139,

improvement in substantial excess of the special benefits

accruing to him is, to the extent of such excess, a taking, under

the guise of taxation, of private property for public use without

just compensation.”); Dane v. Jackson, 256 U.S. 589, 599 (1921)

(recognizing that a state tax can violate the Constitution “where

it proposes, or clearly results in, such flagrant and palpable

inequality between the burden imposed and the benefit received,

as to amount to the arbitrary taking of property without

compensation”); Houck v. Little River Dist., 239 U.S. 254, 262

(1915) (recognizing constitutional limit on state exaction power).

161 (2021) (explaining that the Nollan/Dolan test

applies to any example of the government conditioning

a benefit on access to land for health and safety

purposes).

Likewise, commentators continue to

suggest that Koontz can be read expansively. 9

Lacking clearer guidance from this Court, lower

courts have adopted divergent approaches when

examining user fees under the Takings Clause. The

Idaho Supreme Court’s decision in Hill-Vu Mobile

Home Park v. City of Pocatello, clashes most directly

with the decision below. 402 P.3d 1041 (Idaho 2017).

Like this case, Hill-Vu involved a challenge under the

Takings Clause to a city’s municipal and water sewer

charge. Reversing summary judgment for the city,

Idaho’s highest court rejected the city’s argument that

its sewer charge (specifically its “return on investment” assessment) was sheltered from constitutional

scrutiny because it qualified as a user fee. Tracking

this Court’s decision in Sperry, the unanimous court in

Hill-Vu reasoned that “a ‘user fee’ is a taking if it is

not a reasonable fee imposed for the reimbursement of

costs of government services.” Id. at 1050.

See, e.g., Lee Anne Fennell & Timothy M. Mulvaney, The

Exactions Illusion: Sheetz’s Missing Dissent, 135 YALE L.J. 1143,

1203 (Feb. 28, 2026) (“A broad reading of Koontz’s notion of

monetary impositions linked to specific parcels of land could play

this role, drawing within the compass of exactions scrutiny not

only impact fees like those in Sheetz but also any legislative

requirement that costs landowners money in connection with

their particular chunk of land.”); Lee Anne Fennell & Edwardo

M. Peñalver, Exactions Creep, 2013 Supreme Ct. Rev. 287, 300

(2013) (“But even in the absence of such explicit bargaining, most

if not all land use law can be framed as deal making given that

the laws are conditional in nature and subject to frequent and

fine-grained revision.”).

Similarly, the North Carolina Supreme Court’s

decision in Anderson Creek Partners, L.P. v. Cnty. of

Harnett did not immunize a monetary assessment

from scrutiny under the Takings Clause simply

because the county deemed it a “use fee.” 876 S.E.2d

476 (N.C. 2022). Rather, that court scrutinized that

characterization:

[T]he challenged “capacity use” fees are

intended to “cover the cost of expanding the

infrastructure of the water and sewer system

to accommodate the new development,” a

description that falls squarely within the

definition of “impact fee”… The fees at issue

in this case are not water and sewer service

fees, paid by customers at a fixed rate in

accordance with their monthly metered water

and sewer usage for the purpose of paying for

the service that they used. In addition, the

challenged fees are not “tapon fees” paid at

the time that individual lots are connected to

the County’s water and sewer system.

Instead, the fees at issue in this case are

intended to provide the County with a

contribution toward the cost of expanding its

water and sewer infrastructure to account for

the additional customers that will be added as

a result of the developer’s development.

Id. at 489. Thus, North Carolina undertakes a

functional analysis to determine if a given fee

constitutes the type of exaction befitting heightened

scrutiny.

Like the North Carolina Supreme Court, the Ninth

Circuit similarly employs a functional approach. In

Zeyen v. Bonneville Joint Dist., #93, the panel

considered whether a supplemental education services

fee constituted a taking. 114 F.4th 1129 (9th Cir.

2024). According to the court, because “each of the fees

charged bears a reasonable estimation of providing the

related benefit,” the charges did not constitute an

exaction. See id. at 1147. This determination was

based, in part, on this Court’s decision in Sperry where

the Court included a requirement that excessive costs

might play a role in the categorization of a charge

as something other than user fee. 10 Like the Idaho

Supreme Court in Hill-Vu, but unlike the court below,

the Ninth Circuit’s approach recognizes that the mere

label of “user fee” does not immunize a monetary

assessment from constitutional scrutiny under the

Takings Clause.

The Sixth Circuit takes the same approach.

Judge Murphy’s majority opinion in Knight v.

Metropolitan Gov’t of Nashville & Davidson Cnty.

Tennessee is instructive. 67 F.4th 816 (6th Cir. 2023).

Knight reasoned that this Court’s unconstitutional

conditions doctrine—not the general “use restrictions”

balancing test set out in Penn Central Transp. Co. v.

City of New York, 438 U.S. 104 (1978)—applied to a

city sidewalk ordinance. The fee at issue in Knight

required would-be land developers to either grant an

easement on which they would build a sidewalk or pay

an “in lieu” fee that the city would use for sidewalk

construction elsewhere. 67 F.4th at 818. The parties

disagreed over the type of analysis courts needed to

perform on permitting fees of this character. Id.

Specifically, the plaintiffs argued that the case

required a Nollan/Dolan analysis while the city said

Some lower courts, not directly relevant under this Court’s

Rule 10, have embraced a similar view. See, e.g., Page v. City of

Wyandotte, No. 339008, 2018 WL 6331339 at *6 (Mich. Ct. App.

Dec. 4, 2018).

the deferential Penn Central balancing test applied.

Id. Importantly, the court, applying the lessons

of Koontz, dispatched the city’s argument that the

sidewalk ordinance could evade Nollan/Dolan review

entirely. Id. at 828. Instead, the Sixth Circuit

interpreted Koontz as applying to in-lieu fees because

they “resemble other types of land use exactions.” Id.

(internal quotations omitted). In other words, the

court realized that it is the overall character of a fee,

not its description, that determines the level of

scrutiny. In the Sixth Circuit’s view, the fee “applied

to [plaintiffs] not because they owned lots in Nashville;

it applied to them because they sought to build family

homes on those lots.” Id. at 827.

Unlike the North Carolina Supreme Court, the

Idaho Supreme Court, the Ninth Circuit, and the Sixth

Circuit, Georgia’s highest court undertook a categorical, not a functional, analysis. It simply classified the

stormwater fees at issue as one “based on the provision

of a service,” cited Koontz, and stopped there. 11 Yet,

because the record here shows that the stormwater

fee was used to pay for broad stormwater system

improvements, not “charges assessed for the use of

particular item or facility,” Anderson Creek, 876

S.E.2d at 488, review is necessary to create a uniform

understanding over which fees trigger the scrutiny

demanded by Nollan and Dolan.

Under the “functional” approach adopted by other

courts around the country, the decision below would

have come out differently:

Some courts, not directly relevant under this Court’s Rule

10, have endorsed a similarly crabbed view. See, e.g., City of

Gridley v. Superior Ct., 104 Cal. App. 5th 1201, 1212-16 (Cal. Ct.

App. 2024).

• First, in Idaho, Respondent’s mere label of the

assessment as a “user fee” would not have

ended the argument because there was at least

a triable issue over whether it was “a

reasonable fee imposed for the reimbursement

of the costs of government services.” Hill-Vu,

402 P.3d at 1050.

• Second, in the Ninth Circuit, the court would

have found that the fee here burdens the

property interests of landowners beyond a mere

monetary contribution because Respondent, by

its own admission, requires payment as a

condition of property development, with the

owner of developed land avoiding the Ordinance

if he or she razes the property. In other words,

if the municipality demanded the property

owner raze his development instead of allowing

the “in lieu of” fee based on the property’s

impact on the overall stormwater system, the

Ordinance would be a taking under the Ninth

Circuit’s reading of this Court’s precedent. See

Koontz, 570 U.S. at 612 (“[a] predicate for any

unconstitutional conditions claim is that the

government could not have conditionally ordered

the person asserting the claim to do what it

attempted to pressure that person into doing”).

• Third, in the Sixth Circuit, the fee would apply

only based on the class of the property and the

development of the property itself, since

Respondent’s Ordinance does not apply to

undeveloped property within the county.

Justice Gorsuch in Sheetz has suggested that these

types of class-based fees might fall within the scope of

the Court’s heightened scrutiny. See Sheetz, 601 U.S.

at 904 (Gorsuch, J. concurring). This petition presents

the opportunity to elaborate on the concerns that

Justice Gorsuch and others identified. As noted above,

in this case, Respondent conceded that the Ordinance

allows parties to avoid the fee if, and only if, they

return their property to an undeveloped state. See

supra at 10. The Constitution does not allow the state

to foist this choice onto property owners. See Horne v.

Dep’t of Agric., 576 U.S. 350, 365 (2015); Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419,

439 n. 17 (1982).

A very recent district court decision illustrates the

outcome-determinative impact of the choice between

the functional approach and the formalist approach.

See Crossroads Grp., LLC v. City of Cleveland Heights,

No. 1:23-cv-184, 2026 WL 233966 (N.D. Ohio Jan. 29,

2026). Crossroads Group involved a challenge under

the Takings Clause to a city’s annual residential

occupancy fee. A group of property owners not residing within the city attacked a particular element of

the fee imposed specifically on them. Like Respondent

here, the City-defendant in Crossroads Group

defended the fee because it constituted a “user fee”

and, thus under the City’s reading of Koontz, was

immune from challenge under the Takings Clause.

Id. at *8. Tracking the Sixth Circuit in Knight, the

district court rejected the city’s categorical argument,

employed the Nollan/Dolan analysis to scrutinize the

fee, and entered summary judgment for the property

owners on their Takings Claim. Id. at *9-11. The

diametrically opposed outcomes in Crossroads Group

(applying Nollan/Dolan and granting summary judgment to the property owners) and this case (declining

to apply Nollan/Dolan and granting summary judgment to the government) shows the outcomedeterminative effect of the choice between the

functional approach and the categorical approach.

Other district court decisions similarly illustrate the

confusion over how to apply Koontz outside the

permitting context. For example, in a challenge to an

emergency funding bill passed by the District of

Columbia to offset the end of federal dollars for the

District’s health care exchange, the plaintiff health

insurer association brought claims under the Takings

Clause. See Am. Council of Life Ins. v. Dist. of

Columbia Health Benefit Exch. Auth., 73 F. Supp. 3d

65 (D.D.C. 2014) vacated on other grounds 815 F.3d 17

(D.C. Cir. 2016). The court wrestled with the thennascent Koontz guidance that appeared to extend

the scope of the unconstitutional conditions doctrine

beyond physical intrusions.

However, the court

struggled with an intractable question—does Koontz

apply where no real property is at issue? The court

remarked:

Even though the Koontz majority stressed

throughout its opinion that the linkage

between the monetary exaction and real

property was critical to triggering the

Dolan/Nollan per se takings analysis, this

emphasis was confusingly undermined by the

majority’s footnote stating that “this case

does not implicate the question whether

monetary exactions must be tied to a particular parcel of land in order to constitute a

taking.” Consequently, the dissent cautioned

that “[t]he boundaries of the majority’s new

rule are uncertain.” These are the boundaries

tested in the instant case, where the HC

Assessment is a monetary exaction that is not

linked either to any real estate parcel or other

“specific, identifiable property interest.”

Am. Council of Life Ins., at 97-98 (cleaned up).

Ultimately the court reasoned that the plaintiff’s

alleged property interest was not sufficient to sustain

a Takings claim. Id. at 98. See also Santiago-Ramos

v. Autoridad de Energia Electrica de P.R., No. 11-1987

(JAG/SCC), 2015 WL 846750, at *3-4 (D. P.R. Feb. 26,

2015) (rejecting Takings challenge to utility’s rate-fee

scheme and reasoning that the link between the

payment and a “specific property interest apart from

the money itself” served as a key differentiating factor

between the actionable payments in Koontz and the

instant rate fees).

This Petition provides the Court with an opportunity to clarify how lower courts should examine

these regulations that operate like permit conditions

but lack only the same temporal element. The

exaction here is inextricably linked to a specific parcel

of real property. As admitted in discovery, Respondent

effectively created a condition on that land: pay

the Ordinance fee or raze your development to

incur no charge. See supra at 10. If the fee were

imposed prior to development, instead of after, it

would require the government to prove an essential

nexus and rough proportionality. But the slight

temporal wrinkle here—at least according to the

Supreme Court of Georgia—allows the fee to wriggle

free from constitutional scrutiny. Granting this

Petition would therefore instruct lower courts how to

differentiate between land use exactions and other

fees imposed by the government.

In sum, here, a 1-3-1 split rages among states’

highest tribunals and federal appellate courts over

how the Takings Clause requires courts to examine

the constitutionality of user fees.

B. Lower courts inconsistently apply this

Court’s exactions precedents.

The formalist/functionalist split aside, even

those courts that do consider the merits of challenges

to takings have struggled to reach consensus.

Throughout its Takings Clause jurisprudence, the

Court has wrestled with a tension between protecting

individuals from governmental overreach into property rights and deference to local regulation of land

within a sovereign’s territorial boundaries. Sheetz

recently resolved one aspect of the tension and

expanded the scope of government action subject to

Takings scrutiny. Now that monetary assessments in

legislative enactments are not categorically immune

from heightened scrutiny, lower courts require

additional clarity on the framework guiding the

constitutional analysis.

Absent that clarity, the decision below deepens

confusion that persists among the states’ highest

tribunals. Viewing this case as one involving a simple

service fee, Georgia’s highest court remarked, “a fee

based on the provision of a service—even assuming it

is not based on fully voluntary participation” does not

constitute a taking. Pet. App. 19a. It also leaned on

oft-quoted language from Koontz that “taxes” and

“user fees” are not takings protected by the Fifth

Amendment. Even then, the lower court decided that

unless the fee operated directly as a condition to a

permit, the Takings Clause did not apply. See id.

(“Notably, Koontz dealt with the same type of charge

raised in Dolan and Sheetz—a monetary or propertyrelated condition that a government entity imposes as

a requirement for a permit—and Koontz took pains to

differentiate that kind of charge from a tax or user

fee.”).

Some courts, including Maryland and New York’s

highest courts, share this categorical view. For

example, in Dabbs v. Anne Arundel Cnty., 182 A.3d

798 (Md. 2018), the Maryland Court of Appeals held

that a generally applicable water impact fee was not

subject to the Nollan/Dolan test. Id. at 811. That

decision was based, in part, on the fact that the impact

fee was “predetermined, based on a specific monetary

schedule, and appli[ed] to any person wishing to

develop property in the district.” Id. The court also

gave weight to the fact that there was “no determination as to whether an actual permit will issue

to a payor individual with a property interest.” For

those reasons, Maryland’s highest court decided that

generally applicable fees fall outside the scope of this

Court’s rough proportionality and nexus analysis. 12

While Dabbs predates Sheetz, a very recent decision

by New York’s highest court endorses this view. See

Coalition for Fairness in SoHo & NoHo, Inc. v. City of

New York, --N.E.3d--, No. 112, 2026 WL 88133 (N.Y.

Jan. 13, 2026). Coalition for Fairness involved a

challenge under the Takings Clause to a New York

City initiative to allow artist occupants of certain “loft”

buildings to convert their restricted units into

unrestricted units if they paid a one-time fee into an

arts fund. A divided New York Court of Appeals

rejected this claim, reasoning that the initiative did

not burden a constitutionally protected property

This same logic led lower courts in Washington, Arizona, and

California to conclude that the Nollan/Dolan framework did not

apply to such fees. See Douglass Props. II, LLC v. City of

Olympia, 479 P.3d 1200 (Wash Ct. App. 2021); Am. Furniture

Warehouse Co. v. Town of Gilbert, 425 P.3d 1099 (Ariz. Ct. App.

2018); Bldg. Indus. Assoc.-Bay Area v. City of Oakland, 289 F.

Supp. 3d 1056 (N.D. Cal. 2018).

interest and that the fee did not represent an “in lieu

of fee” under Koontz. Id. at *6-8. Rejecting this

crabbed view of the Takings Clause, the dissent cited

a slew of post-Koontz state court decisions for the

proposition that the Takings Clause’s protections

against monetary exactions were not limited to the

precise fees or demands at issue in Koontz. Id. at *16.

Clashing with the results in Maryland and New

York (and tracking the dissent in Coalition for

Fairness), the Supreme Court of North Carolina

expressly rejected the reasoning undergirding Dabbs

and other cases. See Anderson Creek Partners, L.P. v.

County of Harnett, 876 S.E.2d 476 (N.C. 2022). In the

Anderson court’s view, Dabbs focused mainly on the

fact the fees were not a prerequisite to obtain a permit

of any particular kind. Rejecting that approach, North

Carolina’s highest court zeroed in on the fundamental

elements of claim that should garner a Takings Clause

analysis: “the direct link between the government’s

demand and a specific parcel of property,” and the

resulting “diminish[ment] without justification the

value of the property.” Id. at 487. That is why the

Supreme Court of North Carolina examined the fees

as a taking—it diminished the value of the property

through the monetary assessment extracted by the

government. 13

In sum, the decision below implicates a 3-1 split

among states’ highest tribunals over whether the

Nollan/Dolan framework applies to monetary

At least one federal court has reached a similar conclusion.

In Colorado, a district court allowed takings claims to proceed

over the defendant’s objection that uniformly imposed fees cannot

constitute a taking. GRCO LLC v. Granby Ranch Metro. Dist.,

No. 23-cv-1351-RMR-STV, 2023 WL 9104819 (D. Colo. Dec. 21,

2023), R&R adopted, 2024 WL 778032 (D. Colo. Feb. 26, 2024).

exactions beyond the precise factual context presented

in Koontz.

II. The Petition Presents an Especially Good

Vehicle for Resolving the Questions.

For four reasons, this petition offers an especially

good vehicle for answering the nationally significant

questions left open by Sheetz and Koontz.

First, it cleanly presents the questions following

final judgment. The trial judge considered and

(erroneously) rejected the federal constitutional

challenge. The Supreme Court of Georgia did likewise

and issued its decision following the trial court’s

entry of summary judgment in Respondent’s favor.

Pet. App. 57a–60a. Thus, the case does not involve

interlocutory review or other non-final considerations

that might counsel further percolation.

Second, the case presents a fully developed record to

consider the Takings issue. The petition comes to this

Court following extensive discovery and resolution at

the summary judgment stage. Pet. App. 39a. That

record offers this Court the opportunity to consider

fully the underlying cost-benefit analysis that might

bear on the Takings analysis.

Third, this petition offers the best, perhaps the only,

opportunity for a federal court to opine on the federal

constitutional issue.

Doctrines like comity and

abstention can preclude lower federal courts from

considering federal constitutional challenges to local

fee and taxation schemes. 17A Wright & Miller,

Federal Practice and Procedure § 4244 (rev. ed. Sept.

2025). Even when those federal constitutional challenges are meritorious, lower federal courts stay

their hand because state courts should hear those

challenges in the first instance. See 28 U.S.C. § 1341.

Justifying this federalist deference is a recognition

that this Court supplies a sufficient safeguard against

state violations of federal constitutional rights. See

Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S.

293, 298 (1943); Matthews v. Rodgers, 284 U.S. 521,

525-26 (1932). Under such circumstances, this Court’s

review of state-court rulings like the decision below

offers the only opportunity to ensure review of the

federal constitutional questions by independent federal judges disconnected from the state or local

government whose monetary exaction is challenged. 14

This procedural history of this case captures this third

consideration. Prior proceedings sought to challenge the constitutionality of the Athens-Clarke County fee system in lower

federal court. Both at the district and appellate levels, federal

courts declined to intervene – not because they disagreed with

the merits of the Takings argument but simply out of deference

to the state judicial system’s prerogative to consider matters in

the first instance. Homewood Vill., LLC v. Unified Gov’t of

Athens-Clarke Cnty., No. 3:15-CV-23 (CDL), 2016 WL 1306554

(M.D. Ga. Apr. 1, 2016), aff’d, 677 Fed. Appx. 623 (11th Cir. 2017)

(Mem.). That state-level review has now occurred, leaving this

Court as the sole remaining institution in the federal judiciary

able to opine on the nationally important question of federal

constitutional law implicated by the proceedings below. This

Court’s review ensures meaningful federal consideration of the

constitutionality of state schemes such as the one here. Absent

that review, state-court decisions about the federal constitutional

rights at stake in these cases will not undergo meaningful

scrutiny by politically independent federal judges, and litigants

will not have the protection of their federal rights in federal court.

Cf. England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411 (1964)

(the benefit of the district court’s role in constructing the record

can determine a party’s federal rights: “The possibility of

appellate review by this Court of a state court determination may

not be substituted, against a party’s wishes, for his right to

litigate his federal claims fully in the federal courts.”); Colo. River

Water Conservation Dist. v. United States, 424 U.S. 800, 817

(1976) (district courts have a virtually unflagging obligation to

Finally, this petition complements issues presented

to this Court in another pending case. Presently

before this Court is a petition in Sheetz following this

Court’s remand. See Petition in Case No. 25-958

(Sheetz v. Cnty. of El Dorado), docketed Feb. 11, 2026

(hereinafter Sheetz II). Like this case, Sheetz II

involves questions concerning application of the

Nollan/Dolan framework in the context of a

legislative enactment. Unlike this case, Sheetz II does

not involve a fee imposed on already-developed

property where the property owner can avoid the fee

only by returning the property to its pre-development

state. Thus, this Court may choose to grant both

petitions to consider both the common and distinct

questions, as it has done in the past. See Students for

Fair Admissions, Inc. v. President & Fellows of

Harvard Coll., 600 U.S. 181 (2003) (initially holding

petition then later granting with another to consider

cases jointly); ZF Autos. US, Inc. v. Luxshare Ltd., 596

U.S. 619 (2022) (same). Alternatively, at a minimum,

this Court should hold this petition pending its

resolution of Sheetz II.

decide cases subject to their jurisdiction.”); Sprint Commc’ns, Inc.

v. Jacobs, 571 U.S. 69 (2013) (“Federal courts, … have ‘no more

right to decline the exercise of jurisdiction which is given, than to

usurp that which is not given.’” (citing Cohens v. Virginia, 6

Wheat. 264, 404 (1821).)

CONCLUSION

Nearly 150 years ago, this Court warned that

[i]llegitimate and unconstitutional practices

get their first footing in that way, namely, by

silent approaches and slight deviations from

legal modes of procedure.

This can be

obviated only by adhering to the rule that

constitutional provisions for the security of

person and property should be liberally

construed. A close and literal construction

deprives them of half their efficacy, and leads

to a gradual depreciation of the right, as if it

consisted more in sound than in substance. It

is the duty of courts to be watchful for the

constitutional rights of the citizen, and

against any stealthy encroachments thereon.

Their motto should be obsta principiis.

Boyd v. United States, 116 U.S. 616, 635 (1886). While

Boyd concerned other civil liberties, its warning

contains a more general lesson applicable to the

Takings Clause. The lower court’s crabbed construction of that clause represents such a “gradual

depreciation” against which Boyd warned and deepens

disagreements over how the Takings Clause applies

to user fees and other monetary assessments outside

the predevelopment permitting context. Again, by

Respondent’s own admission, “to avoid all liability

for stormwater fees on the properties at issue,

[Petitioners] must return their properties to a

pre-developed state.” Deft’s Responses to Pltfs’ First

Interrogatories at 7 (emphasis added). That “stealthy

encroachment” misreads Koontz to offer a permanent

“green light” to any monetary assessment outside the

permitting context that the state conveniently

happens to label a “user fee.” The Takings Clause does

not allow the government to impose that burden on

developed property owners.

For the foregoing reasons, the petition for a writ of

certiorari should be granted or, in the alternative, held

for Sheetz II.

Respectfully submitted,

JOSH BELINFANTE

ALEXANDER DENTON

MILES C. SKEDSVOLD

ROBBINS ALLOY

BELINFANTE

LITTLEFIELD LLC

500 14th Street

Atlanta, GA 30318

(678) 701-9381

GARY GERRARD

GARY GERRARD, P.A.

219 Gilmer St.

P.O. Box 30648

Lexington, GA 30648

(706) 743-3080

PETER B. RUTLEDGE

Counsel of Record

SAMUEL E. MARTICKE

ANNIE M. MCCLELLAN

KATHLEEN E. FINK

TAFT STETTINIUS &

HOLLISTER LLP

3343 Peachtree Road, NE

1600 Atlanta Financial Center

Atlanta, GA 30326

(404) 233-7000

Brutledge@taftlaw.com

Counsel for Petitioners

March 13, 2026

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Opinion, Supreme Court of

Georgia (October 15, 2025) ..................................

APPENDIX B: Order Denying Motion for

Reconsideration, Supreme Court of Georgia

(November 13, 2025)............................................

37a

APPENDIX C: Order, Superior Court of AthensClarke County, Georgia (July 9, 2024) ...............

38a

APPENDIX D: Final Order, Superior Court of

Athens-Clarke County, Georgia (November 4,

2024) .....................................................................

90a

APPENDIX E: Constitution of the United

States, Amendment V .........................................

96a

APPENDIX F: Athens-Clarke County, Ga. Code

of Ordinances, ch. 5-4 ..........................................

97a

APPENDIX G: Athens-Clarke County, Ga. Code

of Ordinances, ch. 5-5 .......................................... 163a

APPENDIX A

IN THE SUPREME COURT OF GEORGIA

————

S25A0555

————

HOMEWOOD ASSOCIATES, INC. et al.

UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY.

————

Decided: October 15, 2025

————

WARREN, Presiding Justice.

This is the second challenge brought by Homewood

Village, LLC in this Court alleging that the stormwater

utility charge imposed by the Unified Government of

Athens-Clarke County (“ACC”) is an unconstitutional

tax.1 In the first case, this Court held that ACC’s

stormwater utility charge is “a fee and not a tax.”

See Homewood Village, LLC v. Unified Government of

Athens-Clarke County, 292 Ga. 514 (2013) (Homewood

I). That holding squarely applies to Appellants’ claim

in this case that ACC’s stormwater utility charge is a

tax that violates the taxation uniformity provision of

As explained further below, this charge is established by the

Stormwater Management and Stormwater Utility Ordinances

adopted by ACC in 2004. See Stormwater Management Ordinance adopted June 1, 2004 (codified as amended at AthensClarke County, Ga. Code of Ordinances ch. 5-4, §§ 5-4-1 to 5-4-27);

Stormwater Utility Ordinance adopted Dec. 7, 2004 (codified as

amended at Athens-Clarke County, Ga. Code of Ordinances ch.

5-5, §§ 5-5-1 to 5-5-12).

Georgia’s Constitution, which requires that “all taxation shall be uniform.” Ga. Const. of 1983, Art. VII,

Sec. I, Par. III(a). And we decline the invitation

extended by Homewood Village and the other appellants in this case to overrule Homewood I.2 Because we

conclude that the stormwater utility charge imposed

by ACC is not a tax, we also conclude that the taxation

uniformity provision does not apply to it.

We also reject the additional arguments made by

Homewood Village and the other appellants that the

stormwater utility charge constitutes an unconstitutional taking under the Georgia and United States

Constitutions and that the trial court failed to properly

apply the summary judgment standard. Thus, we affirm

the trial court’s grant of summary judgment to ACC.

1. (a) The following facts are undisputed. Pursuant

to the Clean Water Act of 1972, 33 USC § 1251 et seq.,

the Environmental Protection Agency (“EPA”) regulates

nonpoint source pollution, including stormwater

runoff, to “provide[ ] for the protection and propagation

of fish, shellfish, and wildlife and . . . for recreation in

and on the water.” 33 USC § 1251. ACC operates a

municipal storm sewer system, which collects, transports,

and discharges stormwater runoff. Stormwater runoff

is often heavily polluted, so the Clean Water Act and

its implementing regulations require operators of

separate storm sewer systems like ACC to obtain a

Whereas ACC and Homewood Village were the only parties

involved in Homewood I, Homewood Village is joined in this case

by eight other parties who were not part of the first case,

including Homewood Associates, Inc. Specifically, Appellants

are four corporations, four limited liability companies, and one

individual, all of whom own developed commercial or residential

properties and are subject to the stormwater utility charge. We

refer to these parties collectively as Appellants.

National Pollutant Discharge Elimination System

(“NPDES”) permit before discharging stormwater runoff

into navigable waters. These permits require local

governments to minimize the pollutants in stormwater

runoff to the maximum extent practicable. ACC is

required to maintain an NPDES permit for nonpoint

source pollution discharged into open waterways in

the County.

From approximately 1992 to 2005, ACC funded its

stormwater management program from general revenue

funds—that is, through property taxes. In 2003, the

federal government imposed a requirement on ACC

to meet stricter guidelines for the management of

stormwater runoff. ACC began to investigate the

possibility of establishing a stormwater utility with

a fee to fund “the existing and future stormwater

management needs” of the County. See Ga. Const. of

1983, Art. IX, Sec. II, Par. III(a)(6) (authorizing local

governments to “provide the following services: ...

Storm water and sewage collection and disposal

systems”), (d) (“[T]he General Assembly shall act upon

the subject matters listed in subparagraph (a) of this

Paragraph only by general law.”).

On June 1, 2004, ACC adopted a Stormwater

Management Ordinance to regulate stormwater runoff

in the County. See Stormwater Management Ordinance

adopted June 1, 2004 (codified as amended at AthensClarke County, Ga. Code of Ordinances ch. 5-4, §§ 5-41 to 5-4-27). Later that month, this Court issued its

decision in McLeod v. Columbia County, 278 Ga. 242

(2004), which involved a Columbia County stormwatermanagement ordinance that created a stormwater

utility funded by monthly stormwater charges paid

by owners of developed property based on the amount

of impervious surface area on their property. See

McLeod, 278 Ga. at 242. This Court held, among other

things, that the Columbia County stormwater utility

charge was not a tax and therefore rejected the

property owners’ claim that the ordinance imposed a

non-uniform tax in violation of the taxation uniformity

provision. See id. at 243–45. Six months later, in

December 2004, ACC adopted a Stormwater Utility

Ordinance that created a stormwater utility and

established a funding formula, a fee structure, and an

enterprise fund to pay for ACC’s stormwater management program, including anticipated and unanticipated

future capital needs. See Stormwater Utility Ordinance

adopted Dec. 7, 2004 (codified as amended at AthensClarke County, Ga. Code of Ordinances ch. 5-5, §§ 5-51 to 5-5-12).

ACC’s Stormwater Utility Ordinance contains

detailed findings, including the following:

Improper management of stormwater runoff

may cause erosion of lands, threaten businesses and residences, and other facilities

with water damage and may create environmental damage to the rivers, streams and

other bodies of water within and adjacent to

[the County]. ...

Proper management of stormwater is a key

element of having clean water with adequate

assimilative capacity for treated wastewater

discharges and adequate potable drinking

water that are essential support existing and

future development in [ACC]. ...

It is practical and equitable to allocate the

cost of stormwater management among the

owners of properties in proportion to the longterm demands the properties owned impose

on [ACC’s] stormwater management services,

systems and facilities which render or result

in services and benefits to such properties and

the owners thereof. ...

A schedule of stormwater utility service

charges based in part on the area of impervious surface located on each property is the

most appropriate and equitable means of

allocating the cost of stormwater management

services, systems and facilities throughout

[the County]. ...

The area of impervious surfaces on each

property is the most important factor influencing the cost of the stormwater management

services, systems and facilities provided by

[ACC] or to be provided by [ACC] in the

future, and the area of impervious surfaces on

each property is therefore the most appropriate parameter for calculating a periodic

stormwater service charge.

ACC Code of Ordinances § 5-5-2(c), (h), (r), (u), (w).

The Stormwater Utility Ordinance imposes a stormwater utility charge, which the ordinance calls a “fee,”

on all owners of developed property in the County.

The stormwater utility charge has three components:

(1) a “base charge,” (2) a “quantity charge,” and (3) a

“quality charge.” The base charge is intended to cover

the annual administrative and management costs of

the stormwater utility. The quantity charge is based on

the amount of impervious surface area on the property

and its land-use classification, which affect the volume

and rate of stormwater runoff. The quality charge is

based on the water quality land-use classification of

the property, which reflects differences in the level of

services that ACC must provide to treat or compensate

for the types of pollutants contained in stormwater

runoff from different types of properties.

The Stormwater Utility Ordinance exempts from

the stormwater utility charge certain developed properties, including public and private roadways and

sidewalks. In addition, “credits” are available to

owners of developed property to reduce the quantity

charge and the quality charge components of the

stormwater utility charge for parcels of property with

onsite stormwater management and treatment facilities

that meet certain requirements. Owners of undeveloped

property do not pay ACC’s stormwater utility charge.

Stormwater utility charges generate revenue to pay

for flood-prevention measures, minimization of water

pollution, and compliance with federal law. Funds not

expended in the year calculated and collected are

placed in a capital reserve account that the County

maintains and manages to address needs that arise,

such as repair, construction, and replacement of

systems and facilities related to the stormwater utility.

(b) The procedural history of this case is extensive.

In 2010, ACC filed a complaint against appellant

Homewood Village to recover years of delinquent

stormwater utility charges. Homewood Village filed a

counterclaim for a declaratory judgment that the

stormwater utility charge was unconstitutional, because

the charge was a tax rather than a fee, the tax was not

uniform, and the charge therefore violated the taxation

uniformity provision of the Georgia Constitution. The

trial court granted summary judgment to ACC on

Homewood Village’s taxation uniformity provision

claim, and Homewood Village appealed. In 2013,

this Court held, among other things, that ACC’s

stormwater utility charge is a fee rather than a tax

and that the trial court therefore correctly granted

summary judgment to ACC on Homewood Village’s

taxation uniformity provision claim. See Homewood

Village I, 292 Ga. at 514–15. Homewood Village paid

the judgment for delinquent stormwater utility fees.

Several of the appellants in this case, including

Homewood Village, then filed a complaint in federal

district court alleging that ACC’s stormwater utility

charge is an unconstitutional tax, and that by

collecting it, ACC was violating their rights under the

Takings Clause of the Fifth Amendment and the Due

Process and Equal Protection Clauses of the Fourteenth

Amendment of the United States Constitution. Citing

comity concerns, the district court abstained from

reaching the merits of the constitutional claims and

instead dismissed the case without prejudice. See

Homewood Village, LLC v. Unified Gov’t of AthensClarke County, No. 3:15-CV-23, 2016 WL 1306554, at

*3 (MD Ga. Apr. 1, 2016). That decision was later

affirmed. See Homewood Village, LLC v. Unified Gov’t

of Athens-Clarke County, 677 FApp’x 623, 624–25

(11th Cir. 2017).

On April 1, 2016—the same day that the district

court dismissed the federal lawsuit—ACC filed a

lawsuit against Homewood Associates, Inc., in the

Magistrate Court of Athens-Clarke County to recover

delinquent stormwater utility charges. Several months

later, Homewood Associates filed an answer and

counterclaim for declaratory judgment and injunctive

relief. Homewood Associates then moved to transfer

the case to superior court; ACC consented; and the case

was transferred to the Superior Court of AthensClarke County (the “trial court”). In December 2017,

Appellants (other than Homewood Associates but

including Homewood Village) filed a complaint in the

trial court for damages and declaratory and injunctive

relief against ACC asserting, among other things, that

ACC’s stormwater utility charge violates their rights

under the taxation uniformity provision of the Georgia

Constitution and the Takings Clause of the Fifth

Amendment. Appellants and ACC jointly moved to

consolidate the December 2017 lawsuit against ACC

with ACC’s lawsuit against Homewood Associates that

had been transferred to the trial court, and the trial

court consolidated the two cases for the purposes of

discovery and trial. Several rounds of discovery took

place from 2018 to 2022.

In July 2022, ACC filed a motion for summary

judgment, and Appellants filed a motion for partial

summary judgment. Homewood Associates later filed

an amended counterclaim, and on the same day, Appellants (with the exception of Homewood Associates),

filed a First Amended Complaint. The filings added

claims seeking a declaratory judgment that, among

other things, all sums collected by ACC in excess of the

costs of the stormwater utility constitute uncompensated takings in violation of the Takings Clauses of

the Fifth Amendment and the Georgia Constitution.

In January 2023, ACC filed a supplemental motion

for summary judgment, and Appellants later filed a

second motion for partial summary judgment and a

motion to strike the affidavit of Hector Cyre, one of

ACC’s expert witnesses.

In July 2024, the trial court entered an order

granting ACC’s motion for summary judgment and

denying Appellants’ motion for partial summary

judgment. Because Appellants ultimately did not

dispute ACC’s mathematical calculations of the fees

owed, the trial court entered a Final Order requiring

Appellants to pay ACC sums ranging from less than

$1,000 to more than $200,000 each. Appellants filed a

timely notice of appeal.3

2. Appellants contend that ACC’s stormwater

utility charge is a non-uniform tax and therefore the

ACC ordinances imposing it violate the taxation

uniformity provision of the Georgia Constitution. See

Ga. Const. of 1983, Art. VII, Sec. I, Par. III(a) (“All taxes

shall be levied and collected under general laws and

for public purposes only. [Subject to specified exceptions not applicable here,] all taxation shall be uniform

upon the same class of subjects within the territorial

limits of the authority levying the tax.”). “Like statutes, ordinances are presumed to be constitutional,”

and the burden of proving a constitutional violation

rests on the party raising the challenge. Rockdale

County v. U.S. Enterprises, Inc., 312 Ga. 752, 761–62

(2021).

The trial court ruled that Appellants failed to show

that ACC’s stormwater utility charge violated Georgia’s

taxation uniformity provision. In reaching this conclusion,

the trial court relied on Homewood I—and with good

reason. In Homewood I, Homewood Village argued

that ACC’s stormwater utility charge is an unconstitutional tax. In this case, Homewood Village (and additional

appellants) make the same argument—even though

this Court squarely held in Homewood I that ACC’s

stormwater utility charge is “a fee and not a tax.” See

Homewood I, 292 Ga. at 514–15. Appellants contend,

however, that Homewood I does not control in this case

and should be overruled. We reject this argument.4

This case was orally argued on April 15, 2025.

In reaching its decision denying Appellants’ challenge based

on the taxation uniformity provision, the trial court also relied on

McLeod, in which this Court decided a taxation-uniformity-

10a

In Homewood I, this Court in 2013 considered,

among other things, a challenge to the very same ACC

stormwater utility charge at issue in this case. In that

case, we recognized that “[t]he dispositive issue in th[e]

appeal [was] whether the [stormwater utility charge]

adopted by [ACC] impose[d] a permissible fee rather

than an unconstitutional tax,” and we held that ACC’s

ordinances establishing the charge “impose[d] a fee

and not a tax.” 292 Ga. at 514. In explaining this

conclusion, we emphasized that the ACC Stormwater

Utility Ordinance

(1) establishes a Stormwater Utility and ...

imposes a utility charge for the stormwater

management services; (2) [the charge] applies

to residential and non-residential developed

property, but not to undeveloped property,

which actually contributes to the absorption

of stormwater runoff[,] ... and the cost of the

stormwater services is properly apportioned

based primarily on horizontal impervious

surface area; and (3) the properties charged

receive a special benefit from the funded

stormwater services, which are designed to

implement federal and state policies through

the control and treatment of polluted

stormwater contributed by those properties.

provision challenge to a stormwater utility charge imposed by

Columbia County. See McLeod, 278 Ga. at 242. Appellants argue

that the trial court erred by relying on McLeod, making the same

arguments about McLeod that they make about Homewood I.

Because we conclude that Homewood I squarely governs this case

and decline to overrule it, we need not decide whether any of

Appellants’ attempts to distinguish McLeod from this case are

availing, and we decline the invitation to reconsider McLeod.

11a

Id. at 515 (cleaned up). We also noted that the Stormwater

Utility Ordinance “allows property owners to reduce

the amount of the charge by creating and maintaining

private stormwater management systems ... and it

does not permit the imposition of a lien directly

against the property of those who fail to pay the utility

charge,” which “further underscores the notion that

[ACC’s Stormwater Utility] Ordinance imposes a fee

and not a tax.” Id. (cleaned up).

As in Homewood I, the “dispositive issue” in this case

is whether ACC’s stormwater utility charge is a fee

rather than a tax, which would be subject to the

taxation uniformity provision. See Ga. Const. of 1983,

Art. VII, Sec. I, Par. III (requiring that “[a]ll taxes shall

be levied and collected under general laws and for

public purposes” and “all taxation shall be uniform”

(emphasis added)). Importantly, however, Appellants

do not allege that there have been any changes to

ACC’s stormwater utility charge since Homewood I.

And they posit a facial challenge to the legal nature of

the stormwater utility charge—that is, whether the

charge is a tax or not a tax. That question is the very

same question we answered in Homewood I.

Resisting the conclusion that Homewood I controls,

Appellants contend that Homewood I should not apply

to this case because “the record here is materially

different from that in ... Homewood I.” They specifically focus on the question of “special benefit,” arguing

that “the record evidence here demonstrates” that

Appellants receive no special benefit from ACC’s

stormwater utility ordinance. Compare Homewood I,

292 Ga. at 515 (concluding that “the properties

charged receive a special benefit from the funded

stormwater services, which are designed to ... control

and treat[ ] polluted stormwater contributed by those

12a

properties”). However, Homewood I—concluding that

ACC’s stormwater utility ordinance was “much like

the Ordinance at issue” in McLeod—relied on the

holdings in McLeod and determined as a matter of law

that “the properties charged receive a special benefit

from the funded stormwater services.” Homewood I,

292 Ga at 515 (quoting McLeod, 278 Ga. at 244). Given

that Homewood I determined as a matter of law that

the payors of ACC’s stormwater utility charge receive

a special benefit, and that the stormwater ordinance

at issue in this appeal is the same as in Homewood I,

the holding of that case controls in this case,

irrespective of any differences in the record evidence.

The remainder of Appellants’ arguments about

Homewood I are essentially arguments that Homewood I was wrong about the ordinance being a fee and

not a tax. But we do not reach those arguments

because principles of stare decisis warrant retaining

Homewood I, even if some of us doubt the correctness

of our holding in Homewood I that this exact same

ordinance imposed a fee and not a tax.

When we are asked to reconsider and overrule one

of our prior decisions, “stare decisis is the strong

default rule.” Wasserman v. Franklin County, 320 Ga.

624, 645 (2025) (cleaned up).

Ours is a system of precedent, built on the

premise, if not a promise, that future cases

will be decided like similar past cases.

Sticking to our precedent promotes a system

of equal treatment under the law rather than

one of arbitrary discretion. Such a system not

only yields a body of law that is more stable,

predictable, and reliable: it is also the only

kind of system that is consistent with the rule

of law.

13a

Id. (punctuation and citations omitted). We have

declined invitations to reconsider precedent when the

party seeking such reconsideration has failed to show

that our precedent was “clearly wrong.” Stephens v.

State of Ga., 321 Ga. 651, 658 (2025). See also Davis v.

Penn Mut. Life Ins. Co., 198 Ga. 550, 552 (1944) (“A

decision concurred in by the entire bench after

argument and careful consideration, and followed in

other cases, will not readily be overturned, unless

clearly erroneous.” (punctuation omitted)). And we will

not overrule precedent simply because we “might be

impressed with the force of [the appellants’] arguments if the constitutional question presented were

now one of first impression.” Fleming v. Rome, 130

Ga. 383, 384 (1908). See also Etkind v. Suarez, 271 Ga.

352, 357 (1999) (declining to overrule a controlling

precedent—despite noting that “reasonable minds

could and did differ” and indicating that the Court had

some “disagreement ... with its analysis”—because the

Court was not “writ[ing] on a blank slate”).

Applying those considerations here, we note that

this Court decided Homewood I in 2013.5 The relevant

legal circumstances are the same now as they were in

2013 when Homewood Village litigated Homewood I

and this Court decided that ACC’s stormwater utility

charge is a fee and not a tax. And Homewood I

implicates strong reliance interests: ACC’s stormwater

utility charge was adopted six months after this Court

issued McLeod and held that a charge of this kind was

not a tax. See McLeod, 278 Ga. at 242–45. See also

Homewood I is over a decade old and “though we have

overruled even older cases when other considerations of stare

decisis counseled in favor of doing so,” Homewood I’s age “does not

weigh in favor of its overruling.” Cooper Tire & Rubber Co. v.

McCall, 312 Ga. 422, 435 (2021).

14a

Savage v. State, 297 Ga. 627, 647–48 (2015) (“There is

nothing wrong with [a county relying on prior decision

of this Court]: local governments, businesses, and

individuals are entitled to rely on our precedents,

particularly in organizing their contractual and financial affairs.”). In sum, notwithstanding the doubts

some of us may have about the correctness of

Homewood I’s analysis regarding whether ACC’s

stormwater utility charge is a fee, that decision was

not so “clearly wrong” that considerations of correctness outweigh other considerations such as the similarity of the legal claims and of the parties between

this case and Homewood I, and the reliance interests

at stake in making government decisions. See

Stephens, 321 Ga. at 658.

We therefore follow Homewood I in this case and

conclude that ACC’s stormwater utility charge is a fee

that is not subject to the taxation uniformity provision

in Georgia’s Constitution. See Ga. Const. of 1983, Art.

VII, Sec. I, Par. III(a).

3. Appellants next argue that the trial court erred

in granting summary judgment in favor of ACC on

Appellants’ claim that ACC’s stormwater utility charge

violates the Georgia and United States Constitutions

because it constitutes a taking by the government

without just compensation. See Ga. Const. of 1983, Art.

I, Sec. III, Par. I(a) (“Except as otherwise provided in

this Paragraph, private property shall not be taken

or damaged for public purposes without just and

adequate compensation being first paid.”), (b) (“When

private property is taken or damaged by the state or

the counties or municipalities ... for any ... public

purposes as determined by the General Assembly, just

and adequate compensation therefor need not be paid

until the same has been finally fixed and determined

15a

as provided by law ... .”); U.S. Const. Amend. V

(“[P]rivate property [shall not] be taken for public use,

without just compensation.”).6 This argument fails.

(a) First, Appellants have failed to offer any argument that we should analyze their claim based on the

Georgia Constitution differently from their claim

based on the federal Constitution. In their initial brief,

Appellants cite no authority interpreting the Georgia

Constitution’s Takings Clause, and they make no

argument that their claim would be analyzed differently under the Georgia rather than United States

Constitution.7 The most Appellants do to advance their

argument specific to the Georgia Constitution is,

in their reply brief, point to a concurrence saying

that Georgia’s Takings Clause may be broader (but

not deciding that it is, let alone applying a meaning

different from the federal Takings Clause). See

We will refer to these constitutional provisions as “Takings

Clauses.”

In their amended initial brief, Appellants cite two Georgia

cases in this enumeration, neither of which decides a claim based

on Georgia’s Takings Clause. See Jekyll Island-State Park Auth.

v. Jekyll Citizens Ass’n, 266 Ga. 152, 153 (1996) (holding that a

sentence in a statute providing for fees related to fire service

violated constitutional due process requirements because it was

“vague and indefinite” and holding that the unconstitutional

sentence could be severed because without that sentence, the

amount of the fees “will not be unlimited, because the Authority

cannot charge fees which substantially exceed the cost of the

services,” relying on Georgia precedent unrelated to the Takings

Clause); Jones v. City of Atlanta, 320 Ga. 239, 244–45 (2024)

(noting that the plaintiff filed, among other claims, “claims

seeking damages for violations of the Due Process and Takings

Clauses found in the United States and Georgia Constitutions,”

but vacating and remanding the trial court’s ruling on those

claims because the court “failed to correctly apply the standard

applicable to motions for judgment on the pleadings”).

16a

Diversified Holdings, LLP v. City of Suwanee, 302 Ga.

597, 615 (2017) (Peterson, J., concurring) (observing

that “[t]he text of [Georgia’s] Just Compensation

Clause appears broader than the federal Takings

Clause,” but “leav[ing] . . . for another day” the question

of whether the two clauses should be interpreted the

same, because no party “raised or briefed such issues,”

which “would require our careful consideration of text,

context, and history”).8 It is Appellants’ burden to

explain why the stormwater utility charge is unconstitutional under the Georgia Constitution, and why

(as they claim) the Georgia constitutional standard

deviates from the federal constitutional standard. See

Rockdale County, 312 Ga. at 761–62. Because they

have not, “we consider [their] claim only through the

analytical lens of the federal ... clause.” Morrell v.

State, 318 Ga. 244, 248 n.5 (2024). See also, e.g.,

Ellington v. State, 314 Ga. 335, 342 (2022) (“Despite

citing the Georgia Constitution’s Confrontation Clause,

[Appellant] makes no argument that the Confrontation

Clause contained in ... the Georgia Constitution should

be construed differently than the parallel provision

contained in the ... United States Constitution.

Therefore, we decline to consider in this case whether

the relevant provision in the Georgia Constitution

should be construed differently than the federal

provision.”).

(b) As to Appellants’ claim based on the federal

Takings Clause, it fails. Appellants contend that ACC’s

stormwater utility charge is an uncompensated taking

in violation of the Takings Clause because, as they

Moreover, Appellants appear to suggest that the burden of

explaining the distinction, if any, between the Georgia and federal

Takings Clauses belongs to ACC, but it does not. See Rockdale

County, 312 Ga. at 761–62.

17a

argue, the fee is not based on a special benefit given to

the payors or the county’s need, and because it is not

based on a “voluntary decision to receive services.”

The first basis for Appellants’ argument is unavailing.

As explained above, Homewood I held that ACC’s

stormwater utility charge does provide a special

benefit to the payors, and we have already declined to

overrule Homewood I. See Homewood I, 292 Ga. at

515 (holding that “the properties charged receive a

special benefit from the funded stormwater services,

which are designed to ... control and treat[ ] polluted

stormwater contributed by those properties”).

Homewood I also held that “the cost of the stormwater

services is properly apportioned based primarily on

horizontal impervious surface area,” 292 Ga. at 515

(cleaned up), a holding that supports the Court’s

finding that the fee is tied to the special benefit

provided. And, as explained above, the revenue

generated by the stormwater utility charge is used by

ACC only to pay for stormwater management services.

The second basis for Appellants’ argument likewise

fails. On that score, Appellants fail to cite any

authority showing that a fee of this type—one that is

linked to the payor’s use of a government service

or utility—constitutes a taking if it is not based on

a voluntary decision to receive services. Instead,

Appellants cite six United States Supreme Court cases

that do not address a Takings Clause challenge to a fee

of the type at issue here. See Village of Norwood v.

Baker, 172 US 269, 278–79, 297 (1898) (addressing a

challenge based on the federal Takings Clause to a

“special assessment” levied by the government for the

improvement of adjacent land and holding that to the

extent the special assessment exceeded the “special

benefits accruing to the abutting property,” it was a

18a

taking of “private property for public use without

compensation”);9 Myles Salt Co. v. Bd. of Comm’rs of

Iberia & St. Mary Drainage Dist., 239 US 478, 485

(1916) (concluding that it was “an abuse of power and

an act of confiscation” to include property within a

certain taxation district that “has the special purpose

of the improvement of particular property” when that

property “is not and cannot be benefited directly

or indirectly”); Nat’l Cable Television Ass’n v. United

States, 415 US 336, 342–43 (1974) (considering whether a

charge imposed by the Federal Communications

Commission was an authorized fee or an unauthorized

tax and noting that “[t]he phrase ‘value to the

recipient’ is, we believe, the measure of the authorized

fee”); Dolan v. City of Tigard, 512 US 374, 391–95

(1994) (holding that requiring a dedication of property

to public use as a condition of the grant of a variance

permit violated the federal Takings Clause because

the required dedication was not “related both in

nature and extent to the impact of the proposed

development”); Sheetz v. County of El Dorado, 601 US

267, 276–79 (2024) (holding that Dolan’s test for

determining if a permit condition is an unconstitutional taking can apply to a permit condition that is a

monetary charge prescribed by the legislature).10

This Court has differentiated between this kind of “special

assessment” and taxes or fees. See City of Winder v. Barrow

County, 318 Ga. 550, 562 (2024); Hayden v. City of Atlanta, 70 Ga.

817, 822–23 (1884).

Appellants also cite one case to support their argument that

if the ACC stormwater utility charge is a tax, it violates

the federal Takings Clause. See Tyler v. Hennepin County, 598

US 631, 647 (2023) (holding that the county committed an

unconstitutional taking when it sold the plaintiff’s property for

unpaid taxes and then retained the excess proceeds from the sale

after the payment of all taxes, penalties, and interest). For the

19a

None of these cases indicates that a fee based on the

provision of a service—even assuming it is not based

on fully voluntary participation—will constitute a

taking. And such an argument is firmly refuted by the

Court’s emphasis in Koontz v. St. Johns River Water

Mgmt. Dist., 570 US 595 (2013), on the longstanding

principle that “[i]t is beyond dispute that taxes and

user fees are not ‘takings.’” Id. at 615 (cleaned up).

Notably, Koontz dealt with the same type of charge

raised in Dolan and Sheetz—a monetary or propertyrelated condition that a government entity imposes as

a requirement for a permit—and Koontz took pains to

differentiate that kind of charge from a tax or user fee.

570 US at 615–17 (explaining that the holding in

Koontz as to monetary permit conditions “does not

affect the ability of governments to impose property

taxes, user fees, and similar laws and regulations that

may impose financial burdens on property owners”).11

reasons discussed above, we hold that ACC’s stormwater utility

charge is not a tax. But in any event, Tyler—which dealt with the

government retaining funds over the amount of tax due—is

factually and legally distinguishable.

To the extent Appellants rely on Dolan and Sheetz to argue

that the stormwater utility charge is a taking unless ACC makes

an individualized determination quantifying the benefit to each

payor, it fails—even assuming we would treat the stormwater

utility charge at issue here like a monetary permit condition.

Because Sheetz expressly declined to decide whether permit

conditions could be permissibly imposed on a class of properties

without being “tailored with the same degree of specificity as a

permit condition that targets a particular development,” 601 US

at 208, it does not support an argument that an individualized

determination of the amount of benefit received or cost created by

each specific property is required before a fee may be imposed.

See also id. at 284 (Kavanaugh, J., concurring) (“[T]oday’s decision

does not address or prohibit the common government practice of

imposing permit conditions, such as impact fees, on new

developments through reasonable formulas or schedules that

20a

Thus neither Sheetz nor any of the other cases

Appellants cite support their contention that ACC’s

stormwater utility charge is an unconstitutional taking.

Because Appellants’ Takings Clause claim fails, we

conclude that the trial court correctly granted summary judgment to ACC on that claim.

4. Finally, Appellants contend that the trial court

improperly resolved disputed issues of fact in ACC’s

favor and therefore misapplied the summary judgment

standard in granting summary judgment to ACC. We

disagree that the trial court erred in applying the

summary judgment standard.

(a) Appellants assert that the trial court improperly

made the following factual findings favorable to ACC,

despite conflicting evidence in the record: (1) that

undeveloped properties do not contribute to stormwater

runoff; (2) that the contribution from roads and

sidewalks to stormwater runoff is offset by their channeling of stormwater runoff; and (3) that Appellants

receive a special benefit from ACC’s stormwater

management activities.

As to the first two points, Appellants’ characterizations of the trial court’s summary judgment order do

not match the contents of that order. With respect to

the first point, the trial court did not find that

undeveloped properties do not contribute to stormwater

runoff. To the contrary, the court expressly stated that

“most [undeveloped properties] will have some runoff,”

although “there are undeveloped properties that do

not.” With respect to the second point, the trial court

did not find that the contribution from roads and

sidewalks to stormwater runoff is “offset” by their

assess the impact of classes of development rather than the

impact of specific parcels of property.”).

21a

channeling of stormwater runoff. Instead, the court

merely recognized that because roads and sidewalks

“capture, control and discharge stormwater runoff,”

they are “considered part of the stormwater collection

system.”

With respect to the third point, the trial court did

not resolve a disputed issue of fact to determine

that Appellants receive a “special benefit” from ACC’s

stormwater management activities. Instead, it properly

applied Homewood I, in which this Court made a legal

determination that the payors of ACC’s stormwater

utility charge received a special benefit. See

Homewood I, 292 Ga. at 515.

(b) Appellants also claim that the trial court found

that “ACC’s experts were more credible than those of

[Appellants]”—and thus ran afoul of the summary

judgment standard by weighing credibility—but again

the trial court’s order does not support Appellants’

contention.

To support their contention, Appellants point to the

first part of footnote 5 of the trial court’s order. But in

that footnote, the court merely described the dispute

between Appellants’ experts and ACC’s expert; the

court did not decide which experts were more credible:

Plaintiffs rely heavily on the affidavit of one

of their experts, Charles B. Wilson, for

significant portions of their motion. They cite

him some 31 times in their Proposed Order.

[ACC’s] expert, Hector Cyre, has extensive

criticisms of Wilson’s expertise and work

history which were primarily in dams and

sedimentation (Cyre Affidavit, pp. 2 5). Cyre

also had significant criticisms of Wilson’s

opinions, especially with regard to Plaintiffs’

22a

contentions regarding credits (Cyre Affidavit,

pp. 25-29), whether roads or existing infrastructure can be considered part of a stormwater

management system (Cyre Affidavit, pp. 2930) and the alleged need to allocate the

fees and services among the 18 different

watersheds in Athens-Clarke County. (Cyre

Affidavit, pp. 31-32). Fundamentally, Cyre

points out that Wilson demonstrates no

experience with local government stormwater

management systems. Cyre also criticizes the

work of Plaintiffs’ experts Alan Perry (Cyre

Affidavit, pp. 35-41), and Nancy O’Hare. (Cyre

Affidavit, pp. 32-34).

Appellants also claim that the court erred by relying

on the affidavit of Hector Cyre in granting summary

judgment to ACC on Appellants’ constitutional claims.

But that contention fails because the trial court

expressly disclaimed any reliance on the Cyre affidavit

in granting summary judgment to ACC:

Based on the briefing initially submitted, the

parties informed the Court that consideration

of Plaintiffs’ challenge to Cyre’s opinions

would not be necessary to decide the motions

for summary judgment. After the initial oral

argument was suspended, [ACC] informed

the Court that it would be relying on Cyre’s

opinions, presumably because Plaintiffs

raised arguments at oral argument not

clearly articulated in their briefs. While the

Court does not rely on Cyre’s opinions in

granting [ACC’s] motion for summary judgment, it cannot ignore this record evidence

in considering Plaintiffs motion for partial

summary judgment, especially since [ACC]

23a

informed the Court and the Plaintiffs of the

need.

(Emphasis added.) Accordingly, Appellants’ contention

that the trial court misapplied the summary judgment

standard fails.

Judgment affirmed. All the Justices concur.

24a

PETERSON, Chief Justice, concurring.

I join the Court’s opinion holding that stare decisis

warrants retaining Homewood I’s determination that

the stormwater ordinance at issue imposes a fee and

not a tax. I write separately to make two points. First,

I have serious concerns about our historic treatment of

Georgia’s constitutional protections of taxpayers. And

second, charges like the one at issue here may best be

characterized as taxes and still be permissible,

because it seems likely that they can be structured in

ways that conform with the Constitution’s uniformity

requirement.

1. The Georgia Constitution protects taxpayers by

limiting the methods and means by which Georgia

governments can impose taxes. One such protection is

the uniformity requirement. See Ga. Const. of 1983,

Art. VII, Sec. I, Par. III(a) (provided that no

constitutional exception applies, “all taxation shall be

uniform upon the same class of subjects within the

territorial limits of the authority levying the tax”).

This requirement entered the Georgia Constitution in

1868 and has been in every constitution since in

similar language.12 One would think, given the long

The uniformity provision in the 1868 Constitution provided

that “taxation on property shall be ad valorem only, and uniform

on all species of property taxes.” Ga. Const. of 1868, Art. I, Sec.

XXVII. The 1877 Constitution changed the language slightly. Ga.

Const. of 1877, Art. VII, Sec. II, Par. I (“All taxation shall be

uniform upon the same class of subjects, and ad valorem on all

property subject to be taxed, within the territorial limits of the

authority levying the tax[.]”). The 1945 Constitution removed the

“ad valorem” language (at least in its express form in this

provision) but kept the uniformity language. See Ga. Const. of

1945, Art. VII, Sec. I, Par. III (“All taxation shall be uniform upon

the same class of subjects within the territorial limits of the

authority levying the tax.”). The 1976 Constitution kept this same

25a

history of this provision in Georgia’s constitutions,

that this Court would have enforced this constitutional protection in meaningful ways. But our

precedent shows otherwise. Over time, this Court has

allowed state and local governments to evade the

uniformity requirement by imposing charges that look

a lot like taxes but are called something else, like “fees”

or “assessments.”

At least three different categories of these “fees” and

“assessments” have emerged in our caselaw: (1) special

assessments for paving or street improvements;

(2) special assessments for the creation of drainage

systems; and (3) fees for garbage services.

The first category, special assessments for paving or

street improvements, appears to be the first carve-out

created by this Court to allow charges to avoid

constitutional restrictions on taxation. See Hayden v.

City of Atlanta, 70 Ga. 817 (1884). Hayden involved a

statute conferring on a municipal corporation the

power to impose “assessments” for street grading,

paving, and improvements on real estate abutting

each side of an improved street. Id. at 821. The statute

was challenged as being not ad valorem and uniform

as required by the Georgia Constitution. Id. at 822.

The Court held that this charge was not a tax, but was

instead an “assessment” and thus was not required by

the Constitution to be ad valorem and uniform. Id. at

822–23. The Court justified this assessment-tax distinction on the basis that assessments for improvements

are based on a benefit to the abutting property. See id.

language. See Ga. Const. of 1976, Art. VII, Sec. I, Par. III. And the

1983 Constitution, which now controls, contains materially

identical language. See Ga. Const. of 1983, Art. VII, Sec. I, Par.

III(a).

26a

(“Taxes are different from assessments for local

improvements, taxes being burdens upon all persons

and property alike, and compensated for by equal

protection to all, while assessments are not burdens

but equivalents, and are laid for local purposes upon

local objects, and are compensated for to some extent

in local benefits and improvements, enhancing the

value of the property assessed.”). This distinction

between assessments for street improvements and

taxes was upheld consistently by this Court after

Hayden. See, e.g., Speer v. Mayor, Etc., of Athens, 85 Ga.

49, 49 (1890); City of Atlanta v. First Presbyterian

Church, 86 Ga. 730, 737 (1891); City of Atlanta v.

Hamlein, 96 Ga. 381, 382–85 (1895); Brumby v. Harris,

107 Ga. 257, 258–59 (1899); Mayor & Aldermen of

Savannah v. Knight, 172 Ga. 371, 374 (1931).

The second category involves assessments for the

creation of drainage systems. See Almand v. Pate, 143

Ga. 711, 716–17 (1915); Witherow v. Bd. of Drainage

Comm’rs of Powder Springs Creek Drainage Dist.

No. 2, 155 Ga. 476, 476–77 (1923); Goolsby v. Bd. of

Drainage Comm’rs of Cedar Creek Drainage Dist., 156

Ga. 213, 213 (1923). The assessments for these drainage

systems were imposed on properties that were

specially benefitted by the drainage systems. And the

Court upheld these assessments against constitutional

challenges because, like assessments for street improvements, “[a]ssessments of this character are radically

different from ad valorem taxes, and are not taxes

within the meaning of the Constitution.” Almand, 143

Ga. at 716 (citing Hayden, 70 Ga. 817; Speer, 85 Ga.

49). At first glance, these assessments might appear

superficially similar to stormwater charges like the

one at issue here. But the drainage system cases

involved charges only on properties that were specially

benefitted from the drainage systems, not on property

27a

owners of properties (like the case here) that created

the need for drainage. So these cases are consistent

with the special benefit justification for assessments in

a way that stormwater ordinances may not be.

The third category involves fees or assessments for

services removing and disposing of trash and garbage

or cleaning the public streets abutting the property on

which the fees were levied. These charges were

deemed fees or assessments (and thus not taxes)

because they were “merely imposing a fee for special

services.” Mayor & Aldermen of City of Milledgeville v.

Green, 221 Ga. 498, 501 (1965). See also Crestlawn

Mem’l Park, Inc. v. City of Atlanta, 235 Ga. 194, 194

(1975) (upholding a “sanitary service charge” for the

“cleaning of the public streets abutting appellant’s

property” because the “assessments ... are not taxes”);

Levetan v. Lanier Worldwide, Inc., 265 Ga. 323, 324

(1995) (“These sanitation assessments are not taxes

within the meaning of our Constitution but rather

charges for services rendered by the county.”); Strykr

v. Long County Bd. of Comm’rs, 277 Ga. 624, 625 (2004)

(same); Mesteller v. Gwinnett County, 292 Ga. 675, 678

(2013) (solid waste fee is an assessment for services

rendered).

The emergence of these categories demonstrates the

breadth of the carve-outs in which this Court has

allowed charges to avoid constitutional restrictions on

taxation. But this Court has not always been

consistent in its reasoning for allowing such charges to

avoid constitutional limitations on taxes — and our

inconsistency has been pronounced with regard to the

special-benefit justification. Some cases seized on

language in Speer (a case that re-affirmed the holding

of Hayden) stating that the determination of whether

there is a benefit to the landowner belongs to the

28a

legislature, “and will not be inquired into by the courts,

unless in extraordinary cases presenting a manifest

abuse of legislative authority.” Speer, 85 Ga. at 49; City

of Atlanta v. Johnson, 191 Ga. 100, 100–03 (1940)

(applying this reasoning from Speer to uphold an

assessment for a new sewer despite the plaintiff’s

allegation that the new sewer would not benefit her

property). But see City of Atlanta v. Hamlein, 96 Ga.

381, 382–85 (1895) (finding an assessment for street

improvements to be an “extreme[] case” not deserving

of deference to municipal authorities as to the

existence of a benefit where the property’s value was

significantly less than the cost of the improvement).

Despite the critical role that the presence of special

benefits have played in our decisions deeming charges

to be fees instead of taxes, this Court also has held on

occasion that the absence of a current special benefit

does not make a fee a tax. See Georgia Power Co. v. City

of Decatur, 181 Ga. 187, 193–200 (1935). See also

Georgia R. & Banking Co. v. Town of Decatur, 137 Ga.

537, 540–41 (1912); Neal v. Town of Decatur, 142 Ga.

205, 205 (1914) (citing Georgia R. & Banking Co., 137

Ga. 537).

In making this determination, this Court made the

paradoxical conclusion that although the authority of

governments to impose fees and assessments comes

from the taxing power, such charges are not subject to

the same constitutional restrictions and limitations as

taxes. Georgia R. & Banking Co., 137 Ga. at 540; City

Council of Augusta v. Augusta-Aiken Ry. & Elec. Corp.,

150 Ga. 529, 532 (1920); City of Brunswick v. Gordon

Realty Co., 163 Ga. 636, 641–42 (1927).

I have no idea how to reconcile our historic

precedent with itself, much less with the constitutional

text it purported to interpret and apply.

29a

It was against this backdrop that this Court, in

2004, extended the fee and assessment doctrine to

stormwater utility charges. See McLeod v. Columbia

County, 278 Ga. 242, 242–45 (2004) (holding that a

stormwater utility charge was not a tax and thus not

subject to the Constitution’s uniformity requirement);

Homewood I, 292 Ga. at 514–15 (holding the same

for the ordinance at issue in this case). Given the

inconsistencies in our precedent outlined above

regarding the justification for allowing fees and

assessments to evade the limitations placed on

taxation, I am skeptical that this extension of the fee

and special assessment doctrine to the stormwater

context was correct. In particular, I see no benefit (such

as increased property value or a special service) to the

charged properties of the sort that most of our special

benefit precedent generally requires. And we should be

cautious in extending or maintaining carve-outs that

allow Georgia governments to avoid the constitutional

limitations that the people placed on governments’

power to tax.13

But even if our decisions in the late 1800s and early

1900s were wrong, it may be too late to change course

now. The assessment-tax distinction has existed in our

precedent since at least 1884. To the extent that our

precedent has been consistent and definitive on at

least some related points, we presume that that

consistent and definitive construction was carried

forward into subsequent constitutions, and eventually

into our current Constitution. See Elliott u. State, 305

This Court’s reluctance to extend the assessment-tax

distinction is illustrated by Bellsouth Telecommunications, LLC v.

Cobb County, 305 Ga. 144, 146–51 (2019), where the Court

declined to extend the fee and special assessment doctrine to a

911 charge on telephone services.

30a

Ga. 179, 184 (2019) (“A constitutional clause that is

readopted into a new constitution and that has

received a consistent and definitive construction is

presumed to carry the same meaning as that

consistent construction.”). The exact contours of that

construction remain to be seen. Nevertheless, we need

not decide these questions here, because stare decisis

principles compel us to retain Homewood I even if it

was wrong to hold that this particular ordinance

imposed a fee and not a tax.

2. Much of the precedent that I just described was

decided in contexts where the parties assumed that if

the challenged charge was a tax, it would violate the

uniformity requirement (as the Appellants assume

here). I’m not so sure. Even if we were to hold that this

stormwater ordinance imposes a tax and not a fee, I

am not convinced it would violate uniformity under

our Constitution (and to the extent that parts of it do

violate uniformity, it may be that those parts could be

altered to conform).

Our precedent outlines some of the ways a tax may

(or may not) violate the uniformity provision. There

generally seem to be two categories of taxes that have

been challenged under the uniformity provision of the

Georgia Constitution: cases involving taxes on persons

(generally taxes on occupation or revenue), and cases

involving taxes on property. See United Cigar Stores

Co. v. Stewart, 144 Ga. 724, 726 (1916) (“All taxation

may be divided into two general classes: Taxation on

property, and taxation on person, the latter including

taxation on occupation.”).

With respect to occupation taxes, certain forms of

taxation have been deemed not to violate uniformity.

These include taxes on occupations that graduate

according to the size of the city or county where the

31a

business operated. See, e.g., Wright v. Hirsch, 155 Ga.

229, 232–43 (1923); Georgia-Carolina Lumber Co. v.

Wright, 161 Ga. 281, 281, 285–86 (1925); Brooks v.

Harrison, 171 Ga. 488, 489, 492–93 (1930); Guerry v.

Harrison, 178 Ga. 669, 669–70 (1934). Permissible

taxes also included those that graduate according to

the use of certain items or equipment by the business.

See Goodwin v. Mayor & Alderman of City of

Savannah, 53 Ga. 410, 414–15 (1874) (occupation tax

on common carriers that graduated according to the

number of horse drays or wagons employed did not

violate uniformity); Davis & Co. v. Mayor & Council of

Macon, 64 Ga. 128, 132–33 (1879) (tax on butchers that

was higher on butchers who used wagons did not

violate uniformity). Many cases support the

proposition that the General Assembly may classify

and subclassify occupations for the purpose of

taxation, so long as the classification is “reasonable”

and “not arbitrary.”14 And in many early cases, this

Court distinguished between taxes on property and

taxes on occupations and revenue — since taxes on

occupations and revenue were considered not taxes on

property, they were not subject to the ad valorem and

uniformity requirements in the Constitution.15

See, e.g., McGhee v. State, 92 Ga. 21, 22–27 (1893); Singer

Mfg. Co. v. Wright, 97 Ga. 114, 114–22 (1895); Stewart v. Kehrer,

115 Ga. 184, 189–90 (1902); City Council of Augusta v. Clark &

Co., 124 Ga. 254, 258–59 (1905); Williams v. State, 150 Ga. 480,

484–85 (1920); Coy v. Linder, 183 Ga. 583, 585–88 (1936); Davison

v. F. W. Woolworth Co., 186 Ga. 663, 663, 666 (1938); Forrester v.

Edwards, 192 Ga. 529, 529, 532–34 (1941); Chanin v. Bibb County,

234 Ga. 282, 290 (1975).

See, e.g., Kenny v. Harwell, 42 Ga. 416, 419–23 (1871); Burch

v. Mayor & Aldermen of Savannah, 42 Ga. 596, 598–600 (1871);

Bohler v. Schneider, 49 Ga. 195, 200–01 (1873); Home Ins. Co. of

New York v. City Council of Augusta, 50 Ga. 530, 543 (1874);

32a

Still within the occupation tax category, a number of

our decisions have invalidated taxes as violative of the

uniformity provision. This Court generally held that it

violated uniformity to exempt businesses within the

same class of businesses being taxed. See Ewing v.

Wright, 159 Ga. 303, 303–04 (1924) (“And where the

Legislature, as here, creates by statute a class, upon

which it imposes a tax ... , but excepts from it a number

of persons falling within the classification, the [ad

valorem and uniformity provision] is violated; and

such a violation of the constitutional provision renders

the statute void.”). See also Pate v. Foss, 157 Ga. 579,

582–84 (1924); Eplan v. City of Atlanta, 176 Ga. 613,

613–16 (1933); Elder v. Smith, 188 Ga. 65, 67–69

(1939).

But some exemptions from occupation taxes have

been upheld on one of two grounds. First, a few

exemptions were deemed not violative of uniformity

because the Court determined that the exempt

businesses were in a class different from the class of

businesses being taxed (such that the tax contained

permissible classifications, rather than impermissible

exemptions). See Davis, 64 Ga. at 132 (tax on butchers

that exempted farmers selling their own produce and

wagons used in delivering milk from farms did not

violate uniformity because they were different businesses and thus “different classes of subjects in a

scheme of taxation”); Clark, 124 Ga. at 258–59

(“[S]imply because they all might be classified in the

one general class of lenders of money is no reason why

Goodwin, 53 Ga. 410, 414–15 (1874); City of Rome v. McWilliams

& Co., 52 Ga. 251, 275 (1874); Weaver v. State, 89 Ga. 639, 642–43

(1892); Hirsch, 155 Ga. at 233–35 (1923). Note that the current

constitution does not contain a general ad valorem requirement

for taxation.

33a

these different occupations might not be arranged in

different classes for the purpose of taxation, and a

different amount of tax placed upon each.”). Second,

and perhaps relatedly, some exemptions were upheld

because they were “not unreasonable or arbitrary.”

See, e.g., Hunter v. Wright, 169 Ga. 840, 845–46 (1930);

S. Transfer Co. v. Harrison, 171 Ga. 358, 358–59 (1930);

City of Atlanta v. Georgia Milk Producers Confederation, 187 Ga. 117, 119 (1938).16

The standard, as mentioned above, for whether

classifications and subclassifications violate uniformity is whether they are reasonable and not

arbitrary. See, e.g., Forrester, 192 Ga. at 532. Most

classifications have been held to be reasonable, but

this Court has held in at least two cases that certain

subclassifications were unreasonable and arbitrary

and thus violated uniformity. See United Cigar Stores

Co., 144 Ga. at 724–27 (statute imposing a tax “upon

every manufacturer of tobacco, and upon every

wholesale and retail dealer in tobacco, who redeems,

or offers to redeem, any tags or labels sold or distributed or given with tobacco sale” violated uniformity

because the classification was “unreasonable and

arbitrary”); F.W. Woolworth Co. u. Harrison, 172 Ga.

179, 179 (1931) (statute taxing businesses operating

over five stores at a rate of $50 per store and not taxing

For exemptions in the property context, see City of Atlanta v.

Spence, 242 Ga. 194, 197 (1978) (holding that a county ordinance

exempting 300 acres or less from taxation of public real property

owned by a city outside its territorial limits did not violate

uniformity). See also Atlanta & F.R. Co. v. Wright, 87 Ga. 487,

489–90 (1891) (holding that uniformity was not violated where

five railroad companies were exempted from ad valorem taxation

because those charters included provisions limiting their taxation

to a certain percentage of income, but other railroad companies

were taxed ad valorem).

34a

at all businesses operating five stores or less violated

uniformity because this “classification is arbitrary and

unreasonable”).

Finally, some occupation taxes violated uniformity

because businesses were taxed based on their location

or territorial discrimination. See Mut. Rsrv. Fund Life

Ass’n v. City Council of Augusta, 109 Ga. 73, 78–79

(1900); Morgan v. State, 140 Ga. 202, 204–07 (1913);

Am. Bakeries Co. v. City of Griffin, 174 Ga. 115, 115–19

(1932); Fulton County v. Lockhart, 202 Ga. 878, 881–83

(1947).

The second category of uniformity cases deals with

taxes on property. These cases make clear that

property of the same class must be taxed uniformly.

See, e.g., City Council of Augusta v. Nat’l Bank of

Augusta, 47 Ga. 562, 563–65 (1873); Colvard v. Ridley,

218 Ga. 490, 490 (1962). And many cases have held

that real and personal property are considered a single

class for purposes of taxation, so if assessments are

raised unequally between them, uniformity is violated.

See Griggs v. Greene, 230 Ga. 257, 266 (1973) (“[T]he

Constitution establishes all tangible property (except

automobiles and trailers), both real and personal, as a

single class for the purpose of taxation, and it commands

that all property in that class must be treated

uniformly.”). See also Hutchins v. Howard, 211 Ga. 830,

830 (1955); Lott Inv. Corp. v. City of Waycross, 218 Ga.

805, 808–09 (1963).17 And state and local governments

cannot raise taxes on property by arbitrary means. See

Champion Papers, Inc. v. Williams, 221 Ga. 345, 346

(1965).

But income is not property and thus it does not violate

uniformity to tax income and property at different rates. See

Waring v. City of Savannah, 60 Ga. 93, 100 (1878).

35a

Whether and to what extent the above cases apply

to the ordinance at issue in this case remains unclear.

It is possible that the stormwater ordinance here may

be like the occupation taxes that graduated according

to the use of certain items or equipment in the

business, and thus the stormwater ordinance would

not violate uniformity. See, e.g., Goodwin, 53 Ga. at

410–15. But this particular stormwater ordinance

includes exemptions for undeveloped property and for

all public and private roadways. Under our precedent,

these exemptions may make the ordinance violative of

the uniformity provision, but it is unclear what

standard we should apply in making that determination. If the standard for exemptions is the same as the

standard for subclassifications (i.e., that they be

reasonable and not arbitrary), then the exemption in

this ordinance for undeveloped property may be

reasonable, because undeveloped properties contribute

less to stormwater runoff than developed properties. It

may be that a county can also exempt public streets

and sidewalks.18 But the exemption for private streets

and sidewalks to me seems less likely to be

permissible. If developed properties are the target of

the ordinance because of their increased contribution

to stormwater runoff, then I can see no reasonable

justification for exempting private roadways. But even

The right to exempt public property from taxation was in

past constitutions and has been discussed in our cases. See Ga.

Const. of 1877, Art. VII, Sec. II, Par. II; Ga. Const. of 1945, Art.

VII, Sec. 1. Par. IV; Ga. Const. of 1976, Art. VII, Sec. I, Par. IV. See

also City of Atlanta v. Spence, 242 Ga. 194, 196–97 (1978); Wright

v. Fulton County, 169 Ga. 354, 362 (1929); Penick v. Foster, 129 Ga.

217, 222 (1907) (“The Constitution expressly authorizes the

exemption of public property.”). But this text is not present in the

1983 Constitution. I express no opinion here how that might

affect the power to exempt public property from this tax.

36a

if this exemption makes the stormwater ordinance

violative of uniformity, it is not difficult to imagine a

stormwater ordinance without such an exemption

which would not violate uniformity. Perhaps in the

future Georgia governments could focus on crafting

charges like those at issue here to conform to

uniformity, rather than to try to take them outside all

constitutional protection altogether.

I am authorized to state that Justice Bethel joins in

this concurrence.

37a

APPENDIX B

SUPREME COURT OF GEORGIA

————

Case No. S25A0555

————

HOMEWOOD ASSOCIATES INC et al.

UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY.

————

November 13, 2025

————

The Honorable Supreme Court met pursuant to

adjournment. The following order was passed:

HOMEWOOD ASSOCIATES INC et al. v. UNIFIED

GOVERNMENT OF ATHENS-CLARKE COUNTY.

Upon consideration of the Motion for Reconsideration

filed in this case, it is ordered that it be hereby denied.

All the Justices concur.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

/s/ [Illegible]

, Clerk

38a

APPENDIX C

IN THE SUPERIOR COURT OF ATHENS-CLARKE

COUNTY STATE OF GEORGIA

————

Civil Action File No. SU16CV0845-S

————

UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY

a Georgia,

Plaintiff,

HOMEWOOD ASSOCIATES, INC.,

Defendant.

————

IN THE SUPERIOR COURT OF ATHENS-CLARKE

COUNTY STATE OF GEORGIA

————

Civil Action File No. SU17CV1134

————

HANCOCK-PULASKI PROPERTIES, INC.,

a Georgia corporation, TIFFANY & TOMATO, INC.,

a Georgia corporation, BAXTER HARRIS, INC.,

a Georgia corporation, HOMEWOOD VILLAGE, LLC.,

a Georgia limited liability company, OLD SOUTH

INVESTMENT ENTERPRISES LLC., a Georgia limited

liability company, LUIS BONEt, individually, BONET

PROPERTIES, LLC and L. E. BONET PROPERTIES, LLC,

Plaintiffs,

UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY,

a Georgia,

Defendant.

39a

————

ORDER ON THE UNIFIED GOVERNMENT OF

ATHENS-CLARKE COUNTY,

GEORGIA’S MOTION FOR SUMMARY

JUDGMENT and PLAINTIFFS’ MOTION

FOR PARTIAL SUMMARY JUDGMENT

————

The Court consolidated these two matters to decide

legal issues common to both. The Unified Government

of Athens-Clarke County, Georgia (hereinafter referred

to as “A-CC”), is the Defendant in Civil Action File No.

SU17CV1134, and Plaintiff in Civil Action File No.

SU16CV0845-SW. The latter action was originally

filed as a collection action in Magistrate Court, but

counterclaims required transferring the matter to

Superior Court. The Court refers to the Plaintiffs in

SU17CV1134 and defendant in SU16CV0845 collectively as Plaintiffs. A-CC seeks judgment as to all

claims in SU17CV1134 and as to Defendant Homewood

Associates’ counterclaims in SU16CV0845. Plaintiffs

seek partial summary judgment on A-CC’s authority

to impose stormwater fees and on their claims that the

fees violate Plaintiffs’ constitutional rights. For the

reasons set forth herein, the Court grants A-CC’s

motion and denies Plaintiffs’ motion.

I. INTRODUCTION

Litigation challenging the A-CC Stormwater Management Ordinance and the A-CC Stormwater Utility

has been almost continuous since A-CC adopted the

ordinance and established the utility in 2004 and

2005. One of the Plaintiffs in this case, Homewood

Village, litigated one of the original challenges all

the way to the Georgia Supreme Court. Homewood

Village v. A-CC, 292 Ga. 514, 739 S.E.2d 316 (2013)

40a

(Homewood 1); see also McLeod v. Columbia County,

278 Ga. 242, 599 S.E.2d 152, 153 (2004).

After the Georgia Supreme Court upheld A-CC’s

ordinance, Homewood Village, with some of the other

Plaintiffs in SU17CV1134, filed a federal action in the

Middle District of Georgia. A-CC moved to dismiss on

the basis of the Tax Injunction Act. The federal court

denied that motion but invited a motion based upon

the Comity Doctrine. Comity holds that the state

courts are the appropriate venue to review challenges

to state and local revenue measures, even if alleging

violations of federal law. Great Lakes Dredge & Dock

Co. v. Huffman, 319 U.S. 293, 298, 63 S. Ct. 1070, 1073,

87 L. Ed. 1407 (1943); Boise Artesian Hot & Cold Water

Co. v. Boise City, 213 U.S. 276, 29 S. Ct. 426, 53 L. Ed.

796 (1909); Fair Assessment in Real Estate Ass ‘n., Inc.

v. McNary, 454 U.S. 100, 102 S. Ct. 177, 70 L. Ed. 2”d

271 (1981); Rosewell v. LaSalle National Bank, 450

U.S. 503, 101 S. Ct. 1221, 67 L. Ed.2d 464 (1981).

The district court dismissed the case based on the

Comity Doctrine, the Eleventh Circuit affirmed, and

the United States Supreme Court denied certiorari.

Homewood Village, LLC v. Unified Government of

Athens-Clarke County, CAFN 3:15-cv-00023, Order

(M.D. Ga., Apr. 1, 2016), aff’d 677 Fed. Appx. 623 (11th

Cir., 2017), cent. denied, 138 S. Ct. 88 (2017). After the

federal courts’ dismissal of the Plaintiffs’ case based

on comity the Plaintiffs filed the instant case.

The claims alleged in the Complaint and Counterclaims

are based only on federal constitutional provisions,

specifically the Due Process Clause, the Equal Protection

As a result of the various actions filed, in some of which, the

lead party was called Homewood, the Court refers to the Georgia

Supreme Court case as Homewood I.

41a

Clause, and the Takings Clause. The only citations in

the Complaint to the Georgia Constitution are Ga.

Const. of 1983, Art. VII, Sec. I, Par. III and Art. VII, Sec.

II, Par. I, which address ad valorem taxation and not

fees, tolls or charges such as those charged by the

stormwater utility. During summary judgment briefing

Plaintiffs raised state constitutional claims and asserted that A-CC lacked the authority to impose the

challenged fees. Although the latter claims were not

alleged in the Complaint, the Court addresses those as

well.

FINDINGS OF FACT

Under the Congressional mandate of the Clean

Water Act, the U.S. Environmental Protection Agency

(EPA) regulates nonpoint source (NPS) pollution,

including stormwater runoff. Complaint ¶¶ 13-15.

NPS pollutants can have harmful effects on drinking

water supplies, recreation, fisheries and wildlife.

Complaint ¶ 19. The U.S. EPA established the

Municipal Separate Sewer System (MS4) National

Pollutant Discharge Elimination System (NPDES)

Permit System. The MS4 stormwater discharge permit

requires local governments to minimize pollutants in

stormwater runoff to the “maximum extent

practicable.” Complaint ¶¶ 20-21.

A-CC was required to obtain a NPDES permit for

NPS pollution discharged into open waterways.

Complaint ¶ 22. In March 2003, the federal government imposed upon A-CC a requirement to meet

certain guidelines in the management of stormwater.

Complaint ¶ 25. From approximately 1992 to 2005,

A-CC funded its stormwater management activities

from its general revenue funds, i.e., property tax

proceeds. Complaint ¶ 26. In 2003, because of

increasing costs of the increasing regulations, A-CC

42a

began to investigate establishing a Stormwater Utility

with a “user fee” designed and intended to fund

“the existing and future stormwater management

needs of Athens-Clarke County.” Complaint ¶¶ 27-28;

Raessler Depo., pp. 19-20.

In June 2004, A-CC enacted a Stormwater Management Ordinance found in its Code of Ordinances at

Chapter 5-4, et seq. (as amended), that regulates

stormwater in A-CC. Complaint, Exh. A. In December

2004, A-CC adopted a Stormwater Utility Ordinance,

which established a funding formula, a fee structure

and an enterprise fund to pay for the Stormwater

Management activities performed by A-CC. Complaint,

Exh. B. The formula is designed and intended to

cover the cost of the A-CC Stormwater Master Plan,

including anticipated and unanticipated future capital

needs. Complaint ¶¶ 33, 34, 39; Raessler Depo., pp. 1719, 71-74; Caldwell Depo., pp. 43-45.

The fee consists of a three-tier structure. A “base

charge,” is imposed on all non-exempt, developed

property based on and intended to cover the annual

administrative and management costs of the stormwater

utility. A-CC Ord. 5-5-3; A-CC Ord. 5-5-8 (d) (1) & (e)

(Complaint, Exh. A); Complaint ¶¶ 41-42. A second

charge, the “quantity charge,” is imposed on all

developed property in A-CC based on the impervious

area and/or other factors such as land use that A-CC

has legislatively determined are necessary to manage

and/or mitigate the effect of the volume and rate of

stormwater runoff. 5-5-3 (a); A-CC Ord. 5-5-8 (d) (2)

& (e). Complaint ¶ 43. A third charge, the “quality

charge,” may be imposed on all non-exempt developed

property to reflect the amount of services provided by

A-CC to treat or compensate for the difference in

pollutants from properties with different land use.

43a

A-CC Ord. 5-5-3; A-CC Ord. 5-5-8 (d) (3) & (e).

Complaint ¶ 44.

The A-CC ordinance imposing the stormwater

charge states that the “purpose of this [charge] is to

protect, maintain and enhance the public health,

safety, environment and general welfare” of the

residents of the County. A-CC Ord. 5-4-1; Complaint

¶ 32. The A-CC ordinance provides that the revenues

generated from the charge will be used for five main

purposes: “(a) Transfer, control, conveyance or

movement of stormwater runoff through A-CC;

(b) Maintenance, repair and replacement of existing

stormwater management systems and facilities;

additional stormwater management systems and

facilities to meet current and anticipated needs;

(d) Regulation of the use of stormwater management

services, systems and facilities; and (e) Education of

the public as to stormwater issues. A-CC Ord. 5-5-3.”

Complaint ¶ 53.

The A-CC Stormwater Utility and the charges

assessed are designed specifically to generate revenue

to pay for governmental projects for flood prevention,

addressing water pollution and compliance with

federal law. Complaint ¶ 55. Funds not expended in

the year calculated and collected are placed in a

capital reserve to address major needs that arise such

as repair, construction and replacement of systems

and facilities. Complaint ¶ 34(j); Raessler Depo., pp. 1719, 35-36, 71-74, Even during discovery in this matter,

there were major infrastructure failures, often involving the danger of road collapse. Raessler Depo., pp. 7273. A critical aspect of the utility funding the costs by

a fee, rather than attempting to use general resources

from the property taxes is that the substantial amount

44a

of tax-exempt property in A-CC (e.g., the Board of

Regents, federal government, school board and even

many A-CC properties) all pay their fair share of the

expense. Especially for a place like A-CC, it is a much

fairer system. https://www.accgov.com/1862/Storm

water-Utility-Fee2 Plaintiffs offered no evidence to

contest this critical fact.

The unpaid service charges do not constitute a direct

lien against the property. A-CC Ordinance 5-512(b)(1). A-CC files collection actions against owners

who fail to pay, and like any other judgment, a

judgment for an unpaid charge could become a lien on

the property. A-CC Ordinance 5-5-12(b)(1); Complaint

¶ 59.

Culled to their essence, Plaintiffs’ claims arise from

opposition to the fact that A-CC made two important

legislative determinations: I) that all developed

property contributes to the storm water issues that ACC is mandated by the federal government to address;

and 2) all developed property obtains a benefit, at least

an intangible and indirect benefit, from the fact that

A-CC operates the utility to address present and

future needs resulting from the concentration of

As that page explains:

Some of the largest contributors to stormwater runoff,

including schools, churches, and government buildings,

are tax-exempt and would not pay their share through

property taxes. Through the utility, these property

owners pay a stormwater utility fee just as they pay for

their water and sewer utility fees. The establishment

of a stormwater utility ensures that everyone pays

their fair share for the safe management of stormwater

and sound protection of water quality in Athens-Clarke

County.

45a

developed property in the center of Athens-Clarke

County.

In Homewood Village’s previous challenge to the

ordinance and utility, A-CC submitted a Motion for

Summary Judgment, along with various affidavits

filed in support thereof. None of the discovery in this

case has undermined or negated the operative facts

established in those previous submissions. Those

previous submissions established the bases and justifications for the utility and funding mechanism.3

The federal government legislatively determined to

improve water quality issues caused by non-point

sources and established regulations to meet those

legislative requirements. Local governments such as

A-CC were given substantial unfunded mandates to

address those requirements. Unified Government of

Athens—Clarke County v. Homewood Village, Super.

Ct. CAFN SU-10-CV-1851 Response in Opposition to

Defendants Motion for Summary Judgment, Exhibit A

(Giese Order), page 3 (Dec. 9, 2011) [Appx. 2, Exh. A to

A-CC’s Brief in Support of A-CC’s MSJ, Bates ACC-A005]. A-CC initially paid these expenses from general

revenues generated by property taxes. Complaint ¶ 26.

After the Georgia Supreme Court approved storm

Certified copies of some of those summary judgment

pleadings and affidavits submitted to the Clarke County Superior

Court in SU-10-CV-1851 were filed in the federal action and those

documents have been filed in this matter. This court may take

judicial notice of the existence of documents filed in related

judicial proceedings and matters filed in this Court. For purposes

of this record, however, A-CC filed them in his action as well.

Relevant portions of these documents cited were attached as

Appendix 2 to A-CC’s Brief in Support of its Motion for Summary

Judgment. A Bates number at the bottom of each page is

referenced in this Order.

46a

water utilities in 2004, A-CC adopted a utility and

after significant study made its own legislative

determinations as to how that utility would be funded.

Spratlin Affidavit, Exh. 6 [Appx. 2, Exh. C to A-CC’s

Brief in Support of A-CC’s MSJ, Bates ACC-C-069ff].

A-CC diligently considered multiple funding mechanisms before legislatively choosing the revenueraising fee structure ultimately adopted by A-CC’s

Mayor and Commission. Clark Affidavit, Exh. 2, Part

1, pp. 4-1 thru 5-17 [Appx. 2, Exh. B to A-CC’s Brief in

Support of A-CC’s MSJ, Bates ACC-B-029 to -054];

Spratlin Affidavit, Exh. 6 [Appx. 2, Exh. C to A-CC’s

Brief in Support of A-CC’s MSJ, Bates ACC-C-069 ff,

esp. Bates ACC-C-075, -077, -080, -086, -090, -091].

The documents included a report by A-CC’s consultant, Earth Tech, establishing that all developed

property, by simply being developed, contributes to

stormwater issues that must be addressed. Clark

Affidavit, Exh. 2, Part 1, pp. 1-2, 5-1, 5-2, 4-3, Fig. 4-1

[Appx. 2, Exh. B to ACC’s Brief in Support ofA-CC’s

MSJ, Bates ACC-B-014, -034, -035, -031, -032]. Furthermore, there are aspects of the compliance program

that are county wide, but from which all developed

property owners’ benefit, albeit in an indirect and

intangible way. Clark Affidavit, Exh. 2, Part 1, pp. 5-14,

3-1 [Appx. 2, Exh. B to A-CC’s Brief in Support of ACC’s MSJ, Bates ACC-B-051, - 020]; Raessler Depo., pp.

50-51.

One of Plaintiffs’ primary arguments revolves

around the fact that roads and sidewalks, although

impervious, are not charged a fee. The documentation

establishes A-CC considered how to handle stormwater

on roads and bridges. Clark Affidavit, Exh. 4 [Appx. 2,

Exh. B to A-CC’s Brief in Support of A-CC’s MSJ, Bates

ACC-B-059 ff]; Clark Affidavit, Exh. 2, Part 1, pp. 5-13,

47a

2-1, 3-4, 3-5 [Appx. 2, Exh. B to A-CC’s Brief in Support

of A-CC’s MSJ, Bates ACC-B-050, -017, -024, -025]. The

referenced pages reference roads and rights-of way

and those structures use for handling stormwater.

Those roads and bridges, of course, in addition to their

stormwater functions, also bring tenants and customers

to Plaintiffs’ properties. Raessler Depo., pp. 78-79.

These documents 4demonstrate a few crucial facts.

Plaintiffs do have the opportunity under State law to

contest issues related to the stormwater utility. The

documents also establish that A-CC had a rational,

reasonable basis for legislatively adopting the utility

and its chosen funding mechanism.5 Other relevant

facts are set forth in the Conclusions of Law below.

The documents included an Order from a hearing officer

considering and rejecting the party’s Due Process claim, showing

that parties do have a forum in which to raise the types of

challenges raised by Plaintiffs in this matter. Response in

Opposition to Defendant’s Motion for Summary Judgment, Exh. A

(Giese Order), pp. 5-8 [Appx. 2, Exh. A to A-CC’s Brief in Support

of A-CC’s MSJ, Bates ACC-A-007 to -010].

Plaintiffs rely heavily on the affidavit of one of their experts,

Charles B. Wilson, for significant portions of their motion. They

cite him some 31 times in their Proposed Order. A-CC’s expert,

Hector Cyre, has extensive criticisms of Wilson’s expertise and

work history which were primarily in dams and sedimentation

(Gyre Affidavit, pp. 25). Cyre also had significant criticisms of

Wilson’s opinions, especially with regard to Plaintiffs’ contentions

regarding credits (Cyre Affidavit, pp. 25-29), whether roads or

existing infrastructure can be considered part of a stormwater

management system (Cyre Affidavit, pp. 29-30) and the alleged

need to allocate the fees and services among the 18 different

watersheds in Athens-Clarke County. (Cyre Affidavit, pp. 31-32).

Fundamentally, Cyre points out that Wilson demonstrates no

experience with local government stormwater management

systems. Cyre also criticizes the work of Plaintiffs’ experts Alan

Perry (Cyre Affidavit, pp. 35-41), and Nancy O’Hare. (Cyre

48a

Plaintiffs’ Complaint in SU17CV1134 alleges five

counts. Count I is a § 1983 claim alleging violations of

the federal Due Process and Equal Protection Clauses;

Count II is a § 1983 claim alleging violations of the

federal Takings Clause; Count III seeks Declaratory

Judgment that the utility fee is unconstitutional and

may not be collected from Plaintiffs; Count IV alleges

a violation of federal Due Process because renewal of

a liquor license was withheld from Plaintiff Bonet

because of nonpayment of the utility fees; and Count V

seeks an overruling of the Georgia Supreme Court’s

decisions in Homewood I and McLeod. Homewood

Associates, Defendant in SU16CV845, alleges a twocount counterclaim: Count I is largely identical to the

Due Process and Equal Protection Claims in Count I

of the Complaint in SU17CV1134 and Count II seeks

injunctive and declaratory relief from collection of an

illegal tax and the overruling of Homewood I and

McLeod, similar to Counts III and V of the Complaint

in SU17CV1134.

Affidavit, pp. 32-34). Based on the briefing initially submitted, the

parties informed the Court that consideration of Plaintiffs’

challenge to Cyre’s opinions would not be necessary to decide the

motions for summary judgment. After the initial oral argument

was suspended, A-CC informed the Court that it would be relying

on Cyre’s opinions, presumably because Plaintiffs raised

arguments at oral argument not clearly articulated in their

briefs. While the Court does not rely on Cyre’s opinions in

granting A-CC’s motion for summary judgment, it cannot ignore

this record evidence in considering Plaintiffs motion for partial

summary judgment, especially since A-CC informed the Court

and the Plaintiffs of the need.

49a

SUMMARY OF THE PARTIES ARGUMENTS

A. A-CC’s Claims

A-CC claims that its stormwater ordinance has been

upheld by the Supreme Court of Georgia and meets all

the statutory, United States and Georgia constitutional requirements for the imposition of the stormwater

fees upon the Plaintiffs’ properties. Homewood I;

McLeod. A-CC also argues that the legal criteria for

evaluating Plaintiffs’ constitutional claims requires

the Court dismiss those claims.

B. Plaintiffs’ Claims

Plaintiffs counter A-CC’s reliance on the binding

Georgia Supreme Court authority, arguing that the

facts of record in this case are substantially different

from those in Homewood I and McLeod. Plaintiffs

argue that except for Homewood Village none of them

have had their day in court to challenge the ordinance

and thus are not bound by the previous decisions.

Plaintiffs’ claims fall into two general categories.

First, Plaintiffs claim A-CC does not have the legal

authority to impose any service or user fee even upon

developed properties for any activity other than to

“provide the following services: ... (6) Storm water ...

collection and disposal systems,” authorized by the

Georgia Constitution. See Ga. Cong. Art. 1X § 2,

¶ III(a)(6). Second, the Plaintiffs make an as-applied

claim that A-CC’s Ordinance imposing stormwater

fees on their particular properties is an unconstitutional denial of due process and equal protection, and

amounts to a taking in violation of the Fourteenth and

Fifth Amendments to the United States Constitution

and similar provisions under the Georgia Constitution.

See Ga. Const. Art. I, § I, Para. I & II. Plaintiffs also

contend that McLeod and Homewood I created an

50a

unconstitutional irrebuttable presumption that the ACC stormwater fee is voluntary, that Plaintiffs can

obtain a credit against their stormwater fee, that A-CC

provides a special benefit to Plaintiffs’ properties for

which the stormwater fee is imposed, and that the

stormwater fee is a fair approximation of the cost to ACC of providing a special benefit. Plaintiffs assert that

the alleged rebuttable presumption violates the due

process clause of the Fourteenth Amendment to the

United States Constitution and provisions of the

Georgia Constitution. Ga. Const. Art. I, § I, Para. I &

II.

CONCLUSIONS OF LAW

A. A-CC Has Ample Authority to Create a Storm

Water Utility and Charge a Fee.

1. A-CC is authorized to take all actions

necessary and proper to comply with federal

mandates for managing stormwater.

Plaintiffs claim that A-CC does not have legal

authority under state law for all of the activities for

which it charges the stormwater fee. Plaintiffs first

argue that, while the authority for A-CC’s Stormwater

user fee is found in the Georgia Constitution, Ga.

Const. Art. a § 2, ¶ III(a)(6), that provision does not

authorize a user fee, nor does it authorize “services”

other than for “collection and disposal systems.” Id. As

set forth below, when government is authorized to

perform an act, the government (especially a county)

have the powers necessary and proper to actually

perform the action, including funding those activities.

The cited constitutional provision, the Supplementary

Powers Clause, does not state anything with regard to

funding the exercise of any of the various powers

51a

authorized. See McLeod, 278 Ga. at 242-43, 599 S.E.2d

152, 153-54.

Pointing to a provision in Georgia’s Revenue Bond

law, O.C.G.A. § 36-82-62, Plaintiffs argue that only the

physical infrastructure may be funded. The Supreme

Court in McLeod actually cited this statute in

reasoning that a stormwater utility and the associated

fees were a legitimate, governmental function and a

service for which the local government can charge fees.

Id.

The Supreme Court noted, specifically, that a local

government’s “power to collect fees or charges from

undertakings are ‘clearly independent of power to

issue revenue bonds.’” Id. The Supreme Court held

that “pursuant to the Home Rule section of the Georgia

Constitution and general statutory law, the county was

authorized to establish the stormwater utility and

impose a utility charge for the stormwater management services.” Id. In other words, the fee may be used

for the general provision of “stormwater management

services” and those legitimately include things other

than the physical structures under the authority of

McLeod.

In addition to the Supreme Court’s analysis in

McLeod of the independent power to establish a utility

and impose fees, the A-CC Charter as well as the

statute relied upon in McLeod, both contain what is

commonly referred to as a “necessary and proper

clause.” While Plaintiffs attempted to limit A-CC to

relying upon O.C.G.A. § 36-82-62(a)(3), another subsection provides that in performing an undertaking,

the government may “make all contracts, execute

other instruments and do all things necessary or

convenient in the exercise” of what is otherwise a

proper governmental power. O.C.G.A. § 36-82-62(a)(6)

52a

(emphasis supplied). Moreover, The A-CC Charter

actually has multiple necessary and proper provisions.

Section 1-104, “Powers of the unified government”

authorizes, among other powers, the following:

government shall have all rights, powers,

duties, privileges and authority herein conferred or herein enlarged, and such other

rights, powers, duties, privileges and authority

as may be necessary and proper for carrying

the same into execution, and also all rights,

powers, duties, privileges and authority,

whether express or implied, that may be now

vested in or hereafter granted to counties or

municipal corporations, or both, by the

Constitution and laws of the State of Georgia,

including the powers vested in the unified

government by this Charter.

(d) The

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