HOMEWOOD ASSOCIATES INC. v. UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY

• Court: Supreme Court of Georgia
• Decided: October 15, 2025
• Docket: S25A0555
• Status: Published

Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion. In the Supreme Court of Georgia

Decided: October 15, 2025

S25A0555. HOMEWOOD ASSOCIATES, INC. et al. v. UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY.

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

1As 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 Athens-Clarke 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). applies to Appellants’ claim in this case that ACC’s stormwater

utility charge is a tax that violates the taxation uniformity provision

of 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

2 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. 2 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 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

3 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 Athens-Clarke County, Ga. Code of Ordinances ch. 5-

4, §§ 5-4-1 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 stormwater-management ordinance

4 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 Athens-Clarke County, Ga. Code of Ordinances ch. 5-5,

§§ 5-5-1 to 5-5-12).

ACC’s Stormwater Utility Ordinance contains detailed

findings, including the following:

Improper management of stormwater runoff may cause

5 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 long-term 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).

6 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

7 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

8 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 Athens-Clarke County, No. 3:15-CV-

9 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 Athens-Clarke 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.

10 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.

11 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

3 This case was orally argued on April 15, 2025.

12 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

4 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-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. 13 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.

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

Ordinance “allows property owners to reduce the amount of the

14 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.

15 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 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

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

16 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.

17 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”).

18 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 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

5 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). 19 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

20 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 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

6 We will refer to these constitutional provisions as “Takings Clauses.”

7 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

21 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

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

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”).

8 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. 22 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 argue, the fee is not based on a special

23 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

24 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 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

9 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). 25 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

10 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 reasons discussed above,

26 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 property-related

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

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.

27 property owners”). 11 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.

11 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 assess the impact of classes of development rather than the impact of specific parcels of property.”). 28 (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 channeling of stormwater

runoff. Instead, the court merely recognized that because roads and

sidewalks “capture, control and discharge stormwater runoff,” they

29 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

30 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’ 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 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

31 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] 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.

32 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

33 similar language. 12 One would think, given the long 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.

12 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 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). 34 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. (“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

35 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

36 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 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

37 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 legislature, “and will not

38 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.

39 & 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.

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

40 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

13 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.

41 constitutions, and eventually into our current Constitution. See

Elliott v. State, 305 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)

42 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 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)

43 (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

14 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). 15 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); Goodwin, 53 Ga. 410, 414–15 (1874); City of Rome v.

44 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

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. 45 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 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

16 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.

46 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. v. Harrison, 172 Ga. 179, 179 (1931)

(statute taxing businesses operating over five stores at a rate of $50

per store and not taxing at all businesses operating five stores or

less violated uniformity because this “classification is arbitrary and

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). 47 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

48 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).

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

17 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). 49 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 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

18 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. 50 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.