Villages C P3&4-CS 980901tract, in violation of due process,
since the statute advanced a legiti-
mate governmental interest by fur-
thering the purpose of the
mechanics lien act--to protect sub-
contractors. Generally, ecoBonlic
legislation of this type satisfies
requirements of due process so long
as it is rationally related to a legiti-
mate governmental purpose. Last-
ly, no "contract clause" violation
existed since a statute cannot be said
to impair a contract that did not
exist at the time of its enactment.
rains in 1986, a Texas homenwner
suffered major damage to her home,
due to flooding from a city-owned
drainage channel and culverts cross-
ing or adjoining her property. She
also alleged that she suffered and
continued to stifler severe mental
anguish due to fear of tmure dam-
age. She brought an action against
the city of Tyler, Texas, alleging vari-
ous theories under CO~l,nlon ]aw and
the state Tort Claims Act.
The state claimed statutory
immunity under the same act. A 1987
amendment to thc act reclassified
the operation of storm sewers as gov-
ernmental fhnctions tbr which such
imnmnity applied. The act was made
retroactive. Plaintiff challenged the
legality of such retroactive effect.
The court at City of Tyler vs. Likes,
962 S.W. 2d 489 (lex. 1997) initially
ruled that the city's design and plan-
ning of its culvert system betbre the
effective date of the act were quasi-
judicial functions that were subject
to governmental immunity under
common law. Acts of the city' itl con-
structing and maintaining d~c storm
sewer, however, were proprietary
functions at common law.
Therefore, the city could con-
ceivably be liable for negligent per-
tbrmance of those acts both because
such action was performed in the
city's private capacity' for the benefit
of the city's residents, dud also
because the functious were in fact
ministerial, not design functions.
Tbe court reversed a summary judg-
ment that rnled in favor of the city.
By contrast, detkndant's alleged fail-
ure to keep culverts clear of debris
that might interfere with the flow of
water would be considered a govern-
mental fi~nction for which city was
immune from liability.
The court also upheld the
retroactive application of the 1987
amendment, ruling that statutes
affecting a remedy are not unconsti-
tutionally retroactive unless the rem-
edy is entirely eliminated. The
plaintiff still could argue common
law claims, which the court said was
a sufficient remedy.
Thc power to amend was also
specifically authorized by a provi-
sion of the state constitution allow-
ing abrogation of common-law
rights of action against municipal-
ities. Therelbrc, tile interpretation
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held that the amendment did not National Solid Wastes Management haulers violates the Commerce
violate the"open courts"provision Association,the Waste Management Clause of the U.S. Constitution.
of the state constitution. Association of New Jersey,and four This is the fourth legal action
In addition,the c•tywas notliable waste services companies filed a law-
against NewJersey waste authorities
under a"nuisance"theory.The city suit against Burlington County,New challenging their practice of
did not intentionally do anything to Jersey,to stop it from allegedly ille attempting to collect illegal EICs.In
increase the amount of water in its gally collecting environmental April,the NSWMA and several of its
watershed;the culvert system was sub investment charges (EICs). members sued Atlantic and Glou
stantially completed over ten years EICs are taxes levied on munic cester counties to stop them from
before the home was built and no ipalities,private citizens,business enforcing EICs. The industry also
improvements had since been made es,and solid waste haulers to ensure filed an amicus brief in support of
to that system;lastly, the system was the payment of government debt another lawsuit brought by Pater-
not abnormal or out of place in its following the U.S. Supreme Court son, New Jersey, against Passaic
surroundings.Finally,the court held decision that struck down flow con County on similar grounds.
that mere negligence on the part of trol.Flow control,which some esti Legislation has been intro
a government entity, hich eventual- mate has resulted in New Jersey duced to address the issue. The
N
ly contributes to property destruc taxpayers paying over$2 billion in proposed state legislation is intend
tion,was not a"taking"of property excessive disposal fees over more ed to create open markets, rely on
under the Fifth Amendment. than 20 years, created a system competition, and create a stable
where counties could direct where source of funding to pay off the
solid wastes were sent for disposal. debt. One bill would levy a tax of
ew Jersey waste The lawsuit asserts that up to six percent on trash haulers'
industry represents- Burlington County's effort to col revenues;another bill would levy a
•
tives filed suit against lect EICs is illegal under New Jer three percent tax on haulers and
allegedly illegal environmen- sey law.It also alleges that the effort take the rest from general rev
tal charges. In June 1998 the to collect an EIC from solid waste enues. PW
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140■PUBLIC WORKS/September 1998