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What Is a “Standby Service Charge?”

IVGID 101 Posted on by

As we’ve elsewhere documented, according to staff and past District Boards, the Recreation (“RFF”) and Beach (“BFF”) Facility Fees are NRS 318.197(1) standby services charges

For the “availability of use of the recreational facilities (more particularly) described” in the Report the Board adopts each year pursuant to NRS 318.201(9)1.

So does the Incline Village General Improvement District (“IVGID”) Board of Trustees know what the term “standby service charge” actually means? What about you the reader?

The law is clear that just because staff and past Boards have called the RFF/BFF “standby service charges,” doesn’t necessarily make them so. That’s because “the nature of (a)…charge that (the) law imposes is not determined by the label given…but (rather,)…its operating incidence.”2 Thus “courts will determine and classify (monetary exactions) on the basis of realities”3 rather than labels, looking to their “operative effect.”4 Especially when as here the RFF/BFF were “undoubtedly drafted with [NRS 318.197(1)’s “rates, tolls and charges” labeling] firmly in mind.”5 In other words, courts will not allow the ends to justify the means.

Although NRS 318.197(1) allows GID Boards to “fix…standby service…charges,” nowhere is the term defined. In fact, do a search of the entire NRS. Nowhere will you find a definition anyplace! Nor has the Nevada Supreme Court ever interpreted the term. Nevada is not the first state to have “neglected” to define the term “standby service charges.” California first grappled with this issue in 19776 and then again in 20007:

“The term ‘standby charge’ is not defined in (the California Constitution). Nor do the parties point out any statutory or other definition of that term. It does not appear in Black’s Law Dictionary (7th ed. 1999) or in Webster’s Third New International Dictionary (1986).”

And just like California, the term is not defined in the Nevada Revised Statutes (“NRS”). Nor can we point to any statutory nor other definition of the term. But unlike California, the Nevada Supreme Court has never defined the term. So we must defer to courts in other jurisdictions because the term “may have an accepted meaning in the area of law addressed by the statute…(Or) it may have been borrowed from another statute under which it had an accepted meaning8…Or it may have had an accepted and specialized meaning at common law9. In each of these possible situations, the accepted meaning governs and the word or phrase is considered a technical term or ‘term of art.'”10 Stated a bit differently,

“[W]here Congress borrows terms of art which are accumulated in the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such a case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as departure from them.”11

And that’s the case here.

Thus turning to those courts then which have addressed this “technical term or term of art,”12 they have defined the term to mean:

1. Some sort of monetary levy against6 and of direct benefit13 to real property;

2. Imposed for the mere availability to access and receive water and/or sewer14 service(s)15;

3. Where delivered16 or capable17 of delivery18 to the real property assessed;

4. Whether those services are actually used or not7;

5. Where the real property assessed is not currently a water and/or sewer customer19.

Conclusion: So now you know!

  1. See page 232 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 meeting (“the 5/26/2022 Board packet“).
  2. See Clean Water Coalition v. The M Resort, LLC, 127 Nev. 301, 255 P. 3d 247, 256 (2011) where it cites State v. Medeiros, 89 Haw. 361, 973 P.2d 736, 741 (1999).
  3. See Hukle v. City of Huntington, 134 W.Va. 249, 58 S.E.2d 780, 783 (1950).
  4. See Emerson College v. City of Boston, 39 Mass. 415, 462 N.E.2d 1098, 1105 (1984).
  5. See Rider v. County of San Diego, 1 Cal.4th 1, 15, 820 P.2d 10 (1991).
  6. See Kennedy v. City of Ukiah, 69 Cal.App.3d 545, 553, 138 Cal.Rptr. 207 (1977).
  7. See Keller v. Chowchilla Water Dist., 80 Cal.App.4th 1006, 1011, 96 Cal.Rptr. 246, 250-51 (2000).
  8. In appropriate circumstances, courts will assume that “adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording” [see Carolene Products Co. v. United States, 323 U.S. 18, 26 (1944)].
  9. See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989).
  10. See pages 7-8 of the Congressional Research Service, Larry M. Eig, Specialist in American Public Law, Statutory Interpretation: General Principles and Recent Trends (September 24, 2014).
  11. See Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240 (1952).
  12. See Kennedy v. City of Ukiah and Keller v. Chowchilla Water Dist., supras, for examples.
  13. See Solvang Mun. Improvement Dist. v. Board of Supervisors, 112 Cal.App.3d 545, 552, 169 Cal.Rptr. 391 (1980).
  14. See Medeiros, supra, at 89 Haw. 367, 973 P.2d 742; Chapman v. City of Albuquerque, 65 N.M. 228, 335 P.2d 558, 562 (1959); Graham v. City of Lakewood Village, 796 S.W.2d 800, 801 (1990); Lakeside Utilities Corp. v. Bernum, 5 Ohio.St.3d 99, 449 N.E.2d 430, 431 (1983).
  15. In other words, those pertaining to public health and sanitation [see McMillan v. Texas National Resources Conservation Comm’n, 983 S.W.2d 359, 365 (1998)].
  16. See State v. City of Port Orange, 650 So.2d 1, 3 (1994); Chapman, supra, at 335 P. 561.
  17. In other words, standby service charges require services to actually be “standing by” or “immediately available” to be delivered to real property (see Kennedy v. City of Ukiah, supra).
  18. See Chapman, supra, at 335 P. 564.
  19. Because once a property becomes an actual customer of those services, by definition, they are no longer “‘standing by’ (n)or ‘immediately available’ to be connected to the property to be benefited…(Instead,) the benefit…is in fact (actually being) provid(ed)”6[see San Diego Cty. Water Auth. v. Metro. Water Dist., 117 Cal.App.4th 13, 27, 11 Cal.Rptr. 446, 457 (2004)].

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