Many are of the opinion that all local governments are empowered to adopt any “fees” of their choosing simply because they are “governments.” In fact, in Incline Village/Crystal Bay this opinion extends to monetary exactions of all kinds as long as the argument can be made that those exactions somehow relate to the powers the District is authorized to exercise. Simply because someone at sometime disingenuously chose to assign the “fee” label. But as will be demonstrated, such opinions are not warranted. Since each State defines for itself what powers it may grant to local governments, and in Nevada they are limited as “the legislature shall provide…and…restrict,”¹ the questions here are: what powers do GIDs have to fix and change rates, tolls and charges²; and, what fees in particular may they fix? The answer appears at Title 25³ of Chapter NRS 318. And because of NRS 244.137(2)-(4) and 268.001(2)-(4)

“The Nevada Supreme Court has adopted and applied Dillon’s Rule⁴ to county, city and other local governments.”⁵ The Rule⁶ instructs that: a local government’s powers⁷ are limited and only extend to those which are: 1) granted in express words; 2) necessarily implied or…incident to…powers expressly granted; and, 3) absolutely essential to the declared objects and purposes of the (municipal) corporation – not simply convenient, but indispensable⁸. The Rule also states that any reasonable doubt by the court as to whether a power has been granted will be (construed) against the local government.”⁹

What powers GIDs” have to fix rates, tolls and charges generally, and what fees they may fix, involves a three (3) part analysis:

1. The “fix(ing), and from time to time increas(ing) or decreas(ing various)…rates, tolls or charges other than special assessments.”¹⁰ Those rates, tolls and charges may “includ(e), but not be limited to, service charges and standby service charges, for services or facilities furnished…charges for the availability of service, annexation charges, and minimum charges;”¹⁰

2. For “services pertaining to any such basic power…the district may exercise;”¹¹ and,

3. As a “right…and power…incidental to or implied from (a) specific power (i.e., furnishing services¹²)…granted in…chapter”¹³ NRS 318¹⁴.

Since by its express words the Legislature has created the GID law¹⁵ which includes the express statutory provisions noted above pertaining to the fixing and changing of rates, tolls and charges; the Incline Village General Improvement District (“IVGID”) is a GID¹⁶; and, Dillon’s Rule instructs the extent of the District’s rate fixing powers are as aforesaid. In other words, “in most instances, any claim of power…must be strictly and narrowly construed.”¹⁷

And now you know!

1. See Article 8, Sec. 8 of the Constitution.
2. We believe the NRS 318.197(1) term (see below) “rates,” “tolls and charges” represents different names for “specific services” for which “fixed price(s are) charged (see https://www.investopedia.com/terms/f/fee.asp). Known collectively as “fees.”
3. See Public Organizations for Community Service (go to https://www.leg.state.nv.us/nrs/).
4. See Tucker v. Mayor and Bd. of Alderman, 4 Nev. 20, 26 (1868); State ex rel. Rosenstock v. Swift, 11 Nev. 128 (1876).
5. Like GIDs {see Waltz v. Ormsby County, 1 Nev. 370, 377 (1865) [“such officers can have no powers except those expressly granted by the legislature(; a principle)…too well established to admit of question now.”]}.
6. See NRS 244.137(3) and 268.001(3).
7. We understand there are an “absence of (reported cases) involving (the powers of) special districts” in light of Dillon’s Rule. This “absence…most probably…stems from the fact…such districts are created to carry out relatively narrow, statutorily specified purposes with the method of financing those activities also prescribed by the underlying statute. This is far different from the situation Nevada cities and counties face. An increasing myriad of functions imposed by the state or federal governments, with a taxing regime almost fully centralized and controlled by the state government.”⁸ Notwithstanding, in City of Henderson v. Kilgore, 122 Nev. 331, 131 P.3d 11, 12 (2006) Dillon’s Rule was applied [“NRS Chapter 288, does not expressly grant the Employee-Management Relations Board (the) power to issue preliminary injunctive relief and…such power cannot be implied”] to invalidate a Nevada local government’s exercise of ultra vires powers. Similarly, in Lamb v. Mirin, 90 Nev. 329, 526 P.2d 80, 82 (1974) our Supreme Court declared that “whenever a legislature sees fit to adopt a general scheme for the regulation of particular subject, local control over the same subject, through legislation, ceases.” In other words, local government has no express powers.
8. Also go to https://whyy.org/articles/what-is-home-rule/.
9. See https://www.nvbar.org/wp-content/uploads/NevLawyer_June_2013_Dillon’s_Rule.pdf; NRS 244.137(4) and 268.001(4).
10. see NRS 318.197(1).
11. Such as electric light and power [see NRS 318.116(1)]; energy for space heating [see NRS 318.116(18)]; emergency medical services [see NRS 318.116(19)]; the extermination and abatement of mosquitoes, flies, other insects, rats, and liver fluke or Fasciola hepatica [see NRS 318.116(2)]; and, controlling noxious weeds [see NRS 318.116(20)].
12. NRS 318.100(2) instructs that “the district may…furnish services pertaining to any such basic power which the district may exercise.”
13. See NRS 318.210.
14. Given NRS 318.175(2) instructs that “the board shall have the power…to…operate and maintain any district project,” and NRS 318.145 instructs that “the board shall have the power to operate…the improvements acquired by the district,” the right to charge rates, tolls and charges for access to and use of those improvements is “incidental” to specific powers granted in NRS 318.
15. See NRS 318.010.
16. See NRS 318.015(1) which instructs that “each district organized pursuant to the provisions of this chapter shall be a body corporate and politic…quasi-municipal corporation” and general improvement district.
17. See A Discussion of Home Rule in Nevada published February 18, 2010 by the Committee to Study Powers Delegated to Local Governments.