As we’ve demonstrated elsewhere, “each year, the District establishes…annual Recreation…and Beach Facility Fee(s)…collected from property owners within the District through a levy placed on the(ir) property tax bill(s)¹…As part of the annual budget process the Board traditionally approves a resolution which outlines the billing (NRS 318.197²) and collection (NRS 318.201³) process(es) set forth in (the) Nevada Revised Statutes (“NRS”)…which establish…the amount of the…RFF and…BFF to be collected.”⁴ “At (a publicly noticed) meeting the Board…t(akes) action (via resolution⁵)…which…(approves) a final report⁶ contain(ing) a description of each parcel of real property (allegedly) receiving…services and facilities (from the District, and) the (final) amount of…charge(s)…for such year.”⁷ Although that resolution and report describe the RFF/BFF, in part, as “service charges⁸…for…the (mere) availability of the use of (the Incline Village General Improvement District’s) ‘IVGID’s’ beaches” and other delineated public recreation facilities⁹, since the statutory authority for these “fees” is the broader NRS 318.197 which according to staff and past Boards encompasses “charges for the availability of services,” here we answer the question whether NRS 318.197 encompasses “charges for the availability of facilities” and if so, what are those charges?

Where Does NRS 318.197 Recognize “Charges For The Availability of Service?” Return to NRS 318.197(1), and read it carefully: “The board may fix, and from time to time increase or decrease…charges for the availability of service.” Okay. But what about charges for the availability of facilities? After all, staff and past Boards have told us the District’s Recreation (“RFF”) and Beach (“BFF”) Facility Fees¹⁰ represent charges “for the availability of use of the recreational facilities (therein) described.”¹¹ Notwithstanding, the answer to this question is nowhere.

Statutory Construction: Given NRS 318.197 states that “the board may fix, and from time to time increase or decrease…rates, tolls or charges…including, but not limited to…” can a “charge for the availability of” facilities be included therein? To answer this question, we examine the rules of statutory construction. The interpretation of a statute begins with its literal words¹². Where as here the language is plain and unambiguous on its face, it is inappropriate to resort to any ancillary construction aids¹³. Therefore, this rule limits a court from ignoring parts of a statute in order to reach a more reasonable construction. Or “to insert words…the Court believes the legislature left out, be it intentionally or inadvertently.”¹⁴

Expressio Unius Est Exclusio Alterius: Stated differently, Nevada recognizes the rule of expressio unius est exclusio alterius¹⁵. That rule states that “where a…statute specifies certain things, the designation of such things excludes all others.”¹⁶ Here “the Court may not, through judicial fiat, second-guess the legislature and decide, sua sponte, that public policy would be better served by” inferring the power to fix a type of charge not expressly stated. “In the absence of clear legislative intent, considerations of public policy must be declared by the legislature and not the Court.” Therefore, “if the glove doesn’t fit, you must acquit.”¹⁷

Dillon’s Rule: “provides that (a)…governing body…possesses and may exercise only the following powers and no others: (a) those…granted in express terms by the Nevada Constitution, statute or…charter; (b) those…necessarily or fairly implied in or incident to the powers expressly granted¹⁸; and, (c) those…(absolutely) essential to the accomplishment of the declared objects and purposes of the (local governing body at issue) and not merely convenient but indispensable.”¹⁹ And “if there (be) any fair or reasonable doubt concerning the existence of a power, that doubt is (to be) resolved against the governing body…and the power (be) denied.”²⁰ Given the express words of NRS 318.197 fail to recognize a charge for the availability of facilities, it does not exist. And “if there (be) any fair or reasonable doubt concerning the existence of (such) a power, (here) that doubt is (to be) resolved against (IVGID)…and the power (be) denied.”

So there you have it. In Nevada no GID has the power to fix an involuntary charge for the mere availability of facilities!

1. See page 102 of the packet of materials prepared by staff in anticipation of the Board of Trustee’s (“Board’s”) May 27, 2020 meeting (“the 5/27/2020 Board packet”).
2. Which allows GID boards to “fix (in part)…recreational facilit(y)…rates, tolls and charges (in general)…for…the availability of” services.
3. Which allows “any (GID) board which has adopted rates pursuant to…chapter (NRS 318 to)…elect to have such charges for the forthcoming fiscal year collected on the tax roll.”
4. See page 103 of the 5/27/2020 Board packet.
5. See NRS 318.201(9). For an example of the type of resolution, see pages 185-193 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2021 meeting (“the 5/26/2021 Board packet“).
6. An example of that report (for fiscal year 2021-22) appears at pages 188-193 of the 5/26/2022 Board packet.
7. See NRS 318.201(8) and (9).
8. See ¶4 at pages 185-186 of the 5/26/2021 Board packet.
9. See ¶4(b) at page 186 as well as ¶I at page 190 of the 5/26/2021 Board packet.
10. 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“).
11. See ¶I at page 234 of the 5/26/2022 Board packet.
12. See Arguello v. Sunset Station, Inc., 127 Nev. 365, 370, 252 P.3d 206, 209 (2011).
13. See State Farm Mut. v. Comm’r of Ins, 114 Nev. 535, 540, 958 P.2d 733 (1998); Erwin v. State of Nevada, 111 Nev. 1535, 1538, 908 P.2d 1367, 1369 (1995) [quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990)]; Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1302, 148 P.3d 790, 792-793 (2006).
14. See Saint Alphonsus Reg’l Med. Ctr. v. Gooding Cty., 159 Idaho 84, 356 P.3d 377, 382 (2015).
15. See Nunez v. Sahara Nevada Corp., 677 F. Supp. 1471, 1477 (D. Nev. 1988).
16. See Local 1494 of the Int’l Ass’n of Firefighters v. City of Coeur d’Alene, 99 Idaho 630, 639, 586 P.2d 685, 688 (1999).
17. Go to https://1995blog.com/2020/09/27/quote-of-the-1990s-if-it-doesnt-fit-you-must-acquit-25-years-on/.
18. NRS 318.210 is the statutory embodiment of this portion of Dillon’s Rule: a GID “board shall have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted in this chapter.”
19. See NRS 244.137(3) and 268.001(3).
20. See NRS 244.137(4) and 268.001(4).