Introduction: Many Incline Village/Crystal Bay parcel owners are under the impression all of their neighbors’ parcels are being assessed the same BFFs and/or RFFs as their parcels are being assessed. After all, if you believe the District’s representations that its recreation and beach facilities furnish “special benefits” to property³¹, aren’t those “benefits” the same insofar as every parcel within the Incline Village General Improvement District’s (“IVGID’s”) boundaries is concerned? Sadly that’s not the case, because the District has created a number of express and latent de facto exceptions/exemptions from payment. And what’s worse, ultimately District staff reserve the right to themselves pick and choose which parcels and users get an exception/exemption on an individual case-by-case basis!

But it turns out IVGID has no power to create any exemptions whatsoever! The express NRS 318.197(1) right of a general improvement district (“GID”) Board to adopt rates, tolls and charges does not by implication nor otherwise include the right to exempt any person or property from paying rates, tolls and charges for “special benefits” furnished. So how can IVGID’s exemptions legitimately exist? Before we make our case the District has no power to exempt anyone or any parcel of real property from paying the RFF/BFF (see discussion below), we want the reader to see the extent to which the District has gone to exempt/except itself and its favorite collaborators.

The District’s various exceptions/exemptions are recognized in a number of express District policies, ordinances, and resolutions. For instance,

I. Policy No. 16.1.1: Putting aside the fact IVGID has no power to pass laws, policies nor policy resolutions¹, former IVGID Boards have adopted a series of policies advanced by staff, and this one in particular addresses the District’s “Recreation Roll Policy.”² ¶2.6 of this Policy addresses “Real Property Exempt from Paying Fee Assessments.” It defines “exempt Real Property (a)s real property…located within the current geographic boundaries of the District…which Washoe County has exempted from paying Washoe County property tax. (It) includes, but is not limited to, real property…used or intended for use for religious or educational purposes, condominium and townhouse common areas that do not include…Dwelling Units, and publicly owned property.”³ Additionally, ¶5.3 of this Policy instructs that “unbuildable parcels” may become exempt from paying the BFF and/or RFF if “removed from the Recreation Roll by petition.”⁴

II. Resolution No. 1889¹: As discussed elsewhere, each year the IVGID Board adopts a per parcel/dwelling unit RFF/BFF and orders their collection on the county tax roll. By way of example, on May 26, 2021 the Board adopted Resolution No. 1889. In accordance with NRS 318.201(1)⁵, the Board adopted⁶ a “Report for Collection on the County Tax Roll of (2021-22’s) Recreation (and Beach) Standby and Service Charges” aka the RFF and BFF⁷ (“Report”). ¶I(D) of the Report addressed “exceptions” to payment and recognized the following “except(ions) and exclu(sions) from the charges imposed…lots, parcels and areas of land…or…portions thereof used, or intended to be used, for religious…or educational purposes; common areas without occupied structures appurtenant to a condominium or townhouse cluster; and, publicly owned lands…In addition, any parcel which (wa)s: (1) undeveloped…(2) subject to a deed restriction acceptable to IVGID staff, preventing any and all development of the parcel in perpetuity…and (3) whose owner agree(d) to waive in perpetuity on his own behalf, as well as…his successors(‘) and assigns(‘ behaves) any right to demand in the future…recreation privileges arising from or associated with said parcel (wa)s also excepted and excluded from the charges imposed.”⁸

III. The General Manager Exemption: ¶2.6 of Policy No. 16.1.1³ and ¶I(D) of the Resolution No. 1889⁸ Report set forth some of the express exceptions/exemptions to the BFF and/or RFF. However, it turns out there are a whole slew of additional exceptions/exemptions not expressly published (hence the label “de facto“). And the first such de facto exception/exemption is what we’ve labeled the “General Manager Exemption.” The reader can find evidence of this exception/exemption in Ordinance No. 7, Resolution No. 1619 and Resolution No. 1701. Let’s examine each.

A. Ordinance No. 7¹: Many property owners believe their parcels are required to pay the BFF and/or RFF in order for them/their tenants/guests to access and use the District’s beach and recreation facilities. They point to ¶28 of Ordinance No. 7 which instructs “all property taxes, special assessments and recreation fees on a parcel must be paid for the current and prior years (in order) to maintain (a) parcel’s (as opposed to person’s) eligibility (to exercise)…recreation privileges.”⁹ But ¶68 of Ordinance No. 7¹⁰ suggests that this payment prerequisite is really not required because ¶71 of Ordinance 7¹¹ which in essence allows the GM and his designee(s) to grant “recreation privileges to (essentially)…anyone…in the past, present or future.” Hence the de facto GM exemption.

B. Resolution No. 1619¹: purports to address “Complimentary Recreation Privileges” aka “access to IVGID recreation (and beach) facilities and programs (by) certain persons without (paying) the customary charges that would (normally) apply to such access.”¹² In other words, pursuant to this resolution “the General Manager…department head in charge of each recreational facility or program (and)…no more than two (delegable) subordinates…shall have the authority to waive facility or program charges to a specific person or group of people, including District employees, even if they are local parcel owners who do not/have not pa(id) the BFF and/or RFF.

C. Resolution No. 1701¹: purports to address recreational and beach facility use by qualified non-profit organizations, governmental agencies, local schools, or the promoters of activities sponsored by whomever that are based in or benefitting Incline Village/Crystal Bay (this use is typically for fundraising purposes¹³). Per ¶2 of Step I on page 1 of Resolution No. 1701, “all requests (must) be made to (the)…applicable District Venue Manager(s)” who shall have the discretionary authority (via the GM) to grant facility or program use to a specific group of people, even if they are local parcel owners who do not/have not pa(id) the BFF and/or RFF.

In our view every other parcel excepted/exempted from paying the RFF/BFF by the GM, should be made to pay just like every other parcel within the District’s boundaries!

IV. The Pet Network Exemption: Another de facto exception/exemption insofar as payment of the BFF and/or RFF is/are concerned which is not expressly provided for in either Policy No. 16.1.1 nor the Report, is one we’ve labeled the “Pet Network Exemption.” The Pet Network Humane Society (“Pet Network”) is a domestic non-profit corporation¹⁴ which owns the Incline Village parcel (APN 124-071-47) commonly known as 401 Village Blvd. The Pet Network is not a public body, nor is its use of this parcel for religious or educational purposes. In other words, literally, this parcel is not entitled to exemption from paying the RFF/BFF under either Policy No. 16.1.1 or the Report. Yet on September 29, 2010 a previous District Board removed this parcel from the Recreation Roll (at the Pet Network’s request), and thus excepted/exempted it from paying the RFF/BFF. Thus notwithstanding the occupants of this parcel benefit from the same alleged “special benefits” the occupants of every other assessed parcel benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”], and there is nothing about this business which warrants exemption, as aforesaid this parcel is not assessed a RFF/BFF.

Moreover, whether there are other parcels that past Boards have excepted/exempted from paying the BFF and/or RFF is unknown. Given this District’s behavior, we wouldn’t put it past former Boards to have granted similar relief. Notwithstanding, if the Board had the power to except/exempt this parcel from paying the RFF/BFF, it had and has the power to except/exempt essentially any other parcel within the District’s boundaries anytime! And that’s exactly what the 1981 District Board did insofar as hotel/motel guestrooms were concerned (see discussion below).

Several local parcel owners have brought evidence of this disparate treatment to the Board’s attention on several occasions in the past, the latest being May 26, 2021¹⁵ and November 23, 2020¹⁶. Yet it did nothing!

In our view Pet Network should be made to pay the RFF/BFF just like every other parcel within the District’s boundaries!

V. The Hotel/Motel Guestroom Exemption: Another de facto exception/exemption insofar as payment of the BFF and/or RFF is/are concerned which is not expressly provided for in either Policy No. 16.1.1 nor the Report, is the one we’ve labeled the “Hotel/Motel Guestroom Exemption.” Rather than repeating ourselves insofar as this exception/exemption is concerned, we simply refer the reader to our comprehensive discussion of this topic at our Why Isn’t Each Hotel/Motel Guestroom Within IVGID’s Boundaries Assessed a Separate BFF and/or RFF web page.

In our view all hotels/motels within IVGID’s geographical bouncaries should be made to pay separate RFFs/BFFs for each of their guestrooms, just like every other parcel with multiple dwelling units within the District’s boundaries is made to pay!

VI. The Lessee of IVGID Exemption: Another de facto exception/exemption insofar as payment of the BFF and/or RFF is/are concerned which is not expressly provided for in either Policy No. 16.1.1 nor the Report, is the one we’ve labeled the “Lessee of IVGID Exemption.” IVGID is one of the largest landowners in Incline Village/Crystal Bay. On a number of occasions it has rented out publicly owned property to private businesses whereon the latter conduct their private businesses. These businesses are identical to all other commercial enterprises in our community but for one important distinction. Instead of operating on privately owned property which is assessed the BFF and/or RFF, they operate on IVGID owned property which the IVGID Board has declared to be exempt from payment⁸. In our view it’s one thing for IVGID to engage in commercial business operations on public lands and avoid paying a RFF/BFF, and quite another for its third party lessee(s) to engage in the same operations and similarly avoid paying a RFF/BFF. Thus when as here publicly owned land is used for private commercial purposes we take exception to those lands/portions thereof being exempt from payment of the RFF/BFF for the very reason the Washoe County Assessor (“Assessor”) takes exception¹⁷ when exempted real property is leased to private parties engaged in business pursuits¹⁸.

So what parcels or portions thereof¹⁹ are we speaking of?

A. Parasol Community Nonprofit Center Building: Let’s start with the parcel APN 127-030-15. The Parasol Tahoe Community Foundation, Inc. (“Parasol”) has constructed a building located on this parcel (948 Incline Way in Incline Village) it operates as a community nonprofit center pursuant to a ninety-nine (99) year ground lease (including options to renew) where IVGID (the owner of this parcel) is lessor. Parasol pays rent of $1/year, and does not pay a RFF/BFF. Although Parasol uses the moniker “non-profit” to describe its building operations, its principals are actually in the “for profit” business of managing the investments in the donor-advised funds²⁰ (“DAFs”) of the building’s nonprofit tenants. Therefore Parasol’s operations bear little resemblance to the typical services one would expect from government. Moreover, the owners of other parcels in town who lease to similar non-profits don’t realize the same RFF/BFF exemption that Parasol realizes²¹.

Notwithstanding the occupants of the Parasol Building benefit from the same alleged “special benefits” the occupants of every other parcel assessed the BFF and/or RFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”], and there is nothing about Parasol’s operations which warrant RFF/BFF exemption²², this parcel is not assessed a RFF/BFF. Exactly why? Only because the landowner is IVGID. In our view Parasol should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business or non-profit operates!

B. The Convention Center’s Visitor’s Center Building: Next let’s examine parcel APN 127-030-31. The Reno-Sparks Convention & Visitors Authority’s (“RSCVA”) has constructed a building located on this parcel (969 Tahoe Blvd. in Incline Village) it operates as a Visitor’s Center and Convention Bureau pursuant to a ninety-nine (99) year ground lease (including options to renew) where IVGID (the owner of this parcel) is lessor. The RSCVA pays rent of $1/year, and it does not pay a RFF/BFF. Although the RSCVA uses the governmental “tourism authority” moniker to describe its building operations, in reality it realizes millions of dollars annually in transient occupancy taxes (“TOTs”) which are spent on marketing, promoting, public relations and special events for the Nevada side of Lake Tahoe’s North Shore, just like any other commercial business promoting its business to the world’s tourists. Therefore just like Parasol, the RSCVA’s commercial operations bear little resemblance to the typical services one would expect from government.

Notwithstanding the occupants of the Visitor Center Building benefit from the same alleged “special benefits” the occupants of every other parcel assessed the BFF and/or RFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”], and there is little if anything about the RSCVA’s operations which warrant RFF/BFF exemption, this parcel is not assessed a RFF/BFF. Exactly why? Because technically the RSCVA is a public body, and the landowner is IVGID. In our view the RSCVA should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

C. Village Ski Loft at Diamond Peak: Next let’s examine the portion of the Diamond Peak base lodge¹⁹ where the Village Ski Loft (“VSL”) operates a retail sports equipment, clothing and hard goods sales shop pursuant to a lease agreement with IVGID (Diamond Peak’s landowner). Although the VSL pays rent based upon a percentage of gross sales it generates from the shop, it does not pay a RFF/BFF. Because VSL’s commercial operations are “for profit,” they bear little resemblance to the typical services one would expect from government.

Notwithstanding the VSL employees who work in this shop benefit from the same alleged “special benefits” the occupants of every other parcel assessed the RFF/BFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”], and there is nothing about this operation which warrants RFF/BFF exemption (VSL is not a public agency, and it is a “for profit” business), the relevant portions of this parcel are not assessed a RFF/BFF? Exactly why? Only because the landowner is IVGID. In our view the VSL should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

D. AT&T and Verizon Cell Towers: Next let’s examine the portions of the parcels¹⁹ upon which the various cell towers in town have been erected. We don’t know exactly where they all are, however, some can definitely be viewed at the District’s administrative building [893 Southwood Blvd. in Incline Village (APN 127-21-02)], and adjacent to the clubhouse at the Mountain Golf Course [687 Wilson Way in Incline Village (APN 128-352-01)]. Whoever technically owns these towers leases the ground underneath from IVGID much the same as Parasol and the county rent their parcels from IVGID, however, at a fixed annual rent. Whatever that rent may be, the towers’ owners do not pay a RFF/BFF. Therefore just like Parasol’s, the RSCVA’s and the VSL’s commercial operations, AT&T’s and Verizon’s bear little resemblance to the typical services one would expect from government.

Although the portions of the parcels under which these towers are erected are not occupied, one might think this fact represents some justification for not assessing the towers’ owners a RFF/BFF. But RFFs/BFFs are assessed against other unoccupied parcels in town²³ (at least according to the District), and the portions of the parcels upon which cell towers have been erected benefit from the same alleged “special benefits” every other parcel assessed the BFF and/or the RFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”]. Therefore exactly why are the portions of the parcels at issue not assessed RFFs/BFFs? Only because the landowner is IVGID. In our view the owners of all cell towers in town, whomever they may be, should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

VII. The Concessionaire of IVGID Exemption: Another de facto exception/exemption insofar as payment of the BFF and/or RFF is/are concerned which is not expressly provided for in either Policy No. 16.1.1 nor the Report, is the one we’ve labeled the “Concessionaire of IVGID Exemption.” Similar to the Lessee of IVGID exemption (see discussion above), the District has entered into concession agreements with various private businesses for the latter to conduct commercial operations on publicly owned property. These operations are identical to the many similar commercial enterprises which operate in our community but for one important distinction. Instead of operating on privately owned property which is assessed the BFF and/or RFF, they operate on IVGID owned property which the IVGID Board has declared to be exempt from paying the BFF and/or RFF⁸. In our view it’s one thing for IVGID to engage in commercial business operations on public lands and avoid paying a RFF/BFF, and quite another for third party concessionaires to engage in the same operations and similarly avoid paying a RFF/BFF. Thus when as here publicly owned land is used for private commercial purposes we take exception to those lands/portion thereof being exempt from payment of the RFF/BFF for the very reason the Assessor takes exception when real property exempt from ad valorem taxation¹⁷ is leased to private parties engaged in business pursuits not exempt from taxation⁸.

So what concessions and what parcels or portions thereof¹⁹ are we speaking of?

A. Lake Tahoe Watersports: “George and Sandra (Mathews) are pleased to announce (that) Lake Tahoe Watersports…provid(es) premium stand up paddle board and kayak (rental) service(s) to Incline Village (picture) passholders and their guests”²⁴ on IVGID’s beaches pursuant to a concession agreement entered into between the Mathews and IVGID (where IVGID is the concessioner). In addition to their concession payments, the Matthews do not pay a RFF/BFF notwithstanding their commercial operations are “for profit,” and bear little resemblance to the typical services one would expect from government. Moreover, the Mathews and their employees benefit from the same alleged “special benefits” the occupants of every other parcel assessed the RFF/BFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”]. Because there is nothing about this operation which warrants RFF/BFF exemption (Lake Tahoe Watersports is not a public agency, and it is a “for profit” business), exactly why are the relevant portions of the subject parcels¹⁹ not assessed a RFF/BFF? Only because the landowner is IVGID. In our view the Mathews’ Lake Tahoe Watersports should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

B. The Beach Barefoot Bars: Miles and Myra Hendrickson (who own Incline Spirits in town²⁵) provide alcoholic beverage service on IVGID’s beaches at their two signature “Barefoot Bars”²⁶) pursuant to a concession agreement entered into with IVGID (where IVGID is the concessioner). In addition to their concession payments, the Hendricksons do not pay a RFF/BFF notwithstanding their commercial operations are “for profit,” and bear little resemblance to the typical services one would expect from government. Moreover, the Hendricksons and their employees benefit from the same alleged “special benefits” the occupants of every other parcel assessed the RFF/BFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”], Because there is nothing about this operation which warrants RFF/BFF exemption (the Barefoot Bars are not a public agency, and it is a “for profit” business), exactly why are the relevant portions of the subject parcels¹⁹ not assessed a RFF/BFF? Only because the landowner is IVGID. In our view the Hendrickson’s Barefoot Bars should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

C. The Snowflake Lodge: For years Marnie and Andy Brimms operated retail food and non-alcoholic beverage sales operations out of the Snowflake Lodge (as well as Incline and Burnt Cedar Beaches) because of a concession agreement entered into with IVGID (where IVGID was the owner of these parcels and concessioner). In addition to their concession payments, the Brimms did not pay a RFF/BFF notwithstanding their commercial operations were “for profit,” and bore little resemblance to the typical services one would expect from government. Moreover, the Brimms and all of their employees benefitted from the same alleged “special benefits” the occupants of every other parcel assessed the RFF/BFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”], Because there was nothing about these operations which warranted RFF/BFF exemption (Brimms was and is not a public agency, and it was and is a “for profit” business), exactly why were the relevant portions of Diamond Peak (and the Incline and Burnt Cedar Beach) parcel(s) not assessed a RFF/BFF? Only because the landowner was and is IVGID. In our view the Brimms should have been made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

VIII. The Donee of IVGID Exemption: Another de facto exception/exemption insofar as payment of the BFF and/or RFF is/are concerned, which is not expressly provided for in either Policy No. 16.1.1 nor the Report, is the one we’ve labeled the “Donee (as in giveaway) of IVGID Exemption.” The District has entered into memorandum of understanding (“MOU”) agreements with various private and non-profit businesses which permit the latter to conduct commercial operations on publicly owned property. These commercial enterprises are identical to the many similar commercial enterprises which operate in our community but for one important distinction. Instead of operating on privately owned property which is assessed the BFF and/or RFF, they operate on IVGID owned property which the IVGID Board has declared to be exempt from paying the BFF and/or RFF⁸. Thus when as here publicly owned land is used for private commercial purposes we take exception to those lands/portion thereof¹⁹ being exempt from payment of the RFF/BFF, even when use of those lands is donated.

So what donees and what parcels or portions thereof¹⁹ are we speaking of?

A. Diamond Peak Ski Team: According to the Diamond Peak Ski & Education Fund (“DPSEF”) it “provide(s)…year round program(s) to develop…athletes’ skill, grit and integrity…to achieve their personal goals in athletics and…life”²⁷ using Diamond Peak as its vehicle. DPSEF does not pay a RFF/BFF insofar as the portions of the subject parcels¹⁹ which are used are concerned. DPSEF in essence leases the ground underneath Diamond Peak in general, and its stand alone building located at the upper parking lot at 1210 Ski Way (APN 127-030-15) in particular, from IVGID under a five (5) year lease labeled a MOU, which has been serially renewed for the last thirty (30) or more years. Although DPSEF calls its operations “non-profit,” it generates hundreds of thousands of dollars annually in tuition, training, sales to competing ski teams, and other fees which in part pay for salaries and other typical commercial expenditures. Because the DPSEF’s operations are really “for profit,”²⁸ they bear little resemblance to the typical services one would expect from government. Moreover, all DPSEF members and staff (a good portion are nonresidents) benefit from the same alleged “special benefits” the occupants of every other parcel assessed the RFF/BFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”]. Given there is nothing about this operation which warrants RFF/BFF exemption (DPSEF is not a public agency, and it is the equivalent of a “for profit” business), exactly why are the relevant portions of the subject Diamond Peak parcel not assessed a RFF/BFF? Only because the landowner is IVGID. In our view DPSEF should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

B. Washoe County School District: It’s not enough that the school district (“WCSD”) is financially supported by the ad valorem taxes all non-exempt local real properties pay. So to augment its physical education programs in Incline Village are concerned, the WCSD has entered into an inter-local agreement with the District whereby the former is given access to and use of the District’s recreation and beach facilities in consideration of the District’s right to use the WCSD’s nearly non-existent Incline Village recreation facilities²⁹ The WCSD does not pay for this access and use, and specifically does not pay the RFF/BFF. Moreover, all WCSD students and staff (a good portion of whom are nonresidents) benefit from the same alleged “special benefits” the occupants of every other parcel assessed the RFF/BFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”]. Only because the landowner is IVGID is the WCSD not assessed a RFF/BFF. In our view WCSD should be made to pay the RFF/BFF just like the owner(s) of every other parcel within the District’s boundaries!

C. Sierra Nevada University: For years Sierra Nevada University (“SNU”) fka Sierra Nevada College (“SNC”) has operated a tuition supported private liberal arts college. For a decade or more the faculty and student body of SNC were allowed to access and use the District’s Recreation and Tennis Centers pursuant to a MOU, during “so called” non-peak hours, in consideration of SNC providing up to ten (10) private tuition scholarships and other secondary consideration, annually. In addition to the non-monetary consideration given, SNC did not pay a RFF/BFF³⁰ notwithstanding its commercial operations were “for profit,” and they bore little resemblance to the typical services one would expect from government. Moreover, nearly all SNC students, faculty and staff benefitted from the same alleged “special benefits” the occupants of every other parcel assessed the RFF/BFF benefit from [i.e., the mere “availability of the use of IVGID’s (recreation and) beach services and facilities furnished by the District”]. Only because the landowner was IVGID, was SNC not assessed a RFF/BFF. In our view SNC should have been made to pay one or more additional RFFs/BFFs as part of the MOU just like the owner(s) of every other parcel within the District’s boundaries upon which a commercial business operates!

IX. The Staff Negligence Exemption: Another de facto exception/exemption insofar as payment of the BFF and/or RFF is concerned, which is not expressly provided for in either Policy No. 16.1.1 nor the Report, is the one we’ve labeled the IVGID “Staff Negligence Exemption.” Residents have brought to staff’s attention staff’s failure to assess the BFF and/or RFF against some number of Incline Village/Crystal Bay parcels and dwelling units. Because their criticism appears to have merit insofar as at least one of those parcels [1709 Lakeshore Blvd. (APN 130-331-03)] is concerned, we mention it here. And then of course, as elsewhere discussed, there are the hundreds of “dwelling units” the Board refuses to assess. Negligent? Maybe intentionally negligent!

Because here no discernable justification exists for not assessing these parcels, the District has been placed on express notice of the deficiencies^15-16, and for 2021-22 the omissions blatantly continue, we have no other name for this disparate treatment other than staff negligence. Or by default, “the Staff Negligence” exemption.

X. Lack of Express Constitutional or Statutory Authority: As initially stated above, notwithstanding each of the above exceptions/exemptions, we ask and now answer: what allows IVGID to exempt any parcel, including its own³¹, from paying the BFF and/or RFF? Given the RFF/BFF are the product of statute³², and NRS 318.015(1) instructs³³ that GIDs shall “hav(e) the purposes, powers, rights, privileges and immunities provided in this chapter,” we ask where in Chapter NRS 318 do GIDs have the power to grant rate, toll or charge exemptions?

To exempt property from involuntary exaction, especially a standby service charge, there must be express constitutional or statutory authority³⁴. Although “the property of corporations formed for Municipal, Charitable, Religious, or Educational purposes may be exempted by law…(from) taxation,”¹⁷ this exemption does not apply to service rates, tolls or charges. As Chapman instructs, “Lake Arthur Drainage Dist. v. Board of Com’rs of Chaves County³⁵…expresses this policy.”³⁶ Because here “no statute has been called to our attention which would authorize these exemptions…they are…unauthorized.”

Moreover, and as demonstrated elsewhere, GIDs are limited purpose special districts along the lines of vector control (mosquitos), library, fire and cemetery districts. In Nevada they are creatures of statute³³, and those statutes appear at NRS Title 25³⁷. Since Nev. Const. Article 8, §8 instructs that the Legislature shall provide for and restrict the powers of all general purpose governments, insofar as GIDs are concerned, the Legislature has enacted the GID Law³³ which defines its basic powers [predicated upon express grant by its County Board of Commissioners (“County Board”) in the GID’s initiating ordinance³⁸ as supplemented, if at all, by those “additional basic power(s) granted,”³⁹ “sections of this chapter (NRS 318) designated therein,”⁴⁰ and none other⁴¹]. And moreover, according to Dillon’s Rule⁴², if there be fair or reasonable doubt as to whether a GID has the power to exempt anyone or any parcel from paying any rate, toll or charge, specifically including a RFF/BFF, that doubt is to be resolved against the GID “and the power…denied!”

Given the absence of the power to grant exceptions/exemptions to its rates, tolls or charges, where does the reader see where GIDs have been given the power to legislate or pass laws to fill the void? The closest possible authorization would be NRS 318.205⁴³. But since the District’s RFF/BFF exceptions/exemptions do not relate to carrying on the business, objects nor affairs of the District, nor do they regulate the use of any project or improvement, they are not “bylaws.” Because they are in conflict with the Constitution and the NRS. none of the District’s exemptions is authorized!

XI. The District’s Perceived Necessary, Implied or Incidental Justification: Without evidence of express authority, there is only one other argument IVGID can make to justify its RFF/BFF exceptions/exemptions. And that is that they are necessarily⁴⁴implied or incidental⁴⁵. Note that NRS 318.210 is the statutory embodiment of part 3(b) of Dillon’s Rule⁴² (see discussion above). Notwithstanding, we disagree with this assertion for at least the following six (6) reasons:

A. Expressio Unius Est Exclusio Alterius: is a statutory interpretive canon (which “has been repeatedly confirmed in this State”⁴⁶) “meaning…the expression of one thing is the exclusion of (an)other.”⁴⁷ The fact our Constitution declares an exemption from general taxation in favor of public property (or property owned by corporations formed for charitable, religious or educational purposes) is a recognition the framers knew how to provide for exceptions from tax exactions, if that were their intent. Moreover, it implies the framers deliberately omitted the intent to allow municipalities to grant exemptions insofar as any other exaction were concerned, such as their rates, tolls and charges.

Let’s offer another example of the same principle. NRS 318.350(2) addresses the power of GIDs to exempt property from paying its assessments for the expenses of improving public property. In particular, it instructs that “unless the…district(‘s)…board of trustees,,,consents to the assessment, all property owned and used by a school district is exempt from any assessment made pursuant to the provisions of this chapter.” Thus again this language demonstrates that the Legislature knew how to create an exemption insofar as a GID’s assessments are concerned. And it implies that the Legislature deliberately omitted any intent to allow for similar exemptions insofar as a GID’s rates, tolls and charges are concerned.

Because here the Legislature allows the property of corporations formed for Municipal, Charitable, Religious, or Educational purposes to be exempted by law from taxation, yet omits a similar exemption when it comes to a GID’s rates, tolls or charges, IVGID’s BFF/RFF exemptions are unauthorized.”

B. Lake Arthur Drainage Dist. v. Board of Com’rs of Chaves County: has already addressed this argument, and rejected it³⁶! Why then is it necessary to rehash?

C. None of IVGID’s RFF/BFF Exemptees, Including the District Itself, is Exempt From Paying the District’s Water, Sewer, Garbage or Refuse Fees: According to IVGID, the RFF/BFF are NRS 318.197(1) standby service charges for the mere availability of service⁴⁸, and “standby service charges…for the availability of service” are special “benefits which inure to…(those real) properties“⁴⁹ which are assessed. Similarly, IVGID’s sewer, water and garbage or refuse rates, tolls and charges are NRS 318.197(1) service charges⁵⁰. And given ¶14.05 of Ordinance No. 2 (sewer), ¶9.06 of Ordinance No. 4 (water), and ¶5.9 of Ordinance No. 1 (solid waste) instruct that sewer, water garbage and refuse “charges, fees and amounts due and payable (for the services the District furnishes)…shall be billed to the owner of the premises, whether or not the owner is also the occupant,” they too are special benefits which inure to those real properties which are charged.

Therefore, how can it be appropriate to not exempt real property from charges for sewer, water, garbage and refuse services furnished, and yet when it comes to recreation and beach facilities furnished to the very same real property, to exempt that real property from the RFF/BFF? Or does the District expect the public to embrace its non-uniform assessment of the RFF/BFF with impunity to their detriment⁵¹? Or is the answer simply that IVGID’s BFF/RFF exemptions are unauthorized?

D. Preemption: occurs when two levels of government operate within the same sphere⁵² and the higher level removes regulatory power from the lower. Intrastate preemption occurs when a municipality’s authority in a particular area has been supplanted by State law⁵³. This principle explains the issue here insofar as Resolution No. 1889 is concerned. The common sphere of operation is the fixing of a GID’s rates, tolls and charges. Since the Legislature has spoken on this subject³², and it has expressly not provided that anyone or any property arguably receiving a GID’s facilities and services can be excepted from paying, IVGID is effectively precluded from engaging in any substantive policymaking (i.e. creating exemptions) insofar as this issue is concerned. In other words, the District’s RFF/BFF exemptions are unauthorized.

E. Nev. Const. Article 4, §§20 & 21: “The Nevada Constitution prohibits the Legislature from passing local or special laws ‘[f]or the assessment and collection of taxes for state, county, and township purposes’⁵⁴. It further requires that ‘[i]n all cases enumerated in (§20), and (in)…all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State.'”⁵⁵ These sections are the constitutional embodiment of the preemption doctrine (see discussion above).

“[A] law is general when it applies equally to all persons embraced in a class founded upon some natural, intrinsic, or constitutional distinction.”⁵⁶ NRS 318.197(1) is a general law because it operates neutrally “upon all persons similarly situated” statewide⁵⁷.

“Conversely, a law is considered local ‘if it operates over a particular locality instead of over the whole territory of the State.”⁵⁸ Although Resolution No. 1889 is not technically a law¹, for GID purposes it is the moral and local equivalent because it is applicable only to Incline Village/Crystal Bay parcels⁵⁹.

“A law is considered ‘special legislation if it confers particular privileges or imposes peculiar disabilities or burdensome conditions, in the exercise of a common right, upon a class of persons arbitrarily selected, from the general body of those who stand in precisely the same relation to the subject of the law.”⁶⁰ Resolution No. 1889 represents special legislation because it “confers particular privileges (i.e., payment exemptions)…upon a class of persons arbitrarily selected, from the general body of those (parcel owners) who stand in precisely the same relation to” those exempted.

For all of these reasons then, the District’s RFF/BFF exemptions are not only unauthorized, they are unconstitutional.

F. No Others: Harken back to part 3 of Dillon’s Rule⁴² (see discussion above) which instructs that a board of a local government “may exercise only th(os)e…powers…(a) granted in express terms by the Nevada Constitution or statute; (b)…necessarily or fairly implied in or incident to the powers expressly granted; (c) those…essential to the accomplishment of the declared objects and purposes (and)…no others.” What does the District not understand about no others?

Conclusion: So why aren’t all Incline Village/Crystal Bay parcels within the District’s boundaries, regardless of ownership, and specifically including IVGID³¹, paying the BFF and/or the RFF? The simple reason appears to be because staff and past Boards see/have seen their role(s) as extending preferential treatment to the District and its favored collaborators. And insofar as local property owners who are involuntarily subsidizing staff’s massive overspending are concerned, “let them eat cake!”⁶¹ There are members of our community who feel this disparate treatment is very intentional to buy allegiance and votes when it comes to electing trustees who are committed to continuing the flow of gravy.

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1. At best, NRS 318.205 allows GID Boards “to adopt…bylaws, not in conflict with the Constitution and laws of the State: 1. For carrying on the business, objects and affairs of the board and of the district(; and,) 2. Regulating the use or right of use of any project or improvement.”
2. See pages 43-46 at https://www.yourtahoeplace.com/uploads/pdf-ivgid/IVGID_Board_Policies_1.pdf.
3. See page 1 of Policy No. 16.1.1.
4. See page 3 of Policy No. 16.1.1. We believe this right is a disingenuous attempt to make it look to the casual observer that the RFF/BFF are voluntarily incurred, when in-truth they are not. And to back up our view, to our knowledge the District has never permitted a property owner, whether or not his/her/its property is “unbuildable,” to elect to remove his/her/its property from IVGID’s Recreation Roll. As a consequence of these facts, this “so called” right to petition, just like other “so called” rights District staff publicize [like the right to seek RFF/BFF refund per ¶8 of Resolution No. 1889 (“all laws applicable to the levy, collection, and enforcement of general taxes of the District, including, but not limited to, those pertaining to the matters of…refund…are applicable to such charges”)], is in word only and illusory.
5. Which states that “any board which has adopted rates pursuant to this chapter may…elect to have such charges for the forthcoming fiscal year collected on the tax roll…In such event, it shall cause a written report to be prepared…which shall contain a description of each parcel of real property receiving…services and facilities and the amount of the charge for each…for such year.”
6. See ¶6 of Resolution No. 1889 which recites: “said report…is hereby adopted.”
7. See pages 188-193 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2021 meeting [“the 5/26/2021 Board packet” (https://www.yourtahoeplace.com/uploads/pdf-ivgid/0526_-Regular-_Searchable.pdf)].
8. See page 190 of the 5/26/2021 Board packet. As aforesaid, to our knowledge the District has never permitted a property owner, whether or not his/her/its property is unbuildable, to remove his/her/its property from IVGID’s Recreation Roll⁴. But more importantly, why isn’t the owner of any property in Incline Village/Crystal Bay, buildable or not, afforded the same right? After all, the District’s public recreation facilities are already “available” to be accessed and used by the general public as a whole. And no one other than Incline Village/Crystal Bay parcel owners are required to pay the RFF as a pre-condition to access and use. And insofar as the District’s beach facilities are concerned, they are already “available” to be accessed and used by those with beach access not because they pay the BFF, but because of their deeded easement rights in the beach deed. So what “recreation privileges” would they really actually be giving up if they were permitted to waive the same? According to ¶30 of Ordinance No. 7, nothing more than “up to five (5) Recreation Passes or Recreation Punch Cards” which according to ¶24 of Ordinance No. 7, themselves, offer nothing more than “free access to District beaches (which is already free) and…hourly, daily, and seasonal discounts at District-owned recreation facilities.”
9. We can understand why District staff might want to condition the District’s recreation privileges upon payment of the RFF/BFF. But why county property taxes? Or assessments? Or bond servicing?
10. Which instructs that “the District (may)…issu(e) recreation (and beach) privileges to employees, former Board members, or anyone else, in the past, present or future, as approved by the Board of Trustees.”
11. Which instructs that “the General Manager (“GM”) may…adopt, amend, or rescind (any) rules consistent with this ordinance (to)…include the application of this ordinance and rules to specific people, parcels and circumstances.”
12. See the very top of page 1 of Resolution No. 1619.
13. ¶8 of Step I on page 2 of Resolution No. 1701 contemplates there will be profits as a result of non-profit/local school use because it speaks to “the profits derived from the activity” and how they “must materially benefit the community of Incline Village/Crystal Bay, and be used within the North Tahoe Basin for the length of their useful life.”
14. See entity no. C11897-1991.
15. See page 388 of the packet of materials prepared by staff in anticipation of the Board’s July 13, 2021 Board meeting [“the 7/13/2021 Board packet” (https://www.yourtahoeplace.com/uploads/pdf-parks-rec/0713_-Regular-_Part_3.pdf)].
16. See page 390 of the packet of materials prepared by staff in anticipation of the Board’s December 9, 2021 Board meeting [“the 12/9/2020 Board packet” (https://www.yourtahoeplace.com/uploads/pdf-ivgid/1209_-Regular-_Searchable.pdf)].
17. See Nev. Const. Art. 8, sec. 2 which recites that “the property of corporations formed for Municipal, Charitable, Religious, or Educational purposes may be exempted by law…(from) taxation.”
18. The Assessor takes the position exempt real property leased to persons engaged in business pursuits (i.e., business personal property) not exempt from taxation is subject to ad valorem taxation based upon the leasehold’s current assessed valuation (see https://www.washoecounty.us/assessor/BusinessPersonalProperty/index.php).
19. Remember. ¶I(D) of the Report⁸ instructs that “lots, parcels and areas of land used, or the portions thereof used, or intended to be used, for religious…or educational purposes, common areas…and publicly owned lands, are excepted and excluded from the” RFF/BFF. Given the leases discussed herein typically involve use of portions of an IVGID owned parcel, in our view the exemption applicable to that parcel should be removed from the portions leased to private party businesses.
20. “A donor-advised fund is like a charitable investment account, for the sole purpose of supporting charitable organizations…When one contribute(s) cash, securities or other assets to a donor-advised fund (one is)…generally eligible to take an immediate tax deduction. Then those funds can be invested for tax-free growth and (the donor) can recommend grants to virtually any IRS-qualified public charity” (go to https://www.fidelitycharitable.org/guidance/philanthropy/what-is-a-donor-advised-fund.html?immid=PCD&engine=GOOGLE&campaign=Donor+Advised+Primer&adgroup=Donor+Advised&keyword=Donor+Advised+funds&gclid=EAIaIQobChMI8djSyuTx8QIVSXxvBB1J2gwqEAAYASAAEgISc_D_BwE&gclsrc=aw.ds). But in the real world, DAFs are a tax shelter of the worst kind. By donating via a nonprofit foundation, the ultra-rich are able to ease their tax burdens and control who gets to benefit via tax-free growth in at least three ways. First, they avoid paying capital gains taxes on donated stock or real estate. Second, they are able to claim a charitable deduction which presumably reduces their personal tax bills for years to come. And finally, they get to recommend grants to virtually any IRS-qualified public charity of their choice (see https://www.nytimes.com/2018/08/03/business/donor-advised-funds-tech-tax.html).
21. For instance, Tahoe Family Solutions (“TFS”) is a private Incline Village non-profit which operates out of 774 Mays Blvd., Suite C13 (go to https://tahoefamily.org/about-tfs/). A check with the Treasurer insofar as the ad valorem taxes paid by this parcel (APN 132-201-07) are concerned, reveals it is assessed and pays the RFF/FFF. Tahoe’s Connection for Families (“TCF”) is a private Incline Village non-profit (https://www.tcfkids.org/about) which operates out of 761 Northwood Blvd. A check with the Treasurer insofar as the ad valorem taxes paid by this parcel (APN 132-203-02) are concerned, reveals it is assessed and pays the RFF/FFF.
22. Although Parasol is a domestic nonprofit corporation (entity C14001-1996), like Pet Network, it is not a public body. Nor is its use of this parcel for religious or educational purposes. In other words, literally, this parcel is not entitled to exemption from paying the RFF/BFF under either Policy No. 16.1.1 nor the Report.
23. See: ¶4(a) of Resolution No. 1889 which instructs that “Ordinance No. 7 sets forth in detail the specifics of the benefits available to property owners of all properties, whether improved or unimproved;” and, ¶4(b) of Resolution No. 1889 which finds “that such benefits are provided to said properties whether or not they are developed.”
24. Go to https://www.laketahoews.com/.
25. Go to https://inclinespirits.com/.
26. Go to https://inclinespirits.com/barefoot-bar/.
27. Go to https://www.dpsef.org/page/show/735626-home.
28. Take a look at the tuition schedule and you will quickly come to the conclusion there is little “non-profit” about it.
29. This represents another of what seem to be so many “give-and-take” agreements the District enters into with favored collaborators. You know, the ones where we give and they take!
30. At least insofar as the MOU was concerned. At the time SNC was paying a single RFF/BFF as an Incline Village parcel owners.
31. Notwithstanding IVGID provides water, sewer and solid waste disposal services, it doesn’t attempt to exempt itself from paying fees for its receipt of those services. So why should it be any different when it comes to a parcel’s availability to access and use beach and/or recreation facilities and the services offered thereat?
32. See NRS 318.197(1).
33. See NRS 318.010.
34. See Chapman v. City of Albuquerque, 65 N.M. 228, 335 P.2d 558, 563 (1959). Stated differently, “[i]n the absence of express authorization, a municipal corporation has no power to exempt lands from special taxation or local assessment. But the legislature has such power…” [14 McQuillin §38.80, The Law of Municipal Corporations 3d, pp. 207-211 (1987 Rev.)].
35. Go to 29 N.M. 219, 222, 222 P. 389 (1924).
36. That is, everyone’s “liability for such (rates, tolls and charges is)…the rule and exemption the exception…(Thus) if the county (or corporations formed for charitable, religious or educational purposes) had been intended by the Legislature to be exempt…the exemption would have been (expressly) stated and not left to implication. Furthermore, the fact the makers of our Constitution, in specifically providing that property of a county (or corporations formed for charitable, religious or educational purposes) should be exempt from general taxation, without providing a similar exemption from (rates, tolls or charges), would compel the contrary implication that no such exemption was intended…Furthermore (still), if public property is to be exempted-from taxation by implication, then section (2) of Article 8 of the Constitution, by which such property is specifically exempted from general taxation, is meaningless and useless. The very fact…the Constitution declares an exemption from general taxation in favor of public property (or property owned by corporations formed for charitable, religious or educational purposes) is a recognition of the principle that, without…express exemption, such property would be subject to taxation along with private property. If it was necessary to make an express exemption in favor of (the former)…surely was it necessary that there should be an express exemption if such property is to be free from” rates, tolls or charges (Lake Arthur Drainage Dist., supra, at 29 N.M.223).
37. See Public Organizations for Community Service (go to https://www.leg.state.nv.us/nrs/).
38. See NRS 318.055(4)(b).
39. Pursuant to NRS 318.077.
40. See NRS 318.055(4)(a).
41. See A.G.O. No. 63-61, p. 102, at p. 103 (August 12, 1963).
42. NRS 244.137 instructs as follows: “(1) Historically under Nevada law, the exercise of powers by a board of county commissioners has been governed by a common-law rule on local governmental power known as Dillon’s Rule…(2) In Nevada’s jurisprudence, the Nevada Supreme Court has adopted and applied Dillon’s Rule to (all) local governments. (3) As applied to county government, Dillon’s Rule provides that a board of (a local government)…may exercise only the following powers and no others: (a) Those…granted in express terms by the Nevada Constitution or statute; (b) Those…necessarily or fairly implied in or incident to the powers expressly granted; and, (c) Those…essential to the accomplishment of the declared objects and purposes of the county and not merely convenient but indispensable. (4) Dillon’s Rule also provides that if there is any fair or reasonable doubt concerning the existence of a power, that doubt is resolved against the (governing) board…and the power is denied.” Although NRS 244.137 literally applies to county governments, since it instructs that Dillon’s Rule applies to all forms of local government (see above) most legal professionals will counsel it is equally instructive insofar as its application to GIDs is concerned. So although NRS 318.197(1) gives GID Boards the power to “fix, and from time to time increase or decrease…rates, tolls or charges,” it cannot be implied to give them the power to exempt or except anyone or any parcel from paying the same.
43. Which instructs that “the board shall have the power to adopt and amend bylaws…1. For carrying on the business, objects and affairs of the board and of the district(; and,) 2. Regulating the use or right of use of any project or improvement…not in conflict with the Constitution and laws of the State.”
44. Harken back to part 3(c) of Dillon’s Rule⁴² (see discussion above) which instructs “those (powers)…essential to the accomplishment of the declared objects and purposes of the county and not merely (those) convenient but indispensable.”
45. See NRS 318.210 which states GID “board(s) shall have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted in this chapter.”
46. See Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967); Poole v. Nev. Auto Dealership Inv’s, LLC, 135 Nev. Adv. Op. 39, 449 P.3d 479, 483-84 (2019).
47. See http://www.duhaime.org/LegalDictionary/E/ExpressioUniusEstExclusioAlterius.aspx.
48. “The board may fix, and from time to time increase or decrease…swimming pool (and) other recreational facilit(y)…rates, tolls or charges…including, but not limited to, service charges…for services or facilities furnished by the district…and standby service charges…for the availability of service.”
49. See ¶4(b) of Resolution No. 1889.
50. “The board may fix, and from time to time increase or decrease…sewer, water…garbage or refuse rates, tolls or charges…including, but not limited to…charges…for services or facilities furnished by the district.”
51. If that be the case, the District should read the uniformity provisions of Nev. Const. Article 4, §20 (see discussion below).
52. See 87 BLR 1113, 1122, Intrastate Preemption (2007).
53. See 87 BLR, supra, at 1114.
54. See Nev. Const. Article 4, §20.
55. See Nev. Const. Article 4, §21; City of Fernley v. State Dep’t of Taxation, 132 Nev. Adv. Op. 4, 366 P.3d 699, 708 (2016).
56. See Clean Water Coalition v. The M Resort, LLC, 127 Nev. 301, 311, 255 P.3d 247, 254 (2011).
57. City of Fernley, supra, at 366 P.3d 71.
58. City of Fernley, Id.
59. Clean Water Coalition, supra, at 255 P.3d 250.
60. Clean Water Coalition, Id.
61. This is perhaps “the most famous quote attributed to Marie-Antoinette, the queen of France during the French Revolution. As the story goes, it was the queen’s response upon being told that her starving peasant subjects had no bread…Th(is) anecdote has been cited as an example of Marie-Antoinette’s obliviousness to the conditions and daily lives of ordinary people” (see https://www.britannica.com/story/did-marie-antoinette-really-say-let-them-eat-cake) This is the same obliviousness displayed by staff and past boards who see their roll as blindly supporting staff.