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The Impermissible Powers The Incline Village General Improvement District (“IVGID”) Exercises

IVGID 101 Posted on by

But for a judicial confirmation petition which

“Pray(s for)…judicial examination and determination of the validity of any power conferred or of any instrument, act or project of the municipality, whether or not such power has been exercised, such instrument has been executed or otherwise made or such act or project has been taken”1 which can be reduced to a “judgment and decree thereon,”2

How does anyone really know the extent of powers a GID may permissibly exercise? Or what programs it can legitimately offer? Does NRS 318 expressly set forth each and every power? Does the State publish a manual, the way it does for the Open Meeting Law3 or Nevada’s Public Records Act4, whereby it provides the answer? Or must we resort to the statutory5 or judicial6 rules which govern construction?

As elsewhere discussed, the District’s powers are severely limited compared to those of true municipalities (like counties, cities or unincorporated associations) which are granted municipal police powers7. Yet IVGID staff and their collaborators/supporters do not subscribe to these limitations. Rather, they take the position that since IVGID “is a legally separate government,” it is: “fiscally independent of…(and) not financially accountable (to) any other…governmental…entity,”8 and therefore “empowered to determine what facilities and services it should offer that will preserve or enhance the general health, safety and welfare of the community.”9 Or more bothersome, and contrary to Dillon’s Rule10 which instructs that a local government’s governing board

“May exercise only the following powers and no others:

(a) Those powers granted in express terms by the Nevada Constitution or statute;

(b) Those powers necessarily or fairly implied in or incident to the powers expressly granted…

(c) Those powers essential to the accomplishment of the declared objects and purposes of the (local government) and not merely convenient but indispensable;”11 and

“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,”12

They assert IVGID retains the power to exercise any power the Legislature has not expressly declared it can’t!

And notwithstanding the Nevada Department of Taxation (“NDOT”) was created, in part, to “exercise general supervision and control over the entire revenue system of the State”13 [presumably to “protect (the) public health…safety” and general welfare of Nevada’s citizens14], it regurgitates the narrative advanced by District staff and their proponents8. And similarly, Washoe County takes the same position15.

But because GIDs “do not have the adequate size nor tax base to (financially) support the services”16 or facilities they typically furnish, hopefully the reader can see the conflict which has plagued this District from day one. And plagues it today: What Was IVGID (Really) Made For? We submit that the following constitutional, statutory and county resolution authorities provide the answer.

Nevada Constitution: Let’s begin with the Nevada Constitution. Article 8, §8. The reader will see that it is the Legislature which shall provide for/restrict the powers of all general purpose governments. And since the Legislature has provided for GIDs at NRS 318.010, their powers are provided for and restricted thereby. Moreover, as a limited purpose special district, a GID’s powers are to be strictly construed and…limited17 to those: provided by the Legislature18 and nothing more11. With the proviso that those powers are expressly conferred by the County Board in the GID’s initiating ordinance19, as supplemented, if at all, by: those “additional basic power(s expressly) granted;”20 “sections of this chapter (NRS 318) designated (t)herein;”21 and, none other22. So what basic powers has the Washoe County Board expressly granted to IVGID in its initiating and supplemental ordinances? As demonstrated elsewhere,

IVGID’s Initiating Ordinance: granted the District the following basic powers: furnishing facilities for streets, alleys and public highways23; curbs and gutters24; sidewalks25; storm drainage and flood control26; sanitary sewerage27; as well as water28.

IVGID’s Limited Supplemental Ordinances: On March 5, 1964 the Washoe County Board supplemented these basic powers18 in the following particulars: it allowed IVGID to furnish facilities for lighting public streets, ways and places29; and, collect and dispose of garbage and refuse30.

Then on November 15, 1965 the Washoe County Board again supplemented these basic powers18 in the following particulars: it allowed IVGID to furnish facilities for public31 recreation32.

And on May 5, 1969 the Washoe County Board further supplemented these basic powers18 in the following particulars: it allowed IVGID to furnish facilities for electric light and power33.

The Limited Supplemental Powers All GIDs May Exercise: again assuming they have been actually granted by their individual GID’s County Board(s). And they appear at NRS 318.116:

“1. Furnishing electric light and power, as provided in NRS 318.117;

2. Extermination and abatement of mosquitoes, flies, other insects, rats, and liver fluke or Fasciola hepatica, as provided in NRS 318.118;

3. Furnishing facilities or services for public cemeteries, as provided in NRS 318.119;

4. Furnishing facilities for swimming pools, as provided in NRS 318.1191;

5. Furnishing facilities for television, as provided in NRS 318.1192;

6. Furnishing facilities for FM radio, as provided in NRS 318.1187;

7. Furnishing streets and alleys, as provided in NRS 318.120;

8. Furnishing curbs, gutters and sidewalks, as provided in NRS 318.125;

9. Furnishing sidewalks, as provided in NRS 318.130;

10. Furnishing facilities for storm drainage or flood control, as provided in NRS 318.135;

11. Furnishing sanitary facilities for sewerage, as provided in NRS 318.140;

12. Furnishing facilities for lighting streets, as provided in NRS 318.141;

13.Furnishing facilities for the collection and disposal of garbage and refuse, as provided in NRS 318.142;

14. Furnishing recreational facilities, as provided in NRS 318.143;

15. Furnishing facilities for water, as provided in NRS 318.144;

16. Furnishing fencing, as provided in NRS 318.1195;

17. Furnishing facilities for protection from fire, as provided in NRS 318.1181;

18. Furnishing energy for space heating, as provided in NRS 318.1175;

19. Furnishing emergency medical services, as provided in NRS 318.1185;

20. Control of noxious weeds, as provided in chapter 555 of NRS; and,

21. Establishing, controlling, managing and operating an area or zone for the preservation of one or more species or subspecies of wildlife that has been declared endangered or threatened pursuant to the federal Endangered Species Act of 1973, 16 U.S.C. §§1531, et seq.”

Legislative Counsel Bureau Bulletin No. 77-11: Because “there had never been a study of any kind…by the Legislature…of special districts…(the) much publicized fiscal difficulties of New York City…the potential for financial over extension or default among Nevada local governments (and)…problem areas in chapter 318 of NRS,”35 in 1975 “the State Legislature directed a study…by the legislative commission…of the methods for creating, governing and financing GIDs in Nevada.”36 As a result, a commission subcommittee prepared a report which included its findings and recommendations37 insofar as future legislation were concerned. And one of those findings was “that there (had been)…a number of districts created that…(we)re performing services that should be provided by counties,”38 or not provided at all. According to the subcommittee one of the reasons why this phenomena was occurring was that “when approached by citizens requesting a service from the county, (commissioners) often suggest(ed) that a general improvement district…(wa)s the only way to provide the requested service (notwithstanding) such districts often d(id) not have the adequate size (n)or tax base to support (such) services…(Although) this practice was not found to be widespread in the State…it happen(ed) often enough to be of great concern.”39

But nearly fifty (50) years later, the concerns of the subcommittee represent the reality of IVGID today. Consider the following activities IVGID engages in, many in our community believe are well beyond the District’s limited permissible powers40. As the reader considers each of the powers and services which follow, ask yourself; does it represent:

  1. See NRS 43.100(1) which gives the governing bodies of municipalities [general improvement districts (“GIDs”) are municipalities for purposes of NRS 43.100 (see NRS 43.080)] the power to file such petitions.
  2. See NRS 43.140(1).
  3. Go to https://ag.nv.gov/uploadedFiles/agnvgov/Content/About/Governmental_Affairs/OML_Portal/omlmanual.pdf.
  4. https://bop.nv.gov/uploadedFiles/bopnvgov/content/Services/Nevada%20Public%20Records%20Act%20-%20A%20Manual%20for%20State%20Agencies%202019.pdf.
  5. See our How the Legislature Instructs We Construe the Powers a GID May Exercise discussion.
  6. See our How Courts Instruct We Construe the Powers a GID May Exercise discussion.
  7. The inherent or delegated authority of a local government to enact and enforce laws and regulations to protect the public health, safety, morals, and general welfare [see Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98 (1954)]. Therefore examples would include: zoning laws, building and fire safety codes, noise ordinances, animal control, waste removal, public health inspections, etc.
  8. See ¶1(A) at page 35 of IVGID’s 2019 Comprehensive Annual Financial Report (“the 2019 CAFR”).
  9. Go to See https://www.yourtahoeplace.com/ivgid/about-ivgid.
  10. See NRS 244.137(1) and 268.001(1) which instruct “Dillon’s Rule, which is named after former Chief Justice John F. Dillon of the Iowa Supreme Court, who in a case from 1868 and in later treatises on the law governing local governments, set forth the common-law rule defining and limiting the powers of local governments.”
  11. See See NRS 244.137(3) and 268.001(3).
  12. See NRS 244.137(4) and 268.001(4).
  13. See NRS 360.200.
  14. See NRS 233B.038(2)(l).
  15. See page 1 of that August 21, 2015 memorandum from Ass’t District Attorney Paul Lipparelli to the County Board of Commissioners (“the County Board”) insofar as the Legal Authority of General Improvement Districts in Nevada wherein he concludes that once created, “GIDs are independent legal entities with their own perpetual existence.”
  16. See page 10 of Legislative Commission of the Legislative Counsel Bureau, State of Nevada (“LCB”), Bulletin No. 77-11, Creation, Financing and Governance of General Improvement Districts, September 1976 (“LCB Bulletin 77-11“).
  17. See A.G.O. No. 63-61, p. 102, at p. 103 (August 12, 1963).
  18. See NRS 318.116.
  19. See NRS 318.055(4)(b).
  20. See NRS 318.077 which allows a GID “board (to) elect to add basic powers not provided in its formation, in which event the board shall cause proceedings to be had by the board of county commissioners similar, as nearly as may be, to those provided for the formation of the district, and with like effect.”
  21. See NRS 318.055(4)(a).
  22. See NRS 360.270, NAC 360.043(1)(c).
  23. See sec. 3(a) of Ordinance No. 97, Bill 57, as authorized by NRS 318.116(7).
  24. See sec. 3(b) of Ordinance No. 97, Bill 57, as authorized by NRS 318.116(8).
  25. See sec. 3(c) of Ordinance No. 97, Bill 57, as authorized by NRS 318.116(9).
  26. See sec. 3(d) of Ordinance No. 97, Bill 57, as authorized by NRS 318.116(10).
  27. See sec. 3(e) of Ordinance No. 97, Bill 57, as authorized by NRS 318.116(11).
  28. See sec. 3(g) of Ordinance No. 97, Bill 57, as authorized by NRS 318.116(15).
  29. See sec. 3(i) of Ordinance No. 97, Bill 102, as authorized by NRS 318.116(16).
  30. See sec. 3(j) of Ordinance No. 97, Bill 102, as authorized by NRS 318.116(13).
  31. See sec. 21.5 of former NRS 318.143(1) [SB297, Chapter 413, page 1088, 1965 Statutes]. At the next legislative session this provision was amended to delete the word “public” [see sec 63 of former NRS 318.143(1) {SB408, Chapter 582, page 1714, 1967 Statutes}]. At the same time sec. 24 of former NRS 318.116 was adopted [SB408, Chapter 582, page 1693, 1967 Statutes] which added the basic power of “furnishing recreation facilities.” Today this basic power appears at NRS 318.116(14).
  32. See sec. 3(k) of Ordinance No. 97, Bill 132, as authorized by NRS 318.116(14).
  33. See sec. 3(l)(1) of Ordinance No. 97, Bill 227, as authorized by NRS 318.116(1).

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