As demonstrated elsewhere, the purpose for general improvement districts (“GIDs”) is supposed to be “to provide various urban type services¹ (to real property² in)…areas where such services (a)re not available and (cannot) be provided (for) by general purpose government(s)”³ such as counties, cities and unincorporated towns⁴. Okay, what types of services? Those provided by the Legislature⁵ as explicitly conferred in the GID’s initiating ordinance⁶ as supplemented, if at all, by those “additional basic power(s expressly) granted,”⁷ “sections of this chapter (NRS 318) designated therein,”⁸ and none other⁹. 

Yet for decades unelected staff and “rubber stamp” trustees have taken the position that because IVGID “is a legally separate government…fiscally independent of any other governmental entity…(it is somehow) not financially accountable (to) any other entity,”¹⁰ and it is “empowered to determine what facilities and services it should offer”¹¹ even though oftentimes GIDs: “do not have the adequate size or tax base to (financially) support th(os)e services;”¹² NRS 318.055(4)(c)(2) expressly declares that a GID’s “initiating ordinance must set forth…a statement that the ordinance creating the district will be based on the (county) board (of commissioner)’s finding…that the creation of the district is economically sound and feasible;” and here specifically, IVGID does not have the adequate size nor tax base to (financially) support the services it furnishes and its furnishing of those services is not economically sound. Stated differently, past trustees have taken the position, contrary to Dillon’s Rule¹³, that unless the exercise of a power is expressly prohibited by NRS 318, they are free to exercise it!

So the question: Does the District have the power to contract with third parties to provide “defensible space”/”fuels management” services? For the reasons which follow, we say no!

What Are “Defensible Space“/”Fuels Management“ Services? As elsewhere stated, “fuels management” or “defensible space” “is…the buffer (one) create(s) between a building on (one’s) property and the grass, trees, shrubs, or any wildland area that surround it.” According to their promoters, this space is needed “to slow or stop the spread of wildfire and it helps protect (one’s) home from catching fire — either from direct flame contact or radiant heat.”¹⁴ “The (stated) goal of (IVGID’s defensible space) program is to create a ‘halo’ around the community restricting the movement of wildfire in or out…The substance of those efforts removes vegetation and other fuels as they accumulate…rang(ing) from clearing the understory to major tree removal and fuels reduction.”¹⁵ “This work…provides a protective boundary for (all of) the homes (and other properties) of Incline Village and Crystal Bay.”¹⁶ Yet nowhere has the County Board granted IVGID the basic power to “furnish…facilities for protection from fire.” And notwithstanding, District staff think it’s perfectly permissible to spend any money the District receives, regardless of the source(s) or representation(s) made, on virtually anything of their choosing. And here the expenditure is for defensible space/fuels management.

“The (GID’s) Initiating Ordinance Must Set Forth…a Statement of The Basic Power or Basic Powers For Which The District is Proposed to be Created: (for instance, by way of illustration, ‘for paving, curb and gutters, sidewalks, storm drainage and sanitary sewer improvements within the district’).”⁶ As elsewhere discussed, the District’s initiating ordinance did not grant it the basic power to furnish facilities for “defensible space”/”fuels management.” Nor specifically did it grant the basic power to “furnish…facilities (or services¹⁷) for protection from fire, as provided in NRS 318.1181,”¹⁸

Moreover, “The Basic Power or Basic Powers Stated in The (GID’s) Initiating Ordinance Must be One or More of Those Authorized in NRS 318.116:”⁶ As elsewhere discussed, although NRS 318.116 does not expressly identify providing “defensible space”/”fuels management” as a basic power a GID may exercise, we view a GID’s basic power to “furnish…facilities (and services) for protection from fire” to be broad enough to encompass “defensible space”/”fuels management.”

A GID’s “Board May Elect to Add Basic Powers Not Provided in Its Formation, in which event it 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.”⁷ Yet the Washoe County Board has never granted the power to “furnish…facilities (or services¹⁷) for protection from fire” to the District, let alone via “proceedings…as nearly as may be, to those provided for the formation of the district, and with like effect.”¹⁹ Additionally, the Washoe County Board has never approved “a modified service plan for the district in a manner like that provided for an initial service plan required for the organization of a district in the Special District Control Law.”⁷

“Sections of This Chapter (NRS 318) Designated Therein:”⁶ Examine NRS 318. Nowhere else will the reader find that a GID may exercise the power to provide “defensible space”/”fuels management” services. Yes NRS 318.210 states that 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.” So what “specific powers (have been) granted in…chapter” NRS 318 which allegedly dictate that the power to furnish “defensible space”/”fuels management” services is “necessary or incidental to or (to be) implied” therefrom? And assuming you the reader can come up with any, would you not admit you have some doubt? Because if you do, we harken back to Dillon’s Rule which the reader will recall instructs “that if there is any fair or reasonable doubt concerning the existence of a power, that doubt is (to be) resolved against the (governing board of the local government) and the power is denied.”²⁰

Attorney General Opinion 2005-01 (January 21, 2005): instructs that the powers granted to local government are “in the nature of a public trust that may not be exercised…in the absence of statutory authorization.”¹³ Therefore without statutory authority, GIDs have no power to furnish “defensible space”/”fuels management” services! And since they have no such power, the same OAG opinion instructs they have no power to delegate such powers to their GM nor anyone else for that matter²² given the NLTFPD serves essentially the same geographic area as the District. And “annually approximately $450,000 to $500,000 is spent to maintain the 1,000+ acres of land IVGID owns.”¹⁵ The degree of work in any given area²³ rotates over time based on conditions as assessed¹⁴.

The District’s Funding Sources: The District contracts with NLTFPD for defensible space/fuels management services. And the District’s annual contribution towards mis-nomered defensible space (it should accurately be labeled “fuels management”) totals $200,000. These monies come from two separate funding sources. The first is “the defensible space fee on the (monthly) Public Works (utility/water bill) statement (i.e., the water fees local property owners pay²⁴ or guaranty²⁵ which represents)…50% of the IVGID share of costs…The other 50% share…is paid by the IVGID Recreation Facility Fee”²⁶ (“RFF”). If one multiplies this number by the 8,206 parcels/dwelling units represented by staff²⁷, one can compute the portion of the RFF devoted to “Defensible Space.” Since the District is collecting $100,000 annually from local property/dwelling unit owners’ water bills for defensible space, and staff report there are 8,106 parcels/dwelling units/other water users assessed a defensible space fee (3,698 single family residential²⁸, 4,090 multi-residential²⁹, 204 commercial²⁹, 26 IVGID commercial³⁰, 61 irrigation³¹, 26 IVGID irrigation³², and 1 IVGID snowmaking³³, each property/dwelling unit owner is paying/guarantying another roughly $12.34 annually to protect all property owners, non-property owning residents, inhabitants, visitors, invitees and business customers³⁴ traveling to/within Incline Village/Crystal Bay from the consequences of a devastating wildfire. All told, each property/dwelling unit owner is paying/guarantying roughly $25 annually to protect the general public as a whole from the consequences of a devastating wildfire.

The Districts Wrongful Use of the RFF: Although NRS 318.197(1) instructs that a GID “Board may fix…(various) rates, tolls or charges other than special assessments,” nowhere are fuels management charges expressly included in the litany of permissible fees. Even if assuming arguendo such fees can be charged for services for the “protection from fire” (see discussion above), the reader is reminded that according to District staff and the Board³⁵, the RFF represents “Recreation Standby and Service Charges [also known as the Recreation…and Beach Facility Fee(s)³⁶…for the (mere) availability of use of the recreational facilities described”³⁷ in the “written report³⁸ (for collection on the county tax roll which is)…filed (each year) with the secretary.” So do the fees necessary to pay for the District’s “defensible space”/”fuels management” services have anything to do with “recreation standby and service charges…for the (mere) availability of use of the (District’s) recreational facilities?” How about services the District has no power to furnish?

The Districts Wrongful Use of Revenues Derived From the Water it Furnishes: The common law³⁹ as well as public policy⁴⁰, and “every unjust and unreasonable charge for service of a public utility is unlawful” [see NRS 704.040(2)].[/efn_note]. Therefore a public utility’s⁴¹ water rates can only be assessed at levels “high enough to produce revenue sufficient to bear all…maintenance (and) operation…costs…interest charges on bonds and…accumulation of a surplus…sufficient to (service) all outstanding bonds.”⁴². So do the rates the District charges for the water it furnishes have anything to do with “maintenance (and) operation…costs…interest charges on bonds and…accumulation of a surplus…sufficient to (service) all outstanding (water) bonds?” How about services the District has no power to furnish?

NRS 205.300(1): In order to further demonstrate that staff’s use of the RFF and the revenues they collect for water are impermissible, one needs to understand they get deposited into a single account⁴³. Thus as far as staff are concerned, the money is available to be spent on whatever. And spent it is!

Therefore we submit that using the RFF and the water rates the District charges for “defensible space”/”fuels management” purposes is a violation of NRS 205.300(1)⁴⁴. So where exactly do staff get off using funds collected as a bailee for completely different purposes to pay for services the District has no power to furnish?

Besides, Local Parcel Owners Already Pay For Fuels Management Services with the ad valorem property taxes they pay to NLTFPD: Therefore it’s not like our community wouldn’t benefit from fuels management services if they weren’t furnished by IVGID. If you’re a property owner take a look at your county ad valorem tax bill. There you will see that over 18.6% of the taxes you pay go to the NLTFPD. And what fire protection services is the public entitled to expect from the NLTFPD in consideration thereof? You guessed it! Fuels management! In fact, do you the reader realize that NLTFPD actually maintains a “Fuels Management Division?” And that according to its web site, “since the mid-1990s (NLTFPD‘s) Fuels Management Division has been implementing fuels reduction projects that not only contribute to the reduction of wildfire risk in our community but also improve forest health?” So why exactly is the District doing the NLTFPD‘s job?

Moreover, Rather Than Specially Benefiting Just Those Parcels/Dwelling Units Which Are Assessed, Fuels Management Services Benefit The General Public as a Whole: As elsewhere discussed, constructing/maintaining a cleared “halo” to protect against a catastrophic wildfire in the forest above Incline Village/Crystal Bay benefits all residents, inhabitants, property owners, businesses, visitors, and real properties⁴⁵ in our community. In other words, these services are not limited to only District owned property. Therefore, “the (fuels management fees)…levied…(by IVGID can)not survive scrutiny under the first prong of (the) Medeiros test⁴⁶ because the (open space furnished)…directly benefit(s)…the public-at-large — (and) not (just) th(os)e…who pay the (RFF) inasmuch as the public at large is the primary beneficiary.”⁴⁷

The District’s Justification: for exercising powers it does not have: We believe there is none. However, if you’d like to consider the Board’s/staff’s perceived justification, you’re directed to our Staff’s/the Board’s Justification For Exceeding the Limited Powers the District May Permissibly Exercise web page.

Conclusion: So there you go. The issue we raise isn’t whether “defensible space”/”fuels management” services are a good thing. But rather, whether IVGID has the express power to furnish such services. Moreover, rather than charging their cost to the District’s General Fund, they are discriminatorily paid by the RFF and utility water charges local parcel/dwelling unit owners only must pay/guaranty. Finally, whatever benefit “defensible space”/”fuels management” delivers, accrue to the general public as a whole whether or not any single beneficiary is the one paying that cost. For the above-reasoning then, it is our opinion it was and is a misuse of NRS 318.055(4)(b) as well as Dillon’s Rule¹³ for IVGID to have furnished “defensible space”/”fuels management” services, and the District had no power to assess/use the RFF and the utility water charges it collects for this purpose simply because “the ends justify the means.”

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1. GIDs are authorized to “furnish services pertaining to any such basic power…the district may (permissibly) exercise” [see NRS 318.100(2)].
2. Consider that: NRS 318.258(9) instructs the services a GID “provide(s are those)…required by the owners of…real property;” NRS 318.197(2) instructs that “all rates, tolls or charges (adopted shall) constitute a perpetual lien on and against the property served;” NRS 318.201(10) similarly instructs that “the amount of the charges (elected to be collected on the tax roll) shall constitute a lien against the lot or parcel of land against which the charge has been imposed;” NRS 318.203 instructs that “where a dwelling unit (on a)…parcel of real property upon which the unit referenced…exists that is not currently being charged for services provided…the board…of trustees…may adopt a resolution…to charge the owner (of that unit)…for the services provided;” NRS 318.170(1)(b) instructs that “all owners of inhabited property in the district (may be compelled) to use (and pay for) the district’s system for the collection and disposal of sewage, garbage and other refuse;” and, NRS 318.201(1) instructs that when a “board which has adopted rates pursuant to this chapter…elect(s) to have such charges for the forthcoming fiscal year collected on the tax roll…it shall cause a written report to be prepared…which shall contain a description of each parcel of real property receiving such services and facilities and the amount of the charge for each parcel for such year.” In all of these examples it is the owner of real property who is charged for the services and facilities a GID provides to real property.
3. See ¶II at page 8 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).
4. In Nevada counties, cities and unincorporated towns are general purpose governments because each is granted general powers to provide for the health, safety and welfare of its inhabitants. Counties are vested “with the appropriate authority to address matters of local concern” [see NRS 244.137(6)]. “The term…matters of local concern (expressly)…include(s those addressing)…public health, safety and welfare” [see NRS 244.143(2)(a)]. Cities are vested with express powers to: “provide for safeguarding public health” [see NRS 266.330(1)], “provide generally for the public safety” [see NRS 266.277(1)], and regulate and license (see NRS 266.355) which encompasses statements attesting to the welfare of the community [see NRS 425.520(2)]. Unincorporated towns are vested with express powers to: provide for “public health, safety and morals” [see NRS 269.190 et seq.], and, “protect the public health and welfare” [see NRS 269.227, 269.128, 269.171(1)]. In contrast, GIDs are not expressly permitted to exercise any of these powers.
5. See NRS 318.116.
6. See NRS 318.055(4)(b).
7. See NRS 318.077.
8. See NRS 318.055(4)(a).
9. See A.G.O. No. 63-61, p. 102, at p. 103 (August 12, 1963).
10. See ¶1(A) at page 35 of IVGID’s 2019 Comprehensive Annual Financial Report (“the 2019 CAFR”).
11. See https://www.yourtahoeplace.com/ivgid/about-ivgid.
12. See ¶11 at page 10 of LCB Bulletin 77-11.
13. Dillon’s Rule is recited at NRS 244.137(3)-(4) as well as NRS 268.001(3)-(4) and “provides that (the governing boards of local governments) possess…and 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 (local government) and not merely convenient but indispensable…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 of (the local government) and the power is denied.”
14. See https://www.readyforwildfire.org/prepare-for-wildfire/get-ready/defensible-space/).
15. See page 4 of IVGID’s 2018 Comprehensive Annual Financial Report (“the 2018 CAFR”).
16. See the District’s “About Rates and Billing” web page.
17. NRS 318.100(2) gives GIDs the power to “furnish services pertaining to any such basic power which the district may exercise.”
18. NRS 318.1181(1)(c) states that a GID “board may…clear public highways and private lands of dry grass, stubble, bushes, rubbish and other inflammable material which in its judgment constitute a fire hazard.” Given NRS 318.015(1) instructs that “for the accomplishment of these purposes the provisions of this chapter shall be broadly construed,” we view this description to be broad enough to encompass the District’s “defensible space”/”fuels management” services¹⁷.
19. Those proceedings would include: the Board’s adoption of an ordinance [see NRS 318.055(2)] proposing the adding of a new basic power⁶; “the…mail(ing) of written notice to all property owners within the…district of the intention of the board of county commissioners to” add a new basic power “which notice shall set forth the…time and place of hearing” (see NRS 318.060); and, “at the place, date and hour specified for the hearing in the notice…the board of county commissioners shall give full consideration to all protests which may have been filed and shall hear all persons desiring to be heard and shall thereafter adopt an ordinance either (adding the proposed new basic power)…or determining that it shall not be” granted [see NRS 318.070(1)] with the proviso proponents must “show that the (adding of such proposed new basic power) is economically sound and feasible” [see NRS 318.070(2)].
20. See NRS 244.137(4) and NRS 268.001(4).
22. See Ronnow v. City of Las Vegas, 57 Nev. 332, 341-43, 65 P.2d 133 (1937) which instructs that “a  municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation – not simply convenient, but indispensable…Neither the corporation nor its officers can do any act, (n)or make any contract, (n)or incur any liability, not authorized thereby, (n)or by some legislative act applicable thereto. (And) all acts beyond the scope of the powers granted are void” (Id., at 57 Nev. 343).

    Evidence The District Has Outsourced “Defensible Space“/”Fuels Management“ Services: If the reader goes to our What Are Defensible Space/Fuels Management Fees discussion, he/she will learn that in 1991 the District initiated a formal “Fuels Management Program…in a collaboration with the (North Lake Tahoe Fire Protection District) NLTFPD”²¹See page 4 of IVGID’s 2018 Comprehensive Annual Financial Report (“the 2018 CAFR”).

23. “Manual fuel treatments consist of both brush and tree removal by hand to meet the above objectives. Where feasible, mechanical thinning involving heavy equipment is used to reduce cost and increase efficiency. Prescribed burning is an additional step to manual treatment…The burning not only reduces wildfire risk but promotes forest regeneration” (go to https://www.nltfpd.org/fuels-managment-division).
24. Page 66 of the 2018 CAFR depicts a Schedule of Revenues, Expenses and Changes in Net Position to the District’s Utility Fund. Thereon IVGID represents that $100,000 was budgeted for defensible space.
25. ¶9.06 of Ordinance 4, the District’s Water Ordinance, states that “all charges, fees and amounts due and payable shall be billed to the owner of the premises, whether or not the owner is also the occupant.”
26. Page 87 of the 2018 CAFR depicts “Budgeted Facility Fees per parcel, (over the) Last Ten Fiscal Years.” If one scrolls down the page, one will see that roughly $12 of our RFF (actually, it’s slightly more – $12.19).
27. See page 485 of the packet of materials prepared by staff in anticipation of the Board’s May 25, 2023 meeting (“the 5/25/2023 Board packet“).
28. See page 82 of the packet of materials prepared by staff in anticipation of the Board’s February 8, 2023 meeting (“the 2/8/2023 Board packet“).
29. See page 83 of the 2/8/2023 Board packet.
30. See page 85 of the the 2/8/2023 Board packet.
31. See page 84 of the 2/8/2023 Board packet.
32. See page 86 of the 2/8/2023 Board packet.
33. See page 87 of the 2/8/2023 Board packet.
34. In other words, the general public as a whole.
35. See our What Are The RFF/BFF discussion.
36. See page 232 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 Board packet (“the 5/26/2022 Board packet“).
37. See ¶I at page 234 of the 5/26/2022 Board packet.
38. See pages 232-237 of the 5/26/2022 Board packet.
39. See Austin View Civic Association v. City of Palos Heights, 85 Ill.App.3d 89, 94-95, 405 N.E.2d 1256, 1262 (1980); 64 Am.Jur.2d §297, p.496.
40. See NRS 704.040(1) which instructs that the District’s water rates must be just and reasonable [“the charges made for any (utility) service rendered or to be rendered, or for any service in connection therewith or incidental thereto, must be just and reasonable“].
41. The District is a public utility inasmuch as it owns and operates a “plant or equipment…within this State for the production, delivery or furnishing for or to other persons, including private or municipal corporations…water for business, manufacturing, agricultural or household use” [see NRS 704.020(2)(a)].
42. See Springfield Gas & Electric Co. v. City of Springfield, 292 Ill. 236, 126 N.E. 739, 744 (1920) (affirmed at 257 U.S. 66, 42 S.Ct. 24) – cited with approval at A.G.O. 53-231 (February 9, 1953).
43. That’s right. The District maintains but a single checking account. But for investments in income producing vehicles like certificates of deposit, day-to-day revenues and expenses are made into/out of a single checking account. Those transactions are reported in various accounting funds through a chart of accounts legend which assigns unique identification names and numbers to each transaction. Summaries can then be prepared using one or more software sorting programs.
44. Which states that “any bailee of any money, goods or property…with whom any money, property or effects have been deposited or entrusted, who uses or appropriates the money, property or effects or any part thereof in any manner or for any other purpose than that for which they were deposited or entrusted, is guilty of embezzlement, and shall be punished in the manner prescribed by law for the stealing or larceny of property of the kind and name of the money, goods, property or effects so taken, converted, stolen, used or appropriated.”
45. Including those who/which are not assessed the RFF such as about 200 unimproved parcels which are not physically connected to and receiving water from the public’s water system.
46. See State v. Medeiros, 89 Hawaii 361, 370, 973 P.2d 736, 745 (1999).
47. And “th(os)e (who are assessed) themselves are, if anything, only incidental beneficiaries.”