As demonstrated elsewhere, general improvement districts (“GIDs”) are limited purpose special districts. Therefore their powers are to be strictly construed and limited¹ to those provided by the Legislature² as explicitly conferred by their County Boards of Commissioners (“County Boards”) in the GID’s initiating ordinance³ as supplemented, if at all, by: those “additional basic power(s expressly) granted⁴…pursuant to NRS 318.077;”⁵ “sections of this chapter (NRS 318) designated therein;”³ and, none other¹.

Introduction: As with the propriety of all local governmental powers, we begin our analysis with the Nevada Constitution given it “is the ‘supreme law of the state which ‘control[s] over any conflicting statutory provisions.’”⁶ Nev. Const. Art. 8, Sec. 8 instructs that the Legislature shall provide for/restrict the powers of general purpose governments. Since the Legislature has created the GID law⁷, and the Incline Village General Improvement District (“IVGID”) is a GID⁸, its powers are recognized/restricted by NRS 318.

The basic powers the Washoe County Board has expressly granted to IVGID (all of which have been provided by the Legislature²) consist of furnishing facilities for: streets, alleys and public highways⁹; curbs and gutters¹⁰; sidewalks¹¹; storm drainage and flood control¹²; sanitary sewerage¹³; water¹⁴; lighting public streets, ways and places¹⁵; the collection and disposal of garbage and refuse¹⁶; public recreation¹⁷; and, electric light and power¹⁸. Notably, nowhere has the Washoe County Board granted to IVGID the basic power to pass laws or legislate so it can exempt itself and others from any rate, toll or charge in general it is authorized to fix, or its Beach (“BFF”) and/or Recreation (“RFF”) Facility Fee assessment/payment in particular. Moreover, no such power is recognized in NRS 318.116. So with that said,

The Particulars: Nev. Const. Art. 8, Sec. 2 instructs that “all real property…in this State belonging to corporations¹⁹ now existing or hereafter created shall be subject to taxation, the same as property of individuals (with the exception)…the property of corporations formed for Municipal, Charitable, Religious, or Educational purposes may (as opposed to shall) be exempted by law.” NRS 361.045 through 361.159 address a number of exemptions by law from taxation. But literally none has application to the RFF/BFF given the District asserts they are NRS 318.197(1) “recreation standby and service charges.”²⁰ As we will demonstrate, IVGID has no power to exempt any one or any property, including itself, from the payment of the rates, tolls or charges (as contrasted to taxes) it fixes.

Dillon’s Rule: As elsewhere stated, NRS 244.137 instructs that “(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, which…defin(es) and limit(s) the powers of local governments…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 (those which are) 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 this statute literally applies to county governments, since it accurately instructs that Dillon’s Rule applies to all forms of local government, most legal professionals will counsel that it is equally applicable to GIDs. Moreover, in Nevada’s jurisprudence the Nevada Supreme Court has adopted and applied Dillon’s Rule to county, city and other local governments²¹.

Given the power to exempt any one or any property from the NRS 318.197(1) rates, tolls and charges a GID Board fixes does not expressly appear in the Constitution nor NRS 318 (see discussion below); it is neither necessarily nor fairly implied in nor incident to other powers expressly granted; and, it is neither essential nor indispensable to the accomplishment of the declared objects and purposes of GIDs; Dillon’s Rule instructs that the power to exempt simply does not exist.

Express Constitutional or Statutory Authority: Independent of Dillon’s Rule and the rules of statutory construction (see discussion below), in order to exempt property from any exaction the authorities are uniform in declaring there must be express constitutional or statutory authority²². In Chapman, similar to IVGID, Albuquerque adopted two “standby ordinances” which assessed all nonexempt improved lots and unsubdivided lands not having sewer connections, yet abutting or adjoining properties through which sewer pipes were laid, minimum annual charges. Based upon Article VIII, §3 of the New Mexico Constitution²³, the City created exemptions providing that certain classes of property not be assessed. Assessed property owners filed a class action in part alleging that the exemptions were void because they were adopted without statutory authority. The New Mexico Supreme Court agreed finding that “the express power to assess does not give the power to exempt property from the assessment²⁴. (Rather,) there must be express constitutional or statutory authority so to do.” And since in Chapman there was none (in part because the Constitution exempted properties from taxation rather than fees²⁵), the same result for the same reasoning is required here.

The Plain Meaning of NRS 318.197(1): The authority the District apparently relies upon as authority for its fee exemptions is NRS 318.197(1). In other words according to the District, the power to fix rates, tolls and charges encompasses the power to exempt payment. However, this argument ignores Dillon’s Rule (see discussion above) as well as longstanding rules of statutory construction.

“Judges interpret laws rather than reconstruct legislators’ (undisclosed) intentions. (Thus) where (as here) the language of those laws is clear, we are not free to replace it with an unenacted legislative intent”²⁶ as (we) “presume…[the] Legislature says in a statute what it means and means…what it says…(Thus our) inquiry begins with the statutory text, and ends there as well (where as here) the text is unambiguous.”²⁷ If the legislature could have easily provided for a given thing to take place (i.e., here fee exemptions), but did not so provide, it will not be presumed that the Legislature intended that for which it did not provide²⁸. Given NRS 318.197(1) makes no reference to fee exemptions, this court must “enforce the statute as written”²⁹ and reject any notion it intended GID Boards could create rate, toll and charge exemptions.

Additionally, note that NRS 318.350(2) instructs that “unless the board of trustees of the district consents to (an) assessment, all property owned and used by a school district is exempt from any assessment made pursuant to the provisions of this chapter.” This fact demonstrates that if the Legislature intended to provide for rate, toll and charge exemptions it knew how to created them (see the expressio unius est exclusio alterius discussion below).

Expressio Unius est Exclusio Alterius: is a legal canon which gives common sense guidance to courts in interpreting the meaning of statutes. Here it literally means “the express mention of one thing excludes all others.” And here “Nevada State courts…have long recognized and applied this canon³⁰. As applied to NRS 318.197(1), the fact the statute speaks to a GID Board’s power to fix rates, tolls and charges, yet says nothing about the power to exempt, implies the latter was not intended. In other words, if corporations formed for Municipal, Charitable, Religious or Educational purposes “had been intended by the Legislature to be exempt from (a GID’s rates, tolls, charges and fees), the exemption would have been stated and not left to implication.

Furthermore, the fact the makers of the Constitution, in specifically providing that property of (corporations formed for Municipal, Charitable, Religious, or Educational purposes) should be exempt from general taxation, without providing a (similar) exemption from (rates, tolls and charges),,,compel(s) the…implication…no such exemption was intended…(And) furthermore (still), if public property is to be exempted-from taxation by implication, then section (2) of Article 8 of the (Nevada) 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 is a recognition of the principle that, without such 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 public property from general taxation, surely…it…was…necessary that there should be an express exemption if such property is to be free from special assessments for benefits!”³¹

The District’s Conduct Insofar as its Other Rates, Tolls and Charges Are Concerned Demonstrates There’s No Justification to Exempt Any Property From the RFF/BFF: There’s another legal canon at play and that’s where “statutes…are in pari materia (they) must be construed together to effect legislative intent. Statutes are in pari materia if they relate to the same subject.”³² As recited above, IVGID has been granted the basic powers to furnish facilities for water, sewer, solid waste disposal and public recreation. The common statute which authorizes the fixing of rates, tolls and charges for services furnished is NRS 318.197(1), In contrast to Resolution No. 1889, the District’s water Ordinance No. 4 includes no provision which exempts or excludes any water customer, including IVGID itself, from paying adopted rates for the water services his/her/its real property receives. Similarly, the owners of all properties exempt from paying the RFF/BFF who receive sewer services from IVGID, pay for those services. The District’s sewer Ordinance No. 2 includes no provision which exempts or excludes any sewer customer, including IVGID itself, from paying adopted rates for the sewer services his/her/its real property receives. And similarly, the owners of all properties exempt from paying the RFF/BFF who receive solid waste disposal services from IVGID, pay for those services. The District’s trash Ordinance No. 1 includes no provision which exempts or excludes any trash disposal customer, including IVGID itself, from paying adopted rates for the solid waste disposal services his/her/its real property receives.

Given the District represents that all parcels/dwelling units within its boundaries…(and) property owners…of all properties, are specifically benefited (because of)…the availability of the use of IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and Recreation Center, including reduced rates for season passes and reduced daily rates³³; and as a result it assesses the RFF/BFF; we ask why exactly any local parcel/dwelling unit or owner is exempt from paying the RFF/BFF just as if it were a water, sewer or solid waste disposal fee for services? In fact, we go one step further. Since the RFF/BFF are represented to be standby service charges, we ask why exactly any local parcel/dwelling unit whose owner/occupant is not a current water, sewer or solid waste disposal customer isn’t assessed standby service charges?

Preemption: Putting aside the fact IVGID has no power to legislate (see discussion above), the doctrine of preemption prohibits it from making up its own exemptions, including exempting itself [See Storrie Project Water User’s Ass’n. v. Gonzales, 53 N.M. 421, 427, 209 P.2d 530, 534 (1949)]. Preemption occurs when a higher level of government (here the State) removes regulatory power from a lower level of government (here GIDs). Intrastate preemption occurs where a municipality’s authority in a particular area has been supplanted by State law [87 BLR 1113, 1114, Intrastate Preemption (2007)]. Because: preemption only occurs when two levels of government operate within the same sphere (Id., at 1122), Nevada is a Dillon’s Rule regime (see discussion above), GIDs are limited forms of government not vested with general powers¹, and express grants of authority to GIDs from the Legislature are virtually nonexistent, IVGID is effectively precluded from engaging in any substantive policy or rule making insofar as rate, toll or charge exemptions are concerned. Stated differently, the State having chosen to address the issue of a GID’s power to fix rates, tolls and charges, IVGID is precluded from entering the field to add its own unique twist to this subject matter. In other words it is precluded from filling the arguable void left by the State’s failure to address the subject of possible GID rate, toll and charge exemptions.

Special or Local Laws: Nev. Art. 4, sec 21 states that “in all…cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the State.” “[I]f a statute be either a special or local law, or both…but does not come within any of the cases enumerated in section 20³⁴…its constitutionality depends upon whether a general law can be made applicable…Therefore, the first inquiry is whether…legislation is general or whether it is special or local.”³⁵

“[A] law is general when it applies equally to all persons embraced in a class founded upon some natural, intrinsic, or constitutional distinction.”³⁶ “The purpose underlying the general law requirement ‘is that when a statute affects the entire state, it is more likely to have been adequately considered by all members of the Legislature, whereas a localized statute is not apt to be considered seriously by those who are not affected by it’” (Id.). “Conversely, a law is considered local if it operates over ‘a particular locality instead of over the whole territory of the State.’”³⁷ In other words, where “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.”³⁸

Because here the District’s RFF/BFF exemptions confer particular privileges and impose peculiar disabilities in the exercise of a common right upon classes of persons arbitrarily selected within the boundaries of IVGID rather than the State as a whole, and further allow the Board to exempt any parcel/dwelling unit on a case-by-case/discriminatory basis (how else can one explain the Board’s exemption of a Pet Network parcel from the RFF/BFF?), they represent an unconstitutional special or local law.

Office of Attorney General September 11, 1975 Opinion: We’re not the first to question the District’s RFF/BFF exemption policy. Back in 1974 Sierra Nevada College (“SNC”) was questioning that policy as well. According to SNC, since it was granted an exemption from the levy of general ad valorem taxes on the county tax roll, it was entitled to a like exemption from the payment of RFFs collected on the same tax roll. Given the Office of Attorney General (“OAG”) is empowered to give its opinion upon a question of law when requested³⁹, the District’s attorney at the time raised this question to the Office of the OAG.

On September 11, 1975 the OAG issued its reasoned opinion in written form⁴⁰ wherein it concluded “IVGID need not grant a service charge exemption to a charitable corporation…pursuant to NRS 318.200 and 318.201…merely because such a charitable corporation has also been granted an exemption by the county from the county’s general taxes.”⁴¹ However without reasoning or authority the opinion goes on to gratuitously declare “IVGID is perfectly capable, pursuant to NRS 318.200⁴², to grant or not grant such an exemption on its own.”⁴³ Huh? IVGID need not grant an exemption pursuant to NRS 318.200 because “any exemptions to such charges c(an) be granted by a general improvement district pursuant to that statute and only that statute,” yet it is perfectly capable of granting an exemption pursuant to NRS 318.200 even though the subject matter is nowhere discussed? Based upon this dictum IVGID staff are running all over town proclaiming they have an OAG Opinion which supports the District’s policy of exempting favored parcels/dwelling units and persons from assessment and payment of the RFF/BFF. But that’s not accurate.

First of all, understand that this OAG Opinion is nothing more than an opinion. Although obviously of some weight, an OAG Opinion is not legally binding on anyone. In contrast, a judge’s opinion rendered pursuant to a NRS 43.100(1)⁴⁴ petition for instance is⁴⁵.

Secondly, understand that this Opinion is over forty-five (45) years old! And at least insofar as the question raised by the District’s counsel at the time, the OAG actually got it right (just consider its reasoning compared to that of Chapman above). It’s the dictum⁴⁶ to which we object because dictum in an opinion or judgment is never authority for what’s stated. Nor can it possibly be the “law of the case.” “The reason assigned…is that usually (dicta)…upon some point not discussed…something to which the attention of the Court has not been particularly called — and something on which the Judge uttering them may not have reflected a moment before expressing his opinion.”⁴⁷ Here the OAG reasons that a GID may not grant exemptions from its rates, tolls and charges based upon the authority of NRS 318.200⁴² or 318.201. Yet it concludes without reasoning or legal authority that “IVGID is perfectly capable, pursuant to NRS 318.200, to grant or not grant such an exemption on its own.” In other words, an impermissible point not discussed.

The District’s Justification: We believe there is none. However, if the reader would like to consider the Board’s/staff’s perceived justification and our response, you’re directed to our Staff’s/the Board’s Justification For Exceeding the Limited Powers the District May Permissibly Exercise discussion.

So How Many Parcels/Dwellings Have the District Exempted? Until recently it was almost impossible for members of the public to learn the answer to this question. That was until it appeared at pages 340-41 of the packet of materials prepared by staff in anticipation of the Board’s September 2, 2021 meeting (“the 9/2/2021 Board packet“). And now we learn the number is 1,263⁴⁸, and it is broken down as follows: 687 are owned by the federal government; 347 are owned by the State; 22 are owned by Washoe County; 6 are owned by the Washoe County School District (“WCSD”); 4 are owned by the North Lake Tahoe Fire Protection District (“NLTFPD”); 270 are owned by IVGID; 18 are unbuildable and publicly owned; and, 13 are unbuildable and privately owned. At a RFF/BFF of $780, we’re talking about nearly $1 million in fees the District should be collecting and would arguably be reducing the fees paid by every other parcel, but doesn’t.

Conclusion: In our opinion it is a misuse of NRS 318.197(1) (the power to fix rates, tolls and charges) to exempt any local local parcel/dwelling unit receiving alleged access to and use of the District’s beach and/or public recreation facilities from paying the BFF/RFF. And not that justification can come from what any of the eighty-four (84) [as of fiscal year 2011] or more other Nevada GIDs in the State⁴⁹ do, but how many do you think have exempted any property or person from paying the rates, tolls and charges they have fixed? To our knowledge none other than IVGID! Thus we submit the fact no other GID in the State exempts anyone from paying its rates, tolls and charges, is evidence neither should IVGID!

---

1. See A.G.O. No. 63-61, p. 102, at p. 103 (August 12, 1963).
2. See NRS 318.116.
3. See NRS 318.055(4)(b).
4. See NRS 318.055(4)(a).
5. NRS 318.077 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.”
6. See Thomas v. Nev. Yellow Cab Corp., 130 Nev. Adv. Op. 52, 327 P.3d 518, 521 (2014).
7. See NRS 318.010.
8. NRS 318.015(1) instructs that “each district organized pursuant to the provisions of this chapter shall be a body corporate and politic…quasi-municipal corporation” and general improvement district. 
9. See sec. 3(a) of Ordinance 97, Bill 57, as authorized by NRS 318.116(7).
10. See sec. 3(b) of Ordinance 97, Bill 57, as authorized by NRS 318.116(8).
11. See sec. 3(c) of Ordinance 97, Bill 57, as authorized by NRS 318.116(9).
12. See sec. 3(d) of Ordinance 97, Bill 57, as authorized by NRS 318.116(10).
13. See sec. 3(e) of Ordinance 97, Bill 57, as authorized by NRS 318.116(11).
14. See sec. 3(g) of Ordinance 97, Bill 57, as authorized by NRS 318.116(15).
15. See sec. 3(i) of Ordinance 97, Bill 102, as authorized by NRS 318.116(16).
16. See sec. 3(j) of Ordinance 97, Bill 102, as authorized by NRS 318.116(13).
17. 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).
18. See sec. 3(l)(1) of Ordinance 97, Bill 227, as authorized by NRS 318.116(1).
19. GIDs are “quasi-municipal corporations” [see NRS 318.015(1)].
20. “Each year, the District establishes an annual Recreation…and Beach Facility Fee to be collected from property owners within the District through a levy placed on the(ir) property tax bill(s) and collected on behalf of the District by the Washoe County Tax Collection Office” [see page 180 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2021 meeting (“the 5/26/2021 Board packet“)]. “The Board of Trustees is required to approve a resolution which outlines the billing and collection process set forth in Nevada Revised Statutes 318.197…Staff…prepare(s a)…Report for Collection on the Washoe County Tax Roll for…Recreation Standby and Service Charges” (see page 181 of the 5/26/2021 Board packet). ¶6 of the resolution which is approved [the latest resolution which adopted the RFF/BFF and ordered their collection pursuant to NRS 318.201(8) on the county tax roll was Resolution No. 1889 (see pages 184-187 of the 5/26/2021 Board packet)] adopts that Report (see page 186 of the 5/26/2021 Board packet). ¶I(D) of the Report, patterned after Nev. Const. Art. 8, Sec. 2, expressly “except(s) and exclude(s)…lots, parcels and areas of land used, or the 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…from the (RFF/BFF) charges imposed” (see page 190 of the 5/26/2021 Board packet).
21. See Ronnow v. City of Las Vegas, 57 Nev. 332, 341-43, 65 P.2d 133 (1937).
22. See Chapman v. City of Albuquerque, 65 N.M. 228, 335 P.2d 558, 563 (1959).
23. Which similar to Nev. Const. Art. 8, Sec. 2 states that “property of the United States, the state and all counties, towns, cities and school districts and other municipal corporations, public libraries, community ditches and all laterals thereof, all church property not used for commercial purposes, all property used for educational or charitable purposes, all cemeteries not used or held for private or corporate profit and all bonds of the state of New Mexico, and of the counties, municipalities and districts thereof shall be exempt from taxation.”
24. This is the District’s justification for adopting the exemptions it has (see discussion below).
25. Also see Lake Arthur Drainage Dist. v. Board of Com’rs. of Chaves County, 29 N.M. 219, 223, 222 P. 389, 390 (1924) where the Court noted that the fact the makers of the Constitution, in specifically providing that property of a county should be exempt from general taxation, without providing an exemption from special assessments, compelled the implication no such exemption (from a fee) was intended.
26. See INS v. Cardoza-Fonseca, 480 U.S. 421, 452-53, 107 S.Ct. 1207 (1987) [concurring opinion of Justice Scalia].
27. See McDonald v. Sun Oil. Co., 548 F.3d 774, 780 (9th Cir. 2008).
28. See Palmer v. Del Webb’s High Sierra, 108 Nev. 673, 680, 838 P.2d 435 (1992).
29. See In re George, 128 Nev. Adv. Op. 32, 279 P.3d 187, 190 (2012).
30. See Nunez v. Sahara Nevada Corp., 677 F. Supp. 1471, 1473 (D. Nev. 1988).
31. See Lake Arthur Drainage Dist., Id.
32. See City of Sandpoint v. Sandpoint Indep. Highway Dist., 139 Idaho 65, 69, 72 P.3d 905, 909 (2003).
33. See ¶4(a)-(b) at pages 185-186 of the 5/26/2021 Board packet.
34. NRS 318.197(1) does not come within any of the cases enumerated in Nev. Art. 4, sec 20.
35. See City of Fernley v. State, Dep’t of Tax, 132 Nev. Adv. Op. 4, 366 P.3d 699, 708 (2016).
36. See Clean Water Coalition v. M Resort, 127 Nev. 301, 311, 255 P.3d 247, 254 (2011).
37. City of Fernley, Id.
38. Clean Water Coalition, Id.
39. NRS 228.150(1) states that “when requested, the Attorney General shall give his or her (written) opinion…to the Governor, the Secretary of State, the State Controller, the State Treasurer, the Director of the Department of Corrections, to the head of any state department, agency, board or commission, to any district attorney and to any city attorney of any incorporated city within the State of Nevada, upon any question of law relating to their respective offices, departments, agencies, boards or commissions.” We find it noteworthy that the attorney for a GID is not included in the list of those who may legitimately request an OAG opinion.
40. See pages 384-386 of the packet of materials prepared by staff in anticipation of the Board’s September 2, 2021 meeting (“the 9/2/2021 Board packet“).
41. See pages 385-386 of the 9/2/2021 Board packet.
42. The predecessor to today’s NRS 318.197(1).
43. See page 386 of the 9/2/2021 Board packet.
44. NRS 43.100(1) instructs that “the governing body (of a GID) may file or cause to be filed a petition at any time in…district court…praying (for) a judicial examination and determination of the validity of any power conferred or…any instrument, act or project…whether or not such power has been exercised, such instrument has been executed or otherwise made or such act or project has been taken.”
45. NRS 43.140(1) instructs that “the petition and notice shall be sufficient to give the court jurisdiction, and upon hearing the court shall examine into and determine all matters and things affecting the question(s) submitted, shall make such findings with reference thereto and (shall) render such judgment and decree thereon as the case warrants.”
46. “An opinion expressed by a Judge on a point not necessarily arising in a case” [See State v. Loveless, 62 Nev. 312, 150 P.2d 1015, 1018 (1944)].
47. See State of Nevada ex rel. Nourse v. Clarke, 3 Nev. 566, 570 (1867).
48. It’s actually at least 1,264 because we know the Pet Network’s Incline Village parcel is exempt.
49. See Table 1 of University of Nevada Cooperative Extension Fact Sheet-13-32, Funding Economic Development in Nevada: General Improvement Districts, Frederick Steinmann (2012).