Introduction: As demonstrated elsewhere, the purpose of 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. Well 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 GIDs in general “often do not have the adequate size or tax base to (financially) support th(os)e services,”¹² and here specifically, IVGID does not.

So the question presented: Does the District have the power to maintain, repair and improve someone else’s real property, and to pay for that person’s water and electricity services furnished thereat? For the reasons which follow, we say no!

Agreement to Maintain and Repair Washoe County’s East and West Parks at Either End of the Intersections of Lakeshore Blvd. and SR-28: For thirty-two (32) years the District has maintained two county “interpretive (entry) parks” at either end of Lakeshore Blvd where it intersects State Highway Route 28. This maintenance has purportedly been provided pursuant to a January 11, 1990 agreement¹³. $131,500 of “Residential Construction Tax(es)” (aka “District 9 Funds”) were provided by the County to construct these parks, IVGID agreed to supervise construction as “the contractor for the project” [because it allegedly “ha(d) the (necessary) experience and expertise needed”], “following completion of construction IVGID (would) have full and complete operational responsibilities,” it would be responsible for ongoing “maint(enance of) the(se) facilities at a level at least equal to that provided other IVGID…and county facilities,” and the county would be responsible for “funding…the operation and maintenance of the(se) facilities at a level sufficient to cover IVGID’s direct and indirect costs of such operation and maintenance” in “an amount (totaling) not less than $4,000 per year.” And if “IVGID reasonably anticipate(d) that its operating costs (would) exceed this minimum amount¹⁴, it (was required to)…submit a revised budget to the County” and in all likelihood, the parties would agree upon an increase. Yet staff have been grossly negligent in collecting these sums, let alone notifying the County that its costs exceed the minimum $4,000 provided for in the agreement.

Apparently after entrance into this agreement, “IVGID never ‘billed’ the County for these services until” 1994. At that time staff belatedly billed $16,000, and this sum was paid from a county general fund contingency fund transfer¹⁵. However thereafter, IVGID staff returned to its negligent ways by failing to bill the county for nearly twenty (20) years! Until brought to staff’s attention by members of the public in mid-2021. And rather than seeking reimbursement¹⁶, our GM suggested we simply consider this lost revenue “water under the bridge.”

But it’s Not Just Maintaining/Repairing the County’s Parks: That’s right. Staff’s attitude insofar as doing someone else’s job prompted some in our community to inquire into who is paying for the water/electricity furnished to these two parks. And guess what they learned? Again it’s the District! Approximately $2,000 annually in water costs, and close to $1,000 annually in electricity costs¹⁷. If staff did their job of billing and collecting pursuant to the January 1990 agreement, the public would realized at least $4,000 in annual revenues notwithstanding the $3,000 in annual water and power costs.

But Wait! There’s More: These parks are not the only properties owned by others that the District maintains. That’s right. The District has entered into an agreement with the Washoe County School District (“WCSD”) whereby the former maintains the upper athletic field at Incline High School. Relying upon the same logic as that employed at the County’s East and West Parks, wouldn’t we expect the District to pay for the water and electricity furnished to that athletic field. Right? If so, we’d be wrong! In response to a public records request the District instructs that the WCSD pays its own utility bills for water and electricity furnished to the subject athletic field notwithstanding its maintenance is furnished by the District. So why does the District pay the County’s water and electricity bills assigned to the latter’s East and West Parks?

Where Does NRS 318 Instruct it is Appropriate For a GID to Maintain, Repair, Improve and Furnish Utilities to Someone Else’s Real Property? Although NRS 318.145 instructs GID “board(s) shall have the power to operate, maintain and repair…improvements acquired by the district…and all facilities of the district relating to any basic power which the district is authorized to exercise,” strictly construed and limited⁹, the District has neither acquired the facilities nor improvements constructed on these two county parks. And although NRS 318.210 instructs 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,” strictly construed and limited⁹, where in NRS 318 is it necessary, incidental or implied that IVGID must maintain, repair, improve and furnish utilities at its cost and expense to someone else’s real property? Given the answers to these questions are “nowhere,” where exactly is the authority?

Finally, we harken back to the lessons of Dillon’s Rule¹⁸. Should there be any fair, reasonable, or substantial doubt concerning the existence of power, it should be resolved against the District and the power be denied. So is there any doubt in your mind as to whether GIDs have the power to maintain, repair, improve and pay for the utilities furnished to someone else’s real property? If you answer yes, Dillon’s Rule instructs that such doubt be resolved against the District and the power be denied.

Staff’s Justification: goes something like this: These parks mark the two main entrances into Incline Village from SR-28. And we’re allegedly reimbursed for the costs we incur (see discussion above) to maintain and repair these parks. Whether or not we’re reimbursed, what are staff to do? “Let them rot?”¹⁹ Do our staff have so little to do so that if we weren’t using them to arguably generate something, they’d be sitting on their behinds generating nothing?

Staff’s Funding Source: In response to a public records request staff have disclosed that insofar as these parks’ irrigation and electricity costs are concerned, they total approximately $3,000 annually and are assigned to the District’s General Fund as an alleged administrative expense²⁰.

Insofar as these parks’ maintenance and repair costs are concerned, they are buried within the District’s Park sub-fund (within the Community Services Fund). And how much are we talking about? These numbers are not disclosed. Nevertheless, given staff have demonstrated they are unable to operate any of the District’s facilities on an economically feasible²¹ revenue neutral or “for profit” basis, they are required to involuntarily assess local parcel/dwelling unit owners a whopping $7 million or more annually in financial subsidies just to be able to pass a balanced budget! And because the justification for this assessment is that it is allegedly necessary to make those facilities and services “available” to be used by those parcels/dwelling units which are assessed²², yet here maintenance and repair of someone else’s public parks has nothing directly to do with the the District’s obligation to maintain District facilities, at the very least we submit that following Dillon’s Rule²³ the District has no justification for maintaining and repairing Washoe County’s public parks with all that implies.

Conclusion: In our opinion it is a misuse of the NRS 318.197(1) (the power to fix rates, tolls and charges) to use the Recreation (“RFF”)/Beach (“BFF”) Facility Fees as if they were taxes to pay for the irrigating, powering, maintenance and repair of someone else’s properties!

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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. Which per ¶9 of the agreement would be owned by the county.
14. A given.
15. See December 19, 1994 county staff memorandum by Gary Goelitz to the County Board
16. Of the estimated $104,000 or more due.
17. Ultimately these costs are paid by the RFF/BFF. According to the chart of account number assigned by staff to these charges, they are allegedly “administrative overhead” expenses assigned to the District’s General Fund. Just like the District’s recreational facilities, staff have demonstrated they are unable to pay for the expenses assigned by staff to the District’s General Fund. Yet rather than limiting expenses to legitimate available revenues assigned to this fund, it requires another financial subsidy; allocated central services transfers from the District’s Community Services, Beach and Utility Funds. But since the revenues staff assign to the District’s Community Services and Beach Funds are insufficient to pay for all of the expenditures assigned to those funds, the financial shortfall is subsidized by the RFF/BFF. Which means that when central services transfers are made from the District’s Community Services and Beach Funds, those funds in essence come from the RFF/BFF.
18. See Ronnow v. City of Las Vegas, 57 Nev. 332, 341-43, 65 P.2d 133 (1937) and NRS 244.137(1)-(4). Dillon’s Rule 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, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. (And) all acts beyond the scope of the powers granted are void” (Id., at 57 Nev. 343).
19. Answering criticism by local residents, this was GM Winquest’s formal response.
20. Ultimately the majority of these costs are paid by the RFF/BFF. Just like the District’s recreational facilities are concerned, staff have demonstrated they are unable to pay for those expenses assigned to the District’s General Fund. Yet rather than limiting expenses to legitimate available revenues, they require another financial subsidy; allocated central services transfers from the District’s Community Services, Beach and Utility Funds. But since the revenues staff assign to the District’s Community Services and Beach Funds are insufficient to pay for all of the expenditures assigned to those funds, the financial shortfall is subsidized by the RFF/BFF. This means that when central services transfers take place from the District’s Community Services and Beach Funds, the monies in essence come from the RFF/BFF.
21. NRS 318.055(4)(c)(2) instructs that County Boards of Commissioners (“County Boards”) must find “that…creation of the district is economically sound and feasible.
22. See ¶¶4(b) at page 186 and I at page 190 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2021 meeting (“the 5/26/2021 Board packet”).
23. Which declares that should there be “any fair or reasonable doubt concerning the existence of a power, that doubt is resolved against the (governing) board…and the power is (to be)…denied” [see NRS 244.137(4)].