For the reasons which follow, the answer is no!

What is a “Special Assessment?” Since this subject is thoroughly examined at our What is a Special Assessment web page, rather than repeating ourselves, we simply refer the reader to this discussion.

Listen to What IVGID Staff And The Board Have Told Us: Before we begin our discussion, we urge the reader to listen to what IVGID staff and the Board have told us insofar as what the RFF/BFF really are! Why wouldn’t we take their word for it? Because IVGID staff and the Board have told us the RFF/BFF are NRS 318.197(1) “standby and service charges (for)…the availability of the use of IVGID’s” recreation and beach facilities, insofar as we’re concerned, they either stand or fall based upon this description.

By Definition, a General Improvement District’s (“GID’s“) “Rates, Tolls or Charges“ Cannot Be Special Assessments: As elsewhere explained, NRS 318.197(1) expressly instructs that the rates, tolls and charges GID “board(s) may fix, and from time to time increase or decrease” cannot extend to “special assessments.”¹

Since GIDs Are Limited Purpose Special Districts, And Dillon’s Rule Instructs Their Powers Must be Strictly Construed, IVGID’s Ability to Levy Special Assessments Against Property Must be Stated in Its “Initiating Ordinance…as Supplemented by The Sections of…Chapter:“² NRS 318. Because there must be “express legislative authority” in order for a local government to pass a special assessment³, and NRS 318.350 declares that under certain circumstances GIDs may levy special assessments⁴, in a vacuum the power exists. 

NRS 318.350(1) instructs that “except as otherwise provided in subsection 2⁵, such part of the expenses of making any public improvement (to implement any one, all or any combination of basic powers stated in NRS 318.116 and granted to any district in proceedings for its organization or…reorganization or as may be otherwise provided by law), as the board determines by an affirmative vote of at least two-thirds (2/3) of its members, may be defrayed by special assessments upon lands and premises abutting upon that part of the street or alley so improved or proposed so to be, or the lands abutting upon the improvement and the other lands as in the opinion of the board may be specially benefited by the improvement.”

By Definition NRS 318.350(1) Continues The “Special…Benefit…by The Improvement“ Requirement: NRS 318.350(1) instructs that the cost of public improvements may be defrayed by special assessment…as in the opinion of the board may be specially benefited.” So the question: are those properties proposed to be assessed the RFF/BFF specially benefited⁶

by the availability of the beaches and District owned public recreation facilities⁷? Given as elsewhere stated the beaches are subject to an easement which accords that same availability to any property owner with beach access free of payment of any fee, and District owned recreation facilities are public facilities, we think not.

By Definition NRS 318.350(1) Mandates That The Improvement Abut The Lands Proposed to be Assessed: Requirement: NRS 318.350(1) instructs that the cost of public improvements may be defrayed by special assessment “upon lands and premises abutting upon that part of the street or alley so improved or proposed so to be, or the lands abutting upon the improvement and the other lands as in the opinion of the board may be specially benefited by the improvement.” So the question: are those properties proposed to be assessed the RFF/BFF “abutting upon that part of (a) street or alley so improved or proposed so to be, or…abutting upon the improvement and…other lands as in the opinion of the board may be specially benefited by the improvement?” Given the overwhelming majority of parcels subjected to the RFF/BFF do not abut the beaches or any District owned recreation facility, we think not.

“For a (Special) Assessment to be Valid, The Properties (Assessed) Must be Assessed in Proportion to The Special Benefits Received:”⁸ In other words, “no assessment shall be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel.” And this means conducting a “detailed analysis on how specific properties, blocks, school districts, or even cities would benefit from the” public improvements (here recreation facilities) sought to be furnished”⁸ rather than simply allocating government’s “projected annual budget.”⁹

The Burden Would Be on IVGID to Prove The Validity of Any Special Assessment it Adopts: “Once…property owners challenge (the) validity (of a special assessment) on the ground…there is in fact no benefit accruing to their propert(ies) as assessed…the burden shifts to the administrative agency…to show and to find that there is a benefit,“³ or it is not proportional to the benefits to be bestowed to the properties to be assessed.”¹⁰ So far, these facts have never been proven.

Moreover, IVGID is Not Able to Argue That The Cost of Constructing or Improving Its Recreation Facilities Equals The Benefits Delivered: Typically, “city engineers…assume…or determine…that the special benefits (furnished) generally would equal the costs of construction. This ‘costs=benefits’ assumption seems particularly suspect (and ‘arbitrary as applied’ whenever there are)…’soft’ costs for expenses such as attorneys and bonding fees…unrelated to…physical construction.”⁸

Affected Property Owners Have Standing to “Make Additional Detailed Arguments” in Opposition to Any Proposed Special Assessments: “that…individual assessments (a)re…manifestly erroneous (because there)…(a)re patently irrational discrepancies among individual assessments…even if the overall estimation method used is not arbitrary.”⁹

Conclusion:

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1. NRS 318.197(1) instructs that GID “board(s) may fix, and from time to time increase or decrease…rates, tolls or charges other than special assessments, including…” The “plain language” of the statute prevails [see See State Farm Mut. v. Comm’r of Ins, 114 Nev. 535, 540, 958 P.2d 733 (1998); Erwin v. State of Nevada, 111 Nev. 1535, 1538, 908 P.2d 1367, 1369 (1995) [quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990)]; and, Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1302, 148 P.3d 790, 792-793 (2006)].
2. See NRS 318.055(4)(b).
3. See Knox v. City of Orland, 4 Cal.4th 132, 141-143, 14 Cal.Rptr.2d 159 (1992).
4. A statute within NRS 318 which supplements the District’s initiating ordinance.
5. By and large this subsection is not applicable to this discussion because it addresses “property owned and used by a school district.”
6. In other words,
   “the assessed property (will) ha(ve) received a special benefit over and above that received by the general public” [see Knox v. City of Orland, 4 Cal.4th 132, 142, 14 Cal.Rptr.2d 159 (1992); Silicon Valley Taxpayers Assn., Inc. v. Santa Clara County Open Space Authority, 44 Cal. App. 4th 431, 442, 79 Cal.Rptr.3d 312 (2008)].

   In Silicon Valley Taxpayers, supra, at 44 Cal. App. 4th 453 the Court pointed to an engineer’s report that listed seven alleged “special benefits:” 1) enhanced recreational activities and expanded access to recreational areas; 2) protection of views, scenery and other resources; 3) increased economic activity; 4) expanded employment opportunity; 5) reduced costs of law enforcement, health care, fire prevention, and natural disaster response; 6) enhanced quality of life and desirability of the area; and, 7) improved water quality, pollution reduction and flood protection. In general, the Court determined that these benefits were too broadly enjoyed by everyone in the district and as a result, the Court found that the engineer’s report did not show that the Open Space Authority had satisfied the requirement that a parcel subject to an assessment receives a direct advantage from the improvements financed with the assessment proceeds (as opposed to indirect, overall public benefits of the improvement).

7. See ¶4(b) at page 230 as well as ¶I at page 234 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 (“the 5/26/2022 Board packet“).
8. Silicon Valley Taxpayers, supra, at 44 Cal. App. 4th 456.
9. Silicon Valley Taxpayers, supra, at 44 Cal. App. 4th 457.
10. Knox, supra, at 4 Cal.4th 146.