As elsewhere explained, the RFF/BFF do not meet the requisites of a “fee,” regardless of the precise label assigned. So it really doesn’t matter if they are the “standby and service charges” the District represents. Nevertheless, naysayers will argue otherwise and force us to make the case that the RFF/BFF aren’t “standby and service charges.” So that’s the purpose of this discussion.

Therefore as elsewhere explained, “each year, the District establishes…annual Recreation…and Beach Facility Fee(s)…collected from property owners within the District through a levy placed on the(ir) property tax bill(s).”¹ In accordance with NRS 318.201(1), “staff…prepare (a) report for (their) collection (as)…recreation standby and service charges (also known as the RFF and the BFF)…on the Washoe County Tax Roll²…At (a publicly noticed) meeting (generally held in April of each year) the Board of…Trustees t(akes) action [via resolution³]…approv(ing a) preliminary report…as well as set(ting a)…public hearing (date, generally held in May of each year)…to consider final action”² for the forthcoming fiscal year. “Upon…conclusion of th(at) hearing the Board (typically)…adopt(s another resolution)…which…(approves a final report⁴ contain(ing) a description of each parcel of real property receiving…services and facilities(, and) the amount of the charge(s)…for such year.”⁵ That resolution describes the RFF/BFF as “standby and service charges⁶ (for)…the availability of the use of IVGID’s” recreation and beach facilities⁷. In other words, “IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and (the) Recreation Center.”⁷

NRS 318.197(1): As elsewhere explained, the rates, tolls and charges a general improvement district (“GID”) Board is authorized to fix are set forth in NRS 318.197(1). So it seems appropriate to start out with a discussion of the statute. And insofar as this discussion is concerned, permissible rates and charges under this statute include “service charges and standby service charges, for services or facilities furnished by the district, (or..) charges for the availability of service.”

NRS 318.201(9): Since “staff…prepare (a) report for (their) collection (as)…recreation standby and service charges (also known as the RFF and the BFF)” in accordance with NRS 318.201(1), it seems appropriate to continue our discussion with a review of the statute. ¶4(b) of the resolution adopted pursuant to NRS 318.201(9) typically finds that the RFF/BFF are “standby and service charges for…the availability of the use of “⁸ recreation facilities. In other words, “IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and (the) Recreation Center.”⁵ Similarly, ¶I of the final report which the Board adopts pursuant to ¶6 of that resolution finds that the RFF/BFF represent “annual charges…for the availability of use of the (District’s) recreational (and beach) facilities…described” therein⁹.

So The Question: Do the RFF/BFF represent: (1) “service charges and standby service charges, for…the availability of the use of (the District’s) recreation facilities services or facilities furnished by the district” to those parcels/dwelling units which are assessed¹⁰ as…(3) authorized by NRS 318.197(1) [and NRS 318.201(1)]?” The answers to these questions are the purposes of this web page.

Prelude: Before we begin our discussion of this topic, let’s make it clear that our task is not to make the case that the RFF/BFF represent an hypothetical type of rate, toll or charge authorized by NRS 318.197(1). Rather, since staff and the Board have told us what the RFF/BFF represent, we accept that representation as a given, and respond accordingly. Remember. Listen to what IVGID staff, the Board and the District’s auditors have told us!

What Are “Standby Charges?” Since this subject is thoroughly examined at What Are Standby Service Charges, rather than repeating ourselves, we simply refer the reader.

Legislative history can be a guide for statutory construction. “In performing this function, courts variously seek edification from the statute’s legislative history, examine the statute’s evolution through a number of amendments, and perhaps seek enlightenment in the decisions of sister courts which have resolved the same or similar issues.” Leliefeld v. Johnson, 104 Idaho 357, 367, 659 P.2d 111, 121 (1983).

Courts, “cannot insert into statutes terms or provisions which are obviously not there.” Courts have been, “reluctant to second-guess the wisdom of a statute and [have] been unwilling to insert words into a statute that the Court believes the legislature left out, be it intentionally or inadvertently.” Saint Alphonsus Reg’l Med. Ctr. v. Gooding Cty., 159 Idaho 84, 356 P.3d 377, 382 (2015).

when other jurisdictions have resolved similar issues, the Court may look to such cases for guidance. In construing a statute, this Court attempts to discern and implement the intent of the legislature. In performing this function, courts variously seek edification from the statute’s legislative history, examine the statute’s evolution through a number of amendments, and perhaps seek enlightenment in the decisions of sister courts which have resolved the same or similar issues. Leliefeld v. Johnson, 104 Idaho 357, 367, 659 P.2d 111, 121 (1983) (emphasis added).

“It is fundamental that the judiciary has the ultimate responsibility to construe legislative language to determine the law.” J.R. Simplot Co. v. Idaho State Tax Comm’n, 120 Idaho 849, 853, 820 P.2d 1206, 1210 (1991) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803)). See also Mulder v. Liberty Nw. Ins. Co., 135 Idaho 52, 57, 14 P.3d 372, 377 (2000).

What Are “Service Charges“ For The Use of Recreation Facilities?

What Are “Service Charges“ For The Availability of The Use of Recreation Facilities?

What Are “Standby Charges“ For The Availability of The Use of Recreation Facilities?

Based Upon The Above–Factors, The RFF/BFF Are Not “Standby Service Charges…For The Availability of The Use of (District Owned)…Recreation Facilities:” In every one of the examples above, staff and the Board could have lived within the District’s financial means by eliminating overspending and a fiori, the facility fee subsidy. But instead, they perpetuated their financial irresponsibility using the BFF/RFF as revenue sources to subsidize that and future overspending! Whatever one wants to call them, the simple fact-of-the-matter is that the RFF/BFF are not legitimate NRS 318.197(1) “service charges (or) standby service charges, for services or facilities furnished by the district, (or) charges for the availability of service.”

Conclusion: ¶4 of the resolution the Board ultimately passes each year pursuant to NRS 318.201(9) which declares the RFF/BFF are recreation “service” charges, is false. Since the District furnishes no recreation “services” to real property, it can’t charge “fees” therefore. Moreover its declaration the RFF/BFF are “recreation standby…charges” for the mere availability to use recreation facilities is false. Standby service charges are only appropriate where public health and sanitation services are physically connected or capable of physical connection because they are adjacent to the parcels which are assessed. And here there are none. Rightly or wrongly, staff and past Boards have seized upon language in NRS 318.197(1) which permits charges for the mere availability to access and use the public’s recreation and beach facilities. It seems clear to us that some creative lawyers for IVGID¹¹, in its infancy, seized upon this language to justify a creative funding source. And here IVGID staff have taken this language to new questionable heights by modifying its grant to read: “standby and service charges…are for the availability of use of…recreational facilities.”¹² There is no legitimate justification for the RFF/BFF either as a legitimate fee, service charge, or the standby service charge IVGID staff represent.

1. See page 102 of the packet of materials prepared by staff in anticipation of the Board’s May 27, 2020 meeting (“the 5/27/2020 Board packet”).
2. See page 225 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 meeting (“the 5/26/2022 Board packet“).
3. See NRS 318.201(9).
4. An example of that Report (for fiscal year 2022-23) appears at pages 232-237 of the 5/26/2022 Board packet.
5. See NRS 318.201(8) and (9).
6. See ¶4 at page 229 of the 5/26/2022 Board packet.
7. See ¶4(b) at page 230 as well as ¶I at page 234 of the 5/26/2022 Board packet.
8. See pages 229-230 of the 5/26/2022 Board packet.
9. See page 234 of the 5/26/2022 Board packet.
10. Recall that one of the markers of a fee is that it be paid by “the direct beneficiar(ies) of (the) particular service(s)” furnished in consideration of payment [see Medeiros, supra, at 973 P.2d 736, 742; Clean Water Coalition, supra, at 127 Nev. 315].
11. Remember, IVGID attorney Bob McDonald was: a founding partner in the powerhouse McDonald Carano law firm, a principal in Crystal Bay Development Co. (“CBDC”), one of the IVGID Board’s initial trustees, and President of the homeowners association created by CBDC to own and operate the beaches.
12. See ¶II at page 235 of the 5/26/2022 Board packet.