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What Are “Charges For The Mere Availability of” Facilities, And Are They Assessed by The District?

IVGID 101 Posted on by

Given we’ve shared that a general improvement district’s (“GID’s”) Board of Trustees’ (“Board’s”) power to “fix, and from time to time increase or decrease…rates, tolls or charges other than special assessments” flows from NRS 318.197(1), and this NRS fails to expressly “includ(e)…charges for the availability” of facilities, rather than services, here we examine what are charges for the availability of facilities, and whether they are assessed by the District?

Much the same as our discussion of standby service charges for services, nowhere is the term defined. Neither in NRS 318, nor otherwise. Nor has the Nevada Supreme Court ever interpreted the term. So again, how are we supposed to interpret the omission? Or is there even an omission given this NRS instructs that the rates, tolls and charges a GID Board may fix “includ(e), but (are) not limited to“1 the list of charges expressly identified? To answer this question we submit the inquiry is a two part process. First we must first examine the rules of statutory construction2. And second, we must examine how California3 has construed the term “standby service charges.”4. And when we do, at best, such charges can only legitimately be construed to pay for the mere availability to access services rather than facilities. And moreover, only public health and sanitation services (like water and sewer5!

So notwithstanding the restrictions and limitations incorporated by reference above6, does the Incline Village General Improvement District (“IVGID”) assess charges for the mere “availability” of facilities? Here the answer is YES. Because staff and current/past Boards have expressly told us the District’s Recreation (“RFF”) and Beach (“BFF”) Facility Fees7 represent charges “for the availability of use of the recreational facilities (therein) described.”8

What’s abundantly clear from the above discussion is that insofar as GIDs are concerned, there is no such thing as an “availability of facilities” charge. Therefore such a labeled charge neither pays for persons‘ access to and use District owned public recreation facilities, nor the mere availability to access and use the same. Charitably speaking then, calling the RFF/BFF “charges…for the availability of use” of the District’s public recreation facilities is a misnomer.

And now you know!

  1. If we accept these words literally, then why the need to identify the types of exactions expressly identified? Aren’t they already included within the term “not limited to?”
  2. Rather than repeating ourselves, we refer the reader to our How Courts Instruct We Interpret The Powers a GID May Exercise discussion.
  3. See Keller v. Chowchilla Water Dist., 80 Cal.App.4th 1006, 1011, 96 Cal.Rptr. 246, 250-51 (2000).
  4. Rather than repeating ourselves, we refer the reader to our What Are Standby Service Charges For Services discussion.
  5. See State of Hawaii v. Medeiros, 89 Haw. 361, 367, 973 P.2d 736, 742 (1999); Chapman v. City of Albuquerque, 65 N.M. 228, 335 P.2d 558, 562 (1959); Graham v. City of Lakewood Village, 796 S.W.2d 800, 801 (1990); Lakeside Utilities Corp. v. Bernum, 5 Ohio.St.3d 99, 449 N.E.2d 430, 431 (1983).
  6. Again, where as here “the glove doesn’t fit, IVGID must acquit” (go to https://1995blog.com/2020/09/27/quote-of-the-1990s-if-it-doesnt-fit-you-must-acquit-25-years-on/).
  7. See page 232 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 meeting (“the 5/26/2022 Board packet“).
  8. See ¶I at page 234 of the 5/26/2022 Board packet.

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