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What Are “Availability of Service” Charges?

IVGID 101 Posted on by

Only because the District tells us

The Recreation Facility Fee (“RFF”) and Beach Facility Fee (“BFF”) its Board adopts each year1 represent “recreation service charges and standby service charges, for…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,”2 and

NRS 318.197(1) instructs that general improvement district (“GID”) Boards have the power to

“Fix, and from time to time increase or decrease…recreational facilit(y)…rates, tolls or charges3 other than special assessments, including, but not limited to…charges for the availability of service,”

Do we tackle the question proffered.

We begin our examination by recalling that just because the District tells us its recreation RFF/BFF are “availability of service charges,” doesn’t necessarily make them so. That’s because

“Courts will determine and classify (monetary exactions of all kinds) on the basis of realities,”4 looking to their “operating incidence”5 rather than (their) specially descriptive phrase(s).”6

So in order to determine those realities, let’s examine NRS 318 and look for the definition of “availability” or “availability of service.” Nowhere are the terms defined. What about anywhere else in the NRS? Same answer. Nowhere. What about in Nevada judicial decisions? To our knowledge, nowhere either. So we’re relegated to searching elsewhere. And this takes us to Dillon’s Rule7 and established judicial rules for construing statutes8.

Dillon’s Rule instructs “that (a)…governing body…possesses and may exercise only the following powers and no others…Those…granted in express terms by the Nevada Constitution, statute or…charter.” Similarly, the judicial rules for construing statutes begin with a statute’s “plain language.”9

Where plain and unambiguous on its face, it is not appropriate to resort to any ancillary construction aids10.

But neither of these rules is of assistance given as we’ve demonstrated, nowhere in the NRS is the term “availability” or “availability of service” defined. Thus where as here the term is neither defined by statute nor a local government’s highest judicial authority,

It “ha(s) an accepted meaning in the area of law addressed(, or one which)…may have been borrowed from another statute11…or…accepted and specialized…at common law12 (inasmuch as) the accepted meaning governs and the word or phrase is considered a technical term or (one) ‘of art.’”13 Therefore, in the “absence of contrary direction(, it) may be taken as satisfaction with widely accepted definitions, (and) not as departure from them.”14

California courts first grappled with “immediately available” water service charges in 197715. As in Nevada, California statutes at the time did “not define the term…and research…disclosed no California case law interpreting the…term.”16 Therefore, City of Ukiah, Id. concluded that

Water “availability charges are fees exacted for the benefit which accrues to property by virtue of having water available to it, even though the water might not actually be used at the present time.”17

Its reasoning was that

“A New Mexico case has defined ‘standby’ as a charge or assessment levied against property adjacent to a water main but not connected to it. The utility remains ‘standby,’ ready to serve the property, and hence the property is benefited18.

Pennsylvania uses the term ‘ready to serve,’ and interprets it as follows…’it is a minimum payment demanded of patrons who desire to be placed in position to take advantage of the service at their convenience, whether actually using the water or not.'”19

“The only distinction between the terms ‘standby’ and ‘immediately available’ appears to be the degree of availability of the water facilities as it affects the basis for determining the schedule of charges that can be imposed.”20

Other judicial decisions have recognized the propriety of availability of use charges for utility services other than just water. For instance, Ricks v. Town of Selma, 99 N.C. App. 82, 86, 392 S.E.2d 437 (N.C. Ct. App. 1990) and Ripperger v. Grand Rapids, 338 Mich. 682, 62 N.W.2d 585 (1954) addressed charges for sewer services “available but not received.” McMillan v. Texas National Resources Conservation Comm’n, 983 S.W.2d 359, 36 (1Tex. Ct. App. 1998) addressed available of use charges for “sanitary sewer, or drainage facilities and services.” Lakeside Utilities Corp. v. Barnum, 5 Ohio St. 3d 99, 101, 449 N.E.2d 430 (1983) addressed “water and sewer availability fee(s)” assessed to nonusers. And, Forest Hills Utility Co. v. Public Utilities Com’n, 31 Ohio.St.2d 46, 57, 285 N.E.2d 702, 709 (1972) and Graham v. City of Lakewood Village, 796 S.W.2d 800, 802 (Tex. App. 1990) addressed “available of use fees…(against unimproved properties) not receiving…sewer or water service(s) from the utility.”

Based upon all of the above, then, “standby charges21 are generally understood to be some sort of property levy…imposed on the mere availability of a (public utility) service (primarily water or sewer), whether the service is used or not,”22 assuming “capacity remains available.”23 Since the term “ha(s) an accepted meaning in the area of law addressed,” we submit we should “adopt…the wording of…(these) previous judicial interpretation(s).”14

Finally, just so the reader understands, given availability of use charges are unrelated to charges for the purchase of product(s), service(s)” or facilities themselves “based on the rights of the entity as proprietor of the instrumentalities used,”24 they neither pay for persons‘ access to and use of District owned beaches and public recreation facilities. Rather25, they pay for the mere availability to access and use those services.

And now you know!

  1. See that staff memorandum typically accompanying its request the RFF/BFF be adopted and collected on the county tax roll (by way of example, see that May 30, 2025 staff memorandum in support of possible approval of a resolution approving the Report for collection of Recreation Standby and Service Charges for fiscal year 2025/2026) which recites that “each year, the District establishes an annual Recreation Facility Fee and Beach Facility Fee.”
  2. See ¶¶4 and 4(b) of Resolution No. 1917 as well as ¶I of the the Report For Collection on The County Tax Roll of Recreation Standby And Service Charges adopted May 30, 2025 which fixes these fees “for the fiscal year 2025-26.”
  3. The term “rates, tolls or charges” represents different names for “specific services” for which “fixed price(s are) charged (see https://www.investopedia.com/terms/f/fee.asp). According to an AI search, a “rate is a fixed fee or cost per unit of service (often used for utilities like water or electricity); a toll is a fee paid for the use of a specific road, bridge, or tunnel, typically collected at designated points; and, a charge is a fee imposed for a service or product, which can vary based on usage or specific conditions.” The common denominator here being that all are fees!
  4. See Hukle v. City of Huntington, 134 W.Va. 249, 58 S.E.2d 780, 783 (1950); Clean Water Coalition v. The M Resort, LLC, 127 Nev. 301, 255 P. 3d 247, 256 (2011) citing State v. Medeiros, 89 Haw. 361, 973 P.2d 736, 741 (1999).
  5. See Emerson College v, City of Boston, 391 Mass. 415, 424-425, 462 N.E.2d 1098, 1105 (1984),
  6. See Stewarts’ Pharmacies v. Fase, 43 Haw. 131, 144 (1959) reh’g denied at 43 Haw. 166.
  7. See our How The Legislature Instructs We Construe The Limited Powers GIDs May Exercise discussion.
  8. See our How Courts Instruct We Construe Statutes Impacting GIDs discussion.
  9. See Arguello v. Sunset Station, Inc., 127 Nev. 365, 370, 252 P.3d 206, 209 (2011).
  10. 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)]; Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1302, 148 P.3d 790, 792-793 (2006).
  11. In appropriate circumstances, courts will assume that “adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording” [see Carolene Products Co. v. United States, 323 U.S. 18, 26, 65 S.Ct. 1 (1944)].
  12. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-740, 109 S.Ct. 2166 (1989).
  13. See pages 7-8 of the Congressional Research Service, Larry M. Eig, Specialist in American Public Law, Statutory Interpretation: General Principles and Recent Trends (September 24, 2014).
  14. See Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240 (1952).
  15. See Kennedy v. City of Ukiah, 69 Cal. App. 3d 545, 138 Cal.Rptr. 207 (1977).
  16. Id., at 69 Cal. App. 3d 553.
  17. This definition was reaffirmed 27 years later in San Diego Cty. Water Auth. v. Metro. Water Dist., 117 Cal. App. 4th 13, 27, 11 Cal.Rptr. 446 (2004).
  18. See Chapman v. City of Albuquerque, 65 N.M. 228, 335 P.2d 558, 561 (1959).
  19. See See Central Iron & Steel Co. v. Harrisburg, 271 Pa. 340, 114 A. 258, 260 (1921).
  20. See City of Ukiah, Id.
  21. Howard Jarvis Taxpayers Association (the premiere California real property taxpayer advocacy group) asserts that “availability of use” and “standby service” charges are the same22.
  22. See Keller v. Chowchilla Water Dist., 80 Cal. App. 4th 1006, 1011, 96 Cal.Rptr. 246 (2000).
  23. See McMillan, supra, at 983 S.W.2d 363.
  24. See Emerson College v. City of Boston, 391 Mass. 415, 424-425, 462 N.E.2d 1098, 1105 (1984).
  25. At least according to District staff and past/current Boards (see our What District Staff And Past/Current Boards Have Told Us The RFF/BFF Have Represented/Represent discussion).

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