Introduction: As demonstrated elsewhere, general improvement districts (“GIDs”) are limited purpose special districts. Their powers are strictly construed and limited¹ to those provided by the Legislature², as explicitly conferred by their respective County Boards of Commissioners (“County Boards”), in their initiating ordinances³ as supplemented if at all by: those “additional basic power(s expressly) granted⁴…pursuant to NRS 318.077;”⁵ “sections of this chapter (NRS 318) designated therein;”³ and, none other¹. So did the District have the power to grant access to and free use of its beaches to church parishioners without beach access privileges?

Did IVGID Have the Power to Acquire the Beaches? As elsewhere discussed, the District acquired the beaches in June of 1968. As with the propriety of all local governmental powers we begin our analysis insofar as whether it had the power to acquire the beaches with the Nevada Constitution given it “is the ‘supreme law of the state which ‘control[s] over any conflicting statutory provisions.’”⁶ Nev. Const. Art. 8, Sec. 8 instructs that the Legislature shall provide for/restrict the powers of general purpose governments. Since the Legislature has created the GID law⁷, and the Incline Village General Improvement District (“IVGID”) is a GID⁸, its powers are recognized/restricted by NRS 318.

As aforesaid, the powers the Legislature has expressly granted to all GIDs² include, in part, those referenced in “sections of this chapter (NRS 318) designated therein.”³ Where as here⁹ their governing boards are authorized to: “acquire, improve, equip, operate and maintain any district project¹⁰; and, “acquire…and encumber real and personal property, and any interest therein, including leases (and) easements;”¹¹ it may “acquire…extend and better lands” therefore¹². As the District Court determined in Wright v. Incline Village General Improvement District on March 31, 2009, “pursuant to th(e) authority of…NRS 318.143(1) and NRS 318.175…in 1968 IVGID acquired the deeds to the beaches at issue.” So the answer to the question posed is yes. IVGID had the power to acquire the beaches.

Does IVGID Have the Power to Adopt Rules and Regulations Concerning Access to and Use of the Beaches? NRS 318.175(1) instructs that GID “board(s) shall have the power…to manage, control and supervise all the business and affairs of the district.” NRS 318.197(3) instructs that GID “board(s) are empowered (to)…prescribe and enforce regulations for the…taking of…the…services…of the district.” NRS 318.205(2) instructs that GID “board(s) shall have the power to adopt and amend bylaws, not in conflict with the Constitution and laws of the State…regulating the use or right of use of any project or improvement.” NRS 318.040 instructs that chapter NRS 318 “shall be liberally construed to effect its purposes.” Finally, the beach deed itself instructs that the District’s Board of Trustees shall have the authority to: “regulate (the beaches)…to effectuate the purposes (t)herein mentioned;” and, “impose reasonable rules, regulations and controls upon the use of (the beaches)…by the owners thereof.” Therefore we conclude that yes, IVGID has the power to adopt reasonable rules and regulations concerning access to and use of the beaches.

Did the IVGID Board Have the Power to Enter Into a Contract Insofar as Local Parcel Owners With Beach Privileges’ Access to and Use of the Beaches? Besides the fact GID “board(s) shall have the power…to manage, control and supervise all the business and affairs of the district,”¹³ NRS 318.09533(3) instructs that GID Board members are authorized to “enter into contracts extending beyond the terms of each member then serving on the board.” So yes we would conclude that GID Boards have the power to enter into contracts concerning access to and use of the beaches which extend beyond the terms of each member then serving on the board.

Did the IVGID Board Enter Into a Contract With Respect to Local Parcel Owners With Beach Privileges’ Access to and Use of the Beaches? Most people don’t realize that when the District acquired the beaches, it actually entered into a contract with the beaches’ grantor (Village Development Co. the successor to Crystal Bay Development Co.) for the direct benefit of local property owners within the District’s then geographical boundaries, as well as their successors and assigns¹⁴. This is called a third-party beneficiary contract¹⁵.

Are Local Parcel Owners With Beach Access Third-Party Beneficiaries of That Contract? This issue was addressed in local resident Frank Wright’s lawsuit against IVGID. “Although the 1968 property owners are not signatories to the deed, the deed nonetheless includes provisions relating to them. In particular, the deed provides for the following: (1) a restrictive covenant whereby IVGID is to hold, maintain and use the IVGID beaches ‘only for the purpose of recreation by, and for the benefit of, property owners…within the [IVGID] as now constituted;’ (2) the owners of the 1968 property can enforce the covenant; and (3) an easement for the benefit of the 1968 property owners to enter the IVGID beaches and use them  for recreational activities…(Thus) they are intended third-party beneficiaries. Whether an individual is an intended third-party beneficiary turns on the parties’ intent, ‘gleaned from reading the contract as a whole in light of circumstances under which it is entered¹⁶…Here, the unambiguous language of the 1968 deed indicates that the 1968 property owners are intended third-party beneficiaries of the restrictive covenant…There is a clear promissory intent to benefit the 1968 property owners, and the property owners’ reliance on the covenant is foreseeable. Indeed, the covenant is and undoubtedly has always been a valued property right of the original 1968 property owners and their successors. As a result, the court finds that the 1968 property owners are intended-third party beneficiaries to the covenant.”¹⁷ So yes we would conclude that local parcel/dwelling unit owners whose properties were part of IVGID as it existed in June of 1968 are third-party beneficiaries of the beach deed’s covenants.

Is IVGID Bound to the Restrictive Covenants of That Contract? Both the U.S.¹⁸ and State¹⁹ Constitutions mandate that neither the federal or state government shall pass any law “impairing the obligations of contracts.” This means that state governments are prohibited from “specifically legislating to interfere with (or usurp) private contract rights!”²⁰ As a limited purpose special interest district IVGID has no power to pass laws nor legislate. But we would argue that its attempt at Ordinance No. 7 represents the moral equivalent.

Now the Particulars: In April of 2022 some in our community learned that IVGID staff had granted exclusive use of a portion of Burnt Cedar Beach to the Village Church of Incline Village for an April 17, 2022 (Easter) “Sunrise Service.”²¹ In Facebook posts, the Church’s clerk announced that all were welcome (whether or not residents, and whether or not local parcel owners with beach access), and “if you need a punch card, we will have some available.” Apparently this same thing occurred on April 4, 2021²². Who knew? But it’s not just the Village Church.

Apparently on August 29, 2021²³ as well as September 15, 2019²⁴ (after our staffing of the beaches ceased for the season), Pastor Tony Slavin (who lives in Reno) of Cornerstone Church performed baptisms at Burnt Cedar Beach. Although the Village Church²⁵ and Lifepoint aka Cornerstone Church²⁶ own property in Incline Village, neither pays Recreation (“RFF”) nor Beach (“BFF”) Facility Fees. Given ¶¶27 and 28 of Ordinance No. 7 instruct that as a pre-condition to beach access, the relevant parcel must be assessed, pay, and be current in the payment of its BFF, and neither of these properties is assessed nor pays a BFF, their owners/tenants/guests are not entitled to beach access.

So you tell us. Does this behavior sound like restricting access and use of the beaches “only for the purpose of recreation by, and for the benefit of, property owners…within the [IVGID] as…constituted” in June of 1968?

Is Granting Access to and Use of Our Deed Restricted Beaches to Those Without Beach Access a Power the District May Exercise Pursuant to the Beach Deed, Ordinance No. 7, or Otherwise? According to the District, the answer is yes. ¶71 of Ordinance No. 7 states that “the General Manager may from time to time adopt, amend, or rescind rules consistent with this ordinance²⁷. The General Manager shall hold the final authority to interpret this ordinance and rules adopted thereunder. Such authority shall include the application of this ordinance and rules to specific people, parcels, and circumstances.” And pursuant to this authority, ¶68 states that “nothing in this ordinance shall prevent the District from issuing recreation privileges to employees, former Board members, or anyone else, in the past, present or future, as approved by the Board of Trustees.”

Unsurprisingly, we would answer emphatically no! When IVGID entered into the beach deed contract referenced above, “a contract was created obligating the (District) to hold such property in trust for the people of (Incline Village with beach access) to enjoy” as expressly provided for in the beach deed²⁸. Given granting beach access to persons without that access violates the beach deed use covenants, as does use for purposes other than recreation only, we would argue the District has violated its fiduciary duties under the beach deed. And who has standing to enforce those covenants? According to the court in Wright v IVGID “the…1968…owners of the” beaches.

Conclusion: So there you go. We feel Wright v IVGID is pretty clear in instructing: the District’s ownership of the beaches is as nothing more than as a steward or fiduciary “for the benefit of, property owners…within the (IVGID) as…constituted” in June of 1968; and, it is charged with the duty “to hold, maintain and use the IVGID beaches only for the purpose of recreation by, and for the benefit of, property owners” with beach access. In our opinion, by granting the Village and Cornerstone Churches and others access to and use of Burnt Cedar Beach for religious service and baptism purposes, the District has breached its fiduciary duties owed to we the third-party beneficiaries of the covenants contained in the beach deed! What do you think?

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1. See A.G.O. No. 63-61, p. 102, at p. 103 (August 12, 1963).
2. See NRS 318.116.
3. See NRS 318.055(4)(b).
4. See NRS 318.055(4)(a).
5. NRS 318.077 allows a GID “board (to) elect to add basic powers not provided in its formation, in which event the board shall cause proceedings to be had by the board of county commissioners similar, as nearly as may be, to those provided for the formation of the district, and with like effect.”
6. See Thomas v. Nev. Yellow Cab Corp., 130 Nev. Adv. Op. 52, 327 P.3d 518, 521 (2014).
7. See NRS 318.010.
8. NRS 318.015(1) instructs that “each district organized pursuant to the provisions of this chapter shall be a body corporate and politic…quasi-municipal corporation” and general improvement district. 
9. For a discussion of why, how and when the District was granted the basic power to furnish facilities for public recreation in general, and its beaches in particular, the reader is referred to https://ivgid101.com/our-beaches/.
10. See NRS 318.175(2).
11. “The constitutional and inherent powers of the legislature are…delegated to (GID)board(s) for the acquisition…and encumbrance of (real) property” (see NRS 318.160).
12. See NRS 318.143(1).
13. See NRS 318.175(1).
14. The reader can examine this contract because it is contained within the body of the beach deed. Note where the District “accepted and approved” the contract’s terms and conditions on page 3 of the deed.
15. “Generally, an intended third-party beneficiary is bound by the terms of a contract even if (he/)she is not a signatory. Whether an individual is an intended third-party beneficiary, however, depends on the parties’ intent, ‘gleaned from reading the contract as a whole in light of the circumstances under which it was entered’…The fact that (he/)she did not sign the contract (him/)herself is irrelevant” [see Canfora v. Coast Hotels Casinos, Inc., 121 Nev.771, 779, 121 P.3d 599 (2005)].
16. See Canfora, supra, at 121 P.3d 605 [quoting Jones v. Aetna Cas. and Sur. Co., 26 Cal. App. 4th 1717, 33 Cal. Rptr. 2d 291, 296 (1994)].
17. See Wright v. Incline Vill. Gen. Imp. Dist., 597 F.Supp.2d 1191, 1204-05 (D. Nev, 2009).
18. See Article 1, section 10, Clause 1 of the U.S. Constitution which states “no State shall…pass any…Law impairing the Obligation of Contracts.”
19. See Article 1, section 15 of the Nevada Constitution which states “no…law impairing the obligation of contracts shall ever be passed.”
20. Go to https://thebusinessprofessor.com/en_US/us-legal-system/contract-clause-us-constitution.
21. Go to https://www.thevillagechurchnv.org/.
22. Go to https://static1.squarespace.com/static/5914ce01b3db2be980b8430d/t/609581f56b13a245ec4bfd47/1620410869719/03-14-21+Bulletin+10AM.pdf.
23. Go to https://www.cornerstonecommunity.net/event/beach-baptisms-august-2021/.
24. Go to https://www.cornerstonecommunity.net/tag/baptism/.
25. 736 McCourry Blvd., Incline Village, NV.
26. 300 Country Club Drive, Incline Village, NV.
27. As opposed to the beach deed.
28. See City of Reno v. Goldwater, 92 Nev. 696, 702, 558 P.2d 532 (1976).