As demonstrated elsewhere, general improvement districts (“GIDs”) are limited purpose special districts. Therefore their powers are to be strictly construed and limited¹ to those provided by the Legislature² as explicitly conferred by their County Boards of Commissioners (“County Boards”) in the GID’s initiating ordinance³ 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

Introduction: As with the propriety of all local governmental powers, we begin our analysis 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.

The basic powers the Washoe County Board has expressly granted to IVGID (all of which have been provided by the Legislature²) consist of furnishing facilities for: streets, alleys and public highways⁹; curbs and gutters¹⁰; sidewalks¹¹; storm drainage and flood control¹²; sanitary sewerage¹³; water¹⁴; lighting public streets, ways and places¹⁵; the collection and disposal of garbage and refuse¹⁶; public recreation¹⁷; and, electric light and power¹⁸. Notably, nowhere has the Washoe County Board granted to IVGID municipal police powers¹⁹ to provide for the health, safety or general welfare of any inhabitants within its geographical boundaries²⁰ even where those inhabitants, or the GID itself, may be “interested” in proposed statewide legislation/regulation. Nor has it granted to IVGID the basic powers to levy taxes to pay for such services but for ad valorem taxes²¹, nor to fix “rates, tolls and charges other than special assessments” other than to pay for “electric energy, cemetery, swimming pool, other recreational facilities, television, FM radio, sewer, water, storm drainage, flood control, snow removal, lighting, garbage or refuse…for services or facilities (or)…the availability of service…furnished,”²² Nor to creatively further tax local parcel/dwelling unit owners to provide a funding source to pay for massive staff over spending.

As recited above¹⁶, IVGID has been expressly granted the basic power to “furnishing facilities for the collection and disposal of garbage and refuse as provided in NRS 318.142.”²³ Given that power allows the District to “fix, and from time to time increase or decrease…garbage or refuse rates, tolls or charges,”²² the question isn’t whether IVGID has the power to charge water and sewer rates because clearly it does. Rather, our question is whether the District may charge its solid waste collector a franchise fee²⁴ which gets passed through to garbage and refuse disposal customers as an allowable cost? For the reasons stated herein, we say no!

The Particulars: The District has a long history of extorting excessive fees from its solid waste collectors. If one goes back to January of 1964, one will see where Robert McDonald, the IVGID Board’s then “president,” offered to enter into a “a 10-year term…(agreement) for garbage disposal at Incline Village” with Nan Whiston and her soon to be husband Albert Ander. The offer required “payment…to the District…of 10 percent of the gross amount(s) collected…later to be increased to 15 percent and finally to 20 percent!”²⁵ Although these payments were not labeled “franchise fees,” clearly, that’s exactly what they were.

Because Whiston and Ander were not able to make the refuse and garbage disposal business a profitable go “largely because of their difficulty in collecting from the customers…(and their inability) to get a business license,”[efn}See Whiston, supra, at 85 Nev. 510.[/efn_note] Incline Village founder Art Wood formed Crystal Bay Disposal Co., Inc.²⁶ and began providing refuse and garbage disposal services to the occupants of Incline Village. Although it is indeterminable what Crystal Bay Disposal paid to IVGID in the form of a solid waste franchise fee, given Art Wood, Robert McDonald, Crystal Bay Development Co. and IVGID were one in the same²⁷, it is difficult to conclude IVGID wasn’t realizing a franchise fee of 20%!

On or about September 6, 1965 the IVGID Board “passed a resolution wherein the Board…enter(ed) into a contract with Reno Disposal Company for the hauling of…garbage in the Incline Village area.”²⁸ We can’t say what happened trash wise in Incline Village after September of 1965 until March 29, 2007 when the District entered into “an exclusive franchise for the operation of a solid waste collection and disposal service for all the areas within the District” with Independent Sanitation Complany²⁹(“Independent Sanitation”). On December 21, 2007 Independent Sanitation was dissolved as it was merged into Reno Disposal Co.³⁰ (“Reno Disposal”). On May 28, 2008 Reno Disposal and the District entered into the First Amended Franchise which amended and restated ¶¶4.01, 5.04, 6.01, 6.02, 6.04, 6.05, Exhibits “A” and “B” of the trash franchise³¹. Effective October 1, 2016 the trash franchise was amended and restated again (The Second Amended Franchise”) to its present form³². The current trash franchise remains in effect until June 30, 2026³³. ¶4.01 of the First Amended Franchise modified IVGID’s franchise fee to a whopping 15% of revenue billed!

Incline Village founder Art Wood formed Crystal Bay Disposal Co., Inc.³⁴

In order to assure the area of having a garbage pickup Wood formed the disposal corporation and hired Anders in the May 15th agreement.

[/efn_note]) which gets passed on to the District’s ultimate solid waste disposal customers; i.e., you and us.

Yet as the reader will see (discussion below) the District furnishes facilities for defensible space aka fuels management! Now before we go further, please understand the District denies that providing for defensible space is a “basic power” required to be provided by the Legislature and granted by the Washoe County Board. Nevertheless, the fact remains that the District contracts with the North Lake Tahoe Fire Protection District (“NLTFPD”) for defensible space services. And at a cost of $200,000 annually (see discussion below)! Which like nearly everything else the public’s staff administer, requires a financial subsidy from somewhere. And that somewhere ends up being the Recreation Facility Fee (“RFF”) involuntarily assessed against all non-exempt parcels/dwelling units within IVGID’s boundaries, and the water rates, tolls and charges the owners of all inhabited parcels within the Incline Village General Improvement District’s (“IVGID’s”) boundaries are ultimately responsible for paying³⁵.

With that said and as elsewhere stated, “fuels management” or defensible space “is…the buffer (one) create(s) between a building on (one’s) property and the grass, trees, shrubs, or any wildland area that surround it³⁶. According to promoters this space is needed to slow or stop the spread of wildfire and it helps protect (one’s) home from catching fire — either from direct flame contact or radiant heat.”³⁷ “The goal of (IVGID’s) program is to create a ‘halo’ around the community restricting the movement of wildfire in or out…The substance of those efforts removes vegetation and other fuels as they accumulate…rang(ing) from clearing the understory to major tree removal and fuels reduction.”³⁸ “This work…provides a protective boundary for (all of) the homes (and other properties) of Incline Village and Crystal Bay.”³⁹

In 1991 the District initiated a formal “Fuels Management Program…in a collaboration with the NLTFPD”¹⁹ given the NLTFPD serves essentially the same geographic area as the District. According to the NLTFPD, “annually approximately $450,000 to $500,000 is spent to maintain the 1,000+acres of land IVGID owns.”¹⁹ The degree of work in any given area rotates over time based on conditions as assessed¹⁸.

The District wants the public to believe defensible space efforts are intended to protect its various facilities. But that’s not literally true. The protective halo which has been created is in almost all circumstances far above the District’s facilities. According to the NLTFPD, the Incline Village Prescribed Fire Project “reduce(s) hazardous fuels on at least 150 acres in the wildland-urban interface through the application of prescribed understory fire. The areas targeted for treatment include 544 acres of steep drainages located below vulnerable residential subdivisions.” The only place where hazardous fuels are removed anywhere close to District facilities is Diamond Peak, and there far above the base and Snowflake Lodge(s). Thus more accurately, the intent of the halo is to protect all properties within and all residents and visitors to Incline Village/Crystal Bay. In this regard it is no different than a public park which is available to be used by all members of the general public as a whole.

So let’s examine the costs associated with IVGID’s version of defensible space. The District’s annual contribution towards defensible space is $200,000. These monies come from two principle funding sources. “The defensible space fee on the Public Works statement pays for 50% of the IVGID share of costs for fuels treatment. The other 50% share of this cost is paid by the IVGID Recreation Facility Fee”⁴⁰ (“RFF”). Since staff report there are 8,203 parcels/dwelling units being assessed the RFF⁴¹, and the District is collecting $100,000 annually from local property/dwelling unit owners’ water bills for defensible space, each parcel/dwelling unit owner is paying roughly $25 annually to protect all property owners, and non-property owning residents, visitors, invitees and business customers⁴² from the effects of a devastating wildfire.

If the reader looks at NRS 318.116(17), he/she will see that unlike some of the other unauthorized powers IVGID exercises, one of the basic powers a GID may legitimately exercise is “furnishing facilities for protection from fire, as provided in NRS 318.1181.”¹⁸ Does this not sound like defensible space? Let’s assume yes. So show us where the Washoe County Board has expressly granted this basic power to the District given such grant in a GID’s initiating³ or supplemental⁴ ordinance(s) is a pre-condition before the power can actually be exercised. The answer is clearly nowhere!

So if this basic power has not been expressly granted to the District by the Washoe County Board, where do staff get off exercising the same? Stated differently, given the cost of this program is subsidized, in part, by the RFF, as stated elsewhere the represented purpose for the RFF is to make the District’s recreation facilities “available” for the access and use of the owners/occupants of those parcels/dwelling units which are involuntarily assessed, and the subject program has zero to do with recreation per se or making the District’s recreation facilities available to be used by those whose parcels/dwelling units are assessed, where do staff get off assigning any of the costs associated with this program to the RFF? Unbelievably, staff offer three (3) justifications.

First, ¶II of Resolution 1480³¹ and Policy 3.1.05(f)³² authorize staff because the IVGID Board has abdicated away to unelected staff essentially all powers to manage, control and supervise the business and affairs of the district, as well as to improve, equip, operate and maintain all district projects³³.

Second, NRS 318.210 which states “the board shall have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted in this chapter.” Here staff disingenuously contend these services are a necessary, incidental or implied right from the specific powers granted in NRS 318. But are they really? Is defensible space a “power…necessarily implied or necessarily incident to the (other) powers expressly granted” by the County Board? Is it a “power…absolutely essential…not simply convenient, but indispensable…to (IVGID’s)…declared objects and purposes?” The answer to all of these questions is a resounding no!

Moreover, this justification runs afoul of Dillon’s Rule³⁴. Given NRS 318.210 is really the statutory embodiment of the second portion of Dillon’s Rule (“a municipal corporation possesses and can exercise…those…powers…necessarily or fairly implied in or incident to the powers expressly granted”), should there be “any fair or reasonable doubt concerning the existence of a power, that doubt is (supposed to be) resolved against the (governing) board…and the power…denied.”³⁵ So is there doubt?

Finally, because staff can. According to staff (just ask them) IVGID “is a legally separate government…fiscally independent of any other governmental entity…(and) not financially accountable (to) any other entity.”³⁶ Similarly, Washoe County takes the same position³⁷. So who’s going to stop staff from exercising a power it is not empowered to exercise?

Moreover, here providing for defensible space which serves the general public as a whole is not economically feasible³⁸ inasmuch as staff is required to involuntarily assess local parcel/dwelling unit owners a whopping $7 million or more annually in financial subsidies, just to be able to pass a balanced budget which includes the costs associated with defensible space! Therefore following Dillon’s Rule, the fact of the matter is that the District has no power to provide defensible space services.

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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. See sec. 3(a) of Ordinance 97, Bill 57, as authorized by NRS 318.116(7).
10. See sec. 3(b) of Ordinance 97, Bill 57, as authorized by NRS 318.116(8).
11. See sec. 3(c) of Ordinance 97, Bill 57, as authorized by NRS 318.116(9).
12. See sec. 3(d) of Ordinance 97, Bill 57, as authorized by NRS 318.116(10).
13. See sec. 3(e) of Ordinance 97, Bill 57, as authorized by NRS 318.116(11).
14. See sec. 3(g) of Ordinance 97, Bill 57, as authorized by NRS 318.116(15).
15. See sec. 3(i) of Ordinance 97, Bill 102, as authorized by NRS 318.116(16).
16. See sec. 3(j) of Ordinance 97, Bill 102, as authorized by NRS 318.116(13).
17. See sec. 21.5 of former NRS 318.143(1) [SB297, Chapter 413, page 1088, 1965 Statutes]. At the next legislative session this provision was amended to delete the word “public” [see sec 63 of former NRS 318.143(1) {SB408, Chapter 582, page 1714, 1967 Statutes]. At the same time sec. 24 of former NRS 318.116 was adopted [SB408, Chapter 582, page 1693, 1967 Statutes] which added the basic power of “furnishing recreation facilities.” Today this basic power appears at NRS 318.116(14).
18. See sec. 3(l)(1) of Ordinance 97, Bill 227, as authorized by NRS 318.116(1).
19. “Police power(s) do…not specifically refer to the right of state and local governments to create police forces…(Rather, they are) defined as the power of a governmental body to impose laws and regulations which are reasonably related to the protection or promotion of a public good…for the benefit of their communities…such as health, safety or welfare…The sovereign power of a state includes protection of safety, health, morals, prosperity, comfort, convenience and welfare of the public. In the U.S., the authority to regulate local matters concerning health, safety, and morality of state residents is reserved to states under the Tenth (10^th) Amendment to the (U.S.) Constitution…Usually states delegate to their political subdivisions the power to enact measures to preserve and protect safety, health, welfare, and morals of the community” (go to https://municipal.uslegal.com/police-powers/).
20. Do a search for municipal police powers in NRS 318. They do not exist. Now do the same thing insofar as counties [NRS 244.137(6) instructs that counties are empowered to address matters of local concern. Matters of local concern are defined at NRS 244.143(2)(a) to include public health, safety and welfare], incorporated cities [NRS 267.530 instructs that the powers set forth in “NRS 267.450 to 267.525, inclusive, (are) necessary to secure the public health, safety, convenience and welfare” of an incorporated city’s inhabitants] and unincorporated towns [NRS 269.190, et seq. address the powers unincorporated towns may exercise. Those powers are listed under the under the “public health, safety, and morals” provisions of NRS chapter 269. NRS 269.190 instructs that “boards of county commissioners may establish and maintain a board of health in any unincorporated town;” NRS 269.235(1) and 269.240(5) instruct that a “town board or board of county commissioners may appoint from the residents of an unincorporated town one chief of police and as many other peace officers as…in (their) judgment, the public safety may require;” and, NRS 269.128 instructs that the “property, public services and franchises” unincorporated towns may exercise “promote the general welfare of those inhabitants”] are concerned. As the reader can see, the exact opposite is true. The fact counties, cities and unincorporated towns have expressly been granted municipal police powers and GIDs have not, is further evidence the Legislature did not intend that GIDs provide for the health, safety and general welfare of those inhabiting their geographic boundaries. Stated differently, since Washoe County already has the power to provide for the health, safety and welfare of Incline Village/Crystal Bay inhabitants, why do the latter require IVGID to do the same thing?
21. NRS 318.225 provides that GID “Board(s) shall have power and authority to levy and collect general (ad valorem) taxes on and against all taxable property within the district.”
22. See NRS 318.197(1).
23. NRS 318.142 provides that GID “board(s) shall have the power to…contract…for the collection and disposal of garbage and refuse from within the district.”
24. Which is really a tax because it pays for no facility nor service the District provides, and it is based upon a fixed percentage (here 10%) of gross receipts.
25. See Whiston v. McDonald, 85 Nev. 508, 458 P.2d 107 (1969).
26. See Whiston, supra, at 85 Nev. 513.
27. See Whiston, supra, at 85 Nev. 509, 514.
28. Whiston, supra, at 85 Nev. 517.
29. See the first “whereas” paragraph under Recitals in the “Second Amended and Restated Franchise to Provide Solid Waste and Recyclables Collection Services” (“the trash franchise“).
30. See the second “whereas” paragraph under Recitals in the trash franchise. Reno Disposal has been a subsidiary of Waste-Management since at least 2012 (go to https://www.wastedive.com/news/antitrust-lawsuit-against-waste-management-dismissed-in-reno/424910/), if not before.
31. See the third “whereas” paragraph under Recitals in the trash franchise. Also see the third “whereas” paragraph under Witnesseth under the First Amended Franchise.
32. See the fourth “whereas” paragraph under Recitals in the trash franchise.
33. See paragraph 3 of the trash franchise.
35. ¶9.06 of Ordinance 4, the District’s Water Ordinance, states that “all charges, fees and amounts due and payable shall be billed to the owner of the premises, whether or not the owner is also the occupant..”
36. In this regard wouldn’t the NRS 318.1181(3) definition of fire protection apply: “clear(ing) public highways and private lands of dry grass, stubble, bushes, rubbish and other inflammable material which…constitute a fire hazard?”
37. See https://www.readyforwildfire.org/prepare-for-wildfire/get-ready/defensible-space/_note.
38. See page 4 of IVGID’s 2018 Comprehensive Annual Financial Report (“the 2018 CAFR”).
39. See the District’s “About Rates and Billing” web page.
40. Page 87 of the 2018 CAFR depicts “Budgeted Facility Fees per parcel, (over the) Last Ten Fiscal Years.” If one scrolls down the page one will see that $12 of our RFF funds “Defensible Space” (actually, it’s slightly more – $12.15).
41. See page 106 of the packet of materials prepared by staff in anticipation of the Board’s May 27, 2020 meeting (“the 5/27/2020 Board packet”).
42. In other words, the general public as a whole.