As demonstrated elsewhere, the purpose for general improvement districts (“GIDs”) is supposed to be “to provide various urban type services¹ (to real property² in)…areas where such services (a)re not available and (cannot) be provided (for) by general purpose government(s)”³ such as counties, cities and unincorporated towns⁴. Okay, what types of services? Those provided by the Legislature⁵ as explicitly conferred in the GID’s initiating ordinance⁶ as supplemented, if at all, by those “additional basic power(s expressly) granted,”⁷ “sections of this chapter (NRS 318) designated therein,”⁸ and none other⁹. 

Yet for decades unelected staff and “rubber stamp” trustees have taken the position that because IVGID “is a legally separate government…fiscally independent of any other governmental entity…(it is somehow) not financially accountable (to) any other entity,”¹⁰ and it is “empowered to determine what facilities and services it should offer”¹¹ even though oftentimes GIDs: “do not have the adequate size or tax base to (financially) support th(os)e services;”¹² NRS 318.055(4)(c)(2) expressly declares that a GID’s “initiating ordinance must set forth…a statement that the ordinance creating the district will be based on the (county) board (of commissioner)’s finding…that the creation of the district is economically sound and feasible;” and here specifically, IVGID does not have the adequate size nor tax base to (financially) support the services it furnishes and its furnishing of those services is not economically sound. Stated differently, past trustees have taken the position, contrary to Dillon’s Rule¹³, that unless the exercise of a power is expressly prohibited by NRS 318, they are free to exercise it!

So the question: Does the District have the power to acquire real property for “open space” purposes? For the reasons which follow, we say no!

“The (GID’s) Initiating Ordinance Must Set Forth…a Statement of The Basic Power or Basic Powers For Which The District is Proposed to be Created: (for instance, by way of illustration, ‘for paving, curb and gutters, sidewalks, storm drainage and sanitary sewer improvements within the district’).”⁶ As elsewhere discussed, the District’s initiating ordinance did not grant it the basic power to furnish facilities for “open space.”

Moreover, “The Basic Power or Basic Powers Stated in The (GID’s) Initiating Ordinance Must be One or More of Those Authorized in NRS 318.116:”⁶ As elsewhere discussed, NRS 318.116 does not expressly identify providing “open space” as a basic power a GID may exercise.

A GID’s “Board May Elect to Add Basic Powers Not Provided in Its Formation, in which event it 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.”⁷ Even if providing “open space” were a basic power a GID could exercise, the Washoe County Board has never granted this power to the District, let alone via “proceedings…as nearly as may be, to those provided for the formation of the district, and with like effect.”¹⁴ Additionally, the Washoe County Board has never approved “a modified service plan for the district in a manner like that provided for an initial service plan required for the organization of a district in the Special District Control Law.”⁷

“Sections of This Chapter (NRS 318) Designated Therein:”⁶ Examine NRS 318. Nowhere else will the reader find that a GID may exercise the power to acquire real property for “open space” purposes. Yes NRS 318.210 states that a GID “board shall have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted in this chapter.” So what “specific powers (have been) granted in…chapter” NRS 318 which allegedly dictate that the power to acquire real property for “open space” is “necessary or incidental to or (to be) implied” therefrom? And assuming you the reader can come up with any, would you not admit you have some doubt? Because if you do, we harken back to Dillon’s Rule which as the reader will recall instructs “that if there is any fair or reasonable doubt concerning the existence of a power, that doubt is (to be) resolved against the (governing board of the local government) and the power is denied.”¹⁵

Attorney General Opinion 2005-01: (January 21, 2005). Although we’re not aware of any court case which has ruled on the propriety of a GID’s acquisition of real property for “open space” purposes, we are aware of this Nevada Office of Attorney General’s (“OAG’s”) Opinion which instructs that the powers granted to local government are “in the nature of a public trust that may not be exercised…in the absence of statutory authorization.”¹³ Therefore without statutory authority, GIDs have no power to acquire real property for “open space” purposes! And since they have no such power, the same OAG opinion instructs they have no power to delegate such powers to their GM nor anyone else for that matter¹⁶.

NRS 318.160: states that a GID “board shall have the power to acquire¹⁷…real…property, and any interest therein.” But does this authority extend to acquiring property for purposes a GID is not expressly authorized to exercise? For the reasons which follow, we answer no.

Expressio Unius est Exclusio Alterius: Consider that NRS 318.1172(2) instructs that a GID “board shall have the power to…purchase…real property…and other interests in (real) property…as necessary for the establishment, control, management and operation of (an) area or zone…for the preservation of one or more species or subspecies of wildlife that has been declared endangered or threatened pursuant to the federal Endangered Species Act of 1973, 16 U.S.C. §§1531, et seq.” And NRS 318.142 instructs that a GID “board shall have the power to acquire (real property)…for the disposal of garbage and refuse, and to own and operate equipment for the collection and disposal of, and collect and dispose of, garbage and refuse.” In both instances, the power to acquire real property is conditioned upon some specific purpose expressly authorized by NRS 318.116. But here staff want us to believe the District may acquire real property for “open space,” notwithstanding this is not a purpose expressly authorized by NRS 318.116. Such an interpretation violates the common law maxim¹⁸ for construing legislation¹⁹, expressio unius est exclusio alterius²⁰. In other words, since NRS 318.1172(2) and NRS 318.142 pre-condition the exercise of the power to acquire real property upon a purpose expressly authorized by NRS 318.116, and when it comes to “open space” there is no such authorization, the IVGID Board is precluded from acquiring real property for such purpose.

Evidence The District Has Acquired or Attempted to Acquire Real Property Allegedly For “Open Space“ Purposes: When the Bitterbrush Condominium project was first developed in the late 1990s, apparently eighty-seven (87) or so lots were approved by Washoe County without concurrent approval from TRPA. This made the lots unbuildable. And as a result, the owner(s) stopped paying ad valorem property taxes. Eventually title to these lots reverted to the County as a result of delinquent tax sales. Apparently there is a NRS provision that allows local governments to ask the County to transfer such parcels to the former if used for “open space” purposes. Apparently in/about/immediately preceding October of 2012, District staff made request that these lots be transferred to IVGID. In connection with that request, staff represented that these undeveloped lots, if acquired, would be used for “open space” purposes. This request was apparently granted by the Washoe County Board of Commissioners and as a result, title to the eighty-seven (87) or so lots was transferred to IVGID sometime in 2012.

Thereafter IVGID staff revealed their true intent in acquiring these lots. And it had nothing to do with “open space.” Since these lots were entitled to beach access, a market for their purchase existed even if not developable. Especially from owners of Crystal Bay properties who are denied beach access. So rather than retention for public “open space” purposes, District staff began selling them off to Crystal Bay property owners without the IVGID Board’s knowledge or approval. And by the time the public learned of what was going on, at least three (3) such lots had been sold for between $14,000-$20,000 each.

Currently (latter 2023), IVGID staff have made application for two parcels owned by the United States Forest Service. One of these parcels is located across from the High School, and the other is apparently located behind Pet Network. These parcels are apparently part of the Truckee Meadows Public Lands Management Act bill introduced by Senator Jacky Rosen in early 2023. And why do staff want these parcels? “Open space” and “fire mitigation” purposes.

The District’s Funding Source: At least insofar as the District’s acquisition of the eighty-seven (87) lots above-referenced, the RFF was used to pay the County its delinquent ad valorem taxes waived. When the County learned that District staff had sold the above-three (lots), and wanted the discretion to sell part/all of the remaining eighty-four (84), it insisted the District pay all delinquent ad valorem taxes waived.

The Districts Wrongful Use of the RFF: Although NRS 318.197(1) instructs that a GID “Board may fix…(various) rates, tolls or charges other than special assessments,” nowhere are real property acquisition costs expressly included in the litany of permissible fees. Our What Are The RFF/BFF discussion explains that according to staff and the Board, the RFF represents “Recreation Standby and Service Charges [also known as the Recreation…and Beach Facility Fee(s)²¹…for the (mere) availability of use of the recreational facilities described”²² in the “written report²³ (for collection on the county tax roll which is)…filed (each year) with the secretary.” So do the fees necessary to pay for the County for delinquent ad valorem taxes waived on the eighty-seven (87) lots above-referenced have anything to do with “recreation standby and service charges…for the (mere) availability of use of the (District’s) recreational facilities?” How about real property the District has no power to acquire?

NRS 205.300(1): In order to further demonstrate that staff’s use of the RFF to acquire real property for “open space” purposes is impermissible, one needs to understand those sums get deposited into a single account²⁴. Thus as far as staff are concerned, the money is available to be spent on whatever. And spent it is!

Therefore we submit that using the RFF to acquire real property for “open space” purposes is a violation of NRS 205.300(1)²⁵. So where exactly do staff get off using funds collected as a bailee for completely different purposes to pay for real property the District has no power to acquire?

Moreover, Rather Than Specially Benefiting Just Those Parcels/Dwelling Units Which Are Assessed, Real Property For “Open Space” Purposes Benefits The General Public as a Whole: Open space benefits all residents, inhabitants, property owners, businesses, visitors, and real properties²⁶ in our community. In other words, these alleged benefits are not limited to only District owned property. Therefore, “the (RFF)…levied…(by IVGID can)not survive scrutiny under the first prong of (the)…Medeiros test²⁷ because the (open space furnished)…directly benefit(s)…the public-at-large — (and) not (just) th(os)e…who pay the (fees) inasmuch as the public at large is the primary beneficiary.”²⁸

The District’s Justification for exercising powers it does not have: We believe there is none. However, if you’d like to consider the Board’s/staff’s perceived justification, you’re directed to our Staff’s/the Board’s Justification For Exceeding the Limited Powers the District May Permissibly Exercise web page.

Conclusion: So there you go. The issue we raise isn’t whether open space is a good thing. But rather, whether IVGID had/has the express power to acquire real property for such purposes. Moreover, rather than charging these costs to the District’s General Fund, they were/are discriminatorily paid by the RFF local parcel/dwelling unit owners must pay/guaranty. Finally, whatever benefit open space furnishes, accrues to the general public as a whole whether or not any single beneficiary is the one paying the fee. Thus for the above-reasoning, it is our opinion it was and is a misuse of NRS 318.055(4)(b) as well as Dillon’s Rule¹³ for IVGID to have acquired real property for “open space” purposes, and the District had no power to assess the RFF for this purpose simply because “the ends justify the means.”

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1. GIDs are authorized to “furnish services pertaining to any such basic power…the district may (permissibly) exercise” [see NRS 318.100(2)].
2. Consider that: NRS 318.258(9) instructs the services a GID “provide(s are those)…required by the owners of…real property;” NRS 318.197(2) instructs that “all rates, tolls or charges (adopted shall) constitute a perpetual lien on and against the property served;” NRS 318.201(10) similarly instructs that “the amount of the charges (elected to be collected on the tax roll) shall constitute a lien against the lot or parcel of land against which the charge has been imposed;” NRS 318.203 instructs that “where a dwelling unit (on a)…parcel of real property upon which the unit referenced…exists that is not currently being charged for services provided…the board…of trustees…may adopt a resolution…to charge the owner (of that unit)…for the services provided;” NRS 318.170(1)(b) instructs that “all owners of inhabited property in the district (may be compelled) to use (and pay for) the district’s system for the collection and disposal of sewage, garbage and other refuse;” and, NRS 318.201(1) instructs that when a “board which has adopted rates pursuant to this chapter…elect(s) to have such charges for the forthcoming fiscal year collected on the tax roll…it shall cause a written report to be prepared…which shall contain a description of each parcel of real property receiving such services and facilities and the amount of the charge for each parcel for such year.” In all of these examples it is the owner of real property who is charged for the services and facilities a GID provides to real property.
3. See ¶II at page 8 of Legislative Commission of the Legislative Counsel Bureau, State of Nevada (“LCB”), Bulletin No. 77-11, Creation, Financing and Governance of General Improvement Districts, September 1976 (LCB Bulletin 77-11).
4. In Nevada counties, cities and unincorporated towns are general purpose governments because each is granted general powers to provide for the health, safety and welfare of its inhabitants. Counties are vested “with the appropriate authority to address matters of local concern” [see NRS 244.137(6)]. “The term…matters of local concern (expressly)…include(s those addressing)…public health, safety and welfare” [see NRS 244.143(2)(a)]. Cities are vested with express powers to: “provide for safeguarding public health” [see NRS 266.330(1)], “provide generally for the public safety” [see NRS 266.277(1)], and regulate and license (see NRS 266.355) which encompasses statements attesting to the welfare of the community [see NRS 425.520(2)]. Unincorporated towns are vested with express powers to: provide for “public health, safety and morals” [see NRS 269.190 et seq.], and, “protect the public health and welfare” [see NRS 269.227, 269.128, 269.171(1)]. In contrast, GIDs are not expressly permitted to exercise any of these powers.
5. See NRS 318.116.
6. See NRS 318.055(4)(b).
7. See NRS 318.077.
8. See NRS 318.055(4)(a).
9. See A.G.O. No. 63-61, p. 102, at p. 103 (August 12, 1963).
10. See ¶1(A) at page 35 of IVGID’s 2019 Comprehensive Annual Financial Report (“the 2019 CAFR”).
11. See https://www.yourtahoeplace.com/ivgid/about-ivgid.
12. See ¶11 at page 10 of LCB Bulletin 77-11.
13. Dillon’s Rule is recited at NRS 244.137(3)-(4) as well as NRS 268.001(3)-(4) and “provides that (the governing boards of local governments) possess…and may exercise only the following powers and no others: (a) those,,,granted in express terms by the Nevada Constitution or statute; (b) those…necessarily or fairly implied in or incident to the powers expressly granted; and (c) those…essential to the accomplishment of the declared objects and purposes of the (local government) and not merely convenient but indispensable…Dillon’s Rule also provides that if there is any fair or reasonable doubt concerning the existence of a power, that doubt is resolved against the (governing) board of (the local government) and the power is denied.”
14. Those proceedings would include: the Board’s adoption of an ordinance [see NRS 318.055(2)] proposing the adding of a new basic power⁶; “the…mail(ing) of written notice to all property owners within the…district of the intention of the board of county commissioners to” add a new basic power “which notice shall set forth the…time and place of hearing” (see NRS 318.060); and, “at the place, date and hour specified for the hearing in the notice…the board of county commissioners shall give full consideration to all protests which may have been filed and shall hear all persons desiring to be heard and shall thereafter adopt an ordinance either (adding the proposed new basic power)…or determining that it shall not be” granted [see NRS 318.070(1)] with the proviso proponents must “show that the (adding of such proposed new basic power) is economically sound and feasible” [see NRS 318.070(2)].
15. See NRS 244.137(4) and NRS 268.001(4).
16. See Ronnow v. City of Las Vegas, 57 Nev. 332, 341-43, 65 P.2d 133 (1937) which instructs that “a  municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation – not simply convenient, but indispensable…Neither the corporation nor its officers can do any act, (n)or make any contract, (n)or incur any liability, not authorized thereby, (n)or by some legislative act applicable thereto. (And) all acts beyond the scope of the powers granted are void” (Id., at 57 Nev. 343).
17. NRS 318.020(1) defines “acquisition” as the “acquisition…by purchase…condemnation, lease, rent, gift, grant, bequest, devise, contract or other(wise), or any combination thereof.”
18. A legal maxim is an established principle or proposition of law (go to https://en.wikipedia.org/wiki/Legal_maxim).
19. See United States v. Barnes, 222 U.S. 513, 515 (1912).
20. Which literally means “the expression of one thing is the exclusion of the other.”
21. See page 232 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 Board packet (“the 5/26/2022 Board packet“).
22. See ¶I at page 234 of the 5/26/2022 Board packet.
23. See pages 232-237 of the 5/26/2022 Board packet.
24. That’s right. The District maintains but a single checking account. But for investments in income producing vehicles like certificates of deposit, day-to-day revenues and expenses are made into/out of a single checking account. Those transactions are reported in various accounting funds through a chart of accounts legend which assigns unique identification names and numbers to each transaction. Summaries can then be prepared using one or more software sorting programs.
25. Which states that “any bailee of any money, goods or property…with whom any money, property or effects have been deposited or entrusted, who uses or appropriates the money, property or effects or any part thereof in any manner or for any other purpose than that for which they were deposited or entrusted, is guilty of embezzlement, and shall be punished in the manner prescribed by law for the stealing or larceny of property of the kind and name of the money, goods, property or effects so taken, converted, stolen, used or appropriated.”
26. Including those who/which are not assessed the RFF.
27. See State v. Medeiros, 89 Hawaii 361, 370, 973 P.2d 736, 745 (1999).
28. And “th(os)e (who are assessed) themselves are, if anything, only incidental beneficiaries.”