Is It Permissible For The Incline Village General Improvement District (“IVGID”) to Disregard The “Paid by Choice” Factor Applicable to Nearly All Fees When it Comes to Assessment And Collection of Its Beach Facility Fee (“BFF”)?
As a precursor to this topic, we refer the reader to our Circumstances Under Which The “Paid by Choice” Factor Applicable to Nearly All Fees Can Be Disregarded discussion. Which discusses those limited instances where the voluntariness of payment pillar can be disregarded when determining whether a monetary exaction is a legitimate “fee.”
Insofar as the District’s BFF in particular is concerned, since we‘ve demonstrated the BFF does not pay for local parcel owners‘ availability to access and use the District’s private beaches1, it cannot be a “fee!”2
Thus when it comes to determining whether the “paid by choice” factor applied to any fee the District adopts, and in particular the BFF, can be disregarded, the benefits furnished in consideration must be evaluated. And where we’re talking about benefits other than public health and sanitation, as we are here, the element of choice pillar recognized in Emerson College v. City of Boston, at 391 Mass. 415, 424-425, 462 N.E.2d 1098, 1105 (1984) remains and must be applied.
And now you know!
- Recall that local parcel owners with beach access and use have obtained the same by reason of the easement in the beach deed rather than the BFF.
- Because it is not charged “in exchange for a particular governmental service.”