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Assuming Arguendo The District’s Recreation (“RFF”) And Beach (“BFF”) Facility “Fees” Are Actually “Fees,” Yet Not Legitimate “Standby Service Charges,” Can They Be Saved as NRS 318.197(1) “Annexation Charges?”

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Because the RFF/BFF do not satisfy the minimum requisites for a legitimate “fee,” as we’ve elsewhere demonstrated, they do not qualify as “annexation charges.” Nevertheless, let’s assume arguendo the RFF/BFF can be “fees.” As we’ve elsewhere documented, according to staff and past District Boards (“Boards”), the RFF/BFF are NRS 318.197(1) “recreation standby and service charges”1…

“For the availability (to persons) of use of the recreational facilities (more particularly) described” therein at ¶I of the Report2 the Board adopts each year pursuant to NRS 318.201(9).

But as we’ve elsewhere documented, the law is clear that just because staff and past Boards have called the RFF/BFF “recreation standby and service charges” doesn’t necessarily make them so. That’s because “the nature of (a)…charge that (the) law imposes is not determined by the label given…but (rather,)…its operating incidence.”3 For this reason “courts will determine and classify (monetary exactions) on the basis of realities”4 rather than labels, looking to their “operative effect.”5 Especially when as here the RFF/BFF were “undoubtedly drafted with [NRS 318.197(1)’s “rates, tolls and charges” labeling] firmly in mind.”6

Moreover, even though we’ve demonstrated staff, past Boards, and past auditors have all in essence admitted the RFF/BFF are not what staff and past Boards have represented, here we ask whether these exactments can be saved as “annexation charges?” And the answer is a resounding NO!

As we’ve demonstrated elsewhere, legitimate “annexation charges” neither pay for persons‘ access and use of District owned public recreation facilities, nor for their availability to access and use those facilities. Rather, they represent a charge when property is added to an existing municipality7. Given the District has told us the RFF/BFF pay for something completely different, they simply cannot be salvaged by calling them “annexation charges.”

And now you know!

  1. See page 185 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 meeting (“the 5/26/2022 Board packet“).
  2. See page 190 of the 5/26/2022 Board packet.
  3. See Clean Water Coalition v. The M Resort, LLC, 127 Nev. 301, 255 P. 3d 247, 256 (2011) where it cites State v. Medeiros, 89 Haw. 361, 973 P.2d 736, 741 (1999).
  4. See Hukle v. City of Huntington, 134 W.Va. 249, 58 S.E.2d 780, 783 (1950).
  5. See Emerson College v. City of Boston, 39 Mass. 415, 462 N.E.2d 1098, 1105 (1984).
  6. See Rider v. County of San Diego, 1 Cal.4th 1, 15, 820 P.2d 10 (1991).
  7. See https://www.lawinsider.com/dictionary/annexation-fee#:~:text=Annexation%20fee%20means%20the%20fee,%2C%20financial%20consultants%2C%20etc.).

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