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Are The District’s Recreation (“RFF”) or Beach (“BFF”) Facility “Fees” Actually “Fees?”

IVGID 101 Posted on by

No. And here are the reasons why.

As we’ve demonstrated elsewhere, “each year, the District establishes…annual Recreation…and Beach Facility Fee(s)…collected from property owners within the District through a levy placed on the(ir) property tax bill(s)1…As part of the annual budget process the Board traditionally approves a resolution which outlines the billing (‘NRS”‘ 318.1972) and collection (318.2013) process(es) set forth in Nevada Revised Statutes…which establishes the amount of the…RFF and…BFF to be collected,” and elects to have such charges collected on the county tax roll4.

“At (a publicly noticed) meeting the Board…t(akes) action (via resolution5)…which…(approves a final report6 contain(ing) a description of each parcel of real property receiving…services and facilities(, and) the (final) amount of the charge(s)…for such year.”7 That resolution describes the RFF/BFF as “standby and service charges8 (for)…the availability of the use of IVGID’s beaches” and other delineated public recreation facilities9. In other words, “IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and (the) Recreation Center.”9

But Are The RFF/BFF “Fees?” Whether or not the RFF/BFF are “service charges” or “standby service charges…for the availability of” beach and other public recreation facilities, as staff and past “rubber stamp” boards represent/have represented, here we address a more fundamental question. And that’s whether the RFF/BFF even qualify as legitimate “fees?” Because if they’re not, it matters little what kinds of “fees” they are. Right?

Just Because IVGID Staff And The Board Tell Us/Have Told Us The RFF/BFF Are Legitimate Fees Doesn’t Make it So: As stated elsewhere explained, “the nature of (a) tax or charge that a law imposes is not determined by…(its) specially descriptive phrase…but (rather,)…its operating incidence”10 or “effect.”11 Therefore this discussion examines the “operative incidence” or “effect” of the RFF/BFF in an effort to determine whether they are the legitimate fees staff and past Boards represent/have represented.

The Test For Determining Whether a NRS 318.197(1) “Rate,” “Toll“ or “Charge“ is a Legitimate “Fee:” As stated elsewhere explained, “the Hawaii Supreme Court in Medeiros adopted a modified version12 of the test articulated by the Massachusetts Supreme Judicial Court in Emerson College. One which analyzes whether the charge: (1) applies to the direct beneficiary of a particular service, (2) is allocated directly to defraying the costs of providing the service, and (3) is reasonably proportionate to the benefit received.”13 “If those criteria fit the charge, it is a fee.”14 Otherwise, it is a tax15. Because of the arguments and traits which follow, the RFF/BFF are not legitimate fees.

Trait No. 1: The RFF/BFF Cannot Be Legitimate Fees When as Here They Do Not Pay For “Special Benefits:”16 The first pillar of the Medeiros test analyzes whether the charge “(1) confer(s) some (type of special) benefit17 (to the beneficiary), direct or indirect.”18 Staff and past Boards recognize this requirement and for this reason, ¶48 and ¶4(b)9 of the resolution the Board adopts each year which fixes the RFF/BFF and orders their collection on the county tax roll6 makes findings “that each parcel assessed…is specifically benefited.”8 And “that the availability of the use of IVGID’s beaches (and other enumerated recreation facilities)…are all benefits which inure to the owners of properties assessed (t)hereunder.”9 Moreover, by electing to use NRS 318.201(1) and (9) to collect the RFF/BFF19, IVGID staff have in essence admitted by means of conduct that each parcel assessed has in fact received special benefits17.

But are these alleged special benefits really benefits? Or as Medeiros instructs13, regardless of the artful language employed, does “the governmental activity (for which the RFF/BFF are assessed)…confer some (peculiar) benefit…to (the) beneficiary which is separate and apart from any benefit conferred to the public at large?” Here the facts demonstrate a resounding no!

Consider that Washoe County has granted the District the basic power to furnish facilities for public recreation20. Based upon this grant, District staff and the Board have represented to the public that the RFF pays for the availability to access and use21 “IVGID’s…Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and (the) Recreation Center.”9 But because these facilities are public, they’re just as available to be accessed and used by any member of the general public, whether or not he/she owns real property in Incline Village/Crystal Bay, or his/her property is assessed the RFF. Therefore those who pay the RFF, or more importantly their Incline Village/Crystal Bay real properties because they’re the ones actually assessed22, realize no peculiar (i.e., special) “benefit” whatsoever! Let alone in a manner “not shared by other members of a society.”23.

Given the RFF fails to pay for special benefits to those properties which are assessed, it cannot and does not represent a legitimate fee.

Trait No. 2: The RFF/BFF Cannot Be Legitimate Fees When as Here Those Real Properties Assessed Are Not Direct Beneficiaries of The Alleged “Special“ Benefits Furnished16: As Medeiros instructs13, fees “are charged in exchange for a particular governmental service which benefits the party paying the fee.” In fact, this is part of the first pillar of the “modified version of the test…the Hawaii Supreme Court…articulated by the Massachusetts Supreme Judicial Court in Emerson College(; one) which differentiates ‘fees’ from (other types of exaction such as) ‘taxes.'”24 In other words, “one which analyzes whether the charge: (1) applies to the direct beneficiary of a particular service.”

Yet as discussed above, the direct beneficiaries of the alleged benefits furnished in consideration of payment of the RFF/BFF25 are not the ones who directly benefited. Rather, those beneficiaries are real property26! Since ¶¶7-8 of the resolution the Board adopts each year6 which fixes the RFF/BFF and orders their collection on the county tax roll27 instructs that: “the Washoe County Treasurer shall enter the amounts of the charges (in two separate and distinct lines items identified as Recreation Facility Fee and Beach Facility Fee) against the respective lots or parcels of land as they appear on the current Washoe County tax roll,” the direct beneficiar(ies) of (the) particular service(s)” furnished in consideration of payment are not the ones compelled to pay.

Moreover, when The Board elects to collect the RFF/BFF on the county tax roll each year, NRS 318.201(9) instructs it shall “prepare and file a final report…which…contain(s) a description of each parcel receiving…services (and)…the amount of the charge (therefore)…for inclusion on the (real property) assessment roll.” Since ¶4(b) of the resolution adopted pursuant to NRS 318.201(9) which incorporates that report6 “specifically finds that the availability of the use of IVGID’s (facilities; i.e.,) beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and Recreation Center…are all benefits…provided to said (real) properties,” how can parcels of real property possibly access and use any of these recreation facilities? And however one answers the question, it’s clear that those assessed cannot be direct beneficiaries of the alleged benefits furnished

Finally, since the District’s public recreation facilities are just as available to be accessed and used by any member of the general public, as the owners/occupants of those real properties which are assessed, the world’s tourists are benefited in their use notwithstanding the overwhelming majority are not the beneficiaries who pay the RFF/BFF.

For all of these reasons then, the RFF/BFF do not represent legitimate fees for District owned recreation facilities furnished to real property because the true beneficiaries are not those who make payment.

Trait No. 3: The RFF/BFF Cannot Be Legitimate Fees When as Here They Are Not Limited to Those Sums Necessary to “Directly…Defray The Costs (Actually Incurred) in Furnishing Those Service(s)28 For Which The RFF/BFF Are Assessed29: Again, “to distinguish between a ‘fee’ and a ‘tax’ the Hawaii Supreme Court in Medeiros adopted a…test(, the second pillar of)…which analyzes whether the charge…'(2) is allocated directly to defraying the costs of providing the service‘…”18 “When it appears…that revenue is (the) main objective (of an enactment), and the amount of the tax supports that theory30, (it) is a revenue measure.”31 Here the real purpose of both the RFF/BFF is as a revenue measure which makes them both special taxes32. We come to this conclusion for at least the following three (3) reasons.

1. First, listen to what former IVGID Finance Director, Paul Navasio, and the Board have told us is the purpose of the RFF/BFF:

“The RFF/BFF “are established based on the revenues required to (financially) support33 debt, capital expenditure and operations for the District’s various recreation and beach facilities.”34 Stated differently, “the costs of…acquisition, administration, operation, maintenance and improvement of (District owned)…recreational facilities, including the improvements thereon, and of the servicing of bonds issued or to be issued therefor.”35 When “combined with (operational) service charges collected…for facility use and program activities, (the RFF/BFF) serve to (financially) support33 the operations of the District funded by (its) Community Services…and Beach Fund(s), respectively.”36 In other words, “the costs of…acquisition, administration, operation, maintenance and improvement of (District owned)…recreational facilities, including the improvements thereon, and of the servicing of bonds issued or to be issued therefor.”36

So when staff represent that the RFF/BFF are required to (financially) support the District’s various recreation and beach facilities, please understand that this is an admission these fees represent the difference between budgeted revenues (from operational “service charges collected…for facility use and program activities”) and intentional overspending [on “debt, capital expenditure(s) and operations for the District’s various recreation and beach facilities” as well as “the servicing of bonds issued or to be issued therefor“] assigned to the District’s Community Services (insofar as the RFF is concerned) and Beach (insofar as the BFF is concerned) Funds, respectively37.

2. Second, here District staff actually use the RFF/BFF as a means for collecting far more than merely the costs it incurs to make District owned recreation and beach facilities available to be used by those parcels/dwelling units which are assessed38. Given “a ‘fee’ is a payment for a special privilege or service rendered, and not a revenue measure…(i)f the ‘fee’ unreasonably exceeds the value of the specific services for which it is charged[,] it will be held (to be) invalid.”39 Although there are a number of ways to demonstrate that the RFF/BFF unreasonably exceed the value for mere “availability” to access and use the District’s public recreation/other facilities after paying individual user fees thereat, let us suggest just one.

3. Massive increases in Community Services and Beach Fund balances40 over just seven (7) of the last ten (10) years! Until the brutal unsustainability of intentional overspending could no longer be hidden from the public and denied by staff, each fund balance had increased markedly. Given our staff are incapable of operating, maintaining, and providing for capital at District recreation/other and beach facilities based upon the revenues they’re able to generate, a financial subsidy is required and that’s the RFF/BFF34. So how can there be anything left over to add to fund balance? Unless the RFF/BFF total more than the amount of the subsidy.

Stated Differently, The RFF/BFF Cannot Be Legitimate Fees When as Here Their Main Objective is to Raise Revenue: On July 1, 2015 the fund balance in the District’s Community Services (recreation) Fund was reported at $5,357,75541. On the same date, the fund balance in the District’s Beach Fund was reported at $1,107,78642. Seven (7) years later, on July 1, 2022, the fund balance in the District’s Community Services Fund was reported at $64,672,71043. On the same date, the fund balance in the District’s Beach Fund was reported at $13,934,79444. That’s a nearly one-thousand one-hundred and seven percent (1,107%) increase in the Community Services Fund [which equates to more than a one-hundred and fifty-eight percent (158.14% to be precise) yearly increase for seven (7) consecutive years], and a nearly one-thousand one-hundred and fifty-eight percent (1,158%) increase in the Beach Fund [which equates to more than a one-hundred and sixty-five percent (165.43% to be precise) yearly increase for seven (7) consecutive years]! How could the fund balances in both of these funds increase so dramatically in so short a period of time absent massive operational profits (which were not generated), or excessive RFF/BFF subsidies? Obviously, the RFF/BFF have totaled far, far more than the costs necessary to directly defray the expenses the District has incurred to furnish the availability to access and use District owned recreation and beach facilities, and the represented services thereat. When as here the fees exceed the costs the District incurs to furnish recreational or beach facilities or services, it is revenue generating and a tax45! The RFF/BFF cannot be fees! Moreover,

4. The holder of a PPH or punch card realizes no recreation benefits (alleged “preferred pricing”46) unless and until he/she elects to access and use the District’s public recreation/other facilities and pay additional user fees47. Until then these cards have no value whatsoever. Especially given ¶99 of Ordinance No. 7 “strictly forbid(s)…any IVGID Recreation Pass (or)…Punch Card Holder or other individual…(from) sell(ing) an Assignment of Recreation Privileges, or…sell(ing) individual IVGID Recreation Passes or…Punch Cards.” This prohibition prevents PPHs or punch card holders from realizing their inherent value.

5. Even where a PPH or punch card holder is able to realize so called “preferred pricing” at a District public recreation/other facility, in many instances the preference is de minimis. Two simple examples prove the point: Daily adult membership rates at the Rec Center stand at $18. But if one presents a PPH or punch card, the rate can be reduced by a whopping $4 (22.2%) to $14. Similarly, daily adult court reservation fees at the Tennis Center stand at $18. But if one presents a PPH or punch card, the rate can be reduced by a whopping $3 (16.67%) to $15. Yet the RFF is nowhere proportionate to the de minimis “preferred pricing” benefit at these two recreation facilities!

 6. Staff and past boards want local parcel owners to believe the RFF/BFF pay for the costs of capital and debt associated with the beaches and District recreation/other venues48. But staff and past boards have told the public that the RFF is a subsidy which pays for something else; the difference between revenues and operating, overhead, capital and debt service expenditures.

For all these reasons, the RFF/BFF are far in excess of the reasonable and necessary costs to make the beaches and other District owned recreation facilities available to be used by those properties which are assessed; they exceed the direct costs reasonable or necessary to provide this service; the alleged benefit furnished is not reasonable; and as a consequence, they are taxes49. Stated differently, these exactions cannot and do not represent legitimate fees.

Trait No. 4: The RFF/BFF Cannot Be Legitimate Fees When as Here They Are Not “Reasonably Proportionate to The Alleged Benefit(s) Furnished:”16 Again, “to distinguish between a ‘fee’ and a ‘tax’ the Hawaii Supreme Court in Medeiros adopted a…test…(the third pillar of which) analyzes whether the charge…'(3) is reasonably proportionate to the benefit received.'”17 In other words, to be a fee the RFF/BFF must be proportionate to the costs the District actually incurs to furnish the availability to access and use the recreation and beach facilities represented for which these fees are assessed50. Or stated differently, “the services for which the (RFF/BFF) are imposed (must be) sufficiently particularized as to justify distribution of the costs among a limited group (the ‘users,’ or ‘beneficiaries’ of the service), rather than the general public”51 as a whole.

It is for this reason that ¶5 of the resolution the Board adopts each year which fixes the RFF/BFF and orders their collection on the county tax roll6 recites that the RFF/BFF “are reasonable in their relation to the object of the charges imposed…and that said charges have been apportioned in relation to said natural, intrinsic, fundamental and reasonable distinctions among said rates.”9 However, just because staff and the Board have adopted the necessary language doesn’t necessarily mean it is truthful. And here we’ve demonstrated that no benefits are furnished in consideration of payment of the RFF/BFF (see discussion above). And that “the (alleged) benefits (availability to access and use District owned recreation and beach facilities)…are not limited to (just) the [parcels/dwelling units assessed (see discussion above)]…The capacity to (furnish District owned recreation and beach facilities extends to)…not only the private property interests of the owner(s), but also the(ir)…building’s occupants as well as (those of) surrounding buildings and their occupants.”52 And of course, the world’s tourists.

“If the benefits for which (the RFF/BFF) are imposed were limited to (just) the owners of (assessed parcels/dwelling units and they were)…essential to the public welfare, there would be no reason to depart from the optional character of a traditional fee.”53 But because here they are not, and the District has failed to “sufficiently particularize…the services for which the (RFF/BFF) are imposed,” there is no “reasonable proportionality” to the value of the arguable benefit(s) furnished54.

Given the lack of reasonable proportionality insofar as the alleged benefit(s) furnished by the RFF/BFF are concerned, those exactments cannot and do not represent legitimate fees.

Trait No. 5: The RFF/BFF Cannot Be Legitimate Fees When as Here They Are Not Voluntarily Incurred: As Emerson College instructs11, fees “are paid by choice in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge.”55 Although the modified version of this test56 has “weakened its adherence to th(is)” voluntariness pillar insofar as “otherwise legitimate (standby service) charge(s)”57 are concerned, here the District’s charges for the availability of recreation facilities are not legitimate. Under these circumstances the required “voluntary receipt of the service” pillar requirement remains.

The Board has adopted a “Recreation Roll Policy” (see ¶1.0 of Policy No. 16.1.1) which instructs that “the Incline Village General Improvement District will charge the prescribed Recreation Fee, and if applicable…(the) Beach Fee, to all qualifying real properties!” Since ¶¶7-8 of the resolution the Board adopts each year6 which fixes the RFF/BFF and orders their collection on the county tax roll27 instructs that: “the Washoe County Treasurer shall enter the amounts of the charges (in two separate and distinct lines items identified as Recreation Facility Fee and Beach Facility Fee) against the respective lots or parcels of land as they appear on the current Washoe County tax roll,” it is evident that those who are assessed the RFF/BFF have no say in whether they consent to the assessment. Under these circumstances, the RFF/BFF cannot and do not represent legitimate fees.

Conclusion: So there you have it! “The Hawaii Supreme Court in Medeiros adopted a modified version12 of the test articulated by the Massachusetts Supreme Judicial Court in Emerson College. One which analyzes whether the charge: (1) applies to the direct beneficiary of a particular service, (2) is allocated directly to defraying the costs of providing the service, and (3) is reasonably proportionate to the benefit received.”13 “If those criteria fit the charge, it is a fee.”14 Otherwise, it is a tax15. Given the presence of any one (1) of the above traits is sufficient to demonstrate that the RFF/BFF are not legitimate “fees,” and here we have at least five (5), the RFF/BFF must be and are in fact taxes.

Listen to What IVGID Staff And The Board Have Told Us: Before we begin our discussion, we urge the reader to listen to what IVGID staff, the Board and the District’s auditors have told us insofar as what the RFF/BFF really are, and what they really pay for! Why wouldn’t we take their word? So we apply accepted traits to determine whether what we’ve been told is accurate. And because IVGID staff and the Board have told us the RFF/BFF are legitimate NRS 318.197(1) “standby and service charges (for)…the availability of the use of IVGID’s” recreation and beach facilities, we will examine whether the RFF/BFF represent legitimate:

· “Standby…charges, for (recreation) services…furnished by the district;”

· “Service charges, for (recreation) services…furnished by the district;”

· “Standby…charges, for…(recreation) facilities furnished by the district;”

· “Service .charges, for…(recreation) facilities furnished by the district;”

· “Charges for the availability of the use of (recreation) services;” and/or,

· “Charges for the availability of the use of (recreation) facilities.

District Staff’s And Its Auditors’ Admissions: District staff and its auditors have made a number of admissions to the effect that the RFF/BFF are not the “standby and service charges (for)…the availability of the use of IVGID’s” beach and District owned recreation facilities they represent. Since this subject is thoroughly examined at our Staff’s Admissions The RFF/BFF Are Not The Standby And Service Charges They Represent page, rather than repeating ourselves, we refer the reader to this discussion

Before we “dive into” this discussion, Let’s Examine The Particular NRS Statutes at Play; shall we?

Now Let’s Examine The Rules For Construing These Statutes: After all, there are recognized rules for construing statutes. And here we discuss six (6) of particular relevance58:

1. “Plain Language:” Nevada courts begin their inquiry with a statute’s “plain language.”59 Thus where the language is plain and unambiguous on its face, it is not appropriate to resort to any ancillary construction aids60.

2. The Insertion of Words or Terms Which Are Not There: Because it is improper to “insert into statutes terms or provisions which are obviously not there,” courts are “reluctant to second-guess the wisdom of a statute and (for this reason are)…unwilling to insert words…the court believes the Legislature left out, be it intentionally or inadvertently.”61

3. Expressio Unius est Exclusio Alterius: In other words, “the expression of one thing is (to) the exclusion of another.”62 Thus “when a statute limits a thing to be done (to) a particular mode, it includes the negative (insofar as) any other mode”63 is concerned.

4. Had The Legislature Intended: that which is not stated in a statute64, it certainly knew how to “express (those words)…in straightforward English.”65 Thus where it doesn’t, means that the omission is intentional.

5. Dillon’s Rule: Given Nevada is a Dillon’s Rule State66, GID Boards “may exercise only the following powers and no others67: (a) Those…granted in express terms by the Nevada Constitution or statute; (b) Those…necessarily or fairly implied in or incident to…powers expressly granted; and, (c) Those…essential to the accomplishment of the declared objects and purposes of the,,,local government68…and not merely (those which are) convenient but indispensable.”69 And “if there is any fair or reasonable doubt concerning the existence of a power, that doubt is resolved against the (local government) and the power…denied.”70

6. Judicial Decisions From Other Jurisdictions: When a term is neither defined by a statute nor a local government’s highest judicial authority, because it “may have an accepted meaning in the area of law addressed by the statute…(or) it may have been borrowed from another statute under which it had an accepted meaning71…or it may have had an accepted and specialized meaning at common law72, the accepted meaning governs and the word or phrase is considered a technical term or ‘term of art.’”73 And in the “absence of contrary direction (it) may be taken as satisfaction with widely accepted definitions, (and) not as departure from them.”74

Finally, let’s define some of the more relevant words or terms.

What is a “Fee?” Since this subject is thoroughly examined at our What is a Fee page, rather than repeating ourselves, we simply refer the reader to this discussion.

What is a “Tax?” Since this subject is thoroughly examined at our What is a Tax page, rather than repeating ourselves, we simply refer the reader to this discussion.

What Are “Services?” “Services are intangible, value-added activities that a company provides to its customers. They…can be physical or digital. Physical services are those that you can touch, feel, or see, such as a haircut or a massage. Digital services are those that exist in the digital world, such as an app or a website…Service industries are those…that provide services to customers. These industries include…a) Banking and financial services; b) Professional services; Healthcare; Restaurants and food service; Retail; (and,) Transportation.”75

What Are “Service Charges?” “A service charge, also called a service fee, refers to a fee collected to pay for services that relate to a product or service (here recreation) that is being purchased76. Insofar as statutory construction is concerned, the “plain meaning”11 of the term is some charge is assessed in consideration of some “service” being furnished.

What Are “Standby Service Charges?” Since this subject is thoroughly examined at our What Are Standby Service Charges page, rather than repeating ourselves, we simply refer the reader to this discussion.

What Does The Term “Availability of“ Services or Facilities Mean? “The ordinary meaning of (the word) ‘available’ is ‘capable of use for the accomplishment of a purpose.'” Thus the provider of a service or facility must have “adequate capacity present or ready for immediate use.”77

What Recreation Services Does The District Furnish? Given the above-definition of “service,” we can only assume that “intangible, value-added activities” for people translates into things like recreation programming; golf, tennis, ski/snowboard lessons; etc.

What Are “Facilities?” Given the context within which the question is asked (i.e., recreation), wouldn’t the answer be “a building or place used predominantly for indoor recreation, whether or not operated for the purposes of gain, including a squash court, indoor swimming pool, gymnasium, table tennis centre, health studio, bowling alley, ice rink…exposition buildings, museums, skating rinks, other type rinks, fieldhouses, sports arenas, bowling alleys, swimming pools, stadiums, golf courses, tennis courts, squash courts, other courts, ball fields, other athletic fields, tracks, playgrounds, bowling greens, ball parks, public parks, promenades, beaches, marinas, levees, piers, docks, wharves, boat basins, boathouses, harborages, anchorages, gymnasiums, appurtenant shower, locker and other bathhouse facilities, amusement halls, dance halls, concert halls, theaters, auditoriums, aviaries, aquariums, zoological gardens, biological gardens and vivariums”78 or “any place of like character?”

What Recreation Facilities Does The District Furnish? Because NRS 318.197(1) instructs that GID Board(s) “may fix…service charges and standby service charges for…facilities furnished by the district,” is it any surprise that the resolution the Board adopts79 each year pursuant to NRS 318.201(9)9 “specifically finds that: the availability of the use (as opposed to actual use) of IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and Recreation Center…are all benefits?” Is it any surprise that I of the report the Board adopts80 pursuant to 6 of that resolution labels these amenities “recreational facilities?” And is there any doubt “the (resolution) at issue was undoubtedly drafted with NRS 318.197(1)…firmly in mind?”22

Although The District Has Adopted “Charges…For Services and Facilities Furnished,“ They’re Not The RFF/BFF: Rather, they’re user fees. But since this is a discussion of the propriety of the RFF/BFF, the subject of user fees is off topic.

What Recreation Services Does The District Furnish to Those Privately Owned Real Properties Which Are Assessed? The answer is NONE! Because NRS 318.197(1) instructs that GID Boards may “fix…service charges…for services…furnished by the district,” and NRS 318.201(9) instructs that a GID board may “prepare and file a final report…which shall contain a description of each parcel receiving…services…for inclusion on the assessment roll,” each year the Board passes a resolution which adopts the RFF/BFF. But where does the District tell the public that the RFF/BFF pay for recreation services furnished to real property81? And why is this omission noteworthy? Because the District elects to collect the RFF/BFF on the Washoe County tax roll82. And as a pre-condition, NRS 318.201(9) mandates that “the secretary…prepare and file a final report, which shall contain a description of each parcel receiving…services.” Therefore unless recreation services are furnished to the real properties which are assessed, there is no statutory authority for the District to collect the RFF/BFF on the county tax roll. So again we ask: where does the District tell the public that the RFF/BFF pay for recreation services furnished to real property? And what exactly are those services?

Moreover, when we think of services furnished to real property, we think of those delivered via some physical connection or those services are immediately adjacent thereto, don’t we? Services such as electricity or natural gas. Or cable internet and/or television. Or water and sewer service. Or maybe even solid waste removal and snow plowing? All of which are delivered through public streets immediately adjacent. But what recreation or beach services are furnished to real property? And which are physically connected or immediately adjacent thereto? Unless your home is located adjacent to the fairway of one of the District’s two golf courses, we can’t think of any. Can you?

Finally, lest we not forget that the District asserts the RFF/BFF pre-pay for up to five (5) District membership cards36 (like Costco, Sam’s Club or now Best Buy83). The sale of membership cards is not some “service” but rather, that of tangible personal property furnished to the “property owners (i.e., people) of all properties” assessed84. Again, this is an admission by means of conduct that the RFF/BFF do not pay for District recreation services furnished to real property. Finally, given the direct beneficiaries of the above “intangible, value-added activities” are people (see discussion below); the entities which are charged the RFF/BFF are property (see discussion below); to be valid “fees,” the RFF/BFF must “appl(y) to the direct beneficiary of (the) particular service,”34 and we can’t think of any recreation services furnished to real property.

What Recreation Facilities Does The District Furnish to Those Privately Owned Real Properties Which Are Assessed? The answer is NONE! ¶¶4(b) 4(c) of that resolution the Board adopts each year pursuant to NRS 318.201(9)9 finds that said enumerated facilities “are…benefits which inure to” people (see discussion below). Given the entities which are charged the RFF/BFF are property, and to be valid “fees” the RFF/BFF must “appl(y) to the direct beneficiar(ies) of (the) particular service(s),”85 and we can’t think of any recreation facilities that are furnished to real property. Can you? Moreover, because District owned recreation facilities are public (see discussion below), they are available to be accessed and used by anyone who pays applicable user fee(s) without payment of the RFF. And because the beaches are subject to an easement which accords that same access and use, free of payment of any fee, they are available to be accessed and used by any property owner with beach access without payment of the BFF.

Moreover still, how does real property access and use recreational facilities which are neither physically connected nor immediately adjacent thereto? Because NRS 318.197(3) mandates that “the board…prescribe and enforce regulations for the connection with and the disconnection from properties of the facilities of the district and the taking of its services,” this means that in order to receive the recreation facilities the District represents it furnishes there must be some “physical connection” between District owned recreation facilities and privately owned real properties86. Given that here for the overwhelming majority of privately owned real properties there is none, no District owned recreation facilities are furnished in consideration of of payment of the RFF/BFF.

Yes we are mindful of the following language in ¶4(b) of the resolution adopted pursuant to NRS 318.201(9)9: “The Board specifically finds that…reduced rates for season passes and reduced daily rates…(at) IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and Recreation Center…are all benefits which inure to the owners of properties assessed hereunder.”22 However, “reduced rates” are different than no rates (i.e., user fees) whatsoever. And at the end of the day, picture passholders (“PPHs”), just like those who are not, end up paying user fees at essentially all District owned recreation facilities. Therefore, the RFF/BFF do not pay for the availability to access and use the District’s beach and recreation facilities furnished to people. Rather, they pay for nothing more than the right to be charged recreation user fees at a different fee schedule.

Therefore The RFF/BFF Do Not Represent Charges For Recreation Services Arguably Furnished by The District: Because NRS 318.197(1) instructs that GID Board(s) “may fix…service charges and standby service charges for services…furnished by the district,” one would have thought that the resolution it adopts each year pursuant to NRS 318.201(9)9 would specifically find that the RFF/BFF represent “charges for services…furnished”87. But they don’t. Yes at ¶4(b) of that resolution35 and ¶I of the report adopted via ¶6 of that resolution32 they recite that the Board “specifically finds that the availability of the use of IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and Recreation Center…(or) the recreational facilities above described…are all benefits”35 for which the RFF/BFF are levied. But none of these charges pays for furnished services per se. Rather according to the Board, they pay for “the (mere) availability of…use.” So to the extent that resolution is labeled one for “service charges”88, it is false.

And The RFF/BFF Do Not Represent Charges For Recreation Facilities Arguably Furnished by The District: Similarly, because NRS 318.197(1) instructs that GID Board(s) “may fix…service charges and standby service charges for…facilities furnished by the district,” one would have thought that the resolution it adopts each year pursuant to NRS 318.201(9)9 would specifically find that the RFF/BFF represent “charges for…facilities furnished.” But again, they don’t. Yes at ¶4(b) of that resolution35 and ¶I of the report adopted via ¶6 of that resolution32 they recite that the Board “specifically finds that the availability of the use of IVGID’s beaches; boat launch ramp; Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and Recreation Center…(or) the recreational facilities above described…are all benefits”35 for which the RFF/BFF are levied. But none of these charges pays for furnished facilities per se. Rather according to the Board, they pay for “the (mere) availability of…use.”

And The RFF/BFF Do Not Represent Charges For The Availability of Recreation Facilities Arguably Furnished by The District: If the District furnishes no recreation facilities to those real properties which are assessed, how then can it legitimately assess the RFF/BFF for the alleged “availability” to access and use those facilities25? Moreover, in order to legitimately assess standby service charges for the availability to access and use a service, the provider must have “adequate capacity present or ready for immediate use.” Where as here it doesn’t, “no standby fee c(an) lawfully be assessed”89? We don’t think it can.

And The RFF/BFF Do Not Represent Charges For The Availability of Recreation Services Arguably Furnished by The District: Although NRS 318.197(1) allows GID Boards to “fix…charges, for…the availability of service,” the District tells us that the RFF/BFF represent charges “for the availability of use of…recreational facilities.”90 Moreover, if the District furnishes no recreation services to those real properties which are assessed, how then can it legitimately assess the RFF/BFF for the alleged “availability” to access and use those services?

At Best Then, The RFF/BFF Represent Charges For “The Availability of…Use of IVGID’s Beach (And Enumerated)…Recreation Facilities:” Because the RFF/BFF do not represent recreation services and/or facilities furnished by the district, we must and do accept as true the remainder of what the Board has specifically told us they represent; “the (mere) availability of…use” of the beaches and District owned “recreation facilities.”

Notwithstanding The Above, And For The Reasons Which Follow, the RFF/BFF Are Not The Recreation Standby And Service Charges For The Availability of Use of The Beaches And District Owned Recreation Facilities Staff And The Board Represent:

No. 1: NRS 318.197(1) Does Not Authorize GID Boards to Fix Charges of Any Kind For The Availability of Facilities: Although NRS 318.197(1) instructs that GID Board(s) “may fix…charges for the availability of service,” conspicuously its plain language discloses it does not recognize the same type of power insofar as “the availability of facilities” are concerned. As demonstrated above, rules of statutory construction dictate that “when a statute (like this one) limits a thing to be done (to) a particular mode, it includes the negative (insofar as) any other mode” is concerned15. Therefore the Board’s finding at ¶4(b) of the resolution35 it adopts each year pursuant to NRS 318.201(9)9, and ¶I of the report adopted via ¶6 of that resolution32 that “the availability of the use of IVGID’s… Championship golf course; Mountain golf course; tennis facilities; the Chateau and Aspen Grove; Diamond Peak Ski Resort, and Recreation Center…(or) the recreational facilities above described…are all benefits”36 for which the RFF/BFF are levied, is without statutory authority91. Faced with this dilemma given staff is charged with having to come up with a revenue “means” to accomplish the District’s “ends,” former staff simply substituted the word “facilities” for “service” in the resolution. After all, NRS 318.197(1) does state that a GID Board may “fix…service charges and standby service charges for services or facilities furnished by the district.” So why not be “foot loose and fancy free” by using one or the other when it comes to “availability?” Given the rules of statutory construction dictate it is improper to replace words in a statute92, and the RFF/BFF are founded upon these replaced words, they do not represent the availability to access and use the beaches and District owned recreation facilities represented.

No. 2: People Are The Beneficiaries of The Beach And District Owned Recreation Benefits Arguably Furnished by The District: As elsewhere explained, “stand-by ordinances…levy…service charge(s) against unconnected property.”93 Yet according to the resolution the Board adopts each year pursuant to NRS 318.201(9)9, the direct beneficiaries of the availability to access and use of the Beaches and District owned Recreation Facilities are people. For instance,

· ¶4(b) of that resolution35 finds that the subject beach and recreation “benefits…inure to the owners of properties (i.e., people) assessed;”

· ¶4(c) of that resolution35 finds “that the owners of the parcels (i.e., people) set forth (t)herein are (the ones) directly benefited;”35

· ¶4(a) of that resolution36 finds that “Ordinance No. 7 sets forth in detail the specifics of the benefits available to property owners” (i.e., people). Thus ¶64 of Ordinance No. 7 instructs that Picture Pass Holders (“PPHs”) (i.e., people) are entitled to “reduced season pass (and)…daily rates…on various recreation programs and services…at District-owned (recreation)…facilities.” And ¶81 of Ordinance No. 7 instructs that holders of Punch Cards (i.e., people) are entitled to “guest rate(s) for daily Beach Access, daily watercraft and jet ski launching” at the beaches…and…the difference between the (PPH) rate and the non-(PPH) rate for daily access to…District-owned (recreation)…facilities.”

No. 3: Real Properties Are The Entities Paying The RFF/BFF: As elsewhere explained, bona fide “fees” “are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner ‘not shared by other members of society.’”94 Yet here the entities paying the RFF/BFF95 (i.e., real properties) are not the ones benefited.

Because the beneficiaries of the recreation facilities represented are people, yet the ones charged for their mere availability to access and use are real properties, the RFF/BFF do not pay for the availability to access and use the beaches and District owned recreation facilities represented.

No. 4: No Benefits Are Furnished to Those Real Properties Which Are Assessed: NRS 318.201(9) instructs that as a pre-cursor to collecting the RFF/BFF on the county tax roll, those privately owned real properties which are assessed must “receiv(e)…services.” But here they don’t. Moreover, they aren’t capable of receiving the beaches and District owned recreation facilities staff and the Board represent (see discussion above). If the District furnishes no beach nor recreation facilities to those real properties which are assessed, how can it legitimately assess the RFF/BFF for the alleged “availability” to access and use those facilities? Moreover, how does real property use the beach and District owned recreation facilities we’ve demonstrated are furnished to people (see discussion above)?

And because NRS 318.197(3) mandates that “the board…prescribe and enforce regulations for the connection with and the disconnection from properties of the facilities of the district and the taking of its services,” this means that in order to realize the beach and District owned recreation facilities the District represents it furnishes, there must be some type of “physical connection” between beach and recreation facilities and privately owned real property. And given here for the overwhelming majority of privately owned real properties that are assessed there is none, the RFF/BFF do not pay for the availability to access and use the beaches and District owned recreation facilities represented.

No. 5: Moreover, The District is Prohibited From Collecting The RFF/BFF on The County Tax Roll: Since the District’s beach and recreation services are furnished to people rather than those privately owned real properties which are assessed (see discussion above), and NRS 318.201(9) instructs that as a pre-cursor to collecting the RFF/BFF on the county tax roll those privately owned real properties which are assessed must “receiv(e) the services” furnished, the Board has no power to collect those charges on the county tax roll.

No. 6: District Owned Recreation Facilities Are Public: When the County Board of Commissioners (“County Board”) granted the District the basic power to furnish facilities for recreation (on June 15, 1965), it expressly granted the power to furnish public facilities96. Given those facilities are public facilities, they are just as “available” to be accessed and used by any member of the general public as those whose real properties are assessed. In other words, those properties which pay the RFF secure no greater availability of use than those who do not. And as a consequence, the RFF does not pay for the availability to access and use the District owned recreation facilities represented.

No. 7: Most Incline Village Property Owners’ Predecessor’s in Interest Were Granted Deeded Easements to Access And Use The Beaches: As elsewhere explained, every owner of Incline Village real property which was within the District’s June 15, 1965 boundaries and his/her/its “successors and assigns in such ownership” owns “an easement…to enter upon (the deeded beaches) and…use said property for the recreational uses and purposes specified (t)herein.”97 In other words, the BFF does not pay for the availability to access and use the beaches represented.

No. 8: The District Lacks The Capacity to Furnish Immediate Use to Its Recreation Facilities: In order to legitimately assess standby service charges for the availability to access and use a service, the provider must have “adequate capacity present or ready for immediate use.” Where it doesn’t, “no standby fee c(an) lawfully be assessed.”89 According to the District0 there are in excess of 8,200 parcels/dwelling units which are000 assessed the RFF98. But for Diamond Peak and the Beaches, the capacity for actual use of the remainder of District owned recreation facilities, simultaneously, is limited. For instance, each tee time at our golf courses can accommodate a maximum of four (4) golfers. We only have eight (8) tennis courts and twelve (12) pickleball courts. We only have four (4) bocce ball courts. We don’t know how many persons the Recreation Center can accommodate at any one time, however, we suspect the number is legions less than 8,200. Even Diamond Peak on the busiest of holiday weekend days accommodates far less than 8,200 snowriders. Unlike the District’s water and sewer customers, if all parcel owners who are assessed the RFF sought simultaneous access to and use of any one District owned recreation facility, the District would not have the capacity to accommodate access and use. Can you the reader comprehend the state of affairs if the occupants of 8,200 parcel owners sought to simultaneously flush their toilets, and the District didn’t have the capacity to handle this volume of effluent? Where as here “there is not enough capacity available presently to service” all parcels which are assessed, “no standby fee c(an) lawfully be assessed.”25

No. 9: Do You The Reader Have Any Doubt as to Whether The District Furnishes The Availability to Access And Use Beach And District Owned Recreation Facilities to Those Privately Owned Real Properties Which Are Assessed? Because if you do, recall that Dillon’s Rule19 instructs that “if there is any fair or reasonable doubt concerning the existence of a power…(it is to be) resolved against the (local government) and the power (be)…denied.”22

For All of The Above Reasons, The RFF/BFF Are Neither “Service Charges;” “Standby Service Charges For…(Recreation) Facilities Furnished by The District;“ Nor “Charges For The Availability of“ Recreation Facilities: Because NRS 318.197(1) instructs GID “Board(s) may fix…service charges…for…services…furnished by the district,” wouldn’t you the reader expect the resolution the Board adopts each year pursuant to NRS 318.201(9)9 to specifically find that the RFF/BFF pay for recreation services furnished to those real properties which are assessed assuming such services were furnished? And for the same reason, wouldn’t you expect the Board to specifically find that the RFF/BFF pay for recreation facilities furnished to those real properties which are assessed assuming such facilities were furnished? So where are those findings? What recreation services do the RFF/BFF pay for which are allegedly furnished to those real properties which are assessed? What recreation facilities do the RFF/BFF pay for which are allegedly furnished to those real properties which are assessed?

Assuming the answer is “no,” and for all of the above-reasons, it seems pretty clear that the RFF/BFF do not represent NRS 318.197(1) charges for District owned recreation services and facilities allegedly furnished to real property. And they certainly don’t represent standby service charges for the availability of those real properties which are assessed to access and use District owned recreation services or facilities. And if we’re wrong, how is it that the only people assessed are those who own non-exempt real property in Incline Village/Crystal Bay and are expressly benefited? Why not every resident of Incline Village/Crystal Bay? And what is the authority for levying the RFF/BFF against real property when the benefits allegedly furnished are to people?

  1. See page 102 of the packet of materials prepared by staff in anticipation of the Board of Trustee’s (“Board’s”) May 27, 2020 meeting (“the 5/27/2020 Board packet”).
  2. Which allows general improvement district (“GID”) boards to “fix (in part)…recreational facilit(y)…service…and standby service charges, for services or facilities furnished by the district, (as well as)…the (mere) availability of service…”
  3. Which allows “any (GID) board which has adopted rates pursuant to…chapter (NRS 318 to)…elect to have such charges for the forthcoming fiscal year collected on the tax roll.”
  4. See page 103 of the 5/27/2020 Board packet.
  5. See NRS 318.201(9). For an example of the type of resolution, see pages 228-231 of the packet of materials prepared by staff in anticipation of the Board’s May 26, 2022 meeting (“the 5/26/2022 Board packet“).
  6. An example of that report (for fiscal year 2022-23) appears at pages 232-237 of the 5/26/2022 Board packet.
  7. See NRS 318.201(8) and (9).
  8. See ¶4 at page 229 of the 5/26/2022 Board packet.
  9. See ¶4(b) at page 230 as well as ¶I at page 234 of the 5/26/2022 Board packet.
  10. See State v. Medeiros, 89 Hawai’i 361, 366, 973 P.2d 736, 741 (1999), reasoning adopted the Nevada Supreme Court in Clean Water Coalition v. The M Resort, LLC., 127 Nev. 301, 310, 255 P.3d 247, 257 (2011).
  11. See Emerson College v. City of Boston, 39 Mass. 415, 424, 462 N.E.2d 1098, 1105 (1984).
  12. The “modification” omits the enforced contribution identifying factor (see the discussion above).
  13. See Medeiros, supra, at 973 P.2d 742.
  14. See Medeiros, supra, at 973 P.2d 742-45.
  15. See Clean Water Coalition, supra, at 127 Nev. 315; Douglas Co. Contractors v. Douglas Co., 112 Nev. 1452, 1457, 929 P.2d 253, 256 (1996); State v. Boyd, 27 Nev. 249, 256, 74 P. 654, 655 (1903); 71 Am. Jur. 2d  §13, State and Local Taxation (2001).
  16. As we’ve elsewhere discussed.
  17. A “special benefit” is one particular to the payer rather than to the general public as a whole [see Silicon Valley Taxpayers Ass’n., Inc. (SVTA) v. Santa Clara County Open Space Authority, 44 Cal.4th 431, 441-442, 187 P.3d 37, 44-45 (2008)].
  18. See Medeiros, supra, at 973 P.2d 742.
  19. Where “any 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…and filed…which…contain(s)…the amount of the charge for each…parcel of real property receiving…services and facilities.”
  20. See Washoe County Bill No. 117 amending Ordinance No. 97 adopted November 15, 1965.
  21. In other words, the necessary alleged special benefit.
  22. See NRS 318.201(11) which states “the county treasurer shall include the amount of the charges on bills for taxes levied against the respective lots and parcels of land. Thereafter, the amount of the charges shall be collected at the same time and in the same manner and by the same persons as, together with and not separately from, the general taxes for the county.”
  23. Such as one which, “presumably, bestows a benefit on the applicant, not shared by other members of society,“ like “a request that a public agency permit an applicant to practice law or medicine. Or construct a house. Or run a broadcast station” [see National Cable Television Assn. v. U.S., 415 U.S. 336, 340-41, 94 S.Ct. 1146 (1974)].
  24. A test embraced by the Nevada Supreme Court, no less, in Clean Water Coalition, supra, at 127 Nev. 315.
  25. That is, people.
  26. The Board has adopted a “Recreation Roll Policy” (see ¶1.0 of Policy No. 16.1.1) which instructs that “the Incline Village General Improvement District will charge the prescribed Recreation Fee, and if applicable…Beach Fee, to all qualifying real properties.
  27. By way of example, see pages 230-231 of the 5/26/2022 Board packet.
  28. Emerson College, supra, at 391 Mass. 424-25.
  29. As elsewhere stated.
  30. In other words it is greater than the costs of providing a service.
  31. See Douglas Co. Contractors v. Douglas Co., 112 Nev. 1452, 1457, 929 P.2d 253, 256 (1996); Clean Water Coalition, supra, at 255 P.3d 258.
  32. See Medeiros, supra, at 973 P.2d 741.
  33. That is, the amount of charges necessary to subsidize.
  34. See pages 224-225 of the 5/26/2022 Board packet.
  35. See ¶3 at page 229 of the 5/26/2022 Board packet.
  36. See page 225 of the 5/26/2022 Board packet.
  37. If not the difference between budgeted revenues and intentional overspending, please explain to us exactly what other types of overspending are not encompassed within: “debt, capital expenditure(s) and operations (required) for the District’s various recreation and beach facilities;”34 and, “required for the…proper servicing of said identified bonds and…the administration, operation, maintenance and improvement of said real properties, equipment and facilities” (see ¶II at page 235 of the 5/26/2022 Board packet).
  38. I.e., a “slush fund” which can be used by staff to spend on unbudgeted, unappropriated, and unidentified “pet” endeavors.
  39. See Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 845 P.2d 57, 62 (1993) [quoting National Cable Television Ass’n, Inc. v. F.C.C., 554 F.2d 1094, 1106 (D.C. Cir. 1976)].
  40. Fund balance represents “the residual difference between assets and other inflows and liabilities and other outflows…for budget purposes” (see the District’s “Accounting Glossary“).
  41. See page 29 of the District’s 2016 Annual Comprehensive Financial Report (“the 2016 CAFR“).
  42. See page 30 of the 2016 CAFR.
  43. See page 56 of the District’s 2022 CAFR (“the 2022 CAFR“).
  44. See page 57 of the 2022 CAFR.
  45. See Clean Water Coalition, supra, at 127 Nev. 315; Douglas Co. Contractors, supra, at 112 Nev. 1457, 929 P.2d 256; State ex rel. City of Reno v. Boyd, 27 Nev. 249, 256, 74 P. 654, 655 (1903); 71 Am. Jur. 2d  §13, State and Local Taxation (2001).
  46. The last such letter staff published was dated May 23, 2018, and the reader can find it at pages 10-18 of the 2018-19 Budget. Once members of the public learned of this admission and publicized it as proof the RFF/BFF are “taxes,” uncoincidentally, the admission was removed.
  47. Because user fees are charged at most of the District’s public recreation facilities [¶104(b) of Ordinance 7 instructs that user fees are charged at District owned recreation facilities, and PPHs receive “discounts for daily access.” ¶4(b) of the resolution the Board passes each year which adopts the RFF/BFF and orders their collection on the county tax roll6 instructs that PPHs receive “reduced rates for season passes and reduced daily rates” (see page 230 of the 5/26/2022 Board packet). Thus in addition to their assessed properties’ RFF/BFF, PPHs and punch card holders are required to pay additional user fees], regardless of whether the RFF/BFF is paid, it is those user fees which pay for the services the District furnishes.
  48. See page 606 of the packet of materials prepared by staff in anticipation of the board’s March 8, 2023 meeting (“the 3/8/2023 Board packet“) – “rates charged for…Picture Pass Holders (are less than)…the fully-loaded cost per round of golf (because)…the discounts afforded to residents and guests recognize that facility fees are assessed…specifically to cover costs of capital and debt associated with District venues.”
  49. In other words, “if those criteria (do not) fit the charge, it is a” tax (see Medeiros, supra, at 973 P.2d 742-745; Clean Water Coalition, supra, at 255 P.3d 257.
  50. See Commonwealth v. Caldwell, 25 Mass. App. Ct. 91, 94-95 (1987).
  51. See Emerson College, supra, at 39 Mass. 425.
  52. See Emerson College, supra, at 39 Mass.425-26.
  53. See Emerson College, supra, at 39 Mass. 426.
  54. See Emerson College, supra, at 39 Mass. 417-419; National Cable Television, supra, at 554 F.2d 1106-1107; Utah Office of Property Rights Ombudsman, Advisory Opinion #101, supra, at page 9 of 9.
  55. See Vanceburg v. Federal Energy Regulatory Comm’n, 571 F.2d 630, 644 fn. 48 (D.C.Cir. 1977), cert. denied, 439 U.S. 818, 99 S. Ct. 79 (1978); Medeiros, supra, at 973 P.2d 741.
  56. See Nuclear Metal v. Low Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 656 N.E.2d 563, 570 (1995); Clean Water Coalition, supra, at 255 Pd.3d 258.
  57. In other words, where special benefit services affecting public health and sanitation are physically connected, adjacent or capable of actual connection to those real properties which are involuntarily assessed.
  58. There are a whole lot more than six (6) rules or maxims. Here we concentrate on just six (6).
  59. See Arguello v. Sunset Station, Inc., 127 Nev. 365, 370, 252 P.3d 206, 209 (2011).
  60. See State Farm Mut. v. Comm’r of Ins, 114 Nev. 535, 540, 958 P.2d 733 (1998); Erwin v. State of Nevada, 111 Nev. 1535, 1538, 908 P.2d 1367, 1369 (1995) [quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990)]; and, Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1302, 148 P.3d 790, 792-793 (2006).
  61. See Saint Alphonsus Reg’l Med. Ctr. v. Gooding Cty., 159 Idaho 84, 356 P.3d 377, 382 (2015).
  62. This maxim has been expressly recognized in Nevada in SFR Invs. Pool 1, LLC v. U.S. Bank, N.A., 130 Nev. Adv. Op. 75, 334 P.3d 408, 414 (2014).
  63. See Nunez v. Sahara Nevada Corp., 677 F. Supp. 1471, 1474 (D. Nev. 1988).
  64. Such as GIDs be empowered to fix standby service charges for the availability of use of recreational facilities rather than the services it furnishes.
  65. See dissent of Justice Stevens in FMC Corp. v. Holliday, 498 U.S. 52, 66, 111 S.Ct. 403 (1990).
  66. “In Nevada’s jurisprudence, the Nevada Supreme Court has adopted and applied Dillon’s Rule to…local governments” [see NRS 244.137(2)].
  67. See A.G.O. No. 63-61, p. 102, p. 103 (August 12, 1963).
  68. See NRS 244.137(1).
  69. See NRS 244.137(3).
  70. See NRS 244.137(4).
  71. In appropriate circumstances, courts will assume that “adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording” [see Carolene Products Co. v. United States, 323 U.S. 18, 26, 65 S.Ct. 1 (1944)].
  72. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-740, 109 S.Ct. 2166 (1989).
  73. See pages 7-8 of the Congressional Research Service, Larry M. Eig, Specialist in American Public Law, Statutory Interpretation: General Principles and Recent Trends (September 24, 2014).
  74. See Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240 (1952).
  75. Go to https://oboloo.com/blog/what-are-services-definition/.
  76. Go to https://corporatefinanceinstitute.com/resources/wealth-management/service-charge/.https://corporatefinanceinstitute.com/resources/wealth-management/service-charge/.
  77. See McMillan v. Texas National Resources Conservation Comm’n, 983 S.W.2d 359, 363 (1998).
  78. See NRS 318.143(3).
  79. See ¶4(b) at page 230 of the 5/26/2022 Board packet.
  80. See page 234 of the 5/26/2022 Board packet.
  81. See that “Report For Collection on the County Tax Roll of Recreation Standby and Service Charges” ( pages 232-237 of the 5/26/2022 Board packet), the resolution (for 2022-2023 this was Resolution No. 1893) which adopts that Report and provides for their collection on the county tax roll (pages 228-231 of the 5/26/2022 Board packet).
  82. See ¶7 at page 230 of the 5/26/2022 Board packet.
  83. That’s right. Best Buy has entered the pay a fee become a member game. It’s called My Best Buy Plus and Total Memberships. Pay a yearly fee (either $49.99 for “Plus” membership, or $179.99 for “Total” membership), become a member, and now you’re entitled to preferred (i.e., “exclusive”) access and “exclusive member pricing!”
  84. See page 229 of the 5/26/2022 Board packet.
  85. Legitimate fees “are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner ‘not shared by other members of society’” [see National Cable Television Ass’n, Inc. v. F.C.C., 554 F.2d 1094, 1106 (D.C. Cir. 1976); Emerson College, supra, at 391 Mass. 424; Clean Water Coalition, supra, at 127 Nev. 315]. Here the party paying the RFF/BFF (i.e., real property) is not the one benefited
  86. This view comports with the definition of a standby service charge. The available service must be physically connected or immediately adjacent to those real properties which are capable of assessment.
  87. After all, staff and the Board label the RFF/BFF, in part, “Recreation…Service Charges” (see pages 228 and 232-233 of the 5/26/2022 Board packet).
  88. See ¶4 of that resolution at page 229 and pages 232-233 of the 5/26/2022 Board packet.
  89. See McMillan, supra, at 983 S.W.2d 365.
  90. See ¶I at page 234 of the 5/26/2022 Board packet.
  91. Although standby fees may be authorized for the availability of sewer systems, they are not for waterworks, due to unique language in the applicable state laws [see Chapman v. City of Albuquerque, 65 N.M. 228, 233, 235, 335 P.2d 558 (1959); Graham v. City of Lakewood Village, 796 S.W.2d 800, 803 (1990).].
  92. See Saint Alphonsus Reg’l Med. Ctr., supra, at 356 P.3d 377
  93. See Chapman, supra, at 65 N.M. 232; Utah Office of the Property Rights Ombudsman, Advisory Opinion No. 101, page 7 of 9 (July 6, 2011).
  94. See National Cable Television Ass’n, Inc. v. F.C.C., 554 F.2d 1094, 1106 (D.C. Cir. 1976); Emerson College, supra, at 391 Mass. 424.
  95. The Board has adopted a “Recreation Roll Policy” (see Policy No. 16.1.1). ¶1.0 of Policy No. 16.1.1 instructs that “the Incline Village General Improvement District will charge the prescribed Recreation Fee, and if applicable…Beach Fee, to all qualifying real properties. And ¶¶7-8 of that same resolution (see pages 230-231 of the 5/26/2022 Board packet) instructs that “the Washoe County Treasurer shall enter the amounts of the charges (in two separate and distinct lines items identified as Recreation Facility Fee and Beach Facility Fee) against the respective lots or parcels of land as they appear on the current Washoe County tax roll;”
  96. See Washoe County Bill No. 117 which amended County Ordinance No. 97.
  97. See page 2, line 27-page 3, line 2 of the beach deed.
  98. See page 227 of the 5/26/2022 Board packet.

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