Beach Deed Opinion Released-IVGID employee access not authorized
UPDATE: March 27, 2023 – In the March 22, 2023 IVGID Board Meeting, Chair Dent proposed spending ANOTHER $50,000 on legal services with Thorndal regarding the Beach Deed. This item has been deferred to April 5, 2023 as the agenda item lacked “supporting infomation” (per the meeting synopsis provided by IVGID). Once again, residents will have to lobby the Trustees so their taxpayer funds are not wasted. CLICK to send an email to trustees.
On February 27, 2023, legal firm Thorndal finally released a written legal opinion regarding employee access of the private beaches. The opinion was included in the Board packet of March 8, 2023.
The opinion states, “As to these questions, our office has concluded that, under the most prudent interpretation of the Beach Deed, non-resident IVGID employees are not authorized to use the beach properties, as they are not included in the description of authorized users of the beach properties set forth in the Beach Deed. The same reasoning applies to non-resident Gold and Silver card members and such individuals are not authorized to use the beach properties, as they are not included in the description of authorized users of the beach properties set forth in the Beach Deed.”
Residents might ask: If employees are NOT authorized to use the beaches, why did the IVGID Board of Trustees allow this? Because their legal counsel at the time, Geno Menchetti, told them they could. Mr. Menchetti, now deceased, apparently gave the Board bad legal advice. If you read the minutes of the Board meeting, Mr. Menchetti came up with the idea that employees could be “guests” of IVGID during the meeting. The Board wanted to do something – and Mr. Menchetti rather than researching the question – gave an off-the-cuff remark. The Board grabbed onto it like a life raft. It made no sense as IVGID never paid the assessment to buy the beaches – the residents did through assessments (aka the Recreation Facility Fee). Mr. Menchetti never put anything in writing regarding this matter; he simply facilitated what the Board wanted to do rather than providing reasoned written legal advice.
Residents need to be aware of this kind of interaction between the Board and their legal counsel. In 2002, the Harvard Business Review published, “Can you trust your lawyer”? All Board members, including licensed attorney David Noble, should read this article. Its conclusion: “That’s why it’s all the more important that you get legal advice in writing, record any oral communications from your lawyers in contemporaneous private memos, demand in writing that your lawyers inform you of suspected illegality, take action to investigate and stop that illegality, and keep your board informed. If you don’t take those basic precautions, you’re asking for trouble.”
The engagement letter (contract) with Thorndal included an opinion as a deliverable. However, after paying $42,950, a written opinion was not provided. And now that an opinion has been provided, it is clear as to the reasons why.
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Thanks to all trustee’s and public who fought to get a written opinion instead of settling for a hidden verbal opinion. It is vital that IVGID operate with full transparency. Thanks also to this site for keeping the residents informed while giving an outlet for reasoned views and analytical opinion pieces.
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Do gold and silver card members refer to guests of the Hyatt? Do guests of the Hyatt have access to the Incline Village private beaches?
Gold and silver cards are privileges granted to 20-year and 10-year employees See http://ourivcbvoice.com/wp-content/uploads/2022/04/IVGID_employee_privileges_2021.png
Hyatt guest access is still confusing. The Beach Deed allows hotel/motel access. BUT the Hyatt currently pays TWO Recreation Fees, rather than a fee for each of its 420+ rooms. Ordinance 7 – Rule 77 (Feb 23, 2023 Board meeting) states
77. Occupants of Hotels & Motels shall be provided access to the Beaches, if any, consistent with the terms of the Beach Deed and through a District verification and administration process. This process, at a minimum, shall include the payment of a Hotel/Motel Occupant fee and include a reasonable limitation [emphasis added – no definition given] on the maximum number of Hotel/Motel Occupant to be provided access per Hotel/Motel. Access shall be limited to occupants of the Hotel or Motel during the time that they are occupants, and not before check-in or after check-out from the Hotel/Motel. SEE PAGE 26 of https://www.yourtahoeplace.com/uploads/pdf-ivgid/F.7._-_Ordinance_7_-_2022_Redline_01_30_2023_SL_(1)_(003)_SUPPLMENTAL_ADDED_2_16_2023.pdf
Our advice is: Email your Trustees with your concerns. If the Hyatt is paying TWO recreation fees, rather than fees for each of its 420+ rooms, should its guests have beach access?
No they shouldn’t. As a 25year resident here, I have seen the beaches and boat launch parking lots so overcrowded it can’t be from just locals. There are times I can’t even get into the place. If the Hyatt wants to give beach access to it’s guests then it needs to pay an amount equal to the number of ‘rooms’ or ‘residents’ it allows access to.
Interesting issue regarding the Hyatt. But does it matter? The Hyatt has its own beach, so does the beach get any overflow from the Hyatt?
And how does the staff know if someone is a Hyatt guest after check in and before check out? I suggest since the Hyatt pays for two, the Hyatt front desk have a form to give guests that want to use the beach and that form gets the Hyatt guest in (and Hyatt only can give out two per day).
Hyatt guests walk over to Incline Beach. Especially when there is music. This may change now that Hyatt has a ‘Beach’ bar
Without an IVGID attendant at the fence on the beach between the Hyatt beach and Hermit Beach, Hyatt guests have wide open access to Hermit, Ski and Incline beaches. At one time there was (is?) a sign at the Hermit/Ski Beach bridge advising Hyatt guests to visit their Concierge for Incline beach passes. Also, at one time legitimate beach pass holders were issued “concert bracelets”. But people who visited Ski Beach by boat from CA or kayak from Sand Harbor were not, and still are not challenged. And. nobody wants to wear a plastic bracelet for a day at their beach, anyway. We are told that our beaches are not “private”, but “restricted entry”. Should say “restricted entry only if entering from Lakeshore Blvd.”
Thank you for your comment and sharing your perspective.
The lack of controls on the beaches is an issue. The first weekend after Labor Day weekend – 2022, the gates were not staffed in the mornings for Burnt Cedar (Saturday) and Incline Beach (Sunday). We have photos documenting this; I am sure many residents have observed other similiar situations.
Controls are an area where IVGID needs to improve – the Beaches are one area; financials are another.
An excellent summary of the issues involving employee access. As an owner of our private community beach, it is my opinion that many owners here do not realize the precious value of this exclusive feature of ownership. I would guesstimate that this access feature is probably worth $100,000 per owned parcel.It is very important to protect this asset. The beach deed is very clear and the legal opinion is totally correct. As long as it does not facilitate discrimination, a deed is THE LAW governing that piece of property. Violation of the deed restriction is called an encroachment. As a veteran of a long encroachment litigation, I can assure my fellow property owners that it is not fun and it is costly. Thank you to our three Trustees for saving our beaches from this encroachment.
What is the item F2 on the agenda for the meeting tomorrow (3/22) re another contract for $50,000 to further study the beach deed issue?
I note that the staff recommendation suggests that staff might get into legal “landmines” without this additional legal study.
Is it staff that keeps driving this beach access study at taxpayers expense?
This question needs to be addressed to the Trustees, in particular Chair Dent. The agenda is created by GM Winquest and Chair Dent. Who drives it – the GM or the Chair?
Multiple residents believe the GM drives the agenda. Since time is of the essence, a phonecall rather than email is likely preferred.
There was additional information that was NOT included in the very brief opinion letter that Thorndal issued. This information needs to be released. But there should be no payment needed for this.
For those who want to read a longer opinion, read Wright v. Incline Village Gen. Improvement Dist., 665 F.3d 1128 (9th Cir. 2011)
Court of Appeals for the Ninth Circuit
The beaches are not public thoroughfares. Persons who do not own or rent a portion of the 1968 property are, with minor exceptions, not given access to the beaches. Instead, to be admitted to the beaches, a person must display identification to a guard at a kiosk showing eligibility for beach access. Although the kiosks are generally not staffed in the late fall, winter, and early spring, and the restrictions on beach access are not aggressively enforced during those seasons, Ordinance 7 clearly states that limitations on beach access still apply.
Only the owners of the 1968 property paid for the acquisition and improvement of the beaches, and the admission of the general public to the beaches would violate the restrictive covenant, which can be enforced by both the IVGID and private property owners within the 1968 property. The restrictive covenant specifies that the beaches are to be “held, maintained and used by [IVGID] … only for the purposes of recreation by, and for the benefit of, [the 1968 property] owners and their tenants….” Although there have been some de minimis exceptions, the beaches have been used almost exclusively by owners and tenants of the 1968 property.
https://www.courtlistener.com/opinion/619867/wright-v-incline-village-gen-improvement-dist/?q=%22incline%20village%20general%20improvement%22
[March 22, 2023] There are NO DELIVERABLES in the Engagement Letter that Chair Dent proposed with Thorndal legal firm. NONE. If this goes through, residents pay $50K and get NOTHING. Just “review”. If our Trustees need legal training, and one is already a Nevada bar lawyer, this is not the appropriate way to provide it.
Another $50,000 9n legal fees? How about using this money to staff the area to control= Hyatt access to the beach and to control access by boaters. But what’s money??? Legal fees, constant ‘studies, proposals.