MEMORANDUM
KENAI PENINSULA BOROUGH
LEGAL DEPARTMENT
144 N. Binkley Street Tel. (907) 262-8609
Soldotna, Alaska 99669 Fax (907) 262-8686
TO: Pete Sprague, Assembly President
Members, Kenai Peninsula Borough Assembly
THRU: Dale Bagley, Mayor
FROM: Colette G. Thompson, Borough Attorney
Shane Horan, Borough Assessor
DATE: April 20, 2004
SUBJECT: Ordinance 2004-05, Board of Equalization procedures
Proposed Amendments
Following is a description of the amendments in the proposed Ordinance 2004-05 substitute. Many of these amendments were contained in the original ordinance but some have been moved to different sections, and there are some new provisions. While the administration respectfully disagrees with the legal conclusions drawn by ConocoPhillips and Tesoro Alaska Company in the comments their representatives submitted to the assembly at the March 16, 2004 assembly meeting, as a matter of policy the administration recommends that the assembly consider enacting the attached substitute Ordinance 2004-05.
1. Discovery: KPB 5.12.055 is amended by changing the discovery timeline to relate to the date the appeal is filed and to eliminate the word "directly" from the former requirement that discovery requests be "directly relevant" to the valuation. Also, the board president is given authority to grant additional time for discovery and to allow additional discovery requests for good cause shown. The amendment includes some of the factors the president shall consider in deciding whether to grant any such requests.
2. Evidence at Hearing: The provisions formerly proposed as an amendment to KPB 5.12.060(J) regarding evidence have been moved to KPB 5.12.060(G) as that paragraph is more appropriate for the subject matter than was (J). Additional changes have been made to allow witnesses to illustrate oral testimony by writing on a board during the hearing, so long as no new evidence is presented. The word "factual" is deleted as it is redundant with the term "evidence." Also, in subparagraph (G) (3), a party who fails to provide requested discovery is given an opportunity to show why it should not be precluded from using such information before the sanction is imposed.
3. Equal Time: The following sentence is inserted at the end of subparagraphs (I) and (J) as each paragraph separately describes the process to be followed by each party: "Both parties shall be given an equal opportunity to respond to all questions asked of either party by any board member."
4. Failure to timely provide evidence: Former section 3 is now section 5. It has been revised to provide that if an appellant fails to provide the assessor with access to property and records relating to the value of property, the party is precluded from offering evidence on the issues affected by that lack of access, and a presumption is created in favor of the assessor on such issues. The previous language said that the issue "shall" be decided in favor of the assessor. Creation of a presumption is less onerous as it leaves the party with a chance to rebut such a presumption. Also, new language gives the appellant an opportunity to show why they should be allowed to offer other evidence on the issues affected by the lack of access and why the presumption in favor of the assessor should not be imposed.
5. Record on Appeal: Existing section 4 of the ordinance is deleted. It amends KPB 5.12.060(S) regarding appeals to superior court, but the amendment duplicates existing language in the ordinance.