MEMORANDUM

TO: Pete Sprague, Assembly President

Members, Kenai Peninsula Borough Assembly

THRU: Dale Bagley, Mayor

FROM: Colette Thompson, Borough Attorney

Holly B. Montague, Assistant Borough Attorney

Max Best, Planning Director

DATE: August 5, 2004

SUBJECT: Ordinance 2004-29, regarding filing fees for appeals to the board of adjustment by indigents

Please find enclosed a necessary revision to the board of adjustment code, KPB Chapter 21.20.  Recently, the Alaska Supreme Court ruled that due process rights are violated when an indigent cannot appeal to a board of adjustment due to financial hardship. (Varilek v. City of Houston and Matanuska-Susitna Borough, 2004 WL 1418696 (Alaska June 25, 2004).  The court noted that the Mat-Su Borough offered no alternatives to indigent appellants such as a waiver, fee reduction, or payment plan.  The court also noted that access to the courts is also denied by a borough's failure to accommodate indigent appellants because such appellants are required to exhaust their administrative remedies at the borough level prior to being entitled to file an appeal with the court.  Such an indigent appellant would be denied access to the courts if their appeal is initially rejected for failure to pay the filing fee at the borough BOA level. A financial statement form modeled after the state court system's form for indigence is enclosed along with a change to the code that would allow the BOA chair to waive the filing fee, reduce the fee, or provide for a payment plan. The filing fee is currently $300 pursuant to KPB 21.20.250(A).