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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Black v. Municipality of Anchorage (07/18/2008) sp-6287

Black v. Municipality of Anchorage (07/18/2008) sp-6287, 187 P3d 1096

     Notice:  This opinion is subject to correction before
     publication in the Pacific Reporter.  Readers are
     requested to bring errors to the attention of the Clerk
     of the Appellate Courts, 303 K Street, Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12639
Appellant, )
) Superior Court No. 3AN-05-09474 CI
v. )
) O P I N I O N
BOARD OF EQUALIZATION, ) No. 6287 July 18, 2008
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Michael L. Wolverton, Judge.

          Appearances:  Craig Wm. Black, pro se,  Eagle
          River,   Appellant.    Joshua   M.   Freeman,
          Assistant  Municipal Attorney, and  James  N.
          Reeves,  Municipal Attorney,  Anchorage,  for

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, and Winfree, Justices.  [Matthews,
          Justice, not participating.]

          FABE, Chief Justice.

          An   owner   of  a  condominium  unit  in  a  community
consisting  of  single-family homes  on  large  parcels  of  land
appealed  the Municipality of Anchorages assessment  of  property
taxes.  The owner claims that the Municipality erred by assessing
taxes   against  the  land  under  and  around  his   stand-alone
condominium  unit and by inaccurately assessing the homes  value.
The  owners appeal to the Board of Equalization was unsuccessful,
and  the  superior  court  affirmed the  Board  and  awarded  the
Municipality  attorneys  fees.   The  owner  appeals  the  Boards
decision  and  the  superior  courts  award  of  attorneys  fees.
Because  we  conclude that the land is a limited  common  element
associated with the condominium and is thus taxable to the  units
owner, we affirm the Boards ruling.
          Craig Black purchased a condominium unit in Eagle River
in  2001.1   He paid $435,000 for the condominium unit,  a  self-
contained four-bedroom single-family residence unconnected to any
other  structures in the common interest community,2 and  located
on  almost  an  acre of land;3 the unit had been built  in  1998.
Blacks  condominium unit is part of Whitestone Estates, a  common
interest  community that sits on 20.3 acres.  Ten of the fourteen
potential  condominium unit sites have been developed, each  with
its own self-contained, single-family residence on a large parcel
of  land  specifically associated with the residence.  Whitestone
Estates  is governed by a declaration and three plans, on  record
at  the district recorders office.  The Municipality of Anchorage
assessed  property taxes against Black in 2001,  2002,  and  2003
based on the value of his condominium unit but did not separately
assess  taxes  on the land associated with his condominium  unit.
In  2004  the  Municipality assessed Blacks condominium  unit  at
$355,100  and the land at $58,200, for a total assessed value  of
$413,000.  Black appealed and the Board of Equalization ruled two-
to-one to assign no value to the land, but to increase the  value
of the condominium unit to $435,000.
          In  2005 the Municipality again assessed property taxes
based on the value of Blacks land and condominium unit.  The land
was  valued  at  $58,200 and the condominium  unit  at  $400,400.
Black again appealed to the Board.  He presented two arguments in
his appeal: first, that the land should not have been assessed to
his  condominium unit and second, that his condominium  unit  had
been  overvalued.   He  proposed a  revised  total  property  tax
assessment of $294,000.
          In his appeal, Black maintained that Whitestone Estates
declaration  defined  his condominium unit as  simply  his  self-
contained residence, not the 39,865 square feet (nearly one acre)
of  land  on which the condominium unit was located.  He disputed
the  Municipalitys characterization of Whitestone  Estates  as  a
planned  community and contended that the land for which  he  was
being  assessed was part of the Whitestone Remainder,  which  was
already  being  taxed by the Municipality.  Black further  argued
that  the  Municipality was bound by the Boards 2004 decision  on
his  appeal  and  that its failure to follow  its  own  precedent
violated his due process rights.  Finally, Black argued that  the
Municipality  had overvalued his condominium unit  based  on  the
comparable homes selected by the Municipality.
          In  a  hearing  before the Board on May  5,  2005,  the
Municipality  defended  its  valuations  of  the  land  and   the
condominium   unit.    The  Municipality  maintained   that   the
condominium unit was unique because it was situated  on  a  large
condo  tract[].  The Municipality contended that the most typical
and  most realistic comparable sales to Whitestone would be free-
standing  single-family homes.  The Municipality maintained  that
          [were] not alleging that [Black owns] the land that [the
condominium] sits on, were alleging that theres an interest  that
needs to be . . . allocated.
          At the conclusion of the hearing, the Board unanimously
agreed with the Municipalitys position.  In its discussion, Board
members recognized that the Municipality did not generally assess
the land surrounding condominium units for property tax purposes,
but  found  that  here  theyve got fairly substantial  pieces  of
property.  Because of the size of the land associated with Blacks
condominium unit, Board members found that somebodys got  to  pay
taxes  on  this  land,  and  that since  Black  clearly  has  the
inclusive  use  of  [the  land  in question],  the  Municipalitys
calculation  was  done in as honest a way as  could  [have  been]
done.   The  Board  found  that the  amount  of  the  assessment,
$458,600,  was  appropriate given Blacks 2002 purchase  price  of
$435,000  and the time value of sales.  At that point, the  Board
discussed  whether  to  shift the entire assessed  value  to  the
building  category,  as  it had done in Blacks  2004  appeal,  or
whether  to  simply  affirm the Municipalitys  methodology.   The
Board  ultimately  affirmed the Municipalitys assessment  without
          Black  appealed  the Boards decision  to  the  superior
court, which affirmed the Board.  The Municipality then moved for
an  award  of  half  of its attorneys fees under  Appellate  Rule
508(e).4   It  argued that it was the prevailing party  and  that
Blacks  appeal  was  completely  meritless.   Black  opposed  the
Municipalitys  motion, maintaining that the motion  was  untimely
under  Rule  508(e) because it was filed following  the  superior
courts  order  affirming  the  Boards  decision,  that  the  fees
requested by the Municipality were excessive, and that his appeal
was  not frivolous.  The superior court granted the Municipalitys
motion, awarding it fifty percent of its fees, or $4,510.75.
          Black  appeals  the Boards decision  and  the  superior
courts award of attorneys fees.
     A.   Standard of Review
          In  appeals of administrative agency decisions,  we  do
not  defer to superior court rulings.5  Instead, we evaluate  the
merits   of   agency  decisions  directly.   Because   Board   of
Equalization decisions involve[] questions of fact and  law  that
involve  agency expertise, they are reviewed under the reasonable
basis standard.6  We review awards of attorneys fees for abuse of
discretion,7  which we find when we are left with a definite  and
firm conviction based on the record as a whole that a mistake has
been made.8
     B.   The  Land Associated with Blacks Condominium Unit Is  a
          Limited   Common   Element   Appurtenant   to    Blacks
          Condominium Unit.
          The  term condominium refers to a form of ownership  in
which  a  buyer owns a unit with an additional property ownership
interest  in  the  developments common  property.9   This  common
property  can  be either a common element10 or a  limited  common
element.11   Limited common elements are portions of  the  common
          property that are reserved for the use of one or more, but less
than   all,  owners.12   Limited  common  elements,  like  common
elements,  are  owned  by  the  condominium  association  members
themselves.13  In the condominium form of ownership,  the  owners
own  their  property  individually in fee  simple  or  other  fee
interest . . . .  In addition, however, the owners also  have  an
undivided  interest in the common property, an interest  that  is
appurtenant to the unit.14
          Black  contends that because the declaration and  plans
on file at the district recorders office do not classify the land
associated with his condominium unit as a limited common element,
it  was  inappropriate for the Municipality to tax him  for  that
land.   We disagree that the declaration and recorded plans  fail
to   classify   the  land  in  question.   The  recorded   plans,
declaration,  and  Blacks  own testimony  about  actual  use  all
support  the  conclusion  that the land  associated  with  Blacks
condominium unit is a limited common element.
          Three  Whitestone  Estates  development  plans  are  on
record with the district recorders office.  Plats and plans are a
part  of the declaration and are required for all common interest
communities except cooperatives.15  Together with the declaration,
the  plans provide a legally sufficient description of  the  real
estate included in the common interest community.16  Black  urges
us  to  disregard  all  three  of the  recorded  plans  which  he
considers  illegible.  But close scrutiny of  one  of  the  plans
allows  the reader to make out a legible heading, titled  Limited
Common Interest Lot Area, which appears to allocate 39,865 square
feet, or approximately 0.92 acres, to Blacks unit.
          This  allocation is consistent with the large  plan,  a
large  (24  by  36),  legible,  but  unrecorded,  plan  that  the
Municipality  produced before the Board hearing.17 Neither  party
disputes that the large plan was not recorded and therefore forms
no   part  of  the  legal  description  of  the  common  interest
community;  however,  it  is  a  legible  development  plan   for
Whitestone Estates and allocates the same amount of land to Black
as  the recorded plan  39,865 square feet, or 0.92 acres  in  the
form  of  a  limited  common interest lot.   The  large  plan  is
persuasive evidence because it mirrors the allocation in at least
one of the recorded plans.
          Furthermore,   while  parts  of  the  declaration   are
ambiguously worded, at least two sections indicate that the  land
associated  with  Blacks condominium unit was  a  limited  common
element.18    First,  the  declaration  includes  the   following
          The  Declarant  expressly reserves,  for  the
          benefit  of  each  Unit Owner,  an  exclusive
          easement  for use of those areas depicted  on
          the  Plans  or otherwise described herein  as
          Limited Common Elements, as assigned to  each
          Unit Owner for his or her numbered unit.
There  would have been no reason to reserve an exclusive easement
for  use of those areas . . . assigned to each Unit Owner for his
or  her  numbered unit if those areas were intended to be  common
elements.  Common elements are owned by (and accessible  to)  all
condominium unit owners; limited common elements are owned by all
condominium unit owners, but are only accessible to the owner  of
the appurtenant condominium unit.19  It is therefore reasonable to
infer  that  this  passage  refers to the  land  associated  with
individual condominium units.
          Additionally,  the  declarations landscaping  provision
supports  a  conclusion  that  the  lot  associated  with  Blacks
condominium  unit is a limited common element.   The  declaration
states  that  [a]ll  Limited Common Elements must  be  landscaped
following  construction of the Unit to which [they are] attached,
and  within  the time period mandated by the Board.   The  notion
that  the  limited common elements are attached to  a  particular
condominium  unit,  and that those elements must  be  landscaped,
supports the inference that the land surrounding each condominium
unit  is a limited common element associated with the condominium
unit to which it is attached.
          Finally, Blacks own testimony about actual use supports
our  conclusion  that the land in question is  a  limited  common
element.20   In  his testimony before the Board, Black  indicated
that  he,  as is common practice in a common interest  community,
would  need to obtain permission from the condominium association
in  order to build a greenhouse fifty feet behind his condominium
unit.   But  when the Board asked whether other condominium  unit
owners  would be able to put a greenhouse on . . .  the  back  of
what  is  marked  as  [Blacks]  property,  Black  responded  that
although  theoretically  they could  do  so  [i]f  they  got  the
approval of the association, because Black knew everyone  in  the
neighborhood,  [he  was] pretty confident  that  that  would  not
happen.   This  testimony reflects unit owners treatment  of  the
land  associated with their condominium units as  limited  common
          Based  on the record as a whole, we are convinced  that
the land in question is a limited common element.
     C.   Limited Common Elements Are Taxable to the Owner of the
          Condominium Unit to Which They Are Attached.
          Alaska  Statute 34.08.720 governs taxation of  property
in common interest communities and provides in relevant part:
               (b)  In a condominium or planned community,
                    (1)   . . . each unit that has been
               created,  together with its interest  in
               the common elements, constitutes for all
               purposes  a  separate  parcel  of   real
In  Whitestone Estates, limited common elements are a portion  of
the  Common  Elements  allocated by the Declaration,  or  on  the
plans, for the exclusive use of one or more but fewer than all of
the  Units.   For taxation purposes, limited common elements  are
subsumed  under  the  interest in  the  common  elements  of  the
condominium unit to which they are attached.21  Because the  land
under  and  around  Blacks condominium unit is a  limited  common
element,  it forms a part of his interest in the common elements.
The Municipality can therefore tax Black for his condominium unit
and for the limited common element attached to his unit.
     D.   The  Assessment of Real Property Taxes Did Not  Violate
          Blacks Right to Equal Protection Under the Law.
          Black  claims  that  the  Board valued  his  Whitestone
Estates  condominium   unit differently  than  other  condominium
units  in  the  Municipality of Anchorage and that therefore  his
constitutional  right to equal protection  under  the  law22  was
violated.  The Municipality maintains that other condominiums are
treated  differently  because  the  average  yard  space  for   a
condominium  in  Anchorage is only 2,000 to  3,000  square  feet,
while  Black  has  a  huge interest of land  allocated  to  [his]
exclusive use.
          A  threshold question in our equal protection  analysis
is   whether   similarly  situated  groups  are   being   treated
differently.23  If it is clear that the two groups in question are
not  similarly situated, this conclusion necessarily implies that
the different legal treatment of the two classes is justified  by
the differences between the two classes. 24  And [w]here there is
no  unequal treatment, there can be no violation of the right  to
equal  protection  of law.  In the absence  of  any  evidence  of
disparate  treatment, there is no basis for an  equal  protection
          Whitestone  Estates  condominium unit  owners  are  not
being  treated differently from other condominium unit owners  in
the  Municipality of Anchorage.  All condominium unit owners  are
taxed  on the unit . . . together with its interest in the common
elements.26  Whitestone Estates condominium unit owners are taxed
in the same manner as other condominium unit owners in Anchorage:
the Municipality taxes  their units as well as their interest  in
the  common  elements,  including  the  limited  common  elements
attached to their condominium units.
          The  only possible difference between the Municipalitys
taxation of other condominium units and Blacks Whitestone Estates
condominium  unit  is  in its breakdown  of  the  property  taxes
between  the  building  and  land components.   In  appraising  a
condominium unit, the Municipality usually attaches a value  only
to  the building component, zeroing out the land component.   But
in  Blacks case, the Municipality chose to attach a value to both
the  building  and  the land, as it generally does  with  single-
family  homes.  This is a logical choice since the land  attached
to  Whitestone  Estates condominium units is  at  least  thirteen
times  the size of the land attached to average condominium units
in Anchorage.27  In other words, the Municipality is taxing Black
for  the limited common element attached to his condominium unit,
just  as  it does for other condominium unit owners.  But because
of  the  nature  of the limited common element, the  Municipality
classifies it as land rather than grouping it under the  building
component  of its appraisal.  To the degree that this distinction
in  classification is material for equal protection purposes,  it
is  justified  because Black is not similarly situated  to  other
condominium  unit  owners:  the undisputed  evidence  shows  that
Blacks  condominium unit sits on a yard that is many times larger
          than the average condominium yard size in Anchorage.  Thus, the
Municipalitys  appraisal did not violate Blacks  right  to  equal
protection under the law.
     E.   The  Board of Equalization Did Not Violate Blacks Right
          to Due Process.
          Black  argues  that  the  Boards  ruling  on  his  2004
property  tax  appeal  established  the  precedent  that   Blacks
condominium  should not have been assessed for any  land.   While
the  Municipality does not dispute that Blacks  2004  taxes  were
listed  under  the  building category,  it  contends  that  [t]he
[Board] in 2004 did not hold Blacks land had no value.  Rather in
2004 the [Board] decided to zero out the land and put it all into
the building.
          We  disagree  that the Boards 2004 decision adjudicated
the  question whether the land associated with Blacks condominium
unit  was taxable, and to whom.  The specific reasoning  for  the
Boards  2004 decision is difficult to discern.28  But it  appears
from  the hearing transcript that the majoritys opinion was based
on  its desire to harmonize the valuation methodology it used for
the  condominium units in Whitestone Estates with the methodology
used for other condominiums in the Municipality of Anchorage.
          This reasoning does not imply that the Board found that
the  land  under and around Blacks condominium unit had no  value
and  that,  as  Black argues, the 2004 assessment was  ultimately
based  solely on the value of his building.  Instead, it  implies
that  whatever  the  value of the land under  and  around  Blacks
condominium  unit, the Board elected to lump that  sum  into  the
value  of the condominium unit so that all condominium owners  in
Anchorage would have property tax assessments that were  facially
comparable  assessing taxes under the building category  but  not
the  land  category.  The Board increased the  condominium  units
assessed  value from $413,300 to $435,000, presumably to  reflect
the value of the land under and around Blacks condominium.
          Furthermore,  even assuming that the  Board  based  its
2004 decision on the theory that the land under and around Blacks
condominium  unit  had  no  value, as Black  himself  recognizes,
administrative agencies like the Board of Equalization can change
their rulings from prior years if they first provide[] a reasoned
and  supportable basis for reaching a different result.  In their
discussion  of Blacks 2005 appeal, Board members fully  explained
their  reasons  for  favoring a different method  of  calculating
property  taxes  for Whitestone Estates condominium  units.   The
Board  came  to  the  consensus that because  Whitestone  Estates
condominium units feature significantly larger plats  than  other
condominiums  in Anchorage, a different method of  valuation  was
merited in this case.
          Because  the  Board did not adjudicate  whether  Blacks
land  was taxable in its 2004 decision and because it provided  a
reasonable explanation for why it reached its decision  in  2005,
its  different outcome in the later appeal was neither  arbitrary
nor capricious.29
     F.   The  Board  of Equalization Did Not Err in Refusing  To
          Reduce  the  Building Component of Blacks Property  Tax
     Assessment from $400,400 to $294,000.
          Black  contends  that the Board erred by  declining  to
reduce  the  assessment of his condominium unit from $400,400  to
Blacks  proposed $294,000.  He claims that the [Board]  summarily
concluded,  on  the  basis  of nothing,  that  since  Black  paid
$435,000  for  his condominium [unit] in May 2002,  then  it  was
probably appropriate to approve the [Municipalitys] valuation  of
$58,200  for land and $400,400 for building in 2005.  Because  he
maintains that the Board failed to articulate a substantial basis
for  its decision, Black argues that we should direct the [Board]
to  revise  the  building  component  of  Blacks  condominium  to
$294,000, which is the average of the two comparables Black feels
most closely approximate the value of his condominium unit.
          The  Municipality  contends that the assessor  had  the
discretion  to  determine  the  full  and  true  value   of   the
condominium  and that the municipal assessor did  not  abuse  his
discretion in this case.30  The Municipality points out that  the
total assessed value  $458,600  is only 5.4 percent more than the
total  Black  paid  for  his  interest  in  the  common  interest
community  $435,000.
          Appraisal of property in Anchorage is governed  by  the
Alaska  Constitution,31 Alaska Statutes, and Anchorage  Municipal
Code.   Anchorage Municipal Code 12.15.030A mandates  that  [t]he
assessor shall assess real property at its full and true value as
of  the  first day of the assessment year, except as provided  by
state  law.   Alaska Statute 29.45.110(a) provides,  in  relevant
          The  assessor  shall assess property  at  its
          full  and true value as of January 1  of  the
          assessment  year . . . . The  full  and  true
          value   is  the  estimated  price  that   the
          property  would bring in an open  market  and
          under  the  then prevailing market conditions
          in  a  sale  between a willing seller  and  a
          willing   buyer  both  conversant  with   the
          property  and  with prevailing general  price
While  these  provisions offer some broad guidance,  the  precise
method  for  determining the full and true value of  property  is
within the assessors discretion.32
          In  order to estimate the full and true value of Blacks
interest,  the  assessor  selected five properties  and  compared
their values to the value of Blacks condominium unit.  All of the
comparables were single-family homes.33  The base costs of  these
homes  ranged from $260,000 to $305,800, while Blacks condominium
units base cost was $338,600.  The average base cost of the  five
comparables was $279,400.34
          When  the Board decided Blacks 2005 appeal, it did  not
address  the  comparables to determine whether Blacks condominium
unit  had  been fairly assessed. Instead, the Board  focused  its
discussion on whether to assess property taxes against  the  land
under  and  around Blacks condominium unit, then determined  that
          $458,600 was a fair amount to use as the assessed value.  As one
Board  member concluded, [t]he bottom line is, 2002, he willingly
paid  $435,000 for his house, and whats the value today?  I think
that [$458,600] is not clearly excessive or over-value.  Once  it
decided  to  affirm the Municipalitys total assessed  value,  the
Board  turned  to the decision of how to allocate  that  assessed
value, and ultimately affirmed the Municipalitys allocation.
          Black  purchased  his interest in the  common  interest
community  for $435,000 three years prior to filing this  appeal.
Given the statutory guidance provided to assessors  that the full
and  true  value  is the estimated price that the property  would
bring  in  an  open  market and under the then prevailing  market
conditions35  the Board had a reasonable basis for concluding that
$458,600  was an appropriate total assessed value.  This reflects
an  increase of approximately five and a half percent36 over  the
course  of  one  year,37 a modest increase given  the  appraisers
estimated 8 to 11% per year market appreciation for single family
homes in the Municipality of Anchorage from 2001 to 2004.
          While  the  Boards failure to discuss  the  discrepancy
between  the cost of the comparables and the valuation of  Blacks
interest  is  of  some  concern,38 given the  deference  we  show
assessors in their valuation of real property,39 we cannot say the
valuation was erroneous.
     G.   No Other Landowner Is Paying Property Taxes on the Land
          Surrounding Unit 1.
          Black  also contends that he should not be held  liable
for  taxes  on  the  land under and around his  condominium  unit
because another landowner is already being taxed for the land  in
question.   He  maintains that in a condominium development  like
Whitestone  Estates, the remainder is that portion  of  the  real
estate not designated for common ownership.40  Black argues  that
the  owners  of  Unit 7 own the remainder, for  which  they  were
originally  assessed $753,100 in 2005.  He further contends  that
this  remainder  comprises all of the land in Whitestone  Estates
except the condominium units themselves.
          The  Municipality contends that [t]he [r]emainder owned
by  the  owners  of  [U]nit  7 and the  limited  common  elements
allocated   to  Black  are  not  the  same  land.  Instead,   the
Municipality  argues, the remainder consists of  the  development
rights  to  unit 11  which has not been built  and to  the  large
undeveloped section in the extreme southwest corner of the map.
          Black points to no evidence that the remainder is other
than  as  described  by the Municipality.   As  the  Municipality
          [O]ther remainder parcels . . . usually  have
          . . . public sewer and public water[, but the
          Whitestone   Estates  remainder   is]   [l]ow
          density  because  it [did]  not  have  public
          sewer  and public water, its well and septic.
          It  should have been valued [as] low  density
          land.   Its the only one we have valued  that
          way  because  its the only one that  is  this
Because  Black  provided no evidence to refute the  Municipalitys
explanation of what constitutes the Whitestone Estates remainder,
the  Board  of Equalization had a reasonable basis for concluding
that  the Municipality was not double-taxing the  property  under
and around Blacks condominium unit.
     H.   The  Superior  Court  Did  Not  Err  in  Its  Award  of
          Attorneys Fees.
          Black  contends  that the superior courts  decision  to
award  the  Municipality  fifty percent  of  its  attorneys  fees
represents  an  abuse of discretion and should be  eliminated  as
contrary  to  the  appellate rules or,  in  the  alternative,  be
greatly  reduced to be in-line with the fees customarily  awarded
in  administrative appeals.  He maintains that the superior court
misapplied  Rule 508(e) by allowing the award of  attorneys  fees
following  its  decision affirming the Board,  because  the  rule
indicates  that [i]f such an allowance is made, the  clerk  shall
issue an appropriate order awarding fees at the same time that an
opinion  or an order under Rule 214 is filed.  (Emphasis  added.)
Black  further argues that the fee award was excessive under  our
ruling in Stalnaker v. Williams,41 and suggests a maximum award of
          Neither  the  Municipalitys choice to file  a  separate
motion  for  attorneys fees nor the amount of the attorneys  fees
awarded was error.  As the Municipality argues, attorney fees may
. . . be awarded in response to a separate motion42 provided that
it  is  filed  within  a reasonable time period.43   This  courts
settled interpretation of Rule 508(e)44 leaves no doubt that  the
Municipality  did  not  err by filing  its  separate  motion  for
attorneys  fees just seven days after learning that  it  was  the
prevailing party.45
          In  response  to  Blacks argument that  the  award  was
excessive,  the  Municipality contends that the  superior  courts
award  of  half  of its attorneys fees was not an  abuse  of  its
discretion.  We agree.  Blacks reliance on Stalnaker is puzzling,
given  that  an  award of eighty-six percent of actual  attorneys
fees  was affirmed in that case, whereas the superior court  only
awarded  the  Municipality fifty percent of its actual  attorneys
fees.46   We have previously limited awards under Rule 508(e)  by
indicating  that the award should only partially  compensate  the
prevailing  party for attorneys fees. 47  Here, the  Municipality
obtained an award of fifty percent of its attorneys fees incurred
during the course of Blacks superior court appeal.  This award is
not excessive and was not error.
          The  superior  court did not provide an explanation  of
its  attorneys fees award.  While it is helpful when the awarding
court explains its reasons for awarding attorneys fees,48 the lack
of  specific findings in Rule 508 attorneys fees awards does  not
constitute an abuse of discretion.49
          Because  the  land under and around Blacks  condominium
unit is a limited common element, taxable to the beneficiary unit
owner,  and  because  the  Board did  nothing  to  offend  Blacks
constitutional  rights,  we AFFIRM the Boards  ruling  on  Blacks
appeal  of his real property taxes.  We also AFFIRM the  superior
          courts award of attorneys fees.
     1     Black purchased the condominium with his wife, Camille
Brill.  For ease of reference, we refer to Black as the owner  of
the condominium.

     2     The  house  has  2,803 square feet of finished  living
area,  an  attached garage of 706 square feet, a  226-square-foot
wood deck, and a 2,036-square-foot unfinished basement.

     3     The  property on which Blacks condominium is sited  is
39,865 square feet.

     4    The rule governs awards of attorneys fees in appeals of
agency  decisions to the superior court.  Rosen v. State  Bd.  of
Pub. Accountancy, 689 P.2d 478, 480 n.3 (Alaska 1984).

     5     ACS of Alaska, Inc. v. Regulatory Commn of Alaska,  81
P.3d 292, 295 (Alaska 2003).

     6     CH  Kelly Trust v. Municipality of Anchorage,  Bd.  of
Equalization, 909 P.2d 1381, 1382 (Alaska 1996).

     7    Ogar v. City of Haines, 51 P.3d 333, 335 (Alaska 2002).

     8     Hallam  v.  Alaska Airlines, Inc., 91  P.3d  279,  283
(Alaska 2004).

     9     Wayne  S. Hyatt, Condominium and Homeowner Association
Practice:  Community Association Law  1.06(a)(1)  (3d  ed.  2000)
(citing the Uniform Common Interest Ownership Act  1-103(8)).

     10    In the Whitestone Estates declaration, common elements
are  defined  as  each portion of the Common  Interest  Community
other  than a Unit and other than real estate in which  Declarant
has  reserved Development Rights.  For example, if the Whitestone
Estates Condominium Homeowners Association built a playground  to
which all association members would have equal access, that would
be considered a common element.

     11     The  Whitestone Estates declaration defines a limited
common element as the portion of the Common Elements allocated by
the Declaration, or on the Plans, for the exclusive use of one or
more but fewer than all of the Units.

     12    AS 34.08.990(19); see also Hyatt, supra note 9.

     13    Hyatt, supra note 9.

     14    Id.

     15     AS  34.08.170(a); see also AS 34.08.090(a) (A  common
interest  community  may be created . . .  only  by  recording  a
declaration . . . and a plat or plan.).

     16    AS 34.08.130.

     17     Black, who considers the large plan to be little more
than  sales hype, disputes its authenticity and utility for three
reasons:   first,  it  was  not  recorded;  second,  it  contains
inaccuracies  (although  he  does  not  contend  that  the   plan
inaccurately reflects the land surrounding each unit); and third,
it  does  not  denote  horizontal boundaries.   For  the  reasons
explained above, we find it to be a useful comparison.

     18    Neither the Board nor the superior court had the entire
declaration before it; the Municipality successfully  asked  this
court  to supplement the record with the full declaration.    See
Alaska R. App. P. 210(i) (If anything material to either party is
omitted from the record on appeal . . . the appellate court, on a
proper  suggestion or of its own initiative, may direct that  the
omission or misstatement shall be corrected.).

     19    Hyatt, supra note 9.

     20     While  common  use  is  not  relevant  to  the  legal
definition  of  a  limited  common  element,  we  include  Blacks
testimony to illustrate that the condominium units owners use  is
consistent  with  our  conclusions as to the  classification  and
taxation of land associated with each condominium unit.

     21    See AS 34.08.720(b)(1).

     22    Alaska Const. art. I,  1.
     23     Stanek v. Kenai Peninsula Borough, 81 P.3d  268,  270
(Alaska 2003); Matanuska-Susitna Borough Sch. Dist. v. State, 931
P.2d 391, 397 (Alaska 1997).

     24    Alaska Inter-Tribal Council v. State, 110 P.3d 947, 967
(Alaska  2005) (citing Lauth v. State, 12 P.3d 181,  187  (Alaska

     25    Matanuska-Susitna Borough Sch. Dist., 931 P.2d at 397.

     26    AS 34.08.720(b)(1).

     27     The average yard space for a condominium in Anchorage
is  2,000 to 3,000 square feet; Blacks is close to 40,000  square

     28     The  first  page  of the April 29,  2004  tax  appeal
decision  is in the record at page 122, but the following  pages,
which  would normally include an outline of the Boards  reasoning
and  decision, are neither in the record nor in the  excerpts  of

     29    See May v. State, Commercial Fisheries Entry Commn, 168
P.3d 873, 883 (Alaska 2007) (Once the departure from precedent is
explained,  the  reviewing  court  is  limited  to  [determining]
whether  the rationale is so unreasonable as to be arbitrary  and
capricious.  (quoting Michigan v. Thomas, 805 F.2d 176, 184  (6th
Cir. 1986))).

     30     See  Fairbanks  N. Star Borough Assessors  Office  v.
Golden  Heart  Utils.,  Inc.,  13 P.3d  263,  267  (Alaska  2000)
(Provided  that  the  assessor  has  a  reasonable  basis  for  a
valuation  method, that method will be allowed so long  as  there
was no fraud or clear adoption of a fundamentally wrong principle
of valuation. ).

     31     Alaska Const. art. IX,  3 (Standards for appraisal of
all  property assessed by the State or its political subdivisions
shall be prescribed by law.).

     32    Fairbanks N. Star Borough Assessors Office, 13 P.3d at

     33     Black does not dispute that this was appropriate,  at
least   in   establishing  the  building  component   value   for

     34    ($260,000 + $266,300 + $305,800 + $294,100 + $270,800)
/ 5 = $279,400.

     35    AS 29.45.110(a).

     36    ($458,600 - $435,000) / $435,000 = 5.43%.

     37    Blacks interest was assessed at $435,000 in 2004.

     38     See Lindhag v. State, Dept of Natural Res., 123  P.3d
948,  953  (Alaska  2005)  (An administrative  agency  must  make
findings of fact and conclusions of law regarding all issues that
are   both   material  and  contested.   If  these  findings   or
conclusions  are  insufficient  to permit  intelligent  appellate
review,  we  will  remand  the case to  the  agency  for  further
deliberation. (internal citation omitted)).

     39    See Fairbanks N. Star Borough Assessors Office, 13 P.3d
at 267-68.

     40    Black cites AS 34.08.990(8) for this proposition, which

               (8)  condominium means a common interest
          community in which
                    (A)   portions of the  real  estate
               are designated for separate ownership;
                    (B)   the  remainder  of  the  real
               estate    is   designated   for   common
               ownership solely by the owners of  those
               portions; and
                    (C)  the undivided interests in the
               common  elements are vested in the  unit
(Emphasis added.)

     41     960  P.2d  590, 598 n.14 (Alaska 1998)  (Rule  508(e)
awards typically do not exceed $1,000 [and] are usually less, and
often much less, than about twenty-five percent of the prevailing
parties actual fees).

     42     Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478,
480  (Alaska 1984) (The State did not include attorneys  fees  in
its  bill  of  costs,  however, but requested  them  by  separate
motion. There is nothing improper in this procedure.).

     43     Pruitt v. State, Dept of Pub. Safety, Div.  of  Motor
Vehicles, 825 P.2d 887, 895 (Alaska 1992) (It is important that a
motion  for  attorneys  fees  be made reasonably  promptly  after
judgment  because the losing party may base his decision  whether
to  appeal  on  the  merits on the size of the adverse  award  of
attorneys fees.).

     44    Rule 508(e) states that

          [a]ttorneys fees may be allowed in an  amount
          to  be  determined by the court.  If such  an
          allowance is made, the clerk shall  issue  an
          appropriate order awarding fees at  the  same
          time  that an opinion or an order under  Rule
          214 is filed. If the court determines that an
          appeal  or cross-appeal is frivolous or  that
          it  has  been brought simply for purposes  of
          delay,  actual attorneys fees may be  awarded
          to the appellee or cross-appellee.
     45    See Pruitt, 825 P.2d at 895-96.

     46    960 P.2d at 598.

     47     Id. at 597 (quoting State v. Cacioppo, 813 P.2d  679,
685 (Alaska 1991)).

     48     See  Pioneer  Constr. v. Conlon, 780 P.2d  995,  1001
(Alaska  1989) (superior courts explanation of an attorneys  fees
award  serves the same purpose as findings in general.  Appellate
review   is  facilitated  by  demonstrating  what  factors   were
considered, careful decision making is promoted, and the  parties
are  aided in their determination as to whether to appeal.);  cf.
In  re  Schmidt,  114 P.3d 816, 826 (Alaska  2005)  (in  Rule  95
attorneys fees award, trial courts failure to explain its reasons
for  assessing attorneys fees cause[d] us to speculate about  the
superior courts reasoning and the basis for the sanction).

     49     North  Slope Borough v. Barraza, 906 P.2d 1377,  1382
(Alaska 1995); Rosen v. Bd. of Public Accountancy, 689 P.2d  478,
480 (Alaska 1984).

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