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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
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CRAIG WM. BLACK, | ) |
| ) Supreme Court No. S- 12639 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-05-09474 CI | |
| v. | ) |
| ) O P I N I O N | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| 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
Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
modification.
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.
III. DISCUSSION
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
provision:
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
elements.
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
estate.
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
claim.25
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
part:
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
levels.
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
explained:
[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
way.
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
$250.
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
IV. CONCLUSION
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
2000)).
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
feet.
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
record.
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
268.
33 Black does not dispute that this was appropriate, at
least in establishing the building component value for
condominiums.
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
states:
(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
owners[.]
(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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