IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON FILMORE LLLP, a Washington limited liability limited partnership, Respondent,

v. UNIT OWNERS ASSOCIATION OF CENTRE POINTE CONDOMINIUM, a Washington nonprofit miscellaneous corporation, Appellant. NO. 70013-8-1 DIVISION ONE

PUBLISHED OPINION FILED: September2, 2014

Lau, J. —This appeal involves a dispute between the Unit Owners Association of Centre Pointe Condominium (Centre Pointe) and Filmore LLLPoverthe percentage of unit ownervoter approval needed to pass declaration amendments restricting the 

### leasing ofunits.1 The parties disagree on the meaning of the word "use" in both the Centre Pointe condominium declaration and the Washington Condominium Act (WCA), chapter 64.34 RCW. Both ofthese require 90 percent voter approval for declaration amendments that change "the uses to which any unit is restricted." RCW 64.34.264(4). On summaryjudgment, the trial court invalidated the declaration amendments passed by 67 percent ofthe unit owners voting because a restriction on leasing requires 90


### 1We use "lease" and "rent" interchangeably in this opinion.70013-8-1/2 

### percent approval. Because a restriction on the use of a unitencompasses leasing underthe WCA and the original declaration, we affirm the order on summaryjudgment invalidating the Twelfth Amendment. FACTS 

### The main facts are undisputed. Centre Pointe Condominium is a residential 

### condominium complex inBellingham, Washington. Itsoriginal condominium declaration

was recorded in2003. Centre Pointe is a multi-phased projectwith each phase 

### consisting of a separate building of residential units. The firstthree phases (buildings A, B, and C) were constructed and their residential units sold priorto the filing of the complaint in this case. The fourthphase was created and defined as a separate "Development Unit D-3." From 2003 until the summer of2012, Article IX of Centre Pointe's condominium 

### declaration governed permitted uses and lease restrictions. Permitted Uses: Architectural Uniformity 9.1. Permitted Uses. 9.1.1. Residential Use. 

### Otherthan as provided inSection 9.1.2 hereof, the buildings and Units shall be used forresidential purposes only, and forcommon social, recreational or other reasonable uses normally incident to such purposes. .. . 9.1.14. Lease Restrictions. 

### Any lease agreement shall be required and deemed to provide that the terms of the lease shall be subject in allrespects to the provisions of the Condominium Instruments, and that any failure bythe Lessee to comply with 

### such provisions shall be a default under the lease, entitling the Association to enforce such provisions as a real party in interest. All leases shall be inwriting 

### and a copy ofeach lease must be supplied to the Association. No lease shall have a term ofless than one year. Otherthan the foregoing, there is no restriction on the right of any Unit Owner to lease his or her Unit. Any tenant or 

### subtenant of any portion of a Unit shall be deemed to have assumed all the responsibilities of an Owner underthis Section ofthe Declaration.70013-8-1/3 (Emphasis added.) Article XVII ofthe condominium declaration addresses amendment ofthe declaration. 17.1. Procedure for Amendment of Declaration Amendments to the Declaration shall be made by an instrument in writing entitled "Amendment to Declaration which sets forth the entire 

### amendment.
. . . [Subjectto certain exceptions], amendments may be adopted 

### only at a meeting of the Owners ifat least sixty-seven percent (67%) of the votes inthe Association are castfor such amendment, or without any meeting if all 

### Owners have been duly notified and Owners holding at least sixty-seven percent (67%) ofthe votes inthe Association consent inwriting to such amendment.
... 17.3. Special Restrictions. 

### Exceptto the extentexpressly permitted or required by otherprovisions of this Declaration, or ofthe Condominium Act, no amendment may create or increase Special Declarant Rights, increase the number of Units, change the boundaries of any Unit, the Allocated Interests of a Unit, or the uses to which any Unit is restricted, in the absence ofthe vote or agreement ofthe Owner ofeach Unit particularly affected and his or her Mortgagee and the Owners ofUnits to which at least ninety percent (90%) ofthe votes in the Association are allocated other than the Declarant, and that percentage of Eligible Mortgagees and/or Eligible Insurers specified inArticle XV above. No amendment may restrict, 

### eliminate, or otherwise modify any Special Declarant Right provided in the Declaration withoutthe consent ofthe Declarant and any mortgagee ofrecord 

### with a security interest inthe Special Declarant Right or in any real property 

### subject thereto, excludingmortgagees ofUnits owned bypersons other than the Declarant. (Emphasis added.) Article XVII mirrors the WCA's provisions for amendment ofcondominium 

### declarations. Specifically, RCW 64.34.264, entitled "Amendment of declaration," provides in relevant part: 

### (1) Exceptin cases ofamendments that may be executed by a declarant under RCW64.34.232(6) or64.34.236; the association under RCW64.34.060, 

### 64.34.220(5), 64.34.228(3), 64.34.244(1), 64.34.248, or 64.34.268(8); or certain unit owners under RCW 64.34.228(2), 64.34.244(1), 64.34.248(2), or 

### 64.34.268(2), and exceptas limited bysubsection (4) of this section, the declaration, including the survey maps and plans, may be amended only by vote70013-8-1/4 

### or agreement ofunitowners ofunits towhich at leastsixty-seven percentofthe votes in the association are allocated, or any larger percentage the declaration 

### specifies: PROVIDED, That the declaration mayspecifya smaller percentage only ifall of the units are restricted exclusively to nonresidential use. (4) Except to the extent expressly permitted or required byother 

### provisions ofthis chapter, no amendment may create or increase special declarant rights, increase the number of units, change the boundaries of any unit, the allocated interests of a unit, or the uses to which any unit is restricted, in the absence ofthe vote or agreement ofthe owner ofeach unit particularly affected and the owners of units to which at least ninety percent ofthe votes in the association are allocated otherthan the declarant or such larger percentage as the declaration provides. 

### (6) No amendmentmay restrict, eliminate, orotherwise modify anyspecial declarantright provided in thedeclaration withoutthe consent ofthe declarant 

### and anymortgagee ofrecord with a security interest in thespecial declarant right orin anyreal property subjectthereto, excluding mortgagees ofunits owned by persons otherthan the declarant. (Emphasis added.) 

### FilmoreLLLP is a Washington limited liability limited partnership. Filmore 

### purchased Unit D-3 (subjectofCentre Pointe's fourth developmentphase) in May 2011 after the bank foreclosed on a priorowner of the unit. Afterpurchasingunit D-3, Filmore secured a commercial loan from Peoples Bank for over $3.6 million to finance construction of new residential units. This loan was secured by a deed oftrust on Unit 

### D-3. In September2012, thecondominium documents wererecorded todivide Unit D-3 into 35 individual residential units. 

### Meanwhile, in October2011, afterFilmore purchased Unit D-3 and before it recorded the condominium documents, Centre Pointe's unitowner's association (the 

### Association)2 adopted theTwelfth Amendment ofthedeclaration. Itamendedsection

2We refer to "the Association" and "Centre Pointe" interchangeably in this opinion. -4-70013-8-1/5
9.1.14 quoted above "To instill limits on the total number ofcondominium units that can 

### be rented or leased."3 The amendment stated, "[Pjursuantto RCW 64.34.264 and Section 17.1 ofthe Declaration, the Declaration ofthis Condominium may be amended by the vote or agreement ofowners of units to which at least sixty-seven percent (67%) ofthe votes in the Association are allocated" and declared that "the Association has 

### obtained the necessary consent ofthe requisite percentage of UnitOwners prior to the date ofthis Amendment."4 The amendment was recorded with the Whatcom County Auditor on October 20, 2011. 

### The Twelfth Amendment changed section 9.1.14 ofthe original declaration by 

### imposing newrestrictions, exemptions, classes of owners, and other details restricting all unitowners' ability to lease their units. The changes include



### • limiting leases to 30 percent of the total number of condominium units (section 9.1.14(b)(i));



### • creating a distinction between "Owners" and "Investor-Owners" (section 9.1.14(b)(i)); (3) creating a hardship exemption to the leasing restriction granting the board of directors discretion to approve exemptions (section 9.1.14(b)(ii));



### • creating an exemption for existing rentals based on grandfathering (section 9.1.14(b)(iii));



### 3The Association's immediate past president, Debbie Haddad, testified in her declaration that the Association's purpose in adopting the Twelfth Amendment was to 

### maintain market values of existing units and make iteasierforowners to sell their units. She testified, "The FHAand lenders have guidelines underwhich their funds' 

### willingness to make orguarantee loans is decreased or nonexistent ifthere is extensive leasing at a condominium." 4Haddad testified in her declaration, "Through the Association's management 

### company, the proposed 12thamendmentwas submitted to the owners for a vote. It received a 'yes' votefrom more than 67% of the voting interests in the condominium."70013-8-1/6 

### • creating an exemption for rentals incident to bona fide sale of a unit (section 9.1.14(b)(iv));



### • creating an exemption to the Association after foreclosure of an assessment lien and to institutional lenders after foreclosure ofa first mortgage (section 9.1.14(b)(v));



### • creating an exemption from the restriction ifthe lease is to immediate family members (section 9.1.14(b)(v)). 

### In October 2012, Filmore filed a complaintfor "violation ofstatute, breach of 

### declaration, declaratory action and damages." (Capitalization omitted.) Filmore alleged that Centre Pointe's adoption of the TwelfthAmendmentviolated the WCA and Centre Pointe's condominium declaration. InJanuary 2013, Filmore moved for summary 

### judgment, requesting the courtto conclude that the declaration'sTwelfth Amendment is void as a matter of law. In its memo supporting summaryjudgment, Filmore argued that lease restrictions constitute a restriction on "use" requiring a 90 percent approval vote under RCW 64.34.264(4) and the declaration. 

### On February 8, 2013, the trial court granted Filmore's summary judgment motion. The court's order states, "[T]he Twelfth Amendment to the Declaration isvoid and shall not be enforceable for lack of 90% voter approval." Centre Pointe moved for RAP 

### 2.3(b)(4)certification. The trial courtcertified one question for discretionaryreview. [Wjhetherthe Twelfth Amendment [to Centre Pointe's declaration],which imposed a cap on the number ofcondominium units
.. . that can be leased by owners to tenants, "changes
... the uses to which a unit is restricted" and would therefore require approval by 90% or more of the voting power of the condominium owners' association, ratherthan approval by 67% ofsuch voting 

### power, under the WashingtonCondominium Act, see RCW 64.34.264, and/or the [declaration]. 

### See correspondence file (Appendix A to Centre Pointe's motion for extension oftime to file motion fordiscretionary review (trial court's ordergranting Centre Pointe's motion for
-6-70013-8-1/7 

### certification)). We granted Centre Pointe's motion fordiscretionary review on that 

### limited issue. See correspondence file (ruling on discretionaryreview).5
ANALYSIS Standard of Review 

### In this case we review a summaryjudgmentorder involving the interpretation of a statute and a condominium declaration. We review a summaryjudgment order de 

### novo, engaging in the same inquiry as the trial court. Lake v.Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). Summaryjudgment is warranted if 

### there is no genuine issue as to any material fact and the moving party is entitled to 

### judgment as a matter oflaw. CR56(c). Similarly, questions of statutoryconstruction

are reviewed de novo. State v. Votava, 149 Wn.2d 178, 183, 66 P.3d 1050 (2003). "A condominium declaration is like a deed, the review ofwhich is a mixed question of law and fact." Lake, 169 Wn.2d at 526. The factual issue is the declarant's intent, which we discern from the face of the declaration; the declaration's legal consequences are 

### questions of law we review de novo. Lake, 169Wn.2d at 526. Washington's Condominium Act 

### Washington's CondominiumAct, chapter 64.34RCW, was enacted in 1989and 

### governs all condominiums created afterJuly 1, 1990(including CentrePointe). RCW 64.34.010. The WCArequires condominium declarations to contain certain elements such as the name ofthe condominium, a legal description ofthe real property included inthe condominium, and, relevantto this case, "[a]nyrestrictions inthe declaration on 

### 5We do not address the meaning of "use" in the WCA or the declaration with respect to other activities or inother contexts.70013-8-1/8

use, occupancy, or alienation ofthe units." RCW 64.34.216(1 )(n). The declaration "may contain any other matters the declarant deems appropriate." RCW 64.34.216(3). Percentage Approval for Twelfth Amendment The certified question in this case turns on whether the language "the uses to which any unit is restricted," in RCW 64.34.264(4) and the Centre Pointe declaration encompasses leasing as a "use" ofthe property. Centre Pointe contends that "use" refers only to residential versus nonresidential. Thus, leasing restrictions are subject to
a 67 percent vote, not 90 percent, because they are not restrictions on "use." Filmore contends that leasing constitutes a "use" ofthe property. Thus, a lease restriction via declaration amendment requires a 90 percent vote. 

### "All condominiums are statutorily created." Shorewood W. Condo. Ass'n v. Sadri, 140 Wn.2d 47, 52, 992 P.2d 1008 (2000). Because condominiums are creatures of 

### statute, "the rights and duties ofcondominium unitowners are not the same as those of real property owners at common law." Shorewood, 140 Wn.2d at 53. The property rights that owners of individual condominium units have inthe units are creations ofthe condominium statute and are subject to the statute, the 

### declaration, the bylaws ofthe condominium association, and lawfulamendments ofthe declaration and bylaws. An association may apply a restriction on leasing, ifadopted in accordance with statute, to current owners. 

### Shorewood, 140 Wn.2d at 54 (emphasis added).6 We firstconsiderwhetherthe Association acted in accordance with the statute by adopting restrictions on leasing with 67 percent approval rather than 90 percent approval.



### 6 For this reason, we reject Filmore's assertion that "this case can and should be decided upon the specific language ofthe Declaration, and not upon interpretation of the Act." Resp't's Br. at 14. -8-70013-8-1/9
When construing a statute, our goal is to determine and effectuate legislative intent. Swinomish Indian Tribal Cmtv. v. Dep't of Ecology, 178 Wn.2d 571, 581, 311 P.3d 6 (2013). We give effect to the plain meaning ofthe language used as the embodiment of legislative intent. Swinomish, 178 Wn.2d at 581. "We determine plain meaning 'from all that the Legislature has said inthe statute and related statutes which disclose legislative intent about the provision inquestion.'" Swinomish, 178 Wn.2d at 581 (internal quotation marks omitted) (quoting Trac-Fone Wireless, Inc. v. Dep't of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010)). We read the statute as a whole 

### to give effectto all language used. In re Pers. Restraint ofSkylstad, 160 Wn.2d 944, 948, 162 P.3d 413 (2007). "Ifthe statute is unambiguous after a review ofthe plain 

### meaning, the court's inquiry is at an end."7 Lake, 169 Wn.2d at 526. The term "use" is undefined inthe WCA. "Inthe absence of a specific statutory 

### definition, words in a statute are given their common law or ordinary meaning." State v. Chester, 133Wn.2d 15, 22, 940 P.2d 1374 (1997): see also Lake, 169 Wn.2d at 528. 

### To determine the plain meaning of a term undefined by statute, the courtfirst looks at 

### the dictionary definition. State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). The dictionary defines "use" as "the legal enjoyment of property that consists in its employment, occupation, exercise, or practice," "a particular service or end: purpose, 

### object, function," and "the quality of being suitable for employment: capability offilling a need or promoting an advantage: usefulness, utility." Webster's Third New International Dictionary 2523 (2002). "Use" is also defined as "[t]he application or



### 7Neither party argues that the statute is ambiguous. Rather, they advance different unambiguous interpretations. -9-70013-8-1/10 employment of something; esp., a long-continued possession and employment of a thing for the purpose for which it is adapted, as distinguished from a possession and employmentthat is merely temporary or occasional." Black's Law Dictionary 1681 (9th ed. 2009). The plain meaning of "use" as defined inthe dictionary is broad. Centre Pointe advances several arguments in support of its contention that the term "use" in RCW 64.34.264(4) excludes leasing. Despite surface appeal, Centre Pointe's narrow and hypertechnical interpretation ofthe statute is unpersuasive. First, Centre Pointe cites to a rental cap agreementfor an unrelated condominium drafted by counsel differentfrom the attorney who drafted the leasing restriction for Centre Pointe. That rental cap agreement states, "The uses to which any unit is restricted,' as the phrase is used in Section 17.3 ofthe Declaration, means a restriction based on a land use classification of residential or non-residential Centre Pointe contends that the above-quoted rental cap agreement accurately identifies the meaning ofthe word "use" in this case. But an attorney's opinion as to the proper definition of "use" sheds no light on legislative intent. Centre Pointe also points to two statutory provisions governing the disclosures required ofthe declarant to purchasers inthe public offering statement and the required content of a declaration. RCW 64.34.410(1), which addresses condominium public offering statements, refers to use restrictions separately from leasing restrictions. It provides: A public offering statement shall contain the following information: 

### (g) A briefdescription ofthe permitted uses and use restrictions pertaining to the units and the common elements;

-10-70013-8-1/11 

### (h) A briefdescription of the restrictions, ifany, on the renting or leasing of 

### units by the declarantor other unit owners, togetherwith the rights, ifany, of the declarant to rent or lease at least a majority of units. 

### RCW64.34.410(1). And RCW64.34.216(1 )(n) provides, "The declaration for a condominium must contain . . . [a]ny restrictions inthe declaration on use, occupancy,
or alienation ofthe units. Centre Point contends that both provisions show that "use" 

### has a different meaning than "leasing." However, neither statutory provision qualifies or 

### limits the meaning of "use." Although Centre Pointe asserts that leasing restrictions are 

### a restraint on alienation rather than a restraint on use, this question remains unsettled.8 We are not persuaded that these statutory provisions indicate a legislative intent to exclude leasing fromthe meaning of "use" in RCW64.34.264(4). Center Pointe also relies on several otherWCA provisions in which "use" is 

### qualified by"residential" or "nonresidential." Centre Pointe claims thatthese provisions 8Sources differ on whether leasing restrictions are restrictions on use or alienation. See Zachary M. Rawling, Reevaluating Leasing Restrictions in Community Associations: Rejecting Reasonableness in Favor of Consent, 5 J.L. Econ. &Pol'y 223, 

### 232 (2009) (treating leasing restrictions as restrictions on alienation); ShorewoodW. Condo. Ass'n v. Sadri, 92 Wn. App. 752, 759, 966 P.2d 372, rev'd, 140 Wn.2d 47, 992 

### P.2d 1008 (2000) (citing persuasive and foreign authority for the proposition that 

### "[restrictions on leasing have been upheld as reasonable restraints on alienation") (but this language was not includedin the Supreme Court's reversal of this decision in Shorewood); Breezy Point Holiday Harbor Lodge-Beechside Apt. Owners' Ass'n v. B.P. 

### P'ship, 531 N.W. 2d 917, 919 (Minn. App. 1995) ("At least one otherjurisdiction, 

### however, has upheld a rental restriction as a valid restriction on the use of property and not a restraint on alienation."); Holiday Out in Am. at St. Lucie, Inc. v. Bowes, 285 So.2d 63, 64-65 (Fla. App. 1973) (provision granting condominiumdeveloperexclusive rightto rent units and prohibiting otherowners from such rentals upheld as valid restriction on 

### use ofunits); ElizabethWilliams, Cause ofActionto Enforce, orDeclare Invalid, Restriction on Use ofCondominium Property, 14 Causes ofAction 2d 315, § 19 

### (2000) (citing cases for the principle that the power ofalienation isonly affected when an owner cannot conveytitle in absolute fee and that restriction on leasing affects only the use of units, not the right to alienate units). We need notdecide whether leasing restrictions are restraints on alienation under Washington law.

-11-70013-8-1/12


### show that the legislature intended "use" to refer only to the distinction between 

### residential versus nonresidential uses throughout the entire statute.9 But RCW 64.34.264(4), which provides that 90 percent approval is required fordeclaration amendments that change "the uses to which any unit is restricted," is not among the 

### statutory provisions that qualifythe word "uses" with "residential" or "nonresidential." Other provisions inthe WCA similarly refer to "use" without specifying residential or nonresidential. See RCW 64.34.443(1 )(a) (any written affirmation offact or promise 

### "which relates to the unit, its use, or rights appurtenantthereto
... orthe right to use or have the benefit offacilities not located in the condominium creates an express 

### warranty that the unit and related rights and uses will conform to the affirmation or 

### promise")(emphasis added); RCW 64.34.443(1 )(d) ("A writtenprovision that a buyer 

### may put a unit onlyto a specified use is an express warranty that the specified use is

9See RCW64.34.216(1 )(e) ("The data described in(ii), (iii), and (iv) of this 

### subsection (1)(e) may be omittedwith respectto units restricted to nonresidential use"); RCW64.34.264(1) (special provisions for "units . . . restricted exclusively to nonresidential use"); RCW64.34.268(1) (special provisions for units "restricted 

### exclusively to nonresidential uses"); RCW64.34.348(1) (same); RCW64.34.352(8) 

### (special provisionsif"all units of a condominium are restricted to nonresidentialuse"); RCW64.34.380(4) (certain sections apply to condominiums "intended in whole orin 

### part for residential purposes" and do not apply to condominiums "consisting solely of units that are restricted in the declaration to nonresidential use"); RCW 64.34.400(1) 

### (exception for "those units that are restricted to nonresidential use in the declaration"); RCW64.34.415(2) (section applies "onlyto condominiums containing units that may be occupied for residential use"); RCW64.34.440(2) (referring to units "occupied for residential use" and excluding units that "will be restricted exclusively to nonresidential 

### use"); RCW 64.34.440(6)(f)(i) (referring to work done to maintain the building or lotfor "the residential use of the existing tenants"); RCW64.34.445(3) (addressing warranties 

### "to a purchaser of a unit that may be used for residential use that an existing use, continuation of which is contemplated by the parties, does not violate applicable law"); 

### RCW 64.34.450(1), (2) (addressing warranties ofquality for "units intended for nonresidential use" and "units intended for residential use).

-12-70013-8-1/13 

### lawful.'") (emphasis added); RCW64.34.445(2) (declarant and dealerwarrantthat unit and common elements are "suitable for the ordinary uses of real estate of its type . ..") 

### (emphasis added); RCW 64.34.445(3) (declarant and dealer warrant to purchaser of unitthat may be used for residential use that "an existing use, continuation ofwhich is contemplated by the parties, does not violate applicable law . . . .") (emphasis added). As noted above, the legislature could have—but did not—define the term "use" in any form or context in the WCA.10 

### Our review ofthe WCA indicates that where the legislature used "residential" or "nonresidential" to describe the word "use," such reference relates to differences in 

### requirements for notice,voting percentages, insurance, the public offering statement, warranties, and reserve accounts—all of which are reasonable distinctions to make 

## given theWCA's strong emphasis on protecting residential buyers ofcondominiums.11

10 Commentators have described the WCA as "precisely drafted." 18 William B. Stoebuck&JohnW. Weaver, Washington Practice: Real Estate 

### Transactions § 12.4, at 29 (2d ed. 2004). Presumablythe legislature's omission of a definition narrowing "use" to residential or nonresidential was intentional. 11 See One Pac. Towers Homeowners' Ass'n v. HAL Real Estate Invs., Inc., 148 

### Wn.2d 319, 330-31, 61 P.3d 1094 (2002) (one of the main purposes of the WCA is to 

### provide protection for condominium purchasers); Washington CondominiumActOfficial Comments to RCW64.34.410 (comment 1) ("Thebest 'consumer protection' that the 

### law can provide to any purchaser is toensure that such purchaser has an opportunity to 

### acquire an understanding ofthe nature ofthe productswhich it ispurchasing."); Washington Condominium Act Official Commentsto RCW 64.34.950("This Act should be construed inaccordance with its underlying purpose of making uniform the lawwith 

### respect tocondominiums, as well as the purposes stated in the Prefatory Note of simplifying, clarifying, and modernizing the law ofcondominiums, promoting the interstate flow offunds to condominiums, and protecting consumers, purchasers and 

### borrowers againstcondominium practices which may cause unreasonablerisk of loss to them."). -13-70013-8-1/14
Such distinctions do not necessarily mean the legislature intended the word "uses" in RCW 64.34.264(4) to refer solely to residential or nonresidential. Center Pointe next contends that Filmore's interpretation ofthe term "use" would make RCW 64.34.264(4) apply indiscriminately so that the 90 percent exception for "uses to which any unit is restricted" would swallow the general 67 percent rule for amendments to condominium declarations. We are not presented with that speculative circumstance here. As noted above, our resolution is limited to the certified question presented on discretionary review—whetherthe legislature intended to exclude leasing from those "uses to which any unit is restricted" in RCW 64.34.264(4). Accordingly, we express no opinion as to whether or to what extent othertypes ofuses are subject to the 90 percent approval requirement. In sum, we are not persuaded that the legislature intended to narrow the term "uses" in RCW 63.34.264(4) to solely residential versus nonresidential. This 

### interpretation conflicts with common sense and the word's plain meaning. See Prison Legal News, Inc. v. Dep't of Corr., 154 Wn.2d 628, 637 n.7, 115 P.3d 316 (2005) 

### (rejecting amicus briefargument that attempted to narrow definition beyond plain meaning ofstatutory term); Rettkowski v. Dep't of Ecology, 128 Wn.2d 508, 515-16, 910 P.2d 462 (1996) (rejecting Department's attemptto narrow the scope of a statute by 

### reading the term "any" as a limiting word); Sacred Heart Med. Ctr. v. Dep't ofRevenue, 88 Wn. App. 632, 637-38, 946 P.2d 409 (1997) (rejecting Department's overly narrow 

### interpretation on ground itconflicted with statute's plain meaning as derived from dictionary definition). "[A] statute which is clear on itsface is not subjectto judicial interpretation." Inre Marriage of Kovacs. 121 Wn.2d 795, 804, 854 P.2d 629 (1993).
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The plain meaning of "use," derived from the dictionary, undermines Centre Pointe's arguments. "Undefined common statutory terms are given their common dictionary meanings unless there is strong evidence the legislature intended something else." Michaels V.CH2M Hill, Inc., 171 Wn.2d 587, 601, 257 P.3d 532 (2011). Under the circumstances here, the common ordinary meaning of "use" applies because no evidence indicates the legislature intended something else. Although we conclude that "the uses to which any unit is restricted" under RCW 64.34.264(4) unambiguously includes leasing, we also reviewed the available legislative 

### history including the legislative bill reports, official comments to the WCA, the Uniform 

### Common Interest Ownership Act(UCIOA), and its official comments.12 Legislative

12 The WCA "substantially adopted the major provisions of the Uniform Common Interest Ownership Act.
. .." ParkAve. Condo. Owners Ass'n v. Buchan Devs.. L.L.C., 117 Wn. App. 369, 374, 71 P.3d 692 (2003). In Marina Cove Condominium Owners Ass'n v. Isabella Estates. 109 Wn. App. 230, 241, 34 P.3d 870 (2001), abrogated on other grounds by Satomi Owners Ass'n v. Satomi, LLC, 167 Wn.2d 781, 225 P.3d 213 

### (2009), which was also decided underthe WCA, we looked to the UCIOA's official comments to determine the legislature's intent. Our Supreme Court has noted: Other state courts have also turned to the official comments to interpret their versions ofthe Uniform Act. See Griffith v. Faltz, 162 Ariz. 599, 600, 785 P.2d 

### 119 (1990) ("Although this court is not bound by the interpretation ofthe Commissioners on Uniform State Laws, that interpretation is highly persuasive 

### and should be adopted unless it is erroneous or contrary to the settled policy of 

### the state."); State v. Rupe, 109 N.C. App. 601, 613-14, 428 S.E.2d 480 (1993) (stating, "Although the commentary is not binding when not enacted into law, where proper, itmay be given substantial weight indiscerning legislative intent."). One Pac, 148 Wn.2d at 328. The official comments to the UCIOA help little with our analysis. The comments show that the UCIOA drafters were concerned about what "use" meant. Itexplains that 

### "use" might encompass such activities as pet ownership. Butthe official comments to the WCA are much briefer and omit much ofthe UCIOA analysis. The WCA official comments fail to address the term "use" or attempt to explain what activities constitute a "use" under the statute. The UCIOA and the WCA also differ in their statutory language in several material respects.

-15-70013-8-1/16 history may be of some interest even where the court concludes that the statute's plain language is unambiguous. Scott v. Cascade Structures, 100 Wn.2d 537, 544, 673 P.2d 179 (1983). "This is particularly so where the contemporaneous record of a bill's progress bolsters the plain meaning." Lane v. Port ofSeattle, 178 Wn. App. 110, 119 n.3, 316 P.3d 1070 (2013). We conclude that nothing inthe WCA's legislative history, official comments, or other related materials suggests thatthe legislature intended to limit "uses to which any unit is restricted" in RCW 64.34.234(4) to residential versus nonresidential uses.13



### 13 The parties submit (1) various attorney/commentator's articles addressing procedural requirements forpassage of rental restrictions and (2) competing examples ofother condominium declaration amendments that restricted leasing and were passed 

### by either a 67 percent or a 90 percentvote. These authorities serve only to demonstrate that this issue is currently hotly debated and affects all condominium 

### developments, notjust Centre Pointe. See Jim Strichartz, HowAssociations Can 

### Effectively Deal with UnitRentals (May 2007) http://71.18.246.74/web files/Articles.pdf. Filmore filed a motion to strike the Association's second supplemental 

### designation of clerk's papers, whichconsists of a "Declaration ofSteven A. Rockey in Support ofDefendant's Motion for RAP 2.3(b)(4) Certification." Attached to the declaration were the face page and page 7 from Strichartz's article, attached in its 

### entirety below. This declaration was filed with the trial court on March 6, 2013, nearly a month afterthe court's summaryjudgment ruling. The declaration was submitted to supportthe Association's motion for certification forappeal. 

### Filmore urges us to strike the second supplemental designation of clerk's papers because (1) the portion of the record included in the second supplemental designation was not part of the record the trial court reviewed when ruling on summaryjudgment and was submitted to the trial court only in relation to the Association's motion for 

### certification forappeal, (2) the record referenced in the second supplemental 

### designation contains only part of the article and excerpted out sections contrary to the Association's position, and (3) Filmorealready submitted its responsive brief and thus had no chance to respond to the issues raised inthe article. In sum, the record contains materials submitted to the trial court afterthe court 

### made the summaryjudgment ruling that is now before us on discretionary review. Filmore has moved to strike these materials from the appellate record. Filmore relies on 

### the rule that in reviewing an order granting or denying a motion for summaryjudgment, 

### this court will consideronlyevidence and issues called to the attention of the trial court. RAP 9.12. However, -16-70013-8-1/17 

### For the foregoing reasons, we reject Centre Pointe's narrowdefinition of"uses to which any unit is restricted" in RCW 64.34.264(4) where no strong evidence indicates 

### the legislature intended to narrow its meaning beyond the plain orcommon meaning. We conclude that "theuses to which any unit is restricted" under RCW 64.34.264(4) 

### unambiguously includes leasing. Alease restriction via declaration amendment 

### requires a 90 percentvote. TheTwelfth Amendment, which was passed with a 67 

### percentvote, isinconsistentwith theWCA and istherefore invalid.14
Condominium Declaration 

### CentrePointcorrectly notes that"Section 17.3 ofthe CenterPointe declaration tracks the text ofRCW64.34.264(4)." Appellant's Br. at 25 (citation omitted). Both the 

### WCA and thedeclaration provide that no amendment may change "the uses towhich

a motion to strike istypically notnecessary to pointout evidence and issues a 

### litigantbelieves this courtshould notconsider. No one at theCourtofAppeals goesthrough the record or thebriefs with a stamp or scissors topreventthe judgeswho are hearing the case from seeing material deemed irrelevantor 

### prejudicial. So long as there is anopportunity (as there was here) toinclude argument in theparty's brief, thebriefis theappropriate vehiclefor pointing out allegedly extraneous materials—not a separate motion to strike. Enostrom v. Goodman, 166 Wn. App. 905, 909 n.2, 271 P.3d 959 (2012). 

### The rules of appellate procedureallow a partyto designate "those clerk's papers 

### andexhibits thepartywants thetrial courtclerktotransmitto theappellate court." RAP 

### 9.6(a). TheAssociation's designation oftherecord waswithin this rule. Wedenythe motion to strike. 

### 14We emphasize that even ifthe statutecould be read tolimit "use" toresidential or nonresidential, individual condominium declarations may specify that a larger 

### percentagethan 67percent isnecessarytomake general amendments to the declaration. See RCW64.34.264(1) (setting "atleast sixty-seven percent" as the 

### general rule butallowing thedeclaranttorequire "any largerpercentagethedeclaration specifies"). As noted above, herethe declaranttreated leasing as apermitted useand setforth a 90 percentvoterapproval rule for amendments changing the uses towhich units are restricted.

-17-70013-8-1/18
any unit is restricted" inthe absence of at least 90 percent ofthe votes inthe association. We further agree with Centre Pointe's assertion that "construction of a 

### paragraph of a declaration is guided bythe meaning ofthe corresponding statute." Appellant's Br. at 25 (citing Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 530-31, 243 P.3d 1283 (2010)). As discussed above, "the uses to which any unit is restricted" under RCW 64.34.264(4) encompasses lease restrictions. Therefore, we conclude that the declaration also mandates a 90 percent vote for amendments that alter leasing restrictions. From 2003 untilthe passage ofthe Twelfth Amendment in2012, unit owners
were allowed to lease their units as a permitted use under the declaration's express provision. Section 9.1.14 ofCentre Pointe's original declaration, entitled "Lease Restrictions," informed owners that there is "no restriction on the right of any Unit Owner to lease his or her Unit" aside from certain documentation requirements not relevant 

### here.15 Moreover, both the original and amended declaration discuss leasing under Article IX ofthe declaration, "Permitted Uses; Architectural Uniformity." (Emphasis added.) Section 9.1, "Permitted Uses," includes subcategories such as "Residential 

### 15 Centre Pointe argues thatthe title of this subsection, "Leasing Restrictions," is not determinative because the word "uses" does not appear inthe same paragraph. But the title, structure, and text ofthe section all support a conclusion that the declarant 

### intended to expand the meaning of "use" beyond residential /nonresidential. Centre Pointe also contends that interpreting the declaration to require a 90 percent vote would 

### make it virtuallyimpossible for the Association to pass an amendment addressing any other matter governed by paragraphs in Article IX. This argument disregards the 

### specific language ofsection 9.1.14. Moreover, in light of our holdingthat the WCA requires a 90 percent vote to impose new leasing restrictions, adopting Centre Pointe's 

### argument would require us to hold that the declaration is inconsistentwith the statute. We do not so hold. See Lake, 169 Wn.2d at 531 ("We think the parties to the 

### declaration intended itto comply withthe [Horizontal Property Regimes Act] not conflict with it"). -18-70013-8-1/19 Use," "Commercial Use," "Vehicle Parking," "Signs," "Animals," "Lease Restrictions," "Assignment or Subletting," and "Timesharing." And under "Residential Use," section 9.1.1 provides, "[T]he buildings and Units shall be used for residential purposes only, and for common social, recreational or other reasonable uses normally incident to such 

### purposes." (Emphasis added.)16 Finally, we note that requiring 90 percentvoter approval to amend the declaration to impose significant new leasing restrictions protects the reasonable and settled expectations of unit owners who purchased their units under the original declaration and 

### advances the legislature's intent to provide additional consumer protection to condominium purchasers. See One Pac. Towers Homeowners' Ass'n v. HAL Real Estate Invs., Inc., 148 Wn.2d 319, 330-31, 61 P.3d 1094 (2002) (discussing the strong
consumer protection features ofthe WCA).



### 16 Other declaration provisions also indicate a broader meaning of "use." Article X, section 10.16.2 ofthe declaration describes the Association's lien for assessments 

### and provides that the Association has a lien on property "notused principally for agricultural purposes, together with alltenements, hereditaments, and appurtenances now or hereafter thereunto belonging or in any manner appertaining, and the rents, 

### issues, and profits thereof. . . ." (Emphasis added.) This section tracks RCW 64.34.364(9), which provides for enforceable liens ifthe declaration, among other 

### things, "provides in itsterms that the units are not used principally for agricultural or farming purposes . . . ." (Emphasis added.) Exhibit D to the declaration contains a section titled "Schedule 12

- Condemnation." Under section 12.1: 

### Ifa Unit is acquired by condemnation, or ifpart of a Unit is acquired by condemnation leaving the UnitOwnerwith a remnant of a Unit which may not 

### practically or lawfully be used for any purpose permitted by this Declaration, the award must compensate the UnitOwnerforthe Owner's Unitand its appurtenant interest in the Common Elements, whether or not any Common Elements are acquired. (Emphasis added.)

-19-70013-8-1/20
Our conclusion is supported by our Supreme Court's analysis in Shorewood West Condominium Ass'n v. Sadri, 140 Wn.2d 47, 992 P.2d 1008 (2000), which interpreted the WCA's predecessor, the Horizontal Property Regimes Act (HPRA). In Shorewood, a condominium association amended its bylaws to restrict leasing. Shorewood, 140 Wn.2d at 51. The issue in Shorewood was whether "a restriction on
use which appears in a condominium homeowners' association bylaw but not inthe declaration [is] in accordance with the [HPRA]." Shorewood, 140 Wn.2d at 52. The court stated, "An association may apply a restriction on leasing, ifadopted in accordance with the statute, to current owners." Shorewood, 140 Wn.2d at 54. The 

### court began its analysis by noting that the HPRA requires thatthe condominium declaration contain a statement of use restrictions and that amendments must receive 

### the consent of at least 60 percent ofowners. The court further noted, "[A] survey of the
case law from differentjurisdictions indicates that it is the general practice to put specific restrictions, not merely restrictions on broad use categories, intothe declaration, 

### whether or not they may also be in the bylaws." Shorewood, 140 Wn.2d at 55-56. The court also found significantthat the Association's declaration contained specific use 

### restrictions beyond merely residential/nonresidential use and that the condominium 

### declaration "discusses leasing and implicitly permits it." Shorewood, 140 Wn.2d at 56. The court concluded that "one should read 'use' in RCW 64.32.090(7) to mean all uses 

### and not just general categories ofuse such as residential use or commercial use." Shorewood, 140 Wn.2d at 56. The court further concluded that use restrictions 

### appearing inunrecorded amendments to bylaws and not in the declaration are notin accordance with the HPRA and are therefore invalid. Shorewood, 140 Wn.2d at 57.
-20-70013-8-1/21
Centre Pointe argues that Shorewood is distinguishable because the condominium inthat case was governed by the HPRA ratherthan the WCA. Centre Pointe further notes that Shorewood did not involve a dispute over the percentage approval required to impose a restriction on leasing. However, despite these differences, we observe that both the HPRA and the WCA require certain disclosures in the declaration. Here, similar to the declaration in Shorewood, Centre Pointe's declaration contains specific use restrictions beyond the general 

### residential/nonresidential categories. The declaration's structural text groups leasing in

common with other permitted uses ofthe property. 

### The analogous context of restrictive covenants governing a homeowners' association is also instructive.17 In Wilkinson v. Chiwawa Communities Ass'n, 180 Wn.2d 241, 245, 327 P.3d 614 (2014), our Supreme Court recently invalidated an 

### amendment, passed by a simple majority vote, which prohibited short-term vacation rentals. As a general rule, 

### when the general plan ofdevelopment permits a majority to change the covenants but not create new ones, a simple majority cannot add new restrictive covenants that are inconsistentwith the general plan ofdevelopment or have no 

### relation to existing covenants. This rule protects the reasonable, settled expectation oflandowners by giving them the powerto block "new covenants which have no relation to existing ones" and deprive them oftheir property rights. 

### Wilkinson, 180 Wn.2d at 256 (citations and internal quotation marks omitted) (quoting Meresse v. Stelma. 100 Wn. App. 857, 865-66, 999 P.2d 1267 (2000)). The association

17 See 18 William Stoebuck, Washington Practice: Real Estate: 

### Transactions § 12.3 at 23 (2d. ed. 2004) ("The condominium declaration
... is 

### analogous in some respects to a declaration ofrestrictive covenants and in some respects to a subdivision plat."). -21-70013-8-1/22 argued that the amendment was valid because short-term vacation rentals were inconsistent with restrictive covenants prohibiting commercial use and restricting lots to single family residential use. However, the court concluded, "The Chiwawa general plan ofdevelopment allows homeowners to rent their homes without any durational limitation." Wilkinson, 180 Wn.2d at 257. Because the covenants did not place residents on notice that short-term rentals would be prohibited, the court held that the amendment must be invalidated to protect the "reasonable and settled expectations of 

### landowners intheir property." Wilkinson, 180 Wn.2d at 257. Here, similarly, the Centre Pointe declaration plainly indicates that condominium purchasers have a right to lease 

### their units. Requiring the Association to obtain 90 percent approval to impose a new 

### leasing restriction scheme that substantially alters the status quo protects condominium owners' reasonable and settled expectations. In sum, we hold that "the uses to which any unit is restricted," in RCW 

### 64.34.264(4) and the Centre Pointe declaration encompasses leasing as a "use" of the property. A lease restriction via declaration amendment requires a 90 percentvote. The Twelfth Amendment, which was passed with a 67 percent vote, is therefore invalid. Estoppel 

### Centre Pointe argues that Filmore was estopped by its inequitable conductto 

### challenge the Twelfth Amendmentfor lack of 90 percent approval. The elements of equitable estoppel are "(1) [a]n admission, statement, or act inconsistentwith the claim afterwards asserted; (2) action by the other party on the faith ofsuch admission, 

### statement or act; and (3) injury to such other party from allowingthe first party to 

### contradict or repudiate such admission, statement, or act." Finch v. Matthews, 74
-22-70013-8-1/23
Wn.2d 161, 171 n.3, 443 P.2d 833 (1968). This doctrine is notfavored and must be proved by clear, cogent, and convincing evidence. Robinson v. City of Seattle, 119 Wn.2d 34, 82, 830 P.2d 318 (1992). Centre Pointe claims that "Filmore's conduct, acting as if itwas going to sell the units, together with its silence at critical times when it would have been expected to 

### speak up, was inconsistentwith its position taken afterthe instant lawsuit was served." Appellant's Br. at 29. We disagree. "Estoppel can arise through silence, as well as statements, when one has a duty to speak out." McDaniels v. Carlson, 108 Wn.2d 299, 

### 308, 738 P.2d 254 (1987) (emphasis added). Even viewingthe facts mostfavorably to Centre Pointe, ithas failed to show that Filmore owed any duty to speak. Filmore's 

### silence involved no representation of fact, and even if it did, itwas not inconsistentwith Filmore's later claim that the amendment was invalid. Centre Pointe further claims that ifAndre Molnar had told the Association his 

### position that 90 percent approval was required, the Association would have had the opportunity to pursue 90 percent approval. ButCentre Pointe cites no authority 

### requiring a plaintiffto disclose the nature of itschallenges and give the defendant an opportunity to cure prior to filing a lawsuit. Moreover, Centre Pointe's assertion that it would have pursued 90 percent approval is speculative. Elements established by virtue 

### of speculation or conjecture are insufficientto warrant estoppel. Pub. Util. Dist. No. 1 of Douglas County v. Cooper, 69 Wn.2d 909, 918, 421 P.2d 1002 (1966). Centre Pointe's estoppel argument fails.

-23-70013-8-1/24
Attorney Fees Filmore requests appellate attorney fees and costs as the prevailing party under RAP 18.1, Article XIII ofthe declaration,18 and RCW64.34.455.19 Filmore also refers to a Bylawthat is not in our record as well as the trial court's summaryjudgment order below, in which the court ordered that "both parties retain rights to make claims for 

### attorney's fees to be reviewed through subsequent proceedings before this court."20 Review ofthe cited authorities indicates that they eitherfail to support Filmore's request


### or confer discretion on the court in making a fee award. Given the debatable issues of law presented in this case, we deny Filmore's request. CONCLUSION The "uses to which any unit is restricted" under RCW 64.34.264(4) 

### unambiguously includes leasing. The declaration is consistentwiththe statute. We conclude that 90 percent approval of unit owners is required to amend the declaration to impose new leasing restrictions. The Twelfth Amendment, which was passed with 67 

### percent approval, is inconsistentwith the WCA and the originaldeclaration and is

18 ArticleXIII ofthe declaration provides that every "Owner and occupant of a Unit shall comply strictly withthe provisions ofthe Condominium Act or the 

### Condominium Instruments" and gives the Board of Directors the power to enforce the same. The Article does not mention attorney fees. 

### 19 RCW 64.34.455 provides, "Ifa declarant or any other person subjectto this 

### chapterfails to complywith any provision hereofor any provision of the declaration or 

### bylaws, any person orclass ofpersons adversely affected by the failure to comply has a claim forappropriate relief. The court, in an appropriate case, may award reasonable attorney's fees to the prevailing party." 

### 20 Neither party requested fees below, and the court's order awarded no fees. The order simply preserved each party's right to make future fee requests. -24-70013-8-1/25

therefore invalid. We affirm the order on summaryjudgment invalidating the Twelfth
Amendment.

WE CONCUR:



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