Filmore, LLLP v. Unit Owners Ass'n of Centre Pointe Condo.

Centre Pointe Condominium is a residential condominium complex in

Bellingham, Washington. The Unit Owners Association of Centre Pointe

Condominium (Centre Pointe) was formed in May 2003 by a declaration of

condominium (Declaration) recorded in Whatcom County.

The Washington Condominium Act (WCA), chapter 64.34 RCW, governs

condominium complexes created after July 1, 1990. Shorewood W. Condo. Ass'n v.

Sadri, 140 Wn.2d 47, 49, 52, 992 P.2d 1008 (2000) (citing RCW 64.34.010). Under

RCW 64.34.264(1 ), a condominium declaration may be amended by the vote or

agreement of owners to which at least 67 percent of the votes are allocated. RCW

64.34.264( 4), however, provides an exception to that general rule, requiring the vote

or agreement of the owner of each unit particularly affected and the owners of units to

which at least 90 percent of the votes are allocated for an amendment that "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." (Emphasis added.)

The Declaration mirrors the WCA scheme and language. Section 17.1 of the

Declaration provides that a 67 percent vote is generally sufficient to amend the

Declaration, in line with RCW 64.34.264(1). Clerk's Papers (CP) at 68. Section 17.3

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Filmore LLLP v. Unit Owners Ass 'n of Ctr. Pointe Condo., No. 90879-6

mirrors RCW 64.34.264(4), requiring "the vote or agreement of the Owner of each

Unit particularly affected and his or her Mortgagee and the Owners of Units to which

at least ninety percent (90%) of the votes in the Association are allocated" for certain

changes, including any change to "the uses to which any Unit is restricted." I d. at 69.

Although RCW 64.34.264(1) and (4) establish the minimum voting percentage

required for certain declaration amendments, the declaration itself can provide for

higher percentages. See RCW 64.34.264(1 ).

A clubhouse and three residential buildings with 97 units of the Centre Pointe

complex were built prior to 2011. In May 2011, Filmore LLP bought an unfinished

portion of the Centre Pointe complex and all related development and special

declarant rights. Filmore's property is part of the Centre Point complex and subject to

its Declaration. Section 9 .1.14 of the Declaration provides that there is "no restriction

on the right of any Unit Owner to lease his or her Unit" other than the restrictions

described in section 9.1.14. CP at 55. Nothing in section 9.1.14limits the number of

units that may be leased.

In October 2011, owners of Centre Pointe units to which at least 67 percent

(but less than 90 percent) of the votes in Centre Pointe were allocated approved the

12th amendment to the Declaration, requiring that no more than 30 percent of the total

number of units could be leased. In October 2012, Filmore filed a complaint in

Whatcom County Superior Court alleging that the Declaration's Twelfth Amendment

violated RCW 64.34.264(4) and section 17.3 of the Declaration because the 12th

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amendment was not passed with 90 percent of the eligible votes, requesting that the

12th amendment be found void and unenforceable. The trial court granted CR 56

summary judgment in favor of Filmore on February 8, 2013, finding that the 12th

amendment is void because it was not passed with 90 percent of the eligible votes.

The Court of Appeals agreed in a published opinion. Filmore LLLP v. Unit Owners

Ass 'n of Centre Pointe Condo., 183 Wn. App. 328, 331 P.3d 498 (2014). We granted

Centre Pointe's petition for review. Order No. 90879-6 (Wash. Mar. 4, 2015).

ANALYSIS

Our review is de novo. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d

1068 (2002) (de novo review of summary judgment orders) (citing Lybbert v. Grant

County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000)); State v. Wentz, 149 Wn.2d 342, 346,

68 P .3d 282 (2003) (de novo review of statutory interpretation) (citing City of Pasco

v. Pub. Emp 't Relations Comm 'n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992)).

Additionally,

[a] condominium declaration is like a deed, the review of which is a mixed question of law and fact. Roeder Co. v. Burlington N., Inc., 105 Wn.2d 567, 571-72,716 P.2d 855 (1986) (citing Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979)). The factual issue is the declarant's intent, which we discern from the face of the declaration. See id. The declaration's legal consequences are questions of law, which we review de novo.

Lake v. WoodcreekHomeowners Ass'n, 169 Wn.2d 516,526,243 P.3d 1283 (2010).

The vote or agreement of the owner of each unit particularly affected and the

owners of units to which at least 90 percent of the votes are allocated must agree on

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any declaration amendment that changes "the uses to which any unit is restricted"

under RCW 64.34.264(4) and Section 17.3 of the Declaration. The word "use" is not

defined in the WCA. "'When a statutory term is undefined, the words of a statute are

given their ordinary meaning, and the court may look to a dictionary for such

meaning."' Lake, 169 Wn.2d at 528 (quoting State v. Gonzalez, 168 Wn.2d 256, 263,

226 P.3d 131 (2010)). Dictionary definitions, however, are not dispositive here

because "use" is broadly defined in in the dictionary to include "the legal enjoyment

of property that consists in its employment, occupation, exercise, or practice,"

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2523 (2002), and also "[t]he

application or employment of something," BLACK'S LAW DICTIONARY 1775 (lOth ed.

2014).

But we need not interpret the WCA here because, in contrast to RCW

64.34.264( 4), the Declaration itself identifies a number of "uses" that come within the

special supermajority voting requirement in section 17.3. Under the Declaration's

article IX, "Permitted Uses; Architectural Uniformity" and section 9.1, "Permitted

Uses," section 9.1.14 provides, "Lease Restrictions." CP at 52-55. The positioning of

section 9. 1. 14 within the section 9.1 "Permitted Uses" heading indicates that, for the

purposes of this Declaration, a provision on leasing is one restricting the "use" of a

unit-an amendment that requires a 90 percent vote under section 17.3. !d. This

interpretation is bolstered by the fact that section 9.1. 14 also provides that there is "no

restriction on the right of any Unit Owner to lease his or her Unit" other than the

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restrictions set forth in Section 9.1.14, such as that "[a]llleases shall be in writing"

and "[n]o lease shall have a term of less than one year," and nothing in section 9.1.14

limits the number of units that may be leased. !d. at 55. In other words, even if

leasing is not a "use" under RCW 64.34.264( 4), it is one under the language of the

Declaration that is subject to section 17.3 's special supermaj ority amendment process.

We resolve this case exclusively on that basis.

Given that leasing is a "use" under this Declaration, a 90 percent supermajority

was required to agree on any Declaration amendment that restricted leasing under

RCW 64.34.264(4) and section 17.3 of the Declaration. Ninety percent supermajority

approval was not received. Therefore, the 12th amendment is not valid.

We find that the declaration amendment restricting leasing is not valid because

it purported to change "the uses to which any unit is restricted" without the requisite 90 percent supermajority approval. We find that the amendment is therefore invalid and affirm the courts below.