Filmore, Lllp, Res. v. Unit Owners Association Of Centre Pointe Condominium ( 2014 )


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  •           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    FILMORE LLLP, a Washington limited              NO. 70013-8-1
    liability limited partnership,
    DIVISION ONE
    Respondent,
    v.
    UNIT OWNERS ASSOCIATION OF                      PUBLISHED OPINION
    CENTRE POINTE CONDOMINIUM,
    a Washington nonprofit miscellaneous            FILED: September 2, 2014
    corporation,
    Appellant.
    Lau, J. — This appeal involves a dispute between the Unit Owners Association of
    Centre Pointe Condominium (Centre Pointe) and Filmore LLLP over the percentage of
    unit owner voter approval needed to pass declaration amendments restricting the
    leasing of units.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 of these require 90 percent voter approval for declaration
    amendments that change "the uses to which any unit is restricted." RCW 64.34.264(4).
    On summary judgment, the trial court invalidated the declaration amendments passed
    by 67 percent of the 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 unit encompasses leasing
    under the WCA and the original declaration, we affirm the order on summary judgment
    invalidating the Twelfth Amendment.
    FACTS
    The main facts are undisputed. Centre Pointe Condominium is a residential
    condominium complex in Bellingham, Washington. Its original condominium declaration
    was recorded in 2003. Centre Pointe is a multi-phased project with each phase
    consisting of a separate building of residential units. The first three phases (buildings A,
    B, and C) were constructed and their residential units sold prior to the filing of the
    complaint in this case. The fourth phase was created and defined as a separate
    "Development Unit D-3."
    From 2003 until the summer of 2012, 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.
    Other than as provided in Section 9.1.2 hereof, the buildings and
    Units shall be used for residential purposes only, and for common 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 all respects to the provisions of the
    Condominium Instruments, and that any failure by the 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 in writing
    and a copy of each lease must be supplied to the Association. No lease shall
    have a term of less than one year. Other than 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 under this Section of the Declaration.
    70013-8-1/3
    (Emphasis added.)
    Article XVII of the condominium declaration addresses amendment of the
    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. . . . [Subject to certain exceptions], amendments may be adopted
    only at a meeting of the Owners if at least sixty-seven percent (67%) of the votes
    in the Association are cast for such amendment, or without any meeting if all
    Owners have been duly notified and Owners holding at least sixty-seven percent
    (67%) of the votes in the Association consent in writing to such amendment. ...
    17.3. Special Restrictions.
    Except to the extent expressly permitted or required by other provisions of
    this Declaration, or of the 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 of 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
    other than the Declarant, and that percentage of Eligible Mortgagees and/or
    Eligible Insurers specified in Article XV above. No amendment may restrict,
    eliminate, or otherwise modify any Special Declarant Right provided in the
    Declaration without the consent of the Declarant and any mortgagee of record
    with a security interest in the Special Declarant Right or in any real property
    subject thereto, excluding mortgagees of Units owned by persons other than the
    Declarant.
    (Emphasis added.)
    Article XVII mirrors the WCA's provisions for amendment of condominium
    declarations. Specifically, RCW 64.34.264, entitled "Amendment of declaration,"
    provides in relevant part:
    (1) Except in cases of amendments that may be executed by a declarant under
    RCW 64.34.232(6) or 64.34.236; the association under RCW 64.34.060,
    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 except as limited by subsection (4) of this section, the
    declaration, including the survey maps and plans, may be amended only by vote
    70013-8-1/4
    or agreement of unit owners of units to which at least sixty-seven percent ofthe
    votes in the association are allocated, or any larger percentage the declaration
    specifies: PROVIDED, That the declaration may specify a smaller percentage
    only if all of the units are restricted exclusively to nonresidential use.
    (4) Except to the extent expressly permitted or required by other
    provisions of this 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 of the vote or agreement of the owner of each unit particularly affected
    and the owners of units to which at least ninety percent of the votes in the
    association are allocated other than the declarant or such larger percentage as
    the declaration provides.
    (6) No amendment may restrict, eliminate, or otherwise modify any special
    declarant right provided in the declaration without the consent of the declarant
    and any mortgagee of record with a security interest in the special declarant right
    or in any real property subjectthereto, excluding mortgagees of units owned by
    persons other than the declarant.
    (Emphasis added.)
    Filmore LLLP is a Washington limited liability limited partnership. Filmore
    purchased Unit D-3 (subject ofCentre Pointe's fourth development phase) in May 2011
    after the bank foreclosed on a prior owner of the unit. After purchasing unit 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 of trust on Unit
    D-3. In September 2012, the condominium documents were recorded to divide Unit D-3
    into 35 individual residential units.
    Meanwhile, in October 2011, after Filmore purchased Unit D-3 and before it
    recorded the condominium documents, Centre Pointe's unit owner's association (the
    Association)2 adopted the Twelfth Amendment ofthe declaration. It amended section
    2 We 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 of condominium units that can
    be rented or leased."3 The amendment stated, "[Pjursuant to RCW 64.34.264 and
    Section 17.1 of the Declaration, the Declaration of this Condominium may be amended
    by the vote or agreement of owners of units to which at least sixty-seven percent (67%)
    of the votes in the Association are allocated" and declared that "the Association has
    obtained the necessary consent of the requisite percentage of Unit Owners prior to the
    date of this Amendment."4 The amendment was recorded with the Whatcom County
    Auditor on October 20, 2011.
    The Twelfth Amendment changed section 9.1.14 of the original declaration by
    imposing new restrictions, exemptions, classes of owners, and other details restricting
    all unit owners' 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));
    3 The 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 it easier for owners to sell their units.
    She testified, "The FHA and lenders have guidelines under which their funds'
    willingness to make or guarantee loans is decreased or nonexistent ifthere is extensive
    leasing at a condominium."
    4 Haddad testified in her declaration, "Through the Association's management
    company, the proposed 12th amendment was submitted to the owners for a vote. It
    received a 'yes' vote from 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 of a first
    mortgage (section 9.1.14(b)(v));
    •   creating an exemption from the restriction if the lease is to immediate
    family members (section 9.1.14(b)(v)).
    In October 2012, Filmore filed a complaint for "violation of statute, breach of
    declaration, declaratory action and damages." (Capitalization omitted.) Filmore alleged
    that Centre Pointe's adoption of the Twelfth Amendment violated the WCA and Centre
    Pointe's condominium declaration. In January 2013, Filmore moved for summary
    judgment, requesting the court to conclude that the declaration's Twelfth Amendment is
    void as a matter of law. In its memo supporting summary judgment, 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 is void and shall
    not be enforceable for lack of 90% voter approval." Centre Pointe moved for RAP
    2.3(b)(4) certification. The trial court certified one question for discretionary review.
    [Wjhether the Twelfth Amendment [to Centre Pointe's declaration], which
    imposed a cap on the number of condominium 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, rather than approval by 67% of such voting
    power, under the Washington Condominium Act, see RCW 64.34.264, and/or the
    [declaration].
    See correspondence file (Appendix A to Centre Pointe's motion for extension of time to
    file motion for discretionary review (trial court's order granting Centre Pointe's motion for
    -6-
    70013-8-1/7
    certification)). We granted Centre Pointe's motion for discretionary review on that
    limited issue. See correspondence file (ruling on discretionary review).5
    ANALYSIS
    Standard of Review
    In this case we review a summary judgment order involving the interpretation of a
    statute and a condominium declaration. We review a summary judgment 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). Summary judgment is warranted if
    there is no genuine issue as to any material fact and the moving party is entitled to
    judgment as a matter of law. CR 56(c). Similarly, questions of statutory construction
    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 of which 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, 
    169 Wn.2d at 526
    .
    Washington's Condominium Act
    Washington's Condominium Act, chapter 64.34 RCW, was enacted in 1989 and
    governs all condominiums created after July 1, 1990 (including Centre Pointe). RCW
    64.34.010. The WCA requires condominium declarations to contain certain elements
    such as the name of the condominium, a legal description of the real property included
    in the condominium, and, relevant to this case, "[a]ny restrictions in the declaration on
    5We do not address the meaning of "use" in the WCA or the declaration with
    respect to other activities or in other contexts.
    70013-8-1/8
    use, occupancy, or alienation of the 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" of the 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" of the 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 of condominium unit owners 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 in the units
    are creations of the condominium statute and are subject to the statute, the
    declaration, the bylaws of the condominium association, and lawful amendments
    of the declaration and bylaws. An association may apply a restriction on leasing,
    if adopted in accordance with statute, to current owners.
    Shorewood, 
    140 Wn.2d at 54
     (emphasis added).6 We first consider whether the
    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 of the 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 of the 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 in the statute and related statutes which
    disclose legislative intent about the provision in question.'" 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 effect to all language used. In re Pers. Restraint of Skylstad, 
    160 Wn.2d 944
    ,
    948, 
    162 P.3d 413
     (2007). "If the statute is unambiguous after a review of the plain
    meaning, the court's inquiry is at an end."7 Lake, 
    169 Wn.2d at 526
    .
    The term "use" is undefined in the WCA. "In the 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 court first 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 of filling 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
    7 Neither 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
    employment that is merely temporary or occasional." Black's Law Dictionary 1681
    (9th ed. 2009). The plain meaning of "use" as defined in the 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 of the statute is unpersuasive.
    First, Centre Pointe cites to a rental cap agreement for an unrelated
    condominium drafted by counsel different from 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 of the 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 of the 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 of the declarant to purchasers in the 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 brief description of the permitted uses and use restrictions pertaining
    to the units and the common elements;
    -10-
    70013-8-1/11
    (h) A brief description of the restrictions, if any, on the renting or leasing of
    units by the declarant or other unit owners, together with the rights, if any, of the
    declarant to rent or lease at least a majority of units.
    RCW 64.34.410(1). And RCW 64.34.216(1 )(n) provides, "The declaration for a
    condominium must contain . . . [a]ny restrictions in the declaration on use, occupancy,
    or alienation of the 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 from the meaning of "use" in RCW 64.34.264(4).
    Center Pointe also relies on several other WCA provisions in which "use" is
    qualified by "residential" or "nonresidential." Centre Pointe claims that these provisions
    8 Sources 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); Shorewood W.
    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 included in 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 other jurisdiction,
    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 condominium developer exclusive right to
    rent units and prohibiting other owners from such rentals upheld as valid restriction on
    use of units); Elizabeth Williams, Cause of Action to Enforce, or Declare Invalid,
    Restriction on Use of Condominium Property, 14 Causes of Action 2d 315, § 19
    (2000) (citing cases for the principle that the power of alienation is only affected when
    an owner cannot convey title in absolute fee and that restriction on leasing affects only
    the use of units, not the right to alienate units). We need not decide 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 for declaration
    amendments that change "the uses to which any unit is restricted," is not among the
    statutory provisions that qualify the word "uses" with "residential" or "nonresidential."
    Other provisions in the WCA similarly refer to "use" without specifying residential or
    nonresidential. See RCW 64.34.443(1 )(a) (any written affirmation of fact or promise
    "which relates to the unit, its use, or rights appurtenant thereto ... or the right to use or
    have the benefit of facilities 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 written provision that a buyer
    may put a unit only to a specified use is an express warranty that the specified use is
    9 See RCW 64.34.216(1 )(e) ("The data described in (ii), (iii), and (iv) of this
    subsection (1)(e) may be omitted with respect to units restricted to nonresidential use");
    RCW 64.34.264(1) (special provisions for "units . . . restricted exclusively to
    nonresidential use"); RCW 64.34.268(1) (special provisions for units "restricted
    exclusively to nonresidential uses"); RCW 64.34.348(1) (same); RCW 64.34.352(8)
    (special provisions if "all units of a condominium are restricted to nonresidential use");
    RCW 64.34.380(4) (certain sections apply to condominiums "intended in whole or in
    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");
    RCW 64.34.415(2) (section applies "only to condominiums containing units that may be
    occupied for residential use"); RCW 64.34.440(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"); RCW 64.34.445(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 of quality for "units intended for
    nonresidential use" and "units intended for residential use).
    -12-
    70013-8-1/13
    lawful.'") (emphasis added); RCW 64.34.445(2) (declarant and dealer warrant that 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
    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 . . . .") (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 of the 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 the WCA's strong emphasis on protecting residential buyers of condominiums.11
    10 Commentators have described the WCA as "precisely drafted."
    18 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate
    Transactions § 12.4, at 29 (2d ed. 2004). Presumably the 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 Condominium Act Official
    Comments to RCW 64.34.410 (comment 1) ("The best 'consumer protection' that the
    law can provide to any purchaser is to ensure that such purchaser has an opportunity to
    acquire an understanding of the nature of the products which it is purchasing.");
    Washington Condominium Act Official Comments to RCW 64.34.950 ("This Act should
    be construed in accordance with its underlying purpose of making uniform the law with
    respect to condominiums, as well as the purposes stated in the Prefatory Note of
    simplifying, clarifying, and modernizing the law of condominiums, promoting the
    interstate flow of funds to condominiums, and protecting consumers, purchasers and
    borrowers against condominium practices which may cause unreasonable risk 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 of the 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—whether the 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 other types of uses 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 brief argument that attempted to narrow definition beyond plain
    meaning of statutory term); Rettkowski v. Dep't of Ecology, 
    128 Wn.2d 508
    , 515-16, 
    910 P.2d 462
     (1996) (rejecting Department's attempt to narrow the scope of a statute by
    reading the term "any" as a limiting word); Sacred Heart Med. Ctr. v. Dep't of Revenue,
    
    88 Wn. App. 632
    , 637-38, 
    946 P.2d 409
     (1997) (rejecting Department's overly narrow
    interpretation on ground it conflicted with statute's plain meaning as derived from
    dictionary definition). "[A] statute which is clear on its face is not subject to judicial
    interpretation." In re Marriage of Kovacs. 
    121 Wn.2d 795
    , 804, 
    854 P.2d 629
     (1993).
    -14-
    70013-8-1/15
    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. . .." Park Ave. 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 under the 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 of the Uniform Act. See Griffith v. Faltz, 
    162 Ariz. 599
    , 600, 
    785 P.2d 119
     (1990) ("Although this court is not bound by the interpretation of the
    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, it may be given substantial weight in discerning 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. It explains that
    "use" might encompass such activities as pet ownership. But the official comments to
    the WCA are much briefer and omit much of the 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 of Seattle, 
    178 Wn. App. 110
    , 119
    n.3, 
    316 P.3d 1070
     (2013). We conclude that nothing in the WCA's legislative history,
    official comments, or other related materials suggests that the 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 for passage of rental restrictions and (2) competing examples
    of other condominium declaration amendments that restricted leasing and were passed
    by either a 67 percent or a 90 percent vote. These authorities serve only to
    demonstrate that this issue is currently hotly debated and affects all condominium
    developments, not just Centre Pointe. See Jim Strichartz, How Associations Can
    Effectively Deal with Unit Rentals (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, which consists of a "Declaration of Steven A. Rockey in
    Support of Defendant'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 after the court's summary judgment ruling. The declaration was submitted to
    support the Association's motion for certification for appeal.
    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 summary judgment
    and was submitted to the trial court only in relation to the Association's motion for
    certification for appeal, (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) Filmore already submitted its responsive brief and thus
    had no chance to respond to the issues raised in the article.
    In sum, the record contains materials submitted to the trial court after the court
    made the summary judgment 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 summary judgment,
    this court will consider only evidence 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 narrow definition 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 or common meaning.
    We conclude that "the uses to which any unit is restricted" under RCW 64.34.264(4)
    unambiguously includes leasing. A lease restriction via declaration amendment
    requires a 90 percent vote. The Twelfth Amendment, which was passed with a 67
    percent vote, is inconsistent with the WCA and is therefore invalid.14
    Condominium Declaration
    Centre Point correctly notes that "Section 17.3 of the Center Pointe declaration
    tracks the text of RCW 64.34.264(4)." Appellant's Br. at 25 (citation omitted). Both the
    WCA and the declaration provide that no amendment may change "the uses to which
    a motion to strike is typically not necessary to point out evidence and issues a
    litigant believes this court should not consider. No one at the Court of Appeals
    goes through the record or the briefs with a stamp or scissors to prevent the
    judges who are hearing the case from seeing material deemed irrelevant or
    prejudicial. So long as there is an opportunity (as there was here) to include
    argument in the party's brief, the brief is the appropriate vehicle for 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 procedure allow a party to designate "those clerk's papers
    and exhibits the party wants the trial court clerk to transmit to the appellate court." RAP
    9.6(a). The Association's designation ofthe record was within this rule. We deny the
    motion to strike.
    14 We emphasize that even if the statute could be read to limit "use" to residential
    or nonresidential, individual condominium declarations may specify that a larger
    percentage than 67 percent is necessary to make general amendments to the
    declaration. See RCW 64.34.264(1) (setting "at least sixty-seven percent" as the
    general rule but allowing the declarant to require "any larger percentage the declaration
    specifies"). As noted above, here the declarant treated leasing as a permitted use and
    set forth a 90 percent voter approval rule for amendments changing the uses to which
    units are restricted.
    -17-
    70013-8-1/18
    any unit is restricted" in the absence of at least 90 percent of the votes in the
    association. We further agree with Centre Pointe's assertion that "construction of a
    paragraph of a declaration is guided by the meaning of the 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 until the passage of the Twelfth Amendment in 2012, unit owners
    were allowed to lease their units as a permitted use under the declaration's express
    provision. Section 9.1.14 of Centre 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 of the declaration, "Permitted Uses; Architectural Uniformity." (Emphasis
    added.) Section 9.1, "Permitted Uses," includes subcategories such as "Residential
    15 Centre Pointe argues that the title of this subsection, "Leasing Restrictions," is
    not determinative because the word "uses" does not appear in the same paragraph.
    But the title, structure, and text of the 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 virtually impossible for the Association to pass an amendment addressing any
    other matter governed by paragraphs in Article IX. This argument disregards the
    specific language of section 9.1.14. Moreover, in light of our holding that 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 inconsistent with the statute.
    We do not so hold. See Lake, 
    169 Wn.2d at 531
     ("We think the parties to the
    declaration intended it to comply with the [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 percent voter 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 of the WCA).
    16 Other declaration provisions also indicate a broader meaning of "use." Article
    X, section 10.16.2 of the declaration describes the Association's lien for assessments
    and provides that the Association has a lien on property "not used principally for
    agricultural purposes, together with all tenements, 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 if the declaration, among other
    things, "provides in its terms 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 if part of a Unit is acquired by
    condemnation leaving the Unit Owner with 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 Unit Owner for the Owner's Unit and 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 in the
    declaration [is] in accordance with the [HPRA]." Shorewood, 
    140 Wn.2d at 52
    . The
    court stated, "An association may apply a restriction on leasing, if adopted 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 that the condominium
    declaration contain a statement of use restrictions and that amendments must receive
    the consent of at least 60 percent of owners. The court further noted, "[A] survey of the
    case law from different jurisdictions indicates that it is the general practice to put specific
    restrictions, not merely restrictions on broad use categories, into the declaration,
    whether or not they may also be in the bylaws." Shorewood, 
    140 Wn.2d at 55-56
    . The
    court also found significant that 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 of use such as residential use or commercial use."
    Shorewood, 
    140 Wn.2d at 56
    . The court further concluded that use restrictions
    appearing in unrecorded amendments to bylaws and not in the declaration are not in
    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 in that case was governed by the HPRA rather than 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 of the 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 of development permits a majority to change the
    covenants but not create new ones, a simple majority cannot add new restrictive
    covenants that are inconsistent with the general plan of development or have no
    relation to existing covenants. This rule protects the reasonable, settled
    expectation of landowners by giving them the power to block "new covenants
    which have no relation to existing ones" and deprive them of their 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 of restrictive 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 of development 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 in their 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 percent vote.
    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 conduct to
    challenge the Twelfth Amendment for lack of 90 percent approval. The elements of
    equitable estoppel are "(1) [a]n admission, statement, or act inconsistent with the claim
    afterwards asserted; (2) action by the other party on the faith of such admission,
    statement or act; and (3) injury to such other party from allowing the 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 not favored 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 it was going to sell the
    units, together with its silence at critical times when it would have been expected to
    speak up, was inconsistent with its position taken after the 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 viewing the facts most favorably to
    Centre Pointe, it has failed to show that Filmore owed any duty to speak. Filmore's
    silence involved no representation of fact, and even if it did, it was not inconsistent with
    Filmore's later claim that the amendment was invalid.
    Centre Pointe further claims that if Andre 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. But Centre Pointe cites no authority
    requiring a plaintiff to disclose the nature of its challenges 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 insufficient to 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 of the declaration,18 and RCW64.34.455.19 Filmore also refers to
    a Bylaw that is not in our record as well as the trial court's summary judgment 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 of the cited authorities indicates that they either fail 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 consistent with the 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 inconsistent with the WCA and the original declaration and is
    18 Article XIII of the declaration provides that every "Owner and occupant of a
    Unit shall comply strictly with the provisions of the 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, "If a declarant or any other person subject to this
    chapter fails to comply with any provision hereof or any provision of the declaration or
    bylaws, any person or class of persons adversely affected by the failure to comply has a
    claim for appropriate 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 summary judgment invalidating the Twelfth
    Amendment.
    WE CONCUR:
    s<~-i«'f
    ~7        0
    -25-