Oral Argument May 28, 2014
Appeal from Whatcom County Superior Court. Docket No: 12-2-02766-4. Judge signing: Honorable Charles Russell Snyder. Judgment or order under review. Date filed: 02/08/2013.
Steven A. Rockey (of Rockey Stratton PS ); Richard A. Davis III (of Chmelik, Sitkin & Davis ); and Timothy J. Graham (of Hanson Baker Ludlow Drumheller PS ), for petitioner.
Douglas K. Robertson and Kristen C. Reid (of Belcher Swanson Law Firm PLLC ), for respondent.
Lau, J. WE CONCUR: Dwyer, J., Appelwick, J.
[183 Wn.App. 331] ¶ 1 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 [183 Wn.App. 332] amendments restricting the leasing of units. 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 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 12th amendment.
¶ 2 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 multiphased 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."
¶ 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. ...
[183 Wn.App. 333] . ...
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.
¶ 4 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 ...