¶32 (dissenting) — Despite the circuitous reasoning engaged in by the majority, this case really presents a very straightforward application of the Land Use Petition Act (LUPA), chapter 36.70C RCW. LUPA governs review of final determinations of land use decisions. It is the “exclusive means of judicial review of land use decisions.” RCW 36.70C.030(1). Aland use petition is barred unless it is filed “within twenty-one days of the issuance of the land use decision.” RCW 36.70C.040(3); James v. Kitsap County, 154 Wn.2d 574, 583, 115 P.3d 286 (2005). Because Mr. Post failed to bring these claims within 21 days of the issuance of the land use decisions about which he complains, his claims are barred.
¶33 Ironically, it is the majority that creates the very due process problems that it believes constitute violations of petitioner Paul Post’s constitutional rights, i.e., the lack of any procedures for appealing any but the first penalty. If the majority recognized, as it should, that the land use *317decisions made under the city of Tacoma’s ordinance are properly subjected to timely LUPA review, LUPA’s provisions would ensure prompt review of those penalties. Unfortunately, because Mr. Post failed to timely challenge any of the penalties through LUPA, and sat on his rights for months, and in some cases years, his due process claims are not properly before this court.
ANALYSIS
¶34 Mr. Post’s claims are subject to LUPA because his claims arise from land use decisions. A ‘land use decision” subject to LUPA must be “a final determination by a local jurisdiction’s body or officer with the highest level of authority to make the determination.” Former RCW 36.70C-.020(1) (1995).13 Final land use decisions include decisions that relate to the enforcement of ordinances “regulating the improvement, development, modification, maintenance, or use of real property.” Former RCW 36.70C.020(l)(c).14 The fines that Mr. Post complains about were imposed by the city’s Building and Land Use Services Division (Division) in an effort to enforce the Tacoma Minimum Building and Structures Code (Code) under the Tacoma Municipal Code (TMC), pertaining to minimum building standards for properties within the Tacoma city limits. The Division’s decisions to impose the fines were land use decisions within the meaning of former RCW 36.70C.020(l)(c) because they related to enforcement of the Code, in particular, to ensure that Post improve, modify, or maintain his buildings so as to bring them into compliance with the building code requirements.
¶35 Mr. Post argues, however, that the Division’s decisions are not “final determinations” as defined by LUPA because the ordinance establishes that the officer with the highest level of authority to make decisions is a hearing *318officer and no hearing officer has made a final determination about the penalties imposed beyond the first one. He bases his argument on the fact that under the ordinance an owner may seek administrative review by the building official of the initial notice of violation and the first civil penalty. TMC 2.01.060(D)(6), (E)(5). The ordinance also provides for an appeal of the building official’s decision to the hearing examiner within 30 days of the decision. TMC 2.01.060(D)(7), (E)(6).
¶36 However, while the hearing examiner is the officer with the highest level of authority to review these particular determinations, this is not true of other decisions under the ordinance. There is no review provided for any further penalties imposed by the Division. Therefore, as to any decisions other than the initial notice and the first penalty, the hearing examiner is not the officer with the highest level of authority to make the determination.
¶37 Instead, building inspection and assessment of the additional penalties authorized by the Code are carried out by the “building official,” defined as the “Manager of the Building and Land Use Services Division of the Public Works Department of the City of Tacoma, charged with the administration and enforcement of the Building Code, or his or her duly authorized representatives.” TMC 2.01.050. Accordingly, as to any decision other than the first notice of violation and the first fine imposed, the building official is the officer with the highest level of authority to make the land use determination.
¶38 Because the decisions to impose the additional penalties are land use decisions involving final determinations by the official having the highest level of authority to make the determinations, Mr. Post’s recourse for judicial review of the building official’s decisions to impose the additional fines is under LUPA unless, pursuant to former RCW 36.70C.020(l)(c), the “local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction.” If this exception applies, Mr. Post’s recourse would be through the appropriate court of limited jurisdiction.
*319¶39 But, the exception does not apply, contrary to the majority’s conclusion, because the city of Tacoma’s ordinance establishes it own system for enforcement. Under RCW 7.80.010(5), a city may establish a system for enforcement of civil infractions other than the judicial system set out in chapter 7.80 RCW RCW 7.80.010(5) specifically provides that nothing in chapter 7.80 RCW “prevents any city, town, or county from hearing and determining civil infractions pursuant to its own system established by ordinance.”
¶40 The city of Tacoma has established by ordinance a comprehensive system for hearing and determining civil infractions in relation to violations of its building Code. Its system allows for inspection and determination of a violation by the building official, administrative review of the notice of first violation and imposition of the first fine, and appeal to a hearing examiner. It provides for inspection, determination of compliance/noncompliance, and imposition of any further penalties by the building official. While the city has not authorized administrative review of these latter decisions, it cannot seriously be doubted that the city of Tacoma has established what it believes to be an adequate system for enforcement of its Code.
¶41 The exception in former RCW 36.70C.020(l)(c) does not apply. The court should hold that LUPA governs this case.
¶42 LUPA’s purpose “is to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions.” RCW 36.70C-.010. Relief may be granted under LUPA if the party seeking relief establishes that one of the standards in RCW 36.70C.130 has been met, among them that the land use decision violates the constitutional rights of the party seeking relief. RCW 36.70C.130(l)(f). The due process claims urged by Mr. Post and addressed by the majority are constitutional claims of a type that fall within LUPA’s standards for granting relief.
*320¶43 The problem for Mr. Post is, however, that a land use petition under LUPA is barred and the court may not grant review unless it is filed within 21 days of issuance of the land use decision. RCW 36.70C.040(2), (3); Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 162 Wn.2d 825, 843, 175 P.3d 1050 (2008) C‘[t]he crux of LUPA is that persons and agencies who oppose a final land use decision . . . must appeal that decision within 21 days”). Mr. Post failed to file a timely petition under LUPA, and therefore all of his claims are barred.
¶44 I would affirm the trial court’s grant of summary judgment on the ground that LUPA bars Mr. Post’s claims because they were not timely filed.
¶45 The majority’s decision to the contrary is seriously flawed for several reasons.
¶46 First, before deciding whether LUPA applies to decisions made in this case, the majority looks to former RCW 36.70C.020(l)(c) to decide whether the exception in this subsection applies to preclude a LUPA petition. Concluding that it does, the majority says that because the exception applies, it is unnecessary to decide whether the decisions to impose penalties are land use decisions within the meaning of LUPA. Majority at 310 n.5. However, as noted, former RCW 36.70C.020(l)(c) defines a particular type of land use decision within the scope of LUPA — “[t]he enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property.” (Emphasis added.) After defining this type of land use decision, the subsection then provides that a LUPA petition cannot be filed if the jurisdiction must “enforce the ordinances in a court of limited jurisdiction.” Id. (emphasis added).
¶47 Plainly, whether the exception applies first requires a determination that the decision at issue is the particular type of land use decision that is defined in former subsection (l)(c). If it is, then, and only then, must a court ask whether the exception applies. The statute does not permit applying the exception in former subsection (l)(c) unless *321there is first a determination that a land use decision as defined in the subsection is at issue.
f48 The majority’s analysis for deciding that the exception applies is equally confounding. The majority turns to chapter 7.80 RCW because this chapter establishes a system of civil infractions. Civil infractions may be subject to enforcement in courts of limited jurisdiction or, as mentioned above, a city can choose to hear and determine civil infractions pursuant to its own system established by ordinance. RCW 7.80.010(5). The majority says that the city of Tacoma set up its own system with regard to the first notice of violation and the first penalty imposed under TMC 2.01.060. However, because the ordinance does not provide for review of any further decisions to impose penalties, the majority concludes the city has not set up a “complete” system with regard to such decisions and therefore the “default” applies under chapter 7.80 RCW. Majority at 312. That is, these penalties must be subject to enforcement in a court of limited jurisdiction.
¶49 But as explained, in fact the city did establish its own system by ordinance — it is simply a system that does not allow for administrative review of the additional penalties.
¶50 Of critical importance is the principle that whether this system is constitutional is a separate question from whether the city of Tacoma established by ordinance its own system of hearing and determining civil infractions. The former question involving the constitutionality of the procedure (and imposition of fines under the system) is exactly the kind of question that is subject to LUPA review under RCW 36.70C.130(l)(f), as mentioned. But whether the system the city has established by ordinance is valid does not justify any interference in the city of Tacoma’s exercise of its legislative authority. The city, not the majority, has the power to establish its own system of enforcement by ordinance.
¶51 Moreover, the majority cites absolutely nothing that justifies its usurping the city’s power to choose whether to *322establish an administrative enforcement scheme or resort to a judicial enforcement scheme in courts of limited jurisdiction. The city of Tacoma plainly elected to establish an administrative system, not a judicial system.
¶52 The majority refers to the Seattle Municipal Code (SMC) as containing a “similar” building standards code that provides for judicial enforcement of civil infractions. But the Seattle ordinance specifically states that civil enforcement actions are to “be brought exclusively in Seattle Municipal Court, except as otherwise required by law or court rule.” SMC 22.206.280(G). The city of Tacoma, in contrast, has specifically provided for nonjudicial enforcement of its ordinance. The substantive provisions of the two cities’ codes may be “similar” insofar as both concern enforcement of building codes, but they are dissimilar in terms of the enforcement mechanisms adopted. The system established by the city of Tacoma may not be to the majority’s liking, but the city of Tacoma, unlike the city of Seattle, has elected its own system of enforcement by ordinance.
¶53 The majority, not the city, has created limited jurisdiction court review. The majority’s action flies in the face of the city’s manifest intent to establish its own system by ordinance. It is an egregious violation of the separation of powers doctrine, a grievous usurpation of the city’s authority, and an exercise of authority this court does not enjoy.
¶54 The majority is flawed in another respect. It correctly states, majority at 307 n.2, that although Post initially sought reimbursement of his fines and monetary damages, those claims were dismissed or abandoned by Post. Then the majority says, inconsistently, that LUPA does not apply even as to the first notice of violation and the first penalty because “[c]laims provided by any law for monetary damages or compensation” are not subject to LUPA. RCW 36.70C.030(l)(c); majority at 312. But there are no claims for monetary damages or compensation at issue.
*323¶55 Next is perhaps the most perplexing part of the majority’s confusing analysis. Having just concluded that the city of Tacoma’s enforcement system is in fact a bifurcated system with part established by ordinance and the rest a “default judicial system” under chapter 7.80 RCW, the majority then analyzes the due process challenge without regard to these statutes. It agrees with Post that his due process rights were violated because there is no way to appeal penalties assessed after the initial notice of violation and the first monetary penalty. Majority at 312-13.
¶56 The majority cannot have it both ways. Either enforcement is through the system the city of Tacoma actually established, without an administrative appeal for the additional penalties but with recourse to superior court under LUPA or, under the majority-created system, partial enforcement is through a court of limited jurisdiction and governed by chapter 7.80 RCW, in which case appeal is provided for under this chapter. See RCW 7.80.080(3)-(4) (providing for hearings for persons who wish to contest the determination of having committed a civil infraction or who wish to explain mitigating circumstances), .100 (describing procedures for hearing, including the right to present evidence and examine witnesses with provision for subpoenaing enforcement officer who issued the notice of civil infraction; providing for appeal to superior court).
¶57 Finally, although the majority believes that accepting the city’s ordinance for what it allows — administrative appeal only as to the first notice of violation and first penalty — “would allow Tacoma to impose unlimited punishment on civil defendants” without any recourse, majority at 312, this would not be true if LUPA is properly invoked to challenge the penalties.
CONCLUSION
¶58 The majority goes to extraordinary lengths to avoid the straightforward answer to Mr. Post’s claims. The decisions about which he complains are land use decisions *324subject to LUPA. His failure to timely file under LUPA precludes review of his claims.15
¶59 I dissent.
C. Johnson and Fairhurst, JJ., concur with Madsen, J.Now codified at RCW 36.70C.020(2).
Now codified at RCW 36.70C.020(2)(e).
The posture of this case does not legitimately permit analysis of the due process claims raised by Mr. Post. I therefore do not address the question whether, in addition to LUPA review, the city must provide for administrative appeal of the penalties imposed after the first penalty.