¶22 (concurring) — I concur in the result but write separately because I would also affirm on the grounds that Coy failed to exhaust all administrative *282remedies before filing his lawsuit against the city of Duvall (City) alleging a cause of action under chapter 64.40 RCW, and I disagree with the mischaracterization of Callfas v. Department of Construction & Land Use, 129 Wn. App. 579, 120 P.3d 110 (2005), in Birnbaum v. Pierce County, 167 Wn. App. 728, 274 P.3d 1070, review denied, 175 Wn.2d 1018 (2012).
¶23 The exhaustion of all administrative remedies is a statutory condition precedent to asserting a cause of action under chapter 64.40 RCW. RCW 64.40.030 states, “Any action to assert claims under the provisions of this chapter shall be commenced only within thirty days after all administrative remedies have been exhausted.”3
¶24 Coy claims he “diligently pursued the legitimate remedies available.” But contrary to his assertion, the undisputed record shows that Coy was aware of, but chose not to pursue, all administrative remedies.
¶25 On May 11,2006, David Evans & Associates (Evans) submitted a preliminary plat application to subdivide the 4.58 acres of property owned by Coy into 32 lots for single family homes. The property contains a wetland. The preliminary plat application proposed filling “the entire on-site wetland area and provid [ing] fee in-lieu mitigation to the City of Duvall.” In support of the proposal, Evans submitted a “Sensitive Areas Report” prepared by The Jay Group Inc.
¶26 The City retained The Watershed Company to analyze whether the proposal complied with the City’s “Sensitive Area Regulations.” Ecologist Hugh Mortensen determined that the wetland was larger than represented in the proposal and is “an emergent wetland in a rapidly developing watershed [that] has both the potential and the opportunity to improve water quality.” Mortensen concluded the city code “would not allow alteration of this wetland, since it does serve several functions.” Mortensen also concluded the proposal did not comply with the requirement to consider *283practical or feasible alternatives that would result in less environmental impact, and did not provide an analysis of mitigation sequencing.
The proposal is to fill the entire on-site wetland area and provide fee in-lieu mitigation to the City of Duvall. Typically, since mitigation has been shown to have a historically low success rate, both in Duvall and in the broader region, it is common that agencies allow it only as a last resort. One of the key steps in preparing or evaluating a wetland modification proposal is to demonstrate that there is no practicable or feasible alternative development proposal that results in less impact to the wetland and its buffer. The proposal should include an analysis of mitigation sequencing and an evaluation of how the project has been designed to avoid impacts to the wetland or buffer and to minimize any impacts that are determined to be unavoidable. In evaluating the proposed design, it would appear that there are many efforts that could be taken to avoid wetland fill, not the least of which would be a redesign of the project to include fewer lots or cluster the allowed density on the non-sensitive area portion of the site.
¶27 On June 29, the City notified Coy that the proposal to fill the wetland did not meet the current code requirements and Coy could either revise the proposed plat to reduce density or resubmit the application after the new Sensitive Area Regulations were adopted.
. The City of Duvall has completed the wetland peer review process. The City’s wetland consultant has determined that there is more wetland and buffer on site than the Sensitive Areas Report prepared by the Jay Group dated April 7, 2006 shows. The City has determined based on peer review that the wetland fill request does not meet the criteria in [former] DMC [(Duvall Municipal Code)] 14.42.300A [(2005)]. Under existing regulation the project will be subject to minimal fill in accordance with [former] DMC 14.42.320 [(2005)], Wetland - Permitted Alterations. As the applicant you have two choices revise your plans and density calculations accordingly or wait and resubmit your application under the new Sensitive Area Regulations that are anticipated to be adopted in September of this year.
*284¶28 Jack Molver of David Evans & Associates Inc. sent Coy, for his review, a draft letter in response to the City and strongly urged Coy to not pursue administrative remedies, including a variance or reasonable use exception.
Here is a draft for your consideration.
I think that it is clear that the city is making an arbitrary call. The code clearly makes provisions for the fill.
Not complying with use of the DRC [(Duvall City Development Review Committee)] seems to be a violation of the code. [Former] DMC 14.02.030 [(2005)] states that one duty of the Planning Director is to manage the DRC.
I do not believe that we want to go into the appeal, variance or reasonable use provisions discussed in [former DMC] 14.42.060, 14.42.070 and 14.42.080 [(2005)] because we must stand firm in our believe [sic] that what we are proposing to do is permitted outright.
If so, there is nothing to seek a variance from.
The Reasonable Use route is risky in that the [hearing examiner] must rule that all reasonable use is denied. That is clearly not the case.
Please give me your comments.[4]
¶29 In the letter dated October 13 from Molver to City Planning Director Doreen Booth, Molver claims that the proposal to fill the wetland was allowed by the code and asserts the City’s position is “arbitrary and capricious, and constitute [s] a denial of rights afforded to others in the recent past.” Molver requests the DRC review the “wetland issues associated with this project.”
¶30 In response to the October 13 letter, Planning Director Booth cites the city code provisions and reiterates that the City “cannot approve, or recommend approving, the filling of the wetland under the Sensitive Areas Regulations your project is vested in.” Booth pointed out that the DRC did not hear appeals and Coy could appeal to the hearing examiner.
*285It is a planning director decision re: code interpretation. According to our city attorney, projects are not vested in process, and an appeal of my interpretation would be to the hearing examiner in accordance with [former] DMC 14.08-.010.C [(2005)]. Please call me ... if you have any questions.
¶31 After receipt of the response from Booth, Molver again advised Coy against filing an appeal.5 Coy did not appeal the City’s interpretation of the code or seek a variance or reasonable use exception. Nonetheless, Coy claims he pursued administrative remedies by requesting review by the DRC and no other administrative remedies were available. Coy misrepresents the function of the DRC, and the record shows there were other administrative remedies that he did not pursue.
¶32 The DRC is an advisory board managed by the planning director. The DRC is not an appellate review body to which the director’s code interpretation decision may be appealed. Former DMC 14.02.030A(A)(4) (2005); former DMC 14.02.080(B) (2005).
¶33 Under the code, the hearing examiner is the final decision maker for issues related to preliminary plats. Former DMC 14.08.010(C); former DMC 14.42.070. The code also expressly provides for an appeal to the hearing examiner of an interim decision concerning Sensitive Area Regulations. Former DMC 14.42.070 states:
14.42.070 Appeals.
A. Any decision to require a special sensitive area study pursuant to this chapter may be appealed by the applicant to the hearing examiner. The fee and costs, procedural and appellate provisions established in this code for variances shall apply.
B. Any decision to approve, condition or deny a development proposal based on the requirements of the sensitive area *286regulation may be required in conjunction with and according to the review procedures for the permit or approval involved.
C. Any decision authorized by the sensitive area regulations where no review process exists for the permit or approval involved beyond the development review committee (DRC), may be appealed by an aggrieved party to the hearing examiner pursuant to this title.
See also former DMC 14.42.060 (reasonable use exception); former DMC 14.42.080 (variances).
¶34 Coy does not assert that he attempted to appeal the City’s interpretation of the Sensitive Area Regulations, nor does he address why he did not have to exhaust other administrative remedies. For instance, the city code clearly provides for the issuance of a variance where, due to the special circumstances applicable to the property, “the strict application of the sensitive area regulations would deprive the subject property of rights and privileges enjoyed by other properties in the vicinity and in the same zone.” Former DMC 14.42.080(B)(1).
¶35 Because the record shows that Coy did not exhaust all administrative remedies, I would also affirm on this ground.
¶36 I also write separately because I disagree with the footnote in Birnbaum rejecting a statement in Califas as “not reconcilable with the statutory definition of ‘damages’ ’’in RCW 64.40.020(1). Birnbaum, 167 Wn. App. at 736 n.2. The footnote in Birnbaum states:
Califas stated, “Indeed, a permit applicant like the Callfases would have a claim under chapter 64.40 RCW for delay damages, as we noted above, without a writ once the tardy permit was issued.” Califas, 129 Wn. App. at 597. This statement is not reconcilable with the statutory definition of “damages,” which that opinion had no occasion to analyze. We respectfully reject it.
Birnbaum, 167 Wn. App. at 736 n.2.
¶37 The statement in Califas refers to the discussion of the Supreme Court’s decision in Mission Springs, Inc. v. City *287of Spokane, 134 Wn.2d 947, 954 P.2d 250 (1998), and is not contrary to the definition in RCW 64.40.020(1). In addressing Mission Springs, the opinion clearly states that the developer “filed his action under chapter 64.40 RCW well within 30 days of the City’s ‘act’ of voting to delay the permit to which he was entitled.” Callfas, 129 Wn. App. at 594.
Review denied at 178 Wn.2d 1007 (2013).
(Emphasis added.)
(Some emphasis added.)
In 2007, Coy submitted a wetland analysis under the City’s new Sensitive Area Regulations. However, based on the impact of the new drainage regulations, Coy abandoned that approach.