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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 WENDY BIRNBAUM,
                                                  )         No. 66322-4-I
                       Appellant,
                                                  )         DIVISION ONE
                v.
                                                  )         PUBLISHED OPINION
 PIERCE COUNTY, a political subdivision 
 of the state of Washington,                      )
                                                            FILED: April 16, 2012
                       Respondent.                )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Pierce County approved Birnbaum's permit application five 

years after she submitted it.  Birnbaum sued pursuant to chapter 64.40 RCW, alleging 

that the County exceeded legally established time limits and made arbitrary and 

capricious requests for additional information.  The trial court dismissed the claim under 

CR 12(b)(6).  We affirm.

                                            FACTS

       On February 23, 2005, Wendy Birnbaum filed an application with Pierce County 

(County)  for a conditional use permit to build a            recreational vehicle    park and 

campground.  The County held a public hearing on August 2, 2006.  On September 21, 

2006, the hearing examiner issued a report and decision determining that Birnbaum did  

No. 66322-4-I/2

not provide sufficient information.  Specifically, the decision stated that, "[t]he applicant

has not presented sufficient evidence to allow the Examiner  to make the findings 

required. . . .  The  site  plan does not provide sufficient detail of proposed uses, 

buffering, setback, access, and design."  Further, the hearing examiner found that the 

application did not "provide sufficient analysis of the impact of traffic" and "should be 

returned . . . for further review."  But, it allowed that, "[i]n the alternative, the applicant 

may consider this decision a final denial of the conditional use application for purposes 

of appeal."  

       Birnbaum did not appeal.  Instead, on December 8, 2006, she submitted a 

revised plan and requested a new public hearing.  A hearing was scheduled for May 

31, 2007, but continued to June 6, 2007.  For unknown reasons, the public hearing was 

not actually held until December 16, 2009.  On March 15, 2010, the hearing examiner 

approved the permit.  

       The final approval indicates that Birnbaum submitted another new site plan on 

July 13, 2008, and subsequent plan revisions on August 17, 2009, December 14, 2009, 

and January 19, 2010.  There is no information in the record linking these revisions to 

demands for additional information or detailing what they contained.

       Thirty  days after the final decision, Birnbaum filed a complaint against the 

County.  She alleged that the County failed to act within time limits established by law 

and made repeated demands for additional information that were arbitrary, capricious, 

unlawful, and exceeded its lawful authority.  

       The County filed a motion to dismiss under CR 12(b)(6).  The trial court granted 

the motion to dismiss solely on the basis that granting the permit was adequate relief.  

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No. 66322-4-I/3

                                        DISCUSSION

       We conduct de novo review of an order granting a CR 12(b)(6) motion to dismiss 

for failure to state a claim upon which relief can be granted.  Cutler v. Phillips 

Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994).  Dismissal is only proper 

when we can determine, beyond a reasonable doubt, that there are no facts that would 

justify recovery.  Id. Thus, a CR 12(b)(6) motion only warrants dismissal in the unusual 

case in which the plaintiff includes allegations that show on the face of the complaint 

that there is some insuperable bar to relief.  Id. The plaintiff's allegations are presumed 

to be true.  Id.  We may also consider documents whose contents are alleged in the 

complaint.  Rodriquez v. Loudeye Corp., 144 Wn. App. 709, 726, 189 P.3d 168 (2008).

   I.  Action for Damages under Chapter 64.40 RCW

       RCW     64.40.020(1)  grants permit applicants a limited cause of action for 

damages to obtain (1) "relief from acts of an agency which are arbitrary, capricious, 

unlawful, or exceed lawful authority," or (2) "relief from a failure to act within time limits 

established by law."  But, a cause of action arises only when there is an "act" that is 

either (1) "a final decision by an agency which places requirements, limitations, or 

conditions upon the use of real property in excess of those allowed by applicable 

regulations," or (2) "the failure of an agency to act within time limits established by law."  

RCW 64.40.010(6).  Any action "shall be commenced only within thirty days after all 

administrative remedies have been exhausted."  RCW 64.40.030.  "Damages" means 

reasonable expenses and losses, other than speculative losses and profits, incurred 

between the time a cause of action arises and the time a holder of an interest in real 

property is granted relief.  RCW 64.40.010(4).

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No. 66322-4-I/4

       Birnbaum makes claims under each statutory prong.  She primarily argues that 

the  County   exceeded applicable time limits.  She also claims that the County's 

demands for additional information were arbitrary, capricious, unlawful, and exceeded 

its lawful authority.  

       A.     Damages under the "Failure to Comply with Time Limits" Prong

       Birnbaum's primary claim is that the County failed to comply with established 

time limits.  RCW 36.70B.080 requires local governments to maintain regulations that 

require a permit decision within 120 days, and Pierce County Code (PCC) requires a 

final decision on a complete permit application within 120 days.  PCC 18.100.010.  

When the County requests that an applicant correct plans, perform required studies, or 

provide additional information, then the time spent preparing the additional information 

is not included in the 120 days.  PCC 18.100.020.

       The County argues the 30 day limitations period began to run when the 120-day 

period expired, and thus expired long before Birnbaum filed her complaint.          In contrast, 

Birnbaum argues that her complaint was timely because she could not file her lawsuit 

until the County issued its final decision.  Birnbaum's reading is simply untenable. 

       The statutory language is unambiguous.  An act occurs when there is either a 

final decision or a failure to act within established time limits.  RCW 64.40.010(6).  

Every claim under chapter 64.40 RCW is subject to the 30 day statute of limitations in 

RCW 64.40.030.  Callfas v. Dep't of Constr. & Land Use, 129 Wn. App. 579, 593, 120 

P.3d 110 (2005).         The   30   day limitations period begins when all available 

administrative remedies are exhausted.  RCW             64.40.030.  But, no exhaustion is 

required if there is no adequate administrative remedy.  Smoke v. City of Seattle, 132 

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No. 66322-4-I/5

Wn.2d 214, 224-25, 937 P.2d 186 (1997).  

       Here, Birnbaum herself argues that there is no adequate administrative remedy 

for failure to timely process a permit.  Thus, the limitations period began when the 120 

day time limit was exceeded.  Birnbaum filed her application on February 23, 2005.  

The hearing examiner approved the permit on March 15, 2010.  It is beyond dispute 

that she knew the 120 day time limit had been exceeded far longer than 30 days when 

she filed her complaint against the County on April 14, 2010.  Her claim was time 
barred.1  

       Birnbaum argues that Callfas and Hayes v. City of Seattle, 131 Wn.2d 706, 934 

P.2d 1179, 943 P.2d 265 (1997) support her conclusion.  However, neither Hayes nor 

Callfas involved a violation of time limits as the basis of the cause of action.  In Hayes, 

the city council issued a conditional approval and Hayes appealed to the superior 

court.  131 Wn.2d at 709.  On remand, the city council reversed course and approved 

the permit without the condition.  Id. at 710.  Within 30 days of the approval Hayes filed 

suit for damages incurred during the appeal to the superior court.  Id.        The city argued 

that the suit was untimely since it was not brought within 30 days of the original 

decision conditioning the permit.  Id. at 714.  The Supreme Court was not persuaded 

that Hayes had to file a complaint within 30 days of the conditional approval.  Id. at 716.  

Rather, the Hayes court determined that there was no action triggering the statute of 

limitations until the city's final decision.  Id.      But,  that conclusion    does not help 

       1 Birnbaum argues that this conclusion cannot be correct because any available 
damages would be minimal, and it is too difficult for an applicant to keep track of tolling 
periods and when the time limit has expired.  These are limitations which flow from the 
language of the statute.  We are not at liberty to rewrite them.

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No. 66322-4-I/6

Birnbaum.  Hayes challenged a permit decision, not a violation of a time limit.  The 

Hayes court did not hold that an applicant cannot challenge a failure to comply with a 

time limit until there is a final decision, and it is not a fair inference from that decision.

       In Callfas, we concluded that an action for damages is not ripe until the city has, 

in fact, acted.  129 Wn. App. at 598.  As in Hayes, Callfas made no claim for failure to 

act within an established time limit.  Id. at  597. 

       Insofar as Birnbaum sued the County for damages based on failure to comply 

with established time limits, the County's CR 12(b)(6) motion to dismiss was properly 

granted.

       B.     Damages under the "Final Decision" Prong

       The question remaining is whether Birnbaum has stated a claim for damages 

based on arbitrary and capricious actions or delays under the final decision prong of 

the statute.  An "act" for this purpose is "a final decision by an agency which places 

requirements, limitations, or conditions upon the use of real property in excess of those 

allowed by applicable regulations in effect on the date an application for a permit is 

filed." RCW 64.40.010(6).  The statute focuses on the content of the final decision, the 

permit, and nothing else.  To the extent these requirements, limitations, or conditions 

are found to be arbitrary and capricious or otherwise unlawful, chapter 64.40 RCW 

provides   for damages while obtaining relief from those terms.  "Damages" are 

reasonable expenses and losses incurred between the time a cause of action accrues 

and the time relief is granted.  RCW 64.40.010(4).   

       Birnbaum's complaint does not allege that the final 2010 permit approval places 

requirements, limitations or conditions upon her real property which gave rise to her 

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No. 66322-4-I/7

damages.  Rather, she seeks damages for costs and delays that occurred while the 

County processed the application,  before the permit issued.  When the statutory 

definition of damages is given its plain meaning, it authorizes damages only for 

expenses and losses that are incurred after a cause of action under the statute arises. 

RCW 64.40.010(4); Brower v. Pierce County, 96 Wn. App. 559, 566, 984 P.2d 1036 

(1999).  Birnbaum has not alleged damages that are defined as recoverable under the 

statute.

       Birnbaum argues that her claim should survive because case law contemplates 

delay damages and, specifically, a claim for arbitrary delay occurring prior to a final 

decision which may be brought once the permit decision is final.  That position is not 

supportable.  

       In Callfas, we considered the propriety of a "continuing violation" claim when the 

city requested numerous corrections to an application, but had not yet issued a 

decision.  129 Wn. App. at 580-81, 590.  The court stated, "Sympathetic though we 

may be to the Callfases' frustration over four years of delay, we cannot read chapter 

64.40 RCW      as permitting a general cause of action for arbitrary and capricious 

administrative delay in processing a permit application."  Id. at 592.  We explained that, 

"delay in processing or granting a permit may be actionable under chapter 64.40 RCW 

as an 'arbitrary and capricious,' final decision, or an 'arbitrary and capricious' failure to 
act within the time limits established by law."  Id. at 596.2      But, the claim here is not 

       2  Callfas stated, "[i]ndeed, 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." Callfas, 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.

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No. 66322-4-I/8

what was contemplated by that statement.

       Rather, the Hayes and Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 

954 P.2d 250 (1998), decisions are examples of how the statute applies to delay 

damages under the final decision prong.  In Mission Springs, the city council voted to 

withhold a grading permit from an applicant that had a legally vested right to the permit.  

134 Wn.2d at 953-54.  The applicant sued for delay damages within 30 days of the 

vote, and the city ultimately rescinded its vote.  Id. at 954, 957.  The Supreme Court 

determined that the applicant could pursue delay damages.  Id. at 961-62.  But, those 

damages were only incurred after the city council made a final decision by affirmatively 

voting to withhold the permit.  Likewise, the Hayes court allowed damages, but the 

damages were incurred after the city council placed an arbitrary restriction on the 

permit. 131 Wn.2d at 717-18.

       Under the final decision prong, the final decision is the act which triggers the 

cause of action.  The definition of damages limits recovery to those damages that occur 

after the cause of action accrues.  Simply put, the statute does not contemplate 

damages -- for delay or otherwise -- under the final decision prong that occurred prior to 

the final decision.

       Insofar as Birnbaum's claims were based upon arbitrary and capricious requests 

for more information and delay prior to the final decision, the claim seeks damages not 

recoverable under this prong of the statute.  Dismissal of these claims under CR 

12(b)(6) was proper.

   II. The Adequate Relief Theory

       The trial court determined that because the permit was granted Birnbaum 

                                                   8 

No. 66322-4-I/9

received adequate relief and, pursuant to Brower, was not entitled to damages under 

chapter 64.40 RCW.  The Browers filed a short plat application with the Pierce County 

Planning and Lands Service Department (PALS).  Brower, 96 Wn. App. at 560.  They 

believed that improvements to an existing access road would be exempt from wetlands 

review.  Id. at 561.  But, PALS did not grant the wetlands review exemption because it 

determined the access point was just a dirt path, not an existing road.  Id. The Browers 

appealed the PALS decision to a hearing examiner.  Id.                The hearing examiner 

reversed, concluding that the improvements were exempt from wetlands review.  Id.  

The Browers sued pursuant to chapter 64.40 RCW for damages for "the expense of 

delay and other harms" incurred subsequent to the hearing examiners decision during 

the administrative appeal.  Id.

       This court reasoned that an applicant cannot bring a claim unless (1) they have 

exhausted all administrative remedies and (2) the relief granted by the administrative 

remedy is inadequate.  Id. at 563-64.  The Browers administratively appealed the 

adverse wetlands exemption decision and obtained the relief they sought, reversal.  Id.

at  561.  Because  the Browers received adequate relief, they               had no cause of 

action -- and no right to damages -- while exhausting administrative remedies.  Id. at 

566.

       However, Brower does not stand for the proposition that, as a matter of law, the 

grant of a permit is adequate relief which precludes every action for damages under 

chapter 64.40 RCW. The Brower court was not asked to decide that question.  Here, 

adequate relief from exhaustion of administrative remedies was not available.  Unlike

Brower, the County's alleged arbitrary and capricious requests for more information 

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No. 66322-4-I/10

were part and parcel of the permit review process and were not the subject of an 

administrative appeal or other form of exhaustion of administrative remedy.  Likewise, 

there was no administrative remedy to exhaust for the claimed violation of the 120 day 

time limit.  Brower does not apply here.

   III. Collateral Attack and Collateral Estoppel

       The County also argues that Birnbaum's lawsuit is an impermissible collateral 

challenge to the 2006 decision that should have been brought as a Land Use Petition 

Act (LUPA), chapter 36.70C RCW, claim.  Further, it argues that the lawsuit is barred 

by collateral estoppel because challenging the hearing examiner's 2006 decision 

requesting more information would be a second litigation of issues already decided.  

       The 2006 decision stated:

       The request for a conditional use permit to allow establishment of a 
       campground and associated recreational uses is hereby returned to 
       Pierce County Planning and Land Services and the Pierce County 
       Environmental Official for further review as set forth above.  In the 
       alternative, the applicant may consider this decision a final denial of the 
       conditional use application for purposes of appeal.  Upon completion of 
       review of the above items and the preparation of a more detailed site 
       plan, this matter may be rescheduled for hearing with notice as in the first 
       instance and specific written notice to parties of record.

Birnbaum did not treat it as a final decision and exercise her option to appeal.  She 

exercised her option to submit a revised plan, which the County treated as part of the 

original application, not as a new application.  Moreover, Birnbaum is challenging the 

County's requests for more information that occurred between the 2006 decision and 

the 2010 approval, not the request for more information in the 2006 decision itself.  It 

belies logic to say that her claims were barred before the County even made the 

requests. 

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No. 66322-4-I/11

       We agree that if this were a challenge to the 2006 decision it would be 

precluded under one or more theories.  However, the County's arguments are based on 

a mischaracterization of Birnbaum's claims.  Accordingly, Birnbaum's lawsuit is not an 

impermissible collateral attack on the 2006 decision that should have been brought as 

a LUPA claim.  Likewise, her claim is not collaterally estopped.

   IV. Attorney's Fees

       Both parties request attorney's fees pursuant to RAP 18.1 and RCW 

64.40.020(2), which provides that the prevailing party "may be entitled to reasonable 

costs and attorney's fees."  Because the County is the prevailing party, we award it 

reasonable costs and fees.

       We affirm.

WE CONCUR:

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