      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JEAN CONGDON, an individual,
                                                   No. 79452-3-I
                               Appellant,
                                                   DIVISION ONE
               v.

ISLAND COUNTY, a political subdivision
of the State of Washington; and WILLIAM            UNPUBLISHED OPINION
SETTER and JANE DOE SETTER,
individually and as a marital community,

                               Respondents,

DAVID WECHNER and JANE DOE
WECHNER, individually and as a marital
community and in David Wechner' s
former official capacity as Director Island
County Planning and Community
Development Department; JESS
COOPER and JOHN DOE COOPER
individually and as a marital community
and in Tess Copper's former official
capacity as Assistant Planner Island
County Planning and Community
Development Department; JANET
WRIGHT and JOHN DOE WRIGHT
individually and as a marital community
and in Janet Wright's official capacity as
Assistant Planner Island County Planning
and Community Development
Department,

                                 Defendants.


      CHUN, J. — Jean Congdon sued her neighbor and Island County for

damages arising out of the County’s decision on her shoreline exemption permit.


 Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79452-3-I/2


The trial court dismissed the lawsuit on summary judgment. Congdon appeals.

We conclude that the Land Use Petition Act (LUPA) and collateral estoppel bar

her claims, and that the statute of limitations bars some of her claims. We affirm.

                                  BACKGROUND

       In 2006, Congdon purchased a waterfront lot at Lagoon Point in

Greenbank, Whidbey Island, which was located between two other lots. The

adjacent lot to the north was a developed lot with a single family residence and

the adjacent lot to the south was a vacant lot. In 2012, William Setter purchased

the vacant lot. Congdon and Setter intended to build homes on their lots, which

were both on the end of the canal and “pie” shaped, meaning each home would

be partly visible from the other property. Both applied for shoreline exemption

(SHE) permits to determine the setback distance from the shoreline or the

“Ordinary High Water Mark” (OHWM).

       Under the Island County Code in place at the time, the normal shoreline

setback was 50 feet from the OHWM. ICC 17.05.200(10)(a). Under these

regulations, if there were existing principal residences on either side of the

proposed building footprint, the setback for the proposed structure “may be

reduced by review and approval of the shoreline administrator.”

ICC 17.05.200(10)(c)(i). In these cases, the setback “may be reduced to the

average of the setbacks of the existing adjacent principal residences.”

ICC 17.05.200(10)(c)(i). If there was only one existing principal residence on

either side of the proposed building site, the setback “may be reduced (with

approval of the administrator) to the average of the setbacks for the existing


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adjacent principal residence and the applicable setback for the adjacent vacant

parcel.” ICC 17.05.200(10)(c)(ii).

       Setter’s permit application requested the standard 50-foot setback.

Congdon’s application proposed a 26-foot setback. On April 30, 2014, the

County Planning Department (Department) approved Setter’s permit.

       In May 2014, Congdon learned from a member of the Lagoon Point

Architectural Committee that “something was going on between Setter and the

Planning Department that would affect where she could build her home.”

Department Planner Janet Wright had previously told Congdon that the setback

criteria in her proposed plot plan was correct. When Congdon asked Wright if

anything had changed with her proposed setback, Wright confirmed that the

setback remained as she proposed. About a week later, Setter saw Congdon

placing stakes on her lot for the outline of her home within 18 feet of the bank.

When Congdon told him the Department confirmed her proposed setback and

she expected to receive her permit approval the following week, Setter became

upset, concerned about the possible negative impact that the location of her

home would have on his view. He complained in an e-mail to Department

planners and the Director of Planning.

       On June 13, 2014, the Department approved Congdon’s SHE permit with

several conditions, including a 43-foot shoreline setback. Citing

ICC 17.05.200.B(10)(c)(ii), the Department determined a 43-foot setback “is the

average of the 50 foot standard shoreline setback for the undeveloped lot to the

south and the 36 foot setback of the residence to the north.”


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No. 79452-3-I/4


       Congdon appealed the Department’s decision to the Island County

Superior Court under LUPA, RCW 36.70C. She claimed two Department

planners, first Jason Johnson and then Wright, verbally approved her 26-foot

setback, but after Setter complained to the County, the Director of Planning,

David Wechner, “became involved in the setback decision” and she “was then

informed that the new setback would be 50 feet, which was shown as a string

line on a County-edited drawing of [her] submitted plot plan.” She further claimed

“substantial evidence in the record” showed the County should have approved

her application for a 28-foot1 setback without any changes and that “the County

failed to properly review and approve a decision [on her setback application].”

Finally, she claimed the decision violated her constitutional rights to due process

because the County “failed to afford [her] her opportunity for an open record

administrative appeal hearing” and “failed to adequately review and issue a

decision in a fair and equitable manner and in a manner that treated the

application equally to other shoreline determinations made within Island County

generally and the more immediate area.” She asked the court to reverse the

decision or remand for an open record hearing before the County’s Hearing

Examiner, for permission to amend the pleading to conform to the proof, and

“other and further relief as may be just and equitable.”

       In February 2016, the superior court granted the County’s motion for

summary judgment, affirming the County’s decision and dismissing Congdon’s


       1
        Congdon’s LUPA petition states her requested setback was for 28 feet though
her complaint for damages states that it was for 26 feet.


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LUPA petition with prejudice. The court found the County correctly interpreted

and applied ICC 17.05.200(B)(c)(10)(ii) to Congdon’s shoreline exemption permit

application. The court further found that testimonial evidence was unnecessary

because code interpretation is a question of law and “because the County’s plain

language analysis is correct, any prior informal interpretation to the contrary

would not bind the County to such an incorrect reading or application of the

Code.” Congdon did not appeal this order.

       In early 2016, Island County amended its Shoreline Master Program and

included a provision that changed the minimum setbacks to 40 feet.

ICC 17.05A.090(D)(3), Table 3 (setbacks for SRCC or “Shoreline Residential-

Canal Community”). The amendments also changed the formula for averaging

setbacks of existing residences. ICC 17.05A.090(F)(1), (2).

       In May 2016, Congdon applied for a new SHE permit seeking a 37-foot

setback under the new rules.2 County staff confirmed to her the accuracy of her

submission and proceeded to process her Shoreline Exemption request. During

this process, County staff concluded that both Congdon and staff had misapplied

the setback averaging provisions. The County notified Congdon of the new

interpretation and issued a formal decision granting her shoreline exemption with

a 38-foot shoreline setback.




       2
          Congdon’s May 2016 permit application was not designated on appeal. The
facts relating to this application are taken from the Island County Hearing Examiner’s
findings on Congdon’s appeal of the application decision. Because she did not appeal
the Hearing Examiner’s decision, we accept the findings of fact as verities.


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       Congdon appealed the County’s decision to the Island County Hearing

Examiner. The parties presented evidence in a public hearing before the

Hearing Examiner on October 20, 2016. Applying ICC 17.05A.090(F)(2), the

Hearing Examiner concluded that the County properly reduced the setback to 38

feet and denied the appeal. The Hearing Examiner rejected Congdon’s

interpretation of subsection (2) which “requires reading into the Ordinance

additional language not present, and violates a standard rule of statutory

construction.” Congdon did not appeal the Hearing Examiner’s decision.3

       In 2018, representing herself, Congdon filed a complaint for damages

against the County, Department staff, and Setter. She claimed the County’s

conduct during her permit approval process deprived her of her constitutional

right to the use and enjoyment of her property under the federal and state

constitutions, deprived her of a property interest without notice and opportunity to

be heard under the federal and state constitutions, and violated the right to equal

protection under the federal and state constitutions. She further claimed the

County created a “view protection” right for Setter, retaliated against her when

she complained about her permit in violation of her First Amendment rights,

negligently delayed processing her application, and intentionally misrepresented

to her that her setback had not changed despite an agreement with Setter to

increase his setback to her detriment.



       3
         Neither Congdon’s “Comprehensive Statement of Appeal” nor the record before
the Hearing Examiner have been designated on appeal. Accordingly, our review of that
record is limited to the Hearing Examiner’s findings and decision.



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No. 79452-3-I/7


      As to Setter, Congdon claimed he made material misrepresentations to

the Department and conspired with the Department to conceal them from her.

Finally, she claimed both the County and Setter caused her severe emotional

distress. Congdon claimed she was unaware of the collusion between Setter

and the Department until she made a public records request in 2017 and

obtained e-mails exchanged in 2014 containing Setter’s complaints and the

County’s response. She sought “compensatory, emotional and punitive

damages in an amount not less than $300,000.”

      Both Setter and the County moved for summary judgment, arguing the

complaint was barred by collateral estoppel, LUPA preemption, and the statute of

limitations and asserted other substantive defenses. The trial court granted

summary judgment and dismissed the complaint with prejudice.

      Congdon appeals.

                                    ANALYSIS

      We review de novo a trial court’s order on summary judgment. Spokane

Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 106, 117 P.3d 1117

(2005). In reviewing a summary judgment order, we perform the same inquiry as

the trial court. Sheikh v Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). “We

consider all facts submitted and all reasonable inferences from the facts in the

light most favorable to the nonmoving party.” Rublee v. Carrier Corp., 192 Wn.2d

190, 199, 428 P.3d 1207 (2018). “Summary judgment is proper when the record

demonstrates there is no genuine issue of material fact and the moving party is




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entitled to judgment as a matter of law.” Munich v. Skagit Emergency Commc’ns

Ctr., 175 Wn.2d 871, 877, 288 P3d 328 (2012).

                                  LUPA preemption

       Congdon contends LUPA does not preempt her complaint because the

statute does not apply to claims for monetary damages or compensation. We

disagree.

       LUPA governs the process for judicial review of land use decisions. A

“land use decision” is “a final determination by a local jurisdiction’s body or officer

with the highest level of authority to make the determination, including those with

authority to hear appeals,” and includes final determinations on “[a]n application

for a project permit or other governmental approval required by law before real

property may be improved, developed, modified, sold, transferred, or used,” and

“[a]n interpretative or declaratory decision regarding the application to a specific

property of zoning or other ordinances or rules regulating the improvement,

development, modification, maintenance, or use of real property. . . .”

RCW 36.70C.020(2)(a), (b). An unappealed land use decision “becomes final

and binding and is deemed valid and lawful.” Mercer Island Citizens for Fair

Process v. Tent City 4, 156 Wn. App. 393, 399, 232 P.3d 1163 (2010).

Accordingly, “even illegal decisions must be challenged in a timely, appropriate

manner.” Mercer Island Citizens, 156 Wn. App. at 399.

       RCW 36.70C.030 provides LUPA “shall be the exclusive means of judicial

review of land use decisions,” but lists exceptions where it does not apply,

including:


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No. 79452-3-I/9


       Claims provided by any law for monetary damages or compensation.
       If one or more claims for damages or compensation are set forth in
       the same complaint with a land use petition brought under this
       chapter, the claims are not subject to the procedures and standards,
       including deadlines, provided in this chapter for review of the petition.
       The judge who hears the land use petition may, if appropriate,
       preside at a trial for damages or compensation.

RCW 36.70C.030(1)(c).

       Generally, this section applies to exclude from LUPA claims that seek

compensation rather than a reversal or modification of a land use decision.

Lakey v. Puget Sound Energy, 176 Wn.2d 909, 928, 296 P.3d 860 (2013). But

where “plaintiffs needed to show the illegality of part of the permit to succeed on

their claims,” this amounts to “an attack on a land use decision time barred by

LUPA.” Lakey, 176 Wn.2d at 926 n.11 (citing James v. County of Kitsap, 154

Wn.2d 574, 583 -586, 115 P.3d 286 (2005)); see also Asche v. Bloomquist, 132

Wn. App. 784, 801, 133 P.3d 475 (2006) (LUPA precludes public nuisance claim

that depended on a finding that County improperly applied zoning code to

specific property); Woods View II, LLC v. Kitsap County, 188 Wn. App. 1, 24-25,

352 P.3d 807 (2015) (“a damage claim may still be controlled by LUPA if it is

dependent on ‘an interpretative decision regarding the application of a zoning

ordinance.’”). Accordingly, “claims for damages based on a LUPA claim must be

dismissed if the LUPA claim fails.” Mercer Island Citizens, 156 Wn. App. at 395-

96, 405 (dismissing claims for damages under 42 U.S.C. §1983 that depended

on the validity of permit); see also Shaw v. City of Des Moines, 109 Wn. App.

896, 901, 37 P.3d 1255 (2002) (“If the petitioner loses the LUPA appeal, the

damages case is moot and the matter is over.”).



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No. 79452-3-I/10


       Here, the complaint for damages is based on the County’s “conduct

throughout Congdon’s SHE Permit application process.” The complaint also

asserts the County “engaged in unlawful procedure in contravention of

RCW 36.70C.130(1)(a),” and alleges:
       By altering the appeals statement in Congdon’s SHE 074/14, the
       Department Defendants sought to circumvent the administrative
       appeal that would have been available to Congdon. The Department
       Defendants engaged in unlawful procedure in contravention of RCW
       36.70C.130(1)(a), when they changed Congdon’s application without
       her knowledge or authorization, improperly revised her setback and
       failed to follow prescribed procedures under Island County Code.
       There is no Code provision that authorizes Department Staff to
       change a SHE Permit application once submitted.

Indeed, in her LUPA petition she challenged the same conduct as a land use

decision claiming “[t]hat Decision erroneously relied on a site plan which was not

submitted by, nor authorized by Petitioner,” and “[t]he County failed to properly

review and approve a decision based on the applied for 28 foot stringline

setback.” See RCW 36.70C.130(1)(a) (a court may grant relief under LUPA

where “[t]he body or officer that made the land use decision engaged in unlawful

procedure or failed to follow a prescribed process, unless the error was

harmless.”). Specifically, her LUPA petition alleged:
       Instead of issuing a decision on Petitioner’s application, the County
       materially changed the application and issued an approval of a
       shoreline decision not based on Petitioner's applied for plans and
       project. In doing so, the County denied Petitioner the opportunity for
       administrative appeal. Further, the County both failed to properly
       evaluate and issue a decision on the actual application. As well, the
       County’s decision was materially and substantively unsupported by
       applicable facts and shoreline, critical area, and environmental laws
       and regulations.




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No. 79452-3-I/11


       Congdon’s due process and equal protection claims are also based on the

County’s “conduct throughout Congdon’s SHE Permit application process” and

allege the County’s conduct violated her constitutional rights. Indeed she alleged

these same constitutional violations in her LUPA petition:
       The Land Use Decision . . . violates Petitioner’s constitutional rights
       to procedural due process because the County failed to afford
       Petitioner her opportunity for an open record administrative appeal
       hearing. . . .
       ...
       The Land Use Decision . . . violates Petitioner’s constitutional rights
       to procedural due process because the County failed to adequately
       review and issue a decision in a fair and equitable manner and in a
       matter that treated the application equally to other shoreline
       determinations made within Island County generally and the more
       immediate area.

See RCW 36.70C.130(1)(f) (a court may grant relief under the statute if “the land

use decision violates the constitutional rights of the party seeking relief.”). Her

First Amendment claim likewise alleges the County acted improperly in

processing her permit, claiming the County altered the appeal statement in her

permit and ignored her complaints to prevent her from challenging its decision.

And as she apparently acknowledges in her complaint, LUPA was the proper

avenue to assert this claim:
       After receiving her SHE permit, Congdon contacted Island County
       Commissioners Helen Price Johnson, Aubrey Vaughan and Jill
       Johnson, to voice her concerns about the Department’s drastic
       alteration of her plot plan, the 43 foot setback requirement on her
       property, and how she was singled out and treated differently from
       her neighbor - but finding no Commissioner willing to investigate her
       concerns, Congdon was left with no other option than to hire an
       attorney and file a costly Washington Land Use Petition Act (LUPA).




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       The other tort claims are also preempted by LUPA because they depend

on a determination that the County acted improperly in granting her permits. See

Asche, 132 Wn. App. at 800; Woods View II, 188 Wn. App. at 24-25. The

complaint alleges that Setter misrepresented the applicable distances to be used

in the setback calculation, resulting in a permit that improperly put her setback

farther from the shoreline, thereby depriving of her use and enjoyment of her

property for which she claims damages. The complaint also alleges that the

County misrepresented that her setback had not changed during the permit

review process and concealed from her the Department’s agreement with Setter

“to increase Setter’s setback to Congdon’s detriment.” But again, the only

“detriment” Congdon identifies is the County’s approval of a setback that was

less favorable to her, a decision upheld in the LUPA action. The concert of action

and emotional distress claims seek damages for the same conduct. But the final

orders in Congdon’s LUPA action and her appeal to the Hearing Examiner

determined that the setbacks were properly calculated under the applicable

regulations and dismissed the LUPA claims. Accordingly, since her LUPA claim

failed, any “damages based on [that] LUPA claim must be dismissed.” Mercer

Island Citizens, 145 Wn. App. at 405.

       The negligent delay claim likewise depends on a finding that the County

acted improperly in approving the permit. The complaint alleges the County

delayed Congdon’s SHE permit approval in order to allow Setter to build farther

landward to accommodate his large home and improve his view, but the only

damages she claims is that she received a setback that unfairly favored Setter.


                                        12
No. 79452-3-I/13


Woods View II, cited by Congdon, is inapposite. There, the claims for damages

did not challenge the permit decision itself but alleged the delay in issuing the

permit caused financial damage to the plaintiff developer (lots sold for less,

business loan went into default, property went into foreclosure, developer went

bankrupt). Woods View II, 188 Wn. App. at 17. Thus, the court held LUPA did

not bar those claims. Woods View II, 188 Wn, App. at 25. But here, all of the

damages claimed are a result of the permitting decision itself.

       Accordingly, because all of Congdon’s claims challenge the County’s

actions in its approval of her permits, LUPA preempts them. And because she

failed to appeal the court’s order dismissing the LUPA petition on summary

judgment and the Hearing Examiner’s decision upholding the 2016 permit, they

remain final, binding orders. Consequently, any claims for damages based on

those actions must be dismissed. Mercer Island Citizens, 145 Wn. App. at 405.

                                 Collateral Estoppel

       Also, collateral estoppel bars Congdon’s claims for damages. We review

de novo whether collateral estoppel bars relitigation of an issue. Christensen v.

Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004).

Collateral estoppel is “a means of preventing the endless relitigation of issues

already actually litigated by the parties and decided by a competent tribunal.”

Hadley v. Maxwell, 144 Wn.2d 306, 311, 27 P.3d 600 (2001) (citations omitted).

“Collateral estoppel is not a technical defense to prevent a fair and full hearing on

the merits of the issues to be tried,” rather, the focus is on “whether the parties to

the earlier proceeding had a full and fair hearing on the issue.” Hadley, 144


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Wn.2d at 311. Collateral estoppel bars subsequent claims when all of the

following are established:
        (1) identical issues; (2) a final judgment on the merits; (3) the party against
        whom the plea is asserted must have been a party to or in privity with a
        party to the prior adjudication; and (4) application of the doctrine must not
        work an injustice on the party against whom the doctrine is to be applied.

Hadley, 144 Wn.2d at 311 (citation omitted).

       Here, all the elements of collateral estoppel are established.4 Congdon

raised issues in her LUPA petition identical to those raised in her complaint for

damages, which were actually litigated in the LUPA proceeding. As discussed

above, the LUPA petition challenged the County’s approval process of her

permit, alleging the County acted improperly by changing Congdon’s 2014

application and approving a permit that was not based on her submitted plans,

and making a decision that was not based on the applicable facts and law. The

court found that the County properly applied the setback averaging provision of

the County code and rejected her argument that the County was bound by any

preliminary determinations of the setback distance. In her appeal to the Hearing

Examiner, she challenged the County’s application of the new setback

regulations to her 2016 permit. The Hearing Examiner concluded the County

properly reduced the setback.

       Also, as discussed above, the complaint alleges damages caused by this

same conduct. The only damages Congdon identifies relate to the deprivation of




       4
         There is no dispute that element (3) is established; the party against whom
collateral estoppel is asserted (Congdon) was a party to the prior adjudication.


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No. 79452-3-I/15


her use and enjoyment of her property as a result of the County’s improper

setback determination.

       While Congdon notes that her complaint asserts new tort claims and that

the County gave Setter an unlawful “view right,” collateral estoppel still applies to

bar her claims. 5 As our courts have acknowledged: “[W]hen collateral estoppel

is asserted, the second claim is always different from the first. The former claim

and the new claim can be expected to raise at least some different ultimate

issues. What matters is whether facts established in the first proceeding

foreclose the second claim.” Scholz v. Washington State Patrol, 3 Wn. App. 2d

584, 596-97, 416 P.3d 1261 (2018) (internal citation omitted). Here, Congdon’s

prior LUPA action fully and fairly resolved the issue of how close to the water she

could build her home under the Island County Code; the superior court and the

Hearing Examiner determined that the County’s approval of her setback was

proper under the applicable regulations. All of Congdon’s subsequent claims

allege damages caused by this decision, i.e., that this setback determination

prevented her from building closer to the water and enhancing her property

value, thereby depriving her of her use and enjoyment of her property. The

claims against Setter likewise seek damages resulting from the setback decision.




       5
         The “new” claim that the County improperly created a “view right” for Setter
alleges the same misconduct alleged in the LUPA petition, i.e., that the County gave
Setter preferential treatment.



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       Since the superior court and Hearing Examiner already determined that

this setback was the legally approved distance from which she could build, her

claims for damages caused by this decision fail.

       Finally, Congdon fails to show applying collateral estoppel in this context

results in an injustice. To determine whether an injustice will result, we consider

whether “the party against whom the estoppel is asserted [had] interests at stake

that would call for a full litigational effort.” Hadley, 144 Wn.2d at 312 (citations

omitted). If the party did not have sufficient motivation to fully and vigorously

litigate the issue during the first proceeding, applying collateral estoppel to

prevent that party from litigating that issue in the subsequent action works an

injustice. Weaver v. City of Everett, 4 Wn. App. 2d 303, 318-319, 421 P.3d 1013

(2018). Here, Congdon was fully motivated to litigate and vigorously did so in

the first proceedings. Indeed, she acknowledges in her complaint that she “was

left with no other option than to hire an attorney and file a costly Washington

Land Use Petition Act (LUPA).” She also litigated the County’s approval of the

second permit even after the setback regulations were amended in her favor and

the County approved a setback that was only one foot away from what she

requested.

                                Statute of Limitations

       Finally, the statute of limitations bars claims arising out of the 2014 permit

decision. See RCW 4.16.080(2) (three-year statute of limitations). The

discovery rule does not apply here to toll the limitations period as Congdon

claims. See Green v. A.P.C., 136 Wn.2d 87, 95, 960 P.2d 912 (1998) (under


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No. 79452-3-I/17


Washington’s discovery rule, cause of action does not accrue until a party knew

or should have known the essential elements of the action). Congdon alleged in

her LUPA petition filed in July 2014 that Setter improperly influenced the County

and the County improperly changed her setback. She makes these same claims

in e-mails she exchanged with the County and Setter in 2014. Thus, she had

sufficient knowledge of the essential elements of her damages claim long before

the limitations period ran. See Green, 136 Wn.2d at 95 (cause of action accrues

if party “should have discovered salient facts regarding a claim”); Busenius v.

Horan, 53 Wn. App. 662, 667, 769 P.2d 869 (1989) (“Notice that would lead a

diligent party to further inquiry is notice of everything to which such inquiry would

lead.”). Moreover, she does not explain why she waited until 2017 to file her

public records request when she had sufficient reason to do so in 2014.

       We affirm.




WE CONCUR:




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