Planning Commssion MemoCITY OF
SHOREWOOD
5755 Country Club Road • Shorewood, Minnesota 55331 •952-960-7900
Fax: 952-474-0128 • www.ci.shorewood.mmus • cityha11@ci.shorewood.mn.us
MEMORANDUM
TO: Planning Commission
FROM: Marie Darling, Planning Director
MEETING DATE: October 3, 2017
RE: Zoning Ordinance Text Amendment — Variances and Appeals
FILE: 17.24 (Zoning Regulations, Section 1201.09)
Shorewood's variance and appeal processes were drafted to allow the city to both hear appeals and
review variances based on the enabling legislation (Minnesota Statute 462.357). Staff drafted
amendments to this section of code to more closely mirror the state statutes, reduce the staff process,
and ensure that variance applicants are directly addressing what practical difficulties justify their
request.
Definitions of the two types of applications:
An appeal is a request to the Planning Commission and City Council to review and overturn an
administrative (employee) decision or interpretation of the zoning regulations. Essentially, an
appellant maintains that an employee made an error when they interpreted the ordinance, enforced a
regulation, or otherwise acted in violation of the zoning ordinance language.
A variance is a request to the Planning Commission and City Council to allow a deviation in the
application of the zoning ordinance as it applies to a property because of a practical difficulty that
exists on a specific piece of property. Essentially, a variance allows the applicant the ability to
construct or place something on a property that the regulations would allow elsewhere on the lot,
construct more on a lot than would otherwise be allowed, or validate a nonconforming lot or
structure. State statute does not permit cities to allow uses on a property by variance that aren't
allowed in the zoning district. As an example, the city couldn't allow someone to open a new gas
station on a property zoned only for residential uses.
Page 2
Process:
The current regulations combine the two types of applications together and require the same process
for both, including a public hearing and notice sent to all neighbors within 500 feet of the property.
Because the two requests are substantially different, I've divided the two different types of requests
into separate processes. As proposed, the new processes would proceed as follows:
• Appeals are directed to the Planning Commission and City Council for review at public
meetings rather than public hearings, but are not required to be noticed to adjacent property
• Variances are directed to the Planning Commission and City Council for review at public
meetings. These requests are noticed to all property owners within 500 feet.
Public Hearings vs. Public Meetings - What's the difference? Are public hearings effective notice to
the public?
An item reviewed at a public hearing is published in the city's official newspaper, notices are sent to
the property owners within a specified distance (usually 500 feet) and listed on the agenda for the
Planning Commission meeting. During a public hearing, anyone from the public may request to
speak and state their concerns.
An item reviewed at a public meeting can be sent to all property owners within a specified distance
(usually 500 feet) and listed on the agenda for the Planning Commission meeting. During a public
meeting, anyone from the public may request to speak and state their concerns. The Planning
Commission doesn't have to allow residents to speak during a public meeting, but Shorewood's
practice includes allowing any attendee to voice their concerns.
Consequently, the only difference between the two types of meetings is the requirement to publish a
notice in the official newspapers for a public hearing. When the process for planning applications
was initially designed, publication in the paper was an effective way of notifying the public. Staff
finds that times have changed and published notices are generally ignored while other methods of
publicizing applications are more effective. These include:
Holding a meeting at the Planning Commission to discuss the request and make a formal
recommendation. State statute does not require the Planning Commission to review either
variances or appeals, only the City Council (acting as the Board of Zoning Appeals). Having
the Planning Commission provide a recommendation, with the publication requirements for
the meetings and agendas is an effective means of communicating to the public and beyond
what is required by statute.
• For variance applications, sending a letter to the adjacent homeowners is the most effective
means of publicizing the request and have proven to be an effective means of public notice.
Nearly every caller or speaker for a variance application indicates they got the letter.
Because the publication is less effective than the above, staff recommends reviewing appeal and
variance applications without a public hearing. Additionally, for appeal applications, letters to
Page 3
adjacent homeowners are superfluous because the specific regulation being appealed may apply to
the entire city, all properties within a specific zoning district, or all similar properties. As an
example, a resident may appeal the definition of impervious surface or treehouse. The outcome of
an appeal is usually one of the following two options:
Overturn the staff action: The appellant is returned to the correct process or activity.
Notification to neighbors is decided by the applicable process.
• Uphold the staff action: The appellant corrects or stops the activity.
Criteria for variance applications
The variance criteria are the foundation for both requesting and approving variances. Staff amended the
criteria to ensure the applicant is addressing and defining what the specific practical difficulties are that
justify the application. The current code includes practical difficulties in the purpose statement, but does
not require that they be addressed directly. Staff also made wording changes to the remainder of the
criteria to better follow state statute and the purpose of a variance.
Procedures
Staff proposes some minor alterations to the procedures established in code. Most notable is the
allowance for staff to request additional information at the applicant's expense as may be needed to
review the application, such as a wetland delineation, traffic study, drainage reports, etc.
Applications in process
Any applications submitted prior to publication of the ordinance will be reviewed under the existing
regulations.
ATTACHMENTS:
Proposed Ordinance Amendment
Existing Ordinance
CITY OF SHOREWOOD
ORDINANCE NO.
AN ORDINANCE AMENDING THE SHOREWOOD CITY CODE AS IT PERTAINS TO
ZONING REGULATIONs FOR VARIANCES AND APPEALS
Section 1. City Code Chapter 1201.05 is hereby amended as follows:
1201.05 ADMINISTRATION, VARIANCES AND APPEALS.
Subd. 1. Purpose. The purpose of this section is to provide for:
a. Administrative Appeal. An appeal process where it is alleged that there is
an error in any order, requirement, decision or determination by an
administrative officer in the enforcement of this chapter; —awl.
b. Variance. A Vvariances -process to allow deviations from the lal_ strict
provisions of this chapter includingthose hose placed on nonconformities. in
the aetions will be in keeping with the spirit and intent of this ehapte.r-. The
variance process is neither appropriate nor applicable to allow a use on a
property that is not permitted in the zoning district.
Subd. 2. Administrative Appeal. An appeal shall only be applicable to an interpretation of
legislative intent of provisions of this Chapter and shall be submitted to the Zoning
Administrator as indicated below.
a. Filing. The request for an appeal shall be submitted in writing and:
(1) Submitted by the property owner or their agent and include contact
information for both parties.
(2) State the specific grounds upon which the appeal is made.
(3) Filed within 14 days of the date of the decision.
(4) Include the fee as required by Section 1301.02.
b. Notice to Appellant. The Zoning Administrator shall notif the appellant
of the date and time of the Planning Commission and City Council meetings
where the request will be heard.
C. Stay of Proceedings. An appeal staffs all proceedings and the furtherance
of the action being appealed, unless a stay would cause imminent peril to
life and property.
d. Planning Commission action. The Planning Commission shall review the
appeal at a public meeting, at which time the appellant or a representative
thereof shall appear to answer questions concerningthe he request.
(1) The Planning Commission shall consider possible adverse effects of
the appeal.
2) The Planning Commission shall make a finding of fact and ma
recommend any actions or conditions relating to the request as they
deem necessary to carry out the intent and purpose of this chapter.
The recommendation of the Planning Commission shall be
forwarded to the City Council at their next available meeting_
e. City Council action. Upon receiving the reauest and anv report or
recommendation of the Planning Commission and the city staff, the City
Council shall make a recorded finding of fact within the time allowed by
Minnesota Statute. Action on the request shall require passage by a simple
majority vote of the full City Council.
f. Decision. The Zoning Administrator shall send the appellant a copy of the
final order of the City Council by mail.
Appeal of Council Action. Anv persons) aggrieved by anv decision of the
Board shall have the right to seek review of the decision with a court of
record in the manner provided by the laws of the State of Minnesota, and
particularly Minnesota Statutes, Chapter 462, as such statutes may be from
time to time amended, supplemented or replaced.
Subd. 3. Variances. Conditions g sideration of e requests.
a. Criteria. In considering all requests for a variance and in taking subsequent
action, the city staff, the Planning Commission and the City Council, serving as the
Board of Adjustments and. Appeals., may approve a variance application upon
makes finding that all of the following criteria, as applicable, are metthe
(1) The variance, and its resulting construction and use, is consistent
with the intent of the comprehensive plan and in harmony with the
general purposes and intent of this Chapter.
(2) The applicant has established that there are practical difficulties in
complying with this Chapter. Practical difficulties mean that the
property owner proposes to:
a) Use the bronertv in a reasonable manner not permitted b
this Chapter.
(b) The plight of the landowner is due to circumstances unique
to the property not created by the landowner.
(c) The variance, if approved, would not alter the essential
character of the locality.
The variance would not be based exclusively on economic
considerations.
(4)
The variance shall not Tim air an adequate supply of light and air to adjacent property;
{ unreasonably increase the congestion in the public street, or;
(3) fincrease the danger of fire or endanger the public safety;_
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(5) The variance, and its resulting construction or project, would not be
detrimental to the public welfare, nor would it be injurious to other
land or improvements in the neighborhood.
(5) The variance is the minimum variance necessary to address or alleviate the
practical difficulties.
b. Procedure.
(1) Application. Appeals of fRequests for variances, as provided within
this chapter, shall be filed with the Zoning Administrator on an official
application form. The application shall be accompanied by a fee as provided
for by City Council resolution. This fee shall not be refunded. The
application shall also be accompanied by five —three copies of a survey
signed by a land surveyor licensed in the State of Minnesota, and detailed
written and graphic materials fully explaining the proposed change,
development or use_, and a mailing list, mailing labels, and a map of all
property owners located within 500 feet of the subject property obtained
from and eeftified-4�Hennepin County.
b(2) Staff review/technical assistance reports. Upon receipt of an
application for appealr variance, the Zoning Administrator, or designee,
may m", _''�„ '��m�' �������r• ,request additional information or may
obtain outside expert advice at the consent and expense of the applicant.
referthe request to appropriate staff to that in qffflatieftal
requirements are eemplied with. When all informational requirements have
been complied with, the request shall be considered officially submitted.
Also, when deemed , The Zoning Administrator, or designee,
shall instmet the appropriate staff pefsons to shall prepare technical
reports and/or provide general assistance in preparing a recommendation on
the request to the Planning Commission and City Council.
o—(3)Public he rgmeeting. Upon official submission of the request, the
Zoning Administrator shall schedule a public meeting
on the request for awe-iiex4 regularly scheduled Planning Commission
meeting occurring at least ten days from the date as a notice of the i,o.,,ing
p-ropet4y desefipfien and deseription of the request and shall be published
no more than 30 days and no less than ten days prior- to —theme
-Wwritten notification of the heafint-public meeting is sent shall also be
mailed at least to days prior- t the date of the he ,, ;,, . to all property owners
of 4aPA-within 500 feet of the boundary of the subject property.
Failure of a property owner to receive the notice shall not invalidate any
proceedings as set forth within this chapter.
d. (4) Planning Commission action. The Planning Commission shall
conduct the public hearingmeetin , at which time the applicant or a
representative thereof shall appear to answer questions concerning the
proposed request.
(4a) The Planning Commission shall consider possible adverse
effects of the appea-� variance. In the case of a variance
request, the Planning Commission's judgment shall be based
upon (but not limited to) the conditions set forth in
subdivision Q (a. of this section.
(fib) The Planning Commission and city staff shall have the
authority to request any additional information from the
applicant deemed necessary to establish performance
conditions pertaining to the request with the consent and at
the expense of the applicant.
(3c) The Planning Commission shall make a finding of fact and
recommend the actions or conditions relating to the request
as they deem necessary to carry out the intent and purpose
of this chapter. The recommendation shall be in writing and
accompanied by any report and recommendation of the city
staff. The written recommendation of the Planning
Commission shall be forwarded to the Zoning Adniiaistr-atef
fof rorofra' to the City Council.
ems. Referral to City Council. Upon receipt of the Planning Commission
report and recommendation, the Zoning Administrator shall place
the request and any report or recommendation on the agenda of the
nexta regularly scheduled meeting of the City Council.
(6) City Council action. Upon receiving the request and any report or
recommendation of the Planning Commission and the city staff, the City
Council shall have the option t set and hold a p„blie hearing if doomed
neeessar- , an sha4 make a recorded finding of fact.
(4a) Approval of a request shall require passage by a simple
majority vote of the full City Council.
(-2b) The Council may impose any condition it considers
necessary to protect the public health, safety and welfare, provided
such conditions are directly related to and bear a rough
proportionality to the impact of the variance.
(3c) Whenever an application for a variance has been considered
and denied by the City Council, a similar application for the variance
affecting substantially the same property shall not be considered
again by the Planning Commission or City Council for at least six
months from the date of its denial; and a subsequent application
affecting substantially the same property shall likewise not be
considered again by the Planning Commission or City Council for
an additional six months from the date of the second denial, unless
a decision to reconsider the matter is made by not less than a simple
majority vote of the full City Council.
•
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Sub . ^. Q Lapse of variance-er aypea�. Whenever within one
year after granting a variance or appeal, the use as permitted by the
variance or- appeal shall not have been completed or utilized, then
the variance o appeal shall become null and void unless a petition
for extension of time in which to complete or to utilize the use has
been granted by the City Council. The extension shall be requested
in writing and filed with the Zoning Administrator at least 30 days
before the expiration of the original variances appeal. There shall
be no charge for the filing of the petition. The request for extension
shall state facts showing a good faith attempt to complete or utilize
the use permitted in the variance. The Zoning
Administrator shall present the request to
the City Council
for a decision.
(8)Appeal. AU person aggrieved by any decision of the City Council
shall have the right to seek review of the decision with a court of
record in the manner provided by the laws of the State of Minnesota,
and particularly Minnesota Statutes, Chapter 462.
Subd. 5. C. Performances agreement. In the cases us —a variance or appeal is
approved contingent upon certain conditions imposed by the Council, the Council
may require a performance bead -agreement to be-pfevided executed.
1) The agreement shall be drafted by staff and executed by the
applicant and the City Council. The agreement shall include:
(a) The terms of work and penalties for non-compliance in a form
agreeable to the City Attorney.
(b) Authorize acceptance of a financial guarantee to ensure the
applicant completes the project per plan.
a(2) ,The applicant shall
provide the city shall be r,.,,vi4e with a letter of credit rur d-,
case „et4i ieate of deposit, seetffifies or cash deposit prior to
the issuing of building permits or initiation of work on the proposed
improvements or development. The security shall be nonea eellable
automatically renew with a minimum of two months' notice prior to
cancellation and shall be used to guarantee conformance and
compliance with the conditions of the variance or appeal and the
ordinances of the city.
b. -0 The seeufity-financial guarantee shall be in the amount of
one and one-half times the City Engineer's or Building Official's
estimated costs of labor and materials for the proposed
improvements or development.
e. —L4) The city shall hold the security until completion of the
proposed improvements or development and a certificate of
occupancy indicating compliance with the variance wand
ordinances of the city has been issued by the City Building Official.
d. —(S Failure to comply with the conditions of the variance Of
wand the ordinances of the city shall result in forfeiture of the
security for action necessary on the part of the city to correct
problems or deficiencies.
OWN
MMUMME
n
MrSTIVI
Section 2. This Ordinance shall be in full force and effect upon publication in the
Official Newspapers of the City of Shorewood.
ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD this day
of 2017.
Scott Zerby, Mayor
ATTEST:
Sandie Thone, City Clerk
1201.04 Shorewood - Zoning and Subdivision Regulations 1201.05
for granting the interim conditional use permit shall be followed when
considering revocation of an interim conditional use permit.
(1987 Code, § 1201.04) (Am. Ord. 383, passed 3-25-2002; Am. Ord. 389, passed 8-12-2002)
1201.05 ADMINISTRATION, VARIANCES AND APPEALS.
Subd. 1. Purpose. The purpose of this section is to provide for:
a. An appeal process where it is alleged that there is an error in any order,
requirement, decision or determination by an administrative officer in the
enforcement of this chapter; and
b. Variances from the literal provisions of this chapter in instances where their strict
enforcement would cause practical difficulties because of circumstances unique to
the individual property under consideration and to grant the variances only when
it is demonstrated that the actions will be in keeping with the spirit and intent of
this chapter.
Subd. 2. Conditions governing consideration of variance requests.
a. In considering all requests for a variance and in taking subsequent action, the city
staff, the Planning Commission and the City Council serving as the Board of
Adjustments and Appeals shall make a finding of fact that the proposed action will
not:
(1) Impair an adequate supply of light and air to adjacent property;
(2) Unreasonably increase the congestion in the public street;
(3) Increase the danger of fire or endanger the public safety;
(4) Unreasonably diminish or impair established property values within the
neighborhood or in any other way be contrary to the intent of this chapter;
(5) Violate the intent and purpose of the City Comprehensive Plan.
b. A variance from the terms of this chapter shall not be granted unless it can be
demonstrated that:
(1) Special conditions and circumstances exist which are peculiar to the land,
structure or building involved and which are not applicable to other lands,
structures or buildings in the same district:
1201-94
2012 S-7
1201, 05 Zoning Regulations 1201.05
(a) Special conditions may include exceptional topographic or water
conditions or, in the case of an existing lot or parcel of record,
narrowness, shallowness or shape of the property;
(b) Special conditions and circumstances may not be primarily
economic in nature;
(2) Literal interpretation of the provisions of this chapter would deprive the
applicant of rights commonly enjoyed by properties in the same district
under the terms of this chapter;
(3) The special conditions and circumstances are not the result of actions by
the property owner or previous property owner;
(4) Granting the variance requested will not confer on the applicant any
special privilege that is denied by this chapter to other lands, structures or
buildings in the same district.
C. Application for a variance shall set forth reasons that the variance is justified in
order to make reasonable use of the land, structure or building and that the
variance is the minimum variance necessary.
Subd.3. Procedure.
a. Application. Appeals or requests for variances, as provided within this chapter,
shall be filed with the Zoning Administrator on an official application form. The
application shall be accompanied by a fee as provided for by City Council
resolution. This fee shall not be refunded. The application shall also be
accompanied by five copies of detailed written and graphic materials fully
explaining the proposed change, development or use and a mailing list of property
owners located within 500 feet of the subject property obtained from and certified
by Hennepin County.
b. Staff review/technical assistance reports. Upon receipt of an application for appeal
or variance, the Zoning Administrator shall, when deemed necessary, refer the
request to appropriate staff to insure that informational requirements are complied
with. When all informational requirements have been complied with, the request
shall be considered officially submitted. Also, when deemed necessary, the
Zoning Administrator shall instruct the appropriate staff persons to prepare
technical reports and/or provide general assistance in preparing a recommendation
on the request to the Planning Commission and City Council.
1201-95
2012 S-7
1201.05 Shorewood - Zoning and Subdivision Regulations 1201.05
C. Public hearing. Upon official submission of the request, the Zoning Administrator
shall set a public hearing on the request for the next regularly scheduled Planning
Commission meeting occurring at least ten days from the date as a notice of the
hearing is published in the official newspaper. The notice shall contain a legal
property description and description of the request and shall be published no more
than 30 days and no less than ten days prior to the hearing. Written notification
of the hearing shall also be mailed at least ten days prior to the date of the hearing
to all owners of land within 500 feet of the boundary of the property in question.
• Failure of a property owner to receive the notice shall not invalidate any
proceedings as set forth within this chapter.
d. Planning Commission action. The Planning Commission shall conduct the public
hearing, at which time the applicant or a representative thereof shall appear to
answer questions concerning the proposed request.
(1) The Planning Commission shall consider possible adverse effects of the
appeal or variance. In the case of a variance request, the Planning
Commission's judgment shall be based upon (but not limited to) the
conditions set forth in subdivision d(2) of this section.
(2) The Planning Commission and city staff shall have the authority to request
any additional information from the applicant deemed necessary to
establish performance conditions pertaining to the request.
(3) The Planning Commission shall make a finding of fact and recommend the
actions or conditions relating to the request as they deem necessary to
carry out the intent and purpose of this chapter. The recommendation shall
be in writing and accompanied by any report and recommendation of the
city staff. The written recommendation of the Planning Commission shall
be forwarded to the Zoning Administrator for referral to the City Council.
e. Referral to City Council. Upon receipt of the Planning Commission report and
recommendation, the Zoning Administrator shall place the request and any report
or recommendation on the agenda of the next regularly scheduled meeting of the
City Council.
f. City Council action. Upon receiving the request and any report or
recommendation of the Planning Commission and the city staff, the City Council
shall have the option to set and hold a public hearing if deemed necessary and
shall make a recorded finding of fact.
(1) Approval of a request shall require passage by a simple majority vote of
the full City Council.
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2012 S-7
1201.05 Zoning Regulations 1201.05
(2) The Council may impose any condition it considers necessary to protect
the public health, safety and welfare, provided such conditions are directly
related to and bear a rough proportionality to the impact of the variance.
(3) Whenever an application for a variance has been considered and denied by
the City Council, a similar application for the variance affecting
substantially the same property shall not be considered again by the
Planning Commission or City Council for at least six months from the date
of its denial; and a subsequent application affecting substantially the same
property shall likewise not be considered again by the Planning
Commission or City Council for an additional six months from the date of
the second denial, unless a decision to reconsider the matter is made by
not less than a simple majority vote of the full City Council.
(4) The City Council serving as the Board of Adjustment and Appeals shall,
after receiving the written report and recommendation of the Planning
Commission and the city staff, make a finding of fact and make a decision
on appeals where it is alleged by the appellant that error has occurred in
any order, requirement, decision or determination made by the Zoning
Administrator in the enforcement of this chapter. However, the appeal
shall be filed not later than 90 days after the applicant has received a
written notice from the Zoning Administrator or the appeal shall be
considered void.
Subd. 4. Lapse of variance or appeal. Whenever within one year after granting a variance or
appeal, the use as permitted by the variance or appeal shall not have been completed or
utilized, then the variance or appeal shall become null and void unless a petition for
extension of time in which to complete or to utilize the use has been granted by the City
Council. The extension shall be requested in writing and filed with the Zoning
Administrator at least 30 days before the expiration of the original variance or appeal.
There shall be no charge for the filing of the petition. The request for extension shall state
facts showing a good faith attempt to complete or utilize the use permitted in the variance
or appeal. The petition shall be presented to the Planning Commission for a
recommendation to the City Council for a decision.
Subd. 5. Performance bond. In the cases as a variance or appeal is approved contingent upon
certain conditions imposed by the Council, the Council may require a performance bond
to be provided.
a. Upon approval of a variance or appeal, the city shall be provided with a surety
bond, case escrow, certificate of deposit, securities or cash deposit prior to the
issuing of building permits or initiation of work on the proposed improvements
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1201.05 Shorewood - Zoning and Subdivision Regulations 1201.06
or development. The security shall be noncancellable and shall guarantee
conformance and compliance with the conditions of the variance or appeal and the
ordinances of the city.
b. The security shall be in the amount of one and one-half times the City Engineer's
or Building Official's estimated costs of labor and materials for the proposed
improvements' or development.
C. The city shall hold the security until completion of the proposed improvements or
development and a certificate of occupancy indicating compliance with the
variance or appeal and ordinances of the city has been issued by the City Building
Official.
d. Failure to comply with the conditions of the variance or appeal and the ordinances
of the city shall result in forfeiture of the security for action necessary on the part
of the city to correct problems or deficiencies.
Subd. 6. Property survey. In those cases where a stipulated requirement of this chapter has been
modified through the granting of a variance or appeal, a property survey prepared by a
registered land surveyor shall be submitted, outlining lot dimensions, setbacks and
buildings. The survey shall be a condition of the variance or appeal and shall be submitted
prior to the initiation of any improvement on the property in question.
(1987 Code, § 1201.05) (Am. Ord. 383, passed 3-25-2002; Am. Ord. 485, passed 11-14-2011)
1201.06 ADMINISTRATION, PLANNED UNIT DEVELOPMENT.
Subd. 1. Purpose. This section is intended to allow flexibility within zoning districts while
maintaining land use compatibility with surrounding neighborhoods.
Subd. 2. Application. Within the zoning districts contained in §§ 1201.10 through 1201.23,
planned unit development is allowed by conditional use permit. Land use and densities
are limited to land uses and densities specified in each of the individual districts.
Subd. 3. Special procedures. The establishment of a PUD by conditional use permit shall be
subject to the procedures and requirements for conditional use permits as set forth in
§ 1201.04 of this chapter and the standards and criteria set forth in § 1201.25 of this
chapter. Each of the three stages of the review process shall require a separate
application.
(1987 Code, § 1201.06) (Ord. 208, passed 4-11-1988)
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