DPCA OHE Notice of Appeal 4-11-2018 Final
DPCA OHE Notice of Appeal 4-11-2018 Final
DPCA OHE Notice of Appeal 4-11-2018 Final
9 In Re: Appeal by
NO.
10
DISCOVERY PARK COMMUNITY ALLIANCE, a
11 nonprofit corporation, and ELIZABETH A. CAMPBELL,
an individual NOTICE OF APPEAL
12
Of the CITY OF SEATTLE, FINAL ENVIRONMENTAL
13 IMPACT STATEMENT for the Fort Lawton Army
Reserve Center Redevelopment Project
14
15
16 I. INTRODUCTION
22 1. Appellant #1
5 Chief among DPCA’s roles at Discovery Park it is acting as an advocate for the completion
of the park’s decades old Discovery Park Plan element, that of annexing the last remaining
6 piece of land of the former Fort Lawton army base to Discovery Park, the natural, practical, and
historically correct outcome of this matter – that will benefit the people of Seattle and the Puget
7 Sound region for the next century.
8
DPCA is an all volunteer organization of passionate citizens that includes many property
9 owners adjacent to the Fort Lawton Army Reserve and community partners as its members – all
dedicated to sustaining the Discovery Park legacy, land base, and expanding it to include the
10 addition of the Fort Lawton property to Discovery Park.
11 Appellant Elizabeth Campbell is a local resident of the Magnolia neighborhood of Seattle
wherein Discovery Park is located. Campbell is an advocate for citizen, neighborhood, and
12
general community rights and interests. She is a longtime user and patron of Discovery Park
13 and a longtime advocate for annexing the Fort Lawton property to Discovery Park.
14 Campbell is the founder and executive director of the Discovery Park Community Alliance.
She is also the founder and director of the Magnolia Neighborhood Planning Council that in
15 2009 led a lawsuit on behalf of that organization and property owners against the City of Seattle
seeking to compel the City to conduct a SEPA review of the City’s redevelopment plans for
16 Fort Lawton. That lawsuit was successfully prosecuted, upheld on appeal, and is case law,
17 referenced in many court and administrative cases involving environmental law procedure as
Magnolia Neighborhood Planning Council v. City of Seattle 155 Wn. App. 305, 230 P.2d 190,
18 review denied, 170 Wn.2d 1003, (2010).
19 Both appellants believe that the subject Fort Lawton property is a natural extension of the
existing Discovery Park and that using the land for park and recreational purposes is preferable
20 to using it instead for an out of scale housing development that will foreclose any opportunity to
for the final time add to the land base of Discovery Park, that will foreclose any expansion of
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the natural and recreational opportunities and experiences at the park.
22
The appellants are advocating to utilize the connected space of Fort Lawton to expand on
23 the natural, social, and recreational elements of Discovery Park, and for the preservation of as
much of the existing structures and natural environment at Fort Lawton as is possible.
24
The appellants believe that building a 238 unit, intensive mixed use, residential, shelter,
25 medical, behavioral, and custodial care housing and social services compound with upwards of
26 600 residents, an untold number of off-site clients that will visit the site for services, with
upwards of 60 support staff required to be onsite daily in order to operate and maintain the
19 2. What are your objections to the decision? (List and describe what you believe to
be the errors, omissions, or other problems with this decision.)
20
Paragraphs I through IV above are incorporated herein by reference in their entirety and
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for any and all purposes as if fully set forth herein.
22
The City of Seattle Office of Housing’s decision that the FLARC FEIS is adequate was
23 made in error and was made in violation of the State Environmental Policy Act (SEPA), RCW
43.21C, for the following reasons:
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A. Alternatives 2, 3, and 4 are not “reasonable alternatives” as required by SEPA.
25
The FEIS does not comply with the requirements of SEPA because it fails to propose
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“reasonable alternatives” to the preferred Alternative 1 and fails to provide the City of Seattle, as
7 “…is intended to assist the agencies and applicants to improve their plans and
decisions, and to encourage the resolution of potential concerns or problems
8 prior to issuing a final statement. An environmental impact statement is more
than a disclosure document. It shall be used by agency officials in conjunction
9
with other relevant materials and considerations to plan actions and make
10 decisions.”
WAC 197-11-400(4).
11
An adequate EIS clearly, concisely, and impartially describes a proposal’s significant
12
impacts and environmentally preferable alternatives, including mitigation measures. WAC 197-
13 11-400(3), 400(4). The EIS must be reliable and backed by sufficient environmental analysis.
WAC 197-11-400(2)-(3). The EIS must be prepared early enough to inform and guide decision
14 makers, rather than simply rationalize or justify decisions already made. WAC 191-11-406. See
Barrie v. Kitsap County, 93 Wn.2d 843, 613 P.2d 1148 (1980). SEPA seeks to inform and guide
15 decisions in part through the consideration of “reasonable alternatives,” which are defined by the
SEPA regulations as:
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an action that could feasibly attain or approximate a proposal’s objectives, but at
17
a lower environmental cost or decreased level of environmental degradation.
18 Reasonable alternatives may be those over which an agency with jurisdiction has
authority to control impacts, either directly, or indirectly through requirement of
19 mitigation measures. (See WAC 197-11-440(5) and 197-11-660.)
20 WAC 197-11-786.
5 The FEIS fails to evaluate any other potential off-site location for affordable housing
besides Talaris, stating that the Talaris site:
6
“…is included only as an example of a possible off-site alternative for the
7 affordable and formerly homeless housing. It is provided in order to
conceptually analyze probably adverse impacts that would be expected with
8 redevelopment at that site or other off-site locations in the City. Additional more
detailed SEPA review of the Talaris site, or another off-site location, would be
9
required should that or another site ultimately be selected for the affordable and
10 formerly homeless housing.”
FEIS at p. 1-1 (emphasis added).
11
Under the FEIS, Alternatives 2 and 3 do not present “reasonable alternatives” because
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there is absolutely no information in the FEIS that allows a decision maker to make a reasoned
13 decision as to whether the off-site affordable housing of those alternatives, combined with the
proposed uses of the Fort Lawton site, could feasibly attain or approximate the affordable housing
14 objectives of Alternative 1, but at a lower environmental cost or decreased level of environmental
degradation. See WAC 197-11-786. This vital information is not difficult or expensive to obtain.
15 Housing could identify and evaluate specific sites in Seattle in addition to Talaris that offer
opportunities for affordable housing development to offer feasible alternatives to the proposed
16 Alternative 1.
17
Furthermore, Housing’s reliance on acquiring the Talaris site – one of the most expensive
18 properties in the City (last sold for $15.6 million in 2000), it is zoned for single-family residential
use and subject to a 1991 binding Settlement Agreement and Covenants Running With the Land
19 and includes amendments thereto between the property owner and the Laurelhurst Community
Club which set parameters for expansion at the site and provide for mitigation. The site is
20 designated as an Institute for Advanced Study under the Settlement Agreement as well as under
the City’s Land Use Code. There are also covenants in the Settlement Agreement that apply to
21 the Talaris site regarding wetlands and landscape maintenance. In 2013 the site received a
22 landmark designation, with “controls and incentives” which implement the landmark designation
in the offing. The Settlement Agreement and its control over the development of the Talaris site
23 and other issues associated with it was not analyzed in the FEIS. Housing claims in the FEIS that
the Talaris site is a mere example, however it goes on to analyze the site as its off-site affordable
24 housing alternative as if it were a realistic, reasonable, and achievable alternative, as the only
alternative that would preserve Fort Lawton as a public park is inherently unreasonable.
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At the same time the Talaris site is not a reasonable site because the City of Seattle does
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not control it or even have a chance of acquiring it. In January, 2018 it was publicly announced
10 B. The FEIS fails to disclose and analyze probable significant adverse impacts associated
with Seattle Public School uses at Fort Lawton.
11
On November 20, 2017, the City of Seattle and Seattle Public Schools (“SPS”) entered
12 into a Partnership Agreement1 whereby the City and SPS agreed to a collaborative partnership to
“jointly achieve unique opportunities for developing SPS facilities, including SPS [sic] in the Fort
13 Lawton Redevelopment Plan.” The detailed agreement includes provisions for a joint
development agreement, partnership and financial commitments, and mobility planning. While
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the agreement sets forth plans to utilize a portion of the Fort Lawton property for a range of
15 school-related uses, and both the City and Seattle and SPS have made numerous public statements
that a portion of the Fort Lawton property is being land banked for a future school; and in order
16 to avoid having to include such a use in the FLARC EIS process Housing and SPS have agreed
to a pretense that SPS is interested in the land only as “playfields” in order to avoid changing the
17 makeup of Alternative 1, and by extension to avoid having to analyze that aspect in the present
BRAC/EIS process. The FEIS states that the environmental impacts of such a partnership or
18 independent action by SPS would be evaluated at a later date. FEIS at p. 2-6 to 2-8. This position,
19 the piecemealing of a project, is untenable under SEPA. SEPA requires that a proposal identify
all the related and interdependent pieces of the proposal. Actions are related if they are dependent
20 on each other. In this case, SEPA dictates that Alternative 1 and the SPS proposal/partnership
must be considered together as one proposal in the same environmental document. See WAC
21 197-11-060(3)(b).
22 SEPA requires agencies to disclose the reasonably foreseeable impacts of its proposals.
The disclosure of impacts related to SPS uses is governed by WAC 197-11-080, which
23
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1 The agreement is titled, “Seattle Public Schools and City of Seattle Public
26 Process Partnership Agreement: School District Facilities, Fort Lawton,
Memorial Stadium, and Seattle Center.”
16 Alternative 1 would require that a portion of the Fort Lawton site be rezoned
from the existing SF 7200 zoning to Lowrise residential zoning (e.g. LR 2 (M1))
17 ...
Alternative 1 and 2 [sic, believed to refer to Alternatives 2 and 3] would require
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that a portion of the Talaris site be rezoned from SF 5000 to lowrise residential
19 zoning (e.g. LR 2 (M1); a Comprehensive Plan amendment would also be
required to allow for a rezone to LR2 (M1) zoning. FEIS (§ 2 (2-39))
20 In the FEIS’s discussion of the fact that both sites require a rezone under one or more of
21 the alternatives, Housing has not met its obligation to weigh and balance the provisions of the
rezone criteria laid out in SMC 23.34. SMC 23.34.007.A. The Code states:
22
The most appropriate zone designation shall be that for which the provisions for
23 designation of the zone type and the locational criteria for the specific zone
match the characteristics of the area to be rezoned better than any other zone
24 designation.
25 SMC 23.34.008.B.
26
20 The FEIS fails to also consider the effect of the City’s Mandatory Housing Affordability
(MHA) program on the Alternatives. The implementation of the MHA/HALA programs may
21 allow for higher building heights and greater density at the Fort Lawton or Talaris site – none of
which has been analyzed in the FEIS.
22
Recreation and Open Space
23
The FEIS fails to address how its alternatives conform to the City’s Comprehensive Plan
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and other goals for open space. City policies include, “[p]reserve and reclaim park property for
25 public use and benefit, and ensure continued access to parkland for the growing population,” with
goals of considering “retaining City-owned properties that are in environmentally critical areas
26 as natural areas.” Comprehensive Plan (P. 3.6); id. at 70 (LU 17.26). Developing Fort Lawton
available at:
26 https://www.seattle.gov/Documents/Departments/ParksAndRecreation/Parks/master
plan1.pdf
24
4 The BRAC process provides the City with the opportunity of pursuing a
25 Public Benefit Conveyance for park use. See BRAC Manual Section C.5.4.10.
5 These four intersections are: (1) 40th Avenue E/Texas Way; (2) Discovery
6 Ø The FEIS fails to reasonably analyze the feasibility of bike share programs. It is not
realistic for the City to incorporate bike share programs as an adequate measure of
7 alternative means for residents to transit in and out of the Fort Lawton area. As described
above, many residents will be senior citizens who will not be able to utilize bike share
8 programs. Furthermore, the topography of the area, distance to resources and services, and
9 practicality generally do not lend themselves to assuming residents of the new development
will use a bike share program. As stated in the September 2017 letter, expansion of bike
10 lanes and routes is not envisioned by the City in the area around Fort Lawton. It is unlikely
that young children and/or their parents will be able to utilize a bike share program to ride to
11 the grocery store or carry out other essential errands. Mitigation of this kind is not realistic.
12 Ø The FEIS fails to reasonably analyze parking impacts. The FEIS also raises issues with
respect to parking and does not fully address them. Under Alternative 1, 266 parking spaces
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would be provided, with peak parking demand exceeding that supply by up to 28 spaces
14 (FEIS at p. 1.12), indicating parking demands would exceed available parking. The FEIS
concludes that no significant impacts are expected as a result, citing that the parking demand
15 from the affordable housing could be addressed through parking management strategies.
FEIS Ibid. Yet there is no adequate disclosure or analysis of these parking management
16 strategies, and how they might truly mitigate parking concerns. In order to fully understand
the impacts of development under Alternative 1, additional disclosure and analysis is
17 required.
18 Historic and cultural preservation
19
The Fort Lawton property has a long history of use as a forested natural area and a military
20 base. Development of housing on the Fort Lawton site under Alternatives 1 and 2 is inconsistent
with both the current use of the site and the historic context of the site. Nor is it in alignment with
21 City policies to allow multifamily development on a property that was historically public and
located in a single-family residential area. See SMC 23.34.008.F.1.g; see also Comprehensive
22 Plan at 66 (LU G14 aims to “[m]aintain the city’s cultural identity and heritage”).
23 The disclosure and assessment of historic and cultural resources on both properties is
24 inadequate. The DEIS stated that buildings on the Fort Lawton site may be eligible for Landmark
designation. DEIS at p. 3.9-1. The DEIS continually describes the historic nature of the Fort
25 Lawton area, but concludes that the existing buildings lack significant associations, design
characteristics or prominence, or do not meet the threshold of 25 years to qualify for landmark
26 designation. The DEIS indicated that at least one hall, Harvey Hall, could meet the criteria for
10 The FEIS fails to adequately disclose the potential for landslides as a function of existing
steep slopes and erosion hazards at the Fort Lawton site. This is a serious concern for neighboring
11 residential properties.
12 The FEIS also fails to adequately disclose and analyze the risk of methane migrating from
the neighboring landfill onto the Talaris site. It concludes that the risk of methane migration is
13 considered low, and that no impacts are expected under Alternatives 2 or 3. The potential for
adverse impacts to human health is significant. The Talaris housing area would include numerous
14 children and elderly with potential health issues. A more thorough analysis of this threat is
15 important to understand the potential adverse impacts on the health and safety of future residents
at the Talaris site.
16
Noise
17
The FEIS fails to adequately address the adverse impacts of noise under all of the
18 Alternatives. The FEIS states that because the Fort Lawton site is vacant, “the only existing
sources of noise are wildlife that use the site and occasional maintenance of the facilities.” FEIS
19 at p. 3.4-2. The FEIS identifies increases in noise from construction, including clearing and
grading, demolition, and construction, but states these are “temporary increases in noise.” But
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with build-out occurring over several years, these impacts would be far from temporary. The FEIS
21 does not adequately disclose and analyze the increased noise that will result from constructing a
high-density development containing hundreds of housing units in what is now a quiet open space.
22
Public services
23
The FEIS does not adequately disclose the impact on public services or the lack thereof
24 for both sites. Specifically, the FEIS does not provide sufficient analysis of how on-site services
will mitigate the need for a level of increased responsiveness on the part of local law enforcement,
25 emergency response providers, and other qualified medical or behavioral personnel. The FEIS
26 contemplates that certain services will be provided on-site, including case management services
by Catholic Community Services of Western Washington and residential counselors. FEIS at p.
10 Aesthetics/Visual Resources
11 The FEIS does not adequately disclose and analyze the amount of localized light spillage
to areas adjacent to the Fort Lawton or Talaris sites. Additionally, shadow documentation is
12 provided in the FEIS Appendix G, but such documentation does not adequately describe the
effects of shadows from both sites onto surrounding areas in a way that is understandable and
13 accessible. It is difficult to discern from the documentation the effects of increased shadows from
new development under Alternatives 1 and 2 at Fort Lawton on neighboring areas to the North
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and East. Furthermore, shadow documentation is not provided for the Talaris site where site
15 plans—showing housing built up to the property line (Figure 2011)—would likely result in
impacts to neighboring areas with respect to shadows. Such a design is a dramatic change from
16 the present configuration of the site, and the impacts on neighboring areas to the Talaris site are
not adequately disclosed and analyzed.
17
Housing
18
The FEIS’s disclosure and analysis of housing impacts is inadequate. The FEIS states that
19 no significant housing impacts are expected to result from any of the redevelopment alternatives,
20 in spite of the fact that over 200 housing units will be added to the Fort Lawton and/or Talaris
sites under Alternatives 1-3, which includes an area that has historically never hosted housing
21 (Fort Lawton) or hosted housing on the scale it is projected to host (Talaris).
22 The FEIS fails to adequately describe how high-density residential development at Fort
Lawton makes sense based on its lack of designation as part of an Urban Center or Urban Village.
23 Such growth cuts against the City’s goal to grow in designated Urban Centers or Urban Villages.
Seattle’s Comprehensive Plan has goals of accommodating “a majority of the City’s expected
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household growth in urban centers and urban villages” and “a substantial portion of the city’s
25 growth in hub and residential urban villages.” See Comprehensive Plan at 28, 32 (GS G2 and GS
2.3); see also id. at 42 (LU G1 aims to “[a]chieve a development pattern consistent with the urban
26 village strategy”). While the area is designated for multi-family residential uses in the Seattle
12 BRAC procedure requires that the NOI process be re-opened to competitive bidding and
that a new RFP solicitation process be undertaken to allow not just the many other stakeholders
13 and providers who are players and entrants in the homeless and low-income housing fields since
2007, but any other entity or organization that is eligible to participate in the BRAC process.
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E. The City cannot incorporate and reasonably rely upon the previous NEPA
15 Environmental Assessment for SEPA purposes.
16
The U.S. Army Corps of Engineers’ (“Corps”) Environmental Assessment (“EA”) and
17 Finding of No Significant Impact (“FONSI”) may no longer be relied upon by the City, HUD, the
Department of the Interior or the Corps because they are based on a different project than what is
18 now proposed among the EIS Alternatives. The FONSI relied upon an earlier Traditional
Disposal and Reuse Alternative (“TDRA”). The October 18, 2012 FONSI was based on a smaller
19 amount of total housing units (216) and a completely different range and size of housing types.
Thus, the EA and FONSI were based on an analysis of different environmental impacts.
20
The TDRA anticipated demolition of all existing structures, and the construction of 125
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market-rate units ranging from smaller to large market rate single-family homes, 85 homeless
22 units and 6 low-income townhomes. In contrast, none of the FEIS Alternatives mirror that
proposal. Alternative 1 contemplates more housing units than that studied by the Corps (238
23 units). Alternatives 2 and 3 also each contemplate 238 housing units off-site. An increase in the
number of total units to be constructed, the change in footprint or size of those structures, and
24 their associated environmental impacts, is a fundamental change in a proposal that requires that
any pre-existing environmental analysis be revisited. For these reasons, the City cannot
25 incorporate and reasonably rely upon the previous NEPA Environmental Assessment. See WAC
26 197-11-635. The City acknowledged this fact in the FEIS by stating, “. . . updated National
Environmental Policy Act (NEPA) review . . .” will be required. FEIS at iii and iv.
12 BRAC Purpose. The goal of the BRAC process is in part intended to alleviate the
socioeconomic effects upon the local community that results from Defense base closures,
13
realignments, and Defense contract-related adjustments. The FEIS fails to identify and analyze
14 the socioeconomic impacts from the Army’s closure of its Reserve Center, and accordingly
establish mitigation plans and strategies for those impacts.
15
Discovery Park Masterplan. In 2009 the Honorable King County Superior Court
16 Judge Catherine Shaffer made her oral ruling in matter of Magnolia Neighborhood Planning
Council v. City of Seattle, which is incorporated herein for any and all purposes as if fully set
17 forth herein, stating:
“I think that the petitioner [MNPC] has made a compelling case to me that much of the
18
Master Plan indicates a desire that any future use of Discovery Park, including the usage within
19 it at the time of the Plan’s adoption and its changes in usage over time by others that were not
for park purposes, be handled in accordance with the detailed provisions of the Master Plan and
20 certainly, as I've just indicated in my Findings of Facts, the ARC property is discussed within
the Master Plan and it's specifically discussed as one of those nonpark uses within Discovery
21 Park.
“So there is a compelling argument here from the petitioner that there must be
22
reference to the Plan when one deals with any of this nonpark uses within the park because
23 that's what the Plan is for: it is for everything that happens within the park…The City must at
least explain why it’s not considering the Master Plan. There is enough here in the Master Plan
24 to indicate that the Army Reserve was thought of as part of the nonpark uses within the
Plan. No one contemplated as it appeared in 1972, 1974 or 1986, and why would they, that this
25 particular nonpark use would ever become a potential park use. They thought the Army
Reserve was going to stay there. But having said that, it seems to me that at a minimum, the
26 City at least has to make a determination and it has to do it publicly, about whether or not the
15 Environmental Justice. The EIS analysis is skewed by repeated references such as the
one quoted below to “environmental justice” as a factor supporting intensive homeless and
16 affordable housing development at Fort Lawton or the Talaris site:
17
“The site would not be redeveloped at this time, and environmental justice conditions would
18 continue as under existing conditions. The opportunity to provide affordable housing in the
[Magnolia or] Laurelhurst neighborhood[s], and the positive impacts of diversifying a
19 neighborhood that is disproportionately occupied by higher income households, would not be
realized.” FEIS at 1-16.
20
Such references are political statements rather than objective analyses of recognized
21
environmental factors that are properly included in an EIS. Further, the FEIS like the DEIS
22 before it offers only flimsy bases unsupported by valid comparative data for its “environmental
justice” premises. The “study” relied upon is not a typical peer reviewed academic study, but
23 combines historical reportage with advocacy journalism. Further, what it reports concerning the
24
25 6 King County Superior Court. “Honorable Catherine Shaffer: Summary Judgment Motion Oral
Ruling”. Magnolia Neighborhood Planning Council v. City of Seattle. Pages KC Superior Court Case No.
26 08-2-35092-4 SEA. March 13, 2009.
10 V. RELIEF REQUESTED
11 What relief do you want? (Specify what you want the Examiner to do: reverse the decision,
modify conditions, etc.)
12
Appellant requests that the Hearing Examiner remand the FEIS to the City of Seattle as
13
the designated LRA with instructions to:
14
1. Re-start the BRAC Notice of Interest (NOI) process, release a new request for NOI’s
15 and to competitive bidding accordingly, with a new RFP solicitation process undertaken to allow
not just the many other stakeholders and providers who are providers and entrants in the homeless
16 and low-income housing fields since 2007 an opportunity to propose their own uses and projects
for the FLARC property, but also to allow any other entity or organization that are eligible for a
17 public benefit conveyance to participate in the BRAC NOI process; and then proceed to
administer the subsequent SEPA scoping and environmental review process.
18
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Filed on behalf of the Discovery Park Community Alliance on this 11th day of April,
22 2018.
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