Plaintiff M & K Partners LLC appealed a decision by the Stoughton Planning Board to grant site plan approval to the Van Dam defendants for the construction of an industrial building on property directly abutting M & K’s. The Van Dams, joined by the board, have moved to dismiss the complaint, contending that the court lacked jurisdiction over the appeal because it is premature. They also claimed that M & K is not sufficiently “aggrieved” to have G.L. c. 40A, § 17 standing, and that their site plan application is “petitioning activity” protected by the anti-SLAPP statute, G.L. c. 231, § 59H, and that M & K’s appeal is a violation of those protections.

Under Article XIV (Site Plan Review) of the Stoughton zoning bylaw, “the appeal of any decision of the Planning Board hereunder shall be made in accordance with the provisions of MGL c. 40A, § 17. The court held that a town may adopt a bylaw providing for immediate appeal of a site plan review decision, even if it is of the “non-discretionary” type otherwise not appealable until issuance of a building permit, and that this is such a bylaw. Furthermore, despite the contention that M & K was not sufficiently aggrieved, at least one of the impacts alleged by M & K as directly affecting its property relates to drainage—an environmental issue, specifically addressed by the site plan bylaw. Since the Van Dams did not offer any evidence to rebut M & K’s presumption of standing, the court dismissed Van Dams’ contention on standing. In regards to the G.L. 231, § 59H (the so-called “anti-SLAPP” statute) claim, the Van Dams stated that this action is groundless, “and a mere pretext to intimidate and harass the Van Dams as the result of the Norfolk Superior Court Matter.” However, M & K raised several objections in this appeal (e.g., those related to drainage and, perhaps, to process) which, if proven, would warrant relief—a remand to the board for further explanation or action, and perhaps substantial changes to the site plan. Because the Van Dams have not submitted any admissible evidence to rebut these claims, the court dismissed its motion to dismiss.

M&K Partnership LLC v Scardino, 2014 WL 3798081 (Mass. Land Ct. 7/30/2014)

On April 8, 2013, Global Tower and Northeast submitted an application for review by the Rome Planning Board requesting approval to construct a wireless telecommunications tower in the Leased Area (the “Application”). The Belgrade Region Conservation Association (“BRCA”), a local organization that holds conservation easements in the Town of Rome, publicly expressed its direct opposition to the Application. Throughout the course of the proceedings before the Planning Board, Global Tower and Northeast learned that members of the Planning Board were also members of BRCA. At the December 9, 2013 Planning Board meeting, all four of the Planning Board members with BRCA membership stated their belief that they did not have a conflict of interest and were not biased. At that same meeting one of the co-chairs reiterated his belief that the communication tower would “defile” the Town’s scenery and that nobody in the Town wanted it. He then recused himself for being biased. At the conclusion of the February 10, 2014 meeting, the Planning Board voted to deny the Application. On March 11, 2014, Global Tower and Northeast filed their Complaint (ECF No. 1) against the Town of Rome and the Planning Board. Plaintiffs’ Complaint asserted nine counts.

The district court dismissed the claims brought under the Telecommunications Act (TCA) because Global Tower and Northeast had further recourse before the Town of Rome since they could have appealed to the Town Board of Appeals and potentially garnered a different result. The Plaintiffs’ Due Process claims were also dismissed as the First Circuit set a high bar for stating a claim of violation of due process in land use disputes and “run of the mill” disputes will not suffice.

Plaintiffs also asserted state-law claims for violations of Plaintiffs’ due process rights under the Maine Constitution (Count III), conflict of interest (Count IV), violations of 1 M.R.S.A. § 71 (Count V), bias (Count VI), violations of Maine Rule of Civil Procedure 80B and 30–A M.R. S.A. § 3012 (Count VII) and lack of authority (Count VIII). Because of the dismissal of Counts I and II, the Court declined to exercise supplemental jurisdiction over the remaining state-law claims: “As a general principle, the unfavorable disposition of a plaintiff’s federal claims at the early stages of a suit, well before the commencement of trial, will trigger the dismissal without prejudice of any supplemental state-law claims.” Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995).

Global Tower Assets, LLC v Town of Rome, Maine, 2014 WL 3784233 (D. Maine 7/31/2014)

This appeal arose from two actions for judicial review filed in the Circuit Court for Montgomery County. In each case, William Pumphrey, on behalf of the Robert A. Pumphrey Funeral Home, and RAP Leasing Corporation (“RAP”) (collectively “Pumphrey”), challenged a text amendment to the City of Rockville’s zoning ordinance enacted by the Mayor and City Council of Rockville, which eliminated language permitting the expansion of off-street parking for certain nonconforming uses within Rockville. In the second action, Pumphrey challenged a decision of the City of Rockville Planning Commission, denying his final record plat application for the consolidation of two adjacent parcels into one lot. The circuit court granted Pumphrey’s motion to consolidate the two actions, and ruled that the text amendment to the zoning ordinance was invalid because the City acted arbitrarily and capriciously in enacting it. The circuit court further ruled that the Planning Commission’s decision to deny Pumphrey’s final record plat application was arbitrary, capricious, and unsupported by substantial evidence in the record.

As to the text amendment issue, the court first discussed what constitutes a “zoning action” under section 4.08(a) and its counterpart at section 2.09(a)(1)(ii), which governs Baltimore City. After reviewing these statutes the court held that the 2012 Text Amendment at issue in the instant appeal is not a zoning action subject to statutory judicial review and, for the same reasons, also is not subject to administrative mandamus review. In making this determination of whether a local zoning authority is acting in an adjudicative or legislative manner, the court found that it is dependent upon the nature of the particular act in which it is engaged. This determination is not based on whether the zoning decision adversely affects an individual piece of property but whether the decision itself is made on individual or general grounds. Here, this was found not to be the case because the first and second prongs of the Overpak test were not satisfied: the local legislative body did not “decide[ ] the use of a specific parcel or assemblage of parcels of land”, the 2012 Text Amendment was initiated by the Mayor and Council, not “by an individual application by a property owner or its representative”. The final decision on the plat application was also upheld because the Planning Commission decided to deny the final record plat on the basis that it failed to maintain, to the extent feasible, the average area and frontage of existing lots in the neighborhood. This finding was supported by substantial evidence in the record and was not legally erroneous, and was thus not scrutinized by the court.

For the aforementioned reasons, the Court of Special Appeals concluded that the circuit court erred by denying the City’s motion to dismiss the text amendment case and by reversing the decision of the Planning Commission in the plat case.

Mayor and Council of Rockville v Pumphrey, 2014 WL 3752100 (MD 7/31/2014)

Posted by: Patricia Salkin | August 12, 2014

MA Appeals Court Upholds Granting of Special Permit for Wind Turbine

The plaintiffs, GPH Cohasset, LLC, and GGNSC Cohasset, LLC (collectively, Golden Living), appealed from a judgment of the Land Court affirming a decision of the defendant planning board of Cohasset (board) to grant defendant Conservation Wind Partners, LP (Conservation Wind), a special permit to erect a wind turbine on property owned by defendant Trustees of Reservation (trustees). On appeal, Golden Living asserted, among other reasons, that: (1) the trustees and Conservation Wind did not satisfy their burden of proof to obtain approval of the special permit and site plan, (2) the wind turbine creates public safety concerns, (3) the judge erred by precluding Golden Living’s expert witnesses from testifying, and (4) the judge erred by declining to compel the production of the wind turbine’s operating manual.

As to the safety issue, the court noted that Golden Living put forth no evidence to show that the wind turbine was susceptible to blade throw or turbine collapse. The record indicates that the board did not act arbitrarily with regard to safety and that it adequately addressed Golden Living’s concerns by imposing extensive conditions for approval and ongoing operation. Secondly, Golden Living did not identify any experts in their interrogatory answers, representing instead that they would supplement their answers. Discovery closed on January 13, 2012; as of that date, Golden Living had failed to supplement the interrogatory answers. So when Golden Living attempted to submit the testimony of two experts after this date, the court found that the judge did not abuse his discretion in excluding Golden Living’s experts. Finally, Golden Living asserted that the board’s decision cannot stand because it failed to make sufficient factual findings that demonstrate the project complies with the zoning by-law. Section 12.4(1)(b) of the Cohasset zoning by-law requires that the board make “written findings certifying compliance” with the by-law before granting a special permit. However, since the judge found that “instead of making specific findings, the Board conditioned its approval on the Trustees complying with numerous conditions to ensure compliance with the Bylaw”, the court found the board made sufficient findings to support its approval.

GPH Cohasset, LLC v Trustees of Reservations, 85 Mass. App. Ct. 555 (MA. App. 6/25/2014)

The opinion can be accessed at:

Editor’s Note: This posting is republished from the RLUIPA Defense Blog, with permission. The blog is located at:

In American Atheists v. Port Authority of New York and New Jersey, No. 13-1668 (2d Cir. July 28, 2014), the U.S. Court of Appeals for the Second Circuit held that the National September 11 Museum’s (Museum) display of a 17-foot high column and cross-beam retrieved from World Trade Center debris that gave many the impression of a Latin cross (a symbol associated with Christianity) did not violate the U.S. Constitution’s Establishment and Equal Protection Clauses. The column and cross-beam, known as “the Cross at Ground Zero,” is a part of the Museum’s exhibition called “Finding Meaning at Ground Zero” (to view the Cross at Ground Zero, click here). The exhibit includes the following textual panel:

Workers at Ground Zero struggled to come to terms with the horrific circumstances in which they found themselves. Some sought to counter the sense of utter destruction by holding on to something recognizable, whether a metal bolt or shard of glass or a marble salvaged from the debris. Others, grappling with the absence of survivors and the regular recovery of human remains, found purpose by forging relationships with relatives of a particular victim, carrying a photograph or memorial card to bolster their resolve.

Some questioned how such a crime could have been perpetrated in the name of religion, and wrestled with how a benevolent god would permit the slaughter of thousands of innocent people. Many sought comfort in spiritual counseling, religious symbols, and the solace of ceremonies and ritual.

Some workers turned to symbols of patriotism to reinforce a sense of commitment and community, hanging flags across the site. American flags reinforced a sense of commitment and community, and the repeated promise of “God Bless America” inspired a sense of duty. The words “Never Forget” commanded a pledge of unswerving dedication.

Three years before the Museum opened, the American Atheists, Inc. and certain of their members (Atheists) sued, contending that any display of the Cross at Ground Zero would violate the U.S. Constitution, but the United States District Court for the Southern District of New York found against them. On Appeal, the Atheists conceded that the Cross at Ground Zero is an historic artifact worthy of display in the Museum, and limited their challenge to the manner in which the Museum would display the cross. In particular, they asserted that the display of the cross would impermissibly promote Christianity in violation of the Establishment Clause and would also deny the Atheists equal protection of the laws, because the Museum does not display items acknowledging atheists, even though atheists were among the victims and rescuers on September 11. Although the Atheists acknowledge that there is no historic artifact that speaks to the atheists who lost their lives or atheists’ rescue efforts, they alleged the District Court erred in ruling against them because they were willing to finance an “atheists’ recognition plaque” for display in the Museum with the Cross at Ground Zero.

In evaluating the Atheists’ Establishment Clause claim, the Second Circuit applied the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), which “instructs that for challenged government action to satisfy the neutrality principal of the Establishment Clause, it must (1) ‘have a secular . . . purpose,’ (2) have a ‘principal or primary effect . . . that neither advances nor inhibits religion,’ and (3) ‘not foster an excessive government entanglement with religion.’”

The Second Circuit found that the display of the Cross at Ground Zero does not violate the Establishment Clause because the stated purpose of displaying it – to tell the story of how some people used faith to cope with September 11 – is genuine, and an objective observer would believe the purpose of the display to be secular. In addition, “an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled ‘Finding Meaning at Ground Zero;’ the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context.” Finally, “there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.”

The Second Circuit also rejected the Atheists’ Equal Protection Clause challenge: “In the absence of any evidence of discriminatory animus toward the atheists, the Museum did not deny equal protection by displaying the Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.”

The opinion can be accessed at:

Editor’s note: This post is republished with permission from the RLUIPA Defense blog which can be viewed here:

The United States District Court for the Middle District of Florida has denied the City of Jacksonville’s motion to dismiss Church of Our Savior’s (formerly known as Resurrection Anglican Church) RLUIPA suit, and has scheduled the case for trial. The Church was founded in 2006 and has about 110 members and weekly parishioners. Its religious mission is “to revel in and share the grace that God has shown them,” and seeks to encourage members in the community to attend its religious services. Aside from religious services, the Church provides bible study classes, serves the homeless, and assists nearby schools.

Currently, the Church rents space from the City of Jacksonville Beach Historical Society on a six-month rolling basis. Under its lease the Church can only hold services for four hours per week, and it wants to have more time for worship. It also is not permitted to make repairs or alter the chapel of the space it leases to accommodate its religious needs. The Church leases additional space from a separate owner for its administrative offices, and is relegated to holding its men’s bible study sessions in the back of “Colonel Mustard’s” – a popular hamburger restaurant. These limitations, the Church alleges, prevent it from attracting new members to its congregation, in contravention of its religious beliefs.

To alleviate these burdens, the Church began searching for a single location from which it could practice its religion. In 2012, the Church found property in the City’s “Residential, single family (RS-1)” zoning district, and acquired an option to purchase the property (Property). In this zone, “public and private parks, playgrounds, and recreational facilities” are allowed as-of-right, but churches must obtain a conditional use permit (CUP) to locate there. The Church alleges that the Property “is the only available property to ideally fit its needs . . . .”

In March 2013, the Church submitted a CUP application to construct a one-story, 7,440 square foot building containing a sanctuary and additional space that could hold more than 200 people, and with a children’s play area for the congregation. The staff of the City’s Planning and Development Department prepared a report recommending approval of the application, because the proposal “represents a reasonable low intensity use of the undeveloped parcels surrounding the City’s lift station, and would serve as transition between the soon to be developed commercial parking facilities to the east, and the Hopson Road neighborhood to the west and south.” Five residents from the neighborhood opposed the application, and the Planning Commission denied the application.

The Church submitted another CUP application in August 2013, this time characterizing the proposed children’s play area as a public park. The Planning and Development Department staff again recommended approval for the same reasons as before. Neighborhood residents spoke in opposition and the Planning Commission denied the CUP on the grounds that “(1) the proposal ‘is not consistent with the character of the immediate vicinity;’ (2) the proposal is ‘inconsistent’ with the City’s Comprehensive Plan, which requires future institutional uses, like churches, to be located outside of low-density residential areas; and (3) changing the designation of the children’s play area to a public park means the proposed building would exceed the maximum of 35% lot coverage for property zones RS-1.”

The Church brought a five-count RLUIPA suit against the City. It alleges that the City’s CUP denial substantially burdens its religious exercise because “The Church wishes to build a facility on what it claims is the only available property to ideally fit its needs, and the City’s denial of its application for a CUP means the Church cannot do so.” Instead, the Church “is left with its rolling, six-month lease on the Beaches Museum Chapel, a less than ideal location, with no guarantee the lease will continue to be renewed.” The Church also claims that the City’s zoning ordinance violated RLUIPA’s equal-terms provision on its face by treating religious uses worse than secular assembly uses. In support of this argument, the Church points to “public and private parks, playgrounds, and recreational facilities” uses that are allowed as-of-right in the subject zoning district, while religious institutions must obtain a CUP through discretionary review to locate there. It also alleges that City violated RLUIPA’s equal-terms and nondiscrimination provisions as-applied by treating it worse than other secular and religious uses that obtained zoning approval to locate in the zone. Finally, the Church argues that the City has violated RLUIPA’s unreasonable limitations provision by adopting policies that make it difficult for religious institutions to locate anywhere in the City.

On July 18, 2014, the District Court denied the City’s motion to dismiss the Church’s claims, concluding that the claims were properly pled to proceed to trial. The District Court has agreed to expedite the case for trial – scheduled to occur on September 2, 2014.

Daniel P. Dalton, an experienced RLUIPA litigator who represents the Church, offered the following comment:

“The law ensures that a city’s zoning restrictions don’t single out ministries for discrimination and penalize them because of their religious viewpoint. The city should do the right thing and grant Church of Our Savior a permit to build its church so it can fulfill its mission and continue to serve its community.”

Attorney Dalton is described by Bram Alden in his article “Reconsidering RLUIPA: Do Religious Land Use Protections Really Benefit Religious Land Users?” as “a leading RLUIPA proponent who has represented religious plaintiffs in a number of prominent RLUIPA cases,” including the Academy of Our Lady of Peace in its lawsuit against the City of San Diego (read more here).

The District Court’s decision denying the City’s motion to dismiss in Church of Our Savior v City of Jacksonville Beach, 2014 WL 35897494 (MD FLA 7/18/2014)

The Town of Saratoga appealed a decision of the circuit court granting a writ of mandamus compelling the Town, via its building inspector, to issue a building permit to Golden Sands Dairy, LLC, for the construction of seven farm buildings. The Town argued that the circuit court erred in granting the writ for four reasons: (1) Golden Sands did not have a vested right in the building permit; (2) the building inspector did not have a positive and plain duty to issue the permit; (3) Golden Sands would not suffer substantial harm if the permit were denied; and (4) Golden Sands has an adequate alternative remedy to mandamus through a separate lawsuit pending between Golden Sands and the Town.

The Town first argued that Golden Sands does not have a vested right in the building permit because it failed to submit a complete building permit application prior to July 19th, the date the Town enacted the moratorium. Saratoga argued that the building permit application that Golden Sands submitted was incomplete because it lacked: (1) a complete “site plan”; (2) evidence showing compliance with state transportation laws regarding the driveway providing access to and from an adjoining state highway; and (3) the dimensions of setbacks for each of the proposed farm buildings. Despite this, the circuit court found, to the contrary, that “Golden Sands did provide an accurate plot plan that indicated the locations of the building[s].” Additionally, the circuit court found that, according to testimony of the building inspector, the plans that Golden Sands submitted to the Town provided sufficient information from which the building inspector could determine setbacks. The Town did not develop an argument that this finding was erroneous. Accordingly, the court found that the Town had failed to develop a persuasive argument that Golden Sands failed to submit sufficient documentation to comply with the requirements of the Town building code.

Second, the Town argued that even if Golden Sands submitted a complete building permit application, it did not have a vested right in the building permit because Golden Sands knew that the Town was in the process of adopting its own zoning ordinance and, thus, Golden Sands could not have reasonably relied on the Wood County zoning ordinance. However, at the time Golden Sands submitted its permit application, there was insufficient evidence on which Golden Sands could conclude that the Town would “soon prohibit” large agricultural uses. Therefore the exception to the general rule that property owners may rely on existing regulations did not apply here. The court therefore found that Golden Sands had a vested right in the issuance of the permit.

Finally, the Town argued that Golden Sands is not entitled to mandamus because the separate lawsuit that Golden Sands filed against the Town regarding the validity of the July 19 moratorium provides Golden Sands with “an adequate, specific legal remedy for the injury that Golden Sands claims it will suffer if a building permit is not compelled.” The court concluded, however, that the Town forfeited this argument when it failed to raise the argument before the circuit court. Accordingly the Court of Appeals affirmed the decision of the circuit court requiring the Town to issue a building permit to Golden Sands for the seven farm buildings.

Golden Sands Dairy, LLC v Fuehrer, 2014 WL 3630035 (WI App. 7/24/2014)

IAK Florida Builders, LLC (IAK) agreed with Kathy Kellum, trustee of the Reel Estate Trust, to purchase certain real property in Florida for the purpose of developing it as Sans Souci Bay. As part of the development, IAK petitioned the City to rezone the property from single-family and agricultural use to single- and multi-family use. The City and its Planning and Zoning Committee both denied the proposal. IAK sought review of the denial at a hearing before a special magistrate, and the Planning and Zoning Committee approved IAK’s amended proposal, subject to a series of conditions. IAK complied with the conditions and presented the amended proposal to the City at a final determinative hearing on May 24, 2010. The City denied the proposal and took certain actions that IAK claims were improper during the hearing. Appellants claimed the City violated their right to procedural due process because it reached a decision that amounted to a taking of Appellants’ property interests without providing a full and fair hearing, and they claimed that the City violated their substantive due process rights because its denial of Appellants’ rezoning petition was “an arbitrary and irrational exercise of power.” The federal district court dismissed the action, and IAK appealed.

The Eleventh Circuit likewise dismissed the substantive due process claim because areas in which substantive rights are created only by state law are not subject to substantive due process protection under the Due Process Clause because substantive due process rights are created only by the Constitution; however, the zoning restrictions at issue in this appeal concerned land-use rights that are state-created and therefore fell beyond the scope of substantive due process protections. As to the procedural due process claim, the court adhered to the rule that a procedural due process violation has not occurred when adequate state remedies are available. Because appellants did not take advantage the judicial review of final agency actions, including zoning decisions, available under Fla. Stat. § 120.68, the procedural due process claim was also dismissed. Accordingly, the Eleventh Circuit affirmed the holding of the district court.

Goodman v City of Cape Coral, 2014 WL 3702433 (11th Cir. 7/28/2014)

Plaintiff CEnergy–Glenmore Windfarm # 1, LLC, obtained a conditional use permit from the town of Glenmore, Wisconsin, to develop a wind farm, but the company did not obtain required building permits in time to take advantage of a lucrative opportunity to sell electricity generated by wind turbines to a Wisconsin power company. CEnergy then filed this lawsuit against Glenmore claiming a denial of its right under the Fourteenth Amendment to substantive due process and a violation of the town’s state law obligation to deal in good faith. The district court dismissed the due process claim for failure to state a claim upon which relief can be granted and declined to retain jurisdiction over the supplemental state law claim, and CEnergy has appealed.

The question of whether CEnergy has identified a property interest in the building permits it sought was not addressed by the court. Like the district court, the Court of Appeals concluded that CEnergy’s substantive due process claim failed because the Board’s actions were not arbitrary in the constitutional sense, and because CEnergy did not seek recourse under state law. Here, CEnergy made no attempt to proceed under the ordinance, even after the Town Board refused to accept its permit applications in September 2010 and began making excuses for not taking action on the permit requests despite knowing of the deadline CEnergy faced. Nor did CEnergy take advantage of another potential option under state law: seeking a writ of mandamus to force the town to act on the permit applications. The district court’s holding was therefore affirmed.

Centergy-Glenmore Wind Farm #1, LLC v Town of Glenmore, 2014 WL 3867527 (7th Cir. 8/7/2014)

The Chandlers had purchased property located at 24 Windmill Lane in Chatham, Massachusetts containing a single-family home. The structure was built in approximately 1929 and is located within a residential R–40 district and in a coastal conservancy district. The structure is 19.2 feet high above grade, and contains 2,161 square feet of living space. The Chandlers’ property is nonconforming as to lot size and building coverage, and contains additional dimensional nonconformities with respect to its frontage, front yard setback, and side yard setback. On December 31, 2007, John V.C. Saylor, Georgia A. Saylor, Peter Hallock, Edwin J. Deadrick, and Mary Anne Hall Deadrick filed their complaint appealing from the board’s decision to grant a special permit to the Chandlers. The defendants, Robert Jeffrey Chandler and Jayne Kerry Chandler (collectively the Chandlers), appeal from the entry of summary judgment by a judge of the Land Court that reversed a decision of the zoning board of appeals of Chatham (board). The board had granted the Chandlers a special permit allowing them to reconstruct a pre-existing nonconforming structure on their nonconforming lot. However, the judge reasoned that, since the new structure created an additional nonconformity as to its height, the project required a variance rather than a special permit.

Under G.L. c. 40A, § 6, pre-existing nonconforming structures or uses may be extended or altered, provided, that “no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood”. However, the court construed the provisions of the first and second sentences of § 6 together to allow extension of existing nonconformities upon a showing of no substantial detriment, but to require a variance for the creation of any new nonconformity.

Thus, the matter was remanded to the Chatham zoning board of appeals to determine whether the Chandlers’ proposed new structure is eligible for the exemption provided under § IV.A.3 of the Chatham by-law from otherwise applicable height limitations.

Deadrick v Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 (MA App. 6/25/2014)

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