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ZONING BOARD OF APPEALS NOVEMBER 2008 MINUTES
TOWN OF FALMOUTH
BOARD OF ZONING APPEALS
TUESDAY, NOVEMBER 25, 2008
These minutes are not verbatim
MEMBERS PRESENT: Rich Bayer (Acting Chair), Fred Jay Meyer, Dennis Keeler, Jim
Thibodeau, Willie Audet (Associate), Stan Given (Associate),
MEMBERS ABSENT: none
The meeting opened at 6:33 pm.
Willie Audet and Stan Given were designated as voting members for the meeting.
Administrative Agenda Items:
a) Discussion and adoption of the minutes of the previous Hearing.
Dennis Keeler moved to approve as amended, Jay Meyer seconded. Motion carried 6-0.
b) Discussion and finding that all applications presented for this hearing are
complete.
Al Farris stated that a revised plot plan has been submitted for the Stafford Advisors application,
but the McArdle application is still incomplete. The Board decided to proceed with the items as
submitted.
1. Donald M. Russell, Jr. - Is seeking Reconsideration of the October decision of the Zoning
Board of Appeals for Conditional Use under Section 8.3 to extend a garage roof at 11 Maiden
Ln. Parcel #U16-071, zoned “RA “.
Willie Audet was a voting member for this item.
The Board has been presented with new items tonight – three photographs from Mr. Russell, a
memorandum and a letter from neighbors and a letter and qualifications from an appraisal
company – all of which will be added to the record.
Rich said that ordinance section 8.8 (l) states: “If the Board denies an appeal, a second appeal of
a similar nature shall not be brought before the Board within one (1) year from the date of the
denial of the first appeal, unless a majority of the Board finds that substantial new evidence exists,
or that it committed an error or mistake of law or misunderstood the facts.”
Chris Naigle, representing the applicant, explained that he has reviewed the recording from the
October meeting. Regarding the legal basis, this application is not based on the ordinance
section but based on state statute allowing an applicant the right of reconsideration. They believe
that the Board’s decision was based strongly on photos submitted by Ms. Ryan, which were
taken with a telephoto lens, and do not represent the view with a naked eye. He provided photos
to the Board that were taken from the Ryan residence without a telephoto lens. Mr. Russell did
not see the photos taken by Ms. Ryan prior to the last meeting. Also, Ms. Ryan did not disclose
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that she has water views from the west and north. This proposed extension impacts only one of
her three views, not her only view. The applicant hired an appraiser to evaluate the impact on
adjacent or nearby property values. The appraiser determined that there is no significant impact
on the property values.
Willie Audet thought, in all fairness to the applicant, and in consideration that those photos were
magnified, he was in favor of opening it for reconsideration. He recently visited the site.
Al Farris clarified that reconsideration is its own motion.
Rich Bayer felt that reconsideration was integrated into the ordinance under section 8.8 (l) and
that this constituted a second appeal of a similar nature.
Jay Meyer said his decision at the last meeting was based on ordinance requirements which he
felt Mr. Russell couldn’t meet, not just on the view issue, but he was troubled by the accusation
of bias on the part of the Board. He felt it was worth reconsideration based on the new evidence
presented tonight.
Dennis Keeler felt reconsideration is different than an appeal. He was inclined to support
reconsideration but in a limited basis. Based on the 6 factors listed in the letter from Mr. Russell,
he was troubled by the pictures and the claim of bias, but he felt the other items were not worthy
of reconsideration.
Jim Thibodeau defended himself from the accusation of bias. He was willing to hear the
application again, but he didn’t feel it was significant new evidence.
Stan Given was also troubled about the statement of bias, which he felt wasn’t true. He wasn’t
swayed by the photos – they were not the only reason for his vote. His vote was based on the
belief that there were other ways to achieve the applicant’s goal without extension of the roof.
Rich Bayer didn’t know the photos were taken by telephoto, and was in favor of reconsideration.
Jay Meyer moved to reconsider the board’s denial of Donald Russell’s application. Jim
Thibodeau seconded.
Dennis Keeler asked if they were able to limit the reconsideration to the matters brought before
them, or do they reconsider the whole application. He felt that since this was a discretionary
matter of the Board, they should be able to limit the items they reconsider.
Al Farris read from the state statutes, which he thought gave the Board the authority to hold a de
novo hearing.
Rich Bayer felt they probably should review the whole matter. He was not inclined to review just
these six items.
Motion carried 5-0.
The Board discussed whether to take up reconsideration of the whole application tonight, or to
defer it to a later meeting, in order to have a complete application before them. Willie Audet and
Jay Meyer were in favor of tabling, in order to allow the Board time to visit the site in person to
evaluate the view. Jim Thibodeau and Stan Given agreed.
Rich Bayer thought 6.2b might need to be addressed, to see if it would be a barrier.
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Dennis Keeler asked for Al Farris’s opinion as to why 6.2b was not applicable; he wondered if it
is because this is not a dwelling.
Al Farris explained that if the garage was attached to the house 6.2b would apply.
Jay Meyer mentioned that they should be discussing 6.2d, not 6.2b.
Al Farris explained that 6.2d allowed the Planning Board to hear these cases, “provided that the
extension or enlargement is not located between the lot lines and the required setback lines, and
does not compound nor create a lot coverage or height violation”. The applicant cannot go
before the Planning Board because the garage is in the setback. He said the Zoning Board has
heard these type of applications in the past.
Rich Bayer read the first sentence of section 6; he felt the building sitting 5 feet from the
property line would be a problem.
Al Farris said that it is not an expansion of useable space.
Mr. Naigle felt that it should be considered under 8.3 because of 6.11a which states that if you
are within the 100 foot shoreland setback you can expand the structure but not more than 30%.
The garage is within the shoreland zone, but not within the 100 foot setback. If the garage was
100 feet closer to the shoreland, it could be enlarged. He felt that this statement would not be
there if the writers of the ordinance didn’t decide that someone within the shoreland could
expand their building to a certain extent. This application doesn’t fit under 6.2d because they are
within the setback. This leaves them under 8.3. When the ordinance is ambiguous, he felt the
Board should give the benefit of the doubt to the landowner. Regarding putting the application
off, they have mixed feelings. They feel strongly that the Board should have a chance to visit the
site, but the applicant is concerned with snow load on the roof this winter; there is no Zoning
Board meeting in December, and a meeting in late January would be very late. After some
discussion, the applicant supported tabling the application.
Public comment period opened:
Pamela Ryan testified that she used the zoom feature on her camera, but there was no telephoto.
Pictures often make things look further away, and she used the zoom to approximate the view
that she sees. She would appreciate the Board coming down to the site, and even into her home,
to see the view for themselves.
Public comment period closed.
Dennis Keeler felt the Board should make a determination on the issue of 6.2 versus 8.3. He
wasn’t convinced that 6.2 and 6.11 were inconsistent. Shoreland is a different set of facts.
Jay Meyer agreed; he felt it was important for those board members influenced by the photos to
have the opportunity for a site visit, but he felt that the standards of 6.2 are not ambiguous and
that this cannot be heard under 8.3.
Rich Bayer restated that 6.2 does not permit the expansion since the building is within 5 feet of
the property line. The board needs to determine whether 6.2 applies to this application, and
therefore the application could not pass.
Dennis Keeler felt if the board decided to apply 6.2, they should give the applicant time to
address 6.2 and why or why not it is applicable before the board took a vote.
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Mr. Naigle discussed the link between 6.2 and 6.11. He felt 8.3 was the appropriate section
under which to consider the application.
Dennis Keeler asked if Mr. Naigle would have more information to present on the issue of 6.2
versus 8.3 if they deferred the application.
Mr. Naigle hadn’t studied that issue, as he thought the Board had decided to go with 8.3. He
asked if the Board took advantage of Ms. Ryan’s invitation to enter her home, that he be afforded
the same courtesy.
Dennis Keeler said that, based on Mr. Naigle’s testimony, his suggestion was to table the
application, including the discussion of under which ordinance section to consider it, in order to
allow the applicant’s counsel time to draft his opinion on the issue.
Willie Audet felt it was improper to enter an abutter’s home; it might become an ex parte
meeting. Visiting the site one at a time was okay.
Dennis Keeler moved to table to give the Board an opportunity to visit the site, Willie Audet
seconded. Motion carried 5-0.
2. Bruce MacMaster– Relief from the decision of the Code Enforcement Officer for Conditional
Use at 207 Woodville Rd, Parcel #R03-054-E, zoned “FF”.
Stan Given was a voting member for this item.
Bruce MacMaster discussed the history of the site. He built the house, then the garage, then
installed the trees to buffer his property from the subdivision. He built a porch on the back of the
house, and then poured a concrete pad to park his RV on. He would like to build a roof over the
RV, and he thought that the RV ordinance allowed it. Now he was told that structures must be
20 feet from the property line.
Public comment period opened; no public comment.
Rich Bayer asked about the timeliness of the appeal. The inspector letter was issued in May.
Al Farris said that Mr. MacMaster made an appointment to meet with him on October 7. He felt
that he could have written a new memo at that point. He wasn’t sure that the May 16, 2007
communication was a final decision. A final decision should have been a letter, and this was
done by email.
Dennis Keeler asked for clarification – the May email was not a formal denial but was an
interpretation.
Al Farris said typically a formal denial is in the context of a letter on letterhead, with a signature.
Dennis Keeler felt that a formal decision could be made by email. If Al Farris feels that a formal
decision was not made until October then he is willing to hear the item. He asked if the actions
leading up to the May email was a formal building application.
Al Farris said no, Mr. MacMaster came in with a plan, and they had a discussion, which involved
two other RV shelters in town. Al Farris evaluated both the structures, and reviewed the building
permits, and both those structures meet both the side and rear setbacks.
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Dennis Keeler felt that Al Farris made an interpretation. The disclosure that the applicant had 30
days to appeal was in the email.
Willie Audet observed that this was in 2007, and since it is over a year old, he could reapply.
Rich Bayer stated that since that year passed, there has only been verbal communication. They
could consider that the discussion in October was a new denial, and hear it under that. The
Board was in agreement with that approach.
Dennis Keeler asked if the concrete slab is ten feet away from the property line.
Mr. MacMaster indicated it was.
Willie Audet asked if the applicant had considered a land swap with his neighbor.
Mr. MacMaster said no; he showed the neighbor his plan and asked if he had any objections.
There is a letter included with the board’s packet that shows his neighbors support of the project.
Jim Thibodeau asked for clarification of the ordinance section in question – if the slab was not
there, he wondered under what section the applicant would apply to do what he wants to do, or if
there was any way do it.
Al Farris explained that once a roof is placed, it becomes a structure and must meet the setbacks.
The Board discussed if there was any way under the ordinance that the proposed roof could be
placed without a variance.
Dennis Keeler moved to approve the CEO’s decision to deny the application to erect a roof over
the slab. Jay Meyer seconded.
Jim Thibodeau asked Al Farris to review his determination of a structure. He wanted the Board
to review any way that Mr. MacMaster could build his roof.
Al Farris thought he could either do it with a variance, or acquire enough property from his
neighbor to meet the setbacks.
Jay Meyer asked if there were any other barriers.
Al Farris said no, it is a large lot, and the barn itself meets the setbacks. If the applicant were to
create a land swap with his neighbor, however, he would have to make sure that he met the front
setback as well as the side setback.
Motion carried 5-0.
3. David P. Chamberlain-Is requesting Conditional Use under section 6.2a for a garage and
addition at 27 Winn Rd. Parcel # U41-025-K, zoned “RB”.
Willie Audet was a voting member.
David Chamberlain presented his application. He wants to expand his garage by one bay to the
rear of the lot. He has 174 feet to the rear lot line, and a line of mature evergreen trees that
buffer his lot from the rear lot. His lot is a corner lot, and there are 31 and 36 feet respectively
from the corner of the garage to those lines. They also plan to put bedrooms over the whole
garage and breezeway. The expansion of the one bay is 1.72% coverage of the lot.
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Public comment period opened; no public comment.
Jay Meyer asked if there was anything over the garage and breezeway currently.
Mr. Chamberlain said no, just a roof.
Dennis Keeler asked if the application was here due to it being an undersized lot.
Al Farris confirmed that is the case.
Dennis Keeler asked if the only footprint expansion was the garage bay.
Mr. Chamberlain said yes. He said that there would only be two cars on the lot.
Willie Audet moved to approve the application. Jim Thibodeau seconded. Motion carried 5-0.
4. Stefanie Fairchild-Is requesting Conditional Use under section 6.2a for a roof over an
entrance at 3 Kilborn Wy. Parcel # U19-008, zoned “RA”.
Stan Given was a voting member for this item.
Jed Wright, Ms. Fairchild’s husband, presented the application. They want to install a small roof
for protection from the elements.
Public comment period opened; no public comment.
Jim Thibodeau asked if it was less than required frontage and whether he met all the setbacks.
Al confirmed both those statements.
Stan Given moved to approve the application; Jim Thibodeau seconded. Motion carried 5-0.
Agenda Items:
1. Stafford Advisors– Is requesting a Section 8.5 Disability Variance to install an ADA
compliant wheelchair ramp at 301 Foreside Rd. Parcel #U18-052-A, zoned, “RA”.
Willie Audet was a voting member for the application.
Ken Stafford explained that the ramp would be in the rear of the building and screened from the
road. The interior of the building is ADA compliant.
Public comment period opened; no public comment.
Jay Meyer asked about the distance from the ramp to the sideline. Mr. Stafford didn’t know.
Dennis Keeler asked how long the ramp is; he wondered if it went the length of the building.
Mr. Stafford said it was only halfway; he indicated on the plan where the ramp would be. It only
has to go 14 inches up.
Dennis Keeler asked who the property owner was.
Mr. Stafford said it was owned by an LLC, which is owned by his wife. He is the tenant.
Dennis Keeler asked if there was any one in particular who this ramp was meant to serve.
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Mr. Stafford said no, he just wants to be ADA compliant.
Dennis Keeler thought section 8.6 was specifically for a resident of the building.
Al Farris said that this has been used in the past for commercial ADA projects. It is not used
often. This building has always been a commercial use in a residential area.
Jim Thibodeau observed that Mr. Stafford is required to conform to ADA. He asked if anyone
with a disability has ever lived there.
Mr. Stafford said no, but his father is in a wheelchair and may come visit.
Rich Bayer asked how far the ramp would be away from the property line.
Mr. Stafford said the best estimate was 20 feet.
Rich Bayer asked if that was a side setback.
Al Farris said it was.
Rich Bayer thought if he was 20 feet away he would actually be compliant.
Jay Meyer moved to approve the application under 8.6. Jim Thibodeau seconded.
Willie Audet suggested a condition that the final dimensions be submitted for the application, but
Al Farris said that would be required as part of the building permit anyway.
Jim Thibodeau felt that disability variances for commercial spaces are a reasonable use, provided
all the other provisions are met.
Jay Meyer felt it was ambiguous in that there is no clear reference to a single-family dwelling.
Rich Bayer disagreed with the motion. He felt that the criteria that requires the variance be for a
person living on the property is hard to get past. He also felt that they needed actual distances
from the property line, and not just an approximation.
Al Farris felt that this could have been considered under 6.2d and perhaps should go before the
Planning Board for site plan review, but he felt it was more properly a conditional use.
Dennis Keeler agreed with Rich Bayer; he was concerned that the Board did not have the
authority to do this.
Jim Thibodeau argued that since the ordinance was devoid of specifics, he felt the Board should
make a decision on this.
Rich Bayer asked if the ramp could be approved if it was 20 feet away from the sideline.
Al Farris explained that this is a nonconforming use; it will have to come back before the Board.
He said the law says that we are supposed to make reasonable accommodations for the
handicapped, but the ordinance doesn’t allow him to approve these.
Jim Thibodeau asked, if the end of the ramp was composed of pavers with a railing, if it would
be considered a structure. He wondered if that would get him 20 feet away.
Al Farris said if it was stone it would be considered landscaping. Since the lot is nonconforming
he would still have to come back, but not for a disability variance. He would have to go before
the Planning Board.
Jay Meyer withdrew the motion.
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Jay Meyer moved to approve the application under 8.6, with the condition that a plan be
provided to the CEO depicting the dimensions and distance from the structure to the property
line, especially the side property line. Jim Thibodeau seconded.
Motion failed 0-5.
Jim Thibodeau moved to approve the structure under 6.2d, with the recommendation that the
application be placed on the Planning Board agenda as an administrative action item, and the
ramp structure be altered so that the end of the ramp be constructed of pavers so that he meets
the 20 foot setback. Jay Meyer seconded the motion.
Willie Audet asked if that could be done, considering that the notice was published under section
8.6. Al Farris explained that the notice only has to include the property address and owner.
Dennis Keeler wasn’t sure that the Zoning Board has the authority to approve anything under
6.2d. He would like to amend the motion to include “and to the extent that Zoning Board
approval is necessary”. He was uncomfortable making recommendations to the Planning Board
on how they should approach the application. He suggested amending the motion to say “subject
to Planning Board approval”
Jim Thibodeau withdrew the original motion.
Jim Thibodeau moved to approve the structure under 6.2d, subject to Planning Board approval,
and to the extent that Zoning Board approval is necessary. Dennis Keeler seconded.
Motion carried 5-0.
2. Stephanie & Rebecca Rand- Are requesting Conditional Use to waive a restriction on a
variance at 3 Pine Grove Way. Parcel # U07-004-D, zoned “RA’.
Stan Given was a voting member for this item.
Stephanie Rand presented her application. They are here to request a waiver on a variance from
1983. The variance has a condition that only one single-family dwelling be allowed on this lot.
They wish to create a second lot from this parcel, and then go to the Planning Board to receive a
private way. The private way will correct an issue with frontage on both the parent lot and the
abutter’s lot. The owner was not aware of the variance when she bought the property. They are
not building anything on the lot, this is a technical issue.
Public comment period opened. No public comment.
Jim Thibodeau asked who originally applied for the variance.
Rebecca Rand said it was the previous owner.
Stephanie Rand explained the different owners of the lots in question.
Al Farris explained that the variance was for the lot which has only 50 feet of frontage. The
other lot had a single family dwelling at the time. They received approval for an accessory
cottage, and would like to split out a lot for the cottage. To do this they would need a private
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way to establish frontage. There was no back lot provision in the ordinance at the time; staff
have interpreted that the restriction was imposed due to the lack of said provision, and he and
Town Attorney Bill Plouffe both agree on that. He discussed the complexities of the lots.
Jim Thibodeau asked about the triangular piece on the plot plan.
Al Farris explained that there is a planned land swap between the Hester’s and the Rand’s.
Stephanie Rand explained that those are now going to be easements and not land swaps.
Jim Thibodeau asked their intention for the separate cottage lot.
Rebecca Rand explained that, if she were to die, her children would have to sell the whole parcel
and Stephanie Rand, who lives in the accessory cottage, would lose her house.
Al Farris further explained that as an accessory cottage, they are not allowed to expand.
Dennis Keeler asked if they have the authority to change a determination from a previous Board.
Al Farris said that Bill Plouffe felt that since the Board imposed the restriction, they could waive
it. They felt the restriction was only imposed due to the fact that there would be no way to
provide for frontage for the back lot under the ordinance in 1983. He explained that now they
would not even allow an applicant to come before the Zoning Board for a variance of this nature;
they would require the applicant to go before the Planning Board to get a private way.
Jay Meyer asked about the setbacks, especially in regards to the pool.
Al Farris said the pool would meet the setback; it is 15 feet back and only has to be 3 feet.
Jay Meyer asked if the frontage for the original home would change to the private way.
Al Farris said that no, the variance that allowed the 50 feet of frontage on Foreside Road would
remain.
Jay Meyer asked if it was upon the Planning Board to approve both the private way and the
division of the lot.
Al Farris said that was correct.
Dennis Keeler asked for clarification on why Al Farris felt this restriction was imposed.
Al Farris said it was typical to include conditions on approval of variances back then.
Rebecca Rand explained that the prior owner wanted to put 45 condos in there, and he was
denied. She felt that was the reason that the language was put in.
Dennis asked if there was any guidance on what standards to review in making this decision.
Al Farris said there was no real provision in the ordinance to allow this, but considering that the
provision to install a private way was not available at the time, circumstances have changed. The
only way to create a street at that time was to have a subdivision.
The Board discussed how this could be accomplished. Rich Bayer wondered if they would do a
variance to a variance. Dennis Keeler felt that the condition was not a requisite to meeting
specific variance requirements but was more as an appeasement to the neighbors.
Al Farris pointed out that the condition doesn’t stipulate that you can’t divide the lot, just that
there should not be another single-family dwelling on the lot with the variance. He still feels that
the Board needs to issue a waiver.
Rich Bayer was concerned with the potential of conversion of accessory cottages to single family
dwellings.
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Al Farris didn’t feel that was important. If you have enough area and frontage, there is no reason
why you can’t create another lot.
The Board debated at length solutions to the issues presented in this application.
Jay Meyer moved to table the application pending receipt of an opinion by the Town Attorney
regarding the basis for the Board to waive any condition on the variance. There was no second,
so the motion failed.
Rich Bayer was on the fence. He would like to move this forward tonight, but would also like to
see the opinion of the Town Attorney.
Dennis Keeler moved to waive the requirement of the variance of 1983 restricting the lot to one
single family dwelling. Stan Given seconded.
Rich was leaning toward approving this waiver, due to the unique circumstances of this lot and
this restriction.
Dennis Keeler felt that the Town Attorney was not pointing toward any specific statute that gives
this authority, but that the Board imposed the restriction, and therefore had authority to waive it.
Jay Meyer felt there was a danger in opening the possibility to waive restrictions on variances.
Stan Given agreed, but in light of the history of this lot, he supported this application.
Motion carried 5-0.
3. Robert McArdle represented by Sara Johnson- Is requesting Conditional Use under
section 6.2c for a deck at 19 Baysite Ln. Parcel U18-010-G1, zoned “RA.”
Willie Audet was a voting member for the item.
There were no representatives present for this item. More information was required, but was not
submitted.
Willie Audet moved to table the item, Dennis Keeler seconded. Motion carried 5-0.
4. Gary Thorpe & Heather Putnam- Are requesting Conditional Use under section 6.2b to
build a deck and shed at 135 Mountain Rd. Parcel # R07-035, zoned “FF”.
Stan Given was a voting member for the item.
Gary Thorpe presented his application. He would like to enlarge his deck to 14x14 and install a
storage shed beneath it.
Public comment period opened; no public comment.
Stan Given asked about the site plan photo; he wondered where the deck is on the house.
Mr. Thorpe indicated on the photo where the deck is.
Dennis Keeler asked Mr. Thorpe to describe each sketch in detail in regard to what currently
exists and what is proposed.
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Mr. Thorpe explained that the deck will be along the back of the garage, the master bedroom is
over the garage. The current deck is 8’x10’.
Jim Thibodeau reviewed the setbacks of the lot. The rear setback is not shown.
Al Farris pointed out in a subsequent plan that the setback from the septic tank is 30 feet, and the
lot is 200 feet deep.
Dennis Keeler asked why it wasn’t under 6.2a.
Al Farris explained that he didn’t have enough information at the time the agenda was set to
determine the setback. It now looks that they are not going into the setback.
Stan Given moved to approve the application under 6.2a; Jay Meyer seconded. Motion carried
5-0.
Other items:
Al Farris explained that due to staffing changes, Melissa Tryon will not serve as recording
secretary any longer. Patrice Perrault may return to doing the meeting, but they are also
exploring recording technology to fill the gap. Another alternative is for Al Farris to prepare
motions prior to the meeting. All the motions would be in the affirmative, and then the Board
would vote up or down. He was not sure how that would work, since they would have no way to
read back motions that might be made. The Board was not in favor of prewritten motions. They
discussed the option of selecting a secretary from the Board members to record motions and
votes.
Meeting adjourned 9:54 pm.
Respectfully submitted,
Melissa Tryon
Recording Secretary

 

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