EASTHAM CONSERVATION COMMISSION
28 August 2007
MINUTES
PRESENT: David Hoerle, Glenn Collins, Judith Williams, Terry Kelleher, Steve Smith, Dennis Murley.
STAFF PRESENT: Deputy Natural Resources Officer Jim Gallagher, Deputy Natural Resources Officer Rachel Hutchinson, Conservation Clerk Kay Stewart-Greeley.
ALSO PRESENT: Barbara Adams, Meint Olthof, Emily E.H. Beebe, Jim Kostas, Bruno Coppi, Maria Coppi, Tom Kochanek, Peg Kochanek, Stephen Greller, Stephanie Sequin of Ryder & Wilcox, Inc., Tim Brady of East Cape Engineering, Alan Cabral of FELCO, Inc., Russ Sandblom, Attorney Craig R. Nickerson, Dan & Jean Coppleman.
Chairman Murley, brought the meeting to order at 7:00 P.M.
The Minutes of 14 August 2007 were reviewed. Ms. Williams MOVED approval and Mr. Collins SECONDED the Motion.
THE VOTE WAS 5 IN FAVOR WITH ONE ABSTENTION. MOTION CARRIED.
Commissioner Williams recused herself at this time.
Deputy Gallagher presented an Administrative Review for Heather Sugrue at 20 Cranberry Road. Ms. Sugrue had recently gotten approval to remove trees on her property and proposes to remove nine more and replant the area with trees and shrubs from the native planting list. Deputy Gallagher showed photos. He said the location is 50' from and old Cranberry bog and in his opinion there will be no adverse impacts.
Chairman Murley commented that they are “bean pole” Pines so they have been trimmed over the years and he has no problem with the proposal.
Mr. Hoerle MOVED to ratify this Administrative Review and Mr. Collins SECONDED the Motion.
SO VOTED UNANIMOUSLY.
Commissioner Williams returned to the meeting room.
The next Administrative Review was for Al Schubert at 520 Dyer Prince Road. The proposal is to remove a tree which was struck by lightning and dead. Deputy Gallagher showed photos and explained that it is near the Salt Marsh and A.C.E.C. but not within the 100' Buffer. He said Mr. Schubert wanted to “be on the safe side” in asking Conservation Commission approval.
Mr. Collins MOVED and Mr. Hoerle SECONDED the Motion to ratify this Administrative Review.
SO VOTED UNANIMOUSLY.
Following this, Deputy Gallagher presented an Administrative Review for Perkins, 585 Bridge Road. He said the owner would like to plant a privacy barrier near the road of trees and shrubs from the native planting list. He said Commissioner Smith referred him to this property when he noticed that a barn on the property had been demolished.
He said that the barn is outside the 100' Buffer but within the A.C.E.C. He said the owners intend to rebuild the barn and he has informed them they have to file a Notice of Intent for the after-the-fact removal and construction. He said there was a paved driveway that they replaced with shell. This will also have to be addressed in the Notice of Intent.
Mr. Collins asked if the lawn at the site was new and Deputy Gallagher said it was. This whole area is A.C.E.C. Mr. Kelleher said if they are filing a Notice of Intent it could be handled at that time.
Ms. Williams said she thinks something needs to be done about the lawn now. Mr. Smith said that planting between the lawn and the A.C.E.C. would be a good barrier and they should be told about no fertilizer use.
Deputy Gallagher said the owners obtained permits for the barn removal and asked why they weren’t told that they needed to get Conservation Commission approval. He said they were aware of the Salt Marsh but they were not aware of the A.C.E.C. Deputy Gallagher said he informed them they could not have underground irrigation.
Mr. Collins MOVED and Mr. Smith SECONDED the Motion to ratify the Administrative Review for the planting of trees and shrubs along the front of the property.
SO VOTED UNANIMOUSLY.
7:14 P.M. Request for Certificates of Compliance, Skelton, DEP SE 19-936 & DEP SE19-1091, 190 Spring Road, Map 01, Parcel 037.
Deputy Gallagher explained to the Commissioners that when a Certificate of Compliance was requested for SE19-936 it was denied. This Order had been issued for the installation of a well and septic system and construction of an addition to an existing dwelling. When the Commission visited the site at that time the inspection revealed numerous changes to the plan of record including a new driveway and retaining wall with steps, and the Commission told them to file a new Notice of Intent for the driveway and wall. Also, the roof drainage condition was not in compliance and they were told to correct that before a Certificate of Compliance could be issued.
Order of Conditions SE19-1091 was issued for the installation of the driveway and retaining wall with steps. Deputy Gallagher said that when they requested a Certificate of Compliance for this Order it was denied for lack of vegetation. He showed photos of the site, showing vegetation and a split-rail fence which had been installed to block use of the original driveway. He said that all roof drainage is now going into drywells so everything is in compliance.
Mr. Kelleher MOVED and Mr. Hoerle SECONDED the Motion to issue Certificates of Compliance for DEP SE19-936 and SE19-1091.
SO VOTED UNANIMOUSLY.
7:19 P.M. Request for Determination of Applicability filed by Martha Jacobs,
16 Bayview Road, Map 19, Parcel 061B.
Chairman Murley announced this hearing. Emily E.H. Beebe was present for the applicant and explained that this proposal is for the upgrade of an existing septic system pursuant to a transfer of the property. She said the topography is pretty flat with a gentle grade to Boat Meadow Creek. She said it dips slightly into the Flood Zone and is 100' back from the A.C.E.C.
Ms. Beebe continued that the digging would be in a previously disturbed area. She said some fill will need to be brought in to change the contour to keep the system outside the 12' elevation. She said the applicant is also proposing to replace an herb garden on the north side of the house.
Deputy Gallagher showed photos of the site, showing a relatively flat area. Ms. Beebe said that hay bales and silt fence will be used for the limit of work though the entire project and no trees will be removed.
Ms. Williams MOVED and Mr. Smith SECONDED the Motion for a Negative Determination for Reason #3.
SO VOTED UNANIMOUSLY.
7:27 P.M. Request for Extension of Order of Conditions SE19-571, Carlson,
60 Roger’s Lane, Map 21, Parcel 069.
Chairman Murley read a letter from Mr. Carlson requesting this Extension. Deputy Gallagher showed photos of the site.
There were no questions and Mr. Collins MOVED to grant a three-year Extension for DEP SE19-571. Mr. Smith SECONDED the Motion.
SO VOTED UNANIMOUSLY.
7:30 P.M. Request for Determination of Applicability filed by Meint Olthof, 435 Herringbrook Road, Map 14, Parcel 003A.
Chairman Murley announced this hearing. Mr. Olthof was present and told the Commissioners that after a new dwelling was built on the abutting property the new house is staring them in the face. He said they would like to move the shed from its present location and plant some trees in the area. He said the location which they would like to move it to on the left side of the driveway is within the 100' Buffer Zone.
He said he would like to put in a stone walkway.
Deputy Gallagher said this proposal came before the Commission a month or two ago as an Administrative Review and there were some questions, one being the walkway and the other as to how the existing shed would be moved. Mr. Olthof said that if the Commission prefers natural stone that is no problem and his thought was to put straps around the existing shed and lift it up.
Mr. Kelleher commented that the owners have taken good care of the property and he sees no problem with the proposal. Mr. Hoerle said he also has no problem with the proposal.
Chairman Murley told Mr. Olthof that inside a resource the Conservation Commission prefers that native trees be planted in that area and Mr. Olthof was amenable to this.
Mr. Hoerle MOVED and Mr. Kelleher SECONDED the Motion for a Negative Determination for Reason #3.
SO VOTED UNANIMOUSLY.
7:35 P.M. Deputy Gallagher reviewed the Lee Order of Conditions with the Commissioners. He told them that the Order of Conditions had yet been recorded and there were a couple of conditions which needed “tweaking”. He said that Condition #29 is not appropriate for this order and that the removal of debris on the bank needs to be specified in the Condition #30 for Removal of Debris.
Deputy Gallagher went on to say that the Commissioners had talked about the excess sand being placed on the bank and that Mr. Brady submitted a plan showing exactly where the sand would be placed. In his letter, Mr. Brady asked that this plan be accepted.
Mr. Hoerle MOVED and Mr. Kelleher SECONDED the Motion to remove Condition #29 and to clarify Condition # 30 and also to accept the Site Plan Showing Proposed Native plantings with revised date August 20, 2007.
SO VOTED UNANIMOUSLY.
At this time I told Commissioner Williams that the Town Administrator had asked whether she would be agreeable to taking the Minutes of the meeting for a small stipend. She said she would be willing to do this and asked the Commissioners if they had any problems with her missing six meetings during the Winter months when she was away.
The other Commissioners said they did not feel that this was a problem as no other Commissioner is away at the same time as was the case in the past.
Ms. Williams asked if I would take the Minutes when she was gone and I said I would or some other arrangement could be made.
7:45 P.M. Continuation of Hearing on Notice of Intent filed by Linda Atkinson, 1185 State Highway, Route 6, Map 18, Parcel 298.
Chairman Murley announced this hearing. Alan Cabral of FELCO, Inc. was present for the applicant as Mr. Lajoie was unavailable. He reviewed that this proposal was heard on 24 July and subsequently a site visit took place.
Deputy Gallagher said he was present for the on-site visit along with David Lajoie and Commissioner Collins. Deputy Gallagher said he is pretty confident with the wetland delineation. He said the area is highly vegetated but not wet. Commissioner Collins said he thinks the delineation is on the generous side by about ten to twelve feet and he is comfortable with the delineation. Deputy Gallagher said that moving the septic to the side of the driveway would wipe out good natural fencing and would be encroaching on the neighbors so it wouldn’t make any sense.
Chairman Murley commented that six, seven, eight years ago the Commission went through the same thing when the other lots in this area were being developed. He said it is not the easiest place so he’s happy they are satisfied with the delineation.
Mr. Kelleher said he still has a question about the note on the plan which says that the final grade will be determined on site. He said he thinks that the grade should be determined before construction.
Mr. Cabral said that note is a generic plan note and not specific to this location. He said the top of the foundation is at elevation is 42' so that grading would be to 40'.
Mr. Smith said he has no problem with the proposal as long as the delineation is correct and Mr. Cabral said that any changes in the footprint would have to come back for Conservation Commission review. He said he thinks the Commission will see this again and said that the test holes have been done.
Mr. Collins asked why the water line couldn’t be run along the edge of the driveway so the limit of work could be pulled in and Mr. Cabral said that could be done and made the changes on the plan.
Barbara Adams, an abutter, spoke from the floor. She said her main concern is that there is a possibility that the wetland is not very wet right now and it could possibly be a Vernal Pool. She said their frustration is that the septic system will support a
four-bedroom house and the applicant is asking to go into the Buffer Zone. She said her question is can the Conservation Commission investigate whether or not this is a Vernal Pool. She said that a Vernal Pool in the area was certified by her son when he was in high school
Chairman Murley said that the Conservation Commission cannot comment on the number of bedrooms. He said that peepers are not a Vernal Pool indicator. He said that one of the most active researchers has worked all over Eastham. He said that during the Settlers Trace hearings nothing was found that even looked like they were holding water. He said that water levels are actually very high right now. He said that some Vernal Pools that have been dry for years have been wet and he thinks this is one of the time periods that if it was not evident now he doesn’t think it is a Vernal Pool. He said he thinks there would have been standing water and evidence.
Mr. Cabral spoke to the bedroom issue and said this is in excess of a two acre lot which would support eight bedrooms. He said that this lot consists of 52,000 feet of upland and by Title 5 regulations five bedrooms would be allowed. He said they are not over taxing the area as far as bedrooms are concerned. He said they have received clearance from the Division of Fish & Wildlife.
Ms. Adams asked how much buildable area there was and Mr. Cabral said he could not tell her that off the top of his head.
Chairman Murley said that this would be a generic approval and if there are any changes down the road it will be back in front of the Commission. He said that the work limit lines have been re-negotiated and that the Commission is concerned about impact as well as square footage of development.
Ms. Adams asked about the driveway and Mr. Cabral told her that it is only for access. He said it will have to be made traversable. He said there will be no encroachment toward the wetland.
Mr. Murley commented that the Conservation Commission has no jurisdiction if they pave up to the 100' Buffer but after that no pavement is allowed.
Mr. Collins raised the question of whether, in the past, in a situation such as this, the Conservation Commission has told the applicant that the approved location is where the house will be allowed and they cannot change it.
Mr. Smith said this approval would be strictly allowing whether this is a buildable lot and anything the owners do will have to come back before the Commission. He said they have a very small limitation due to setbacks so they are more or less stuck.
Mr. Cabral commented that the work limit severely ties the hands on what is going to go there. He said that not a lot of deviation can go on with the final plans.
Deputy Gallagher inquired about a “No Mow” zone and whether the Commission should have some discussion about this. Chairman Murley said that typically a “No Mow” zone is to get something back, so he doesn’t think a “No Mow” zone is appropriate here.
There was no further discussion and Chairman Murley closed this hearing. Mr. Kelleher MOVED and Mr. Smith SECONDED the Motion to approve this proposal with Order of Conditions 1-18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 33, 35, 36 any changes in grade will require Conservation Commission approval, 37 if the property changes ownership the new owner shall contact the Conservation Commission.
SO VOTED UNANIMOUSLY.
8:22 P.M. Continuation of Hearing on Notice of Intent filed by Robert G. & Gretchen P. Robinson, 19 Asparagus Lane, Map 19, Parcel 036.
Chairman Murley announced this hearing. Stephanie Sequin of Ryder & Wilcox, Inc. was present for the Robinsons. She said she was unable to attend the last hearing and felt there had been some confusion. She said that she supplied the Commission with three plans showing the breakdown of coverage: what exists; what was originally proposed; and, the revised proposal. She said they have reduced what they proposed within the 50' Buffer by 118 sf. She said the total structure proposed within the 50' Buffer is being reduced by 139 sf. She said they are proposing a 374 sf. increase within the 100' Buffer and the total proposed coverage is increasing by 393 sf. She said they are proposing roughly a 400 sf. increase in site coverage but a decrease within the 50'. She said that in addition they
are proposing a “No Mow” zone of 2,150 sf. and if the Commission wants the area planted they would be willing to do that.
Ms. Sequin said that another clarification is that the screen porch is on posts and exposed underneath. She said that some of the deck is cantilevered. She said the proposal is probably still a way from an approved plan but feels they are in a better position to discuss anything else the Commission might be looking for.
Deputy Gallagher showed photos of the site and said he has no new information to add.
Ms. Sequin said the applicant agrees to maintain the path at three feet and they have
eliminated the retaining wall.
Mr. Kelleher commented that with each set of plans they have pulled back a little more from the A.C.E.C. He said there is an increase in overall square footage but they have pulled everything back and re-designed the septic and moved quite a bit of it around. He said he feels that they are trying everything they can to do what the Conservation Commission has asked them to.
Ms. Williams said she had asked that the house size be decreased. She said she is still uncomfortable with the size of the house and could not vote for anything this size. She said it is already a good-sized place. She said she appreciates the attempt at clarity and the comparisons have done a really good job of explanation but the thing she specifically requested has not happened.
Ms. Sequin said the square footage is increasing about 400 sf. and part of the reason for this is that some of the living space now is in the basement and by the building code you cannot have any living space on that level. So, some of the living area they have now cannot be utilized.
Mr. Hoerle said that, personally, he echoes Ms. William’s thoughts and does not want to see any expansion from the original footprint beyond the present square footage. He said that the Conservation Commission is attempting to protect a very fragile area. Ms. Sequin asked if this were so in spite of the mitigation area they are willing to provide. Mr. Hoerle replied that they would require a mitigation area for any construction in this area.
Mr. Collins said he is “on the fence” and thinks the applicants’ proposal has made a step in the right direction. He said they are going from the approval for a small addition to an existing home to a complete tear down and construction of a new house very close to the A.C.E.C. He said he doesn’t think it’s quite “there” yet and that he agrees that the house is too big.
Mr. Smith commented that when doing a renovation or upland addition there is not a great deal of disturbance and unless they can get a lot of workers in there to take this out by hand they are going to have a big mess where the Conservation Commission regulations say nothing can be done at all. He said this won’t be taken down by hand and will be taken down by an excavator and machinery and will make a big mess. He said that in some areas construction crews actually inflate balloons over the entire area to do the work. He said the debris field will be large and there will be a gaping hole. He said that in going from five bedrooms to four bedrooms some of the increase should be absorbed in the lower number of bedrooms.
Ms. Sequin said that obviously, the bedrooms and living space will be more spacious and comfortable, but the bedrooms and living space are on two levels instead of three. She asked Mr. Smith if he were saying the applicants are stuck with the existing building?
Mr. Smith replied that he is not saying that yet, but thinks there is potentially more room to fine tune in the “no mow” zone or what not. He said that any time you are dealing with the building code it is better to do a renovation rather than a tear down. He said there is still a lot of “massaging” that needs to be done.
Mr. Hoerle asked if lead paint is a concern with this old house and said he would like this matter included in the questions to be answered.
Chairman Murley told Ms. Sequin that he thought she was starting to get a sense of the Commission’s thoughts about the expansion of square footage. He said he thinks that the “No Mow” zone would be better as is rather than re-vegetated. He said he thinks that the “No Mow” zone should not be an enhanced area and if the applicants wanted to add to that, it should be out of that area. He said that at the last hearing the matter of the expansion of the square footage was discussed and maybe that was not negotiable with her client.
Ms. Sequin said she did get that message but now understands about the expansion between the 50' and 100' Buffer.
Mr. Bernard Coppi, an abutter to this property, spoke from the floor. He said he owns a home in Tuscany which has been preserved by committees such as the Conservation Commission and he appreciates their role. He said the garage at the site was built over his opposition and the septic upgrade was done without notifying him. He said the garage has bedrooms above it.
Mr. Coppi continued to say that this work was done less than ten years ago and asked if it is legal to have a septic system that close to their property. He said that the bedrooms will have an impact. He said he went over the design and the proposed structure would come within 25' of their home and asked if that is legal. He said there have been
re-construction projects in the area that used the existing foundation and came up with very nice structures. He said he would like to investigate how that happened and
re-examine the recent history.
Mr. Collins said that if this project were to go forward, there should be some sort of demolition protocol and re-construction protocol.
Mr. Smith said that when an excavator comes in it leaves concrete “dribble” which needs to be cleaned up with a rake and gloved hands. He said he knows this is costly and labor intensive, but he doesn’t want to see the “dribble” left all over and thinks that the protocol will need to be pretty stringent.
Ms. Sequin requested to continue this hearing until 25 September 2007. Mr. Kelleher MOVED and Mr. Smith SECONDED the Motion to continue until 25 September 2007.
SO VOTED UNANIMOUSLY.
9:00 P.M. Continuation of Hearing on Notice of Intent filed by Russell Sandblom, 285 Harmes Way, Map 01, Parcel 108.
Chairman Murley recused himself and Vice-Chairman Hoerle announced this hearing. Tim Brady of East Cape Engineering, Inc. was the applicant’s representative and Mr. Sandblom was in the audience.
Mr. Brady told the Commission that he met at the site with Mr. Collins, Deputy Gallagher, and Commissioner Kelleher. He said that following that meeting they revised the plan to make the parking area smaller, for two cars. He explained that there is a berm of beach grass at the edge of Harmes Way that they would like to move to a
bare area on the applicant’s property and re-plant it. He said there will be no re-grading as the re-planting would make the grade suitable. He said that they propose a fence around the area and the proposed roll-out, on-grade boardwalk would simply follow the grade which is there now.
Deputy Gallagher showed photos and said he didn’t have any more to add. Mr. Hoerle asked Deputy Gallagher if he had any concern about the hardening and what kind of hardening would he suggest. Deputy Gallagher said they had talked about pavers and Mr. Brady said his thought was to use native hardening, then it could be improved by putting stone or gravel or shells, or leaving it the same as the surface on Harmes Way.
Mr. Kelleher commented that the majority of the driveways on Harmes Way are 3/4" native stone which gets packed down. Mr. Brady said he thinks that pavers might be more of a nuisance than they are worth.
Mr. Collins said he thinks it would be rather unobtrusive and agrees that 3/4" native stone could be put down and pushed around a bit. Ms. Williams said she thinks the applicant has compromised in changing the plan from three spaces to two.
Mr. Smith said he thinks it is feasible this way. Deputy Gallagher commented that if your changing the shape of the dune, and it will change; as far as putting something there, whether it is pavers or gravel, eventually that whole area will move. If there is a washover, the question is what does the Commission want to see left there?
Steve Greller, of Harmes Way, said that the Conservation Commission is compromising the regulation of 1988 which says that the dune cannot be altered and that is what would happen if this proposal is approved.
Deputy Gallagher said there are regulations which can keep this project from happening completely. Mr. Collins said the Commissioners are not lawyers and perhaps they should have council interpret the regulation. He said that previously, they have been told that people need to be allowed access to their property.
Mr. Brady said they have talked about the regulation which Mr. Greller is speaking about and also about what Mr. Collins said. He asked if re-locating the grass would be considered improving the area or not. He said projects have been done in other areas
of Eastham where this regulation would apply and that usually, if a Commission makes a regulation, there is a procedure where they can waive it, but in Eastham there is not.
Deputy Gallagher said there are a lot of regulations which need to be looked at. He said he has been thinking of having work sessions where the Conservation Commission can get together and hammer out some of these decisions.
Mr. Sandblom spoke from the floor and said that the area for parking is not really a dune but the bank by the road which is Ninety Percent (90%) of the parking layout. He said that in his mind the proposal will not affect the dune at all.
Mr. Brady said the entire spit is considered Coastal Dune, but it is quite flat across half of the lot then rises up to appear like a dune. He explained the road layout, so the proposal is only four feet (4') onto the property the rest is in the road layout.
Mr. Smith commented that if the whole area is dune, anyone who drives up the road is altering the dune. He said he tends to agree with Mr. Collins about getting a legal opinion.
Mr. Brady requested a continuance until 25 September 2007. Dan Coppleman of 235 Eldredge Drive asked if the applicant has the right to take vegetation from the road layout of Harmes Way and put it on his property. Mr. Brady said he does. Mr. Coppleman also asked if the applicant has the right to park in the Harmes Road layout and Mr. Brady said yes to this question as well. Mr. Hoerle said they will include those questions in their inquiry to council.
Mr. Kelleher MOVED and Mr. Collins SECONDED the Motion to continue this hearing until 25 September 2007.
SO VOTED UNANIMOUSLY.
Chairman Murley returned to the meeting.
9:27 P.M. Request for Certificates of Compliance, Kochanek, DEP SE19-573, SE19-658 & SE19-1012, 50 Bay Shore Lane, Map 13, Parcel 136E.
Attorney Craig Nickerson was present for Attorney Marion Hobbs who requested these Certificates. Mr. Kochanek was also present.
Deputy Gallagher explained that the first Order of Conditions was for the construction of a house and the things to look at are the driveway, which is gravel, and the roof drainage. He said that the back side of the house has no gutters, one side has nothing at all and the other side has drains directed into drywells. He said the second Order involves the bank. He showed photos of the bank which he said is stable and pretty well vegetated with beach grass plugs. He said the Order was for installing snow fencing, which is no longer present. He said the third Order was for nourishing the base of the bank and re-vegetating with beach grass, which was done and is in compliance.
Chairman Murley asked Deputy Gallagher if there is any gullying or drainage issues on the house. Deputy Gallagher said he was at the site when it was raining and the drain pipe off the garage was OK. He said there was no gullying and on the back side facing the bay there is a deck and there are no major or minor drainage issues.
Mr. Hoerle said he had no comments and Ms. Williams said she thought the bank was the best stabilization she has seen.
Chairman Murley asked Deputy Gallagher if there were any inconsistencies in the building and Deputy Gallagher said there were not.
There were no further questions and Mr. Hoerle MOVED to grant Certificate of Compliance for all three Orders of Conditions. Mr. Smith SECONDED the Motion.
SO VOTED UNANIMOUSLY.
9:35 P.M. OLD BUSINESS:
Deputy Gallagher reviewed the Seppala request for a Certificate of Compliance for Order of Conditions SE19-1011. He said that he made a site visit with Jason Ellis and Mr. Collins. He said he wanted to finalize a list of things the Commission wanted done so he could give it to Mr. Seppala.
It was agreed that Mr. Seppala needs to accomplish the following:
Remove all Yucca plants;
Rake back ALL of the shell and mound outside the fence and replant with groundcover;
Remove the old silt fence;
Put up new silt fence and remove all plastic & mulch; and
Remove any sprinkler heads within the 50' Buffer.
There was no further business and Ms. Williams MOVED to adjourn at approximately
9:50 P.M. Mr. Collins SECONDED the Motion
SO VOTED UNANIMOUSLY.
Respectfully Submitted,
Kay Stewart-Greeley,
Clerk
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