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Clark County v. Growth Management Hearings Board

Court of Appeals of Washington, Division 2

August 20, 2019

CLARK COUNTY, Petitioner/Cross Respondent,
v.
GROWTH MANAGEMENT HEARINGS BOARD, Respondent. FRIENDS OF CLARK COUNTY; FUTUREWISE, Respondents/Cross Petitioners, and CITY OF RIDGEFIELD; CITY OF LA CENTER; RDGB ROYAL ESTATE FARMS LLC; RDGK REST VIEW ESTATES LLC; RDGM RAWHIDE ESTATES LLC, RDGF RIVER VIEW ESTATES LLC, RDGS REAL VIEW LLC, and 3B NORTHWEST LLC, Petitioners, and CLARK COUNTY CITIZENS UNITED, INC., Petitioners, CLARK COUNTY, Petitioner/Cross-Respondent, FRIENDS OF CLARK COUNTY; FUTUREWISE, Respondents/Cross Petitioners, and CITY OF RIDGEFIELD; CITY OF LA CENTER; RDGB ROYAL ESTATE FARMS LLC; RDGK REST VIEW ESTATES LLC; RDGM RAWHIDE ESTATES LLC, RDGF RIVER VIEW ESTATES LLC, RDGS REAL VIEW LLC, and 3B NORTHWEST LLC, Petitioners, and CLARK COUNTY CITIZENS UNITED, INC., Petitioners,
v.
GROWTH MANAGEMENT HEARINGS BOARD, Respondent.

          Worswick, J.

         The Growth Management Act (GMA), chapter 36.70A RCW, requires Clark County to periodically update its comprehensive land use and zoning plan. Clark County updated its plan in 2016 (2016 Plan Update), making several changes to the County's comprehensive plan.

         The Friends of Clark County and Futurewise (FOCC), as well as Clark County Citizens United (CCCU), petitioned the Growth Management Hearings Board (Board) to review the 2016 Plan Update for compliance with the GMA. The City of Ridgefield, City of La Center, 3B Northwest LLC (3B), and five other individual LLCs[1] intervened in that action.

         The Board issued its Final Decision and Order (FDO), which concluded, in part, that the County did not comply with the GMA when it (1) dedesignated three areas of agricultural land and designated these lands as urban growth areas (UGA), (2) dedesignated agricultural land and designated this area as a rural industrial land bank (RILB), (3) reduced agricultural and forestland parcel sizes, and (4) adjusted rural densities. However, the Board concluded that the County complied with the procedural requirements of the GMA.

         The County took some efforts to come into compliance, after which the Board issued a compliance order. The Board concluded that the County remained noncompliant regarding dedesignating agricultural land for two UGAs and the RILB but that it had complied regarding one UGA, the agricultural and forestland parcel sizes, and rural densities.

         The parties appeal both the FDO and the compliance order. Additionally, FOCC moves to dismiss the County's and 3B's petitions for judicial review of the FDO for lack of appellate jurisdiction because they did not properly and timely serve their petitions for judicial review.

         The County, La Center, Ridgefield, and the LLCs argue that the Board's finding of the County's noncompliance regarding the County's UGA designations are moot and that the Board acted arbitrarily and capriciously by requiring the County to take further action regarding these UGAs. The County also argues that the Board erroneously interpreted a rule regarding agricultural lands and erred when it concluded that the County violated the GMA by dedesignating agricultural lands for the RILB.

         CCCU argues that the Board erred by concluding that the County complied with the GMA's procedural requirements regarding public participation, an issue paper, and source documents, and that the County complied with the GMA regarding designations of agricultural and forestlands, population projections, and private property considerations. CCCU further argues that the Board erred by concluding the County violated the GMA when the County reduced parcel sizes of agricultural and forestland.

         FOCC argues that the compliance order erroneously declared issues to be moot regarding readopted forestland and rural density provision from the County's prior comprehensive plan.

         We grant FOCC's motion to dismiss the County's and 3B's petitions for judicial review of the FDO, for lack of appellate jurisdiction. In the published portion of our opinion, we hold that issues regarding the annexed lands are moot. In the unpublished portion of this opinion, we hold that the Board did not err regarding the remaining issues raised by CCCU and FOCC, and remand to the Board for further proceedings in accordance with this opinion.

         FACTS

         The County adopted the 2016 Plan Update by Amended Ordinance No. 2016-06-12 on June 28, 2016. In this update, the County dedesignated three areas of agricultural land and designated these lands as UGAs, dedesignated an area of agricultural land and designated this land as RILB, reduced agricultural and forestland parcel sizes, and adjusted rural densities.

         Two of the newly designated UGAs were adjacent to the cities of La Center and Ridgefield. Immediately following the 2016 Plan Update's passage, La Center and Ridgefield began the process of annexing these adjacent UGAs into their respective cities.

         FOCC and CCCU petitioned the Board regarding the 2016 Plan Update. The Board consolidated these appeals. La Center, Ridgefield, 3B, and the LLCs intervened. Prior to the Board's decision, La Center passed an ordinance annexing its adjacent UGA, effective on August 29, 2016. Ridgefield passed an ordinance annexing its adjacent UGA, effective on October 14, 2016.

         The Board issued its FDO on March 23, 2017. The Board determined some provisions invalid and found other provisions noncompliant. [2] The Board concluded, in part, that the County did not comply with the GMA when it (1) dedesignated agricultural land and designated the UGAs, (2) dedesignated agricultural land and designated the RILB, (3) reduced agricultural and forestland parcel sizes, and (4) adjusted rural densities. Further, the Board made determinations of invalidity regarding the County's UGA designations. The Board remanded the 2016 Plan Update to the County for the County to come into compliance with the GMA.

         The County, Ridgefield, La Center, the LLCs, and CCCU filed petitions for review of the Board's FDO in superior court. Those petitions were consolidated by stipulation of the parties. FOCC sought direct review of the Board's FDO, and we granted review.

         After the Board remanded the 2016 Plan Update, and while appeal of the FDO was pending, the County adopted new amendments to its comprehensive plan that returned the parcel sizes and rural densities to their previous designations before the 2016 Plan Update amendments. The County also reversed one UGA designation during this period; however, the County did not take remedial action regarding the UGAs annexed by Ridgefield and La Center, arguing that it could not change the designation of land no longer within its control.

         The Board issued a compliance order on January 10, 2018, concluding that the parcel sizes and rural density issues were moot and compliant because the County had adopted previously GMA-compliant provisions. The Board also concluded that the County was not in compliance regarding the UGAs annexed by La Center and Ridgefield.

         Subsequently, Ridgefield, La Center, the County, the LLCs, 3B, and FOCC sought direct review of the Board's compliance order and consolidation with the review of the FDO. We accepted direct review of the compliance order and consolidated the appeals.

         ANALYSIS

         I. Motion To Dismiss

         As an initial matter, we address FOCC's motion to dismiss the County's and 3B's petitions for judicial review of the Board's FDO. FOCC argues that this court lacks subject matter, or appellate, jurisdiction because the County and 3B failed to timely serve the Board with their respective petitions for judicial review as required by RCW 34.05.542, due to their failure to deliver their petitions for judicial review to the Board within 30 days. Thus, FOCC argues that the County's and 3B's failure to properly serve the Board deprives us of appellate jurisdiction.

         We hold that service of the petition for judicial review by e-mail does not satisfy the service requirements of the Administrative Procedure Act (APA), chapter 34.05 RCW, and that service on the agency is complete when the petition for review is delivered to the agency. As a result, we hold that the County's and 3B's petitions are untimely, and we grant FOCC's motion to dismiss Clark County's and 3B's petitions for judicial review of the FDO.

         A. Facts Pertaining to the Motion To Dismiss

         The Board issued its final decision to the parties on March 23, 2017. The deadline for filing petitions for judicial review was April 24. The County e-mailed its petition for judicial review to the Board and mailed its petition to both the Board and the attorney general's office using the United States Postal Service on April 24.[3] 3B sent its petition to the Board through FedEx overnight delivery on April 24. 3B concedes that its petition was received by the Board on April 25. The attorney general's office filed a notice of appearance, representing the Board, on May 11.

         B. Standard of Review

         We review de novo questions of a court's jurisdiction. Ricketts v. Bd. of Accountancy, 111 Wn.App. 113, 116, 43 P.3d 548 (2002). A party may raise a question of appellate, or subject matter, jurisdiction for the first time at any point in a proceeding. Skagit Surveyors & Engineers, LLC v. Friends of Skagit County, 135 Wn.2d 542, 556, 958 P.2d 962 (1998).

         We also review the meaning of a statute de novo. Ricketts, 111 Wn.App. at 116. Our fundamental objective in statutory interpretation is to give effect to the legislature's intent. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). If a statute's meaning is plain on its face, then we give effect to that plain meaning as an expression of legislative intent. Pac. Marine Ins. Co. v. State ex rel. Dep't of Revenue, 181 Wn.App. 730, 737, 329 P.3d 101 (2014). "Absent ambiguity, a statute's meaning must be derived from the wording of the statute itself without judicial construction or interpretation." Fray v. Spokane County, 134 Wn.2d 637, 649, 952 P.2d 601 (1998).

         C. Appeals From Decisions of the Board

         The APA governs appeals from decisions of the growth management hearings board. Skagit Surveyors, 135 Wn.2d at 555. A court does not obtain jurisdiction over an appeal from an agency decision unless the appealing party timely files and serves the petition for judicial review on the agency and all parties. Skagit Surveyors, 135 Wn.2d at 555. A petition for judicial review must be dismissed if the APA's service requirements are not met. Sprint Spectrum, LP v. Dep't of Revenue, 156 Wn.App. 949, 961, 235 P.3d 849 (2010). "Substantial compliance with the service requirements of the APA is not sufficient to invoke . . . appellate, or subject matter, jurisdiction."[4] Skagit Surveyors, 135 Wn.2d at 556.

         Under the APA, a petition for judicial review of an agency order must be served on all parties of record within 30 days after service of the final order. RCW 34.05.542(2). The APA provides:

"Service," except as otherwise provided in this chapter, means posting in the United States mail, properly addressed, postage prepaid, or personal or electronic service. Service by mail is complete upon deposit in the United States mail. Agencies may, by rule, authorize service by electronic transmission, or by commercial parcel delivery company.

RCW 34.05.010(19) (emphasis added).

         But RCW 34.05.542(4) contains an exception to this definition. Ricketts, 111 Wn.App. at 117-18; Stewart v. Dep't of Employment Sec., 191 Wn.2d 42, 47, 419 P.3d 838 (2018). Under that statute, the petitioner must serve the agency that issued the order by delivery to the director's office, the agency's principal office, or by serving the agency's attorney of record. RCW 34.05.542(4); Stewart, 191 Wn.2d at 47.

         Service on the agency requires delivering the petition for judicial review to the agency within 30 days of the final order. RCW 34.05.542 (2), (3), (4). Here, the Board issued its final decision to the parties on March 23. Thirty days from March 23 was April 22, which was a Saturday. Therefore, the petition for judicial review was due April 24, the next business day.

         1. The County's Petition Was Untimely Served

         In response to FOCC's motion, the County argues that its petition for judicial review was timely served because it e-mailed the petition to the Board. The County does not argue that it timely served the Board by mailing the petition on April 24, but instead states that FOCC's challenge is "limited to the question of whether email service on an agency satisfies delivery pursuant to RCW 34.05.542(4)." Reply Br. of Clark County at 13. The County argues that service by e-mail satisfies the "delivery" requirement of RCW 34.05.542(4) because the Board has authorized service by electronic transmission in WAC 242-03-240(1). We hold that service by e-mail is insufficient to satisfy the requirements of RCW 34.05.542(4).

         The Board is allowed to authorize service by electronic transmission. RCW 34.05.010(19). But it has not done so. The County relies on WAC 242-03-240. WAC 242-03-240 is titled, "Filing and service of all other papers," and provides that parties shall electronically file pleadings and briefs to the board, and electronically complete service to other parties. But this rule is not applicable to appeals from the board's decision. WAC 242-03-240, and Title 242 of the Washington Administrative Code generally addresses practices and procedures for matters in front of the growth management hearings board. WAC 242-03-035. Appeals from the Board's final decision are governed by RCW 34.05.514 and RCW 34.05.542. RCW 36.70A.300; WAC 242-03-970.

         Moreover, WAC 242-03-240 does not authorize service of any type of petition for judicial review by e-mail. WAC 242-03-240 refers to the "[f]iling and service of all other papers," meaning other than a petition for review to the Board. WAC 242-03-230 specifically addresses filing and service of the petition for review for cases appealed to the Board. Thus, the "all other papers" referred to in WAC 242-03-240 describes all papers except a petition for review. And the only petition for review addressed in WAC 240-03-230 is a petition filed at the board, not a petition for judicial review filed in superior court after the Board has made its decision.

         Here, the County was required to serve the agency by "delivering" the petition for judicial review to the agency's office by April 24.[5] RCW 34.05.542(4).[6] Unless authorized by the agency, electronic transmission, such as e-mail, is not a proper form of service. RCW 34.05.010(19). Although service on other parties of record is complete when the petition is deposited in the United States mail, service on the agency is complete only when it is "delivered" to the Board. RCW 34.05.542(4).

         Here, the Board did not authorize service by electronic transmission. Because e-mail is not an authorized form of service, the County did not deliver its petition for review to the Board's office by April 24, 2017. The County did not timely serve its petition for judicial review, and we do not have appellate jurisdiction over its petition for review appealing the FDO. We grant FOCC's motion to dismiss the County's petition from the Board's FDO.[7]

         2. 3B's Petition Was Untimely Served

         In response to FOCC's motion to dismiss, 3B argues that it properly served the Board by sending its petition for judicial review to the Board through FedEx and that its service of the petition was complete on April 24 when it delivered its petition to FedEx. We disagree.

         As discussed above, RCW 34.05.542(4) provides an exception to the general rule that service is complete upon deposit in the United States mail. RCW 34.05.010(19); Stewart, 191 Wn.2d at 47; Ricketts, 111 Wn.App. at 117-18. Under the exception, service on the agency is not complete until the petition is actually delivered to the agency's office. RCW 34.05.542(4); see Ricketts, 111 Wn.App. at 118. Even assuming service through a commercial parcel delivery company like FedEx was proper, 3B did not timely serve the petition because the Board did not receive the petition until April 25. Because 3B's petition was due to the Board by April 24, 3B did not timely serve its petition for review and we do not have appellate jurisdiction over its petition for review appealing the FDO.[8] Thus, we grant FOCC's motion to dismiss 3B's petition for judicial review from the Board's FDO.[9]

         II. Board Decisions - Legal Principles

         Washington's APA governs our review of the Board's decisions. RCW 34.05.570(3); Whatcom County v. W. Wash. Growth Mgmt. Hr'gs Bd., 186 Wn.2d 648, 666, 381 P.3d 1 (2016). Under the APA, we review the Board's legal conclusions de novo, but we give "substantial weight to the Board's interpretation of the GMA." Whatcom County, 186 Wn.2d at 667. RCW 34.05.570(3) provides nine enumerated ways to challenge an agency action through judicial review. The parties here challenge the Board's actions under five statutory sections: (1) the Board's order is outside its statutory authority or jurisdiction; (2) the Board erroneously interpreted or applied the law; (3) the Board engaged in unlawful procedure or decision making, or has failed to follow proscribed procedures; (4) the Board's actions are not support by substantial evidence; and (5) the Board's actions are arbitrary and capricious. RCW 34.05.570(3)(b)-(e), (i). Here, the party challenging the Board's decision bears the burden of establishing that the decision is improper. RCW 34.05.570(1)(a), (3)(d); Whatcom County, 186 Wn.2d at 667.

         On review from initial challenges and on review following a Board's remand for compliance, the Board determines whether a county's plan is compliant with the GMA. RCW 36.70A.300(3). The Board must find compliance with the GMA "unless it determines that the action by the . . . county . . . is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA]." RCW 36.70A.320(1), (3). To find a county's action clearly erroneous, the Board must be "'left with the firm and definite conviction that a mistake has been committed.'" Whatcom County, 186 Wn.2d at 667 (internal quotation marks omitted) (quoting King County v. Cent. Puget Sound Growth Mgmt. Bd., 142 Wn.2d 543, 561, 14 P.3d 133 (2000)).

         Counties have discretion to make many choices about accommodating growth in their comprehensive plans and amendments. RCW 36.70A.110(2). County actions are presumed compliant and Boards must defer to local planning decisions. Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 144, 154-55, 256 P.3d 1193 (2011). However, we do not afford counties deference in their interpretations of the GMA, and counties must comply with the requirements of the GMA. Whatcom County, 186 Wn.2d at 667; King County, 142 Wn.2d at 561. Deference to a county's planning decisions supersedes the general deference we give to the Board under the APA. Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005). It is under these guidelines that we review the correctness of the Board's determination regarding whether the County's actions were clearly erroneous. Concerned Friends of Ferry County v. Ferry County, 191 Wn.App. 803, 813, 365 P.3d 207 (2015).

         We review the Board's factual findings for substantial evidence. Kittitas County, 172 Wn.2d at 155. Evidence is substantial if "when viewed in light of the whole record," RCW 34.05.570(3)(e), there is "'a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness'" of the finding. Kittitas County, 172 Wn.2d at 155 (quoting Thurston County v. W. Wash. Growth Mgmt. Hr'gs Bd., 164 Wn.2d 329, 341, 190 P.3d 38 (2008)). When reviewing mixed questions of law and fact, we determine the law independently and apply the law to the facts found by the Board. Thurston County, 164 Wn.2d at 341. We consider whether the Board's factual findings support its conclusions. Kittitas County v. Kittitas County Conserv. Coal., 176 Wn.App. 38, 55 n.3, 308 P.3d 745 (2013).

         We determine whether a Board's order is arbitrary and capricious by reviewing "whether the order represents 'willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.'" Kittitas County, 172 Wn.2d at 155 (internal quotation marks omitted) (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wn.2d 38, 46-47, 959 P.2d 1091 (1998)). "Issues not raised before [the Board] may not be raised on appeal." RCW 34.05.554(1). An exception exists if "[t]he interests of justice would be served by resolution of an issue arising from . . . [a]gency action occurring after the person exhausted the last feasible opportunity for seeking relief from the agency." RCW 34.05.554(1)(d)(ii).

         We conduct statutory interpretation to determine and give effect to legislative intent. Town of Woodway v. Snohomish County, 180 Wn.2d 165, 173, 322 P.3d 1219 (2014). Legislative intent is primarily deprived from statutory language. Town of Woodway, 180 Wn.2d at 173-74. When the statutory language is unambiguous, we apply the plain meaning of the statute. Town of Woodway, 180 Wn.2d at 174. In the absence of legislative definitions, we give statutory terms their plain and ordinary meanings as defined in the dictionary. Lockner v. Pierce County, 190 Wn.2d 526, 537, 415 P.3d 246 (2018). When analyzing a statute's plain language, we consider the specific text of the relevant provision, the context of the entire statute, related provisions, and the statutory scheme as a whole. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012). We do not liberally construe the GMA. Woods v. Kittitas County, 162 Wn.2d 597, 614, 174 P.3d 25 (2007).

         III. Mootness of UGA Designations Resulting from Annexations

         La Center, Ridgefield, and the LLCs argue that the Board's finding of the County's noncompliance regarding the County's UGA designations is moot. Specifically, they argue that the Board (1) erroneously failed to acknowledge that the County's action regarding the UGAs was rendered moot by the annexations and (2) arbitrarily and capriciously required the County to take action regarding land no longer within its control. We hold that arguments regarding the annexed lands are moot.

         A. Facts Pertaining to the Mootness of UGA Designations Resulting from Annexations

         In the County's 2016 Plan Update, the County dedesignated areas of agricultural land adjacent to the cities of La Center and Ridgefield and designated these lands as UGAs. Both La Center and Ridgefield annexed these adjacent UGAs into their respective cities long before the Board's hearing in February 2017.[10]

         The Board concluded, in part, that the County did not comply with the GMA when it dedesignated agricultural land and designated the UGAs. Further, the Board made determinations of invalidity regarding the County's UGA designations. The Board remanded the 2016 Plan Update to the County for the County to come into compliance with the GMA.

         The County did not take remedial action regarding the UGAs relevant here, arguing that it could not change the designation of the annexed land no longer within its control. The Board concluded that the County was not in compliance regarding these UGAs.

         B. GMA Compliance Legal Principles

         The Board may review comprehensive plans and their amendments for compliance with the GMA. RCW 36.70A.280. However, the Board lacks the authority to determine many types of land-related disputes. Relevant here, the Board does not have authority to review cities' land annexations. See RCW 36.70A.280.

         The Board determines whether a county's plan is in compliance with the GMA. RCW 36.70A.300(3). When the Board determines that a plan or its amendments are flawed, it may enter a finding of noncompliance or a determination of invalidity. RCW 36.70A.300, .302. When the Board finds that the plan or its amendments are noncompliant, the Board remands the matter back to the county with instructions to comply with the GMA. RCW 36.70A.300(3)(b). A plan or its amendments remain valid during the remand period following the Board's noncompliance finding. RCW 36.70A.300(4); Town of Woodway, 180 Wn.2d at 174.

         When the Board finds that the plan or its amendments are invalid, the Board must (1) find noncompliance and remand the plan back to the county and (2) enter a determination of invalidity supported by findings of fact and conclusions of law. RCW 36.70A.302(1)(a), (b). This invalidity determination must conclude that the flawed provision of the plan or its amendments substantially interfere with the goals of the GMA. RCW 36.70A.302(1)(b). "Upon a finding of invalidity, the underlying provision would be rendered void." King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 138 Wn.2d 161, 181, 979 P.2d 374 (1999).

         Significantly, an updated plan is presumed to be valid upon adoption. RCW 36.70A.320(1). In addition, a finding of invalidity is "prospective in effect and does not extinguish rights that vested under state or local law before receipt of the board's order by the city or county." RCW 36.70A.302(2). A finding of invalidity does not apply to certain vested rights, namely development permit applications. RCW 36.70A.302(2)-(3).

         C. The Board's Final Decision Order Is Prospective

         Here, the Board made a determination of invalidity regarding the UGAs. The Board made related findings of fact and conclusions of law that the County's 2016 Plan Update did not comply with the GMA and determined that the UGAs for La Center, Ridgefield, and Battle Ground were invalid. This determination rendered the UGA provisions void. King County, 138 Wn.2d at 181.

         The parties disagree as to the retroactivity of the determination of invalidity regarding the UGA provisions. FOCC argues that the UGA provisions are essentially "void ab initio," or "null from the beginning," and thus, we should unwind Ridgefield's and La Center's annexations of the UGAs to return the lands to their prior designations and jurisdiction under the County. Br. of FOCC at 12. Conversely, the cities and the LLCs argue that the UGAs are void beginning from the date of the Board's order. We hold that the Board's order is prospective from the date of the order.

         RCW 36.70A.302(2) plainly states that "[a] determination of invalidity is prospective in effect." Prospective means "concerned with or relating to the future: effective in the future." Webster's Third New International Dictionary 1821 (2002). Here, the language of RCW 36.70A.302(2) is clear and unequivocal. A determination of invalidity is effective going forward from the date of the order. A determination of invalidity cannot alter whatever occurred prior to the Board's rendering of its decision.

         D. The County Lacks Authority Over the Annexed UGAs

         The cities and LLCs argue that given that a determination of invalidity is prospective only, the UGA issues are moot because the UGAs were annexed by the respective cities before the Board's determination of invalidity. Thus, the annexations deprived the Board and the County of authority to act, and consequently, the determination cannot have any legal effect. We agree.

         1. Mootness Following Annexation Legal Principles

         An issue is moot if the court can no longer provide effective relief. SEIU Healthcare 775NW v. Gregoire, 168 Wn.2d 593, 602, 229 P.3d 774 (2010). "The central question of all mootness problems is whether changes in the circumstances that prevailed at the beginning of litigation have forestalled any occasion for ...


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