HomeMy WebLinkAboutMaggie Moos Treatery (PA2003-140)CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
Agenda Item No. 5
September 4, 2003
TO: PLANNING COMMISSION
FROM: Gregg B. Ramirez, Associate Planner
(949) 644 -3219, gramirez city.newport- beach.ca.us
SUBJECT: Maggie Moo's Treatery - Appeal, 302 Marine Avenue
Use Permit No. 2003 -040 (PA2003 -140)
Appeal of Planning Director's approval of Use Permit No. 2003 -020 that
allows the establishment of a take -out service, limited food use in an
existing commercial building.
APPLICANT:Joseph E. Mudd, Maggie Moo's Treatery
ISSUE:
Should the Planning Commission grant an appeal of the decision of the Planning
Director to approve Use Permit No. 2003 -140?
RECOMMENDATION:
Staff recommends that the Planning Commission uphold and affirm the decision of the
Planning Director.
DISCUSSION:
On July 25, 2003, the Planning Director approved the subject Use Permit. The approval
permits the establishment of a take -out service, limited food use specializing in ice
cream and deserts to be located within an existing commercial building. The applicant
proposes to occupy 1,032 square feet of space with 100 square feet being defined as
net public area with no customer seating. Attached to this staff report is a copy of the
approval letter for Use Permit No. 2003 -020, which includes a more detailed project
description, conditions of approval and a discussion of required findings.
Maggie Moo's Treatery - Appeal
September 4, 2003
Page 2
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Use Permit No. 2003-020
(PA2003-140)
302 Marine Avenue
Maggie Moo's Treatery - Appeal
September 4, 2003
Page 3
An appeal was filed by Helen Connolly, a Balboa Island resident and business owner
requesting that the Planning Commission overtum the decision of the Planning Director
(Exhibit No. 2). The appellant claims that permitting an additional food use specializing
in ice cream and deserts will negatively affect her business, which is similar in nature to
the use proposed by the applicant. The appellant believes the area does not need
another business of this type and also listed lack of parking as a reason for the appeal.
Proposed Use
The appellant states that the area does not need nor can it support another ice cream
shop in the area.
The zoning code requires that the following finding be made:
`That the use will not contribute to a disproportionate number of take -out
establishments in the area nor contribute to a land use mix that is
inconsistent with the specific purposes of the zoning district in which it is
proposed."
Staff believes the Marine Avenue commercial area is an appropriate location for a visitor
and resident serving food use such as the one proposed and the above finding can be
made. Marine Avenue is characterized by a mix of restaurants and specialty retail
establishments that cater to high numbers of seasonal visitors and year round residents.
Small take -out food uses of the type proposed are typical in areas that experience high
seasonal daytime visitor populations, especially those that are pedestrian friendly, as is
the case with Balboa Island. Staff does not believe that the proposed use will create a
disproportionate number of take -out type establishments for this area.
Parking
The subject property is non - conforming because no off - street parking is provided. The
Zoning Code parking requirement for a take -out limited food service use is the same as a
general retail commercial use (1 space/250 square feet). The Zoning Code permits retail
and other uses with the same or lower parking requirements to operate by right when less
than the required off - street parking is provided. Additionally, staff believes that the
proposed use will not increase the parking demand of the site beyond that of a typical
retail use since the proposed use is not a "destination" type establishment and majority of
patrons will likely already be in the area. Therefore, based on the recommended
restrictions (no patron seating), the parking characteristics of the use and Zoning Code
regulations, no off - street parking is required nor is a parking shortage impact anticipated
with this use.
Maggie Moo's Treatery - Appeal
September 4, 2003
Page 4
Staff believes the Planning Director's approval should be upheld, as all findings for
approval were made and the introduction of a competitor, either an independent
operator or corporate franchise, is not grounds to deny a proposed use.
Environmental Review:
This project has been reviewed and it has been determined that since no additions or
alterations are proposed to the existing structure it is categorically exempt from the
requirements of the California Environmental Quality Act under Class 1 (Existing
Facilities).
Public Notice:
Notice of this hearing was published in the Daily Pilot, mailed to property owners within
300 feet of the property (excluding roads and waterways) and posted at the site a
minimum of 10 days in advance of this hearing consistent with the Municipal Code.
Additionally, the item appeared upon the agenda for this meeting, which was posted at
City Hall and on the city website.
Prepared by:
Gregg B. Wakrez, Associate anner
Exhibits:
Submitted by:
Patricia L. Temple, Plarfiring Director
1. Approval Letter for Use Permit No. 2003 -020
2. Applicant's Project Description
3. Appeal Documents
4. Project Plans
EXHIBIT NO. 1
APPROVAL LETTER FOR USE PERMIT NO. 2003 -020
3,
July 25, 2003
CITY OF NEWPORT BEACH
PLANNING DEPARTMENT
3300 NEWPORT BOULEVARD
NEWPORT BEACH, CA 92658
(949) 644 -3200; FAX (949) 644 -3250
Joseph E. Mudd
16485 Laguna Canyon Road, Suite 230
Irvine, CA 92618
i
USE PERMIT NO. UP2003 -020
(PA2003 -140)
Staff Person: Javier S. Garcia, 644 -3206
Appeal Period: 14 days after approval date
Application: Use Permit No. UP2003 -020 (PA2003 -140)
Applicant: Joseph E. Mudd
Address of
Property Involved: 302 Marine Avenue
Legal Description: Lot 2, Block 14, Section Four of Balboa Island Tract
as
Establish a take -out service, limited food use in an existing commercial building. The use will occupy
1,032 square feet and will specialize in ice cream and desserts. At this time, there is no interior patron
seating, stand -up counter space, nor outdoor dining proposed. If outdoor dining is added later, it will
require approval of a separate permit. The property is located in the RSC -R District.
Director's Action: Approved, July 25, 2003
In approving the application, the Planning Director analyzed issues with regard to the parking and
seating requirement. Also analyzed was an establishment of a program for controlling litter, spills
and stain removal on site, on adjacent property and public rights -of -way. The detailed discussion
can be found in the attached appendix. In consideration of those aspects in this case, the Planning
Director determined that the proposal would not be detrimental to persons, property or
improvements in the neighborhood. In addition, the approved use permit would be consistent with
the legislative intent of Title 20 of the Newport Beach Municipal Code based on the following
findings:
FINDINGS:
The property is designated for "Retail and Service Commercial" use by the Land Use
Element of the General Plan (and the Local Coastal Program), and is compatible with the
surrounding land uses.
l'!:
July 25, 2003
Page - 2
2. This project has been reviewed and determined to be categorically exempt from the
requirements of the California Environmental Quality Act under Class 1 (Existing
Facilities).
The proposed take -out service /limited eating and drinking establishment is retail in nature.
It serves primarily persons residing, working or already visiting in the neighborhood and is
not a destination point. Based on its limited menu, it is anticipated that the proposed use
will have parking required characteristics similar to a general retail use and will not increase
the parking demand of the existing commercial tenant space.
4. The approval of Use Permit No. UP2003 -020 will not, under the circumstances of this case,
be detrimental to the health, safety, peace, morals, comfort, and general welfare of the city
for the following reasons:
• The use will not contribute to a disproportionate number of take -out
establishments in the area nor contribute to a land use mix that is inconsistent with
the specific purposes of the zoning district in which it is proposed.
• The site and structure are of sufficient size and design to accommodate the use
and will not cause customer service queues, storage areas, or waste to encroach
onto adjacent properties or public rights -of -way.
• Conditions of approval for the use permit include a practical program for
controlling litter, spills, and stains resulting from the use on the site and adjacent
areas.
• The proposed use is a visitor - serving use that will serve part-time and full -time
residents as well as visitors to the island.
CONDITIONS:
Development shall be in substantial conformance with the approved site plan and floor
plan, except as noted in the following conditions.
Prior to final of the building permit for the proposed use, the applicant shall prepare and
submit a practical program for controlling litter, spills, and stains resulting from the use
on the site and adjacent areas to the Planning Department for review. The building permit
shall not be frnaled and use cannot be implemented until that program is approved. The
program shall include a detailed time frame for the policing and cleanup of the public
sidewalk and right -of -way in front of the subject property as well as the adjacent public
right -of -way (25 feet north and south of the subject property) not just in front of the
subject tenant space. Failure to comply with that program shall be considered a violation
of the use permit and shall be subject to administrative remedy in accordance with
Chapter 1.05 of the Newport Beach Municipal Code that includes issuance of a citation of
violation and monetary fines.
Prior to issuance of the building permit for the proposed use, the applicant shall submit
revised plans that depict the elimination of the parking space at the rear of the property,
shows the location of the trash enclosure that is located to maintain a minimum 5 -foot
setback from the alley property line and all other conditions of approval that alter the
proposed floor plan.
4. The "net public area" shall be limited to a maximum of 100 square feet (exclusive of
display, aisle and condiment table areas), except as otherwise required by the Building
Department to satisfy handicap access requirements may allow modest deviations from
that requirement.
I
July 25, 2003
Page - 3
Parking within the 10 -foot rear yard alley setback or in the alley right -of -way is
prohibited. The applicant is directed not to park at the rear of the property since there is
not adequate space behind the building to accommodate any vehicle without crossing the
property line onto the adjacent property or into the alley right -of -way. The installation of
appropriate signs may be required if a problem develops or persists, as determined by the
Public Works Department.
The operator of the food service establishment shall be responsible for the control of
noise generated by the subject facility. The noise generated by the proposed use shall
comply with the provisions of Chapter 10.26 of the Newport Beach Municipal Code. That
is, the sound shall be limited to no more than depicted below for the specified time
periods:
Between the hours of Between the hours of
7:00 a.m. and 10:00 .m.; 10:00 p.m. and 7:00 a.m.
Measured at the property line of
commercially, zoned property: 65 dBA 60 dBA
Measured at the property line of
residentially zoned property: 60 dBA 50 dBA
7. Customer seating and/or stand -up counter space shall be prohibited inside or outside the
subject eating and drinking establishment (outdoor dining or seating outside of the
facility is prohibited, unless an accessory outdoor dining permit is first approved). Any
addition of seating and/or stand -up counter space for customers shall be subject to the
approval of an amendment to this use permit.
8. The daily hours of operation shall be limited between the hours of 10:00 a.m. and 10:00
p.m. Any increase in the hours of operation shall be subject to the approval of an
amendment to this use permit.
9. Trash receptacles for patrons shall be conveniently located both inside and outside of the
proposed facility, however, not located on or within any public property or right -of -way.
10. All trash shall be stored within the building or within dumpsters stored in the trash
enclosure (three walls and a gate), or otherwise screened from view of neighboring
properties except when placed for pick -up by refuse collection agencies. The trash
dumpsters shall have a top that shall remain closed at all times, except when being loaded
or while being collected by the refuse collection agency.
11. The applicant shall maintain the trash dumpsters or receptacles so as to control odors that
may include the provision of fully self - contained dumpsters or may include periodic
steam cleaning of the dumpsters, if deemed necessary by the Planning Department.
12. Kitchen exhaust fans shall be installed in accordance with the Uniform Mechanical Code
prior to the issuance of a Certificate of Occupancy for the subject business and approved
by the Building Department. That issues with regard to the control of smoke and odor
shall be directed to the South Coast Air Quality Management District.
N
July 25, 2003 t
Page - 4
13. A covered wash -out area for refuse containers and kitchen equipment with minimum
useable area dimensions of 36- inches wide, 36- inches deep and 72- inches high, shall be
provided. Also, the area shall drain directly into the sewer system, unless otherwise
approved by the Building Director and Public Works Director (in conjunction with the
approval of an alternative drainage plan). This covered washout area can be located inside
or outside of the facility, but must be fully enclosed when in use to prevent rainwater and
rainwater runoff from entering the sewer system.
14. No temporary "sandwich" signs, balloons or similar temporary signs shall be permitted,
either on -site or off -site, to advertise the health and fitness facility, unless specifically
permitted in accordance with the Sign Ordinance of the Municipal Code. Temporary
signs shall be prohibited in the public right -of -way, unless otherwise approved by the
Public Works Department (in conjunction with the issuance of an encroachment permit or
encroachment agreement).
15. All mechanical equipment including roof top mounted equipment shall be screened from
view of adjacent properties and adjacent public streets. Also, the equipment shall be
sound attenuated in accordance with Chapter 10.26 of the Newport Beach Municipal
Code, Community Noise Control.
16. The project shall be designed to eliminate light and glare spillage onto adjacent properties
or uses. Prior to issuance of a certificate of occupancy, the applicant shall demonstrate to
the Planning Department that the exterior lighting system has been designed, directed,
and maintained in such a manner as to conceal the light source and to minimize light
spillage and glare to the adjacent properties, especially the residential properties at the
rear of the property. The plans shall be prepared and signed by a licensed Electrical
Engineer acceptable to the City, with a letter from the engineer stating that, in his
opinion, this requirement has been met, unless otherwise approved by the Planning
Department and the Code Enforcement Supervisor.
17. Prior to issuance of the certificate of occupancy or final of building permits, the applicant
shall schedule an evening inspection by the Code Enforcement Division to confirm
control of light and glare specified in the previous condition of approval above.
18. Storage outside of the building in the front or at the rear of the property shall be
prohibited, with the exception of the required trash container enclosure.
19. The use of the rear door shall be limited to deliveries and employees use only, use by
customers as an entry shall be prohibited.
20. The use of the rear door is prohibited between the daily hours of 10:00 p.m. and 8:00
a.m., except by employees exiting the facility or depositing trash after the closing of the
restaurant.
21. Deliveries and refuse collection for the facility shall be prohibited between the hours of
10:00 p.m. and 8:00 a.m., unless otherwise approved by an amendment to this use permit.
22. The operator of the food service use shall be responsible for the clean-up of all on -site
and off -site trash, garbage and litter generated by the use.
61
July 25, 2003
Page - 5
23. The area outside of the food establishment, including the public sidewalks, walkways or
common walkways, shall be maintained in a clean and orderly manner in accordance with
the practical program for the control of litter, spills and stains on site and on adjacent
properties.
24. If this business is sold or otherwise comes under different ownership, the current business
owner /property owner /leasing company shall notify the future owners/assignees of the
conditions of this approval.
25. No outside paging system shall be utilized in conjunction with this food service
establishment.
26. The facility shall comply with the provisions of Chapter 14.30 of the Newport Beach
Municipal Code for commercial kitchen grease disposal. A grease interceptor or other
grease collection device shall be installed to the satisfaction of the Building Department.
Standard Clty Requirements:
All signs shall conform to the provisions of Chapter 20.67 of the Municipal Code. Multi -
tenant commercial buildings are limited to one identification sign per tenant. Awning
identification signs or graphics are considered signs and are included in the number of
signs. A modification permit to increase the number of permitted signs beyond that allowed
by the Zoning Code is required and subject to review and approval by the Modifications
Committee.
The facility shall be designed to meet exiting and fire protection requirements as specified
by the Uniform Building Code and shall be subject to review and approval by the Building
Department
The project and related roof overhangs and awnings shall comply with all applicable
Building Codes and Council Policy Requirements.
4. The project shall comply with State Disabled Access requirements.
No on -sale alcoholic beverage service shall be permitted on the premises.
6. No live entertainment or dancing shall be permitted in conjunction with the permitted use.
The Planning Director or the Planning,Commission may add to or modify conditions of
approval to this use permit, or revoke this permit upon a determination that the operation
which is the subject of this approval causes injury, or is detrimental to the health, safety,
peace, morals, comfort, or general welfare of the community.
8. This approval shall expire unless exercised within 24 months from the end of the appeal
period, in accordance with Section 20.91.050 of the Newport Beach Municipal Code.
lb
July 25, 2003
Page -,6
The decision of the Planning Director may be appealed by the applicant or any interested party to
the Planning Commission within 14 days of the date of the decision. Any appeal filed shall be
accompanied by a filing fee of $875.00.
PATRICIA L. TEMPLE, Planning Director
By_
Garcia, Jav>e 5. Garcia, P
Senior Planner
Attachments: Appendix
Vicinity Map
Sample Menu
Detail Floor Plan
Letter in Opposition
cc:
Joseph E. Mudd
16485 Laguna Canyon Road
Suite 230
Irvine, CA 92618
property owner
Alden Management Group
150 Paularino Avenue
Suite 194
Costa Mesa, CA 92626
Code Enforcement Officer
F: \USERS\PLMSharcd\PA's \PAS - 2003 \PA2003 - 140 \UP2003 -020 APPR.doc
July 25, 2003 `
Page - 7
APPENDIX
Parking Requirement
In accordance with the provisions of Chapter 20.66 Municipal Code, parking for a take -out limited
food service use is the same as a general retail commercial use and based on one space for each 250
square feet is 5 parking spaces for the subject facility if the building were built new. The building is
currently nonconforming since no parking is provided on site. Staff believes that the proposed use
will not increase the parking demand of the site since the use is visitor serving and the facility is not
a destination point type of use but visitor serving. Therefore, based on the recommended
restrictions (no patron seating) and the parking characteristics of the use no additional parking is
required.
On the plans submitted, the applicant has indicated a parking space that not only extends into the
alley, but also crosses the interior property line onto the adjacent property. Staff has reviewed the
plan and has determined that there is not adequate space on site to accommodate a parking space
at the rear. Therefore, a condition of approval that prohibits parking within the 10 -foot rear yard
setback, across the property line onto the adjacent property or in the alley right -of -way is
included. The applicant has been directed not to park at the rear of the property. A violation of
this condition shall be enforced by the Code Enforcement Division and shall be subject to
citation and fines.
Restroom Facilities
The proposed facility provides a unisex restroom for patrons. Any addition of interior seating may
require the addition of separate sex public sanitation facilities as required by the Newport Beach
Municipal Code and in compliance with the provisions of the Health Code (Orange County).
Required Findings for Take -Out Service, Limited.
In addition to the findings established in Chapter 20.82, the following additional findings shall be
made in order to approve a Take -Out Service, Limited establishment:
Finding 1. That the use will not contribute to a disproportionate number of take -out
establishments in the area nor contribute to a land use mix that is inconsistent with the specific
purposes of the zoning district in which it is proposed.
The proposed use is in a location that is predominantly visitor - serving retail and/or food service
uses. Those food uses range from fast or quick stop food establishments (take -out service limited
including a mix of ice cream, pastry, limited food menu restaurants and the like) to full- service
restaurants (including a mix of sit -down restaurants and family style restaurants) and contribute
to a range of food uses that serve visitors as well as part-time and year -round residents. It is staffs
opinion that the addition of another food use is consistent with the RSC Zoning District along
Marine Avenue and does not contribute to a disproportionate number of take out establishments
in the area. There are no limitations or definitions expressed in the Zoning Code, specifically
reference to the Retail and Service Commercial (RSC) District that defines or establishes
"disproportionate number."
Finding 2. That the site and structure are of sufficient size and design to accommodate the
use and will not cause customer service queues, storage areas, or waste to encroach onto
adjacent properties or public rights -of -way.
id-i
July 25, 2003
Page - 8
The facility can be accommodated by the building. The facility also provides enough interior
customer area to prevent encroachment onto adjacent properties and the public right -of -way.
Customer queuing shall be prohibited outside of the facility and the applicant shall be directed to
turn away customers to prevent encroachment into the public right -of -way.
Findine 3. That a condition of approval of the use permit includes a practical program for
controlling litter, spills, and stains resulting from the use on the site and adjacent areas.
The approval letter has a condition that requires submittal and approval of a practical program for
the control of litter, sills and stains for the subject property, the adjacent private property as well
as the adjacent public rights -of -way to be maintained in a clean and orderly manner.
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EXHIBIT NO. 2
APPLICANT'S PROJECT DESCRIPTION
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Project Description & justification
Maggie Moo's
Balboa Peninsula
Newport Beach, CA
May 2003
Project Description
The proposed Maggie Moo's Treatery prepares and sells fresh ice cream, fruit
smoothies, custom cakes, and deserts. The proposed Maggie Moo's project is the
renovation of the first floor of an existing two -story structure that currently houses
professional offices on the second floor and the ground floor is currently vacant.
The previous ground floor use was a Real Estate Office. The ground floor is
approximately 1,916 square feet and the second floor 1,961 square feet. The
Maggie Moo's project will occupy 1,032 square feet (approximately 54 %) of the
ground floor. The remaining 884 square feet will become retail sales.
Maggie Moo's will be open for business from 10:00 AM to 10:00 PM daily. The
facility will have no public seating and will be limited to no more than 100 square
feet of public area. The facility will have two or three employees depending on .
the time of day.
Proposed Improvements
The existing building shell will remain intact with no expansion to the footprint.
The building square footage will decrease by the removal of approximately 45
square feet due to the relocation of the entry door to meet handicap accessibility
standards. The second floor will remain unchanged and will not be part of this
application.
The proposed exterior improvements would be limited to minor building
modifications to include a new aluminum storefront glazing system and themed
awnings that help to define the ground floor tenants. Signage will be a separate
submittal and permit.
11
EXHIBIT NO. 3
APPEAL DOCUMENTS
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CITY OF NEWPORT BEACH
APPLICATION TO APPEAL DECISION OF THE PLANNING DIRECTOR
Application No.
J '
Name of Appellant /�
or person filing: ��) ( °�,i2� �/� 0 / t/ Phone: Z,5 - 4
Address:
Date of Planning Director's decision: 7 aS O .2003
Regarding application of: 3d;- /%1 -qRjn1-e— Ay;e. " J i-� /i vwD for
(Description of application filed with Staff) klmder) ?L-8sn U ce —
Reasons for Appeal :
FOR OFFICE USE ONLY
Date Appeal filed and Administrative Fee received:
20
Hearing Date. An appeal shall be scheduled for a hearing before the Planning Commission within thirty (30)
days of the filing of the appeal unless both applicant and appellant or reviewing body consent to a later date
(NBMC Sec. 20.95.050)
cc: Appellant
Planning (Furnish one set of mailing labels for mailing)
File
APPEALS: Municipal Code Sec. 20.95.04013
Appeal Fee 8�ursuant to Resolution
(Deposit funds with Cashier in Account #2700 -5000)
F:IUsers1PLMSharedTorms 2000101d Forms\ lformslStaffappeal.doc
'PAID
No. 98 -52 adopted on 75680 7 2003
June 18, 2003
To the planning commission:
Regarding Public Notice
Planning directors use permit: UP2003 -020 (PA2003 -140)
Property located at 320 Marine Ave. Balboa Island, CA 92662
For the past 9 years I have been a resident of Balboa Island, owning and operating the landmark " Sugar'n
Spice', which is the Original Frozen Banana ice cream shop on Balboa Island. Having been established
in 1945, this will be its 58th continuous year in business.
It was recently brought to my attention that only a few doors away from my shop a proposed ice cream
store will be opening.
I don't understand the reasoning for another ice cream shop on this quaint, 2 block stretch of MarineAve.
Already we have two ice cream shops within a few doors o1 each other. Having a third ice cream shop is
going to Cut my business down by half, if not more. It is also going to decrease the value of my business if
I were to sell it or lease it in the future.
This island town consists of a 2 block business district. Summer season is short lived and the majority of
the businesses have 100 days to make it while the island is busy with summer visitors. The town doesn't
need and cannot support a 3rd ice cream shop because the volume of visitors dramatically decreases in
the winter months and the off- season. Thisis not Fashion Island, Corona Del Mar, or South:Coast.Plaza
where the volume is consistently high.
Whether this is a sole proprietorship or a chain ice cream shop, it will greatly affect and diminish my
income and reflect negatively on my property)business value.
Additionally, permitting the opening of another chain store business is just one more step to the corporate
homogenization of this community. Balboa Island is a special place, one with grand traditions and
sentiment; the Christmas boat parade, the July 4th celebration... and Sugar'n Spice is part of this tradition.
I routinely have adults come to my business who came here as children, who now bring their own children
to enjoy a small part of their good memories of our community. Balboa Island should be embracing it's
heritage, of which Sugar'n Spice is a part; its what makes this area quaint and special. It's the thing that
separates our community from those other, more commercial destinations and we should hang onto it and
preserve it for the generations to come.
Thanks for taking my words into consideration.
Helen Connolly
Resident and Owner of " Sugar'n Spice"
310 Marine Ave.
Balboa Island, CA 92662
949.673.6782 hm
949.673.8907 wk
RE
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EXHIBIT NO. 4
PROJECT PLANS
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