HomeMy WebLinkAboutSupplement to the Return to the Writ of Certiorari STATE OF INDIANA IN THE HAMILTON SUPERIOR COURT 3
SS:
COUNTY OF HAMILTON CAUSE NO. 29D03- 0805 -MI -565
MIDWEST HOSPITALITY GROUP, INC.,
and MOTELS OF CARMEL, LLP,
Petitioners,
Honorable David K. Najjar, Special Judge
v.
THE CITY OF CARMEL and
THE CARMEL PLAN COMMISSION,
Respondents.
SUPPLEMENT TO THE RETURN TO THE WRIT OF CERTIORARI
Comes now respondent Carmel Plan Commission, by counsel, and hereby files a
Supplement to its return to the Writ of Certiorari, pursuant to the Court's Order dated
March 4, 2009, along with the status conference conducted by the Court via telephone on
July 21, 2009. This Supplement contains one additional exhibit to the Return, namely a
transcript of the portion of the Carmel Plan Commission meeting of Tuesday, April 15,
2008, at which Petitioners' Applications were discussed and a decision was rendered by
the Plan Commission.
Respondents would note for the Court that they possess no additional audiovisual
materials from which transcripts can be prepared for any of the prior meetings of the Plan
Commission or its committees, and further, that the discussions that took place during the
April 15, 2008, meeting were the only discussions involving the full membership of the
Plan Commission which were referenced in the parties' briefs.
Filed this 3rd day of August, 2009.
John R. Molitor
Attorney for the Carmel Plan Commission
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Supplement to the
Return to the Writ of Certiorari has been duly served in person on this 3rd day of August,
2009, on the following attorneys:
E. Davis Coots
COOTS HENKE WHEELER, P.C.
255 East Carmel Drive
Carmel, IN 46032 -2689
Alan S. Townsend
Paul D. Vink
BOSE MCKINNEY EVANS LLP
111 Monument Circle, Suite 2700
Indianapolis, Indiana 46204
John R. Molitor
John R. Molitor
9465 Counselors Row
Suite 200
Indianapolis, IN 46240
Telephone: (317) 843 -5511
Fax: (317) 805 -4723
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C PLAIN COMMISSION
TUESDAY, APRIL 15, 1008
HOLIDAY INN TRANSCRIPT
CERTIFIED TO BE A TRUE and COMPLETE TRANSCRIPT OF THE APRIL 15,2008 CARMEL
PLAN COMMISSION MEETING AS IT RELATES TO THE HOLIDAY INN—PRO-MED LANE
DOCK 07030035 DP AND 02070009 AD.LS
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'R*Onit Hancock, Secretary
Catrifel,.Phin ConfirilS011.
Dated: 4:141y2.7,2609,
Members present: .Leo Dierekmart,Jay Dorman, Kevin-W.pt.x.ly! :RiOe,T, Rick Itiproa, Carol:Schleif,
Steve Stroinquist,:'Susan West eimeier:
Also present John Motitor, Lewd COutisel .
DOCS Staff: Angie Conn, City Planner; Michael Flollibaueh, Director,
Trm:script:
R. Docket No. 07030035 DP: Pro-Med Lane-Holiday Inn
The applicant seeks site.plan approval for.a full-service hotel. The site is at L36th Street and
ProrMed Lane, and is zoned 13-6/Business within the US 31/Meridian Street Overlay. Filed
by Stacey fottt.s of DeBoy Laced Developthent Services,
61.. Docket N . 07070009:ADLS:'. Holiday.hin at Pro Med:Ln
The:Applicant-seeks.architecture/design approval for a full-service hotel. The site is at 136th
StreetAnd,,Pro:MectLnhe,raridisZOned136, within the t.l$:„31/Meridian Street Overlay. Filed
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•:by•:Dave Coots Of Coots;,'Henke A.Wheeler for Midwest ftospitality Group, Inc.
Die Coot ,4nOrney,,,Coots Henke Wheeler, 255 East Cannel.Drive:
"So far 1 traVeiheen able to push:a button and don't have anything to shoW for it" O-eferring to the Overhead
Projector)
Leo Dierelonan: "Are you trying to adjust that.. ,Can we help you out with that?"
Dave CoOts: -Thank you, Mr. Chairman. My name is Dave Coots, my office address is 255 East Carmel
Drive, heteiii the City. I.am here,this evening representing the applicant, the Midwest Hospitality Group, Inc.,
a . 11,C who is represented by Sonjay Patel. Also present this evening is Steve Fehribael of A&F
Engineering, -arid: Mike f!el3oy of DeBoy Laud Services Engineering. The matter before you has sorrie
longevity as well, laving started in February of '07 with the filing of the Development Plan—a site
deVelciptuctit plan:That: was a part of the Pro-Med Dev,elopnient Plan that was approved by the Plan
Commission in'19,90. This is lot#2 of that Development Plan and therefore, we are here to present to you the
rëdisit' s to deVelOpitbe sittrand WO the ADLS appliCatiOnthat required by the Overlay ZOne for purposes
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of approval of the building architectural design, lighting, landscaping and signage."
13y way of alittle brief hiStoi:y„. and because there has been considerable amount of the chair.will.
allow- -as -indicated, the original development plan was filed to.st?Fehet.l.gy.., the ADL$ application was heard
by this group i*Atignst, as we bavo been to the Special Studies,COttanittee for the months since then and
partly delayed by the request to.p.efforna:a traffic.shidy which was.done initially at'the One!Mettidiart--Old
Meridian was.,elose4due to:the consbnictioir tho..roundabont GoilfOrd,and.inparf due to the inability to
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obtain current numbers on the basis of traffic utilizing the partiettlar Jarea;:therefore, the Committee asked.-that
we-apditteihose numbers—which Mr. Fehribach did.. He compiled his traffic study which has been reviewed
by tite;'(74)trithittO as Mode a part of the'record and ha. been:shared with the 13,ept of Erigineeting and the Dept
of Community Services, And if there are specific questions about that to Mr, Fehribach, he is here to.answer
those questions; however, the Dept of Engineering and the Dept of Community Services find that the traffic
study does recommend that a right-turn lane be added to the not side of 136' Street and that with that
addition, in their judgment, the traffic for this site is approved.and they recommend the approval of the project
with the traffic as modified per the development plan.”
'-'rho Committee also.considered the Architectural Design of the project and it was determined, or it was-made
known that there were perhaps a .few too .many colors...too many diaterials...,.and as a consequence, the
-materials have been reduced to .what ate shown here Two different bricks are being used on the major
component die hotel and the lower level niatetial--nttsonty material—being terracotta color, and the white
border being the fourth color used as,opposed to six or so that were utilized in the original design. We agreed
With the Committee to sign only the north elevation and the west elevation and not:sign anything on the east
elevation"
“Tfhei.Ordinante.,addressing.your:review of the site developitient plan starts.in paragraph:24.0 I' 'Purpose and
Intent, otolitoig,that the Development Platt and Architectural Design. Exterior Lighting, Landseaping and
Signage,application s:Shall generally be eonsideted s.favotahle by the Commission,' and that is especially so
where the Committee has found or the Dept suppOrtingthe Committee has found that the application comports
with all of the requirements of the development requirements and those are contained in 24,02 of the Ordinance
which are mirrored out of Indiana Code 36:7-4-1403. I don't know if the chair wants to spend the time at this
juncture in going through the various criteria that the Ordinance considers, but I can represent to the Chair and
to the Commission. that there .have not been any Depts, inc hiding the Urban Forester, Engineering, Dept of
Community Services, or any others that found in any way that we, that (his application does not meet the
development requirements set forth within the Ordinance."
The Comprehensive Plan, Which is one of the criteria that the Ordinance sets forth that the Commission shall
consider in approving a site developMent,plan and .\DLS application designates this area as a high, medium
• intensity, regional .employment area and the land use map within the Comprehensive Flan although as we all
know the CompreliensiVe:plan is a:OiiggeStioti for,.it is not the Ordinance, but it does .give.What up to this
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point; anyway, until the,Compi*hensiiye.Plan is revised,.as the:Dept and many others are considering;, it does
:give the:paininfasionthe direetion:as.:Miphinnedinses within the-Coinnittnity and as inditatod, this is;
eommitnitk,:en'ipjoyment-gea,high intensity. more impottartily,however, is ihu sic„inning on this site is-13-6
and 13-6. as yodIcnoSV, nuts this use.yt,.itb.-Qat any Waivers, vatiatioos,wtthoiii city modifications
in ,the development plan ot ,otherwise,- and so it is our position that having met those triferia„ the
'Compiebensie Riau'andthe'Zoning Otainanee establishes for you already what this property is to be Utilized
for development imposes, The issue thm becomes, as I see it, whether or not the architectural design, etc.
ineetS:th'erreqUiOntent$of life Zoning'Qrdin4hee.and think the,Cortitnitte.e Report wotildihdicate That with the
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ModifietitiOl4 that Wei7e'rnade, and as you will recall from the initial priblie'hearing that we had, there as a
shortage of parking on Site and \Oat we have done to correct that is that there is an underground parking
garage now that will be built under the building that will increase the number of parking to that required h the
Ordinance, The Ordinance, as yob knows, requires a parking space for every room, 1.25 parking spaces for
every seat in the restaurant, and one parking space for every employee, the highest number per shift—that
equates out to 155 parking places as to this project, and that is What we have. That is a little bit out of sync in
that we believe all of the restaurant occupants will be guests of the hotel, there will not be outside persons
coining to the hotel for purposes of dining, and in fact„ as I believe was indicated to the Commission at the first
public hearing,.that is controlled at the front desk through a voucher system and When you register for a room,
you are-give:ha voucher for purpoSes of breakfast, afternoon meal or Wihates er.
"The other,clernents that *ere consideted'by the.Special Studies Conatnittee regarding the arcbitectural,design
revoked wound the landscape component of the plan and the tree preservation requirements of the original
development plan-that was approved for the pro-Med project and the tree preservation areas are those depicted
itt the darker',color on this-landscape:plan; all of the green material is:new plantines. At the suggestion of Ms.
thp.!'00.st eleVation of the building will be augmented with evergreens as well as the plantings that are
proposed for the east elevation of this site. That-Was approved by Scott Brewer to include those in this area
and that I think has been wOrked,out with the landscape architect and Scott Brewer's office. The comments
made in the Stall'Report — I think-the cotadusion can be that we have satisfied all of their requirements and
there is an inconsistency between the construction drawings and the landscape plan, and I am told by our
representatives that it has been W a rked out with Scott Brewer's office, and that is Item 6. on the Staff'Dept
Reports cominents."
"One final issue that I will address and then submit it to the report of the Dept. Mete has been considerable
concern about the intersection of Old Meridian and the intersection with US 31. This W as given or taken off
INDOT's website as a proposed plan on how they are going to intersect Smokey Row Road/136w Street, down
to the roundabout there, the hospital entrance here, and the intersection with US 31. This, of course, is their
proposal to be de eloped after the conclusion of the Keystone Avenue project. Scenario number two is for the
same intersection treatment of Sniokey Row'Road, but the round-about concept that the City of'Car merhas
submitted to the Regional Transportation Committee, Those of course are still to be deeided, as .you know,
but that was information that I was not able to share with the Committee on how to handle what is going to
happen at that interseetion, We discussed a variety of alternatives and the Dept of Engineeting,and the Dept Of
Community'Services concluded that they prefer the:addition of a right4iand tar n lane along the north side of
13`6th'Street at its now intersectioir 1;.•ith ItS 31," (Here ends D VD #
Angie Conn, City Planner; Department of Community Services:
All of the issues have been discussed: Traffic, Landscaping, Architecture, Signage—it has been talked about
over and oven The Dept has met with the Dept of Engineering and agreed that the addition of the right-hand
turn lane on-Smoke y Row Road will help with the traffic congestion at that intersection. With that, the Dept
recoinmends that tie.cotninission vote on this item this evening."
Leo,Dierektnati: "I just want to ask a quick question that does not go any further than this---this body—it is a
yes or no—does this take a vote of 6 to approve-01'1C W a y or tile 0 th er
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Angie Conn: "Yes"
ConimisSion Members Discussion:
Jay Dorman:
' Regarding Traffic—Staff, at what point in time is the level of service below a reasonable C. D,
whatever the designation—ia it an F.designation? 1 would be interested in knowing vThat level is identified at
%Oval points at time during the day."
Angie Conn:
"If.1,recall correctly, it is at the peak,hour Hines when most traffic coagestion occurs and the traffic report's
recommendations-are recommending road improvements that would help with the peak hours as well as 24
hours a day.''
Jay Dorman:
"So it goes to which level of service in peak hours. is this., hat's the worst designation,._IF?"
Dave Coots: "Yes, it is."
Kevin Rider:
"When we talk about peak times, we are talking about mot nine, rush hour and eveninu rush hour. Does that
take in a lot of residents around there who have contacted me—th.ey have mentioned that this intersection
wetild have a third peak hour and that is after school. \\'a S that addressed at all—in the middle of the
afternoon?"
Angie:Conn, DOS Staff. "Dave, can you answer?"
Dave Coots: "Could defer to SteVe Fehribacfg'
Leo Dierckmarr "Absolutely)yes,sit
Steve Felitibaeh, Professional Engineer with A&F Engineering,.8365'Keystone Indianapolis.
"The count was conducted between 4:00 in the afternoon t and '7,i00 at night. So, there is probably a period:of
time when the school gets out that there will be--between.3 and 4--that it wasn't considered, However, when
look at the traffic as it drops off, you Will see that it drops off and then picks back up real quick again
between the 5:0.6-4:45 and 5:45 time period, so we try to generate or eve use the nuniber that would be the
highest. Now there could very well be a third hour out there that is high, but we would tend to look at the
highest hour with the level of service analysis. So, there probably is a third hour, but it is not as high as the
pm:peak hour When everybody is coming home. When y0 it look at the entire intersection, also, the school
would he an outbound, or coming out of 136'Street—what we do is we k)ok at the entirety of the intersection,
all of the roovetnents that come up with the worst case set:111)6o."
Leo:Neva:map:
"More,,discuasipn? ,Carol?
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CarOl,Schleif:
waWt, youlenow, pan of the Plan Commission When this the previous appi:ovals that affect this
property were iiiyohred. Could you talk a little bit about—AOC has been land use diScassion-where, at S(mne
poirit, it was Supposed to be a medical office use only. flow did.,...was there a commitment to ii at.. it
apprOved..Aliat is the history?" Angie?
Angie COnti,':ppo$,-stot
"Basically, when this Proled Lane area was-rezoned to 1376, there was a conceptual plan of office/mcdical
office and there was also a traffic study produced with that initial re2otie. This petition is actually, in a way,
putting into concrete a site plan, making it"Noe' conceptual anymore. With.that, there is a new traffic study
done and it is going through the whale public hearing process to get approval. That's
Carol Schleif:
"So what is...as far as what was approved, what is the use that was approved for this
Angie Conn:-
"This was a rezone to.B-6 Business which permits a H....."
Carol Schleif:
"So it B-6.7"
Angie.Conn:
"Yes"
Da e Coots:
"Pardon me,if'r might add to!I:lat....Cara...In June 1990, when the Rezone Veqs approved and commitments
were made and recorded, there were—the Rezone to B-6—there was at that time a list of uses that were
excluded beginning with Auto Parts and tire center, ending up with Veterinaiy hospital with kennel---.4 did not
exclude our 11c."
jay Dorman:
'Let ate add something, if memory serves me Carectly, I was on the Plan Commission at that particular point
in time and while Dave obviously represents what is written, at no time was it our intent that anything but a
compatible,:medicahtype:facility would ever be on that site and certainly not a hotel. That:is my recollection
and being bet e t t.etilet-nber Mrs. Kerr and all the neighbors because we had the same concerns with traffic
with:a lower intensity use yet alone a hotel. But, what's written is written."
Dave Coots:
If I might follow up cm. that please Jay. I thin-k the traffic report S ws this US e i. a less traffic generator
than Nvhat was approved in [9.91/. lithe equivalent size, medical office building kiere constructed on this site,
the traffie,hunkers Would be 177.1%:higher: than what the hotel use is because of the spreading out over
diffet,ent hours and the.smaller number of vehieles that would be utilizing the same square footage. Thank,
Leo Ojeda:milt
"Mare DiSCUSSS ion.. .Sarry, Car t31?"
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Caro ,Schleif
"Now 13-6 also....refresh me; Angie, I am going back here. this has been a long process but, B-6 rear yard
requirements—the rear yard is supposed to be 60 feet and l know it is in the OVerlay, but the Overlay does not
mention rear yard at all----:it's totally gone- hut also in the Overlay it talks about the intent of this Overlay is
to have, to orient new buildings with their longest access to the adjoining highway, and it pertains to parking
cith...and having parkin: in the rear. Was there anything back then cohere they gave permission to put
parking in the front like this?"
Angie Coat:
"Let me answer your first question The CJS'.31 Overlay does have side and rear yard requirements. For this
instance, because it is located adjacent to the Justus (hike project, it is a I5 foot setback, so that is in the
Overlay District. Could you refresh your second question:please'?"
Carol Sch:leif:
"T don't see it there.,...so, were,they allowed,to put parking in the front...at any point in this approval.?"
Angie Conic:
"I think it h as always been permitted when they filed."
Carol Sch leif
"Well, 23B 08 in the.Overlay says the intent is to orient the buildings along the highway and with the idea of
putting parking in the rear and. I think I am going to look up 2313 08 which is the rear yard part of this
Overlay. d think that is why it is not there--the side yard and the front yard are talked about."
Leo Diercknan:
"Davie, do you have any insight on this'?"
Dave Coots:.
"The original Pro-Niled site plan or Development Plan,approval established the setbacks and the calcination of
the buildings to run north/south. As_you approved 4'S months ago, the ,Ieu:stus building immediately east of
this building running north/smith.with its setback off of the Meridian Overlay Zone, and this one mirrors that
orientation. Parking is to the west of this building, to the east of the Justus building."
Carol Schleif:
"Well, the Primary Plat that was passed in 2005 has a rear yard setback of 40 feet and the building is 24,so it
is not even complying with the 2005 requirement.,,
Dave Coeits:
"Setback off of the... I36''' Street_."
Carol Schleif
"'The rear yard, behind this building."
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Dave Coots:
"OK, that is the 15 feet- that Angie as efiring to earlier,”
Carol,'Schleif:.
'We 11,11"40 talking about the rear yard setback that was on the PaMary'Plat that was approved in 2005—it's in
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the Department Report:frorrt NoNTITlher t'' Dept-Report, this year: or 2007. Pm.just wondedng Why now the
bitilding.iS-„otily24 feet a'ay. Mike, are you'...V.iiiitittil,to talk?"
lv-liellitel'lloilibangh, Direetor:.
."4 really-feel like'we arc starting to get into Committee woCk againtonight„ If the Special Studies-Committee
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that reviewed this- -if it really was not ready to be Sent out, then it should not have been Sot out I:really
think that the Dept has covered all the zoning issues,it has been through Engineering review,it's been through
TAC (Technical'Advisory Committee)—we have really tackled this-project hard. There is no recommendation
for the project tonight coming from the Dept, but I do feel like the petitioner has worked-awfully hard to bring
in a ,project that met all the issues that go LIMIT with the US 3.1 Overlay Zone, and they have designed a
building that is largely brick with underground parking—they have addressed all the issues. Carol, to answer
your question,about the proximity of building to parking, it was the the Overlay Zone has tw-olved over time
and has tried to push the parking behind the buildings and eventually, we could not just ecintirate to ask and not
get it'Which is what was happening. I think the buildings, the medical buildings at 106' & LS 31 on the .
northeast corner—kind of little one,story—those a.re the last ones that have parking in the front—we amended.
it in 199.9-.2000-to require that the buildings be in front with parking to the rear with build-to lines, etc."
Carol$Clilelf:
"i,-„Vell„ this has dragged way on and --1 have to,agive. I am ready to )1.0tp on this tonight. But, in October I
sent-4 had a WhOle„Strit-.Of Reins here,that at.atoug this line and out @1 tWo pages.of these, Only two items
have been resolve . The parking—the count is not,corrett have to use conference area parking manhers
which are twice as hittottAa teStatittuit:Stithis, and to be able to use liat.argument, you hiNe to.diserittUrrate
against::peopleeeiming into,your restaurant—t think that is coin" get -that's.a,problem. I.-jbst have a whole
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list of things that are ihelatiSiStetit.with this project. F.-very one of these has an Ordinance number next to it.
The:fact that one tree is come to SUIViN7:e here, maybe a few small-ones on the north encl....questions of context
and what that .. by is it that the rest of the other oflice bIlliditIgS in this area are able to do that in the
architectural requirements. Materials-1. am seeing E IFS on here that is not allowed in the Overlay is that
still on here?"
Dave Coots:
4,1\10...:,
carol S Me&
'''.R was.0,15;eir9ht? Good. I as cOrteerned that I would see mechanical units from US,31--Aye have not seen
any 4-r4*iog4., I'vent a11.day goinc through a year's.worth of Dept Reports ml other stuff to try and re-orient
myself— c didn't:ger-a:paektt, This is not goiiig to win ores hoe t he garaue.parkiug,area. -hu.bidet to not
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:Mkt.rileelianitialyentilation, son have.:(6:haye.5„0% ofthe area open, so where ate the windows'? I don't see
Anyi-elOatiPtisi::that.-.11100,*indOWS ShOWtos. These are i.-80§ that A:t„ittid have been resolVed a year ago, 1
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guess titoow-sko*f art :goittg'to:vote.here;but 1 willpass.:16I DOW."
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Leo Dierckman:
'Further disettsssion? I think;it has been-at Conunittee Ionia'enough. I think we are-going to have to make a
decision in this matter. I think we need to consider What the issues are that we are voting on and whether or
not meets the criteria. Further Discussion? If not, We Will have a motion, one way or the other. It does not
matter,we can vote in the negative." That's what the LIZA does,so......"
Rick.Ripnia;
-111 move that we approve Docket No. 0703.0035 DP, 'Pro-MkJ Lane, Holiday Inn, I guess and Holiday Inn
Docket No. 07070009 A.DLS, Holiday Inn at Pro Med Lane."
Leo'Dierclonan:
"Motion to approve—we need a second. No second_.motion dies for hick of a second, We need a new
motion.'"
Carol Schleif: . .„
-Here it is.,..PII make a motion to Not Approve.....to Deny Docket No. 07030035 DP, Pro-Med Lane
Holiday Inn, and Docket No. 07070009 ADCS, 1-loliday Inn at Pro-Med Lane (is there anything more. is that
it?)"
Leo.Dierekman:
"We have a Motion to Deny, do we have:a second?"
Jay Dorman:
"Second"
Leo Diercktnan:
"We.have a motion and a second to deny this matter; all those in favor of denial, please raise your hand.
(Counting) Seven in favor, any against....obviously not...,S o, ' e have approved the Motion to Deny. Sorry
for the confusion---it is 7-0 to approve the denial. Any further business?" Motion to adjourn?
Jay Dorman:
"Motion to Adjourn"
Carol Schleif
"Second"
Lea,D iPtekttlail:
All those in favor Say"Aye, apposed? Hearing None, meeting adjomed. Thank you very much
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