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  "name_abbreviation": "APAC-Atlantic, Inc. v. City of Salisbury",
  "decision_date": "2011-04-05",
  "docket_number": "No. COA10-591",
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    "judges": [
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    "parties": [
      "APAC-ATLANTIC, INC., Petitioner v. CITY OF SALISBURY, CITY OF SALISBURY ZONING BOARD OF ADJUSTMENT, and DAVID PHILLIPS, in his capacity as Zoning Administrator, Respondents"
    ],
    "opinions": [
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        "text": "MARTIN, Chief Judge.\nPetitioner APAC-Atlantic, Inc. appeals from the superior court\u2019s order affirming the decision of respondent City of Salisbury Zoning Board of Adjustment (\u201cthe Board\u201d) to deny approval of petitioner\u2019s site plan for renovation of its asphalt plant. The following evidence was presented at the Board meeting.\nPetitioner operates a hot-mix asphalt plant on its property located at 1831 Jake Alexander Boulevard West in Salisbury, North Carolina. In March 2001, petitioner\u2019s property was re-zoned from Heavy Industrial (M-2) to General Business (B-6). Petitioner\u2019s property is also located within a General Development-A Overlay district (GD-A). The re-zoning made petitioner\u2019s use of the property as an asphalt plant a non-conforming use pursuant to section 4.02 of the then-applicable City of Salisbury Zoning Ordinance (\u201cthe Zoning Ordinance\u201d).\nIn March 2007, petitioner sought approval to modify its facility and requested a zoning interpretation from David Phillips, the City of Salisbury Zoning Administrator. Petitioner\u2019s proposed renovations to its facility include replacement of the bag house, the materials silos, and the conveyer system. Currently, petitioner\u2019s plant operates as an \u201cold batch plant\u201d which \u201cmixes up one batch of hot mix at a time.\u201d The proposed renovations involve replacing batch equipment with continuous equipment which would \u201cmaintain[] a continuous flow of asphalt throughout the operating period.\u201d In a letter dated 28 March 2007, the Zoning Administrator provided an interpretation of section 7.01 of the Zoning Ordinance, which governed non-conforming uses of property, and, based on the application of the ordinance to the information before him, allowed petitioner to \u201cproceed with the design of the facility.\u201d In August 2007, as was required by sections 16.02 and 16.03 of the Zoning Ordinance, petitioner submitted a site plan describing its proposed modifications for approval by the Zoning Administrator. By letter dated 19 December 2007, the Zoning Administrator interpreted section 7.01 of the Zoning Ordinance and denied petitioner\u2019s request for approval of the site plan.\nIn December 2007, the City of Salisbury enacted the Land Development Ordinance (\u201cthe LDO\u201d), which, effective 1 January 2008, replaced the Zoning Ordinance. Section 13 of the LDO regulates non-conforming uses of property. Section 13.1, titled \u201cPurpose and Applicability,\u201d provides, in relevant part that,\n[m]any nonconformities may continue, but the provisions of this section are intended and designed to limit substantial investment in nonconformities and to bring about eventual elimination and/or lessen their impact upon surrounding conforming uses in order to preserve the integrity of the area in which it is located.\nCity of Salisbury, N.C., Land Development Ordinance, \u00a7 13.1 (2008). Section 13.3, titled \u201cNonconforming Uses,\u201d provides, in relevant part that,\nB. A nonconforming use shall not be expanded, changed or enlarged, nor shall such a nonconforming use be enlarged by additions to the structure in which the nonconforming use is located (either attached or detached). Any occupation of additional lands beyond the boundaries of the lot on which the nonconforming use is located is prohibited.\nC. A nonconforming use may make necessary alterations to enhance the health, safety, and general welfare of the community by mitigating environmental impacts to air, ground, or water quality; however, these necessary alterations shall not expand or enlarge the nonconforming use.\nLDO \u00a7 13.3(B)-(C).\nBy letter dated 20 March 2008, petitioner requested review by the Board of the Zoning Administrator\u2019s decision and submitted the required application and fee. However, in April 2008, the Zoning Administrator informed petitioner that it would need to resubmit its site plan in order to be heard at the Board\u2019s May 2008 meeting. Petitioner complied with the Zoning Administrator\u2019s instruction by letter dated 7 April 2008 and, by letter dated 18 April 2008, the Zoning Administrator again denied approval of the site plan based on the same grounds as those cited in his 19 December 2007 letter. The Board heard petitioner\u2019s appeal at its 12 May 2008 meeting, concluded that the LDO governed the appeal, applied the provisions of the LDO, and affirmed the Zoning Administrator\u2019s decision.\nIn July, the Board issued a written decision documenting its 12 May 2008 decision, within which it concluded the following, in relevant part:\n7.....[T]he Proposed Modifications would \u201cchange\u201d the Applicant\u2019s non-conforming use at the facility in violation of Section 13.3(B) of the LDO. The evidence showed that the Proposed Modifications would change the use in at least the following ways:\n(a) the process used to make asphalt would change from a batch process to a continuous process,\n(b) the maximum operating capacity of the plant would change, and\n(c)the capacity to recycle asphalt would change.\n8.... [T]he Proposed Modifications do not meet the requirements of Section 13.3(C) of the LDO for each of the following independent reasons:\n(a) The Applicant has failed to demonstrate that alterations in the Proposed Modifications are \u201cnecessary.\u201d In particular, the Applicant has not identified any Federal, State, or local rule, regulation or other requirement mandating the Proposed Modifications;\n(b) The Proposed Modifications would impermissibly \u201cexpand\u201d or \u201cenlarge\u201d the Applicant\u2019s non-conforming use at the facility in that the Proposed Amendments would:\ni. expand the maximum operating capacity of the plant;\nii. expand the capacity of the plant to recycle asphalt;\niii. enlarge the commercial viabilityof the plant by reducing future operating costs.\nIn August 2008, petitioner filed a petition for writ of certiorari to Rowan County Superior Court, requesting review of the Board\u2019s decision pursuant to N.C.G.S. \u00a7 160A-388(e2). In November 2009, the superior court conducted a hearing where it heard testimony and arguments from counsel and, on 3 December 2009, entered an order and memorandum of decision affirming the Board\u2019s decision. Petitioner appeals from that order.\n\u201cWhen a superior court grants certiorari to review the decision of a board of adjustment, the superior court sits as an appellate court, and not as a trier of facts.\u201d Overton v. Camden Cty., 155 N.C. App. 391, 393, 574 S.E.2d 157, 159 (2002) (internal quotation marks omitted); see N.C. Gen. Stat. \u00a7 160A-388(e2) (2009) (providing for appellate review of zoning board of adjustment decisions in the superior court). The superior court\u2019s review is limited to determinations of whether (1) the Board committed any errors of law; (2) the Board followed lawful procedure; (3) the petitioner was afforded appropriate due process; (4) the Board\u2019s decision was supported by competent evidence in the whole record; and (5) the Board\u2019s decision was arbitrary and capricious. Overton, 155 N.C. App. at 393, 574 S.E.2d at 159. \u201cIf a petitioner contends the Board\u2019s decision was based on an error of law, \u2018de novo\u2019 review is proper. However, if the petitioner contends the Board\u2019s decision was not supported by the evidence or was arbitrary and capricious, then the reviewing court must apply the \u2018whole record\u2019 test.\u201d Four Seasons Mgmt. Servs., Inc. v. Town of Wrightsville Beach, \u2014 N.C. App. \u2014, \u2014, 695 S.E.2d 456, 462 (2010). In applying the whole record test, \u201c[t]he trial court examines the whole record to determine whether the agency\u2019s decision is supported by competent, material, and substantial evidence.\u201d Cumulus Broadcasting, LLC v. Hoke Cty. Bd. of Comm\u2019rs, 180 N.C. App. 424, 426, 638 S.E.2d 12, 15 (2006). \u201c[T]he trial court may not weigh the evidence presented to the agency or substitute its own judgment for that of the agency.\u201d Id. (internal quotation marks omitted). \u201c[W]hen sitting as an appellate court to review a [decision of a quasi-judicial body], [the trial court] must set forth sufficient information in its order to reveal the scope of review utilized and the application of that review.\u201d Four Seasons,-N.C. App. at-, 695 S.E.2d 462-63 (alterations in original) (internal quotation marks omitted). \u201cAn appellate court\u2019s review of the trial court\u2019s zoning board determination is limited to determining whether the superior court applied the correct standard of review, and to determining] whether the superior court correctly applied that standard.\u201d Overton, 155 N.C. App. at 393-94, 574 S.E.2d at 160. Finally, we note that \u201c[n]onconforming uses . . . are not favored under the public policy of North Carolina.\u201d Jirtle v. Bd. of Adjustment for Biscoe, 175 N.C. App. 178, 181, 622 S.E.2d 713, 715 (2005). \u201cIn accordance with this policy, zoning ordinances are strictly construed against indefinite continuation of non-conforming uses.\u201d Huntington Props., LLC v. Currituck Cty., 153 N.C. App. 218, 223, 569 S.E.2d 695, 700 (2002) (internal quotation marks omitted).\nIn its petition for writ of certiorari to the superior court, petitioner contended the Board erred by concluding that the new equipment would expand or enlarge the non-conforming use of the property. The superior court\u2019s order states that it applied \u201cde novo and \u2018whole record\u2019 review\u201d to the Board\u2019s \u201cdeterminations regarding \u2018expansion\u2019 and \u2018enlargement\u2019 \u201d because those determinations were \u201cbased on [the Board\u2019s] interpretation of the language of the LDO and [the Board\u2019s] factual determinations regarding the effects of the proposed modifications.\u201d We agree with the superior court that application of whole record and de novo review to separate components of the Board\u2019s decision that the proposed modifications would expand or enlarge the non-conforming use was appropriate. See generally Land v. Village of Wesley Chapel,-N.C. App.-,-, 697 S.E.2d 458, 461 (2010) (noting that a court may properly employ both de novo and the whole record test in a specific case so long as the standards are applied separately to discrete issues); Malloy v. Zoning Bd. of Adjustment of Asheville, 155 N.C. App. 628, 630, 573 S.E.2d 760, 762 (2002) (applying whole record and de novo review to the Board\u2019s determinations that a new tank was a \u201cstructure\u201d as defined in the applicable ordinance). Thus, we proceed to determine whether the superior court correctly applied these standards.\nOn appeal to this Court, petitioner contends the superior court erred in concluding that the Board correctly interpreted section 13.3(C) of the LDO. We disagree.\nPetitioner contends the Board erred by concluding that the proposed modifications would expand or enlarge the non-conforming use pursuant to section 13.3(C) by expanding the maximum operating capacity of the plant. Testimony from the Board meeting indicated that the current permitted production capacity of the plant is 180 tons of asphalt per hour and that the permitted production capacity of the plant with the new equipment would be 300 tons of asphalt per hour. Larry Brickey, President of Thompson-Arthur, a division of APACAtlantic, Inc., testified that this increas\u00e9 would allow the plant to run at capacity with shorter hours.\nOur Courts have consistently recognized that an increase in the scope, the scale, or the extent of a non-conforming use constitutes an enlargement of a non-conforming use. See In re O\u2019Neal, 243 N.C. 714, 723, 92 S.E.2d 189, 195 (1956); Malloy, 155 N.C. App. at 632, 573 S.E.2d at 763; Huntington, 153 N.C. App. at 227, 569 S.E.2d at 702; Kirkpatrick v. Village Council for Pinehurst, 138 N.C. App. 79, 86, 530 S.E.2d 338, 343 (2000). In Kirkpatrick, this Court held that the construction of additional campsites within the geographic area of an existing campground, a non-conforming use, impermissibly enlarged the scope of the non-conforming use under the applicable ordinance. Id. at 87, 530 S.E.2d at 343. Similarly, in O\u2019Neal, our Supreme Court held that an ordinance providing that a non-conforming use shall not be \u201cenlarged or extended\u201d confined the non-conforming use \u201cto its then scale of operation.\u201d 243 N.C. at 723, 92 S.E.2d at 195. In O\u2019Neal, evidence indicated that a proposed new nursing home would only have the capacity to accommodate twenty-four patients while the petitioner\u2019s current facility had previously accommodated up to twenty-seven patients. Id. at 717, 92 S.E.2d at 191. Under those circumstances, the Court held that construction of a new facility was not prohibited so long as \u201cthe size of the new facility and the scale of its operation . . . conformed] substantially to the nonconforming use existent when the . .. ordinance was adopted.\u201d Id. at 723, 92 S.E.2d at 195.\nIn the present case, the Board found that the new equipment would expand the plant\u2019s operating capacity. On appeal, petitioner does not dispute this finding. Petitioner only contends the Board\u2019s conclusion was erroneous because market demand, not operating capacity, controls the amount of asphalt the plant produces and there is no evidence that market demand would increase as a result of the proposed modifications. However, under our prior holdings, renovations resulting in the capacity for an expansion in the scope of the non-conforming use constituted an impermissible enlargement of a non-conforming use, Kirkpatrick, 138 N.C. App. at 87, 530 S.E.2d at 343, and the construction of a new building was permissible only where the new building would \u201cprovide facilities for the operation of a nursing home on substantially the same scale,\u201d O\u2019Neal, 243 N.C. at 724, 92 S.E.2d at 196 (emphasis added). Here, at least one result of the proposed modifications would be an expanded capacity to produce asphalt. Therefore, in accordance with the rationale articulated in Kirkpatrick and O\u2019Neal, an enlargement or expansion in the plant\u2019s maximum operating capacity constitutes an impermissible enlargement or expansion of the applicant\u2019s non-conforming use.\nPetitioner also asserts that the whole record lacks competent, material, and substantial evidence to support the Board\u2019s finding that the new equipment would enlarge the commercial viability of the plant by reducing future operating costs. Petitioner contends the plant\u2019s commercial viability \u201cdepends on many unanswered questions.\u201d Petitioner claims \u201cthe only thing addressed at the hearing was the longevity of the current equipment\u201d and, on this subject, directs our attention to testimony that the current equipment could continue in service \u201cindefinitely\u201d or \u201cfor the next fifty years with only very little maintenance.\u201d Alternatively, petitioner makes various assertions which essentially suggest that by considering the effect of the proposed modifications on the plant\u2019s commercial viability, the Board misinterpreted the ordinance. We disagree.\nUnder whole record review, \u201cthe trial court may not weigh the evidence presented to the agency or substitute its own judgment for that of the agency.\u201d Bellsouth Carolinas PCS, L.P v. Henderson Cty. Zoning Bd. of Adjustment, 174 N.C. App. 574, 576, 621 S.E.2d 270, 272 (2005). The trial court\u2019s review is limited to determining \u201cwhether the Board\u2019s findings are supported by substantial evidence contained in the whole record.\u201d Malloy, 155 N.C. App. at 630, 573 S.E.2d at 762. Upon our review of the whole record in this case, we find substantial evidence to support the Board\u2019s finding that the proposed modifications would \u201cenlarge the commercial viability of the plant by reducing future operating costs.\u201d\nMalcolm Swanson, Engineering Department Head at Astee, Inc., an asphalt plant manufacturer, testified that \u201ctechnology has advanced to the point where now ... as manufacturers of asphalt plants, we build only about 2% batch plants\u201d and that \u201cit really is equipment whose day has passed as far as efficiencies and emissions are concerned.\u201d He testified that the new equipment would \u201creduce[] material costs,\u201d including fuel, which, with the current equipment, is lost between batches. He testified that\n[i]t\u2019s characteristic of a batch plant to operate for short periods of time. Each start/stop cycle has a warm-up involved and [a] certain amount of wasted material involved, so when you eliminate that you eliminate a certain amount of wasted energy. Also, heat loss is an important factor in affecting the amount of fuel that\u2019s used by a process.... [H]eat loss, of course, corresponds to extra fuel usage .... Overall, fuel consumption would be expected to be reduced by about 35% ....\nHe described the new equipment as \u201cstate-of-the[-]art\u201d and the current equipment as \u201c1953[,] vintage equipment.\u201d Additionally, Mr. Brickey testified that the new equipment would enable the plant to handle orders more efficiently and that \u201cyou\u2019re going to save fuel, you are going to have better operational costs, and you are going to recoup those costs over time.\u201d In sum, the testimony indicates the new equipment would significantly decrease operating costs and enable the plant to operate more efficiently. This testimony was sufficient to support a finding that the new equipment would enlarge the plant\u2019s commercial viability. Petitioner\u2019s brief merely lists additional factors not discussed at the Board meeting that could potentially affect the plant\u2019s commercial viability. In doing so, petitioner asks this Court to re-weigh the evidence presented to the Board. We are not permitted to do so. Furthermore, there is no merit to petitioner\u2019s contention that the Board misinterpreted the ordinance by considering the plant\u2019s commercial viability. Because \u201cone of the functions of a Board of Adjustment is to interpret local zoning ordinances,\u201d we must \u201cgive some deference to the Board\u2019s interpretation of its own City Code.\u201d CG&T Corp. v. Bd. of Adjustment of Wilmington, 105 N.C. App. 32, 39, 411 S.E.2d 655, 659 (1992); see also Four Seasons,-N.C. App. at-, 695 S.E.2d at 463; Whiteco Outdoor Adver. v. Johnston Cty. Bd. of Adjustment, 132 N.C. App. 465, 470, 513 S.E.2d 70, 74 (1999). In the present case, the Board did not err by considering the plant\u2019s commercial viability in concluding that the proposed modifications would expand or enlarge the non-conforming use.\nPetitioner also contends the Board misinterpreted section 13.3(C) of the LDO by concluding that the proposed modifications would expand or enlarge the applicant\u2019s non-conforming use of the property based on a finding that the proposed modifications would \u201cexpand the capacity of the plant to recycle asphalt.\u201d Petitioner suggests the plant\u2019s capacity to recycle asphalt was irrelevant under section 13.3(C) because recycled asphalt is a \u201craw material used in the production of asphalt\u201d and \u201cthe non-conforming use in this case ... is the production of asphalt, not the use of recycled asphalt.\u201d Petitioner cites no legal authority in support of its assertion as is required by Appellate Rule 28(b)(6). See N.C.R. App. P. 28(b)(6); Rabon v. Hopkins, -N.C. App.-,-, 703 S.E.2d 181, 189 (2010) (\u201cDefendants\u2019 argument. . . cites absolutely no legal authority in violation of Appellate Rule 28(b)(6).\u201d). Moreover, we disagree that an expanded capacity to recycle asphalt was irrelevant to the Board\u2019s decision. Mr. Swanson testified at the Board meeting that petitioner\u2019s current equipment is only capable of using about 15% recycled materials, that the proposed equipment would be capable of using up to 50% recycled materials, and that the capability of the new equipment to use more recycled materials would reduce costs. Under the circumstances of this case, we disagree with petitioner that a reduction in the plant\u2019s materials costs was irrelevant to the Board\u2019s conclusion that the modifications would expand or enlarge the applicant\u2019s non-conforming use.\nPetitioner also argues that the superior court erred by concluding that the Board did not improperly impose additional requirements from section 13.1 of the LDO, the \u201cPurpose and Applicability\u201d statement, in its conclusions of law. For this argument, petitioner relies only on Guilford Financial Services, LLC v. City of Brevard, 150 N.C. App. 1, 563 S.E.2d 27 (2002) (Tyson, J., concurring in part and dissenting in part), rev\u2019d for reasons in dissent, 356 N.C. 655, 656, 576 S.E.2d 325 (2003). Because the duplexes proposed in Guilford were expressly permitted by the ordinance and complied with the minimum lot area requirement, the Board erred by denying a permit on the basis of the term \u201cunconcentrated\u201d in a statement of purpose providing that the residential district was \u201cestablished to protect areas in which the principal use of the land is for medium density single and unconcentrated two-family dwellings.\u201d Id. at 15, 17, 563 S.E.2d at 36-37 (emphasis added). Thus, \u201ca generalized statement of intent of the specifications that follow cannot be used as a basis to reject a permit that meets all the requirements.\u201d Id. at 15, 563 S.E.2d at 36 (internal quotation marks omitted).\nIn contrast, in the present case, the Board concluded that sections 13.3(B) and (C) of the LDO precluded the proposed modifications because the modifications would \u201cchange\u201d the non-conforming use in violation of section 13.3(B); were not \u201cnecessary\u201d under section 13.3(C); and would \u201cexpand\u201d or \u201cenlarge\u201d the non-conforming use in violation of section 13.3(C). In numbered paragraphs following those conclusions, the Board stated that it \u201cconsidered the[] factors [of section 13.1] when reaching the above Conclusions of Law.\u201d Because the Board affirmed the denial of the site plan on the basis that the modifications violated sections 13.3(B) and (C) of the LDO and its order demonstrates that, in reaching those conclusions, it merely considered the stated purposes in section 13.1 of the LDO, the Board did not err. See Kirkpatrick, 138 N.C. App. at 85-86, 530 S.E.2d at 342 (noting the Board\u2019s interpretation of its ordinance was \u201cin accordance with the stated intent of the ordinance \u2018not to encourage . . . continued [nonconforming] use, and to prohibit any further non-conformance or expansion thereof\u2019 \u201d (alterations in original)).\nFinally, petitioner contends section 13.3(C) is an exception to 13.3(B) and permits the proposed modifications. We disagree.\nSection 13.3(B) provides that \u201c[a] nonconforming use shall not be expanded, changed or enlarged.\u201d LDO \u00a7 13.3(B). Section 13.3(C) provides that \u201c[a] nonconforming use may make necessary alterations to enhance the health, safety, and general welfare of the community by mitigating environmental impacts to air, ground, or water quality; however, these necessary alterations shall not expand or enlarge the nonconforming use.\" LDO \u00a7 13.3(C) (emphasis added). Even accepting that petitioner\u2019s suggestion that section 13.3(C) permits changes to non-conforming uses as an exception to 13.3(B) has merit, such changes would nevertheless be impermissible under section 13.3(C) if those changes would \u201cexpand or enlarge the nonconforming use.\u201d Thus, due to our prior conclusion that the Board did not err by concluding that the proposed modifications constitute an expansion or enlargement of the applicant\u2019s non-conforming use, the proposed modifications would be impermissible.\nAffirmed.\nJudges McGEE and ERVIN concur.\n. The record indicates that section 16.02 of the Zoning Ordinance provided that a permit for excavation, construction, or alteration shall not be valid until the zoning administrator has certified that the plans, specifications or intended use conform to the provisions of the Zoning Ordinance.\n. A non-conforming use is defined as \u201c[a] use which was once a permitted use on a parcel of land or within a structure but which is now not a permitted use of that parcel or structure .. . .\u201d LDO \u00a7 18. A permitted use is defined as \u201c[a] use permitted in a given district as a permitted use and so authorized by being listed, or referenced as a permitted use, by district. . . .\u201d LDO \u00a7 18.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Nexsen Pruet, PLLC, by M. Jay DeVaney, Eric H. Biesecker, and Brian T. Pearce, for petitioner-appellant.",
      "Brooks Pierce McLendon Humphrey & Leonard, LLP, by Darrell A. Fruth and V. Randall Tinsley, for respondents-appellees."
    ],
    "corrections": "",
    "head_matter": "APAC-ATLANTIC, INC., Petitioner v. CITY OF SALISBURY, CITY OF SALISBURY ZONING BOARD OF ADJUSTMENT, and DAVID PHILLIPS, in his capacity as Zoning Administrator, Respondents\nNo. COA10-591\n(Filed 5 April 2011)\nZoning\u2014 denial of site plan renovation \u2014 impermissible expansion or enlargement of nonconforming use\nThe superior court did not err by concluding that a city zoning board of adjustment correctly interpreted section 13.3(C) of a land zoning ordinance in denying approval of petitioner\u2019s site plan for renovation of its asphalt plant. An increase in the scope, scale, or extent of a nonconforming use, namely the new equipment expanding plaintiff plant\u2019s maximum operating capacity, constituted an impermissible expansion or enlargement of the non-conforming use.\nAppeal by petitioner from order entered 3 December 2009 by Judge Lindsay R. Davis Jr. in Rowan County Superior Court. Heard in the Court of Appeals 1 December 2010.\nNexsen Pruet, PLLC, by M. Jay DeVaney, Eric H. Biesecker, and Brian T. Pearce, for petitioner-appellant.\nBrooks Pierce McLendon Humphrey & Leonard, LLP, by Darrell A. Fruth and V. Randall Tinsley, for respondents-appellees."
  },
  "file_name": "0668-01",
  "first_page_order": 676,
  "last_page_order": 685
}
