Posted by: Patricia Salkin | July 27, 2020

NJ Superior Court Affirms Denial of Open Public Meetings Act Claim

This post was authored by Matthew Loescher, Esq.

The case arose from a hearing of the Edison Township Zoning Board of Adjustment to consider the development application filed by Markim Developers, LLC, which sought a use and various bulk variances to construct two, four-family residential buildings, as well as preliminary and final site plan approval. The Board approved the application, and, at its April 30, 2019 meeting, adopted a resolution reflecting its approval. Plaintiff, Edison Board of Education (“BOE”), filed a complaint in lieu of prerogative writs. The Law Division judge rendered an oral opinion dismissing the complaint with prejudice. 

At the outset, the court noted that the BOE’s generalized claim of harm caused by the possibility of students being added to an already overcrowded school district was insufficient to make the BOE an “interested party,” entitled to litigate its claim under the Municipal Land Use Law (“MLUL”). 

As to the BOE’s allegation that the April 30 meeting violated the Open Public Meetings Act (“OPMA”), the record reflected that the Board’s acting secretary’s certification included a copy of the February 2019 published annual notice of the Board’s anticipated meetings in 2019. The notice included “regular” and “special” meetings, and the April 30 meeting was listed as a special meeting. Therefore, the court found the Board did not violate the OPMA by failing to provide public notice of the meeting’s agenda at least forty-eight-hours in advance, because the Board provided adequate notice of the April 30 meeting pursuant to N.J.S.A. 10:4-18. Additionally, there was nothing in the record that supported a conclusion that the Board’s use of an annual notice that included regular and special meetings was “a subterfuge to permit it to act without adequate public notice”, or that the omission of the memorializing resolution from the posted agenda “was intentional and … designed to deceive the public.” Accordingly, the Law Division’s holding was affirmed. 

Edison Board of Education v Zoning Board of Adjustment of the Township of Edison, 2020 WL 419696 (NJ App. 7/22/2020)

This post was authored by Matthew Loescher, Esq.

Gregory and Lea Ann Saul owned property in Clear Lake, Cerro Gordo County. Although local ordinances required a six-foot side yard setback, on the west side of the Sauls’ property a patio came within twenty-one inches of the lot line. In 2018, the Cerro Gordo County Planning and Zoning Administrator informed the Sauls they were in violation of a county zoning ordinance because they had not obtained a permit prior to building the pergola on their patio. The Sauls then filed a zoning permit application, but the Administrator denied the permit because the pergola was too close to the west side lot line. The Sauls appealed the Administrator’s decision to the Cerro Gordo County Zoning Board of Adjustment, and sought a variance. 

At the hearing, the Administrator stated he had not heard any complaints from the neighbors. Additionally, no one appeared to contest the Sauls’ request for a variance. The Board received evidence from the contractor that the patio and the posts for the pergola were in place before he built the pergola. The Board approved the variance, and Earley – a neighboring property owner – filed a petition for writ of certiorari, claiming the Board’s approval of the variance was improper and illegal. The Sauls filed a motion to intervene, which was granted by the district court. The district court annulled the writ, and Earley appealed. 

The district court determined there was substantial evidence to support a finding by the Board that “the Sauls could not fully utilize their side yard area, which would diminish the value of the property.” Specifically, members of the Board noted there was not room to walk between the preexisting patio and the fence on the edge of Earley’s property before the pergola was built. Although the pergola did not alter this, it allowed the Sauls to fully use the patio. The record further reflected that no evidence was presented at the hearing concerning when the patio was built, and Earley had not raised a complaint about the patio. Furthermore, although the Sauls’ pergola was located close to the side-yard lot line, Earley’s residence had “a significant separation from the structure,” according to the Administrator. Accordingly, the court found there was substantial evidence in the record demonstrating the Sauls’ request for a zoning variance was based upon unique circumstances. Additionally, as the patio was already present, the pergola over the patio did not create a change to the character of the neighborhood. The court therefore affirmed the decision of the district court. 

Earley v Board of Adjustment of Cerro Gordo County, 2020 WL 4201790 (IA App. 7/22/2020)

This post was authored by Matthew Loescher, Esq.

In this case, Elizabeth Carruth, Matthew Tietz, Janis Nasseri, Judith Kendler, and Stephen Palma, residents and qualified voters of the City of Plano, appealed the summary judgment in favor of the city secretary of the City of Plano in their suit seeking to compel the City Secretary to present a citizen’s referendum petition concerning the Plano Tomorrow Comprehensive Plan to the Plano City Council. 

The City Secretary first argued that section 213.003 impliedly withdrew comprehensive development plans from the field of initiative and referendum by mandating procedural requirements, including a public hearing and review by the planning commission, before cities can act on such plans. The court rejected this argument, finding it ignored that the statute also allowed a municipality to bypass the procedures set forth in subsection (a) and adopt other procedures in its charter or by ordinance. As such, the legislature did not limit the power of home-rule municipalities to adopt comprehensive plans. Thus, it did not indicate with “unmistakable clarity” its intent to withdraw the voters’ retained power to invoke the referendum process with respect to such plans. 

The court next found that the legislature’s enactment of section 211.015 “recognized the distinction between the public’s right to vote on land-planning issues and a right to challenge individual zoning ordinances when vested property rights are implicated.” The court further determined that the zoning statutory scheme, which imposed extensive procedural mandates, conflicted with the public’s initiative or referendum power, and did not apply to comprehensive plans. In reaching this decision, the court noted that the legislature, in enacting Chapter 213 of the local government code, did not with “unmistakable clarity” withdraw comprehensive plans from the field in which the referendum process was operative.

 Having held that neither the Charter nor the general law had withdrawn comprehensive plans – either expressly or implicitly – the court reversed the trial court’s decision granting the City Secretary summary judgment and denying appellants’ summary judgment motion. 

Carruth v Henderson, 2020 WL 4197056 (TX App. 7/22/2020)

This post is from the US DOJ Religious Freedom in Focus Newsletter, July 2020

On June 19, the Department of Justice filed a lawsuit alleging that Stafford County, Virginia, violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by enacting overly restrictive zoning regulations prohibiting an Islamic organization from developing a religious cemetery on land it had purchased for that purpose.

The complaint, filed in the Eastern District of Virginia, alleges that the county passed an ordinance in 2016 that blocked the All Muslim Association of America from developing an Islamic cemetery on a 29-acre parcel of land that it owns. When the association bought the property, it complied with all of the state and local requirements for use as a cemetery. But after learning of the association’s plans, the county amended its ordinance to require that cemeteries be no closer than 900 feet from private wells and certain types of streams, thus preventing the association from using its property as a cemetery. The United States’ complaint alleges that this requirement is far more restrictive than the Virginia Department of Health’s 100-foot distancing standard, has no legitimate health justification, imposes a substantial burden on the association’s religious exercise, and is not narrowly tailored to achieve a compelling governmental interest.

The complaint seeks injunctive relief, including a court order that the county allow the association to build its cemetery in conformity with the prior ordinance.


This post was authored by Matthew Loescher, Esq.

In May 2017, respondent Town Board of the Town of Sand Lake adopted Local Law No. 4, which included a new zoning map and revised zoning districts and allowed mining on properties with existing permits. In September 2017, Troy Sand and Bonded Concrete commenced the first combined proceeding pursuant to CPLR article 78 and an action for declaratory judgment to annul the Town Board’s enactment of Local Law No. 4. Hoffay, Holser, Gardner, Hastings, Hoffay Farm, Harvest House and Antfil and Rifenburg commenced the second and third combined proceedings pursuant to CPLR article 78 and actions for declaratory judgment – seeking similar relief. This case was an appeal from a judgment of the Supreme Court, which dismissed petitioners’ applications.

The taxpayer petitioners first asserted that Local Law No. 4 should be declared null and void because it was adopted in the absence of a valid comprehensive plan, since the plan used by the Town Board was outdated and effectively invalid. They further argued that Local Law No. 4 lessened diversity of housing options, eliminated affordable housing options, and imposed substantial burdens on existing farms. The record reflected that the Town Board adopted the present Comprehensive Plan in 2006, after preparing a generic environmental impact statement (“GEIS”). This plan recommended periodic review, so the Town appointed a committee that was charged with regularly reviewing the plan. Additionally, the Town Board did not rely solely on the GEIS in its “hard look” assessment. Instead, the Town Board completed a full and extensive review and indicated that no significant environmental impacts would result from the adoption of Local Law No. 4. Specifically, the Town Board determined that the enactment of Local Law No. 4 would have no significant impact on air quality, water quality, traffic, noise, solid waste or increased flooding/draining because the updates and amendments did not significantly change or establish new zones or permit new land uses that would create any such impact.

As to SEQRA, paragraph (C) of § 250–99 of Local Law No. 4 required that all applications to create a Natural Resource Extraction Planned Development District would be classified as type 1 and would require an environmental impact statement. The court noted that SEQRA provides clear, if extensive, procedures for compliance thereto, and strict compliance is mandatory. Furthermore, SEQRA procedures call for the naming of a lead agency and then for said agency to classify the action, and ultimately issue either a positive declaration (requiring an environmental impact statement) or a negative declaration (not requiring an environmental impact statement). Moreover, paragraph (G) of § 250–99 of Local Law No. 4 prohibited the ingress, egress, and transport of minerals on Town roads. As the court found that this section of Local Law No. 4 usurped powers reserved under SEQRA, it was determined to be facially flawed and, thus needed to be annulled.

The taxpayer petitioners next argued that Local Law No. 4 eliminated affordable housing options for socioeconomically challenged residents and migrant workers, claiming that mobile homes were eliminated as a permitted use in agricultural districts. The court rejected this contention, finding Local Law No. 4 expressly provided for the permitted use of mobile homes in the residential agricultural district. Since there was no evidence in the record that people of low or moderate income were excluded from housing, the Supreme Court’s dismissal of the taxpayer petitioners’ cause of action was affirmed, and the constitutionality of Local Law No. 4 was upheld.

Troy Sand & Gravel Co v Town of Sand Lake, 2020 WL 421033 (NYAD 3 Dept 7/23/2020)

This post was authored by Matthew Loescer, Esq.

In 2016, the Zoning Board of Appeals of the Village of Upper Nyack denied five area variances the petitioner requested as part of his application to subdivide his property. Following this, the petitioner commenced this CPLR article 78 proceeding to review that determination. The Supreme Court granted his amended petition and remanded the matter to the ZBA to grant the petitioner’s application for those area variances. The ZBA appealed that decision in this case. 

At the ZBA’s request, the Village of Upper Nyack Planning Board, as the lead agency under the State Environmental Quality Review Act, directed the petitioner to complete additional forms and address specific issues of concern to the ZBA: including whether the proposal would negatively impact views from neighboring properties and views of the neighborhood from the Hudson River. The Planning Board issued a negative declaration, finding that the proposal would not have a significant adverse impact on the environment. Despite the Planning Board’s extensive environmental review of the petitioner’s proposal, the ZBA held that the area variances at issue in this appeal were substantial, and that granting them would produce an undesirable change in the character in the neighborhood. The ZBA did not, however, explain its departure from the Planning Board’s determinations. Moreover, the record reflected that the additional evidence before the ZBA, consisting of the claims of ZBA members and the petitioner’s neighbors that the variances at issue would adversely impact views and property values, were conclusory and uncorroborated by empirical data. Accordingly, the court affirmed the Supreme Court’s determination that the ZBA’s denial of five of the petitioner’s requested area variances lacked a rational basis.

 Simon v Englert, 2020 WL 4197056 (NYAD 2 Dept/ 7/22/2020)

This post was authored by Caleb Huegel, JD

  • Under ORS 197.312(5)(a), local governments may subject ADUs to reasonable local regulations relating to siting, design, or both. Such regulations need not relate to both siting and design in order to be permissible.
  • Under ORS 197.312(5)(a), local regulations relate to “siting” if they specify the location of an ADU on an individual lot, but not if they describe the placement of ADUs within a larger area, such as an entire residential zone.

In 2018, petitioner submitted a zone-verification request to determine whether an accessory dwelling unit (ADU) was permitted on its property, which was developed with a single-family dwelling and accessible only via an alleyway. The city concluded an ADU was not permitted on petitioner’s lot due to a Eugene Code (EC) provision prohibiting ADUs on alley-access lots. Petitioner appealed the city’s decision to LUBA, arguing the city failed to apply ORS 197.312(5)(a), which requires cities and counties over a certain size to allow “at least one [ADU] for each detached single-family dwelling, subject to reasonable local regulations relating to siting and design.” LUBA agreed with petitioner and remanded the city’s decision. Later that year, petitioner submitted another zone-verification request which the city again denied, this time concluding petitioner’s proposed ADU did not qualify as an ADU under ORS 197.312(5). Petitioner again appealed the city’s decision to LUBA, which agreed with petitioner that its proposed ADU did qualify under the statute.

On remand, petitioner asked the city to identify EC provisions that it considered applicable to petitioner’s proposed ADU. The city identified 11 standards that effectively precluded petitioner from building an ADU. Petitioner appealed to LUBA once more, arguing 6 of those standards did not relate to “siting and design” and therefore could not be imposed by the city under ORS 197.312(5)(a). LUBA agreed with respect to 4 of the standards, which (1) prohibited ADUs on alley-access lots, (2) required a minimum lot-size for ADUs, (3) required minimum lot-dimensions for ADUs, and (4) imposed occupancy limits for ADUs. While the city argued those standards related to “siting” because they related to “where in each of the city’s residential zones ADUs are allowed based on factors such as traffic, livability, and existing density,” LUBA, relying on the dictionary definition of the word “site,” agreed with petitioner that the standards did not relate to “siting” because they did not “specify the location of an ADU on a site.”

The city appealed LUBA’s decision to the Court of Appeals (COA). The COA first concluded that, while ORS 197.312(5)(a) requires that regulations relate to “siting and design,” it uses the word “and” disjunctively. Thus, local governments may subject ADUs to reasonable local regulations relating to siting, design, or both—that is, ADU regulations need not relate to both siting and design in order to be permissible.

The city argued that, because “siting” has a technical meaning in the land use arena, and because various statutes use the word “siting” to describe the placement of things within a larger area rather than on an individual lot, LUBA erred in relying solely on the dictionary definition. While the COA agreed with the city that “siting” could refer to either concept, and that both possibilities were consistent with the dictionary definition of “site,” the COA concluded the context of “siting” supported LUBA’s interpretation.

First, the COA noted that ORS 197.312(5)(a) requires cities and counties to allow at least one ADU “for each detached single-family dwelling,” which is consistent with an “individual lot” view of siting, and that the city’s interpretation would effectively read this one-to-one allowance ratio out of the statute. And while the city’s interpretation could plausibly allow cities to prohibit ADUs on some single-family lots, so long as the total ratio of ADUs to single-family dwellings in the entire zone remained one-to-one, the COA concluded that interpretation was unlikely because it would be impractical to apply. Although the city argued that more Oregon statutes used “siting” to refer to “siting” within a larger area than used it to refer to limitations on individual lots, the COA found that argument unpersuasive since it did not negate the fact that “siting” could refer to either concept and since it was unsurprising that the legislature would tend to concern itself with overall planning and siting within larger areas. Finally, the COA concluded LUBA’s interpretation was most consistent with the legislature’s purpose of increasing the availability of affordable housing, since the city’s interpretation could allow cities to effectively prohibit ADUs in most areas through minimum lot sizes and the like.

The city also argued that LUBA’s interpretation gave no meaning to the words “reasonable” and “relating to” in the statute, and that the fact that the legislature subsequently amended ORS 197.312(5) to prohibit owner-occupancy and off-street parking requirements for ADUs indicated that it considered such requirements to be “siting” regulations. Because the city incorrectly assumed that all regulations regarding where ADUs are placed on individual lots are necessarily reasonable; because LUBA merely focused on whether the regulations at issue related to siting at all, and not with how directly they must relate to it; and because the fact that the legislature wanted to prohibit owner-occupancy and off-street parking requirements quickly does not necessarily mean that it considered them to be “siting” regulations, the COA rejected each of these arguments. Because LUBA did not err in its interpretation of ORS 197.312(5)(a), and because the city conceded that, if LUBA were correct, none of the 4 standards at issue related to “siting,” LUBA’s decision was AFFIRMED.

Kamps-Hughes v. City of Eugene, 305 Or App 224 (2020)

Posted by: Patricia Salkin | July 20, 2020

Housing for Diversity: Ending Segregation Through Zoning

The Planning Law Division of the American Planning Association is hosting a webinar on Housing for Diversity: Ending Segregation Through Zoning

Thursday, July 30, 2020
12:00 p.m. – 1:30 p.m. CT

CM I 1.50 I Law
CLE 1.50 through Illinois State Bar

In 1974, the Supreme Court declared it constitutional for a locality to limit zoning districts to detached homes occupied by traditional, blood-related families.  Now, nearly 50 years later, the viability and fairness of that ruling is debatable as the effects of race-, ethnic-, and income-segregated housing are laid bare in recent national events, increasing numbers of people choose nontraditional living arrangements, sharing economy platforms such as AirBnB offer seemingly unlimited opportunities for communal living, and traditional forms of housing are becoming increasingly unaffordable for many people.  This panel of legal and policy experts will address the ways in which local governments can and should be modernizing zoning regulations to accommodate inclusion and modern living arrangements, with an eye toward achieving greater access to and fairness in housing.  In addition to developing policy solutions, speakers will offer specific recommendations for code drafting and other regulatory programs.

Speakers include Sara Bronin, Esq., Lisa Alexander, Esq., Kellen Zale, Esq., and Brian Connolly, Esq.

To Register:

This post was authored by Edward J. Sullivan, Esq.

 Bridge Aina Le’a, LLC, v. Hawai’i Land Use Commission, Nos. 18-15738 and 18-15817 (9th Cir., February 19, 2020) was a landowner equal protection and civil rights challenge to a reversion of 1060 acres from a conditional urban to its prior agricultural category.  Plaintiff was one of the landowners, who challenged the reversion administratively in the state’s Land Use Commission and thereafter brought suit in state court, in which a jury found an unconstitutional taking. The federal trial court received the jury verdict, awarded damages of $1 and denied the State’s post-judgment motion for Judgment as a Matter of Law (JMOL). Also, before the Court was a question of whether Plaintiff’s Equal Protection claim could be heard in view of an adverse state court decision on a similar claim.


The reclassification was the culmination of twenty-two years in which various landowners made representations to develop the site. Under Hawai’i law, Defendant Commission had jurisdiction to reclassify lands from an agricultural to an urban category and to impose conditions.  In this case, the Commission’s conditions, imposed in 1987, required the landowner to make 60% of the 1,656 units permitted affordable, but did not set any deadlines or impose penalties.  That number was reduced to 1000 units in 1989 and a third order in 1991 imposed a reversion condition if the land were not developed in accordance with the landowner’s representations.  The land was sold in 1999 to an LLC which in 2005 sought to reduce the number of affordable units to 385; however, the Commission required that all affordable units must have occupancy permits by November 17, 2010. When there was little site activity, the Commission in December 2008 entered an order to show cause why the reversion should not occur. While proceedings were pending, the landowner reported a transaction to sell the lands; however, the State Office of Planning said the November 2010 deadline could not be met and advocated for reversion, which the Commission approved on a voice vote, which was never reduced to a formal order.  The purchaser asked the Commission to stay its proceedings, which the Commission did, but required 16 affordable units to be constructed by March 31, 2010. Those units were constructed, but not habitable, as they lacked water, sewer, electricity and paved access. The Commission reopened the Order to Show Cause proceedings, at which point the sale failed and the Commission approved the reversion in 2011.


On the landowner’s appeal, the circuit court found violations of state statutory requirements and state and federal requirements and vacated the reversion order. On appeal, the Hawai’i Supreme Court found no constitutional violations, but did affirm the decision on the statutory grounds and remanded the matter to the Commission.


Plaintiff filed a complaint in state court for declaratory, injunctive, and monetary relief and raised federal and state constitutional due process, equal protection, and taking claims and seeking $35.7 million in damages, measured by the value of the land in an urban classification. The State removed the case to federal court, which dismissed the due process and equal protection claims, based on the state decision and found the commissioners had quasi-judicial immunity.  The case proceeded to trial only on regulatory taking claims, either for denial of all viable economic use under Lucas for South Carolina Coastal Commission, 505 U.S. 1003 (1992) or under the formula provided in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). After trial, the judge denied the JMOL and granted nominal damages for a taking.


On appeal, the Ninth Circuit reviewed the JMOL on a de novo basis and turned first to the Lucas claim, in which it upheld the dismissal because the land retained substantial residual value in its agricultural use classification and that the classification still allowed Plaintiff to use the land in economically beneficial ways, as Plaintiff’s expert admitted. Anything less than a total loss of productive value must be judged in light of Penn Central.


As to the Penn Central claim, the Ninth Circuit found that, although such claims were decided on an ad hoc basis, a jury could not have reasonably found for Plaintiff. Regarding the economic impact of the reversion on Plaintiff, the evidence presented by Plaintiff was based on a voice-vote on an order that was never effective for another two years and cannot be used as a comparison point.  The Court criticized the utility of the appraisal evidence in many other respects as well.  Moreover, Plaintiff’s evidence that a sale on a portion of the land fell through because the Commission’s voice vote interfered with its ability to borrow money to fund the purchase was problematical, because the reversion did not actually occur for another two years and the default occurred even before the Commission’s voice vote. In any event, the voice vote did not affect Plaintiff’s “reasonable investment-backed expectations” under Penn Central, as that factor focuses upon the regulatory environment when the property was acquired, which was during the controversy over whether the landowner would provide the required 385 affordable housing units, when the 1991 reversion condition was known. There was no reasonable expectation that the Commission would not enforce its own conditions. Finally, as to the “character of the governmental action” factor, the Ninth Circuit found no reason to find a taking, even if this factor were not fulfilled. Although the reversion order was remanded by the Hawai’i Supreme Court, that fact alone has no constitutional significance in this case, especially when that court found no unconstitutionality in the reversion proceedings. On balance, the Penn Central claim failed.  The Ninth Circuit concluded no taking had occurred:


* * *Even if we assume that the character of the government’s action weighs in favor of finding a taking, the first and second factors weigh decisively against such a finding. Because [Plaintiff’s] own evidence established a diminution in value that is proportionately too small and because the reversion did not interfere with [Plaintiff’s] reasonable investment-backed expectations for the land, no reasonable jury could conclude that the reversion effected a taking pursuant to the Penn Central analysis.


Moreover, the Ninth Circuit found, in the light of the final judgment on the merits on Plaintiff’s Equal Protection claim in state court, that claim could not be raised in a federal court under the doctrine of issue preclusion.  The issues were identical and Plaintiff had a full and fair opportunity to litigate.  That is all that is required.


The Ninth Circuit concluded that the trial court should have granted the state its JMOL, that there was no taking under either Lucas or Penn Central and that the dismissal of the Equal Protection claim should have been affirmed.


It is possible for a state agency to be liable under constitutional and statutory law for its classification decisions. This case shows the necessity of understanding case law requirements of timelines with respect to property acquisition in a Penn Central type case and finality of decisions.  Economic impacts on a plaintiff may be significant without being unconstitutional and much may ride on the “reasonable investment-backed expectation” factor that requires analysis of the economic and regulatory environment at the time of purchase. While a landowner might have made a fortunate purchasing decision, she might also have made an uncertain bet on future appreciation – a bet she cannot expect the state to cover.


Bridge Aina Le‘a, LLC, v. Hawai’i Land Use Commission, Nos. 18-15738 and 18-15817 (9th Cir., February 19, 2020).



This post was authored by Matthew Loescher, Esq.

This case arose following the Supreme Court of New York County’s decision to grant the petition to annul a determination of respondent The Council of the City of New York, disapproving petitioner’s application for a revocable consent to operate an unenclosed sidewalk café, ordering the Council to grant petitioner a revocable consent to operate an unenclosed sidewalk café, and denying respondent’s cross motion to dismiss the petition.

The court found, as an initial matter, that the Council reserved for itself the authority to either grant or deny a petition for revocable consent without delineating standards for the exercise of its own discretion, As such, the Council was not bound by the standards set forth in the New York City Zoning Resolution addressing unenclosed sidewalk cafés which circumscribed the Department of Consumer Affairs’ review. The court further determined that the Council providently exercised its discretion in denying the petition based upon evidence concerning problems specific to the petitioner and location, rather than based on generalized community objections to sidewalk cafés. Accordingly, the Council’s determination disapproving the petition for a new revocable consent to establish, maintain and operate an unenclosed sidewalk café had a rational basis in the record and was not arbitrary and capricious.

Maxver, LLC v Council of City of New York, 2020 WL 4005871 (NYAD 1 Dept. 7/16/2020)

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