Affordable Housing Density Bonus Law

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CALIFORNIA CODES
GOVERNMENT CODE
SECTION 65915-65918

65915.  (a) When an applicant seeks a density bonus for a housing
development within, or for the donation of land for housing within,
the jurisdiction of a city, county, or city and county, that local
government shall provide the applicant incentives or concessions for
the production of housing units and child care facilities as
prescribed in this section. All cities, counties, or cities and
counties shall adopt an ordinance that specifies how compliance with
this section will be implemented.
   (b) (1) A city, county, or city and county shall grant one density
bonus, the amount of which shall be as specified in subdivision (g),
and incentives or concessions, as described in subdivision (d), when
an applicant for a housing development seeks and agrees to construct
a housing development, excluding any units permitted by the density
bonus awarded pursuant to this section, that will contain at least
any one of the following:
   (A) Ten percent of the total units of a housing development for
lower income households, as defined in Section 50079.5 of the Health
and Safety Code.
   (B) Five percent of the total units of a housing development for
very low income households, as defined in Section 50105 of the Health
and Safety Code.
   (C) A senior citizen housing development as defined in Sections
51.3 and 51.12 of the Civil Code, or mobilehome park that limits
residency based on age requirements for housing for older persons
pursuant to Section 798.76 or 799.5 of the Civil Code.
   (D) Ten percent of the total dwelling units in a common interest
development as defined in Section 1351 of the Civil Code for persons
and families of moderate income, as defined in Section 50093 of the
Health and Safety Code, provided that all units in the development
are offered to the public for purchase.
   (2) For purposes of calculating the amount of the density bonus
pursuant to subdivision (f), the applicant who requests a density
bonus pursuant to this subdivision shall elect whether the bonus
shall be awarded on the basis of subparagraph (A), (B), (C), or (D)
of paragraph (1).
   (c) (1) An applicant shall agree to, and the city, county, or city
and county shall ensure, continued affordability of all low-and very
low income units that qualified the applicant for the award of the
density bonus for 30 years or a longer period of time if required by
the construction or mortgage financing assistance program, mortgage
insurance program, or rental subsidy program. Rents for the lower
income density bonus units shall be set at an affordable rent as
defined in Section 50053 of the Health and Safety Code.
Owner-occupied units shall be available at an affordable housing cost
as defined in Section 50052.5 of the Health and Safety Code.
   (2) An applicant shall agree to, and the city, county, or city and
county shall ensure that, the initial occupant of the
moderate-income units that are directly related to the receipt of the
density bonus in the common interest development, as defined in
Section 1351 of the Civil Code, are persons and families of moderate
income, as defined in Section 50093 of the Health and Safety Code,
and that the units are offered at an affordable housing cost, as that
cost is defined in Section 50052.5 of the Health and Safety Code.
The local government shall enforce an equity-sharing agreement,
unless it is in conflict with the requirements of another public
funding source or law. The following apply to the equity-sharing
agreement:
   (A) Upon resale, the seller of the unit shall retain the value of
any improvements, the downpayment, and the seller's proportionate
share of appreciation. The local government shall recapture any
initial subsidy and its proportionate share of appreciation, which
shall then be used within three years for any of the purposes
described in subdivision (e) of Section 33334.2 of the Health and
Safety Code that promote homeownership.
   (B) For purposes of this subdivision, the local government's
initial subsidy shall be equal to the fair market value of the home
at the time of initial sale minus the initial sale price to the
moderate-income household, plus the amount of any downpayment
assistance or mortgage assistance. If upon resale the market value is
lower than the initial market value, then the value at the time of
the resale shall be used as the initial market value.
   (C) For purposes of this subdivision, the local government's
proportionate share of appreciation shall be equal to the ratio of
the initial subsidy to the fair market value of the home at the time
of initial sale.
   (d) (1) An applicant for a density bonus pursuant to subdivision
(b) may submit to a city, county, or city and county a proposal for
the specific incentives or concessions that the applicant requests
pursuant to this section, and may request a meeting with the city,
county, or city and county. The city, county, or city and county
shall grant the concession or incentive requested by the applicant
unless the city, county, or city and county makes a written finding,
based upon substantial evidence, of either of the following:
   (A) The concession or incentive is not required in order to
provide for affordable housing costs, as defined in Section 50052.5
of the Health and Safety Code, or for rents for the targeted units to
be set as specified in subdivision (c).
   (B) The concession or incentive would have a specific adverse
impact, as defined in paragraph (2) of subdivision (d) of Section
65589.5, upon public health and safety or the physical environment or
on any real property that is listed in the California Register of
Historical Resources and for which there is no feasible method to
satisfactorily mitigate or avoid the specific adverse impact without
rendering the development unaffordable to low- and moderate-income
households.
   (2) The applicant shall receive the following number of incentives
or concessions:
   (A) One incentive or concession for projects that include at least
10 percent of the total units for lower income households, at least
5 percent for very low income households, or at least 10 percent for
persons and families of moderate income in a common interest
development.
   (B) Two incentives or concessions for projects that include at
least 20 percent of the total units for lower income households, at
least 10 percent for very low income households, or at least 20
percent for persons and families of moderate income in a common
interest development.
   (C) Three incentives or concessions for projects that include at
least 30 percent of the total units for lower income households, at
least 15 percent for very low income households, or at least 30
percent for persons and families of moderate income in a common
interest development.
   (3) The applicant may initiate judicial proceedings if the city,
county, or city and county refuses to grant a requested density
bonus, incentive, or concession. If a court finds that the refusal to
grant a requested density bonus, incentive, or concession is in
violation of this section, the court shall award the plaintiff
reasonable attorney's fees and costs of suit. Nothing in this
subdivision shall be interpreted to require a local government to
grant an incentive or concession that has a specific, adverse impact,
as defined in paragraph (2) of subdivision (d) of Section 65589.5,
upon health, safety, or the physical environment, and for which there
is no feasible method to satisfactorily mitigate or avoid the
specific adverse impact. Nothing in this subdivision shall be
interpreted to require a local government to grant an incentive or
concession that would have an adverse impact on any real property
that is listed in the California Register of Historical Resources.
The city, county, or city and county shall establish procedures for
carrying out this section, that shall include legislative body
approval of the means of compliance with this section. The city,
county, or city and county shall also establish procedures for
waiving or modifying development and zoning standards that would
otherwise inhibit the utilization of the density bonus on specific
sites. These procedures shall include, but not be limited to, such
items as minimum lot size, side yard setbacks, and placement of
public works improvements.
   (e) In no case may a city, county, or city and county apply any
development standard that will have the effect of precluding the
construction of a development meeting the criteria of subdivision (b)
at the densities or with the concessions or incentives permitted by
this section. An applicant may submit to a city, county, or city and
county a proposal for the waiver or reduction of development
standards and may request a meeting with the city, county, or city
and county. If a court finds that the refusal to grant a waiver or
reduction of development standards is in violation of this section,
the court shall award the plaintiff reasonable attorney's fees and
costs of suit. Nothing in this subdivision shall be interpreted to
require a local government to waive or reduce development standards
if the waiver or reduction would have a specific, adverse impact, as
defined in paragraph (2) of subdivision (d) of Section 65589.5, upon
health, safety, or the physical environment, and for which there is
no feasible method to satisfactorily mitigate or avoid the specific
adverse impact. Nothing in this subdivision shall be interpreted to
require a local government to waive or reduce development standards
that would have an adverse impact on any real property that is listed
in the California Register of Historical Resources.
   (f) The applicant shall show that the waiver or modification is
necessary to make the housing units economically feasible.
   (g) For the purposes of this chapter, "density bonus" means a
density increase over the otherwise maximum allowable residential
density under the applicable zoning ordinance and land use element of
the general plan as of the date of application by the applicant to
the city, county, or city and county. The applicant may elect to
accept a lesser percentage of density bonus.  The amount of density
bonus to which the applicant is entitled shall vary according to the
amount by which the percentage of affordable housing units exceeds
the percentage established in subdivision (b).
   (1) For housing developments meeting the criteria of subparagraph
(A) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:



   Percentage Low-Income  Percentage Density Bonus
           Units

            10                       20

            11                      21.5

            12                       23

            13                      24.5

            14                       26

            15                      27.5

            17                      30.5

            18                       32

            19                      33.5

            20                       35


   (2) For housing developments meeting the criteria of subparagraph
(B) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:



    Percentage Very Low   Percentage Density Bonus
       Income Units

             5                       20

             6                      22.5

             7                       25

             8                      27.5

             9                       30

            10                      32.5

            11                       35


   (3) For housing developments meeting the criteria of subparagraph
(C) of paragraph (1) of subdivision (b), the density bonus shall be
20 percent.
   (4) For housing developments meeting the criteria of subparagraph
(D) of paragraph (1) of subdivision (b), the density bonus shall be
calculated as follows:



   Percentage Moderate-   Percentage Density Bonus
       Income Units

            10                        5

            11                        6

            12                        7

            13                        8

            14                        9

            15                       10

            16                       11

            17                       12

            18                       13

            19                       14

            20                       15

            21                       16

            22                       17

            23                       18

            24                       19

            25                       20

            26                       21

            27                       22

            28                       23

            29                       24

            30                       25

            31                       26

            32                       27

            33                       28

            34                       29

            35                       30

            36                       31

            37                       32

            38                       33

            39                       34

            40                       35


   (5) All density calculations resulting in fractional units shall
be rounded up to the next whole number. The granting of a density
bonus shall not be interpreted, in and of itself, to require a
general plan amendment, local coastal plan amendment, zoning change,
or other discretionary approval. As used in subdivision (b), "total
units" or "total dwelling units" does not include units permitted by
a density bonus awarded pursuant to this section or any local law
granting a greater density bonus. The density bonus provided by this
section shall apply to housing developments consisting of five or
more dwelling units.
   (h) (1) When an applicant for a tentative subdivision map, parcel
map, or other residential development approval donates land to a
city, county, or city and county as provided for in this subdivision,
the applicant shall be entitled to a 15-percent increase above the
otherwise maximum allowable residential density under the applicable
zoning ordinance and land use element of the general plan for the
entire development, as follows:



    Percentage Very Low   Percentage Density Bonus
          Income

            10                       15

            11                       16

            12                       17

            13                       18

            14                       19

            15                       20

            16                       21

            17                       22

            18                       23

            19                       24

            20                       25

            21                       26

            22                       27

            23                       28

            24                       29

            25                       30

            26                       31

            27                       32

            28                       33

            29                       34

            30                       35


   (2) This increase shall be in addition to any increase in density
mandated by subdivision (b), up to a maximum combined mandated
density increase of 35 percent if an applicant seeks both the
increase required pursuant to this subdivision and subdivision (b).
All density calculations resulting in fractional units shall be
rounded up to the next whole number. Nothing in this subdivision
shall be construed to enlarge or diminish the authority of a city,
county, or city and county to require a developer to donate land as a
condition of development. An applicant shall be eligible for the
increased density bonus described in this subdivision if all of the
following conditions are met:
   (A) The applicant donates and transfers the land no later than the
date of approval of the final subdivision map, parcel map, or
residential development application.
   (B) The developable acreage and zoning classification of the land
being transferred are sufficient to permit construction of units
affordable to very low income households in an amount not less than
10 percent of the number of residential units of the proposed
development.
   (C) The transferred land is at least one acre in size or of
sufficient size to permit development of at least 40 units, has the
appropriate general plan designation, is appropriately zoned for
development as affordable housing, and is or will be served by
adequate public facilities and infrastructure. The land shall have
appropriate zoning and development standards to make the development
of the affordable units feasible. No later than the date of approval
of the final subdivision map, parcel map, or of the residential
development, the transferred land shall have all of the permits and
approvals, other than building permits, necessary for the development
of the very low income housing units on the transferred land, except
that the local government may subject the proposed development to
subsequent design review to the extent authorized by subdivision (i)
of Section 65583.2 if the design is not reviewed by the local
government prior to the time of transfer.
   (D) The transferred land and the affordable units shall be subject
to a deed restriction ensuring continued affordability of the units
consistent with paragraphs (1) and (2) of subdivision (c), which
shall be recorded on the property at the time of dedication.
   (E) The land is transferred to the local agency or to a housing
developer approved by the local agency. The local agency may require
the applicant to identify and transfer the land to the developer.
   (F) The transferred land shall be within the boundary of the
proposed development or, if the local agency agrees, within
one-quarter mile of the boundary of the proposed development.
   (i) (1) When an applicant proposes to construct a housing
development that conforms to the requirements of subdivision (b) and
includes a child care facility that will be located on the premises
of, as part of, or adjacent to, the project, the city, county, or
city and county shall grant either of the following:
   (A) An additional density bonus that is an amount of square feet
of residential space that is equal to or greater than the amount of
square feet in the child care facility.
   (B) An additional concession or incentive that contributes
significantly to the economic feasibility of the construction of the
child care facility.
   (2) The city, county, or city and county shall require, as a
condition of approving the housing development, that the following
occur:
   (A) The child care facility shall remain in operation for a period
of time that is as long as or longer than the period of time during
which the density bonus units are required to remain affordable
pursuant to subdivision (c).
   (B) Of the children who attend the child care facility, the
children of very low income households, lower income households, or
families of moderate income shall equal a percentage that is equal to
or greater than the percentage of dwelling units that are required
for very low income households, lower income households, or families
of moderate income pursuant to subdivision (b).
   (3) Notwithstanding any requirement of this subdivision, a city,
county, or a city and county shall not be required to provide a
density bonus or concession for a child care facility if it finds,
based upon substantial evidence, that the community has adequate
child care facilities.
   (4) "Child care facility," as used in this section, means a child
day care facility other than a family day care home, including, but
not limited to, infant centers, preschools, extended day care
facilities, and schoolage child care centers.
   (j) "Housing development," as used in this section, means one or
more groups of projects for residential units constructed in the
planned development of a city, county, or city and county. For the
purposes of this section, "housing development" also includes a
subdivision or common interest development, as defined in Section
1351 of the Civil Code, approved by a city, county, or city and
county and consists of residential units or unimproved residential
lots and either a project to substantially rehabilitate and convert
an existing commercial building to residential use or the substantial
rehabilitation of an existing multifamily dwelling, as defined in
subdivision (d) of Section 65863.4, where the result of the
rehabilitation would be a net increase in available residential
units. For the purpose of calculating a density bonus, the
residential units do not have to be based upon individual subdivision
maps or parcels. The density bonus shall be permitted in geographic
areas of the housing development other than the areas where the units
for the lower income households are located.
   (k) The granting of a concession or incentive shall not be
interpreted, in and of itself, to require a general plan amendment,
local coastal plan amendment, zoning change, or other discretionary
approval. This provision is declaratory of existing law.
   (l) For the purposes of this chapter, concession or incentive
means any of the following:
   (1) A reduction in site development standards or a modification of
zoning code requirements or architectural design requirements that
exceed the minimum building standards approved by the California
Building Standards Commission as provided in Part 2.5 (commencing
with Section 18901) of Division 13 of the Health and Safety Code,
including, but not limited to, a reduction in setback and square
footage requirements and in the ratio of vehicular parking spaces
that would otherwise be required that results in identifiable,
financially sufficient, and actual cost reductions.
   (2) Approval of mixed use zoning in conjunction with the housing
project if commercial, office, industrial, or other land uses will
reduce the cost of the housing development and if the commercial,
office, industrial, or other land uses are compatible with the
housing project and the existing or planned development in the area
where the proposed housing project will be located.
   (3) Other regulatory incentives or concessions proposed by the
developer or the city, county, or city and county that result in
identifiable, financially sufficient, and actual cost reductions.
   This subdivision does not limit or require the provision of direct
financial incentives for the housing development, including the
provision of publicly owned land, by the city, county, or city and
county, or the waiver of fees or dedication requirements.
   (m) Nothing in this section shall be construed to supersede or in
any way alter or lessen the effect or application of the California
Coastal Act (Division 20 (commencing with Section 30000) of the
Public Resources Code.
   (n) Nothing in this section shall be construed to prohibit a city,
county, or city and county from granting a density bonus greater
than what is described in this section for a development that meets
the requirements of this section or from granting a proportionately
lower density bonus than what is required by this section for
developments that do not meet the requirements of this section.
   (o) For purposes of this section, the following definitions shall
apply:
   (1) "Development standard" includes site or construction
conditions that apply to a residential development pursuant to any
ordinance, general plan element, specific plan, charter amendment, or
other local condition, law, policy, resolution, or regulation.
   (2) "Maximum allowable residential density" means the density
allowed under the zoning ordinance, or if a range of density is
permitted, means the maximum allowable density for the specific
zoning range applicable to the project.
   (p) (1) Upon the request of the developer, no city, county, or
city and county shall require a vehicular parking ratio, inclusive of
handicapped and guest parking, of a development meeting the criteria
of subdivision (b), that exceeds the following ratios:
   (A) Zero to one bedrooms: one onsite parking space.
   (B) Two to three bedrooms: two onsite parking spaces.
   (C) Four and more bedrooms: two and one-half parking spaces.
   (2) If the total number of parking spaces required for a
development is other than a whole number, the number shall be rounded
up to the next whole number. For purposes of this subdivision, a
development may provide "onsite parking" through tandem parking or
uncovered parking, but not through onstreet parking.
   (3) This subdivision shall apply to a development that meets the
requirements of subdivision (b) but only at the request of the
applicant. An applicant may request additional parking incentives or
concessions beyond those provided in this section, subject to
subdivision (d).



65915.5.  (a) When an applicant for approval to convert apartments
to a condominium project agrees to provide at least 33 percent of the
total units of the proposed condominium project to persons and
families of low or moderate income as defined in Section 50093 of the
Health and Safety Code, or 15 percent of the total units of the
proposed condominium project to lower income households as defined in
Section 50079.5 of the Health and Safety Code, and agrees to pay for
the reasonably necessary administrative costs incurred by a city,
county, or city and county pursuant to this section, the city,
county, or city and county shall either (1) grant a density bonus or
(2) provide other incentives of equivalent financial value.  A city,
county, or city and county may place such reasonable conditions on
the granting of a density bonus or other incentives of equivalent
financial value as it finds appropriate, including, but not limited
to, conditions which assure continued affordability of units to
subsequent purchasers who are persons and families of low and
moderate income or lower income households.
   (b) For purposes of this section, "density bonus" means an
increase in units of 25 percent over the number of apartments, to be
provided within the existing structure or structures proposed for
conversion.
   (c) For purposes of this section, "other incentives of equivalent
financial value" shall not be construed to require a city, county, or
city and county to provide cash transfer payments or other monetary
compensation but may include the reduction or waiver of requirements
which the city, county, or city and county might otherwise apply as
conditions of conversion approval.
   (d) An applicant for approval to convert apartments to a
condominium project may submit to a city, county, or city and county
a preliminary proposal pursuant to this section prior to the
submittal of any formal requests for subdivision map approvals.  The
city, county, or city and county shall, within 90 days of receipt of
a written proposal, notify the applicant in writing of the manner in
which it will comply with this section.  The city, county, or city
and county shall establish procedures for carrying out this section,
which shall include legislative body approval of the means of
compliance with this section.
   (e) Nothing in this section shall be construed to require a city,
county, or city and county to approve a proposal to convert
apartments to condominiums.
   (f) An applicant shall be ineligible for a density bonus or other
incentives under this section if the apartments proposed for
conversion constitute a housing development for which a density bonus
or other incentives were provided under Section 65915.



65916.  Where there is a direct financial contribution to a housing
development pursuant to Section 65915 through participation in cost
of infrastructure, write-down of land costs, or subsidizing the cost
of construction, the city, county, or city and county shall assure
continued availability for low- and moderate-income units for 30
years.  When appropriate, the agreement provided for in Section 65915
shall specify the mechanisms and procedures necessary to carry out
this section.



65917.  In enacting this chapter it is the intent of the Legislature
that the density bonus or other incentives offered by the city,
county, or city and county pursuant to this chapter shall contribute
significantly to the economic feasibility of lower income housing in
proposed housing developments.  In the absence of an agreement by a
developer in accordance with Section 65915, a locality shall not
offer a density bonus or any other incentive that would undermine the
intent of this chapter.



65917.5.  (a) As used in this section, the following terms shall
have the following meanings:
   (1) "Child care facility" means a facility installed, operated,
and maintained under this section for the nonresidential care of
children as defined under applicable state licensing requirements for
the facility.
   (2) "Density bonus" means a floor area ratio bonus over the
otherwise maximum allowable density permitted under the applicable
zoning ordinance and land use elements of the general plan of a city,
including a charter city, city and county, or county of:
   (A) A maximum of five square feet of floor area for each one
square foot of floor area contained in the child care facility for
existing structures.
   (B) A maximum of 10 square feet of floor area for each one square
foot of floor area contained in the child care facility for new
structures.
   For purposes of calculating the density bonus under this section,
both indoor and outdoor square footage requirements for the child
care facility as set forth in applicable state child care licensing
requirements shall be included in the floor area of the child care
facility.
   (3) "Developer" means the owner or other person, including a
lessee, having the right under the applicable zoning ordinance of a
city council, including a charter city council, city and county board
of supervisors, or county board of supervisors to make application
for development approvals for the development or redevelopment of a
commercial or industrial project.
   (4) "Floor area" means as to a commercial or industrial project,
the floor area as calculated under the applicable zoning ordinance of
a city council, including a charter city council, city and county
board of supervisors, or county board of supervisors and as to a
child care facility, the total area contained within the exterior
walls of the facility and all outdoor areas devoted to the use of the
facility in accordance with applicable state child care licensing
requirements.
   (b) A city council, including a charter city council, city and
county board of supervisors, or county board of supervisors may
establish a procedure by ordinance to grant a developer of a
commercial or industrial project, containing at least 50,000 square
feet of floor area, a density bonus when that developer has set aside
at least 2,000 square feet of floor area and 3,000 outdoor square
feet to be used for a child care facility.  The granting of a bonus
shall not preclude a city council, including a charter city council,
city and county board of supervisors, or county board of supervisors
from imposing necessary conditions on the project or on the
additional square footage.  Projects constructed under this section
shall conform to height, setback, lot coverage, architectural review,
site plan review, fees, charges, and other health, safety, and
zoning requirements generally applicable to construction in the zone
in which the property is located. A consortium with more than one
developer may be permitted to achieve the threshold amount for the
available density bonus with each developer's density bonus equal to
the percentage participation of the developer.  This facility may be
located on the project site or may be located offsite as agreed upon
by the developer and local agency.  If the child care facility is not
located on the site of the project, the local agency shall determine
whether the location of the child care facility is appropriate and
whether it conforms with the intent of this section. The child care
facility shall be of a size to comply with all state licensing
requirements in order to accommodate at least 40 children.
   (c) The developer may operate the child care facility itself or
may contract with a licensed child care provider to operate the
facility.  In all cases, the developer shall show ongoing
coordination with a local child care resource and referral network or
local governmental child care coordinator in order to qualify  for
the density bonus.
   (d) If the developer uses space allocated for child care facility
purposes, in accordance with subdivision (b), for any purposes other
than for a child care facility, an assessment based on the square
footage of the project may be levied and collected by the city
council, including a charter city council, city and county board of
supervisors, or county board of supervisors. The assessment shall be
consistent with the market value of the space.  If the developer
fails to have the space allocated for the child care facility within
three years, from the date upon which the first temporary certificate
of occupancy is granted, an assessment based on the square footage
of the project may be levied and collected by the city council,
including a charter city council, city and county board of
supervisors, or county board of supervisors in accordance with
procedures to be developed by the legislative body of the city
council, including a charter city council, city and county board of
supervisors, or county board of supervisors. The assessment shall be
consistent with the market value of the space.  Any penalty levied
against a consortium of developers shall be charged to each developer
in an amount equal to the developer's percentage square feet
participation.  Funds collected pursuant to this subdivision shall be
deposited by the  city council, including a charter city council,
city and county board of supervisors, or county board of supervisors
into a special account to be used for childcare services or child
care facilities.
   (e) Once the child care facility has been established, prior to
the closure, change in use, or reduction in the physical size of, the
facility, the city, city council, including a charter city council,
city and county board of supervisors, or county board of supervisors
shall be required to make a finding that the need for child care is
no longer present, or is not present to the same degree as it was at
the time the facility was established.
   (f) The requirements of Chapter 5 (commencing with Section 66000)
and of the amendments made to Sections 53077, 54997, and 54998, by
Chapter 1002 of the Statutes of 1987 shall not apply to actions taken
in accordance with this section.
   (g) This section shall not apply to a voter-approved ordinance
adopted by referendum or initiative.



65918.  The provisions of this chapter shall apply to charter
cities.
     
           

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