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Coastal Commission under constitutional fire

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News Analysis

A bombshell was dropped on the California Coastal Commission last Friday when a Superior Court Judge in Sacramento decided that the Coastal Commission is set up in an unconstitutional manner.

If the decision ultimately stands up upon appeal, it could strip the Coastal Commission of its regulatory authority and change the manner in which land use is regulated along the California coast.

Superior Court Judge Charles Kobayashi based his decision on the fact that two-thirds of the Coastal Commission’s membership is appointed by legislative leaders, even though the commission is part of the executive branch of government and the governor is the chief executive officer.

The Coastal Commission, which was originally created by a citizens’ initiative 30 years ago, has four members appointed by the governor of California, four by the speaker of the Assembly, and four members by the president pro tem of the Senate. All serve at the pleasure of their appointing authority, which means they can be replaced anytime, with or without cause.

The Coastal Commission makes many types of land-use decisions along the California coast, which include approval of development permits, and exercises many types of executive powers, which Kobayashi ruled was improper because it violates the separation of powers provision of the California Constitution.

The implications of the decision, which will most certainly be appealed to the Court of Appeals, and probably later the California Supreme Court, could be profound because it might throw every permit application currently before the Coastal Commission into limbo until there is a definitive answer as to whether the commission is legitimate. That process to reach a final decision could take several years.

More likely, it is expected that the judge will grant a stay of his order, which he has not yet officially issued, allowing time for an appeal since this is a major issue.

The question addressed in Kobayashi’s decision is “a very complicated legal question and I’m sure it will be taken up on appeal,” said Christi Hogin, interim city manager for Malibu. “But it does raise important questions that Malibu has asked in the past about the commission.

“This ruling is based upon the idea that the commission is making policy decisions without being accountable to the voters,” she said. “What makes a policy decision legitimate is when it is made by someone who is elected by people and becomes accountable at the ballot box.

“The city’s Local Coastal Plan draft is created that way, whereas the Coastal Commission is very removed from the voters and the electorate,” she explained.

“I know some people argue that it’s a good thing because it means they don’t make political decisions, but that’s not true,” continued Hogin. “They are in fact political appointees and they have to answer to the elected official who appointed them.”

However, Sara Wan, chair of the Coastal Commission, said: “This is just a question of how the commissioners are appointed, not about the way the commission works.”

Wan feels that Kobayashi’s decision will be overturned on appeal. “We’re not the only commission that is appointed this way,” she said. There are many places in the state where city councils appoint planning commissions, which make land-use decisions, said Wan.

Hogin also emphasized that the commission has done important work over the years. “I also think that every Californian would tell you the coast is worth saving — we all agree,” she said. “But on a day-to-day basis, we have to sometimes compromise to protect other important values.

“I think, in the end, we will rally around the California coast to do what it takes to protect it and offer reasonable access,” she finished

In Wan’s opinion, if a stay were not granted, it would have the effect of putting an immediate moratorium on all development along the coastal zone. This is because the Coastal Act requires that all development in the coastal zone must have a coastal development permit; the only agency that can currently grant one is the Coastal Commission.

Additionally, federal law involves the Coastal Commission with decisions relating to offshore drilling; without it, California would lose its voice in such decisions.

Although the decision took place less than a week ago, the California environmental community is already beginning to organize, according to Wan. Environmentalists are beginning to informally discuss a new initiative that would correct some of the possible constitutional problems.

Wan said she believes the decision might even have the effect of closing ranks in the environmental community and reinvigorating the coastal protection movement because of their strong belief that the California public really wants coastal protection and will support it at the polls.

This opinion would appear to be borne out by a poll conducted by the Los Angeles Times that was released on Monday, in which the paper reported that half of all Americans worry that pollution has grown worse over the last decade. The Times also found that 58 percent of those polled thought that protecting the environment was more important than personal property rights.

Mobile home owners vote in favor of Kissel settlement

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For several years, owners of the Paradise Cove Mobilehome Park, its tenants and the City of Malibu have been embroiled in lawsuits over rent control issues.

The Kissel Co., which owns the mobile home park, has challenged the correctness of the city’s application of its park rent stabilization ordinance No. 48U, denying Kissel a rent increase. Other issues involved sewage spills and coach owners’ responsibilities for maintaining the mobile home park.

But on April 25, a settlement agreement between the city and Kissel Co. was approved by a majority of the mobile home owners and by a unanimous vote of the City Council.

In the agreement, Kissel agreed to use some portion of increased rents to upgrade the common area amenities and facilities of the park. These will include a replacement or upgrade of the wastewater collection.

The rent structure for the Paradise Cove Mobilehome Park has recently been appraised and, based on the agreement, each space has a different value. The lowest space rent costs $321 per month and the highest $1,331. Every time a home is sold, the space rental fee will rise 15 percent for the next owner.

The impact of the rent increases on individual homeowners is not yet known, but it is thought that some low-income homeowners could be impacted negatively.

Kissel also agreed to release and discharge the tenants from all claims and causes of action for back rents, with respect to any time before the effective date of the agreement. Tenants agreed they would not hold Kissel responsible for refunds relating to overpaid rents prior to the agreement.

A group of mobile home owners came to hear the council’s decision, voicing their by-and-large favorable opinion of the settlement.

However, a minority of the 271 Paradise Cove HOA members was not quite as thrilled, with 104 voting in favor and 40 against the settlement agreement.

Frans Bigelow, treasurer for the Paradise Cove HOA, said: “My concerns all along have always been that things should not be verbally agreed upon, but stating everything in writing so that the benefits are in fact realistic.”

Although the council and the city attorney have said they would look at the matters in detail, Bigelow, a developer who has lived in Paradise Cove for just over a year, said: “Some items were negotiated last minute and most board members never saw them in writing before the vote occurred.

“My biggest concern is I don’t believe it should take three years to have a plan and permit to run a septic system,” explained Bigelow, who deals with the same agencies in his line of work.

“It’s an urgent health issue that should not be dealt with lightly,” said Bigelow, as he spoke about the raw sewage allegedly running in the streets of his neighborhood.

But, overall, Bigelow said he does not object to the settlement agreement and the possible rent increases if the community receives the services they have been promised.

Bigelow also wants to ensure that back rents would not be charged after the agreement was signed.

At the quarterly meeting, homeowners expressed their feelings about the discontentment that has existed in their neighborhood over the years because of the pending lawsuits, and about hope for change.

“The silent majority finally let their voices be heard and they approved of the agreement,” she one homeowner.

Another resident said: “I would describe my six years of residency as difficult, neighbor pitted against neighbor, and residents pitted against the landowner, an atmosphere that was stirred by a minority of residents who may not even be there any more.”

“Just think how the lawyers are going be so angry that they don’t get all that money,” joked a resident.

“Let’s not go there,” joked Mayor Pro Tem Jeff Jennings, who is an attorney.

Publisher’s note: The opinions expressed in this guest editorial are not my opinions but the guest editorial does raise some very interesting questions about a political debate currently taking place. What do we protect? Do we protect everything, some of everything, or do we do a balancing test?

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To put it in local context: Is a steelhead trout swimming up Malibu Creek really worth $4,200 per fish when that could pay for a kid’s schooling for practically a year? Are the skyrocketing prices of energy and gasoline due, in some significant measure, to a set of environmental laws that discourage investment in new power plants or nuclear energy, or is it all just a cover story from a bunch of energy companies out to bleed us dry?

This editorial comes from a conservative property rights think tank, but some of the questions it raises are worthy of debate.

Let me add one of my own. I’ve seen the shrunken Owens River Valley near Mammoth Lake and I’m sure it was once a lush verdant area with abundant water. I’ve watched some people wring their hands and bemoan Los Angeles’ theft of that water. Yet those aqueducts and that water are what made the San Fernando Valley. Without them, the Owens River Valley would still be lush and the San Fernando Valley a desert. Was it worth it?

I encourage others in the environmental movement, on every side of the issue, to write guest editorials of no more than 725 words. E-mail them to us at agyork@malibutimes.com and malibunews@malibutimes.com .

Guest column

What’s Powering California’s Electricity Woes?

California’s power crisis is shedding light on an issue overdue for debate: the high costs of modern environmentalism.

As they ponder whopping utility bills–and worry about brown-outs–Californians are learning that aggressive environmentalism comes with trade-offs.

For instance, it’s thanks in large part to pressure from environmentalists that no new power plant has been constructed in California over the past decade. And some of those power sources that are available are less effective, delivering less electricity than they are capable of providing, because of dubious environmental initiatives.

The federal Endangered Species Act is a prime example. In 1995, Interior Secretary Bruce Babbitt claimed that the Endangered Species Act costs each American an average of only 16 cents per year. But he left out the costs that show up on our utility bills. The Endangered Species Act has had a serious impact on the supply of electricity in the West.

Activists frequently invoke this and related laws to force changes in power-plant policies. Earlier this year, eight environmental groups threatened to sue Washington state’s largest investor-owned utility if its hydroelectric dam is operated in a way that harms fish protected under the Endangered Species Act. Last June several activist groups sued the federal government over management of dams on the Colorado River, including Hoover Dam, a major source of power for Southern California.

Such lawsuits have already had a dramatic effect on power production. Environmental conservation and protection have transformed Glen Canyon Dam, which holds back Lake Powell, from a 1,300-megawatt resource to a 900-megawatt resource, a loss of more than 30 percent of its generating capacity. Production fell to 330 megawatts this past summer, according to Leslie James, executive director of the Colorado River Energy Distributors Association, an organization representing hundreds of power providers in the Colorado River Basin.

“You take that amount of capacity out of the western wholesale market and it’s going to have a serious impact on prices,” he said.

In recent years the main goal of the operating plan for Folsom Dam, which generates about 10 percent of the Sacramento area’s power, has been satisfying environmental concerns and regulations– particularly protection of winter-run Chinook Salmon. Water has been released from the dam when fish needed it most, rather than when the demand for hydroelectric power has been the greatest. Such a focus on non-human needs has become typical of dam management throughout the west.

In California, air quality regulations have also done their part to prevent power plants from generating the electricity we need. The reason there has been a push to relax some regulations in recent weeks is because when they’re enforced inflexibly, clean-air rules limit plants’ operating time.

When generating facilities reach their limit each day, they have been shut down for the day–even though society’s need for power goes on.

Without question, environmental protection is a vital goal. But so is supplying warmth and light– and jobs and incomes.

Under current bureaucratic policies implementing the Endangered Species Act, the Clean Water Act, the Clean Air Act, and other federal and state mandates, everyday pocketbook and social needs are not given weight when measured against environmental protection.

Americans have accepted this skewed approach partly because they haven’t been squarely presented with the costs–until now. Power shortages just might end the shortage of informed discussion of the environment and the economy. While pursuing environmental priorities, we must embrace policies that strike a rational balance–and don’t leave us in the dark.

David Haddock

Pacific Legal Foundation attorney

Sheen gives award to local environmentalist

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Issues important to Malibu residents such as saving the wetlands, protecting whales and dolphins, and working to provide Americans with pure, arsenic-free drinking water were rallying cries at a celebration at Sierra Club’s Angeles Chapter 90th Anniversary on April 19.

Actor Martin Sheen, who could not attend the event because of filming of the NBC television series “West Wing,” was to receive a Distinguished Environmentalist Award, which he instead gave to Malibu activist Valerie Sklarevsky of the EarthWays Foundation.

In a letter that Sheen sent as an apology for not attending the event, he said of Sklarevsky: “She is the only one more deserving of this award, so please accept it and keep it, in love and gratitude.”

Sheen, who plays the president of the United States on “West Wing,” is also a Malibu environmental activist.

In remarks preceding the awards, Angeles Chapter President Gordon LaBedz lamented the 95 percent loss of California’s coastal wetlands. Sierra Club President Carl Pope optimistically told how it is “not too late,” to save Southern California, and each officer lauded Sheen’s environmental efforts.

LaBedz praised Sheen for working to safeguard Marina del Rey’s Ballona Creek saying, “Martin stuck his neck out when Steven Spielberg wanted to develop it.”

Sklarevsky had joined Sheen, Cordelia Rorick and Malibu resident Mona Loo, and nearly 8,000 other protestors at the controversial U.S. Army School of the Americas in Fort Benning, Ga. in 1998, and has been a high-profile force in the movement to preserve Malibu wetlands.

Sheen’s activism, cited by the Sierra Club, also includes his participation last year among a group of protesters arrested for chaining themselves to the front gate at the Vandenburg Air Force Base protesting missile tests.

Other award recipients included Nell Newman, daughter of actor Paul Newman, Congresswoman Loretta Sanchez, who received the Distinguished Justice Award; and Mikhail Davis, of Earth Island Institute, who received the David Brower Organizational Award.

About 150 people, including Tom Hayden, Congressman Brad Sherman, and actors Jane Kaczmarek (“Malcom in the Middle”) and Rene Auberjonois (“Star Trek: Deep Space Nine”) attended the event.

Bonsall Drive residents ignored

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I have always said that I would never write that dreaded “letter to the editor” that so often in Malibu opens one up to personal attacks. However, my husband and I can no longer stand back, as we have some serious concerns and questions as to how our city government process works. I speak as well for several Bonsall Drive neighbors. We are being ignored by the City of Malibu, the Malibu Stage Company (MSC), and the Point Dume Community Services District (PDCSD).

Over several years, the MSC has been attempting to raise funds for its operation. The property it is leasing directly abuts several Bonsall Drive properties and its activities in our residential zone greatly impact us. The MSC began its relationship with us by attempting to rezone the property to Institutional from RR2 with no notification by them or The City of Malibu to us. We accidentally learned about this, and with some effort were able to stop the change so that we could preserve our neighborhood character.

To stop any more unwanted activities, I and several neighbors attended a city planning commission hearing that ended with a temporary use permit for the MSC with strict conditions agreed upon by us neighbors and the board of the stage company. That board of the theatre is no longer seated. The most important point of that CUP for this letter is that the property was to be used only for theatre productions and the activities needed for these productions. Later the temporary use permit became a conditional use permit with the same specifications written in more concise terms but with the same intent. We thought we were coexisting in harmony with the MSC.

Recently it came to our neighborhood’s attention that the PDCSD was negotiating a contract with the MSC to use the stage property building. As this is a direct violation of the CUP, we neighbors organized a meeting to discuss this issue with all involved parties with the intent of being “up front” in the matter. The meeting was represented by: then Mayor Tom Hasse for The City of Malibu, Geoffrey Ortiz for the MSC, Nidra Winger for the PDCSD and eight concerned neighbors. We neighbors left the meeting with the impression that all parties understood that this joint operating venture was in direct violation of the CUP, and thus not allowed.

It appears that a contract is now being finalized between these two parties despite knowing that it is not permitted. The Malibu City Council may have acted without full knowledge of the conditional use permit when they funded the MSC. Has the City Council tied its funding for the MSC to a joint operation agreement with the PDCSD? The site is not even on Pt. Dume.

The MSC’s CUP has expired. To reinstate it in its original form would still not permit these uses.

There must be a hearing and I’m concerned that a hearing would be prejudiced by this commitment of funds. I know of two past violations of the CUP by the MSC. They have not acted in good faith.

We’ve made every effort to be reasonable, but at this point can only feel that we’ve been ignored and that the process has been compromised. We want to be treated directly and honestly.

Margaret and Al Giuliani

I did not say that….

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In the April 26 issue of the Times you stated that “Liebig sparked the meeting’s first controversial tone by questioning what he claimed were inconsistencies between the (Civic Center) draft design guidelines and the General Plan that was adopted in 1995.”

The Times went on to incorrectly state that “… former City Council candidate John Wall echoed Liebig’s concerns over the legality of the draft design guidelines.”

I neither “echoed” nor expressed “concerns” of legality. I stated that it was my understanding that the city staff had indicated that the “guidelines” were only advisory to developers and did not have the force of law. I noted that they indicated a new road and intersection, and a maximum structural height of 32 feet.

The first of these would require a significant city expenditure, and the second, under present law, require a variance. I suggested that a developer might reasonably rely on these guidelines in developing his project, and that if the variance and road funding were not then provided by the city, the developer would appear to have a reasonable basis for collecting significant damages from the city.

I then asked Councilperson Jennings, as an attorney, if I was correct in this. He did not choose to answer the question directly, but stated that before the guidelines were adopted, they would be consistent with the IZO and the General Plan, even if this required a change to the IZO and General Plan. He did not comment on the funding for the roads and intersection, or on the various hearings and possibly required General Plan EIR.

The only opinion I expressed was in answer to Councilperson Jennings’ request that the audience tell him what they wanted to see in the guidelines. I suggested the following:

(1) an indication of the flood plain and the effect of development in the flood plain on properties outside its present boundary; (2) an indication of the Civic Center liquefaction zone and what type of special construction would be required to meet the safety requirements; (3) the location of the Malibu Coastal Fault and the limitations on construction near it; (4) the effect of disposal of waste water into the ground on the water table throughout the Civic Center area, and the effect of this on other properties; and (5) an allocation of square-footage by “uses” between the various Civic Center properties since the city’s reports imply that virtually all of the requirement for commercial and office space will be provided by a single project which is now in the “pipeline,” thus denying other property owners of those uses.

John Wall

Cook’s Tour benefits children

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Spring is in full bloom in the hills of Malibu so naturally Mother’s Day and the annual Cook’s Tour cannot be far behind.

Sponsored by the Malibu Methodist Nursery School, Kay Gabbard, director of the school, is the mastermind behind this very popular event now in its 15th year.

The tour proceeds go directly to providing scholarships for families who otherwise might not be able to send their children to nursery school.

Having these children in the school promotes diversity and gives them a sense of belonging, says Gabbard. “It’s about warmth and caring and high self-esteem and genuine concern for the children.”

Friends, staff and parents plan the entire event that takes place on May 12. Four magnificent homes are open to the public for tours and sample gourmet meals are prepared at each home by gourmet chefs. Guests will have an opportunity to purchase baskets with themes for Mother’s Day and a variety of other gift baskets.

The homes that are featured on the tour range from a traditional craftsman structure with mission furniture and an unexpected mix of modern materials to a ranch home just steps from Encinal Bluff with exterior walls made of granite chunks that curve outward and a breathtaking view of the Pacific. The third home, an Italianate villa perched high above the coast offers views of lush rolling hills, horse corrals and stables. The home boasts 91 mahogany interior doors and a trompe loeil ceiling hand-painted over a one-year period. The final tour takes place at a Mediterranean Villa with acres of rolling lawns that seem to stretch endlessly to the ocean. This 12,000-square-foot home has a screening room with THX sound. A wisteria-laden patio beckons from outdoors.

This very popular event begins at 11 a.m. and ends at 3 p.m. Tickets cost $45.00 and can be purchased by calling the school at 457-5144. According to Gabbard, this event sells out very quickly.

City’s fiscal health still good despite economic storm clouds

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A quarterly fiscal report indicates that the City of Malibu is doing well financially thus far, despite economic downturns that have taken place over the past few months.

But, in an effort to prepare for leaner times, the city plans to scrutinize its expenses because incoming funds from various sources have been reduced.

“The proposed budget for fiscal year 2001 – 2002” is balanced, said Julia James, administrative services director, in a report to the council at the quarterly meeting on April 25. Presently, General Fund revenues are estimated to be $1.2 million higher than expenditures.

Based on a Finance Subcommittee recommendation, the City Hall Fund ($1.2 million that was to be used for a new City Hall) was merged into the General Fund, which will create estimated reserves of $8.5 million by June 2002.

James said that funds for a new City Hall, though now kept in the General Fund, would still be held aside for that purpose.

After 10 years of cityhood, the state recalculates how funds are distributed to the city, which has resulted in a 50 percent decrease in revenue from motor vehicle license fees, gas taxes, and proposition A and C funds for Malibu. These reductions will bring a loss of $1.6 million in revenues to the city in the next fiscal year.

This loss will cause most of the reserves in special revenue funds to be depleted during the next fiscal year if the city maintains services at its current level. As a result, Malibu will need to look for new revenue sources or reduce service levels in the future. To get ahead of the downturn, the city has projected a lean budget for the upcoming fiscal year.

In other matters, the City Council quickly reviewed departmental performances. Each quarter, the council looks at the performance of each department, highlighting goals and possible problems for each.

  • City clerk Virginia Bloom leaves her post on Friday (see letters, page 4). Lisa Pope, who has acted as secretary during council and Planning Commission meetings, will replace her temporarily while the city looks for a new city clerk.
  • The Parks and Recreation Department remains on target for most of its goals. It continues to provide recreational activities for Malibuites and now has a complete staff in preparation for the summer months.
  • The Public Works Department is working on a traffic information emergency radio system, but the implementation of the system has been delayed because the city is waiting for the cooperation of Caltrans, which is withholding consensus on the broadcasting frequency both agencies would share.

The stormceptor in Malibu Lagoon is currently operational, but the company that provides disinfections of the stormceptor free of charge is going out of business. Therefore, the city will have to take over the operation of the facility at an estimated cost of $65,000 per year to maintain the system. The city is looking at grant options to cover costs.

  • The Public Works Department is also working on other traffic-related matters and on a flood mitigation plan.

A bridge water traffic in Malibu. City personnel will advise residents of the project time frame and water outages as soon as they know the work schedule.

  • The Environmental and Building Safety Department recently hired Bruce Douglas, of Stone Environmental, to help develop a work grant proposal that will fund $676,000 for a series of wastewater and ground water testing programs.
  • Building and Safety currently has 392 open code enforcement cases — 91 deal with property owners building without a permit.
  • The Planning Department presented a new Geographic Information Systems zoning map that was hot off the press. The colorful depiction of Malibu was hanging in the conference room for everyone to view.

Also, Barry Hogan, planning director, said that, in an effort to simplify and accelerate the planning process, the department has been working on a slope density formula, a development permit process and a plot plan review process that it will present to the council in June.

  • Law Enforcement Services are working in preparation for the summer months when Malibu’s population swells with beach-going visitors.

A Beach Team met with officials from the Lost Hills / Malibu Sheriff’s Station, State Parks, Lifeguards, Animal Control and the District Attorney’s office to coordinate efforts and clarify expectations on the conduct of people who come to the beach.

  • The Lost Hills/Malibu Sheriff’s Station is undergoing leadership changes. Capt. John O’Brien filed for medical retirement. A search is currently underway to appoint an acting captain, who will eventually become captain. Operations Deputy Jim Glaser is currently filling in as temporary acting captain.

The City council said it would present O’Brien a tile for his years of service.

The city also hopes to transfer some Pacific Coast Highway patrolling responsibilities from the California Highway Patrol to the sheriff’s department in an effort to unify law enforcement methods in Malibu.

Rotaract acts with purpose

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Ending the school year with a bang, the Pepperdine Rotaract Club spent the weekend of March 30-April 1 in San Felipe, Mexico with a heart for service. The group of 30 Pepperdine students and faculty members, under the direction of Rotaract’s International Service Chairperson Nicole Bowden, crossed the border with supplies for painting and repairing a multipurpose building in one of the city’s community centers.

“The most interesting part of the project,” reported Rotaract member Chris Bowman, “was figuring out how to make the fifty different colors of donated paint into two uniform colors, let alone make it aesthetically pleasing.”

In the end the group was successful in concocting enough of a mint green color to cover the exterior of the building with a salmon colored interior.

During their stay, Rotaract members also had the opportunity to explore the city and interact with some of the local children. While the local boys engaged themselves in soccer matches against the university students, the girls were eager to help prepare bags of dried rice and beans that were later distributed to the community.

“The kids were shy at first,” said member C.J. Clavero, “but after they warmed up to us you could see some of the students painting while giving the kids piggy-back rides. I feel like we really bonded with the kids and with each other on this trip.”

This has been a dynamic first three months for Pepperdine’s Rotaract Club under the leadership of student president Seth Haye and Malibu Rotary International. At the core of the group’s focus is service. The Mexico project marked the eighth completed service project this semester and there are three more scheduled before the close of the school year.

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