GENTRIFICATION


Boston University Law Review
JULY 1983




Copyright (c) Trustees of Boston University 1983.

Boston University Law Review

JULY, 1983

63 B.U.L. Rev. 955

LENGTH: 17107 words



NOTE: DISPLACEMENT IN GENTRIFYING NEIGHBORHOODS: REGULATING CONDOMINIUM CONVERSION THROUGH MUNICIPAL LAND USE CONTROLS.



Peter J. MacDonald

SUMMARY:
  ... Although this "urban gentrification" provides needed tax revenue, it changes the character of the neighborhoods in which it occurs by displacing tenants who can no longer afford to live in their newly fashionable neighborhoods. ... Condominium conversion that results in neighborhood gentrification, however, entails more than a mere change in ownership. ... It concludes that because gentrification displacement stems from an actual change in the physical character of a neighborhood, ordinances addressing the problem fall within the land use control power. ... The court in Maplewood, for example, would probably have reached a different result if the conversion had altered the character of the neighborhood through gentrification displacement. ... The absence of enabling act provisions that refer specifically to condominium conversion does not mean that land use control cannot be used to address the displacement problem. ... Under this approach, the municipality would premise approval of the condominium conversion upon a developer's payment of a fee analogous to the traditional suburban "in lieu" fee extraction. ... The first would be to determine in which neighborhoods condominium conversion was leading to gentrification and displacement. ... Finally, the MRA would discuss with the tenant other neighborhoods in the city where gentrification is unlikely, preferably close to the tenant's former neighborhood and place of work. ... Subdivision control is the best tool of municipal land use control with which to address the problems caused by gentrification conversion. ...  

TEXT:
 [*955]  I. INTRODUCTION

During the past quarter of a century the quality of life in America's large cities has declined. n1 The middle class has forsaken residency in the city to commute from the suburbs. n2 As a result of this flight, the quality of urban housing stock has deteriorated. n3 Government efforts to improve housing by channeling federal funds into massive redevelopment programs have merely exacerbated the situation, transforming ethnic neighborhoods into sterile housing projects. n4

Recently, portions of the effluent, upper-middle class population have returned to some inner cities. n5 Although this "urban gentrification" n6 provides needed tax revenue, n7 it changes the character of the neighborhoods in  [*956]  which it occurs n8 by displacing tenants who can no longer afford to live in their newly fashionable neighborhoods. n9

In the past, most displacement was caused by governmental projects n10 and remedied through public relocation assistance. n11 Because urban gentrification is privately financed, n12 however, it forces displaced residents to bear the burdens of relocation without the benefits of public aid. n13 Municipalities have enacted a variety of legislative schemes in response to the privately induced displacement caused by the conversion of rental units into condominiums. n14 Some courts, however, have stricken down many of these  [*957]  ordinances as inappropriate exercises of municipal land use control powers. n15 These courts have based their decisions on the principle that land use controls cannot be used to regulate mere changes in the form of ownership n16 -- as is the case in simple condominium conversions. There is a danger that such reasoning might be inappropriately extended to ordinances addressing gentrification displacement. Condominium conversion that results in neighborhood gentrification, however, entails more than a mere change in ownership. It alters the very character of a neighborhood. n17

This Note suggests that land use controls are a lawful means of equitably allocating gentrification displacement costs. It first describes the costs associated with urban gentrification. It then sets forth the limits of land use control by showing that such controls should be applied to exercises of real property interests that necessarily result in significant changes in the physical aspect or character of the land. It concludes that because gentrification displacement stems from an actual change in the physical character of a neighborhood, ordinances addressing the problem fall within the land use control power. The Note recommends that subdivision extraction is the most appropriate land use control to address condominium displacement. Finally, the Note proposes a method by which municipalities may use extractions to address gentrification displacement.

II. DISPLACEMENT AS A DEVELOPMENT EXTERNALITY
 
A. Gentrification

After World War II, American cities went through a period of economic segregation n18 that was accompanied by a decline in the quality of urban  [*958]  housing stock. n19 Because of this decline, most Americans no longer consider the large city a desirable place to live or raise a family. n20 The more affluent classes therefore continue their post-war movement out of the inner city. n21 Despite this general trend, there has recently been, within particular cities, a focused movement of the upper-middle class into older central neighborhoods. n22 This movement, sometimes termed "urban gentrification," n23 transforms formerly low and middle income neighborhoods into high-priced residential areas through privately financed rehabilitation. n24

Central neighborhoods often contain deteriorating older buildings that are structurally sound and architecturally interesting. n25 The buildings are seldom owner occupied, and are usually low and middle income rental properties. n26 Gentrification occurs when developers purchase and rehabilitate these multi-unit structures for conversion into condominiums. n27 Once they have been rehabilitated, these buildings attract new and affluent n28 residents to the neighborhoods. n29

 [*959]  Urban gentrification initially drew praise from commentators n30 because it increased municipal tax revenues by augmenting real estate values. n31 These added revenues are of enormous importance in offsetting the financial difficulties experienced by many cities. n32 Recent criticism, however, has pointed out that gentrification is not without costs. n33 Gentrification uproots lower income residents, forcing them to seek affordable housing n34 in other neighborhoods. n35 This "displacement" process imposes inequitable burdens on those least able to bear them -- the displaced tenants. n36
 
 [*960]  B. The Costs of Displacement

Displacement n37 caused by gentrification is a problem facing many cities today. n38 First, gentrification displacement dismembers the former neighborhood. Commentators have argued that the stability of neighborhoods is essential to the preservation of a city's social fabric. n39 As gentrification shatters old neighborhoods, it may therefore effectively reduce the quality of life in the city as a whole.

The enormous impact that displacement has on individuals, however, is far more apparent than its effect on the city as a whole. n40 The displaced  [*961]  resident may find it extremely difficult to secure comparable housing because of the shortage of low and moderate income rental units in most cities. n41 Gentrification, through conversion and rehabilitation, exacerbates shortages by removing existing low and moderate income housing from the rental market. n42 Even when displaced tenants find new housing, they must still bear the cost of relocating to their new residences. n43

In addition to the out-of-pocket expenses of finding new shelter, displacement also generates psychological costs. Gentrification fragments the social structure of existing neighborhoods, dispersing residents throughout the entire city. n44 Residents displaced by development are frequently depressed by the loss of their former neighborhood and neighbors. n45 The psychological damage caused by the disruption of personal relationships should be considered in assessing the costs of gentrification. n46
 
 [*962]  C. Remedies for Displacement Costs

The federal government acknowledged that displacement was a serious concern when it enacted the Uniform Relocation Assistance Act (URA) in 1970. n47 The House Report accompanying the Act stated that "relocation is a serious and growing problem in the United States . . . especially for the poor, the nonwhite, the elderly, and people engaged in small businesses." n48 During the decades preceding the passage of the URA, displacement had been caused primarily by public action. n49 Accordingly, Congress mandated financial and advisory assistance for all persons displaced by federally funded projects. n50

Today, private enterprise is primarily responsible for urban displacement. n51 Because the URA only protects tenants displaced by federal projects and state projects with federal funding, n52 Congress specifically directed the Office of Housing and Urban Development (HUD) to study and recommend  [*963]  solutions to the problems caused by private displacement. n53 Although the HUD report recognized that privately caused displacement does create a problem, n54 it recommended shifting the prime responsibility for developing solutions to state and local governments. It determined that [l]ocal governments are in the best position to recognize the complexity of a displacement problem within their housing markets." n55
 
III. MUNICIPAL LAND USE CONTROL AS A RESPONSE TO GENTRIFICATION DISPLACEMENT
 
A. Land Use Control

Every state legislature has delegated a portion of its police power to municipalities so they may control the use of land. n56 Land use controls refer to the many methods by which public bodies circumscribe the use of private land. n57 They regulate private uses of real property that implicate traditional police power concerns n58 and cause significant changes in the physical aspects or character of the land. n59

 [*964]  Society has broadened the scope of land use controls over the past several decades, restricting proprietary autonomy to promote social responsibility. n60 Traditionally, fee simple absolute title n61 granted broad powers to use and dispose of land with little regard to the effects on the surrounding land and residents. n62 Today, however, a landowner must comply with a variety of land use restrictions, including zoning ordinances, n63 subdivision controls, n64 building code requirements, n65 comprehensive plans, n66 historical preservation requirements, n67 and environmental protection safeguards. n68

Land use regulations serving no legitimate police power purpose are invalid. n69 Land use control fosters the police power objectives of promoting health and meliorating the general welfare n70 by minimizing externalities -- the costs of land use and development to nonconsenting outsiders. n71 Municipalities  [*965]  achieve these goals by segregating noncompatible land uses such as residential and industrial activities.

All state land use enabling acts contain a clause, independent from the enumerated ends of land use control, providing for the enactment of ordinances to promote the general welfare. The general welfare purpose, as it legitimizes land use control, was formerly limited by courts to areas such as regulating density and basic health concerns. n72 Courts have, however, expanded their interpretation of enabling acts over the years. Consequently, municipalities today may regulate land to promote the preservation of a neighborhood's character, n73 the maintenance of a tax base, n74 the recognition of aesthetic concerns, n75 the necessity for adequate schools, n76 the inclusions of open space for recreation, n77 and historic preservation. n78 Although some land use controls may dramatically reduce the value of land, n79 they are justified on the ground that they promote the general welfare by internalizing costs that otherwise would have fallen on the surrounding community. n80
 
B. Sources of Municipal Land Use Control Power

1. Home Rule

Municipalities have virtually no inherent powers n81 and are authorized to act only by a grant of police power from the state. n82 Home rule provisions are one source of municipal power. These provisions are legislatively or  [*966]  constitutionally mandated in over half the states, n83 and grant municipalities authority to regulate "municipal affairs" -- or local matters. n84 Many police power concerns are statewide in scope n85 and are therefore the proper subject of state legislation. Because state authority is superior to municipal authority, local ordinances must yield to preemptive state law. n86 Land use controls enacted under home rule provisions typically address purely local matters n87 and are therefore not preemptible. n88

Home rule provisions should properly allow regulations addressing gentrification displacement. n89 Because gentrification nearly always involves population shifts within cities, it raises purely local concerns. Gentrification is usually limited to a few neighborhoods near the central business district of a large city. n90 The majority of gentrifiers move from somewhere within the same city, n91 and most tenants displaced by gentrification eventually settle in another neighborhood of the same city. n92 A HUD report on private displacement has concluded that this type of displacement is indeed a local matter. n93 Localities in home rule states are therefore fully empowered to enact ordinances addressing gentrification displacement without danger of ultra vires invalidation.

 [*967]  2. Legislative Enabling Acts

Municipalities without home rule powers must examine legislative enabling acts to determine if gentrification displacement regulation comes within the scope of their authority. In states without home rule provisions, municipalities are authorized to control land use by state zoning and subdivision enabling acts. n94 These acts grant municipalities the powers to address specific local problems, but limit the permissible ends and means of local land use controls.
 
C. The Scope of Municipal Authority

1. Permissible Ends of Land Use Control

Both courts and municipalities have recognized that land use controls are appropriate for regulating externalities that implicate police power concerns and change the character of a neighborhood. Traditionally, land use control was intended to

lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewage, schools, parks, and other public requirements. n95
 
Moreover, land use controls may be used to preserve buildings and areas of historic value. n96 Similarly, land use controls are a valid means of prohibiting changes in land uses that might destroy a community's family character. n97  [*968]  Gentrification displacement also affects the neighborhood's character. The rehabilitation of buildings attracts affluent residents n98 and the subsequent influx of new, wealthier residents drives up housing costs, making it virtually impossible for former tenants to remain. n99

The general welfare clause -- included in enabling acts to address unanticipated problems n100 -- grants municipalities unenumerated powers. Although the scope of the general welfare clause has been the focus of litigation, n101 it generally legitimates municipalities' efforts to regulate new problems as they arise. n102 Courts recognize the clause as an independent grant of power. n103 In most states, for example, general welfare clauses are the sole source of statutory authority for the wide array of aesthetic regulations of land use. n104 Courts have also upheld ordinances preserving neighborhood character solely on the basis of a general welfare clause. n105

 [*969]  2. Permissible Means of Land Use Control

Enabling acts, in addition to setting out the permissible ends of land use control, set forth the means by which municipalities may achieve these ends. n106 Zoning and subdivision control are the two most important means of regulating land use. n107 Zoning ordinances divide a municipality into districts and impose restrictions on the use of land in those districts. n108

Subdivision control, an important exercise of the general police power to control land use, n109 regulate the separation of a parcel of real estate into two or more parcels. n110 Subdivision control acts vary in their specific details from state to state, n111 but most are similar in design, granting a planning board or legislative authority the power to exercise discretion over approval of proposed subdivisions. n112 Subdivision control has been widely used to regulate the impact of real estate development on the existing community. n113 Municipalities may require concessions -- known as "subdivision extractions" -- from the developer prior to approving a proposed subdivision. Permissible extractions are enumerated by subdivision enabling acts.

Subdivision extractions force developers to internalize the costs of providing necessary public facilities for newly developed land. n114 These requirements reflect the view that it is unfair to allow an outside developer to unilaterally impose excessive burdens on the community. n115 By requiring  [*970]  extractions, the community shifts the burdens to the party most able to bear them -- the developer. The developer may offset his financial burdens by increasing prices for the sale of the developed land. n116 The cost of the new land use is therefore ultimately borne by those who benefit from it. n117

The most common type of extraction requires developers to dedicate land for necessary streets n118 or to finance the installation of water, drainage, and sewer systems. n119 More recently, legislatures have expanded municipal powers beyond these traditional concerns to allow extractions of land for open space preservation, n120 recreational needs, n121 and school construction. n122 When it is impractical to extract a dedication of land, n123 municipalities may require the developers to pay appropriate "in lieu" fees. n124

In requiring extractions, however, municipalities may not impose excessive burdens on developers. Courts employ two standards of review to circumscribe extractions. Some jurisdictions hold that extractions are legitimate if the burden of the extraction is "strictly and uniquely" attributable to  [*971]  the costs that the subdivision imposes on the community. n125 New York and California apply a more liberal standard, requiring an incidental relationship between the extraction imposed and the cost generated by the development. n126 Both standards nevertheless establish that the scope of extractions must be limited to the actual public costs generated by the development. n127

IV. SUBDIVISION CONTROL AS A METHOD OF REGULATING CONDOMINIUM CONVERSION IN GENTRIFYING NEIGHBORHOODS

Zoning is not an appropriate land use control for gentrification. Because it entails prohibition of uses, it would eliminate the financial benefits that municipalities gain from an increased tax base. n128 Subdivision controls are the most appropriate means of regulating urban gentrification. They are more flexible than zoning, n129 giving planning boards both the discretion to approve subdivisions and the power to condition that approval on certain limited extractions. n130 The use of these controls to address displacement problems would allow gentrification to continue while shifting the resulting burdens to condominium purchasers, the primary beneficiaries of gentrification.
 
A. Power to Apply Subdivision Extractions

1. Statutory Authority to Apply Subdivision Controls

Condominium conversion, a major cause of displacement in gentrifying neighborhoods, n131 should come within the definition of a subdivision. n132 It is  [*972]  literally a subdivision of an interest in real property, in which "vertical boundaries are divided into horizontal units in buildings." n133 Because laws allowing the condominium form of ownership were enacted long after the original subdivision control enabling acts, n134 however, most of these acts contain no reference to condominium conversions. Furthermore, subdivision controls were traditionally concerned with the development of open land n135 and thus have not been readily applied to the recent practice of subdividing existing structures. n136

In a few jurisdictions, however, municipal authority to regulate condominium conversion through subdivision controls is expressly mandated by state legislation. The California and Arizona subdivision control enabling acts define subdivision as, among other things, "a condominium project." n137 The Minnesota Uniform Condominium Act also empowers municipalities to apply subdivision controls to condominium conversions, but only if there is a shortage of low and moderate income rental housing. n138

 [*973]  One commentator has suggested that even enabling acts that do not mention condominiums explicitly may nevertheless authorize municipalities to treat condominium conversions as subdivisions, and impose appropriate extractions. n139

Even where a state's subdivision control enabling statute does not explicitly recognize coops and condos as subjects of subdivision control, the general language of the enabling law may be broad enough to encompass these matters. Thus, although the traditional image of subdividing contemplates the sale of plots of land, other divisions of realty -- here, the dividing of an apartment building into a number of separately owned units -- may fit within the legal definition. n140

2. Judicial Stance on Application of Subdivision Controls

Courts have stricken down most municipal efforts to use land use control for regulating condominium conversion on the grounds that conversion is a mere change in the form of ownership and not a separate land use. In Maplewood Village Tenants Association v. Maplewood Village, n141 for example, a tenants' association asserted that the developers should be required to obtain subdivision approval for the conversion of the tenants' building because the division of an apartment building into condominiums involved traditional subdivision concepts. n142 The New Jersey Supreme Court rejected the tenants' argument. It based its holding on the absence of an applicable local ordinance: the township subdivision ordinance made no reference to condominium conversion. n143 The Court added that even if the township had passed an ordinance regulating condominium conversion through subdivision controls, such an ordinance would have been ultra vires. n144 The Court limited municipalities' authority to regulate condominiums to the criteria of land use, which in most state enabling acts n145 allow only the regulation of the use, size, or type of construction of real property. n146 The word "use" refers  [*974]  only to physical use of lands and buildings -- not to ownership. n147 The court concluded that an ordinance imposing subdivision controls on condominium conversion would focus on the form of ownership and would accordingly be outside of the legislative grant of authority. n148

A recent Massachusetts case, CHR General, Inc. v. City of Newton, n149 addressed the validity of a condominium conversion ordinance that imposed a two-year eviction moratorium and required developers to file an "adequate relocation plan" as a prerequisite to approval of the conversion. n150 Citing Maplewood, the Supreme Judicial Court concluded that although zoning extends to the uses of condominiums, it cannot be applied to conversions qua conversions, a process that affects merely the form of ownership. n151

3. A New Look at the Validity of Applying Land Use Controls to Condominium Conversions

These cases n152 illustrate an application of the traditional premise of all land use regulation -- activity may be regulated only if it in fact causes problems that municipalities may legitimately address. n153 They do not foreclose the application of subdivision controls to condominium conversions resulting in displacement. n154 These cases do not address situations in which a shift to the condominium form of ownership has an impact on the character of the community and ultimately makes it difficult for displaced low and moderate income tenants to find housing. n155 The court in Maplewood, for example, would probably have reached a different result if the conversion had altered the character of the neighborhood through gentrification displacement. n156 .

 [*975]  The absence of enabling act provisions that refer specifically to condominium conversion does not mean that land use control cannot be used to address the displacement problem. This absence instead reflects the fact that private displacement is a new problem. n157 Until recently, the public sector caused most displacement. n158 In addition, most displaced persons received relocation benefits under the Uniform Relocation Assistance Act, n159 thus obviating the need for municipal land use controls. Furthermore, legislators could not have foreseen the need to include displacement regulation as one of the proper ends of land use control since urban gentrification is a recent phenomenon n160 and most zoning and subdivision enabling acts were passed before World War II. n161 Finally, because urban gentrification is local n162 -- affecting a few neighborhoods within large cities -- state legislators may simply be unaware of the problem.

Notwithstanding the lack of explicit statutory authority for municipal regulation of gentrification, such regulation is implicitly authorized by the general welfare clause of enabling acts. The general welfare clause gives municipalities authority to address new or unanticipated difficulties. n163 Because gentrification is a new problem arising from land use, it is important that courts recognize municipal authority to address this problem under the general welfare clause of land use control enabling acts. In addition, the alleviation of crowding is an express goal of most enabling acts. n164 Because gentrification has been shown to lead to significant crowding, n165 land use control is a particularly appropriate method of addressing displacement.

The holdings of the Maplewood line of cases are inconsistent with other cases that have held changes in ownership regulable under land use control. n166 Judicial resistance to conversion regulation may thus simply reflect the courts' suspicion that municipalities are unduly biased against the condominium  [*976]  form of ownership and would therefore abuse any form of independent regulatory power through conversion bans. n167

Judicially broadening the definition of subdivisions to include condominium conversion would not allow municipalities to subject conversions to such abuse. Municipalities that treat condominiums as subdivisions, for example, could not impose unwarranted extractions for open space, sewerage and drainage needs, or roadway construction to render conversions economically unfeasible. n168 Unlike open land subdivisions, n169 condominium conversions generate none of these needs. Because these extractions bear no relation to conversion externalities, municipalities could not impose them pretextually on conversions. Courts would strike such attempts under traditional standards of review governing extractions. n170 Extractions addressing relocation costs, however, would be valid because conversion bears a close relation to displacement. n171
 
B. Appropriateness of Subdivision Extractions

1. Inadequate Municipal Regulation of Condominiums

Some municipalities that have been empowered to regulate condominiums have addressed displacement problems through regulations that limit or prohibit conversion. n172 These approaches are inappropriate for curbing displacement costs in gentrifying neighborhoods because they ultimately deter gentrification, a development that municipalities wish to promote. n173

 [*977]  Several communities have formulated policies retarding or prohibiting displacement. Cambridge, Massachusetts, faced with a high level of conversion n174 of rent-controlled apartments, n175 has passed an ordinance that requires the rent control board to consider the impact upon tenants prior to granting an eviction permit. n176 The ordinance allows the city rent control board to withhold the permit if the burden of displacement is too great. n177 Brookline, Massachusetts enacted a similar ordinance that prohibits eviction of tenants of rent-controlled housing for condominium conversion. n178

The Brookline/Cambridge type of approach severely curtails gentrification through condominium conversion by stopping the flow of private capital into urban residential areas. Although such an approach eliminates undesirable displacement, it also eliminates the benefits of the tax base expansion that accompanies gentrification. n179 This approach is thus an inappropriate model for a solution that both addresses displacement problems and encourages gentrification.

Some municipalities have required developers to internalize relocation costs through direct cash transfers to displaced tenants. Seattle, Washington, for example, requires developers to pay displaced tenants a $ 350 relocation fee. n180 Los Angeles has also adopted ordinances that allow conversion while providing relocation assistance. n181 The ordinances give tenants the first opportunity to buy the converted unit. n182 They also obligate the developer to help find new housing for tenants who do not buy and to pay them up  [*978]  to $ 1000 to cover moving expenses. n183 Cash transfers, although useful in addressing the monetary costs of displacement, do not adequately address psychological costs; a lump-sum payment is small consolation for a resident who suddenly finds himself a stranger in his own neighborhood. n184

Some municipalities have adopted an alternative approach that delays issuance of eviction permits until a specified period of time has elapsed from the filing of the condominium master deed. n185 Although this approach does not fully address the financial and psychological burdens imposed upon displaced tenants, it does provide the tenants with more time to prepare for the transition. n186 A lengthy postponement of eviction would nevertheless undesirably delay the revitalization spurred by gentrification.

2. The Subdivision Extraction Alternative

A sounder approach to ameliorating displacement problems in gentrifying neighborhoods lies in municipal subdivision control. n187 The use of subdivision  [*979]  extractions is superior to a conversion ban or moratorium because it does not bar or delay gentrification. It addresses the primary concern -- aiding displaced tenants by shifting the financial costs of relocation to the developer -- without reducing the benefits accruing to the city. In addition, the extraction approach is flexible because it allows municipalities to vary the size of the extraction depending on the costs of relocation, which may fluctuate. n188 Moreover, the extraction approach is less disruptive to the free market than a conversion ban or moratorium. The cost of the extraction is simply included in the purchase price; the externality is internalized without prohibiting the transaction. n189

Under this approach, the municipality would premise approval of the condominium conversion upon a developer's payment of a fee analogous to the traditional suburban "in lieu" fee extraction. n190 These extractions would contribute to the funding of a municipal relocation authority. n191 This relocation authority could minimize both the psychological n192 and financial costs of displacement.

Ideally, the municipal relocation authority (MRA) would have simple and limited goals. The first would be to determine in which neighborhoods condominium conversion was leading to gentrification and displacement. All condominium developers would be required to notify the MRA of their intent to convert a property. If the conversion was in a nongentrifying neighborhood the developer would have no further contact with the MRA,  [*980]  and should be so informed at this notification stage. If the property were in a gentrifying neighborhood, the MRA would then send letters to both the condominium developer and the tenant. The letter to the tenant would contain a clear statement of the tenant's rights, and the benefits available under state law as well as the municipal ordinance. It would include the scope of the advisory and financial assistance available to the tenant from the MRA. Finally, it would advise that if the tenant decided to purchase the converted apartment, the financial benefits of the MRA would not be available because there would be no displacement.

The letter to the developer would set forth the cost of the relocation extraction. It would further inform the developer that if he or she could work out an independent settlement with the tenant, the MRA would not be involved and further. The letter should set out a period of thirty to ninety days in which the developer could negotiate with the tenant for a private resolution of the displacement costs. If the developer is thus in a position to more efficiently address the costs of displacement, he or she would not be prohibited from doing so because of the existence of a municipal ordinance.

If the tenant decided not to waive the benefits of the MRA through a private agreement, he or she would have access to the services of the MRA. The MRA would serve two functions: advisory and economic. In its advisory role the MRA would inform the tenants of three major items. First, it would outline the tenant's rights under state law. n193 Second, it would counsel the tenants on various methods of obtaining equity in the unit to be converted. n194 Thus, if the tenant qualified for an FHA or similar state housing loan program, for example, he or she should be informed of the opportunity. A brief review of the tenants' financial circumstances would quickly determine if they were in the position to purchase the unit and avoid displacement. Finally, the MRA would discuss with the tenant other neighborhoods in the city where gentrification is unlikely, preferably close to the  [*981]  tenant's former neighborhood and place of work. n195 In this advisory capacity, the MRA would inform tenants of their full range of options in the face of gentrification displacement.

In its economic capacity, the MRA would cover the monetary costs of displacement. The major cost would be moving expenses, n196 although finders' fees for a new apartment may also be burdensome and should be considered. This program, although it may seem quite ambitious, could probably be achieved with minimal personnel. n197 Moreover, government agencies already determine the costs of relocation whenever relocation is caused by public action. n198

The majority of states where home-rule acts are in effect have already granted their municipalities the power to enact such ordinances. Any subdivision extractions imposed on developers in the minority of states that do not have home rule provisions in their constitutions would have to be specifically authorized by the applicable subdivision enabling act. n199 No state subdivision enabling act currently identifies displacement as an externality to be addressed through extraction. To implement an approach such as that suggested in this Note, therefore, municipalities undergoing urban gentrification should appeal to state legislatures for an amendment to the existing state subdivision enabling acts. Such an amendment need only include displacement in the list of municipal concerns presently addressed  [*982]  through subdivision extractions. With a minimum of effort, legislators could grant municipalities the power to address displacement concerns in a manner that incorporates the safeguards already developed by courts. Judicial standards requiring that extractions be strictly attributable to the costs imposed by the subdivision upon the community would thus circumscribe any potential for municipal abuse of the subdivision extraction power.

V. CONCLUSION

Condominium conversion in gentrifying enighborhoods offers benefits to the many cities in which it occurs. Conversion nevertheless imposes burdens on the tenants who are displaced from their homes. n200 Cities should attempt to address the social costs of displacement without stultifying the process of gentrification. Municipalities can achieve this dual goal through their land use control power.

Because conversion in gentrifying neighborhoods changes the character of a neighborhood, it is not a mere change in the form of ownership. n201 Municipalities may therefore properly apply their land use controls to such conversions. Subdivision control is the best tool of municipal land use control with which to address the problems caused by gentrification conversion. Through extractions, municipalities can assure that condominium purchasers -- the beneficiaries of the new land use -- bear the relocation costs instead of the displaced low and moderate income tenants. The extraction of fees can be used to finance a municipal authority that will coordinate relocation of tenants from gentrifying neighborhoods to their new homes. This flexible approach benefits both condominium developers and tenants because it allows conversion and gentrification to continue in a socially responsible manner.

State subdivision control enabling statutes do not include displacement among the externalities that may be addressed through extractions. Because gentrification is a local matter, municipalities in home rule states should amend their subdivision control ordinances to address displacement costs. Municipalities in non-home rule states should appeal to state legislators to amend subdivision enabling acts to include displacement. The judiciary may ensure that the scope of the extraction is limited to the costs of relocation by adopting the standard of review traditionally applied to subdivision extractions.

FOOTNOTES:
n1 HOUSING FOR ALL UNDER THE LAW 4-9 (R. Fishman ed. 1978) [hereinafter cited as HOUSING FOR ALL]. This decline in the quality of life is characterized by several factors, including high crime rates, see URBAN PROBLEMS: PSYCHOLOGICAL INQUIRIES 355 (N. Kalt & S. Zalkind eds. 1976); high rates of unemployment, see F. HARRIS & J. LINDSAY, THE STATE OF THE CITIES: REPORT OF THE COMMISSION ON THE CITIES IN THE 70's 44-45 (1972); and industrial disinvestment, see PRESIDENT'S COMMISSION FOR A NATIONAL AGENDA FOR THE EIGHTIES, URBAN AMERICA IN THE EIGHTIES: PERSPECTIVES AND PROSPECTS 41-42 (1981).

n2 Sumka, Federal Antidisplacement Policy in a Context of Urban Decline, in BACK TO THE CITY: ISSUES IN NEIGHBORHOOD RENOVATION 269, 271-72 (1980) [hereinafter cited as BACK TO THE CITY].

n3 HOUSING FOR ALL, supra note 1, at 6. Housing left behind by white flight tends to be older, in worse condition, and in less desirable neighborhoods than housing in suburba. Financial institutions and residents have therefore disinvested in urban housing stock, making large urban areas sites of crime, pollution, and poverty. Id.

n4 See Mailer, Cities Higher than Mountains, N.Y. Times, Jan. 31, 1965, 6 (Magazine), at 16 (criticizing the prison-like character of urban renewal housing). For varied perspectives on the successes and failures of the federal urban renewal program, see essays collected in URBAN RENEWAL: THE RECORD AND THE CONTROVERSY (J. Wilson ed. 1966) [hereinafter cited as URBAN RENEWAL].

n5 Lipton, Evidence of Central City Revival, reprinted in BACK TO THE CITY, supra note 2, at 42.

n6 Gentrification is a term in land development to describe a trend whereby previously "underdeveloped" areas become "revitalized" as persons of relative affluence invest in homes and begin to "upgrade" the neighborhood economically. This process often causes the eviction of the less affluent residents who can no longer afford the increasingly expensive housing in their neighborhood.
Business Ass'n of Univ. City v. Landrieu, 660 F.2d 867, 874 n.8 (3d Cir. 1981).

n7 See O. REYNOLDS, LOCAL GOVERNMENT LAW 288 (1982) (identifying "budget crunch" as among the most serious problems facing American cities). See also id. at 328-30 (discussing threat of municipal bankruptcies).

Precise statistical data defining the effect of gentrification on municipal tax bases is unavailable. Nevertheless, a recent government study shows that condominium conversion -- a mainspring of gentrification -- results in an average increase of 139% in the properties' assessed values. OFFICE OF POLICY DEVELOPMENT AND RESEARCH, U.S. DEPT. OF HOUSING AND URB. DEV., THE CONVERSION OF RENTAL HOUSING TO CONDOMINIUMS AND COOPERATIVES: A NATIONAL STUDY OF SCOPE, CAUSE AND IMPACTS, VIII-8 & n.18. (1980) [hereinafter cited as HUD CONVERSION REPORT].

n8 M. LANG, GENTRIFICATION AMID URBAN DECLINE 15 (1982).

In Philadelphia, for example, developing neighborhoods were once characterized by large houses on deep lots, affordable only by the wealthy. These households constructed small row houses in the rear of their lots that were occupied by the less affluent working class. These center city neighborhoods had a surprising amount of economic diversity. Within a neighborhood, housing of varied quality at different rents was available, and residents ranged from wealthy owners of large detached houses to working class tenants occupying small rowhouses. These latter tenants often found employment within the neighborhood. After gentrifiers purchased these homes, their values escalated. The smaller homes, because of their location, also began commanding premium prices. As a result, the neighborhoods developed a strictly affluent character. Id.

n9 Id. H. Grier, Urban Displacement: A Reconnaissance, in BACK TO THE CITY, supra note 2, at 269, 271-72.

n10 LeGates & Hartman, Displacement, 15 CLEARINGHOUSE REV. 207, 229 (1981).

n11 See, e.g., Uniform Relocation Assistance Act, 42 U.S.C. §§ 4621-4638 (1970) (setting out comprehensive scheme of federal relocation benefits).

n12 M. LANG, supra note 8, at 5.

n13 See, e.g, Parlane Sportswear Co. v. Weinberger, 513 F.2d 835, 836-37 (1st Cir. 1975) (holding Uniform Relocation Assistance Act inapplicable to government-aided private development).

n14 See infra notes 172-86 and accompanying text. See generally Comment, The Condominium Conversion Problem: Causes and Solutions, 1980 DUKE L.J. 306 (discussing municipal regulation of conversion).

Condominium conversion is one of the major causes of privately induced displacement. A federal government housing study conducted in four major cities showed that an average of 33% of all housing in revitalized neighborhoods was converted to condominiums. OFFICE OF POLICY STUDIES, U.S. DEP'T OF HOUSING AND URB. DEV., RESIDENTIAL DISPLACEMENT -- AN UPDATE 31 (1980) [hereinafter cited as HUD DISPLACEMENT UPDATE]. See also BOSTON HOUSING POLICY WORKSHOP, DEP'T OF CITY AND REGIONAL PLANNING, JOHN F. KENNEDY SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY, DISPLACEMENT IN BOSTON'S APPRECIATING NEIGHBORHOODS: THE INTERACTION OF GOVERNMENT POLICIES AND MARKET FORCES 29-30 (1981) [hereinafter cited as HARVARD DISPLACEMENT STUDY].

n15 See infra notes 141-51 and accompanying text.

n16 Id.

n17 J. DINKELSPIEL, J. UCHENICK & H. SELESNICK, CONDOMINIUMS: THE EFFECTS OF CONVERSION ON A COMMUNITY 35 (1981). Extensive rehabilitation "results, among other things, in prices two to three times higher than those in [suburban areas, and] . . . [a]ssociated with this practice is a drastic change in the character of building occupants from students and middle income renters to upper income owners." Id. See infra notes 22-29 and accompanying text.

n18 See generally HOUSING FOR ALL, supra note 1, at 1-15. The post-war period was characterized by racial and economic segregation, rising costs of land and housing, central city deterioration, and urban-suburban disparties in education and other public services. Id.

n19 Id.

n20 OFFICE OF POLICY DEV. AND RESEARCH, UNITED STATES DEP'T OF HOUSING AND URB. DEV., A SURVEY OF CITIZENS' VIEWS ABOUT URBAN LIFE 9 (1981).

n21 Sternlieb & Hughes, New Regional and Metropolitan Realities of America, J. OF AM. INST. OF PLANNERS, July, 1977, at 227, noted in Sumka, Federal Antidisplacement Policy in a Context of Urban Decline, in BACK TO THE CITY, supra note 2, at 271.

n22 Lipton, Evidence of Central City Revival, in BACK TO THE CITY, supra note 2, at 42. Most persons moving into these neighborhoods move from another residence within the same city. LeGates, Gentrification-Caused Displacement, 14 URB. LAW. 31, 34 (1982)

n23 Clay, The Rediscovery of City Neighborhoods: Reinvestment by Long-Time Residents and Newcomers, in BACK TO THE CITY, supra note 2, at 20.

n24 M. LANG, supra note 8, at 8-9.

n25 Clay, supra note 23, at 22. Gentrified neighborhoods are typically located near the central business district, often near areas of historic interest, water, or a public open space. These areas are likely to have some distinctive architectural style that is consistent throughout the neighborhood. Id.

n26 HARVARD DISPLACEMENT STUDY, supra note 14, at 42-44. In Boston, 1,281 households living in low and moderate income rental units may have been displaced during 1979 alone. This figure represents 58% of all Boston households displaced by condominium conversion from 1970 to 1980. Id.

n27 Id. at 42-43.

n28 See id. at 35-40 (rate of influx of professional residents to Boston's gentrified innercity neighborhoods is triple the rate of influx in whole city, strongly suggesting a higher rate of displacement). Although most persons moving into gentrifying neighborhoods move from another residence within the same city, the majority were raised in a suburban or rural environment. Gale, Neighborhood Resettlement: Washington, D.C., in BACK TO THE CITY, supra note 2, at 100. The typical gentrifier is a suburbanite who moved to the city to pursue vocational or educational aims and "found the possibility of being involved in urban revitalization an interesting, worthy, and potentially lucrative experience." M. LANG, supra note 8, at 7.

n29 Clay, supra note 23, at 20.

n30 See, e.g., Allman, The Urban Crisis Leaves Town, HARPER'S, Dec. 1978, at 43; Fleetwood, The New Elite and an Urban Renaissance, N.Y. Times, Jan. 14, 1979, 6 (Magazine), at 34; Sutton, America Falls in Love with its Cities -- Again, SAT. REV., August 1978, at 16.

n31 Property tax is the major source of municipal tax revenue. Because it is based on a percentage of the assessed value of real estate, O. REYNOLDS, supra note 7, at 294, the increase in real property values accompanying gentrification results in an increased tax base. See supra note 7. But cf. Laska, Anticipating Renovators' Demands: New Orleans, in BACK TO THE CITY, supra note 2, at 117 (suggesting that much of the increase in municipal tax revenues may be offset by new residents' greater demand for expensive municipal services).

n32 In 1975, the nation's largest municipality, New York City, found itself on the brink of financial disaster, see How New York City Lurched to the Brink, TIME, June 16, 1975, at 16. Other, smaller municipalities as well have faced fiscal hardship, see, e.g., Peterson, County Embracing Detroit Unable to Meet Payroll, N.Y. Times, Oct. 19, 1979, at A14; Philadelphia Catches Fiscal Flu, BUS, WEEK, Feb. 25, 1980, at 53; see generally O. REYNOLDS, supra note 7, at 288, 328-30.

n33 See, e.g., M. LANG, supra note 8, at 33-35 (describing costs and benefits of gentrification); LeGates, supra note 22, at 31 (measuring displacement impact of gentrification). For various views on social issues raised by gentrification, see BACK TO THE CITY, supra note 2.

n34 Although tenants displaced by gentrification often find new housing of equal or better quality than their quondam housing, LeGates, supra note 22, at 48-50, there is almost always an increase in the cost of shelter. Id. at 47-48.

n35 Most displaced tenants move to a different neighborhood. LeGates, supra note 22, at 46-47. Many displaced tenants, however, initially move to a new location within the same neighborhood. Id. As gentrification spreads within the neighborhood, these tenants may ultimately have to leave the neighborhood altogether. Id. at 47.

n36 See SENATE COMM. ON BANKING, HOUSING, AND URBAN AFFAIRS, S. REP. NO. 871, 95th Cong., 2d Sess. 49, reprinted in 1978 U.S. CODE CONG. & AD. NEWS 4773, 4822 (stating that "[t]he committee is deeply concerned that the adverse impact of rehabilitation activities is greatest on those who can least afford it") [hereinafter cited as SENATE REPORT]. See also Business Ass'n of Univ. City v. Landrieu, 660 F.2d 867, 874 n.8 (3d Cir. 1981) (stating that "[g]entrification is a deceptive term which masks the dire consequences that 'upgrading' of neighborhoods causes when the neighborhood becomes too expensive for either rental or purchase by the less affluent residents who bear the brunt of the change"); LeGates, supra note 22, at 53-54.

n37 Displacement is defined as the involuntary movement of a neighborhood's inhabitants resulting from development of the neighborhood. Sumka, Federal Antidisplacement Policy in a Context of Urban Decline, in BACK TO THE CITY, supra note 2, at 270.

n38 A recent study focusing on displacement in various neighborhoods of one city concluded that displacement in gentrifying neighborhoods was a serious problem. See HARVARD DISPLACEMENT STUDY, supra note 14, at 28-47. Moreover, a recent nationwide survey of gentrification studies, many of which applied a focused, neighborhood-based method of research, concluded that the seriousness of gentrification called for "immediate and effective public policies." LeGates, supra note 22, at 55. Gentrification has the greatest impact on a few neighborhoods located near central business districts. See HARVARD DISPLACEMENT STUDY, supra note 14, at 35-40. Cf. M. LANG, supra note 8, at 29 (stating that gentrification remains "essentially uncontrolled" and "constitutes a direct threat to . . . the entire inner city sector").

Although many studies have concluded that gentrification is a problem, their accuracy is questionable because of a lack of city-wide empirical evidence. See LeGates, supra note 22, at 39; Hening, Gentrification and Displacement Within Cities: A Comparative Analysis, 61 SOC. SCI. Q. 638, 639 (1980). Sociologists have had difficulty quantifying or measuring the effects of gentrification displacement because displaced tenants, dispersed to other neighborhoods, cannot be contacted easily. Moreover, gentrification often occurs in neighborhood units that are smaller than those units traditionally monitored to chart demographic changes. Earlier studies are, therefore, useless as sources of empirical evidence of displacement. See LeGates, supra note 22, at 39; Henig, Gentrification and Displacement Within Cities: A Comparative Analysis, 61 SOC. Sci. Q. 638, 639 (1980). As the displacement problem becomes more acute, however, and demographers and policy makers focus their attention on smaller neighborhood units, this measuring problem can be overcome. See, e.g., Grier, Urban Displacement: A Reconnaissance, in BACK TO THE CITY, supra note 2, at 252.

n39 See, e.g., THE NATIONAL COMMISSION OF NEIGHBORHOOD PEOPLE, BUILDING NEIGHBORHOODS, FINAL REPORT TO THE PRESIDENT AND THE CONGRESS OF THE UNITED STATES 1 (1979); A. GREELEY, NEIGHBORHOOD XV (1977) (asserting that neighborhoods are necessary to avoid the dehumanization of cities).

n40 Because gentrification changes a neighborhood's character and disrupts personal relationships, it may have an acute psychological effect on displaced residents. See 1 B. BERRY, GROWTH CENTERS IN THE AMERICAN SYSTEM 53 (1973) (describing the neighborhood as a source of order in an individual's search for identity in mass society); R. CASSIDY, LIVABLE CITIES 7 (1980) (characterizing neighborhoods as partial source of the identity of its members); A. DOWNS, URBAN PROBLEMS AND PROPOSALS 192 (1970) (describing psychological impact of the loss of a neighborhood in the context of urban renewal); Fried, Grieving for a Lost Home, in URBAN RENEWAL, supra note 4, at 359 (describing predominant feeling of former residents at loss of neighborhood as one of grief and emphasizing that dual loss of spatial and group identity aggravated this feeling).

n41 The vacancy rate of rental apartments is at a postwar low; the supply of new units is at its lowest level in 20 years. Advanced Mortgage Corp. Survey, cited in 10 HOUSE. AND DEV. REP. (BNA) 372 (Sept. 27, 1982). The shortage of affordable housing forces low-income tenants to spend a disproportionately high percentage of their income on rent. See NATIONAL URBAN COALITION, THE OUTLOOK FOR HOUSING: A WORSENING PROBLEM, cited in 9 HOUSE. AND DEV. REP. 279 (Aug. 31, 1981).

n42 See HUD DISPLACEMENT UPDATE, supra note 14, at 30 ("The net shift from renter to owner-occupancy in a neighborhood is a useful indicator of the reduction in housing opportunities for renters in the neighborhood.").

n43 The government's major relocation benefit scheme, the Uniform Relocation Assistance Act, does not offer assistance to victims of private displacement. See 42 U.S.C. 4601(6) (1970). Some municipalities, recognizing the burdens of private displacement, have established programs to address the problem. Duarte, California requires developers to make a payment to displaced tenants equal to one and a half times the monthly rent. Walnut Creek, California, has a similar provision mandating payment of two times the monthly rent. OFFICE OF POLICY DEVELOPMENT AND RESEARCH, U.S. DEPT. OF HOUSING AND URB. DEV., THE CONVERSION OF RENTAL HOUSING TO CONDOMINIUMS AND COOPERATIVES: STATE AND LOCAL REGULATION 31 n.19 (1981).

n44 See LeGates, supra note 22, at 46-47.

n45 Fried, Grieving for a Lost Home: Psychological Costs of Relocation, in URBAN RENEWAL, supra note 4, at 360-61. 20% of 250 residents surveyed reported a long period of sadness (six months to two years) after being displaced from their homes. An additional 26% reported that they were still sad or depressed after two years. Id. at 360.

n46 Displaced tenants often display unfocused bitterness because they receive little, if any, official recognition of their plight. The statements of one angry resident of a gentrifying neighborhood exemplified the general feeling:

What's happening to the Italians is the same thing that happened in Society Hill, where they chased the blacks out, and Queen Village, where they chased the poor Poles and Ukranians out. They couldn't compete with the tax base the professionals were setting. Some people make a killing; they get a home they paid $ 4,500 for, and they sell it for $ 100,000 and go to Jersey. But a lot of others hate what's happening. They think they are going to be pushed. They think, who the hell do these stinking liberals think they are? They're going to take over!
Bennetts, The Philadelphia Story -- Updated, N.Y. Times, May 10, 1981, 6 (Magazine), at 62.

The mere existence of a relocation program may assuage some frustration felt by displaced residents. The program could minimize the disruption of personal relationships by recommending and coordinating relocation from one neighborhood to another single neighborhood. See infra note 192 and accompanying text.

n47 U.S.C. §§ 4601-4655 (1970). The Act preempted an array of relocation assistance programs that often treated similarly situated persons inconsistently. Id. 4621. The Act recognized that "[t]he lack of decent, safe, and sanitary rental housing for displaced lower income families and individuals, at rentals they can afford, presents the most difficult of all relocation problems." H.R. REP. NO. 1656, 91st Cong., 2d Sess. 12, reprinted in 1970 U.S. CODE CONG. & AD. NEWS 5850, 5861.

n48 H.R. REP. NO. 1656, 91st Cong., 2d Sess. 12, reprinted in 1970 U.S. CODE CONG. & AD. NEWS 5850, 5852. The Act "recognizes that relocation is a serious and growing problem in the United States and that the pace of development will accelerate in the years immediately ahead. It recognizes that advisory assistance is of special importance in the relocation process . . . ." Id.

n49 LeGates & Hartman, supra note 10, at 229.

n50 46 U.S.C. §§ 4622-4626 (1970).

n51 LeGates & Hartman, supra note 10, at 229.

n52 The Act applies to anyone who "moves from real property . . . as a results of . . . a program or project undertaken by a Federal agency, or with Federal financial assistance." 42 U.S.C. 4601(6) (1970).

n53 Act of Oct. 31, 1978, Pub. L. No. 557, 42 U.S.C. 5315, 92 Stat. 2125.

n54 OFFICE OF POLICY PLANNING, U.S. DEP'T OF HOUSING AND URB. DEV., FINAL DISPLACEMENT REPORT 1 (1979) [hereinafter cited as HUD DISPLACEMENT REPORT].

n55 Id. at 26. In a later report, the Department of Housing and Urban Development reaffirmed this view, stating that "localities must assume the responsibility for developing locally-tailored solutions to address displacement." HUD DISPLACEMENT UPDATE, supra note 14, at vi.

n56 1 R. ANDERSON, AMERICAN LAW OF ZONING §§ 2.06, 2.10 (1976).

n57 See generally 1 P. ROHAN, ZONING AND LAND USE CONTROLS 1.02 (1983). These methods include zoning, subdivision regulations, building and housing codes, capital improvement programs, and taxation. Id.

n58 Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926). Traditional police power concerns include public health, safety, morals, or general welfare. 1 R. ANDERSON, supra note 56, 2.10. Municipal land use controls are valid only if they bear a real and substantial relation to these objectives. See J.D. Constr. Corp. v. Board of Adjustment, 119 N.J. Super. 140, 144, 290 A.2d 452, 455 (1972) (holding invalid an ordinance limiting number of apartments to 15% of number of single-family houses in community).

n59 A land use ordinance could not address an activity that did not affect the physical aspects or character of the land because it would not serve a police power end related to land use. See 1 R. ANDERSON, supra note 56, 703. A wide variety of municipal ordinances have been invalidated because they were not concerned with the physical aspects of the land. See Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 30, 54 A.2d 675, 677 (1947) (holding that change in ownership of valid nonconforming use does not allow municipalities to terminate the use because zoning concerned with use of land, not primarily with ownership); Vlahos v. Little Boar's Head Dist., 146 A.2d 257, 260 (N.H. 1958) (holding that variance to operate an ice cream stand could not be made nontransferable because zoning restrictions designed to regulate land and its use, not identity of user); Metzdorf v. Borough of Rumson, 67 N.J. Super 121, 129 (1961) (holding that testamentary subdivision of land is not affected by land use controls that are concerned solely with manner in which an owner utilizes land, and not how the owner transfers title); DeSena v. Gulde, 24 A.D.2d 165, 171, 265 N.Y.S.2d 239, 246 (1965) (invalidating zoning ordinance passed for purpose of eliminating threat of civil disturbances). See infra notes 141-51 and accompanying text.

n60 See Clawson, Introduction: Social Controls over Private Land Use, 22 S.D.L. REV. 479, 479-80 (1977). See also Hecht, From Seisin to Sit-In: Evolving Property Concepts, 44 B.U.L. REV. 435, 460-66 (1964) (describing impact of "negro revolution" and use of sit-ins on concept of proprietorship).

n61 A fee simple absolute is an estate in land limited absolutely to a man and his heirs and assigns forever without limitation or condition. An absolute or fee simple estate is one in which the owner is entitled to the entire property, with unconditional power of disposition during his life, and descending to his heirs and legal representatives upon his death intestate. Such estate is unlimited as to duration, disposition, and descendibility.
BLACK'S LAW DICTIONARY 554 (5th ed. 1979).

n62 See Hecht, supra note 60, at 440.

n63 See 1 R. ANDERSON, supra note 56, 1.13.

n64 See E. YOKLEY, LAW OF SUBDIVISIONS §§ 4-9 (1981).

n65 See C. FIELD & S. RIVKIN, THE BUSINESS CODE BURDEN 33-56 (1975). Generally, a building code imposes requirements that a unit or structure must satisfy before it is approved for construction. Id.

n66 See 5 P.ROHAN, supra note 57, 37.

n67 See id. 7.

n68 See D. MANDELKER, ENVIRONMENT AND EQUITY: A REGULATORY CHALLENGE 107-26 (1981).

n69 Nectow v. City of Cambridge, 277 U.S. 183, 189 (1928). For a list of legitimate police power objectives, see supra note 58.

n70 Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926); 1 R. ANDERSON, supra note 56, 3.08.

n71 In the context of land use, "externalities," or spillover costs, are the impact of a given land use on nonconsenting outsiders. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 681 (1973).

n72 See 1 A. RATHKOPF, LAW OF ZONING AND PLANNING 3.03.

n73 Vieux Carre Property Owners Ass'n v. City of New Orleans, 246 La. 788, 790, 167 So. 2d 367, 369 (1964).

n74 Newark Milk & Cream Co. v. Township of Parsippany-Troy Hills, 47 N.J. Super. 306, 328, 135 A.2d 682, 695 (1957).

n75 People v. Stover, 12 N.Y.2d 462, 466, 191 N.E.2d 272, 274, 240 N.Y.S.2d 734, 737, appeal dismissed, 375 U.S. 42 (1963).

n76 Jordan v. Menomonee Falls, 28 Wis. 2d 608, 616, 137 N.W.2d 442, 448 (1965).

n77 Associated Homebuilders of Greater E. Bay, Inc. v. City of Walnut Creek, 4 Cal. 3d 633, 641, 484 P.2d 606, 615, 94 Cal. Rptr. 630, 636 (1971).

n78 Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 131 (1978).

n79 See, e.g., Bolger v. Village of Mt. Prospect, 10 Ill. 2d 596, 600, 141 N.E.2d 22, 25 (1957) (value of land with proposed use: $ 116,100; value with permitted use: $ 29,025); Bowman v. Southfield, 377 Mich. 237, 242, 140 N.W.2d 504, 505 (1966) (value of land with proposed use: $ 53,540; value with permitted use: $ 7,700); Wrigley Properties, Inc. v. Ladue, 369 S.W.2d 397, 398 (Mo. 1963) (value of land with proposed use: $ 450,000; value with permitted use: $ 50,000).

n80 1 A. RATHKOPF, supra note 72, 2.02[3].

n81 2 E. McQUILLIN, MUNICIPAL CORPORATIONS 10.03, at 740-41 (3d ed. 1979). But see id. 10.11, at 764-65 (identifying small minority of municipalities with certain limited inherent powers).

n82 O. REYNOLDS, supra note 7, at 137.

n83 Id. at 95. See, e.g., CAL. CONST. art. XI, §§ 3-5; MASS. CONST. amend. II, §§ 1-6; OHIO CONST. art. XVIII, 2; DEL. CODE ANN. tit. 22, 802 (1975); IND. CODE ANN. 36-1-3-2 (WEST 1981).

n84 See Comment, Land-Use Controls, Externalities, and the Municipal Affairs Doctrine: A Border Conflict, 8 LOY. L.A.L. REV. 432, 436-42 (1975) (no precise definition of term "municipal affairs" exists).

n85 O. REYNOLDS, supra note 7, at 107.

n86 Id. at 112.

n87 See Board of County Comm'rs v. City of Thornton, 629 P.2d 605, 610 (Colo. 1981) (holding preservation of value of city property is a local concern); Allison v. Washington County, 24 Or. App. 571, 584, 548 P.2d 188, 196 (1976) (holding regulation of building height a local concern); Ekern v. City of Milwaukee, 190 Wis. 633, 641, 209 N.W. 860, 862 (1926) (same); see also Comment, supra note 84, at 456-62 (suggesting that test to determine if a land use is local is whether use generates externalities beyond municipal borders).

n88 O. REYNOLDS, supra note 7, at 96. But see State ex rel. Thelen v. City of Missoula, 168 Mont. 375, 381, 543 P.2d 173, 176 (1975) (holding that state law may even preempt home rule zoning powers over local matters).

n89 Displacement per se can be a local or statewide concern, depending on whether more than one locality is implicated by the relocation. Displacement arising from real estate development, for example, would be a statewide matter if displaced residents were relocated to other communities. Conversely, gentrification that did not involve relocation across municipal borders would be a local matter.

n90 See supra note 38.

n91 LeGates & Hartman, supra note 10, at 34.

n92 See id. at 46.

n93 HUD DISPLACEMENT REPORT, supra note 54, at 1.

n94 1 R. ANDERSON, supra note 56, 2.19, at 58. See, e.g., MD. ANN. CODE art. 66B, §§ 5.01-.08 (1978); MASS. ANN. LAWS ch. 40A, §§ 1-17 (Michie/Law. Coop. 1983) (zoning).

n95 STANDARD STATE ZONING ENABLING ACT 3, quoted in 1 R. ANDERSON, supra note 56, 2.19, at 65.

n96 1 A. RATHKOPF, supra note 72, 15. For a collection of citations to state enabling acts authorizing historical preservation and conservation, see Citations of State Laws Authorizing Acquisition, Transfer and Enforcement of Less-than-Fee Interests for Historic Preservation and Environmental Consideration, 12 URB. LAW. 62-65 (1980). See also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (restrictions imposed on use of Grand Central Station by virtue of New York City Landmark Preservation Law served general welfare and did not constitute a taking); Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975) (upholding constitutionality of New Orleans's ordinance preserving historic neighborhood), cert. denied, 426 U.S. 905 (1976).

n97 Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974) (zoning ordinance that restricted land use to single family dwellings throughout village furthered family values -- a valid police power purpose).

n98 See supra note 8 and accompanying text.

n99 A recent government study showed that among tenants with annual household incomes of less than $ 12,500, only 10.5% could purchase their converted apartments. Only 25.7% were able to remain as tenants under various local ordinances restricting evictions, see infra notes 172-86 and accompanying text, while 63.8% were obligated to move. HOUSING AND URBAN DEVELOPMENT, DIVISION OF POLICY STUDIES, THE CONVERSION OF RENTAL HOUSING TO CONDOMINIUMS AND COOPERATIVES: IMPACTS ON ELDERLY AND LOWER INCOME HOUSEHOLDS 41 (1981). The percentage of tenant purchasers in gentrifying neighborhoods is likely to be even smaller. Unlike nongentrification conversion, in which developers generally attempt to sell as many units as possible to existing tenants, converted apartments in gentrifying neighborhoods are priced beyond the means of former tenants. See J. DINKELSPIEL, J. UCHENICK & H. SELESNICK, supra note 17, at 35.

n100 1 R. ANDERSON, supra note 56, 7.13, at 556; 5 P. ROHAN, supra note 57, 34.03[1], at 37-38. See also Euclid v. Ambler Realty Co. 272 U.S. 365, 387 (1926) ("[W]hile the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise.").

n101 1 R. ANDERSON, supra note 56, 7.13, at 556.

n102 See 1 A. RATHKOPF, supra note 72, 2.02[4] (purposes of zoning expand in relation to demand that increasingly complex civilization puts on police power).

n103 1 R. ANDERSON, supra note 56, 7.13, at 556.

n104 Aesthetic regulation of land use addressed a number of perceived ills including the presence of mobile homes and trailers, see, e.g., City of Coral Gables v. Wood, 305 So. 2d 261 (Fla. App. 1974) (upholding ordinance limiting use and location of "camper-type vehicles"); junk yards, see, e.g., Delmar v. Planning and Zoning Bd. of Milford, 19 Conn. Sup. 21, 109 A.2d 604 (1954) (upholding municipal prohibition of a junk yard on aesthetic grounds); danger to historically valuable structures, see, e.g., Maher v. City of New Orleans, 371 F. Supp. 653 (E.D. La. 1974) (upholding ordinance designed to preserve the "quaint and distinctive character" of the neighborhood).

n105 Indeed, it was concern for the preservation of neighborhood character that was the basis of the landmark decision of the Supreme Court in Euclid v. Ambler Realty, 272 U.S. 365 (1926), validating municipal land use control. "The serious question in the case . . . involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts." Id. at 390. More recently, the Supreme Court reaffirmed the validity of land use control to preserve a neighborhood's character in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). "The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." Id. at 9. See also Opinion of the Justices to the Senate, 333 Mass. 783, 786, 128 N.E.2d 563, 566 (1955) (historic preservation requirements serve educational, cultural, and economic advantage of the public).

n106 See 1 A. RATHKOPF, supra note 72, 3, at 3-1, 3-7; see also MASS. GEN. LAWS ANN. ch. 40A, §§ 4-5 (West 1982) (setting forth procedure for adoption and change of zoning ordinances and requiring uniform standards and maps).

n107 See 1 P. ROHAN, supra note 57, 1.02[6]a.

n108 1 R. ANDERSON, supra note 56, 1.12.

n109 2 P. ROHAN, supra note 57, 9.01[1].

n110 4 R. ANDERSON, supra note 56, 23.05; E. YOKLEY, supra note 64, at 72-122.

n111 4 R. ANDERSON, supra note 56, 23.05; E. YOKLEY, supra note 64, at 72-122.

n112 7 P. ROHAN, supra note 57, 45.01[3].

n113 D. HAGMAN, URBAN PLANNING AND LAND DEVELOPMENT CONTROL LAW 245 (1971).

n114 Id. at 253.

n115 As one commentator has noted, "public policy dictates that those who, for profit, seek to subdivide lands shall in some substantial measure assist the local government agencies and authorities in providing necessary facilities by making the initial installation thereof." E. YOKLEY, supra note 64, at 275.

n116 See Hagman, Landowner-Developer Provisions of Communal Goods Through Benefit Based Harm Avoidance "Payments," 5 ZONING AND PLANNING LAW REPORT 25, 25-27 (1982).

n117 Id.

n118 Id.; 4 R. ANDERSON, supra note 56, 23.32.

n119 4 R. ANDERSON, supra note 56, 23.01-.32.

n120 See, e.g., Associated Homebuilders of Greater E. Bay, Inc. v. City of Walnut Creek, 4 Cal. App. 3d 633, 641, 484 P.2d 606, 615, 94 Cal. Rptr. 630, 636 (1971) (subdivision extractions of land for open space and recreation needs constitutional); Krughoff v. Naperville, 41 Ill. App. 3d 334, 354 N.E.2d 489 (1976) (same); Billings Props., Inc. v. Yellowstone County, 144 Mont. 25, 33, 394 P.2d 185, 187 (same); see also note, Subdivision Control Requirement for Park Land, 12 SYRACUSE L. REV. 224 (1961).

n121 Associated Homebuilders of Greater E. Bay, Inc. v. City of Walnut Creek, 4 Cal. App. 3d 633, 641, 484 P.2d 606, 615, 94 Cal. Rptr. 630, 636 (1971).

n122 Jordan v. Menomonee Falls, 28 Wis. 2d 608, 616, 137 N.W.2d 442, 448 (1965).

n123 An instance when it would be impractical to require a dedication of land would be a small subdivision of six or eight housing tracts. The development alone neither creates the need for, nor can economically provide, a municipal park. The impact of many such developments, however, creates the need for such a park. Communities have found a solution to this dilemma through the use of an "in lieu" fee. In lieu of dedicating land, the developer pays a fee based on the number of developed tracts. These funds are held in trust by the community until the need for the park arises, at which point the fees are used to purchase the open land that will benefit the several developments. See 4 R. ANDERSON, supra note 56, §§ 23.40, 23.42.

n124 City of Carbondale v. Brewster, 78 Ill. 2d 111, 115, 398 N.E.2d 829, 831 (1979) (residential land subdivider may be required to make contributions of land, or money in lieu of land, to municipality for parks as a condition to subdivision approval); Krughoff v. City of Naperville, 68 Ill. 2d 352, 369 N.E.2d 892, 843 (1977) (contribution of money to be held in trust for acquisition of school site held valid requirement for subdivision approval).

n125 See, e.g., Pioneer Trust & Sav. Bank v. Village of Mt. Prospect, 22 Ill. 2d 375, 379, 176 N.E.2d 799, 801 (1961) (requiring extractions is constitutional only if cost is specifically and uniquely attributable to development activity).

n126 See, e.g., Associated Homebuilders of Greater E. Bay, Inc. v. City of Walnut Creek, 4 Cal. App. 3d 633, 639-40, 484 P.2d 606, 611, 94 Cal. Rptr. 630, 635 (1971) (subdivision extraction for open space and recreational needs constitutional even if need for space is not directly attributable to subdivision development's impact); Jenad v. Village of Scarsdale, 18 N.Y.2d 78, 84, 218 N.E.2d 673, 675, 271 N.Y.S.2d 955, 958 (1966) (subdivision extraction fees for the general "acquisition and improvement of recreation and park lands" throughout the village constitutional).

n127 In other words, a subdivision extraction cannot be an opportunity for municipal extortion against developers in any jurisdiction. The need for the extraction must instead be causally related to the developer's activities. See, e.g., People ex rel. Exchange Nat'l Bank v. City of Lake Forest, 40 Ill. 281, 284, 239 N.E.2d 819, 821 (holding that extractions must be reasonable).

n128 See supra note 31.

n129 4 R. ANDERSON, supra note 56, 23.03.

n130 7 P. ROHAN, supra note 57, 45.01[3].

n131 See HARVARD DISPLACEMENT STUDY, supra note 14, at 42 (identifying condominium conversion as cause of nearly half of displacement in Boston's gentrifying neighborhoods); cf. HUD DISPLACEMENT UPDATE, supra note 14, at 28 (showing that one-third of all units in gentrifying neighborhoods are converted to condominiums).

n132 One commentator has defined condominiums as follows:

Condominium refers to a form of ownership in which there are individually owned units in a multiple-unit project. . . . [T]his type of ownership is often described as "horizontal property ownership." Even more accurately, a condominium has been described as "a freehold interest in a horizontal piece of vertical air." In other words, vertical boundaries are divided into horizontal units in buildings.
K. ROMNEY, CONDOMINIUM DEVELOPMENT GUIDE 1-2 (1974).

This definition suggests the conceptual affinity between a condominium and a land subdivision. In both, a single estate in fee is divided to create several subsidiary fee estates.

n133 Id.

n134 Federal and state governments have recognized the need for subdivision controls for over 50 years. The United States Department of Commerce, for example, promulgated a model subdivision enabling act in 1928. C. HAAR, LAND-USE PLANNING 444 (3d ed. 1976). In addition, every state had adopted some form of subdivision enabling act before 1963. See statutes collected in E. YOKLEY, supra note 64, at §§ 72-122. In contrast, the condominium form of ownership developed only in the last 20 years; fewer than half of the states had passed comprehensive condominium legislation before 1963. K. ROMNEY, supra note 132, 10.01[1] (Supp. 1981). In fact, the frequency of condominium conversion increased dramatically only in the last half of the 1970s. HUD CONVERSION REPORT, supra note 7, at iv-5.

n135 4 A. RATHKOPF, supra note 72, at 71-77.

n136 Id.

n137 ARIZ. REV. STAT. ANN. 9-463.02 (1973); CAL. GOV'T CODE 66424 (West 1980). Only California and Arizona have expressly allowed the application of subdivision controls to condominium conversion in their subdivision enabling acts. See ARIZ. STAT. ANN. 9-463.02; CAL. GOV'T CODE 66424.

n138 MINN. STAT. ANN. 515A.1-106 (West 1980). The Act prohibits application of land use controls to condominiums that would not be imposed "upon a physically similar development under a different form of ownership." Id. 515A.1-106(a). The statute nevertheless authorizes municipalities to "impose reasonable conditions upon the conversion of buildings to the condominium form of ownership only if there exists within the city a significant shortage of suitable rental dwellings available to low and moderate income individuals." Id. 515A-1-106(c). This provision limits the application of the Act to circumstances typical of urban gentrification -- displacement of low and moderate income tenants in a tight rental housing market.

n139 4 A. RATHKOPF, supra note 72, 71-254 (4th ed. Supp. 1982).

n140 Id.

n141 116 N.J.Super. 372, 282 A.2d 428 (1971).

n142 Id. at 372, 282 A.2d at 431.

n143 Id.

n144 Id. (citing N.J. STAT. ANN. 46:8b-29 (West Supp. 1982)).

n145 See, e.g., N.J. STAT. ANN. 46:8b-29 (West Supp. 1982).

n146 See 1 R. ANDERSON, supra note 56, 2.22.

n147 See Maplewood, 116 N.J. Super. at 377, 282 A.2d at 431.

n148 Id.

n149 387 Mass. 351, 439 N.E.2d 788 (1982).

n150 Id. at 352, 439 N.E.2d at 788.

n151 Id. at 357, 439 N.E.2d at 791.

n152 See also City of Miami Beach v. Arlen King Cole Constr. Ass'n, 302 So.2d 777 (Fla. App. 1974); Bridge Park Co. v. Borough of Highland Park, 113 N.J. Super. 219, 273 A.2d 397 (1971).

n153 Nectow v. City of Cambridge, 277 U.S. 183, 188 (1928).

n154 Courts, in other circumstances, have upheld ordinances regulating form of ownership. See, e.g., Clemons v. City of Los Angeles, 36 Cal. 2d 95, 104-05, 222 P.2d 439, 444-45 (1950) (upholding zoning ordinance prohibiting transfer of solely owned bungalow subdivision to various individual owners). See also Goldman v. Dennis, 375 Mass. 197, 375 N.E.2d 1212 (1978) (allowing use of zoning ordinance to prohibit conversion of cottage colonies to condominiums in order to prohibit expansion of a nonconforming use).

n155 See J. DINKELSPIEL, J. UCHENICK & H. SELESNICK, supra note 17, at 110 (showing that continuous conversion in suburban community affects community's demographics).

n156 See Maplewood, 116 N.J.Super. at 377, 282 A.2d at 431. The court based its decision on the empirical conclusion that use of the land would not be affected. If the plaintiffs could have shown that using the land as condominiums would have affected the general welfare of the community, as is the case in gentrification conversion, the court might have reached a different conclusion.

n157 See supra notes 22-24 and accompanying text.

n158 LeGates & Hartman, supra note 10, at 229.

n159 See supra notes 47-50 and accompanying text.

n160 See supra notes 22-24 and accompanying text.

n161 K. LOHMANN, PRINCIPLES OF CITY PLANNING 253 (1931), cited in 1 R. ANDERSON, supra note 56, 2.21, at 61.

n162 See supra notes 90-93 and accompanying text.

n163 1 R. ANDERSON, supra note 56, 7.13.

n164 See, e.g., STANDARD STATE ZONING ENABLING ACT 3 (1926), reprinted in 5 A. RATHKOPF, supra note 72, at 765.

n165 HUD DISPLACEMENT UPDATE, supra note 14, at 48.

n166 Supra note 154.

n167 See, e.g., Maplewood, 116 N.J.Super. at 377, 282 A.2d at 431 ("Planning controls, including subdivision approval, cannot be employed by a municipality to exclude condominiums or discriminate against the condominium form of ownership . . . ."). This judicial concern may be warranted in suburban condominium conversion, which is generally unaccompanied by significant rehabilitation and the concomitant increase in the municipal tax base. However, this judicial reluctance is inappropriate in the context of urban gentrification because gentrification leads to higher real estate assessments through the rehabilitation of buildings. Municipalities will thus tend to encourage gentrification conversion rather than use land use controls as a pretaxt to restrict it.

n168 See supra notes 125-27 and accompanying text. But see Norsco Enters. v. City of Fremont, 54 Cal. App. 3d 488, 498, 126 Cal. Rptr. 659, 665 (1971) (upholding municipal extraction for seemingly unrelated recreational space needs because lack of "central management" of condominiums might make building more susceptible to degeneration into "slum and blight conditions").

n169 See generally 4 A. RATHKOPF, supra note 72, 7, at 7-51 (describing development of extractions in open space subdivisions).

n170 See supra notes 125-27 and accompanying text.

n171 See supra note 131 and accompanying text.

n172 See Note, Government Regulation of Condominium Conversion, 8 B.C. ENVTL. AFF. L. REV. 919, 926 (1980); HUD CONVERSION REPORT, supra note 7, at XII-16.

n173 See supra notes 31-32 and accompanying text.

n174 Flynn v. City of Cambridge, 1981 Mass. Adv. Sh. 692, 696, 418 N.E.2d 335, 339 (1981).

n175 Id.

n176 The ordinance provides that prior to granting an eviction permit, the rent control board shall consider:

(1) the benefits to the persons sought to be protected by the Act and by this section; (2) the hardships imposed on the tenants residing in the unit proposed to be removed, including any mitigating provisions made by the applicant; and (3) any aggravation of the shortage of decent rental housing accommodations, especially for families of low and moderate income elderly people on fixed incomes, which may result from the removal.
Cambridge, Mass., Ordinance 926(d) (Aug. 13, 1979).

n177 In Flynn v. City of Cambridge, 1981 Mass. Adv. Sh. 692, 696, 418 N.E.2d 335, 338-39 (1981), the Supreme Judicial Court of Massachusetts upheld the ordinance by finding and implied power to regulate conversion within the expressed power to control rents. The court explained that a rent control enabling act would be pointless if all controlled units were removed from the market by conversion.

n178 Brookline, Mass., By-laws art. XXXVIII 9(a)-(a)(10) (as amended July 25, 1978).

n179 See HUD CONVERSION REPORT, supra note 7, at VIII-8 & n.18 (measuring an average increase of 139% in post conversion assessment of property).

n180 Seattle, Wash., Ordinance 107,707 3.9 (Oct. 2, 1978).

n181 Los Angeles, Cal., Ordinance 153,024 4(E)(2) (Nov. 10, 1979).

n182 Id. 4(E)(3).

n183 Id. 4(G)(7-8).

n184 As one long time resident of a neighborhood stated:

My family's lived in this neighborhood for five generations, and now you're telling me we've got to move? You know what happens to a plant when you cut the roots? The plant dies. My roots are in this place, and so are my father's. What's going to happen to him? He's 84. This is where he grew up -- his friends are here, his church, everything. You're telling us about moving payments, and I'm telling you this is our home.
U.S. DEPT. OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF COMMUNITY PLANNING AND DEVELOPMENT, LOOKING BEYOND THE WALLS: A GUIDE TO RELOCATION 4 (1982); see also Tenants Jam Hearing on Condo Conversion, Boston Globe, Mar. 15, 1983, at 26, col. 1 (rental association president's proposal to provide displaced tenants with cash payments of $ 750 to $ 1000 met with "hisses").

n185 See, e.g., Los Angeles, Cal., Ordinance 153,024 4(E)(2) (Nov. 10, 1979) (requiring 120-day notification period). See also UNIFORM CONDOMINIUM ACT 4-110(a) (West 1978) (requiring developers to give tenants a 120-day notice period prior to eviction).

n186 A lengthy delay in granting the eviction permit may also give a tenant leverage to negotiate with the developer. If a tenant allows the developer to "buy out" his occupancy rights, for example, the two parties may achieve an efficient resolution of the displacement problem. See Beach, The Condo Conversion Game: A Battle of Wits for High Stakes, Washington Post, Mar. 18, 1979, D, at 1, col. 2 (reporting settlements in excess of $ 3000).

n187 See supra notes 109-27 and accompanying text. Zoning could conceivably be used to create districts in which condominiums were prohibited. Such an approach, in the case of gentrification, would be inappropriate because cities would lose much needed increased tax revenues generated by gentrification. See supra note 7. Moreover, subdivision controls are more flexible, giving planning boards discretion to approve subdivisions of real property, as well as the power to attach certain conditions to that approval, see supra notes 109-27 and accompanying text. This flexibility is important because the costs of gentrification displacement are likely to be variable and it would be difficult, if not impossible, to anticipate in which neighborhoods gentrification would occur and thus apply zoning ordinances to those neighborhoods.

n188 The cost of relocation may vary, for example, depending on the vacancy rate for low and moderate income apartments in a city.

n189 The condominium developer, under this scheme, can thus factor the expense of the displacement extraction in determining a conversion's profitability in the same manner as developers of traditional subdivisions. See 4 A. RATHKOPF, supra note 72, 71, at 51-52 (describing methods by which developers assess the costs of extractions in advance of development).

n190 See supra notes 123-24 and accompanying text.

n191 Because all extractions must be closely related to the costs they address, see supra notes 125-27 and accompanying text, the displacement extraction could not exceed the cost of relocating displaced tenants.

n192 Measuring and ameliorating psychological impact is an elusive endeavor. Nevertheless, it seems intuitively clear that the psychological impact discussed above, see supra notes 44-46 and accompanying text, would be significantly alleviated if tenants had access to an agency that was sensitive to their plight and served to assist them in confronting displacement, cf. Mashaw, Administrative Due Process: The Quest For a Dignitary Theory, 61 B.U.L. REV. 885, 887-98 (1981) (outlining importance of procedural participation by individuals affected by decisions, regardless of decision's outcome). Moreover, a relocation authority could attempt to minimize some of the psychological impact by advising displaced tenants from one neighborhood to move to a particular neighborhood in another part of the city, thereby preserving some of the interpersonal relationships tenants associate with their home neighborhood.

n193 For example, if the state has a law requiring three months notice prior to eviction for conversion, the tenant would be informed of the fact and of the date before which eviction is unlawful.

n194 Section 4625 of the Uniform Relocation Assistance Act, 42 U.S.C. §§ 4601-4638 (1976), entitled "Relocation Assistance Advisory Services," is an excellent model of the goals an MRA should try to achieve. Subsection (c) of 4625 requires the relocation program to "provide current and continuing information on the availability, prices, and rentals, of comparable . . . housing," to assure that prior to displacement there is adequate alternative housing, to "supply information concerning Federal and State housing programs . . . and other Federal and State programs offering assistance to displaced persons," and to "provide other advisory services to displaced persons in order to minimize hardships to such persons in adjusting to relocation."

n195 Cf. id. 4625(c)(3) (requiring the provision of information about comparable neighborhoods where a displaced person might move).

n196 Cf. id. 4622(a)(1) (requiring the payment of actual reasonable expenses in moving).

n197 The planning board could assume these new responsibilities or the city council could create a position within the planning board to address displacement. In larger cities, the planning board may wish to delegate authority for condominium subdivision approval to the rent control board because of the latter board's knowledge of the rental market. In either case, funding for the program will come from the extractions, which will be based on the actual economic aid granted displaced tenants plus the cost of advisory assistance. For example, assume the average monetary cost of gentrification is $ 250 per unit, and the municipality employs on person full time at a budget of $ 40,000 to provide advisory service. Assume further that there are exactly 1000 cases of tenants displaced because of conversion in gentrifying neighborhoods. In such a case the developer would pay $ 250 (the average monetary cost of relocation) plus $ 40 (the pro rata share of advisory costs) for a total of $ 290 per converted unit.

n198 Municipalities applying for Urban Development Action Grants, for example, must include a report containing "[d]ata on anticipated involuntary displacement and relocation of residents . . . [including a] description of the efforts made to minimize involuntary displacement." 24 C.F.R. 570.458(c)(11)(1983). The Uniform Relocation Assistance Act also requires federal agencies to assess the cost of relocating the people displaced be federal projects. 42 U.S.C. 466(A), (B) (Supp. V 1981).

n199 See 4 A. RATHKOPF, supra note 72, 71, at 59.

n200 See supra notes 39-46 and accompanying text.

n201 See supra notes 18-36 and accompanying text.





Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003


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