ALAN J. GRACE, trustee, & others [Note 1] vs. TOWN OF BROOKLINE & others. [Note 2]

LIACOS, J. A condominium developer, a condominium owner and a potential condominium purchaser challenge, as unauthorized by statute and prohibited by the Massachusetts and the United States Constitutions, two amendments to art. XXXVIII of the by-laws of the town of Brookline. The disputed amendments protect tenants by regulating the procedure for their eviction from apartments converted into condominium units. We uphold their validity.

The plaintiffs filed a complaint in the country court for declaratory and injunctive relief on November 3, 1978. On November 10, 1978, a single justice of this court denied the plaintiffs' request for a preliminary injunction, and allowed a motion by the Attorney General of the Commonwealth to intervene as a party-defendant. [Note 3] The parties subsequently submitted a stipulation of facts, and on March 6, 1979, a single justice reserved and reported the case for decision by the full bench.

The pertinent facts stipulated are as follows. From 1970 until December 31, 1975, the town of Brookline generally regulated and controlled rents and evictions under the general rent control enabling provisions of St. 1970, c. 842. On December 16, 1975, a Brookline special town meeting

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rescinded its approval of c. 842. In its place, under the authority specifically granted to Brookline by St. 1970, c. 843, [Note 4] the town meeting adopted art. XXXVIII of the Brookline by-laws (referred to hereafter as the "by-law"). Brookline has regulated rents and evictions pursuant to c. 843 and the by-law since January 1, 1976.

Section 9 (a) of the by-law enumerates the bases on which the rent control board may issue certificates of eviction with regard to rent-controlled housing units. Prior to July 25, 1978, Section 9 (a) provided two grounds for eviction of tenants residing in rent controlled apartments which were slated

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for, or had already undergone, conversion to condominiums. [Note 5] Section 9 (a) (8) allowed a landlord to obtain a certificate of eviction if he sought to occupy a unit for himself or a member of his immediate family; Section 9 (a) (10) authorized a landlord to bring an action to recover possession of a unit "for any other just cause." The first of these provisions permitted a purchaser of a newly converted condominium unit who sought occupancy to apply for a certificate of eviction. The second allowed a developer to seek certificates of eviction for an entire building intended for conversion to condominium units. The rent control board of Brookline [Note 6] routinely granted developers such certificates upon compliance with particular guidelines it had promulgated.

On July 25, 1978, a special town meeting of Brookline voted [Note 7] to amend Section 9 (a) (8) and (10) of the by-law. [Note 8] The

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effect of the amendment to Section 9 (a) (10) was to render certificates of eviction unavailable to condominium developers. At the same time, the amendment to Section 9 (a) (8) preserves, for the condominium purchaser who seeks to occupy the unit, the opportunity to evict a tenant who refuses to vacate voluntarily. However, if the tenant was in possession of the unit when the new landlord acquired ownership, that tenant is protected by a mandatory six-month stay of issuance of a certificate of eviction. The amendment to Section 9 (a) (8) also provides for an additional six-month delay if the board determines that a hardship exists. [Note 9] After approval by the Attorney General, pursuant to G. L. c. 40, Section 32, both amendments took effect on September 27, 1978.

The plaintiff Grace is a developer of a condominium project in Brookline. On January 13, 1978, he purchased several buildings in order to convert the thirty-five apartments therein for sale as condominiums. After entering into purchase and sale agreements with prospective purchasers who were not tenants and who intended to occupy the units, Grace applied to the board for certificates of eviction. In each case decided before July 25, 1978, on finding compliance with the guidelines, the board granted Grace a certificate of eviction.

Prior to enactment of the by-law amendments, the plaintiff Lonabocker contracted to buy one of the units owned by Grace. She obtained a commitment for mortgage financing and sold her residence, expecting to occupy the condominium. After July 25, 1978, Lonabocker and Grace were disqualified from applying for a certificate of eviction. Because she was unable to obtain occupancy of the unit, Lonabocker's mortgage financing was cancelled. She has not purchased the unit.

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The plaintiff Ehrenworth purchased a unit from Grace on October 20, 1978, in order to occupy it as his residence. At the time of the purchase, the unit was occupied by a tenant. Ehrenworth filed an application for a certificate of eviction which was approved by the board on December 19, 1978. As of March 2, 1979, the date of the parties' stipulation, the board had not issued a certificate of eviction, by virtue of the operation of Section 9 (a) (8), as amended. Since purchasing the unit from Grace, and until at least March 2, 1979, Ehrenworth received rent from the tenant occupying the unit. [Note 10] The rental receipts, however, were insufficient to offset the monthly carrying charges incurred by Ehrenworth on the unit. Grace agreed to bear the difference between the rents collected and the costs incurred for a period of one year from the passage of title. [Note 11]

On November 14, 1978, a Brookline special town meeting voted to amend the by-law further by imposing a general six-month moratorium on the issuance of any certificate of eviction against a tenant who was in possession of an apartment when it was purchased as a condominium unit. The

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moratorium, which was approved by the Attorney General on December 28, 1978, bore an expiration date of June 15, 1979. [Note 12]

The plaintiffs contend that the by-law amendments (1) are inconsistent with St. 1970, c. 843; G. L. c. 183A; and G. L. c. 239, and (2) deny them due process of law and equal protection of the laws. We address the statutory arguments first, followed by consideration of the constitutional issues raised.

A. Statutory Issues.

1. Referring to St. 1970, c. 843, in Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686, 698 (1971), we recognized that once the Legislature has adopted a policy of rent control by emergency legislation, it "may also delegate to the cities and towns as governmental agencies the administration of its details in respect to matters peculiarly affecting local interests." Chapter 843 explicitly grants to Brookline the option to regulate the eviction of tenants by by-law. St. 1970, c. 843, Section 6. Until December, 1975, when Brookline adopted art. XXXVIII, Section 9, of its by-laws, that enabling provision lay dormant. The plaintiffs now challenge the amendments to Section 9 of the by-law as exceeding the scope of delegation intended by c. 843.

The plaintiffs bear an onerous burden in seeking to invalidate the by-law amendments. We have consistently stated

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that in the judicial review of municipal by-laws and ordinances "every presumption is to be made in favor of their validity, and that their enforcement will not be refused unless it is shown beyond reasonable doubt that they conflict with the applicable enabling act or the Constitution." Crall v. Leominster, 362 Mass. 95, 102 (1972), and cases cited. In seeking to meet their burden, the plaintiffs rely heavily on our decision in Zussman v. Rent Control Bd. of Brookline, 367 Mass. 561 (1975), where we struck down eviction restrictions similar to those presented here. Zussman, however, is distinguishable in at least one critical respect. The court in Zussman ruled invalid emergency regulations [Note 13] promulgated by the Brookline rent control board under authority that the board presumed had been granted by St. 1970, c. 842, a statute of Statewide application. According to the court, by enacting regulations which tend to discourage condominium conversion, the Board had accorded insufficient recognition to the policy, implicit in c. 842, of encouraging home ownership. The regulations foundered on that single premise.

The by-law amendments under consideration here face no such obstacle. Unlike the regulations in Zussman, the by-law amendments were enacted under authority granted in c. 843 especially to Brookline for the purpose of enabling that town to confront, singularly, its housing difficulties. The two chapters differ in crucial respects. As we noted in Marshal House, Inc. v. Rent Control Bd. of Brookline, supra at 697: "Chapter 843 states that 'a serious public emergency exists in the town of Brookline with respect to the housing of a substantial number of the citizens of said town.' It goes on to describe the emergency as created in

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part by an 'expanding student population . . . [and] a substantial elderly population,' causes not assigned in the comparable statement of emergency in c. 842. Chapter 843 under Section 2 grants the town broad general regulatory powers, unencumbered by the various restrictions and exemptions contained in Section 3 of c. 842, to deal with its particular housing crisis. It is apparent from a comparison of Sections 1 and 2 of c. 843 and comparable sections of c. 842 that the problem in Brookline was unique. . . ." Furthermore, none of the provisions cited in Zussman as indicating the c. 842 policy of encouragement of home ownership is present in c. 843. See Zussman, supra at 566-567. Absent provisions to the same effect, we decline to read such a policy into c. 843. [Note 14]

The plaintiffs also claim that the by-law amendments are unauthorized by c. 843 because they obstruct the intent made explicit in Section 2, that "evictions may be regulated by the rent board so as to remove hardships or correct inequities for both the owner and tenants of such housing accommodations" (emphasis supplied). We agree that the interests of condominium developers and purchasers are to be given due consideration under c. 843. It is clear, however, that the major thrust of the act was directed at the need to control "abnormally high rents" and the "substantial and increasing shortage of rental housing accommodations" which most severely afflict "families of low and moderate income and elderly on fixed income." See c. 843, Section 1. By retarding the pace of condominium conversion, the by-law amendments further this purpose. In doing so, moreover, they fairly accommodate the interests of building owners and condominium developers and purchasers. They do not deprive landlords of their reasonable profits. Nor do they preclude condominium conversion altogether. Conversion is permissible and may proceed unimpeded when the tenant

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chooses to buy the unit or vacates voluntarily. This accommodation to the interests of condominium developers and purchasers of condominium units is particularly significant since such conversions, while avoiding the hardships incidental to eviction of tenants, have a nonetheless deleterious effect on the rental housing market. [Note 15]

We hold, therefore, that the by-law amendments are both consistent with and authorized by St. 1970, c. 843.

2. General Laws c. 183A. The plaintiffs also assert that the tendency of the by-law amendments to decelerate condominium conversion conflicts with the purpose of G. L. c. 183A, entitled "Condominiums." We disagree. Chapter 183A is a neutral provision, neither favoring nor disfavoring condominium conversion. The apparent purpose of the statute was to clarify the legal status of the condominium in light of its peculiar characteristics, and not to grant this hybrid form of property ownership exceptional protection from social legislation. The language in Section 4 of c. 183A, cited by the plaintiffs, that each unit owner of a condominium "shall be entitled to the exclusive ownership and possession

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of his unit" does not contradict this view. In the context of the entire section and the act as a whole, the evident intent of these words is to define the rights and responsibilities of condominium owners in a particular building vis-a-vis one another, and not to insulate them, uniquely, from the reach of rent and eviction control. [Note 16]

3. Finally, the plaintiffs claim that the "comprehensive statutory treatment" of stays of eviction embodied in G. L. c. 239, Sections 9-11, preempts the imposition of a six- to twelve-month waiting period on the purchaser's occupancy of an individual condominium unit. While Sections 9-11 of c. 239 empower a court to grant discretionary stays of execution in summary process proceedings, and articulate criteria to be considered with regard thereto, these provisions do not preclude the application of the by-law amendments. "In determining whether a local regulation is inconsistent with State legislation, it was said in Commonwealth v. Baronas, 285 Mass. 321, 323 (1934), that '[t]he mere existence of statutory provision for some matters within the purview of the by-law will not render it invalid as repugnant to law'" (citations omitted). John Donnelly & Sons v. Outdoor Advertising Bd., 369 Mass. 206, 212 (1975). Further, in our comprehensive treatment of the subject in Bloom v. Worcester, 363 Mass. 136, 154 (1973), we stated: "As a general proposition the cases dealing with the repugnancy or inconsistency

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of local regulations with State statutes have given considerable latitude to municipalities, requiring a sharp conflict between the local and State provisions before the local regulation has been held invalid."

That sharp conflict appears when either the legislative intent to preclude local action is clear, or, absent plain expression of such intent, the purpose of the statute cannot be achieved in the face of the local by-law. Neither circumstance is presented here. Chapter 239 is silent on whether local action with respect to eviction regulation is precluded. The later-enacted St. 1970, c. 843, broadly empowers Brookline to regulate, by by-law, the eviction of tenants. The two statutes, juxtaposed, indicate that the Legislature did not intend c. 239 to occupy the field of tenant evictions. Compare Taunton Greyhound Ass'n v. Dighton, 373 Mass. 60 (1977), with Del Duca v. Town Adm'r of Methuen, 368 Mass. 1 (1975).

Nor do the by-law amendments frustrate the legislative purpose implicit in G. L. c. 239. We have viewed c. 239 as an attempt "to mitigate hardships to tenants, and at the same time to protect adequately the rights of the owner." Opinion of the Justices, 321 Mass. 772, 774 (1947). The automatic six-month delay in issuance of certificates of eviction (plus the discretionary hardship delay of up to an additional six months) established in the by-law amendments does not undercut this design. The operation of the amendments merely postpones the application of c. 239, without compromising its objectives. [Note 17] See Harborview Residents' Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425 (1975). Serving to ameliorate the trauma of dislocation for tenants, the by-laws also preserve for owners the right to collect a reasonable rent for the duration of the tenancy. In our view, the amendments supplement c. 239; they do not supplant it. Compare Anderson v. Boston, 376 Mass. 178,

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186-187 (1978), appeal dismissed, 439 U.S. 1060 (1979), with Boston Police Patrolmen's Ass'n v. Boston, 367 Mass. 368, 372-373 (1975).

B. Constitutional Claims.

The plaintiffs raise two constitutional arguments in contesting the validity of the amendments. They claim that on their face the amendments effect a taking without just compensation and deprive them of the equal protection of the laws. As with the statutory arguments, plaintiffs must satisfy a heavy burden if they are to prevail on these claims. See Turnpike Realty Co. v. Dedham, 362 Mass. 221, 233 (1972), cert. denied, 409 U.S. 1108 (1973). We conclude that they have not met their burden.

1. The plaintiffs' "taking" argument rests on an apparent distinction between the regulation of use and the transfer of rights. [Note 18] They suggest that the amendments are illegal because, rather than regulate what uses are or are not permitted, the amendments determine who, as between a tenant in possession and an owner, shall enjoy a permitted use. In effect, the plaintiffs contend, the amendments transfer the right to possess from the owner to the tenant and compel the condominium owner to become a landlord.

The United States Supreme Court consistently has upheld rent control statutes as proper exercises of the police power in times of public emergency. See Bowles v. Willingham, 321 U.S. 503, 517 (1944); Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922); Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921); Block v. Hirsh, 256 U.S. 135 (1921). This court also has upheld such acts, including the enabling legislation for the local provisions challenged today. Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686 (1971). See Huard v. Forest St. Hous., Inc., 366 Mass. 203, 207 (1974). See also Russell v. Treasurer

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& Receiver Gen., 331 Mass. 501 (1954). Cf. Mayo v. Boston Rent Control Adm'r, 365 Mass. 575 (1974). The import of these cases is that a shortage of housing threatens the public interest (Block v. Hirsh, supra at 156), and that legislation which preserves the rental market for low, moderate, and fixed income persons promotes health, safety, and welfare generally. In short, a housing crisis justifies the exercise of the police power.

A particular provision, nevertheless, may go too far. "For just as there comes a point at which the police power ceases and leaves only that of eminent domain, it may be conceded that regulations of the present sort pressed to a certain height might amount to a taking without due process of law." Id. See generally Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). The character of governmental action is one of several factors relevant to a determination of whether a taking has occurred. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). In a strict sense, the amendments do effect a transfer of rights incident to ownership: the tenant in possession at the time of conversion is permitted to remain in possession even though the owner seeks recovery for his own personal use. In our view, however, this redistribution of rights is not unlike the redistribution of rights effected by rent and eviction control generally.

During a housing shortage, the Legislature has wide latitude to control rents and evictions. See, e.g., Mayo v. Boston Rent Control Adm'r, supra (landlord may not evict in order to perform renovation that would increase rents). How wide that latitude is, we need not determine now since the amendments go no further than the provisions upheld in the cases cited. The by-law amendments in issue do not attempt to create rental housing from owner-occupied units, nor do they bring under control units not previously subject to the by-law. They merely limit the property owners' right to remove units from the rental market, by delaying recovery for personal occupancy. But cf. Rivera v. R. Cobian Chinea & Co., 181 F. 2d 974, 978 (1st Cir. 1950). The

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period of delay required by these amendments does not render the provisions confiscatory.

In reaching this conclusion we are especially mindful that the property held by the plaintiffs is not rendered worthless by the amendments. Compare Pennsylvania Coal Co. v. Mahon, supra, with Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962), and Turnpike Realty Co. v. Dedham, supra at 236-237. Inasmuch as the amendments permit the condominium purchaser to take possession eventually, a unit purchased for conversion has value as a condominium even while it remains tenant-occupied. Cf. Golden v. Planning Bd. of Ramapo, 30 N.Y. 2d 359, 380-381, appeal dismissed, 409 U.S. 1003 (1972). Moreover, until the tenant vacates, the condominium purchaser is entitled to receive rent. By statute, rent for a controlled unit must yield a "fair net operating income." St. 1971, c. 673, Section 1. In order to obtain this yield, the owner may seek such individual adjustment as may be necessary. Id. Significantly, both plaintiffs Grace and Ehrenworth obtained adjustments for the units they owned to the levels of rent sought.

2. In their equal protection argument, the plaintiffs appear to challenge the amendments as both under-inclusive and over-inclusive: under-inclusive because they do not apply to all purchasers or owners of residential rental property; over-inclusive because they apply to fair-minded condominium purchasers as well as to those who would harass and pressure tenants to vacate.

Underlying both equal protection contentions is the assumption that Brookline has drawn a distinction based solely on the form of ownership. The plaintiffs assert that in a number of cases from other jurisdictions, purportedly cited with approval in Goldman v. Dennis, 375 Mass. 197, 200 (1978), courts have held that "[p]lanning controls . . . cannot be employed by a municipality to exclude condominiums or discriminate against the condominium form of ownership, for it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulation." Maplewood Village Tenants Ass'n v. Maplewood

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Village, 116 N.J. Super. 372, 377 (1971). See Miami Beach v. Arlen King Cole Condominium Ass'n, 302 So. 2d 777 (Fla. Dist. Ct. App. 1974).

Contrary to the plaintiffs' interpretation of Goldman, that case neither approves nor disapproves of the reasoning of cases like Maplewood Village Tenants Ass'n. Those cases were cited simply as inapposite to the matter then before us. Likewise, they do not control the issue before us. None involved condominium conversion in the context of rent and eviction control. Nor did those cases rest their decisions on the constitutional guaranty of equal protection of the laws. Instead, each held that under the applicable zoning enabling acts, regulation based on the form of ownership was unauthorized. We perceive no reason why Brookline may not draw up regulations based on the form of ownership so long as such a classification is rationally related to the purposes of rent and eviction control. [Note 19]

We have no difficulty in concluding that the challenged classification rationally furthers the purposes of rent and eviction control. The record suggests that conversion of controlled units into condominiums has been occurring with accelerating frequency. Consequently, Brookline reasonably could have concluded that condominium conversion posed a singular threat to the purpose of rent control. There is no denial of equal protection because Brookline chose to focus its response on that threat. See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489 (1955); Newell v. Rent Bd. of Peabody, 378 Mass. 443, 449-450 (1979); Mobil Oil Corp. v. Attorney Gen., 361 Mass. 401, 417 (1972). The town also might have concluded reasonably that, due to the potential for harassment of tenants by condominium purchasers anxious to obtain possession, "a particular limitation . . . would protect against its occurrence,

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and that the expense and other difficulties of individual determinations justified the inherent imprecision of [the] prophylactic rule." Weinberger v. Salfi, 422 U.S. 749, 777 (1975). Consequently, there is no denial of equal protection because the amendments apply whether or not the purchaser is guilty of harassment.

Conclusion.

For the reasons stated, we conclude that the amendments to art. XXXVIII of the Brookline by-laws, adopted on July 25, 1978, are valid. The promulgation of these by-law amendments by the town meeting was within the authority granted to the town of Brookline by St. 1970, c. 843. The by-law amendments are not in conflict with G. L. c. 183A or G. L. c. 239, nor do they violate the rights of the plaintiffs under Federal or State constitutional provisions. This case is remanded to the single justice for the entry of a judgment declaring the rights of the parties in accordance with this opinion.

So ordered.