BY KARTIK NARAM
This piece was published in the 27th print volume of the Asian American Policy Review.
The forces of gentrification have reached the gates of Chinatowns. Across America, upscale property developments threaten to encroach on venerable ethnic enclaves that happen to sit on very valuable real estate. While Chinatown gentrification in some ways repeats a pattern played out in other ethnic- and minority-dominated neighborhoods, Chinatowns differentiate themselves by their symbolic importance, their history of racialization, and the ongoing transformations that embroil these spaces. Today’s Chinatowns are alive with contradictions. The very “foreignness” that once forced Chinese immigrants into these self-sustaining enclaves has been repackaged to create economic value—often at the expense of the neighborhood’s poorer, more vulnerable residents.
This paper will specifically examine the racial, legal, and economic underpinnings of gentrification in New York City’s Chinatown. Overarching questions, however, extend well beyond the streets of lower Manhattan. What role has racial stratification played in the development of Chinatowns? How do state-sponsored economic development strategies change the makeup of Chinatowns today? What legal protections do ethnic enclaves receive? And what do they deserve? These questions lurk behind the ongoing dialogues between cities and their Chinatowns.
Land of Outsiders
The nexus between race and gentrification in America’s Chinatowns can be described by “racial capitalism,” a theory developed by Nancy Leong to explain “the process of deriving social or economic value from the racial identity of another person.” Although Leong’s article focuses on racial capitalism in the affirmative action context, she uses the concept as part of “a long tradition of assigning value to race.” The pernicious effects of racial capitalism stem from its external, outward orientation. As Leong points out, racial capitalism cedes “a stake in one’s racial identity” to others, meaning “outsiders” can influence “the way that racial identity should be performed.” The consequences are two-fold: (1) racial capitalism exploits non-White racial value, and (2) “in so doing it instantiates race as a commodity.” Chinatowns illustrate the problems racial commodification can create.
Chinatowns rose out of involuntary, reflexive reactions to racial commodification. Leong’s premise, that America’s history of “assigning value to race” underlies the racial-market paradigm, finds a potent parable in the origins of Chinatowns. Prior to the mid-1800s, American society harbored an “ambivalent” view toward the Chinese. Discrimination and sinophobic ideologies existed, to be sure, but records also suggest many Americans respected both the Chinese work ethic and China’s standing among the world’s civilizations. A California newspaper described the Chinese as “amongst the most industrious, quiet, patient people among us.” The governor of California declared them “one of the most worthy of our newly adopted citizens.” Peter Kwong and Dusanka Miscevic explain this in terms that echo Leong’s theory. Until the mid-1800s, “the American racial construct had not yet assigned [the Chinese] a definite position in the social hierarchy.” Cheap Chinese labor pleased employers and fueled California’s growing economy. But a confluence of factors, prominent among them the rise of the White labor movement, put an end to society’s ambivalence about the Chinese. From the mid-1800s onward, American society assigned the Chinese a low racial value and reinforced it with overt acts of racial animus.
The legal system helped legitimize anti-Chinese racial commodification. In 1854, the California Supreme Court adjudged the Chinese race to be inferior to Whites in the case People v. Hall. At issue was a state statute that barred “Black,” “Mulatto,” or “Indian” witnesses from testifying against a White man. The court decided the statute also barred Chinese witnesses, defining in the law an underlying racial dichotomy: White and non-White. The court grouped the Chinese with other legal inferiors, and for good measure launched into a tirade about the deficiencies of the Chinese people:
The anomalous spectacle of a distinct people, living in our community, recognizing no laws of this State except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claimed, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government.
By giving the court’s imprimatur to the idea the Chinese were incurably alien, Hall “opened the way for almost every sort of discrimination against the Chinese.”
The Chinese Exclusion Act of 1882 crowned the anti-Chinese era in America, marking the first and only time in US history a racial group was singled out and blocked from entering the country. The legal blockade reflected and reinforced other, more primitive means of exclusion. Anti-Chinese violence spread. By the late 1800s, 153 anti-Chinese riots were reported in America’s still-sparse western territories. In 1885, 150 White miners in Rock Springs, Wyoming, expelled their Chinese neighbors by “setting fire to their homes and businesses and murdering twenty-eight people.” Kwong and Miscevic refer to the period after the passage of the Chinese Exclusion Act as an “open season” on the Chinese in America. Unable to seek protection from the law, many Chinese sought refuge in numbers. Some Chinese moved into cities along the West Coast like San Francisco, Los Angeles, and Sacramento, so the Chinatowns there became “entrenched as permanently segregated” communities. Other “refugees” of anti-Chinese animus moved east, and joined New York City’s burgeoning Chinatown.
Chinatown’s immigrants soon discovered their new neighborhood was penned in by restrictive laws designed to keep them out of mainstream society. This was the double-meaning of Chinatown—a safe haven for its inhabitants, and an enclosure. Indeed, those on the outside of Chinatowns saw them “as a way to contain a very threatening population in American life.” Containment—not assimilation—defined these spaces. Employment and housing discrimination made it “difficult for Chinese immigrants to find a place to live outside of Chinatown.” And within Chinatowns, residents lacked basic legal protections like citizenship. Overall, the cities that encircled Chinatowns ignored, or actively antagonized, their needs.
In the vacuum left by traditional government institutions, “Chinatown provided social, economic, and political mechanisms” that promoted self-sufficiency. Economically, the success of Chinatown’s robust ethnic enclave depended on several factors. First, Chinese employees worked for Chinese proprietors within the community. Second, Chinatowns’ businesses catered to the needs of co-ethnic customers. The Asian American Legal Defense and Education Fund’s (AALDEF’s) 2013 study of New York City’s Chinatown found that 94 percent of the neighborhood’s commercial ventures were small businesses, most of which were “geared towards residents’ everyday use and purchase of affordable goods and services.” For customers, the connection these businesses seem to provide to a shared homeland can be powerful. One study found that Chinese immigrants prioritized “sociocultural factor[s]” like ethnic identity over economic variables like “accessibility and store attributes” when choosing where to shop. Third, the “spatial concentration” of Chinatowns facilitated “access to co-ethnic clientele, ethnic resources, credit and information, and ethnic labor sources.” The combination of co-ethnic labor, co-ethnic clientele, and close proximity created powerful networks. This allowed businesses to coordinate distribution, manufacturing, and services so each individual firm faced lower operating costs.
The neighborhood’s compactness is a boon for new residents, who “rely on networks of friends and relatives and on affordable housing, food, and goods in the neighborhood.” Proximity also allows newcomers to locate essential social services, like doctors’ offices, which was especially critical at Chinatown’s formation, a time when “city governments often paid little attention to [the neighborhood’s] needs.” For some poorer, relatively uneducated immigrants, Chinatowns provided better job prospects than the mainstream American economy. One study has suggested the “ethnic network passes on valuable information that increases annual earnings by increasing the job-worker match quality and thereby the hourly wage rate, irrespective of skill level.” Recent immigrants’ skills can yield better economic returns in Chinatowns than in the jobs available in the mainstream labor market. In that way, Chinatowns can serve as “concrete manifestations of ethnic solidarity.” Although economic researchers “disagree on the rate of convergence and about whether immigrants ever reach earnings parity with native workers,” studies have “invariably found evidence in support of the general pattern of economic assimilation.”
At the same time, however, Chinatown’s spatial concentration stoked racial prejudice. It did so first by contributing to the narrative of Chinatown as a crowded, unsanitary ghetto. Public health authorities eyed Chinatowns warily as a “discrete racial territor[y],” and the resulting investigations “established the Chinatown spatial elements of dens, density, and the labyrinth.” The “labyrinth” concept refers to a recurring narrative in early Chinatown reportage, which “described the Chinatown labyrinth as hundreds of underground passageways connecting the filthy cellars and cramped garrets where Chinese men lived.” Spatial concentration fed the image of cramped quarters: “[i]n their salacious portrayals, journalists related how dozens of Chinese men slept on narrow wooden shelves squeezed into claustrophobic rooms, which was considered close quarters for a single White man.”
Chinatown’s history of racial commodification plays a major role in its rapid development today. The word many critics use to describe this development, “gentrification,” brims with negative connotations: it can imply cultural sterilization, homogeneity, and displacement. Typical of Chinatown’s history, gentrification intertwines problems of race and economics—the process “by definition devastates the economic and racial diversity of city neighborhoods.” In the Urban Justice Center’s definition, gentrification ties together race, displacement, and economic planning. It is “a physical, economic, and cultural process in which private developers, aided by city policies, invest in low-income and underserved neighborhoods, causing high-income people to displace low-income people, often people of color, from their homes and businesses.” This section will focus on the cultural costs of gentrification in Chinatowns, and specifically the consequences of racialized development on the neighborhood’s longtime inhabitants. First, it is important to get a sense of how gentrification has changed the composition of Chinatown communities. Most visibly, gentrification has altered the racial and ethnic makeup of the neighborhoods. White populations in Boston, Philadelphia, and New York City’s Chinatowns have grown rapidly since 2000. In New York City, the Asian and Latino populations dropped by 11 percent each from 2000 to 2010, while the White population rose by 19 percent. The number of multigenerational immigrant families, too, has been dwindling as more and more young professionals move in. The White newcomers to these Chinatowns generally have more money than the non-White residents they replace, another classic harbinger of gentrification. Data from New York City shows the bifurcation in process. In 2000, the median household income among Whites was $35,904, while Asian Pacific Islanders’ household income was $31,368. By 2010, White median incomes in Chinatown had risen to $58,265, while the neighborhoods’ Asian household incomes had dropped to $29,524.
Gentrification and racial capitalism coincide when economic development depends, at least in part, on exploiting “the commodity of nonwhiteness” for value. Marketing the diversity of Chinatown has in fact been part of developers’ gentrification strategy. Outsiders have exploited Chinatown’s non-Whiteness by commodifying its racial identity to derive economic value. Indeed, Leong’s article examines similar commodification in the context of college and workplace diversity. Economic development in Chinatowns takes the same tactic—diversity as a value-creating draw—and applies it to urban landscapes. But just like racial capitalism in the admissions context can do violence to an admittee’s sense of identity, so, too, can racial capitalism in the gentrification context warp a community’s.
Longtime residents and advocates find wry irony in the fact Chinatown’s distinctive features, forged by discriminatory pressures, now “attract not only tourists to the neighborhoods’ ‘exotic’ products and experiences, but also more affluent residents to conquer a hip and unexplored ‘frontier’ in city living.” Property developers routinely peddle the neighborhood’s “authenticity” as a way to lure more affluent residents into the area, who will pay higher rents than existing tenants. “Nonwhiteness,” to use Leong’s racial-capitalist framework, “has therefore become something desirable—and for many, it has become a commodity to be pursued, captured, possessed, and used.” For example:
“Chinatown is a sensory experience. People pushing past stalls of fresh produce on crowded streets. Exotic-looking vegetables and fruits accompany Florida oranges.”
“New York’s Chinatown represents a thick slice of foreign culture dropped directly into the socio-ethnic stew that is Manhattan . . . Chinatown’s Blade Runner ambience and still-exotic charm reinforced its appeal.”
“It’s unclear how much someone who can afford a $2 million pad will enjoy the one-of-a-kind bodegas-cum-mini-groceries that stock frozen squid snacks.”
The marketing blurbs manage to echo hoary notions of Chinatown in a modern idiom. At the height of anti-Chinese antipathy in America, visitors to Chinatowns “delineated the utter foreignness, exoticism, and evil of the place.” Notably, they marveled at the “visual and olfactory sensations” the neighborhood offered. The sights, sounds, and smells of Chinatown no longer inspire racial animus, but descriptions of Chinatown still emphasize it as “a sensory experience.” Moreover, outsiders continue to market the neighborhood by gesturing at its vestigial traces of danger, along with assurances of safety. Tour guides in 1914 San Francisco, for example, called its Chinatown “the most fascinating city of America,” and made sure to tell patrons that “nowhere is the White visitor more secure in property or person.” Generations later, “[r]eal estate brokers appeal to the exoticism of Chinatown’s culture [and] reference the safety and style of neighboring SoHo and Tribeca.” The relationship between gentrification and racial capitalism has thus been fueled, in part, by the media and real estate industries, which advance the idea of Chinatown “as an exotic yet chic neighborhood on the cusp of a major transformation.”
Selling Chinatown’s culture is not a recent phenomenon. During the exclusion era, outsiders viewed the insular neighborhoods as “a sort of human zoo.” Enterprising spirits quickly seized on outsiders’ fascination, finding ways to monetize on racist caricatures of the Chinese. San Francisco’s tours of Chinatown in 1914 represent only one early example. In the 1920s, New York City’s tour guides extolled the macabre attractions of its own Chinatown, pointing out “clandestine opium dens,” gambling dens, “hidden dungeons,” and “mysterious underground tunnels.” Chinatown’s residents looked on as sightseeing buses trundled through the streets, spinning outlandish yarns. “They relate stories of crime that never took place,” complained a local businessman to the New York Times at the time.
Nor is using racial commodification to drum up economic development a practice unique to Chinatowns. The racial-value marketplace has been utilized all over the world in conjunction with urban renewal:
The commodification of ethno-cultural diversity . . . creat[es] new opportunities in otherwise blighted neighborhoods. Once the rundown neighborhoods of the marginalized, they now flaunt their ethnic diversity and are colorfully described in visitors’ guides and on Web sites to promote tourism and investment. [Such commodification] fuels employment, enhances livability, generates urban socio-economic development, and fosters the branding of cities.
The question, however, is whether these benefits of “ethno-cultural” commodification reach the subjects of commodification.
Leong argues racial capitalism “harms nonwhite people: it fractures identity, creates pressure for nonwhite people to engage in particular identity performances, and inflicts economic harm by placing nonwhite people at the greater mercy of the market.” These two types of harm—identity-based and economic—correlate to the criticisms leveled at Chinatown’s gentrification. For some, the primary concern is a hollowing-out of Chinatown’s cultural identity (in other words, its authenticity). Andrew Leong at AALDEF frets Chinatown is being transformed into “a sanitized ethnic playground for the rich to satisfy their exotic appetite for a dim sum and fortune cookie fix.” Another identity-based harm relates to the role of Chinatown’s inhabitants. Nancy Leong discusses how racial capitalism “degrades nonwhiteness by commodifying it and that relegates nonwhite individuals to the status of ‘trophies’ or ‘passive emblems.’” That is certainly how many twentieth century White visitors saw the Chinese of Chinatowns—as emblems of their race’s characteristics—and critics worry that twenty-first century marketing strikes a similar, if less explicit, tone.
At any rate, the cultural value featured in Chinatown’s marketing seems oriented outward. Depicting Chinatown as an exotic frontier, tinged with adventure, seems designed to lure “hip” New Yorkers into the neighborhood rather than to forge relationships within the community. And the marketing, it must be said, often works. During the first wave of Chinatown gentrification in the 1980s, for example, one new resident explained to the New York Times, “It’s the best all-round deal for my money, because it’s beautiful and peaceful and you can smell spices all over.” As a Time Out excerpt observes, the wealthier newcomers do not seem poised to mix into Chinatown’s “socio-ethnic stew.” Chinatown locals, again, appear more like “passive emblems,” rather than full-standing neighbors.
The other type of cultural harm caused by Chinatown’s gentrification goes to economics. The marketing push surrounding gentrification allows development projects to draw economic value from Chinatown’s non-Whiteness without ensuring Chinatown itself benefits from the bargain. Property developers and brokers capitalize on Chinatown’s non-Whiteness—using bywords such as “exotic” and “foreign”—to generate higher rents and greater economic value. But for whom? Critics point out Chinatown’s existing residents cannot consume the high-end goods and services ushered in by new businesses. According to a 2013 survey by AALDEF, median income in the New York’s Chinatown area is $36,899, “with 27 percent of residents making below $16,556.” Similarly, new development could push out Chinatowns’ small businesses, the lifeblood of the community’s exotic charm. A 2008 survey found almost half (48 percent) of small-business proprietors in Chinatown considered relocating out of Chinatown or shutting down altogether. Such incongruity between the economic influx and the existing inhabitants suggests economic value may not inure to the benefit of Chinatown’s poorer and more vulnerable residents.
To be sure, “economic development” writ large carries with it both harmful and beneficial consequences. Gentrification can lead to displacement, but it can also lower crime rates, broaden the tax base, and bolster public finances. Indeed, discussing gentrification by solely fixating on its positive or negative aspects risks, creating a false dichotomy between unbridled growth and no development. Chinatowns can benefit, of course, from economic growth. Its housing stock, small business revenues, and employee wage rates could all use improvement. But what Chinatown’s supporters demand is growth that fairly accommodates the existing population. As social theorist Karl Polanyi has argued, “[t]he rate of change is often of no less importance than the direction of the change itself.” And while external forces can dictate the latter, “it is the rate at which we allow change to take place, which well may depend upon us.” Polyani calls on the rule of law, specifically, to regulate the rate of change so that vulnerable members of society may adapt. In the case of New York’s Chinatown, however, the state’s legal system has abdicated that role.
Seeking Protection in the Courts
Chinatowns today receive scant protection from development policies or legal precedents, perpetuating the neighborhood’s history of racial commodification. The recurring narrative has been “powerful institutions and callous government agencies [ . . . ] continually mistreat[ing] a small and vulnerable community.” New York City’s Chinatown is a prime example—and two cases, in particular, frame the legal obstacles in the way of residents, activists, and advocates seeking to challenge gentrification projects in that neighborhood.
Chinese Staff & Workers Ass’n v. City of New York
In 1981, New York City created the Special Manhattan Bridge District (SMBD), a zoning district that prompted the first wave of gentrification in Chinatown. The SMBD initiative, which was passed as an amendment to the city’s zoning resolution, centered on fourteen street blocks near the Manhattan Bridge that included part of Chinatown. When the city studied the area in developing the SMBD plan (“the Study”), it took note of the ethnic enclave economy rooted there:
[T]he Study observed that Chinatown offers its residents a cohesive, self-sufficient community, which serves as home, workplace, cultural center, financial center, and retail and service hub for its residents. Problems of assimilation for new immigrants are minimized by the absence of language and cultural barriers and the opportunities for employment from Chinese-owned businesses within walking distance from their homes.
The study also recognized a need for affordable housing in the area, but concluded that “new housing, financed either privately or through public programs, is not a realistic possibility for meeting the majority of the area’s housing needs.” The SMBD’s plan to stimulate the construction of affordable housing in Chinatown through a program of “incentive zoning” proved toothless.
The construction of affordable housing under an incentive-zoning scheme depends, predictably, on the incentives offered to developers. And the incentives for building affordable housing in the SMBD paled in comparison to other incentives on offer. To illustrate: a developer who agreed to build a community facility in the SMBD would receive a zoning bonus of seven square feet for every square foot spent on the community facility. “Rehabilitated housing” (new, but not affordable, housing stock) could earn a zoning exception of six square feet for every foot built. That spurred new construction, which revitalized dilapidated housing stock and attracted new residents to the area. But the zoning incentive for affordable housing amounted to only two additional square feet for every square foot of low- and moderate-income housing provided, the lowest of the three zoning incentives. Unsurprisingly, the affordable-housing incentive “failed to attract a single developer.” Fearing imminent and uncontrolled development, members of the Chinatown community banded together to form the Manhattan Bridge Area Coalition, “declaring war on the [SMBD] in particular and gentrification in general.”
Chinatown activists sued the city over SMBD development in an important case called Chinese Staff & Workers Ass’n v. City of New York. The controversy arose when Henry Street Partners, a property developer, sought to build a luxury high-rise building on a vacant lot in the SMBD. The city, pursuant to regulations promulgated under the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR), conducted a “thorough review of the effects of the project on the physical environment” (emphasis added). What the city agencies did not do was examine whether the high-rise would “accelerate the displacement of local low-income residents and businesses or alter the character of the community.” The city determined Henry Street’s development would “not have any significant effect on the environment if certain modifications were adopted.” Henry Street accepted the modifications. Because no significant effect on the environment was foreseen, the city avoided having to prepare an Environmental Impact Statement (EIS). The city granted Henry Street Partners a permit to commence construction. At that point, a group of Chinatown residents and activists brought a suit to challenge the approval of the permit. The controversy reached the Court of Appeals, New York’s highest court, where it turned on the “proper interpretation of statutory language.” Namely, the court had to decide whether the term “environment,” as used in the SEQRA and CEQR, included considerations of effects like population displacement and community character. This was critical because if “environment” did include such effects, the city agencies had failed to take the requisite “hard look” at all “relevant areas of environmental concern” before deciding whether or not to prepare an EIS. The court concluded that “both SEQRA and CEQR require a lead agency to consider more than impacts upon the physical environment in determining whether to require the preparation of an EIS.” Specifically, “the potential displacement of local residents and businesses is an effect on population patterns and neighborhood character which must be considered.” Since the city failed to satisfy the statutory requirement, the court declared Henry Street’s permit “null and void.”
Chinese Staff & Workers Ass’n produced a favorable ruling, but no dependable precedent for Chinatown residents and activists. Community groups tend to overstate the significance of the victory in Chinese Staff & Worker’s Ass’n. AALDEF, which represented the plaintiffs in the case, still calls it a “precedent-setting case” that “ultimately stopped a developer from building luxury residences on a vacant lot and sparked discussion about changing the City’s environmental review process.” That is all true, but the precedent set has been, unfortunately, a modest one. Most New York court opinions cite Chinese Staff & Workers Ass’n now for the proposition that it limits what a court can review. And the discussion it sparked has focused on the shortcomings of the judiciary’s role vis-à-vis Chinatown’s development. For activists, the limited reach of Chinese Staff & Workers Ass’n “highlighted the legal system’s disappointingly narrow construction of its role in remediating environmental justice problems.”
Moreover, the legal standard articulated by Chinese Staff & Workers Ass’n requires only that government agencies identify “the relevant areas of environmental concern,” take a “hard look” at them, and state a “reasoned elaboration” when they issue a determination on the project. Thus, cases in which plaintiffs attack the substance of a well-considered plan, arguing for example that the city should provide for affordable housing in a zoning plan, but failed to do so, do not fall within the ambit of Chinese Staff & Workers Ass’n. While New York’s courts “endorse the position that the need for low-income housing should be addressed by government,” they have simultaneously maintained “there is no affirmative obligation imposed upon municipal authorities to provide for the housing needs of low-income residents.” Chinatown residents and activists have thus been frustrated in seeking judicial intervention because the courts have not recognized any substantial legal duty on the part of the city to provide affordable housing. To overcome this obstacle, advocates have tried to find a constitutional basis for the argument that lack of affordable housing invalidates the city’s zoning plan.
Asian Americans for Equal. v. Koch
Under the Supreme Court’s ruling in Village of Euclid v. Ambler Realty Co., a zoning plan can be declared unconstitutional only if its “provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Euclid’s test, which gives deference to government discretion, has foiled numerous challenges to exclusionary zoning plans. But in the landmark case of Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel (also referred to as “Mount Laurel I”), the New Jersey Supreme Court found in Euclid’s “general welfare” requirement “a sword to attack exclusionary zoning, rather than as a shield for [its] defense.” The court held that New Jersey’s municipalities must fulfill their “fair share of the regional need for low- and moderate-income housing.” Specifically, the court premised its ruling on provisions in the New Jersey constitution that guarantee equal protection and substantive due process. A few years later, in Mount Laurel II, the court clarified the Mount Laurel doctrine applied to “urban areas” as well as suburban ones, and reiterated municipal zoning provisions should not exclude or displace an area’s “indigenous poor.” The Mount Laurel rationale, if applied in New York, would conceivably require city agencies to affirmatively ensure the provision of affordable housing as part of gentrification projects.
New York courts, however, have distanced themselves from Mount Laurel. This became apparent in another case involving a challenge to the SMBD called Asian Americans for Equal. v. Koch. The Koch plaintiffs sued the city because of the meager incentives for affordable housing provided by the SMBD. They sought (1) a judgment declaring the SMBD unconstitutional “because it was not enacted pursuant to a well-considered plan,” and (2) an injunction, along the lines of Mount Laurel, ordering the city “to create a zoning plan for the [SMBD], which provides for and mandates a realistic opportunity for the construction of low income housing.”
The New York Court of Appeals rejected both claims, extending the reasoning of an earlier case called Berenson v. Town of New Castle. Berenson involved a town zoning law that forbid the construction of any multi-family dwellings, like apartments or condominiums, in an effort to preserve the town’s bucolic character. The court in that case applied a two-part test to assess whether the town’s zoning plan violated New York law: (1) “whether the [zoning] board has provided a properly balanced and well-ordered plan for the community,” taking into account that “what may be appropriate for one community may differ substantially from what is appropriate for another”; and (2) whether, “in enacting a zoning ordinance, consideration [was] given to regional needs and requirements.” The court did espouse two different views on its role in zoning: while it said “[c]ommunity efforts at immunization or exclusion would not be countenanced,” the court nonetheless noted that zoning was “essentially a legislative act,” so it would be “quite anomalous” if courts were “required to perform the tasks of a regional planner.”
The laissez-faire attitude toward zoning pervaded the court’s opinion in Koch. Several aspects of the court’s reasoning merit close attention. First, the court drew a distinction between the explicit exclusion in Berenson—where the town allowed no new multi-family buildings—and the situation in New York City. Unlike New Castle, New York City never “excluded low-cost housing in Chinatown or in the City generally,” and the existence of low-income residents already in Chinatown confirmed the difference. Next, both the Court of Appeals and the lower court rejected the parallel to Mount Laurel by differentiating between the affordable-housing situations in New York and New Jersey. According to the appellate division, “[n]ot by the widest stretch of the imagination [ . . . ] could the fact pattern in Mount Laurel be applicable to New York City’s record for providing for low- and moderate-income housing.” Third, the Court of Appeals further distinguished Mount Laurel by limiting its reach to “expanding suburban communities,” while New York City’s Chinatown represented a “densely developed area [ . . . ] with substantial low-cost housing.” Finally, the Koch court defined the “community” in question as New York City as a whole, rather than the SMBD area. So, the SMBD had no obligation under Berenson to provide affordable housing, because New York City “already ha[d] made extensive allowance for a variety of housing opportunities within its boundaries.”
Despite its unfavorable ruling, Chinatown advocates feeling optimistic could draw at least two positive implications from Koch. First, it left open the possibility that a zoning district could violate the Berenson rule and be deemed exclusionary on the basis of population displacement. This is important because Berenson itself did not address displacement of any existing residents, only a prohibition on new construction. Koch thus extended (without comment) Berenson to cover displacement. Second, Koch suggested a zoning plan that leaves residents with no alternative “housing opportunities” in the locality could be unconstitutional. That is, Koch may “come to stand for the principle that a zoning ordinance resulting in full-scale displacement is legally indistinguishable from one that excludes on its face.” To be sure, “full-scale displacement” presents a high bar for plaintiffs in New York City’s Chinatown to meet, because the court considered all of New York City in deciding whether other affordable housing options existed. Nonetheless, the court “recognize[d] plaintiffs’ concerns over displacement and gentrification in the Chinatown area.”
As of yet, no community group has successfully blocked a development project by fashioning a legal argument out of the sympathetic strands scattered about the Koch opinion. This is because, while the court expressed “concerns over displacement and gentrification,” no concomitant doctrine has materialized to give those concerns any real legal heft. Thus, New York courts have continued to mirror the city’s laissez-faire approach to urban development. Looking forward, however, the reasoning in Koch seems vulnerable to several avenues of attack, based on the changing realities of New York City, as well as Chinatown’s unique character.
The plaintiffs and the court in Koch seemed to disagree, fundamentally, on how zoning laws should view small, discrete communities like New York City’s Chinatown. Both the Court of Appeals and the lower appellate court defined “community” in terms of physical size and formal legal authority. The Court of Appeals emphasized the SMBD covered only “14 blocks . . . and includes a part, but by no means all, of Chinatown.” (Enough, community members believed, to spur displacement “in the heart of Chinatown.”) Ultimately, because “the City is the governing authority, not the District,” the strictures of Berenson did not apply to the SMBD. The appellate division, too, equated size and legal authority with legal significance, concluding “the applicable zoning district may very well be the entire City of New York, not a fourteen- to twenty-block district.” Immunizing small-scale zoning districts from judicial scrutiny frustrates foes of gentrification, because the city often uses such districts. The Broadway Theatre District and the Special Lincoln Square District, for example, were implemented in the years before Koch. What future Chinatown plaintiffs—and critics of gentrification, more broadly—must do is advance a broader, less rigid notion of “community” for purposes of exclusionary zoning.
Chinatown exemplifies the idea that “[l]ocal social and community ties are worthy of at least some judicial protection.” This “community rights” vision of zoning looks beyond a neighborhood’s physical size or lack of legal personality, and finds in each individual resident a property right that includes “place, position, relationship, roots, community, solidarity, [and] status.” By placing focus on the individual, the community rights theory counters the Koch argument that development should only be balanced at the level of the zoning authority. Under this view, a development project that causes or will cause displacement threatens to violate the property rights of the displaced. The community rights theory seems consonant with New York’s own conception of civil rights, as evidenced by the state’s human rights law:
The legislature hereby finds and declares that the state has the responsibility to act to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants.
The statute connects equal protection—an individual right—first to housing, and then to the consequences on society (“a free democratic state”) at large. In the same way, community rights can be seen as “an indispensable ingredient in the constitution of the individual as a participant in the life of the society.” A court can then balance the public interests in economic development with the private property interests that create a political right of community.
The Koch court’s reasoning failed to address the fact that for Chinatown’s longtime inhabitants, an available unit of affordable housing in Chinatown is not equivalent to an available unit of affordable housing somewhere else in New York City. The difference is community. For Chinatown’s residents, their location is not fungible—rather, it helps engender a sense of identity and offers concrete benefits. As the SMBD Study itself observed, Chinatown provides a “cohesive, self-sufficient community, which serves as home, workplace, cultural center, financial center and retail and service hub for its residents.” That is why a “zoning ordinance that obliterates or divides a local community such as Chinatown has the power to damage seriously the political and cultural identity of the affected residents.” But the Court of Appeals gave those considerations little, if any, weight. Instead, it focused on “the needs of the broader community”—that is, those of “the City as a whole.” Once again, a powerful institution ignored Chinatown’s concerns about its own identity.
Unlike counterparts in other major American cities, the fears of an “ethnic theme park” have not yet been realized in lower Manhattan. The preeminence of New York’s Chinatown among satellite Chinese-American communities has allowed it to become a cultural hub, with spokes reaching out to many different neighborhoods. Chinatown’s survival today hinges on characteristics that have shaped it throughout its history: expansive co-ethnic networks, self-sufficiency, and a genius for reinvention. But from its origins as a refuge for Chinese immigrants facing discrimination, the neighborhood has been defined by the actions and interests of outsiders. Today, that pattern continues as ordinary Chinatown inhabitants get little say in the character, direction, and pace of economic development in the area. While gentrification can ultimately benefit Chinatown, rudderless development policies ignore the historical fact that “Chinatowns were products of extreme forms of racial segregation.” Going forward, a conception of property rights that recognizes community rights may better balance the needs of Chinatown with the expansion of the cities around it.
Kartik Naram is a law clerk in the complex litigation and trials department at the New York offices of Skadden, Arps, Slate, Meagher & Flom. Naram received his law degree from NYU School of Law, where he served on the board of the South Asian Law Students Association and as a member of the Moot Court Board. Prior to law school, Naram worked for a gubernatorial campaign, a political consulting firm, and as a paralegal in the appeals bureau of the Manhattan district attorney’s office. Born in India and raised in Rhode Island, Naram is passionate about politics, immigrant identity, and the Boston Red Sox.
 Leong, Nancy, “Racial Capitalism,” Harvard Law Review Vol, 126, No. 8 (Cambridge, Massachusetts: Harvard University Press, June 2013): 2153-2154.
 Ibid, 2158.
 Ibid, 2186.
 Ibid, 2198.
 Kwong, Peter, The New Chinatown (New York: Hill and Wang, 1996): 13.
 Leong, supra note 1.
 Kwong, Peter, and Dušanka Miščević, Chinese America: The Untold Story of America’s Oldest New Community (New York: The New Press, 2005): 50.
 Ibid, 43-44.
 Ibid, 44.
 4. Cal. 399.
 Chou, Christopher, “Land Use and the Chinatown Problem” Asian Pacific American Law Journal Vol. 19, No. 1 (Los Angeles: UCLA School of Law, 2014): 36.
 4 Cal. at 404-405.
 Chou, “Land Use,” 37.
 Goyette, Braden, “How Racism Created America’s Chinatowns,” Huffington Post, 12 November 2014.
 Kwong and Miščević, Chinese America, 110.
 Ibid, 110-111.
 Goyette, supra note 15.
 Bock, Deborah Lyn, “The Historical Function of Chinatown and its Application to Philadelphia,” master’s thesis (Philadelphia: University of Pennsylvania, 1976): 42.
 “Chinatown Then and Now: Gentrification in Boston, New York, and Philadelphia,” Asian American Legal Defense and Education Fund (AALDEF), 2013.
 Li, Jun, “Philadelphia’s Chinatown: An Ethnic Enclave Economy in a Changing Landscape,” CUREJ: College Undergraduate Research Electronic Journal (Philadelphia: University of Pennsylvania, December 2007): 12.
 “Chinatown,” supra note 23.
 Ibid, 7; Li, supra note 24.
 Highly educated, highly skilled immigrants usually transition directly into the mainstream economy, without resort to an ethnic enclave economy.
 Damm, Anna Piil, “Ethnic Enclaves and Immigrant Labor Market Outcomes: Quasi-Experimental Evidence,” Journal of Labor Economics Vol. 27, No. 2 (Chicago: University of Chicago Press, 2009): 27.
 Xie, Yu, and Margaret Gough, “Ethnic Enclaves and the Earnings of Immigrants,” Demography Vol. 48, No. 4 (New York: Springer, 2011): 1297.
 Ibid, 1295.
 Shah, Navan, “Public Health and the Mapping of Chinatown,” Asian American Studies Now: A Critical Reader, eds. Jean Yu-Wen Shen Wu and Thomas C. Chen (New Brunswick, New Jersey: Rutgers University Press, 2010): 168, 170.
 Ibid, 185.
 See Weinstein, Hannah, “Fighting for A Place Called Home: Litigation Strategies for Challenging Gentrification,” UCLA Law Review Vol. 62, No. 3 (Los Angeles: UCLA School of Law, 2015): 794-832.
 Ibid, 797.
 “Converting Chinatown: A Snapshot of a Neighborhood Becoming Unaffordable and Unlivable,” The Urban Justice Center, 2008.
 “Chinatown,” supra note 23.
 Leong, supra note 1.
 “Converting Chinatown,” supra note 37.
 I use the term “outsiders” rather than “Whites” to avoid oversimplifying the relationship between Chinatowns and the wider world. Certainly, Whites led nineteenth century campaigns to expel and exclude the Chinese. But the White/non-White binary cannot fully describe the narrative of gentrification. Chinese bosses exploit co-ethnic employees, Chinese landlords harass co-ethnic tenants, and Asian financing has at times hastened Asian American displacement. “Outsider” represents the idea that those in power—White, Asian, or other—exploit those without it. The dynamic still conforms to Leong’s theory. What characterizes racial capitalism, after all, is the notion that others can gain from one’s own racial identity.
 “Converting Chinatown,” supra note 37.
 Leong, “Racial Capitalism,” 2155.
 “Converting Chinatown,” supra note 37.
 Shah, supra note 32.
 “Converting Chinatown,” supra note 37.
 Kwong and Miščević, Chinese America, 128.
 Novy, Johannes, “Urban Ethnic Tourism in New York’s Neighborhoods,” Selling Ethnic Neighborhoods: The Rise of Neighborhoods as Places of Leisure and Consumption, eds. Volkan Aytar and Jan Rath (New York: Routledge, 2012): 19.
 Ibid, 1-2.
 Leong, “Racial Capitalism,” 2204.
 Goyette, supra note 15.
 Leong, “Racial Capitalism,” 2156.
 Howe, Marvine, “Have-Nots Fear ‘Manhattanization’ As Developers Size Up Chinatown,” The New York Times, 21 September 1984.
 “Converting Chinatown,” supra note 37.
 “Chinatown,” supra note 23.
 See Byrne, J., “Two Cheers for Gentrification,” Howard Law Journal Vol. 46 (Washington, DC: Howard University Press, Spring 2003): 405-432. Even Byrne’s essay, however, which praises the effects of gentrification on communities as well as low-income populations, acknowledges “the persistent failure of government[s] to produce or secure affordable housing.”
 Polanyi, Karl, The Great Transformation (New York: Farrar & Rinehart, 1944): 36-37.
 Leong, Andrew, “The Struggle Over Parcel C: How Boston’s Chinatown Won a Victory in the Fight Against Institutional Expansionism and Environmental Racism,” Amerasia Journal Vol. 21, No. 3 (Los Angeles: UCLA Asian American Studies Center, 1997): 101.
 Asian Americans for Equal. v. Koch, 72 N.Y.2d 121, 127 (1988).
 Asian Americans for Equal. v. Koch, 128 A.D.2d 99, 121 (1987), (Carro, J., dissenting), aff’d., 72 N.Y.2d 121 (1988).
 Lima, Paul Xavier, Asian Americans for Equality v. Koch: The Battle Over Affordable Housing, 4 Pace Envtl. L. Rev. 491, 497 (1987), (quoting the study at 57).
 Land Use-Exclusionary Zoning-Community Displacement Within New York City Not Actionable Under New York Constitution, Asian Americans for Equality v. Koch, 72 N.Y.2d 121, 527 N.E.2d 265, 531 N.Y.S.2d 782 (1988), 102 Harv. L. Rev. 1092, 1094 (1989). [herein after, Koch article]. More precisely, the developer would receive a “floor area ratio” bonus of seven square feet.
 Dobkin, Steve, and Geoffrey Earle, “Zoning for the General Welfare: A Constitutional Weapon for Lower-Income Tenants,” New York University Review of Law & Social Change Vol. 13, No. 4 (New York: NYU Press, 1985): 914-916.
 Howe, supra note 59.
 Chinese Staff & Workers Ass’n v. City of New York, 68 N.Y.2d 359 (1986).
 Ibid, 363.
 Ibid, 365.
 Ibid, 363.
 Ibid, 366.
 Ibid, 366-367.
 Ibid, 369.
 “Chinatown,” supra note 23.
 See, e.g., Chem. Specialties Mfrs. Ass’n v. Jorling, 85 NY 2d 382, 396-97 (1995) (explaining that “[i]n reviewing SEQRA determinations we are limited to considering whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion”) (internal quotation marks omitted) (citing Chinese Staff & Workers Ass’n, 68 N.Y.2d at 363).
 Sze, Julie, “Asian American Immigrant and Refugee Environmental Justice Activism Under Neoliberal Urbanism,” Asian American Law Journal Vol. 18, No. 1 (Berkeley, California: Berkeley Law, 2011): 16.
 Ibid, 15-16.
 See Asian Americans for Equal. v. Koch, 128 A.D.2d 99, 111 (1st Dept. 1987) aff’d., 72 N.Y.2d 121 (1988) (“[T]he allegation by the plaintiffs in the instant case that the City did not affirmatively order the construction of dwelling units for low- and moderate-income persons [was] not considered by the Court of Appeals in the Chinese Staff case.”)
 Akpan v. Koch, 152 A.D.2d 113, 117 (1st Dept. 1989), aff’d., 75 N.Y.2d 561 (1990).
 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
 See, e.g., Town of Islip v. F.E. Summers Coal & Lumber Co., 257 N.Y. 167, 169 (1931) (“In the light of [Euclid], how can a court say upon mere inspection of the zoning ordinance that the end in view is not reasonably pursued by its adoption . . . . and thereby to promote the public safety?”).
 Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel (Mount Laurel I), 67 N.J. 151 (1975); Dobkin and Earle, supra note 71.
 Dobkin and Earle, “Zoning,” 192.
 S. Burlington Cty. N.A.A.C.P. v. Mount Laurel Twp., 92 N.J. 158, 214-15 (1983) (“The zoning power is no more abused by keeping out the region’s poor than by forcing out the resident poor. In other words, each municipality must provide a realistic opportunity for decent housing for its indigenous poor except where they represent a disproportionately large segment of the population as compared with the rest of the region. This is the case in many of our urban areas.”).
 Asian Americans for Equal. v. Koch, 72 N.Y.2d 121 (1988).
 Ibid, 126.
 Berenson v. Town of New Castle, 38 N.Y.2d 102, 108 (1975), (internal quotation marks omitted).
 Ibid, 126.
 38 N.Y.2d at 116-17.
 Ibid, 134.
 Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel (Mount Laurel I), 128 A.D.2d 99, 115 (1st Dept. 1987) aff’d., 72 N.Y.2d 121 (1988).
 Ibid, 133.
 Ibid, 135 (emphasis added).
 Koch article, supra note 70.
 72 N.Y.2d at 136 (citing Chinese Staff & Workers Ass’n., 68 N.Y.2d at 359).
 Asian Americans for Equal. v. Koch, supra note 67.
 Howe, supra note 59.
 Berenson v. Town of New Castle, 72 N.Y.2d at 134.
 Berenson v. Town of New Castle, 128 A.D.2d 99 at 118.
 Asian Americans for Equal. v. Koch, 72 N.Y.2d at 129.
 Koch article, supra note 70, 1097.
Michelman, Frank I., “Property as a Constitutional Right,” Washington and Lee Law Review Vol. 38, No. 4 (Lexington, Virginia: Washington and Lee University School of Law, Fall 1981): 1112.
 N.Y. Exec. Art. XV, § 290.
 Asian Americans for Equal. v. Koch, 128 A.D.2d at 121 (Carro, J., dissenting).
 Koch article, supra note 70, 1097.
 Asian Americans for Equal. v. Koch, 72 N.Y.2d at 134.
 Tabor, Nick, “How Has Chinatown Stayed Chinatown?,” New York Magazine, 24 September 2015.
 Goyette, supra note 15.
Naram, Kartik. “No Place Like Home: Racial Capitalism, Gentrification, and the Identity of Chinatown.” Asian American Policy Review 27 (2017): 33-50.