NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1384-22

NEW JERSEY REALTORS, 

 Plaintiff-Respondent, 

v.

TOWNSHIP OF BERKELEY, 

 Defendant-Appellant. 

_________________________

Argued November 8, 2023 – Decided July 31, 2024 

Before Judges Haas, Gooden Brown, and Natali. 

On appeal from the Superior Court of New Jersey, 

Law Division, Ocean County, Docket No. L-0991-22. 

Christopher J. Dasti argued the cause for appellant

(Dasti & Associates, PC, attorneys; Christopher J. 

Dasti, of counsel and on the briefs; Jeffrey D. Cheney, 

on the briefs). 

Barry S. Goodman argued the cause for respondent 

(Greenbaum, Rowe, Smith & Davis LLP, attorneys; 

Barry S. Goodman and Conor J. Hennessey, of 

counsel and on the brief). 

 The opinion of the court was delivered by 

GOODEN BROWN, P.J.A.D. 

APPROVED FOR PUBLICATION 

July 31, 2024 

APPELLATE DIVISION 
A-1384-22 2 

This appeal requires us to determine the validity of a local ordinance 

restricting ownership at certain senior housing communities. Defendant 

Township of Berkeley (Township) appeals from the December 2, 2022, Law 

Division order granting summary judgment to plaintiff New Jersey Realtors 

(NJR). The order effectively invalidated Berkeley Township Ordinance No. 

22-13-OA (the Ordinance), which amended certain land use provisions to limit 

property ownership in certain senior housing communities to persons aged 

fifty-five and older. NJR sued the Township after the Ordinance was enacted, 

arguing that such a restriction violated the Fair Housing Act (FHA), 42 U.S.C. 

§ 3604(a), and the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 

10:5-12(h), because both statutes prohibit discrimination based on familial 

status. According to NJR, by setting a minimum age for property ownership in 

retirement communities, the ordinance was discriminatory, and the restriction 

did not fall within the limited housing for older persons exemption. Finding 

that the ordinance violated the FHA and the NJLAD, the judge invalidated the 

ordinance. We agree and affirm. 

I.

The facts are undisputed. On March 29, 2022, the Township amended 

and supplemented multiple sections of Chapter 35, the "Land Development" 

section of the Township's municipal code, by enacting the Ordinance. The 
A-1384-22 3 

Ordinance changed existing land use provisions that required occupancy of 

age-restricted units by persons aged fifty-five years or older, to now require 

ownership of such units by persons aged fifty-five or older within certain 

retirement communities. 

Specifically, the Ordinance amended the definition of "Planned 

Residential Retirement Community" (PRRC) under Section 35-101.1 to read as 

follows: 

"PRRC[]" shall mean a community having one . . . or

more parcels of land with a contiguous total acreage of 

at least one hundred . . . acres except within the RGR 

Zone which must have a continuous total acreage of at 

least forty . . . acres, forming a land block to be

dedicated to the use of a planned retirement 

community; through its corporation, association or 

owners, the land shall be restricted by bylaws, rules, 

regulations and restrictions of record, and services for 

the benefit of permanent residents of communities 

which mandate that in accordance with 

24 [C.F.R. §] 100.306[(a)(4)], 24 [C.F.R. §] 100.[306(

a)(5)] and 24 [C.F.R. §] 100.[306(a)(6)] only persons 

fifty-five . . . years of age and older, along with either 

their respective spouse or domestic partner, or 

otherwise if expressly authorized by the PRRC's 

bylaws, rules, regulations and restrictions of record, 

shall purchase a Lot or Living Unit in a PRRC to 

assure that the PRRC does not have its age-restricted 

status pursuant to 42 U.S.C. [§§ 3601 to 3631] 

revoked and otherwise which require that residents 

comply with the provisions, stipulations and 

restrictions regarding senior communities allowing 

occupancy of units by persons fifty-five . . . years of 

age or older, as contained in the Federal Fair Housing 

Act, as amended in 1988. Ownership of the 
A-1384-22 4 

residential units and the area comprising a PRRC may 

be in accordance with the provisions of N.J.S.A. 

45:22A-21[ to -56], or the ownership may be as is 

commonly referred to as "fee simple" with open space 

to be maintained through assessment against property 

owners within the confines of the community. 

[(Emphasis added).] 

Next, the Ordinance amended Section 35-101.12 to state that: 

The maintenance of the green areas, private 

roadways, driveways, common courtyards, 

recreational areas, lakes and other improvements not 

intended to be individually owned shall be provided

by an association organized under the Nonprofit 

Corporation Statute of the State of New Jersey (Title 

15) and formed for that purpose. The applicant shall, 

in the form restrictions and covenants to be recorded, 

provided that title to the aforesaid enumerated areas 

shall be conveyed to the association, whose members

shall be owners of lots who are only persons fiftyfive . . . years of age or older, along with either their 

respective spouse or domestic partner, or other 

interests, or to such other persons as a majority of the 

members shall designate from time to time by duly 

adopted bylaws. Such restrictions and covenants shall 

mandate that in accordance with 24 [C.F.R. §] 

100.306[(a)(4)], 24 [C.F.R. §] 100.306[(a)(5)] and 

24 [C.F.R. §] 100.306[(a)(6)] only persons fiftyfive . . . years of age or older, along with either their 

respective spouse or domestic partner, or otherwise if 

expressly authorized by the PRRC's bylaws, rules, 

regulations and restrictions of record, shall purchase a 

Lot or Living Unit in a PRRC to assure that the PRRC 

does not have its age-restricted status pursuant to

42 U.S.C. [§ 3601 to 3631] revoked and further 

provide that the same shall not be altered, amended, 

voided or released, in whole or in part, without the 

written consent of the Township of Berkeley by 
A-1384-22 5 

resolution duly adopted at a regular meeting of the

Township Council and except upon proper notice 

being given by the applicant or any other party in 

interest to all owners of lots in the PRRC. 

[(Emphasis added).] 

Finally, Section 35-101.14(c) was amended as follows: 

The documents shall be forwarded to the Board 

and shall be subject to the review of the Board and of 

the Township Council as to their adequacy in ensuring 

that the community shall be constituted so as to be

consistent with the purposes and requirements of this 

section, including the mandate that in accordance with 

24 [C.F.R. §] 100.306[(a)(4)], 24 [C.F.R. §] 100.306[(

a)(5)] and 24 [C.F.R. §] 100.306[(a)(6)] only persons 

fifty-five . . . of age or older, along with either their 

respective spouse or domestic partner, or otherwise if 

expressly authorized by the PRRC's bylaws, rules, 

regulations and restrictions of record shall purchase a 

Lot or Living Unit in a PRRC to assure that the PRRC 

does not have its age-restricted status pursuant to

42 U.S.C. [§ 3601 to 3631] revoked. The proposed 

documents and restrictions shall indicate a 

comprehensive and equitable program for the orderly

transition of control over the homeowners' association 

from the applicant or the developer to the actual 

homeowners in the community. 

[(Emphasis added).] 

On May 11, 2022, NJR filed a complaint in lieu of prerogative writs 

against the Township seeking an order declaring the Ordinance "invalid and 

unenforceable" on the grounds that limiting property ownership, rather than 

occupancy, violated federal and state law. In the complaint, NJR asserted that 
A-1384-22 6 

the Ordinance violates the FHA and the NJLAD because both statutes prohibit 

familial status discrimination, which the Ordinance violates by setting a 

minimum age for property ownership in PRRCs, and the restriction does not 

fall within the statutory exemption. See 42 U.S.C. § 3604(a); N.J.S.A. 10:5-

12.5(a). According to the complaint, the Ordinance is preempted by the FHA 

and the NJLAD, is arbitrary, capricious, and unreasonable, and violates the 

State Constitution, N.J. Const. art. 1, ¶ 1.1 

 On August 12, 2022, NJR moved for summary judgment. In support, 

NJR relied on a July 5, 2017, letter from the Commissioner of the Department 

of Community Affairs (DCA) responding to NJR's inquiries on the legality of 

restricting home ownership in age-restricted communities. The letter stated: 

[DCA] has received your correspondence regarding 

age-restricted communities limiting the ownership of 

homes to those over the age of [fifty-five] or [sixtytwo]. At my direction, staff reviewed the current 

federal and state law regarding age-restricted 

communities with regards to ownership and 

occupancy. 

Our research yielded the results you expected. 

Both the federal and state laws limit the age of the 

1

 Article I, Paragraph 1 of the New Jersey Constitution provides that "[a]ll 

persons are by nature free and independent, and have certain natural and 

unalienable rights, among which are those of enjoying and defending life and 

liberty, of acquiring, possessing, and protecting property, and of pursuing and 

obtaining safety and happiness." 
A-1384-22 7 

occupants of the home in age-restricted communities, 

not the age of the owner of the home. Therefore, agerestricted communities cannot prohibit the sale of a 

home based on the owner's age. However, they may 

require the owner or purchaser to certify that the units 

will be occupied by a person that meets the age 

restriction. 

Additionally, in response to a request from the Township's Administrator 

for clarification of the July 5, 2017, letter, in an October 26, 2017, letter, the 

DCA Commissioner informed the Township in pertinent part: 

I am writing in response to your letter 

requesting clarification, and additional information, 

regarding my letter dated July 5, 2017, which dealt

with the ownership of housing units in age-restricted 

communities. That letter was written in response to a 

question from [NJR]. In that letter, I indicated that 

while federal and State law permit, in certain 

instances, a community to restrict occupancy to 

persons based on age, those laws do not include 

similar language regarding the owners of units in such 

communities. That conclusion was based on a review

of the applicable statutes. 

In your letter, you raise several questions. First, 

you inquire as to whether my letter was meant to 

suggest that a community could, in fact, restrict the 

age of owners, but that communities are not currently 

doing so. That is not what my letter was stating; 

rather, as noted above, age-restricted communities 

may restrict the occupants, but not the owners of units, 

based on age. 

 On December 2, 2022, following oral argument, the judge entered an 

order granting NJR's motion and invalidating the Ordinance. In an oral 
A-1384-22 8 

decision, the judge determined that the Ordinance could not survive the 

challenge because it conflicted with the FHA and the NJLAD by "restrict[ing] 

ownership," not occupancy, "of people who are over [fifty-five]." The judge 

acknowledged the DCA letters, noting that "the [DCA] made a specific finding 

that . . . the exception . . . under the [FHA] and the [NJLAD] . . . relates to 

occupancy and [not] ownership." The judge also ruled that the Ordinance 

concerned an "area that has been preempted by . . . design on the federal and 

state level . . . [and] . . . conflicts with the housing regulations and the scheme 

to provide . . . age-restricted housing." Finally, the judge commented on the 

"unintended consequences" of the Ordinance, which included preventing an 

older owner from transferring title to the property to a non-qualifying younger 

person "for purposes of estate planning." This appeal followed. 

On appeal, the Township argues the judge "improperly granted [NJR's] 

motion for summary judgment as the Ordinance is constitutional and neither 

invalidated nor preempted" by the FHA or the NJLAD.

II. 

"[W]e review the trial court's grant of summary judgment de novo under 

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l 

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is 

well-settled. 
A-1384-22 9 

[I]f the evidence of record—the pleadings, 

depositions, answers to interrogatories, and 

affidavits—"together with all legitimate inferences 

therefrom favoring the non-moving party, would 

require submission of the issue to the trier of fact," 

then the trial court must deny the motion. R. 4:46-

2(c); see Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995). On the other hand, when no 

genuine issue of material fact is at issue and the 

moving party is entitled to a judgment as a matter of 

law, summary judgment must be granted. R. 4:46-

2(c); see Brill, 142 N.J. at 540. 

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 

366 (2016).] 

Where there is no material fact in dispute, as here, "we must then 'decide 

whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting 

& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 

2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. 

Div. 2007)). "We review issues of law de novo and accord no deference to the 

trial judge's [legal] conclusions . . . ." MTK Food Servs., Inc. v. Sirius Am. 

Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018). 

The issue before us involves the interpretation of the FHA and the 

NJLAD. Issues of "statutory construction" are also subject to "de novo" 

review. Cashin v. Bello, 223 N.J. 328, 335 (2015). In interpreting a statute, 

our Supreme Court recently provided the following guidance: 
A-1384-22 10

Our role when interpreting a statute "is to determine 

and give effect to the Legislature's intent." DYFS v. 

A.L., 213 N.J. 1, 20 (2013). 

To achieve that goal, "we look first to the plain 

language of the statute," ibid., attributing to statutory 

words "their ordinary meaning and significance and 

read[ing] them in context with related provisions so as 

to give sense to the legislation as a whole," 

DiProspero v. Penn, 183 N.J. 477, 492 (2005) 

(citations omitted). If the statutory text has a clear 

meaning, that meaning controls, but if the plain 

language is ambiguous or leads "to an absurd result or 

to a result at odds with the objective of the overall 

legislative scheme," then we will analyze extrinsic

sources such as legislative history to best determine 

legislative intent. DCPP v. Y.N., 220 N.J. 165, 178 

(2014). 

[N.J. Div. of Child. Prot. & Permanency v. B.P., 257 

N.J. 361, 374 (2024) (alteration in original).] 

"'[W]e interpret a regulation in the same manner that we would interpret a 

statute.'" In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533, 542 

(2016) (quoting US Bank, N.A. v. Hough, 210 N.J. 187, 199 (2012)). 

Under the FHA, 42 U.S.C. § 3604, discrimination in the sale or rental of 

housing on the basis of familial status is strictly prohibited. See Seniors Civ. 

Liberties Ass'n v. Kemp, 761 F. Supp. 1528, 1541 (M.D. Fla. 1991) ("[T]he 

Fair Housing Amendments Act of 1988 applies to both rental and ownership 

housing."). To that end, subject to certain exemptions, 42 U.S.C. § 3604 

makes it unlawful to "refuse to sell or rent[,] . . . or otherwise make 
A-1384-22 11

unavailable or deny, a dwelling to any person;" "[t]o discriminate against any 

person in the terms, conditions, or privileges of sale or rental[,] . . . or in the 

provision or services or facilities in connection therewith;" and "[t]o make, 

print, or publish . . . any notice, statement, or advertisement, with respect to 

the sale or rental . . . that indicates any preference, limitation, or 

discrimination" based upon familial status. "The Act defines the term 'familial 

status' as 'one or more individuals (who have not attained the age of [eighteen] 

years)' living with a parent or legal guardian." Massaro v. Mainlands Section 

1 & 2 Civic Ass'n, 3 F.3d 1472, 1476 (11th Cir. 1993) (quoting 42 U.S.C. § 

3602(k)). 

"Members of Congress determined the need for such legislation based on 

studies and hearings indicating that families with children were having 

difficulty securing housing because of age limitations." Ibid. To address 

concerns regarding the impact of prohibiting housing discrimination based on 

familial status in retirement communities, "where elderly residents had bought 

or rented homes with the expectation that they would be able to live without 

the noise and hazards of children," ibid., Congress expressly exempted 

qualified housing for older persons from compliance. Specifically, 42 U.S.C. 

§ 3607(b) provides that "[n]othing in [the FHA] . . . . regarding familial status 

appl[ies] with respect to housing for older persons." See Seniors Civ. Liberties 
A-1384-22 12

Ass'n, 761 F. Supp. at 1541 ("In short, it was the legislature's intent to open up 

all forms of housing to parents with children under [eighteen] except those that 

are designed for older persons and qualify for an exemption." (Emphasis 

omitted)). As such, "[t]he housing for older persons exemptions permit 

communities satisfying certain requirements to discriminate on the basis of 

familial status." Balvage v. Ryderwood Improvement & Serv. Ass'n, Inc., 642 

F.3d 765, 769 (9th Cir. 2011). 

The housing for older persons exemptions "apply to three types of 

housing, including, as relevant here, housing for persons [fifty-five] years of 

age or older." Ibid.2 To qualify for the exemption, the housing must be: 

(C) intended and operated for occupancy by persons 

[fifty-five] years of age or older, and—

(i) at least [eighty] percent of the occupied units

are occupied by at least one person who is 

[fifty-five] years of age or older; 

(ii) the housing facility or community publishes 

and adheres to policies and procedures that 

demonstrate the intent required under this 

subparagraph; and 

2

 "Although not relevant here, the exemptions also include (1) housing 

provided under certain state or federal programs specifically designed and 

operated to assist elderly persons and (2) housing intended for, and solely 

occupied by, persons [sixty-two] years of age or older." Balvage, 642 F.3d at 

769 n.2 (citing 42 U.S.C. § 3607(b)(2)(A)-(B)). 
A-1384-22 13

(iii) the housing facility or community complies 

with rules issued by the Secretary for 

verification of occupancy, which shall—

(I) provide for verification by reliable 

surveys and affidavits; and 

(II) include examples of the types of 

policies and procedures relevant to a 

determination of compliance with the 

requirement of clause (ii). Such surveys 

and affidavits shall be admissible in 

administrative and judicial proceedings 

for the purposes of such verification. 

[42 U.S.C. § 3607(b)(2)(C).] 

 Noticeably, the exemption only addresses "occupancy" and is silent on 

whether it is permissible to restrict ownership to persons fifty-five or older. 

Ibid. The Code of Federal Regulations (CFR), which governs the application 

of the exemption, also makes no mention of ownership, and instead explains 

how the eighty percent occupancy requirement can be satisfied, 24 C.F.R. 

§100.305, how a housing facility or community must demonstrate its intent to 

operate as housing designed for occupancy for persons fifty-five years of age 

or older, 24 C.F.R. § 100.306, and how to verify compliance with the eighty 

percent occupancy requirement, 24 C.F.R. § 100.307.

 To date, New Jersey courts have not expressly addressed whether agerelated ownership restrictions are permitted under the FHA. Other 

jurisdictions have rendered tangential decisions without tackling the issue head 
A-1384-22 14

on. Some courts appear to treat ownership and occupancy restrictions 

synonymously, while other courts warn that ownership restrictions infringe 

upon constitutionally protected property rights. For example, in Balvage, 

where defendant homeowners' association restricted "ownership and residence 

. . . to persons . . . [fifty-five] years of age or older," the "sole issue" in the 

lawsuit filed by residents alleging discriminatory housing practices in violation 

of the FHA was whether defendant was "exempt from the FHA's prohibitions 

on familial status discrimination under . . . the housing for older persons 

exemptions set out in § 3607(b)." 642 F.3d at 776. 

In contrast, in Duvall v. Fair Lane Acres, Inc., 50 So. 3d 668, 671 (Fla. 

Dist. Ct. App. 2010), a Florida appellate court reversed a trial court order that 

an age restriction imposed on homeowners by a homeowners' association "was 

a restriction on occupancy and not a restriction on 'property rights.'" In 

determining that "the judgment constituted an unlawful taking of property 

rights," id. at 669, the court reasoned: 

To impose a limitation on who can use and 

enjoy property is a direct restriction on the 

Homeowners' ownership rights in their properties. 

See Black's Law Dictionary 1215 (9th ed. 2009) 

(defining "ownership" as "[t]he bundle of rights 

allowing one to use, manage, and enjoy property, 

including the right to convey it to others"). Similarly, 

to restrict the ability to transfer property by imposing 

an obligation to seek the approval of the Association 

is an improper infringement on the Homeowners' 
A-1384-22 15

property rights. These property rights are 

constitutionally protected, and the trial court erred in 

ordering the Homeowners to sign the Agreement by 

which they would be required to surrender these 

rights. See [Dep't of Law Enf't v. Real Prop., 588 So. 

2d 957, 964 (Fla. 1991)] ("Property rights are among 

the basic substantive rights expressly protected by the 

Florida Constitution. Art. I, § 2, Fla. Const."). 

[Duvall, 50 So. 3d at 671 (first alteration in original).] 

 Other than the ownership restriction, based on the FHA's plain language, 

the Ordinance meets the requirements of the housing for older persons 

exemption. See 42 U.S.C. § 3607(b)(2)(C). The Ordinance defines and 

restricts PRRCs to the required level of occupancy by residents aged fifty-five 

years or older, clearly expressing the intent to create housing for older persons. 

In fact, NJR does not dispute that the PRRCs would otherwise comply with the 

FHA's occupancy threshold requirements. Instead, NJR asserts the Ordinance 

is "facially discriminatory" as a matter of law and "violative of the [FHA]." 

NJR invites us to construe the FHA's silence on ownership as a prohibition 

against it, reasoning that if the ability to regulate ownership is not explicitly 

permissible, it is "inherently discriminatory" because of the "discriminatory 

impact it would have on people who are protected under the [FHA] on the 

basis of familial status." 

"We have scrupulously required that state and municipal regulations 

conform to the [FHA]." United Prop. Owners Ass'n of Belmar v. Borough of 
A-1384-22 16

Belmar, 343 N.J. Super. 1, 48 (App. Div. 2001). On its face, 42 U.S.C. § 3604 

does not expressly permit or preclude an age-restricted community from 

limiting home ownership to persons fifty-five years of age or older. However, 

subject to certain exemptions, it does prohibit discriminatory acts, including 

refusing to sell a dwelling to any person, discriminating against any person in 

the terms or conditions of sale, or indicating any preference with respect to the 

sale based upon familial status. See ibid. 

Discrimination on the basis of familial status does not violate the FHA if 

the housing for older persons exemption applies. See 42 USC § 3607(b)(1). 

Critically, the FHA's housing for older persons exemption permits restrictions 

on occupancy, not ownership, to persons fifty-five years and older. Thus, the 

exemption does not expressly permit the restriction on ownership embodied in 

the Ordinance. "As a general matter, the primary goal of the [FHA] is to limit 

discrimination in the housing arena." Putnam Fam. P'ship v. City of Yucaipa, 

673 F.3d 920, 931 (9th Cir. 2012). Considering both the text and the 

underlying purpose of the FHA, we can reach only one conclusion. Because 

the exemption does not apply and the Ordinance's restriction on ownership in 

age-restricted communities discriminates on the basis of familial status, we 

conclude that the Ordinance violates 42 U.S.C. § 3604 and is therefore 

unlawful. 
A-1384-22 17

We reach a similar conclusion with respect to the NJLAD. Like the 

FHA, the NJLAD prohibits housing discrimination on the basis of familial 

status, with an exception for qualified housing for older persons. N.J.S.A. 

10:5-12(h); 10:5-5(n) ("[No] provision under this act regarding discrimination 

on the basis of familial status appl[ies] with respect to housing for older 

persons."). 

Pertinent here, the NJLAD defines housing for older persons 3 as housing 

that is: 

(3) intended and operated for occupancy by at least

one person [fifty-five] years of age or older per unit. 

In determining whether housing qualifies as housing

for older persons under this paragraph, the Attorney 

General shall adopt regulations which require at least 

the following factors: 

(a) the existence of significant facilities and 

services specifically designed to meet the 

physical or social needs of older persons, or 

if the provision of such facilities and 

services is not practicable, that such 

housing is necessary to provide important 

housing opportunities for older persons; and

3

 Although not relevant here, the exemptions also include (1) housing 

provided under certain State or federal programs "specifically designed and 

operated to assist [elderly] persons;" and (2) housing "intended for, and solely 

occupied by, persons [sixty-two] years of age or older." N.J.S.A. 10:5-

5(mm)(1), (2). 
A-1384-22 18

(b) that at least [eighty] percent of the units are 

occupied by at least one person [fifty-five] 

years of age or older per unit; and 

(c) the publication of, and adherence to, 

policies and procedures which 

demonstrate an intent by the owner or 

manager to provide housing for 

persons [fifty-five] years of age or 

older. 

[N.J.S.A. 10:5-5(mm)(3).] 

Similar to the CFR, our State regulations provide more detailed guidance 

on the qualifications for the housing for older persons exemption. N.J.A.C. 

13:15-1.5. Still, both the NJLAD and its attendant regulations only delineate 

occupancy restrictions and make no mention of ownership restrictions. 

N.J.S.A. 10:5-5(mm); N.J.A.C. 13:15-1.5. However, in 2019, N.J.A.C. 13:15-

1.2(a) was amended to state that "[n]othing in the requirements of [the housing 

for older persons regulations] shall be construed to restrict the age of any 

purchaser or grantee of housing who does not reside in, or intend to reside in, 

such housing." 

The amendment was added after the Division on Civil Rights (DCR) 

received public comments concerning retirement communities restricting 

occupancy: 

Commenters [two] through [thirty-three] expressed 

substantially similar concerns regarding the 

requirements for an exemption to the [NJLAD's] ban 
A-1384-22 19

on housing discrimination based on familial status. 

The commenters assert that some entities operating 

and managing housing communities restricted to 

occupancy by persons [sixty-two] or over as defined 

in N.J.A.C. 13:15-1.4, or restricted to occupancy by 

persons [fifty-five] and over as defined in N.J.A.C. 

13:15-1.5, are restricting the ages of the owners as 

well as the occupants. These commenters note that 

State law and [f]ederal law restrict the ages of the 

occupants, but do not restrict the ages of non-occupant 

owners of such properties. The commenters request 

amendment of the rule to clarify that individuals under 

the ages of [fifty-five] or [sixty-two] can purchase a 

home in age-restricted communities "so long as they

certify the occupants of that home will be over the age 

of [fifty-five] or [sixty-two]." One commenter 

specifically requested adding clarifying language to 

N.J.A.C. 13:15-1.4(a) and 1.5(d). 

[51 N.J.R. 216(a).]

DCR responded as follows: 

DCR agrees that the [NJLAD's] definitions of housing 

for older persons address only the ages of the 

occupants of any housing, and do not address the ages 

of non-occupant owners of such housing. 

Accordingly, as adopted, DCR has added clarifying 

language to N.J.A.C. 13:15-1.2(a) to prevent any 

inaccurate interpretation of the [NJLAD] or the rule. 

DCR declines, however, to add the provision "so long 

as they certify that the unit will be occupied by 

persons [fifty-five or sixty-two] years of age or over" 

to the rules. Such a certification is already required 

by a New Jersey statute governing age-restricted 

communities, which is administered by [DCA]. See 

N.J.S.A. 45:22A-46.2. However, no such certification 

is required by the [NJLAD]. To ensure consistency 

with the relevant language in the [NJLAD], DCR has 
A-1384-22 20

determined that N.J.A.C. 13:15-1.2, rather than 

N.J.A.C. 13:15-1.4 and 1.5, should be changed. 

[51 N.J.R. 216(a).]

A plain reading of N.J.A.C. 13:15-1.2(a) clarifies that the housing for 

older persons exemption applies only to occupancy, not ownership. Thus, 

considering the text and the underlying purpose of the NJLAD, we conclude 

that any age restriction imposed on ownership in PRRCs is a discriminatory 

housing practice that violates the NJLAD on the basis of familial status. As 

such, we agree with the judge that the Ordinance violates the NJLAD and is 

therefore unlawful. 

Given our analysis, we are also convinced that the Ordinance is 

preempted by the FHA and the NJLAD. "[A] court may declare an ordinance 

invalid if it . . . is preempted by superior legal authority." Rumson Ests., Inc. 

v. Mayor of Fair Haven, 177 N.J. 338, 351 (2003) (internal citation omitted); 

see United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 88 

N.J. 317, 343 (1982) (commenting that "[w]hen a state statute has preempted a 

field by supplying a complete system of law on subject, an ordinance dealing 

with the same subject is void"), rev'd on other grounds, 465 U.S. 208 (1984). 

In Overlook Terrace Management Corp. v. Rent Control Board, our 

Supreme Court explained that "[p]reemption is a judicially created principle 

based on the proposition that a municipality, which is an agent of the State, 
A-1384-22 21

cannot act contrary to the State." 71 N.J. 451, 461 (1976) (citing Summer v. 

Teaneck, 53 N.J. 548, 554 (1969)). 

Preemption analysis calls for the answer initially to 

whether the field or subject matter in which the 

ordinance operates, including its effects, is the same 

as that in which the State has acted. If not, then

preemption is clearly inapplicable. An affirmative

answer calls for a further search for "[i]t is not enough 

that the Legislature has legislated upon the 

subject . . . ."

[Ibid. (alteration in original) (citations omitted)

(quoting Summer, 53 N.J. at 554).] 

If the threshold question is answered affirmatively, then five questions 

should be considered to determine whether a municipal ordinance is preempted 

by state law: 

1. Does the ordinance conflict with state law, either 

because of conflicting policies or operational effect 

(that is, does the ordinance forbid what the Legislature 

has permitted or does the ordinance permit what the

Legislature has forbidden)? 

2. Was the state law intended, expressly or impliedly, 

to be exclusive in the field? 

3. Does the subject matter reflect a need for 

uniformity? . . . . 

4. Is the state scheme so pervasive or comprehensive 

that it precludes coexistence of municipal regulation? 

5. Does the ordinance stand "as an obstacle to the 

accomplishment and execution of the full purposes 

and objectives" of the Legislature? 
A-1384-22 22

[Id. at 461-62 (citations omitted).] 

Consideration of the Overlook factors leads us to conclude that the 

Ordinance is preempted by the FHA and the NJLAD. Based on our earlier 

analysis, it is apparent that the Ordinance conflicts with the FHA and the 

NJLAD, the interpretation of which is the very issue before us. Application of 

that factor alone weighs heavily in favor of preemption. The remaining factors 

are met as well. "Local action is preempted when the Legislature intended 'its 

own actions, whether it exhausts the field or touches only part of it, to be 

exclusive.'" Essex Cnty. Corr. Officers PBA Loc. No. 382 v. Cnty. of Essex, 

439 N.J. Super. 107, 121 (App. Div. 2014) (quoting Mack Paramus Co. v. 

Mayor & Council of Paramus, 103 N.J. 564, 573 (1986)). 

Finally, although not reached by the judge, we address whether the 

Ordinance is a valid and reasonable exercise of police power or an arbitrary, 

capricious, and unreasonable act that exceeds the scope of the Township's 

authority. NJR maintains that the Ordinance is arbitrary and capricious 

because it "has no justifiable purpose, does not address any alleged problem (it 

instead creates problems), and goes well beyond any public need, in 

contradiction of established [f]ederal and State laws." According to NJR, the 

Ordinance would "harm existing unit owners within PRRCs by artificially 
A-1384-22 23

suppressing the value of their property" because potential buyers would be 

significantly limited by the age restriction. 

The Township counters that the Ordinance is "reasonably calculated" to 

address "a local concern: rampant house-flipping and speculation by nonowner occupants, including corporations and persons under [fifty-five] years 

of age, which is making communities unaffordable for the very persons they 

are intended to serve – seniors on fixed incomes." The Township argues that 

the Ordinance is well within the scope of its authority to address this problem 

by "remov[ing] those unprotected classes of speculators from the classes of 

persons eligible to own units within [PRRCs]." 

"[W]hen reviewing a municipal action, we apply a presumption of 

validity and reasonableness to adopted ordinances" and "do not 'pass on the 

wisdom of the ordinance; that is exclusively a legislative function.'" Timber 

Glen Phase III, LLC v. Twp. of Hamilton, 441 N.J. Super. 514, 523 (App. Div. 

2015) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 

(2001)). The party challenging the ordinance bears the burden of showing that 

"the ordinance, 'in whole or in application to any particular property,' is 

arbitrary, capricious or unreasonable." Ibid. (quoting Pheasant Bridge, 169 

N.J. at 289-90). 

This presumption of validity is derived from our State Constitution: 
A-1384-22 24

The provisions of this Constitution and of any 

law concerning municipal corporations formed for 

local government, or concerning counties, shall be 

liberally construed in their favor. The powers of 

counties and such municipal corporations shall include 

not only those granted in express terms but also those 

of necessary or fair implication, or incident to the 

powers expressly conferred, or essential thereto, and 

not inconsistent with or prohibited by this Constitution 

or by law. 

[N.J. Const., art. IV, § 7, ¶ 11.]

 The presumption "embodies the principle that the police power of the 

State may be invested in local government to enable local government to 

discharge its role as an arm or agency of the State and to meet other needs of 

the community." Inganamort v. Ft. Lee, 62 N.J. 521, 528 (1973). However, 

the presumption is not without restraint. 

On the other side of the coin is the postulate that a 

local municipality is but a creature of the State, 

capable of exercising only those powers granted to it 

by the Legislature[, Wagner v. Mayor & Mun. Council

of City of Newark, 24 N.J. 467 (1957)], and the 

equally important truism that the presumption of 

validity referred to is only a presumption and may be 

overcome or rebutted not only by clear evidence 

aliunde, but also by a showing on its face or in the 

light of facts of which judicial notice can be taken, of 

transgression of constitutional limitation or the bounds 

of reason. [Guill v. Mayor & Council of City of 

Hoboken, 21 N.J. 574, 581 (1956); State v. 

Wittenberg, 50 N.J. Super. 74, 78 (App. Div. 1957).] 

[Moyant v. Borough of Paramus, 30 N.J. 528, 534-35

(1959) (emphasis omitted).] 
A-1384-22 25

See also Dome Realty, Inc. v. Paterson, 83 N.J. 212, 225-26 (1980) 

(establishing "a three-part analysis for determining the propriety of an exercise 

of legislative authority by a municipality," including "whether any delegation 

of power to municipalities has been preempted by other State statutes dealing 

with the same subject matter"). 

In the area of land use, the Municipal Land Use Law (MLUL) authorizes 

municipalities to regulate the use of land and buildings within its borders. See 

N.J.S.A. 40:55D-1 to -163. Nonetheless, our courts have grappled with the 

competing interests of municipalities and property owners and have recognized 

that restrictions imposed by municipalities "must respect the constitutionally 

protected right to own and alienate property." Ocean Cnty. Bd. of Realtors v. 

Twp. of Long Beach, 252 N.J. Super. 443, 455 (Law Div. 1991). 

On the one hand, our courts have recognized the right 

of a municipality to "secure and maintain 'the 

blessings of quiet seclusion' and to make available to 

its inhabitants the refreshment of repose and the 

tranquility of solitude." On the other hand, our courts 

have consistently invalidated ordinances which 

unnecessarily and excessively restrict the use of 

private property. 

[Id. at 449-50 (citation omitted) (quoting Berger v. 

State, 71 N.J. 206, 223 (1976)).] 

As such, we have held that neither the express nor implied powers of 

municipal regulation suggest "the power to . . . deny an owner a substantial 
A-1384-22 26

attribute of ownership and possession of real estate," or allow "an 

impermissible arrogation of governmental power." Repair Master, Inc. v. 

Borough of Paulsboro, 352 N.J. Super. 1, 10-11 (App. Div. 2002). To that 

end, restraints on the alienation of property are generally disfavored as a 

matter of public policy: 

It is firmly established that the policy of the law

is against the imposition of restrictions upon the use 

and enjoyment of land and such restrictions are to be 

strictly construed. Restrictions tend to protect 

property, but they also impair alienability. Nor will 

equity aid one man to restrict another in the use of 

his[ or her] land unless the right to restrict is made 

manifest and clear in the restrictive covenant. 

[Hammett v. Rosensohn, 46 N.J. Super. 527, 535 

(App. Div. 1957).] 

Indeed, our case law has consistently supported "the fundamental, if not 

immutable, principle that 'zoning enabling acts authorize local regulation of 

"land use" and not regulation of the "identity or status" of owners or persons 

who occupy the land.'" Tirpak v. Borough of Point Pleasant Beach Bd. of 

Adjustment, 457 N.J. Super. 441, 443 (App. Div. 2019) (quoting 5 Edward H. 

Ziegler, Jr., Rathkopf's The Law of Zoning and Planning § 81.7 (4th ed. 

2005)); see also DeFelice v. Zoning Bd. of Adjustment, 216 N.J. Super. 377, 

381 (App. Div. 1987) ("[A] zoning board is charged with the regulation of land 

use and not with the person who owns or occupies the land."). 
A-1384-22 27

This wariness of ownership restrictions stems from the constitutionally 

protected right to "own and dispose of real property, a right that is within the 

protective scope of the Fourteenth Amendment to the United States 

Constitution and Article I, § 1 of the New Jersey Constitution." Upper 

Deerfield Twp. v. Seabrook Hous. Corp., 255 N.J. Super. 218, 224 (App. Div. 

1992). Although that right "is subject to the reasonable exercise of the police 

power," id. at 224-25, where there are extreme limitations on the right of 

ownership of private property, we have not hesitated to invalidate an 

ordinance. See, e.g., United Prop. Owners Assoc. v. Borough of Belmar, 185 

N.J. Super. 163, 170-71 (App. Div. 1982) (invalidating provisions of ordinance 

precluding temporary or seasonal rentals on residential property as defined in 

the ordinance as "impermissibly arbitrary" and constituting "an unreasonable 

restraint on the use of private property"); see also Upper Deerfield Twp., 255 

N.J. Super. at 219, 225 (invalidating ordinance "requiring the seller of land 

containing a structure to obtain a certificate of occupancy prior to sale 

regardless of its intended use by the prospective buyer" where "its literal 

application to every sale of real estate containing a structure reaches beyond 

the legitimate police power concerns of the municipality and becomes 

confiscatory"). 
A-1384-22 28

In such situations, we have stressed that the appropriate inquiry in a case 

involving ownership restrictions "is whether the Township ordinance enacted 

under the police power, affecting private rights as it does, evidences a public 

need that justifies governmental action and whether the restrictions imposed 

unreasonably and irrationally exceed the public need." Id. at 225. 

Applying that standard, we conclude the Ordinance unreasonably 

infringes upon the well-established and constitutionally protected right to own 

and sell property and the restriction unreasonably and irrationally exceeds the 

public need. See United Prop. Owners Assoc., 185 N.J. Super. at 170 

(recognizing that "an extreme limitation on rights of ownership of private 

property" will be found to be arbitrary). Although the Township posits that 

enforcement of the restriction could accomplish a worthwhile purpose, the 

persons to whom alienation is prohibited could be substantial and impactful. 

As the judge pointed out, the restriction could impact to a significant degree 

the very seniors the Township seeks to protect by preventing owners over the 

age of fifty-five from transferring title to non-qualifying family members, a 

common practice in estate planning. Additionally, the Ordinance would 

adversely affect every owner's ability to sell by limiting the pool of eligible 

buyers. 
A-1384-22 29

On an alternative basis, we therefore invalidate the Ordinance on the 

ground that it is arbitrary and unreasonable. We do not believe the Legislature 

has imbued municipalities with the power to restrict ownership at senior 

housing communities as contemplated in the Ordinance and, as we stated in 

Repair Master, Inc., 

This is a power we simply will not infer in light of the 

evidence and the history of our land use and 

occupancy jurisprudence. If this power is conferred 

on municipalities, we think it should be the result of 

legislative deliberation and evaluation of all the 

complex considerations, not from a judicially-created 

attempt to accommodate a single, though doubtlessly

sincere, municipal effort. The problem could be 

compounded if other municipalities were to take this 

route and seek an arguably more desirable occupancy

mix. Specific legislative approval should be a 

precondition to the exercise of a power we consider a 

radical regulatory development. 

[352 N.J. Super. at 14.] 

Affirmed.