NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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. Che ney, 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 DIVISIONA- 1384

- 22 2 This appeal requires us to determine the validity o f a local ordinance restricting ownership at certain senior housing com munities. Defendant Township of Berkeley (Township) appeals from the December 2, 2022, Law Division order grant ing 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 commun ities to persons aged fifty-five and older. NJR sued the Township after the Ordinance was enacted, arguing that such a restriction violated the Fair H ousing Act (FHA), 42 U.S.C. § 3604(a), and the New Jersey Law Against Discrimin ation (NJLAD), N.J.S.A. 10:5 -12(h), because both statutes prohibit discriminati on based on familial status. According to NJR, by setting a minimum age for property ownership in retirement communities, the ordinance was discrimin atory, and the restriction did not fall within the limited housing for older p ersons 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 T ownship amended and supplemented multiple sections of Chapter 35, t he "Land Development" section of the Township's municipal code, by enacti ng the Ordinance. TheA- 1384

- 22 3 Ordinance changed existing land use provisions that required occupancy of age-restricted units by persons aged fifty-five yea rs 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 Sect ion 35-101.1 to read as follows: "PRRC[]" shall mean a community having one . . . or

more parcels of land with a contiguous total acreag e 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, rul es, regulations and restrictions of record, and service s 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 reco rd, shall purchase a Lot or Living Unit in a PRRC to assure that the PRRC does not have its age-restrict ed 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 . . . year s of age or older, as contained in the Federal Fair Hous ing Act, as amended in 1988. Ownership of theA- 1384

- 22 4 residential units and the area comprising a PRRC ma y 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 spac e to be maintained through assessment against propert y owners within the confines of the community. [(Emphasis added).] Next, the Ordinance amended Section 35-101.12 to st ate that:

The maintenance of the green areas, private roadways, driveways, common courtyards, recreational areas, lakes and other improvements no t intended to be individually owned shall be provided by an association organized under the Nonprofit Corporation Statute of the State of New Jersey (Tit le 15) and formed for that purpose. The applicant sha ll, in the form restrictions and covenants to be record ed, provided that title to the aforesaid enumerated are as shall be conveyed to the association, whose membersshall 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 o f the members shall designate from time to time by duly adopted bylaws. Such restrictions and covenants sh all 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 purch ase a Lot or Living Unit in a PRRC to assure that the PRR C 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 th e written consent of the Township of Berkeley byA- 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 follow s:

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 ensuri ng that the community shall be constituted so as to be consistent with the purposes and requirements of th is section, including the mandate that in accordance w ith 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 purcha se a Lot or Living Unit in a PRRC to assure that the PRR C 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' associat ion 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 p rerogative writs against the Township seeking an order declaring the Ordinance "invalid and unenforceable" on the grounds that limiting propert y ownership, rather than occupancy, violated federal and state law. In the complaint, NJR asserted thatA- 1384

- 22 6 the Ordinance violates the FHA and the NJLAD becaus e both statutes prohibit familial status discrimination, which the Ordinance violates by setting a minimum age for property ownership in PRRCs, and th e 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 unreas onable, 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 Commi ssioner of the Department of Community Affairs (DCA) responding to NJR's inqu iries on the legality of restricting home ownership in age-restricted commun ities. The letter stated:

[DCA] has received your correspondence regarding age-restricted communities limiting the ownership o f homes to those over the age of [fifty-five] or [six tytwo]. 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 th e

1 Article I, Paragraph 1 of the New Jersey Constituti on provides that "[a]ll persons are by nature free and independent, and hav e certain natural and unalienable rights, among which are those of enjoyi ng and defending life and liberty, of acquiring, possessing, and protecting p roperty, 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, a gerestricted 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 a n 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 informatio n, regarding my letter dated July 5, 2017, which dealt with the ownership of housing units in age-restrict ed communities. That letter was written in response t o a question from [NJR]. In that letter, I indicated t hat 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 s uch 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 t he age of owners, but that communities are not current ly 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 u nits, based on age. On December 2, 2022, following oral argument, the judge entered an order granting NJR's motion and invalidating the Or dinance. In an oralA- 1384

- 22 8 decision, the judge determined that the Ordinance c ould not survive the challenge because it conflicted with the FHA and th e 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 rul ed that the Ordinance concerned an "area that has been preempted by . . . design on the federal and state level . . . [and] . . . conflicts with the ho using regulations and the scheme to provide . . . age-restricted housing." Finally, the judge commented on the "unintended consequences" of the Ordinance, which i ncluded preventing an older owner from transferring title to the property to a non-qualifying younger person "for purposes of estate planning." This app eal followed. On appeal, the Township argues the judge "improperl y granted [NJR's] motion for summary judgment as the Ordinance is con stitutional and neither invalidated nor preempted" by the FHA or the NJLAD.
II. "[W]e review the trial court's grant of summary jud gment de novo under the same standard as the trial court." Templo Fuen te De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 19 9 (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 fac t," then the trial court must deny the motion. R. 4:46

- 2(c); see Brill v. Guardian Life Ins. Co. of Am., 1 42 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 l aw.'" 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 Foo d 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 inte rpreting a statute, our Supreme Court recently provided the following g uidance:A- 1384

- 22 10 Our role when interpreting a statute "is to determi ne 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 s o 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 c lear 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 overa ll legislative scheme," then we will analyze extrinsic sources such as legislative history to best determi ne legislative intent. DCPP v. Y.N., 220 N.J. 165, 17 8 (2014). [N.J. Div. of Child. Prot. & Permanency v. B.P., 25 7 N.J. 361, 374 (2024) (alteration in original).] "'[W]e interpret a regulation in the same manner th at 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. 18 7, 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 makeA- 1384

- 22 11 unavailable or deny, a dwelling to any person;" "[t ]o discriminate against any person in the terms, conditions, or privileges of s ale or rental[,] . . . or in the provision or services or facilities in connection t herewith;" and "[t]o make, print, or publish . . . any notice, statement, or a dvertisement, with respect to the sale or rental . . . that indicates any prefere nce, limitation, or discrimination" based upon familial status. "The A ct defines the term 'familial status' as 'one or more individuals (who have not a ttained the age of [eighteen] years)' living with a parent or legal guardian." M assaro v. Mainlands Section 1 & 2 Civic Ass'n, 3 F.3d 1472, 1476 (11th Cir. 199 3) (quoting 42 U.S.C. § 3602(k)). "Members of Congress determined the need for such l egislation based on studies and hearings indicating that families with children were having difficulty securing housing because of age limitati ons." Ibid. To address concerns regarding the impact of prohibiting housin g discrimination based on familial status in retirement communities, "where e lderly residents had bought or rented homes with the expectation that they woul d be able to live without the noise and hazards of children," i bid. , 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 ." S ee Seniors Civ. LibertiesA- 1384

- 22 12 Ass'n, 761 F. Supp. at 1541 (" In short, it was the legislature's intent to open u p all forms of housing to parents with children under [eighteen] except those that are designed for older persons and qualify for an e xemption." (Emphasis omitted)). As such, "[t]he housing for older perso ns exemptions permit communities satisfying certain requirements to disc riminate 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 in clude (1) housing provided under certain state or federal programs sp ecifically designed and operated to assist elderly persons and (2) housing intended for, and solely occupied by, persons [sixty-two] years of age or ol der." 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 "occupanc y" 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 ownershi p, 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 perso ns fifty-five years of age or older, 24 C.F.R. § 100.306, and how to verify compliance wit h the eighty percent occupancy requirement, 24 C.F.R. § 100.307. To date, New Jersey courts have not expressly addr essed whether agerelated ownership restrictions are permitted under the FHA. Other jurisdictions have rendered tangential decisions wi thout tackling the issue headA- 1384

- 22 14 on. Some courts appear to treat ownership and occu pancy restrictions synonymously, while other courts warn that ownershi p restrictions infringe upon constitutionally protected property rights. F or 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 t he FHA's prohibitions on familial status discrimination under . . . the h ousing 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 rev ersed a trial court order that an age restriction imposed on homeowners by a homeo wners' association "was a restriction on occupancy and not a restriction on 'property rights.'" In determining that "the judgment constituted an unlaw ful 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"). Simi larly, to restrict the ability to transfer property by imp osing an obligation to seek the approval of the Associati on is an improper infringement on the Homeowners'A- 1384

- 22 15 property rights. These property rights are constitutionally protected, and the trial court err ed 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 amon g the basic substantive rights expressly protected by the Florida Constitution. Art. I, § 2, Fla. Const."). [Duvall, 50 So. 3d at 671 (first alteration in orig inal).] 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 Ord inance defines and restricts PRRCs to the required level of occupancy by residents aged fifty-five years or older, clearly expressing the intent to cr eate housing for older persons. In fact, NJR does not dispute that the PRRCs would otherwise comply with the FHA's occupancy threshold requirements. Instead, N JR 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 own ership as a prohibition against it, reasoning that if the ability to regula te ownership is not explicitly permissible, it is "inherently discriminatory" beca use of the "discriminatory impact it would have on people who are protected un der the [FHA] on the basis of familial status." "We have scrupulously required that state and munic ipal regulations conform to the [FHA]." United Prop. Owners Ass'n o f Belmar v. Borough ofA- 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-restri cted community from limiting home ownership to persons fifty-five years of age or older. However, subject to certain exemptions, it does prohibit dis criminatory acts, including refusing to sell a dwelling to any person, discrimi nating against any person in the terms or conditions of sale, or indicating any preference with respect to the sale based upon familial status. See i bid. Discrimination on the basis of familial status does not violate the FHA if the housing for older persons exemption applies. S ee 42 USC § 3607(b)(1). Critically, the FHA's housing for older persons exe mption 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 g oal 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 bot h the text and the underlying purpose of the FHA, we can reach only on e conclusion. Because the exemption does not apply and the Ordinance's re striction on ownership in age-restricted communities discriminates on the bas is of familial status, we conclude that the Ordinance violates 42 U.S.C. § 36 04 and is therefore unlawful.A- 1384

- 22 17 We reach a similar conclusion with respect to the N JLAD. 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 r egarding discrimination on the basis of familial status appl[ies] with resp ect 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 u nit. In determining whether housing qualifies as housing for older persons under this paragraph, the Attorne y General shall adopt regulations which require at le ast 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 "s pecifically designed and operated to assist [elderly] persons;" and (2) housing "intended for, and solely occupied by, persons [sixty-two] years of age or ol der." 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 m ore detailed guidance on the qualifications for the housing for older per sons exemption. N.J.A.C. 13:15 -1.5. Still, both the NJLAD and its attendant regu lations only delineate occupancy restrictions and make no mention of owner ship 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 t o 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 comm unities restricting
occupancy: Commenters [two] through [thirty-three] expressed

substantially similar concerns regarding the requirements for an exemption to the [NJLAD's] banA- 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 b y 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-occu pant owners of such properties. The commenters request amendment of the rule to clarify that individuals u nder 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 t o 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 housin g for older persons address only the ages of the occupants of any housing, and do not address the ag es 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 rul e. DCR declines, however, to add the provision "so lon g as they certify that the unit will be occupied by persons [fifty-five or sixty-two] years of age or o ver" to the rules. Such a certification is already requ ired 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 certificati on is required by the [NJLAD]. To ensure consistency with the relevant language in the [NJLAD], DCR hasA- 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 f or 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 PR RCs 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 vi olates 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) (i nternal citation omitted);

s ee United Bldg. & Constr. Trades Council v. Mayor & C ouncil of Camden, 88 N.J. 317, 343 (1982) (commenting that "[w]hen a sta te statute has preempted a field by supplying a complete system of law on subj ect, an ordinance dealing with the same subject is void"), rev'd on other gro unds, 465 U.S. 208 (1984). In Overlook Terrace Management Corp. v. Rent Contro l Board, our Supreme Court explained that "[p]reemption is a jud icially 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, 46 1 (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 s ame 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 municip al ordinance is preempted by state law:

1. Does the ordinance conflict with state law, eith er because of conflicting policies or operational effe ct (that is, does the ordinance forbid what the Legisl ature has permitted or does the ordinance permit what the Legislature has forbidden)? 2. Was the state law intended, expressly or implied ly, to be exclusive in the field? 3. Does the subject matter reflect a need for uniformity? . . . . 4. Is the state scheme so pervasive or comprehensiv e that it precludes coexistence of municipal regulati on? 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 c onclude that the Ordinance is preempted by the FHA and the NJLAD. B ased on our earlier analysis, it is apparent that the Ordinance conflic ts with the FHA and the NJLAD, the interpretation of which is the very issu e before us. Application of that factor alone weighs heavily in favor of preemp tion. The remaining factors are met as well. "Local action is preempted when t he Legislature intended 'its own actions, whether it exhausts the field or touch es only part of it, to be exclusive.'" Essex Cnty. Corr. Officers PBA Loc. N o. 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 addr ess whether the Ordinance is a valid and reasonable exercise of pol ice power or an arbitrary, capricious, and unreasonable act that exceeds the s cope of the Township's authority. NJR maintains that the Ordinance is arb itrary and capricious because it "has no justifiable purpose, does not ad dress any alleged problem (it instead creates problems), and goes well beyond any public need, in contradiction of established [f]ederal and State la ws." According to NJR, the Ordinance would "harm existing unit owners within P RRCs by artificiallyA- 1384

- 22 23 suppressing the value of their property" because po tential buyers would be significantly limited by the age restriction. The Township counters that the Ordinance is "reason ably calculated" to address "a local concern: rampant house-flipping a nd speculation by nonowner occupants, including corporations and persons under [fifty-five] years of age, which is making communities unaffordable fo r the very persons they are intended to serve

– seniors on fixed incomes." The Township argues th at the Ordinance is well within the scope of its autho rity to address this problem by "remov[ing] those unprotected classes of specula tors from the classes of persons eligible to own units within [PRRCs]." "[W]hen reviewing a municipal action, we apply a pr esumption of validity and reasonableness to adopted ordinances" and "do not 'pass on the wisdom of the ordinance; that is exclusively a legi slative 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. (quo ting Pheasant Bridge, 169 N.J. at 289-90). This presumption of validity is derived from our St ate 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 incl ude not only those granted in express terms but also th ose of necessary or fair implication, or incident to th e powers expressly conferred, or essential thereto, a nd not inconsistent with or prohibited by this Constit ution or by law. [N.J. Const. , art. IV, § 7 , ¶ 11 .] The presumption "embodies the principle that the p olice 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 th e light of facts of which judicial notice can be take n, of transgression of constitutional limitation or the b ounds 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 determinin g the propriety of an exercise of legislative authority by a municipality," includ ing "whether any delegation of power to municipalities has been preempted by ot her 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 buil dings 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 r espect the constitutionally protected right to own and alienate property." Oce an 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 rig ht 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 c ourts 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 . . . de ny an owner a substantialA- 1384

- 22 26 attribute of ownership and possession of real estat e," or allow "an impermissible arrogation of governmental power." R epair 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 g enerally 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 w ill equity aid one man to restrict another in the use o f 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 "th e fundamental, if not immutable, principle that 'zoning enabling acts aut horize local regulation of "land use" and not regulation of the "identity or s tatus" 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. 201 9) (quoting 5 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Plan ning § 81.7 (4th ed. 2005)); s ee 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 th e land.").A- 1384

- 22 27 This wariness of ownership restrictions stems from the constitutionally protected right to "own and dispose of real propert y, 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 C onstitution." Upper Deerfield Twp. v. Seabrook Hous. Corp., 255 N.J. Su per. 218, 224 (App. Div. 1992). Although that right "is subject to the reas onable exercise of the police power," i d. at 224-25, where there are extreme limitations on the right of ownership of private property, we have not hesitate d 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) (invalidat ing provisions of ordinance precluding temporary or seasonal rentals on residen tial property as defined in the ordinance as "impermissibly arbitrary" and cons tituting "an unreasonable restraint on the use of private property"); see als o Upper Deerfield Tw p. , 255 N.J. Super. at 219, 225 (invalidating ordinance "re quiring the seller of land containing a structure to obtain a certificate of o ccupancy prior to sale regardless of its intended use by the prospective b uyer" where "its literal application to every sale of real estate containing a structure reaches beyond the legitimate police power concerns of the municip ality and becomes confiscatory").A- 1384

- 22 28 In such situations, we have stressed that the appro priate 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 nee d." Id. at 225. Applying that standard, we conclude the Ordinance unreasonably infringes upon the well-established and constitutio nally 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 w orthwhile purpose, the persons to whom alienation is prohibited could be s ubstantial and impactful. As the judge pointed out, the restriction could imp act to a significant degree the very seniors the Township seeks to protect by p reventing owners over the age of fifty-five from transferring title to non-qu alifying family members, a common practice in estate planning. Additionally, the Ordinance would adversely affect every owner's ability to sell by l imiting the pool of eligible buyers.A- 1384

- 22 29 On an alternative basis, we therefore invalidate th e Ordinance on the ground that it is arbitrary and unreasonable. We d o not believe the Legislature has imbued municipalities with the power to restric t 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 o f the evidence and the history of our land use and occupancy jurisprudence. If this power is conferre d on municipalities, we think it should be the result of legislative deliberation and evaluation of all the complex considerations, not from a judicially-creat ed attempt to accommodate a single, though doubtlessly sincere, municipal effort. The problem could be compounded if other municipalities were to take thi s 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.