                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1992-15T2

AVALON PRINCETON, LLC,

        Plaintiff-Appellant,

v.

PRINCETON, a New Jersey
municipal corporation,
PRINCETON COUNCIL,
PRINCETON PLANNING BOARD,
and MAYOR OF PRINCETON,

     Defendants-Respondents.
_____________________________

              Argued May 15, 2017 – Decided June 13, 2017

              Before Judges Nugent, Currier, and Geiger.

              On appeal from the Superior Court of New
              Jersey, Law Division, Mercer County, Docket
              No. L-1228-15.

              Robert A. Kasuba argued the cause for
              appellant (Bisgaier Hoff, LLC, attorneys; Mr.
              Kasuba and Michael W. O'Hara, on the brief).

              Gerald J. Muller argued the cause for
              respondent Princeton Planning Board (Miller
              Porter & Muller, P.C., attorneys; Mr. Muller,
              of counsel and on the joint brief).

              Trishka W. Cecil argued the cause for
              respondents Princeton, Princeton Council, and
              Mayor of Princeton (Mason, Griffin & Pierson,
            P.C., attorneys; Ms. Cecil, of counsel and on
            the joint brief).

PER CURIAM

       In this matter, we consider the interplay between a municipal

ordinance and the Uniform Housing Affordability Control (UHAC)

regulations       regarding   the   language     in    a    deed     restriction

pertaining to the length of affordability controls.                  Because the

UHAC   regulation     preempts    the   municipal     ordinance     under   these

circumstances,      we   affirm   the   trial   judge's     grant    of   summary

judgment     to   defendants,     Princeton,    a     New   Jersey     municipal

corporation, the Princeton Council, the Princeton Planning Board,

and the Mayor of Princeton (collectively Princeton or defendant).

       In August 2013, Princeton adopted a resolution approving

plaintiff, Avalon Princeton LLC's, plan to build a 280-unit rental

community, including fifty-six affordable rental units, in the

municipality of Princeton.          The resolution required in relevant

part: (1) "compl[iance] with all applicable municipal, COAH and

UHAC standards regarding affordable units, except that 13% of the

affordable units shall be for very low income households;" (2) the

execution of a developer's agreement; and (3) the submission of

affordable deed restrictions for review and approval of the Board

attorney or municipal attorney.




                                        2                                 A-1992-15T2
      In   April    2014,    the     parties   entered     into   a   developer's

agreement (agreement).          Section L of the agreement provided:

                   Since    the   PROJECT    contains   the
              construction of fifty-six (56) affordable
              rental units, the DEVELOPER is not required
              to make a contribution to PRINCETON for
              residential affordable housing development
              fees.   The affordable housing units will be
              constructed and marketed in accordance with
              all   COAH,    UHAC   and   local   ordinance
              requirements. At least 13% of the units shall
              be affordable to very low income households
              as defined by the Fair Housing Act and COAH
              regulations. Deed restrictions shall be for
              30 years.

              [(Emphasis added).]

      Several      months    later     plaintiff   submitted      a   draft    deed

restriction to defendant for its review.              The restriction stated

that affordability controls would remain in place for thirty years.

Defendant     requested      that    the   thirty-year     control      period    be

replaced with the following language: "The following covenants

. . . shall run with the land for at least thirty years, determined

separately for each dwelling unit, commencing upon the date on

which   the    first    certified      household     occupies     the   unit     and

continuing     thereafter     until     terminated    by   the    Municipality."

(emphasis added).           Plaintiff objected to the proposed change,

arguing that the language "purports to afford Princeton the ability

to   unilaterally      extend    the    affordability      controls     beyond    30

years."     Because building permits could not be issued until the

                                           3                               A-1992-15T2
dispute over the deed restriction language was resolved, plaintiff

submitted a signed deed restriction "under protest" that contained

the "at least thirty years" language.                Subsequently, plaintiff

commenced this action to challenge the legality of the amended

deed restriction.1

      As the parties agreed that the case presented a purely legal

issue, they chose to forego discovery and motions for summary

judgment were presented for the court's consideration.                   In its

application,    plaintiff    argued    that    the    language   in    its   deed

restriction complied with both the municipal ordinance governing

affordability controls and the developer's agreement.2                 Plaintiff

contended that the phrase "at least thirty years" gave defendant

the   ability   to   hold   the    affordability      controls   in    place    in

perpetuity.

      Defendant asserted that its proposed language mirrored the

language in the UHAC regulation, N.J.A.C. 5:80-26.11(a)(Section

26.11),   enacted    in   2004    subsequent   to    defendant's      ordinance.

Princeton argued that at the conclusion of the thirty-year period,

the municipality must adopt an ordinance to release units from the


1
 The deed restriction has been held in escrow by defendant pending
the outcome of this litigation.
2
  Princeton, NJ, Code § 16-83, enacted in 1996, states that
affordability controls for newly constructed, privately financed
rental units are to be in effect for 30 years.

                                       4                                 A-1992-15T2
controls.    Defendant contends that since the units are controlled

for thirty years, it cannot adopt the required ordinance until

that time has elapsed.

       Judge Mary C. Jacobson heard oral argument on December 7,

2015, and issued a comprehensive oral decision and order on the

same date, granting defendant's motion and denying the application

of plaintiff.      She concluded that UHAC Section 26.11 set a "30-

year minimum to affordability controls.             And that the controls may

be lifted only once a municipality has determined to affirmatively

lift the controls by passing an ordinance, which authorizes the

release of those units from the controls."

       Judge Jacobson also considered UHAC's reference to the form

deed    restriction    template     provided      in   the   appendix   to    the

regulations that contains the "at least 30 years" language in

support of her interpretation of the regulation.                She concluded

that the municipal ordinance relied on by plaintiff was preempted

by     Section   26.11,     and   that   the     developer's    agreement     was

unenforceable     as   it    "imposed    an     affordability    control     that

contravened UHAC regulations."               She stated that the developer's

agreement "cannot trump the regulation as interpreted by the

[c]ourt . . . . Nor can a Princeton ordinance that was adopted

several years before prevent [Princeton] from relying on the

regulation as the . . . premier authority in this area."

                                         5                              A-1992-15T2
     On appeal, plaintiff argues that the trial judge (1) erred

in concluding that UHAC was inconsistent with and preempted the

developer's agreement and municipal ordinance; (2) erred in ruling

that an ordinance must be adopted in the future for a municipality

to release an affordable unit; and (3) gave undue deference to the

regulatory history in her interpretation of UHAC.        We disagree.

     We review a grant of summary judgment under the same standard

as the trial court.   Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41

(2012) (citations omitted).       Summary judgment is proper where

there is no genuine issue of material fact when the evidence is

viewed in the light most favorable to the non-moving party, and

the moving party is entitled to prevail as a matter of law.            Id.

at 38, 41 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 529 (1995) and R. 4:46-2 (c)). "When no issue of fact exists,

and only a question of law remains," an appellate court accords

no special deference to the legal conclusions of the trial court.

Cypress Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 415

(2016) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995)).

     Plaintiff   argues   that   the   affordability   controls    expire

automatically at the end of thirty years because the language in

Section L of the developer's agreement provides that "[d]eed

restrictions shall be for 30 years."        Plaintiff also relies on

                                   6                              A-1992-15T2
Princeton Code § 16-83, which sets a thirty-year affordability

control for privately financed rental units.   Plaintiff contends

that the developer's agreement and defendants' code are consistent

with UHAC's "at least 30 years" requirement for affordability

controls.

     Defendants, on the other hand, assert that Section 26.11

requires affordability controls to remain in effect for a minimum

of thirty years before the municipality may elect to release units

following the passage of an ordinance authorizing such action.

Defendants argue that the fixed thirty-year control period in the

developer's agreement and its ordinance is preempted by UHAC's

requirement that the control period must be in effect at least

thirty years before any municipal action can be taken to release

the units.

     Statutory interpretation is a question of law reviewed on a

de novo basis.    Real v. Radir Wheels, Inc., 198 N.J. 511, 524

(2009) (citing In re Liquidation of Integrity Ins. Co., 193 N.J.

86, 94 (2007), rev'd on other grounds, 214 N.J. 51 (2013)); see

also U.S. Bank, N.A., v. Hough, 210 N.J. 187, 199 (2012) ("We

interpret a regulation in the same manner that we would interpret

a statute.").    When interpreting statutory language, the court

first examines "the plain meaning of the provision at issue."

Lozano v. Frank DeLuca Constr., 178 N.J. 513, 522 (2004) (quoting

                                7                          A-1992-15T2
Burns v. Belafsky, 166 N.J. 466, 473 (2001)).           If "the statutory

language is clear and unambiguous, and susceptible to only one

interpretation, courts should apply the statute as written without

resort to extrinsic interpretative aids."            Ibid. (quoting In re

Passaic County Utils. Auth., 164 N.J. 270, 299 (2000)).                "Such

language should be given its ordinary meaning, absent a legislative

intent to the contrary."        Burns, supra, 166 N.J. at 473 (quoting

Merin v. Maglaki, 126 N.J. 430, 434-35 (1992)).            "[I]f there is

ambiguity in the statutory language that leads to more than one

plausible interpretation, . . . [where] a plain reading of the

statute leads to an absurd result or if the overall statutory

scheme is at odds with the plain language," a reviewing court may

refer   to    extrinsic    evidence    such   as   "legislative     history,

committee    reports,     and   contemporaneous    construction."      Real,

supra, 198 N.J. at 524 (quoting Daidone v. Buterick Bulkheading,

191 N.J. 557, 565-66 (2007)).

     Section 26.11 of the UHAC provides in relevant part:

             (a) Each restricted rental unit shall remain
             subject to the requirements of this subchapter
             until the municipality in which the unit is
             located elects to release the unit from such
             requirements pursuant to action taken in
             compliance with (e) below. Prior to such a
             municipal election, a restricted rental unit
             must remain subject to the requirements of
             this subchapter for a period of at least 30
             years.


                                      8                              A-1992-15T2
          . . . .

          (e) Any municipality may elect to release any
          or all of the restricted rental units in a
          development from the requirements of this
          subchapter at a time to be set forth in the
          municipal ordinance required below, but after
          the expiration of the minimum control period
          specified under (a) above, provided that:

               (1) The municipal election to
               release    the    unit   from    the
               requirements of this subchapter is
               made   pursuant    to  a   municipal
               ordinance      authorizing      such
               elections with respect to units
               located     either      in     areas
               specifically   identified   in   the
               Housing Element of the municipal
               Master Plan or throughout the entire
               municipality; and

               (2) The administrative agent shall,
               within 60 days of the municipal
               election, execute a release . . .
               of all restriction instruments with
               respect to the unit(s).

          [N.J.A.C.   5:80-26.11(a)   and   (e)   (emphasis
          added).]

The regulation also requires the "[d]eeds of all real property

that include restricted rental units [to] contain deed restriction

language substantially in the form set forth in Appendix E to this

subchapter."   N.J.A.C. 5:80-26.11(c) (emphasis added).       Appendix

E is a deed restriction template that incorporates the same "at

least 30 years" language found in Section 26.11(a).           N.J.A.C.

5:80-26.11 App. E.


                                9                              A-1992-15T2
      The   plain   language    of    the   regulation      indicates   that     "a

restricted    rental    unit   must    remain    subject    to"   affordability

controls for "a period of at least 30 years" prior to a municipal

election     to   release     the    controls.      N.J.A.C.      5:80-26.11(a)

(emphasis    added).    The    regulation       further     specifies    that     a

municipality may release affordability controls on any or all

rental units "after the expiration of the minimum control period"

of thirty years as required under subsection (a).                 N.J.A.C. 5:80-

26.11(e) (emphasis added).           Furthermore, subsection (e) requires

that the release of affordability controls take the form of a

municipal ordinance.        N.J.A.C. 5:80-26.11 (e).

      Judge Jacobson determined that the plain language of the

regulation required a restricted rental unit to be subject to the

affordability control restrictions for at least thirty years.                    At

the expiration of the minimum control period of thirty years, an

ordinance was required to release the restricted units.                 However,

because of plaintiff counsel's representation to the court that

defendant's interpretation of Section 26.11 had not been asserted

by other municipalities, the judge looked beyond the plain language

of the regulation to its regulatory history.

      Under the Fair Housing Act, N.J.S.A. 52:27D-301 to -329.19,

the   Housing     and   Mortgage      Finance      Agency    (HMFA)     was     the

administrative      agency     charged      with    the     responsibility       of

                                       10                                A-1992-15T2
establishing programs to assist municipalities in meeting their

obligation to provide affordable low- and moderate-income housing.

N.J.S.A.   52:27D-321.   In    carrying   out   its   charge,   HMFA   was

responsible for drafting and promulgating regulations controlling

the use and sale of affordable housing units. The regulations,

known as UHAC, N.J.A.C. 5:80-26.1 to -26.26, were initially adopted

in 2001 and amended in 2004.

     As part of the 2004 amendments, HMFA issued a response

document explaining the intent of the language of Section 26.11.

36 N.J.R. 5713(a) (Dec. 20, 2004). In response to a comment that

the "30-year minimum control period for rental units should be

restored and maintained without exceptions," HMFA stated:

           As in N.J.A.C. 5:80-26.5 [referring to
           affordability controls for ownership units],
           the rule states that the municipality may
           elect to release a unit from affordability
           controls only after expiration of the minimum
           control period, which is at least 30 years
           . . . . The ability of a municipality to
           release the unit from affordability controls
           after the minimum restriction period is
           dependent upon a municipal ordinance, which
           will   describe   the   intentions   of   the
           municipality to release the units at a time
           that they are able to replace those units
           within the municipality.

           [36 N.J.R. 5713(a) (emphasis added).]




                                 11                               A-1992-15T2
Additionally, in response to a comment requesting the agency to

"clarify   the   operation   of    the   control-period   provisions    of

N.J.A.C. 5:80-26.11" HMFA said:

           Affordability controls on restricted rental
           units may be extended past the 30-year control
           period by the municipality pursuant to a
           municipal    ordinance     authorizing    such
           elections with respect to units located either
           in areas specifically identified in the
           Housing Element of the municipal Master Plan
           or   throughout   the   entire   municipality.
           Municipal release of affordable units is the
           only way that units will be released from
           affordability controls after the minimum
           control period has ended, in accordance with
           the municipal ordinance.    Controls will not
           expire automatically after the 30-year period.

           [36 N.J.R. 5713(a) (emphasis added).]

     It is clear from HMFA's responses to public comments that:

(1) the affordability controls on rental units are to remain for

a minimum control period of thirty years; (2) "the municipality

may elect to release a unit from affordability controls only after

expiration of the minimum control period, which is at least 30

years;" and (3) the release may only be executed by way of a

municipal ordinance.     36 N.J.R. 5713(a) (emphasis added).           The

agency clarified that "[c]ontrols will not expire automatically

after the 30-year period."        36 N.J.R. 5713(a).

     We generally give considerable weight to a state agency's

interpretation of a statutory scheme that the legislature has


                                    12                           A-1992-15T2
entrusted to the administration of the agency.               In re Election Law

Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262

(2010) (citing Richardson v. Bd. of Trs., Police and Firemen's

Ret. Sys., 192 N.J. 189, 196 (2007)).               This deference comes from

the   understanding       that   a   state    agency   brings      experience     and

specialized knowledge to its task of administering and regulating

a legislative enactment within its field of expertise.                    Ibid.    We

will defer to an agency's interpretation of both a statute and

implementing      regulation,        within   the   sphere    of    the   agency's

authority, unless the interpretation is "plainly unreasonable."

Ibid.

      The regulatory history supports defendants' and the trial

court's interpretation of Section 26.11.               The language Princeton

requires of plaintiff in the deed restriction tracks the language

used in the UHAC regulations and the deed restriction template in

its   appendix.      We    are   satisfied     that    it   was    reasonable     and

appropriate for defendants to require compliance with the UHAC

regulations in the deed restriction.

      We next consider whether UHAC Section 26.11 is preempted by

defendants' own municipal code designating a fixed thirty-year

control period for privately financed rental units.

      "Preemption is a judicially created principle based on the

proposition that a municipality, which is an agent of the State,

                                        13                                  A-1992-15T2
cannot act contrary to the State."     Redd v. Bowman, 223 N.J. 87,

108 (2015) (citing Overlook Terrace Mgmt. v. Rent Control Bd. of

W.N.Y., 71 N.J. 451, 461 (1976)).       In Redd, the Supreme Court

reiterated the five factors that a court must consider to determine

whether state law preempts a municipal ordinance:

           (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?

           [Id. at 109 (citing Overlook, supra, 71 N.J.
           at 461-62).]

     A consideration of the factors leads to the conclusion that

the Princeton ordinance must be preempted by the UHAC regulations.

It is undisputed that the ordinance conflicts with Section 26.11;

the interpretation of the diverging language is the very issue

before   us.   The   ordinance   provides   for   a   firm   thirty-year


                                 14                              A-1992-15T2
affordability control period whereas the regulation requires a

minimum of thirty years, "at least 30 years."     Unlike UHAC, the

ordinance does not provide any mechanism as to the actions to be

taken by the municipality to release the affordability controls

at the expiration of the thirty years.

     The remaining factors are all indisputably met, as Judge

Jacobson noted, as the "aim of the [UHAC] regulations was to bring

uniformity to the imposition of . . . affordability controls in

New Jersey, and to further the express purposes of the Fair Housing

Act, [N.J.S.A. 51:27D-301 to -515]."

     A consideration of the Redd factors weighs in favor of

preemption.    The ordinance, enacted almost twenty years before

Section 26.11, cannot be used to preclude defendants from requiring

compliance with UHAC.

     We similarly conclude that the developer's agreement cannot

override UHAC.   "A 'developer's agreement' is a contract between

a developer and a public authority that details the manner in

which the conditions of [municipal] approval will be fulfilled."

Toll Bros. v. Burlington Cty. Freeholders, 194 N.J. 223, 248

(2008).   A developer's agreement is not an independent contractual

source of obligation but "an ancillary instrument tethered to the

conditions of [municipal] approval" that "exists solely as a tool



                                15                          A-1992-15T2
for the implementation of the resolution establishing [those]

conditions."    Id. at 249.

     Here, the developer's agreement runs contrary to UHAC because

it requires a firm thirty-year control period.              As with the

municipal ordinance, the language in the developer's agreement

conflicts with Section 26.11's requirement of "at least 30 years"

before the release of affordability controls may be effectuated.

Accordingly, the developer's agreement is unenforceable and must

cede to Section 26.11.

     Finally, we must address plaintiff's forewarning to us that

an affirmance of the trial court ruling permitting affordability

controls to remain in place "for at least thirty years" will "wreak

havoc" in the ongoing litigation in this state of determining

affordability housing compliance.     We do not intend to convey in

our decision today that the duration of affordability controls

should be open ended or in perpetuity, nor do we interpret UHAC

as   saying    such.   UHAC   established   a   mechanism    whereby    a

municipality can only release a unit from affordability controls

after the expiration of the thirty-year minimum control period.

It seems reasonable that developers and towns might agree on a

short time period beyond the thirty years to accommodate the

balancing of interests, allowing for the decision-making of the



                                 16                             A-1992-15T2
municipalities, and the need and desire of the developers for the

release of the controlled units.3

     Affirmed.




3
  We note that plaintiff included documents in its appendix
regarding another municipality's settlement of its affordable
housing litigation.   In that settlement, the municipality and
developer agreed to a thirty-five year control period.      These
documents were not included in the record before the trial court.
In lieu of an order striking the documents, however, defendant
moved to supplement the record to include deed restrictions from
other projects which require compliance with Section 26.11. We
have considered all of the documents presented.

                               17                         A-1992-15T2
