Eastwood, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
It was resolved in the Chancery Division that the alleged cause of action of the borough was not maintainable. The present appeal implicates the propriety of the order dismissing the complaint.
The allegations of the complaint augmented by some stipulated matters set forth the following state of affairs which, for the purpose of the motion to dismiss, were necessarily acknowledged to constitute the factual basis of the alleged cause of action.
On July 10, 1936 the Mayor and Common Council of the Borough of Oakland, acting under the authority of existing legislation (L. 1930, p. 1039), created a planning board which thereupon organized, adopted a master plan for the physical development of the territory within the borough, promulgated a set of regulations relating to the subdivision of tracts of land, and has in other respects continued to perform the functions delegated to it by law.
The defendant Emil Roth was or perhaps has since become the owner of a tract of 58 acres of land situate within the bounds of the borough upon which he has opened an unpaved street known as Martha Place. In 1951 he proceeded to sell lots abutting on the street. On August 28, 1951 he conveyed a lot to the defendant Alice Casella, another on December 1, 1951 to the defendants Garrett and Ethel Junta, and a third on December 15, 1951 to the defendant Shirley Tintle.
In association with those circumstances and occurrences the complaint alleges that the lots so conveyed were fractional parts of a subdivision as defined by R.S. 40:55-1, as amended L. 1948, c. 464, p. 1902, § 1, and that those conveyances were made without the requisite filing and approval of any plat map of the subdivision by the planning board. The object of the action is to set aside and invalidate the designated conveyances and restrain such unsanctioned grants in the future.
The borough instituted the action in the pursuit of the statutory authority sought to be conferred upon it by R.S.
40:55-15, as amended L. 1951, c. 213, p. 768, § 1. It is advantageous to quote that section of the statute:
"If any owner or agent of any owner of any land transfers or sells or agrees to sell any land which forms a part of a subdivision as defined in this Title, before such subdivision has been approved by the approving agency, whether the planning board or governing body, the municipality in addition to any other remedy shall be entitled to institute and maintain a civil action in the Superior Court of New Jersey to restrain the transfer or sale or the performance of the agreement of sale and to set aside and invalidate any conveyance made pursuant to such transfer or sale. In any such action the transferee, purchaser or grantee of such land may be made a party or, if not made a party, may intervene therein, and the said transferee, purchaser or grantee shall be entitled to a lien upon the whole parcel, tract or plot of land from which the subdivision was made to secure the return of any deposit made or purchase price paid, and, also, a reasonable search fee, survey expense and title closing expense, if any. The said court shall have full jurisdiction to afford the said relief to the municipality and to the said transferee, purchaser or grantee, including the enforcement of said lien, and to afford incidental relief to any of the parties to such action. The right to bring any such action shall expire two years after the date of the recording of the instrument of transfer, sale or conveyance of said land and no such action shall be commenced after such expiration.
The provisions of this section shall not apply in any case in which the planning board shall have waived the requirements of its approval of the subdivision, and the governing body of the municipality may by resolution expressly waive the said requirements."
The defendants Casella and Tintle answered the complaint and asserted the permissible cross-claims against their co-defendant Roth. The defendants Junta chose to remain interested spectators. Since the constitutionality of the section of the statute was assailed, the Attorney-General intervened. The defendant Roth succeeded in his motion in limine to dismiss the alleged cause of action.
The trial judge concluded that in the enactment of R.S. 40:55-15 in its amended form the Legislature had omitted to supply reasonable and adequate standards by which either the planning board or the governing body of the municipality is to be guided and controlled in the exercise of the ...