Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
Defendant appeals from a declaratory judgment granted on plaintiffs' motion for summary judgment in the Superior Court, Law Division.
The facts are undisputed and may be succinctly stated as follows: The mayor and council of the Borough of Lincoln Park, on July 7, 1924 approved a certain map, which was
duly filed, pursuant to the Old Map Act (R.S. 46:23-1 et seq. , since repealed), in the office of the Clerk of Morris County, New Jersey, on September 25, 1924. Delineated on the map are a great number of lots, practically all of them undeveloped, and a number of unimproved streets. Generally, the lots are 50 feet in width by 100 feet in depth; the street widths are 20 feet. The present zoning ordinance of Lincoln Park requires minimum lot sizes of 100 feet in width by 150 feet in depth. The borough's subdivision ordinance requires a minimum dedicated street width of 50 feet.
According to an uncontradicted affidavit of Gaskel Goldstein, the plaintiffs held a mortgage encumbering 44 of the lots shown on the map, and, to avoid foreclosure proceedings, the lots were conveyed to the plaintiffs by deed dated April 10, 1957. Plaintiffs have purchasers for some of the lots. They want to make conveyances describing those lots without any deviation from the lot lines shown on the said map. Plaintiffs inquired of the defendant planning board "as to whether the sales could be made without first securing permission from the Planning Board for a sub-division." The defendant in reply stated "before any property is sold from the Robert Goldstein and Gaskel Goldstein holdings, it is necessary to make application to the Planning Board of Lincoln Park." The reply further stated "The Subdivisions must also adhere to the requirements and regulations in effect."
Fearful of prosecution or other litigation under N.J.S.A. 40:55-1.23 if they proceeded with the conveyances, plaintiffs instituted the present action. Among other things, judgment was sought to declare the right of the plaintiffs to effect such sales even without the board's approval.
Defendant's answer contains separate defenses claiming plaintiffs are not entitled to a certificate of subdivision approval, the filed map is obsolete, and the provisions of the Planning Act of 1953 have rendered in law the sales of lots, either singly or in groups, subject to the jurisdiction of the municipal planning board. After summary hearing, the trial judge entered judgment declaring that plaintiffs
have the right to sell and convey the lots as shown on the old filed map, notwithstanding the board's refusal to approve. Referring to his opinion in Lake Intervale Homes v. Parsippany-Troy Hills Tp. , 47 N.J. Super. 334, 349 (Law Div. 1957), he reasoned that the Legislature granted municipalities only the right to regulate "subdivisions," whereas the sale of lots shown on maps filed under the Old Map Act, R.S. 46:23-1 et seq. , could not constitute "subdivision." The Old Map Act was repealed by L. 1953, c. 358, p. 1941, § 7; N.J.S.A. 46:23-9.7.
The question for determination is whether the plaintiffs, as owners of the lots laid out and shown on a map, filed under the Old Map Act, R.S. 46:23-1 et seq. , may convey these lots without any change in lot lines, either singly or in groups, without approval by defendant planning board. Is a sale of lots, clearly delineated on a map conforming in all respects to the requirements of the Old Map Act, "a subdivision" within the meaning of the Municipal Planning Act (1953), N.J.S.A. 40:55-1.1 et seq. ?
The defendant argues that if planning board approval is not required for the sale of lots shown on an old filed map, the planning process will be rendered ineffective. That result, it is said, is at odds with legislative intention. The board urges that the controls provided by the Planning Act are ineffective if the plaintiffs can indiscriminately sell lots "off the side of a mountain on 20 foot dedicated streets with grades up to 15 to 17%." The argument runs that, were we to affirm, serious consequences are in the offing. The lots might not conform to zoning requirements, and the sales might present a problem of street improvements and drainage. We think, however, that that argument goes too far. The trial judge clearly stated in his oral opinion that the judgment in favor of the plaintiffs does not mean that the municipality ever has to issue, or ever will issue, any building ...