We heretofore reversed a summary judgment previously entered in the first action in favor of the plaintiffs. Kligman v. Lautman, 91 N.J. Super. 488 ( App. Div. 1966). In 1964 plaintiffs acquired a rectangular tract of land, apparently once the site of a residential mansion having a frontage of 300 feet on the easterly side of Ocean Avenue in Deal and extending 949 feet to a point in the Atlantic Ocean.
However, the borough does have certain ordinance provisions bearing on subdivision control which were applied at the municipal level to deny plaintiffs any favorable action. The Law Division, following an intermediate trip to the Appellate Division, 91 N.J. Super. 488 ( App. Div. 1966), upheld the municipality. The judgment was affirmed, 98 N.J. Super. 344 ( App. Div. 1967), and plaintiffs now appeal to this court claiming that certain of the ordinance provisions are unconstitutional.
If a developer is thwarted through the inaction of the Board, he could presumably initiate litigation to force the filing of any otherwise conforming final plat. See, e.g., Kligman v. Lautman, 91 N.J. Super. 488 (App. Div. 1966) (considering applicant's challenge to the municipality's refusal to permit the filing of a map, but concluding the map failed to comply with applicable statutes). Thus, as one noted commentator has stated, having the plat remain unsigned beyond the 190 period provided by N.J.S.A. 40:55D-54(a) "is obviously not the intent of the statute."
At the time of trial the court had before it the basic ordinance, Jersey City, N.J., Ordinance 346, February 20, 1973 (hereinafter cited as J. 346) and the amending ordinance, Jersey City, N.J., Ordinance 366, July 17, 1963 (hereinafter cited as J. 366). Subsequent to the hearing, the city passed a further amendatory ordinance, Jersey City, N.J., Ordinance 390, November 20, 1973 (hereinafter cited as J. 390). In view of the fact that the court is required to decide the case on the basis of the status of the law at the time of determination, Hohl v. Readington Tp., 37 N.J. 271, 279 (1962); Kligman v. Lautman, 91 N.J. Super. 488, 493 (App.Div. 1966); Noble v. Chairman, etc., Mendham Tp., 91 N.J. Super. 111, 116 (App.Div. 1966), cert. den. 48 N.J. 120 (1966), and with the acquiescence of the parties, the conclusions reached herein will be based upon the local law in effect as of this date. The power of a municipality to adopt ordinances controlling or stabilizing rents has been approved by the Supreme Court of this state in Inganamort v. Fort Lee, 62 N.J. 521 (1973).
This point must be considered in the light of the fact that, subsequent to the entry of the judgment under review, the township committee adopted an amendment to the zoning ordinance specifically providing that a nursing home was not to be considered as an institutional use. Since the case must be determined by us on the basis of the ordinance currently in effect, Hohl v. Township of Readington, 37 N.J. 271, 279 (1962); Kligman v. Lautman, 91 N.J. Super. 488, 493 ( App. Div. 1966), we granted leave to plaintiffs to file a supplemental brief in support of their challenge to the legality of the amended ordinance. The ordinance in effect at the time of the application permitted "institutional uses" in all zones as exceptions to the ordinance.