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June 27, 1988

Jim D. Mesalic, Plaintiff,
Frances Slayton, as Mayor of the Township of Jefferson and individually, John Sherman, as Forester of the Township of Jefferson and individually, and The Township Council of The Township of Jefferson, New Jersey, Defendants

The opinion of the court was delivered by: DEBEVOISE


 Plaintiff, Jim D. Mesalic, filed a Verified Complaint and and Order to Show Cause in this action on May 14, 1987. Named as defendants are Frances Slayton, as Mayor of the Township of Jefferson, New Jersey and individually; John Sherman, as Forester of the Township of Jefferson and individually; and the Township Council of the Township of Jefferson. On July 6, 1987, the court entered a Stipulation of Settlement and Order Dismissing Action ("Stipulation and Order"). The matter is now before the court pursuant to an order to show cause entered May 19, 1988, directing the defendants to show cause why an order should not be entered enforcing the July 6, 1987 order, prohibiting defendants from enforcing against plaintiff two recently enacted zoning ordinances, and ordering defendants to deal with plaintiff in good faith.


 The facts preceding the filing of this action are in dispute, but need not be resolved for the purposes of this proceeding. Plaintiff's allegations are as follows. Jefferson Township sold two parcels of land to plaintiff in late 1986. The parcel at issue in this proceeding was zoned R-3 for cluster residential development, comprised 83.58 acres, and was permitted 228 townhouses and four single family homes. After the sale, plaintiff began preparations for submission of an application to the Jefferson Township Planning Board for the development of the property. Opposition to development of the property then surfaced within the township government, particularly upon the inauguration of defendant Slayton, an alleged opponent of development, as Mayor of the township. This opposition resulted in defendant Sherman refusing to assist plaintiff in determining proper pathways to move drilling equipment onto the property, and in defendant Sherman, along with a police officer, threatening to jail plaintiff and ejecting him from his property for no apparent reason other than to frustrate plaintiff's attempts to develop the property.

 Without disputing that defendants Slayton and Sherman have opposed plaintiff's development of the property, defendants assert that the incidents described by plaintiff resulted primarily from an incident in which plaintiff's men trespassed and cut trees on property adjacent to the site and not owned by plaintiff. They contend that defendant Sherman refused to assist plaintiff regarding work on the property because he was investigating the extent of plaintiff's trespass onto the adjacent property, and had determined that no work should take place pending the investigation. They also argue that Sherman ejected plaintiff from the property to prevent plaintiff from working in violation of township tree cutting ordinances and in violation of a "stop work" order directed at plaintiff. Plaintiff contends that no stop work order concerning his property was ever issued.

 The Verified Complaint alleges that the actions of the individual defendants were designed to thwart plaintiff's ability to develop his property, and constituted an unlawful taking of plaintiff's property, an unlawful denial of his right to due process of law, and an unlawful deprivation of his liberty under the Fifth and Fourteenth Amendments. The complaint also alleges violations of state law. The complaint demands judgment, inter alia, enjoining the defendants and their agents from interfering with plaintiff's access to the property; ordering the defendants to comply henceforth with all applicable laws; ordering defendants and their agents to process plaintiff's development applications in good faith; awarding damages; and awarding such other relief as might be necessary. The complaint seeks relief against the Township Council as well as the individual plaintiffs.

 As noted above, the parties settled the case. Plaintiff contends that at its July 1, 1987 meeting, the Township Council formally reviewed and approved the stipulation entered by the parties. In support of this contention, plaintiff has submitted (but has not attached to an affidavit) a letter from Lawrence P. Cohen, counsel for Jefferson Township, informing plaintiff's attorney that he had "received approval at the Jefferson Township Council Meeting of July 1, 1987, which approval was set forth on the record to execute the stipulation." The letter does not describe by what means the stipulation was approved. Plaintiff has not submitted minutes or any other record of the approval.

 The court entered the Stipulation and Order on July 6, 1987. Most of the obligations imposed on defendants by the Stipulation and Order, which comprises eleven paragraphs, concern plaintiff's access to the property. However, paragraph eight states that

All the named parties agree to comply in good faith with, and to cooperate and proceed diligently, fairly and in good faith under, now existing Jefferson Township Ordinances (or to challenge the validity thereof in proper fashion, or to file the appropriate application for a variance and, if necessary, to file an action or take an appeal as to any adverse decision thereon), and under state and federal law, with respect to the preparation, submission, informal and formal review, and amendment (if necessary) of plaintiff's forthcoming subdivision(s) and other documents for the development of plaintiff's Jefferson Township parcels of real property.

 The course of the negotiations that resulted in this provision are hotly disputed. Defendants contend that "at no time was it negotiated among the parties that there would be a moratorium on zoning ordinances that would affect Mr. Mesalic's property." Plaintiff asserts that defendant's version of the negotiations is "shockingly deficient," arguing that he specifically demanded the provision in paragraph eight because of his concern that Jefferson Township would prejudge his forthcoming applications and "change the rules of the game" by amending township ordinances.

 Defendants allege that

discussions of a critical area ordinance predates that date that this litigation was initially filed and, in fact, predates the sale or advertisement for the sale of the property which Mr. Mesalic purchased from the Township.

 Defendants imply that these discussions eventually led to enactment of the ordinances at issue in this proceeding. See Affidavit of June Cetro, paragraph 3. Plaintiff contends that there is no public record prior to his purchase of the property of any ...

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