filed more extensive plans with the Planning Board on December 22, 1987. On March 15, 1988, the Planning Board declared plaintiff's plans and supporting documents for the proposed development complete.
Over plaintiff's objections, the Jefferson Township Council adopted Ordinance 4-88 on March 2, 1988, thirteen days before completion of plaintiff's application to the Planning Board. The ordinance, which amends the Township's Zoning Ordinance, became effective on March 27, 1988. On May 17, 1988, the Planning Board denied plaintiff's application for the proposed development, determining that the proposed development did not conform to the new density ordinance. Plaintiff contends, and defendants do not dispute, that application of the ordinance to plaintiff's project would force plaintiff to eliminate 125 of the 326 housing units he has proposed.
Interpretation of Paragraph Eight
Plaintiff contends that the Stipulation and Order prohibits defendants from applying the new ordinance to his development. Although the bulk of the stipulation concerns plaintiff's access to his property, and not the processing of his application by the local authorities, the literal terms of paragraph eight do prohibit the defendants from applying new ordinances to plaintiff's development. Defendants protest that they do not recall negotiating any provision that prohibits changes in the zoning laws. However, the court must interpret the stipulation, not the parties' competing versions of the negotiations that produced it.
Defendants' other arguments in support of their reading of the stipulation are meritless. The provision does not, as defendants contend, apply only to the processing of plaintiff's tree removal application; its language contains no such limitation. Interpreting the provision to prohibit application of township zoning amendments to plaintiff's proposed development also would not prohibit application of new state and federal laws, as defendants suggest. The provision requires application of all "now existing" township zoning ordinances, but refers only to state and federal law, not such law that is "now existing." Moreover, the provision is not of unlimited duration, as defendants suggest. Paragraph eight requires plaintiff, as well as defendants, to proceed diligently with respect to the application. Plaintiff has done so. If he had not proceeded diligently, then the requirement to apply existing law to his application would no longer apply. Finally, it is of no significance whether the township council discussed any amendments to the ordinances applicable to plaintiff's property prior to its sale to plaintiff. Because paragraph eight requires defendants to apply "existing" law to plaintiff, it represents a choice on the part of the defendants to forego with respect to plaintiff's property any amendments to the ordinances, whether or not they had been previously discussed. Thus, the terms of paragraph eight require defendants to process plaintiff's application under township ordinances existing at the time of the agreement.
Enforceability of Paragraph Eight
Defendants also argue that paragraph eight is unenforceable. In support of this contention, defendants first note that the zoning change would have been lawful in the absence of the settlement agreement, despite the fact that plaintiff's application was near completion. "[A] municipality may change its regulating ordinances after an application has been filed[,] even where the municipality amends its ordinance in direct response to the application." Burcam Corp. v. Planning Board of the Township of Medford, 168 N.J. Super. 508, 512, 403 A.2d 921 (App. Div. 1979). Next, defendants cite to Midtown Properties, Inc. v. Madison Township, 68 N.J. Super. 197, 172 A.2d 40 (Law Div. 1961), aff'd. 78 N.J. Super. 471, 189 A.2d 226 (App. Div. 1963), where the lower court stated:
It is too well established to cite authority for the proposition that while a public body may make contracts as an individual, it can only do so within its expressed or implied powers; and that those who deal with the municipality are charged with notice of the limitations imposed by law upon the exercise of that power.