Appeal from decree of Court of Common Pleas of Montgomery County, No. 64-3728, in case of Township of Upper Moreland v. Allan F. Meade, Meade Construction Co., Inc., and Northgate Professional Center, Inc.
Knox Henderson, with him John F. Solomon, Jr., and Henderson, Wetherill & O'Hey, for appellants.
Samuel H. High, Jr., with him High, Swartz, Roberts & Seidel, for appellee.
John P. Knox, for intervening plaintiffs, appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.
On April 2, 1962, the defendant, Allan F. Meade, entered into an agreement to purchase a certain tract of land in Upper Moreland Township in Montgomery County from H. Lyle Houpt and Catharine Fox Houpt, his wife. The agreement was contingent on the township board of adjustment granting a special exception or variance in order that Meade or his nominee might construct one colonial office building and five colonial apartment buildings. On April 6, 1962, Houpt filed an application with the board of adjustment for permission to build the proposed structures. On May 26, 1962, the board of adjustment granted permission, but imposed the following restrictions: "1. That in accordance with Section 608 paragraphs nos. 1 & 2 the apartment
house or group of apartment houses and (b) professional office shall be considered as an integrated use. 2. Each apartment and/or professional office shall contain a minimum of 800 sq. ft. of floor area per family, or per office. 3. Not more than 30% of the lot area may be occupied by buildings. 4. There shall be two side yards and a rear yard each of which shall be no less than 30 ft. however, this area may be used for parking space. There shall be a front yard the depth of which shall be at least 40 ft. and this space may also be used for parking. 5. There shall be one driveway for ingress and a separate driveway for egress. 6. Off street parking spaces shall be provided at a min. of one and one-half spaces per apartment and one per professional office. 7. Starting at a point forty feet from the front line, the side yards and the rear yard shall be fenced with suitable chain link fencing, or its equal. 8. The height of the buildings shall be limited to two stories and the basement areas shall be used for storage and utilities purposes only and for no other purposes. All Other provisions of the Zoning Ordinance and the Building Code to be complied with."
On February 25, 1963, an agent of the appellants applied for and was issued a building permit for the erection of an office building and apartment structure containing 68 apartments. The plan submitted in support of the building permit was not the same as the plan presented to and approved by the board of adjustment. The plans submitted by the appellants to the board of adjustment depicted one professional building and five apartment buildings. However, the plans submitted for the building permits showed only two buildings, one apartment building and one office building.*fn*
Subsequent to the issuance of the building permit, the appellants commenced construction. Eight months after the commencement of construction, it was discovered by certain adjoining landowners that the construction violated the order of the board of adjustment, the local ordinance, and the plan filed in support of the application for a building permit. On April 2, 1964, the township commenced an action in equity, seeking to enjoin the illegal construction. Certain residents of the township were permitted to intervene and the case was heard by the chancellor on May 25, 1964. The chancellor found, among other things, the following facts:
"24. Allan F. Meade knew when he filed his plans with the building permit that the plans failed to comply with the Board of Adjustment requirement that there be compliance with the Zoning ...