The opinion
Dissenting Opinion by
Judge Manderino:
I respectfully dissent. A provision in a zoning ordinance which limits the expansion of a nonconforming use by percentage alone may be related to mathematics but has no rational relationship to the health, safety, and morals of the community. Because percentages, like statistics, seem to have an aura of certainty and exactness, it is easy to assume that there is some ra *597 tional basis for a uniform percentage restriction on the expansion of a nonconforming use. This might be so if there were no variables in property owned by different citizens. Since many variables obviously exist, a percentage limitation can have widely varying and discriminatory effects upon individual property owners without any relationship to the health, safety or morals of the community. The fifty per cent limitation contained in the ordinance in question here may in some cases permit a property owner to expand and occupy one hundred per cent of his tract and in another situation limit a property owner even though the fifty per cent expansion would mean the occupation of only five percent of his tract. The size of the tract and its relationship to other adjoining properties is of necessity ignored. In some cases the percentage limitation may allow a natural expansion of the nonconforming use and in other cases it would stifle the natural expansion of a nonconforming use. A fifty per cent reference to variables has no relationship to the health, safety and morals of the community.
The majority opinion cites Humphreys v. Stuart Realty Corp., 364 Pa. 616 , 73 A. 2d 407 (1950), and also the case of Philadelphia Art Alliance v. Philadelphia Zoning Board of Adjustment, 377 Pa. 144 , 104 A. 2d 492 (1954). The quotation from the Humphreys case was dictum and was not the basis of the court’s decision. There was no discussion in Humphreys concerning the constitutionality of a percentage limitation. There was a brief simple statement by the opinion winter that was not necessary to the decision. The result in the Humphreys case was based on other grounds. In the Philadelphia Art Alliance case the court referred to the twenty-five per cent limitation present in that case, but did not decide whether or not the limitation was constitutional. The expansion desired in the Philadelphia Art Alliance case was less than the *598 twenty-fire per cent permitted by the ordinance and the court specifically pointed out that the requested extension was less than that allowed by the ordinance. Neither of these cases decided that percentage limitations on nonconforming uses which stifled natural expansion met the necessary constitutional tests.
The percentage limitation in this case is not constitutional. . Schiller-Pfeiffer, Inc. was entitled to a consideration of its request independent of the percentage limitation. I would remand for such a determination.