The opinion
Dissenting Opinion by
Judge Mandepjno :
I dissent. The Torahs (appellants) own a plot of ground of approximately 58,000 square feet. Upon the ground there exists a restaurant building, including a porch, which occupies approximately 3,821 square feet. The Torahs wish to enclose the porch area (704 square feet) and build an addition to the restaurant of 538 square feet. If the Torahs are allowed to proceed, a restaurant building covering approximately 4,359 square feet on the plot of ground of approximately 58,-000 square feet would result. The new restaurant building would conform to all zoning requirements except that the old restaurant is a nonconforming use and the “new restaurant” would continue to be a nonconforming use.
The expansion requested by the Torahs would be the natural expansion of a nonconforming use and there is absolutely nothing in the record to indicate that such expansion would in any conceivable way adversely affect the community. The plot of ground is surrounded on all sides by major roads and highways. The land *52 coverage of the new restaurant building after the requested expansion would be less than eight per cent of the total plot.
The right of natural expansion is well recognized. Silver v. Zoning Board of Adjustment, 435 Pa. 99 , 255 A. 2d 506 (1969). The Torahs were denied the right to naturally expand because the Upper Merion Township Zoning Ordinance prohibits more than a twenty-five percent expansion of a nonconforming building. A percentage limitation which relates to the existing nonconforming building and considers no other factors such as ground coverage or adverse effects on neighboring properties is arbitrary and bears no rational relationship to the health, safety and welfare of the community.
It should also be noted that the request of the Torahs for expansion is referred to as a request for a variance. This cannot mean, however, that the usual proof of hardship unique to the land must be found in this case. Regardless of the terminology used, the Torahs requested a building permit to expand and they are entitled to a natural expansion of a nonconforming use that does not violate any other zoning controls and does not adversely affect the health, safety and welfare of the community.
The decision of the lower court should be reversed and the building permit should be issued.