The opinion
Concurring Opinion by
Judge Crumlish:
I concur in the conclusion in which the majority adopts the opinion of the court below. The appellant *543 has failed to meet the burden of proof as to the need for a variance and to the constitutional challenge to the ordinance. However, I believe the lower court misapprehends the burden in the constitutional issue.
Mobil Oil contended that the Dauphin Borough zoning ordinance was a de facto prohibition of gasoline service stations in that they were permitted only in what was in actuality an economically unfeasible territorial confine. The lower court recognized that prohibitory zoning reduces the onus put on those who challenge constitutionality by calling the municipality at the outset to justify by supporting evidence its stringent restriction. Bea ver Gasoline Co. v. Borough of Osborne, 445 Pa. 571 , 285 A. 2d 501 (1971). As I read it, the court held that Beaver applies only where the total prohibition is spelled out on the face of the ordinance. I do not agree.
In Beaver, the Supreme Court affirmed this Court, 1 Pa. Commonwealth Ct. 458 , 275 A. 2d 702 (1971), in holding that one who challenges the prohibitionary nature of an ordinance has the moving burden of proving it. Neither this Court, nor the Supreme Court, has limited this burden to de jure prohibitions. Our sustained interpretation of this facet of the law never intended to place upon a municipality a heavier burden in its defense of an admitted prohibition than its defense of a proven prohibition which by ingenious draftsmanship it sought to deny or to disguise. If appellant had met his burden by proving the existence of a de facto prohibition, the theory of Beaver should have applied.
The record indicates that Mobil has failed to meet this threshold burden. Accordingly, I concur in the conclusion that the appeal must be dismissed.
Judge Kramer joins in this Concurring Opinion.