The opinion
*657 PELLEGRINI, Judge,
dissenting.
I dissent to that portion of the majority opinion that holds that surface mining on the property was a valid nonconforming use because it had not ceased by March 17, 1988, when Chestnuthill Township introduced a zoning ordinance classifying the property as R-l Residential, a classification which did not permit surface mining.
In September of 1985, pursuant to a small non-coal surface mining permit, the property was mined, under lease, by the father of the owner of the property. At that time, the Township had not yet enacted a zoning ordinance. In April of 1987, DER revoked the mining permit, ordered all mining to cease and desist, and directed the owner to commence reclamation of the land. Reclamation continued to the end of 1987.
On January 6, 1988, a letter of understanding was entered by the owner to sell the property. The purchaser conducted on-site inspections and field work as part of the purchaser’s plan to conduct large scale mining operations on the property. On April 6, 1988, the purchaser closed on the sale. However, on March 17, 1988, the Township had introduced its zoning ordinance, making it the pending ordinance date.
The majority holds that the reclamation work, together with the field work of the purchaser, establishes that there was no intent to abandon the zoning use either by the owner or the purchaser of the property. The keystone to the majority’s holding is that DER considers reclamation to be part of surface mining as it interprets 52 P.S. § 3303. Otherwise, the majority would hold that the mining use would have ceased when the ordered reclamation work began.
Normally, to determine whether a non-conforming use is in existence requires an examination of the use on the property when the restriction was imposed and comparison with the use the owner contends is continued to see if they are substantially similar. By adopting DER’s definition of *658 mining to determine if a non-conforming use exists, the majority departs from basing a non-conforming use on what “exists” in favor of an artificial definition adopted to effectuate some other unrelated regulatory purpose. What was underway on the day the restriction was imposed forbidding mining did not involve the extraction of minerals, but the exact opposite — reclamation.
Because the mining use had ceased when the zoning restriction was imposed, I would affirm the trial court’s finding that there was no valid non-conforming use to conduct mining on the ordinance pending date of March 17, 1988.