concurring and dissenting.
I concur with the majority’s conclusion that the order of the trial court should be reversed. Specifically, I agree with the majority’s determination that the trial court committed reversible error by admitting testimony regarding the use of the property after the taking. It is well settled that the courts of Pennsylvania have permitted “a reasonable — and sometimes major — expansion of a non-conforming use to accommodate growth of the business.” Ryan, Pennsylvania Zoning Law and Practice, § 7.4.1. Where, as in the present matter, a building is non-conforming as to area, size or yard requirements 1 rather than the use, our courts have not allowed expansion under this “natural growth” doctrine. Fagan v. Zoning Board of Adjustment, 389 Pa. 99, 132 A.2d 279 (1957). In Jenkintown Towing Service v. Zoning Hearing Board of Upper More-land Township, 67 Pa.Cmwlth. 183, 446 A.2d 716 (1982) we noted that even where a proposed expansion is not in conflict with the use classification, a variance is still necessary if the expansion violates the dimensional restrictions of the zoning ordinance. Further, Section 305.01 of the Ordinance provides: “[n]o non-conforming structure shall be moved, extended, enlarged, or structurally altered, except when authorized by the Board.... ” By virtue of the fact that DOT’s taking decreased the size of the property, Amoco’s dimensional non-conformity was enlarged and the continued use of the property as a gasoline service station required a variance.
In Bachman v. Zoning Hearing Board of Bern Township, 508 Pa. 180, 494 A.2d 1102 (1985) our Supreme Court noted that a conveyance in lieu of condemnation extinguished the prior legal non-conforming use where continuing the use required qualification under the zoning laws. Because I believe Amoco is required to obtain a variance to continue to operate the service station on the remaining property I believe the taking extinguished Amoco’s legal non-conforming use *1381of the subject property. Accordingly, I believe that the record does not support the admission of testimony concerning a legal non-conformity, a variance or a vested right and I concur -with the majority’s conclusion that the trial court committed reversible error by admitting such testimony.
I also concur with the majority’s determination that the trial court erred on its jury instructions. Specifically, based upon the above reasoning, I believe the trial court committed reversible error by holding that no law precluded Amoco from continuing its legal non-conforming use.
In regard to the motion in limine filed by Amoco, I disagree with the majority’s conclusion that the trial court did not err in denying Amoco’s motion to limit testimony at trial to the issue of damages. I therefore dissent to this portion of the majority’s opinion. On July 19, 1993, this Court issued an order holding that Amoco had a right to condemnation damages. Because none of the parties appealed this decision the parties, as well as the trial court and the jury, were bound by the findings of the Board of Viewers which supported this Court’s conclusion that Amoco was entitled to condemnation damages. Thus, the only issue left to be litigated was the amount of damages. Accordingly, I believe that the trial court erred in denying Amoco’s motion in limine to limit the testimony at trial to the issue of damages.
In addition, I respectfully dissent to the portion of the majority’s opinion which concludes that the judge’s failure to attend the evidentiary view of the subject property constitutes reversible error. While I agree that the General Assembly’s use of the word “shall” excludes voluntary or optional conduct, I do not agree with the majority’s conclusion that the use of this term means that the judge’s failure to attend automatically amounts to reversible error. My review has failed to uncover any case law in Pennsylvania which supports this conclusion. I believe there are instances when the judge’s failure to observe the property in person may amount to reversible error but I do not agree with the majority’s determination that such is the case here.
Condemnees fail to assert what prejudice occurred as a result of the judge’s failure to accompany the jurors to the property. In jury trials, where the judge does not have the authority to substitute his evaluation of the evidence for that of the jury, I do not believe that the parties are automatically prejudiced by the judge’s failure to attend the view. Here, because there were numerous pictures of the property introduced into evidence and reviewed by the judge I am hard pressed to find, as the majority does, that the charge was inadequate and the shortfall was attributable to the judge’s failure to personally observe the property.
I would conclude that the judge’s failure to attend the view of the property constituted harmless error. However, I would also conclude that the trial court committed reversible error by denying Amoco’s motion in limine, by admitting testimony regarding the use of the property after the taking and in its jury instructions. Accordingly, I would reverse the order of the trial court and remand the matter for a new trial.
. Section 709 of the Ordinance provides:
709 Automobile and Gasoline Service Stations: Automobile and gasoline service stations shall be permitted as a conditional use in the B-2 Business District subject to the following minimum conditions:
709.01 Minimum area of lot shall not be less than 1,800 square feet (167.22 sq. m) and lot width shall be not less than 100 feet (30.48 m) on any street providing access thereto.
709.02 No structure or gasoline pumps shall be placed closer than 20 feet (6.10 m) to the curb line of any street.