concurring and dissenting.
While I concur with the majority on other issues, I respectfully dissent from the portion of the majority’s opinion holding that the trial court committed reversible error by permitting testimony as to the continued use of the non-condemned portion of the subject property.
Alice Weiss, the owner of property located in the Borough of Emsworth (Borough), leased it to Amoco Oil Company for use as a gasoline station. Under the Borough’s Zoning Ordinance, the property is within a B-2 Business District, which permits gasoline stations. However, the Zoning Ordinance, inter alia, requires a lot width of no less than 100 feet from any street providing access to the lot, and that gasoline pumps had to be located at least 20 feet from the curb line. The *1382property as used was non-conforming because it varied from those provisions in that the location of the pumps was less than 20 feet from the curb line and the width of the lot was 97 feet, four inches. The Pennsylvania Department of Transportation (Penn-DOT) condemned 51256 square feet for road improvements, but that did not include either the building or gasoline pumps. While Amoco’s sub-tenant who operated the station testified that the taking, because of the road improvements, made the station more accessible to the public, it increased the nonconformity by increasing the insufficient frontage from the road, changing the lot dimensions.
Amoco claimed before the trial court that PennDOT’s take made the station illegal under the Borough Zoning Ordinance because of the increased non-conformity and they could no longer operate it.1 The trial court allowed testimony of the Borough’s Solicitor who testified that Amoco could continue to operate the station but would have to obtain a variance. A real estate appraiser for Penn-DOT also testified that the property eould continued to be used as a gasoline station because he was not aware of any case that “a property [was] shut down because its use was affected by condemnation.” After a hearing before the jury, as to Amoco, it awarded damages of $38,000.00.
On appeal, Amoco, as it did in its post-trial motions before the trial court, contends that the amount is inadequate because of the testimony of the Borough Solicitor and the Real Estate Appraiser that the property could be continued to be used as a gasoline station when it is now illegal under the Zoning Ordinance. The majority, in reversing the trial court, finds that by making that lot substandard, in effect, mandates a total take. I disagree because I believe that whether the property could be continued to be used under the Zoning Ordinance was properly admitted.
Amoco has the burden of showing that as a result of the take, it would not be allowed to operate the station. A bare assertion that the take makes it non-conforming is insufficient. It had the obligation to seek a variance from the Borough’s Zoning Board explaining that the non-conformity was created by a taking. Absent a showing that it would be detrimental to the health, welfare and safety, the Board would be required to grant the variance. To hold otherwise means if a zoning ordinance required a minimum 5,000 square feet for each residential zoning lot, and PennDOT took 10 square feet for road improvement, making the lot area deficient by that amount, and, as the majority holds, makes the lot illegal, then PennDOT would be required to totally take the house on the lot. Because Amoco failed to apply for a variance, I believe the testimony used on that basis was proper and I would affirm that portion of the trial court’s opinion.
DOYLE, J., joins in this concurring and dissenting opinion.
. The measure of damages in condemnation cases has been the difference between the fair market value of the land before the taking and the fair market value of the land after the taking, as affected by the taking, and considering all the uses to which the land might reasonably be put. Section 602(a) of the Eminent Domain Code. Where a partial taking interferes with suitable access to property rendering it unsuitable for its present use or its highest or best use, this may be considered in determining fair market value. In Re Condemnation by the Commonwealth, Department of Transportation, 93 Pa.Cmwlth. 403, 501 A.2d 1172 (1985).