Dissenting Opinion by
Judge Manderino:The Norristown Borough Zoning Ordinance states that “whenever a nonconforming use of a building or portion thereof, has been discontinued for a period of at least one (1) year such nonconforming use shall not thereafter be reestablished, and the future use shall be in conformity with the provisions of this Ordinance.” Borough of Norristown Zoning Ordinance, Art. IV, Section 19(5), 1956. Here, the majority affirms the decision of the Norristown Zoning Board and of the lower court that the evidence was sufficient to show an abandonment of the nonconforming use on the Marcheses’ property for a period of at least one year. *103Whether or not an abandonment has occurred is a factual question, but abandonment cannot be proven merely by a failure to use property for any given time. In deciding that a one story office building had not lost its right to continue as a nonconforming use, the Supreme Court in Appeal of Township of Upper Darby, 391 Pa. 347, 138 A. 2d 99 (1958), said that, “there is no evidence of intention to abandon the nonconforming use. No physical changes were made in the building, nor does it appear that its basic character was altered.” (Emphasis added.)
Thus, it is evident that an intention to abandon a nonconforming use must be found before it can be concluded that abandonment has occurred. There was never any intention to abandon in the case of the Marcheses’ property. The garage in question was built in 1922 to house trucks and other equipment. It became a nonconforming use in 1933 and continued to be used by the owners in the same way until 1960, when the garage was leased to Mobile Units Company. Mobile Units used the garage for the storage and installation of equipment on trucks and occupied the garage until January of 1964. The majority opinion indicates that Mobile Units may or may not have paid the total rent due to Márchese. However, nowhere is there any evidence to contradict the fact that rents were regularly received by Márchese from Mobile Units until their departure in 1964. Thereafter, the owners used the garage for storage until 1968 when it was rented to Monastero. This appeal is the result of an attempt to prohibit Monastero from using the garage to store his trucks.
It Avould be very difficult to assume an intention to abandon Avhen there Avas never even any manifestation of abandonment. The garage in question has been used consistently since 1922 as storage for trucks and equipment. The fact that the garage may have been fuller or busier at some times does not justify the conclusion *104that the times of lesser activity were an abandonment; of the. nse, absent any intention or manifestation by-the ; owner to abandon. The lower court erred in -..its; con-f elusion that an- abandonment- had occurred. .: ' - - ■
The majority also claims that the Marchesés are greatly restricted in the. use of their garage because of provisions of the zoning ordinance which state.that “a nonconforming use of a building may be-changed to another nonconforming use of the same or. of a more restrictive classification” and that “whenever a nonconforming use of a building has been changed to a mofé restricted use or to a. Conforming nse, such use shall not thereafter be changed to a less restricted, use.”. Borough of Norristown Zoning Ordinance, Art. IV,' Section 19(4), 1956. This claim is based on. the assumption that the uses to which the garage was put first by Mobile Units, and secondly by the new tenant,. Monastero, were less restricted than the use to- which the garage was being put by the owners when it originally became a nonconforming use. Because the majority decides that these uses were less restricted than the original use, it concludes that they are not permitted under the above provisions of the zoning ordinance.
It is true that the ordinance clearly states that á nonconforming use may not be changed to another less' restricted nonconforming use. However, there is no section of the ordinance defining these degrees of restriction. Thus, the decision of what is a more restrict-, ed use or a less restricted úse is, at most,' arbitrary.
It is possible that there could be legitimate classifications of what uses are more restricted or less restricted than others. However, to be. valid, these classifications would have to meet two conditions: in the first place, they would have to be clearly spelled out in the zoning ordinance and secondly, they would have to have a rational basis. ..Since there are no such classifications spelled out in the Norristown Zoning Ordinance, *105the references to “more restricted uses” and “less restricted uses” are meaningless.
In addition, it seems unlikely that the Borough of Norristown could introduce into its ordinance rational classifications of what is a more restricted use or a less restrictive use which would put the present use of this garage in a less restricted classification than the original nonconforming use. The attempt to draw a distinction between the original use of the garage by the Marcheses (the storage of trucks and equipment) and the use of the present tenant, Monastero (storage of hauling and dump trucks) is a mere academic exercise. In any event, the absence of any guidelines in the ordinance makes the determination that one use is more or less restricted than another completely arbitrary.
I would reverse the order of the lower court on the basis that there was never any abandonment of a valid nonconforming use and tha,t the present use is a continuation of a permissible nonconforming use.