Dissenting Opinion by
Judge Kramer :.I most respectfully dissent for the reason that my review of the record in this case leads me to believe that there may have been a taking of the Gaebel property by the municipality within the meaning and intent of the Pennsylvania Constitution of 1968.
The principle of law that the sovereign shall not take private property for public use without compensation is as deep-seated in the common law as any other principle of law. As far back as June 15, 1215 A.D., we find in the Magna Charta several references to this principle (e.g., Section 39). Blackstone (at 1 Blackstone Commentaries 139) in commenting on what was the “third absolute right,” viz., property, highlighted the principle when he wrote: “And by a variety of ancient statutes it is enacted, that no man’s lands or goods shall be seized into the king’s hands, against the great charter,. and the law of the land; . . . unless ... it shall be redressed. ... So great moreover is the regard of the *405law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.” Hugo Grotius, the Hutch legal philosopher, reputed to be the creator of the principle of the compensation clause, in De Jure Belli et Pacis (1625), Bk. II, ch. XIV, stated: “A king may two ways deprive his subjects of their right, either by way of punishment or by virtue of the eminent power'. But if he does it the last way, it must be for some public advantage, and then the subject ought to receive, -if possible, a just satisfaction for the loss he suffers, out of the common stock.” This principle has been contained not only in the Federal Constitution, but in every constitution of this Commonwealth to the present time. The Pennsylvania Constitution of 1968, in Article I, Section 10, says in pertinent part: “. . . nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.” In Article N, Section 4, we find: “Municipal and. other corporations invested with the privilege of taking private property for public use shall make just compensation for property, taken, injured or destroyed by the construction or enlargement of their works, highways or improvements and compensation shall be paid or secured before the taking, injury or destruction.” The General Assembly of Pennsylvania with the intent and purpose of cariying out the mandate of these constitutional provisions passed the Eminent Domain Code, Act of June 22, 1964, Spec. Sess., P. L. 84, as amended, 26 P.S. §1-101 et seq., wherein Section 502, 26 P.S. §1-502 states: “(e) If there has been a compensable injury suffered and no declaration of taking therefor has been filed, a condemnee may file a petition for the appointment of viewers substantially in the form provided for in subsection (a) of this section, setting forth such injury.” The Gaebels filed such a petition for the appointment Of viewers.
*406Another principle of law, which is well-established in this Commonwealth, is that legislation, including zoning ordinances, is presumed to be constitutional. Anyone so attacking the constitutionality of such legislation in this Commonwealth has a heavy burden. Gaudenisia, Inc. v. Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 355, 287 A. 2d 698 (1972); Nagorny v. Zoning Hearing Board, 4 Pa. Commonwealth Ct. 133, 286 A. 2d 493 (1971); St. Vladimir’s Ukranian Orthodox Church v. Fun Bun, Inc., 3 Pa. Commonwealth Ct. 394, 283 A. 2d 308 (1971). It is interesting to note in this case that no one is attacldng the constitutionality of the zoning ordinance in question. All parties have apparently presumed the zoning ordinance and regulation in question to be constitutional, and so we must also make such a presumption. This writer is well aware of the development of the relatively recent principles of law governing zoning, over the past 50 years in this country. It goes without question that a person may use Ms property in any way he sees fit so long as he doesn’t violate the Constitution, create a nuisance, or violate some law including zoning ordinances. See Lord’s Appeal, 368 Pa. 121, 81 A. 2d 533 (1951). No question is being raised herein that one’s property may not be regulated by a zoning ordinance under the police power of government whereby the health, welfare and safety of the public are to be protected. TMs dissent does not question the majority’s statement of law that a challenge to the validity of a zoning ordinance must be carried out through the exclusive remedies provided for in the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P. L. 805, as amended, 53 P.S. §10101 et seq. The problem, however, as this writer sees it, is that no one is challenging the validity of the zoning ordinance in question. The questions should be whether, by virtue of this zoning regulation, the action of the muMcipality was in fact a regulation *407under the police powers of the sovereign for which there was no taking and there are no damages forthcoming to the property owner, or whether in fact there was a taking of the Gaebels’ property without compensation. It is conceivable that if a board of view was established, it could decide that there was no taking or damages to the Gaebels. Whether there was a taking is a combined question of fact and law which cannot be decided without a record made. The final determination cannot be made on the existing pleadings.
As this writer views the record in this case, there could be a difference between zoning regulations (such as setbacks) which are equally applicable to all within the zoning area for the benefit of the municipality and all the property owners in the municipality, and a zoning regulation applicable to but one property owner (not applicable to all the property owners in the municipality) which is for the benefit of all the property owners in the municipality excepting only the property owner against whom the regulation is applicable. In this latter case, I believe such a regulation is in fact a taking. Until we have all of the facts, we cannot determine this issue. Obviously, the facts cannot be determined until there is a hearing. If it could be developed in this case that the Gaebels’ property has been singled out as the sole property to be used as a flood plain for the protection of the municipality and its property owners, and the restrictive regulations are imposed in such a way that for all practical purposes the Gaebels have no use of this property, then it is clear to me that there has been a taking.
It seems to this writer that if a property owner is entitled to an eminent domain proceeding for the taking of his property by virtue of the fact that airplanes cross over and invade his property in the vicinity of an airport, thereby reducing the use of his property to a *408minimum,1 then the restrictive use of the Gaebels’ property through the flood plain regulation is likewise a condemnation case. In the case of Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 67 L. Ed. 322 (1922), Mr. Justice Holmes stated: “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process [and eminent domain] clauses are gone. One fact for consideration in determining such limits is the extent of the dimunition. When it reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular" facts. The greatest weight is given to the judgment of the legislature but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.” (Emphasis added.) 260 U.S. at 413. Justice Holmes also stated: “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. ... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said, this is a question of degree — and therefore cannot be disposed of by general propositions.” 260 U.S. at 415-16.
*409It seems to this writer that the question of whether an ordinance in effect creates a “taking” or is a mere “regulation” should be put to the following four part test:
(1) What is the nature of the harm caused by the owner’s use of the property and the manner of causing that harm?
(2) What is the nature or character of the “taking” or “regulation”?
(3) What is the magnitude of the “taking” or extent of interference with the property interest?
(4) What is the extent of the public interest being protected?
In the case of Morris County Land Improvement Company v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A. 2d 232 (1963), the New Jersey court determined that there was a compensable taking where the municipal government, through á zoning ordinance, restricted the use of certain swampy land for, among other things, flood control purposes. Although that court declared the zoning ordinance unconstitutional, it recognized that where such governmental actions treated the land as a public facility for the benefit of the local government and its people, there was a compensable taking despite the facade of a mere regulation. See also Andress v. Zoning Board of Adjustment, 410 Pa. 77, 188 A. 2d 709 (1963).
In the case before us, why should the Gaebels be forced to subsidize and bear the cost of a resource acquisition of Thornbury Township? If the Township needs their property to protect the municipality) it may take the property, but it must also pay for such taking.
Applying the facts of this case, as we háve them to the proffered four part test, I suggest:
(1) Neither the-Gaebels’ property nor its use creates a nuisance or harm to neighboring properties. Natural precipitation causes the problems.
*410(2) The nature of the “regulation” or “taking” is the severe restriction on the use of the land.
(3) The magnitude of the taking should be recognized as onerous and oppressive. The Gaebels cannot make reasonable use of their property.
(4) The public interest is found in a governmental functional use of Gaebels’ land as a public facility for the benefit of the municipality and other land owners, without any apparent reciprocal benefit in the Gaebels.
If further proof were needed, reference should be made to Section 413 of the Pennsylvania State Highway Law, Act of June 1, 1945, P. L. 1242, as amended, 36 P.S. §670-413, where the Legislature recogized as a compensation matter under eminent domain the taking of one’s land for a “free and unobstructed view” across lands at intersections of highways, as a matter of highway safety. The clincher for the purposes of this case is that Section 413 includes a provision for permitting the owner of such land to use same for pasture and the growing of certain crops, much like the provision of Thornbury Township’s flood plain zoning ordinance.
We should never permit pilferage through the police power. Would we ever permit property to be taken for a police station, without compensation, just because of the great need for police protection in the area? In Goldblatt v. Town of Hempstead, 369 U.S. 590, 8 L. Ed. 2d 130 (1962), Mr. Justice Clark stated:
“If this ordinance is otherwise a valid exercise of the town’s police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional. . . .
“This is, not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation.” 369 U.S. at 592, 594.
In conclusion, I would hold the zoning ordinance constitutional since no party has even suggested other*411wise. I can find no support for tbe proposition that we can force a citizen to contest the constitutionality of a zoning ordinance so as to protect his constitutional property rights. I can find statutory authority for the eminent domain procedure chosen by the Gaebels in their attempt to prove that Thornbury Township took their property via the flood plain zoning ordinance. Therefore, I would reverse the court below, overrule the Preliminary Objections, and order compliance with the eminent domain statute.
Judge Crumlish, Jr., joins in this Dissenting Opinion.
Griggs v. Allegheny County, 402 Pa. 411, 168 A. 2d 123 (1961), rev'd, 369 U.S. 84 (1962), reh. denied, 369 U.S. 857 (1962).