Dissenting Opinion by
Judge Wilkinson :I must respectfully dissent. I agree entirely with the opinion of the Board, of the court below, and of the majority in the treatment of the question of a variance. If the zoning restrictions were constitutional, there would not be any basis for a variance. However, the Board expressly did not consider itself empowered to rule on the constitutionality of this part of the zoning ordinance. The court below, while at the beginning of its opinion stating that the constitutionality question was raised, did not consider it.
Further, I agree with the law on the constitutionality question as set forth in the majority opinion: i.e., the burden of proof in an attack on the constitutionality of an ordinance is upon the appellants, and the burden is a heavy one; the appellants must overcome the presumption of validity; and the discretionary judgment of the legislative body with regard to zoning classifications will not be interfered with except in cases where it is obvious that the classification has no relationship to the public health, safety, morals, or general welfare. Where I disagree is that I feel this is one of those instances where to me it is obvious that the classification has no relationship to the public health, safety, morals, or general welfare. In my opinion, the appellants have carried their burden of proof and have overcome the presumption.
The findings of fact acknowledged that the tract of land consists of 36,349 square feet (less than one acre), and is bounded on the west by 201.8 feet of highway, *259and on the south, east and north by lands of the Pennsylvania Turnpike Commission. Therefore, in spite of the fact that it is zoned Shopping Center, it cannot meet the minimum dimensions for a shopping center development of 300 feet on a public street and 10-acre lot size. Under such circumstances, it would seem that the constitutionality of the ordinance must turn on the justification, under the police power, of the specific restriction prohibiting a service station.
The court below properly stated that the appellants introduced a report of the Planning Agency of Plymouth Township which recommended a zoning change from Shopping Center to Commercial. Further, the court properly summarized the testimony of the four witnesses offered by the appellants. One was an engineer for the oil company who explained the method and operation of the proposed station, the size and color of the proposed buildings, etc. The second witness was a real estate representative who testified that the subject tract was particularly well-suited for use as a service station. The third witness was a traffic engineer who testified that establishing a service station at the site would not only not create a traffic hazard, but, in fact, might be a benefit to the flow of traffic. Appellants’ final witness was a city planning consultant who confirmed the testimony of the preceding two witnesses.
No witness testified to contradict or in any way throw doubt on the validity of the appellant’s testimony. Four citizens were present who responded to the Chairman’s question: “Is there anyone here who wishes to testify for or against, and to ask questions of the witnesses?” These citizens were not sworn as witnesses and, in fact, made statements of conclusions that could not be considered as testimony even if given under oath. One asked a question as to whether a large sign would be prohibited, and the response was that it would be. *260The next merely stated that the Planning Commission had turned down this request, and that he recommended the Board disregard this appeal and “leave them take it to court.” The next inquired concerning the hours of the proposed operation of the service station and observed that the application stemmed from a desire of the oil company to compete with other oil companies in the area. He concluded his remarks by saying that this area is already known as “gasoline alley, remember that.”
Bemarkably, the final citizen’s statement seems more to support the appellant’s case than to oppose it.
“As I said here, I know this has been a long evening, and I’ll make this short I’ve been active against gas stations in the past, and as I sit here I agree in part with the opinions that have been expressed by the residents of Plymouth Township, and with the comments that you made before, but I can’t help but think, as I look on that drawing, how much I prefer that picture there to the current picture of the motel-restaurant as it exists nowadays.
“This is the only point I would like to malee. We can talk about Gasoline Alley, but let’s get down to the realities of life here. I know what’s there now, but I would like to know what’s going on there one year, two years or five years from now.” (Emphasis supplied. )
Prior to 1960, this plot was zoned C-Commercial, permitting service stations. In 1960, the zoning was changed to Shopping Center District, prohibiting service stations. In 1964, the zoning ordinance was changed to permit one service station in a shopping center district. In 1968, the zoning ordinance was amended to omit gasoline service stations as a permitted use in shopping center districts. During all this time, the land across the road continued to be zoned C-Commercial.
*261In no sense could the granting of this application be construed as “spot zoning.” Indeed, to prohibit its use as a service station when it is practically surrounded by service stations (one 41 feet to the north, one 150 feet to the northwest, one 500 feet south, and one 500 feet north) would seem to be spot zoning in reverse !
Since there is an abundance of testimony that a service station here would not adversely affect the public health, safety, morals, or general welfare and not a shred of testimony that it would, and since the tract is not large enough for a shopping center district, I would declare the zoning ordinance that prohibits a service station on this lot unconstitutional in this respect as an improper use of the police power. National Land and Investment Company v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A. 2d 597 (1965).