Dissenting Opinion by
Judge Menceb :I respectfully dissent.
Regulation of lot size has been held by this court to be a proper function of zoning when it is reasonably related to the public health, safety, or welfare and does not have an exclusionary purpose or effect. DeCaro v. Washington Township, 21 Pa. Commonwealth Ct. 252, 344 A.2d 725 (1975).
Unquestionably, Sections 203.2 and 203.9 of the' Ordinance impose restrictions on those owning farmland in Hopewell Township. Unless a property owner is able to sell á portion of his parcel to the owner of an adjacent “bona fide” farm, the subdivision of prime — not all — agricultural zoned land is limited to five lots per tract to be used for residential purposes, each not to exceed 1% acres in size.
In National Land & Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 523, 215 A.2d 597, 607-08 (1965), our Supreme Court stated: “Every zoning case involves a different set of facts and circumstances in light of which the constitutionality of a zoning ordinance must be tested. Therefore, it is impossible for us to say that any minimum acreage.requirement is unconstitutional per se.”
The law in this Commonwealth is that there is a presumption of constitutional validity that attends legislative enactments, including those of municipal bodies in the form of ordinances. A further rule is that the burden of proof, when legislation is under attack on constitutional grounds, is on the one so asserting and never shifts. Bilbar Construction Co. v. Easttown Township Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958).
*588In the instant ease, the Board made findings of faet 20 and 23, basing them on substantial evidence:
(20) The agricultural acreage of Hopewell Township is of such quality as to be worthy of preservation and the preservation of such is consistent with York County needs and planning goals as expressed in the County Land Use Plan and in the Agricultural Preservation Study.
(23) Productivity of farms and efficiency of farming operations would be decreased by the division of productive farms into ten (10), twenty (20) or less than fifty (50) acre tracts and in addition, interfere with conservation practices.
With these findings of fact in mind, I am in full agreement with the following portions of Judge Cassimatis ’ dissenting opinion filed in the lower court:
Sections 203.2 and 203.9 of the zoning ordinance relate in a positive way to the planning goals and policy of the township. They provide the opportunity for some limited development, but not at the expense of carving up rural landscape into ‘farmettes’. Permitting one-acre lots throughout prime agricultural zones would have a negative impact in prime agricultural tracts because of the potential of the latter being carved up into units no longer viable for farming and, at the same time, would mean less housing units going into residential areas, thus making it more expensive to provide services and facilities in the residential zones to a few number of housing units. The trend in York County is toward increased size of farming operations.
*589. . . The ordinance provides residential units in residential zones as well as non-prime agricultural zones in numbers sufficient to meet the projected growth of the Township for the next twenty years. Owners of prime agricultural land can sell the entire tract to whomever they please. Such owner’s right to subdivide is limited to five lots for residential purposes of one and one-half acres maximum size. Such subdivided residential lots and the retained prime agricultural land may be conveyed to whomever the owner chooses. The Township has regulated the use of the land and has not proscribed to whom the land may be conveyed. In fact, the right to subdivide even the retained prime agricultural use portion is permitted if the subdivided part is added to an adjoining bona fide farm. I do not find such restrictions unreasonable in light of the need to preserve prime agricultural land. The evidence before the board clearly shows that the smaller the size of agricultural land, the-less likely it is to continue in agricultural use. The farming efficiencies and economic superiority of larger agricultural tracts is well established in the record. (Emphasis in original.)
Accordingly, where no additional testimony was taken by the lower court, our function on this appeal is to examine the decision of the Board — that the requirements of Sections 203.2 and 203.9 of the zoning ordinance are reasonably related to the preservation of the prime agricultural character of the area and are constitutional — to determine whether the Board committed an abuse of discretion or an error of law. My reading of this record convinces me that it did not and, accordingly, I would revetse the order of the lower court.
*590I will conclude this dissent with the apt observation made by our Supreme Court in Bilbar Construction Co. v. Easttown Township Board of Adjustment, supra, which is equally applicable here:
While the promotion of the public health, safety, morals or general welfare is the test for checking subjectively whether a municipality’s exertion of its constitutional power to zone has been exceeded, courts do not apply the criteria in a vacuum. Someone must be injured by the ordinance’s restrictions in order to raise the constitutional question, and the applicable objective test is whether the ordinance operates in- an arbitrary, capricious, discriminatory or confiscatory manner as to the property of the complainant. The latter inquiry calls for judicial determination. But, as to the former, what serves the public interest is primarily a question for the appropriate legislative body in a given situation to ponder and decide. And, so long as it acts within its constitutional power to legislate in the premises, courts do well not to intrude their independent ideas as to the wisdom of the particular legislation. Specifically, with respect to zoning enactments, judges should not substitute their individual views for those of the legislators as to whether the means employed are likely to serve the public health, safety, morals or general welfare.
393 Pa. at 72,141 A.2d at 856.
Judge MacPhail joins in this dissent.