concurring.
While I agree with the result reached by the majority, that Section 805 of Ordinance No. 243 is invalid in this case, I must disagree with the finding that any provision for the amortization of nonconforming uses would be per se confiscatory and unconstitutional. I would uphold the Commonwealth Court’s decision relying on Sullivan v. Zoning Board of Adjustment, 83 Pa.Commw. 228, 478 A.2d 912 (1984), and hold that a reasonable amortization provision is valid if it reflects the consideration of certain factors.1 The instant provision, however, falls short of the reasonableness requirements and therefore must be struck down.
The weight of authority supports the conclusion that a reasonable amortization provision would not be unconstitutional. See generally 22 A.L.R.3d. 1134 (1968). It has been stated that a blanket rule against amortization provisions should be rejected because such a rule has a debilitating effect on effective zoning, unnecessarily restricts a state’s police power, and prevents the operation of a reasonable *197and flexible method of eliminating nonconforming uses in the public interest. Lachapelle v. Goffstown, 107 N.H. 485, 225 A.2d 624 (1967). The New Hampshire court found acceptable amortization provisions which were reasonable as to time and directed toward some reasonable aspect of land use regulation under properly delegated police power. Id. Other cases have considered several factors in determining the reasonableness of these provisions. Those factors weigh any circumstance bearing upon a balancing of public gain against private loss, including the length of the amortization period in relation to the nature of the nonconforming use, Gurnee v. Miller, 69 Ill.App.2d 248, 215 N.E.2d 829 (1966); Eutaw Enterprises, Inc. v. Baltimore, 241 Md. 686, 217 A.2d 348 (1966); length of time in relation to the investment, id.; and the degree of offensiveness of the nonconforming use in view of the character of the surrounding neighborhood. See City of Los Angeles v. Gage, 127 Cal.App.2d 442, 274 P.2d 34, 43-44 (1954); Grant v. Baltimore, 212 Md. 301, 129 A.2d 363 (1957); Lachapelle v. Goffstown, supra.
Our case law has expressed a preference for the protection of nonconforming uses in the face of changing zoning ordinances. See Appeal of Miller, 511 Pa. 631, 515 A.2d 904 (1986); Penn Township v. Yecko Bros., 420 Pa. 386, 217 A.2d 171 (1966). That protection, however, is not absolute. It has long been recognized that a lawful, pre-existing, nonconforming use is permitted to continue notwithstanding that the use is an obstruction to a public purpose, Bachman v. Zoning Hearing Board of Bern Township, 508 Pa. 180, 187, 494 A.2d 1102, 1105 (1985), provided that the use does not enlarge beyond its natural expectations or move from its original setting. The owner of property to which a lawful nonconforming use has attached enjoys a vested property right thereto unless it is a nuisance, or abandoned, or is extinguished by eminent domain. Gross v. Zoning Board of Adjustment of the City of Philadelphia, 424 Pa. 603, 227 A.2d 824, 827 (1967). In balancing the competing interests of zoning restrictions and property owners’ rights, *198this Court has never before considered a zoning ordinance which expressly provides for the amortization of a pre-existing, lawful, nonconforming use. I believe that a per se prohibition against amortization provisions is too restrictive. A community should have a right to change its character without being locked into pre-existing definitions of what is offensive. As this Court has also noted, “nonconforming uses, inconsistent with a basic purpose of zoning, represent conditions which should be reduced to conformity as speedily as is compatible with the law and the Constitution.” Hanna v. Board of Adjustment of Borough of Forest Hills, 408 Pa. 306, 312-13, 183 A.2d 539, 543 (1962). I believe that amortization provisions are an effective method of reconciling interests of the community with those of property owners. Where the provisions are reasonable in consideration of the elements herein discussed, they provide adequate notice to the property owner so that no deprivation of property or use thereof is suffered, yet they simultaneously afford a township the opportunity to alter the character of its neighborhoods when the alteration takes the form of a reasonable land use regulation.
In this case, however, the amortization provision is not a reasonable one because it fails to provide adequate time for elimination of the nonconforming use. The period allowed for the dissolution of appellant’s business is ninety days. Certainly ninety days is an insufficient period of time to allow a merchant to close a business. Any contractual obligations appellant has incurred in anticipation of operating the business probably cannot be terminated within such a short period of time without severe hardship on appellant’s part. Three months also would not permit appellant to obtain an alternative means of income. Moreover, forcing appellant to liquidate his enterprise within ninety days could prevent him from obtaining a reasonable return on his investment. I therefore agree that the instant provision is confiscatory.
PAPADAKOS, J., joins this concurring opinion.. As the Commonwealth Court noted in Sullivan v. Zoning Board of Adjustment, 83 Pa.Commw. 228, 244, 478 A.2d 912, 920 (1984):
Each case in this class must be determined on its own facts; and the answer to the question of whether the provision is reasonable must be decided by observing its impact upon the property under consideration. The true issue is that of whether, considering the nature of the present use, the length of the period for amortization, the present characteristics of and the foreseeable future prospects for development of the vicinage and other relevant facts and circumstances, the beneficial effects upon the community that would result from the discontinuance of the use can be seen to more than offset the losses to the affected landowner.