dissenting.
I respectfully dissent. The majority opinion is based upon a misconception of the facts in this case. Appellant’s undisputed testimony was that he planted the shrubs in question in the spring of 1973, at which time they were about five feet tall. Since that time he has trimmed them so as to maintain them at the original five feet height. Because the shrubs were planted prior to the enactment of the Borough’s zoning ordinance, as a matter of law they are a nonconforming use.
With regard to nonconforming uses, the relevant section of the ordinance is section 205.1.2 which reads as follows:
205.1.2 It is the intent of this Ordinance to permit these non-conformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this Ordinance to be incompatible with the permitted uses in the districts involved. It is further the intent of this Ordinance that non-conformities shall not be enlarged upon, expanded, or extended, nor be used as grounds for adding other structures or uses prohibited in the same district, (emphasis added).
The majority, instead of basing its analysis simply on the existence of a nonconforming use, goes beyond the facts and speculates that because shrubbery is involved, the nonconforming use is expanding uncontrollably, and therefore, a violation is present. The ordinance is clear. A nonconforming use may continue until it is removed, if it is *417not enlarged. In the case at bar, there has been no expansion of the nonconforming use.
In addition, under these circumstances, the Borough is not authorized to demand the removal of a nonconforming structure, inasmuch as “[pjroperty owners have a constitutional right to continue nonconforming uses unless abandoned.” Little v. Abington Township Zoning Hearing Board, 24 Pa.Commonwealth Ct. 490, 492, 357 A.2d 266, 267 (1976). By ignoring the fact that the shrubs have been maintained at their original height, the effect of the majority opinion is to permit the taking of Appellant’s property without due process of law.
Accordingly, I would reverse Appellant’s conviction and vacate his sentence.