I dissent from the majority’s holding which mandates a trial to determine “whether there is a reasonable relationship between the ordinance under challenge and the exercise of the Town of Southampton’s police power in the furtherance of public safety and welfare”, and would dismiss those portions of the complaints which allege such a violation. I also dissent from the majority’s holding which, in effect, dismisses those portions of the plaintiffs’ causes of action which allege a violation of their First Amendment rights, since I concur with the conclusion of Mr. Justice Shapibo that the ordinance herein represents an unconstitutional abridgment of the plaintiffs’ First Amendment rights
*387Except for the determination of our Court of Appeals in Matter of Cromwell v Ferrier (supra), I would have no hesitancy in declaring that the ordinance herein is confiscatory and not related to the police power. The majority relies on Cromwell to support its holding that plaintiffs’ theory which alleges that the ordinance is confiscatory and unrelated to the police power, is a "viable” one, the resolution of which must await the outcome of a Ml trial.
My reading of Cromwell (supra) does not support a conclusion that a trial is necessary on the police power theory. Rather, it supports, I believe, my conclusion that the portions of the complaints which allege an invalid exercise of the police power should have been dismissed.
In dealing with what the majority concedes is the "very” issue involved herein, the Court of Appeals in Cromwell upheld, as a valid exercise of the police power, an ordinance implicitly banning all nonaccessory signs throughout the Town of Wallkill and dismissed the petition therein.
A reading of the Cromwell decision, as well as the record and briefs filed therein, indicates that the ordinance therein, insofar as it banned the erection of nonaccessory signs throughout the town, was virtually identical to the ordinance involved at bar. Although the court in Cromwell noted that not all regulations based on aesthetic considerations would suffice to justify the prohibition of a legitimate business, but only regulations based on aesthetic considerations which (p 272) "bear substantially on the economic, social, and cultural patterns of a community or district”, the fact remains that in Cromwell, when faced with this particular constitutional attack on an ordinance very similar to the one at bar, the court dismissed the petition and did not remand for a trial.
Clearly, if Cromwell is the controlling precedent herein, as the majority holds, there would be no factual issues to be *388tried, and the petition would have to be dismissed. By holding that a trial is necessary in order to resolve the issues raised in the police power claim, the majority thereby precludes an accelerated review by our Court of Appeals of what, I believe, is solely an issue of law. At the same time, this holding effectively imposes upon the plaintiffs the onerous and unnecessary burden of overcoming, at a trial, the presumption of constitutionality which attaches to this ordinance.
I am constrained to file this separate dissenting opinion only because I do not agree with Mr. Justice Shapiro’s suggestion that the ordinance involved here is so different from that in Cromwell as to remove it from the controlling effect of Cromwell on the issue of confiscation and the reasonable exercise of the town’s police power. Admittedly, the ordinance in Cromwell did not provide, as does the ordinance here, for the eventual elimination of all existing billboards in the town in addition to banning all new nonaccessory signs. However, that difference is insignificant in light of the holding of the Court of Appeals in Matter of Harbison v City of Buffalo (4 NY2d 553), that prior nonconforming uses may be eliminated through amortization over a reasonable period of time.
Accordingly, I concur in the conclusion reached by Mr. Justice Shapiro in his dissenting opinion with regard to the free speech and press claims, but not as to the police power claims.
Hopkins, Acting P. J., and Titone, J., concur with Mollen, J.; Shapiro and Suozzi, JJ., dissent and vote to reverse the orders under review and to grant judgment to the plaintiff in each action (1) declaring that the provisions of the subject zoning ordinance which prohibit the maintenance and use of all billboards in all districts of the town and compel the removal as unlawful structures of all billboards erected in the town before June 1, 1975 are unconstitutional and void and (2) enjoining the enforcement of those provisions of the ordinance, with separate opinions. Each would do so on the ground that the portions of the ordinance declared to be invalid violate rights of free speech and press. Shapiro, J., would also declare those sections of the ordinance invalid as an improper exercise of the police power. Suozzi, J., would, however, dismiss those portions of the complaints which, in effect, allege an improper exercise of the police power.
Order of the Supreme Court, Suffolk County, dated March *38930, 1976 (and made in the first, second and third above-captioned actions) modified, on the law, by deleting therefrom the provisions which have the effect of denying the branches of the cross motions which sought dismissal of the first three causes of action asserted in the first above-captioned action and of the first cause of action asserted in the second and third above-captioned causes of action, and substituting therefor provisions dismissing those provisions of the said causes of action which assert the invalidity of the subject ordinance on grounds other than the assertion that the provision thereof which prohibits billboards is not reasonably related to public safety and welfare. As so modified, order affirmed, without costs or disbursements.
Order of the Supreme Court, Suffolk County, dated March 30, 1976 (in the fourth above-captioned action), as corrected by a further order of the same court, dated April 19, 1976, modified, on the law, by deleting the provision that the defendant’s motion "is otherwise denied” and substituting therefor a provision that the said motion is otherwise granted by dismissing those portions of the first, second and third causes of action which assert the invalidity of the subject ordinance on grounds other than the assertion that the provision thereof which prohibits billboards is not reasonably related to public safety and welfare and that the said motion is otherwise denied. As so modified, order affirmed, without costs or disbursements.