
    Donald C. Albright et al., Appellants-Respondents, v. Town on Manlius et al., Respondents-Appellants. Eloise Schaff, Respondent, v. Town of Manlius et al., Respondents-Appellants.
    Argued January 19,1971;
    decided March 3,1971.
    
      
      James E. Wilber for appellants-respondents.
    I. The contested amendment, designed solely to accommodate the construction of a shopping center at Andrea Acres, is not in accordance with a comprehensive plan when enacted without regard to how other properties were to be used and as the product of a piecemeal approach rather than a fundamental land use policy. (Udell v. Haas, 21 N Y 2d 463; Westwood Forest Estates v. Village of South Nyack, 23 N Y 2d 424.) II. The conditions ’ ’ of the shopping center use at Andrea Acres were an integral part of any plan envisioning the use; and since the conditions were not validly imposed, the zone change did not conform to the plan. (Walus v. Millington, 49 Misc 2d 104, sub nom. Walus v. Gordon Realty Corp., 31 A D 2d 777; Mazzarra v. Town of Pittsford, 34 A D 2d 90.) III. Requirements for setbacks, side yards, signs and parking are regulations under the provisions of the Town Law, and such regulations are what distinguish one district from another. The special regulations of parking, setbacks, side yards and signs provided for Andrea Acres in effect created a special shopping center district — distinguished by these regulations; and they were improperly adopted for want of public notice and hearing as required by section 264 of the Town Law. IV. Church v. Town of Islip was not concerned with the public hearing issue and is not controlling in this case. (Church v. Town of Islip, 8 N Y 2d 254.)
    
      
      James M. Hartman for Fayetteville Plaza, Inc. and Ferdinand L. Picardi for Town of Manlius (Robert G. Gebhardt and SusánS. Bobfogel of counsel), for respondents-appellants.
    I. The Appellate Division correctly recognized that the trial court improperly substituted its judgment for the judgment of the Town Board in the exercise of that board’s legislative function. (Mary Chess, Inc. v. City of Glen Cove, 18 N Y 2d 205; Church v. Town of Islip, 8 N Y 2d 254; Kuenzli v. Stone, 112 Misc. 125; Barry v. Town of Glenville, 9 A D 2d 822, 8 N Y 2d 1153; Wiggins v. Town of Somers, 4 N Y 2d 215; Gullo v. Village of Lindenhurst, 16 Misc 2d 761, 13 A D 2d 544; Matter of Davis v. Board of Elections, 5 N Y 2d 66; De Veau v. Braisted, 5 N Y 2d 236, 363 U. S. 144.) II. The decision of the Town Board to rezone the subject property for a shopping mall is consonant with the legitimate functions of zoning. (Udell v. Haas, 21 N Y 2d 463; Fieldston Garden Apts. v. City of New York, 7 Misc 2d 147, 3 A D 2d 903; Miner v. City of Yonkers, 19 Misc 2d 321, 9 A D 2d 907.) III. The Appellate Division correctly held that the amendment to the zoning ordinance here in issue was enacted in accordance with a comprehensive plan within the meaning of section 263 of the Town Law. (Rodgers v. Village of Tarrytown, 302 N. Y. 115; Beneke v. Board of Appeals of Town of Manlius, 51 Misc 2d 20.) IV. The zoning amendment here in question, taken alone, is in accordance with the comprehensive plan of the Town of Manlius, and is adequate to restrict development to uses compatible therewith. (Westwood Forest Estates v. Village of South Nyack, 23 N Y 2d 424.) V. The conditions imposed on the development of Andrea Acres by Fayetteville Plaza, Inc. were related only to the developer’s specific proposal and are not an integral part of the amended ordinance. VT. The conditions imposed by the Town Board, related to the specific property rezoned, were not regulations uniform throughout the use district within the meaning of section 262 of the Town Law of the State of New York and, thus, did not require a public hearing and notice thereof within the language of section 264 of the said Town Law. (Matter of Magde v. Crowley, 200 Misc. 109; Matter of Barker v. Boettger, 124 Misc. 461; Church v. Town of Islip, 8 N Y 2d 254; Tata v. Town of Babylon, 52 Misc 2d 667; Levine v. Town of Oyster Bay, 46 Misc 2d 106.) VII. Plaintiffs failed to prove that they were prejudiced by the lack of notice of public hearing, and therefore have no standing to raise the issue. (2525 East Ave. v. Town of Brighton, 33 Misc 2d 1029, 17 A D 2d 908; Matter of Gerling v. Board of Zoning Appeals, 11 Misc 2d 84, 6 A D 2d 247.) VIII. Although notice of public hearing on the conditions was unnecessary, in fact, adequate notice was given.
   Bergan, J.

The amendment by ordinance of January 21, 1967 of the general zoning ordinance of the Town of Manlius by its Town Board to create a new classification, ‘ Regional Shopping District ’ ’, and to change the classification of the 50-acre tract, Andrea Acres, from residential shopping district to the new regional shopping district was in conformity with the statutory powers of the board and the Appellate Division was right in sustaining it.

The record discloses a careful and long-continued study by the board of the problem of how best to accommodate the need for commercial development in the town and the over-all protection of residential rights and property values.

There are inherent difficulties in demonstrating the existence of the “comprehensive plan” required by section 263 of the Town Law. Those difficulties were examined in Udell v. Haas (21 N Y 2d 463). The town in the present case has sufficiently demonstrated both the existence of a sufficient plan and the conformity with it of the challenged ordinance to meet the statutory test.

Thus, the conclusion reached at the Appellate Division that the board “ acted for the benefit of the community as a whole to establish limited commercial development in the Town with suitable protection to the surrounding properties ” is warranted by this record.

The second, and related, ordinance enacted the same day imposing restrictions and conditions upon the use of the property as rezoned was held invalid by the Appellate Division, sustaining in this respect the judgment granted at Special Term.

Invalidity was not based on a consideration of the propriety or merits of the restrictions which the Appellate Division noted ‘ were imposed for the protection of neighboring owners, including respondents [plaintiffs] ”, but because of a purported defect in notice of hearing as to these conditions.

The notice of the hearing on the proposed zoning change stated that the board “ may impose such reasonable conditions as to cause the least disturbance of and the greatest harmony with adjoining or adjacent residential districts Plaintiffs were represented by counsel who spoke at length at the hearing which was attended by some 700 interested persons and lasted many hours.

The Appellate Division observed that if plaintiffs had more precise notice of what conditions would have been imposed, they would have been able ‘ ‘ to urge even more stringent conditions ”. But in the elaborate briefs and arguments in this court by plaintiffs, there is not the slightest suggestion of any additional conditions to be imposed appropriate for their protection to justify any need to remit to the board to consider additional protection. Indeed, many of the conditions followed recommendations of the Onondaga County Planning Board.

No prejudice, therefore, has been shown by plaintiffs in the imposition of the conditions which, here, as in Church v. Town of Islip (8 N Y 2d 254, 259), “ were intended to be and are for the benefit of the neighbors

Plaintiffs argue, rather, that the zone change ordinance and the conditions imposed on use are so much ‘ ‘ an integral part of any plan which would justify the change ” that if the conditions are “ exorcised ” the whole zoning amendment “must fall If this suggestion is followed literally it would mean that plaintiffs, without showing any prejudice to them in the nature of the conditions imposed for their benefit, would be able to employ a purported notice deficiency as to the conditions alone to invalidate the entire zoning ordinance.

The order should be modified by reversing so much thereof as holds the ordinance imposing conditions on the use of the regional shopping center invalid; and otherwise affirmed, without costs.

Chief Judge Full and Judges Jasen and Gibson concur with Judge Bbrgan ; Judges Scileppi and Breitel dissent in part with respect to the issue of conditions and vote to affirm for the reasons stated in the opinion at the Appellate Division; Judge Burke taking no part.

Ordered accordingly.  