People v. Bondi

CourtNew York Town Court
Citation94 Misc.2d 298,404 N.Y.S.2d 521
Decision Date10 April 1978
PartiesPEOPLE of the State of New York v. Guy T. BONDI.

Page 521

404 N.Y.S.2d 521
94 Misc.2d 298
PEOPLE of the State of New York
v.
Guy T. BONDI.
Webster Town Court, Monroe County.
April 10, 1978.

Page 522

James R. Vyverberg, Asst. Dist. Atty., Monroe County, for the People.

Joseph Buff, Rochester, for defendant.

DECISION

C. BENN FORSYTH, Town Judge.

This is an application to reargue a dismissal of charges, against the above-named Defendant, of altering wetlands without a permit pursuant to Article 24 of the Environmental Conservation Law. There are two charges, one occurring on the 11th day of September, 1977 and the other on the 20th day of September, 1977. It is the contention of the People that the Defendant owned wetland subject to the law, and altered them without a permit.

The threshold question is whether or not the Defendant's lands were subject to the provision of Article 24 of the Environmental Conservation Law. A "fresh water wetland" is defined under Section 24-0107 of the Environmental Conservation Law as

Page 523

"lands and waters of the state as shown on the fresh water wetlands map". It needs no citation of authority to hold that when the particular statute defines specific property or conduct that is to be regulated or proscribed, then only conduct or property falling within that definition is subject to the provisions of the particular law. The Defendant contends that his lands have never been mapped under the procedures set up by the Environmental Conservation Law, and thus his lands are not subject to the rules prescribed by said law.

Under the Environmental Conservation Law, Section 24-0301 the Commissioner is to make a study and inventory of wetland and then to prepare a "Tentative Fresh Water Wetlands Map". After that certain studies are made and hearings and, in a proper case, a final Wetlands Map is prepared and filed. This Court holds that no marsh or other such areas in the State of New York, regardless of its other qualifications, can be a "Fresh Water Wetland" and subject to the provisions of Article 24 of the Environmental Conservation Law, until such time as it appears on a Tentative or Final Fresh Water Wetlands Map prepared by the Commissioner. The People argue that pursuant to Section 24-0703(4) of said Law that no person shall fill wetland regardless of whether or not they are shown on a map. This sub-paragraph states "prior to the promulgation of the final fresh water wetlands map in a particular area . . . no person shall conduct . . . any activity for...

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