People v. Bondi
| Decision Date | 09 May 1980 |
| Citation | 104 Misc.2d 627,429 N.Y.S.2d 146 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Guy BONDI, Defendant. |
| Court | New York Town Court |
The Defendant, landowner, was charged with a violation of Article 24 of the Environmental Conservation Law in that he modified fresh water wetlands without a permit. The People claim that he filled in wetland, and that he removed tree stumps with a bulldozer without a permit.
The threshold question is whether or not these were wetlands subject to Article 24 of the Environmental Conservation Law. That Law states that wetlands are those shown on a map as prepared by the Commissioner. The parties concede that no such map has been prepared of the Defendant's lands. The Commissioner argued that his regulations cover alterations in lands which will eventually be mapped.
Section 24-0107(1) of the Environmental Conservation Law defines fresh water wetlands as "lands and waters of the state as shown on the freshwater wetlands map . . . ". The statute limits legally regulated wetlands to those shown on a map, preliminary or final. It therefore is clear that the legislature restricted the activities of the Commissioner to those lands shown on a properly prepared map. Any attempted regulation of lands not shown on a preliminary or final wetland map exceeds the authority granted the Commissioner under the Act and thus is illegal. An administrative body cannot act in excess of its statutory grant. The Court therefore finds that the regulations of the Commissioner of the Department of Environmental Protection be void insofar as they apply to the Defendant's unmapped lands.
The case of matter of Rappl & Hoenig, Inc. v. New York State Department of Environmental Conservation, 47 N.Y.2d 925, 419 N.Y.S.2d 490, 393 N.E.2d 485, conforms to this position. In that case the Court of Appeals specifically stated that before any consideration could be made as to permits and uses of the lands, the Court must first determine whether or not there were wetlands within the statutory definition. It sent the case back for a direct examination of this issue. In the case of matter of Spears v. Berle, 63 A.D.2d 372, 407 N.Y.S.2d 590, affirmed 48 N.Y.2d 254, 422 N.Y.S.2d 636, 397 N.E.2d 1304 the parties conceded that the lands involved were wetlands subject to regulations. Thus this issue was not before the Court. This Court has been unable to find any case permitting the regulation of unmapped lands which are contended to be wetlands in fact but not in law.
The People attempted to establish that there had been a wetland determination by...
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Wedinger v. Goldberger
...wetland, and any attempt to regulate land not shown on such map is in excess of authority granted by the Act. (People v. Bondi, 104 Misc.2d 627, 429 N.Y.S.2d 146). The Legislature recognized that changed conditions might necessitate readjustment of the tentative maps (and for that matter, t......
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Waterside Associates v. New York State Dept. of Environmental Conservation
...§ 24-0101). This article is in derogation of the common law and must be strictly construed in favor of the landowner (People v. Bondi, 104 Misc.2d 627, 429 N.Y.S.2d 146). This article contains the entire legislative scheme for preserving freshwater wetlands, including the creation of tentat......