People v. Bondi

CourtNew York Town Court
Writing for the CourtC. BENN FORSYTH
Citation104 Misc.2d 627,429 N.Y.S.2d 146
PartiesPEOPLE of the State of New York, Plaintiff, v. Guy BONDI, Defendant.
Decision Date09 May 1980

Page 146

429 N.Y.S.2d 146
104 Misc.2d 627
PEOPLE of the State of New York, Plaintiff,
v.
Guy BONDI, Defendant.
Town Court of Webster.
May 9, 1980.

Page 147

Robert Abrams, Atty. Gen., for People of the State of New York; William J. Goldman, Asst. Atty. Gen., of counsel.

Bondi & Murch, for defendant; David R. Murch, Webster, of counsel.

DECISION

C. BENN FORSYTH, Judge:

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

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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...

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2 practice notes
  • Wedinger v. Goldberger
    • United States
    • United States State Supreme Court (New York)
    • February 18, 1986
    ...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 The Legislature recognized that changed conditions might necessitate readjustment of the tentative maps (and for that matter, the fin......
  • Waterside Associates v. New York State Dept. of Environmental Conservation
    • United States
    • United States State Supreme Court (New York)
    • January 27, 1986
    ...§ 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......
2 cases
  • Wedinger v. Goldberger
    • United States
    • United States State Supreme Court (New York)
    • February 18, 1986
    ...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 The Legislature recognized that changed conditions might necessitate readjustment of the tentative maps (and for that matter, the fin......
  • Waterside Associates v. New York State Dept. of Environmental Conservation
    • United States
    • United States State Supreme Court (New York)
    • January 27, 1986
    ...§ 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......

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