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Lloyd A. Fry Roofing Co. v. Air Pollution Variance Bd.

Citation: 2 ELR 20514
No. No. 25359, 499 P.2d 1176/179 Colo. 223, (Colo., 07/31/1972)

Colorado's air pollution control statute and agency proceedings thereunder resulting in denial of a variance request are upheld by state supreme court. Air pollution is a legitimate subject of legislation under state police power. Statute is adequate under test for legislative standards since it describes the job to be done, who is to do it, and the scope of his authority. Prior law setting out precise standards was ineffective to apply to the many variables of the field of air pollution control. Under new law omitting such precise standards, state agency may fill in details of the enactment with specific regulations. The broad guideline of reasonableness provides sufficient standard to avoid an attack of improper delegation of legislative authority. Moreover, the act insures complete notice of conduct to be proscribed, since no penalties may be imposed until after notice is given and a series of administrative attempts at voluntary compliance made. Statute is not ex post facto law in violation of state constitution, because it specifically refers to previous standards of which plaintiff was on notice from the inception of the proceedings, on which he was cited for violation, and which the variance board employed unaltered in its determination of the variance issue.

Counsel for Plaintiff-Appellant
Ira C. Rothgerber, Jr.
Rothgerber, Appel & Powers
2910 Security Life Building
Denver, Colorado 80202

Counsel for Defendants-Appellees
Duke W. Dunbar Attorney General
John P. Moore Deputy Atty. General
William Tucker Ass't. Atty. General
Office of the Attorney General
State of Colorado
Denver, Colorado 80203

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