Lawsuit over Vail’s delivery vehicle ban awaits court decision to move forward

Judge is expected to issue a ruling in December on a temporary restraining order which currently bars town enforcement of UPS, FedEx ban

On Tuesday, Oct. 31, the presiding United States District Judge Charlotte Sweeney issued a temporary restraining order which bars the town of Vail from enforcing its ban on high-volume commercial carriers in its pedestrian areas.
Ali Longwell/Vail Daily

The town of Vail’s ban on delivery trucks in its pedestrian villages continues to be under scrutiny as proceedings for the lawsuit brought by the Colorado Motor Carriers Association kicked off in November. 

The association — an organization representing and advocating for Colorado’s trucking industry — filed the lawsuit on Friday, Oct. 20 in the United States District Court for the District of Colorado. The suit claims that the town’s ordinance removing delivery vehicles from Vail Village and Lionshead Village is anti-competitive and preempted by federal law.

On Tuesday, Oct. 31, the presiding United States District Judge Charlotte Sweeney issued a temporary restraining order on the town’s ordinance. The order only bars the town from enforcing the most recent changes to the ordinance, which added high-volume commercial carriers to the list of vehicles banned from the village areas.

With this temporary restraining order, high-volume commercial carriers — namely, UPS and FedEx — are able to deliver in both villages as they have in the past, by driving through the pedestrian areas.  

Since the initial lawsuit filing, the District Court has held two hearings: an evidentiary hearing on Thursday, Nov. 9, and a hearing on a preliminary injunction on Wednesday, Nov. 15.

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The hearings gave both parties a chance to present their arguments before the federal court. According to Russ Forrest, Vail’s town manager, based on these initial arguments, the judge will make a ruling on whether the temporary restraining order will remain in place. This judgment is expected in early- to mid-December.

This decision could impact the future of the suit.  

“If the judge rules with us then the TRO goes away, we enforce the loading and delivery ordinances, and the CMCA could continue to pursue a hearing on the actual law behind this issue,” Forrest wrote in an email to the Vail Daily. “However, if the Judge rules with us, she is being clear that they don’t have a case. If we lost, we would have to await whatever decision the court would have.”

Defending its program

On Tuesday, Nov. 7, Forrest gave a little background on the town’s loading and delivery program to the Vail Chamber and Business Association at its winter update meeting.

While the town started its recent logistics program in October 2022, Forrest said it is “actually an old topic.”

“If you go back to 1973, the beginning of Vail, the vision came forward — somewhat inspired by the Zermatts of the world — to be a pedestrian village,” Forrest said. “We identified the need to get vehicles out of our villages, to design those villages around a pedestrian environment, and to even have electric carts. So this is an old idea from the very beginning of Vail that really has defined, and creates the environment and the atmosphere that we have.”

The rollout of the town’s current system began to come to fruition in the mid-2000s as the town worked with its private partners and developers to create “significant loading and delivery facilities within the community,” he added.

In 2022, it started the current program to make good on this vision and these investments. An ordinance dated August 2022 wrote the program into its code.

The town’s ordinance implemented an e-courier delivery program contracted through 106West. The program is designed to have carriers purchase a dock permit for one of the town’s loading docks to keep delivery vehicles from entering pedestrian areas. Goods are then unloaded and delivered to the villages using electric carts.

The initial ordinance exempted public transportation vehicles, emergency vehicles, town-approved contractors delivering commercial goods, armored vehicles, waste and recycling vehicles, vehicles entering or exiting parking structures, property owners and guests, guests checking in or out of accommodations in the pedestrian mall, and high-volume commercial carriers.

“This became fully implemented on Oct. 1, (2022), where again about a year and a half ago we implemented this for loading and delivery. It got very positive feedback after implementation,” Forrest said.

Forrest added that as of Nov. 7, 2023, the town already had 47 delivery companies renew their permits for 2024.

Prompted by this success, the town moved to also ban the high-volume commercial carriers from the villages. On Oct. 3, 2023, the Town Council amended the initial ordinance to remove high-volume commercial carriers from the list of exemptions.

This most recent amendment is what prompted the lawsuit.

“We got some pushback from a group we’d never heard about, the Colorado Motor Carriers Association. They didn’t really like this idea. I think they really want their vehicles to be able to go anywhere they want to,” Forrest said.

Forrest acknowledged that prior to the October 2023 amendments, the town had been in conversations with the local representatives for FedEx and UPS on ways to remove their trucks from the villages. The town received “very positive feedback” in these talks, he added.

However, as the conversations escalated to the corporate offices of both entities, the plans stalled.

What the CMCA is arguing

The crux of the Colorado Motor Carriers Association’s argument is that the town’s ordinance violates the Federal Aviation Administration Authorization Act and the Airline Deregulation Act, which it states preempts the enforcement of the ordinance.

“The ADA and FAAAA have enumerated exceptions to the preemption of state regulation of routes. None of those exceptions permit states or municipalities to regulate or restrict access to routes based on ownership of the vehicles operating on those routes,” reads the initial court filing by the association.

The town of Vail is arguing that these laws do not preempt its regulations, because its ordinance relates to matters of safety, and the ADA and FAAAA exempt motor vehicle safety regulations from preemption.

“Our aim is to provide the safest and best experience possible in our pedestrian malls,” said Kris Widlak, the town’s director of communications, in a previous statement to Vail Daily.

The association also argues that the town is eliminating competition in the market by inserting itself into the delivery process and picking “winners and losers” in doing so.

While the temporary restraining order allows the high-volume commercial carriers to deliver as usual, the association is ultimately seeking for the court to block the ordinance entirely.

“Vail’s continued enforcement of the Ordinance is causing and will continue to cause irreparable harm to Plaintiff’s members by disrupting the market-driven routes and services that those members would otherwise provide and utilize,” reads the association’s filing.

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