Court: Vail can’t enforce ban of UPS, FedEx and DHL in villages until trial concludes
The judge elevated the temporary restraining order on town’s ordinance to a preliminary injunction
Ali Longwell/Vail Daily archive
On Friday, Dec. 15, a federal court ruled that the town of Vail cannot enforce its ban on high-volume commercial carriers like UPS, FedEx and DHL pending a trial between the town and the Colorado Motor Carriers Association.
The presiding judge in the case, Judge Charlotte N. Sweeney, granted a preliminary injunction in the December order, extending a temporary restraining order that was issued on Tuesday, Oct. 31.
“CMCA has established that the issuance of a preliminary injunction is warranted. As such, the Amended Ordinance’s enforcement will remain enjoined pending trial,” Sweeney wrote in the order.
The Colorado Motor Carriers Association filed its suit against the town and Police Chief Ryan Kenney over its loading and delivery program on Friday, Oct. 20. The suit was filed in the United States District Court for the District of Colorado.
The motor carriers organization — which claims around 600 members including both small, locally owned trucking companies to large multinational companies like UPS, FedEx and DHL — claims that the town’s ordinance banning delivery vehicles from its pedestrian villages is prohibited by federal law.
Support Local Journalism
Since filing the suit, the court has held two hearings on the preliminary injunction requested by the Colorado Motor Carriers Association.
The town established its loading and delivery program via an ordinance in August 2022. The ordinance implemented an e-courier program contracted through 106West, requiring that delivery companies purchase an annual dock permit and deliver their goods to one of the town’s loading docks or to 106West’s dock in EagleVail. Goods are then unloaded and delivered throughout the pedestrian villages using electric carts.
This initial ordinance exempted several types of vehicles from the ordinance, including emergency vehicles, waste and recycling vehicles and more. Among those exempted initially were the high-volume commercial carriers. However, in 2023, the town began making moves to extend the ordinance to these delivery carriers. On Oct. 3, 2023, the Vail Town Council amended its initial ordinance to remove high-volume commercial carriers from the list of exemptions.
While the Colorado Motor Carriers Association sought to have the ordinance in its entirety enjoined by the court, the Dec. 15 order only placed the injunction on the Oct. 3 amendments.
“CMCA’s assertion that the Ordinance should be completely enjoined is undercut significantly by the fact that the Original Ordinance was enacted more than a year before this action was initiated,” Sweeney wrote in the order. “The Court maintains that while completely enjoining the Ordinance’s enforcement would be inappropriate, a preliminary injunction enjoining the enforcement of the Amended Ordinance is warranted.”
What the injunction says
In its initial filing, the Colorado Motor Carriers Association claims 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 association argues that the amended ordinance — as well as the alternative delivery options given to the high-volume commercial carriers by the town — would impact its ability to meet delivery windows.
In working with the high-volume commercial carriers on the amendment, the town provided three potential delivery options. This included participating in the e-courier program and purchasing an annual dock permit; parking trucks in one of six loading zones and delivering their products themselves to the villages using hand carts or pallet jacks; and seeking to obtain single-use permits for occasional trucks delivering oversize items and hazardous materials.
Want the news to come to you? Get the top stories in your inbox every morning. Sign up here: VailDaily.com/newsletter
However, in the order, the court sided with the carriers association, stating that “these options have posed impediments to HVCCs in their efforts to comply with their contractual delivery windows, obtain signatures for and/or photographs of their deliveries, and deliver goods within specified rooms of businesses and residences.”
The town has argued that the ordinance falls within an exemption of these federal statutes as both exempt vehicle safety regulations from preemption. The town is arguing that the amended ordinance is in response to safety concerns and is meant to increase pedestrian safety in Vail Village and Lionshead.
According to the court’s order, during the hearings, the carriers association sought to demonstrate that rather than safety, the town’s chief concern was guest experience. Sweeney wrote that the association “produced ample evidence” to this effect.
“But Chief Kenney also testified extensively that amending the Ordinance to remove HVCCs from these areas was further motivated by the Town’s desire to reduce the hazards caused by delivery trucks and pedestrians sharing the same narrow streets, to wit, the risk of pedestrians being struck by a passing vehicle,” Sweeney added.
Ultimately, the order states that “safety relating to motor vehicles was a legitimate concern — although perhaps not the chief concern — of the Town in amending the Ordinance to remove HVCCs from the Pedestrian Mall Areas,” Sweeney wrote.
However, while it meets this standard, Sweeney ultimately rules that the ordinance does not meet the requirements of the FAAAA and ADA exemptions.
“No one on behalf of the Town has endeavored to explain why pedestrians in the Pedestrian Mall Areas are safer around motor vehicles operated by 106 West Logistics than they are around identical vehicles operated by other commercial carriers,” Sweeney wrote.
She adds that the town “provided no satisfactory explanation” as to why removing high-volume commercial carriers from the pedestrian areas “is supposed to make pedestrians in those areas any safer.”
Ultimately the order stipulates that the association “met its burden to show its likelihood of success on the merits regarding its express preemption challenge to the Amended Ordinance.”
With the preliminary injunction granted, the high-volume commercial carriers will be able to continue to deliver as usual within Vail’s pedestrian areas.
The next date set for the case is a scheduling conference in January 2024, which will determine the remaining trial dates and deadlines.
