Vail can once again prohibit delivery trucks from its pedestrian malls, a federal appeals court has ruled, overturning a Denver judge’s decision last year that put a stop to that ban.
A divided panel of the 10th U.S. Circuit Court of Appeals decided Aug. 29 that laws regulating the trucking industry do not prevent the resort town from excluding UPS and FedEx.
“These statutes ordinarily preempt local trucking regulations, but exceptions exist for motor vehicle safety,” Judge Robert Bacharach wrote. “Do these exceptions allow a town to regulate trucking companies that frequently deliver goods in a pedestrian mall? We answer yes.”
Judge Gregory Phillips disagreed with his colleagues. Dissenting from the 2-1 opinion in favor of Vail, Phillips wrote that the truck ban cannot be logically tied to pedestrian safety, since Vail still allows similar trucks driven by a city contractor, 106West Logistics, on the malls.
“Indeed, the amended ordinance restricts neither delivery vehicle size nor delivery vehicle frequency. Instead, it regulates based on the owner of the vehicle,” Phillips noted.
In 2022, Vail passed an ordinance prohibiting delivery trucks from entering Vail Village and Lionshead Village, to make those areas friendlier to pedestrians. Trucks had to leave their cargo at loading docks, where small 106West carts would then pick it up and deliver it.
The ordinance initially made an exception for commercial mail carriers, like FedEx, UPS and the U.S. Postal Service. But in 2023, Vail began cracking down on them as well. The Colorado Motor Carriers Association sued to stop that crackdown. Because trucking is federally regulated, towns can impose their own rules only when public safety is jeopardized, it noted.
The industry group won a victory in late 2023 when U.S. District Judge Charlotte Sweeney blocked enforcement of the ban, finding it had been enacted to maintain mountain aesthetics rather than save lives. She, too, questioned why 106West’s vehicles were allowed.
That ruling was appealed to the 10th Circuit, which sided with Vail. In a statement this week, the Town of Vail said it remains “committed to providing a safe environment for everyone.”
“The 10th Circuit’s opinion directing the district court to dissolve a preliminary injunction that barred the town from fully enforcing its loading and delivery regulations is a significant step forward in Vail’s ongoing efforts to reduce vehicular-pedestrian interactions,” it said.
The 10th Circuit’s three-judge panel decided that Sweeney was “substituting her own judgment about better ways to enhance safety” when she determined Vail was not focused on safety because it allows other trucks on the malls. “Connection to safety isn’t lost just because a more expansive restriction might have been more effective,” the judges wrote.
“We’re not policymakers, but the town’s leaders are. Those leaders presumably enjoy expertise when deciding how to address safety concerns. Recognition of that expertise leaves us little room to second-guess the leadership’s policy choices based on our policy preferences.”
The Town of Vail is represented by David Goldfarb, Josh Marks and Abbey Derechin with Berg Hill Greenleaf Ruscitti in Boulder. The CMCA’s lawyers are James Eckhart, Shannon Cohen and Adam Smedstad at Scopelitis Garvin Light Hanson & Feary in Indianapolis.
The CMCA’s lawyers did not respond to BusinessDen’s request for comment on the ruling.
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