The Colorado Motor Carriers Association is suing the town of Vail over its loading and delivery program, which seeks to remove delivery vehicles from the town’s pedestrian areas in Vail Village and Lionshead. The suit claims the ordinance is anti-competitive and prohibited by federal law.
The lawsuit was filed Friday, Oct. 20, in the United States District Court for the District of Colorado, and seeks to have the court block the town’s ordinance, which bans motor vehicles from the town’s pedestrian areas. The town and Vail Police Chief Ryan Kenney are named as defendants in the case.
The Vail Town Council hosted a last-minute executive session on Wednesday, Oct. 25, to discuss the suit.
Kris Widlak, the town’s director of communications, said in a statement on Wednesday that the town believes its regulations are legal,” but also that “they are essential for the safety of our residents and guests.”
“Our aim is to provide the safest and best experience possible in our pedestrian malls,” Widlak added.
The town of Vail enacted its loading and delivery ordinance in August 2022, prohibiting motor vehicle traffic in its pedestrian areas.
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 into 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. While not named in the ordinance, the latter refers primarily to UPS, FedEx and DHL in the town of Vail.
On Oct. 3, 2023, the Town Council amended the initial ordinance to remove high-volume commercial carriers from the list of exemptions. At the time the amendment passed, the town indicated it was delaying enforcement of these carriers as it sought to reach an agreement with FedEx and UPS to remove their vehicles.
“High-volume commercial carriers have the option of purchasing a dock permit and delivering from those locations, or using 106 West Logistics to deliver for them from a dock at no additional charge. Their other option is to deliver from designated short-term delivery locations, some of which are specifically reserved for them, within the town. There is no requirement that they use our contractor for final delivery,” wrote Widlak in the statement on Wednesday.
However, on Friday, Oct. 20, the town distributed a letter to the Vail business community indicating that it “will begin to restrict access to HVCC trucks into the Village Core.”
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The letter states that “nearly every food and beverage delivery company and large freight carrier voluntarily participates in the current loading and delivery program and uses the e-courier service,” adding that “the only major delivery companies that have not joined the program are FedEx and UPS.”
With enforcement beginning, it stated that “this should not interrupt delivery service to the Village Core” as “FedEx and UPS have plenty of options to continue to deliver to the Village Core.”
The suit 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 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,” it reads.
The suit adds that the town’s ordinance “impermissibly regulate(s) the routes and services of CMCA members” as well as “introduces inefficiency into the transportation services market and is inconsistent with Congress’ deregulatory goal,” which it says were established in these two acts.
It goes on to claim that the ordinance also “eliminates competition completely,” “stifles innovation,” and “eliminates services that the market demanded.”
By doing so, the suit claims that the town has “directly inserted itself into the delivery process and in doing so has picked winners and losers.”
In the suit, the Colorado Motor Carriers Association is seeking three things.
“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. The impact on the transportation market resulting from Vail’s interference with the CMCA members’ routes and services is difficult, if not impossible, to calculate,” it states.
The first is for the court to block the ordinance with the issuance of a declaratory judgment that finds the ordinance and enforcement a violation of the Federal Aviation Administration Authorization Act and the Airline Deregulation Act. Second, it is asking for a preliminary injunction to “remedy and prevent” further violation of these acts. The third is “all other relief the court finds justified and appropriate.”
The Colorado Motor Carriers Association describes itself in the filing as “an association devoted to advancing the interests of its motor carrier members who provide transportation services in Colorado.”
According to the suit, it has around 600 members that are licensed motor carrier companies. It adds that “some CMCA members are high-volume commercial carriers.”
In the suit, the organization states that while its members have individual standing to sue the town, it is filing as an organization because it “believes that CMCA can best represent its members interests while reducing the chance of prejudice to any particular member.”