The Denver-based federal appeals court concluded on Friday that Vail’s 2023 prohibition on delivery vehicles in pedestrian areas had a sufficient connection to safety and, therefore, a trial judge was wrong to block the town from enforcing its ordinance.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit considered whether an industry association challenging Vail’s ordinance was likely to succeed in its argument that federal law prevented the town from regulating delivery trucks in its pedestrian malls. By 2-1, the majority concluded Vail’s restriction on delivery vehicles had a justification rooted in safety. As a result, Congress had not barred Vail from enacting the ordinance.

“The Town surely had other concerns, such as the appearance of the pedestrian malls,” wrote Judge Robert E. Bacharach in the Aug. 29 opinion. “But the presence of additional goals doesn’t erase the concern over safety.”

Judge Gregory A. Phillips disagreed. He observed Vail, by the terms of its ordinance, still permits its approved delivery contractor to access pedestrian areas. Given that exception, he believed the majority gave the town too much credit for its safety claims.

The majority suggested that so long as a government entity identifies a safety reason, “we must defer to local policymaking authority even if the regulation by its terms and effect in fact lacks a logical nexus to safety,” Phillips argued.

In 2021, now-police Chief Ryan Kenney recommended the Vail council implement a pilot program, billed as improving “the guest experience by reducing the number of oversize vehicles in the pedestrian areas.” The plan would require delivery trucks to use underground loading docks in Vail Village. From there, the town’s exclusive delivery provider, 106West Logistics, would cart the items to their destinations.

The town estimated the program removed an average of 140 trucks per week from the area. Kenney then suggested the program be made permanent and also cover the other pedestrian area, Lionshead. In 2022, the town enacted an ordinance generally prohibiting vehicle traffic, while making exceptions for emergency vehicles, public transportation and “high-volume commercial carriers.”

The following year, Kenney once again informed the town council that the “guest experience” had improved. But he noted major delivery companies like FedEx and UPS still had a “strong presence” in the pedestrian malls.

In response, the council amended its ordinance in 2023 to prohibit delivery companies from driving their vehicles in those areas. The companies would need to complete their deliveries by cart, rely on 106West or ask the town for a special permit.

The Colorado Motor Carriers Association sued to block both the 2022 and 2023 ordinances. Representing trucking companies, the association relied on multiple federal laws that Congress enacted to prevent states from creating a patchwork of regulations for the routes and services of interstate carriers. There was an exception, however, if the regulations are “genuinely responsive to safety concerns.”

After hearing testimony, U.S. District Court Judge Charlotte N. Sweeney granted a preliminary injunction against the 2023 ordinance. She acknowledged Kenney and the town’s fire chief had both explained that delivery vehicles posed “serious safety issues for emergency vehicles” and that the ordinance was aimed at “the risk of pedestrians being struck by a passing vehicle.”

The “Court finds that safety relating to motor vehicles was a legitimate concern — although perhaps not the chief concern — of the Town,” Sweeney wrote in December 2023.

However, she found the town’s safety justification “collapses” in light of the fact that 106West was permitted to use “the exact same type of vehicle” that high-volume commercial carriers were prohibited from using.

“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. “This question is especially pressing in view of the facts that two of the largest HVCCs, FedEx and UPS, had never been cited for traffic violations in the Pedestrian Mall Areas, never injured a pedestrian in the Pedestrian Mall Areas, and had trained its delivery drivers extensively in safe motor vehicle operation.”

The town appealed to the 10th Circuit, contending Sweeney had found a safety reason existed for the ordinance, but nonetheless believed the town had tailored its regulation the wrong way. Vail also argued Sweeney had overlooked the fact that 106West was contractually obligated to use “club cars” that are “a fraction of the size” of UPS or FedEx trucks.

“Is 106West Logistics barred from using bigger vehicles by the ordinance?” asked Phillips during oral arguments in May.

“Chief Kenney testified that if they were to bring in a large box truck similar to one of these larger delivery vehicles,” responded attorney DJ Goldfarb, “that they would be cited.”

“That’s startling to me. You’re saying that, ‘Sure, we have an ordinance and this is what it says, but please disregard that. That’s not how things are actually gonna work,'” said Phillips. “That doesn’t sound like law to me.”

Judge Richard E.N. Federico asked the association’s lawyer what should happen if the ordinance is partially targeted at safety and partially aimed at other factors, like “guest experience.”

“The primary purpose here was not safety,” responded attorney James A. Eckhart.

“The ordinance says it’s for safety,” interjected Bacharach. “Just don’t believe your lying eyes?”

Ultimately, the majority believed Sweeney applied an “overly demanding standard” when looking at whether the prohibition on delivery vehicles was genuinely related to safety.

Given the “frequent presence of box trucks used by high-volume commercial carriers, removing them from the pedestrian malls would logically reduce the obstructions to emergency vehicles,” wrote Bacharach for himself and Federico. “But in examining the logic behind the Town’s effort, the district court shortchanged the primacy of local policymaking, substituting the court’s own judgment about better ways to enhance safety.”

Phillips, in dissent, would have found the ordinance was blocked by federal law because the safety reasons Vail cited were undermined by the ability of its own contractor to use delivery trucks under the ordinance.

Lawyers for the association declined to make a statement about the decision.

The ruling “is a significant step forward in Vail’s ongoing efforts to reduce vehicular/pedestrian interactions in its pedestrian mall areas,” wrote a spokesperson for the town. Vail did not respond to a question about the number of reported incidents involving pedestrians and delivery vehicles since Sweeney’s injunction.

The case is Colorado Motor Carriers Association v. Town of Vail et al.