The Del Mar City Council voted 3-2 this week to reject North County Transit District’s offer to build a shorter, more visually attractive fence to keep people off the blufftop railroad tracks.

Instead, the council majority said the district should build no barrier at all, and they hope the California Coastal Commission and the federal Surface Transportation Board will back them up.

Mayor Dwight Worden and Councilmember Dave Druker were the only ones in favor of the proposed modifications at Monday’s council meeting, though both said almost no one in Del Mar wants the fence. Without an agreement in place, district officials have said they will construct the project according to their own specifications.

“People need to really understand that NCTD does not need our permission to put up a fence,” Worden said. “They own the property. They run the railroad. They have the right to do these kinds of things.”

Druker said an agreement with the district would be “an insurance policy” to guarantee that instead of the 6-foot-tall standard chain-link or wire mesh fence proposed by the district, the city would get a shorter, more attractive post-and-cable design.

“For us to say no, there is a huge possibility there will be a 6-foot fence on that bluff,” Druker said. “I don’t want to take that chance.”

The city and the transit district have been negotiating almost two years over the proposed fence, which NCTD says is needed to prevent people from trespassing on the tracks. Pedestrian strikes, as train deaths are called, have consequences beyond the personal tragedy that include lawsuits, insurance liabilities and transportation delays.

An average of 12 people are killed annually when hit by trains traveling between San Diego and Oceanside. Countywide there have been 64 fatalities and 315 near-misses in the five fiscal years that ended June 30, 2021, transit officials have said.

Hundreds of residents have written letters to the city, the transit district and other agencies, saying that a fence of any size would ruin their coastal views, block access to the beach, contribute to coastal erosion and more.

NCTD officials have always maintained they have the right and responsibility to build the fence on their right-of-way, and that the need is increasing as more, faster, and quieter trains travel the Del Mar bluffs. Despite that, they have worked extensively to satisfy Del Mar residents and elected officials.

The latest version of the proposed agreement would have modified only the portion of fencing between Ninth Street and the residential community known as Del Mar Woods, a distance of about a half-mile.

The steel posts would be less than 44 inches high, with no more than four tensioned cables up to 42 inches high. Other conditions of the proposed agreement included: the city would be responsible for general maintenance such as litter abatement and graffiti removal, along with half the maintenance costs of the fence on the upper bluff.

The agreement also would have required Del Mar to accept liability for bluff-top areas where pedestrians have trespassed on the railroad right-of-way for decades. Without an agreement, the district could fence that area off and trespassers could be ticketed or fined.

The transit district has always maintained it has the right to build the fence. But to back that up it petitioned the federal Surface Transportation Board on Aug. 28, 2020, to prohibit Del Mar and the California Coastal Commission from regulating any of the district’s safety measures on the bluffs.

All parties agreed to suspend the federal petition through Dec. 31, 2021, to facilitate negotiations on a agreement regarding the fence. However, no agreement was reached and the district renewed its petition in January. The board has announced no decision so far.

The Coastal Commission and the Surfrider Foundation have both submitted letters opposing the fence and the district’s petition to the federal board. But it’s unlikely that either the commission or Surfrider could stop the project, Worden said, and the federal agency’s mission is to preserve transportation, not beach access.

“Del Mar’s failure to approve the negotiated agreement, and the Coastal Commission’s continued assertion of authority and access that conflict with federal and state law, underscore the need for NCTD to continue seeking a final determination of its petition before the Surface Transportation Board,” district Executive Director Matt Tucker said by email Tuesday.

“This has always been about safety,” Tucker said. “Crossing the tracks in areas other than designated crossings is dangerous and illegal.

“NCTD’s more than 14-month collaboration with the Coastal Commission and the City of Del Mar sought to develop a community-sensitive approach for the bluffs that promotes safety and ensures rail reliability,” he said. “Unfortunately, Del Mar chose not to move forward with that modified plan.”

Councilmember Terry Gaasterland thanked everyone for all the work done on the proposed agreement, which was modified multiple times throughout the negotiations.

However, there is no need for any fence on the upper bluff, she said. No one has ever been hit by the train there because it’s above the level of the tracks. Most of the train strikes in Del Mar have been farther north, near the Coast Boulevard crossing, where the fence will be installed at track level.

“NCTD is willing to spend $1.5 million to build an unneeded fence where it solves no problems,” Gaasterland said.

Councilmember Dan Quirk said he agreed with residents who oppose the fence, and that a lot of the statements Worden made about the situation were “wrong and inaccurate.” But when Worden asked him for an example of something that’s inaccurate, Quirk declined to give one.

NCTD’s board of directors voted Jan. 20 to proceed with installing the fence, but gave Del Mar until Feb. 28 to agree to modifications in the plan. They said at the time that construction could begin in three to four months.

Much of the construction money could come from a $1.3 million state grant the district received in 2018 for fencing to reduce trespassing, as recommended by the Federal Railroad Administration.

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