DEL MAR — A lawsuit filed by a group of Del Mar residents seeks to halt the North County Transit District’s contract with Exbon Development Inc. to carry out a railroad fencing project along the Del Mar Bluffs, alleging that the district is skirting local and state development laws.

The March 21 lawsuit filed in San Diego County Superior Court by nonprofit Friends of the Del Mar Bluffs is the latest development in a saga of heated pushback against the proposed fencing project, as residents claim it will block pedestrian and surfer access to the trails and beach and damage the sensitive terrain.

The NCTD’s Phase 1 fencing proposal in Del Mar includes 3,723 linear feet of fencing along the upper bluffs, beginning at the Coast Boulevard railroad crossing, with a combination of a 4-foot high black vinyl-coated, chain link fence and a 6-foot black, welded wire mesh fence.

“The fencing described by NCTD that it planned for the Upper Bluff and Lower Bluff would be damaging to the environment, including by permanently altering the bluffs, accelerating erosion, and creating artificial physical barriers with a prison-like, industrial appearance,” the complaint states.

NCTD has attempted to assert its sole authority over all decisions related to the railroad, arguing that federal requirements for railroad safety override local policies. However, Friends of the Del Mar Bluffs claim in the lawsuit that NCTD is obligated to follow state and local laws under their 2018 grant agreement with the California State Transportation Agency, as a condition of using state funds for any projects.

The NCTD has filed two petitions with the federal Surface Transportation Board asking them to recognize NCTD’s sole authority over the project, but has yet to receive a response. On Wednesday, the district filed an update with the federal board describing the escalating pushback against the project via the lawsuit.

“This is clearly an attempt by Friends of Del Mar Bluffs to bypass the STB and to seek relief through forum shopping in state court,” the update states. “NCTD respectfully urges the STB to issue a decision on the preemption issues it raised in its petition herein as soon as possible, especially with respect to the safety fencing project, which NCTD will commence construction of imminently.”

The NCTD also filed a notice of removal on Wednesday which transfers the suit out of San Diego County Superior Court and into the federal California Southern District Court, stating that the case ultimately focuses on federal laws.

Friends of Del Mar Bluffs attorney Anders Aannestad said they will “address the proper forum for this litigation in court at the appropriate time.”

“We anticipate that NCTD’s strategy in removing the case to federal court is to eventually have a federal administrative agency decide these important issues that should be decided by California courts,” Aannestad said in a statement.

The NCTD Board of Directors approved a contract with Exbon Inc. at their Jan. 20 meeting, the day after receiving a letter from State Attorney General Rob Bonta on behalf of the California Coastal Commission instructing the board not to approve the contract until they had complied with the Coastal Act and the California Environmental Quality Act.

The contract will cover the first phase of fencing implementation, including 4- and 6-foot fencing directly west of the railroad beginning at Coast Boulevard and running south around 675 feet. Six-foot fencing will begin again with an approximately 75-foot stretch east of the railroad around 13th Street, and then again along the upper bluff from 9th Street to down past 4th Street. Fencing connecting these areas will be completed in Phase 2, according to NCTD.

Construction is planned to begin this summer and should cost no more than $1.5 million, according to the contract.

Following the contract approval, the California Coastal Commission also issued a cease and desist letter to the NCTD on March 7, asserting that they would need to obtain a coastal development permit prior to constructing the fence.

A 2020 trespassing risk mitigation study by NCTD identified Del Mar as one of three areas with the most train strike and trespassing incidents in San Diego County, alongside Encinitas and Oceanside, resulting in proposed fencing projects. While construction is underway in Oceanside and preparing to kick off in Encinitas, Del Mar has continued to push back.

The study found the greatest number of strike incidents on the railway in Del Mar have occurred on a short stretch between Coast Boulevard and 13th Street, where the railway’s gradual turn to the east creates a “blind corner.”

Nine train strike incidents took place in Del Mar between 2016 and 2021, with six resulting in fatalities, according to the NCTD website.

Many residents and city officials have advocated for the fencing to be limited to the area near Coast Boulevard where more strike incidents have occurred, and for NCTD to do away with plans for fencing that could limit public access on the upper bluff trails enjoyed by countless pedestrians, bikers and joggers and where accidents are far less common.

“We understand it’s a dilemma. You have to have public access, but you have to keep it as safe as possible. You have to figure it out, and you have to work together,” said resident Camilla Rang, a bluffside resident of over 20 years. “You can make it safer, but you can’t bubblewrap it.”

The NCTD gave the City of Del Mar until Feb. 28 to agree to a modified 4-foot-tall fence design on the Del Mar bluffs rather than the original 6-foot option, with the caveat that the city would need to take on maintenance responsibility and liability due to the reduced height. The City Council ultimately rejected the offer in a 3-2 vote, leaving NCTD to proceed with a 6-foot design.

Residents have also shared concerns about the fragility of the bluffs and the potential impact of fence construction — particularly the proposed drilling of 3-foot holes — citing yet another reason that the district needs to acquire a Coastal Development Permit.

A 2020 geotechnical study of the proposed fencing area by Leighton Consulting, commissioned by NCTD, concluded that the project would “not impact the stability of the bluffs or the trackbed support, nor promote additional erosion/bluff retreat.”

However, the city of Del Mar claims that several unknowns remain about the potential impact to the bluffs. The city solicited a third-party geotechnical review of Leighton’s study by Atlas Technical Consultants in September 2021, which noted that the study did not discuss the potential impacts to bluff stability from construction equipment and vibrations, among other factors.

Apparently the beachgoers feel their own interpretation of their personal civil rights far outweighs how the laws of liability demand common sense. These people cannot be allowed to believe that their prerogative for a view and determination to trespass can be complimented by a court determining punitive financial action upon death or injury of trespassing.

However, if the railway can be held fully harmless for any personal injury or death due to trespassing, than the need for fencing would be resolved.

Otherwise, fencing is the only remedy for such careless trespassing that is currently avoided on runways and interstates.

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