Council Rejects Fencing Deal by 2-3 Vote

At a special public City Council meeting called to consider a revised licensing agreement between the City of Del Mar and the North County Transit District allowing for public use of the Del Mar upper bluff trail area located within the NCTD right of way, the City Council rejected the deal by a 2-3 vote (Worden and Druker voting to approve; Gaasterland, Martinez and Quirk voting no).

The agreement would have resulted in a modified fencing plan for the upper bluff, with a 44″ post-and-cable fence on the upper bluff from 9th St. to Del Mar Woods, instead of a 6′ steel welded wire fence. Importantly, the agreement would also, for the first time, legalize public access rights to the upper bluff and trails.

On Jan. 20, the NCTD Board authorized a staff-recommended fencing plan for 6′ high fencing that blocks public access to trails in the upper bluff area, unless the City agreed to a licensing agreement by February 28 (today).

Council perspectives on the deal were bookended in advance of the meeting by Councilmember Quirk in opposition, and Mayor Worden in favor. Quirk’s advance statement noted, “From everything I’ve heard and seen …I believe the Coastal Commission will do everything possible to prevent a 6-foot chain link fence on the upper bluff.” He asserted the upper bluff fence was unnecessary (a view all five Councilmembers share), and claimed that the recent talks resulting in the revised licensing agreement were “secret negotiations” undertaken by NCTD staff “acting independent of and contrary to what the full board approved,” questioning the legality of the negotiations themselves.

Mayor Worden’s advance statement asserted that “the option of no fence is not realistically on the table under any scenario,” and noted that the deal preserves upper bluffs trails and access. He asserted that a 44″ inch post and cable fence is better than a 6′ welded wire fence. Accepting the deal, he said, will delay fencing at street ends from 8th to 12th Streets to a “phase two” project several years down the road, giving Del Mar more time to seek modification in those plans, and maintaining the status quo in those areas, so that “crossing would still be trespassing but it will not be blocked.”

The Council’s decision was shaped by wide disparities in perspectives and predictions among individual Councilmembers and residents.

— Is Feb. 28 a hard deadline? Or is NCTD willing to to continue negotiating? Councilmember Gaasterland specifically urged NCTD to consider a completely different type of agreement, with Del Mar accepting liability for the upper bluff, but with no fence at all in that area. NCTD has not been willing to consider that approach to date, and today’s rejection of the deal could result in NCTD moving forward with its Board-approved fencing plan (with a 6′ fence along the upper bluff, blocking access), based on the Board-imposed deadline of Feb. 28.

— Will the California Coastal Commission step in and stop the fence? Will CCC “do everything possible” to prevent the fence, as Quirk asserted? The CCC’s Executive Director weighed in today with a letter to the City noting: “Commission staff acknowledge that the license agreement is an important step toward ultimately addressing issues surrounding public access and safety in the rail corridor and fully supports these efforts. However,…please note that prior to the installation of any fencing, the project must be reviewed and approved pursuant to a Coastal Development Permit or concurrence in a Federal Consistency Certification. Commission staff has been working closely with City and NCTD staff to identify a fence design that will minimize coastal resource impacts.” The closing sentence stated: “We look forward to continuing our collaboration with the City and NCTD to ensure the project is implemented consistent with the Coastal Act.” That language by no means suggests that CCC would deem NCTD’s modified fence proposal unacceptable, and it does suggest that CCC’s focus is on an appropriate “fence design,” not “fence vs. no fence.”

— Is the licensing agreement an “insurance policy” that will make sure that if there is a fence, it will be the lower-profile fence, with a public right of access to upper bluff trails? This perspective was strongly advanced by Councilmember Druker, who reminded everyone that NCTD can put up a fence without Del Mar’s permission. “We will have a fence; NCTD is going to put up a fence,” he said. So he argued in favor of the licensing agreement as an insurance policy that would guarantee that if there is a fence, it will not be a 6′ welded wire fence, and public access will be preserved.

— Is this a nefarious secret plan by NCTD to remove and destroy the upper bluffs and install double-tracking? Several Red Dot communications filed with the City by residents suggested that the proposed agreement would allow NCTD to remove and destroy the upper bluffs, with some suggesting that the real reason NCTD wants this license agreement is to “dig out the bluff east of the tracks and lay a second track.” The suggestion that double-tracking would be allowed by the license was convincingly refuted by the City Attorney, and the proposed agreement itself provides that “No other improvements by either party are contemplated under this License Agreement.” But the “double-tracking plan” gained credence with some residents who spoke at the meeting or filed red dots.

— The Council majority and many residents appeared to rely on legal and strategic evaluations that departed in key respects from those by the City’s professional staff and attorneys — including the City’s D.C.-based special counsel in the NCTD legal action pending before the Surface Transportation Board. While City Manager Ashley Jones, who served as the lead negotiator for Del Mar in the negotiations with NCTD, assessed the proposed agreement as “a significant improvement” over the originally proposed license, some residents asserted that the deal was significantly flawed and a “Trojan horse.” Councilmembers Gaasterland and Martinez appeared to be motivated in large part by their belief that the fence is “wrong” – a belief shared by all five Councilmembers.

— Is a 6-foot fence now, with no public access rights, better than a 44″ fence now, with public access rights? The calculation of the Council majority appeared to be that it is better to turn the deal down, hoping NCTD will re-negotiate a different deal or CCC will stop the fence, though that action comes with a high risk that NCTD will promptly move forward with installation of a 6′ steel mesh fence that will fence off public access to the upper bluffs and the existing informal trails. By contrast, Worden and Druker, acknowledging that Del Mar did not have the power to stop the fence, focused on the ability to get a deal that will result in a much lower-profile fence, and, for the first time in history, provide legal public access to the Del Mar upper bluff and trails.

What Comes Next?
We should see quickly whether the NCTD’s Feb. 28 deadline was a bluff, or whether it is open to additional negotiations and potential revisions to the proposed deal. NCTD is already authorized by its Board to proceed with the fencing program as approved at the Jan. 20 Board meeting, if the City does not agree to the licensing agreement (see link below to the Sandpiper article with details.)

We will also see whether the CCC will take action to try to stop the fence, or more limited action to ensure that the fencing plan is appropriately designed to minimize coastal resource impacts.

At some point, the pending STB action may result in a decision that would affect the fencing plan or delay its implementation, but timing for that is unpredictable.

The Packet released on Feb. 24 has materials for today’s Council meeting including the staff report and proposed licensing agreement; find it here.

Red Dots (including public comments, the staff-created Q&A, a revised version of the proposed license agreement that reflects changes that were agreed to by NCTD after Feb. 24, when the Packet was released, and today’s letter from the California Coastal Commission) are here.

For additional background information, read the Sandpiper’s January 20, 2022 report, “NCTD Board Gives Del Mar a “Last Chance” for Modified Fence Plan, with Feb. 28 Deadline; Approves Full Fencing If Del Mar Does Not Accept the Modified Plan.”  Read the Jan. 20 Sandpiper Report.