DEL MAR – Following last week’s Del Mar City Council meeting where councilmembers rejected an agreement that would allow a fencing plan along the Del Mar bluffs, the North County Transit District filed a new petition with the federal Surface Transportation Board seeking sole authority to proceed with the project.
Meanwhile, the California Coastal Commission sent a letter to the North County Transit District, or NCTD, putting it on notice that a cease and desist order is forthcoming from the state commission if the rail authority fails to commit that it will not begin working on the project without obtaining a coastal development permit.
The NCTD gave the City of Del Mar until Feb. 28 to agree to the modified 4-foot-tall fence design on the Del Mar bluffs, accepting liability and maintenance responsibility for the modified fence design. If the city failed to accept this agreement, the NCTD said they would proceed with a proposed 6-foot-tall fence design.
Last week, the Del Mar City Council voted 3-2 to reject the agreement saying the transit district should build no fencing at all. Mayor Dwight Worden and Councilmember Dave Druker were the only ones in favor of accepting the agreement, saying that NCTD has the authority and right-of-way to proceed with the fencing either way.
“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.”
“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.”
On the day of the vote, the Coastal Commission issued a letter to the council fully supporting the fencing agreement provided 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,” the letter said.
After the council’s vote, the NCTD requested an expedited response from the STB on March 4, regarding its petition for a declaratory order that would confirm its assertion that it has sole authority over railway matters when it comes to the railway tracks it owns, including bluff repairs and fencing of the track right-of-way.
“NCTD cannot in good faith further delay the safety fencing project and risk any additional unnecessary loss of life or injuries on its watch. As a result, NCTD plans to begin construction of this safety fencing as directed by its Board,” NCTD said in its request to the STB.
However, the transit district revealed that it had also received a notice of a forthcoming cease and desist order from the Coastal Commission on March 3, saying that the transit district cannot proceed with the project without a Coastal Development Permit.
“The Commission is threatening to levy penalties and other actions if NCTD were to advance activities to reduce trespassing on its railroad right-of-way without providing any evidence that it has the authority to waive State law,” the NCTD said. “Accordingly, the need for a decision on this preemption issue that has been placed before the STB regarding the safety fencing project has become urgent.”
The transit district responded to the Coastal Commission’s notice on March 7. In its letter, NCTD’s Executive Director Matthew Tucker said that the Coastal Commission is “operating outside of its legal authority” with its threat of a Cease and Desist Order.
“NCTD disagrees with the fundamental premise of your assertions of authority over both the District and the safety fencing project located on the Del Mar portion of the NCTD railroad right-of-way (the “Project”). Specifically, the matter of obtaining a CDP as a prerequisite to a rail project has been litigated and decided,” the letter said in part.
“Your issuance of an EDCDO continues the pattern of the Coastal Commission engaging in behavior that suggests that it is not subject to laws promulgated by the State of California as it relates to the prohibition of trespassing and federal law pertaining to NCTD’s rights as a common carrier of rail based on decisions previously issued by the STB as documented in this letter and prior communications,” the letter continued.
The NCTD has not yet received a response from the STB, but maintains that construction of the project will begin in the coming months.