The proposed safety barrier would run between 9th Street and the end of the Del Mar Woods condominiums.

A deadline to save public access to Del Mar's upper bluff has passed. On the last possible day to sign an agreement with the North County Transit District that would fend off a six-foot wire fence, the city voted 3-2 to reject the terms.

Had they approved the license agreement, a four-foot post and cable fence would have been placed instead. In exchange for public access, the city had to accept liability for use of the transit district's right-of-way and maintenance of the upper bluff trail, by February 28.

Some council members said they were okay with the agreement and assuming liability for any injuries. But they disagreed with a fence. Any fence.

The railroad has been fence-free since 1910, except at the end of 10th Street. The proposed safety barrier would run between 9th Street and the end of the Del Mar Woods condominiums, an area not known for train collisions with pedestrians.

"The upper bluff is so far removed from where accidents happen," said resident Camilla Rang, who lives nearby and envisions the narrow path being swallowed by a fence.

According to city manager Ashley Jones, the city, North County Transit District and the California Coastal Commission have been working on the agreement for more than a year. Revisions were made as late as yesterday, including changes made by the coastal commission, not all of which the transit district agreed with.

For one, the coastal commission said the license agreement doesn't change their pursuit of a full environmental review, which the district has never agreed to or considered necessary.

Several speakers warned of the hazards of drilling holes for fence posts every seven feet or so along the fragile bluff. The safety priority should be Coast Boulevard, said resident John Stahl.

In June 2020, the agency published a Trespasser Risk Reduction Study, which was the basis for the six-foot chain link fence proposal.

The study showed a concentration of trespasser incidents in the northern study area, "particularly at a curve in the track roughly between Coast Boulevard and 13th Street."

Later that summer, the transit district filed a petition with the federal Surface Transportation Board that sought to block the coastal commission and Del Mar from being able to regulate rail operations along the bluffs. The city, coastal commission, locals, and the Surfrider Foundation filed oppositions to the petition.

The district was open to a different size or type of fence, as long as the city paid for the surveys, design, construction and maintenance. The city would also have to assume total liability for the fencing and indemnify the transit district.

Concessions made since include fence posts no taller than 44 inches; the city only having to reimburse the agency for half the costs of fence maintenance rather than the 100 percent, and only being liable for incidents within the license area along the upper bluff.

In addition, the city would not have to enforce trespassing within the railroad right-of-way, and would be indemnified for train collisions in the license area.

"What happens if we don't sign this agreement?" asked councilmember Dave Druker - who, along with mayor Dwight Worden, voted to sign it. He pointed out that they still don't know what the Surface Transportation Board will do - or if the coastal commission can intervene. But one thing is known: "NCTD [North County Transit District] is going to put up a fence."

The agency owns the land.

"Basically, this is an insurance policy that preserves our ability not to have a six-foot fence along the bluff."