Business owners sue city over La Jolla Cove odor caused by sea lions and bird waste

By Pat Sherman

Business owners fed up with the pervasive stench at La Jolla Cove — and what they consider the city officials’ reluctance to solve the problem with bold action — filed suit against the City of San Diego in Superior Court last week.

Last month, Interim Mayor Todd Gloria said ridding the Cove of its odor — believed to be caused by excrement on the cliffs from sea lions and cormorants (seabirds) — is a priority for his office.

However, after two years of watching diners overcome by that smell flee his outdoor restaurant patio, George’s at the Cove owner George Hauer is hoping legal action will serve as added incentive for city officials to treat the odor like they would any immediate threat to public health and safety.

“If there was a fire on the cliff, the city could take a hose and put it out (so that nearby structures wouldn’t burn down),” said La Jolla Shores attorney Norm Blumenthal of Blumenthal, Nordrehaug and Bhowmik. Blumenthal filed the suit on behalf of the nonprofit “Citizens for Odor Nuisance Abatement,” of which Hauer is president.

The suit does not seek damages, Blumenthal said, only for the court to issue an order for the city to abate the nuisance.

“We’re going to get this done in 60 days — that is my goal,” Blumenthal said. “The city is completely inept. This should have been done two-and-a-half years ago. … An odor is a public nuisance, and the city is required by law to abate this public nuisance.”

The suit, also filed on behalf of La Valencia Hotel (which has also lost business due to the odor) further demands that the city reopen human access to the cliffs above La Jolla Cove, as a deterrent to sea lions and cormorants gathering there — an action city officials are currently considering, based on a groundswell of community support. The San Diego City Attorney’s office issued a legal opinion on the proposal in December, which was sent to city staff and the mayor’s office.The city has stated that people are free to walk along the cliffs, though the fence blocks human access from the sidewalk.

On Dec. 20, a La Jolla resident said he witnessed San Diego Park and Recreation workers clearing a few feet of brush behind the fence, as well as a narrow trail leading to the bluff, leading some to believe the city may be ready to add a gate in the fence. Cautionary signs along the fence that read: Unstable Cliffs/Stay Back/No Public Access have been altered, with the statement “No Public Access” covered up with tape (signs near Goldfish Point still read “no public access”).

Hauer’s lawsuit contends that the fence was built “without an environmental impact report and is in violation of (La Jolla’s) Local Coastal Plan, which requires maximizing coastal access.

“Preventing coastal access to the rocks by the public gradually led to a buildup of excrement from sea lions and cormorant birds,” the suit reads, in part. “The installation of caution signs should be more than sufficient to protect the safety of the pedestrians that assume the risk of walking on the rocks.”

At the time of this post, a representative for the city attorney’s office said had not been served a copy of the suit.

An unlikely ally?

The suit was filed in concert environmental law attorney Bryan Pease, known to La Jollans for his efforts to protect the harbor seal rookery south of La Jolla Cove at the Children’s Pool (aka Casa Beach).

Pease first teamed with Blumenthal in 2008, to thwart the city’s planned dispersal of the seals at Children’s Pool.

“There can therefore be no doubt that plaintiff and its attorneys are in favor of protection of marine mammals and seek here only to balance this goal with coastal access and control of noxious odors,” reads the suit, which contends that the distinction between La Jolla’s harbor seal rookery and sea lion colony is an important one.

“Sea lions are much more agile on land than the harbor seals. The sea lions, unlike the harbor seals, can climb high up on rocks and other surfaces above the area the high tides reach. … Due to their lack of agility on land, the areas where the harbor seals defecate are within the mean high tide line, so their waste is flushed into the ocean. ... For this reason, the Children’s Pool seals are not the cause of the foul odor that is the subject of this lawsuit.”

— Ashley Mackin contributed to this report.