Judge denies request to shorten rope barrier at La Jolla Children’s Pool

By Pat Sherman

A superior court judge has denied a request to shorten the seal guideline rope at La Jolla Children’s Pool (aka Casa Beach) via a temporary restraining order (TRO).

The lawsuit to obtain the TRO was filed last month by the Friends of the Children’s Pool (FoCP) organization. The beach access advocates claim Mayor Bob Filner violated “lawful land use planning procedures” when he ordered city staff to reduce the opening in the guideline rope from about 25 feet to three feet, without first issuing a public notice of his intent to do so.

The yellow nylon rope spanning the beach is up during the seals’ pupping season, Dec. 15 through May 15, and is intended to serve as a visual deterrent from people coming too close to pregnant seals and their pups.

Disagreement over how wide the gap should be remains a point of contention between seal advocates and beach access proponents. Though the rope was initially intended to be 152 feet long — with a three-foot opening for swimmers, divers and spear fishermen to access the shoreline — in 2010 city staff mistakenly approved coastal development and site development permits for a 130-foot rope barrier, which resulted in an opening of more than 20 feet.

Filner ordered city staff to extend the rope shortly after taking office in December, later amending existing permits to reflect the new three-foot gap.

Environmental law attorney Bryan Pease, who attended the FoCP’s March 7 hearing, told Judge Joel Pressman that his existing lawsuit to enforce the city council’s May 2010 resolution supporting a year-round guideline rope with a three-foot opening would render the FoCP’s lawsuit moot.

The city’s planning commission has twice denied a site development permit for the year-round rope. Pease successfully overturned the commission’s first denial of a year-round rope. In July of last year, the California Coastal Commission (CCC) approved a permit for the year-round rope, though the planning commission denied it again in September when it came before them a second time.

Pease argues that the San Diego City Council and CCC are both above the planning commission in the city’s land use hierarchy.

During last week’s hearing, Deputy City Attorney George Schaeffer agreed on this point, noting that City Attorney Jan Goldsmith recently issued a concession of error stating that the planning commission erred by not issuing a site development permit for a year-round rope barrier, based on the evidence before it.

“The planning commission is not a separate legal entity; it’s created under our land-use code — and there’s a priority under the land use code, with the city council being the highest decision maker ... and the planning commission being in the middle,” Schaeffer said.

Representing FoCP, attorney Bernie King said the city attorney has a responsibility to protect public trust lands such as the Children’s Pool.

“There’s case law ... that allows a member of the public (such as FoCP) to intervene to enforce rights on behalf of the public trust,” he said. King produced a photo of the three-foot gap taken from the top of the steps leading down to the beach, which he said makes it appear as if it is completely roped off (though Judge Pressman said he could clearly see a “little gap” in the rope from the photo).

King argued that, without fully understanding the issues, the average citizen “understands (the shorter gap) as a prohibition to beach access.

“If you are a Friend of the Children’s Pool (member) and you know the law and you’re well-acquainted with it, you’re not going to be deterred,” King said. “But even the opponents of the Friends of the Children’s Pool concede that the extended rope barrier is denying access and is keeping the public away from the coast.”

King cited a

La Jolla Light

article in which La Jolla Friends of the Seals member, Jane Reldan is quoted as saying, “visitors are not confused and now automatically stay behind the rope.”

Deputy City Attorney Schaeffer argued that how the public perceives the guideline rope is speculative.

“The city has a responsibility to try to, legally, comport with federal law, in this case the Marine Mammal Protection Act, in terms of not encouraging people to inadvertently violate that law, and harass the seals,” Schaeffer said. “There has been no injury to this organization (FoCP), which is not even a person, by this guideline rope.”

King told Pressman that by extending the rope without public notice the city and Mayor Filner “acted in defiance” of City Attorney Jan Goldsmith, who in a Dec. 24 memo opined that the city could be subject to litigation and legal fees by not following proper land-use procedure.

“I understand the council’s concern about the Marine Mammal Protection Act,” King said. “We’re not saying take the rope down. We’re just saying put the rope back to the length it was and is in the only approved permit for that.”

Noting “a great deal of ambiguity” surrounding the issue, Pressman said he believed it prudent to keep the three-foot gap in place “until we have a full hearing of all the issues,” and denied the TRO to reduce the rope length, without prejudice.

Pressman scheduled a preliminary injunction on the case for 12:30 p.m. April 12, and urged both sides to consider “coordinating or consolidating” their suits during an ex parte hearing this week.