Judge’s ruling clears way for year-round seal rope at La Jolla Children’s Pool

Correction: The original posting of this story stated that last month Judge Joel Pressman denied beach access proponents’ request to shorten the seal guideline rope. In fact, he only denied a temporary restraining order to shorten the rope. He will consider the issue again 10:30 a.m. Friday, April 19 in San Diego Superior Court, Dept. 66.

By Pat Sherman

A superior court judge’s ruling on Friday, April 12 essentially cleared the way for the seal guideline rope at La Jolla Children’s Pool to remain in place year-round.

Ruling in the case, Judge Joel Pressman reversed a decision issued last fall by the San Diego Planning Commission, which denied the year-round rope (it is currently up only during the seals’ pupping season, Dec. 15-May 15).

Environmental law attorney Brian Pease, who filed the suit on behalf of the Animal Protection and Rescue League, argued that the San Diego City Council and California Coastal Commission — which both previously ruled in favor of the year-round rope — have a higher decision-making authority than the planning commission, a point Pressman concurred with.

The planning commission twice opted to deny the year-round rope, meant to keep humans a safe distance from seals, in lieu of allowing only the current pupping season rope.

“It’s sad that this has gone on so long and has created such animosity and cost so much money for so many people,” Pressman said. “I hope that this hearing will put an end to the litigation.

Representing the Friends of the Children’s Pool (FoCP), the group of beach access proponents, divers and spear-fishers opposed to the thin yellow rope, attorney Bernie King said the planning commissioners had not been served notice of the lawsuit. (Pease later told the court he’d personally served notice to the planning commission).

King also argued that a conflict of interest existed because the city attorney’s office was representing both the planning commission and the city council.

“There are concerns I have about the fairness of throwing out the planning commissioners’ decision without them being represented and without them having a voice in this hearing,” King said. “The planning commission shouldn’t have to settle for representation that is against its interests and is not willing to defend it.”

Deputy City Attorney George Schaeffer cited case law out of Los Angeles that recognizes a city government and its various decision-making bodies as a single party in legal disputes.

“Nobody’s being thrown under the bus,” Pease said. “We’re talking about a resolution that was passed by a super-majority of the city council in May of 2010 to have a year-round rope at Children’s Pool to protect the seals. … The only question that is before the court today is, ‘Did the planning commission abuse its discretion in overruling the elected city council?’”

King questioned why the planning commissioners’ were even asked to weigh in on the matter, and why testimony from the Sept. 27 planning commission hearing was not entered as evidence in the trial.

“I’m a little surprised to hear that because … I offered to file a transcript of those proceedings and neither party seemed very interested,” Schaeffer said.

A list of conditions accompanying the coastal commission’s approval of a coastal development permit for the year-round rope included the city establishing a “management and monitoring program” for the seals at Children’s Pool (aka Casa Beach), King noted. He read a portion of a letter submitted to the coastal commission by District 1 City Councilmember Sherri Lightner, stating that city has no funds for a monitoring program.

However, Schaeffer said the newly installed “seal cam” at Children’s Pool “monitors everything that takes place there now.

“That’s a red herring that the court should not consider,” he said.

Schaeffer also noted that state Senate Bill 428 amended a 1931 Children’s Pool trust to allow the city to establish the beach as a marine mammal sanctuary.

“The litigation goes on and on and on, and there comes a time when this litigation has to end,” Schaeffer said, adding that the FoCP did not avail themselves of an opportunity to appeal the coastal commission’s decision to approve the year-round rope.

Following the meeting, La Jolla resident and seal advocate Jim Fitzgerald said he was happy to see a resolution to a situation that has divided the community for nearly two decades.

“The city’s got other problems to deal with; La Jolla’s got other issues to deal with,” Fitzgerald said.

In an e-mail late Friday, FoCP President Ken Hunrichs said his group is disappointed in the ruling, though feels their attorney argued soundly against the year-round rope.

“The city placed the decision in the hands of the planning commission and when the outcome was not what they wanted, they invalidated the decision by invalidating the process,” Hunrichs said, adding that he feels the planning commission ruled correctly when it found the rope is an encroachment to beach access contrary to the La Jolla Community Plan and the wishes of the La Jolla Community Planning Association (which takes positions on local land use issues, and ruled against the year-round rope permit).

“After this decision, the community’s interests have once again been circumvented and ignored,” Hunrichs said. “The court has taken a political decision and made it a judicial decision to bend to the will of a city seeking to avoid the truth about the intent of Children’s Pool. ...

“In all the legal wrangling, the city has lost sight of the reason the pool exists at all. It was a wonderful gift to the people of San Diego that has been allowed to decay in near ruin to let the city off the hook to maintain it for the intended users, to avoid the cost to protect and restore (it for) human use.”

Last month, Pressman denied FoCP’s request for a temporary restraining order to shorten the seal guideline rope from 152 feet to 130 feet. Pressman will consider FoCP’s request to shorten the rope on a permanent basis at 10:30 a.m. Friday, April 19 in San Diego Superior Court, Dept. 66. Pressman will also hear FoCP’s suit against the nighttime beach closure at Children’s Pool ordered by Mayor Bob Filner.