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May 2, 2010
May
3, 2010
Sharks
Families, Neighbors and Friends:
On
April 9, the PMCC Board of Directors sent a certified letter to the
Pleasanton Meadows Swim Team telling them to “cease all organized
swim team activity at the facility…effective immediately.”
On
April 30, a message was posted on the Cabana’s website. Two Board
Members confirmed with us that they neither wrote nor reviewed the
letter prior to its posting. They did confirm, however, that the
Board allowed their representative, Association Management, to post a
message on their behalf.
The
Pleasanton Meadows Swim Team and many concerned neighborhood
Homeowners have written, read and approved the following update for
you. Together, we’d like to update everyone on what we believe to
be reasonable solutions to the issues raised by the Board through
their representative and lawyer.
In
boxes
below, you’ll read the Board’s three concerns from their posting.
Our solutions are added.
In
the letter of April 30, The Board of Directors maintains that…
1) The Association’s insurance
policy contains a number of exclusions from coverage such that the
Association could be exposed to uninsured liability if the pool was
used by the swim team for practices and/or meets, even if the swim
team were comprised of Association residents only. The Board
instructed its manager to investigate whether additional insurance
could be purchased by the Association to cover it for this type of
activity, and to obtain a quote for the cost of that additional
insurance.”
On
April
13,
in a task force meeting of two Board Members, one swim team Homeowner
and two neutral Homeowners, the Sharks were asked to provide proof of
acceptable insurance coverage. The Sharks were assured that the
Board of Directors would similarly review the facility’s policy and
present viable options to amend the facility’s policy to
incorporate the swim team’s presence.
One
week later,
on April 20, the Sharks provided our current insurance certificate
and, in an act of good faith, AGREED TO DOUBLE the coverage we
carried last year. The Sharks coverage currently meets or exceeds
every team in the Tri-Valley Swim League.
The
Sharks also provided contact information for the insurance agent who
handles Del Prado and PVC swim clubs—the agent confirmed his
interest in helping procure a new facility policy.
Nearly
3 weeks later,
the
Board is “still looking into their insurance.” They tasked their
manager, Tani Cligny, with investigating their insurance, as noted in
their May 2 posting above.
The
Sharks have NOT received a status update on the Board’s
investigation, nor details of any policy changes for the facility as
‘promised’ on April 13.
2) After consultation with legal
counsel [*],
it was determined that the use of the pool for swim meets could alter
the Association’s legal status such that a significant sum of money
would have to be expended to bring the Pool Facilities into
compliance with the Accessibility Guidelines contained in the Federal
Americans with Disabilities Act (the “ADA”). If
the pool were used strictly by Association residents and their “bona
fide” guests (as is authorized by the Association’s Bylaws) for
traditional recreational use only[**],
the Association would not be subject to the ADA, and would not have
to comply with ADA Accessibility Guidelines.
The Association has retained an expert to provide advice as to the
extent of the required changes, and will thereafter obtain estimates
for that work so that the Board of Directors can make an informed
decision. Obtaining these estimates will also allow the Board to
inform Association members of any increases in annual or special
assessments that would be necessary to fund the required ADA
modifications.
*Sharks
note:
The Board of Directors stated at the April 12 meeting that they
retained a lawyer for $3,000 (cost as of 4/12). The Directors stated
they would not provide the swim team or Homeowners with the findings
from that lawyer, citing ‘Attorney/Client” privilege.
**
Sharks note:
The phrase “traditional
recreational use”
is not listed in the governing documents for our facility. It was
presumably inserted by the manager, lawyer and/or Board. Please
review your own copy of the Bylaws for confirmation.
During
the April 12 meeting,
the Board stated that they had engaged a licensed ADA specialist to
assess what reasonable accommodations can be made to provide access
to disabled persons.
During
the April 12 meeting,
the Sharks told the Board that we are ready, willing and able to help
provide all reasonable accommodations necessary during Swim Meets to
mitigate this issue.
In
addition, the Sharks offered to defer all home meets for one year so
this issue can be sufficiently resolved.
Nearly
3 weeks later,
the ADA consultation has not yet happened. The reason for the delay
is unknown. In addition, the Board has not produced any
documentation or estimates specifying when the consultation will
happen or what it would cost to make the facility compliant.
As
early as March, Board Members told us that Directors have known our
facility isn’t ADA compliant “for about a decade”. However,
the letter suggests that the first action the Directors took was to
retain legal council, not the ADA expert nor a contractor.
The
Sharks support ADA compliance and acknowledge that it is an important
Homeowner issue requiring careful, prudent and informed planning.
After consultation with a number of specialists, we believe that a
short-term solution to mitigate liability and provide fair access can
be accomplished at a reasonable cost. Licensed contractors in our
neighborhood have offered to help at reduced rates to make such a
solution possible.
3) The Association’s Bylaws and
CC&Rs dictate that the pool is for the use of the Association’s
residents and their “bona fide” guests. Neither the Bylaws nor
the CC&Rs give the Board of Directors the authority to grant the
swim team exclusive use of
the pool [*]
for either practices or meets without amending the CC&Rs by vote
of the membership. The Board is also bound by California Civil Code
1363.07, which states that exclusive use of common area (the Pool
Facilities) may not be granted to any member without the approval of
sixty-seven percent (67%) of the Association’s membership.
This is of particular concern given
the significant number of hours of exclusive use of the pool
requested by the swim team, which according to a proposed contract
received from the swim team, includes at least the following dates
and times:
[The letter
goes on to list our request for facility use: basically the same
schedule we used last year.]
*
Sharks note:
The phrase “exclusive
use”
is not listed in the governing documents for our facility. It was
presumably inserted by the manager, lawyer and/or Board. Please
review your own copy of the Bylaws and CC&R’s for confirmation.
The
Board of Directors doesn’t believe our guests are ‘bona fide’:
‘Bona
Fide Guests’: A
‘bona fide guest’ is defined as a relationship that is made “in
good faith without fraud or deceit. (Blacks Law Dictionary)
Furthermore, a ‘bona fide guest’ is a person “for whom the
member has made prior arrangements with the management of the
organization.”
The
Sharks have two forms of ‘bona fide guests’: non-Cabana members
who swim for our team and the invited teams who compete against us
during 4 meets.
The
non-Cabana members on our team are well-informed of their guest
status and are not granted any additional use of the facility outside
of official swim team events. They do not have key cards, must be
granted entrance to every event and leave when the event ends. The
Sharks’ insurance covers these guests and they sign a document
releasing the facility of liability: our relationship with them is
‘in good faith.’
Similarly,
swim meets are private events between the Sharks and one invited
team. Members of the general public are not granted entrance. The
invited team provides a roster of swimmers before the event and
everyone leaves when the meet ends.
Our
treatment of guests is similar to that of any Member Homeowner who
hosts a party at the Cabana. We additionally have record of our
guests prior to each event and have offered to provide such a record
to the facility before every event.
The
Board of Directors states we’ve asked for a “significant number
of hours of exclusive use of the pool”.
‘Exclusive
Use’:
The
Statute cited was never meant to apply to renting facilities such as
a clubhouse for parties or weddings, or tennis courts for
tournaments, or (as in our case) using a Pool for a Swim Meet. The
intended purpose was to prevent permanent exclusive use of a common
area. For example, it would prevent a homeowner from building a deck
or fence that encroaches into the Cabana property for the individual
enjoyment of that individual homeowner. - (from legal consultation)
In
addition, it is important to note that the Sharks never requested
even temporary ‘exclusive use’ of the facility:
most of the Sharks requested time is shared with all Homeowners.
We
welcome members at our meets
We
regularly provide space for lap-swimming members during our morning
practices
We
use less than half the pool during our afternoon practices
‘Significant
number of hours’:
The number of hours the swim team would like to share the facility
is roughly 10% of the time the pool is open (about 300 out of 3000
hours) and our current roster represents roughly 10% of the
membership.
The number of hours when the swim team would like to use the pool for a meet is less than 1% of the total available pool time. This 1% represents 3 Saturday mornings (until 1:30pm) and 1 Wednesday evening over the course of June and July.
Once the Board of Directors has
completed its investigation, a decision will be made about whether or
not to send out ballots to the Association’s members to vote on the
periodic exclusive use of the pool by the swim team. Until that time,
consistent with the Association’s CC&Rs and California law, the
Pool Facilities will be open for use by the Association’s residents
and their “bona fide” guests only.
At
this time, the Board of Directors has not provided the timeline for
their investigation and, since the Sharks haven’t received any
materials or documents since the April 9 ‘Cease and desist’
letter, we don’t have any reason to believe their investigation
includes returning the Sharks to our home facility.
Wrap-up:
The
Swim Team leadership would like to state its significant frustration
with the unfortunate and ill-advised decision of the Board of
Directors. While the swim team and many supportive Homeowners have
worked round the clock for three weeks to resolve this situation, we
cannot say the same for the Board. Our documents, materials and
efforts have been stone-walled at every turn. Our summary of the
past 3 weeks is that this Board of Directors is not interested in
having a neighborhood swim team.
We
are frustrated that the Board, a group of volunteers and neighbors
like ourselves, chose to wrap their decision in legal decision and
managerial influence. The Sharks leadership chose not to spend the
money of our swim families on a lawyer: swim team Homeowners would
be paying two lawyers to fight each other! Instead, we continue to
provide professionally and legally confirmed documents while offering
to work personally with the Board.
Finally,
we are most disappointed that the Board of Directors has forgotten
the children in this story. The Swim Team has provided a safe,
healthy, family-focused activity to over 1,200 children in 35
seasons. We are not a minority and we are not, as the Board puts it
“a local swim team
comprised only partially of Association members.”
We
are the Pleasanton Meadows Swim Team and our children matter. Let’s
work together as neighbors to make whatever changes are necessary to
bring the children back to their home pool.
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