THORNTON, Colo. (KDVR) — Neighbors in a Thornton community are circulating a petition against their home owners association to get the community pool open for the summer.
“We moved to that neighborhood for the pool and the sense of community and now with pretty much everything taken away from them, our hope was at least they could go just to our pool where I could regulate and try to help keep them safe,” Rachelle Boucher said.
Boucher is a local nurse with two active boys. She has lived in the Haven at York Street neighborhood for the past decade and was frustrated to learn the community pool will remain closed due to COVID-19.
“I’m a nurse. I deal with it every day. I think we can keep safe. We can social distance at the pool, just like we can anywhere else,” Boucher said.
Boucher said neighboring HOA pools are filled with water and plan to open.
Now, she is circulating a petition and has other residents on board.
“I have two teenage boys that need to get their energy out in the summer,” resident, Kristy Collier said. “It’s very disappointing. I’m just unsure why they made the decision so soon.”
According to the Centers for Disease Control, there is no evidence that COVID-19 can spread to people through the water used in pools.
Boucher offered the idea of having residents sign a waiver before entering the pool.
“Let me sign a waiver saying that I hereby remove all risk on your behalf and I ensue all the risk. That seems reasonable to me. If I choose to let my family go to the pool, I ensue the risk.”
FOX31 found out that $44,000 in HOA fees have been allocated for the pool this year. If the pool remains closed, what will happen to that money?
There are 519 homeowners that pay an HOA fee in The Haven each month. Their attorney said if the pool does not open, residents may see a refund of around $84 at the end of the fiscal year.
“FOX31 also reached out to 4 Seasons Management & Realty Group. The law firm representing “The Haven HOA”, WesternLaw Group LLC, said bottom line, according to state guidelines, they legally cannot open the pool. But if restrictions are lifted, they will reconsider.
As for Boucher, she is still hoping to gain enough signatures to change their minds.
“I’m hoping to get most of the neighbors on board with this petition so that someone has to listen,” Boucher said.
This is the full statement from the Western Law Group:
“To start, when considering whether or not to open their pool, the Board asked for a legal opinion on the matter. Ultimately, our law firm advises that HOAs should proceed cautiously with the concept of opening pools during the pandemic. While an HOA does not actively have a duty to ensure the health of residents, HOAs do have an interest in the general health and well-being of the residents and an interest in protecting the HOA from potential liability. I also advised the Board that they should monitor what the City of Thornton is doing in terms of opening city pools. If the City (which can afford to hire people to disinfect surfaces of pool facilities throughout each day, can afford to pay for the extra disinfectant, and can afford to have a life guard or other person continuously monitor the pool for social distancing and/or larger groups) does not feel that opening pools is safe, then an HOA which likely cannot afford any of those things should feel less safe about opening their pools. In addition, if the HOA Board is aware that the City is not opening pools and chooses to open theirs, this could be considered reckless, especially if COVID-19 cases could be linked to the pool. There is a reason why the US Congress is trying to protect businesses from liability regarding the pandemic as it’s hard to imagine that there are not attorney’s waiting for that first COVID-19 liability case. Ultimately, our firm has advised that HOA Boards monitor what their local government is doing, and if the local government opens the public pools, the HOA Boards can consider if they feel they can open the pools safely.
Furthermore, under Local and Personal Recreation, the question is asked, “Are swimming pools allowed to be open (indoor or outdoor public pools, HOA – and apartment- pools, and gym pools?” At this time, the answer is simply “No.” So legally, according Colorado’s government website, the HOA cannot open its pool(s). There is also the restriction of groups of more than 10 people, which would be hard to enforce. Even if several smaller groups go to the pool facilities, the pools are relatively small areas. How do you determine whether the group of 10 restriction has been violated? The Board is aware that these restrictions may change and that they should take such changes into consideration. Just because the current intent is to have the pool closed, this can change if circumstances and laws/restrictions change in the next few months. However, even then the Board will have to decide if they believe there is a practical and safe way to open their pool.
If or when pool openings are allowed in Colorado this year, the Board will reconsider whether the liability is still too big of an issue or if the Board feels there is a practical way to implement safety precautions. Waivers may certainly be looked into, but again, this goes back to who will be monitoring which residents are entering into the pool facility and whether all such residents have a signed waiver. Most HOAs cannot afford that kind of staff. The basic advisement is for our HOA Boards to verify what the state and local government are doing, and if circumstances change, to weigh whether or not potential liability is too high and/or whether the Association can determine a practical and cost effective way to open the pool safely.
In terms of reimbursement of the portion of assessments that was intended to fund the pool, the answer is yes, the Association is required to refund “any surplus funds of the association remaining after payment of or provision for common expenses,” either by crediting each Owner’s ledger or sending a refund. However, the Board will have to wait until the end of their fiscal year to determine what surplus remains as there still may be maintenance to the pool during the closure that may use a portion of those funds. Keep in mind that the refund, even if none of the budgeted portions of assessments were spent at all, each Owner would receive less than $100 in refund or credit. The pool expenses were budgeted at $44,000.00 this year, and divided by 519 total residents would mean each Owner would get a refund of $84.78. So yes, the Board will process a refund or credit for the unused money allotted towards the pool maintenance if the pool doesn’t open this year, but the Owner’s will not be receiving a huge amount back.”