Histrionics in the Highlands
Several flyers were sent to residents encouraging them not to vote in the upcoming Highlands HOA Board recall election. Election results will be tallied at the next Highlands Board meeting on Wednesday, May 1.
Update: The Highlands HOA Board was recalled at its May 1 meeting, with 94 residents voting for their removal. New Board members John Bradley, Bill Schaal, Kevin Bossenmeyer, and Roya Hedayati, as well as previous Board member Craig Kausen, will now serve the Highlands neighborhood.
The Highlands neighborhood of Turtle Rock is among its most desirable. Stately homes on large lots with canyon views attract those yearning for suburban nirvana. But that neighborly peace has been fractured by a simple question: should the Tidal Waves swim team be allowed at the Highlands community pool? The fate of the swim team, and of the Highlands Association (HOA) Board, may be determined at the next Highlands community meeting on May 1.
Part of the Irvine Swim League’s (ISL) 22 teams, the Tidal Waves team has operated at the Highlands pool for over three decades, providing joy to some and irritation to others. With an approximate team size of 120 swimmers from ages five to eighteen, the swim team holds practice four days per weekday, hosts two to three swim meets per season on a Saturday, and celebrates with an evening banquet at the end the eight-week season, running from June to early August.
The practices, meets, and banquet are typically all held at the home pool of each team. Nearly every team operates out of an HOA-owned and operated pool, providing an inexpensive place for the non-profit ISL organization to give kids across Irvine a chance to exercise, socialize, and experience the thrill of competition.
“I love the team, I love ISL, and I am a huge proponent of teaching kids how to swim and how to be water safe,” said Barbara Kelly, a 37-year resident of the Highlands and former Tidal Waves team parent. “The team is giving them life skills.”
As with all ISL teams, Tidal Waves participants are required to live in Irvine (or attend an Irvine school), however their parents are not required to be Highlands homeowners in order to participate. Since the inception of ISL in the 1990’s, as the Highlands population has aged, fewer and fewer Tidal Waves participants have lived in the neighborhood.
Some residents began to question why they should host a swim team that primarily lives outside the Highlands neighborhood. Others wanted to know whether the swim team’s insurance was sufficient and if the HOA’s covenants, conditions, and restrictions (CC&Rs) allowed for a swim team in the first place. Highlands residents voiced concerns repeatedly during homeowner meetings. Then in March of 2023, a survey to gage the sentiment of homeowners regarding the swim team was released.
“We did a referendum because there was so much dissension going on,” said Kelly. “We said, ‘OK, fine, you're saying that you don't want to have a swim team. Let's see how the whole association feels about this.’ So a vote was taken. Ballots that were mailed out. It was a simple question of do you want to have a swim team, yes or no. It was a very clear mandate in support of the swim team.”
The final results of the survey, which also allowed residents to provide a comment about the swim team, showed that of the 90 residents who participated, 65 voted yes, 22 voted no, and 3 voted no opinion. A resident requesting anonymity said many neighbors insisted the community was not in favor of the team, and that the survey should have asked more questions to get a more nuanced barometer of opinions. For other residents, the results of the survey were decisive.
“It was a clear mandate because we had a majority of homeowners respond,” said Kelly. “And 72% of those voted to support the swim team.”
Following a chaotic board election that resulted in voting irregularities in the spring of 2023, it was decided a new election would be held. Three new Board members who all live on the same street in the Highlands decided to campaign for spots on the board. Some residents felt their decision to actively campaign was aggressive.
“These three gentlemen decided that they were going to run really hard,” said 25-year Highlands resident and former Tidal Waves parent, Bob Bova. “They literally got campaign flyers and went door to door. And they won. As soon as they got elected, it just seemed like their main priority was to eliminate the swim team.”
In September of 2023, the newly elected Board set out to answer their own questions regarding the swim team, starting with insurance coverage. The Board asked its insurance broker take a look at the ISL swim team insurance coverage. The Board met with ISL to discuss perceived gaps in coverage, and ISL Executive Director Lizzie Howard said she did her best to meet the community’s needs.
“We are confident that this additional coverage meets the requirements set forth by the HOA board, and we understand the gravity of the situation should it fail to do so,” wrote Howard in an April 3 letter to the Highland Association’s attorney, Brittany Ketchum. “It is worth noting that when we thought we had resolved the insurance issues back in February, we believed we had a clear path to proceed with the 2024 season.”
During this time, the Board tried to keep neighbors aware of their meetings through detailed monthly Board updates via email. In the Board’s November monthly update to homeowners, it appeared that despite meeting the Board’s insurance requirements, the issue was not deemed satisfactorily resolved.
“Review of ISL’s insurance by our broker: ISL’s insurance does cover all attendees for ISL events (participants and spectators) up to $3M in aggregate and $1M per occurrence,” the Board letter explained. “This amount is cumulative across all 22 participating swim teams. That means that a major claim for an unrelated swim team in a different part of Irvine may already exhaust the coverage levels, and ISL’s coverage might be unable to cover us if a separate incident were to happen subsequently at our pool.”
The reaction from some neighbors was not exactly positive.
“It stirred up so much fear,” said Kelly, of the Board’s dire warnings that homeowners would be sued should ISL insurance prove insufficient. “So many people became concerned, ‘Oh my God Oh my God I'm going to be sued, you know I'm liable,’ when in actuality that was not true. My bottom line to this is, quite honestly, if any one of these kids has a birthday party at the pool and one of their guests slips, we could be sued. It's the same thing.”
According to current Board member Mike Borgman, the situations are actually entirely different.
“When our Association insurance found out we were hosting a swim team they wrote in an exclusion for the swim team, period,” explained Borgman. “A homeowner having a birthday pool party would be covered by association insurance. So if there is no concern why do you think our Association insurance would not insure the swim team?”
The Board also began to explore the legality of the swim team itself. After consulting with three separate attorneys to obtain a legal opinion on whether the Highlands CC&Rs allow for swim team usage of the pool, the Board shared its legal findings in the same November newsletter to residents.
“Our governing documents do not expressly state that the Board can allow an external party to use our shared amenities (e.g., pool),” read the summary of the conversation with one of the Board’s unnamed legal counsels. “The Board’s ability to have granted historical use of our pool to a swim team is based on an argument that this use creates a ‘benefit’ for our homeowners [in the meaning of the sections above from our governing documents] to participate in such swim team. For example, a swim team with a significant majority of participants (87% in the most recent season) from outside our HOA using our Community Facility for several hours per day, multiple weekend days per summer, several lanes at a time, as well as swim meets that entirely exclude other owners’ ability to use the pool, weakens the ‘benefit’ argument.”
During the November Board meeting, neighborhood rancor had reached a fever pitch. Over 40 residents attended the meeting to speak on the fate of the swim team. Some attendees suggested the entire community should vote again on whether the residents were in favor of continuing to allow the Tidal Waves to operate in the Highlands.
“If more than half of the homeowners really want to do away with swim team, then we'll do away with it,” Bova recalled saying during the meeting. “Why don't we just talk about what we can do so that it would be acceptable for a vast majority? But first, let's find out who's really in favor of it because the opposition was insistent that they were the majority.”
The Board did not allow a vote, and tempers flared. A swim team proponent allegedly began harassing one of the Board members, making angry calls and sending texts as late as 10:30 p.m. In response, the Board did not address this issue with the harasser, but rather with the entire community at large, in the form of a cease and desist order.
Every Highlands resident was served this cease and desist.
“Members are hereby instructed to cease and desist from calling, messaging, emailing or otherwise approaching individual Board members concerning Association business outside of a duly noticed Board meeting,” read the official notice, dated the day after the November monthly meeting. “Outside of a Board meeting, questions, comments and complaints may be directed in writing only to the Association's manager.”
The accusatory message was deeply troubling to many residents.
“If you are a part of an organization and you make a decision, are you so afraid to talk about it that you’re gonna tell people don’t talk to me?” asked Kelly. “Is that the kind of lack of respect and lack of dignity that you have for yourself, that you don’t even want to talk to people about what you think? The whole recall initiative is about the way this current HOA Board has handled decisions and issues, some of which they have created themselves.”
For Bova, the cease and desist was the final straw.
“Their lawyer sent out a cease and desist email to all of us,” Bova said, “and we're like, ‘Okay, that's it. These guys have got to go.’”
Bova discussed the idea with some neighbors and realized that only 5% of the membership is required to ask for a recall. He said they easily met the 5% threshold. In response, the Board began another campaign. This time, instead of asking neighbors to vote for them, the three Board members who were against the costly recall (estimated to cost the Association thousands of dollars) encouraged their perceived supporters not to vote at all. It was the hope of the anti-recall Board members that by not sending in the 84 ballots required to reach quorum, residents would be dissuaded from enacting costly recalls in the future.
The person or people responsible for these flyers has not been identified except for the yellow flyer, which was signed by three anti-recall Board members.
Residents have not taken kindly to the suggestion that they silence themselves by not voting.
“The three current Board majority members started sending out emails and flyers saying just rip your ballot up, don't vote, if you don't vote we can't get quorum, so then I started sending out emails,” Bova said. “I became the tip of the spear in terms of communications for our side. Then they started going house to house with these flyers.”
Despite the campaign to stop Highlanders from voting, many residents say the likely outcome is of the election is a successful recall. Ultimately, Bova is confident that this current contention will be a thing of the past and peace will return to the Highlands.
“This is one of those times when we disagree,” said Bova. “People can say mean things or write mean things, but when push comes to shove, there isn't any place I'd rather live than here with the people that live in this neighborhood, whether they're current board members or former board members. These are really good people.”
The Tidal Waves Swim Team season has been canceled for 2024. Highlands HOA Board members Amit Bhagwat, and Craig Kausen declined to comment. Joe Awad and Will Yeh could not be reached for comment. Results of the recall election will take place at the HOA Board meeting on Wednesday, May 1 at 6 pm at Turtle Rock Community Center.