FISHERS, Ind. — A dispute over a 2-foot-tall, backyard wading pool shows no sign of letting up, despite a settlement offer that would allow Fishers residents to keep their small pool for three months.
“I don’t know what’s to be settled since we’re following all the rules and guidelines,” said Julia Taylor. “The whole thing is just unbelievable.”
Taylor has an autoimmune disorder that makes utilizing the community pool in her Oak Hall neighborhood subdivision feel too risky during the current COVID-19 pandemic. So last month, she and her husband purchased a portable wading pool for their backyard, hoping it would provide a safer option for them and their 12-year-old daughter.
But as 13News reported last week, the Taylors immediately received a letter from the Oak Hall Home Owners Association and its management company, demanding that the pool be removed. The HOA letter cited a neighborhood rule that "no above-ground swimming pools shall be permitted."
The Taylors quickly pointed out those same neighborhood rules clearly state "portable or inflatable wading pools without filters, up to two feet in height, and located in back yards" do not require special permission from the HOA. They sent the HOA and Kirkpatrick Management Company photos showing the inflated wading pool in their backyard was indeed less than two feet tall and had no filter.
The homeowners association hired an attorney who threatened legal action anyway.
That position softened following the report that 13News broadcast last week, triggering the HOA, its management company and attorney to offer the Taylors a settlement agreement.
You can keep your pool if…
Friday afternoon, the Taylors received a letter from Stephen Donham, an attorney with Thrasher Buschmann & Voelkel, who was hired to represent the Oak Hall HOA.
The letter, marked “FOR SETTLEMENT AND NEGOTIATION PURPOSES ONLY,” stated the HOA board of directors had “learned additional and more accurate information regarding the dimensions of your current pool, your intentions for your current pool, and your arguments why you believe that you are not in violation of the Association’s governing documents” after viewing the news report that aired on WTHR. The letter went on to say “the Association desires to put the past aside in light of this new information, and work toward settlement at this time solely to avoid any further expense, inconvenience, and uncertainty.”
The multi-page settlement proposal would allow the Taylors to keep their pool throughout the summer and, in return, Donham wrote, “the Association is willing to refrain from taking any further action during this timeframe so long as certain conditions are met.”
Among the conditions in the settlement, the Taylors must agree to:
- Never inflate the pool above 24 inches measured from the ground
- Never connect the pool to a filter
- Keep the pool in the backyard or otherwise out of public view
- Maintain the pool so that it does not fall into a state of disrepair
- Remove the pool no later than 8:00 am on September 23, 2020
- Refrain from reinstalling the pool in the future
- Release and hold harmless the HOA, property management company and attorneys from all legal claims, attorney fees, costs, etc.
- Grant the HOA injunctive relief if they do not comply with the agreement
The Taylors said they felt amazed and astonished as they read the attorney’s letter, and they believe Donham distorted the truth in an effort to save the HOA from embarrassment. They have no intention of agreeing to the proposed settlement, and the family now has its own attorney to fight back against what they call “harassment and bullying” from the HOA, Kirkpatrick Management and Donham.
Anger prompts free legal help
Bob and Julia Taylor are angry at the very suggestion that the HOA somehow gained new knowledge about their pool from watching a WTHR news report.
“It’s completely false to suggest that we did not provide them everything they asked for, and we did that a long time ago,” Bob Taylor told 13News Monday morning. “We turned over all of our documents to them way in advance, in the middle of May.”
The Taylors provided 13 Investigates with more than a dozen pages of correspondence they sent the HOA, the management company and the HOA attorney over the past six weeks. Those pages include detailed measurements and photographs of the pool, as well as repeated citations to the Oak Hall Architectural and Landscape Design Standards that permit wading pools like the one currently in the family’s backyard.
The Taylors say they will not sign a document sent under false pretenses, and they are skeptical of a settlement agreement that imposes additional restrictions not found in the current HOA covenants.
For example, the family has built a small platform that allows the wading pool to be level despite a noticeable slope in the yard. That platform raises one edge of the pool 5-and-a-half inches. Under the additional restrictions found in the HOA settlement offer, such a platform would not be permitted because the pool’s height must be measured “from the ground (and not the top of the grass) upward to the top of the pool” – a restriction not included in the current HOA rules.
Brian DeHem says the family has every right to be skeptical.
The Noblesville attorney, who has defended multiple clients against aggressive tactics by home owners associations, saw the Taylor pool story on 13News last week. He was so angry by what he viewed as harassment by the HOA, Kirkpatrick Management Company, and Thrasher Buschmann & Voelkel law firm, he contacted the Taylor family and offered them legal assistance for free.
“Absolutely, I wanted to help them out. And I think this is something that needs to be shown and needs to be done because these kinds of abuses happen much too frequently,” he said.
“It's just amazing. We did not seek out any counsel at all and he reached out to us,” Julia Taylor told 13News. “It’s been tremendous. He’s been an amazing support.”
“Heavy-handed” offer rejected
Together, DeHem and the Taylors are pushing back on the HOA’s settlement, which they say is unfair.
“There's really three problems with it. One, it's completely unnecessary. The pool is completely within the rules. Two, the settlement agreement itself inserts other rules and regulations that are not in the covenants, so it's really a trojan horse. And third, they are required to release any claims against the HOA or their agents, which is also really unnecessary,” DeHem explained.
For those reasons, the attorney said his clients have decided not to sign the settlement agreement offered by the HOA.
“No, it's not going to be accepted, and what the HOA and Kirkpatrick Management Company needs to do it just send a letter saying ‘We're no longer going to be investigating this pool. It complies with the rules. Have a nice summer,’” DeHem said.
Late Friday afternoon, he sent the Oak Hall HOA and its attorney a counter offer asking just that.
“Oak Hall will send correspondence indicating that it has withdrawn its prior demand to remove or alter the wading pool and will further direct counsel and its property manager to immediately cease all investigation and harassing conduct regarding the same,” DeHem wrote in his letter to Donham. He also accused the HOA’s lawyer and management company of conducting an improper investigation.
“This embarrassing episode to Oak Hall and its homeowners was directly created by KMC and Thrasher Buschmann & Voelkel. Now, in a heavy-handed attempt to cover up this negligence and intentional misconduct, you attempt to insert additional requirements into the applicable Covenants by way of an unnecessary settlement agreement. Mr. and Mrs. Taylor reject your offer,” DeHem wrote.
13News has attempted to contact Donham and Kirkpatrick Management multiple times over the past week. Neither the law firm nor the HOA management company have returned any of 13 Investigates’ phone calls or emails. The president of the HOA told 13News last week that the law firm advised him not to comment on the situation involving the backyard wading pool.
The Taylors – who, for now, are still enjoying their pool – are anxiously waiting to see what will happen next.
“We just want to it all to go away — just to stop and let us enjoy our summer as safely as we can for our family. That's all,” Julia Taylor said.