Land planner Wayne Smith,left, and Attorney Tim Barnes discuss the Lakes case.

afn-lakes Kimberly Carrillo

 The fate of a third Ahwatukee golf course and possibly a critical Arizona mechanism for regulating land use could be hanging in the balance in the court battle over the future of Ahwatukee Lakes.

And if houses were ever built on the defunct golf course site, Ahwatukee would be confronting a threat to health, safety and public welfare because there would be no effective way of preventing storm runoff from South Mountain from flooding nearby residential neighborhoods.

Those were among the high points of presentations by a panel of experts at a town hall held by Save the Lakes last Saturday to discuss the nearly 5-year-old fight by homeowners Eileen Breslin and Linda Swain to have the course brought back to life.

 Tim Barnes, the lawyer representing Breslin and Swain, explained that the anchor of the suit against The True Life Companies and course owner Wilson Gee are the covenants, conditions and restrictions governing the 101-acre site.

“The CC&Rs are the king in the state and they are what we are fighting to hang onto,” Barnes told the approximate 200 people at the town hall. “And we have a very strong argument.”

Barnes noted that those land-use regulations also govern nearby Ahwatukee Country Club’s course and that its future use could be impacted if a court were to upend CC&Rs that govern the Lakes.

Superior Court Judge John Hannah has ruled twice – most recently in January 2018 – that the CC&Rs require that the site can only be used as a golf course and has ordered the defendants to restore it.

In its appeal of Hannah’s ruling to the Arizona Court of Appeals, True Life contends the CC&Rs only prevent the site from being used in a different way unless more than half the 5,400 homeowners agree to a change. The developer also is arguing that the U.S. Constitutional amendment forbidding slavery prevents Hannah from requiring it to rebuild an operation it contends would lose money.

Barnes recalled how he first met Swain and Breslin in June 2014, less than a year after Gee closed the course, and that after reading the CC&Rs had concluded that the owner had breached a contract with the homeowners.

Gee and his companies own all four courses in Ahwatukee, although Club West and Foothills Golf Course have separate CC&Rs. Gee has put Club West up for sale and in the meantime, it remains as barren as the Lakes because he said he cannot afford the cost of city potable water that feeds it.

Gee has never expressed publicly any desire to sell Ahwatukee Country Club but has maintained that Ahwatukee Lakes will never be a golf course again because it’s unprofitable.

But Barnes and several golf experts took issue with both those points at the town hall – which was part informational and part pep rally as Barnes and told homeowners the site remains viable for golf and that the chances of prevailing in court remained strong.

Barnes said that while Hannah’s order requires Gee to restore the course now, “There's no work because they decided ‘we don't need to comply with it.’”

“I'll leave it at that,” said Barnes. “We feel the injunction needs to be complied with. We intend to take action to force the issue but it's not an issue that we're ready to apply. But they are required to do that.”

Later he told the audience, “We have a contract and we damn well will enforce it.”

Several golf industry experts disputed Gee’s continuing assertion that the site cannot be turned into a profitable golf course.

“It can work,” said Don Rea, a current operator of the Augusta Ranch Golf Course in Mesa and a member of the boards of PGA of America and the National Golf Course Owners Association.

At Augusta, Rea said, “We just had our best year in the history of the course” and asserted that while a golf course “is a hard to run as a business,” the owner’s commitment to the community makes the difference.

“When you're personally invested in it, you're not a management company. You're a person who loves being part of the community,” Rea said.

Both RJ Hawley, former manager of Tempe Municipal Golf Courses, and golf course architect Kevin Nordby of Minnesota, said demographics favored the 18-hole executive course that Ahwatukee Lakes was.

Because it’s a shorter and easier course to play, Nordby said, it would appeal to a wider cross section of people.

“This is exactly the kind of course we want to see people build,” said Nordby. “I think this has great potential not only because it's part of a community but because it is the right length and is in the right location.”

            Hawley noted that while Minnesota was home to 479 golf courses that are idled for months by harsh winters, Arizona hosts 317 courses.

“Golf isn’t dead,” Hawley said. “It has steadily grown by 4 percent every year for the last four years.”

And he and several other speakers reminded the audience that in its prime, Ahwatukee Lakes was among the top executive courses in the nation.

The threat to public health was raised by Wayne Smith, the land planner who laid the groundwork for Ahwatukee’s first subdivisions.

Praising the Lakes course design architect, Gary Panks, for designing the site’s five lakes in a way that could handle storm runoff, Smith said that while 10 percent of the course’s main functions comprised recreation, the other 90 percent was “health, safety and public welfare.”

He raised the issue of climate change and the possibility of heavier storms and said “there would be a serious problem” created by South Mountain runoff.

Residents also complained about the current condition of the course, stating that the course created problems with weeds and mosquitos. Several homeowners urged the others to keep the pressure on Gee and True life by calling the Maricopa County vector control unit about mosquito problems and the city code enforcers to complain about weeds and other course conditions.

As Realtor Chad Chadderton relayed a brief story of how one Lakes homeowner saw the value of their property plummet by $85,000 because of the site’s current condition, others passionately applauded Barnes, Breslin and Swain for continuing their legal fight.

Fitness expert Chuck Corbin recalled how he treasured the former course for its recreational opportunities and natural beauty and said:

“This is our community and I want it to be for my kids. I don't want somebody coming in with their millions of dollars and saying, ‘We will get you to do what we want you to do because we have money and you don't.’”

Breslin herself addressed the audience, stating:

“I'm doing this because I'm mad, really mad and I want to salute Chuck Corbin because I feel exactly the way he feels. And he said it so much more eloquently. Linda and I are here because we are committed and you can be sure that we are going to follow this through…Quite simply, we know that we will continue to fight and will make a difference.”

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