Two homeowners suing over the future of the defunct Ahwatukee Lakes Golf Course had the last word in the protracted legal case as their lawyer contended its owner has no recourse but to return the site to its former state.
Directly confronting The True Life Companies’ assertion that a judge has no authority to dictate restoration details for the course, attorney Timothy Barnes said the company’s “open-ended breadth of scope” of its argument “is contrary to Arizona law.”
Barnes’ reply brings to an end legal argument in the 4-year-old case, leaving Superior Court Judge John Hannah the task of issuing an order that likely will be appealed.
Because Hannah ruled two years ago that the covenants, conditions, and restrictions governing the 101-acre site require the owner to keep it a golf course, his next step likely is issuing an injunction that enforces that ruling.
True Life lost a bid to have Hannah declare the CC&Rs were no longer enforceable because a course was no longer viable because of extenuating circumstances – primarily its deterioration, which Barnes said is partly the firm’s fault.
It also failed to persuade the judge to let modify the CC&Rs in a way that would allow it to build homes if it agreed to construct an undefined “fun golf course.”
The court case began coming to a head over the last six months after the company lost its campaign to get approval by 51 percent of the approximate 5,400 homeowners to agree to changing the CC&Rs so it could build Ahwatukee Farms.
That so-called agrihood would have included about 270 single-family and two-family homes, a five-acre farm, private school and other amenities such as a café and trails.
In its last response to Hannah, True Life attorney Chris Baniszewski told the judge that even if his client were to comply with the court’s order to restore the golf course, he couldn’t dictate how it should rebuild it.
He also objected to a request by residents Linda Swain and Eileen Breslin – the plaintiffs in the case – that a special master be appointed to oversee its reconstruction within 18 months.
Barnes has recommended the court appoint Kip Wolfe, vice president of golf operations for Pro Turf International in Las Vegas, to act as the special master at the rate of $180 an hour – and at True Life’s expense.
True Life said its experts estimate that restoration of the course would cost at least $14 million – more than twice what the residents’ experts say it would cost.
But Wolfe has couched his estimate with a warning that there are some unknowns surrounding the course.
While he said “he basic core of the course is still intact,” Wolfe said he has not been able to determine the condition of the water delivery system and virtually anything having to do with water, including the lakes, transfer stations and reservoirs.
Barnes in his new filing said “a special master is necessitated by defendant’s breach of the 1992 Covenants, Conditions and Restrictions.”
“Having also breached its covenant of good faith and fair dealing of that document, the oversight of any restoration must be by a third party special master,” Barnes wrote.
He argued that a special master can “address post-trial matters that cannot be addressed effectively and timely by an available superior court judge.”
One reason for that, he said, is any court “most certainly does not need to get involved in the minutia of the design and restoration of a golf course.”
Moreover, he noted, “On a practical level, because superior court judges are frequently rotated for the benefit of the court system as a whole, having a special master with continuity is a major advantage in the court’s supervision of the injunction.”
Otherwise, a new judge assigned the case would have to spend considerable time getting acquainted with the case, further delaying the course’s restoration.
“A special master is professionally equipped to more readily resolve the reconstruction aspects of restoration issues and, if challenged, advise the Court of options to resolve the challenge,” Barnes wrote.
As for True Life’s assertion that “imposing any expense on TTLC to pay a special master would be patently unfair,” Barnes said True Life’s past history at Ahwatukee Lakes demonstrates the need for one.
“Defendant’s ‘patently unfair’ arrogation must be considered in the context Defendant’s strategy as outlined at trial: purchase a purposely deteriorated golf course (with no intention of restoring it), and perpetuate deterioration in order to extort homeowners’ acceptance of the destruction of their home values so that Defendant may profit by building a housing tract,” he wrote.
In arguing against True Life’s contention that it alone can decide how to restore the course and what kind it can build, Barnes said True Life “is the cause for the condition of the Lakes Golf Course being incapable of being used for playing or practicing golf.”
“It has long been the rule that an interpretation which gives effective meaning to all provisions of a contract is preferable to an interpretation which leaves a part of the contract ineffective.”
He said True Life’s “open-ended breadth of scope” in its assertion “would preclude any such injunction from being enforceable.”
“Defendant’s proposed scope of injunction provides no details to the required course of reconstruction – making it impossible to determine whether the injunctive order is being followed at any point in time,” he said, adding:
“Defendant’s proposed injunctive order contains no standards by which progress of the restoration could be measured because no specific reconstruction details are provided.
“Likewise, Defendant would be essentially the sole arbiter of whether the injunctive order was being met, assuring itself that it could not be challenged” on either the scope or progress of the restoration.
Barnes said True Life’s “is not valid under Arizona law or even by the standard of common sense” and called its argument “yet another attempted roadblock to enforcement of the 1992 Covenants, Conditions and Restriction"