Reconstructing the Ahwatukee Lakes Golf Course without new houses “is nothing but a pipe dream,” attorneys for The True Life Companies last week told the Arizona Court of Appeals.
The brief filed by attorney Chris R. Baniszewski on behalf of True Life marks the end of the first phase of the appeal that the company is taking from Superior Court Judge John Hannah’s January 2018 ruling that the covenants, conditions and restrictions governing the 101-acre site mandate the reconstruction of the course, which owner Wilson Gee closed in 2013.
Filing of the brief sets the stage for a possible legal argument later this year, although it is unclear when that might occur. It also comes as Save the Lakes prepares for a town hall on the long-running case at 10 a.m. Saturday, March 9, at Ahwatukee Recreation Center, 5001 E. Cheyenne Drive, Ahwatukee.
Save the Lakes President Jeff Hall said the town hall will feature presentations by attorney Tim Barnes, who is representing homeowners Eileen Breslin and Linda Swain in the court fight with True Life and Gee; land planner Wayne Smith, who plotted the layout of the course and the surrounding subdivisions; and various golf course operators and other experts, some of whom testified during the October 2017 trial before Hannah.
Hall said in a release announcing the town hall that the speakers would tell the audience “what’s what” with the court fight and the status of homeowners’ efforts to revive the course.
Baniszewski’s reply brief to Barnes’ written argument suggests True Life has a different view of “what’s what.”
“The overwhelming evidence presented in the case, even based upon (the homeowners’) own expert’s analysis, shows that the property will never again be a stand-alone golf course,” he wrote, contending that the case “goes far beyond the fact that a golf course on the property will not be profitable.”
“The simple truth is that there is no realistic opportunity for the Property to ever again operate as a stand-alone golf course. Unless the sale of additional houses to fund the construction of the course is permitted, hoping that someone will put up the money to reconstruct the golf course is nothing but a pipe dream,” he added.
Baniszewski also said that the 1992 deed restriction governing the use of the land is a “restrictive covenant” that requires the site can be used only for certain purposes and “not to compel the owner to put the property to a particular use.
“Consequently, the intended benefits of the restrictive covenant that the property would not be used for any purpose other than a golf course dooms the property to no use at all under the circumstances that now exist,” the lawyer wrote.
True Life waged an aggressive campaign for about 18 months among the 5,400 Ahwatukee Lakes homeowners in an effort to get just over 50 percent of them to agree to change the CC&Rs so that it could then begin planning for Ahwatukee Farms. It envisioned about 270 single and duplex homes, a five-acre farm, a private school and other amenities on the site.
When it failed to get the necessary signatures, the company recrafted its plan and offered to install a “fun golf course” if it could get the homes built.
Last August, Gee foreclosed on the nearly $9 million note True Life had signed when it bought the site.
Then last month, Gee tried another tact: If the suit was dropped, he offered to pay all the legal costs of Save the Lakes, Swain and Breslin, give the two plaintiffs 1 percent of any profit from selling the land and hand over 18 percent of the profit to the Ahwatukee Board of Management for projects that would benefit the community.
That offer was rejected by Swain and Breslin.
Although True Life is effectively out of the picture, it is still party to the case.
In his brief, Baniszewski asserts that Hannah incorrectly interpreted the 1992 Lakes Deed Restriction.
“There is simply no language in the 1992 Lakes Deed Restriction, or its prior versions, that says that the owner must operate a golf course on the property for the benefit of the benefited persons, nor was there any other evidence of other surrounding circumstances presented to the trial court that could justify such an interpretation,” he says, adding:
“The inescapable conclusion is that the owner of the property was not required to build and operate a golf course on the property but rather, if the owner decided to use the property, that use was restricted to a golf course and if the owner chooses to, may cease operating a golf course on the property.”
In his first appeals brief, Baniszewski also said the Hannah was violating the U.S. Constitution amendment forbidding slavery and involuntary servitude by requiring that the owners build a course.
Gee has consistently said the course was unprofitable in the years running up to its closure and that the site “will never be a golf course again.”
He and True Life also differ with the plaintiffs’ experts on what it would cost to even restore the 18-hole course. The plaintiffs’ experts – some of whom will be at the town hall Saturday – said restoration would cost around $6 million while True Life’s experts peg the cost at close to $15 million.