If Ahwatukee Lakes residents think a judge can force the restoration of the golf course they once had, they should think again.
So says The True Life Companies in its response to the proposal that two residents’ lawyer submitted last month to Superior Court Judge John R. Hannah Jr.
“This court may not dictate in any permanent injunction it enters what the golf course must look like, what it must consist of or what buildings and facilities it must have,” True Life attorney Chris R. Baniszewski said in a brief filed with the judge last week.
In making the bombshell assertion, Baniszewski resorts to the same 1992 Covenants, Conditions and Restrictions that the lawyer for residents Linda Swain and Eileen Breslin successfully used in blocking the developer from putting homes on the defunct 101-acre course.
That portion of the CC&Rs states that it is the owner of the course – at this point True Life – who has discretion to “modify, alter, relocate, replace, expand, abandon, demolish, cease the use of or rebuild any of the improvements or facilities related to the use of the property for golf courses,” Baniszweski contends.
Noting that the judge already has rejected True Life’s effort to change the CC&Rs, Baniszewski states he “cannot now grant modification to plaintiffs, particularly when the plaintiffs never asked for such a modification, nor do the 1992 Covenants, Conditions and Restrictions give plaintiffs the right to such a modification.”
All that Hannah is legally entitled to do, he adds, “is simply to require TTLC and any future owner of the property to operate a golf course on the property so that it may be used for golfing and golfing practice.”
True Life’s argument represents the latest twist in the long-running legal battle over the future of the 18-hole executive golf course that prior owner Wilson Gee closed in 2013.
Gee, who said he was losing money on the course, sold the site to True Life in 2015 for $9 million, although the developer so far has paid him only $750,000.
True Life in 2016 had proposed an “agrihood” for the site that would include about 270 single and duplex-style houses, a five-acre farm, a private school, cafe and various amenities.
The developer waged an aggressive campaign with the Lakes’ approximately 5,400 homeowners to have the CC&Rs amended to pave the way for its plan.
But the developer fell short of getting signatures of 51 percent of the homeowners to make the change.
True Life’s proposal came after Hannah had ruled in the Swain-Breslin suit that the CC&Rs required the property could be used only as a golf course.
Just before Hannah held a non-jury trial to determine the next step in the case, True Life submitted a new plan, saying it would build a “9-hole fun course” if the judge also allowed it to build the homes.
True Life has said restoring an 18-hole executive golf course on the site would never be profitable – an argument that atto0rney Tim Barnes disputes.
Now that Hannah rejected that move and declared the property must remain a course, asked Hannah to not only order the restoration of the 18-hole executive golf course but also appoint a special master to oversee its construction within the next 18 months.
He suggested Kip Wolfe, vice president of golf operations for Pro Turf International in Las Vegas, be appointed the special master.
Wolfe’s ballpark estimate that it would cost between $5 million and $6 million is well under half the $14.1 million price tag that True Life’s consultant put on restoring the course.
Wolfe, whose firm is a golf course construction and renovation company, said in a sworn affidavit that he “performed an extensive walk throughout the golf course to evaluate its then-current condition.”
The Las Vegas resident, who has been in the golf industry since 1981, said he would serve as a special master at a cost of $180 an hour.
But Baniszewski asserts, “There is no need for this court to appoint a special master” and said that even if Hannah did, Wolfe has no authority to dictate how True Life should restore the site and that the judge has no right to make the developer pay for his services.
“Given that a special master would not have the authority to tell TTLC how to restore the golf course,” he wrote, “imposing any expense on TTLC to pay a special master would be patently unfair.
“In fact, not having a special master is likely to accelerate matters as it is likely that either party will not agree with the special master’s decisions, forcing the disputed issue before this court anyway,” Baniszewski adds.
Barnes now has a chance to respond to Baniszewski’s brief and Hannah is expected to issue a final order next month.
Once that happens, True Life has the option of appealing his ruling to a higher state court – possibly extending the legal battle for months if not longer.
True Life also has suggested it could file for bankruptcy, creating still more delays.