Homeowners scored another hole-in-one, this time with the Arizona Court of Appeals, in their battle to restore The Ahwatukee Lakes executive golf course after years of decay.
The Court of Appeals on Thursday in a stinging rebuke affirmed a ruling by Maricopa County Superior Court Judge John Hannah, holding that deed restrictions require that the property be used as a golf course.
The course’s owners, Bixby Village Golf Course and former owner The True Life Companies had argued months ago that they had the option of leaving the property vacant or operating it as a golf course, depending upon whether they wanted to cash in on a state tax break for golf courses. They also maintained an order requiring them to build a golf course even though it would be a money loser violated the U.S. Constitution's prohibition against slavery.
But Court of Appeals Judge Randall Howe wrote that there is nothing optional about it and that the deed restrictions require that the property is operated as a golf course.
True Life's lawyers have insisted they are no longer a party to the case and that the company has had no role in the appeal. Owner Wilson Gee, a principal in Bixby who closed the course in 2013, foreclosed on a $9 million note that True Life had signed to buy the 101-acre site and turn it into an "agrihood" with about 160 homes, a farm and other features.
The ruling was unanimous from the three-judge panel who heard the case, with judges Jennifer Perkins and David Weinzweig concurring.
“The circumstances surrounding the covenant’s creation and the covenant’s language show that the covenant was intended to require the continuous operation of a golf course,’’ Howe wrote.
But he also noted that the opposite happened when course owner Gee, citing losses during the recession and a decline in the public’s interest in golf, closed the course in 2013, drained the lakes and removed irrigation heads.
The course quickly dried up and became a prominent eyesore. Ahwatukee Lakes homeowners Linda Swain and Eileen Breslin filed suit against Gee and later against True Life.
But True Life failed to win the permission required to change the deed restrictions from enough homeowners – 51 percent plus one—and the lawsuit continued. Hannah eventually ruled for the homeowners in 2018.
“The trial court did not abuse it’s discretion in enforcing the covenant. The evidence shows that Swain and Breslin would continue to suffer considerable hardship if the injunction were denied,’’ Howe wrote.
“By affirmatively destroying the golf course and refusing to rebuild it, Bixby and its successor, TTLC, have replaced Swain and Breslin’s views of grass and lakes with a barren stench-filled “wasteland’’ of overgrown weeds ringed by a chain link fence,’’ Howe’s ruling said.
Gee could not be reached immediately for comment, but in the past he has vowed never to rebuild the course, saying it would be a money loser.
Homeowners contend the site has a future as a golf course if it is properly managed.