The Club West Conservancy has asked a judge
to deny The Edge’s request to intervene in its lawsuit against the Foothills Club West Association board.
In a petition filed last week, the Conservancy asserted that The Edge has no standing because state law prevents “third parties from attacking the validity of actions taken by a nonprofit.”
The Edge owns the beleaguered Club West Golf Course and is in escrow with Shea Homes to sell the 165-acre site. Shea Homes owns the declarant rights to the site and is also negotiating to sell them to The Edge.
The due diligence period for the deal between The Edge and Shea Homes is expected to end in the next few weeks.
The Conservancy filed a suit in early 2020 against the HOA board and its previous members over what a Superior Court commissioner eventually called an illegal acquisition of the declarant rights from Shea.
There is a proposed settlement between the new board and the Conservancy before Superior Court Joan Sinclair, who has yet to set a hearing on The Edge’s last-minute request to intervene in the case.
The Edge contended in papers filed late last month that the Conservancy and the board, now comprising some former Conservancy members, have “colluded” on a settlement that threatens its rights as owner of the property.
“There is no actual evidence of collusion,” attorneys Francis and Daniel Slavin told the judge in papers filed on behalf of the Conservancy last week.
Noting Club West’s 2,600 homeowners “turned out in record numbers to overwhelmingly elect a new board” that changed its direction, the Slavins said:
“The new board mandate was to protect the homeowners from the false choice being peddled by the golf course owner – conversion of the golf course to homes or be forever stuck with an eyesore of unmaintained blight land. The Edge has no right to intervene in either the CWC’s or (the board’s) business.”
In their filings, the Conservancy’s attorneys trace in detail the history of the course’s declarant rights, which were owned by a previous homebuilder, UDC Homes, and then acquired by Shea when it acquired UDC.
They note the declarant rights “emphasize mutually beneficial restrictions and obligations with respect to the use and enjoyment of the Foothills Club West Golf Course by the Foothills Club West community.”
Urging the judge to toss The Edge’s request, the Conservancy asserts, “The Edge is neither a party to this action nor a member of either of the nonprofit organizations which are parties to this action.
“There is no law that would allow a stranger to intervene to direct judgment in another’s lawsuit, especially a stranger which is a mere spectator as to the outcome of the lawsuit,” the petition continues.
It also notes that the tentative settlement before the judge could change, stating the HOA and the Conservancy “may revise their proposed form of judgment” and that the judge also “has the inherent power to change its mind.”
The lawyers also say that even Shea Homes has no right to interfere in the case, contending, “The Legislature has prohibited attacks by third parties to protect nonprofit corporations from outside interference in their business.”
The Conservancy has consistently claimed that the Club West community wants the site to be restored to a “world class” golf course, turned into a park or, worse, left as is.
It cites the responses of about 800 homeowners to a survey it took last year in which the vast majority opposed construction of houses on any portion of the course.
The Edge unsuccessfully attempted in January 2020 to sell the community on a plan to restore the course and finance it by selling three parcels to another home builder for construction of about 164 single- and two-story homes.
The Conservancy contends those homes would ruin the views and the home values of people who paid premium lot prices to be located next to the course.
Matt Shearer, one of The Edge’s four partners, contends the Conservancy survey does not necessarily reflect the majority of Club West’s homeowners because less than half answered it.
Although the HOA board has not formally stated what its position is, several board members at their August meeting told a handful of homeowners that no decision has been made on what might happen if Shea Homes buys the course and attempts to build houses on the site.
Several board members indicated that they likely would have to conduct some kind of election or survey of homeowners if a legal fight required an increase in HOA dues to pay for it.
While the HOA’s insurance company is paying most of the board’s legal costs in the Conservancy’s case, it is not clear if the insurer would pay for another lawsuit.
In its request to dismiss The Edge’s petition to intervene, the Conservancy’s lawyers also state, “The fact that The Edge expects Shea Homes to attempt to exercise the declarant rights in a way that would permit The Edge to remove the golf course use restrictions so that Shea Homes could develop the land is irrelevant.”
“This situation is like a bettor who places a wager on the outcome of a sporting event and then attempts to force his way into the field to affect the outcome of the game in the bettor’s favor….If The Edge has ‘development rights,’ it has not explained them.”