Club West course owner resumes legal fight with the Conservancy

(File photo)

The companies that built most of the homes in Club West never promised anyone who bought a house there that they would always have a golf course as the centerpiece of their community and expressly advised them the 164-acre site could one day be used for some other kind of 

That assertion was made last week by a quintet of lawyers representing course owner The Edge as it attacked the Club West Conservancy’s request for a court order to permanently ban home construction on any part of the site.

Meanwhile, in an unrelated legal case involving another of Ahwatukee’s four golf courses, Ahwatukee Lakes, a different judge gave both parties two weeks to file closing written arguments in connection with two homeowners’ request for $2 million in sanctions against course owner ALCR.

Homeowners Eileen Breslin and Linda Swain have waged a nine-year legal battle to have that course restored after it was shut down in 2013. While ALCR has reopened the course for play, they contend it failed to expressly follow a judge’s directives for how the restoration was to be done and that it failed to address various deficiencies, including the construction of a new clubhouse.

The Conservancy, a group of homeowners in the 2,700-home community, contend that UDC Homes and its successor, Shea Homes, promised at least some homeowners the site would always be a championship golf course and that they used that promise in countless ads and publicity releases to attract buyers.

The group is asking Judge Timothy Thompson to ban The Edge from selling any part of the site to a homebuilder, although the four owners who comprise the ownership group have not said what they intend to do with the site they bought in 2019 for $750,000.

The Edge in early 2020 initially proposed restoring the deteriorated property with a shortened 18-hole course. a new club house, driving range and 18-hole putting course and selling three pieces of the site for construction of 164 houses to pay for it.

But after builder Taylor Morrison pulled out of the deal in the face of opposition by some homeowners, The Edge through a related entity sought suggestions from homeowners on what to do with the site, suggesting it could be turned into a park.

Since then, however, it has not

presented a development proposal, largely because of the current litigation and an earlier lawsuit that the Conservancy had filed against the Club West Association Board.

The Edge’s latest response to the Conservancy’s lawsuit comes after a year of a battle fought largely on paper to have the case dismissed outright on grounds that the group had no standing to even bring the suit.

But Thompson in December brought an end to that argument by ruling the Conservancy had standing, though he also stressed his ruling was limited and that The “Edge makes arguments that might end up being correct.”

In last week’s filing, lawyers for The Edge noted that none of the ads or publicity by homebuilders promised “the property will be used, maintained and operated as a golf course in perpetuity.”

The Conservancy has argued that many of the approximate 320 homeowners who paid premium lot prices to be

located along the course shelled out as much as an extra $60,000 for their

locations based their decision on promises of a golf course and that some of their sale agreements include that guarantee.

But lawyers noted that the declarant rights for use of the site – which belong to the owner and not the HOA – noted there is a disclaimer that states:

“All Persons, including all Owners, are hereby advised that no representations or warranties have been or are made by Declarant or any other Person with regard to the continuing ownership, operation or configuration of, or right to use, any golf course within, near or adjacent to the [Residential] Property, whether or not depicted on the Master Development Plan or any other land use plan, sales brochure or other marketing display or plat or purported representation or warranty, written or oral, in such regard shall ever be effective without an amendment hereto executed by Declarant.”

They also cite another portion of the declarant rights that gives the course owner the right “to release or cancel

all or any portion of this Declaration with respect to all or any portion of the Golf Course Property at any time without the consent or approval of any other party.”

The Edge’s lawyers address every marketing piece, news story and other material that the Conservancy cites in its lawsuit.

For some items, they said they have no knowledge that the person or material ever said what they are alleged to have stated.

For the most part, however, the lawyers repeatedly assert that nothing that was quoted or cited by the Conservancy ever promises a golf course forever.

They also state that sales agreements cited by the Conservancy contain

verbiage that uses of the land are

“subject to change at any time without notice.”

And they maintain the homeowners cannot call themselves beneficiaries

of the golf course’s declarant rights and that the “declaration identifies only one beneficiary – the owner of the property.”

The Edge’s lawyers also disputed the Conservancy’s assertion that most Club West homeowners opposed the initial 2020 plan to sell three pieces of the course and noted that most of the several hundred owners who attended The Edge’s first presentation of its plan in January 2020 liked the plan.

Thompson has not yet indicated the next step in the litigation, although The Edge’s lawyers asked him to reject the Conservancy’s lawsuit and award them and their clients legal fees.

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