A new year and a preliminary injunction haven’t changed the fight over the future of the Club West Golf Course between the HOA board and a nonprofit comprising local homeowners.
The latest salvo in the nearly year-old case was filed last month by the HOA board, which disputes several key findings Superior Court Judge Daniel Kiley made in November when he stopped the board from considering any plan for the 18-hole course pending a trial in February.
Calling the once vibrant course “a dead piece of land,” the board’s brief says, “Rather than allowing the golf course property to deteriorate even further, the association is acting, and continues to act, in the best interests of the entire community.”
Now, a Jan. 22 hearing has been set before Superior Court Commissioner Andrew Russell on the Club West Conservancy’s request for a permanent injunction against the board.
Kiley’s preliminary injunction stopped the board from considering a still undisclosed proposal by four investors calling themselves The Edge and a related entity set up by three of those investors called Community Land Solutions.
The Edge, which bought the course from Wilson Gee for $750,000, and CLS want to turn the site into a park but have said that to pay for it, they must sell part of the course to a home developer.
The Edge a year ago failed to advance a plan to sell part of the course for homes and rebuild a shorter 18-hole golf course.
The Conservancy opposes any homes and is challenging the HOA board’s authority to do anything with the site, saying it improperly and illegally obtained the declarant rights to the course.
Those rights essentially give the board the power to decide how many Club West homeowners are needed to approve a plan for the course that first passes board approval.
It’s unclear if a permanent injunction would eliminate the need for a trial on the Conservancy’s contention that changing the site’s use for anything but golf must be approved by 75 percent of Club West’s approximate 2,600 homeowners.
When the board assumed the declarant rights after several secret meetings, first in 2010 and then in 2018, it decided that a percentage of less than half of that could alter the site’s use.
The HOA board’s latest brief contains a lengthy defense of its actions in assuming the declarant rights and attempts to rebut some of Kiley’s findings.
Citing “serious questions” surrounding the HOA board’s assumption of the declarant rights, Kiley granted the preliminary injunction until a trial, tentatively set for February.
The judge said he “does not doubt the board acted with good intentions” when it assumed the course’s declarant rights but suggested the board created a process for deciding the course’s future that is at odds with the Master Declaration that governs land use for the rest of Club West.
He noted that the course’s declarant rights can be changed in a way that stands in sharp contrast to the 75 percent approval required for any land use changes within the rest of the community.
In the brief filed by attorneys Carlotta L. Turman and Jeffrey G. Solloway, the board says the Conservancy is “factually and legally inaccurate” to say it has no right to assume the course’s declarant rights without 75 percent of Club West’s homeowners approving the action.
The Conservancy, it argues, “attempts to prevent the (homeowners) association from acting at all, let alone in the best interests of the community, in deciding the future of the golf course property.
“Leaving the golf course property as a barren piece of land does not comply with the golf course declaration as written,” it states, adding that the board “is not pushing for homes to be built on the golf course property.
“Rather, the Association Board wishes to solve the golf course problem in whatever manner will be in the best interests of the community as a whole. This was the sole reason for obtaining the declarant rights.”
It said without those rights, its only recourse would be to sue the owner and require him to live up to the requirements that the site be a fully operational golf course as it was until Gee closed it in the spring of 2018.
The board had sued Gee in 2016 when he first stopped irrigating the course, saying he could not afford city water bills that totaled more than $750,000 annually.
But the board dropped that suit in December 2017 after Richard Breuninger bought the course and briefly restored the site to its originally verdant state.
That didn’t last long as Breuninger fell into arrears with the city Water Services Department in February 2018 and eventually failed to maintain his monthly payments on his $1 million note that Gee held.
In the brief filed last month, the board’s lawyers argue that the Conservancy “would rather the Association spend possibly hundreds of thousands of dollars of membership funds to sue the owner of the golf course, in lieu of spending a few thousand dollars exercising its valid declarant rights to achieve the best result for the community at large.
“Plaintiff’s position is nonsensical and short sighted, and ignores the fact that the Association is the valid declarant under the Golf Course Declaration,” it states.
The board also says there was nothing wrong with its secret meetings, noting there is a difference between the actions that state law permits HOA boards to take in their executive sessions and those allowed municipal bodies like school boards and city councils.
“If the Legislature intended that all legal actions of planned community associations be taken in open meetings, it would have drafted the statute that way, similar to the public bodies open meetings statute,” the brief states.
The brief also states that in assuming the course’s land use rights, it “acted reasonably and in the best interests of the Association’s membership as a whole” and that it was “an attempt to combat the issue of a dead and decaying golf course.”
And while the Master Declaration governing all Club West land uses activities outside the gold course “does not explicitly state that the Association may act as declarant” for the golf course, it argues, “neither the Master Declaration nor Arizona law expressly prohibit the Association from acting as declarant” for the site.