13114448 - green golf course

It was game, set, match for the Club West Conservancy last week as a second Superior Court ruling shot down – likely for good – the old HOA board’s acquisition of the land use rights that could have made it easier to change the Club West Golf Course’s future.

And now not only that future but the course’s ownership remains uncertain as the newly reconstituted Foothills Club West Association Board of Directors begins studying its next move.

The board was scheduled to meet with their attorney April 1 to discuss Superior Court Commissioner Andrew Russell’s March

24 decision.

That ruling dealt a one-two punch to the former board, declaring it had no authority to annex the beleaguered golf course without the approval of 75 percent of Club West homeowners and that it violated open meeting law by voting in secret to do it in the first place.

Russell’s ruling – a major victory for the Conservancy and attorney Francis Slavin – was also a major blow to The Edge, the four investors who bought the course.

The Edge principals lost the ability to appeal any time soon to homeowners to let them use the 160-acre site for something other than golf – or sell some of the course to a homebuilder so that the rest could be used for a park.

When asked what The Edge planned to do, Matt Shearer, one of its principals, replied via email, “Based on the court’s ruling we are waiting to see how the CWC/BOD proceeds.”

The acronyms referred to the Conservancy and the HOA board.

HOA Board President Julie Tyler declined comment, noting she and the board had not yet had a chance to discuss the impact of the ruling.

“We obviously know that there’s a lot involved and I think for new members, we want to understand all of the legal implications before commenting,” she said.

Her husband, Conservancy President Matthew Tyler, said Russell’s ruling likely makes any further litigation against board unnecessary since four of the members named in the lawsuit were ousted by residents in board elections early this month.

But Matthew Tyler said he thinks the ruling opens the way for litigation by the board against the golf course owners themselves. 

Citing the rulings in the Ahwatukee Lakes Golf Course case that found land use regulations on that site required owner Wilson Gee to restore it for golf, Tyler said:

“It would certainly be my position that the HOA needs to jump start to pursue legal action against the owners of the golf course and have them start to maintain a properly.”

Ironically, the old Club West board did exactly that back in 2016 when Gee, then the owner, closed the golf course. He said he could no longer afford the city water bills, which then totaled more than $750,000 annually.

But the board eventually dropped the lawsuit after Gee sold the course to Richard Brueninger in the fall of 2017. Brueninger restored the course for four months between late 2017 and early 2018, when he went belly-up after running up over $165,000 in unpaid water bills.

Asked if the Conservancy would request that the board sue to force The Edge to comply with the site’s land-use regulations, Matt Tyler replied:

“Absolutely. I think that’s definitely a strong next step. We know the board is forming focus committees to start really digging into solutions. I think the next component from the Conservancy’s perspective is we’re going to start trying to work with the City of Phoenix and start lobbying them for a little bit of support as we look at all the changes looming in the community.”

“We see the economic landscape shifting,” Matt Tyler said. “We certainly want to pursue options for lower-cost or reclaimed water solutions from the city.”

Russell’s long-awaited ruling involved the previous HOA board’s acquisition of the course’s declarant rights, giving it considerable influence in determining the site’s future by deciding what plan would be presented to homeowners for a vote and how many homeowners were needed to approve it.

The Conservancy challenged the old board’s right to annex the course without the approval of 75 percent of Club West’s approximate 2,600 homeowners and also called the board’s closed-door meetings to acquire the declarant rights illegal.

In late 2019, the old board used its newly acquired declarant rights to schedule a process for a community review and vote on The Edge’s plan for the course.

In January 2020, The Edge presented a plan to restore the 18-hole course and build a new clubhouse, saying that project had to be financed by selling three parcels to a homebuilder for construction of 164 houses.

The old board had tentatively set a schedule in which it would formally review the plan and possibly recommend changes, then have the community vote on it in March 2020. That vote would have required only 31 percent of homeowners to vote on the plan, with approval decided by a simple majority.

Former board President Michael Hinz said the board never approved The Edge’s original plan, which fell apart anyway when the homebuilder pulled out because of opposition to houses on the course. 

Hinz, who is still a member of the reconstituted board, also denied the meetings were secret, contending they were permissible executive sessions because the board was conferring with counsel.

In his ruling, Russell said the window had long ago closed on the board’s authority to annex the golf course without a community vote.

He said the Club West Association’s master Covenants, Conditions and Restrictions governed any annexation effort now and that meant it required the approval of 75 percent of all homeowners.

 Russell said that requirement “makes little sense, but the Court did not draft the Master CC&Rs.”

Russell also shot down the old board’s defense of the closed-door meetings.

“Under defendant’s analysis, a board could vote on all issues in executive session, provided the board had their lawyer present,” he wrote. “This is obviously contrary to (state law), which limits those issues a board can consider in executive session. None of the authorized subjects for executive sessions include voting or otherwise taking action.”

He said, “Executive sessions are only authorized for receiving legal advice, or discussing certain topics. Arizona law seeks to maximize public involvement, and allowing votes or final action in an executive session is directly contrary to that goal.”

The Edge bought the course from Gee for $750,000 and Gee holds the promissory note for the deal.

Gee previously told AFN that he doesn’t see how any plan for either restoring the course or converting it into a park can go forward without the money that selling parts of it to a homebuilder would provide.

The Conservancy was formed by a group of homeowners who were opposed to any homes on the course, noting that unfairly impacts more than 350 homeowners who paid premium lot prices of as much as $80,000 to have their property abut a golf course, not someone’s backyard.

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