A hearing next week could put the future of Club West’s beleaguered golf course in limbo until at least October – and possibly much longer.
During an hour-long argument before Superior Court Judge Daniel Kiley on Monday, lawyers for the nonprofit Club West Conservancy and the HOA’s board agreed to an Oct. 5 hearing on an injunction that would block any homeowners’ vote on changing the course’s use pending a trial on the Conservancy’s lawsuit against the board.
If the injunction is granted, a trial likely would not occur before February, Kiley indicated Monday.
That schedule hinges on the outcome of a June 22 hearing before Kiley on the HOA board’s request to dismiss the Conservancy’s lawsuit. Kiley also wanted to know by then if the board would agree to take no further action related to the course until that Oct. 5 injunction hearing.
The Conservancy claims the HOA board illegally assumed the “declarant rights” that enable it to determine how Club West homeowners would vote on the course’s future.
The board has countered that the Conservancy, comprising a group of Club West homeowners who oppose any plan for houses on the site, has no legal standing to sue the board.
The Conservancy’s suit accuses the board of illegal actions that put the course’s ultimate fate in the hands of 31 percent of Club West’s 2,400 homeowners – with just over half of that percentage needed for approving a change in use.
The Conservancy contends any change requires the approval of three-quarters of all homeowners.
In an affidavit filed last week with the court, board President Mike Hinz said that had it not obtained the declarant rights, “a developer or group of bad actors could theoretically take control of the association board of directors and unilaterally amend the golf course declaration to allow for development of the entire golf course.”
“Plaintiff falsely asserts that the purpose of the 2018 amendment was to reduce the percentage of approval by the association members from 75% of all owners to a majority 31% of the owners to ratify” a change in the course’s use, Hinz stated.
His affidavit states that the original declarant rights would have allowed a change to the site’s use if only 10 percent of the homeowners.
“To date, no proposal or plan for development of the golf course has been submitted or placed on the agenda for a vote by the board of directors,” Hinz’s affidavit also states, adding:
“The board is unaware of any proposal by the current owner of the golf course that is to be presented to the community at an open meeting of the members.”
Comprising four local investors, The Edge earlier this month bought the course from Wilson Gee.
The board issued a statement to residents when The Edge closed the deal on June 1 that said the new owners had renamed the course “The Park at Club West” and that they intended “a limited amount of development and a maximum amount of open space.”
Conservancy attorney Francis Slavin told the judge that “without your intervention, there’s a likelihood that the defendants and the Edge Group will continue along the path to convert the golf course to non-golf usage.
“We think it’s time for there to be a status quo put in place, allow us to develop this case, come forward in a preliminary injunction hearing and ultimately a trial and have it determined that the actions of the defendants do not allow for the golf course to be converted to non-golf use.”
“My client’s objectives are to block real estate speculators and profit seekers from destroying the Ahwatukee golf course,” Slavin said.
Kiley rejected the Conservancy’s request for a temporary restraining order after attorney Scott Carpenter, representing the HOA board, said that Slavin’s request was so broad that it would prevent the board from even talking The Edge or with city Councilman Sal DiCiccio.
He contended The Edge is a member of the HOA like any homeowner – a contention that Conservancy attorney Francis Slavin disputes.
“What we have here is a dead golf course,” Carpenter argued. “It’s upsetting. It’s upsetting to the city. It’s upsetting to the owners around the golf course. The club West Conservancy owners are upset. Foothills Club West, my client is upset. The board of directors are upset.
“The idea of enjoining Foothills Club West and the board from dealing with the dead golf course does not solve anyone’s problem the wording of Mr. Slavin’s request,” he said.
“This would ban me from calling Sal DiCiccio, the Phoenix city councilperson who has been involved in this project, who’s been trying to get this problem solved for everyone involved. And the idea that the board of directors cannot talk to a city councilperson or mayor about a dead golf course is something we need to take seriously and be careful about.”
Slavin countered that nothing prevented the board from talking to city officials about getting cheaper water to the site – the issue which basically prompted Gee to first close the course in 2016.
Kiley agreed with Carpenter’s description of Slavin’s request for a restraining order, saying he would need more evidence and a persuasive interpretation of the First Amendment to persuade him to ban the board from talking to the Edge about its plans for the course.
But he also indicated that unless he grants the HOA board’s dismissal motion, he would expect it would not move on The Edge’s plan until he rules on the injunction request after the October hearing.