The four men who bought the Club West Golf Course two years ago have obtained the declarant rights to the beleaguered site.
Papers filed with the County Recorder Sept. 22 show Shea Homes transferred the declarant rights to The Edge. The quitclaim filed by Shea makes no reference to whether The Edge paid anything to obtain those rights.
Attorneys for The Edge disclosed the transfer last week as they renewed their request to Superior Court Judge Joan Sinclair to let them intervene in the Club West Conservancy’s still-unresolved lawsuit against the homeowners association.
THe HOA board fired back on Monday with a reply, stating The Edge can't claim the declarant rights because the Superior Court Commissioner who said the old board obtained them improperly never said the board did not have those rights.
And that argument between The Edge and HOA may further complicate the future of the 165-acre site, which has been closed since early 2018.
The declarant rights have been central to the lawsuit.
The Conservancy in March 2020 sued the previous Club West HOA board, contending it illegally acquired the declarant rights from Shea Homes, which got them in 1993 from a previous developer.
Superior Court Commissioner Andrew Russell last April sided with the Conservancy, ruling that the board had violated the state open meeting law and Club West’s own master bylaws by acquiring those rights.
However, the new HOA board members at several of their monthly meetings have insisted that Russell never took those declarant rights away from the homeowners association.
And in the board's formal response to The Edge's disclosure, attorney Tim Barnes wrote, "While Judge Russell’s March 23, 2021, Under Advisement Ruling held that FCWCA violated the planned communities open meeting statutes, it does not find that the assignment was void."
Therefore, Barnes has asserted Shea's quitclaim "could not legally transfer the declarant rights under the Golf Course CCRs from Shea to The Edge. Because the Shea assignment to FCWCA was recorded, there must first be a judgment entered by which the Court includes an order that FCWCA is no longer the declarant and Shea will continue as the declarant – and such a judgment must then be recorded in order to give effect to what the Quitclaim of Declarant Rights purports to accomplish."
The declarant rights give the owner a great say over how the golf course land can be used.
While they spell out in detail how the Club West site must be run as a world-class golf course, the declarant rights also seem to provide an escape clause from that requirement.
“The declarant has the power under the declaration to release portions of the property to be developed for non-golf course uses including housing,” that clause reads.
That’s exactly what The Edge tried to do in January 2020, when it proposed selling three parcels to Taylor Morrison to build 162 homes so it could finance the course’s reconstruction.
That proposal stirred opposition from some homeowners, who formed the Conservancy and then challenged the HOA board’s acquisition of the declarant rights.
After Taylor Morrison pulled out, The Edge suggested the site could be turned into a park – but it noted there still needed to be a way to pay for its construction and maintenance.
The Conservancy – and most, if not all, HOA board members – adamantly oppose any homes on the site, contending in part that it is unfair to about 300 homeowners who paid premium prices for lots adjoining a golf course.
Homeowners have appeared at the last three or four HOA board’s meetings demanding to know what is being done to resolve the impasse.
While board members previously told residents they’ve been advised to say nothing lest they be sued by The Edge, they flatly told residents at their October meeting there were no new developments.
Meanwhile, the Conservancy’s lawsuit has languished for lack of a final order Sinclair can sign.
The board has told residents it is up to Conservancy to file a satisfactory proposed settlement order for the judge to approve and that instead the group has sought three continuances.
Lawyers for the board and the Conservancy last met with the judge on Aug. 17 to discuss the proposed order the Conservancy had filed.
They discussed two points in the proposed settlement, but the judge also told them The Edge wanted to have a say in the case.
The judge said, “Just to be fair…I will wait until the briefing is done on the motion to intervene before I do anything in terms of a final order here to make sure I’m not foreclosing someone’s rights that should be heard as part of this matter.”
Since that meeting, the Conservancy has filed no new settlement proposal reflecting the two points it seemed to agree on during the Aug. 17 hearing.
Edge attorney Daniel Dowd in several filings has stated his clients’ rights are so critical to the case that they should be allowed to intervene.
He also has filed said that the Edge will drop its request to intervene if the Conservancy files a settlement order to the lawsuit that it and the HOA to agree on in the Aug. 17 hearing before Sinclair.
Last week, Dowd’s latest filing argued, “Although The Edge already had a significant interest in this litigation as the fee owner of the property, it now has additional interest as the property’s declarant.”
He also renewed his allegation that “the CWC and the association are colluding” to negate Russell’s April ruling, thereby giving the HOA the declarant rights.
Down also said if he can’t intervene in the case, “The Edge’s property rights would be severely harmed.”