Time to pay the piper.
That’s what Ahwatukee Lakes residents Eileen Breslin and Linda Swain this week told state Superior Court as they asked it to require owner Wilson Gee to restore the golf course or be held in civil and criminal contempt of court.
Opening a new front in their five-year-old legal battle to restore the course that Gee closed in 2013, Breslin and Swain in an open letter to AFN said they’ve directed their lawyer, Tim Barnes, “to enforce the permanent injunction we were awarded.”
Barnes filed asked the court to force Gee to show cause why he should either begin work to restore the course or risk being held in contempt.
“To date the golf course has continued to deteriorate and no apparent steps have been taken to restore the golf course,” Barnes’ motion states.
He asked the court to conduct an evidentiary hearing and order Gee’s company “to appear and show cause why it should not be held in contempt for violating the permanent injunction ordering the owner of the Ahwatukee Lakes Golf Course to operate a golf course on that property.”
The request will be considered by a different judge from the one who twice ruled that the covenants, conditions and restrictions governing the 101-acre site required it be maintained as a golf course.
Superior Court Judge John Hannah issued that decision twice in the last three years and his latter ruling of January 2018 was recently upheld by a three-judge panel of the Arizona Court of Appeals.
Through normal judicial rotations, Hannah no longer oversees the case and a different judge will hear Barnes’ motion.
The case will now be before Judge Theodore Campagnolo.
Several different companies owned by Gee are listed in Barnes’ motion. The True Life Companies, which had tried to get homeowners to let it build houses, a school and other amenities on the site, also is named in Barnes’ motion.
That motion sets the stage for an historic showdown between Gee and the homeowners.
After the appeals court ruled in the homeowners’ favor, Gee repeated what he has often has told AFN in the past – namely, that the site will never be a golf course again.
“It doesn’t really change anything,” Gee said last month. “Obviously we’re not going to do anything and the next guy’s not going to do anything because it doesn’t make sense to be a golf course. That’s wrong. That’s the reality. Doesn’t matter what the courts rule. It’s not going to happen.”
Gee also maintained what his lawyers have insisted in court – that the state has no right to order a property owner to run a business that he says will never make a profit, and even lose money.
That radically differs with Presiding Appeals Judge Randall Howe, who took exception to the arguments made by Gee and True Life.
Howe said their argument “runs counter to the principles governing the interpretation of restrictive covenants in Arizona.”
“The circumstances surrounding the covenant’s creation and the covenant’s language show that the covenant was intended to require the continuous operation of a golf course on the property,” Howe wrote.
Besides qualifying for land tax breaks the county gives golf course owners, the CC&Rs also exist to “protect the benefited persons’ interest in living next to, or having views of, a golf course.”
Stating Lakes homeowners “have the right to ensure that they have a golf course next to, or within view of, their homes,” Howe said, “interpreting the covenant to allow the current owner to leave the property ‘idle’ completely frustrates this purpose.
“The option of no golf course does not leave the property merely without a golf course,” he continued, “but – as Breslin and Swain testified – a dead, desolate ‘wasteland’ with overgrown weeds, ringed by a chain-link fence. The choice of such an alternative destroys the covenant’s purpose and could not be within the original owners’ intention in creating the covenant.”
Howe ruled that even though True Life backed out of its deal with Gee, the company is still covered by the lower court order.
However, True Life, a national developer, set up an Arizona company for the Lakes and it’s possible it could file for bankruptcy to get out of the case.
Gee in his interview with AFN suggested he could choose “the nuclear option” of simply walking away from the site he had tried to sell True Life for $9.1 million in 2015.
He foreclosed in 2018 on True Life’s promissory note that was conditioned on its ability to get the CC&Rs changed.
“We conclude: enough is enough,” wrote Swain and Breslin. “Because Mr. Gee won’t comply, we have asked our counsel this week to summon Mr. Gee back to court to enforce the permanent injunction we were awarded.”
Estimates vary widely on the cost of restoring the course.
The homeowners’ experts have estimated it would cost around $6 million while a study commissioned two years ago by True Life put that figure at $14 million.
Then there’s the ongoing debate of whether the course can be turned into a going business.
Gee said he closed the course because it wasn’t drawing enough players while Breslin and Swain – as well as the experts they presented at trial in 2017 – asserted the market was there if the course was run properly.
Gee still has other legal options in the case.
He told AFN last week that his lawyers within the next two weeks will ask the Arizona Supreme Court to consider the Appeals Court’s decision.
He opted against asking the appeals panel to reconsider its ruling.
But an appeal to the Supreme Court does not guarantee that it will even listen to Gee. It has the option of turning him down.
Moreover, Barnes said that Superior Court is not required to delay any enforcement action while the Supreme Court considers Gee’s appeal.