A group of Club West homeowners who want the beleaguered golf course to be restored or turned into a preserve recently fired back at their HOA board’s effort to dismiss their lawsuit over what they call an illegal attempt to control the site’s future.
The Club West Conservancy has sued the Foothills Club West Community Association board’s assumption of the course’s “declarant rights” without getting the approval of 75 percent of homeowners.
Four investors who banded together as the Edge Group have been in escrow since last fall to buy the course from owner Wilson Gee, who put it up for sale at a price of $850,000 in 2018.
The Edge Group early this year unveiled a plan to sell three segments of the course totaling 52 acres to Taylor Morrison for 162 single- and two-story houses.
It would then use some of the proceeds to reconfigure the course into a shorter 18-hole “precision course,” create an 18-hole putting course and build a new clubhouse on the remaining 110 acres.
But on Feb. 14 it announced that Taylor Morrison pulled out of their deal – which would have required a vote by homeowners.
The homebuilder cited opposition by a number of homeowners – particularly the 357 who paid premium lot prices of as much as $60,000 to have homes and backyards abutting the course.
The Edge Group reportedly has come up with a new plan to build fewer homes and turn the remainder of the site into a preserve.
But that plan, which has not been publicly unveiled, has been stalled by the pandemic, which has prevented the HOA board from holding meetings since February.
At issue in the Superior Court lawsuit is a series of actions by the board in 2010, 2018 and 2019 that in effect gave it more influence in determining the course’s future use.
Any change in the site’s use would still have to be approved by the homeowners, although the board in December had issued a set of rules for voting on the Edge Group’s plan that would have allowed a simple majority of only 31 percent of the 2,700 homeowners to amend the course’s CC&Rs.
That move in effect would put the fate of the course in the hands of only about 400 homeowners.
The amendment did not become public until late last year, when the board issued rules and a schedule for how the Edge Team proposal would be considered even before the investors unveiled their plan.
The board last month asked the court to dismiss the Conservancy’s suit, saying it “lacks standing to engage in a proceeding to challenge the association’s power to act.”
But in new papers filed earlier this month, the Conservancy said that its members – like all homeowners in the community – “have the standing and the right to bring an action against the association for any violation or breach by the association” of its bylaws.
It also said the board “expended monies assessed against HOA members” for a series of “unauthorized expenses” that included an unspecified amount of legal fees connected to the preparation and review of documents related to its effort to have a greater say over the course’s future.
“Defendant HOA is not legally authorized to expend monies collected from assessments imposed on the HOA’s members for the purpose of operating or managing property not owned by the HOA or its members,” the new filing states.
The Conservancy also cited a number of state laws giving homeowners the right to sue their HOA’s “power to act” and the right of homeowners to form an organization to challenge an HOA’s actions.
“The party need only show that ‘whether, given all the circumstances of the case, the association or other organization has a legitimate interest in an actual controversy involving its members and whether judicial economy and administration will be promoted by allowing representational appearance,” the new filing states.
In other words, rather than individual homeowners filing legal actions against the HOA board, the Conservancy is saving the courts time and money by representing them in the controversy.
The Conservancy also disputed the board’s contention that Gee should be a party in the suit and that since he wasn’t named, the lawsuit should be dismissed because his rights would be injured.
“Defendants provide no explanation or rationale as to how the owner could be damaged” if Gee is not a party in the suit,” the Conservancy said, adding:
“Defendants do not explain how the association’s lack of authority to make decisions regarding the restrictions against the golf course is or could be detrimental to the rights of the golf course owner.”
No hearing has yet been set on the case. Because social distancing guidelines have limited court activity, even their gradual relaxation in Arizona may still mean a hearing on the Conservancy’s suit won’t be held until the summer.