The failed attempt by four investors to begin an approval process for 162 houses on the Club West Golf Course has given birth of a nonprofit group of homeowners that is challenging the HOA board’s handling of the beleaguered site.
The Club West Conservancy, an incorporated organization of about 30 retired and active executives and professionals who own homes in the community, contends the board violated state statutes and the homeowners association’s covenants, conditions and restrictions in a way that made it possible for the investors to even submit their ill-fated plan.
Stressing they are seeking “to identify long-term sustainable solutions to the current issues facing the” course, the Conservancy’s lawyer last week delivered a letter to the HOA board demanding it retract a secretly made amendment to the CC&Rs governing the golf course.
The Conservancy also is demanding that the board “perform a thorough, objective and data-driven assessment of alternative uses” of the course that will have “minimal overall environmental impact to the community.”
And it is citing the decision in the Ahwatukee Lakes Golf course case, demanding that the board take legal action against Club West Golf Course owner Wilson Gee to force the virtual restoration of the site as a “first class golf course” that the CC&Rs require.
The Conservancy’s emergence poses the possibility of a two-pronged legal fight – one against the HOA board and the other against Gee.
But Conservancy President Matt Tyler and member Bob Dotson said they are seeking an amicable resolution of the dispute with the association’s directors.
Stating the Conservancy is not trying to be a “problematic organization” and wants to enter a constructive relationship with the board, Tyler said the group has a two-fold mission:
“One, we want things to operate in a legal and open fashion. And two, we really do want to work very closely with everybody we can in the community to find the right solution for the property.”
Board President Mike Hinz did not return AFN’s calls for comment.
Gee owns both courses and has a tentative deal to sell the course to The Edge for about $850,000. Escrow is set to expire next week, although Gee has called the deadline “fluid.”
He closed the course in June 2016, citing city water bills of more than $750,000.
The Edge in January presented 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.
The Edge on Feb. 14 announced that Taylor Morrison pulled out, citing 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.
That announcement prompted the HOA board last week to cancel plans for a vote on whether to ask homeowners to amend the CC&Rs and pave the way for The Edge to buy the course and sell part of it to Taylor Morrison.
The Conservancy’s first target is the board’s amendments to the golf course CC&Rs that paved the way for that proposed vote.
In a closed-door session in October 2018, the board approved changes that would have allowed a simple majority of only 31 percent of the 2,700 homeowners to amend the course’s CC&Rs.
That in effect change 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.
“There was no mechanism for them to amend the CC&Rs,” Tyler said, adding that any change in the course’s land use regulations must be approved by 75 percent of all homeowners.
Stating board members “have an obligation to treat homeowners in the HOA over which they preside equally and fairly,” Tyler said the board should never have considered the Edge plan because it would harm homeowners who would lose their mountain views to houses.
Tyler, who bought a house abutting the course last March, said many of the Conservancy members also belong to a far larger but less structured group called Concerned Club West Homeowners that has weighed in on the golf course’s future.
“There is a portion of the community that still thinks it’s okay to sell out part of the community to fix the rest of it,” Tyler said, adding a number of the larger group’s members have asked to join the Conservancy.
“I consistently get these utilitarian arguments from both the board and from a few members in that organization that ‘Well, we have to do something. Something has to happen.’ But again, our HOA has the responsibility to treat all homeowners fairly.”
During the HOA’s monthly meeting last week, board President Mike Hinz said the board would not deal with multiple groups on the golf course’s future, according to sources who attended.
The board had sued Gee in 2016 to restore the course, but terminated that litigation after he had sold it to Richard Breuninger in December 2017.
When Breuninger’s operation unraveled and Gee foreclosed on his $1 million note in September 2018, the Conservancy said, the board should have begun exploring legal remedies to force Gee to comply with his obligations under the golf course’s CC&Rs.
Tyler cited the Lakes decision – upheld by the Arizona Court of Appeals and now awaiting a decision by the state Supreme Court on Gee’s request for its consideration of the case.
“We’re very familiar with it,” he said of the ruling, which required Gee to restore the Lakes.
When it comes to Club West, he said, “I do believe that there was a mechanism and a path to hold the owner responsible. Our lawyers feel very strongly about that.”
Moreover, he added, “I think what bothers me is our board has taken the position over the last five years that ‘Well, the property is in escrow.’”
He likened the situation to a homeowner whose house is on the market and tries to defy an HOA order to paint it if it needs painting.
“At least we can make him start to feel like he’s responsible for it,” Tyler said.
When reminded that Gee has intimated, he might walk away from the Lakes and declare bankruptcy if he loses that court fight, Tyler replied that’s probably a possibility with Club West as well.
“He may decide it’s not worth it, but he’s not going to decide that as long as we just let him sit there and hope something happens. Nothing good is going to happen if we follow that course,” he said.
Tyler also said that even if the Edge Team managed to buy the course, it, too, would be under the same obligation.
As for the course’s future, Tyler said the Conservancy has no agenda beyond making sure its fate is decided by the existing CC&Rs governing the Club West HOA and in a way that doesn’t disenfranchise hundreds of homeowners who adjoin the site.
He stressed that his group’s lawyer has not threatened litigation against the board, though he admitted, “it’s certainly possible it could go there – we’re prepared for that.”
But he said Conservancy members want a peaceful resolution of their differences with the board.
“Our goal is not to jam things up in court,” Tyler said. Our goal is ‘Let’s operate the community in the way that it was intended and let’s preserve the rights of all the homeowners within the Club West community.’”
“We’re saying, ‘Here is the legal foundation for what we’re asking you to do.’ There is a very clear list of demands that we have made to the board. They can choose to comply with that or they can fight it. I don’t think it behooves them to fight it.”