Club West suit gets first hearing in court

The Club West Golf Course has been barren since spring 2018 and has been the subject of two protracted legal fights, first between the Club West homeowners association and the Club West Conservancy and now between the Conservancy versus Shea Homes and The Edge. (AFN file photo)

A Superior Court judge on July 26 in a preliminary ruling dismissed the Club West Conservancy's bid for a ruling barring Shea Homes and Club West Golf course owner The Edge from ever building homes on the 18-hole site.

But Judge Timothy Thomason gave the Conservancy 30 days to file an amended complaint, offering it some suggestions on what it must address.

At the same time, Thomason rejected arguments by both The Edge and Shea to get out of further legal action altogether, suggesting all three parties in the case failed to offer persuasive evidence and/or arguments for their positions.

The judge may still issue a formal written opinion as his initial reactions were filed in a lengthy minute entry that summarized the three parties' positions and the gist of what likely will be in his formal opinion.

During a 45-minute hearing the day before Thomason issued his ruling, lawyers for Shea and The Edge told the judge that the Conservancy is seeking an order against a plan that doesn't exist while the lawyer for the homeowners group accused them of creating a smokescreen by insisting the suit was invalid because the Conservancy’s members are not identified.

 Thomason said the case at this point appears to hinge on whether there is an issue that is justiciable, or legally viable for judicial review, but in his ruling said he agreed that the Conservancy must identify its members in order to proceed.

“I’m not sure there needs to be a plan in order for there to be a justiciable controversy,” Thomason said during the hearing. “There does seem to be a real disagreement between the sides here about whether or not property has to be used as a golf course. I guess my question is: isn’t that enough to at least create a justiciable controversy?”

The hearing was the first courtroom airing of a legal action the Conservancy filed in December over the future of the long-dormant golf course.

The Conservancy wants to the court to permanently ban The Edge from selling any land to Shea or making any other deal for housing construction.

But The Edge and Shea say the court should dismiss the suit, stating that the Conservancy has no legal standing to “interfere with private agreements” related to the site’s use and that it “fails to allege an actual” controversy anyway.

The Conservancy comprises a group of some Club West homeowners who have opposed any effort to build homes on the course since spring 2020.

It formed after The Edge had rolled out a plan in January 2020 to restore the course and build a new clubhouse, financing the renovation through the sale of three parcels to another homebuilder that long ago dropped out of the discussion.

Shea Homes holds the declarant rights to the site, though one of the Conservancy’s arguments alleges that Shea failed to properly register as the declarant when it bought out UDC Homes, the first homebuilder in Club West.

But the main thrust of the Conservancy’s lawsuit – which includeds two dozen pages of references to legal documents, newspaper ads and marketing materials – is a contention that the golf course was an integral part of the sales pitch used by Shea to lure homebuyers.

That sales pitch was the same used by Club West’s initial developer, UDC Homes, which eventually was acquired by Shea.

“Foothills Club West was developed, marketed and sold by UDC-Foothills Limited Partnership as a golf course community with an 18-hole championship golf course at the heart of the community,” Conservancy attorney Francis Slavin wrote, quoting a 1990 newspaper announcement that said:

“The 6,883-yard, par-72 championship golf course and the 20,000 square-foot clubhouse will be the focal point of a 1,447-acre master planned community that will include 25 residential communities.”

Another story said: “The biggest draw for Club West residents is the view of the mountains and the golf course views. Every home has at least one window on the changing panorama, and many homes back right up to the greens.”

Slavin also contends that the golf course CC&Rs are referenced in home sales contracts to assure buyers they could trust that the site would always be used only for golf after 2008.

That contract language is pivotal to the Conservancy’s contention that Shea Homes never legally acquired the golf course declarant rights from UDC.

“The only potential remaining right, if any, of the declarant under the Golf Course CC&Rs was the right to enforce the use restriction…that was written into the Foothills Club West homeowners’ purchase contracts,” Slavin wrote, adding:

“Through their purchase of lots and homes within the Foothills Club West master-planned community, each purchaser acquired the right, among others, to enforce the ‘use restriction’ to restrict the golf course property for golf course uses.”

A lawyer for Shea Homes on Monday told Thomason that the homebuilder has no interest in developing any portion of the Club West Golf Course.

“Shea no longer owns this property,” attorney Shannon Cohen said. “It has no interest in the property. It has no plans to develop the property or ability to develop the property.”

Edge attorney Cindy Albracht-Crogan told the judge that to even have standing in court, the Conservancy must “allege a distinct and particular injury and right.”

“Their whole damage claim is based on a 2020 development proposal with Taylor Morrison. They’re not even in the game anymore. There is no plan. There is no development plan. Shea is not a buyer of the property anymore, either.

“There was literally no development plan. And so I do not understand how the (Conservancy) members could ever at this stage of the game, say that they’re going to be harmed by a development plan that does not exist.”

“Controversy has to be based on the presence in duping facts, and there just are none,” Albracht-Cogan added. “There is no development plan for residential construction, that they can say that they’ve been harmed by.”

Albracht-Cogan also ripped the failure of the Conservancy suit to identify specific homeowners, contending their anonymity made it impossible to determine who even would be potentially harmed if there was a development plan.

Slavin argued, “My clients are homeowners. They live on that course.”

“I think it’s very difficult for The Edge to be here today, showing you straight faced that there’s absolutely no justiciable controversy when they themselves have acknowledged this in a court filing,” Slavin told the judge, asserting the golf-only restrictions in the sales agreements gave any homeowner in Club West the right to seek a permanent ban on homebuilding on the site.

“The homeowners entered into a purchase contract, they incorporated the use restrictions,” he argued. “They clearly have standing because they have purchased property within this community.”

If the Conservancy refiles an amended complaint, it could lead to a years-long legal battle reminiscent of the seven-year fight by homeowners in Ahwatukee Lakes.

Thomason or another judge would then have to schedule hearings and possibly a trial on the Conservancy’s request for a homebuilding ban.

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