With another hearing in Superior Court coming later this week, the fight between a nonprofit group of homeowners and the Foothills Club West Association board of directors over the future of the community’s golf course picked up more steam last week.
In a response to the board’s request that the court not issue a permanent injunction forbidding it from taking any action on the golf course, the Club West Conservancy last week said the board had no right without the approval of three-quarters of the HOA’s 2,600 homeowners to assume the declarant rights of the course.
The declarant rights give the board considerable influence in deciding the site’s future use. Using those declarant rights, the board can decide what plan for the course can be put to the homeowners for their approval or rejection.
The board also used its declarant rights to decide that only a smaller fraction of all homeowners was needed, in contrast to the 75 percent margin required for any land use changes outside of the course.
The Conservancy also asserted that when the board assumed the declarant rights, it met in secret in violation of the law governing executive sessions.
“It is undisputed that the board of directors voted and approved the assignment and the amendments in executive sessions without first providing the required notice and an opportunity to be heard by “homeowners,” Conservancy attorney Francis Slaven wrote. “The Association’s governing documents and the Planned Communities Act do not support the board’s actions.”
The Conservancy filed its arguments last week in response to an earlier filing by the board. The board contends it did nothing wrong in assuming the declarant rights and that the meetings were legal.
Superior Court Commissioner Andrew Russell has set one hour for a hearing on both sides’ arguments this Friday as the Conservancy seeks to permanently block the board from taking any formal action on the golf course’s fate.
A trial tentatively scheduled next month on that request could become moot if Russell rules in the Conservancy’s favor.
The legal fight also comes two months before four seats on the HOA’s board come up for election and the Conservancy has put up its own slate of candidates, contending the incumbents seeking reelection have sat on the board too long – anywhere from six to 20 years.
Under the preliminary injunction, the board can meet with golf course owners The Edge and their subsidiary, Community Land Solutions, but cannot put any plan it likes before homeowners for a vote.
The four men who comprise The Edge, three of whom also make up CLS, want to turn the golf course into a park.
The Edge bought the course from Wilson Gee for $750,000 but Gee still holds the note for the deal.
The Edge has also said it must sell several parcels of the site to a homebuilder in order to pay for the park.
That proposal is vehemently opposed by the Conservancy, primarily because it would impact the views enjoyed by more than 300 homeowners whose property abuts the course.
Those homeowners paid higher prices for their lots because of that location and having houses on the course would diminish the value of their houses, the Conservancy has argued.
A previous plan by The Edge to restore the 18-hole course but sell three parcels for a 164 single- and two-story houses fell apart a year ago after the homebuilder that had signed on dropped out in the face of community opposition.
The Edge and CLS have not yet unveiled publicly what it has in mind for the site.
In its latest filing, the Conservancy asserts, “The golf course is held by a for-profit corporation and was not set up to have an association own or operate the golf course or have members which are assessed and required to pay the costs of managing and operating the golf course. The privately held golf course property does not fall within the category of property that can be managed by an association created pursuant to” state law.
Moreover, the Conservancy’s latest filing states, an “addition or annexation of property to, or withdrawal of property from, the Property” is an act requiring an amendment to the Master CC&Rs.”
“The Association, through the voting approval of its members, has the power and authority… to amend the Master CC&Rs to add/annex property to the property governed by the Master CC&Rs. Such an amendment requires the affirmative vote or written consent of members owning at least 75 percent of all lots,” Slavin wrote.
The Conservancy asserts that unless the board tries to seek that approval, it should be suing the owner of the site to force its restoration to an operating golf course.