In February, the Club West Conservancy (CWC), a not-for-profit organization of Club West homeowners, brought a lawsuit against the HOA board of directors seeking to undo the board’s decision to accept the transfer of the golf course declarant rights and amend those declarant rights to substantially lower the threshold for approval of home development on the Club West Golf Course Property from a 75 percent super majority of all residents to a mere 16 percent (a majority of 30 percent who choose to vote).
Despite this litigation being pending for approximately eight months, it is troubling that as far as CWC is aware, the board has never directly communicated to the homeowners anything about the lawsuit despite expending community resources to defend itself.
CWC continues to work hard to keep the community up to date on the status of the legal action and the reasons we believe it was absolutely necessary to file the lawsuit.
Since the board won’t update residents about the lawsuit, the CWC will. On Nov. 8, the court ruled that the board is now prohibited from moving forward to approve a vote on new housing on the golf course property until the underlying lawsuit against the board is decided. A trial is currently set for February 2021.
In making its ruling, the court made several significant findings which supports CWC’s position that it is time for the Board to reverse their misguided strategy.
• The court found “serious questions about the validity” of the board’s acceptance of the golf course declarant rights and the subsequent amendment about voting (reducing the 75 percent to 16 percent) because these “are not the types of actions that may be taken in executive session.”
In other words, it’s improper to take such actions in closed meetings and then not provide any notice of such actions to the residents.
• The court said that the golf course declaration, which requires land use only as a golf course, is legally a “tract declaration” and according to the Community’s Master CC&Rs any “tract declaration” must “in all cases be consistent with and subordinate to” the Master CC&Rs.
Since the Master CC&Rs require 75 percent of residents to approve any amendments, it follows that the golf course declaration requires a 75 percent voting threshold too.
• While the board argued that the Club West Master CC&Rs say that it is possible that the golf course might someday cease operations, the court said that this does not mean that the land can be used for new housing or any other purpose besides golf.
• Finally, the court found the development of the golf course property for “non-golf uses would have an immediate negative impact on the value of the lots adjacent to the golf course.”
This underscores the probability of future lawsuits against the board by any resident whose property value is negatively affected by construction of new housing on the golf course property.
As a reminder, before the CWC filed this lawsuit last February, the CWC presented the board with a memorandum explaining our position and asked the board to retract the actions it had taken. The board refused.
Then, after the lawsuit was initiated, the board filed a motion to dismiss the lawsuit, which the court denied.
Then the CWC asked the board to at least agree not to bring a vote on development of the golf course property prior to the scheduled trial in February 2021. Again, the board refused.
The board’s persistence in continuing to defend their improper actions not only costs the CWC legal expense, the board must also expend money to defend the lawsuit.
In addition, the lawsuit distracts the board from what it should be doing – working for a solution to the golf course property that serves and enhances the entire community in keeping with the requirements of the Club West Master Declaration.
Some of our current Board members have been on the Board for 15-20 years. The CWC supports term limits for our board, which were recently approved in a vote at the nearby Foothills HOA by as resounding 92 percent of residents.
Maybe it is time for some new fresh perspectives on the board. We suspect that there will be new candidates running for the board this year and we encourage their initiative.
CWC is asking for everyone’s involvement. There is strength in numbers.
We need to be able to show the board of directors that our Club West homeowners care about what is, or is not, happening in their community. Our website is clubwestconservancy.org.
This website provides information on how to join our organization and also how to contact us. We are all about getting more community involvement and are open to your input.
Matthew Tyler is the president of the Club West Conservancy.