HOA Fence Issues

Our subdivision has 56 homes. We have 10 homes with fences when our ByLaws state no fences.
The declorant (builder) had provsions to allow what he wanted to sell a home. He gave 7 original home owners fences
back in 1998, 1999, 2000. Only 3 orignial home owners remaine with one selling. 5 of them are second or third owners with no Declorant approval or documentation. They purchased into the association by a realtor with an existing fence after August 2000. (the board feels that they these are unapproved fences and need to be removed.)
Aug 2000 the Association and Board took over and the ByLaws state no fences allowed unless required by law for pool surrounding or pool patio. 1 has put in a pool with board approved fencing. 1 has an above ground pool properly gate installed and deck rails so the perimeter fence that was existing is technically not approved and not needed. 1 was flargrently done with out approval. This is an ongoing controversy as the neigborhood is very divided. I sit on the third set of board members. During the last board tenure, the illegal fence went up and we asked the board to take action. They did not. They collected information from all fence owners for proof of declorant approval and really only three would have it as three remain as original owners. The 5 that have fences w/out declorant approval say they are "grandfathered" but our bylaws give no provisions for "grandfathering" it says No fences unless by law...pool...The old board was too scared to pull the trigger due to homeowner threats.
Three questions: 1. Does the declorant approval of a fence for the owner/member at the time of issuing/installation apply to the original owner only or do the people that bought after the Bylaws went into effect (no fence law) having no letter of proof from the declorant stand inviolation? 2. Can we take down the totally illegal fence that went up despite the board telling them no? 3. One of the three original owners is moving, can we take down the fence when they go as the new owner will not have declorant approval prior to 2000? If any one has any insight, I would be so greatful. Realestate is struggling and anything to beautify the neighborhood makes it more desireable. Althugh we are not talking many fences, they are all stockade, tall short, faded gray...and they look terrible. I dont see that they add value to the home as most look like they are ready to become fire wood.

I won't try to speak on all of your points, but playing "devils advocate" for a moment in the role of a potential homeowner, I'd answer #3 below as "if I was in the process of buying a home and after I closed but before I moved in I found out that the HOA removed a fence from the property I had purchasing, I'd sue the HOA to the fullest extent possible and would most likely file any criminal charges that I thought could stick. Maybe you just worded that wrong, but based on the way I read it, it would be a seriously bad move for the HOA.

IANAL, but there are two points that you may have to consider; Grandfathering and (I can't think of the name of the other) if those fences have existed for a long enough amount of time with no action taken, you may find that you've lost the ability to take action now due the continued "allowance". It simply sounds like to me your bylaws simply aren't written well enough to properly cover these types of issues.

Does your HOA have a lawyer to clarify points of the by-laws? We always go to our attorney when issues arise about fencing, property, and other discrepancies.

Tim