ARC Approving Fences That are not Allowed

Our CC&R's have specific guidelines regarding property fences. The core guideline is that a fence can not exceed 48" in height. Our ARC has been approving property fences that are 54" and now we have a couple of dozen properties in a community of 1000 homes that have fences that are prohibited per CC&R's. The Board acknowledges this and wants to grandfather in the current fences that are too tall and not allow anymore. Can the Board do this in NC? Is this selective enforcement? since the Board's ARC approved then is the replacement at the cost of the HOA? Thanks in advance for comments or support.

-- The Board can certainly declare that it will only approve fences proposed in the future that comply with the covenants. Subsequently I advise the Board to see whether anyone threatens suit.

-- Whether this is selective enforcement would be up to a court. I could argue it both ways.

-- Regarding the Board trying to replace fences that do not comply with the 48-inch requirement, at the HOA's cost: I advise against this.

-- Put a letter in the file of each home whose fence is ARC-approved but violates the covenants stating that, when the fence needs replacement, the owner will have to re-apply for approval. Send the letter to the owner. The purpose of this is so any buyer of the home in the future is on notice of the problem/violation.

-- Ultimately the board should always try to act in the best interests of the HOA." In the best interests of the HOA" means enforcing the covenants as written. Past boards may unlawfully approve violations of covenants and so will not have acted in the HOA's best interests. But this does not relieve current boards of its obligations.

So this OP reminds me of a similar issue that I have been seeing pop up recently. It is not about the height of the fence but the style of fencing materials used to replace existing fencing. Our current guidelines say must be replaced with similar products.

Our Community with over 1450+ homes 30 left till we are completely built out has the very cheapest style of fencing. It comes in 10 ft sections and it alternates good side bad sign to separate homes not including the front of the homes. I have lived in my new construction home for 3 1/2 years and mine is showing it's age. it was thrown up by builder contractors that used a nail gun and sections fall too often. I always replace with screws and that does the trick. It will need to be replaced next year.

My point is why should any board say that we have to replace a cheap fence with another cheap fence? If a homeowner wants to upgrade to a newer style or use better materials why should the CCRs stop this effort. This usually happens on corner lots where more fencing is exposed to public views.