Approval Error for previous ACC

One consideration is for existing improvements I believe the statute of limitations to enforce restrictions is 5 years in FL. If so, they can't require alterations built 5 years ago or more. It could be argued both ways for new projects 1) board hasn't followed its own procedures so it can't enforce now, or 2) board can try to enforce and see what happens.

It probably would not prevent the board from enforcing the correct guideline now but be ready for a possible challenge by applicant for lack of prior enforcement.

No, it does not. In fact the board has a duty to enforce the covenants.

I do think the board should seriously consider paying the owner whose fence was approved in error for what he/she paid for the fence, and then the board should arrange for the fence to be taken down. Why? Because the covenants say the fence should not have been approved.

Otherwise, document the mistake and the board's position that it did not want to spend owners' money to correct the mistake but instead, in this unusual situation, granted a waiver (discretion being the better part of valor and so on).

I agree Florida's five-year statute of limitations plays a significant role here.

If five years have passed, the amend my statement to say the board should offer to pay the owner for the cost of the fence for the fence to be taken down. If the owners refuse, oh well. In the alternative, include in the documentation that five years have passed, hence the board is granting a waiver.

Chatter on the Florida SOL:
https://www.news-journalonline.com/story/news/2014/05/30/statute-of-limitations-waiver-and-covenant-enforcement/30667932007/

FWIW the board does have the final sayso on all ARC approvals and denials, likey this was not done in error.

As far as I know, there is nothing in the statute regarding who has the final say on ARC approvals. And it varies a lot in the declaration. In ours, the ARC is really the ARB and is set out as a separate board. However, the board does still have power to overrule the ARB. In other documents I have seen the board IS the ARC. So there really isn't a standard for how this work.

The short answer to the original questions is that the board can and should still enforce the original design guidelines even if there was one mistaken exception. Our documents specifically say that one decision does not set a precedent.

The five-year rule is important. However, if the person who was mistakenly approved for something comes back to the ARC for a replacement of the same item, they can be denied the second time around. Real life example - we have 20-foot lake maintenance easements on many of our lots. Nothing is supposed to be built in the lake maintenance easements per our documents and our permit with the local water authority. The developer let owners (and sometimes built for them) fences and screen enclosures in the easement. If an owner wants to replace their fence with a new one and it's built in the easement, the ARC will deny. We have a realtor who is trying to sell a home that has illegal fences on either side. He wants to give the new owner permission to build a fence across the easement to connect with the other fences. We cannot allow this because even though the other fences are illegal, they've been there over five years, but his connecting fence is new and can't be approved.

The fence should have been metal spoke fence as it is on a property that borders a conservation area. They requested a vinyl privacy fence with vinyl slotted on the rear side. They installed privacy all around. Now, another owner who’s property borders a conservation are wants to install privacy all around as well, claiming one owner was already granted an approval, which was not the full story.

If those terms/conditions were part of the original permission to build fence.

Over 5 years and that fence is off limits. Any kind of enforcement on the fence including a warning letter could be considered harassment.

To return to the OP's original question. No. With Elle, Lori & Dean, the Board is not required--indeed, should not-- approve any future application that doesn't meet the HOA's fence guidelines.

What to do about the existing fence that was erroneously approved is a different topic. I think, to protect the HOA from that lot having a non-compliant replacement fence installed, The Boad with advice for counsel might make a decision to have recorded on this lot's deed that any replacement fence on the xx boundary of the lot must comply with the HOA's xxx guidelines.

With Terri, I think the Board shouldn't try to require the fence owner to tear it down and replace it. He built it in good faith with the HOA's blessing. They might add a clue about replacement, also to be recorded--attoreny's wording would be wise.