Interesting case, opinions?

So a guy in our HOA built a fence that is clearly not allowed per the CC&Rs over 2 years ago when his house was first built. He asked his builder, who was on the declarant board at the time, if he could put the fence up and got a verbal okay for it (I know, means nothing...). Then, months after it was built he got a violation notice from the management company (still under declarant control). He replied to the violation notice with a request to keep the fence, with all his reasoning, signed by all his neighbors around him, and never received a response or another violation letter. This was all about 2 years ago.

Now there is a new board, and an ACC. The ACC sent him a violation notice again. He appealed and is taking it to the board for a decision.

My opinion: our CC&Rs clearly state any ACC request that goes unanswered for 30 days is automatically approved. While not on the official ACC approval request form, his unanswered response to the first violation letter (2 years ago) asking to keep the fence with his neighbors signatures would/could constitute an ACC request and since it was never replied to it was automatically approved.

Thoughts?

Daryl,

I agree with John. This fence should be grandfathered! The declarant supposedly gave verbal approval then the BOD or A/C failed to respond to his request therefore making the request valid. The board should forget about this fence; and put a note in his file so he doesn't receive any violations notices in the future.

either change the rules that govern your docs, or be prepared for legal action on the BOD"s end. I personally had a similiar issue here but it the neigbors are NOT supportive of the one who had their "fence" up for years. A letter from the atty on our took care of it, but your HO's are ok with this.

Consider changing the rules.