Can the HOA Architectural Committee Refuse to Allow a Fence Identical to Other Fences

My question involves an HOA located in the State of: Washington

I want to build a fence. It is allowed in the CC&Rs. The CC&Rs allow for an Architecture Committee, which can determine style, color, materials, etc.

I applied for my fence. It complies with every single rule in the ARC rules (setbacks, location, etc). Because of the odd shape of our property, our backyard faces and borders my neighbor's front and side yard. She does not want a fence because she says it will be "extremely unattractive" and will affect her property value. Because our backyard faces a cul de sac, we have 5 houses staring directly at our backyard. There is no privacy. Our property value is affected if we DON'T have a fence.

Because of my neighbor's dissatisfaction with looking at my fence, the ARC board has clearly bent over backwards to attempt to find a rule that my proposed fence would violate. They tried to call my back yard a front yard, because it's visible from the street. The HOA's attorney said no, it's a side yard. They tried to claim it would block traffic visibility, but I demonstrated how it complies with and exceeds our city's requirements for fencing visibility. They are left with saying that because of aesthetics, I can't have my 6' vinyl fence.

ALL the other yards in the HOA have a 6' vinyl or cedar fence. I look at vinyl across the street from me. Many homeowners look at a 6' vinyl fence. My homeowner's dues have been used to put up the identical fencing all around the community. There are 2 yards with identical situations - a back yard faces a front yard. They have the identical 6' fence on the property line, with a front yard facing the fence.

Question 1: If it's not breaking any rules, and there are identical situations and fences that HAVE been approved, can they deny me a fence that is not in violation any rules? While I realize they can determine color, style, and materials, can they tell me I can't have the same color, style, materials and locations that every other homeowner has? How would you proceed with demanding equal treatment?

Question 2: There is nothing in the CC&Rs nor the ARC rules regarding enforcement. There are no fines to be paid, nor steps defined that the HOA can carryout for non-compliance. If I went ahead and built the fence, what are they legally able to do in light of lack of enforcement procedures?

Question 3: There are many other fences that actually DO violate HOA rules. There are front yard fences (not allowed), fences that block common areas from our free use, fences that don't abide by the required set backs. The don't enforce these actual rules that are broken, but they are attempting to prevent a perfectly legal fence from being built. If I went ahead and built it, can they make me take down a legal fence but ignore the clearly illegal ones? Board members actually have illegal fences.

Thank you so much for your help.

What do the rules say about aesthetics? Is this an actual rule, or something they're making up? It seems unlikely that they're simply making this up, given that they've apparently been deferring to their lawyer along the way with his insisting that they follow their bylaws.

I have no access to the rules or bylaws, so I'm not going to promise you that the HOA will have no recourse if you ignore its ruling; I expect that it would, at a minimum, be able to take you to court to enforce its rules. By a similar measure, you can take them to court and attempt to compel them to allow you to build the fence, either (if necessary) as a legal action you bring or in response to a legal action they bring.

The fact that others have similar fences does not, of itself, mean that you have an automatic right to build your fence.

You may want to have a real estate lawyer in your jurisdiction review the rules and bylaws, then send the HOA a letter instructing them as to why (assuming that's his conclusion) you have the right to build a fence with no further interference from them.

I really appreciate you taking your time to reply, thank you very much.

The ARC rules merely state that improvements have to be approved by the ARC committee with the intention to "preserve the visual impression of ... as a desirable place to live". But it does not specifically say aesthetics can be used as a criteria. They can limit materials, colors, styles, etc. The ARC rules specifically DO ALLOW me the right to build a fence. How can they say a 6' vinyl or cedar fence is un-aesthetic, when they have put that identical fence prominently surrounding the community and on the main street that everyone drives in on? Wouldn't the entire community be considered un-aesthetic then?

I guess my questions boil down to this:
1. If i were able to prove my fence is IDENTICAL in nature to many other situations, would a court rule on the side of the HOA to just randomly decide one home can't do the same thing all the other homes do? I believe the reason they are being so cautious is because my neighbor doesn't like it. But I don't believe that should be the deciding factor, when no one else has a problem with it. Two other homes have a fence in their front yard, and they like the privacy it provides.

2. If there is nothing in the architecture rules regarding how they are allowed to enforce the architecture rules (which by the way, are NOT part of the legal covenants) do they have any power to enforce? Obviously, anyone can sue anyone for anything, but if I am obeying all the ARC rules, can they prevail in a lawsuit solely because a neighbor don't like it? That is a very subjective position, and I know many people in the community would be on my side. In addition, they wouldn't want to spend their HOA dues fighting a fence that doesn't violate any rules.

From the communication I saw from the attorney, it was obvious he spent about 10 minutes looking at the rules. He confused BUILDING setbacks with FENCE setbacks and "ruled" the side fence should be 20 feet from the street. THAT"S THE BUILDING SETBACK. And no other side fence is 20 feet from the street.

You can't imagine how much stress this is causing me. I am perfectly willing to follow whatever rules they provide, but my design DOES follow the rules and the conventions of the neighborhood. It is just so unfair to hold me to a different standard simply because one person doesn't like it. Everyone doesn't like everything all the time. But the ARC committee should maintain fair, consistent standards, shouldn't it?

Sounds like "Select Enforcement" which is prohibited. So if several homeowners in the community have the same fencing, type, materials, etc. You should be able to repeat same. I was in similar situation and wanted to add a sports quart, I was told I couldn't because my back yard also sat on the main drive. However, I was able to use the claim of select enforcement and proceeded. In addition the HOA required I add plant materials to obscure the view. All other home owners were not required to do this. Final disposition, I have a sports quart and the HOA paid for the plant materials. Good Luck to you!