My question involves a condominium located in the State of: California

My question involves a condominium located in the State of: California

Background: In 1997 an HOA member requested permission from the Board, in writing, to garden in a commons area. The existing board of directors agreed in writing, but failed to follow proper procedure to grant exclusive use of commons. They were not challenged by the membership.

In 1998 the contract expired and was not renewed. The gardener continued to garden, expanding his operation, and the board made no complaint. This continued for 15 more years. I feel this established an implied in fact contract. In 2013, the gardener handed over the management of the garden to another member. This was accepted by the board with no written contract. Gardener II made extensive visible improvements with no objections from the board. In August of 2013, lawyers working for the latest HOA board sent out a cease and desist/remove the garden letter, giving Gardener II 45 days to remove all the improvements (new irrigation system, vertical gardening components, previous plantings, etc). The letter stated two reasons for the order: failure to respond to an earlier cease and desist letter, which the board has admitted was never sent; and unauthorized use of areas outside the garden. In its history, the garden was as large as 10,000 square feet, more than twice the size of the present garden. What's more, there was never, at any point in its history, an authorized size or authorized limits.

I realize that one party to an implied by fact contract can terminated it at any time. But can one party claim violations when they could readily observe the actions they consider violations and remained silent? And if the stated violations are shown to be invalid, do they still have a valid cease and desist order, or do they have to write a new one, giving reasons not based on garden history? Or no reasons at all?

Thanks in advance