# Minnesota New Construction - Topsoil under sod



## barnabei (Apr 19, 2021)

Hi all, 
New here.  Wanted to share a situation I've come across as an owner of a newly constructed home.  My family moved into a new construction home in September of 2020.  The builder is Lennar and at the time of closing there were several items that were not completed.  One of them was the sod for our lawn (if I were to do this again, I wouldn't allow for anything to be left undone at closing, but that's maybe a separate discussion).  We have clay soil here, which is rock hard when dry or peanut butter when wet.  When the builder laid down the sod, they laid it right on top of the clay soil.  Per the builder, the soil was graded, but there were definitely rocks and some trash from construction laying around.  My in-laws commented that they were surprised that no black dirt was laid down on top.  Anyways, sod went down and did appear to take root (I couldn't pull up a layer of sod) after a few weeks.  Fast forward to now - my wife and I going to put some landscaping in and are dreading having to dig in the clay soil.  My wife happened to be looking through our city code and came across § 150.06  LANDSCAPING..  Here's the relevant part: "Each applicant for a new residential dwelling permit shall... plant at least: (a)   Six hundred square yards of either 1.   Sod with four inches of topsoil;".  So, if I'm interpreting this correctly, the builder should have laid down topsoil prior before the sod went down.  I contacted the city planner and the response was: "We have requirements, it is the contractors responsibility to meet these requirements.  Their[homeowner] recourse for issues would be through Lennar if they have issues with sod growing, etc.. I would not recommend going through a code enforcement process. They can make a code complaint, however, it would require the _homeowner_ to bring the property into compliance. Additionally, I do not think we have any real working definition for top soil.".  This pissed me off, as it seems like the city doesn't seem to care about their residents.  Also, that comment about the definition of topsoil just seems like a bad faith argument.  Anyways, I have some questions:

Am I interpreting this code correctly?
At what point does the city check for code compliance?  I believe some sort of inspection happened prior to close, but maybe because the sod wasn't installed they just assumed that the builder would do it correctly
I'd hope there is a path for recourse in this situation as it is clear that the builder caused this issue, and not me.  Does anyone have experience there?
The suggestion that I resolve this with the builder will not work as they have no incentive to work with me... they already have my money.  The only leverage I think I have is to notify future homeowners of this issue.  They are still building in the area and I could raise some awareness to future homeowners. Honestly, I feel like I want to do this anyway as I don't want others to end up in my situation.  Anyone been in this situation before?
Thanks, 

-Matt


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## Mark K (Apr 20, 2021)

You need help that you cannot get on this site.  You need to talk with an attorney who has some familiarity with planning and construction issues.

From the Cities perspective the only entity they can take action against is the property Owner.

You want to find the least disruptive way to resolve this situation.  My suspicion is that this may entail you  putting the contractor on notice but if he does not immediately resolve the matter you may need to find somebody else to do the work.   Work with an attorney.  This may involve you spending money you should not have to pay but fighting this could cost you more and could  take longer to resolve the issue.


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## fatboy (Apr 20, 2021)

Spot on with what Mark K had to say. 

Good Luck!


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## cda (Apr 20, 2021)

So do you still have any type of builder warranty left??

Yes I know some cities that are into not approving a house if proper landscape is not in.

Worth an email to mayor, your council rep, city manager and building official, or whatever ,, cite the section you found and ask how it is applied and enforced,,,
May not help you but stirs the pot!!!

If you know a lawyer have him write some legal stuff, include the code section and send certified to builder...

if all that fails,,, contact the tv investigative team,,, they are always looking for a story,, especially if it includes city hall

Last step 4x8 sheet of plywood ,, in your front yard saying the builder does not build to city code!!!


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## barnabei (Apr 20, 2021)

cda said:


> So do you still have any type of builder warranty left??
> 
> Yes I know some cities that are into not approving a house if proper landscape is not in.
> 
> ...


The builder has a 12 month warranty period.  I was thinking of citing this as an item for them to remediate.


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## barnabei (Apr 20, 2021)

Mark K said:


> You need help that you cannot get on this site.  You need to talk with an attorney who has some familiarity with planning and construction issues.
> 
> From the Cities perspective the only entity they can take action against is the property Owner.
> 
> You want to find the least disruptive way to resolve this situation.  My suspicion is that this may entail you  putting the contractor on notice but if he does not immediately resolve the matter you may need to find somebody else to do the work.   Work with an attorney.  This may involve you spending money you should not have to pay but fighting this could cost you more and could  take longer to resolve the issue.


Thanks Mark.  What you are saying makes sense but I still think it's odd that the city wouldn't go after the builder when it's obvious that it's their fault.  Seems like there should be some mechanism there


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## cda (Apr 20, 2021)

barnabei said:


> Thanks Mark.  What you are saying makes sense but I still think it's odd that the city wouldn't go after the builder when it's obvious that it's their fault.  Seems like there should be some mechanism there



There is enforce the laws on the books,,,
That they adopted

Why I say stir the pot ask upper city management are the enforcing what is on the books!!!

I have my city officials on “ speed email “ compose the complaint and send


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## cda (Apr 20, 2021)

barnabei said:


> The builder has a 12 month warranty period.  I was thinking of citing this as an item for them to remediate.



Ok thought you might be outside the warranty period


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## Mark K (Apr 20, 2021)

The city cannot go after the builder because the applicant for the permit is the building owner not contractor.  The design professionals act as agents for the Owner.  The Contractor is doing the work as a contractor for the Owner.   When the Contractor picks up the permit they are doing so as an agent of the Owner.  From the cities perspective it is the building owner who is ultimately responsible for code compliance.

The city has no authority to interject themselves into the contract between the Owner and the Contractor.  If the contractor does not perform the Owner can sue the Contractor in civil court.  The only action  the City can take is to withhold the permit, stop work, and not issue certificate of occupancy.  All these actions are against the property.

It is not the building departments job to determine fault.  The building department has one job and that it to enforce the building code.


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## cda (Apr 20, 2021)

Mark K said:


> The city cannot go after the builder because the applicant for the permit is the building owner not contractor.  The design professionals act as agents for the Owner.  The Contractor is doing the work as a contractor for the Owner.   When the Contractor picks up the permit they are doing so as an agent of the Owner.  From the cities perspective it is the building owner who is ultimately responsible for code compliance.
> 
> The city has no authority to interject themselves into the contract between the Owner and the Contractor.  If the contractor does not perform the Owner can sue the Contractor in civil court.  The only action  the City can take is to withhold the permit, stop work, and not issue certificate of occupancy.  All these actions are against the property.
> 
> It is not the building departments job to determine fault.  The building department has one job and that it to enforce the building code.



How about spec houses, where the builder is the owner, till someone buys it??

Seems like the builder would have to meet all city design standards, including a layer of dirt.

And if the city is not enforcing those standards, that they adopted????

Now once bought that changes the movie script.


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## barnabei (Apr 20, 2021)

Mark K said:


> The city cannot go after the builder because the applicant for the permit is the building owner not contractor.  The design professionals act as agents for the Owner.  The Contractor is doing the work as a contractor for the Owner.   When the Contractor picks up the permit they are doing so as an agent of the Owner.  From the cities perspective it is the building owner who is ultimately responsible for code compliance.
> 
> The city has no authority to interject themselves into the contract between the Owner and the Contractor.  If the contractor does not perform the Owner can sue the Contractor in civil court.  The only action  the City can take is to withhold the permit, stop work, and not issue certificate of occupancy.  All these actions are against the property.
> 
> It is not the building departments job to determine fault.  The building department has one job and that it to enforce the building code.


Ok this makes sense, but isn't there a point where the building department needs to determine that new construction is up to code upon completion?  I know this happens on the interior of the home for electrical, etc.    Why would this not also be true for the property?


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## cda (Apr 20, 2021)

barnabei said:


> Ok this makes sense, but isn't there a point where the building department needs to determine that new construction is up to code upon completion?  I know this happens on the interior of the home for electrical, etc.    Why would this not also be true for the property?



Yes if you live in a city that has a building Dept, that does inspections.

May not help you, but go through the steps I said above,,,,

Stir the pot


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## redeyedfly (Apr 20, 2021)

Mark K said:


> The city cannot go after the builder because the applicant for the permit is the building owner not contractor.


In MN the contractor applies for the permit and is the permit holder for IRC construction.


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## Katy.Kjelvik (Apr 20, 2021)

Mark K said:


> The city cannot go after the builder because the applicant for the permit is the building owner not contractor.  The design professionals act as agents for the Owner.  The Contractor is doing the work as a contractor for the Owner.   When the Contractor picks up the permit they are doing so as an agent of the Owner.  From the cities perspective it is the building owner who is ultimately responsible for code compliance.
> 
> The city has no authority to interject themselves into the contract between the Owner and the Contractor.  If the contractor does not perform the Owner can sue the Contractor in civil court.  The only action  the City can take is to withhold the permit, stop work, and not issue certificate of occupancy.  All these actions are against the property.
> 
> It is not the building departments job to determine fault.  The building department has one job and that it to enforce the building code.


Mark K. you are dead on. The specific landscaping requirements from local ordinances may not be a required inspection, so again it would go back to the owner. To me, this the "liability" would be what's in the contract between builder/buyer. What is the contractor's responsibility? Was there a section that addresses code or local ordinances? Does the contractor/builder pass along the responsibility? Or do they have a disclaimer of the best of their knowledge all work is compliant with code. This is not a Permit Building Inspection issue as it is not an required inspection under the Minnesota State Residential Code. You will need to reach out the local municipality Planning/Zoning, but first, see what's in your contract or transfer of deed/title.


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## my250r11 (Apr 20, 2021)

redeyedfly said:


> In MN the contractor applies for the permit and is the permit holder for IRC construction.


Same here in NM.


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## ICE (Apr 20, 2021)

Is the grass dying?  If not, no harm, no foul.  Four inches of black dirt is not going to offer much benefit when planting flowers, bushes etc.


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## Katy.Kjelvik (Apr 20, 2021)

barnabei said:


> Ok this makes sense, but isn't there a point where the building department needs to determine that new construction is up to code upon completion?  I know this happens on the interior of the home for electrical, etc.    Why would this not also be true for the property?


The Building Department is liable for ensuring the building (house) meets the adopted building code - proper building design for egress, life safety, Not the entire property. You will need to contact Zoning, Planning, Land Development authorities having jurisdiction or (if there is one) another review board, city council/commission & see how they enforce this ordinance. This is beyond a _Building_ Code Inspector's scope. 
I'd start here.
Dayton, Minnesota​Officials​Mayor Tim McNeil
Council Members: Jon Mellberg Bob O’Brien Dennis Fisher Julie Gustafson






						Planning Commission | City of Dayton MN
					






					cityofdaytonmn.com
				




"The Planning Commission advises the City Council on issues involving the establishment of and compliance with the Comprehensive Plan, the Zoning Ordinance, and the Subdivision Ordinances. The Commission reviews residential, commercial, and industrial development proposals in order to ensure compliance with the City’s goals and objectives set forth in the Comprehensive Plan, Zoning Ordinance, and Subdivision Ordinance. They then make a recommendation to the City Council on the proposal."


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## cda (Apr 20, 2021)

Love laws, codes, standards on city books that are not enforced


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## Mark K (Apr 20, 2021)

If the permit is owned by the contractor then if the contractor goes bankrupt or the owner fires the contractor the owner could not continue unless there was a new permit.  A new plan review and if the code had changed in the mean time new code provisions.  Also new permit fees.  I  suspect that if this were the case and an owner litigated the issue you would find that the owner effectively owned the permit.

Also if the City were to take legal action against the contractor I would expect the contractor and his attorney to tell the city to pound sand.

If the sod is not a building code requirement then what interest does the building department have.  If it is a planning violation the supposedly planning violation would be for the planning department to resolve.

In California the contractor picks up the permit so that the contractor can establish that they have workmen compensation insurance.  This is not inconsistent with the contractor acting as an agent of the owner on this manner.  If there was a new contractor all you would have to establish is that the new contractor had workmen compensation insurance.


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## redeyedfly (Apr 21, 2021)

Mark K said:


> If the permit is owned by the contractor then if the contractor goes bankrupt or the owner fires the contractor the owner could not continue unless there was a new permit.  A new plan review and if the code had changed in the mean time new code provisions.  Also new permit fees.  I  suspect that if this were the case and an owner litigated the issue you would find that the owner effectively owned the permit.


Yup, you would need a new permit or the city could transfer the permit to a new holder which would also be a licensed contractor.  There is a contractor recovery fund which acts much like a performance bond for all residential contractors, it would pay for the new permit AND a new contractor to complete the project.  It is, in fact, illegal for a homeowner to get a permit for work a GC will perform.


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## e hilton (Apr 21, 2021)

redeyedfly said:


> It is, in fact, illegal for a homeowner to get a permit for work a GC will perform.


Homeowners can act as the  gc for their own residence.


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## redeyedfly (Apr 21, 2021)

e hilton said:


> Homeowners can act as the  gc for their own residence.


That's not what I wrote.  

"...illegal for a homeowner to get a permit *for work a GC will perform*"


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## Inspector Gift (Apr 21, 2021)

barnabei said:


> The builder is Lennar and at the time of closing there were several items that were not completed. One of them was the sod for our lawn (if I were to do this again, I wouldn't allow for anything to be left undone at closing, but that's maybe a separate discussion). We have clay soil here, which is rock hard when dry or peanut butter when wet. When the builder laid down the sod, they laid it right on top of the clay soil. Per the builder, the soil was graded, but there were definitely rocks and some trash from construction laying around.


Matt, your soil conditions in Minnesota sound a lot like our clay soils in Sandy, Oregon.  Lennar is building here and lays a layer of prepared soil before laying the sod.   I agree with the previous comments about it being a civil matter between you and Lennar.  Once Final Approval has been given the Planning Department, and the Certificate of Occupancy has been issued by the Building Department, then it is no longer of much concern to the City.    Our City will only get involved if it were a FIRE/LIFE/SAFETY item, or if it affects street trees, or was negatively affecting other properties (such as excavating a hillside with buildings above).


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## e hilton (Apr 21, 2021)

Inspector Gift said:


> clay soils in Sandy, Oregon.


Ok ... who named the city?   Fess up now.


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## Msradell (Apr 21, 2021)

Mark K said:


> The city cannot go after the builder because the applicant for the permit is the building owner not contractor.  The design professionals act as agents for the Owner.  The Contractor is doing the work as a contractor for the Owner.   When the Contractor picks up the permit they are doing so as an agent of the Owner.  From the cities perspective it is the building owner who is ultimately responsible for code compliance.


That depends on several factors, the 1st being was the home being built as a spec home prior to them purchasing it? If that's the case then obviously the builder was the one that pulled the permit by themselves with no owner involved. Secondly, it varies from area to area, many places the contractor is pulling it for himself even though there is a homeowner involved.


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## cda (Apr 21, 2021)

e hilton said:


> Ok ... who named the city?   Fess up now.




L and C


the name Sandy after the Sandy River, named by Meriwether Lewis and William Clark in 1805


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## Mark K (Apr 22, 2021)

Try taking legal action against the contractor if the project is not in compliance.


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## ADAguy (Apr 22, 2021)

Gang, this comes down to a contract issue as in a purchase agreement between owner and purchaser. What are its terms and conditions? Did owner think to have a pre-acceptance inspection done by by a Home Inspector?


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