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New Construction Set Back - BUILDER SCREW UP!

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What is the name of your state?What is the name of your state? New York.

We are in the process of building a new lakefront home. The house plans include a 10' deep deck off the back of the house facing the lake. Local zoning requires the house to be a minimum of 50' from the lake.

The engineer who drafted the foundation plan placed the house 57' from the lake and our builder appoved (we never signed off on the foundation plan, they just went ahead and started.) As it turns out, the deck is included as part of the structure and if we build it to plan, we'll be 3' over the set-back. To get a variance will take upwards of six months and cost us huge in application, postage and attorneys fees. Reducing the deck to 7' deep would make it ridiculously small.

Our builder has been pelting us with one hidden cost after another, so this is the last straw. Now, he wants us to take care of the variance independently, to which I say "NO." What legal action can we take? Isn't the builder supposed to be the one up on local codes?
 


John Se

Member
What do you want

Taking legal action is in pursuit of remedy. What do you want? Out of the deal? If the builder want to go get the variance at his expense whats you beef?
 
The builder not only expects US to shell out the application/postage fees, but also use our attorney (who - big surprise - doesn't work for free.) To top it all off, he wants us to do all the leg work in trying to obtain the variance, which the town is more than likely not going to approve. PS - the builder is right in town and we're two hours away!

Lastly, this is a small town and it could take six months or more to obtain a variance. In the meanwhile, we're paying an interest-only construction loan on a house we can't use, and are unable to lock a permanent mortgage rate (and, of course, rates are expected to climb.) So when we should have been done in two months we're now looking at lord-knows-how-long, all because the builder didn't do their homework. That's my beef!
 

John Se

Member
try this:

Geeze are you wound up!, Small town should work quicker, have you even talked to the town about it?, what do the neighbors look like? are they closer than 50 feet?

Or: finish the building without the deck (reduce price) and do that under a seperate permit, that way you can move in and deal with the variance issue with your local friendly towns people.

Or: fire you builder and get stuck in a quagmire of legal fees and disputes.

you know its really better to just work it out working together. But you are correct the builder should step up and deal with his snafu, they are just testing to see if you would.

Was the deck a late addition to the drawings?
 
You're right, I need to switch to decaf.

The deck was absolutely on the original plans. Plan and simple, the builder should have known the house needed to be pushed back to accommodate the deck and he didn't check the local codes.

Perhaps most small towns are cooperative but, for some reason, this town lives on making things slow, complicated and drawn-out. Heaven only knows why. Just to get our plea in front of the local zoning board may take as much as four months.

The good news is that we met with the Town Building inspector, who, as much as he hates our builder, is at least going to walk us through the process of obtaining the variance. Unfortunately, he uncovered that the builders measurements are off, and the house is even closer to the lake (51' as opposed to the 57' the builder reported). So now, per the inspector, we're going to need a new site plan drawn up. Can you hear that cash register going "ch-CHING"?

The only other good news is that the neighbors directly next-door have an existing deck that is even closer to the lake than ours will be. We plan on using that fact when approaching the Zoning Board.

That said, you're right about cutting the deck from the plan, getting the house finished to the point where we can get a CO, and obtaining the permit afterwards. That's the path we'll take... but my question goes back to this: legally speaking, isn't the builder responsible for the costs of all these extra permits, applications, postage fees and site plans? He hasn't made the slightest gesture to pick up the tab on this and has insinuated that the screw-up was ours. (And trust me, it wasn't.)
 

John Se

Member
Water and surveys

Has the lake gotten bigger? its normal for them to shrink and swell, also did you look at the site plan to see if the set backs are marked. they should be because you will have set backs on all sides. Also the builders I know have the foundation corners staked by a surveyor since screwing up setbacks will get you in deep s--t. And yes the builder should pick up the tab for his mistakes.
 
Thanks again for replying. It looks like our builder is in deep s--t indeed.

Our lake has a stream that works like a spillway... when it reaches a certain level, the overflow goes into the stream. Because it's a spring-fed lake, the level stays virtually the same all the time, even during heavy rain. At most it's only a few inches that the water level varies. And on our property the lake is very well defined by a 6" drop-off right at water's edge.

The set backs are NOT shown on our site plan. Further, the builder told us ages ago that he just assumed that the deck wasn't officially part of the house and wouldn't be included in the set back. Even I, who know nothing about these things, expressed concern back then. Of course, this didn't keep the builder form plowing ahead.

So, if push came to shove and our variance is not approved, couldn't I force the builder to tear everything down and start over, putting the foundation and house in the right place? I'm not gonna do that, but knowing I have the option makes me feel REALLY happy.
 

John Se

Member
Hmmmm???

Is this deck covered? I think I can see why your contractor may have though they didnt apply to the building envelope. Here in AZ we dont usually build decks (except in the mountains) we build patios, if they are uncovered and flat they dont count as buildings. around your parts they must consider decks part of the building envelope even if its not covered. Could this be some sort of strange local flood plain requirement. But still strange when they submitted the plans to get a permit that the setbacks are not noted and specifically dimensioned. Very strange, do you have the approved set of plans?
 
Plans approved by us, yes. Plans approved by the town or other governing body, no. In fact, we haven't see copies of any of our permits or approvals.

Apparently, the builder thought that the deck would not be included in the overall plan. In our town, however, decks and patios (covered or uncovered) definitely are. The fact is that the builder did not do his homework and went ahead without checking. Furthermore, the builder is accustomed to working in nearby towns where all he would have to do is place a call and the situation would be resolved. In our town, he has no such connections.

It gets worse. Come to find out that the foundation footers were never approved by the building inspector. Apparently, the builder had made an appointment with the inspector, who had to cancel and reschedule. Instead of waiting for him, the builder took photos of the footers and went ahead with the foundation walls. The building inspector would have halted the builder at the footer stage if he had seen the location of the footers, knowing that the deck would be in violation.

The good news here is that the building inspector is as on our side as he can be and is willing to assist us through the variance process. The bad news is that our builder hasn't contacted us since this erupted, despite my e-mail/fax/phone messages. Is it time to bring in the big dogs and mention legal action, or do I continue to play nice? And again, if the variance isn't approved, couldn't I sue the builder for breach of contract? The deck (and plans with the deck) are quite clearly in our contract.
 

John Se

Member
maintaining the upper hand

In these deals you want to keep the upper hand. that means stay ahead on the money, meaning make sure the builder is always invested in work completed vs how much of your money he has. That way he has an incentive to be responsive because you will always owe him money. I would say dont get into the legal issues, let him build the house but be careful with your money.
 
Excellent advice. Previously we had been very laid back about the disbursements from our construction loan, but that's coming to a halt immediately. Now we're going to use the disbursements like carrots in front of a horse to keep the job moving.

Spoke with the builder just a few minutes ago... we've agreed to work towards getting a CO on the house with or without the deck depending on the status of the variance. He's also aware of our concern and going to do everything in his power to keep us happy. So for now, we're ok... but I'll keep you posted if things begin to slide downhill again. Thanks again!
 

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