Who is Responsible for the Cost of Retaining Walls to Prevent Erosion

[gaspasser]

My question involves a consumer law issue in the State of: Colorado

We are building a custom home on 5 acres. We were given site plans to choose for house placement with the current elevations. 2 of the three plans had small retaining walls in the front yard area but no others.
The engineer decided where to cut the driveway...not us... and after the foundation went in it was incredibly evident that the driveway was in a horrible and dangerous place with a very steep slope directly into the side of the house. In order to have cut the driveway to code it would have had to be dug into the hill to the road making it a canyon of sorts thus needing vast retaining walls down the entire driveway. We insisted that it be changed for drainage and safety which the builder actually agreed. After a little push he agreed to do it free of charge as he did admit it was most certainly an engineering error. After the new driveway was cut and the dirt pushed back from the previous driveway we had a looming 8 foot wall of dirt all the way around the back side of the house into the hill... it's a mini cliff. I have had landscapers out to assess the situation (we are still early in the build process) and they all agree it is a huge project but it presents a very dangerous situation and flood/erosion plane the way it is. In fact, per codes it has to be dealt with and has to have retaining walls in order for it to even pass code and go to closing. It is estimated to cost us well over $10,000 in totally unplanned charges. Mind you, these walls were NOT identified prior to the build with ANY of the engineering designs and would be required with either of the two driveways I mentioned... in fact the way we had the driveway done the second time probably saves about 1/2 the cost in linear feet than the way the driveway was initially.

So my question is who pays for this? It wasn't presented as a potential in any way per the site plan or engineering plan. The landscapers are saying the builder is always responsible for the retaining walls because they are excavating the dirt and are ultimately responsible for the erosion and flood control. However it does explicitly state that in the specification "retaining walls, if any, to be completed by the homeowner unless provided for otherwise in the contract." It also says that "if landscaping or retaining walls not be in place prior to certificate of occupancy, any additional controls required will be paid by owner." As I said the retaining walls the way the home has now been excavated will have to have these vast retaining walls in order to pass code and go to closing, so it has to be done one way or the other.

Since this was an error by the engineer and there was no notice or explanation of the need for these retaining walls from the beginning I am feeling somehow that the builder is somewhat responsible for this mess as you can't just spring $10,000 on the homeowner in the middle of the build due to your lack of foresight as a builder. I would so appreciate any guidance here.

Thanks

[Mr. Knowitall]

We insisted that it be changed for drainage and safety which the builder actually agreed. After a little push he agreed to do it free of charge as he did admit it was most certainly an engineering error.

So the driveway was placed in an agreed location, with your builder bearing the increased cost of placing the driveway in the new, agreed location?

So my question is who pays for this? It wasn't presented as a potential in any way per the site plan or engineering plan. The landscapers are saying the builder is always responsible for the retaining walls because they are excavating the dirt and are ultimately responsible for the erosion and flood control.

Unless you have contracted with the landscapers to build retaining walls, they're not under contract to build retaining walls.

However it does explicitly state that in the specification "retaining walls, if any, to be completed by the homeowner unless provided for otherwise in the contract." It also says that "if landscaping or retaining walls not be in place prior to certificate of occupancy, any additional controls required will be paid by owner."

Which takes us back to why it's important to know if you agreed to the new location, as appears to be the case. If so, absent some additional facts not yet known to us, it sounds like you'll have a difficult time avoiding that contract language.

What did the builder say when you asked about retaining walls?

Could the driveway actually have been constructed without any need for a retaining wall?