Regulatory Roadblocks - FOCUS: Landscape Installation

Contractors who perform landscape installation work can’t dodge the codes and restrictions that put parameters on many of their projects. And often, they can’t avoid the headache that accompanies these regulations - extra phone calls, paperwork, inspections and fees that present time-consuming hassles, slow down projects and increase costs.

Building regulations run the gamut, from limiting a fence height to receiving approval for a new deck to locating legal documents such as site surveys. Naturally, some stipulations require more time and attention than others, noted Leo Kelly, owner, Kellygreen Design, Palatine, Ill.

He cited three primary entities that impose installation regulations that contractors can encounter. Federal codes, imposed by agencies such as the Army Corp of Engineers, post restrictions on projects such as waterways; municipal regulations bind contractors with various city and county ordinances that outline building requirements. Finally, homeowners’ associations (HOAs) often write covenants that outline aesthetic limitations designed to uphold a uniform, manicured appearance in a particular neighborhood, he said.

No matter the source of the regulation, these rules cannot be broken without costly consequences. Awareness, understanding and organization can help contractors cut regulatory red tape and press through procedural paperwork, stressed Michael Girvin, owner, Designs on Nature, Mishawaka, Ind.

“The No. 1 mistake contractors make is not understanding regulations,” he noted.

HOUSE RULES. Girvin learned the hard way - contractors must do the legwork before beginning an installation project. “I’ve gotten burned before,” he admitted. “You don’t trust the homeowner’s word. A lot of times they are just unaware of the covenant or they don’t read it.”

When a customer requests an installation - whether it is a deck or a new driveway - Girvin does not assume that the project will comply with codes. His company, which specializes in natural plantings like wild flowers, often discovers that the client’s wish does not match the HOA’s desire. The key to these codes is beautification, and often, this concept does not align with what the customer considers appealing, he added.

“I’ve had people ask me to do things that are definitely violations of the homeowners’ covenants,” Girvin noted. “A lot of the codes consider prairie grass and wildflowers an unkempt yard and have restrictions on how close retaining walls can be to a property edge.”

To verify that the customer’s plan doesn’t breach building codes, he will visit the HOA office or locate its president from chamber of commerce records. Often, Girvin consults with the building developer to discuss whether or not the installation project the homeowner requested matches specifications for the neighborhood, he said.

“I’m very upfront in my initial meeting with the client that I’m going to talk to those people,” he added. Communication is the first step to overcoming regulatory roadblocks, and Girvin will not skip a step in the paperwork process to ensure the project runs smoothly, he said.

After approving plans with the HOA, he requires a written document confirming its approval or will copy the relevant statue from the legal documents, he explained. “You just need to cross your Ts and dot your Is.”

Robben Salyers, CEO, Jake’s Garden, Minneapolis, Minn., said negotiations are key when dealing with HOAs. “You have to bring them reassurance that the project will beautify and enhance the neighborhood,” he said. “You have to give presentations. You do drawings. You do a lot of hand-holding. You have to give reassurance that the project will enhance their neighborhood and sell the benefits.”

Time constraints are plentiful on residential projects that bear these regulations, he noted, adding that while homeowners want to see pleasing end-results, they often do not want to see the equipment and debris during the “work in progress” stage. In this case, the homeowners’ need for instant gratification motivates some code stipulations.

“Time is critical because you’re disturbing their life,” Salyers noted.

This urgency characterizes limitations on many resort area and school zone projects, noted Bill Miller, owner, All Seasons Landscaping, Ketchum, Idaho. Clients want jobs completed before vacation season begins on July Fourth or started after season crowds clear on Labor Day, he said. “We try to have enough lead time for bigger projects so that we can manage the staff accordingly,” he explained.

On the school properties his company maintains, he must work around football practices and gym classes, he said. Assigning two crews to the project and keeping careful records of when classes and practices occur help his employees overcome time barriers, he explained.

Most of Miller’s restrictions center on aesthetic issues, however. Homeowners want a neat landscape and a tidy mess while installation is taking place. “Customers don’t want vehicles parked on their property for any length of time,” he cited as an example of an appearance-based regulation. “It’s important to let people know what is going on, what to expect and when they can expect to see things cleaned up so they can see an end to the job and that it isn’t going to go on forever.”

ORNERY ORDINANCES. Kelly related municipal procedures to a sketch on the popular late-1960s comedy show, “Laugh-In,” where actress Lily Tomlin played a telephone operator who sidestepped impatient callers. While she responded politely to complaint calls, surely, their paperwork was lost or their service was inexplicably shut off, Kelly recalled. He also compared the frustration of regulatory red-tape to waiting in a long line.

“If you get mad because you’re in a line of 200 people, you’ll never get through it, like at the post office at Christmas,” he reasoned. “Put up with what’s in front of you, and sooner or later it will be accomplished.”

The lesson: There is no cutting in the “regulation line.” Contractors should plan time to follow procedures that will ensure they are complying with codes, Kelly said. He finds procedural roadblocks with municipalities the most common regulatory encounter, and admits city and county ordinances vary from strict to rather lax.

“In one municipality, you can walk right in and get a fence permit immediately if you have the proper documentation,” he explained. “In another, you might deal with an office that will only accept calls to schedule inspections during a one-hour time block per day - 3:30 to 4:30. If you are busy or forget to call, you lost time.”

Girvin said 20 percent of his projects cause regulatory challenges, most of them minor, he noted. Agencies he commonly encounters during the planning stages of these projects include city code enforcement, county drainage officials, the Department of Natural Resources and the Army Corp of Engineers. If ignored, city codes cause problems for landscape companies, he reminded.

“Some customers will want to turn their yard into a nature preserve, but there are noxious weed ordinances you have to read,” he warned. “Cities have a myriad of laws.”

If a client wanted to construct a seawall on a river, for example, he or she would first contact a contractor who would look at the site and determine the best course of action, Girvin explained. Then, the contractor would call the Department of Natural Resources, which issues a form to fill out requesting project details. The department then sends an inspector from the Division of Water to assess the site, and if it approves the project, the contractor can submit a request to the Army Corp of Engineers, he continued. After it approves the plans, the contractor can obtain a building permit and finally begin the work.

The process contains several opportunities for potholes to form. If the paperwork rests on a department desk, the project needs to be redesigned or the plan is denied, Girvin noted. As a precautionary measure, he suggested developing a relationship with local government officials.

“Regulations are confusing, and you have to develop a relationship with people who can interpret them for you so you don’t get into trouble,” he noted. “When you get into all the ‘whereas’ and ‘therefores,’ a lot of people don’t adequately understand it.”Involvement in local politics is another method of strengthening a company’s relationship with the agencies that stamp project approvals, and this approach also can further understanding of the regulatory process that many installation plans must endure, Salyers added. “Sit on a planning commission,” he suggested. “It’s important that we, as an industry, engage in the political process and be a part of the solution.”

If the pages of amendments, exceptions and additions in regulation books are any indication of the complexity of some parts of project approval, contractors are wise to be informed and educate themselves and their employees on basic governmental departments, Salyers added.

First, contractors must learn about the project they are bidding on or planning, he said. A specification book for a commercial project is a valuable resource for contractors - “the constitution and framework of a project,” Salyers described. This book includes project guidelines such as conditions of the contract and site work including concrete, masonary, metals, woods, plastics, thermal and moisture protection, etc. Essentially, the specification book spells out the nitty-gritty details, he said.

“In Minnesota, before you dig a hole or plant a tree you have to verify the locations,” Salyers explained. “You have to make sure you’re not in the public right-of-way as far as utilities, electrical lines and fiber optics.”

These minor details are just a few of the considerations contractors need to factor in to their projects, Salyer said. The water, gas and phone companies also should be contacted for projects that require digging as part of what he calls, “pre-staging the job.” This includes planning erosion control methods in wetland areas and gaining approval from Watershed Districts, Salyers noted.

Girvin described a project where the client wanted to enhance a wetland area. Before he could begin installing native plants and removing non-native shrubbery, Girvin had to reference a soil and water conservation survey to verify that the wetland was on the map, he explained.

Such legal logistics can put a project in limbo for days or months, Kelly added. “I’ve had approval be as quick as the same day and as long as seven or eight months,” he said. “One client wanted to build a wooden boardwalk through a wetland zone, we started the paperwork in February and got the approval in early October. We were able to finish the project 2½ weeks after that.”

COSTS AND CONSEQUENCES. Maneuvering through detailed codes and procedures does not come without cost to the customer, however. In fact, Kelly stressed that the time invested in filing documents, inspecting properties and awaiting approval from government agencies must be billed to justify accepting the project.

“If I don’t feel the client is willing to pay to put up with the process, I will turn the work down,” he said, adding that he communicates the costs in advance with customers so they are aware of the fees.

Fees can range from $35 to more than $800, including reviewing fees, inspection costs and charges based on a certain percentage of the project cost, he identified. An average project will run a $500 to $1,000 tab for regulatory fees, Kelly said. Half of these fees generally are allocated to document preparation and half are accumulated due to project slowdowns.

He is careful to note on a bill that these costs are not included in the price of the project. If customers want their job estimate to include regulatory costs, he first requires a deposit for the project before tracking down costs. “I don’t do it without my time and effort being put on the books.

“Regulations increase the direct cost for the clients and slow down the project, so the job costs more because you have to stop to get inspections at certain phases and you could do the work faster if you could continue straight through,” Kelly commented.However, the project is often worth the hassle and cost, he added. If he knows the client will bring him additional business or he has a solid relationship with the customer, he doesn’t mind wading through the paperwork, he said.

Clients aren’t the only party involved that shoulder regulatory fees. Companies who gloss over procedures will bear hefty fines, Salyers warned. “It’s more expensive to do work today than five years ago because the technology has changed, methods are changing and the consequences have gotten so severe if the regulations are not followed,” he pointed out. “That can be devastating in the form of a lawsuit, fine or increased insurance costs.”

Consequential threats keep Salyers on his toes when bidding installation jobs. He carefully reviews blueprints before committing to a project. “If the specification book has so much information compiled that it takes a lawyer to understand what’s being said, I won’t bid the project,” he added.

He suggested starting small when taking on government work. Once a company is acclimated with procedures, these projects become less overwhelming, he noted.

“A contractor’s biggest problem is not asking enough questions before starting a job,” he stressed. “If you’re doing something that walks the regulatory edge and you’re not educated in regulation, you better become educated.”