July 31, 2015

With the U.S. Open fast approaching many of us have tennis on our minds. Building a tennis court at a private residence is something that can add a great deal of enjoyment and value to a home. However, there are a few legal issues about which a homeowner may wish to consult with an attorney before expending substantial time and resources. Here are a few examples.

1. Private Restrictive Covenants
In addition to local zoning restrictions there may be private covenants recorded against the property. For example, there may be a deed restriction requiring structures to be set back a certain distance from a neighbor’s property line. There may be a “protected area” in which no structure may be built as shown on a subdivision plat recorded in the County Clerk’s office. A real estate attorney can review the title and advise whether there are any restrictions that might impact the proposed tennis court.

2. Local Zoning Requirements
In New York zoning is regulated on the Village, Town or City level. An experienced zoning attorney can perform a zoning analysis to determine whether a tennis court is permitted in the zoning district(s) in which the property is located and if so, what bulk requirements apply. For example, the area of the tennis court may be included in the building coverage or impervious surface coverage calculation for the lot. There may be minimum setbacks from the boundary lines in order to minimize the impact on the neighbors. Lighting may be prohibited. Variances from the local Zoning Board of Appeals may be required if the proposed tennis court does not meet these requirements.

3. Wetlands, Steep Slopes and Tree Removal
Most local zoning codes, particularly in Westchester County, restrict development in environmentally sensitive areas such as wetlands and steep slopes. Local codes may also require a separate permit in order to remove a mature tree. Determining whether the proposed tennis court is located in a wetland/wetland buffer may require the advice of an expert environmental consultant. Determining whether tree removal requires a permit may require the advice of an arborist. An experienced zoning attorney can help interpret the local wetlands and step slope laws and liaise with the expert and local zoning authorities to collaborate and explore creative solutions. For example, if the location of the tennis court can be rotated or shifted slightly to avoid any disturbance in a wetland buffer and/or minimize the impact to any mature trees and steep slopes, that might save a lot of time and headache.

4. Construction Contract
Most homeowners have heard horror stories about the contractor who abandoned the job in the middle or who were hit with significant cost overruns due to “unanticipated” events. Having a clear, concise construction contract with a cost breakdown, progress payments, insurance requirements, and a fixed timeline can help avoid those pitfalls.

5. Insurance
Some homeowner insurance policies may require notification prior to any significant projects. For major projects a homeowner may seek the advice of their insurance agent with respect to a builder’s risk insurance policy which would cover the cost of stolen or damaged materials. The homeowner will certainly want to receive certificates of insurance from the contractor confirming that the contractor has a commercial general liability policy, disability and worker’s compensation insurance to cover the risk of any personal injury or property damage during construction.

In summary, seeking the advice of counsel early in the process to identify potential legal issues can help save a lot of time and money in the long run.

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