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Cobble v. Greene County

Court of Appeals of Tennessee, Knoxville

December 19, 2017

MICHAEL COBBLE, ET AL.
v.
GREENE COUNTY, TENNESSEE, ET AL.

          Session October 19, 2017

         Appeal from the Chancery Court for Greene County No. 2014-0130 Douglas T. Jenkins, Chancellor.

         This appeal arises from a dispute over the grant of a zoning variance. Earl Scott Moore and Joetta Moore ("the Moores, " collectively) applied for a variance in order to build a carport at their home. The Moores' neighbors, Michael Cobble and Lora Cobble ("the Cobbles, " collectively) opposed the requested variance. The Greene County Board of Zoning Appeals ("the BZA") rejected the Moores' application. The Moores submitted a second application, this time reducing their request by seven feet so as not to protrude into a public right-of-way. The BZA granted the Moores' application for a variance. The Cobbles filed a petition for common law writ of certiorari in the Chancery Court for Greene County ("the Trial Court"). The Trial Court concluded that material evidence supported the BZA's decision to grant the variance and dismissed the Cobbles' petition. The Cobbles appealed to this Court. We affirm the Trial Court in its declining to hold that res judicata barred the Moores' second application for a variance. We hold further that, because the Moore property is not distinguishable in any meaningful way, the BZA's decision to grant a variance was not supported by material evidence. We affirm, in part, and reverse, in part, the judgment of the Trial Court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed, in Part, and Reversed, in Part; Case Remanded

          Michael Cobble and Lora Cobble, pro se appellants.

          Roger A. Woolsey, Greeneville, Tennessee, for the appellees, Greene County Board of Zoning Appeals and Greene County, Tennessee.

          Earl Scott Moore and Joetta Moore, pro se appellees. [1]

          D. Michael Swiney, C.J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         The Moores and Cobbles are neighbors in a Greene County, Tennessee subdivision called Mountain View Terrace. Mountain View Terrace was subdivided in the 1960s and consists of terraced lots on hills. The neighborhood predates the 1984 Greene County Zoning Resolution, which laid out the restrictions giving rise to the issues in this case. The Moores' residence is zoned R-1. In December 2013, the Moores began erecting a prefabricated aluminum carport on the front right side of their property. This was in contravention of the Zoning Resolution which required that portion of the property to be open space. When the Moores realized they were violating the zoning ordinance, they halted work and applied for a variance for front-yard and side-yard setbacks. On January 22, 2014, the BZA held a public hearing on the Moores' application. The staff recommended approving the variance. However, the BZA voted down the application.

         Undaunted, the Moores filed a second application for a variance in February 2014. The Moores requested the same relief except with one key difference: this time, they requested seven less feet on the setback, which if granted would not put them on the public right-of-way. The second application was heard by the BZA on March 26, 2014. The Moores' neighbors, the Cobbles, attended the hearing and vigorously opposed granting the variance. Earl Scott Moore described why he wanted the carport: "I put that carport up because I work out of town four days out of the week, and my wife's at home and I'm trying to get her something so she can go out there in the vehicle without sitting out there for thirty minutes, defrosting and keeping her out of the rain." Mr. Moore, who has a garage already, addressed the fact that he owns six cars as follows: "I don't think it is any of his business. Because, I got tags on all six vehicles. I got insurance on all six vehicles, and I drive all six vehicles -- not at the same time, but I drive whenever I want to." The minutes of the second hearing reflect the following:

Case 1: Review and consider request by Earl Scott and Joetta Moore ("applicants") for a variance on front and right side yard setback requirements as required by the Greene County Zoning located on 109 Cutshall Avenue, Tax Map 122H, Group A, Parcel 025.00.
The applicants requested a 27 foot front yard variance and an 8 foot side yard setback so they could erect an aluminum carport. Building Official Tim Tweed explained the history of the variance request, which was denied previously at the January 22, 2014 meeting, and detailed how the applicants had made changes to their proposed project. He also passed around pictures of the property.
Planner Ross Phillips read the following staff recommendation: "Staff reviewed the application and completed a site visit to the subject property. The subject property has a significant slope on the left side and borders an undeveloped street (Decatur Street). The rear of the property is challenged with exceptional topographical conditions. There are other similar lots of record within the subdivision that are also challenged by similar sloped and topographical conditions. The combination of slope, topography, and increased left side yard setbacks due to the subject property being a corner lot, would make it difficult to locate the carport in this area. The owner would face an exceptional practical difficulty in locating the aluminum carport on the right/front area of the property while meeting the minimum front and right side yard setback requirements of the Zoning District. Allowing placement of the carport would be in characteristic with the other lot of record properties in the area. Staff finds relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning ordinance.
Staff recommends approval of the variance request based on the above findings and the requested variance meeting the provisions of Article X, Section 1004.3."
Tim Tweed then explained that Decatur Street is a "paper street" that constrains the building alternatives on the property. The applicants were given an opportunity to speak and deferred. [Michael] and [Lora] Cobble, the neighbors adjoining the side property line at issue, detailed several reasons they believed the variance was inappropriate. [Michael] Cobble stated the variance had been denied the last time because it would decrease property values and would set a precedent that structures, even permanent structures, could be built right up to the property line. He also explained that he had asked for a copy of the last meeting's minutes but had not received them. Tim Tweed and Roger Woolsey, County Attorney, later explained that conditions could be placed on any granted variance such as prohibiting permanent structures and that minutes were not distributed before they had been signed at the next meeting.
[Lora] Cobble noted that the purpose of the Zoning Ordinance was to ensure light, space, and safety but that granting the variance would block the view of the mountains from her property and cause a fire hazard. She went on to state that, although the lot at issue had topographical constraints, that the hardship was created by the applicants and that granting the variance would decrease her property value. She pointed out that the applicants should consider alternatives and posed the question of what is the minimum variance necessary.
Earl Scott explained the history of his property and relationship with the Cobbles. He decided to build a fence for privacy and to end the controversy with the Cobbles. He admitted he should have consulted the Building Official before first starting to erect the carport in November but disputed the contention that the aluminum carport posed any fire hazard.
Roger Woolsey read from page 2 of the Zoning Ordinance to explain its purpose and from page 68 to explain the factors for the variance decision. He advised the Board members to consider all the factors, be consistent, and that there would always be a potential for liability but that the members should do their best when making any decision.
Tim Tweed explained the neighborhood containing the subject property was laid out before zoning and that that was why the lots were only 50 feet wide. [Michael] Cobble asked whether a fence was a "structure" under the Zoning Ordinance and Tim Tweed explained that it was not. There was a lengthy discussion about the fence the applicants had erected before Roger Woolsey reminded everyone that the fence was not presently at issue.
Charles G'Fellers made a motion, seconded by Zak Neas, to follow the staff recommendation and grant the variance with the condition that only a freestanding carport with no permanent foundation and no walls could be placed in the area of the variance. Zak Neas explained the fire concern was so that a fire truck could get between the houses and pointed out that the Cobbles garage may be violating the side yard setback. The motion was read again for clarification before being passed unanimously.

         In May 2014, the Cobbles filed a petition for writ of certiorari in the Trial Court challenging the BZA's grant of the variance. This case then underwent a drawn out period with a winding procedural history that delayed resolution on the merits for some time. The writ of certiorari on the Cobbles' petition was not issued until ...


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