MICHAEL COBBLE, ET AL.
GREENE COUNTY, TENNESSEE, ET AL.
Session October 19, 2017
from the Chancery Court for Greene County No. 2014-0130
Douglas T. Jenkins, Chancellor.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed, in Part, and Reversed, in Part; Case
Michael Cobble and Lora Cobble, pro se appellants.
A. Woolsey, Greeneville, Tennessee, for the appellees, Greene
County Board of Zoning Appeals and Greene County, Tennessee.
Scott Moore and Joetta Moore, pro se appellees.
Michael Swiney, C.J., delivered the opinion of the court, in
which John W. McClarty and Thomas R. Frierson, II, JJ.,
MICHAEL SWINEY, CHIEF JUDGE.
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.
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
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
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
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.
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 ...