MICHAEL COBBLE ET AL.
GREENE COUNTY, TENNESSEE ET AL.
Session May 20, 2019
from the Chancery Court for Greene County No. 20140130
Douglas T. Jenkins, Chancellor.
case involves an action by the petitioner landowners
disputing the grant of a zoning variance to their neighbors,
the respondent landowners, for the construction of a carport.
In a previous appeal, this Court reversed the respondent
county zoning board's grant of the variance and remanded
to the trial court for collection of costs and "further
proceedings consistent with this [Court's] Opinion."
See Cobble v. Greene Cty., 559 S.W.3d 118, 127
(Tenn. Ct. App. 2017), perm. app. denied (Tenn. May
16, 2018) ("Cobble I"). Our Supreme Court
subsequently denied the county's and zoning board's
application for permission to appeal, and this Court issued a
mandate on the same day. On September 4, 2018, the
petitioners filed a motion for discretionary costs. The
county and the zoning board filed a response, asserting that
the motion for discretionary costs was untimely pursuant to
Tennessee Rule of Civil Procedure 54.04(2). The respondent
landowners also filed a response objecting to the motion.
Upon finding that this Court's mandate was dispositive of
all issues and that the petitioners had failed to file their
motion within the thirty days allowed by Rule 54.04(2), the
trial court entered an order denying the motion for
discretionary costs. The petitioners have appealed.
Discerning no reversible error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
Cobble, Greeneville, Tennessee, Pro Se and for co-appellant,
A. Woolsey, Greeneville, Tennessee, for the appellees, Greene
County, Tennessee, and Greene County Board of Zoning Appeals.
Scott Moore and Joetta Moore, Greeneville, Tennessee, Pro Se
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Charles D. Susano, Jr.,
R. FRIERSON, II, JUDGE.
Factual and Procedural Background
petitioners, Michael Cobble and Lora Cobble (collectively,
"the Cobbles"), are neighbors to the respondent
landowners, Earl Scott Moore and Joetta Moore (collectively,
"the Moores"). Cobble I, 559 S.W.3d at
119. In December 2013, the Moores began construction of a
prefabricated aluminum carport on the front side of their
property, which was contrary to the 1984 Greene County Zoning
Resolution that required that space to remain open.
Id. Upon their discovery that they were violating
the zoning ordinance, the Moores ceased work on the project
and applied for a variance with the respondent Greene County
Board of Zoning Appeals ("the BZA"). Id.
The BZA denied the Moores' first application for a
variance. Id. The Moores filed a second application
for a variance, modifying their request by decreasing the
requested variance by seven feet to prevent a protrusion into
the public right of way. The Cobbles attended the hearing
before the BZA and objected to the variance, but the BZA
ultimately granted the Moores' second application.
Id. at 119-20.
the BZA proceedings, the Cobbles filed a Petition for Writ of
Certiorari in the Greene County Chancery Court ("trial
court") in May 2014, naming the BZA and Greene County
("the County") as respondents. Id. at 121.
The Cobbles subsequently amended the petition to add the
Moores as respondents as well. The trial court issued a writ
of certiorari in July 2016 and conducted a hearing on the
Cobbles' petition in November 2016. Id.
Following a hearing, the trial court affirmed the BZA's
grant of the Moores' variance application in an order
entered on April 2017. Id. The Cobbles timely
appealed the trial court's judgment to this Court.
Id. at 124.
appeal, this Court affirmed the portion of the trial
court's judgment finding that res judicata was
not applicable to the second variance application. However,
upon determining that the BZA's decision had not been
supported by material evidence, the Cobble I Court
reversed the trial court's affirmance of the BZA's
grant of the variance to the Moores. Id. at 125-27.
This Court concluded in relevant part:
A desire to build a carport does not in itself generate
grounds for a variance. The Moores own six vehicles. It is
not at all clear how the Moores' beneficial use of their
property is impaired by any unique hardship from the terrain.
On the contrary, it appears that any hardship incurred by the
Moores is self-imposed. At the hearing before the BZA, Mr.
Moore stated that it is his business how many vehicles he
owns. He is correct, but it is another matter then to suggest
he is entitled to a variance because of a self-created
With respect to the uniqueness or exceptionalness of the
subject property, we find no evidence in the record on
appeal, material or otherwise, supporting a conclusion that
the Moores' property stands out in any meaningful way.
Indeed, the staff report contained in the record states:
"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." This is
contradictory. Are all these "other similar lots . . .
challenged by similar sloped and topographical
conditions" exceptional as well? If every lot is
exceptional, no lot is exceptional. The Trial Court found
further that "the combination of sloped topography and
increased left side-yard setback due to the subject property
being a corner lot would make it difficult to locate the
carport in that area." However, a map of Mountain View
Terrace contained in the record reveals that there are a
number of properties abutting more than one street in the
subdivision. Once again, the subject property simply is not
distinctive. If Greene County considers the current zoning
requirements unduly harsh or oppressive, then they may
revisit them legislatively. However, adopting the position of
the BZA in the present appeal would mean the exceptions
collapse the rule in this subdivision.
Having reviewed the record thoroughly, we find no material
evidence to support the BZA's decision to grant the
Moores' application for a variance. We, therefore,
reverse the Trial Court as to its affirming the BZA's
grant of the variance.
Id. at 126-27. This Court remanded the case to the
trial court "for further proceedings consistent with
[the appellate] Opinion and for collection of costs
below." Id. at 127.
February 20, 2018, the County and the BZA filed an
application for permission to appeal to the Tennessee Supreme
Court, pursuant to Tennessee Rule of Appellate Procedure 11,
which was subsequently denied by the Supreme Court on May 16,
2018. Also on May 16, 2018, the appellate court clerk issued
a mandate to the trial court, signifying the end of the first
September 4, 2018, the Cobbles filed a motion for
discretionary costs in the trial court. The Cobbles
concomitantly filed an "Itemized and Verified Bill of
Costs," claiming total costs of $1, 911.21, consisting
of the following expenses: $647.00 for court costs, $691.90
for court reporter fees, $188.54 for postage charges, $10.00
for a parking fee, and $373.77 for copying costs. Also on
September 4, 2018, the Cobbles filed a ...