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Cobble v. Greene County

Court of Appeals of Tennessee, Knoxville

July 31, 2019

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

          Session May 20, 2019

          Appeal from the Chancery Court for Greene County No. 20140130 Douglas T. Jenkins, Chancellor.

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          Lora Cobble, Greeneville, Tennessee, Pro Se and for co-appellant, Michael Cobble.

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

          Earl Scott Moore and Joetta Moore, Greeneville, Tennessee, Pro Se appellees.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE.

         I. Factual and Procedural Background

         The 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.

         Following 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.

         On 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 situation.
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.

         On 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 appeal.

         On 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 ...


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