The opinion
12/19/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 19, 2017 Session
MICHAEL COBBLE, ET AL. v. GREENE COUNTY, TENNESSEE, ET AL.
Appeal from the Chancery Court for Greene County
No. 2014-0130 Douglas T. Jenkins, Chancellor
No. E2017-00896-COA-R3-CV
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
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
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
OPINION
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
1
The Moores submitted a brief concurring with the brief submitted by the BZA and Greene County.
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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.
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[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 July 2016. The
Trial Court conducted a hearing on the Cobbles’ petition in November 2016.
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In April 2017, the Trial Court entered its final judgment in which it affirmed the
decision of the BZA’s granting the variance sought by the Moores. In its final judgment,
the Trial Court stated as follows:
1. Pursuant to the authority of powers granted to the Board of Zoning
Appeals in T.C.A § 13-7-207(3), the Board of Zoning Appeals has the
obligation to “where by reason of exceptional narrowness, shallowness or
shape of a specific piece of properly at the time of the enactment of the
zoning regulation, or by reason of exceptional topographic conditions or
other extraordinary and exceptional situation or condition of such piece of
property, the strict application of any regulation enacted under this part
and part 3 of this chapter would result in peculiar and exceptional
practical difficulties to or exception or undue hardship upon the owner of
such property,” to authorize, upon an appeal relating to the property, a
variance from such strict application so as to relieve such difficulties or
hardship; provided, that such relief may be granted without substantial
detriment to the public good and without substantially impairing the intent
and purpose of the zone plan and zoning ordinance.
II. The Board of Zoning Appeals pursuant to the zoning ordinance may in
appropriate cases and subject to the principles, standards, rules, conditions
and safeguards set forth in the ordinance make special exceptions to the
terms of the zoning regulations in harmony with their general purpose and
intent pursuant to T.C.A. 14-7-206. The chief legislative body may also
authorize the board of zoning appeals to interpret the zoning maps and pass
upon disputed questions of lot lines or district boundary lines or similar
questions as they arise in the administration of the zoning regulations.
III. Moore filed a variance request dated December 19, 2013 requesting a
right side yard variance of 4ft. and a front yard variance of 21 ft. for the
property they own next to Cobble.
IV. That variance request was denied by the Board of Zoning Appeals.
V. Moore filed a second variance request that was different from the first
variance request. The second variance request filed on February 28, 2014,
requested the same right sideyard variance but requested a front setback
variance of 28’ feet rather than 21 feet. The practical effect of reducing the
size of the variance for the front set back by seven feet would be that the
proposed carport that the Moore’s sought to install would not then be on the
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County Right-of-Way and further, that the proposed variance if granted
would cause the placement of the carport to be actually behind the fence
that separated the respective properties of the Cobbles and the Moore’s.
The Court noted that that property line between Cobble and Moore had a
solid wood fence approximately 6-8 feet in height. The Moore’s lot had
100 feet of road frontage and was a little over 1/3 acre in size.
VI. As per the findings of the staff reported to the BZA, the Moore property
had a significant slope on the left side and borders an undeveloped street;
further that the property is challenged with exceptional topographical
conditions; 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.
VII. Moore would face an exceptional practical difficulty in locating the
carport on the right front area of the property while meeting the minimum
front and right-side yard setback required of the zoning district.
VIII. The BZA found that allowing the placement of the carport is
characteristic with other lot of record properties in the area.
IX. That the staff made the recommendation to the BZA that the relief
could be granted to Moore without substantial determent to the public good
and without substantial impairment to the intent and purpose of the zoning
ordinance.
X. The Court finds that the staff working for the Planning Office
recommended approval of the variance request based on the above findings
and further based on the fact that the requested variance met the provisions
of Article 10 Section 1004.3 of the Zoning Ordinance.
XI. The Court finds from the record, that the public in general and that
Cobble in particular as well as the other adjoining property owners had
actual written notice of the Moore’s request for a variance. The Court finds
that Moore’s property was posted, with a notice of the requested variance,
that notification to the general public was accomplished by publication in
the Greeneville Sun. The Court finds that adjoining property owners were
provided specific written notice of a variance request.
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XII. That the adjoining property owners including the Cobbles and the
general public were given an opportunity to speak, testify, and argue for or
against the granting of the variance before the Board of Zoning Appeals.
After considering the foregoing findings of fact the Court rendered
the following conclusions of law.
1. That pursuant to T.C.A. § 13-7-207(3) The Greene County Board of
Zoning Appeals has the authority to grant a variance from the strict
application of the county’s zoning ordinance under such circumstances as
the board deems appropriate based on applicable law.
2. That the variance request by Moore dated December 19, 2013 was
substantially different from the second variance request by Moore of
February 28, 2014.
3. That res judicata is not applicable as it relates to Moore’s second
requested variance as that request is different from the Moore’s first request
for a variance. Moore’s first request for a variance was for approval to
construct the proposed use 21 feet from the front-yard setback, resulting in
a variance of 34 feet. Moore’s second request for a variance was for
approval to construct the proposed use 28 feet from the front-yard setback,
resulting in a variance of 27 feet which in effect would cause the Moore’s
proposed carport to be located off the county right-of-way and behind the
privacy fence between the properties of Moore and Cobble.
4. The planning office had provided the required statutory notice to the
general public by causing Moore’s request for a variance to be publicized in
the Greeneville Sun, a newspaper of general circulation in Greene County
as well as providing specific written notice to the adjoining property
owners. Furthermore, Moore’s property was posted with signage stating
that Moore was requesting a variance on their property.
5. The Petitioners had an ample opportunity to and actually did vehemently
contest and object to the granting of the variance at the hearing before the
BZA.
6. That the Board of Zoning Appeals acted entirely within its statutory
authority by independently determining that the variance request should be
granted based upon the significant slope on the left side of Moore property,
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the fact that the Moore property bordered an undeveloped street and that the
Moore property was challenged with exceptional topographical conditions.
7. That the Board of Zoning Appeals properly considered and weighed any
possible substantial determent to the public and to the adjoining property
owners in light of the zoning ordinance in granting the variance.
8. That the Board of Zoning Appeals imposed certain restrictions upon the
granting of the Moore variance to limit the impact of the granting of the
variance on the adjoining property owners and on the subdivision as a
whole. Those restrictions included that the carport could not be
permanently attached to the ground and that the carport could not have
sides or doors. Based on those restrictions, the proposed carport would for
all practical purposed be concealed except for its top from the view and
sight of the adjoining property owners, the Cobbles.
9. This Court in exercising judicial review does not substitute its judgment
for the judgment of the Board of Zoning Appeals; rather this Court
determines whether the Board of Zoning Appeals exceeded its jurisdiction
or acted illegally, arbitrarily, or fraudulently in granting the variance.
10. That the Greene County Board of Zoning Appeals based its grant of a
variance to Moore on substantial and material evidence presented to the
BZA by the staff, by Cobble, by Moores and other pertinent information
and did not act in an arbitrary, capricious, or fraudulent manner.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
that the decision of the Greene County Board of Zoning Appeals in this
matter is affirmed, that the Petitioners’ Petition for Writ of Certiorari is
dismissed with the Costs taxed to the Petitioners.
The Cobbles timely appealed to this Court.
Discussion
We consolidate the issues the Cobbles raise on appeal as follows: 1) whether res
judicata bars the Moores’ second application for a variance; and, 2) whether the BZA’s
decision was supported by material evidence.
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We first address whether res judicata bars the Moores’ second application for a
variance. Regarding the doctrine of res judicata as it relates to administrative agency
decisions, this Court has stated:
The doctrine of res judicata applies to the determinations of
administrative agencies “acting in a quasi-judicial capacity” when the
following conditions are met:
(1) the issues decided in adjudicative proceedings are
identical; (2) the prior adjudication resulted in a judgment on
the merits; (3) the proceedings involve the same parties; and
(4) the parties had a full and fair opportunity to litigate the
issue in the prior proceeding.
Wayman v. Transp. Licensing Comm’n of Metro. Gov’t of Nashville &
Davidson Cnty., No. M2009-01360-COA-R3-CV, 2010 WL 1293796, at *3
(Tenn. Ct. App. Apr. 5, 2010) (citing Mangrum v. Wal-Mart Stores, Inc.,
950 S.W.2d 33, 36 (Tenn. Ct. App. 1997)). The general rule concerning the
application of the doctrine of res judicata to decisions by administrative
boards has been summarized as follows:
Like a judgment of a court, an administrative
adjudication is res judicata or conclusive between the same
parties on the same cause of action not only as to all matters
litigated, but as to all matters which could have been litigated
in the proceeding with respect to such cause. An
administrative decision denying or dismissing a party’s claim
on the merits precludes such party from obtaining, in a
judicial proceeding not designated for review of the
administrative decision, the relief denied by the
administrative agency, whether upon the same ground as
urged in the administrative proceeding, or upon another
ground. An administrative decision granting a party the relief
asked for prevents such a party from obtaining additional
relief in a judicial proceeding upon the same ground.
Purcell Enters., Inc. v. State, 631 S.W.2d 401, 407 (Tenn. Ct. App. 1981)
(quoting 2 AM. JUR. 2d Administrative Law § 502 (1962)).
Finley v. Marshall County, No. M2015-00313-COA-R3-CV, 2016 WL 3637879, at *4
(Tenn. Ct. App. Jan. 20, 2016), no appl. perm. appeal filed.
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The Cobbles argue that the Moores should have filed a petition for writ of
certiorari to challenge the denial of their first application stemming from the January 22,
2014 hearing. Instead, the Moores elected to file a second application. According to the
Cobbles, the Moores should not be allowed to seek essentially the same relief over and
over again, causing additional cost and loss of time to all concerned.
If the Moores had, for instance, kept coming back seeking one foot less of a
setback each time, we would agree. However, that is not what happened here. The
Moores’ second request was materially different from their first in that the seven foot
reduction requested meant the difference between protruding onto public property or not.
In our judgment, this is a substantial enough difference in the two applications to
preclude application of the doctrine of res judicata.
The Cobbles argue further that, under principles of res judicata, the Moores should
be barred from seeking even a different version of the same relief requested, because that
too could have been addressed in the first hearing. We disagree. We think it
unreasonable to expect, in the context of a board of zoning appeals hearing on an
application for a variance, that the applicant somehow must exhaust the whole universe
of possible permutations to his or her request lest he or she be bound permanently with
the result. We hold that the Moores’ second application for a variance, with its reduction
in size of the proposed setback, was sufficiently different so as to preclude res judicata
from barring their effort.
The next and final issue we address is whether the BZA’s decision was supported
by material evidence. The proper method for obtaining judicial review of a decision by a
local board of zoning appeals is by filing a petition for a common law writ of certiorari.
Harding Academy v. Metro. Gov’t of Nashville & Davidson County, 222 S.W.3d 359,
362 (Tenn. 2007). The scope of review afforded to courts by a writ is extremely limited.
Id. (citing Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 712 (Tenn. 2003)). Thus, the
Trial Court, as are we, was restricted to determining whether the Board exceeded its
jurisdiction or acted illegally, arbitrarily, or fraudulently. Lewis v. Bedford County Bd. of
Zoning Appeals, 174 S.W.3d 241, 245-46 (Tenn. Ct. App. 2004). In Leonard Plating
Company v. Metropolitan Government of Nashville and Davidson County, we provided
additional guidance regarding this standard of review:
Review under a common-law writ of certiorari does not extend to a
redetermination of the facts found by the board or agency whose decision is
being reviewed. The courts may not (1) inquire into the intrinsic
correctness of the decision, (2) reweigh the evidence, or (3) substitute their
judgment for that of the board or agency. However, they may review the
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record solely to determine whether it contains any material evidence to
support the decision because a decision without evidentiary support is an
arbitrary one.
Ascertaining whether the record contains material evidence to
support the board’s or agency’s decision is a question of law. For the
purpose of this inquiry, “material evidence” is relevant evidence that a
reasonable person would accept as adequate to support a rational
conclusion. The amount of material evidence required to support a board’s
or agency’s decision must exceed a scintilla of evidence but may be less
than a preponderance of the evidence.
Leonard Plating Co. v. Metropolitan Gov’t of Nashville and Davidson County, 213
S.W.3d 898, 903-04 (Tenn. Ct. App. 2006) (internal citations and footnotes omitted).
The issue of whether there is sufficient evidence to support a zoning decision is a
question of law. Wilson County Youth Emergency Shelter, Inc. v. Wilson County, 13
S.W.3d 338, 342 (Tenn. Ct. App. 1999) (citing MC Properties, Inc. v. City of
Chattanooga, 994 S.W.2d 132, 134 (Tenn. Ct. App. 1999). Therefore, we review the
record de novo without a presumption of correctness while applying the limited standard
of review applicable here. Id.
In McRae v. Knox County, this Court discussed when it is proper to grant a
variance as follows:
In McClurkan v. Bd. of Zoning Appeals for the Metro. Gov’t of
Nashville and Davidson County, 565 S.W.2d 495, 497 (Tenn. Ct. App.
1977), the zoning ordinance at issue “contemplate[d] that it is the peculiar
circumstances of the land that must be the primary consideration, rather
than any hardship personal to or created by an owner of it.” We held that
the board of zoning appeals is not “authorized to grant a variance when the
only hardship to the owner in complying with the zoning regulations is the
result of a condition existing not in the land itself but in a structure which
was created or altered by an owner of the property in violation of the
zoning ordinance.” We noted that “the case for a variance here is made
even weaker by a lack of any evidence of hardship other than pecuniary
loss, which has been held insufficient by itself to justify a variance.” Id.
(Citing Houston v. Memphis & Shelby County Bd. of Adjustment, 488
S.W.2d 387 (Tenn. Ct. App. 1972). Ultimately, the court held that “unique
features of the land itself are entirely lacking, and any hardship concerned
only the condition of the house, which was brought about by the owner of
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the property in violation of the zoning ordinance so that the Board exceeded
its authority in granting the variance ...” In the case at Bar, Knox County
Ordinance Section 6.60.04(A0(3) provides that “[m]ere loss in value shall
not justify a variance; there must be a deprivation of beneficial use of land.”
McRae v. Knox County, No. E2003-01990-COA-R3-CV, 2004 WL 1056669, at *6
(Tenn. Ct. App. May 7, 2004), Rule 11 perm. app. denied Nov. 15, 2004.
As shown by the precedent cited above, our standard of review on this issue is
extremely narrow. The bar is quite low as to what relevant evidence would be sufficient
to support the BZA’s decision. We are not to substitute our judgment for that of the
BZA, or reverse simply because we would have reached a different conclusion.
The Cobbles argue that, despite the exceedingly narrow and deferential standard of
review, the BZA’s decision must be reversed because the record of the proceedings
below reflects no exceptional or unique hardship arising from the Moore property. The
BZA contends that the hardship comes from the topographical conditions in this
neighborhood that make construction of a carport unfeasible without the variance.
However, this begs the question. 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
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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.
Conclusion
The judgment of the Trial Court is affirmed, in part, and reversed, in part, and this
cause is remanded to the Trial Court for further proceedings consistent with this Opinion
and for collection of the costs below. The costs on appeal are assessed against the
Appellees, the Greene County Board of Zoning Appeals; Greene County, Tennessee; Earl
Scott Moore; and Joetta Moore.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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