The Tennessee Court of Appeals and that an interesting variance case last last December, Cobble v Greene County, 2017 WL 6502878 (Tenn. App. 2017), dealing with both the basis for variances and the potential application of the doctrine of res judicata.
Mr. Moore wanted to add a carport onto his residence and to that end began erecting a prefabricated aluminum carport on the front right side of his property. Unfortunately, this was a violation of the current Zoning Resolution which required that portion of the property to be open space. The Moores filed an appeal to the board of zoning appeals and the zoning board voted down the application.
About a month later, a second application for a variance was filed seeking the same relief except that there was one significant difference, in that the request was 7 feet less on the setback. The neighboring property owner, cobble, attended the hearing and opposed granting the variance. More justify the variance indicating that he was out of town four days a week and that he was trying to make it so that his wife could go out in inclement weather, and stay out of the rain or snow. Moore also acknowledged that he had six cars and already had a garage. He didn't think that had a bearing on the application.
The staff report indicated that there was a significant slope on the left side of the property and borders and undeveloped Street. In addition, the staff report noted that there worse exceptional topographic conditions on the rear part of the property. The combination of slope, topography and increased left side yard setbacks because the property was a corner lot, made it difficult to locate the carport. As a result, the staff recommended approval of a variance.
The board, following the staff recommendation, granted the variance.
The Cobbles filed a petition for writ of certiorari and the trial court affirmed the decision of the zoning board.
The Court of Appeals discussed two issues: whether res judicata would bar the second application for a variance, and whether or not the decision was supported by material evidence.
With regard to res judicata, the court cited the recent Finley v Marshall County, 2016 WL 3637879 (Tenn. App. 2016), for the proposition that the doctrine of res judicata would apply in a context such as this administrative decision relating to a variance. The court found that there was no violation of res judicata, because the second request was materially different from the first in that there was a 7 foot reduction in the requested variance. The court acknowledged that if the Moore's had, for instance, come back seeking one foot less of a setback each time, probably would fall within the doctrine of res judicata. But here, there was a material reduction between the first and second applications sufficient to make the second application significantly different from the first.
The next question was whether or not there was enough evidence to grant a variance. The Court of Appeals concluded that there was no evidence in the record justifying the variance even given the fact that judicial review of such a decision by the Board of Zoning Appeals, was extremely narrow. First, the court noted that the desire to build this carport was based on the fact that Mr. Moore owned six vehicles and could not fit them all into his existing garage. "It is not at all clear how the Moore's' beneficial use of the property is impaired by any unique hardship from the train. On the contrary, it appears that any hardship incurred by the Moore's is self-imposed."
In addition, the court noted that the staff report indicated that all of the properties in the same general vicinity were challenged with similar slopes and topographic conditions. The court made the point that if all of the properties had these exceptional conditions, then the conditions were exceptional and all of the lots suffered from the same difficulties. The subject property simply was not distinctive and as a result the more property was not eligible for a variance on that basis.
The court went further to indicate that if the local legislative body considered that the current zoning requirements were unduly harsh or oppressive, then legislation revising the regulations could always be adopted. In any event, the decision of the zoning board was reversed.
This is quite an interesting decision, and makes significant points about each of the issues. The applicant changes the requested relief in a significant manner. Thus, zoning officials need to be careful about screening such cases: if there is a significant change in the requested relief, such as the 7 foot reduction in the requested variance in this case, then the matter should go to the board of zoning appeals for consideration. In fact, I would suggest that every case go to the board and the board should be permitted to consider how closely connected any success of application was to the original allow the board to make that decision.
Perhaps more importantly, a quick review of the Tennessee Public Zoning Enabling Statutes,Tenn. Code Ann. §13-7-201 et seq. (municipal), and in particular, §207 (3), will demonstrate that the emphasis is on finding some exceptional physical or topographical feature of the property which justifies relaxing the zoning restrictions on a particular property. The difficulty is that you have all of the property suffer from the same physical or topographical feature, then the property which is the subject of the appeal cannot be said to be exceptional. In order to be exceptional, it must stand out from its neighbors. If all the neighbors suffer from the same physical difficulties, then the only change that should be countenanced is a legislative change so that everyone benefits and not a single property owner
We don't have many cases here in Tennessee which make this point. It is however a valuable one. If you are the attorney representing applicant for a variance, you want to distinguish your client's property from the other properties in the surrounding vicinity. If you are representing a neighborhood, you want to emphasize the similarities of the property to the other properties in the surrounding vicinity.
This is a very interesting case, and certainly worthy of additional study.