MARK WOODS and SUSAN WOODS v. TIMOTHY R. LEEK, and THOMAS SIENIEWICZ, CONSTANTINE ALEXANDER, DAVID M. GLYNN, SUSAN SPURLOCK, and BRENDAN SULLIVAN, as they are Members of the CITY OF CAMBRIDGE ZONING BOARD OF APPEALS

In this action, brought pursuant to G. L. c. 40A, § 17, Plaintiffs Mark Woods and Susan Woods appeal from a June 6, 2007 decision issued by Defendant Cambridge Zoning Board of Appeals (Board), through which it granted a variance to Plaintiffs’ neighbor, Defendant Timothy R. Leek (Leek). The variance allowed Leek to relocate a bicycle shed on his property at 36 Garfield Street in Cambridge (Locus). Plaintiffs reside at 44 Garfield Street, which abuts Locus. Plaintiffs allege that Leek’s shed is an illegally constructed accessory building which violates the City of Cambridge’s floor area ratio (FAR) regulations in place at the time of the Board’s decision. They seek a determination that the Board exceeded its authority, and a declaration that the decision is null and void.

At an undisclosed time in or prior to 2006, Leek erected a shed at the end of his driveway on Locus for the purpose of storing bicycles. The shed was not in compliance with the FAR requirements of the City’s Zoning Ordinance (Ordinance), and Leek did not seek a variance from the City before erecting the structure. The City’s Inspectional Services Department (ISD) later concluded that the shed was a free-standing accessory structure that was subject to inclusion in the gross foot area calculation for Locus, and was not in compliance with FAR regulations for accessory buildings. Subsequently, Leek applied for a variance from the FAR requirement of the Ordinance, which would permit him to maintain the shed, as located.

The Board held a public hearing in several sessions on Leek’s application beginning in November 2006 and ending in April 2007. On April 5, 2007, Leek filed a proposal with the Board for alternative locations for the shed on Locus, if the Board required him to move the shed. The Board granted the variance on June 6, 2007, finding that there was particular hardship respecting Locus. Specifically, the Board found the house was built on Locus before zoning was adopted, Locus is undersized, and the modest request for FAR relief would accommodate an accessory building to store bicycles, allowing for the reasonable use of Locus. The variance was conditioned on Leek moving the shed consistent with his proposed plan so that the location of the shed would comply with all applicable setback requirements of the Ordinance.

Plaintiffs filed a complaint on June 26, 2007, appealing the Board’s decision and claiming that the Board exceeded its authority in issuing the variance because Leek’s petition did not satisfy the statutory requirements for a variance under G. L. c. 40A, § 10. Plaintiffs requested that the Board’s decision be annulled and costs awarded to Plaintiffs. After this court entered an order on December 18, 2007, allowing Plaintiffs to amend their complaint in order to add Leek as a Defendant, Plaintiffs filed an amended complaint on January 15, 2008, reasserting all of their claims. [Note 1]

Subsequently, on May 12, 2008, the Cambridge City Council voted to amend the Ordinance by inserting a new subsection under Article 2.000, in the section entitled “Gross Floor Area” (Amendment). The Amendment provides that the calculation of “gross floor area” shall not include structures for bicycle parking if the structures meet the requirements of Article 6.000 of the Ordinance. Article 6.000 requires that each bicycle space be sufficient to accommodate a bicycle at least six feet by two feet, with adequate space for convenient access and provision for secure storage. In circumstances where the exemption applies, it does so “whether the bicycle parking is located in a principal use structure, any parking facility for motor vehicles, or in an accessory structure.” Based on the Amendment, the Board and Leek filed on June 18, 2008, a motion to dismiss Plaintiffs’ complaint on mootness grounds. Defendants argue that Leek’s shed conforms to the Amendment and that the ISD has approved the shed, confirming that no variance is required to maintain the shed. For these reasons, Defendants argue that the variance which is the subject of this appeal is no longer needed, and the case is moot and should be dismissed.

On June 23, 2008, Plaintiffs, who are representing themselves, filed a cross-motion for judgment on the pleadings. Plaintiffs argue that although the Ordinance has been amended, the variance was improperly granted and should be annulled because it was in excess of the Board’s authority to grant it when it did so. Plaintiffs also request that costs of their appeal be awarded to them.

This court held a case management conference on June 24, 2008. During this conference, Plaintiffs agreed that following the Amendment, Defendant Leek no longer requires a variance to maintain the shed on Locus. However, Plaintiffs stated that though Leek’s shed is in compliance with the current Ordinance, the process up until the Amendment, the shed was in violation of the requirements for a variance. As a result, they continue to seek a judgment in their favor that the variance was improperly granted and should be annulled.

As the moving party seeking to dismiss the action, Defendants bear the burden of proving that the case should be dismissed. The record contains materials in addition to the pleadings, so Defendants’ motion is more properly analyzed under the standards for a motion for summary judgment under Mass. R. Civ. P. 56, where Defendants seek dismissal based on mootness. Accordingly, Defendants must establish that this case is moot because Leek’s shed is now in compliance with the Amendment, and no variance from the Ordinance is required.

Summary judgment may be granted only where there are no genuine issues of material fact in dispute that would preclude disposition of the case as a matter of law. See Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553-54 (1976). The moving party bears the burden of affirmatively showing that there is no triable issue of fact. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 644 (2002). The court finds there are no material facts in dispute and, therefore, this case is ripe for summary judgment.

“[C]ases become moot because of material changes in . . . ordinances on which a claim is based.” Flint v. Comm’r of Pub. Welfare, 412 Mass. 416 , 419 (1992). “‘[T]he court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.’” Sullivan v. Sec’y of the Commonwealth, 233 Mass. 543 , 546 (1919) (quoting California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893). In that context, this court concludes that Defendants are entitled to dismissal of Plaintiffs’ appeal of the variance which is no longer required.

The pleadings establish that the City amended its Ordinance so that space used for bicycle parking is not counted toward the FAR calculation if the structure conforms to spacing requirements for secure storage and convenient access. Following the enactment of the Amendment, Leek submitted a plan for his shed to the ISD, which was stamped “approved for zoning” by ISD. In light of the Amendment and the ISD’s approval of the location of Leek’s shed, the variance granted by the Board for the shed is no longer needed. It therefore follows, as Defendants urge, that Plaintiffs’ appeal of the Board’s grant of the variance is now moot. See Sullivan v. Bd. of Appeals of Canton, 348 Mass. 793 , 794 (1965), and related Sullivan cases cited therein.

In Sullivan, the plaintiffs challenged a variance granted by the Canton Board of Appeals to a property owner to allow him to build a non-conforming house on his property. Sullivan v. Bd. of Appeals of Canton, 345 Mass. 117 , 119 (1962). The Supreme Judicial Court (SJC) reversed the trial judge’s ruling affirming the board’s decision and remanded for further hearing on the issue of who had the burden of proof with respect to the statutory prerequisites for granting a variance. Id. at 120. The town’s zoning by-law was subsequently amended, and the property owner no longer required a variance to build his house. Sullivan, 348 Mass. at 793. Plaintiffs unsuccessfully challenged the zoning amendment as spot zoning. Sullivan v. Bd. of Appeals of Canton, 346 Mass. 784 , 784 (1964). After losing that challenge, the plaintiffs sought to have the structure’s building permit declared null and void, but the trial court denied the motion because the case had become moot by virtue of the amendment to the zoning by-law. Sullivan, 348 Mass. at 793-94. Plaintiffs then returned to the SJC challenging the trial court’s decision, not because it was wrong on the mootness question, but because the trial court had not complied with the SJC’s first rescript ordering further hearing on the burden of proof issue. Id. at 794. The SJC dismissed the appeal out of hand, stating that “the contention that [the trial court’s] decree did not conform to the [SJC’s earlier remand for further hearing] is . . . palpably without merit.” Id. Although none of the three SJC rescripts addressed mootness directly, when the three Sullivan cases are viewed together, the SJC impliedly acquiesced in the trial court’s conclusion that the plaintiffs’ appeal was moot. See id.

The underlying factual context presented here is strikingly similar to that presented by the Sullivan cases, and requires the same result. Although Plaintiffs asked for the variance to be declared null and void before the Amendment was passed, this fact is not a sufficient reason for the court and the parties to expend resources to determine whether the original variance was properly granted. Even if this court were to find that it was improperly granted, the annulment of the variance would have no practical effect. Plaintiffs concede that Defendant Leek has the right, under the Amendment, to his bicycle shed. They claim to be pressing the case due to their frustration with their neighbor and with the Board and ISD, and want to “send a message to the Board that they cannot ignore the law, just because they know it would be difficult for someone like the Plaintiffs to on their own, pro se, challenge it.” Nonetheless, even if Plaintiffs were successful, it would result in an order annulling the Board’s decision, leaving Defendant Leek free to maintain the shed under the Amendment, as a matter of right.

For the reasons stated above, Plaintiffs’ motion for judgment on the pleadings is DENIED, and Defendants’ motion to dismiss on mootness grounds, which this court has treated as a motion for summary judgment, is GRANTED.

So Ordered.

By the Court. (Scheier, C. J.)