Appeals Court hears challenge to Land Court fee award in Brookline zoning dispute

BOSTON — The Massachusetts Appeals Court heard oral argument in docket 24-P-149 on a dispute over whether a Land Court award of attorney fees under Chapter 231, Section 6F, was proper in a Brookline zoning appeal.

Shona Pense, the appellant appearing pro se, told the three-judge panel that the statute permits fee shifting only when “all or substantially all of a party's claims are wholly frivolous,” and said the Land Court had found only one of her claims frivolous while upholding the rest. “The land court only found 1 of my 17 claims to be frivolous, and that 1 claim was my individual standing. 1 does not equal 17,” Pense said during her allotted 15 minutes.

The dispute centers on a Land Court award that applied a flat 30 percent multiplier to a stated $318,000 in legal fees. Pense argued the percentage cannot stand because Section 6F requires fees to correspond to the time spent defending the allegedly frivolous claim, and, she said, the record shows the allegedly frivolous portion was only a small fraction of the claims advanced.

Pense summarized the appellant's legal theme: “section 6 f opens the fee shifting door only when, and I quote, all or substantially all of a party's claims are wholly frivolous.” She pointed the panel to her…