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 briefing and to precedent she says supports reversal, citing Danger Records v. Berger for the proposition that a fee award should not stand where the lower court did not find “all or substantially all” claims frivolous. She also referenced Quimby v. the Zoning Board of Appeals of Andover to argue her individual standing could be supported by a real interest in the property and by residence with her children.

Don Gentile, counsel for Boylston Brookline LLC, defended the Land Court rulings and the fee award. Gentile told the panel that standing was central to the litigation and that the case produced “a lot of chaos” and motion practice that Judge Rubin of the Land Court described in detailed findings. “The standing is the absolute gateway issue in a zoning” case, Gentile said, and he emphasized that the underlying record, including shifting deeds and last-minute filings, justified the Land Court's conclusion that some conduct warranted a fee award.

Gentile argued the Land Court’s factual findings — including a lengthy, 78-page decision by Judge Rubin cited during argument — and the single justice's review left no legal error or abuse of discretion to overturn. He characterized the litigation as repeatedly producing “stunts” and “gamesmanship” that consumed time and prompted the fee assessment.

The judges questioned both sides about what the record actually contains on residence and ownership. The panel asked whether the Land Court had been provided clear evidence that Pense lived at the property with her three children and whether the record supported her claim that she was the managing member of the record owner, Boylston D3 LLC. Pense told the court she had lived in the house with her children and that she contributed more than 85 percent of the purchase funds and acted as managing member; Gentile and the panel repeatedly returned to whether those facts were clearly established in the trial record.

Both sides acknowledged some discrepancies in how the claims and fee calculation were described during argument: Pense at times described the complaint as containing 17 claims and elsewhere referenced 19 claims and differing counts of individual versus common zoning claims. Counsel and the panel referenced the $318,000 fee figure and the Land Court's use of a 30 percent allocation to determine the amount sought from the appellant, but the parties disputed whether the allocation corresponded to work directed specifically at the single claim the Land Court labeled frivolous.

No decision was made from the bench. The panel heard the arguments, asked follow-up questions about the record and precedent, and then submitted the case for decision. The court adjourned after both advocates completed argument.

The appeal will require the panel to address three discrete issues highlighted during argument: whether the statutory gate in Chapter 231, Section 6F was triggered when only a single claim was found frivolous; whether the record supports findings that justify assessing fees against the appellant; and whether the Land Court's line-item calculation of fees (a flat 30 percent of the stated fees) complied with the statute’s requirement that fees correspond to defending the frivolous claims. The appellants and appellee signaled they expect the panel to review the trial record and the single justice's prior review in reaching its ruling.

The case was presented remotely; each side had 15 minutes to argue. The panel included Justice Massing, Justice Englander and Justice DeAngelo. The Land Court decision under review was issued by Judge Rubin; the single-justice review was conducted under Chief Justice Blake’s authority and the parties referenced that review during argument.

The court took the matter under advisement; no opinion was issued at the hearing.