NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-149
SHONA PENDSE
vs.
BOYLSTON BROOKLINE LLC & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Shona Pendse, appeals from a decision of a
single justice of this court affirming an order of a Land Court
judge that awarded attorney's fees and costs to defendant
Boylston Brookline LLC, pursuant to G. L. c. 231, § 6F (§ 6F).
Concluding that that the plaintiff's arguments as to her
standing were not frivolous, we reverse the order of the single
justice and direct the entry of an order denying attorney's fees
and costs.
Pursuant to § 6F, a party is entitled to attorney's fees
and costs if there is "a separate and distinct finding[] that
all or substantially all of the claims, . . . made by any party
1 Zoning Board of Appeals of Brookline. who was represented by counsel during most or all of the
proceeding, were wholly insubstantial, frivolous and not
advanced in good faith." G. L. c. 231, § 6F. A single justice
of this court hears an appeal from a party aggrieved by a trial
judge's § 6F decision. G. L. c. 231, § 6G. Appellate review of
a single justice's decision is of "extremely limited scope."
Danger Records, Inc. v. Berger, 444 Mass. 1, 11 (2005). The
single justice does not make an independent determination of the
facts, but rather relies on "the subsidiary facts as found by
the trial judge" (citation omitted). Id. at 9. On appeal, we
are bound by "the underlying factual findings adopted and
accepted by the single justice" and we treat those facts "as
'final.'" Id. at 12-13. As such, "we review the single
justice's decision only for abuse of discretion or other error
of law." Fronk v. Fowler, 456 Mass. 317, 328 (2010).
As set forth by the trial judge, in May 2019, the zoning
board of appeals of Brookline (zoning board) granted Boylston
Brookline LLC special permits to construct residential
townhouses and maintain an existing historic house on otherwise
vacant land. Abutting the development site is a parcel of land,
617 Boylston Street, which is improved with a residential
dwelling (residence). After learning of the special permits,
BoylstonD3 LLC, the owner of 617 Boylston Street, appealed by
filing a complaint with the Land Court, asserting that the
2 zoning board exceeded its authority in granting the special
permits. The complaint was subsequently amended to add Pendse
as a plaintiff. Therein, Pendse claimed to be "a person
aggrieved by the [zoning board's] decision." She asserted that
she "is an abutter to the [development site] and thus is a party
in interest pursuant to G. L. c. 40A, § 11." Pendse further
asserted she "is an owner of 617 Boylston Street which is her
permanent residence."
A judge of the Land Court upheld the zoning board's
decision to grant special permits. As to Pendse, the judge
first reviewed her testimony that BoylstonD3 LLC conveyed 617
Boylston Street to Pendse, "individually together with" the LLC,
after the lawsuit commenced. The judge viewed that conveyance
as Pendse's attempt to "manufacture presumptive abutter status."
The judge reasoned that "[a]lthough Pendse was the manager of
[BoylstonD3 LLC] at the time of the permitting and issuance of
the [zoning board's decision]," she "did not hold an individual
interest in 617 Boylston Street" because "her interest in the
property was only that of one [of] the members of the LLC,
together with the other members." As such, the judge determined
that Pendse's interest was "insufficient to establish standing."
The judge acknowledged that the evidence established Pendse and
her children "were the primary beneficial occupants of the
residence on 617 Boylston Street," but noted that there was
3 insufficient evidence as to Pendse's financial contributions to
617 Boylston Street. Thus, the judge concluded that Pendse's
equitable interest in the residence alone was "insufficient to
establish presumptive standing."
As a result, Boylston Brookline LLC moved for attorney's
fees and costs pursuant to § 6F. The Land Court judge
determined that "all or substantially all of Pendse's claims [as
to standing] were wholly insubstantial, frivolous, and not
advanced in good faith" and ordered Pendse to pay attorney's
fees to Boylston Brookline LLC in the amount of $95,583.15,
which equaled roughly thirty percent of Boylston Brookline LLC's
fees in defending the case. Pendse timely appealed the finding
and award of fees. A single justice of this court affirmed the
Land Court judge's order.
On appeal, Pendse asserts that she had standing as an
abutter and a person aggrieved by the zoning board's decision,
and thus it was error for the single justice to affirm that her
claim was frivolous. 2 In support, Pendse maintains that she "had
a right to live in the [residence] indefinitely since she was
2 We note that Pendse's brief alleges that the Land Court judge erred in her frivolousness determination. Because we review only the decision of the single justice, who makes "her own ultimate conclusions as to the merits of a fee award," Danger Records, Inc., 444 Mass. at 9, we have summarized Pendse's argument accordingly.
4 the managing member of the deed holding LLC and she had provided
85% of the [$2.1 million] to purchase the [residence]." Pendse
also asserts that she had possession of the residence because
"she had lived at the property with her 3 children since the
year before the zoning board's decision." Further, Pendse
asserts that "she would ultimately be effected financially and
in her day-to-day living by the proposed development." Finally,
Pendse asserts that her claim to standing was not frivolous
because sixteen of her seventeen "claims" -- that is, her
arguments to overturn the zoning board's decision -- were
identical to BoylstonD3 LLC's, which the judge determined to not
be frivolous. 3 We agree and conclude that the single justice's
order affirming attorney's fees to Brookline Boylston LLC was
incorrect as a matter of law.
Pursuant to G. L. c. 40A, § 17, "only a 'person aggrieved'
has standing to challenge a decision of a zoning board of
appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of
Brookline, 461 Mass. 692, 700 (2012), citing G. L. c. 40A, § 17.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-149
SHONA PENDSE
vs.
BOYLSTON BROOKLINE LLC & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Shona Pendse, appeals from a decision of a
single justice of this court affirming an order of a Land Court
judge that awarded attorney's fees and costs to defendant
Boylston Brookline LLC, pursuant to G. L. c. 231, § 6F (§ 6F).
Concluding that that the plaintiff's arguments as to her
standing were not frivolous, we reverse the order of the single
justice and direct the entry of an order denying attorney's fees
and costs.
Pursuant to § 6F, a party is entitled to attorney's fees
and costs if there is "a separate and distinct finding[] that
all or substantially all of the claims, . . . made by any party
1 Zoning Board of Appeals of Brookline. who was represented by counsel during most or all of the
proceeding, were wholly insubstantial, frivolous and not
advanced in good faith." G. L. c. 231, § 6F. A single justice
of this court hears an appeal from a party aggrieved by a trial
judge's § 6F decision. G. L. c. 231, § 6G. Appellate review of
a single justice's decision is of "extremely limited scope."
Danger Records, Inc. v. Berger, 444 Mass. 1, 11 (2005). The
single justice does not make an independent determination of the
facts, but rather relies on "the subsidiary facts as found by
the trial judge" (citation omitted). Id. at 9. On appeal, we
are bound by "the underlying factual findings adopted and
accepted by the single justice" and we treat those facts "as
'final.'" Id. at 12-13. As such, "we review the single
justice's decision only for abuse of discretion or other error
of law." Fronk v. Fowler, 456 Mass. 317, 328 (2010).
As set forth by the trial judge, in May 2019, the zoning
board of appeals of Brookline (zoning board) granted Boylston
Brookline LLC special permits to construct residential
townhouses and maintain an existing historic house on otherwise
vacant land. Abutting the development site is a parcel of land,
617 Boylston Street, which is improved with a residential
dwelling (residence). After learning of the special permits,
BoylstonD3 LLC, the owner of 617 Boylston Street, appealed by
filing a complaint with the Land Court, asserting that the
2 zoning board exceeded its authority in granting the special
permits. The complaint was subsequently amended to add Pendse
as a plaintiff. Therein, Pendse claimed to be "a person
aggrieved by the [zoning board's] decision." She asserted that
she "is an abutter to the [development site] and thus is a party
in interest pursuant to G. L. c. 40A, § 11." Pendse further
asserted she "is an owner of 617 Boylston Street which is her
permanent residence."
A judge of the Land Court upheld the zoning board's
decision to grant special permits. As to Pendse, the judge
first reviewed her testimony that BoylstonD3 LLC conveyed 617
Boylston Street to Pendse, "individually together with" the LLC,
after the lawsuit commenced. The judge viewed that conveyance
as Pendse's attempt to "manufacture presumptive abutter status."
The judge reasoned that "[a]lthough Pendse was the manager of
[BoylstonD3 LLC] at the time of the permitting and issuance of
the [zoning board's decision]," she "did not hold an individual
interest in 617 Boylston Street" because "her interest in the
property was only that of one [of] the members of the LLC,
together with the other members." As such, the judge determined
that Pendse's interest was "insufficient to establish standing."
The judge acknowledged that the evidence established Pendse and
her children "were the primary beneficial occupants of the
residence on 617 Boylston Street," but noted that there was
3 insufficient evidence as to Pendse's financial contributions to
617 Boylston Street. Thus, the judge concluded that Pendse's
equitable interest in the residence alone was "insufficient to
establish presumptive standing."
As a result, Boylston Brookline LLC moved for attorney's
fees and costs pursuant to § 6F. The Land Court judge
determined that "all or substantially all of Pendse's claims [as
to standing] were wholly insubstantial, frivolous, and not
advanced in good faith" and ordered Pendse to pay attorney's
fees to Boylston Brookline LLC in the amount of $95,583.15,
which equaled roughly thirty percent of Boylston Brookline LLC's
fees in defending the case. Pendse timely appealed the finding
and award of fees. A single justice of this court affirmed the
Land Court judge's order.
On appeal, Pendse asserts that she had standing as an
abutter and a person aggrieved by the zoning board's decision,
and thus it was error for the single justice to affirm that her
claim was frivolous. 2 In support, Pendse maintains that she "had
a right to live in the [residence] indefinitely since she was
2 We note that Pendse's brief alleges that the Land Court judge erred in her frivolousness determination. Because we review only the decision of the single justice, who makes "her own ultimate conclusions as to the merits of a fee award," Danger Records, Inc., 444 Mass. at 9, we have summarized Pendse's argument accordingly.
4 the managing member of the deed holding LLC and she had provided
85% of the [$2.1 million] to purchase the [residence]." Pendse
also asserts that she had possession of the residence because
"she had lived at the property with her 3 children since the
year before the zoning board's decision." Further, Pendse
asserts that "she would ultimately be effected financially and
in her day-to-day living by the proposed development." Finally,
Pendse asserts that her claim to standing was not frivolous
because sixteen of her seventeen "claims" -- that is, her
arguments to overturn the zoning board's decision -- were
identical to BoylstonD3 LLC's, which the judge determined to not
be frivolous. 3 We agree and conclude that the single justice's
order affirming attorney's fees to Brookline Boylston LLC was
incorrect as a matter of law.
Pursuant to G. L. c. 40A, § 17, "only a 'person aggrieved'
has standing to challenge a decision of a zoning board of
appeals." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of
Brookline, 461 Mass. 692, 700 (2012), citing G. L. c. 40A, § 17.
3 The Land Court judge determined that BoylstonD3 LLC's sixteen "claims, although unsuccessful at trial, were properly founded in the facts and law." Pendse maintains that she made seventeen claims in her complaint, sixteen of which were the same as BoylstonD3 LLC's claims. Accordingly, Pendse asserts that the Land Court judge's determination that "all or substantially all" of her claims were frivolous is inaccurate because her claim to standing was "identical" to BoylstonD3 LLC's.
5 To be aggrieved, a person "must assert a plausible claim of a
definite violation of a private right, a private property
interest, or a private legal interest" (quotation and citation
omitted). Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass.
115, 120 (2011). "Abutters are entitled to a rebuttable
presumption that they are 'aggrieved' persons . . . and,
therefore, have standing to challenge a decision of a zoning
board of appeals" (citation omitted). 81 Spooner Rd., LLC,
supra. As for a tenant or a long-time resident, standing "with
respect to zoning variances is somewhat mixed" (citation
omitted) and we look to "whether the applicant was in fact a
real party in interest with respect to the subject property." 4
Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass. App. Ct.
1005, 1006 (1985). Relevant considerations include "[w]hether
the applicant is in control of the property [and] whether [she]
is in possession or has a present or future right to
possession." Id.
Here, Pendse had at least a nonfrivolous argument that she
was a real party in interest with respect to 617 Boylston Street
and was therefore entitled to presumptive standing as an abutter
to challenge the zoning board's award of special permits.
4 We note that the zoning board granted special permits in this matter and not variances; however, the rationale from Quimby, 19 Mass. App. Ct at 1006, still applies.
6 Pendse was the sole manager of BoylstonD3 LLC and a resident of
617 Boylston Street. 5 See Quimby, 19 Mass. App. Ct. at 1006.
Pendse was a long-time resident. See id. Pendse was in control
of the residence on the property abutting the development site
and had a right to possession of it. See id. The judge's
findings confirmed that Pendse "is an individual residing at
[the property] with her children." 6 Further, Pendse was the sole
manager of BoylstonD3 LLC "at the time the [zoning board
decision] was issued, and when this case was initiated." See
Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct.
208, 215 (2003) ("Individual or corporate property owners
acquire standing by asserting a plausible claim of a definitive
violation of a . . . private property interest" [citation
omitted]).
"A claim is frivolous if there is an absence of legal or
factual basis for the claim, and if the claim is without even a
colorable basis in law" (citations and quotations omitted).
Fronk, 456 Mass. at 329. We evaluate a claim "from the time
[it] was brought and over the course of the litigation." Id.
5 There is no dispute that BoylstonD3 LLC also had presumptive standing to challenge the special permits as an abutter to the development site. See 81 Spooner Rd., LLC, 461 Mass. at 700.
6 The judge, however, was unable to confirm Pendse's financial contributions to the residence.
7 While we understand the Land Court judge's frustration with
Pendse's actions undertaken to "manufacture" standing, those
ill-conceived and ill-advised actions were entirely unnecessary,
as Pendse already qualified as a real party in interest with
respect to 617 Boylston Street. 7 Thus, from the outset, Pendse
had a nonfrivolous claim to presumptive standing as an abutter.
Furthermore, Pendse claimed that she was harmed by (1)
violations of the Brookline zoning code related to density and
(2) an anticipated diminution in her property's value. As noted
above, Pendse was the principal of BoylstonD3 LLC and BoylstonD3
LLC presented multiple arguments of aggrievement that the judge
found were not frivolous, even though they did not ultimately
prevail. Pendse was also a proponent of those nonfrivolous
arguments.
Thus, although Pendse also presented testimony and argument
that the judge found to be frivolous, it was not the case that
"all or substantially all" of Pendse's arguments were frivolous,
and attorney's fees should not have been awarded pursuant to
§ 6F. In conclusion, the order of the single justice affirming
the Land Court judge's § 6F order is reversed, and a new order
For example, the Land Court judge took issue with the fact 7
that Pendse attempted to gain an individual interest in 617 Boylston Street on the same day that the complaint was filed.
8 shall enter reversing the order of the Land Court awarding
attorney's fees and costs to the defendant. 8
So ordered.
By the Court (Massing, Englander & D'Angelo, JJ. 9),
Clerk
Entered: July 2, 2025.
8 Boylston Brookline LLC's request for appellate attorney's fees and double costs is denied.
9 The panelists are listed in order of seniority.