SHONA PENDSE v. BOYLSTON BROOKLINE LLC & Another.

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.

9