Essex Road 40B, now called Avalon Ipswich, appealed in Superior Court

IPSWICH — The Essex Road 40B saga is not quite over yet, as maneuvering has now moved to the courts.

An appeal was filed in Essex County Superior Court by abutters shortly after the zoning board of appeals (ZBA) approved a 214-unit development at 26-44 Essex Road.

Defendants are the Massachusetts Housing Appeals Committee (HAC), individual members of the ZBA, the state Executive Office of Housing and Livable Communities, AvalonBay, and Essex Pastures LLC.

Although the case was placed on a “fast track” in Superior Court, town attorney Amy Kwesell and AvalonBay attorney Peter O’Flaherty asked that the matter be sent to the Permit Session of Massachusetts Land Court.

“This case, at its heart, is an appeal from the [ZBA’s] decision to issue a Comprehensive Permit to the Developer pursuant to G.L c. 40B,” the attorneys said.

“One of the salutary purposes of the Permit Session is to accord expedited treatment for permit appeals,” the letter said.

The lawyers claimed that the need for a quick review is made more urgent by the need for affordable housing in the state.

Affordable?

“Fifty-four (54) of the units in the project will be dedicated for much-needed affordable housing to individuals and/or families earning no more than 80% of the Area Median Income (“AMI”),” they said.

The basis for that calculation is a U.S. Department of Housing and Urban Development (HUD) calculation of regional incomes. HUD’s 80% income limit for Ipswich is $92,650 for a single person. For a family of four, it is $132,300.

Affordable housing definitions mean a resident should not pay more than 30% of their income on rent and utilities. That would translate to maximum payments of $27,795 a year, or $2,316.25 a month, for a single person.

It would be $39,690 annually, or $3,307.50 a month, for a family of four.

Dated October 8, the letter to Chief Justice Heidi Brieger also has 59 pages of attachments, including a blog post from Abundant Housing Massachusetts and a Harvard study called “The State of the Nation’s Housing.”

However, the plaintiffs’ attorney, Daniel Hill, countered, “This case is not eligible for transfer to the Land Court Permit Session for the principal reason that it involves two declaratory judgment claims that are within the exclusive jurisdiction of the Superior Court.”

“Price-fixing scandal”

Addressing the Harvard study, Hill added, “They did not mention, however, another Harvard article that debunks the myth that producing more housing, like this project, will pull us out of this crisis.”

Printed in the Harvard Business Review, that article is “The Market Alone Can’t Fix the U.S. Housing Crisis.”

Hill also pointed to a national “price-fixing scandal” being litigated by federal and state attorneys general.

Those suits “accuse a software company — RealPage, Inc. — and the largest national apartment landlords of colluding to fix apartment rental prices … The defendant, AvalonBay, is named in at least one of those lawsuits, brought by the attorney general of the District of Columbia, where AvalonBay’s most recent attempt to get out of that case was denied on September 25, 2025,” Hill said.

Original complaint

The Essex Road 40B, also called the Bruni Project, was approved under the state’s 40B housing law, which lets developers bypass most local zoning if 25% of the units are “affordable” and if the town’s subsidized housing stock is less than 10% of its total.

Bruni’s company, Essex Pastures LLC, did most of the work until last summer, when AvalonBay agreed to buy the property. Although the sale has not closed yet, AvalonBay ultimately received the final permit from the ZBA.

The complex is now called Avalon Ipswich.

Representing abutters Chris and Susan O’Leary and Keri MacRae, Hill filed a first appeal on September 2, after the ZBA approved 214 units on a 13.3-acre parcel in August.

MacRae was “granted party status as an intervenor” at the HAC hearings, Hill notes in his filing.

One of his complaints is that the abutters were not included in final discussions between the ZBA and AvalonBay, which happened “without the knowledge of plaintiffs of the public.”

That resulted in an amended permit that “substantially weakened a number of material conditions,” Hill alleged.

His filing asks for a judicial review of the ZBA process, “adopting, without public hearing, an amended Chapter 40B permit decision negotiated by the board and the owner.”

Subsidized?

Hill also asks the court for a declaration that the project does not qualify as “low or moderate-income housing.” To qualify, it should be subsidized by either state or federal government, Hill argued.

He said all the defendants have is a February 2018 letter from the Massachusetts Housing Partnership (“MHP”) to Essex Pastures.

The letter only refers to the privately owned Federal National Mortgage Association’s (Fannie Mae) Multifamily Affordable Housing Program, Hill said, adding, “There is no such thing.”

He asked for a declaratory judgment that neither MHP nor Fannie May are state or federal agencies and that that the project is not low-income, as defined by state law.

Hill also said the Executive Office of Housing and Liveable Communities uses an overly broad definition of subsidy. He asked the court to find it was in conflict with the 40B law — “and therefore void.”

In their filing dated October 9, the town and AvalonBay denied Hill’s assertions and said the state law and regulations “speak for themselves.”