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IPSWICH — An abutter who had challenged the Essex Road 40B in court says it was legal tactics by the developers — not a financial enticement — that forced him and his wife to withdraw their court appeal.
Last month, it was reported that two direct abutters on Heartbreak Road — the MacRaes and the O’Learys — withdrew after reaching a legal deal with AvalonBay.
However, abutter Chris O’Leary said it was really a demand for a $250,000 bond that forced him and wife Susan to withdraw their complaint.
The maneuvering revolves around a proposed 214-unit 40B development in and around the Bruni Marketplace on Essex Road (Route 133).
Originally proposed by John Bruni, the proposal has been known as Essex Pastures, the Bruni Project, or the Essex Road 40B.
Last year, Bruni signed a purchase and sales agreement with AvalonBay, a $3.04 billion real estate firm listed on the S&P 500.
It was “a very different organization” and “very much a different challenge,” O’Leary said.
However, Chris Florio of Ipswich Citizens for Sustainable Growth (ICSG) said the O’Learys would not have been responsible for the bond.
“They would not have had to pay a dime,” he said, adding that the bond would have been posted by ICSG.
Florio also said ICSG was advised by its lawyers that the court would be unlikely to require the full $250,000 allowed by state law.
O’Leary said abutters were told at a legal strategy meeting in September that AvalonBay would require the bond. “That was a non-starter,” he said in a phone interview.
He described the lawsuit against AvalonBay as a “huge uphill battle,” and said he was unwilling to put quarter of a million dollars at risk.
40B
The Essex Road 40B was initiated in Ipswich in early 2017. Hearings started at the Zoning Board of Appeals (ZBA) in mid-2018 and lasted for just over three years.
The town approved a scaled-down project of 150 units but Bruni appealed to the Massachusetts Housing Appeals Committee (HAC).
After some wetlands complications, a redesign was submitted to the town in October 2023. That round of hearings and appeals ended in September 2025.
At that point, the two abutters applied with no one else joining the case.
Named after the provision Chapter 40B in state law, 40B developments are supposed to encourage the development of more affordable housing in Massachusetts.
Developers can bypass most local zoning, particularly as it relates to density, if less than 10% of a community’s housing stock is on the state’s subsidized housing inventory, and if 25% of the units are offered at “affordable” rates.
Ipswich is just under the 10% threshold but will reach “safe harbor” once multiple 40B proposals in the town’s pipeline are permitted.
Jim Bone, the town’s building inspector, told the Select Board last week that he expects AvalonBay to begin submitting permit applications in the coming months.
“I’m not 100% sure about that, but they’ve been making some inquiries into extending the water and sewer lines,” Bone said.
“When that [project] does happen, that’s going to be a big strain on my department,” he added. “I think, typically, when Avalon does a project, they come out with all guns blazing.”
$250,000 bond
In asking the O’Learys and MacRaes to each pay a $250,000 bond, AvalonBay’s law firm, Goulston & Storrs PC of Boston, argued that the abutters’ appeal “lacks merit” because the HAC and Ipswich ZBA “acted properly and consistent with their authority under Chapter 40B.”
AvalonBay said it would “suffer substantial economic harm from rising construction costs as a result of the delays,” and “this action is also delaying the creation of affordable housing and results in significant harm to the public interest.”
It said the legislature “recently amended Section 17 to expand the discretion of the courts to require plaintiffs to post a bond of up to $250,000 as a condition to maintaining an appeal and to discourage vexatious and meritless challenges to development projects.”
For that reason, AvalonBay said it was seeking the maximum bond.
Intervenors rejected
After the O’Learys and MacRaes withdrew, a second group filed with the court to take up cudgels on behalf of opponents. That group consisted of Florio, Sheffield Van Buren, and Dave Gordon.
In his ruling, Judge Robert B. Foster was skeptical.
“The proposed intervenors have not justified their failure to intervene at an earlier point in this litigation. The motion to intervene was filed more than seven weeks after the parties’ stipulation of dismissal entered on December 1, 2025; more than nine weeks after AvalonBay filed the motion to enforce on November 19, 2025; and more than twenty weeks after the initial complaint was filed,” he wrote.
“The statutory period to appeal the ZBA decision expired on September 24, 2025, twenty days after the ZBA decision issued,” he added.
Foster’s ruling said the proposed intervenors made a decision not to add their names to the initial complaint and must now live with that.
“The decision to list only the named plaintiffs on the complaint and the amended complaint was a strategic decision, and the proposed intervenors must bear the consequences of that decision. Proposed intervenors who intentionally remain on the sidelines of litigation are not entitled to intervention,” he wrote.
He said “dissatisfaction with how a named party has litigated the case is not the type of surprising event that justifies an otherwise untimely motion to intervene.”
Florio disagreed, saying the abutters discussed the matter without the knowledge of ICSG’s attorneys.
“I totally sympathize with them wanting to pull out,” he said of the abutters’ decision to withdraw. “I don’t begrudge them having enough.”
A note about affordability
For the purposes of the state’s 40B system, affordability is calculated based on an “area median income” (AMI) database maintained by the U.S. Department of Housing and Urban Development.
Ipswich falls into the Boston and Cambridge catchment area, where the median family income is said to be $160,900.
The “affordable” rental units will go to people making 80% or less than the AMI.
That means the income limit for a single person is $92,650. Under the rules, they cannot spend more than 30% of their income on housing and utilities. That means rent, electric, broadband, and other services would be capped at $2,316.25 a month for one person.
Meanwhile, a search for studios and one-bedrooms on Apartments.com on February 24 showed units available on Central Street, Market Street, Mill Road, and Colonial Drive.
The least expensive was $1,700 on Central Street. The most expensive were on Colonial Drive, where prices went from $1,950 to $2,150 depending on kitchen configuration. None of the rents include utilities such as electricity, TV, internet, etc. Water and sewer, however, are typically included with apartment rentals.
