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IPSWICH — A court filing to have opponents of the Essex Road 40B pay a $1.5 million bond has been called “unprecedented” and “unconstitutional.”
“It seems they will use any tactic to bully us out,” said Chris Florio, a resident seeking to appeal a 214-unit “affordable housing” project on Essex Road (Route 133).
Florio and Sheffield Van Buren, along with business owner Peter Gordon and a company named 94 Essex Road LLC, want to appeal a Massachusetts Land Court decision allowing the development to proceed.
Originally permitted by the town under the state’s 40B “affordable housing” law, the apartments and townhouses would be built in and around the Bruni Marketplace on Essex Road.
The housing was first proposed to the state by landowner John Bruni in 2017, and an application was filed with the Town in June 2018.
A scaled-down version was approved in May 2021 before Bruni appealed to the Massachusetts Housing Appeals Committee.
There were complications about wetlands and the development had to be redesigned. A new owner, AvalonBay Communities, entered the picture in 2024.
A new version of the development was approved by the Town after negotiations with AvalonBay in August 2025. That was appealed by Heartbreak Road abutters, Keri MacRae and her neighbors, Chris and Susan O’Leary.
They worked in conjunction with Ipswich Citizens for Sustainable Growth (ICSG), where Florio and van Buren are two of the main organizers.
But the situation got complicated when AvalonBay and the abutters reached a separate agreement late last year without the knowledge of ICSG.
Intervenors
Florio, van Buren, and Gordon then scrambled to rescue the appeal and filed a motion to intervene so that they could keep up the fight.
However, AvalonBay successfully saw that challenge off when the Land Court ruled that the intervenors were too late to file objections.
The intervenors, however, said the agreement was negotiated in secret and they want to appeal that decision.
AvalonBay then filed a motion requesting a $1.5 million bond “to partially indemnify” itself “from some of the damages it will sustain as a result of the delay” from commencing construction.
Saying the intervenors’ have filed a “meritless appeal,” AvalonBay claimed they are well able to afford the bond due to the intervenors’ “substantial financial resources.”
In a phone interview, Florio said AvalonBay researched the values of the intervenors’ homes and businesses and used that in its court filing to argue for the $1.5 million bond.
Asked how they would pay the bond, Florio said the filing implied the intervenors could take loans out against their properties.
“I didn’t think that was how the justice system works: you mortgage your home to take part,” he said.
He questioned the legality of the amount, citing the state housing law Chapter 40A, Section 17, which caps bonds for judicial reviews at $250,000.
In a letter to the editor, Van Buren said AvalonBay’s demand for $1.5 million was an attempt to “steamroll” opponents and “is incompatible with standards of fairness and transparency.”
Mortgage?
In their filing, the intervenors said ICSG had been working with the abutters for almost four years when the agreement with AvalonBay was reached late last year.
The abutters said they were effectively forced out of the process because AvalonBay filed with the court asking for $250,000 bonds.
Arguing against the bond request, the intervenors’ filing said AvalonBay had “not acted equitably” in negotiating secret settlements with the abutters.
Citing legal precedent, they said “equitable powers cannot be used to aid a party whose own misconduct created or exacerbated the circumstances for which relief is sought.”
The intervenors also argued that their appeal is not frivolous, an argument made by AvalonBay. Citing legal precedent and calling the bond a “punitive surety,” they said the bond would be unconstitutional because it would “unreasonably … prohibit” an appeal.
The intervenors said the bond is not needed by AvalonBay. They noted it is a $23 billion company and dismissed claims the delay could add $3 million a year to the project cost.
They noted the appeal does not halt the project and that “Massachusetts expressly authorizes developers to proceed with construction ‘at risk’ while an appeal is pending.”
Their final argument said the bond would form an “unconstitutional barrier” to appeals and would set a bad precedent.
“The requested surety would impose an impermissible and oppressive barrier to appellate review for the individuals and small local businesses whose rights were compromised through no fault of their own,” the filing said.
Florio accused AvalonBay of “strong-arm tactics,” adding, “We have a very strong appeal and they would like to prevent it from going to court.”
He said their attorney expected a court decision in the coming weeks.
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 (HUD).
Ipswich falls into the Boston and Cambridge catchment area where the median family income (AMI) is said to be $160,900.
The “affordable” rental units will go to people making 80% or less than the AMI.
HUD puts the income limit for a single person at $92,650. Under the rules, they cannot spend more than 30% of their pay on housing and utilities. That means rent, electric, broadband and other services would be capped at $2,316.25 a month for one person.
However, that is higher than current quoted market rates. In late April 2026, Zillow.com listed two one-bedroom rentals in Ipswich for $1,950 and $2,150.
The more expensive unit included heat, hot water, and water and sewer. “You would just pay for electric!” the listing said.
