For more than four years, the town of Wendell has waged a Home Rule battle with Massachusetts over the issue of who regulates Battery Energy Storage Systems (BESS).
“Home Rule” means self-governance. The U.S. Supreme Court in 1907 stated: “Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.” Article 89 of our state Constitution “confirms to the people of every city and town the right of self-government in local matters.” Municipalities have had Home Rule authority since1966.
Local laws can stand so long as they are not inconsistent with the state Constitution or general laws. The courts have ruled (Connors v City of Boston) that Massachusetts has the “strongest type of home rule and municipal action is presumed to be valid.” “If the reasonableness of a zoning bylaw is even ‘fairly debatable’, the judgement of the local legislative body responsible for the enactment must be sustained.’” (Crall, 362 Mass. At 101).
In December 2021, Wendell adopted a moratorium on large-scale solar installations and BESS. It was never submitted to the AG and had no legal effect. In June 2022, Wendell Town Meeting passed a zoning bylaw on solar installations, which included a section banning stand-alone BESS in every zone. Attorney General Andrea Joy Campbell rejected that ban because it violated the 1985 “Dover amendment” (Chapter 40A, s. 3) a law which exempts many land uses from local zoning, including “structures that facilitate the collection of solar energy except where necessary to protect the public health, safety or welfare.” The AG rejected the 2022 Wendell Town Meeting vote because it was “not grounded in articulated evidence of public health, safety or welfare.”
In 2024, a Wendell citizen group called No Assault & Batteries (NAB) drafted a town bylaw that “articulated evidence” of BESS safety concerns. I worked on the team that drafted that general bylaw — not a zoning bylaw. It took six rewrites to craft a licensing bylaw.
On May 1, 2024, the bylaw was approved by Wendell Town Meeting by a vote of 100 to 1. The bylaw required licensing for BESS with a power rating greater than 1 megawatt (MW) but not more than 10 MW. Residential-scale batteries did not require licensing. Installations over 10 MW were not permitted. Some land use issues we hoped the state would adopt — such as no forest clear-cutting, protecting farmland and undeveloped parcels — were ancillary to the main purpose of licensure for public safety.
On July 19, 2024, the Wendell Selectboard sent a supplemental letter to the AG stating that the town’s general bylaw was an attempt “to exercise its solemn responsibility to protect the health and safety of Wendell citizens… and address the Commonwealth’s failure to do so.” The Selectboard attached a 59-page dossier to the AG cataloging serious fires around the globe triggered by lithium battery projects.
Five months later, on Nov. 14, 2024, the AG issued a decision rejecting the BESS bylaw in its entirety. The AG said the Wendell BESS bylaw “regulates the use of land and therefore should have been adopted as a zoning bylaw.” Two weeks later the AG rejected a similar BESS general bylaw submitted by Shutesbury. “The siting of lithium-ion based battery storage in rural, wooded communities without adequate water for emergency response continues to be a significant concern that runs counter to safe deployment of clean energy,” explains Shutesbury Planning Board member Michael DeChiara.
Anticipating an AG denial, NAB raised $7,000 towards a Land Court appeal. On Jan. 10, 2025, Wendell’s appeal was filed by attorneys Jesse Belcher-Timme and Talia Williams of the law firm Doherty, Wallace. The appeal noted that “the adoption of a bylaw at a town meeting carries a strong presumption of validity” and was “intended to minimize the risk to the health, safety, and welfare of the community.” Fourteen months later, the Land Court’s decision supported the AG.
Wendell has been fighting for every town’s right to self-governance. The state has lengthened its list of “high priority” land uses considered so important to the public good that the state forces local communities to accept them by right: multi-family housing (MBTA Communities Act), accessory dwelling units, solar installations, and BESS. The courts have determined that “neighborhood hostility” or “local preferences” should not stand in the way of state priorities. Our “strongest type of Home Rule” pitch has curved into a home run for developers who use our weak local zoning to subvert clean energy.
Al Norman’s Pushback column is published in the Recorder every first and third Wednesday of the month.