On Wednesday, Town Meeting voters in Wendell will finish an important piece of legal business that’s critical not only to the home rule powers of its 915 residents but for all cities and towns across Massachusetts.

One year ago, Wendell’s Town Meeting voted 100 to 1 to adopt a general bylaw creating a licensing board to review battery energy storage systems (BESS), including lithium-ion powered installations. The bylaw was written to protect the health, safety and welfare of residents from a technology with a troubled safety record.

The Wendell Selectboard sent a copy of the General Bylaw to the state Attorney General for review. On July 19, the Board added a supplemental letter with a 67-page dossier of battery storage “thermal runaway” accidents from New York State, California, and Korea.

In that dossier was testimony given in 2022 from MiloshPuchovsky, a professor of fire protection engineering at Worcester Polytechnic Institute. Puchovsky testified in a BESS review case in Carver that “Lithium-ion batteries’ primary hazard is that there is a potential risk of thermal runaway resulting in fire or explosion. Once started, lithium-ion battery fires have proven difficult to extinguish and are known to produce dangerous gasses.”

I was in Moss Landing, California last February, shortly after a BESS fire at a large power plant on the Pacific shoreline caused $400 million in damages, and forced a 1.2 gigawatt site to be demolished. The plant’s owner has been sued by a citizen group alleging failure to implement adequate safety measures. California Assemblywoman Dawn Addis introduced a bill to repeal the law that allows large BESS facilities to bypass local authority permitting.

The Wendell bylaw allows small-scale residential use of BESS by right, and commercial uses up to 10 megawatts with a license. Large industrial BESS installations are not permitted.

Six months after the Town Meeting vote, AG Andrea Joy Campbell ruled that the Wendell bylaw was a zoning bylaw, because it regulated land use, and was not a general bylaw. She rejected the Wendell bylaw primarily on procedural grounds that Wendell had not held public hearings in accordance with the state’s zoning act.

AG Campbell noted that since 1985, zoning bylaws must exempt from local zoning requirements “structures that facilitate the collection of solar energy,” like a BESS. However, the law contains an important clause which gives municipalities an exemption from the solar structures mandate “where necessary to protect the public health, safety or welfare.”

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The Wendell Selectboard voted unanimously to appeal the AG ruling in state Land Court. On May 14, 2025, special attorneys for the town filed a motion for judgment on the pleadings in Land Court.

Attorney Jesse Belcher-Timme, of the law firm Doherty Wallace, argued for the town that “the adoption of a bylaw by voters at a town meeting is entitled to a strong presumption of validity.” According to case law precedent: “If the reasonableness of a zoning bylaw is even ‘fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained.”

The town argues that Wendell “was compelled to adopt the BESS Bylaw to address concerns regarding Health, Safety, and Public Welfare.” The town asserts its BESS bylaw is general in nature, “and its impact on land use is secondary to its primary purpose.” Wendell has broad authority to adopt a general bylaw pursuant to the power of municipalities in Massachusetts to “make such ordinances and by-laws … as they may judge most conducive to their welfare.”

The town says the AG erred when she rejected the bylaw for failing to procedurally comply with the state’s zoning law. The Massachusetts Supreme Judicial Court has held that “all ordinances or bylaws that regulate land use are not necessarily zoning in nature.”

The motion concludes: “The Town, faced with very real concerns about legitimate risks created by BESS…adopted a general bylaw to ensure that all BESS would go through a rigorous licensing process to ensure that the Town was reasonably protected and prepared for those risks. Believing that these risks were primarily to the health, safety, and welfare of the community…regardless of the source of energy being collected and stored.” A similar Shutesbury bylaw was also rejected.

The Selectboard has spent $5,000 in legal fees. The No Assault & Batteries citizens group raised $7,000 for the town to prevent another Moss Landing thermal runaway.

I trust that Wendell voters will approve a final $5,000 to see this legal case to its conclusion. Wendell voters are on the front lines fighting for the health and safety of us all.

Al Norman’s Pushback column appears in the Recorder every first and third Wednesday of the month. He has been a member of the No Assault & Batteries coordinating committee since the group was formed more than a year and a half ago.