Pushback: Shutesbury and Wendell appeal seizure of our home rule

By AL NORMAN

Published: 02-04-2025 4:59 PM

Ed Dombrowski was upset.

The vice chair of the Wakefield Town Council was disturbed by the new MBTA Communities Act, which imposes zoning mandates on 177 communities. “One of the most revered rights that municipalities across Massachusetts have,” Dombrowski wrote in a Boston Globe op-ed, “is the ability to regulate zoning within their own communities.”

The MBTA Communities law requires municipalities to create at least one high-density, multifamily housing district “as of right,” near public transportation. “Leaving local zoning decisions in the hands of our communities,” Dombrowski explains, “is a long-standing practice that should be preserved, not stripped away.”

Since 1950, state law (Chapter 40A, s.3), has been stripping away local zoning control, allowing “by right” exemption of land uses including solar installations, accessory dwelling units (ADUs), and battery energy storage systems (BESS). Health and safety are the only exemptions from Chapter 40A, s.3.

Shutesbury and Wendell town meetings were blocked recently by the Massachusetts Attorney General from adopting general bylaws for the licensing of grid battery installations. In November, the AG ruled general bylaws in both towns “should have been adopted as a zoning bylaw.”

Chapter 40 A, s.3, makes it nearly impossible for municipalities to regulate grid battery systems. The select boards in Shutesbury and Wendell filed separate complaints against the AG’s quashing of their grid battery general bylaws. Wendell challenged the AG‘s contention that a stand-alone grid battery is a solar “related structure” if a solar project is not connected.

Wendell voters passed their general bylaw to protect the health and safety of their inhabitants. The AG insisted it was a zoning bylaw.

The AG argued that “certain land uses are so important to the public good that the Legislature has found it necessary ‘to take away’ some measure of municipalities’ power to limit the use of land within their borders.” The AG quoted a court case in Medford, which said that chapter 40A, s.3 “strikes a balance between preventing local discrimination” against certain land uses while “honoring the legitimate municipal concerns that typically find expression in local zoning laws.”

The AG cited case law precedent that if the “nature and effect” of a general bylaw “is that of an exercise of the zoning power … It must be adopted as a zoning bylaw.”

In the AG’s rejection of Wendell’s general bylaw, she acknowledged that “the adoption of a bylaw by the voters at town meeting is both the exercise of the town’s police power and a legislative act.” She said the town’s vote “carries a strong presumption of validity.” Cities and towns have “independent constitutional powers … to protect the health, safety and welfare of their present and future inhabitants.”

On July 19, 2024 the Wendell Select Board sent the AG an eight-page “supplemental” letter expanding on its “solemn responsibility to protect the health, safety and welfare” of its citizens. They cited “the profound unfairness of concentrating the potential for catastrophic harm on a small rural population” for electricity “benefiting a distant urban population.”

The Department of Public Utilities has admitted that with BESS, “a zero-risk performance is unattainable.” The “grave risks” associated with lithium-ion batteries made protection a “core municipal interest” for the Wendell Select Board. A fire at a lithium-ion storage facility in central California three weeks ago forced the evacuation of 2,000 citizens. Firefighters were warned about “volatile electrolytes and flammable gases.”

Shutesbury and Wendell challenged the deduction that all bylaws that regulate land use are, in fact, zoning bylaws. The impact on land use of these general bylaws is secondary to their dominant purpose: protecting the health and safety of the public. These courageous select boards are acting to protect every city or town that could have a “thermal runaway” nightmare someday.

The Wendell group No Assault & Batteries has launched a GoFundMe legal defense fundraiser to help pay for their land court appeal to overturn the AG’s decision. Readers can donate today.

More than 32 towns have joined a class-action lawsuit against the MBTA law, as an example of “overreach and seizure of municipalities’ zoning rights” by the governor and the AG. The grid battery system mandate is a “power grab” by the state — as is the new ADU law. These are all examples of state overreach against Article 89, the Right of Local Self-Government in our constitutional amendments.

Ed Dombrowski says the Legislature “has stripped our cities and towns of much of their zoning autonomy, setting a dangerous precedent for the state to further usurp local control. What is the state going to take away from us next?” Only the Deep State knows.

Al Norman‘s Pushback column is published in the Recorder the first and third Wednesdays of each month.