While the technology of battery energy storage has advanced rapidly, the law surrounding the permitting and siting of such systems has often been slow to catch up. As a consequence — whether due to local caution or local opposition — many storage projects are finding that zoning is one of the major challenges to bringing stand-alone storage systems online. Squaring the zoning circle is one of the keys to developing a successful storage project.
To understand why, it's important first to understand a bit about how zoning works. In most cities and towns, all land uses — whether for battery storage, single-family homes, or supermarkets — must be authorized under the local zoning bylaw or ordinance before they can obtain building permits. Most zoning bylaws contain a "table of uses," a matrix listing dozens or even hundreds of types of land uses, and whether those uses are allowed "by right" in a given zoning district (meaning no zoning relief is needed), allowed with a special permit or site plan approval (meaning some zoning review is needed), or prohibited (meaning a variance from the local zoning board of appeals is needed).
Three points are relevant here. First, most zoning bylaws are "prohibitive" — meaning that the default presumption is that a use not affirmatively listed as allowed is prohibited. Second, the legal standard for obtaining a variance (as opposed to a special permit) is high. In Massachusetts, obtaining a variance requires demonstrating a hardship particular to the specific property due to its soil, shape, or topography. Third, there are two types of variance — a dimensional variance (for instance, an exception that allows building closer to the street than the bylaw otherwise allows) and a use variance (an exception that allows a use in a zoning district that the bylaw otherwise prohibits). Notably, many communities prohibit "use variances", meaning that unless the local bylaw is amended, the local zoning board cannot make an exception for a new use — even if they wanted to do so.
This is where energy storage and zoning intersect. The concept of a commercially-viable stand-alone energy storage system is relatively recent, so it is unsurprising that few zoning bylaws have been updated to add "energy storage" to their tables of uses. And obtaining a use variance can be difficult, with an uncertain outcome. However, most zoning bylaws are drafted to be flexible enough to accommodate new uses without having to go through the laborious process of amending the bylaw itself. For instance, bylaws often have a use category for "commercial retail", which would encompass shoe stores, toy stores, and sporting goods stores, even though none of those are specifically identified by name.
With energy storage, there are often existing zoning bylaw definitions that will allow energy storage uses to be classified as permitted rather than deemed prohibited. One example that several communities have relied upon is a "storage" or "warehouse" use, commonly allowed by right in commercial and industrial districts. Bylaws frequently define warehouses as "structures designed or used for the storage of goods." That's what an energy storage system does with energy — storing excess electrical energy from the regional power grid, and then releasing it back to the grid when needed. And the Massachusetts Appeals Court has held that "[e]lectricity, the same as gas, is a valuable article of merchandise, bought and sold like other personal property and is capable of appropriation by another."
Most zoning bylaws also allow for "utility uses" or "essential services," such as transformer stations, poles, conduits, and related equipment. Energy storage often falls within this use category as well. Storage systems are comprised of a series of connected batteries, connected to the power grid, and fenced for safety and security — much like a common utility transformer station. Although some bylaws limit utility uses to "public utilities," others broadly reference uses for the transmission and collection of electricity, or uses that allow for an "adequate level of public services." This is essentially how the Massachusetts Department of Energy Resources described energy storage in its 2015 study: as "the only emissions-free technology that can store electricity for use in future periods when there is a higher demand. It modernizes the way we generate and deliver electricity and can help utilities avoid costly distribution and transmission system infrastructure upgrades."
Finally, even if a local zoning bylaw does not have an existing broad use category that covers energy storage, in Massachusetts there is another option for asserting the right to site an energy storage facility nonetheless. This is a provision in the state zoning act (G.L. c. 40A, § 3) that bars municipalities from using local zoning to "prohibit or unreasonably regulate . . . structures that facilitate the collection of solar energy," except "where necessary to protect the public health, safety or welfare."
The Massachusetts Supreme Judicial Court recently ruled that this exemption for solar siting is broad. In 2022, the Court held in Tracer Lane II v. City of Waltham that although municipalities have "some flexibility" in siting solar facilities, a local zoning restriction that prohibited solar facilities "in all but one to two percent" of a municipality's land area (and lacked any public health, safety, or welfare justification) was unlawful. More importantly, as a consequence of the preemptive effect of § 3, the contested solar PV facility in that case was ruled to be permitted by right.
So are energy storage systems entitled to the same broad protections of § 3 as "structures that facilitate the collection of solar energy?" While the courts have not yet addressed this question, the Massachusetts Attorney General has. This is because in Massachusetts, the Attorney General is required to review and approve all proposed town bylaws as being consistent with state statute (including § 3) before they can be enforced.
Following Tracer Lane, in 2023 the Attorney General ruled repeatedly that energy storage systems — whether stand-alone or connected to a solar photovoltaic system — are "structures that facilitate the collection of solar energy" entitled to the zoning protections of § 3. This makes intuitive scientific sense, since the need for battery energy storage is a direct result of the increase in renewable intermittent energy resources like solar and wind. Unlike fossil fuel generators, solar energy cannot be turned on or off to meet demand: it can only be generated when the sun is shining. And if more solar energy is generated than is needed on the grid at a given time — for example, on a particularly sunny day with low demand — that energy must either be stored, or it is wasted and lost forever.
In March 2023, the Attorney General rejected a zoning bylaw in the Town of Wendell that proposed prohibiting energy storage, determining that given the "strong statutory protections for solar installations and related structures," "[b]attery energy storage systems qualify as 'structures that facilitate the collection of solar energy' under G.L. c. 40A, § 3." The Attorney General further expressly ruled that this zoning protection extends to "stand-alone battery energy storage facilities." She reached the same conclusion two months later in striking down a proposed prohibition on energy storage facilities in the Town of Spencer. And by the end of 2023, the Attorney General had issued rulings striking down prohibitive energy storage bylaws in the Towns of Shrewsbury, Hubbardston, and Pelham. Although the Attorney General's determinations are not binding precedents, they are strong and consistent signals that § 3 prohibits local efforts to use zoning to preclude the siting of energy storage systems.
Finally, as to whether a municipality can summarily invoke the "health, safety, or welfare" clause as an escape clause to nonetheless restrict or prohibit "structures that facilitate the collection of solar energy," the courts have been highly skeptical. In 2022, the Land Court ruled against the Town of New Braintree's effort to deny a solar special permit on that basis, holding that
The better, and correct, view of the limits of local regulation of solar energy facilities allowed by G. L. c. 40A, § 3 is that such local regulation may not extend to prohibition except under the most extraordinary circumstances, and that special permits regulating solar energy facilities must be treated like site plan approval, which allows for regulation but not for prohibition. The language of a site plan approval provision in a zoning bylaw 'implies regulation of a use rather than its prohibition.' (Emphasis supplied.)
While some municipalities have welcomed energy storage systems as an essential and urgent piece of the decarbonization puzzle, others are using zoning in an attempt to slow or even prevent its deployment. Fortunately, as outlined above, a variety of tools are available to help clean energy advocates work with local boards and officials to ensure that energy storage projects can be sited in a responsible manner consistent with existing state and local laws.
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