The Massachusetts Attorney General recently issued a written opinion denying approval of a zoning bylaw amendment passed by the Town of Wendell, which would have prohibited stand-alone battery energy storage facilities in all the town’s zoning districts. This is a significant development, marking the first time the Attorney General has expressly ruled that municipalities cannot prohibit or unreasonably regulate stand-alone battery storage systems.
Under state law, the Attorney General must approve in writing all zoning bylaws passed by towns before they can go into effect. The Attorney General has limited power to disapprove bylaws where they violate State law or constitutional provisions. Here, the Attorney General ruled that the town’s prohibition of stand-alone battery energy storage facilities violated the state Zoning Act, and was not grounded in “articulated evidence of public health, safety or welfare concerns sufficient to justify the prohibition.”
Under the state Zoning Act, G.L. c. 40A, § 3, (colloquially known as the “Dover Amendment”) municipalities may not “prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety, or welfare.”
The Attorney General ruled that stand-alone battery energy storage facilities qualify as “structures that facilitate the collection of solar energy,” and that the town’s record lacked sufficient evidence of any public health, safety, or welfare concerns that would outweigh the public need for solar energy systems. Accordingly, the Attorney General ruled that the town’s prohibition on standalone battery energy storage systems conflicted with state law.
While Attorney General bylaw opinions are not formally legally binding to the same extent as court decisions, the opinions receive significant deference by courts and strongly shape municipal action in the Commonwealth. Following this opinion, the only basis on which battery energy storage facilities can be prohibited or regulated by a Massachusetts town is for health, safety, or welfare purposes.