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Draft battery energy storage bylaw draws legal, safety and siting scrutiny in Duxbury
Summary
The planning board examined a draft battery energy storage (BESS) bylaw adapted from another town. Counsel warned of legal exposure under Massachusetts solar case law, and experts urged NFPA-based safety standards, clearer waiver rules, mapped acre estimates and coordination with fire and police for projects near Route 3.
The Duxbury Planning Board devoted a lengthy portion of its meeting to a draft battery energy storage (BESS) bylaw, during which town counsel and outside counsel identified several technical and legal risks and residents asked detailed safety and siting questions.
Counsel began by flagging recent case law that limits how towns can restrict renewable-energy uses. “The Tracer Lane case … held that allowing solar on 1 to 2% of the city is not enough,” counsel said, urging caution so the town does not adopt language that could be deemed an unreasonable regulation of solar or related storage. Counsel noted there is no bright-line percentage established in case law and suggested the board obtain mapped acreage estimates to assess whether proposed prohibitions or overlays would be defensible.
Technical reviewers raised several concerns in the draft. They recommended removing subjective phrasing such as “quality of life” and replacing it with statutory language tied to protecting public health, safety and welfare; they urged explicit listing of what planning-board waivers may and may not cover to avoid turning waivers into variances; and they cautioned that large mitigation multipliers (for example, requiring mitigation of two times affected acreage) might not survive legal challenge.
Experts also urged the board to tie safety standards to current fire codes and industry guidance. One participant recommended adding NFPA 1 alongside NFPA 855 so the town—s standards remain aligned with evolving technical guidance: "The NFPA1 provides legal enforcibility of the general fire code and the 855 provides the technical specifics," the participant said.
Residents and board members asked detailed operational questions: whether a facility would have to upgrade to new state standards when technology evolves; how noise limits should be measured (absolute decibel limits versus background-plus thresholds); and whether projects sited near Route 3 require consultation with state police in addition to the fire chief and board of health. Counsel suggested the board require a third-party alternatives analysis from applicants to demonstrate why the proposed site is necessary and to document whether less-sensitive parcels were considered.
Board members gave staff direction to revise the draft using these comments, to add clearer waiver language, to quantify how much of the town would remain available for siting under the proposed map, and to request input from fire and public-safety agencies. Staff will circulate a revised BESS draft for further review prior to the board—s public hearing timetable.
