The Pembroke Zoning Board of Appeals has agreed to settle a lawsuit brought by Palmer Management Corporation, the developer behind a proposed battery energy storage system (BESS) at 48 Schoosett Street in Pembroke. In a stipulation filed in Land Court on July 16, 2026, the town's attorneys on behalf of the ZBA and its three members named in the lawsuit agreed that resident Susan Bollinger lacked standing to challenge the project's site plan approval, and that the board's April 2026 decision remanding the approval should be annulled. The agreement, which does not include Bollinger, would leave the Planning Board's original approval of the project in place.
The ZBA met on July 14, 2026, in executive session to "discuss litigation strategy... where discussion during open session would have a detrimental effect on the litigating position of the Town", according to the posted agenda. During a Select Board meeting on July 15, 2026, Town Manager Bill Chenard said, "Based on my initial review, I don't think we're going to prevail," referring to the litigation against the town, though he said he did not have specific details on the ZBA's executive session discussion the day prior.
The BESS proposal, which has stirred up significant public interest and controversy, was brought to the Planning Board in July 2025 and was unanimously approved in September 2025. Before securing Planning Board approval, the project underwent peer engineering review and public comment. The approval stipulated 15 conditions, including the requirement of Pembroke Fire Department permits, NFPA compliance, and planted buffers to screen the facility from nearby neighborhoods.
In October 2025, Susan Bollinger filed an appeal with the ZBA regarding the Planning Board's approval of the project, citing safety concerns, possible effects to nearby areas, alleged notice and procedural defects, and questions about whether the zoning bylaws permit a standalone battery storage facility at the site. The ZBA held several hearings on the matter, where Bollinger stated she was appealing on behalf of more than 60 residents, abutters and business owners who opposed the project. Throughout the proceedings, Town Counsel Alexander Weisheit of KP Law advised the board that battery storage facilities are generally protected from local zoning restrictions under the state's solar energy exemption, M.G.L. Chapter 40A, § 3, and that absent an unaddressed safety concern, the ZBA would have difficulty legally justifying disapproval of the project.
On April 13, 2026, the ZBA held its final session on Bollinger's appeal, hearing extended public testimony from residents, a former Planning Board member and Fire Chief Jason Viveiros. Chief Viveiros told the board that his department had met with the applicant's code compliance representatives on multiple occasions but had not received sufficient site-specific information and that his concerns had increased as discussions progressed. He said the site lacks full 360-degree emergency access, with only one road into the parking area, and that if fire apparatus were positioned on site and conditions changed, safely repositioning them would be difficult given the site's space constraints. He also cited the department's staffing limitations - six firefighters on duty at a given time - as a concern in the event of an evacuation, and said his department had requested several analyses that had not yet been provided. Based on the information available to him, Chief Viveiros said he would not be able to issue the Energy Storage Permit required under the Planning Board's approval.
Palmer's representative, Lindsay Deane-Mayer, maintained that the Planning Board's approval process was proper and that the battery storage system is legally protected as a solar-related use under state law, with remaining safety documentation - including a site-specific hazard mitigation analysis and emergency operations plan - to be finalized through the fire department's permitting process. The project's fire and life safety consultant, Jay Hayardi of Code Red Consultants, told the board that in typical commercial development, zoning approval is secured before detailed fire protection design is completed, and that his team was continuing to coordinate with the fire department. Town Counsel advised the board that its review should focus narrowly on whether unaddressed life-safety concerns justified a remand, since existing case law generally protects such facilities from local zoning restrictions absent that exception, and noted that a remand would need to identify a factual basis tied to those concerns to withstand a court challenge. The ZBA voted unanimously to remand the matter to the Planning Board for further review of fire protection, emergency response, and other site-specific safety issues.
In May 2026, Palmer Management Corporation filed suit in Land Court against the Pembroke Zoning Board of Appeals and Susan Bollinger, appealing the board's April decision. Bollinger, who was not party to the stipulation, is representing herself. The first Land Court appearance took place on July 23, 2026, a video conference at which Judge Lauren Reznick found that the agreement between Palmer and the ZBA could not resolve the case on its own, since it left Bollinger - whom the town now argues lacks standing - as the sole remaining defendant. According to Bollinger, the judge raised the issue of due process several times, noting that for the court to uphold an agreement between Palmer and the ZBA while Bollinger remained a defendant would deny her that right. Reznick gave the parties until July 31 to file a joint report on how they want to proceed: either by asking the court to send the case back to the ZBA, or by setting a schedule to argue it through motions. The court explained that sending the case back would have the ZBA issue a new decision denying Bollinger's appeal and upholding the site plan approval, in line with its agreement with Palmer. From that point, Bollinger would be able to appeal that denial to Land Court herself, where the question of her standing under M.G.L. Chapter 40A would be decided.
According to Bollinger, abutters are looking to retain counsel, though it would place the financial burden of legal costs solely on those abutters involved. It is also unclear whether a new appeal could be filed and heard by the ZBA if Bollinger's appeal is denied. Under Pembroke's zoning bylaws, an appeal of a Site Plan Review decision must be filed with the ZBA within 20 days of the decision being filed with the Town Clerk. Bollinger maintains that one of the key aspects of her appeal is whether a BESS installation is an allowed use or can be considered an accessory use. Merrill Engineers and Land Surveyors, the proposal's peer review engineer, wrote in its site plan review comments that battery storage construction "is not an allowed use" in the Residence A or Business B zoning districts as proposed, and asked Palmer to document how the project would qualify as an accessory use. At the Planning Board's September 8, 2025 hearing, that comment was addressed. Planning Board Chair Andrew Wandell, after confirming with administrative staff, stated that the project fell under the town's solar photovoltaic bylaw, an opinion he attributed to Town Counsel KP Law. Meeting minutes similarly recorded the project as a use by right under the solar bylaw. Merrill's revised comments noted that response but did not independently endorse it. The accessory-use question remained contested through the ZBA's April 2026 hearing, where board members said they had doubts about whether the project met that standard.
Editorial Note: Susan Bollinger provided comment for this report. PCJ is also seeking comment from Palmer Management Corporation, the Pembroke Zoning Board of Appeals, Pembroke Fire Department, and KP Law, which serves as town counsel. PCJ will continue to follow this case in future coverage.
