Two Local Codes, Two Answers on Whether an Indoor Battery Is Building Equipment or a Land Use

Fairfax County’s battery storage zoning amendment, adopted March 17 and effective March 18, 2026, excludes two things from its definition of a large-scale battery energy storage system: any facility storing 600 kWh or less, and any system sited inside a building that has a separate principal use and that the system primarily serves. The second exclusion carries no capacity ceiling.

A battery room inside an occupied office building in Fairfax County therefore sits outside the discretionary land-use process that governs a comparable quantity of energy in a fenced yard nearby.

The Fairfax test. The county drew its line at use rather than at size. Systems that do meet the large-scale definition must comply with NFPA 855 and UL 9540A, and must obtain Fire Marshal approval of an emergency operations plan before any building permit issues. Systems that fall under either exclusion avoid the large-scale classification altogether.

Where the review goes instead. The exclusion relocates the review rather than removing it. Fairfax County’s Office of the Fire Marshal has created a dedicated FESS installation record in its PLUS permitting system for energy storage reviewed under the Virginia Construction Code. An in-building system that clears the zoning exclusion still passes through that record, and the operational gate becomes the construction code and the Fire Marshal’s file rather than a zoning hearing.

The Dickinson approach. Dickinson, Texas is running the same question through a different section of its code. The city’s text amendment, the subject of a City Council public hearing on September 22, 2026, modifies Section 18.50 (“Definitions”), Subsection 18-11.4 (“Commercial Use Categories”) and Table 18-12.-1, the Consolidated Use Table. Council referred a draft ordinance to the Planning and Zoning Commission earlier in the year, and the commission recommended regulations ahead of the council hearing. A letter to the Galveston County Daily News published ahead of the vote, headlined “Dickinson council should OK battery energy storage rules,” argued for approval.

A Consolidated Use Table entry is a land-use classification. Unless the accompanying definition carves out systems accessory to a host building, a use-table approach reaches every installation that meets the definition, including one mounted on a wall inside an existing commercial building. What Dickinson’s adopted definition says on that point is the variable that determines how far the ordinance extends.

The procedural difference. The two paths diverge mainly in calendar time. This is interpretation rather than measurement: no jurisdiction has published a matched sample of indoor projects run through both routes. The components, however, are not in dispute. A fire marshal record attached to a building permit runs on plan-review turnaround. A conditional or special use permit runs on a public hearing calendar, with neighbor notice, staff report preparation and a commission or council vote. In Fairfax, the large-scale path additionally requires Fire Marshal approval of an emergency operations plan before the building permit issues, which means the fire review does not disappear when zoning is added. It stacks on top.

Two directions in one calendar year. Fairfax wrote an exclusion that takes in-building systems out of its discretionary regime at any size. Dickinson wrote batteries into the section of its code that assigns land uses to zoning districts. The two municipalities acted eight days apart in the same month and produced opposite architectures, and neither result follows from the fire codes, which say nothing about which counter an applicant approaches first.

What the tally misses. Counts of local battery restrictions organize themselves around moratoria, setback distances and outright bans. A definitional choice does not fit any of those categories. That is why a county which has made in-building storage permit-reviewable at any size and a city which may be making it hearing-reviewable at every size can both register as unremarkable entries in the same list. The distinction that governs an applicant’s timeline is buried in a definitions section, not in the headline restriction.

Two tests to watch. The first is whether Fairfax’s use-based prong gets copied. Northern Virginia jurisdictions borrow zoning language from one another routinely, and the exclusion is short enough to lift into an adjacent county’s ordinance. The second is whether Dickinson’s adopted definition contains an accessory-use exclusion. That single clause determines whether the ordinance regulates fenced facilities on vacant parcels or also reaches equipment rooms inside occupied commercial buildings, an illustrative case rather than one drawn from the city’s published materials.

Fire codes for stationary storage are converging. NFPA 855 and UL 9540A now appear in local requirements with recognizable consistency, and Fairfax cites both in its large-scale use standards. Zoning is moving the other way. Whether a battery inside a building is a piece of equipment or a use of land is being answered one municipal code at a time, without model language addressing the in-building commercial case, without state preemption, and without a common vocabulary across jurisdictions.

For a building owner, the practical consequence is a timeline that cannot be estimated from the equipment. Two identical installations, at the same kilowatt-hour rating, inside comparable buildings in different jurisdictions, can face an electrical plan review in one and a public hearing in the other. The determining document is the local definitions section, and it is being rewritten town by town.

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