NSP has cooperated with every request the zoning board has made. That is an argument for putting the terms in writing, not against it.

By John Barrella

July 26, 2026

I have argued against this project, and I still do. What follows is not an argument for it — it is an argument I would make even if I had lost, and one I think the people who disagree with me should accept on their own terms.

At the Middleborough Zoning Board of Appeals hearing on July 23, a member asked a question that the applicant’s team could not fully answer and that the board could not quite decide what to do with.

If the surf park proposed for 20 acres off East Grove Street closes in five years, who removes the six-acre lagoon, the 60-foot light standards, the wave machine, and the concrete?

The applicant’s answer was reassuring and probably accurate. The lagoon is a liner pool with perimeter walls and a sand bottom, making demolition relatively simple. The buildings would be reusable. Surf parks are an emergent industry, the board was told — where Topgolf sat a decade ago.

The chairman’s response was also reasonable. The town does not require a decommissioning bond for every building it permits, and solar arrays get that treatment because the panels are worthless at end of life and sit on farmland.

The chairman is right that Middleborough does not bond every building. But that is a description of ordinary buildings, and this is not one. A warehouse that empties out leaves a warehouse. This project, if it stops, leaves a six-acre excavated basin, eleven 60-foot towers, a wastewater treatment system, and a purpose-built machine that its own developers concede would have no use anywhere else on earth.

The question before the board is not whether it expects this project to fail. It is which party is better positioned to carry the risk that it does. The applicant has investors, insurers, and a balance sheet. The town has a tax levy and a Proposition 2½ override.

The board should not vote on this permit until the answer is written into it.

This has been permitted before. Read those files.

There is a temptation, listening to these hearings, to treat the project as unprecedented — a thing so new that nobody could know what to ask. That is not accurate, and the applicant has not claimed otherwise.

Wavegarden, the Spanish firm supplying Middleborough’s machine, has facilities operating on four continents and ten more under construction. Its first North American installation, Atlantic Park in Virginia Beach, opened to the public in August 2025 — a 2.67-acre lagoon inside a $325 million mixed-use development. It is the facility NSP’s principal cited as his reference point for lifeguard staffing. A Jacksonville project is in development with a 56-module Cove.

Closer to the point: in April 2022, the zoning board in Jackson, New Jersey, approved an 88-acre phase of the Adventure Crossing development that includes a 5.5-acre Wavegarden lagoon generating more than 500 waves an hour.

That is a municipal zoning board, operating in a comparable regulatory system, that has already run this exact exercise — the water, the lighting, the traffic, the capacity questions. Their file exists. So does Virginia Beach’s. Middleborough’s board and town counsel should have both on the table before September 10, not to rubber-stamp what those communities did, but to see what they required and what they neglected to require.

The novelty argument cuts the wrong way in any case. If surf parks were genuinely one of a kind, the town might reasonably plead that it could not have known what to ask for. It cannot plead that. The precedents are public.

Falmouth’s lesson cost $14 million

The most expensive municipal lesson in recent Massachusetts memory was learned 40 miles down Route 28.

Falmouth erected two wind turbines at its wastewater treatment plant in 2009 and 2010. Neighbors sued over noise. In 2015 the town’s own zoning board issued a cease-and-desist order against Wind 1; in June 2017 a Barnstable County Superior Court judge upheld a finding that both turbines were a nuisance and ordered them shut down.

Then came the bill. The town’s consultants estimated the cost of dismantling both turbines at $14.69 million — $9.86 million in principal debt already incurred, nearly $3 million in interest, roughly $838,000 in actual construction cost to take them down, and about $1 million owed back to the Massachusetts Clean Energy Center for renewable energy credits the turbines would never generate. Falmouth’s town manager put the annual obligation at $385,000 for 12 years on Wind 1 alone, with another $110,000 a year for 15 years owed to MassCEC. (Massachusetts Clean Energy Center) Voters were eventually asked to exclude the removal debt from Proposition 2½.

Falmouth’s mistake was not permitting a wind turbine. It was owning one. The town was the applicant, the operator, and the responsible party all at once, which meant there was no one on the other side of the table to hand the invoice to.

Middleborough is in the better position here. NSP LLC is the applicant. The town’s only job is to make sure that stays true.

What other towns require, in writing

The instrument for this is not exotic. It is standard practice across the Commonwealth, and Middleborough already uses a version of it.

Solar decommissioning surety. Marshfield, Webster, Dartmouth and Southbridge all require large-scale solar applicants to post surety — escrow, bond, or equivalent — covering full removal and site restoration, capped at 125 percent of a removal estimate prepared by a licensed professional engineer. The state Department of Energy Resources built the same 125 percent figure into its model bylaw, and the Metropolitan Area Planning Council recommends it in its permitting guidance. Crucially, the better-drafted versions include an inflation escalator and require the estimate to be refreshed — DOER’s model calls for an update after the first 10 years and every five years thereafter. A bond written in 2027 dollars is worth considerably less in 2047.

Subdivision performance guarantees. Massachusetts General Laws chapter 41, section 81U gives planning boards four tools before endorsing a definitive plan: a performance bond, a cash or securities deposit, a recorded covenant running with the land, or a tri-partite agreement with a lender. The statute lets the board specify a completion deadline. This is directly live in Middleborough — the roadway and subdivision serving the surf park parcel is before the Planning Board now, having already been through two peer reviews.

Host community agreements. When Wynn Resorts sought to build on a former Monsanto chemical plant site in Everett, the host community agreement put to voters in 2013 committed the company to $30 million in advance payments to the city, more than $25 million annually once open, traffic mitigation, and a multimillion-dollar cleanup of the site’s arsenic and lead contamination — work Wynn later estimated at $30 million. Everett did not fund that remediation and hope for reimbursement. It made cleanup a precondition, in writing, before construction.

Middleborough’s own practice. At the close of the same July 23 meeting, the ZBA voted unanimously to release the remaining $1,640.80, plus interest, in bond funds to Sachem Construction for the Sumner Avenue project. That is the mechanism working exactly as designed, at small scale. The town held money until the work was done, then gave it back. Nobody called it hostile to development.

Where the exposure actually sits

The surf park’s risks are not primarily the ones the decommissioning conversation focused on. Concrete volume matters less than four other things the record already flags.

Water. The lagoon requires 8 million gallons to fill and roughly 7 million gallons a year to maintain — about 22,000 gallons a day — plus another 10,000 gallons a day for the accessory buildings. The applicant told the board the town has indicated it can supply this and that NSP would purchase the water, drawing from the same aquifer the town does. But no deal has been struck. A special permit that issues before that agreement exists leaves the town negotiating from a weaker position afterward.

Wastewater. The team is aiming to stay under the 10,000-gallons-per-day threshold that triggers state Department of Environmental Protection jurisdiction, and is seeking confirmation from the Board of Health. An abutter made the sharpest point of the night: an operator with no headroom above 10,000 gallons a day is an operator who either caps attendance or exceeds the threshold. Either outcome should be the applicant’s problem to solve, not a surprise the town discovers in year three.

Traffic. MassDOT will review the East Grove Street curb cut and issue any access permit, but only after local approval — and MassDOT’s jurisdiction ends at the state highway. Everything the neighbors described, including the resident who waits up to 10 minutes to exit her driveway, falls between the state’s authority and the town’s. That gap is exactly what a local mitigation commitment is for.

Third-party liability. Six lifeguards will supervise roughly 60 surfers at a time in a 14-foot-deep artificial lagoon, with alcohol served on site. The applicants say staff can refuse impaired patrons and that insurance requirements will be strict. Both are likely true. The town should still be named as an additional insured, with defense and indemnification for claims arising from the operation, because a special permit issued by the ZBA is the kind of document plaintiffs’ lawyers read closely.

What the permit should say

Five conditions, none of them novel, all of them drawn from instruments Massachusetts municipalities already use:

A decommissioning surety covering full removal of the lagoon, light standards, mechanical building and wave equipment, and restoration of the site — set at 125 percent of an estimate prepared by a licensed professional engineer, with an inflation escalator and mandatory re-estimation every five years after year 10. This is the solar bylaw, applied to a larger and less salvageable installation.

A recorded water supply agreement executed before the permit issues, not after, specifying volume, rate, and what happens to the surf park’s draw if the town’s own supply comes under stress. This is not hypothetical. The state’s Southeast Region — which includes Middleborough — is currently under a Level 2 Significant Drought declaration, part of a drought that began in 2024 and has driven groundwater and streamflow below normal across the Commonwealth. The applicant proposes to draw 8 million gallons to fill the lagoon and roughly 7 million a year to keep it full, from the same aquifer that supplies the town.

A wastewater condition requiring that any exceedance of 10,000 gallons per day trigger the applicant’s obligation to build and operate a treatment plant at its own cost, with DEP permitting, and barring the town from inheriting the facility in any transfer of ownership.

A local traffic mitigation commitment independent of MassDOT’s access permit, covering the intersections MassDOT’s jurisdiction does not reach, funded by the applicant and tied to the traffic study already commissioned.

Indemnification and defense, naming the town as an additional insured against claims arising from operation of the lagoon and the sale of alcohol on site, surviving any transfer of the permit.

Each of these should run with the land and bind successors. A condition that evaporates when the property changes hands protects the town for exactly as long as it doesn’t need protecting.

The limits

Conditions are not unlimited, and towns that overreach lose.

The Attorney General’s Municipal Law Unit reminded Walpole in 2012 that surety proceeds do not become town funds unless and until an applicant defaults — a bond is security, not revenue. Conditions must also connect to the purposes of the bylaw under which the permit issues; a board cannot use a special permit as leverage for unrelated concessions. And solar and wind enjoy statutory protections under chapter 40A that a commercial recreation facility does not, which cuts both ways: it means Middleborough has more room here than it would with a solar array, not less.

The applicant, to its credit, has not resisted any of this. NSP agreed to peer review by Apex, agreed to produce a backwash protocol, a nighttime lighting rendering, sound data, an evacuation plan, and concrete volumes. Attorney Michael O’Shaughnessy told the board he had no objection to outside review before he was finished asking for it.

That cooperation is the argument for writing it all down. A permit is not a handshake with the people in the room on a Thursday night in July. It is a document that outlives them — the operating manual for whoever owns this site in 2041, whether that is NSP, a multinational that acquired it, or a bank that took it back.

Middleborough is not being asked to decide whether surfing works in a hayfield off Route 28. It is being asked to decide what happens if it doesn’t.

If you believe this project will thrive, none of these conditions will ever cost the applicant a dollar. That is precisely why they should be easy to agree to — and why the board should get them on paper before the vote, rather than after.

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Editor’s note — sourcing

• Falmouth figures: Weston & Sampson mitigation study as reported by Cape News and the Falmouth Patch; Town Manager Julian Suso’s debt figures as reported at the time of the 2017 shutdown.
• Solar surety: town bylaws of Marshfield, Webster, Dartmouth (via eCode360) and Southbridge; DOER draft solar model bylaw; MAPC Solar Permitting and Zoning Bylaw Guidance.
• Subdivision guarantees: M.G.L. c. 41, § 81U.
• Everett: 2013 host community agreement terms as reported by the Associated Press ahead of the June 2013 referendum; remediation cost estimate per Boston Globe reporting, November 2014.
• Walpole surety caveat: Attorney General Municipal Law Unit decision letter, Case #6540, Dec. 6, 2012.
• Drought status: Massachusetts Executive Office of Energy and Environmental Affairs, Drought Management Task Force; Level 2 Significant Drought declared for the Southeast Region.
• Jackson, N.J. approval: PhillyVoice reporting on the Adventure Crossing phase four zoning board approval of April 20, 2022.
• Atlantic Park: Wavegarden and Surf Park Central announcements of the August 2025 opening; Visit Virginia Beach for lagoon dimensions.
• Surf park details and quoted exchanges: Middleborough ZBA meeting of July 23, 2026.