March 7, 2018
Good Morning! In this morning’s eBlog, we consider the fiscal sand trap into which the small Virginia municipality of Buena Vista has fallen, before examining the ongoing, disparate physical and fiscal recovery issues in Puerto Rico.
Is the Municipal Fiscal Vista Good? Virginia is somewhat unique in that it does not specifically authorize municipalities to file for chapter 9 municipal bankruptcy; it does, in certain situations, allow for a receiver allow for the appointment of a receiver with respect to revenue bonds (§15.2-4910). Now, the aptly named Buena Vista, Virginia, a small, independent city located in the Blue Ridge Mountains with a population of about 6,650, where, as we have previously written, the issue of non-payments of municipal bond interest on debt issued for its public golf course became an election issue, has, in effect, cone back as a mulligan. This time, the issue involves, again, the municipal golf course, and the issue has re-arisen because of the municipality’s decision not to make the bond payments on a municipally-owned golf course that the new majority on Council oppose as inconsistent with an essential government activity—rejecting a moral obligation pledge on what has become a failed economic development project, as the city’s elected leaders have opted instead to focus—in the wake of the Great Recession—on essential public services, putting the city in a subpar fiscal situation with Vista Links, which was securing the bonds, according to Virginia state records. The company, unsurprisingly, has sued to get the bond payments it had been promised—potentially putting at risk the city’s city hall and other municipal properties which had been put up as collateral. Buena Vista City Attorney Brian Kearney discerns this to be an issue of a moral obligation bond, rather than a general obligation municipal bond, so that “[W]e could not continue to do this and continue to do our core functions.” In the wake of the fiscal imbroglio, the Virginia Commission on Local Government (COLG)—which provides an annual fiscal stress study‒ended up playing a key role in the Petersburg effort in the General Assembly—finding that very poor management had led to an $18 million hole.
Nevertheless, the municipality’s selective payment default on its $9.2 million in lease revenue bonds has driven Municipal Markets Associates to describe the city’s decisions as “perhaps a worst-in-class example of erosion in issuer willingness to pay bondholders. Buena Vista’s default can no longer be blamed on weak local budget or economic conditions; rather, the city is currently choosing neither to pay nor negotiate with bondholders, because the pledged appropriation security permits this to occur. Further, while the commonwealth has applied some pressure to the city by denying it access to state loan funds via the VRA program, Virginia has chosen not to more proactively interfere in city affairs and has made multiple grants to Buena Vista in recent years.” Nevertheless, Buena Vista won the first round in court regarding the bond default, after the court concurred that the city had a moral obligation, but not a full faith and credit obligation. (It is unclear whether there will be an appeal.) While the Commonwealth of Virginia has applied some pressure to the city by denying it access to state loan funds via the VRA program, Virginia has chosen not to more proactively interfere in city affairs and has made multiple grants to Buena Vista in recent years. Two years ago, Buena Vista had made payments toward all other out-standing debt obligations, including $5.5 million in general fund bonds and loans and $7.9 million in revenue bonds; the municipality added $500,000 to its net General Fund net revenues—leaving it in a fiscal sand trap caught between $94 million in obligations towards debt service on its ACA-insured bonds while continuing to growth fund balance.
Here, the municipality’s default triggered negotiations with bond insurer, ACA Financial Guaranty Corp., which led to a forbearance agreement—one on which the city subsequently defaulted—triggering the Commonwealth of Virginia to bar financing backup to the city from the state’s low-cost municipal borrowing pool, lest such borrowing would adversely impact the pool’s credit rating—and thereby drive up capital borrowing costs for cities and counties all across the state. In this instance, the Virginia Resources Authority refused to allow Buena Vista to participate in the Virginia Pooled Financing Program to refinance $9.25 million of water and sewer obligations to lower debt service costs—lest inclusion of such a borrower from the state’s municipal pool would negatively impact the pool’s offering documents—where some pooled infrastructure bonds, backed by the Commonwealth’s moral obligation pledge, are rated double-A by S&P Global Ratings and Moody’s Investors Service.
Seven years ago, the municipality had entered into a five-year forbearance agreement with bond insurer ACA Financial Guaranty Corp.—an agreement which permitted Buena Vista to make 50% of its annual municipal bond payments for five years—an agreement on which Buena Vista defaulted when, two years ago, the City Council voted against inclusion of its FY 2015 budgeted commitment to resume full bond payments. That errant shot triggered UMB Bank NA to file a lawsuit in state court in 2016 in an effort to enforce Buena Vista’s fiscal obligation. In response, the municipality contended the golf course deal was void, because only four of the city’s seven council members had voted on the bond resolution and related agreements—which included selling the city’s interest in its “public places,” arguing that Virginia’s constitution mandates that all seven council members be present to vote on the golf course deal, because the agreement granted a deed of trust lien on city hall, police, and court facilities which were to serve as collateral for the bonds.
The golf course in question, which opened in 2004, never generated sufficient revenue to keep up with loan payments, leading the municipality to default on its $9.2 million bond, which, in turn, led Buena Vista’s municipal bonds insurer, ACA Financial Guaranty Corp., to file suit against the municipality, seeking to have Buena Vista ordered to resume payments—a suit which a federal court last month dismissed, concluding the city was only under a moral obligation, not a legal one, to pay back the loans. Unsurprisingly, ACA has pulled out another club and now ACA plans to appeal the judge’s decision, thereby creating uncertainty with regard to the city’s fiscal solvency—creating uncertainty for the business community. Now, however, it seems that with greater confidence in their judicial outcome, and a key business investment in a number of downtown properties, it appears of developers are starting to pick up on the momentum. Buena Vista Mayor William “Billy” Fitzgerald believes these new potential developments fit perfectly with his goals as the municipality’s newly elected leader: he wants to bring five to seven new businesses and one manufacturer to the area this year. In addition, he said he wants to cut some of the red tape and fees associated with opening businesses, adding that there has been more movement recently than the city’s had in a long time, adding: “In two years, I think Buena Vista will be a different place.”
A year ago, the city filed a motion to dismiss the federal suit for failure to state a claim—a claim on which U.S. District Judge Norman K. Moon held a hearing last Friday—with the municipality arguing that the golf course’s lease-revenue debt is not a general obligation. Therefore, the city appears to be driving at a legal claim it has the right to stop payment on its obligation, asserting: “The city seeks to enforce the express terms of the bonds, under which the city’s obligation to pay rent is subject to annual appropriations by the City Council, and ceases upon a failure of appropriations.” Moreover, pulling another fiscal club from its bag, the city claimed the municipal bonds here are not a debt of the city; rather, the city has told the court that the deed of trust lien for the collateral backing the bonds is void. That is an assertion which ACA, in its motion to dismiss, deemed an improper attempt to litigate the merits of the suit at the pleading stage, noting: “Worse, the city wants this court to rule that the city only has a ‘moral obligation’ to pay its debts, and that [ACA’s] only remedy upon default is to foreclose on a fraction of the collateral pledged by the city and the Public Recreational Facilities Authority of the city of Buena Vista….If adopted, this court will be sending a message to the market that no lender should ever finance public projects in Virginia because municipalities: (a) have unbridled discretion to not repay loans; and (b) can limit the collateral that can be foreclosed upon.” In a statement subsequently, ACA added: “It’s unfortunate that Buena Vista’s elected officials have forced ACA into court after recklessly choosing to have the city default on $9.2 million in debt even though the city has ample funds to make the payments that are owed…This is particularly troubling, because ACA spent years negotiating in good faith after the city claimed financial hardship, and even provided a generous forbearance agreement that reduced payments by 50% starting in 2011. After the city defaulted on that deal in 2014, it offered ACA only pennies on the dollar, while seeking to be absolved of all future burdens of this financing. Left with no reasonable alternative, we must look to the court for an equitable and fair outcome.”
Fiscal Darkness & Despair. More than five months after Hurricane Maria plowed through Puerto Rico, some parts of the island remain in the dark; it remains a long, long way from getting back for businesses: the U.S. territory’s patchwork power grid remains fragile, and hundreds of thousands of Puerto Ricans remain without power. While many have been living in hotels with their expenses covered by FEMA, those reimbursements are nearing expiration—not just in Puerto Rico, but also on the mainland. Today, there are nearly 10,000 Puerto Ricans scattered throughout 37 states and Puerto Rico who have been living in hotels paid by FEMA—aid now on the brink of ending a week from Tuesday. Many of them are poor families, who on the island survived with low wages. Many do not have savings or relatives who can help them or own their homes on the island. Others confront health problems and distrust the medical system on the island or have children with disabilities who need continuous care. Government relief workers have installed 57,000 blue tarps as makeshift roofs on damaged homes across the island. There is no plan for installing permanent roofs. Major intersections in San Juan still lack working traffic lights. More than 10,000 small businesses — nearly 20 percent of the island is total — remain closed. At the upscale Mall of San Juan, two anchor stores — Saks Fifth Avenue and Nordstrom — are shut because of storm damage, although Nordstrom may reopen in a few months. Some hotel workers, cabdrivers and bartenders in San Juan have been living without power since September.
The most optimistic estimate is that Puerto Rico faces a two-year economic recovery. That assumes it can rebuild its power grid, restructure its finances in a court-supervised process and not be struck by another devastating storm. For its part, FEMA reports it has delivered more than $113 million in rental assistance to more than 129,000 Puerto Ricans affected by Maria. Governor Ricardo Roselló has said he has formally requested the federal government to allow families in hotels to stay there until May 14th. That recovery, moreover, is made more difficult by the fiscal circumstances before the storm even struck—when some 45% of the territory’s 3.4 million Americans lived in poverty and more than 16,000 homeowners were facing foreclosure. The size of the human devastation remains stark: more than one million Puerto Ricans applied to FEMA for emergency assistance: less than half have been served. The situation is, as Javier E. Zapata-Rodríguez, the Deputy Director of Economic Development for PathStone Enterprise Center, put it: “This is like the perfect storm of an economic disaster…There is not enough capital flowing, and a lot of small businesses are closing up shop, because they were ailing before the hurricane.” Adding to the dismal situation, even those claims that are being paid have been slow—and 60% have, so far, been denied. Meanwhile, tourism, which accounts for about 6 percent of Puerto Rico’s economy and supports more than 60,000 jobs, is all but gone for this season: nearly a dozen big resorts in and around San Juan are closed, while, many of those which are open and operating are filled not with tourists, but rather with relief workers and government contractors who are permitted discounted rates.
As we have noted, the economy is also suffering from emigration: it is not just the 200,000 residents who have departed to live on the mainland, but also how that has altered the demographics of those who remain—generally older and poorer. As the New York Federal Reserve reported last year, four months before Maria, 36% of Puerto Rico’s small businesses planned to hire more workers and 50% planned to invest in new equipment and technologies—all plans devastated by the storm.
Today, in the wake of such an inadequate federal response, the power situation in the U.S. territory remains dispiriting: at the end of last week, many in San Juan and along the island’s northern coast lost power in the middle of the workday. Indeed, generators are no longer an option for a business: they are a necessity—as they are for homes and hospitals with patients reliant upon vital medical devices. For potential overseas investors, new investments appear to be on hold pending some certainty on Puerto Rico’s electric grid restoration and reliability—and how FHA will act on the current moratorium on home foreclosures—a decision with implications for assessed property values affecting municipios bottom lines. The recovery too awaits the progress of what has been, so far, a slow trickle in response to filed insurance claims: to date, while 299,999 claims have been filed by homeowners and businesses, only $1.7 billion in payouts have been approved, according to the insurance department: much of the federal assistance is being dispensed as grants and loans for which businesses and individuals apply for from FEMA and the Small Business Administration, even as attorneys and community groups report that FEMA has rejected approximately 60% of the 1.1 million household applications it has received—a figure, it should be noted, which FEMA deems misleading, because some rejected applicants had received loans from the Small Business Administration or aid from other agencies. One key reason for the disproportionate rejection rate appears to be the stark difficulty many Puerto Ricans have encountered in proving that they own a home: only 65% of properties in Puerto Rico are officially registered, making this an especially harsh and acute problem affecting families and local governments in small cities and rural areas where there’s a custom of property owners not recording titles to homes.
The GMU Municipal Sustainability Project 