Retail malls face daunting challenges – the specter of Amazon and online shopping is dramatically reducing purchases at malls and big box stores. Bankruptcies, including outright liquidations (Herbergers and Pamida to name two affecting Minnesota), of malls and retailers show the harsh reality of this phenomenon. This WaPo article describes the challenges and how they have resulted in closures. According to a Credit Suisse study it cites, 25% of malls are expected to close by 2023.
The WaPo story describes how more successful malls are adapting. Thriving malls, according to the story, are doing so by reinventing themselves as “integrated lifestyle hubs” whatever that is. It appears to mean figuring out alternative way beyond a standard shopping experience of attracting customers to show up and spend money – e.g., providing yoga studios, fitness centers, microbreweries (what else?), health clinics, and so forth.
One assumes that this challenge must be hitting our local giga-mall, the Mall of America (or MOA). Moreover, because MOA is so big and, thus, must lure many more customers to its premises, the challenge is much bigger than adding a few yoga studios, microbreweries, and other trendy stuff can solve.
Rather than its years-ago plan of simply adding more of same in phase II, MOA’s answer is to build a big waterpark. The theory is that adding a large waterpark as part of Phase II will attract enough people to MOA who will spend money at its hotels, restaurants, and shops to keep most of them afloat. [I have thoughts about whether this will work, but I have no comparative advantage in judging such things so won’t spend any time on it. I think, though, we can safely say the move is risky.] This is a variation on what Triple Five (MOA’s owners) are doing at their just opened giant mall in NJ. The WaPo story discusses the Ghermezians (Triple Five’s owners) and their strategy as it relates to the NJ mall and its plans for another big mall in Miami, so I’m not totally making this up.
As with all things related to MOA, one can safely predict that its response will both:
- Be risky
- Involve government reducing MOA’s costs and risk.
What I find interesting about this is the creativity of MOA’s advisers in devising a way to use decade-old (2008) special legislation to put together a financing plan that snags government subsidies and reduces the credit risk to Triple Five’s enterprises, including MOA. How they did that can only be described as financial alchemy. Whoever came up with this should get the Rumpelstiltskin award (to mix two metaphors involving gold). It’s a story worth outlining.
In spring 2008 (after the Great Recession had begun but before its existence was commonly recognized), the legislature enacted special legislation to help Bloomington finance and finally develop Phase II of MOA. (Why Phase II took so long to develop is a separate story with many twists and turns. The delays probably helped MOA dodge a bullet of holding too much obsolete retail space in the current environment.) This legislation was controversial (both in the legislature and in Bloomington). Controversy centered on whether the public should provide more subsidies to MOA’s owners beyond those approved in the 1980s and 1990s. Opponents (including Rep. Ann Lenczewski who chaired the Houses Taxes Committee and represented Bloomington) felt that more public assistance was inappropriate. (MOA’s increased property tax, through TIF, had paid for the Phase I’s parking ramp and built up a war chest of development money, so the city, county, and school had to that point had not received any expanded property tax base as a result of MOA construction nearly 20 years earlier.) By contrast, construction trade unions (who generally favoring spending more on projects that their members work on) and legislative supporters of the mall supported more TIF for Phase II by allowing an extended TIF period. Because that would have exceeded what is permitted under Minnesota law generally, it required enactment of special legislation for Bloomington.
A compromise was reached that became law in 2008. One element of this compromise – inserted by opponents to permit the city to make MOA pay more of the development’s cost – allowed the city to impose a sales tax that would apply ONLY TO MOA. 2008 Minn. Laws, ch. 366, art. 5 § 28. This was done by limiting the taxing authority to the area of the two TIF districts in which MOA is located. Imposing the “tax” would have raised the price of taxable purchases at MOA and was for obvious reasons opposed by MOA. In effect, it would have been little different than expecting the owners and their tenants to pay more of the mall’s infrastructure costs (parking ramps and so forth), rather than taxpayers.
This “tax” is a tax in name only. MOA could have reached the same result by charging more rent to its retail tenants (e.g., a lease can have a “gross receipts” clause that varies the amount of rent based on how much revenue the tenant generates, adding such a clause to MOA’s retail leases could easily include a sales calibration to rent which replicated the effect of a sales tax). Although Bloomington approved the special law to use its other provisions, it did not impose the tax. I assume it made that choice because MOA opposed paying more of the cost of Phase II’s parking ramps or whatever else was planned for the TIF money.
The Great Recession put most development of Phase II on hold shortly thereafter. Legislation enacted in 2013 provided a wholly different funding mechanism (i.e., not a standard TIF extension) for Phase II that relied on the Fiscal Disparities taxes paid by MOA, rather than diverting city, county, and school property taxes as TIF does. This mechanism will be used to finance the second big parking ramp and other infrastructure to serve MOA. But the MOA sales tax remained on the books, essentially a vestige of the 2008 legislative negotiations.
But as MOA formulated its waterpark plan in 2017-2018, the MOA sales tax provided an opportunity for it to snag some government subsidies. Bloomington apparently is more than happy to oblige MOA, since the costs will be born by the feds. As I noted in my earlier post, Bloomington choose to skip tapping potentially a small state subsidy under the Minnesota income tax. For that, other Minnesota governments should be thankful.
The proposed waterpark will be, for all intents and purposes, a private facility. The normal way to finance it would be for MOA or a new for-profit entity formed by Triple Five to finance it with some combination of equity and debt. I’m sure that is the way the waterparks in Wisconsin Dells have been financed and I suspect that to the casual observer, the MOA waterpark will appear little different functionally than those at the Dells.
I have no knowledge of the financial condition of Triple Five, a private entity, but assume that its credit must be stretched (maybe to the max) by the amount it has spent on its mammoth NJ mall that just opened and its Miami plans. The media has reported that Triple Five pledged 49% of MOA to secure its borrowings for the NJ mall. That likely made the cost of it borrowing to finance the MOA waterpark unaffordable (relative to projections of waterpark revenues), if lenders or bond market were willing to make credit available at all.
So how can MOA successfully borrow money to finance the waterpark? Enter the 2008 MOA tax, which I had always considered a dead letter, as an enabling mechanism. There were essentially two steps involved:
- Have the waterpark owned and operated by a nonprofit, but not just any nonprofit but a 501(c)(3) entity, a charity under the federal tax code that qualifies to have its facilities financed with tax-exempt bonds. I’m not sure exactly what the “charitable” purpose is (and haven’t made any effort to find out), but the federal tax law is malleable and expansive when it comes to the types of charitable purposes that qualify. (You don’t need to be a classic charity that helps the poor; in fact, I doubt poor people will get a break when they try to use the waterpark. They probably would rather not have poor people show up at all, since they won’t be prospective shoppers with fat wallets.) If a state or local government is willing to issue debt to finance the facility, the interest on the debt will be exempt from federal tax. That will, as I described in my previous post, lower the interest rate on the bonds, making it easier for the project to cash flow after paying its debt. The government subsidy is courtesy of the lower federal income tax revenues resulting from the foregone tax on the bonds’ interest.
- Pledge the MOA sales tax as additional security for the bonds. Although revenues from the waterpark itself will be pledged to pay the bonds, that probably won’t do the job. Without some unknown amount of equity and/or a track record or some assurance that the waterpark will generate enough revenues, a pure revenue pledge is unlike to be enough to induce bond buyers to fund the project. In their minds, it’s too risky. MOA could pledge its revenues and/or equity but remember much of that has already been pledged to the NJ Mall and doing so would cause the bonds to lose their tax-exempt status under the federal tax law. The latter is so, because the project would be secured (too much) by a private business, not a government or qualifying nonprofit. That is where the goofy MOA sales tax comes in. Recall its proceeds are really not functionally different than mall revenues but the federal tax law considers it to be a real tax, so pledging it does not contaminate the project with private business revenues or security interest, as pledging MOA lease payments would.
Voila, problem solved – at least in theory – (1) the federal subsidy through tax exempt bonds lowers the interest rate; (2) compartmentalizing the waterpark in a separate, unrelated nonprofit entity insulates MOA’s credit from being on the line; (3) pledging the MOA tax, effectively means the mall and its tenants, are standing behind the waterpark, making Bloomington happy; and (4) the MOA tax appears to the federal tax law and to MOA’s and Triple Five’s creditors to be government support, rather than MOA’s support.
Some of my random observation on all of this:
- The unclear color of the money. This only works (we’ll know whether it does work, if bond sale goes through) because of the chameleon-like character of the MOA tax. Its color or true nature depends upon your angle of view: from the federal tax law’s, MOA’s, the bond market’s, and MOA creditors’ perspectives, it’s a tax; from the perspective of Bloomington and financial realists, it is a private contribution or payment by MOA and its tenants. For the former, that means the MOA tax provides an independent, government source of funding for the waterpark other than MOA itself. For the latter, it means that the city is not taxing its constituents to pay for a private waterpark and keeps the viability of the waterpark from being tangled up with the city’s finances. Which is correct? I would tend to the latter view, but Bloomington is inextricably linked to MOA’s success, as I note below.
- Clothing retailers at MOA won’t care. I’m curious what MOA’s tenants think of this scheme. They certainly have a stake in the ongoing success of MOA and so, I’m sure, would like to see the water park succeed – success being defined as attracting sufficient customers to ensure the ongoing viability of the overall development and their own operations. It is worth noting that the MOA tax will hit those tenants very unequally: because of Minnesota’s clothing exemption, clothing retailers will be spared. Those who sell taxable goods will be more directly affected.
- Nobody will notice (okay, most won’t notice). The structure of the sales tax, as an add-on at the cash register, makes it an effective way to disguise its price-raising effects to shoppers. Research on the behavioral effects of taxes shows that taxes that are built into the explicit prices of commodities (e.g., excise taxes like the gas tax and cigarette taxes that show up in the sticker price of the product) have much larger effects on purchasing behavior, as contrasted with a tax, like a retail sales tax, that only shows up at the cash register – probably after the consumer has already decided to buy the item. That should provide small comfort to MOA’s tenants who may have their sales taxed, if the water park’s finances go South.
- Is it worth it? The real public policy question here is whether the government (whether city, state, or federal) should go on subsidizing MOA. Answering that question would typically be done with a thorough and careful cost-benefit study, something that has never been done throughout this process (from 1984 on). (Full disclosure: As a legislative staffer, I worked on MOA state legislation from 1985 through 2018 and so was complicit in that failure.) Given that this “sales tax” is really little more than an odd sort of rent increase at MOA, it’s hard to get too excited about that issue here, although issuing more tax-exempt bonds for private projects is never good in my mind. I totally understand why Bloomington is going along (see the next bullet for more on that).
- It ain’t easy to dismount a tiger. The current dilemma Bloomington faces illustrates how long-ago decisions effectively bind a city or put it on a course that is very difficult to deviate from. It’s like the old Chinese proverb of how difficult it is get off the back of tiger. The state’s 1977 decision to build the Metrodome effectively required Bloomington to redevelop the Met Stadium site, a prime piece of real estate that was close to the airport and on 494. The city in 1982 had two basic choices, a classic fork in the road:
- It could have allowed the private market to redevelop the site without government assistance. That likely would have resulted in some mix of retail, hotels, and offices and would have generated immediate tax base as the site gradually built out. Given how prime a site it was, the development likely would have been high value and would have contributed to Bloomington and its 494 strip being a classic “Edge City.” (Interestingly, Wikipedia does not list Bloomington as an Edge City. I had always assumed it was.)
- The other path, chosen by the city as encouraged by then Governor Perpich, opted for a signature development, MOA. That approach was perceived to help give Bloomington a national reputation (sort of like a corporation buying naming rights, I guess), making up for the loss of hosting the Twins and Vikings at Met Stadium. That loss, by most accounts, stung Bloomington public officials and business community as a big loss of prestige and visibility for the suburb. But that required the city (and county and school) forgoing increased property taxes from the site for well over 30 years because TIF was used, recycling the increased property tax back into the development. That period has now ended (thanks to the 2013 special legislation which shifted the ongoing property tax costs to the fiscal disparities program spreading costs over the entire metro area), but that doesn’t end Bloomington’s costs and responsibility.
Opting for a mega development, like MOA, is much higher risk – obviously because of the public investment (cost), but also because a big single use development is less certain to generate a return, long run. In investment terms, it is not diversified the way a market-driven, but more modest development of mixed uses would be. It’s like investing all your money in one growth stock, rather than buying a diversified mix of stocks and bonds. Your chances are greater of striking out or hitting a home run, but it’s safer to try and hit a single.
Another consequence of choosing path #2 that probably was not recognized by Bloomington in 1985 is the ongoing effects of opting to fund a signature development like MOA. A mammoth development like MOA in a modest sized city will always be an implicit city responsibility. If MOA falls on hard times and requires extensive repurposing or new investment, there is little question that city will feel it is practically and politically necessary to help pay for that and will undoubtedly ask for the state’s help as well, at least if past experience is any guide. The city’s behavior with regard to the waterpark is instructive in this regard. It illustrates a sobering, but often little recognized cost of not just allowing the private market to determine the course of real estate development.