Friday, September 21, 2012
By Al Gray
The fury in and surrounding the Columbia County Commission Chambers on December 6, 2011 sizzled and seethed. Citizens packed the room and the overflow could have surrounded the building. An incongruous and unwelcome subsidized housing development, to be known as Magnolia Trace, was coming to their midst. The county commission had invited the intruder in. The Georgia Department of Community Affairs (DCA)was funding it. The only notice had been the real estate closing and starting of the building permit process. Revelations that the project's limited partner, Affordable Equity Partners (AEP) of Columbia, Missouri, had – through subsidiaries, related entities, and PAC’s - liberally to Georgia’s governor, lieutenant governor, speaker of the house and local state legislators added to the combustible mix. Capping it off later was the discovery that the county attorney also had worn the hat of closing attorney for the developers.
Inside, the commission chairman, three commissioners, and that county attorney were stoic, but their white faces and knuckles spoke fear. Their position was one of relative comfort juxtaposed to the District Three commissioner, a man inopportunely appointed to the offending Department of Community Affairs board (albeit after DCA had approved the tax credit funding to AEP) and who had voted for the county’s resolution to endorse the project. His business had been picketed, his phone ceaselessly chattered, a local talk radio show with 60,000 listeners was hostile, and real pressure was on. He was beet red and seemed to be near break down.
An epic meeting ensued that concluded an hour and a half later with the commission engaging an outside attorney charged with seeing whether there were avenues to void the deal. It was a fig leaf and seen that way. The project was too carefully planned and orchestrated for citizens to have a realistic chance of canceling it. After all, Affordable Equity Partners boasts of its long history of doing tax credit projects in multiple states and its role in encouraging states to provide the tax credits. From the company website: "By forging strong relationships with key government entities, AEP ensures a secure and favorable investment environment for our investor partners."
Who Done It?
The first stage in the development and investment process for a Low Income Housing Tax Credit project is said by AEP to be this: “A developer of an affordable property will admit AEP as its limited partner.." This portrays the circumstance of a group of local property developers gaining control of land, then engaging the AEP companies to structure the deal as a LIHTC financing. Who are the principals behind Magnolia Trace? They are hidden by the LLP structure, so that remains a mystery.
The birth pangs for this project came when an AEP entity named Peach Way Holdings LLC obtained an option on March 24, 2010 to purchase the land. Later the option would be exercised by Magnolia Trace LLP. Immediately the process began to submit an application to DCA for tax credits used to finance the project. Peach Way Holdings was the first entity publicly involved out of an AEP interconnected stable of companies who are very adept at carving out a lucrative niche.
Extraordinarily High Costs Meet a Stunning Reversal
The Magnolia Trace project was so astonishingly lucrative that the DCA staff initially refused to approve the application on December 14, 2010 (click link to view document) based on that fact and a host of other financial criteria. “Total development costs for this project are over $10 million dollars which translates into almost $141.24 (author used round numbers) per square foot. A similar project had total development costs of only $7,561,982. This translates to almost $2.5 million more of total development costs.”, DCA wrote. Despite having slammed the numbers as entirely too high and the applicant being barred from updating or modifying anything upon appeal, DCA approved the credits for MagnoliaTrace in a letter dated March 14, 2011 (click link to view approval document) .Incredibly the approval notification letter has a DCA documents date stamp of January 7, 2011, 66 days before the document was dated!
A need to call upon AEP's “strong relationships” within government to gain approval before December 31, 2010 lay in the expiration of a key contract with Peach Way Financial Services. The vaunted "genuine advocacy for both developers and investors" worked wonders to speed approval, evidenced by what looks like an obvious post dating episode, over a period interrupted by Christmas and New Years.
Who might Magnolia Trace LLP/Affordable Equity Partners have called upon for help in this time of emergency? Lt. Governor Casey Cagle's campaign got $882.50 from AEP going back to 2008. Sister company Capital Health Management Inc. gave Cagle another $10, 453.50.Capital Health Management in October 2006 had given $40,000 out of the $40,500 total of The Fund for Georgia's Future (Filer # NC2006000414 ) who gave Cagle another $10,000 that same month. Capital Health Management in 2008 gave a whopping $100,000 to The Fund for Georgia's Future, who dispersed it to a raft of legislators. and the Republican Party.
Capital Health had also given the campaigns of Speaker David Ralston $5,000, Senate Majority Leader Chip Rogers $5,500 and Nathan Deal $6,300. Another PAC that AEP contributes to, albeit not as the dominant contributor, is the Committee for Affordable Workforce Housing (GAHC-PAC – Filer NC2008000070). This PAC gave another $6,100 to the Deal campaign in September 2010, $1000 to Ralston in December 2010, $5,973 for Deal in December 2011, and $3,000 for Cagle in March, 2012.
Nearly $200,000 in campaign funds wins friends. In this case did it reverse a project rejection and move a date?
A Masked Partner?
The DCA application process requires disclosure of all related and controlled entities. Peach Way Financial Services, LLC , the Development Consultant, seems to fall within this category, as William A. Markel, Executive Vice President of AEP, is listed as Peach Way's Agent for its business registration with the Georgia Secretary of State with the listed mailing address in Missouri coinciding with AEP’s office address. However, in the tax credit application filed with DCA, Peach Way Financial, the project Developer Consultant, was listed with an Atlanta address and was reported to “not have an identity of interest with any other entity in this chart.” *(Click here to view Magnolia Trace parties document). It is noted that the “identity of interest” question applied to each and every entity in the chart.
A side note is that Peach Way Financial Services, LLC is shown to have filed its business registration with the Secretary of State for 2011, when the application process remained in play, but is reported to be in a state of noncompliance for 2012. According to its contract, Peach Way Financial Services gets fee payments in 2012 from Magnolia Trace.
“Inefficient financial structure”
Before Magnolia Trace LLP's sudden change in fortune, DCA had written this about the project: “.... the financial structure is not an effective or efficient use of DCA resources.” What might be the reason that the “financial structure is not an effective use…?” Could it be that multiple layers of AEP affiliated companies produced the $2.5 million more in costs cited by DCA?
Arguably the largest money tree in the AEP stable is that the tax credit financing process allows “AEP’s ability to insert an experienced affiliate into every step of the tax credit process provides added security to AEP’s investors." With Magnolia Trace, Peach Way Holdings secured the land option. Magnolia Trace LLP became the owner. MACO Development Company, LLC is the Developer. AEP itself is the State and Federal Limited Partner. MACO Properties, LLC is the Managing Partner. Peach Way Financial Services LLC is the Development consultant. Fairway Construction Co. Inc. is the General Contractor. Fairway Management is the management company. All are related and most stood to gain fees, directly or indirectly.
How much of the $2.5 million excess cost that DCA objected to might be found in having so many AEP companies involved? The land acquisition and construction 'costs' totaled $6,986,826, or a whopping $100 per square foot. The total development 'costs' of $10,152,634 were $145.45 per square foot. Of the roughly $3.2 million difference, fees, overhead, and profit of the AEP stable of companies were about $2.1 million, or 66%.
A Lot More than A Trace of Money
Once a subdivision is complete, the AEP companies begin to draw management fees from leasing operations. Magnolia Trace will join 17 previous AEP company developments in Georgia. Projected management fees to be generated from the Martinez complex are estimated at $1,160,885.
The approved tax credits were $1,065,849. If the DCA's figures and objections ifrom December 2010 are correct, the excess of tax credits over the norms would be about 25% or more than $250,000.
Magical Words to an Auditor's Ears
The application contained the language “Certification of Actual Cost” and the authorizing provisions in Chapter 42 of the tax code preserve the rights and capabilities of audit before the tax credits are issued. This could prove providential in protecting state and federal tax revenues, as there are new homes for sale in similar neighborhoods for sales prices in the low $70's per square foot. Upon audit can the $145 per square foot price supplied by the AEP companies be sustained?
The larger question is whether anyone will ever be allowed to audit this transaction.
Citizens of suburban, Republican Martinez, Georgia got an unwelcome subsidized housing project courtesy of unknown developers. If there is solace in this story it is that Martinez county commissioner Trey Allen got the Department of Community Affairs to reform its policy so that future locales will be notified beforehand of low income projects. The politicians got nearly $200,000 of campaign donations. The AEP stable of companies look to have secured a backdated approval of a project that DCA deemed excessive on the way to winning more than $1.5 million in development fees, $1.1 million in tax credits, and $1.1 million in management fees. Along the way, one entity looks to have been undisclosed as a related party and has fallen into noncompliance with Georgia's business registration unit.
The identities of the parties who launched this controversial project will be hidden behind opaque partnership structures, while a cash-strapped state government sees its revenues drained, not only by very lucrative tax give-aways, but also by layered on costs that the state agency found to be excessive.
Can this really be government by and for the people?***