SCOPE AND POSSIBLE EFFECTS OF THE FEDERAL AVIATION ADMINISTRATION S (FAA) ONE ENGINE INOPERATIVE POLICY

Transcription

1 SCOPE AND POSSIBLE EFFECTS OF THE FEDERAL AVIATION ADMINISTRATION S (FAA) ONE ENGINE INOPERATIVE POLICY SUMMARY OF THE OEI POLICY CHANGE The FAA proposed One Engine Inoperative (OEI) policy has not formally been proposed or defined, but based on information from aviation experts, it is our understanding that the FAA is considering revising its criteria for evaluating whether proposed structures (e.g. buildings, towers, wind farms), would pose a hazard to air navigation. Based on available information, it will likely protect for airline- specific OEI procedures surrounding airports. These airline- specific procedures are often at heights well below the current criteria used to evaluate structures, and may effectively limit the heights of proposed construction to levels lower than are presently considered not to pose hazards to air navigation. As an example of the potential change, consider a structure aligned with an airport runway centerline, and situated 10,000 feet from the end of the runway. Under the current evaluation criteria, the structure would be allowable at a height of 250 feet above ground level. A proposed change to the criteria taking into consideration OEI procedures would effectively limit the same structure to just 160 feet. For an occupiable building, this could equate to approximately nine floors constituting the obstruction under the new OEI determination criteria. The effect of the OEI change would be that the economic responsibility to provide for sufficient flight clearances would be shifted from the airlines, where it has been since the FAA began evaluating hazards to air navigation over seventy years ago, to individual property owners. Proposed construction exceeding these new criteria would receive FAA determinations of hazard, which may impact the ability to obtain financing, insurance, necessary permits, and comply with local zoning requirements. While not likely to be applied retroactively, the policy would likely apply to any future development of projects on sites with existing FAA determinations of no hazard. When local entitlement agencies adopt the FAA s advisory opinions of hazard or no hazard, the result may be a downzoning of a development site or a building, limiting a property s development potential and value. In summary, the proposed change to the FAA s policy related to the determination of hazard or no hazard has expansive ramifications throughout real estate development and investment, public- private partnership initiatives, and the feasibility of operating affected existing properties in the long- term. There are real valuation concerns that property owners should have relative to this potential change, and it is our opinion that the effects of the proposed change are not yet well understood by the real estate community. For the developers and investors in prospective projects, the current uncertainty of development density causes expensive delays and inhibits new investment in real estate projects that are often good for the community and that offer solid contributions to local economic development.

2 IMPACTS OF THE OEI POLICY CHANGE 1. The prospective change is incredibly far- reaching, affecting privately and publicly owned real estate near 388 different airports throughout the United States and U.S. Territories. 2. The change affects primarily proposed and, to a lesser extent, existing structures, which are often located within or near central business districts, airports, and sub- markets of major American cities that are important economic centers for the metropolitan area, as well as the nation. a. Locations like Washington, D.C. suburbs in Northern Virginia, Chicago s West Loop and Near Northwest Suburbs, Downtown Boston, Lower Manhattan, and the Downtown and Brickell areas of Miami would all be affected. 2. Overall, more than 3,850 existing structures would exceed the surfaces of the proposed OEI policy, meaning that they fall outside of allowable redevelopment limitations. a. While their existing use would not be affected by the policy change, these structures may not be able to be rebuilt to the same height or scale under the proposed policy should substantial reconstruction or redevelopment be required. 3. The structures affected include office buildings, residential towers and single- family homes, hotels, bridges, lighthouses, utility and communications towers, and other types of structures. a. Many of these properties have iconic and cultural significance to their cities and to the nation, beyond their real estate value or public utility. 4. Limiting density in the areas affected by the policy change has the effect of pushing development outward, encouraging sprawl, and limiting the amount of space available in core employment, residential, and tourism areas. 5. The impact of the potential policy change is most significant, and more readily determined, for projects that are proposed for development. a. The FAA s formal determinations of no hazard expire after 18 months if construction on a project has not yet begun. If a proposed development has received a determination of no hazard, the developer has 18 months to begin construction, which in recent years has been difficult due to the challenging atmosphere for capital investment and financing, and further complicated by foreclosure proceedings and litigation related to property proposed for development. b. Should delays to the start of construction occur, a developer must seek an extension after the initial 18- month period has expired. The FAA evaluates the extension request under the facts and circumstances existing at the time, taking into account current criteria and air traffic procedures. c. Under the new criteria, a project that had previously received a determination of no hazard could now receive a hazard determination upon request for the extension if its proposed height exceeded the OEI criteria. 6. The change would result in limits being placed on the density of new prospective development in the land areas affected, limiting the development potential of a downtown area or residential district versus what the market would otherwise have allowed.

3 a. A skyline of a city, and therefore part of that city s visual identity, may be defined in part by multiple structures deemed to be obstructions. Should maintenance or reinvestment in these structures deteriorate over time, causing them to look different or require reconstruction or modification, the skyline of a city may change. 7. New proposed developments face significant obstacles in being capitalized with equity and debt. a. Unless and until the new policy is adopted, a climate of uncertainty would overshadow any prospective investment deal on property subject to the height limitations, which is likely to delay projects that are presently proposed or permitted, but that have not yet begun construction. 8. Existing properties that exceed the proposed OEI criteria change limitations would likely face similar challenges to proposed development, although the nuances and effects over time are less predictable because the properties would be grandfathered- in. a. Despite the FAA s conveyance of a no hazard determination on existing property, it would likely become known that the building may exceed the more restrictive heights in the OEI criteria to property owners, risk managers, and investors in a building. 9. A condominium tower presents another important example, whereby the owners of individual residential units may not be able to obtain favorable personal homeowners insurance or favorable mortgage terms, substantially inhibiting the value of a home on the open market. a. Units located in sections of the tower that exceed the FAA s height limitation may not be approved for reconstruction if disaster struck, leaving lenders less likely to finance mortgages at the upper levels of the building than at the lower levels where it is likely that a condominium would be rebuilt with insurance proceeds should the building have been largely destroyed. 10. It is possible that the financial impact of the policy on the cash flow and value of existing properties would cause some owners to default on existing debt service or repayment obligations. a. Lenders would foreclose on affected properties, accepting prospectively significant loan repayment losses upon resale to alternative owners, which would acquire the property at its then market value, taking into consideration its limited cash flow potential, risk profile, and financeability. 11. Where there may be a number of these structures in one location, the very look and feel of that location or neighborhood could change over the long- term, also broadly affecting the value of nearby properties that themselves are not restricted by the policy. 12. While unlikely in most instances, it is possible that some building owners would become so desperate to eliminate the financial challenges posed to grandfathered buildings that they would choose to demolish some portion of their structure so that it conformed to the height limitations and was no longer non- conforming or perceived to be an obstruction hazard by the market. a. This would be an unlikely extreme measure, yet possible given that we do not yet know how the markets will adjust to the new policy should it be implemented.

4 13. Out of 3,851 total existing obstacles reported by the FAA, 757 of them are parts of occupiable buildings. These buildings are located in 46 U.S. States or U.S. Territories, and the average existing non- conforming obstruction exceeds the maximum advisable height under the policy by over 87 feet. This is roughly the equivalent of an eight or nine story building. 14. In addition to existing structures, there are an additional 3,879 obstacles proposed for development that exceed the policy s height advisories. The FAA does not report what type of structure these proposed obstacles represent, but they include everything from occupiable buildings to wind turbines. These proposed obstacles are located in 52 U.S. States or U.S. Territories, and they exceed the policy s height limitations by an average of nearly 78 feet.

5 MIAMI AFFECTED PROPERTIES In Miami, there are a number of major projects that exceed the proposed height limitations, and more that are presently under construction or recently completed where the policy s effects may hinder the financial success of the development, putting the feasibility upon which investment occurred at risk. Some of the notable potential obstructions are summarized as follows. 1. The Palmer Lake area is located east of Miami International Airport and a byproduct of the creation of the Miami Intermodal Center. It has been the subject of significant urban planning focus, with hopes to develop a mix of uses all with access to mass transit and in close proximity to both the airport and downtown Miami. Palmer Lake includes about 220 acres of land, and the master plan would accommodate office, retail, hotel, and residential uses located on the lake itself as well as along the Miami River and Tamiami Canal. All of the development at Palmer Lake would be at risk of being significantly impacted by the proposed OEI policy change. This is particularly true because Palmer Lake s buildings will be developed in multiple- phases. 2. Maefield Development s proposed Arsht Center Parking Garage project would be an obstruction, even if located on a different nearby site than originally proposed. The project proposed development of a 100', 8- story parking garage, 450,000 square feet of retail space, and 20- story electronic signage billboards. 3. The Casino Miami Jai Alai project was completed last winter, and exceeds the OEI height limitations by approximately 24 feet. ABC Funding, the manager of the loan for several funds, filed a foreclosure lawsuit in September against Florida Gaming Centers and Florida Gaming Corp. The property s development has failed, and because it is a special- use property with a lender interested in recuperating its investment, it is likely that there is an alternative highest and best use of the site. The property s more feasible redevelopment would likely be inhibited by the proposed OEI policy change. 4. Satander Global Property plans to raze the building at 1401 Brickell to construct a 50- story tower on the acre site. The property holds development rights for more than 800,000 square feet of office space, which would exceed the OEI policy s height limitations by nearly 500 feet. 5. Resorts World Miami is being proposed for a 30- acre site in downtown Miami by Genting Group. The project would include 5,000 hotel rooms, 700,000 square feet of convention and meeting space, 1,000 residential units, and countless retail stores and entertainment amenities. It also contributes to the completion of the 150- acre Baywalk, which is an important public access amenity in the City of Miami. Resorts World Miami s $3 billion investment would likely be subject to the OEI policy determinations, and because this is a multi- building, multi- phased project, each subsequent phase would be at risk of being limited in height. 6. Miami World Center is being proposed for development by the Falcone Group and Centurion Partners, with a notable investment made by CIM Group. The nine- block project would be developed in multiple phases, incorporating residential, retail, office, and hotel spaces. The entire project would likely be subject to the OEI criteria Biscayne Center is being proposed for development by Espacio USA, a Spanish

6 development firm that has retenented the existing office building on the site, but now intends to move forward with the site s redevelopment as originally planned. Espacio has engaged I.M. Pei s firm to design a two- tower residential and office property to be built in two phases. The first tower will include office space in a 173- foot structure, while the second phase will include a 65- floor residential and office tower totaling 651 feet. 8. Related has several projects that have not yet begun construction, but that would likely be affected by the proposed OEI change. These include IconBay, which is selling condominiums on a pre- construction basis, and where any existing determinations may expire. Related is also under construction with other towers, including MyBrickell and Millicento 1100 Brickell, both of which likely exceed the height limitations. Because these properties are all condominiums, the OEI change may present unique end- user concerns that may challenge the sellout potential, insurability, or financeability. 9. Brickell CitiCentre is undergoing site work by the developer, Swire Properties, but construction on its towers has not yet begun. Totaling approximately 4.6 million square feet comprising a mix of uses, CitiCentre would be one of Miami s largest projects. It has been stalled in 2008 due to the recession, and originally had determinations of no hazard issued by the FAA, but due to its multi- phased nature these determinations are likely to expire. 10. Florid East Coast Realty is proposing a redevelopment of 1101 Brickell with Miami s tallest building, rising 824 feet. While originally proposed in 2006, and approved for development, the project was placed on hold due to the recession. Site work and demolition of the existing structures on the site has now begun, although construction of the new tower does not yet appear to have started, putting the height approvals in jeopardy. The project is proposed to include over 600 condominium units and 270,000 square feet of office space.