(Revised from the June 29, 2022 version)
See also ”Footnote on Revised Version”
As previously reported, the Aiken Municipal Development Commission (AMDC) has embarked on a $75+ million project involving the demolition and reconstruction of a substantial chunk of downtown Aiken. In pursuing this project, the AMDC has circumvented community development law (Reminder of the Day, June 20, 2022).
Now, in a remarkable development, Aiken City Council will soon attempt to amend the city’s municipal code because the AMDC’s bylaws, adopted in December 2020, are not in compliance with the city ordinance governing the commission. At issue is the fact that the AMDC has voting members (Commissioners) who may not be legally eligible to be on the Commission. If any Commissioners are not residents of the City of Aiken, and it appears at least two are not, the legitimacy of past AMDC actions is questionable.
In a nutshell, Chapter 11 of the City of Aiken’s municipal code states that AMDC voting commissioners “shall be citizens of the City of Aiken;” whereas the AMDC’s by-laws state that voting members “must have vested residential or business interests within the Commission’s jurisdictional boundaries,” which is the City of Aiken. Bylaws must comply with the law, and these do not at the present time.
Chapter 11: Aiken Municipal Development Commission
In August, 2019 Aiken City Council approved Chapter 11 of its municipal code, creating the Aiken Municipal Development Commission. While citing Title 31, Chapter 10 of SC law (1) as the governing statute for its existence, the ordinance also established residency requirements and term limits. Amended in September 2020 to add three more voting members and reclassify city councilpersons as “ex-officio” non-voting members, the ordinance reads:
The redevelopment commission established by this article shall consist of nine voting members. Nine commissioners shall be citizens of the City of Aiken who shall be appointed by city council. The three members who are appointed to replace the currently serving city council members shall serve an initial term of one year and the six appointed commissioners who are currently serving shall serve an initial term of two years. Thereafter, all commissioners shall serve for two years. The city manager will serve as an ex-officio non-voting member of the redevelopment commission.
The redevelopment commission established by this chapter shall exercise its powers within the city limits of the City of Aiken.
From Gregg Highway to Hitchcock Woods: The AMDC Strays From Its Mandate
Aiken’s municipal code has not prevented the AMDC from delving into business outside the city limits, such as a housing development on Gregg Highway.
Nor has State community development law prevented the AMDC to stray outside its authority. That law restricts the AMDC’s authority to “conservation areas” that contain at least three precursors to blight, and “blighted areas” that contain at least five elements of blight. Yet, the AMDC has participated in greenfield projects on Whiskey Road such as the new senior apartments; and in one meeting actually discussed the marketing of Hitchcock Woods, with one commissioner commenting it is “underutilized.” Fortunately, better sense prevailed and that misguided discussion about private, wild, undeveloped lands was tabled.
The “Scrivener’s Error.”
But talk pales in comparison to action, and one action undertaken by the AMDC was to draft and adopt bylaws in December 2020 that were not compliant with Chapter 11. On Monday, June 27, I asked AMDC Director Tim O’Briant “how did the AMDC adopt bylaws that do not correspond to the municipal ordinance,” specifying two discrepancies:
- The residency requirement in the governing municipal code vs the residency and vested interest requirement in the by-laws; and
- The two year terms in the municipal code versus the four year terms in the by-laws.
I then wrote:
Chapter 11 of the municipal code was amended once to allow for nine voting members, with three replacing councilpersons who were then reclassified as ex-officio members. Why hasn’t the ordinance been amended to reflect the bylaws? And why were bylaws adopted that contain provisions contrary to an approved ordinance?
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Mr. O’Briant responded by email a day later, and also cc’ed the answer to the Aiken City Manager and Clerk and one daniel.plyler@smithrobinsonlaw.com.
According to the city, a “scrivener’s error” is at fault, and Aiken City Council will now consider an amendment to the law because the bylaws are noncompliant. Council will be arguing that its intent in 2019 was to include non residents with “vested business interests.” No evidence to support this “intent” was provided. The email reads, in full:
Don,
You have pointed out an error that requires correction in the Aiken City Code. Chapter 11 as approved and added in 2019, and upon which the bylaws were based, required the following.
Sec. 11-2. – Membership; terms of members. The redevelopment commission established by this article shall consist of nine members, three commissioners shall be city council members and six commissioners shall be appointed by city council. The three city council members shall serve an initial term of one year and the six appointed commissioners shall serve an initial term of two years. Thereafter, all commissioners shall serve for two years. The city manager will serve as an ex-officio non-voting member of the redevelopment commission.
As you state, in 2020 Chapter 11 was amended for the sole purpose of removing council members as non-voting ex officio members of the body and replacing them with three additional appointees to be nominated by the Commission and ratified by City Council. There was no discussion by City Council regarding the addition of a citizenship requirement as a part of that amendment, nor is there evidence of legislative intent to do so.
The bylaws state, ‘The Commission shall be composed of nine voting Commissioners who have vested residential or business interest within the Commission’s jurisdictional boundaries.’ That accurately reflects the intent of Council. The addition of the words ‘commissioners shall be citizens of the City of Aiken,’ was a scrivener’s error following the verbal motion to amend that has persisted until today.
As a corrective action, City Council will consider an amendment and correction to the published text of Section 11-2 in the near future. Thank you for calling this to our attention. As far as the terms of office go, the AMDC has been observing two-year terms as stated in the statute and just had its first expirations and election of new officers in June of 2022. The bylaws will be amended to comport with the statute and actual practice.
Regards,
Tim O’Briant
If the ordinance is changed to allow non-residents to determine the fate of the City of Aiken, then every member of Aiken County should be eligible since we all have a vested interest in the business of the county seat and major medical and service center.
In response to that email, I replied with the following questions:
- How many voting members are not city residents?
- How legitimate are their past votes?
- Where is the evidence of intent?
- What constitutes a “vested business interest?” If the law is going to be changed does that not also have to be defined?
- Were the bylaws reviewed by the City Attorney to insure compliance with the law?
Any response is pending.
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