Editorial: The Rumors of Aiken’s Early Demise are Greatly Exaggerated

One of Aiken’s more vexing modern myths is the idea that, before the advent of high-stakes, public-private economic development partnerships — with the AMDC, the Aiken Corporation, public officials, private industry and investors wheeling and dealing multi-million dollar deals behind closed doors — our downtown was practically a ghost town inhabited by a small scattering of businesses wheezing on life support.

A few recent samples of the myth:

During the 1970s and 1980s Aiken was a quiet, underdeveloped town with very few attractions. The downtown area and City as a whole were growing at a slow pace and without any impressive economic stimulus. There were only a few businesses in downtown and some in the City as a whole.  — Aiken Corporation website, August 2022

”I hope some of you remember the 1980s. You could shoot a cannon down Laurens Street, and you wouldn’t hit a car. You didn’t have to worry about parking. There was parking everywhere.” — Councilwoman Kay Brohl, May 9, 2022


The fact of the matter is that, during the 1970s-80s, downtown Aiken was a vibrant place — home to at least 13 clothing stores, 12 restaurants, 5 furniture stores, 5 jewelry stores, 5 shoe stores, 3 hardware stores, 3 dry cleaners, 3 printing shops, 2 pool halls, 2 office supply/book stores, 1 five-and-dime, 1 sporting goods store, 2 movie theaters, 1 bicycle shop, 2 dance studios, 3 record shops, 2 music stores, 2 frame shops/art galleries, 2 arts & crafts supply stores, 2 drug stores, 2 grocery stores, a Greyhound bus station, 1 garden store, 3 florists, numerous antique shops and gift stores, a half-dozen or more service stations, a hotel, an inn, and numerous realtors, attorneys, insurance agencies, banks, barbers, and beauty shops.

The above accounting is prefaced with the words, “at least” because there are no doubt more businesses than one person can recall. As someone who shopped downtown for all of those years, worked downtown for ten of those years, and lived downtown for one of those years, I can attest to a different story than the one being conveyed today by the City and its corporate partners.

These downtown businesses were not figments. They were the bedrock of a thriving downtown throughout the 1970 and 1980s:

  • Rudnick s Used Furniture
  • Byrnes/Aiken Furniture Co.
  • Rhodes Furniture Co.
  • Maxwell Furniture Co.
  • The Diana Shop
  • Julia’s Dress Shop
  • Lionel Smith Ltd
  • B.C. Moore and Sons
  • MiLady’s
  • Magic Years
  • Charlotte’s Bridal
  • Mangels
  • The Gazebo
  • Casual Hut
  • Slotins
  • Manning Owens
  • LeGrandes
  • Cloud 7
  • The Carousel
  • Crest Travel
  • Plum Pudding
  • Merle Norman
  • The Gun Rack
  • Southhampton Saddlery
  • Quality Records
  • The Record Shop
  • Hydrick’s Music
  • R&M Music
  • Burns Dance Studio
  • Crosby School of Dance
  • Fascopy
  • Howell Printing
  • The Letter Shop
  • Lambert’s Frame Shop
  • The Artist’s Parlor
  • Birdsey’s Grocery
  • Jack’s Paint Shop
  • Parker’s Body Shop
  • Flower’s Paint & Body
  • Aiken Auto Parts
  • Johnson Auto Parts
  • Hydrick Appliances
  • Dyches Building Supply
  • WAKN radio
  • Famous Brand Shoes
  • Coleman Shoes
  • Leverett Shoes
  • Philip Shoes
  • Fox Shoe Repair
  • Swanner’s Bicycles & Mowers
  • Marketplace Bicycle Repair
  • Palmetto Package
  • CC Johnson Drug Store
  • Aiken Drug Store
  • Big Star Grocery Store
  • Polk-Griffin Appliance
  • Laurel/Pridgen Hardware
  • Franzblau’s Hardware
  • Holley Hardware
  • Hydrick’s Appliance
  • Aiken Sporting Goods
  • City Billiards
  • Kaney’s Corner Pocket
  • McCrory’s
  • Alvanos Grill
  • Cheng Garden
  • Pat’s Restaurant
  • West Side Bowery
  • Up Your Alley
  • Surasky’s Deli
  • Starnes Deli
  • The Sub Shop
  • Willcox Inn
  • Oyster Bay
  • J&W Cafeteria
  • The Spiced Apple
  • Cinema Theater(s)
  • Mark I Theater(s)
  • Greyhound Bus Station
  • Efron Taxi
  • George Funeral Home
  • Elliott Office Supply/Bookstore
  • Aiken Office Supply/Bookstore
  • Creative Program Planners
  • Commercial Hotel
  • Holley House
  • Hite Florist
  • Cannon House Florist
  • Design House
  • Adavees
  • LaMartingale Antiques
  • Cold Creek Garden Center
  • Osbon Laundry & Cleaners
  • Warneke Cleaners
  • Thomas Dry Cleaning
  • Plaza Carpets
  • Tidwell Jewelers
  • A Family Affair
  • Holmes Jewelers
  • Friedman Jewelers
  • Bradberry Jewelers
  • The Screenprint Factory

All of the above-listed businesses existed in the central downtown area, (highlighted in yellow below),, except for six businesses represented by the blue dots, which were, (working west to east): Cannon House Florist, Design House, The Willcox Inn, The Carousel + Crest Travel Agency, and the C.C. Johnson Drug Store (located at the corner of Fairfield & Park from the 40s-80s). There were, of course, many other thriving downtown businesses outside the yellow-highlighted area.

1970s era map of Aiken downtown area. Click for full-size view.

Yes, times change, people come and go, economies ebb and flow, and businesses open and close, but no one in the 1970s-80s was talking about the demise of Aiken’s downtown. It wasn’t until 1990, shortly after the grand opening of the 500,000 square-foot Aiken Mall, (Aiken’s answer to Regency and Augusta Mall), plus the construction of several strip shopping centers on the southside, that downtown businesses began to suffer in earnest and fall like so many dominoes. The cause and effect was almost immediate.

Those who speak today of shooting a cannon down Laurens Street would do well to revisit the outpouring of citizen complaints made to city council members about the onset of frustrating traffic congestion on the southside — yet another instant consequence of the unplanned, short-sighted brand of development that overtook the southside during those years. Today’s seemingly irredeemable mess of southside traffic is our inheritance from that era.

Back to the Future

If we endeavor to learn from this history, we could begin with a realistic understanding of developers. Developers, just like any salesmen, sell products. The development industry’s products du jour in the 1970s-1980s were shopping malls and strip shopping centers, which were developed in cities and counties across the country with promises of the economic prosperity and jobs that would surely follow. Aiken’s own Weldon Wyatt was one such developer in the 1980s and even built a few strip shopping centers on Aiken’s southside.

Today’s products du jour are parking garages, stadiums, conference centers, mixed-retail apartments and hotels. Unlike the malls of the 1970s-80s, which took a few years to die on the vine, today’s products are all too often not even making it to fruition. A basic internet search for any of these products du jour + the term “development project bankrupt” produces a roster of stalled, delayed, and failed development projects in cities and towns of all sizes across the country — each one a convoluted tale of public-private deals that failed to deliver on their promises, leaving cities on the hook for millions of dollars, their dream projects too often reduced to half-built white elephants.

Anchors and Chains

Plans for Aiken Mall were announced in 1985 with a projected opening date of 1987. The developer said they would open with 5 anchor stores plus 65-70 shops. By 1987, the ground had yet to be broken for the mall. “Nothing good ever comes easy,” the developer explained. “To build a mall takes a lot of planning… a lot of advanced work.” (1)

Behind the scenes, the developer was still scrambling to get even a single anchor store to commit. Over the next year, one anchor store, Sears, was secured, and ground finally broke in June 1988. When the mall opened in October 1989, there were 2 anchor stores and 22 shops. At this point, the developer’s explanation became, “We fast -tracked this mall, you know, built it rather quickly, and our leasing has not caught up with our construction, unfortunately. But that is typical of everywhere we go.”

In the same breath, the developer assured that, when fully occupied, the mall would produce “yearly sales of $80 million” and “create an additional 800 jobs.” (2)

As anyone who worked at the mall could attest, rumors of closings were a constant among both anchors and chains from the early 1990s onward. Keeping the mall viable, or lending appearances to that effect, was a challenge for most of the mall’s history. The mall was foreclosed in 1998, then again in 2013, with the mall owner $28.5 million in debt. (3)

The history today repeats. Since 2016, the mall property redeveloper’s search for chains and anchors has repeatedly turned up empty, save Belk and Books-a-Million, two pre-existing mall tenants who have said all along that they hoped to continue in that location. The redeveloper’s most recent plan calls for a 100-room luxury hotel, 256 apartments, and 146,000 sq.ft of retail. Several projected dates for broken ground and completed projects have come and gone without fanfare.

These products du jour echo into Aiken’s downtown — the 2017 Renaissance plan, the 2019 Weldon Wyatt plan for the old Aiken County Hospital, and the 2021-2022 Project Pascalis — each of which also prominently included plans for a conference center and parking garage.

Are these developers looking to lay ground for the independent, local businesses that comprise most of the downtown tenants today, just as it did in the 1970s-80s? Or are they looking to replace them with high-rent anchors and chains?

Fields of Dreams

According to the sale pitch, a 5-story apartment complex is the vehicle for encouraging more young people to live, work and play downtown. “Live, work, and play” and “shop, work, and play” are a few of the pitches used by developers to promote various renaissance projects across the country. The live-work- play concept is an old idea and a good one — in the right measure. Using the slogan as a sales pitch for shoehorning as many apartments as can be stacked into a city lot is an insult to a town the size and scale of Aiken.

According to the sales pitch, Aiken will be revitalized by demolishing nearly half of Aiken’s historic central block and replacing it with that 5-story apartment complex plus a big chain hotel, conference center and parking garage. We are told that razing historic buildings and raising rents is the way to prosperity. And it will, but only for the select few who enjoy membership in the developer’s club, where a day’s work spent planning the demolition of the downtown might be capped off with an evening of fine-dining on steaks and top shelf whiskey on the taxpayer’s dime.

Those who profit from the business of demolishing and developing property will, of course, find ways to market the demolition of successful businesses, historic buildings, and entire downtown blocks as the road to prosperity and jobs. The bigger the project, the bigger the promises. But, as downtown Aiken proved in the 1970s and 1980s — and has continued to prove over all these years as it’s adapted, grown and prospered with the times — sometimes less is more.

We already have a vibrant, livable city where people enjoy shopping and spending time. We can thank Andrew Dexter and Cyril Pascalis for envisioning such a place and putting a plan to paper in 1834. We can thank every generation since for being good stewards and caretakers of that plan. History has shown that, given the right planning and care, the rest will take care of itself.

_________________

(1) “Mall Builders Send $91,000 Check for Sewer Extension,” Aiken Standard, January 11, 1987, pg 1

(2) “Mall Developer’s Dream Comes True,” Aiken Standard, October 11, 1989, pg 1 and 10A

(3) “Shoppers Respond to Foreclosure on Mall Property,” Aiken Standard, May 19, 2013, pg 3A.

A Project Pascalis Update

by Don Moniak
August 29, 2022

Following is an update since June 13, 2022 on various aspects of the City of Aiken’s $100 million plus demolition and redevelopment endeavor known as Project Pascalis. For information prior to that time, see A Project Pascalis Timeline. 

Four developments and trends are notable:

  1. A major lawsuit featuring nine plaintiffs and twenty-seven defendants was filed on July 5, 2022 seeking an injunction to halt the project. 
  2. The “Do It Right Alliance” amassed more than 2,000 signatures for a petition to overturn two City of Aiken ordinances; the 2022 ordinance allowing partial privatization of Newberry Street; and the 2019 ordinance establishing the AMDC. 
  3. Progress on Project Pascalis appeared to stall, and was likely in a process of reorganization prior to the lawsuit. A June 2022 billing invoice from the law firm of Pope-Flynn to the Aiken Municipal Development Commission (AMDC) indicated work on a new redevelopment plan, a new “omnibus ordinance,” and a project “pivot.” No final Master Development Agreement has been reached that would trigger demolition work and the privatization of a portion of Newberry Street.
  4. Increased secrecy surrounded the project.  Only closed-door meetings regarding the project occurred since June 21, documents containing basic information were partially redacted, an increase in denial of documents occurred, and officials have declined comment due to pending litigation—even when the issue is outside the scope of the litigation. 

Timeline Since June 21, 2022

June 13: The AMDC and City Council spend two hours in a joint closed-door Executive Session to discuss “to discuss Project Pascalis with City Council and the developers.” City Council cites the following open meeting exemption to justify closing the doors “pursuant to Section 30-4-70(a)(2) for consideration and discussion of matters related to development of Project Pascalis regarding negotiations incident to proposed contractual arrangements related to Project Pascalis and receipt of related legal advice.” 

June 21: Public comment is prohibited from Design Review Board public workshop that lasts nearly three hours. 

Prior to the workshop, AMDC Attorney Gary Pope, Jr. meets with AMDC to “work on a new direction and how to get there.” (2) 

The AMDC checking account has a balance of $101,195.30

June 22: AMDC Attorney Gary Pope, Jr. works on an “omnnibus ordinance,” and “revising the redevelopment plan,” for 3.0 hours. Details are unknown. (2) 

Gary Pope, Jr. also spends two hours reviewing South Carolina’s “Community Development Corporation Act, schedule, and proposed revisions to Project Pascalis plan.” (Community Development Corporation Act allows for the creation of non-profit corporations with “a primary mission of developing and improving low-income communities and neighborhoods through economic and related development,” and community development financial institutions to assist with credit and capital. 

https://law.justia.com/codes/south-carolina/2009/title-34/chapter-43

Page 1 of June invoice to AMDC from Pope-Flynn. Click to view full size.
Page 2 of June invoice to AMDC from Pope Flynn. Click to view full size.
AMDC payment of June invoice. Click to view full size.

June 24: The City of Aiken posts forty-five Demolition Application notices for a July 5th hearing in front of  Newberry Hall, Warneke Cleaners, the former State Farm building on Newberry Street; the McGhee Building (historic CC Johnson Drug Store, On Board Realty, Security Finance), Taj Aiken Restaurant, and the former Holley House motel on Richland Avenue.

AMDC Attorney Gary Pope, Jr. works on “redevelopment plan and necessary items to pivot project” for 5.5 hours. 

June 27: Pope-Flynn staff work 12.2 hours to “prepare for meeting at City of Aiken. Participate in Executive Session.” 

Aiken City Council votes unanimously to enter into closed-door, Executive Session “to discuss negotiations incident to proposed contractual arrangements relating to Project Pascalis and receipt of related legal advice.” The closed-door session lasts one hour, and there is no further discussion of Project Pascalis during the subsequent open meeting. 

June 29: Demolition Application from RPM Development Partners, LLC to the Design Review Board to demolish motel is withdrawn Current status of demolition plans is unknown.

July 5: Lawsuit filed on behalf of nine plaintiff’s seeking injunction to stop project; citing violations of City of Aiken ordinances and laws governing South Carolina community development, local government comprehensive planning, ethics and conduct of public officials, freedom of information, and local government planning.

Plaintiffs seek to stop Project Pascalis by asking for “a declaration from the Court that certain actions of the City and certain municipal bodies are null and void and incapable of being implemented, in whole or in part” and “injunctions preventing the continued implementation of the null and void acts.” Plaintiffs do not ask for damages. 

Court Filings to date in Blake et al vs City of Aiken et al; from most recent. 

Osbon, In His Capacity As Mayor, and City CouncilMotion/Protection from Discovery 8/22/2022-09:50
Mayor and City CouncilExhibit B: Discovery Documents
Blake, David W.Service/Acceptance Of Service on Raines Company08/17/2022-08:19
City Of AikenAnswer/Answer08/15/2022-22:45
City Of AikenMotion/Dismiss08/15/2022-22:23
Smith, GaryAnswer/Answer08/11/2022-14:54
Blake, David W.Service/Acceptance Of Service on Rpm Development Partners, LLC08/08/2022-14:41
Blake, David W.Service/Acceptance Of Service on Aiken Design Review Board07/28/2022-09:02
Smith, GaryService/Acceptance Of Service on Gary Smith07/12/2022-14:53
Blake, David W.Summons & Complaint07/05/2022-10:24

July 9: The law firm of Pope-Flynn submits $20,546.03 bill to the AMDC for fifty-nine hours of work completed in June, 2022. 

July 11: Aiken City Council meets in closed door executive session with Attorney Daniel Plyler for two hours to discuss legal matters related to the lawsuit, but a Joint executive session with the AMDC is cancelled.

Aiken City Council tables amendment to amend AMDC establishment ordinance to correspond to by-laws written by the AMDC that allows non-residents of the city who have “vested business interests” to serve as AMDC members. No questions pertaining to the tabled amendment are allowed by Presiding Officer Mayor Rick Osbon. 

July 12: AMDC Property Manager On Board Realty deposits $11,205.00 in rent payments to the AMDC checking account. 

AMDC cancels monthly meeting, reportedly due to quorum issues. 

July 13-14. In response to a citizen alert to the City of Aiken, the AMDC removes dozens of files from its “Transparency Page” at aikenmdc.org. The files contained copies of AMDC checks and personal business information that was not properly redacted. 

July 22: Historic Aiken Foundation sends letter to AMDC Chairman Keith Wood requesting increased safety and security measures at the Hotel Aiken.

July 25 to 31: City of Aiken code enforcement begin removing “Say No to Project Pascalis” signs from the right-of-ways in front of private residences, citing the city’s complex sign ordinance. 

July 26: Chairman Wood replies to Historic Aiken Foundation, denying all issues raised. 

AMDC checking account has balance of $53,014.41

July 28: Aiken Public Safety conducts first fire inspection at Hotel Aiken since March, 2021.

August 4: City of Aiken begins to routinely triple the fees for some Freedom of Information Act (FOIA) requests; increasing the rate for document “search, retrieval, review, and redaction” from $16/hr to $48/hr.

August 9: AMDC cancels monthly meeting for second straight month due to lack of a quorum.

August 10-11 In response to a FOIA request, the AMDC reposts most of the invoices previously removed in mid-July, and invoices since April 1, 2022, within a file named “AMDC Financial Binder” is posted to the commission’s “Transparency Page,” https://aikenmdc.org/2022/03/29/project-pascalis-public-records/.  The unannounced posting marks the first change to the AMDC website since the records were removed. 

August 12: In Blake et al vs City of Aiken et al, Attorneys for City Attorney Gary Smith submit “Answer of Defendant Gary Smith.” A review of the answer can be viewed at The Gary Smith Defense: An Admissions, Inconsistencies, and More New Questions Than Answers at the Aiken Chronicles.

August 15: In Blake et al vs. City of Aiken et al, Attorneys for the City of Aiken file:

  1. “Notice of Motion and Motion to Dismiss Defendants Osbon, Brohl, Diggs, Girardeau, Gregory, Price, and Woltz.”
  2. “Answer on Behalf of Defendants City of Aiken, Osbon, Brohl, Diggs, Girardeau, Gregory, Price, and Woltz.” (3. Comments on Motion and Answer) 

August 18: In Blake et al vs City of Aiken et al, Attorneys for the Plaintiff file discovery questions and requests for information:

First Set of Interrogatories to Defendant Rick Osbon

First Set of Requests for Production of Documents to Defendant Rick Osbon

First Set of Interrogatories to All Members of Aiken City Council

First Set of Requests for Production of Documents to all Members of Aiken City Council.

August 22: In Blake et al vs City of Aiken et al, Attorneys for the City of Aiken file: “Notice of Motion and Motion for Protective Order on Behalf of Defendants Osbon, Brohl, Diggs, Girardeau, Gregory, Price, and Woltz;” in response to August 18th discovery issuance. 

August 23-26: AMDC adds thirteen pages of partially redacted documents to its “AMDC Financial Binder.” Four of the documents had been already disclosed by the AMDC prior to mid-July; those copies contained no redactions.

Status as of August 28, 2022

As of August 25, no answer has been forthcoming from attorneys representing the Design Review Board or the Aiken Municipal Development Association. 

The Master Development Agreement (MDA) necessary for any future work appears to be still in negotiation, and time is running short. On December 3, 2021, the Aiken Municipal Development Commission (AMDC) wrote: 

The initial Purchase and Sale Agreement (PSA) announced today gives the AMDC and RPM until no later than Summer 2022 to come to terms on a mutually beneficial Master Development Agreement. (4)

No such agreement has been announced, and the AMDC has not replied to a letter asking for the exact deadline date on the PSA, even though this date is not pertinent to the lawsuit. 

No announcements on the status of the MDA, the second demolition application, or any other aspect of the project such the “omnibus ordinance,” a new redevelopment plan, or the possibility of a non-profit corporation to replace the AMDC has been forthcoming from the City of Aiken. 

The tree growing out of the window on the second floor of the Berkman Building on Laurens Street, above Beyond Bijou, remains. A photo of this tree was first used by the AMDC on November 9, 2021 to illustrate the “blighted status” of its new downtown properties. The AMDC has not acted to remove the tree since that time. 

__________________

References and Notes

(1) This information is contained in the Pope-Flynn law firm’s June 2022 billing invoice to the AMDC, found on Page 161-162. 

(2) Comments on August 15, 2022 motion and answer: 

In the motion to dismiss Mayor Osbon and individual members of City Council, the city’s attorneys cited the South Carolina Tort Claims Act to argue that only a government entity must be named. They argue that individuals are “not proper parties” and “must be dismissed as they are already represented through defendant City of Aiken;” while admitting the City of Aiken was “correctly named the governmental entity” to which the Mayor and City Council belong. In other /words, they argue the City of Aiken can be sued in whole but individuals representing the city are exempt, under Tort law. 

Torts are, by definition, “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.” 

(For more on Tort Law: https://www.law.cornell.edu/wex/tort)

Since the lawsuit is not a tort action and not a liability case, and no damages are being sought, it is unclear why the City’s attorneys are making this argument. 

In the “answer on behalf of defendants,” City attorneys cite the motion to dismiss by arguing,  “Defendants are simply the alter-ego of the City of Aiken, and therefore said Defendants must be dismissed.” The South Carolina Tort Claims Act is cited again, even though the word “Tort” is absent from the July 5th Summons and there is no request for damages, only injunctive relief. 

In total, City attorneys offered sixteen defenses but provided minimal to zero substance for the various defenses; and denied nearly every allegation beyond the fact the City of Aiken is a municipality. 

(3) Comments on “Requests for Production of Documents” and the “Motion for a Protective Order” to exclude individual defendants from discovery. 

The requests for documents is the first basic phase of discovery. It is a request casting a wide net for documentation relating to the project, and includes a request for: 

“Any and all documents and other things, including letters, e-mail, texts, entries in social media, journals, photos, recordings, sketches, videos, logs, diaries, notes, or other written material of any kind in any media in the possession, custody, or control of Defendant or its counsel which relate in any way to the claims or defenses alleged in this action. If Defendant is asserting a privilege, please provide a privilege log.”

The defendant’s lawyers responded to the plaintiff’s request for the production of documents by arguing that individual city council members and the Mayor 

“should not have to respond to Plaintiff’s discovery requests until a ruling has been made on their pending Motion to Dismiss.” 

If the Motion to Dismiss the individual council members and the Mayor is denied, then the individuals will be subjected to the rules of discovery. If the motion is approved, any official business conducted by city council members and the Mayor will remain subject to the rules of discovery, because the City of Aiken will remain a defendant. 

(4) The AMDC announcement from December 3, 2021 also reads:

“The agreement will include complete designs, engineering and permitting required to move forward with Project Pascalis. Any such development agreement would establish, among other things, the price the developer would pay for the property, and the amount the developers would be required to invest in the proposed privately funded, owned/operated hotel and residential portions of the project. The AMDC also intends for the agreement to hold the project to strict completion deadlines that will ensure it moves at a deliberate pace and avoids potential delays. The Master Development Agreement being negotiated would also establish fixed pricing for the proposed conference center and parking facility that would be purchased by the City of Aiken upon completion.”

From: 
AMDC begins Development Agreement negotiations
Dec 3, 2021

Questions to the AMDC

Regarding WTC Investments, Newberry Street, and the Aiken Chamber of Commerce

The denial of AMDC involvement with “WTC, LLC” by Tim O’Briant is an interesting twist on property acquisition saga in the Pascalis demolition zone, as WTC Investments, LLC was clearly the property acquisition arm of GAC, LLC.  

On July 29, 2022, I emailed AMDC Chairman Keith Wood and AMDC Executive Director Tim O’Briant, (cc’ed to Aiken Mayor Rick Osbon and City Manager Stuart Bedenbaugh), a letter with the subject: “WTC Investments, LLC issues and questions.” Since the letter was longer than originally intended, I will lead here with the answers, which are illustrative of the extent of the City of Aiken’s responses to questions since the July 5th lawsuit Blake et al vs. City of Aiken et al was filed. 

On August 1, 2022 AMDC Executive Director Tim O’Briant responded to the letter, and also cc’ed City Manager Stuart Bedenbaugh, by writing: 

“I can confirm the AMDC executed a cost-sharing agreement with GAC Management LLC, a SC business entity in good standing since 2006. The AMDC has had no business with WTC LLC.”

On August 3, AMDC Chairman Keith Wood responded to the letter, cc’ed to Tim O’Briant, Stuart Bedenbaugh, and Mayor Rick Osbon, by writing:

Mr. Moniak,

The questions you ask pertain to matters connected to current litigation, therefore I have no comment.

Keith Wood

Following is the July 29th email: 

Mr Wood and Mr. O’Briant: 

I have a serious question regarding some dates in the Pascalis Timeline;

Timeline: 

January 4, 2021: WTC Investments, LLC (Agent Ray Massey) dissolved. (see attached photo) 

[
Letter continues below]

Screenshot from SC Secretary of State “Business Entities Online.” Click for full-size view.

[Letter continues]

March 2, 2021: WTC Investments, LLC signs purchase and sale agreement with Shah family LLC’s for six properties, including Hotel Aiken, Warneke Cleaners, and former Johnson Drug Store/McGhee Building

March 15, 2021: Aiken Alley Holdings, LLC (Agent Ray Massey)  acquires 200 and 210 The Alley for $2 million. 

March 23, 2021: AMDC and GAC, LLC sign Cost Share Agreement that:

a. requires GAC, LLC to acquire property necessary for the project

b. has an option deadline date of May 17, 2021. If GAC, LLC pulls out before that date, the AMDC retains an option to buy property acquired by, or under contract or option by GAC, LLC. 

WTC Investments, LLC is GAC, LLC’s property acquisition arm and already had purchase and sale agreement with Shah family LLCs to purchase six of their properties (signed March 2, 2021) 

April 15, 2021: WTC Investments, LLC signs Purchase and Sale Agreement with Myrtle Anderson for “Anderson Property” (Newberry Hall) and lease agreement with Patrick and Natalie Carlisle of Newberry Hall. 

May 4, 2021: An email with subject: “recent deal flow notes” details how the developer, referred to as “Weldon” and “D” (for developer) in the narrative, is threatening to back out of the project. 

May 11, 2021:  WTC Investments, LLC (Agent: Ray Massey) reregisters with SC Secretary of State (see attached photo). 

[
Letter continues below]

Screenshot from SC Secretary of State “Business Entities Online.” Click for full-size view.

[Letter continues]

May 14: 2021; WTC Investments, LLC signs PSA Assignment for “Shah Property” with Aiken Chamber of Commerce. 

[
Letter continues below]

“Purchase and Sale Agreement” document. Click to view full size

[Letter continues]

May 17, 2021: AMDC begins an RFP process for a new developer without issuing a legal advertisement for bids. 

June 3, 2021: WTC Investments, LLC signs PSA Assignment for “Shah Property” with Aiken Chamber of Commerce for “Anderson Property.” 

Questions: 

1. Was the assignment scheduled for May 8, 2021, but deferred to May 13, 2021 because WTC Investments, LLC was found to not be registered as a business in South Carolina? 

2. If not, when did the AMDC learn that WTC Investments, LLC was not registered as a business in South Carolina? 

3. Is this the reason there is a gap in documentation from Mr. Jameson between May 5th and May 17th when the Jameson emails obtained via a FOIA request suddenly transition to the unlawful Request for Proposals to find a new developer? Was this information pertaining to the Assignments of properties deliberately withheld in violation of FOIA or was Mr. Jameson not using email during this critical point in time? 

 3a. In regard to the latter RFP issue, the AMDC offered 0.5 acres of Newberry Street, but did not specify the reason. Yet in March 2022 the reason given to justify the ordinance authorizing this privatization of public property was to meet the “height requirement” in the city. 

4. Does the fact that WTC Investments, LLC was not registered at the time of the Shah or Anderson properties PSA render them (the PSAs) void? Or is it legally permissible for an entity obligated under a cost sharing agreement with a city commission to sign a legal PSA without being registered in the state of the business transaction? 

How could the AMDC know that additional acreage was needed to meet a height requirement when there were no existing architectural renderings and the RFP process had just begun? 

I expect you will have to consult with a City Attorney or contract Attorney, but given that Mr. Smith has recused himself and Mr. Pope wrote the Cost Sharing Agreement, will the AMDC have to consult with another legal authority? 

Thank You, 

Don Moniak
Researcher/Writer
Eureka Fire Protection District
Aiken County, SC 

Postscript. August 27,  2022. 

The answer to question number four is no. The fact that WTC Investments, LLC was not registered as a South Carolina Company at the time that GAC, LLC signed an agreement with the AMDC to jointly pursue the Pascalis project does not render void the contracts signed by GAC’s purchasing arm, WTC Investments. 

What this episode illustrates are two trends that characterize Project Pascalis: 

1. The grandiose assurances promulgated by the AMDC have little basis. Forty five days after the first announcement that a “seasoned, experienced developer” was in town to work with the fledgling AMDC, the project fell apart. Nobody was told the seasoned developer had exited, or that the Chamber of Commerce had stepped in to salvage the nearly ten million dollar property deal. 

2. Secrecy is a hallmark of the project. Even though the AMDC had promised “transparency” when it announced the existence of Project Pascalis, it withheld all information about the first project implosion, and instead embarked on another six months of secret negotiations and deal making. 

Why is the City of Aiken Toying with 113 Downtown Jobs?

By Don Moniak

Presently, the City of Aiken is pursuing the repurposing of its historic, recently vacated Municipal Building at 214 Park Avenue, SW into a city-owned conference center. At the same time, Aiken County is pursuing purchasing the same building to use as the new, centralized offices of the Aiken County Solicitor’s Office. There has yet to be a single public meeting or City Council hearing regarding the future of this depression-era, New Deal funded structure. If the City of Aiken stays true to its latest plan, Aiken County taxpayers will be saddled with tens of millions of dollars in additional costs to alleviate the serious overcrowding at the Aiken County Courthouse; downtown Aiken will lose more than 110 jobs; and another historic structure will sit vacant. 

On July 15, 2022, the following question was posed to Aiken County Council Chairman Gary Bunker: 

If the county were to obtain 214 Park Avenue, SW for office space for the solicitor’s office, etc; can you provide an estimate of how many people who might also patronize downtown Aiken businesses would be working there five days a week, fifty two weeks a year?” 

A week later Chairman Bunker responded: 

Dear Don,

I will answer this two different ways.

First, if the Courthouse was moved to a new location, then ~110 current courthouse employees would leave downtown Aiken for the proposed University Parkway location.

Second, if the Solicitor’s office moved to 214 Park Avenue, there would be ~40 personnel shifted to this location. This includes ~25 moving from the courthouse (thereby freeing up space in the courthouse) and ~15 consolidating in from the York Street and University Parkway offices.

On Tuesday, August 16, 2022, the following question was submitted to City of Aiken Mayor Rick Osbon: 

Why is the City of Aiken balking at selling its old Municipal Building to Aiken County when doing so would place more than forty full time county workers in that downtown facility; avoid the loss of 113 county jobs from downtown Aiken and the inevitable associated loss of attorneys’ offices located in close proximity to the Judicial Center, and potentially save Aiken County taxpayers tens of millions of dollars?”

Mayor Osbon has yet to answer or even acknowledge receipt of the letter. 

Background: The County Seat, Downtown Aiken, and the Aiken County Judicial Center 

According to the City of Aiken’s “Master Economic Development Action Plan” (1) developed by the AECOM corporation and approved by Aiken City Council in March, 2021: 

The City of Aiken, located just west of the South Carolina/Georgia Border, is slightly over 21 square miles, and is the county seat of Aiken County. (Page 7). 

Beyond that singular statement, there is no further reference to The City of Aiken’s status as the county seat; and no associated discussion of the economic impact and benefits, past, present, and future, of being the seat of Aiken County government. 

Aiken County has an annual budget of nearly $80 million and employs more than 900 people. Much of that workforce is stationed in and around the City of Aiken, including Sheriff’s Department headquarters, county prison, health department, emergency services,  animal shelter, and the Aiken County Government Building on University Parkway that was completed in 2014.  

Downtown Aiken is home to the Aiken County Courthouse, the main branch of Aiken-Barnwell-Bamberg-Edgefield (ABBE) regional library system, and the county’s historical museum. In 2014, the downtown Parkway District lost the jobs located at the  county administrative building located at 828 Richland Avenue, West when the new University Parkway building opened on the edge of town. 

That same year complaints of overcrowding at the Courthouse began, and Aiken County Council initiated discussions to find alternatives. One of the alternatives then, and now, is a new of judicial center on county-owned land adjacent to the Aiken County Government Building. (2) 

The Aiken County Courthouse was built in 1881 and renovated in the 1980s and is the center of the county’s judicial system (3). More than 110 people work in the historic courthouse, which remains one of the most prominent and iconic buildings in downtown Aiken. An additional micro-economy of attorney’s offices exist around it, further adding economic vibrancy to the downtown. 

The Future of the Old Municipal Building 

To alleviate the overcrowding, Aiken County has negotiated with the City of Aiken to purchase the historic “Municipal Building” at 214 Park Avenue, SW; which functioned as Aiken’s City Hall for over three-quarters of a century. (4) Linda Johnson, President of the Historic Aiken Foundation, describes the building this way: 

This Depression-era brick structure served as Aiken’s municipal building from 1939 until 2022 and once housed Aiken’s Fire Headquarters and Police Barracks. The original doors from which fire engines raced out still front the building on Park Avenue, while remnants of the police station and its ‘calaboose’ stand guard along the Alley.”

Johnson added that this former City Hall was “built on the site of the Aiken Opera house and Aiken’s original fire headquarters which were both destroyed by fire,” and that it was funded by the Roosevelt administration’s New Deal agency the Public Works Administration. 

Newspaper Archive image of October 25, 1939 headline in Aiken Standard (5)

In mid April of this year the City of Aiken completed its consolidation of all city offices into a new, centralized City Hall building at 111 Chesterfield Street, South. According to Aiken City Manager Stuart Bedenbaugh, the cost to buy and renovate the former Henderson Hotel and Regions Bank Building was $13.75 million. But the move left the city as the owner of the empty, two story Municipal Building. 

With the Municipal Building a mere block and half from the Aiken County Courthouse, it is an ideal location to alleviate overcrowding in the county judicial system. So Aiken County has sought to buy the old Municipal Building, and keep it for its original purpose—office space for the most basic and essential government functions, the criminal justice system. 

In this scenario, the building would be occupied by forty five or more full time employees of the Aiken County’s Solicitor’s Office; with its annual budget of $2.7 million per year to prosecute crime, provide assistance to crime victims, conduct pre-trial interventions, operate the drug court, conduct juvenile arbitration, and help recover funds for any recipient of a bad check. Consolidation of the office after years of employees being scattered around the city is also expected to increase the efficiency of office operations. 

The current Second Circuit Solicitor is Bill Weeks, who was first elected in 2020 to oversee prosecutors in Aiken, Bamberg, and Barnwell Counties. According to Bunker, Weeks “thinks internal improvements to make the space suitable will be minimal. Outside of security improvements, and perhaps some shifting of drywall to optimize the office space, it’s almost (but not quite) ready to be occupied ‘as is.” The Municipal Building also houses large conference rooms ideal for legal planning and plea meetings. 

City of Aiken website image of historic Municipal Building

The County Seat Privately Hatches Its Own Plans. 

Unfortunately for the County’s judicial system needs, and county and city taxpayers, a handful of unelected officials in the City of Aiken decided in April of this year to designate the Municipal Building for a new, $15-20 million, publicly owned and privately operated conference center, proposed as part of the $100 million plus demolition and redevelopment endeavor known as Project Pascalis. 

In a story first reported by Aiken Standard reporter Dede Biles on April 14, 2022, Aiken Municipal Development Director (AMDC) Tim O’Briant unilaterally announced the plan to relocate the conference center previously proposed for the Newberry Hall and Warneke Cleaner properties to the old City Hall. He attributed the idea to Aiken Design Review Board (DRB) Chairman McDonald Law, and Biles quoted him saying: 

I’m as giddy as a schoolboy about how this is going to make all of downtown, instead of just The Alley, such an exciting place to hang out, live, work and play. It’s going to be fantastic.’” (5) 

While elected city officials acknowledged the proposal was just that, a proposal and not a done deal, architects working for the AMDC’s chosen developers RPM Development Partners had a set of conceptual design drawings ready for the commission’s first and only Project Pascalis public meetings on April 20, 2022. It looked like a done deal, and no elected officials attended the meetings to offer any words to the contrary. 

The AMDC’s announcement did not follow any public process, it was unilateral and decided through back channels. On March 20, 2022 DRB Chairman Law submitted comments to O’Briant to be forwarded to the Project Pascalis developer’s Design Review Team for the proposed complex of apartments, parking garage, and conference center. The comments were a followup to a March 17th DRB public workshop. The minutes of that public workshop contain no mention of the possibility of using the Municipal Building as a conference center. (6). 

In the email, Law offered the following suggestion: 

“I believe the Plan B option, relocating the Conference Center into the Municipal Building block while freeing up space in the apartment block, should be seriously considered to address some of these concerns with the scale of the new building along a main thoroughfare.”

Law added in a subsequent email: 

“Adding the extra depth by relocating the Conference Center seems to shake loose a lot of things, especially on Richland Ave. where we have the complaints about scale.” (8) 

AMDC Executive Director Tim O’Briant is also the city’s Economic Development Director,  responsible for using “all available resources to assist small business owners and attract investors to the City of Aiken’s downtown.” (9) In the case of the Municipal Building though, O’Briant has not indicated they view Aiken County as a source of investment and jobs. 

A month later, as the project began to experience increased public opposition, Bunker told the Aiken Standard: 

It is still my belief that the details of Project Pascalis are not set in stone at this point, so I think we should continue discussions with the city.” (10) 

The Other, “Not cheap” Judicial Center Options. 

The City’s pursuit of a new conference center at the Municipal Building would likely cost Aiken County tens of millions of dollars. 

A second alternative for Aiken County is to buy and renovate the historic Charles Simon’s Federal Courthouse (11) at 213 Park Avenue, West, also a block and a half from The Courthouse. But this building may not even be available to the county, and at present there are no cost estimates for repurposing it for county judicial functions. While the county’s appraised value ($475,000) for the Simon’s building is similar to that of the Municipal Building ($500,000), the former is not office-ready and would likely require substantial renovations, perhaps similar to the $13.75 million renovation of the Henderson Hotel for a new City Hall. 

A third choice is to buy and renovate the old Farmer’s and Merchants Bank building at the corner of Laurens and Park, almost three blocks from the courthouse. This building is currently leased by Bank of America, which recently announced it will close that branch. Again, there are no cost estimates for renovation, and the county assessor’s appraised value of the property is more than two-thirds ($823,000) greater than the Municipal Building. It, too, would require renovations to convert banking space to judicial office space. 

The final and most expensive alternative is a new County Judicial Center located on University Parkway next to the new County administration complex. The county owns thirty-one acres of property adjacent to its looming headquarters; land purchased in 2011 for $1.1 million to provide for such contingencies. The estimated cost of a new judicial center is $30-40 million depending on size, but this is based on costs from other counties prior to inflationary impacts on building supplies and labor costs. 

According to Bunker, the $30-40 million cost estimates are, “only at a very high ‘parametric’ level. This is because we have data on recent courthouses across South Carolina that were combined to get this +/- 50% type number. At this stage, this is simply to communicate the ‘order of magnitude’ cost. In other words, it will be a lot, and not cheap.” 

Conclusion

If Aiken County moves to a new Judicial Center on University Parkway, at least 113 jobs will be lost from downtown Aiken and the most prominent, historic building in downtown Aiken will be the latest vacant building.

The Clock Tower, Aiken County Courthouse, photo by Gary Dexter.


If the City of Aiken decides it will not sell the Municipal Building to Aiken County, that decision will require Aiken County taxpayers to spend tens of millions of dollars to upgrade judicial departments, probably requiring either a tax increase or budget cuts to other county departments. 

The move would also likely lead to an inevitable exodus of private attorney practices from the downtown area located in close proximity to the courthouse. The impact on downtown businesses of losing the Aiken County Courthouse from downtown Aiken, where it has been since the 1880’s, has not been measured, assessed, or even considered by the City Council, City Manager or his economic development department. 

The potential economic and civic benefits of converting the Municipal Building into a city-owned conference center are highly uncertain. One hospitality study commissioned by the AMDC predicted only five to ten conferences per year of 150 people or more. (12) The remaining business would derive from smaller groups. A second study estimated an annual operating loss of $300,000 for the City of Aiken, and presumed a focus not on conventions and trade shows, but banquets and local events that could be held at smaller venues. (13) 

On the other hand, the certain and clearly-defined benefits of transferring the building to the Aiken County Government—for use as a sorely-needed and cost effective adjunct to the existing Aiken County Courthouse—are obvious, and are reinforced by the principles of common sense, good judgment, and civic virtue. The Solicitor’s Office is an essential branch of government that works to protect the safety of all county residents, and assisting it in its mission should be viewed as a civic responsibility by the Aiken County seat of government, the City of Aiken. 

_________________

References

(1) AECOM Prepared “Strategic Economic Development Master Plan.”
https://aikenmdc.org/wp-content/uploads/2021/10/AikenStrategicEDPlan_FINAL-WEB-PDF.pdf

(2) Aiken Standard. March 1, 2014: “Officials: Judicial Center outgrows usefulness.” . https://www.postandcourier.com/aikenstandard/news/officials-judicial-center-outgrows-usefulness/article_8185597a-f09b-5336-b892-beb6859908fd.html

(3) South Carolina Picture Project: Aiken County Courthouse https://www.scpictureproject.org/aiken-county/aiken-county-courthouse.html

(4) State Historic Register file for 214 Park Avenue, W; The “Municipal Building.” https://webapps.cityofaikensc.gov/historic_resources_survey/hrs_form.aspx?site_no=1484

(5) “Aiken to Dedicate New Municipal Building.” Aiken Standard and Review, October 25, 1939, https://newspaperarchive.com/aiken-standard-and-review-oct-25-1939-p-1/ Accessed August 23, 2022

(6) Aiken Standard. April 14, 2022: New Project Pascalis proposal includes using old Aiken Municipal Building. https://www.postandcourier.com/aikenstandard/news/local-government/new-project-pascalis-proposal-includes-using-old-aiken-municipal-building/article_5cb81eaa-bb6e-11ec-9a00-e3b6fc8c43dd.html

(7) DRB Meeting Minutes. March 17, 2022: https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=2735904&dbid=0&repo=City-of-Aiken-LF

(8) March 20 Email exchange between McDonald Law and Tim O’Briant, cc’ed to Mary Tilton. 

McDonald Law email. Click image to view full size.

(9) City of Aiken 2022 Budget Report. 
https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=624200&dbid=0&repo=City-of-Aiken-LF&cr=1

(10) Aiken Standard. May 8, 2022. “Aiken County Council chairman forms ad hoc committee to look at Judicial Center issues.”
https://www.postandcourier.com/aikenstandard/news/aiken-county-council-chairman-forms-ad-hoc-committee-to-look-at-judicial-center-issues/article_457303c2-d5f9-11ec-8081-db9015f6c65e.html?fbclid=IwAR0LHQ2n5ap31FizSktgjNcd4HJeMjaoxy3v8_LfTbHT23LOq94SeO7OYzI

(11) Statewide Survey of Historic Properties for the Charles Simons Federal Courthouse. https://webapps.cityofaikensc.gov/historic_resources_survey/hrs_form.aspx?site_no=1624

(12) Proposed Conference Center Market Analysis Aiken, Summary of Findings, March 18, 2022. HVS Convention, Sports & Entertainment Facility Consulting. 

(13) AECOM Downtown Aiken Hotel + Conference Center + Municipal Garage Market & Financial Findings. July 12, 2021. 

County property

https://qpublic.schneidercorp.com/Application.aspx?AppID=844&LayerID=15264&PageTypeID=4&PageID=6879&KeyValue=104-07-08-001

The Gary Smith Defense: An Admission, Inconsistencies, and More New Questions Than Answers

by Don Moniak

On August 11, 2022, Clark W. McCants II from the law firm of Nance & McCants submitted the “Answer of Defendant Gary Smith” to the July 5, 2022 lawsuit Blake et al vs. City of Aiken et al. (1) Gary Smith is the City Attorney for Aiken now alleged in three lawsuits to have violated South Carolina state ethics laws by failing to recuse himself from a probable conflict of interest involving city business.  The Smith defense is marked by an assertion of an “innocent” mistake;  inconsistencies regarding past legal advice to City boards and commissions; and raises the new issue of lack of legal oversight. 

Three separate lawsuits filed since May 10, 2022, allege that Aiken City Attorney Gary Smith violated conflict-of-interest rules defined by South Carolina’s ethics laws by failing to recuse himself from proceedings involving the City of Aiken’s Project Pascalis. The primary basis for the contentions are that Mr. Smith’s law partner Ray Massey is an investor in, and represents, the project’s developer RPM Development Partners, LLC. Massey is also an investor in, and represents, Aiken Alley Holdings, LLC that is also heavily involved in the project. 

All three lawsuits focus heavily on the March 28, 2022 Aiken City Council meeting, when the first public hearing on the Newberry Street privatization ordinance was held. At issue in the litigation is Smith’s presence at this hearing as the City’s Attorney. The first two lawsuits were filed by Aiken area residents Drew Johnson (May 10, 2022) and Kelly Cornelius (May 21, 2022), both of whom are acting in a “pro-se” capacity without an attorney. 

In the response to the pro-se Johnson and Cornelius lawsuits, the firm of Nance & McCants only argued for dismissal on the basis of jurisdictional grounds, and did not offer any other defense such as denying the allegations. In response to Blake et al vs. City of Aiken lawsuit filed by three prominent South Carolina lawyers representing nine plaintiffs, Nance & McCants offered a more vigorous defense to the same basic contentions that includes both denials and one interesting admission. 

The Assertion of an Innocent Mistake

In regard to ethical conflict of interest allegations, Blake et al states: 

Gary Smith, the City Attorney, participated in numerous meetings dealing with, and gave advice and numerous opinions regarding, matters related to Project Pascalis and matters related thereto after his law partner, Ray Massey, became and was an interested party in or before March 2021 by acquiring interests in Pascalis Project property and by representing WTC and RPM, and even though Mary Guynn, his law partner, owns a building on the Pascalis block and may represent other owners, investors and/or tenants in the Pascalis block.” (Paragraph 187) 

This specific allegation was denied by in the McCants defense of Gary Smith: 

“This Defendant denies the allegations set forth in Paragraph 187 and its subparagraphs, insofar as they may pertain to him.” (Paragraph 78). 

However, Smith’s attorneys had already answered the question differently, admitting that Smith was at one of the meetings and that if he did offer advice, it was an innocent mistake. Even though Smith was not mentioned in Paragraph 165 of Blake et al, July the defense responded: 

With respect to the allegations set forth in Paragraph 165 of the Complaint this Defendant admits that he was present at the meeting of City Council held on March 28, 2022, but denies that he provided any specific legal advice to City Council regarding the Project given the fact that he believes that Mr. (Ray) Massey did possess an economic interest in the Project; this Defendant further states that if he did provide any such advice, such advice was offered innocently and by mistake, and without any intent on his part to create and / or violate any conflict of interest he may have had in his role as serving as the attorney for the City of Aiken. This Defendant further admits that members of the public spoke at the meeting of City Council on March 28, 2022 and voiced their concerns and objections regarding the Project which, upon information and belief, are set forth in the minutes of that meeting.” (Paragraph 74) 

This contention is one of seven in the Smith defense containing citations of “meeting minutes” as future evidence. While the minutes are a good reference, the City of Aiken’s meeting minutes are not verbatim transcripts of official meetings. The City does, however, record City Council meetings, which provide audio/video evidence of proceedings as well as the opportunity for a verbatim transcript. There are no references to “videos” or “video transcripts” in the Smith defense. 

Anybody can observe the You Tube recording of the March 28 meeting (2) where Gary Smith acted in his customary role as City Council’s Parliamentarian and provided legal counsel, as his job responsibilities require. If the lawsuit proceeds to a discovery and trial phase, it will be transcripts, and not minutes, that will provide definitive, reviewable evidence to determine how innocent a mistake it was to openly advance the ordinance after it was questioned by City Council member Ed Woltz. 

Attorney Gary Smith in the March 28, 2022 City Council meeting, (screenshot from YouTube video)

More Inconsistencies

The Smith defense contains more inconsistencies, particularly in regard to his representation, or lack thereof, of the Aiken Municipal Development Commission (AMDC).

First, the Smith defense claims that he was uninvolved with the AMDC after June 20, 2020: 

“With respect to the allegations set forth in Paragraph 108 of the Complaint this Defendant did not provide legal counseling to the AMDC after June 2020“ (Paragraph 57) 

But while the defense references “meeting minutes” seven times, they failed to heed the meeting minutes from the AMDC’s August 20, 2020 public meeting which reported that the City Attorney was consulted by then AMDC Chairman Tim Dangerfield: 

Mr. Dangerfield pointed out that he had talked to the City Attorney about the concern at the last meeting regarding voting. He pointed out there are nine members; one member was absent at the last meeting; one member recused himself, and three members abstained from voting. He noted that Gary Smith, City Attorney. had stated that four members was the number needed to vote on a matter at the last meeting. Because three members abstained, they counted as being present.” (3) 

Click image above to view full-size

Second, the Smith defense claims he was uninvolved with any part of Project Pascalis after learning that his partner, Ray Massey, had an economic interest in the Project. The defense never defines when that knowledge was obtained, nor when Smith actually recused himself, a trend typified in Paragraph 55: 

“This Defendant denies, however, that he served as counsel for AMDC, or he counseled the City of Aiken beyond a point in time when he became aware that Mr. (Ray) Massey possessed an economic interest in any business entities involved in the Project.”

As reported in “The Pascalis Attorneys,” (4) at least two partners in the law firm of Smith, Massey, Brodie, Guynn, and Mayes were directly involved in property acquisition efforts on behalf of WTC Investments, LLC (5). Ray Massey also held recently obtained property within the project area, and stayed involved with recruiting a new developer after Weldon Wyatt’s development firm GAC, LLC withdrew from the project in May, 2021. During this recruitment process concerns were raised about Gary Smith being present at meetings with developers. 

Click image above to view full-size

The Inconsistency of City Attorney Oversight and Responsibility

Equally concerning to the inconsistencies in the defense regarding conflict of interest allegations are references to a lack of legal oversight by the City Attorney. In Paragraph 35, the defense sets this tone by stating: 

this Defendant denies that he has repeatedly advised the City of Aiken, the AMDC and the DRB with respect to the redevelopment projects and matters that the Plaintiffs allege are the subject of this civil action.”

The defense also states nine times the: 

Defendant’s belief the AMDC did not violate such applicable law in carrying out its duties and responsibilities.” 

These contradictory statements raise two key questions and associated issues: 

  1. If Gary Smith was not advising the City during the redevelopment efforts, (see Transparency index, below) who was? The Design Review Board did not hire Attorney Jim Holley until April 28, 2022; and the AMDC did not have a written agreement with Attorney Gary Pope, Jr. until October 10, 2021. City Attorney Gary Smith was the only person in a position to review city business and render legal counsel during a period of time when the AMDC conducted nearly two-thirds of its meetings in closed-door executive session (6), negotiated $9.5 million worth of property purchases without conducting a single appraisal, and pursued a replacement developer after the first one exited the project. 
  2. If Gary Smith was not advising the City during redevelopment efforts, how did he arrive at the belief that no applicable laws were violated by the AMDC or any other branch of city government? 
Project Pascalis Transparency Index
Click image above to view full size

____________________

References: 

(1) The Answer of Defendant Gary Smith may be read at: https://publicindex.sccourts.org/Aiken/PublicIndex/PIImageDisplay.aspx?ctagency=02002&doctype=D&docid=1660244567099-308&HKey=8384536975737184101707480801116511710174796512212110586111120718067105115721027067804810771120818581

Following is information pertaining to the three lawsuits, from Footnote 1 of “The Pascalis Attorneys,” https://aikenchronicles.com/2022/08/13/the-pascalis-attorneys/

Aiken City Attorney Gary Smith has been named in three lawsuits this year alleging violations of South Carolina State Ethics Laws  in relation to his partnership with Project Pascalis investor and developer Ray Massey, who is also the listed agent for RPM Development Partners, LLC. 

a. On May 9, 2021 Kelly Cornelius filed a civil appeal complaint against Aiken City Council in the Court of Common Pleas alleging conflict of interest involving City Attorney Gary Smith for failing to recuse himself during the March 28, 2021 Aiken City Council hearing regarding the partial privatization of Newberry Street as an integral part of Project Pascalis. https://publicindex.sccourts.org/Aiken/PublicIndex/PIImageDisplay.aspx?ctagency=02002&doctype=C&docid=355397&HKey=571108168697967115105821168212047785082505287679788897473511088249111659775105112528648556910581

In response, City of Aiken attorneys from the law firm of Nance and McCant’s filed a motion to dismiss, claiming the suit was filed in the wrong jurisdiction. No denials of conflict of interest allegations were made. https://publicindex.sccourts.org/Aiken/PublicIndex/PIImageDisplay.aspx?ctagency=02002&doctype=D&docid=1654010154581-647&HKey=8710510389103655512210111680117106977371767356121119527311711584667012112148691047310187867649678011565

b. On May 10, 2022, John “Drew” Johnson filed a civil appeal complaint against Aiken City Council, Mayor Rick Osbon, City Attorney Gary Smith, and City Manager Stuart Bedenbaugh, in the Court of Common Pleas. Johnson also alleged a conflict of interest involving City Attorney Gary Smith for failing to recuse himself during the March 28, 2021 Aiken City Council hearing regarding the partial privatization of Newberry Street as an integral part of Project Pascalis. 

The same response from the same legal firm was made in Cornelius vs Aiken City Council. Again, City of Aiken attorneys did not dispute the allegation, and sought to have the case dismissed on jurisdictional grounds. https://publicindex.sccourts.org/Aiken/PublicIndex/PIImageDisplay.aspx?ctagency=02002&doctype=D&docid=1654010197155-602&HKey=109102721011208011566114991224366110521191141187886505011767836648741021075285987051515281851086984115

c. On July 5, 2022. David W. Blake, Luis E. Rinaldini, Dudley Richard Dewar, Jenne Stoker, Beatrice B. McGhee, Gail King, Historic Aiken Foundation, Inc., Green Boundary Foundation, and the South Carolina Public Interest Foundation, filed a lawsuit in the Court of Common Pleas, Second Judicial Circuit of South Carolina, against the City of Aiken. The lawsuit named twenty-eight defendants ranging from Aiken Mayor Rick Osbon to RPM Developers,LLC. One of the defendants was Gary Smith. https://publicindex.sccourts.org/Aiken/PublicIndex/PIImageDisplay.aspx?ctagency=02002&doctype=D&docid=1657032061451-750&HKey=1225510198105101819811411111368116736686988811779851011126650118568710782105981141011085499115100111699969

(2) The You Tube video for the meeting is at: https://archive.org/details/coasc-City_Council_Meeting_March_28_2022

(3) AMDC Agenda for September. , 2020 containing Meeting Minutes for August 20, 2020 AMDC meeting. 

(4) “The Pascalis Attorneys.” https://aikenchronicles.com/2022/08/13/the-pascalis-attorneys/

(5) Just as the “RPM” in RPM Development Partners stand for Raines, Purser, and Massey, the “WTC” in WTC Investments is believed to stand for Weldon, Tom, and Chip. 

Weldon Wyatt is a well-known local investor and developer; his son Tom Wyatt is often cited as the “manager” of this and other WTC firms, and Thomas “Chip” Goforth represents more than a dozen other related WTC entities and was the primary contact for WTC Investments, LLC during the first phase of Project Pascalis. Ray Massey was the registered agent for WTC Investments, LLC when the firm assigned its purchase and sale agreements for Project Pascalis properties to the Aiken Chamber of Commerce. 

Likewise, the “CTR” in CTR, LLC is believed to stand for Craig (Heath), Todd (Gaul), and Ray (Massey).  The K in CTRK, LLC, which is the firm that developed the upscale 419 Hayne Avenue AirBandB,  is believed to stand for Kevin (Kisner). https://www.postandcourier.com/aikenstandard/news/419hayne-the-site-of-new-luxury-suites-in-downtown-aiken/article_8c32b558-024f-5390-94dd-8a3af245a201.html

(6) Project Pascalis Transparency Index.