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:
- A major lawsuit featuring nine plaintiffs and twenty-seven defendants was filed on July 5, 2022 seeking an injunction to halt the project.
- 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.
- 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.
- 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
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 Council | Motion/Protection from Discovery | 8/22/2022-09:50 |
| Mayor and City Council | Exhibit B: Discovery Documents | |
| Blake, David W. | Service/Acceptance Of Service on Raines Company | 08/17/2022-08:19 |
| City Of Aiken | Answer/Answer | 08/15/2022-22:45 |
| City Of Aiken | Motion/Dismiss | 08/15/2022-22:23 |
| Smith, Gary | Answer/Answer | 08/11/2022-14:54 |
| Blake, David W. | Service/Acceptance Of Service on Rpm Development Partners, LLC | 08/08/2022-14:41 |
| Blake, David W. | Service/Acceptance Of Service on Aiken Design Review Board | 07/28/2022-09:02 |
| Smith, Gary | Service/Acceptance Of Service on Gary Smith | 07/12/2022-14:53 |
| Blake, David W. | Summons & Complaint | 07/05/2022-10:24 |
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:
- “Notice of Motion and Motion to Dismiss Defendants Osbon, Brohl, Diggs, Girardeau, Gregory, Price, and Woltz.”
- “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.
RIGHT: Photo of the same tree, August 2022, representative, perhaps, of the level of upkeep exercised by the Aiken Municipal Development Corporation (AMDC), the landlord of this property. (Photo courtesy of Jacob Ellis)
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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
Excellent work, sir, thank you.
This timeline reveals many wins for informed and passionate citizens and many embarrassments for officials and their/our highly paid counsel. Well done Don Moniak you have slanted this David vs Goliath battle so far in favor of David with your work that Goliath has not only left he field he asked for a protective order. Since July 5th it appears the score is Citizens 12 , The City 1
They get a point for raising FOIA fees that could be better spent on Maker’s Mark and they might get on the board again if they allow the election commission to be as vacant as the hotel. Otherwise Citizens are running away with this very important battle for the very heart of downtown Aiken. Thank you Don!
You also left off one of the most important documents in that timeline your August 13th
The Pascalis Attorneys which I think you should have titled It’s Over! I see no way they could explain or recover from what you exposed in that article. No wheelbarrow full of denial, No drive thru jab center full of Immunity, no army of Alter Egos could explain away what they did, what they knew and when they knew it. You exposed all of that. You are a force Don Moniak and Aiken is lucky to have you.