The Shifting Status of Project Pascalis: per The Defendants

by Don Moniak

October 24, 2022

Defendants in three lawsuits regarding Project Pascalis have offered multiple versions of the current project status in the past month, suggesting the project is in another transition phase between developers. Since September 14, 2022, the following statements have been made, in their order: 

• “Developer is forced to hereby exercise its rights to terminate the Agreement,” but “would like to continue to participate in the ongoing development of this project.” (Attorney James Myrick for RPM) 
• “Amend that motion now to say that we declare the existing contract null and void and we propose to cancel the redevelopment plan.” (AMDC)
• “The AMDC is terminating all planning work with the current developer and hopefully plans to restart the planning process.” (Keith Wood) 
• “This process is still ongoing.” (Tim O’Briant)
• “This redevelopment plan is currently on hold.” (Stuart Bedenbaugh)
• “Because the Developer also purported to cancel the project.” (Attorneys for Chris Verenes) 
• “Project Pascalis has been terminated“ (Proposed Aiken City Council Ordinance). 

Since May 9, 2022 three lawsuits have been filed against the City of Aiken for all or parts of Project Pascalis. (1) The city is being represented in the first two lawsuits by the local firm of Nance and McCants. At the present time, there are fourteen lawyers from eight different firms (2) representing twenty-eight different defendants in the more expansive Blake et al vs City of Aiken et al lawsuit filed on July 5, 2022.  WIth so many lawyers defending so many people and organizations, it should come as no surprise that the defendants are sending mixed messages regarding the status of Project Pascalis and seven properties owned by the Aiken Municipal Development Commission (AMDC) .

On October 19, 2022, attorneys for Aiken Municipal Development Commission (AMDC) Vice Chairman Chris Verenes joined the Blake et al proceedings and filed a Motion to Dismiss Mr. Verenes as an individual and only hold the commission as the defendant. (City of Aiken counsel Daniel Plyler argued the same for City Council, that the city should be the defendant, not the individual council members.) 

Notable in the Verenes filing is an argument that the case is now moot because: 

“At its last meeting, the Commission passed a resolution to (a) stop the redevelopment project commonly known as Project Pascalis, (b) declare the purported existing contract with Defendant RPM Development Partners, LLC dated December 3, 2021, null and void, and (c) cancel the Redevelopment Plan One for Downtown Aiken, dated July 10, 2020. (See Exhibit 2, Commission Minutes (September 29, 2022).” 

The first problem with this statement is two-fold. First, the September 29th meeting minutes cited are an unapproved draft, since the commission has not met since the 29th to approve its minutes. Second, the draft minutes are inaccurate, even misidentifying who made and who seconded the motion. An actual transcript of the meeting from a video taken by a watchful citizen, reads: 

Keith Wood: There is a continued motion uh that was uh continued from the last meeting that has been discussed. Uh, that motion says that we will stop project pascalis and declare the purported existing contract null and void with RPM and we propose to either amend or cancel the redevelopment plan.”

Is there a motion to move?

Commissioner Philip Merry:  Yes sir Mr. Chairman, I would like to amend further amend that motion um to now say that we declare the existing contract null and void and we propose to cancel the redevelopment plan. 

Commissioner Douglas Slaughter:  Second.

In the final, amended motion, the word “purported” was removed; the cancellation of the unnamed redevelopment plan was “proposed” and not final; and because the final oral motion not repeated for clarity and is not in writing, it is unclear whether the motion actually contains the phrase “Stop Project Pascalis.”

The second problem with the Verenes motion is it adds to the inconsistency of other statements put forth by various defendants; beginning with the developer’s termination of the Purchase and Sale Agreement for the seven AMDC-owned Project Pascalis properties.

The Developers Position 

On September 14, 2022, one day before the deadline to recoup its earnest money, RPM Development Partner attorney James Myrick wrote in a letter to the AMDC:

“Developer is forced to hereby exercise its rights to terminate the Agreement and to require reimbursement of Developer’s costs and expenses by the Commission.” 

But in his final paragraph, Myrick left open the possibility of an RPM return: 

“We have appreciated the opportunity to work with the Commission and the City of Aiken and would like to continue to participate in the ongoing development of this project. We believe that our experience and expertise can be valuable to the Aiken community, and we look forward to responding to any new revised project proposal from the Commission when the time comes and hopefully working with you to advance the revised project.” 

The developer’s attorneys further used this letter of termination to argue in a September 30th Motion to Dismiss RPM and Raines that “Defendant RPM Development Partners, LLC terminated its contract with the City of Aiken relating to Project Pascalis.”

The Chairman’s Position

On September 29th, AMDC Chair Keith Wood wrote in an individual statement that “the AMDC voted to stop Project Pascalis, declare the existing contract with the developer null and void, and cancelled the Redevelopment Plan,” a plan that is not the commission’s to cancel. (3) The statement was written before the amended motion was approved.

Wood also added the AMDC “hopefully plans to restart the procurement process.” 

The Economic Development Director’s Position 

Although Wood declared fealty to South Carolina’s Community Development Law (SC 31 Chapter 10), that commitment quickly waivered into noncompliance in terms of Part 160(a) of the law: “The books and records of a commission are at all times open and subject to inspection by the public.”

On October 6,  inspections of all AMDC books and records were denied by Aiken Economic Development Director Tim O’Briant barring a Judge’s order. O’Briant confirmed (4) the following position pertaining to procurement information and cancelled Purchase and Sale Agreement with RPM Development Partners, LLC: 

“The AMDC will not release any information pertaining to any agreements between the AMDC and RPM Development Partners until a deed is executed–even though there is no existing contracts and no proposed sale. The position of the city is that this process is ongoing and therefore FOIA exemptions #5 and #9 still apply. Even though there is no redevelopment plan, solicitations may still occur and release of information would provide competitive information to bidders.”

The City Manager’s Position 

In an October 13, 2022 Addidavit submitted to the Second Judicial Circuit of South Carolina in response to the Johnson and Cornelius lawsuits—but lacking any associated motion—City Manager Stuart Bedenbaugh stated the redevelopment plan (still unnamed) is “on hold” and that only “key portions” of the the project were rescinded. 

Aiken City Council’s Position

On Monday, October 24th Aiken City Council will hold the first reading of an ordinance repealing the Newberry Street privatization ordinance passed on May 9, 2022 which describes Project Pascalis as “terminated.” 

No clarification has been forthcoming from city officials who seem more eager to escape from expensive, damaging, and effective litigation than to put forth a unified and consistent message, and also comply with anti-corruption laws governing access to records, conflicts of interest, and fair, competitive procurement of services. 

Instead, the developer has indicated a strong willingness to return; the AMDC chair has stated a preference to move forward with another procurement process; the city’s Economic Development Director claimed the process is ongoing; the City Manager wrote the plan is on hold; City Council has only acknowledged that the contract, and not the project, is terminated; and now the AMDC Co-Chair has separate legal counsel from that being provided by the AMDC. 

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Footnotes 

(1) Three lawsuits have been filed: 

a. On May 9, 2022 Kelly Cornelius filed a civil appeal complaint against Aiken City Council in the Court of Common Pleas alleging public notification violations and state ethics law violations by City Attorney Gary Smith for failing to recuse himself during the March 28, 2022 Aiken City Council hearing for an ordinance to privatize a portion of Newberry Street.

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. 

b. On May 9, 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, 2022 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 as Cornelius vs Aiken City Council was made. Again, City of Aiken attorneys did not dispute the allegation, and sought to have the case dismissed on jurisdictional grounds. 

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. 

(2) The following firms and attorneys are representing various city officials and bodies in the Blake et al vs City of Aiken et al lawsuit, in order of appearance

Firm; and Location	Atttorney	Clients
Nance and McCants; Aiken	Clark McCants III, Clark McCants IV	Aiken City Attorney Gary Smith
Smith-Robinson, Columbia	Daniel Plyler, Rachel Lee	City of Aiken, Mayor Rick Osbon, and City Council members
Lindemann and Davis; Columbia	Andrew Lindemann	Design Review Board (DRB) and seven DRB members
James Holley; Landrum	James Holly	DRB and members
David Morrison	David Morrison	AMDC and commissioners
Davidson, Wren, and Demasters; Columbia.	Michael Wren	Tim O’Briant
Womble Bond and Dickinson; Charleston	Charles J. Baker, Molly McDermid, James Myrick	RPM Development Partners, LLC; and Raines Company
Nelson Mullins of Columbia	Dwight Drake, Matt Abee, and Madison Guyton	Chris Verenes, in his capacity as Vice Chairman and a member of the AMDC

Additional court filings submitted to date include the following:

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

(3) After the motion was passed, Chairman Wood was asked which redevelopment plan was referred to in the motion to cancel. The reply was “Redevelopment Plan One” a plan that itself is alleged to be illegal in the Blake et al vs City of Aiken et al lawsuit.

Unlike Project Pascalis, “Redevelopment Plan One” does not identify any properties for demolition and proposes only to renovate Hotel Aiken;
does not privatize a portion of Newberry Street; and does not require relocating existing businesses.

The state’s Community Development Law also requires redevelopment plans to undergo a public hearing by the commission and subsequent approval by the commission’s governing body—in this case Aiken City Council. The AMDC failed to hold a public hearing, and Aiken City Council adopted Redevelopment Plan One via a resolution and not through a publicly noticed ordinance reading.

Since Redevelopment Plan One was not approved in compliance with SC Community Development Law, and Aiken City Council only needs to undergo the formality of rescinding its resolution to approve the noncompliant document.

(4) The entire email from Tim O’Briant confirming various city positions: