Monthly Archives: June 2023

City Government

“Order of City Council Agenda”

Leave a comment

Aiken City Council to Discuss Amending Ordinance to Scale Back on Citizen Feedback

On September 12, 2022, Aiken City Council began complying with twentieth century city ordinance governing citizen input on any subject related to City operations and policy. Section 2.64(a)(4) of city code, Order of Business, mandates two agenda items dedicated “non-agenda items from the public.”

These “open mic” sessions allow anybody to speak up for to three minutes on any topic not being covered in the regular meeting, with a cap of 30 minutes on the first session. The second comment period contains no restriction on total time, which does appear to be an oversight that can considerably lengthen meeting time.

Overnight, Council meetings progressed from a prohibitive process requiring advanced request to speak, to one of the most inclusive and open policies in the state, as probably intended by the Ordinance.

Agenda Item #3 on Aiken City Council’s work session agenda for June 12, 2023 is innocuously titled, “Order of City Council Agenda.” The information pertaining to agenda item the on page 359 within a 366-page work session agenda packet. The packet is dominated the updated draft Comprehensive Plan.

“Order of City Council Agenda” actually involves a Council discussion on reducing citizen particpation and input rules at Council meetings. Work Sessions rarely involve public comments or questions, only staff and council are heard and citizens are spectators. Ironically, the topic of reduced participation is addressed following 54 pages of citizen comments on the Comprehensive Plan.

The subject in the supporting memo from the City Manager’s office is slightly more specific: “Discussion of Proposed City Council Agenda Amendment.” The memo (1) states, in part,

“Staff reviewed other municipalities’ council agendas and consulted with the Municipal Association of South Carolina. Many municipalities require citizens to sign in or notify the clerk in advance.

Staff seeks Council direction with their preference on their preferred order of business of City Council agenda. Council can consider changes to other elements of the Order of business as well. Should Council wish to amend the Order of business portion of the City Code, an ordinance will be presented at a future Council meeting.”

A chart showing a listing of municipalities with more restrictive public comment periods is also provided in the packet. The chart’s accuracy is questionable, as three municipalities identified as having zero public comments periods do have mandatory comment periods within their respective city codes. The chart also fails to identify time limits for speakers. This discrepancy has been reported to the City Manager’s office.

The chart shows that many other cities have onerous requirements ranging from advanced notice by writing to pre-meeting signups, to approval to speak. For example, Anderson, SC has the draconian rule that “In the meetings of the city council, no person other than regular officers and councilmembers shall take part in the deliberations except by special invitation from the council.” 

Fortunately, neither Aiken County, North Augusta, nor Aiken have such requirements that inhibit public feedback to elected officials.

June 12, 2023 Aiken City Council Work Session Agenda

Citizen Participation and Input Since September 12, 2022

At its September 12, 2022, public meeting, Aiken City Council policy on public comment periods converged with Aiken City ordinance governing public meetings. This change was reported in Aiken City Council Reimplements Citizen Input Rules, which also contains a letter to Council describing the city’s long history of citizen input periods on any city-related issues.

At issue is the ability of local residents to address City Council on any city-related topics—and which often overlap with county issues. Prior to compliance with city code that trumps city policy, requests had to be made in advance to speak and there were no “open mic” opportunities.

That all changed on September 12th after Council was notified it was not complying with its own ordinance. The notifications were immediately acknowledged and compliance with city code began.

The first “public comment on non agenda items” meeting predictably started off a little rough. The first person to speak during the new comment period, Aviation Commission member Doug Cusick, was abruptly cut off without warning at the three minute mark of his comments. Over time, speakers were given 30 second notice of the upcoming cutoff time.

During the second public comment period, Aiken resident McKenzie Morris complimented Council for the change and the opportunity to publicly raise concerns, stating in part that “since this is where I have chosen to live, I just think it’s a really cool thing to do.”

In a foreshadowing of tonite’s work session, Mayor Osbon followed Mr. Morris’ comments by stating:

“I am thinking we may merge them and just make a 4.5 out of them and just have one put on (the agenda). (Aiken City Council Meeting, September 12, 2022, 1:15:25 ).

After Mayor Osbon was reminded that a change to the city ordinance would be necessary, he acknowledged that reality and the issue did not go any further, until now.

Since open mic sessions began on September 12, 2022, numerous innovative proposals have been offered, several positive changes have occurred, and numerous questions have been posed and answered on the record.

The proposals have included improving the unsafe intersection at Laurens Street and Hampton Avenue, addressing nuisance properties in the ‘donut holes’ interface between county and city, repealing the obsolete ban on tattoo studios, and addressing the chronic roadside litter problem by establishing an ordinance requiring all restaurants with take-out service to have a single outside trash barrel.

The positive changes include a Council commitment to keep all neighborhood parks open, rescinding of the $2 youth fee to “play a game,” fixing deep potholes on North Union Street, cleaning up an unkempt city property, and creating more user friendly digital files of Council agendas and information packets.

Council has also had to hear some difficult issues, like the matter of the sale of the Mattie Hall property, concerns about Project Pascalis, Northside neglect, and the controversial Demo 200 program.

No reason is identified for the discussion on changes that clearly favor downgrading citizen access to elected officials. It is unclear whether the issue is time or a desire to reduce on-the-record feedback from constituents.

Citizen Participation in Other Municipalities

From Page 357 of City Council Work Session Agenda.

Documents for the “Order of City Council agenda” includes a table (above) showing requirements for citizen comments in other municipalities.

Four of the twenty listings—Greer, Florence, Anderson, and Bluffton— indicate an absence of comment periods on non agenda items. A review of the actual city ordinances (2) for those public bodies tells a different story.

Anderson, SC does have the most draconian ordinance, restricting discussion to only Council and staff.

But Greer, Bluffton, and Florence city codes (2) all contain provisions for public comments on non agenda items; with the only caveat being advanced notice. Florence allows for up to five minutes of comments per person. Another municipality allowing five minutes but not included in the chart is Georgetown, SC.

Aiken County Council is also listed in the chart. The county does allow only has one comment period at the end of meetings, but there is no sign-up requirement. As noted in Aiken City Council , discussions on concrete issues like road conditions, property damage, and public facilities can run well past the three minute mark, and the Council Chair makes followup assignments.

The City of Aiken can choose to maintain the spirit of openness codified in the 20th century, alongside fellow open communities like Myrtle Beach and Summerville, or it can seek to regress to a system that is more prohibitive and onerous.

Any proposed changes will require two Readings of Public Hearings in which citizens are allowed five minutes to address the proposed changes. There are likely to be changes.

Aiken Resident Bill McGhee speaking during open mic about Demo 200.



Footnotes

(1) Memorandum regarding public comment periods

(2) Public Comment Rules on Nonagenda and/or agenda items for munipalities City of Aiken reported as having no such public comment periods.

Anderson SC

Section 2-73 identifies “communications, petitions, and complaints” as Agenda Item #5.

Section 2-73 states “In the meetings of the city council, no person other than regular officers and council members shall take part in the deliberations except by special invitation from the council.”

This means that citizen complaints cannot be heard in person.

Bluffton, SC

Section 2-46(a). There shall be on the Agenda of every meeting a time designated for Public Comment. Upon request, any citizen is entitled to address the Council at a regular meeting on matters pertaining to the Town. Council may regulate or cease public comment with reasonable rules and regulations pertaining to public comment and proper protocol.

Florence, SC ,

Section 2-24(h) Appearance of citizens. Any citizen of the municipality may speak at a regular meeting on a matter pertaining to municipal services and operation, except personnel matters. Citizens desiring to speak must notify the city manager in writing prior to the beginning of the meeting stating the subject and purpose for speaking. Each person who gives notice may speak at a time designated by the presiding officer and may be limited to a five (5) minute presentation at the discretion of the presiding officer.

Greer, South Carolina

SECTION 2-42 Public forum. (a) During a period of 30 minutes at the beginning of each city council meeting, referred to as a public forum, the presiding officer may recognize citizens of the city or others who have standing in the city, such as business owners, who wish to address council on matters pertaining to items on that meeting’s agenda.

(b.) Petitioner. Any citizen of the city or others who have standing in the city shall be entitled to an appearance before council at any regular meeting concerning any municipal matter, with the exception of personnel matters. Persons desiring to speak must notify the municipal clerk six days prior to the beginning of the meeting to be placed on the meeting agenda. Petitioners must provide their name, address, and topic to be addressed.

City Government, Development Issues, Editorials, June 2023, Planning & Development

“The Zoning Has Been In Place Forever”

4 Comments

Parker’s Kitchen at Stratford and Whiskey – if approved would be more broken zoning promises

“The zoning has been in place forever.” That is what Aiken City Attorney Gary Smith told the Aiken City Council on the evening of Sept 28th, 2020 before Council approved a car wash on a parcel that was zoned to exclude car washes. Other conditions prohibited on that zoning included no 24 hour businesses, no fuel sales and no fast food restaurants among other things most people wouldn’t appreciate in their backyard.

Enter Parker’s Kitchen, a 24 hour fuel sales/ fast food joint, now applying for approval on that same parcel. The heavily opposed proposal is on this Monday night’s City Council agenda.

Stratford Drive off of Whiskey serves as the single entrance into the three subdivisions. In 2003 when the Springstone Villas portion was approved as the most recent of those subdivisions, it was done as a rezoning and the commercial portion of that rezoning had restrictions/conditions placed on it for future development.

The LuLu’s Experience

In 2020, despite hundreds of signatures on a petition protesting the LuLu’s car wash proposal; despite zoning conditions on the books since 2003 that included NO CAR WASHES, despite a lengthy and passionate public comment period without a single area citizen in support of the proposal, City Council nonetheless approved the request by a 5-2 vote to put a car wash on a parcel with zoning conditions prohibiting a car wash. Councilwoman Diggs and Councilwoman Price were the two dissenting votes.

The same level of resistance and lack of support characterize the debate over the Parker’s Kitchen at Stratford and Whiskey Road proposal.

To add further insult to the LuLu’s approval, Council members Kay Brohl, Andrea Gregory, and Ed Woltz blamed citizens for not knowing what the zoning conditions were when they purchased their homes. The citizens did know. The zoning was Planned Commercial with zoning conditions that included no car washes, as seen below.

Click to enlarge

The record also shows that Council Members Kay Brohl and Ed Woltz both voted to approve these conditions in 2003, when they were on the Planning Commissioners and Ed Woltz was the Chairman. The minutes from that meeting are here.

After the PC’s recommendation was forwarded to Council, Councilwoman Lessie Price seconded the motion to approve those 2003 conditions. City Attorney Smith signed the 2003 rezoning ordinance above with the conditions included.

So that’s a total of four City officials still in power today who either voted or signed the ordinance to approve those 2003 conditions, and who are now charged with hearing the Parker’s Kitchen proposal.

Former councilman Don Sprawls, who is the current real estate representative for the parcel, also voted to approve. So that’s five people involved today who were instrumental in approving the 2003 conditions.

The Parker’s Kitchen and LuLu’s Overlap.

At present, a portion of the LuLu’s parcel is for sale and under contract by Parker’s Kitchen, a 24 hour fuel sale business. What are the other exclusions on those 2003 zoning conditions? They are fuel sales, 24-hour businesses of any kind, and fast food restaurants — all of which fit the description of Parker’s Kitchen.

At the first city council meeting on Parker’s Kitchen, April 24th, 2023 meeting , Councilwoman Price was the only official who seemed to remember those conditions as she made the motion to continue the hearing until a later date.

To be clear, City Council has the power to vote to change the zoning on a parcel; and, as we learned after a 2020 appeal on the Lulu’s decision, City Council can apparently also blatantly ignore conditions on a zoning parcel. City Attorney Gary Smith and former-planning staff member,(now planning director) Marya Moultrie paved the way for Council’s 2020 vote to approve Lulu’s, assuring Council that those conditions did not exist. A similar path has been paved for Parker’s.

City attorney Smith told the council that same night in 2020 that the Planned Commercial (PC) zoning had been in place forever. He stated the concept plan for the parcel had expired, and then, in the same meeting, he told them that the Lulu’s application was to amend a concept plan.

Which is it? The 2003 zoning conditions on the parcel were clear. The concept plan may have expired, but the zoning conditions did not.

As the video below highlights. Mr. Smith, Ms. Moultrie and five council members ignored citizen’s input, ignored the zoning conditions, and then had the audacity to lecture residents for not knowing the zoning conditions when they purchased their homes.

So City Council was led to believe by Planning Commission Staff and City Attorney Gary Smith that they were approving a concept plan on a parcel that had PC zoning without conditions.

The City of Aiken got away with approving Lulu’s, and a Circuit Court Judge ruled in their favor on an appeal. But that was pre-Pascalis lawsuits, pre-Silver Bluff grocery store lawsuit, pre-flurry of ethics complaints, pre-Labscalis.

Back in 2020, only those affected by Lulu’s were paying attention. Up until now, there has been considerably less resistance to the demolishing of historic buildings across a half a city block, heavy-handed land-clearing and development, and the now ubiquitous Dollar Stores and Lulu’s.

Semantics Matter

In the City’s quest to assure those in attendance in the 2020 meeting, (as they approved Lulu’s) that the 2003 zoning conditions no longer existed — that the conditions had somehow magically vanished from the PC zoning — it appears they did not bother to actually remove the conditions or change the zoning because, recall, as Smith told us, “The zoning has been in place forever.” Indeed the PC zoning — with the conditions — has has been in place since then.

The new 2020 ordinance on the parcel approving Lulu’s reads ” Approve a Concept Plan”

While the 2003 zoning ordinance reads ” Approve a re-zoning”

Semantics matter, zoning is zoning, and the court of public opinion is turning. The latter was clearly evident in citizens’ statements made during the public comment portion of the May 22, 2023 City Council meeting to council members regarding matters of civility and having their voices heard. It certainly appears more people are paying attention. Maybe they’re finding more time to read up on local issues while parked on Whiskey.

The 2003 Zoning Conditions Still Recognized in 2014

More research uncovered that the zoning conditions had not fallen off in 2014 when another applicant put a concept plan in for this parcel. Then Planning Director, Ed Evans, put it right in the agenda packet.

The evidence showing that the conditions are ZONING conditions rather than concept plan conditions just continues to accumulate.

Parker’s Kitchen

During the April 24, 2023 meeting on Parkers, I asked Ms. Moultrie if those conditions were listed in the agenda’s Parker’s documents. Mayor Osbon redirected the question to himself. and then did not answer the question.

However, Mayor Osbon did make an issue of a sign that said ‘Shame’ that my 80 year-old aunt held up during my comments, and directed at Council. Law enforcement was called in handle the quite dainty, 80 year-old lady holding a small sign in a City Council meeting.

Now , in the June 12th, 2023 Memorandum from City Manager Stuart Bedenbaugh in the agenda packet for Parker’s states that:

Since no building permits were issued within 5 years of the
original commercial component of the concept plan approval, the 2003 concept plan approval for the commercial component expired, but the PC zoning stayed on the property.

Mr. Bedenbaugh acknowledges in the memo that the 2003 ZONING stayed on the property, but what he failed to admit is that the 2003 PC zoning came with conditions (see the 2003 Ordinance )

The 2003 Concept Plan and Zoning Process.

Permits were issued under that rezoning for Springstone Villas. They are also zoned PC as shown on the map below. This was found in Lulu’s application packet.

Springstone Villas enjoy the same zoning as the parcel in question as it was all rezoned to PC at the same time, in fact, officials placed the conditions on the commercial portion of the PC because there was no definite concept plan for the commercial component for it at the time of the rezoning and this ensured the residential portion of the PC zoning (Springstone Villas) would be protected. The minutes of the 2003 meetings accurately depict this. From the July 14th, 2023 First Reading

Later in that same meeting Councilman Cunning confirmed there is no definite commercial plan.

Early on in those same July minutes it states Planned Commercial zoning requires approval of a Concept Plan. Again, the only Concept Plan ever approved to move forward for this parcel at that 2003 rezoning was that of Springstone Villas.

This seems to completely negate the City’s claim that the 2003 Concept Plan of the Commercial component has expired. According to the minutes, there never was a definite concept plan for the commercial component approved – the Concept Plan approved was for Springstone Villas and the commercial component was Planned Commercial with conditions.

The first PC zoning approval conditions read “only the residential portion will be allowed to proceed and that the concept plan for the commercial portion be reviewed by the planning commission and council prior to approval of any site plan for that portion” (credit to Stratford resident John Melvin for discovering this clause).

The Continuation of the First Parker’s Hearing

Well-organized citizen opposition to Parker’s Kitchen proposal will be presenting their positions to City Council on Monday night, June 12th. City Council will meet an informed, passionate and intelligent citizenry. The opposition is growing, not shrinking.

In addition to concerns over the City’s compliance with its own zoning conditions on Parker’s, there are concerns over issues of health and safety regarding siting a gas station next to a residential area. The City is well-advised to review the definitions of arbitrary and capricious before making their decision.

There is also a closed-door Executive Session scheduled Monday before the meeting to accept legal advice on the Parker’s Kitchen proposal. Although allowed, The Freedom of Information Act does not encourage Executive Sessions. The key word is that Council “can” enter closed door meetings under some exemptions. There is no “shall.”

There is no reason, especially after the legal discussion during the April 24th unfinished hearing, why the legal issues can not be discussed in full open view. There is no pending litigation that is one prerequisite for taking legal advice behind closed doors. The issue should be aired in open session, on-the-record, for every citizen to hear.

Springstone Villas and Aiken Resident Jean Greenwald speaking about protecting public health, quality of life, and property values at the April 24, 2023 public hearing, which can be viewed at https://www.youtube.com/watch?v=JvF4LcMG6iY&t=9703s



Full Disclosure: My mother was the plaintiff vs. The City Council in the appeal on the Lulu’s decision. My Uncle was the President of the Springstone HOA when the Hotel was built off Whiskey Rd adjacent to Stratford. He, along with others, worked hard to make sure that hotel would not affect the residential area. Due to the berm and tree buffers, the dedicated entrance at the opposite of the property off Whiskey Rd, and to not putting a curb cut on Stratford, you truly do not know that hotel exists when you enter into this residential area. They did it right.

City Government, Development Issues, Planning & Development, Public Safety, Traffic & Safety

Gas Stations, Vice Stores, and Public Safety

4 Comments

Parker’s Kitchen and the near absence of public safety and security reviews in the planning process.

by Don Moniak

June 11, 2023

Gas stations and convenience stores are common scenes of criminal acts. Some are planned, like robberies, shoplifting, and small time grifting like quick-change artists. More are impulsive, such as assaults, robberies of individuals, and car burglaries. The risks are highest for employees, most of the incidents occur at night and early morning, and nearby neighborhoods can provide escape routes.

These risk factors seldom enter the public debate over new gas station and convenient store developments, nor any other developments. The proposed Parker’s Kitchen at Stratford and Whiskey Road is no exception.

The Proposed Parker’s Kitchen at Stratford and Whiskey.

Parker’s Kitchen applied to the City of Aiken to build a 5,175 square foot, 24-hour gas station/convenience store/restaurant with eight gas station pump islands fronting Whiskey Road. The proposal has met with strong resistance from neighbors.

The public debate features many legitimate issues, including increased traffic at an unsafe intersection, single road access to large neighborhoods, property values, the risk of major accidents, chemical exposures, and the zoning ordinance itself. As a result, the approval process has stalled.

One overlooked risk factor for nearby residents, workers, and customers is crime. Two facets are armed robberies and lower level crimes.

Armed Robberies

Gas stations are a common target for unsophisticated thieves and robbers. The number of armed robberies involving gas stations in the Aiken area include large, 24-hour establishments like the Circle K at Exit 22, Enmark on Hwy 78, and the new Sprint Station at Laurens and Rutland (1) .

These armed robberies sometimes end in assaults, shootings and murders. Low wage employees in chain stores are taught the proper policy of nonresistance, but are still at extreme risk of harm.

Robbers often escape on foot, sometimes into nearby neighborhoods where there are sheds, crawl spaces, woods, and other places to hide.

For a short period in the early to mid 2000’s, the Breaker’s Station at Six Points (below) was robbed two to three times per year. (3) On at least two occasions law enforcement converged on neighborhoods within 500 feet. In one instance it was a resident who alerted the police to a man hiding in his shed.

The instances of robbery and the threat to nearby residences greatly subsided after the owners began to close earlier and cleared the area behind the store. Better cameras were added, but cameras mainly help catch unsophisticated robbers, but do not necessarily deter them.

Breakers Gas Station and Convenience Store at intersection of Trolley Line Road, Vaucluse Road, Hampton Avenue and Shore Drive.

Lower Level Crime.

Almost all gas stations have convenient stores which generate the greatest share of profits. Convenient stores can be described as “Vice Stores,” since their primary inventory is alcohol, tobacco, sugary, salt, and caffeinated food, and Lotto. Some openly sell drug paraphanelia.

The effect is that ‘Vice Store’ establishments do attract people with personal problems ranging from substance abuse and gambling addiction. These are known factors that can lead to crime.

Another variable is that everyone who drives needs to refuel, including people with bad intentions. The nearer the neighborhood, the more likely it is to be targeted by someone with criminal intent and little sophistication.

Smaller robberies and assaults at gas stations used to be commonly reported in the days of “police blotters” (3) and occasionally are reported when more serious crime happens—-such as a shooting or the recent assault resulting from an argument over a squat-style truck.

Public Safety Reviews of New Developments.

All development applications go through planning departments.
The City of Aiken’s planning department has a process whereby each department is charged with reviewing the application and providing feedback.

An example of such a review (below) involved the Sundy Street apartments proposal in North Aiken.

Public Safety Review of Sundy Street Apartments.

Public Safety registered no concerns. But enough public safety concerns were raised by neighbors during the Planning Commission’s (PC) hearing that the developer offered to build a fence around the new apartments, (4), and the PC added it as a condition of approval.

In response to a Freedom of Information Request (5) for engineering and public safety reviews for Parker’s Kitchen, a thorough memo from engineering was provided, but there was no review by public safety in the FOIA response.

The basic fact is, gas stations/convenient stores experience robberies and other lower level crimes. An review of these risk factors should be part of any planning review process. For Parker’s Kitchen, the City of Aiken has provided no evidence of a review.

This Circle K on Hitchcock Parkway is one of many targets for armed robbers, and has been robbed in recent years.

This 24-hour Sprint Station was robbed on 1/1/2021.

Footnotes

(1) A short list of gas station/convenient store robberies in recent years.

6/11/19; 678 Pine Log Road, Circle K; 4:55 a.m

https://www.postandcourier.com/aikenstandard/news/police-asking-for-help-identifying-suspect-in-armed-robbery-at-aiken-gas-station/article_db1d0ce3-1935-59c5-bbb3-fb62b200fe37.html

6/6/20 Enmark on Charleston Highway, 4 a.m

https://www.postandcourier.com/aikenstandard/news/suspect-wanted-for-early-morning-robbery-of-aiken-gas-station/article_25b74a67-c951-53cc-b60a-c88ee1aeea22.html

1/1/2021, Sprint Gas Station, Laurens Street,

https://www.postandcourier.com/aikenstandard/news/crime/aiken-man-charged-in-armed-robbery-on-laurens-street/article_1d86b85c-0b3a-11ec-a759-4f58aed5d9f5.html

1/31/2020. Circle K. 2645 Columbia Highway, 2:25 a.m.

https://www.postandcourier.com/aikenstandard/news/police-investigating-two-robberies-in-aiken-county/article_ba41ff47-d14f-5ca2-8dfd-ccde7a727c44.html

1/14/2019 Unnamed convenience store, Wagener, SC 9:13 a.m

https://www.postandcourier.com/aikenstandard/news/deputies-seeking-wagener-armed-robbery-suspect/article_f6003810-0c11-5b9c-84ab-0a279d2a2fa6.html

4/18/2022. El Cheapo, North Augusta, 5 p.m.

https://www.postandcourier.com/aikenstandard/news/police-investigating-two-robberies-in-aiken-county/article_ba41ff47-d14f-5ca2-8dfd-ccde7a727c44.html

Page one results for a specific search on WFXG-FOX Augusta for ‘Gas Station Robberies’

(2) Don Moniak resided near Six Points for over a decade. His neighbor reported the man in the shed to police.

(3)Entry from September 5, 2018 police blotter in the Aiken Standard;

“Man called police from a gas station on Richland Avenue on Saturday claiming someone who goes by the name “Cory” assaulted him and robbed him. Officers reported the man was grossly intoxicated.”

This is just one example of dozens.

(4) After the developer agreed to build a fence, neighbor Gail Diggs called from the audience, ‘we want an 8-Foot fence.’ Ms. Diggs is a City Councilwoman who recused herself from the process, and helped fellow neighbors who had never spoken at a public hearing approach the podium to raise their concerns.

(5) FOIA Request #50-2023 was for;

1. Copies of any and all departmental reviews, including but not limited to Public Safety, Engineering and Utilities, and Public Works/Services, for all applications—-excluding annexations of single parcels—submitted to the Aiken Planning Department between December 1, 2022 and present. These reviews were cited by Planning Director Marya Moultrie during the February 14, 2023 Planning Commission meeting: “…engineering Public Safety Traffic Engineers we have to vet these against our own zoning ordinances.” Ms. Moultrie also described the existence of a public safety review of the Sundy Street apartments application, and stated “they had no concerns,” during the PC’s work session held prior to the meeting. 2. A copy of all traffic studies completed by city contractors or submitted by developers since September 1, 2022.”

After a fee determination of $138 for recent records, the request was modified to include only public safety and engineering reviews for two active applications; Parker’s Kitchen and Sundy Street Apartments.

Below is the only response for Parker’s Kitchen, a memo from Engineering detailing a number of requirements. This resulted from a developers meeting in October 2022, two month before the application was submitted. The memo is not part of the official City Council record.

Engineering input on Parker’s Kitchen, October 2022

City Government, June 2023

A Hearing on Business License Taxes

3 Comments

Ed Woltz’s business license tax appeal reveals inconsistencies and inequities.

by Don Moniak

June 10, 2023

A legal hearing on a business license tax appeal has revealed irregularities in the program that could result in overtaxing of some licensees, tax exemptions for landlords owning single properties, a higher tax burden on City of Aiken based businesses, and double taxation. Some of the implications could be state-wide.

The Appeal

As reported in Ed Woltz’s Business License Citation (1), the City of Aiken cited businessman Ed Woltz, who is also a City Councilman, in late November of 2021 for an undefined business license violation. It turns out the issue strictly pertained his rental properties, but the citation never made that distinction.

As a result of the citation, the city alleged that taxes were underpaid and overdue. A criminal proceeding ensued and, after two cancelled jury trials, the case was dismissed in late August of 2022 by City Solicitor Laura Jordan.

Subsequently, Mr. Woltz paid some of what the city claimed was owed, but appealed the city’s assessment (2), as allowed under Section 12-41 of the City business license ordinance (3). His wife, Dr. Holly Woltz, was added to the proceedings as a party due to co-ownership of some rental properties. Aiken attorney Clark McCants III, who had represented Mr. Woltz since the citation was issued, filed the appeal on their behalf.

In November 2022, Aiken City Council selected North Augusta attorney Kelly Zier to hear the case.

After several continuations, Mr. Zier heard the appeal on Thursday in Aiken City Council chambers. One conclusion in the Ed Woltz’s Business License Citation article was that this case could have implications for other business tax licensees in the City of Aiken. That conclusion may have been understated.

There was no dispute as to whether the Woltzes had underpaid (4) business license taxes for 3-5 years on their rental properties. By the end of the hearing, though, the two sides were still debating what the applicable total gross income to be taxed would be. That debate involved the exchange of papers and not testimony, as business license taxes are exempt from public disclosure, in large part to prevent access to the data by competitors.

The defendants, represented by attorney Clark McCants, largely focused on the loopholes, lack of direction, and inconsistent implementation of the City of Aiken’s business license ordinance (3)—particularly as it pertains to rental properties. The appeal cites three constitutional issues; taxation outside of authorized jurisdiction, denial of equal protection under the law, and a lack of specificity in a tax revenue code.

Since the business license tax ordinance adopted in March 2021 is a standardized, “model” ordinance created by the Municipal Assocation (MASC) of South Carolina, any irregularities and inequities in the ordinance have state-wide implications. Although influential and powerful, MASC is not accountable to the voting public.

During the hearing, the Defense highlighted several issues suggesting the MASC Model Ordinance needs improved directions and better glue. Among the numerous issues identified, three rose to the forefront:

  1. Long time city policies appear to exist that have no basis in city law , and one of these policies incentivizes the use of Limited Liability Companys (LLC’S) to avoid having to pay business license taxes.
  2. Businesses whose base of operations are based within the city likely bear a larger tax burden than businesses whose base of operations is outside of the city. This legal distinction also incentivizes county based business owners to avoid annexation.
  3. The business license tax arguably creates a system of double taxation, especially for rental income.

City Policies vs City Ordinances

The only information in the ordinance pertaining to rental properties is the tax rate. The only guidance on how rental property income should be assessed and taxed is contained within the license requirement identified in Section 12-31 of the ordinance;

“Every person engaged or intending to engage in any business, calling, occupation, profession, or activity engaged in with the object of gain, benefit, or advantage, in whole or in part within the limits of the City of Aiken, South Carolina, is required to pay an annual license tax for the privilege of doing business and obtain a business license as herein provided.”

In spite of this clear requirement that any person seeking gain obtain a license, the City of Aiken has a long standing policy of exempting owners of a single rental property. There is no clear basis in the ordinance to justify the policy.

Mr. McCants asked city employees serving as witnesses for the basis of this policy. Their honest answer was that the policy dates back to the 1980’s.

McCants then went through several hypothetical situations of how this policy discriminates against owners of more than one rental. Most notable is the landlord who is only renting a single home in a high-end real estate district like the historic Winter Colony area. That landlord pays no business license tax, while landlords with two or more lower-end rentals do pay business license taxes.

The largest loophole was saved for last—LLC’s with single properties are treated as single property owners, no matter who owns the LLC. Therefore a landlord who has an LLC for each property can avoid paying any business license tax on rental income.

Given the ease in which LLC’s can be arranged into so-called shell companies, which can then be used to disguise ownership, the implications for determining whether a single property owner actually owns multiple properties is obvious.

At another point the single rental exemption discrepancy more stark, when an attorney representing the city read a policy from the city website instead of citing from the ordinance. The two did not match. At issue was a separate ordinance (5) mandating that owners of rental properties register them in the city (Section 10-13).

The rental registration policy read from the city’s website states, in part;

“Owners of two or more rental properties must provide their current business license number and contact information to us.”

The defense produced a hard copy of the ordinance to point out that there is no reference to the number of rental properties in the ordinance. The city’s policy on its website, which is more widely read and referenced, does not match the less-read ordinance.

The implications for lost revenues due to the single rental property exemption was also noted during the testimony. The only City Council member present to hear that implication was Ed Woltz.

The Tax Burden of City-based Businesses

Section 12-32 makes the following distinction between City residents and non-residents pertaining to gross income determinations:

‘If the licensee has a domicile within the Municipality, business done within the Municipality shall include all gross receipts or revenue received or accrued by such licensee. If the licensee does not have a domicile within the Municipality, business done within the Municipality shall include only gross receipts or revenue received or accrued within the Municipality.”

Domicile is defined as “a principal place from which the trade or business of a licensee is conducted, directed, or managed. For purposes of this ordinance, a licensee may be deemed to have more than one domicile.”

In the case of multiple property owners like the Woltzes whose domicile is in the city, this means that gross income from all properties outside the City of Aiken is taxable. The only exemption are properties subject to a business tax by another municipality or county.

This means that, in the case of city-based multiple rental property owners, rental income from anywhere in the country is subject to business license taxes. For the Woltzes, this means rental property income in places as different as Augusta and Colleton County is subject to taxation.

In contrast, landlords operating outside city limits only pay taxes on the gross income of city rental properties. This disincentives annexation into the city.

This discrepancy could apply to other businesses. For example, a building contractor based in the city may be required to pay taxes on work completed outside the city, whereas a contractor based in the county only pays on work completed in the city. However, this possibility was not specifically discussed.

Double Taxation

Section 12-36 allows for deductions from gross income only for income earned in other jurisdictions that require payment of business license taxes.

For landlords, this means money spent on improvement or maintenance work completed by contractors is not deductable for the purposes of business license tax. The landlord pays taxes on the money spent, and the contractor pays taxes on the money earned. A landlord who has a negative income one year due to maintenance or other issues pays a tax based on gross income, while the contractor(s) pay a tax on their gross income earned via the landlord’s loss.

The Future of the Model Business Ordinance and the Woltzes’ Business License Taxes.

Hearing Officer Kelly Ziers will ultimate decide how much, if any, the Woltzes still owe the city.

Less clear is how much authority he has to rule on the discrepancies between city policy and city ordinances.

Even less clear is how much authority he has to rule on the MASC business license ordinance that has been adopted by municipalities across the state.

During the hearing one of the City’s contracted attorneys suggested to Mr. Woltz that “you are on City Council, you can change the ordinance.’

But it takes four votes to approve, amend, or repeal an ordinance. As a City Councilman, Ed Woltz cast the sole vote against the adoption of the MASC model ordinance in March 2021, arguing there are too many confusing clauses in it.

Since Mr. Zier’s decision can be further appealed, Ed Woltz the businessman may have the opportunity to challenge the legal validity and constitutionality of business license ordinance via the judicial system after having failed in a legislative objection as a member of City Council.

Given the facts that business license tax revenues are a third of all city revenues, , the implications of this appeal are substantial for the revenue stream of municipalities across South Carolina and the businesses that provide the revenues.

(Update. Mr. Zier ruled on behalf of the City of Aiken).

Footnotes

(1) https://aikenchronicles.com/2022/11/01/ed-woltzs-business-license-citation/

(2) The Appeal is on Pages 26-28 of the file of related records at;

https://drive.google.com/file/d/1orjlOMTrqI83KwNzxJ4_lNpapblx3OA8/view

(3)The business license ordinance can be found at;

https://library.municode.com/sc/aiken/codes/code_of_ordinances?nodeId=CICO_CH12BU

(4) The other issue that arose is that Ed Woltz the businessman went to City Manager Stuart Bedenbaugh for guidance on the business tax issue as early as 2019, because ‘he is the man in charge.’ Woltz testified under oath that he was seeking guidance and not intervention because Mr. Bedenbaugh “is the man in charge.”

Woltz testified that Mr. Bedenbaugh did not respond for a year, and when he did it was to say the City Attorney had advised him against any involvement. Since neither Mr. Bedenbaugh nor City Attorney Gary Smith were called to testify during the hearing, that issue is only added as a footnote here.

(5) Section 10.13 of Aiken’s Municipal Code can be found at

https://library.municode.com/sc/aiken/codes/code_of_ordinances?nodeId=CICO_CH10BUBURE_S10-13RE

The website policy that is not law can be found at
https://www.cityofaikensc.gov/doing-business-in-the-city/doing-business-in-the-city-of-aiken-rental-property-registration/