At the beginning of the April 20, 2022 public meeting on Project Pascalis, the City of Aiken’s Zoom moderator wrote:
“TRANSCRIPTS WILL BE MADE AVAILABLE AT A LATER TIME.”
Three months after these meetings, the city has still not issued transcripts, nor has it fully answered the questions posed during those meetings. A Freedom of Information Act request for transcripts, Zoom call notes, and a compilation of questions and answers yielded a fragmented YouTube transcript of the first meeting, a transcript of the second meeting devoid of public comment, and no question and answer compilation.(1)
Today, Aiken resident and concerned citizen Tori McQuinn downloaded and posted the complete You Tube transcripts from both meetings in less than ten minutes.
Ms. McQuinn’s posting of the first meeting is posted here:
The YouTube translations are of low quality and could never be used as a deposition. They illustrate how difficult it is for real court reporters to capture the essence of testimony. But in this case they are better than the promised alternative of nothing, while still serving as a repository of oral history for present and future interpretations of events.
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(1) See “When No Info is Good Info: A City Not Listening, the Aiken Antique Mall, and Newberry Hall”
On April 20, Chamber of Commerce President failed to identify himself as an AMDC Commissioner. The first public comment on Project Pascalis. Note weaker quality of the city’s transcript.
A sunny Saturday afternoon in downtown Aiken, July 2022 (Photo courtesy of Michael Aiken)
Three recent Freedom of Information Act (FOIA) requests to the City of Aiken regarding the ongoing downtown demolition and redevelopment endeavor known as Project Pascalis yielded either no documents or incomplete documentation. But the paucity of documentation functions, in these cases, as good information shining more bad light on the vagaries of Project Pascalis.
The following information is good to know:
The City of Aiken has not compiled an account of questions and answers from its Project Pascalis public meetings of April 20th, 2022, and one of its meeting transcripts (which it has yet to release) omits all public comment. (1)
An offer was made to purchase the Aiken Antique Mall in March, 2021 as part of a larger land consolidation effort during the earliest stage of project development (2). The Aiken City Attorney’s law firm billed Weldon Wyatt’s investment and development firm WTC, Investments, LLC for the effort.
There is no contract yet between the City of Aiken and Newberry Hall’s operators for the management and operation of the proposed city-owned conference center. (3)
The City’s Listening Skills Are Not on Display
The City of Aiken’s website includes a five year old page titled “City of Aiken Revitalization Project.” This was the “Downtown Renaissance” project that included some elements found in the Project Pascalis proposal, but was more dispersed and did not involve demolishing a substantial portion of downtown Aiken. On that page, the City declared:
Downtown revitalization takes initiative, courage, and vision to look at what makes for a vibrant, walkable, livable center that fosters community vibrancy while creating economic opportunity. Aiken is no different. Our history of downtown revitalization is strong and the City stands ready to face the next chapter of downtown development. (4)
Although the “Downtown Renaissance” plan became mired in controversy and faded into recent history, the city did document citizen concerns in great detail. The revitalization project website features twenty pages of “Questions submitted from the public,” and links to other documents containing more than one hundred pages of comments and questions.
In contrast, the City of Aiken has no similar record of public input for Project Pascalis. The two transcripts from the April 20, 2022 public meetings, when the city promised to have transcripts the next day, are poor and incomplete records of that event:
a. The morning meeting “You Tube” transcript is painfully difficult to read and does not identify speakers; and b. The evening meeting transcript ends when public comment begins.
Until now, no transcript has ever been released to the public.
When asked for a copy of a question and answer document similar to the one found for the “Downtown Renassaince,” the city came up empty. No efforts to document citizen questions and comments has occurred. Listening is not on the city’s agenda for Project Pascalis.
The Antique Mall Was Targeted as Part of the Original Project Pascalis
Aiken Antique Mall, July 2022 (Photo courtesy of Michael Aiken)
The ownership of the Aiken Antique Mall has not changed hands, and there is no proposal to demolish it. But it was part of the aggressive effort to consolidate downtown property ownership to facilitate a major demolition and redevelopment project.
This consolidation effort is encouraged by the city’s “master economic development plan” completed by AECOM corporation in 2021, which cites “fragmented property ownership” as one of the “challenges for large-scale redevelopment.” This “fragmented property ownership” issue was cited by City Council in August, 2021 as a key justification to issue $10 million in bonds for the AMDC to purchase Parkway District properties.
Aiken Antique Mall, July 2022
An offer (or offers) was made on the Aiken Antique Mall, and Weldon Wyatt’s investment and development firms had enough confidence the property would be obtained to include it in the first concept plans completed in April, 2021 by The Boudreaux Group. (5)
In response to a FOIA request for the Antique Mall purchase and sale offer, the City of Aiken declared there is no responsive document. In response to a follow-up question, Aiken Economic Development Director and designated FOIA officer Tim O’Briant wrote:
WTC/GAC made an offer on the referenced property in the same timeframe that the firm(s) secured contracts on the other adjacent parcels. These discussions and agreements were in place prior to them approaching the City/AMDC about a public-private partnership and before the parties entered a cost-sharing agreement.
Since the contract on properties collectively referred to as “the Shah property” was secured on March 2, 2021 and the cost-sharing agreement was finalized on March 23, 2021, an offer on the Antique Mall was made during that period. It was then included in the planning process. Whether the developers had the consent of the owner to include their property in any plans is unknown at this point.
What is known is that the Aiken City Attorney’s law firm billed WTC Investments, LLC for $6,800 to “prepare contracts and negotiate contracts for purchase of hotel, purchase of Mrs. Anderson’s property and purchase of Antique Mall.” (6)
Another unknown is the status of the land consolidation effort that attempted to encompass the Antique Mall. The City of Aiken’s official economic growth strategy discourages “fragmented property ownership patterns.”
Aiken Antique Mall, July 2022 (Photo courtesy of Michael Aiken)
Aiken Antique Mall detail, (Photo courtesy of Donald Moniak)
The Aiken Antique Mall property with its facade of flaking paint could be portrayed as crumbling and blighted by another slick public relations campaign targeting more properties for demolition and redevelopment. What is to stop it?
Newberry Hall: No Contract, Yet.
Newberry Hall is a private business catering to conferences, meetings, and weddings. It is a common venue for groups hosting political leaders. The influential Aiken Republican Club holds its monthly breakfasts there, which in June 2022 featured U.S. Congressman Joe Wilson.
Newberry Hall’s website includes numerous favorable reviews, such as this one from City of Aiken public information officer Chris Ceasar:
Newberry Hall is one of the premiere catering facilities in Aiken County. Whatever your dining pleasure, they can and will accommodate. The staff is very professional. The cuisine is most delectable. The facility is gorgeous. Try Newberry Hall. You will be pleasantly surprised!
Newberry Hall accurately describes its property located at 117 Newberry Street, SW as follows:
Newberry Hall is on a tree-lined and beautifully landscaped city street in the heart of downtown Aiken. Walk through the front doors of Newberry Hall and enter the perfect environment for your social or corporate event.
Newberry Hall, July 2022. (Photo courtesy of Michael Aiken)
In March 2021 the development team led by Weldon Wyatt and Ray Massey sought to demolish this fixture of downtown Aiken life and the surrounding landscaping and replace it with a larger conference center connected to a new hotel. Eventually they signed a contract with the owner, Myrtle Anderson, to purchase the property for $2 million.
This negotiation was no cakewalk. Newberry Hall collectively negotiated favorable terms for the owner/operators of the Newberry Hall business, Patrick and Natalie Carlisle, and an “Agreement for Regarding Lease and Option” was added to the purchase and sale agreement and signed by Ms. Anderson and Weldon Wyatt. This agreement, first finalized on April 15, 2021, was retained by the Aiken Municipal Development Commission after the contracts were transferred to it via the Aiken Chamber of Commerce, which took “assignment” of the property from WTC Investments, LLC on June 3, 2021.
The lease and option agreement included options for Newberry Hall to purchase the new building, operate the new city owned conference center, and be compensated for lost income during the construction period. The agreement states:
C. The development of the Project contemplates that the improvements on the Property would be demolished and replaced with a larger conference center and kitchen and that Carlisle would be compensated for loss of income during interruption of Carlisle’ s business and would lease the replacement conference center and kitchen pursuant to a replacement lease and operating agreement, the terms of which are under discussion but are not finalized (the “Operating Agreement”).
D. Section 5 of the Lease provides Carlisle with a purchase option (the “Option”) that would be triggered by the closing of the Purchase.
E. Anderson and Carlisle desire to that Commission close the Purchase without triggering the Option and have requested that Carlisle grant a one-time waiver of the Option to allow Carlisle and Commission more time to attempt to finalize an Operating Agreement.
In its response to the FOIA request for the contract to operate the future conference center, the The City of Aiken “determined that no contract as described has been considered for approval by Aiken City Council or the AMDC and to date no such instrument has been executed by the parties referenced.”
The city did not provide any more information, yet, no followup questions have been posed. The fact that “no such instrument has been executed” implies that such an instrument is still under negotiation, and would arguably be exempt from disclosure by SC FOIA law due to being a contract under negotiation and not a final product.
Newberry Hall, July 2022. (Photo courtesy of Debbie Traves Brown)
If Project Pascalis survives legal challenges and citizen outcry, downtown Aiken will endure a minimum of three years of major demolition followed by construction. By comparison, reconstruction of The Alley took sixteen months and the Hotel Aiken has been vacant for four years. The Wedding parties, meetings, conferences, breakfasts, and other events routinely held at Newberry Hall will be held elsewhere. How much of a loss to downtown businesses will this inflict?
Commentary
Prying information from any government body that selectively spoon feeds the people its version of the truth can bring to mind former Secretary of State Donald Rumsfeld’s famous musing about information, a series of concepts so complex that even he tripped over them during later interviews.
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“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.”
— Donald Rumsfeld
The secrecy and intrigue surrounding the $100 million downtown Aiken demolition and redevelopment endeavor known as Project Pascalis pales in comparison to the world of international nuclear insecurity that Rumsfeld was in part referring to that day. But the concept of information confusion is relevant to any process plagued by secrecy.
The details of Project Pascalis were kept secret for eight full months in 2021, and the AMDC met in closed door executive session more than fifty percent of the time since the project was announced in March, 2021, primarily to discuss the project. (8)
My wife describes ‘transparency’ as “something you can see through,” while ‘openness’ means “listening to and talking about what people see on the other side.” The City of Aiken likes to talk about being transparent, but continues to disregard the more important character trait of openness during this process.
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(1) A FOIA request was filed on July 6th for “1. A transcript of both April 20, 2022 public “design workshop” meetings held at 214 Park Avenue W. The meetings were also was held on Zoom, and during the 530-700 pm meeting, and during this Zoom call participants were asked if they wanted a transcript of the meeting. 2. All comments and questions submitted to the Zoom moderator. 3. Any compilation of questions and answers by City of Aiken and/or AMDC staff from the April 20, 2022 meetings. If they exist, these documents should be readily available with minimal search time.”
The City responded the same day with three documents:
No compilation of questions and answers from the meetings were provided, and none exist.
(2) A FOIA request was filed on July 11th for a “copy of the purchase (agreement) of the Antique mall referenced in the attached invoice. Since this was a part of the public-private cost sharing agreement between the AMDC and GAC, LLC, this should be available from the City of Aiken.”
The city replied there was no “responsive record,” meaning the record may exist but they do not possess it. The city did confirm “discussions” to purchase the property:
“The City replied determined the invoiced charge was related to initial discussions with the owners of the referenced parcels by GAC, LCC. No agreement was struck, the property was never placed under contract with nor purchased by GAC, LLC, the City of Aiken nor the AMDC. Therefore, there is no responsive record.” (1)
In a subsequent answer to a followup question, the city replied:
“WTC/GAC made an offer on the referenced property in the same timeframe that the firm(s) secured contracts on the other adjacent parcels. These discussions and agreements were in place prior to them approaching the City/AMDC about a public-private partnership and before the parties entered a cost-sharing agreement. Therefore, no documents related to the earlier unsuccessful offer on the referenced property were ever shared with either the City or the AMDC. If such a record were available within the City’s possession and control, I’d be happy to provide it. There simply isn’t one.”
(3) A FOIA request was filed on July 8, 2022 requesting:
“A copy of The contract between the City of Aike or AMDC and the owners and operators of Newberry Hall for Rental and operation of the proposed City of Aiken conference center.”
The city responded:
“The City of Aiken has determined that no contract as described has been considered for approval by Aiken City Council or the AMDC and to date no such instrument has been executed by the parties referenced.”
The City, Wyatt, Ray and His Group, and Creative Ways
As previously reported, the $100 million plus downtown demolition and redevelopment project named Project Pascalis actually involves two project areas. The unpublicized second project area is the popular commercial district and gathering spot known as The Alley, which has been a central and not peripheral part of the project.
One way to think about this is to picture two adjacent construction zones.
One zone is controlled by the City of Aiken’s Municipal Development Commission (AMDC) and its developers: first Weldon Wyatt’s GAC, LLC, which had contracts on seven properties, and now RPM Development Partners, LLC, which is seeking to purchase the seven properties at a discount from the city. It also involves a public-private partnership with a cost sharing agreement between the two. Because public funds and a public body are involved, the Freedom of Information Act (FOIA) allows for better access to information, and a stricter set of rules applies to obtaining project approvals from city boards and council. Specifically, South Carolina Community Development law applies in this case because the AMDC is governed by Chapter 10 of that law.
The second zone is privately controlled by Aiken Alley Holdings, LLC (Agent: Ray Massey), whose investors have remained silent, and are hereafter referred to as “Ray and his group” or “Ray’s group.” Aiken Alley Holdings owns four properties in the project area. Because these properties are not part of any public-private cost sharing agreement, their plans and communications are not subject to FOIA and South Carolina Community Development law.
Between March 2, 2021 and May 20, 2021 the two zones were treated more as a whole. The conceptual designs by the Boudreaux Group (an architectural firm who had signed an agreement with GAC, LLC in March) and its consultants clearly illustrate a seamless development that involved the Shah and Newberry Hall properties (under a purchase contract to Weldon Wyatt’s WTC Investments, LLC in the city’s zone) and properties owned by, or being sought by, Ray and his group.
Between June and November, 2021, the two zones were in limbo after Wyatt withdrew from the public-private project and the AMDC pursued a new developer, with some coordination with Ray’s group.
Since November, 2021, the AMDC and its developer, RPM Development Partners, have controlled discussion and plans of the public-private zone, while plans for the private zone remain the purview of Ray and his group and have been withheld from public view.
However, RPM stands for Raines, Purser and (Ray) Massey. At the April 20, 2022 AMDC public meeting, moderator Tim O’Briant stated that each party owns 1/3 of RPM. Ray and his group are a part of the public-private zone, but the AMDC is not a part of the private zone controlled by Ray’s group. If this were a swimming pool, the AMDC is only allowed to swim in the deep end, while Ray’s group can use the whole pool, an arrangement that has serious financial implications for taxpayer liability.
“Ray and His Group”
The existence of two projects is confirmed in a brief but illuminating June 4, 2021 email exchange between Aiken Economic Development Director Tim O’Briant and WTC Investments, LLC representative Chip Goforth involving the assignment of properties by the Chamber of Commerce, purchase contract earnest money, a cost-share agreement invoice, and the future of the project.
The two were cleaning house on the remants of the first public-private zone, which had crumbled when Weldon Wyatt’s development company GAC, LLC withdrew from the project in mid May, 2021. Subsequent to the latest Wyatt exit from a major city project, the Aiken Chamber of Commerce, in coordination with the AMDC, had negotiated the “assignment” of WTC Investments’ contracts for the Shah and Newberry Hall properties.
This involved transferring the contracts to the Chamber which would hold them for the AMDC to purchase after it procured funds from City Council; and helping WTC Investments salvage $135,000 in nonrefundable earnest deposits for its contracts. Yes, the city devoted administrative labor to insuring Mr. Wyatt recovered his otherwise nonrefundable earnest money.
The AMDC opted to keep this entire affair secret, as it did with its private efforts to recruit a new developer, an effort that also involved Aiken Alley Holdings, referred to at the time as “Ray and his group.”
In addition to confirming the two project zones, the exchange also indicates an amiable relationship, in spite of the Wyatt camp’s recent withdrawal from the project, and that Mr. O’Briant provided sympathetic assistance to WTC Investment’s efforts to retrieve their $135,000 in non refundable earnest money.
In his email, Goforth wrote:
How was your meeting with Andy Cajka. Thanks for helping get both Contracts assigned, glad we did the way we did and not a creative way. Better to all be on the same page. Will the Invoice attached work for reimbursement of the costs we spent. Let me know if you need anything. Also, sounds like Rays group has a lot of interest in the apartment side of the development. (1)
O’Briant responded fifteen minutes later:
The invoice looks fine. I’ll get that processed for you next week. It’s been busy but things are looking pretty good. The meeting with Andy was excellent. I hope to have a half dozen proposals in hand by a deadline next week to compare. Also waiting to see what Ray and his group come up with whatever it is it should be good for downtown. Hopefully we can figure out soon whether there’s a good way to overlap the two projects or if they work best independently.
I’m really glad we were able to get the contract worked out so we can go ahead and get you the earnest money back and make it all clean. Thanks for your help on that end.
The O’Briant-Goforth email. Obtained via FOIA.
There were two project areas and two projects, one controlled by “Ray and his group” and one controlled by the AMDC and its private partner. In the beginning the private partner sought legal counsel and aid from Ray Massey’s law firm. In the existing stages, it is unknown what role the developers in RPM are playing in the plans of Ray and his group.
The Wyatt Months: The Two Projects Merged
The issue of overlapping projects versus independent projects led to the creation of several design options in April, 2021; options that were scheduled to be presented to Aiken City Council on April 19th but never made it onto any public meeting agendas.
In early April Boudreaux had late draft plans, but there was some disagreement over the future of Ray and his group’s recently purchased properties in The Alley. During the discussions, their retail and office buildings in The Alley are referred to as “The Laurens Center” and this designation also appears on some maps.
In preparation for a meeting between AMDC Executive Director Tim O’Briant, Boudreaux, and Weldon Wyatt, Boudreaux group President Heather Mitchell wrote:
Tim and Weldon spoke this morning. Weldon has clarified that he wanted to understand the impact of excluding the Laurens Center Alley buildings from the site, however he does want to proceed with developing the plan in accordance with the Option 2 version that includes rebuilding on the Alley (Laurens Center) retail site.
Three options focused mostly on The Alley portion were under discussion at that meeting:
Option 2 involved retail space in The Alley extending deeper to the north and underneath the proposed parking deck.
Option 2: “No Alley Building” involved leaving existing Alley retail buildings as is. This was looked at “per Weldon’s request,” and the issue that arose was that not modifying The Alley retail buildings would lead to a smaller hotel and less apartment space.
Option 2A; “No Alley Building” involved a “reconsidered hotel location. Hotel is at corner of Richland and Laurens which gets it back to 100 rooms.”
In an email, O’Briant wrote that he preferred the second option: keeping the existing retail.
There is also a set of plans, obtained via FOIA, (see below), that shows a smaller hotel behind the Alley retail, with the lobby of the hotel at the same ground floor as retail. These could be the plans that have been described by Art and Soul co-owner Stacy O’Sullivan in Part Two of this series, and plans to build residential and/or hotel above the existing Alley buildings may still be in the works.
Ground Floor2nd FloorFloors 3 thru 4 and 5Project Pascalis option for The Alley, April 2021. Images obtained via FOIA
The decision in the April 19, 2021 Conceptual Design Plans appeared to favor Option 2 .
The Two Projects Separate, But Ray’s Group Swims in Both Pools
Following the end of the AMDC/Wyatt partnership, the city secretly pursued a new developer. In the May 19, 2021 solicitation for Requests for Proposals (2), the AMDC only offered Option 2a, with a new hotel replacing the Hotel Aiken and no activity in The Alley. Apartments and a parking garage would replace the vacant historic Johnson Drug Store and adjacent existing businesses; a conference center would replace Newberry Hall.
This is also the vision the AMDC and its chosen developer, RPM Development Partners, presented to the pubic between November 2021 and April 2022, when the AMDC unilaterally announced, without any public or even City Council input, a conference center in the soon-to-be vacated City Hall at 214 Park Ave. W — an issue to be addressed in Part 4 of this series.
Ray and his group retain control and ownership of the “Laurens Center” retail center in The Alley, as well as the former State Farm building (which it has offered as a “trade” with the City of Aiken in exchange for a portion of Newberry Street). Their plans are not publicly disclosed, but their property is now in the center of the larger Pascalis footprint.
Ray and his group also sought to purchase part of the City’s municipal building complex in January, 2022. While that offer was tabled, the purchase agreement with the city remains in the files, and Part 4 of this series will discuss how Ray and his group tried to buy city property at a sizeable discount.
Next: Part 4: Ray and His Group Angle for City Property
Part 5: The AMDC Pulls a Fast One: Old City Hall as a Conference Center.
For Reference
(1) The invoice referred to the cost-sharing of the Boudreaux Group’s conceptual design.
Andy Cajka is a member of the Clemson University Research Foundation. According to his bio on the foundations’s website, he is “the founder and president of Southern Hospitality Group, LLC, a hotel management and development company in Greenville, South Carolina. Prior to starting his own business, Mr. Cajka was a managing member of Hyatt Hotels Corporation from 1986 until 1998.”
(2) The summary of that RFP is posted on the AMDC “transparency page.” Requests for the entire RFP continue to be denied by the city on the basis of a FOIA exemption. However, that exemption does not mandate nondisclosure, it is a choice.
According to one attendee, tonight’s City Council meeting was ”a little subdued” and ”cordial enough.” Perhaps it was the lawsuit filed less than a week ago against Aiken City Council members, among others, alleging an abundance of violations of state and local law.
Perhaps it was the presence of 5 or more police cars outside.
Or the presence of 5 or more law enforcement officers inside, who were there to assist citizens through the security protocols implemented by City Council two weeks ago:
But the meeting was said to be a little subdued. And cordial enough.
The most prominent item on the Aiken City Council’s July 11, 2022 meeting, other than another closed-door executive session regarding Project Pascalis, is a proposed amendment to the ordinance defining and governing the Aiken Municipal Development Commission (AMDC). The AMDC is the governmental side of the braintrust behind the $100 million plus project to demolish a substantial portion of downtown Aiken and construct a new hotel, apartment complex, parking garage, retail space, and a conference center.
The issues surrounding this amendment were first reported in “Reminder of the Day: The AMDC Cites the Law, Then Sets Its Own Rules,” with an updated version posted on July 1st. This account detailed the differences between City of Aiken law and AMDC bylaws, and the city’s contentions that the differences are the result of a “scrivener’s error,” and that City Council’s original intent was to allow membership.
A review of past city council agendas and minutes reveals no intent to change membership requirements to include non residents who have “vested business interests” in the city.
The July 11th Hearing
In Agenda Item #1 of new business for the July 11th meeting is the “First Reading of an Ordinance to Amend the City Code (Section 11-2) Regarding Membership of the Municipal Development Commission.”
The supporting memo from the Aiken City Manager merely states:
In reviewing our enabling ordinance for the Aiken Municipal Development Commission [AMDC], we believe that the membership paragraph needs to be updated. The current language states that members will be citizens of the City of Aiken. We propose adding to that “or have vested residential and/or business interests within the Commission’s jurisdictional boundaries. (1)
City code presently specifies that AMDC members be “citizens of Aiken.” The memorandum contains no discussion of the following facts:
a. Nonresidents currently are serving on the AMDC and have voted on resolutions that have been forwarded to City Council. This is essentially an amendment to grandfather these members into compliance.
b. The AMDC’s final bylaws, written and adopted by the AMDC in December 2020, defined membership criteria as “vested residential and/or business interests,” and 18 month has passed since that policy, which was contrary to City code when it was written, was adopted without Council approval.
c. This is a matter currently identified in the lawsuit filed July 5th seeking an injunction against Project Pascalis
d. The definition of “vested business interests.
The memo also omits any supporting evidence of past intent by City Council, most likely because none exists. Yet, the city is asserting publicly that a “scrivener’s error” is the source of the problem. If that is the case, it has to present clear and compelling evidence of the original intent.
The city has not. The proposed amendment, simply put, involves the city changing the law to comply with bylaws that were written and adopted even though they did not comply with to city law. There is no evidence of prior intent, and therefore no evidence of a “scrivener’s error.” The AMDC should be rewriting its bylaws to comply with the City Council approved ordinance, not vice-versa.
AMDC Formation and Amendments: 2019-2020
The first reading of the ordinance establishing the AMDC was held on June 10, 2019, and it was the third item (2) of new business that day. In the supporting memorandum for creation of the AMDC, City Manager Stuart Bedenbaught wrote:
Proposed bylaws are attached at the request of Council as a one page summary of the commission. AMDC, an arm of City Council, will be utilized to facilitate public and private investments which reduce physical and economic blight, foster new business startups and expansions, and increase the availability of decent and affordable housing in the identified area.
The proposed bylaws contained no mention of membership requirements. There was also no discussion of membership requirements during deliberations. Two citizens, Jane Vaughters and Reggie Ebner, raised numerous concerns about the new commission, and no citizens stepped forward in support.
The ordinance passed its first reading by a vote of 5-1, with only Councilperson Dick Dewar dissenting (Councilperson Gregory was absent). According to the minutes for that meeting, he seconded Ms. Vaughters’ concerns:
Many of the matters that Ms. Vaughters talked about are listed in Chapter 10, such as borrowing money, issuing bonds, adopting a seal, etc. (Councilperson Dewar) felt this may be a body of government that he is not sure Aiken needs. He pointed out that the Aiken Corporation is empowered to do what he felt the Redevelopment Commission would do. He said he was confused as to what we would expect the Redevelopment Commission to do that we can’t get done with the Aiken Corporation and the city board structure that we have.”
On August 14 ,2019, the ordinance came up for its second and final reading. It again passed that day by a vote of 6-1. Councilperson Dewar being the sole dissenter, and his concerns were more numerous than at the first hearing, and, according to the minutes, included the following:
He noted that the first sentence in the ordinance says ‘whereas the staff of the City of Aiken has advised City Council that a blighted area or conservation area exists.’ He said he did not know where the blighted areas is. He felt that was a very general comment to make and it should be specified. He said by adopting this ordinance we would be approving the charter without approving the rules of the charter.
At neither of the hearings was the issue of membership criteria that included only a “vested business interest” ever raised. The only statement about membership at the second and final reading was:
The proposed commission would consist of nine members,three of whom will be City Council members and six commissioners appointed by City Council to help with economic development. The City Manager would serve as an ex-officio member of the Commission. Bylaws would be drafted by the new commission.
The September 2020 Amendment
The Commission did not meet until May of 2020. During that summer a few council members, most notably Ed Woltz, recused themselves from any commission votes that may come before City Council. This led to an amendment regarding membership that passed a second reading on September 14, 2020.
This amendment only pertained to the number of voting AMDC members, which was increased to nine, while three City Council memberships were converted to non-voting “ex-officio” status. There was no discussion of residency requirements in the City Manager’s supporting memorandum, and the detailed meeting minutes do not cite any discussion about citizens with “vested business interests’ serving on the commission.
During the first reading at their August 24, 2020 meeting, council expressed support “to remove the present three Councilmembers from ex officio members, ask the Commission to recommend three members to replace the three Councilmembers, and empower the Commission to be able to amend the bylaws as they see fit.” But no language was added that allowed for a bylaw amendment to automatically trigger an amendment to the ordinance.
The September 14, 2020 meeting minutes pertaining to amendment reads:
“(City Manager) Mr. Bedenbaugh stated Council created the Municipal Development Commission in August 2019. The commission has been actively meeting and has made a recommendation to Council to amend its enabling ordinance to allow for a more efficient operation by the board. Specifically,the Commission recommended that its voting membership stay at nine. The current three City Council members would gain ex officio status, which would necessitate three additional appointments to be made.”
If there is any evidence of past intent, the City of Aiken has yet to locate and present it.
The “Scrivener’s Error”
The language of the September 14, 2020 amendment is clear in the packet agenda:
Nine commissioners shall be citizens of the City of Aiken…
The City of Aiken contends a “scrivener’s error” is the cause of the ordinance not reading “vested residential and/or business interests,” but has yet to offer any evidence of council intent.
The 1996 edition of Barron’s Law Dictionary defined a “scrivener” as “a term, infrequently used in the United States, signifying a writer or scribe, particularly one who draws legal documents.” The City of Aiken does not have a “scrivener.” The City Attorney is responsible for a range of duties that can be considered analogous to a scrivener, including:
“the city attorney shall prepare and revise ordinances when so requested by any member of the city council.”
Although the term scrivener remains obscure, the “Scrivener’s Error Doctrine” is still a term more widely in use in the legal community. According to the website lawyer.zone, “Scrivener’s Error doctrine is one that states that when there is a typographical error or a minor mistake, the court can correct the mistake when it’s absolutely clear.”
In a 2016 paper challenging the strictness of this doctrine, Harry Bigelow of the Chicago School of Law wrote, “it is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called scrivener’s errors, if and only if such mistakes are ‘absolutely clear.’” (3) Any reasonable examination of this paper indicates this is a complex issue that could ultimately be decided by the courts.
City Council is not a court, and there is no clear mistake that was made during the drafting of the AMDC’s ordinance, or the only amendment to it. The AMDC’s by-laws were finalized three months after the September 2020 membership amendment. While Council did express its support for the AMDC to draft its own by-laws, it did not allow a change in by-laws to trigger a change in the law; and doing so would undermine the entire system of city government and leave the law in the hands of unelected officials.
(2) The AMDC is currently composed of eight men and one woman. In spite of frequent discussion at its meetings about “what millenials want,” most members are not millennials, and no age criteria was discussed in the context of commission membership requirements. In fact, there were no requirements for membership in the initial proposed ordinance.
Coincidentally, the second item on the September 14, 2020 council agenda was the “First Reading of an Ordinance to Rezone Property at 828 Richland Avenue W and 159 Morgan Street NW from Office (O) to Planned Commercial (PC) and Approve a Concept Plan.” This is the “old hospital” property and site of the former county administrative complex.
That plan involved local developer Weldon Wyatt’s proposal to destroy the existing buildings and construct a new hotel, apartment complex, garage, and conference center in its place. That story is discussed in “Reminder of the Day: Project Pascalis and The Wyatt Factor.” https://aikenchronicles.com/2022/06/21/project-pascalis-and-the-wyatt-factor/
The agenda packet that day included an eighteen page submission from Mandy Drumming, a millenial who made the case for restoration of the old hospital instead of demolition. (Pages 270-285) Part of that submission was a copy of the Spring 2019 edition of The Rambler, a publication of the Georgia Historic Trust, titled “Millenials and Preservation.” https://www.georgiatrust.org/the-rambler-publication/spring-2019/
