The City of Aiken’s Project Pascalis was announced to the general public on March 17, 2021 when the Aiken Municipal Development Commission (AMDC) authorized “its chairman and the city’s development director to negotiate and execute, when the time comes, a cost-sharing agreement for ‘Project Pascalis,’ a potentially massive commercial-development venture.” (1)
In its announcement, the AMDC wrote it had “identified and recruited a well-capitalized and successful real estate investor interested in partnering and exploring one or more potential commercial development projects.” (2) AMDC officials told the Aiken Standard “a Project Pascalis plan for the public to review and critique is expected within months, after the cost-sharing agreement is finalized and the ball gets rolling;” and AMDC Director Tim O’Briant told the paper, “Transparency is key.”
Between March 16, 2021 and May 10, 2022, the AMDC held seventeen scheduled meetings during which they entered into private, Executive Session sixteen times. In total, the Commission spent just over fifty percent of its time in secret deliberations. Between March 16, 2021 and December 3, 2021, just before the first announcement of a developer, the Commission spent close to two-thirds of its meetings in secret deliberations. Prior to this, the percentage of time spent in Executive Session was just under forty.
While some meetings were held where parts of the project were discussed and debated, public input was not sought until April of this year; with the first meetings involving the entirety of the proposal being held on April 20th. At both meetings, the project presentation lasted for all but fifteen minutes of the scheduled two hours. Public input was abruptly cut off an hour later during the first meeting because of “prior engagements” of the primary developer.
The AMDC and City of Aiken never publicly announced its “well capitalized and successful investor” of 2021. We now know the investor was Weldon Wyatt, whose WTC Investments, LLC (agent: Attorney Ray Massey) had abruptly withdrawn, following months of great fanfare, from a similarly size project at the old Aiken hospital. Not surprisingly, Wyatt and his fellow investors in GAC, LLC and WTC Investments, LLC abruptly dropped out of Project Pascalis two short months later, and the cost sharing agreement was cancelled.(3)
Instead of announcing Wyatt’s second withdrawal in two years from an anticipated public-private partnership with the City of Aiken, the AMDC secretly solicited other developers, without any public notice as required by law. The Aiken Chamber of Commerce, whose President is an AMDC Commissioner, secretly took “assignment” of the seven downtown properties proposed for the project, and for which WTC Investments, LLC had a purchase and sale agreement with the property owners.
Three months later, Aiken City Council approved a $9.6 million bond issuance to finance AMDC property purchases. In early November, 2021, the AMDC finalized those purchases; and the Chamber of Commerce was reimbursed $135,000 of nonrefundable earnest deposits, just as it had reimbursed WTC’s earnest money in May when it took “assignment” of the properties.
Throughout most of 2021, the AMDC and the City of Aiken never publicly disclosed that:
Weldon Wyatt and his fellow investors were involved in Project Pascalis and were planning to demolish the Hotel Aiken and adjacent properties;
the AMDC was involved with negotiations with a second developer
the Chamber of Commerce held nearly $10 million in property while the AMDC sought funding for the properties.
That is how much “Transparency is Key” to the City of Aiken as it pertains to Project Pascalis.
As previously reported, the Aiken Municipal Development Commission (AMDC) has embarked on a $75+ million project involving the demolition and reconstruction of a substantial chunk of downtown Aiken. In pursuing this project, the AMDC has circumvented community development law (Reminder of the Day, June 20, 2022).
Now, in a remarkable development, Aiken City Council will soon attempt to amend the city’s municipal code because the AMDC’s bylaws, adopted in December 2020, are not in compliance with the city ordinance governing the commission. At issue is the fact that the AMDC has voting members (Commissioners) who may not be legally eligible to be on the Commission. If any Commissioners are not residents of the City of Aiken, and it appears at least two are not, the legitimacy of past AMDC actions is questionable.
In a nutshell, Chapter 11 of the City of Aiken’s municipal code states that AMDC voting commissioners “shall be citizens of the City of Aiken;” whereas the AMDC’s by-laws state that voting members “must have vested residential or business interests within the Commission’s jurisdictional boundaries,” which is the City of Aiken. Bylaws must comply with the law, and these do not at the present time.
Chapter 11: Aiken Municipal Development Commission
In August, 2019 Aiken City Council approved Chapter 11 of its municipal code, creating the Aiken Municipal Development Commission. While citing Title 31, Chapter 10 of SC law (1) as the governing statute for its existence, the ordinance also established residency requirements and term limits. Amended in September 2020 to add three more voting members and reclassify city councilpersons as “ex-officio” non-voting members, the ordinance reads:
The redevelopment commission established by this article shall consist of nine voting members. Nine commissioners shall be citizens of the City of Aiken who shall be appointed by city council. The three members who are appointed to replace the currently serving city council members shall serve an initial term of one year and the six appointed commissioners who are currently serving shall serve an initial term of two years. Thereafter, all commissioners shall serve for two years. The city manager will serve as an ex-officio non-voting member of the redevelopment commission.
The redevelopment commission established by this chapter shall exercise its powers within the city limits of the City of Aiken.
From Gregg Highway to Hitchcock Woods: The AMDC Strays From Its Mandate
Aiken’s municipal code has not prevented the AMDC from delving into business outside the city limits, such as a housing development on Gregg Highway.
Nor has State community development law prevented the AMDC to stray outside its authority. That law restricts the AMDC’s authority to “conservation areas” that contain at least three precursors to blight, and “blighted areas” that contain at least five elements of blight. Yet, the AMDC has participated in greenfield projects on Whiskey Road such as the new senior apartments; and in one meeting actually discussed the marketing of Hitchcock Woods, with one commissioner commenting it is “underutilized.” Fortunately, better sense prevailed and that misguided discussion about private, wild, undeveloped lands was tabled.
The “Scrivener’s Error.”
But talk pales in comparison to action, and one action undertaken by the AMDC was to draft and adopt bylaws in December 2020 that were not compliant with Chapter 11. On Monday, June 27, I asked AMDC Director Tim O’Briant “how did the AMDC adopt bylaws that do not correspond to the municipal ordinance,” specifying two discrepancies:
The residency requirement in the governing municipal code vs the residency and vested interest requirement in the by-laws; and
The two year terms in the municipal code versus the four year terms in the by-laws.
I then wrote:
Chapter 11 of the municipal code was amended once to allow for nine voting members, with three replacing councilpersons who were then reclassified as ex-officio members. Why hasn’t the ordinance been amended to reflect the bylaws? And why were bylaws adopted that contain provisions contrary to an approved ordinance?
NOTE: Click text blocks below to view larger images
From Chapter 11 of the City of Aiken municipal code
From the AMDC bylaws
Mr. O’Briant responded by email a day later, and also cc’ed the answer to the Aiken City Manager and Clerk and one daniel.plyler@smithrobinsonlaw.com.
According to the city, a “scrivener’s error” is at fault, and Aiken City Council will now consider an amendment to the law because the bylaws are noncompliant. Council will be arguing that its intent in 2019 was to include non residents with “vested business interests.” No evidence to support this “intent” was provided. The email reads, in full:
Don,
You have pointed out an error that requires correction in the Aiken City Code. Chapter 11 as approved and added in 2019, and upon which the bylaws were based, required the following.
Sec. 11-2. – Membership; terms of members. The redevelopment commission established by this article shall consist of nine members, three commissioners shall be city council members and six commissioners shall be appointed by city council. The three city council members shall serve an initial term of one year and the six appointed commissioners shall serve an initial term of two years. Thereafter, all commissioners shall serve for two years. The city manager will serve as an ex-officio non-voting member of the redevelopment commission.
As you state, in 2020 Chapter 11 was amended for the sole purpose of removing council members as non-voting ex officio members of the body and replacing them with three additional appointees to be nominated by the Commission and ratified by City Council. There was no discussion by City Council regarding the addition of a citizenship requirement as a part of that amendment, nor is there evidence of legislative intent to do so.
The bylaws state, ‘The Commission shall be composed of nine voting Commissioners who have vested residential or business interest within the Commission’s jurisdictional boundaries.’ That accurately reflects the intent of Council. The addition of the words ‘commissioners shall be citizens of the City of Aiken,’ was a scrivener’s error following the verbal motion to amend that has persisted until today.
As a corrective action, City Council will consider an amendment and correction to the published text of Section 11-2 in the near future. Thank you for calling this to our attention. As far as the terms of office go, the AMDC has been observing two-year terms as stated in the statute and just had its first expirations and election of new officers in June of 2022. The bylaws will be amended to comport with the statute and actual practice.
Regards, Tim O’Briant
If the ordinance is changed to allow non-residents to determine the fate of the City of Aiken, then every member of Aiken County should be eligible since we all have a vested interest in the business of the county seat and major medical and service center.
In response to that email, I replied with the following questions:
How many voting members are not city residents?
How legitimate are their past votes?
Where is the evidence of intent?
What constitutes a “vested business interest?” If the law is going to be changed does that not also have to be defined?
Were the bylaws reviewed by the City Attorney to insure compliance with the law?
Is basing the project on a redevelopment plan approved the year before the first project proposal, and does not include most of the project’s footprint;
Failed to hold a public hearing for that first and only redevelopment plan;
Failed to issue a public advertisement for a Request for Proposals (RFP)
Background on Municipal Commissions and Redevelopment
By law, publicly financed economic redevelopment must adhere to Title 31 of the SC Code of Laws. In regard to Project Pascalis, the most pertinent of these statutes are within Chapter 10, which define the criteria for creating municipal commissions like the AMDC and the rules they must follow.
Under part 30 of this chapter, municipal commissions like the AMDC can be created by the governing body (City Council) if it finds:
(1) that a blighted area or conservation area exists in whole or in part in such municipality,
(2) that the redevelopment of such areas is necessary in the interest of the public health, safety, morals, or welfare of the residents of such municipality.
While the AMDC has broad powers to enact its charge, its “specific” powers defined in Part 90 are to:
“make (i) plans for carrying out a program of voluntary repair and rehabilitation of buildings and improvements and (ii) plans for the enforcement of laws, codes, and regulations relating to the use of land and the use and occupancy of buildings and improvements, and to the compulsory repair, rehabilitation, demolition, or removal of buildings and improvements. The commission is further authorized to develop, test, and report methods and techniques, and carry out demonstrations and other activities, for the prevention and elimination of slums and urban blight.”
The One and Only Redevelopment Plan One for Downtown Aiken
The AMDC was created by ordinance in August 2019 by Aiken City Council, but did not meet until May 2020. One of its first orders of business was to review and adopt a Redevelopment Plan already in progress for downtown Aiken, one compliant with Part 100 that defined nine requirements (1) for a finished plan. This plan was described at the first meeting by Aiken Economic Development Director Tim O’Briant:
We have engaged a firm out of Greenville, SC called Muldrow & Associates to do a very small redevelopment plan, essentially surrounding the Regions Bank Building which is now being retrofitted as the new City Hall. It includes the corner of Laurens and Richland. If this group has any thoughts about Hotel Aiken, it would be appropriate to have those discussions. Whether we come up with anything or not, we can’t really get into it if we don’t have a plan that encompasses that area. He noted that the former Regions Bank building is currently being redeveloped as the new City Hall. He said we would like to get input from the Commission on this as well.
From the very beginning, the AMDC was informed that any redevelopment plan must be specific; a plan must “encompass” the area proposed for redevelopment. The Muldrow plan does not address any redevelopment on Newberry Street (which is not a “blighted” area in any sense of the word) nor Park Avenue (also lacking any blight issues); it proposed no changes in street layouts, and it did not propose to relocate a single business.
In reference to properties east of the Hotel, such as the historic former Johnson Drug Store building, the Muldrow plan specifically states “existing buildings to remain.” All other “redevelopment” is merely streetscape improvements.
The AMDC adopted the Muldrow plan by a resolution a few months later, but never held its own public hearing as required by Part 100:
d) The commission shall hold a public hearing prior to its final adoption of a redevelopment plan. Notice of such hearing shall be given fifteen days prior thereto in a newspaper of general circulation in the municipality.
This clause functions to avoid burying major projects within larger city business proceedings. But the AMDC took the latter approach by forwarding the plan to Aiken City Council, which shortly thereafter approved it following two “public hearings” held during normal City Council business.
There has been no update or amendments to the plan as required by law, and when asked for the Project Pascalis Redevelopment Plan required by SC 31-10-100, the AMDC provides only a link to the Muldrow prepared plan, titled “Redevelopment Plan for Downtown Aiken,” or “Redevelopment Plan One.”
Even without any Plan Two, the AMDC proceeded to announce the existence of Project Pascalis less than eight months later. Although the AMDC kept the details secret, we now know the initial plan pursued by Weldon Wyatt’s GAC, LLC and facilitated by Wyatt and Attorney Ray Massey’s WTC Investments, LLC was to:
demolish everything on the south side of Richland Avenue between Laurens and Newberry Streets
demolish half of the west side of Newberry Street;
force eight businesses to relocate; and negotiate a deal with Newberry Hall to compensate the owners for lost business during construction and options to operate and purchase the new conference center building;
privatize part of Newberry St.
The WTC plan involved purchasing the seven properties from two owners, with $7.5 million going to Neel Shah’s various LLCs holding six of the properties; and $2.0 million going to Myrtle Anderson for Newberry Hall. Wyatt pursued a private-public partnership with the AMDC and City of Aiken, then abruptly withdrew from the negotiations and the purchase and sale agreements in May 2021 just two months after the first announcement of Project Pascalis. The AMDC chose to not disclose this change in plans.
The AMDC Secretly Pursues a New Developer
After Weldon Wyatt’s GAC, LLC withdrew from negotiations for a master agreement with the AMDC, the Chamber of Commerce stepped in and took “assignment” of the properties while the AMDC sought to procure funding to buy them outright. This process was kept secret until November 2021, and was never openly discussed or announced even then.
Instead of formulating a new redevelopment plan, the AMDC instead sent out solicitations for Request for Proposals to select developers. The entire solicitation remains classified as “confidential” and exempt from FOIA by the City of Aiken, although the AMDC has released a summary document.
However, under Part 110(c) of Title 31, the AMDC was obligated to advertise for bids:
c) The commission shall, by public notice, published once a week for two consecutive weeks in a newspaper having general circulation in the municipality, invite proposals and shall make available all pertinent information to any persons interested in undertaking a purchase of property or the redevelopment of an area or any part thereof.
As reported previously, the AMDC did not advertise for bids until two weeks after announcing the selection of RPM Development Partners, LLC as the Project Pascalis developer, pending the successful negotiation of a master agreement.
This was all kept secret through most of 2021, and the AMDC never sought to update its redevelopment plan as required by law. Even as late as November 4, 2021, City Manager Stuart Bedenbaugh denied there was any final plan to demolish the Hotel Aiken and chose not to divulge the original demolition plans, or the fact that the AMDC’s purchase and sale agreements only required inspection of two properties — Warneke Cleaners and Taj Aiken Restaurant.
Board Member Knowles expressed appreciation for the update and inquired as to whether the plans intended to keep Hotel Aiken intact. Mr. Bedenbaugh stated it was too early in the process to know what potential developers may intend for the Hotel Aiken property. — Design Review Board Special Workshop Meeting Minutes, November 4, 2021
To this day, Bedenbaugh refuses to release the full May 2021 solicitation letters and the body of the RFQ that would indicate the original intent of the AMDC.
The Design Review Board meets in another special workshop tomorrow. The Board should be reminded they have no obligation to act on a proposal that is in clear violation of SC redevelopment law, and every right to demand full transparency from City officials.
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References
(1) The nine requirements for a finished redevelopment plan are defined in SC31-10-100(c):
c) The commission’s redevelopment plan shall include, without being limited to, the following: (1) the boundaries of the redevelopment area, with a map showing the existing uses of the real property therein; (2) a land use plan of the redevelopment area showing proposed uses following redevelopment; (3) standards of population densities, land coverage, and building intensities in the proposed redevelopment; (4) a preliminary site plan of the redevelopment area; (5) a statement of the proposed changes, if any, in zoning ordinances or maps; (6) a statement of any proposed changes in street layouts or street levels; (7) a statement of the estimated cost and method of financing redevelopment under the redevelopment plan; (8) a statement of such continuing controls as may be deemed necessary to effectuate the purposes of this chapter; (9) a statement of a feasible method proposed for the relocation of the families displaced.
