According to the Legal Information Institute at Cornell Law School, an “attractive nuisance’’ is a legal doctrine involving “a dangerous condition on a landowner’s property that may particularly attract children onto the land and pose a risk to their safety.”
As reported in Fencing After The Fact, in the earlier years of the Citizen’s Park Splash Pad there was an unfenced grate in the grassy area just 12-15 feet from the pad. A toddler wandered onto the grate in the middle of a scorching July day and suffered severe burns. The South Carolina Municipal Insurance and Risk Fund (SCMIRF), the City of Aiken’s “insurance company,” settled a subsequent lawsuit with characterized the grate as an attractive nuisance for $170,000.
Two of the attractive nuisances that exist in Aiken’s Parkway District include one that is privately owned, and one owned by the city. The private property is downtown and has “Unsafe Building” signs. The City property, which is in a residential area, has none.
‘The Aiken New Yorker.
The Aiken New Yorker building at 314 Park Avenue, Southeast, has been vacant for more than a generation. It is unoccupied, but it is not unsecured. There are three stout doors in the front that are tightly locked. The windows are thick and not cracked. It is not a building that invites vagrants or squatters. No child could break into it.
The back of the building is in rougher shape and, though still secure, an arguably poses an attractive nuisance.
The front of the Aiken New Yorker Building on Park AvenueThe rear of the Aiken New Yorker building.
On April 20, 2023, the building was designated as unfit for human habitation by the City of Aiken. Two official “UNSAFE STRUCTURE” signs were posted on two front doors and one in the rear. Any designation of unsafe structure triggers a legal process than can result in government demolition at one extreme and restoration at the other.
The two signs on the doors of the Aiken New Yorker building.
Jackson Petroleum Property
Five blocks away is the city-owned Jackson Petroleum property. It consists of three parcels at 102, 112, and 114 Williamsburg Street, SE, that were collectively purchased in March of 2021 for $175,000 by the Aiken Municipal Development Commission (AMDC). The AMDC sought to attract a developer who could turn the site into an apartment complex; as part of the larger Williamsburg Street/Farmer’s Market redevelopment effort.
The property consists of two old dilapidated houses categorized as warehouses, the old, vacant and blighted two story Jackson Petroleum office building, and three old open warehouses of various sizes. The combined area is just over two acres.
At one p.m. on May 8th, a 60-year old man was found dead in one of the buildings classed as a warehouse.
At Aiken City Council’s meeting that evening. Aiken resident Jacob Ellis inquired about the situation during “public comments on nonagenda items,” when citizens can comment on any city issues to Council.
According to the official meeting minutes, Mr. Ellis asked about “what was being done to hold the landlords accountable to seal up the buildings that are abandoned to stop people from getting in these buildings. He pointed out that there are a lot of buildings downtown,the south side,north, east and west sides abandoned. He asked what is being done to hold the landlords accountable to lock the buildings up so people can’t access the abandoned buildings.”
The official response included the fact the building is a city property (now that the AMDC is dissolved its property and assets were conveyed to the city), the entry to the building where the deceased man was found was forced open, and according to “the information we received”the properties were secured.
Exactly one month later on June 8th, the grounds of the Jackson Petroleum property arguably illustrated a classic example of an “attractive nuisance.”
The back of the old office building features a staircase, plywood boards on doors , and an open roof. One dilapidated home has a cheap rusting lock on the door, which can be pried open several inches and could be easily broken. The gate to the back was wide open, with a few old, easily accessible warehouses. All of this is in a residential area and across from Farmer’s Market.
Bottom photo; Wide open gate with a no trespassing sign. June 8, 2023 . Middle photo; rusty lock on low quality door. Top photos; open windows, stairs leading to open roof, and blighted building with rusted lock.
At the 32 minute mark of the June 12th Council meeting Mr. Ellis again spoke about the situation.
“I drove by it tonight. There’s broken windows, broken glass, the gate is wide open for anyone and everyone to go in there. My question to City Council is, what is actually being done to secure the abandoned properties and hold landlords and the city accountable when they don’t secure properties?”
Mayor Rick Osbon replied; “Yeah, I mean it just needs to be secured no question if it’s not. So you went by today?’
Mr. Ellis answered, ‘I went by five minutes before I got here and the gate is wide open,” before being thanked for speaking.No commitment was made to secure the property.
In spite of the obvious unsafe conditions, there are no “Unsafe Structure” signs stating the structures are unsafe for human habitation. The few “no trespassing” signs are easily overlooked. Even with the gate closed, there are still accessible unsafe structures. Even the front of the former Jackson Petroleum office building is considerably less secure than the Aiken New Yorker building.
As witnessed during the Pascalis project proceedings, when a shrub was left in a window on AMDC owned property on Laurens Street for ten months, there can be one standard for government owned structures and an entirely different one for private property.
Another unsafe situation outside the gate at the Jackson Petroleum properties.
Aiken State Representative Melissa Oremus Stands Up for Texas with Copy and Paste Legislation
by Don Moniak
January 16, 2023
South Carolina State Representatives Melissa Oremus (R-Aiken) (1) and James Burns (R- Greenville) are the sponsors of legislation that would prohibit public “investment in companies that boycott energy companies.” Specifically, the law would require South Carolina’s State Fiscal Responsibility Authority (SFRA) to prepare and maintain a list of companies that all state agencies must use to “sell, redeem, divest, or withdraw all publicly traded securities” of any financial company determined by the authority’s Executive Director to be involved in boycotting investment in fossil-fuel producing companies or companies that do business with them.
The legislation is not just modelled on other legislative examples, it is a duplicate (2). If there were a rule against legislative plagiarism, the bill would be discarded.
.With a few fill-in-the-blank exceptions to allow for differences in South Carolina pension management, House Bill 3525 (H3525) is otherwise word-for-word identical to Chapter 809 in Texas’ Public Retirement Systems code, including provisions prohibiting lawsuits for breach of fiduciary duty, or any other claim or cause of action against government entities or employees who may cause losses to pension funds as a result of enforcing the law.
The Texas law was enacted in 2021, and quickly stirred up considerable controversy, especially after dominant financial firms such as Blackrock and Vanguard had funds listed in the fossil fuel energy company “boycotters” category by the Texas Comptroller. The law has been described as “Infowars Investing,” by free-market investment supporters, and “cancel culture from the right” in an otherwise staid analysis by Forbes contributor and Oxford University economist Robert Eccles.
The Texas law was intended to dissuade ”environmental, social, and governance” influence in the financial sector, particularly as it pertained to Texas fossil fuel energy companies. Chapter 809 mandates that the Comptroller prepare and maintain a list of companies who “boycott energy companies,” defined as:
“without an ordinary business purpose, refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict econonic harm on, or limit commercial relations with a company because the company engages in the exploration, production, utilization, transportation, sale, or manufacturing of fossil-fuel based energy and does not commit to meet environmental standards beyond applicable federal and state law.”
Once on the list, any government entity such as a pension program is required to meet a schedule to sell, redeem, divest, or withdraw the firm’s publicly traded securities. There are a few loopholes that allow divestment to be delayed, such as if the move “will likely result in a loss of value.”
The Texas law was intended to protect Texas fossil fuel companies, an industry that employs an estimated 450,000 workers who collectively produce 43% of the nation’s crude oil and 25% of our natural gas supplies. Because of the massive size of Texas’ public retirement systems, lawmakers sought to prohibit involvement in the system by companies deemed to be a threat to the state’s largest industries; and thus try to deter efforts to use the financial system to deprive fossil-fuel companies of investment funds.
In contrast, South Carolina is not a coal mining, oil and gas production, or refinery state. Efforts to prevent off-shore oil and gas drilling have bi-partisan support. Texas energy production is measured on the Department of Energy charts by the thousands of trillions of BTUs, South Carolina is measured by the hundreds of trillions of BTU’s. Yet, according to The Nerve, South Carolina politicians appear as adamant as their colleagues in Texas about protecting fossil fuel energy companies as Texas and coal mining states like West Virginia; but almost entirely from an ideological perspective and not one of economic self-interest.
Could Oremus (2) and Burns’ legislation mean South Carolina’s public pension fund management decisions, as they pertain to “fossil-fuel boycotting companies,” will be influenced by the Texas Comptroller’s listing decisions? Since the law does allows the divestment list to be prepared using information provided by “governmental entities,” why prepare a new list when the Texas Comptroller already has completed the task and the intent of the legislation is clearly to emulate Texas?
Footnotes
(1) An example of the word for word nature of the legislation:
The South Carolina bill:
The Texas Law:
(2) Representative Oremus declined to answer questions posed in an email. Oremus is locally notorious for conducting closed debates. She deleted her official Facebook account sometime in late 2021 or early 2022; and requires permission to comment.
10/24/22 Aiken City Council Meeting Review, Part 2 by Don Moniak
October 26, 2022
The third item of new business on City Council’s agenda Monday night was the eagerly anticipated repeal of the Newberry Street privatization ordinance—passed unanimously on March 28, 2022, and by a vote of 6-1 on May 9, 2022. The ordinance allowed the city to “convey” a portion of Newberry Street to Pascalis project developer RPM Development Partners, LLC (RPM) (1) if and when a master development agreement was signed between RPM and the Aiken Municipal Development Commission (AMDC) to pursue Project Pascalis.
The ordinance also included an “exchange” of property, with two smaller parcels owned by RPM collaborator Aiken Alley Holdings, LLC being transferred to city control. However, since the same property would ultimately end up in RPM’s possession following construction, any public benefit from that provision was always a murky matter.
121 Newberry Street, former home of Joe Harrison’s State Farm Office. Purchased by Aiken Alley Holdings for $625,000 in March, 2021. The building was part of a demolition application submitted in late June, 2022 (top photo) and withdrawn less than a week later. The building is presently marketed for a one-year lease at $1,800 per month.
The repeal of the ordinance is being pursued for two official reasons:
On September 14, 2022, RPM terminated its contract with the AMDC to purchase seven AMDC-owned properties; owned by the AMDC since November, 2022. The AMDC purhcase was funded by a $9.6 million city municipal bond issuance.
On September 29, 2022, the remnants of the former nine-member AMDC voted 5-0 to render null and void the Purchase and Sale agreement that RPM had terminated two weeks prior.
The reading of the ordinance was preceded by a formal recusal by City Attorney Gary Smith, whose legal firm’s partners include RPM and Aiken Alley Holdings investor and agent Ray Massey. Smith’s failure to recuse himself—and refrain from advocating for the privatization effort—during the first reading on March 28th drew substantial public ire and the unpleasant role as a defender in three subsequent lawsuits alleging conflict of interest and violations of state ethics law.
Smith stated, at the 40:40 mark of the meeting:
Mr Mayor, I’m going to recuse myself from this discussion. Attorney Daniel Plyler is here to assist Council. I’ve filed my potential conflict of interest statement with the city clerk. Thank you sir.
The ordinance reading then proceeded, with City Manager Stuart Bedenbaugh describing the repeal ordinance (2) to the four council members in attendance—three members being absent. After Presiding Officer and Mayor Rick Osbon opened the floor to public comment, three people took the opportunity to comment. Unlike on May 9th, no citizens affiliated with the Chamber of Commerce took the podium.
Aiken resident Debbie Traves Brown presented the language in the Do It Right! Alliance’s ongoing petition (3) drive as a stronger alternative to the proposed repeal language. Under Section 5-17-10 of South Carolina law, fifteen percent of registered voters or more in any municipality are allowed to “propose any ordinance” to their local government.(4) Brown read from a prepared statement that was submitted for the record:
Do It Right! Alliance supporters are here to advocate amending the Newberry Street repeal ordinance by substituting the language from the petition that has been signed by more than 2,600 registered voters in the City of Aiken:
AN ORDINANCE TO PROHIBIT THE CLOSING OF ANY PART OF NEWBERRY STREET AND TO PROHIBIT ANY INTRUSION IN NEWBERRY STREET PARKWAYS. Explanation: Newberry Street and its parkways are an integral part of the historic Aiken street grid system and should not be closed or altered for any reason, but especially not to benefit a private developer. This ordinance will also repeal the proposed transfer of a portion of Newberry Street to a private developer.
Seven minutes later, after comments by two other speakers (5), Council voted 4-0, without any discussion, to approve the repeal. Ms. Brown then asked from the audience, “What about the amendment?”
Mayor Osbon replied:
We have a second reading also. I think there will be a discussion. I mean it would be something that would be appropriate to consider before the second one. I mean to work on a substantial change, I don’t think it would be too uncommon to say we would look at that and consider it and have a conversation before second reading. I mean I appreciate the work, obviously I think we all do, but that is the first time I’ve seen it.
The Mayor may have misspoke, but the idea that the petition is new is incredulous, as the Do It Right! Alliance petition drive is now in its fifth month and it has garnered substantial publicity. The indifference of City Council to citizen input mirrored that of March 28th, when Council deflected or otherwise ignored an hour of public concerns and requests to reject privatization of Newberry Street.
How significant is it that 2600+ signatures of registered voters were collected during the heat of a typical slow-news South Carolina summer? For perspective, during the 2019 municipal election:
Councilwoman Kay Brohl was elected with 568 votes, out of 899 votes cast.
Councilwoman Gail Diggs was reelected with 390 votes, out of 458 votes cast.
Mayor Rick Osbon won an uncontested reelection with 1784 out of 1909 votes cast—-125 were write-in votes.
During the 2017 municipal election:
Councilman Ed Woltz was first elected with 434 votes, out of 630 votes cast.
Councilwoman Andrea Gregory—who described the Do It Right! Alliance movement to the Aiken Standard as “a very small group of people”—was first elected with 156 votes during an uncontested general election; after winning the primary election with 222 votes, out of 392 cast.
The last significant turnout for a city election was in 2015, when RIck Osbon won his first race for Mayor, defeating Lessie B. Price by a 65 percent (4,840 votes) to 35 percent (2,624 votes) margin.
The turnout among registered voters in 2019 was just over nine percent, and in 2017 it was just below nine percent. In 2022, more than eleven percent of registered voters within the City of Aiken have signed a petition demanding four new ordinances be passed. Although spread out over several months, the petition represents the the largest engagement by Aiken voters since 2019.
A Look Back at the Blight Fright
The absence of discussion by Council following public comment could be due to advice from Attorney Daniel Plyler during the prior closed-door executive session held to discuss Project Pascalis legal issues. But it still stood in marked contrast to the lengthy commentaries from individual council members, on both March 28th and May 9th, portraying downtown Aiken as dilapidated, blighted, in decline, and in need of a $100 million plus demolition and redevelopment facelift.
On March 28th, Councilwoman Andrea Gregory (above) claimed that “many citizens in Aiken that have called me that are big preservationists supporting this project , because the woven aspect of the downtown grid is dilapidated.”
On March 28th, Councilwoman Gail Diggs (above) stated “I don’t want downtown in that area to look like an eyesore anymore. I work for a health center and one of my responsibilities is to take potential doctors from all over the country around to look at our city. Each time I ride downtown they ask what is that and how long it has been emptied…what are our plans and what are we going to do about it, why don’t we get rid of it. I hear that all the time.”
On May 9th, Councilwoman Kay Brohl (above) told a tale about how downtown Aiken in the 1980’s was so empty “you could shoot a cannonball and not hit a single car and there was no worry about parking there was parking everywhere,” assertions challenged in Rumors of Aiken’s Early Demise Are Greatly Exaggerated.
Although stating that he supported the project, Councilman Ed Woltz (above) was the only member who did not tell a story of blight, and the sole dissenting vote against privatization:
“ The majority of people I’ve spoken to say we’re not totally against the project we’re totally against the size the scope of it and and we’re not offering an alternative to it. Correct me if I’m wrong but once we approve this the master development agreement has to be worked out between the economic development commission and the builders it does not come back to council for anything we don’t have the final word in that. I think it’s something this big, it’s our obligation to the citizens of Aiken that we take a look at this before we give away the street.”
Not a single councilmember, including Ed Woltz, spoke about the nine businesses that would be forced to close or relocate before demolition began, such as Newberry Hall, Warneke Cleaners, Taj Restaurant and the three businesses seen below in the historic Berkman Building.
The second reading of the Newberry Street repeal ordinance is scheduled for Monday, November 14th. City Council has three weeks to address whether the final repeal ordinance will only remove RPM from the books, for now, or will provide more certainty to existing businesses and citizens concerned with the future of downtown Aiken.
Demolition of the Berkman Building was approved on March 1, 2022, but the approval was voided when RPM terminated its contract.
________________
(1) RPM stands for Raines Company, Lat Purser Company, and Ray Massey. The consortium was founded in October 2021 for the purpose of pursuing a public-private partnership with the City of Aiken’s Municipal Development Commission. RPM signed a Purchase and Sale Agreement and a Cost Sharing Agreement with the AMDC in December, 2022. Both documents remained sealed, as the AMDC continues to claim FOIA exemptions as still legally valid, and refuses to release any information unless ordered to do so by the courts.
(2) The Newberry Street Repeal Ordinance:
(3) The Petition reads:
We the undersigned registered voters of the City of Aiken oppose a project of the City of Aiken and the Aiken Municipal Development Commission entitled Project Pascalis because it threatens the historic character of our beautiful Aiken and our quality of life. Pursuant to Section 5-17-10 of the Code of Laws of South Carolina, we propose the following ordinances to the Aiken City Council:
1. AN ORDINANCE TO PROHIBIT THE CLOSING OF ANY PART OF NEWBERRY STREET AND TO PROHIBIT ANY INTRUSION IN NEWBERRY STREET PARKWAYS. Explanation: Newberry Street and its parkways are an integral part of the historic Aiken street grid system and should not be closed or altered for any reason but especially not to benefit a private developer. This ordinance will also repeal the proposed transfer of a portion of Newberry Street to a private developer.
2. AN ORDINANCE TO REQUIRE THE CITY OF AIKEN AND ITS COMMISSIONS AND BOARDS TO FOLLOW THE REQUIREMENTS OF THE CITY’S OLD AIKEN MASTER PLANAND THE OLD AIKEN DESIGN GUIDELINES. Explanation: The City adopted the Old Aiken Master Plan and the Old Aiken Guidelines which limit building heights in the Overlay District to three stories and protect the historic character of Downtown Aiken. The City and its Boards and Commissions must be required to follow its own rules.
3. AN ORDINANCE TO REQUIRE THE CITY OF AIKEN TO TAKE ALL STEPS NECESSARY TO GRANT LANDMARK STATUS TO THE JOHNSON PHARMACY, THE HOTEL AIKEN, and the HISTORIC 19th CENTURY ORIGINAL STREET GRID OF THE CITY. Explanation: These buildings and the original Aiken street grid are very significant to the history of Aiken and should receive the highest protection of the City’s historic preservation ordinances.
4. AN ORDINANCE TO ABOLISH THE AIKEN MUNICIPAL DEVELOPMENT COMMISSION (AMDC) AND TRANSFER ITS REAL PROPERTY AND ANY OTHER ASSETS TO THE CITY OF AIKEN: Explanation: The plans proposed by the AMDC have been contrary to the rules and ordinances of the City of Aiken and to the best interests of the citizens. Decisions about the future development of our City should be made by City Council members accountable to the public rather than unelected bureaucrats.
(4) SECTION 5-17-10. Electors of municipality permitted to propose ordinances.
“The electors of a municipality may propose any ordinance, except an ordinance appropriating money or authorizing the levy of taxes. Any initiated ordinance may be submitted to the council by a petition signed by qualified electors of the municipality equal in number to at least fifteen percent of the registered voters at the last regular municipal election and certified by the municipal election commission as being in accordance with the provisions of this section.”
(5) Comments by Donald Moniak, from the following statement:
The ordinance states the project was terminated. But this is contradicted by other statements. Stuart Bedenbaugh last week wrote in an affidavit the plan is “on hold.” Tim O’Briant has said the “process is ongoing.”
When describing the project last week during a court hearing, attorney Clark McCants described it as having “ several arms to what the city is doing.” And Newberry St is one of those arms. That has been one problem with the project—-too many arms. It has been segmented into two many parts, too many jurisdictions. It had no cohesion.
Newberry Street privatization was first proposed in early 2021 in secret, but not publicly disclosed for a year. That is stealthy, and stealth has been another problem with the project.
There are other stealthy arms of this project that should also be addressed, and the project should stop being treated in pieces.
First, the Redevelopment Plan that was adopted by this council via a resolution on August 12, 2020 needs to be formally cancelled. The AMDC motion on 9/29 only proposed to cancel it; and the commission does not have the authority to go any further.
Furthermore, this plan was never adopted in accordance with SC Community Development Law. There was no Public Hearing by the AMDC, as required by law; and City Council did not hold a formal reading such as this one that required public notice. As such, the Redevelopment Plan was forwarded for approval illegally, and adopted without proper notification it was even under consideration.
Second, the AECOM PLan. This plan was approved on March 22, 2021 under the false premise that it qualified as a redevelopment plan. It was not. This council approved it in spite of not even having the full report. It also appears that nobody read it. How about a show of hands: How many of you read the passage stating the equestrian community is “insular?”
The bond issuance of August 2020 needs to be addressed. Why is it that this was advertised as involving property in the wider “Parkway District” when there was full knowledge of which properties were involved?
Keith Wood has complained about being deceived by unnamed City Staff, but this bond passage might have been the most deceptive episode in Aiken City Council history. Mr. Wood wrote a memorandum that did not define or name the seven properties under assignment to the Chamber of Commerce but under control of the AMDC. He used “The Parkway District” too.
But it was well known at the time which properties were involved because the Chamber of Commerce had taken assignment of those properties from WTC Investments in May of 2021 and the AMDC described it to prospective developers as being under their its control.
So that’s just a few aspects of this they’re all conducted in stealth that need to be addressed. You need to not address one arm of this project, you need to address the whole body of the project. YOu know the whole thing should just be canceled. You should step back, abolish the AMDC, start all over again. Put the properties they own in some kind of a trust that’s owned by the city or the Aiken public facilities Corporation. Put it on the market but offer the properties that have existing businesses, offer those to the people who own those businesses first and then see what happens from there
You’ve tried two years of government intervention so maybe you got to go back to try and free market thank you all right thank you.
Comments of Kelly Cornelius, from You Tube Transcript.
My name is Kelly Cornelius. First of all thank you. This is what I asked for about 5 months ago after you voted to give away Newberry Street. I put in a formal appeal, as I’m sure you’re aware of. It was heard last Wednesday. The judge did not rule on it while we were there Wednesday. The attorney for the city said that it was the wrong jurisdiction.
But within 24 hours — less than 24 hours — you put this on the agenda to be heard tonight. So I cannot even get a shirt dry cleaned that fast, so I’m very happy that it’s up to be repealed this evening. … But in the bigger picture, it’s a sad day when we have to go to those lengths to get a city street back. So it’s the first step and, again, I support it.
I also support the stronger language that Debbie Brown mentioned. That sounds like that would protect it even further, and I think the next step after giving back Newberry Street is to indeed abolish the AMDC. Thank you.
Today the South Carolina Forestry Commission (SCFC) issued a media advisory urging “vigilance against wildfire as Hurricane Ian approaches,” and for people to postpone any outdoor burning. The Forestry Commission is the only state agency responsible for suppressing all wildfires in unincorporated areas of the state—-an area of nearly thirteen million acres.
The risk of an uncontrolled wildfire might be the last thing on the minds of South Carolinians listening to a tropical storm forecast and watching scenes of Hurricane Ian battering Florida. But as SCFC Chief Darryl Jones pointed out in the news release, dry fuel conditions coupled with high winds have created a “window of danger (that) might be short, but it is also very pronounced.”
The second half of September was abnormally dry, with the National Weather Service reporting less than one-tenth of an inch of rain in the past two weeks across most of South Carolina and Georgia.
Second half of September 2022 abnormally dry with less than one-tenth inch of rain across most of GA and SC
One result are small, woody forest fuels as dry as levels found in arid portions of the Western U.S. “One hundred hour fuels,” defined as woody debris between one and three inches in diameter, are now generally below fifteen percent across South Carolina.
100 hour fuels below 15% in South Carolina
Fuel moisture for “Ten Hour Fuels,” which are twigs from a quarter inch to an inch, is as low as levels measured in the Great Basin and West Texas. “Ten Hour Fuels” moisture also is an indicator of the dryness of the more combustible pine litter layer.
Fuel moisture for ten-hour fuels as low in South Carolina as levels measured in the Great Basin and West Texas
Adding to the dry fuel conditions are two days of increasingly strong winds ahead of the storm and below normal relative humidity. Wednesday’s minimum relative humidities dipped below 25 percent, and Thursday is forecast in the high thirties to low forties. Fifteen to thirty mile per hour winds are forecast prior to the advent of any moisture.
Anybody igniting a fire in anticipation of rain could easily burn down a home or two long before any rain arrives to help control a wildfire. South Carolina residents are well-advised to heed the fire warning from the Forestry Commission.
