Page One view: Plaintiffs and Defendants in Project Pascalis lawsuit.
Lawyers for nine plaintiffs, including the Historic Aiken Foundation, Green Boundary Foundation and former City Councilperson Dick Dewar, filed a complaint in the Second Judicial Circuit of South Carolina against two dozen City of Aiken officials and a pair of development companies collaborating with the city to demolish and reconstruct a substantial portion of historic, downtown Aiken.
Pages one to thirty-six of the plea assiduously outline the legal basis for their claims, including South Carolina Community Development, Freedom of Information, Ethics and Government Accountability statutes; and City of Aiken zoning ordinances.
Pages 36 to 90 contain the general factual allegations and provide welcome summertime nonfiction for a majority of Aiken area residents who object to Project Pascalis. Like a good true white collar crime story, the allegations detail sham proceedings, citizens locked out of a distorted and confusing public process, conflict of interest violations from the Mayor to the City Attorney, and city boards that regulate the public while serving the developers they are charged with monitoring.
Recently obtained documents confirm the evolution of the $75-100 million downtown demolition and reconstruction effort known as Project Pascalis. While one of the earliest project descriptions indicated a greater presence on Laurens Street, every conceptual design from the early days includes substantial development in The Alley, and an absence of options for renovating historic buildings such as the Hotel Aiken.
Today, The Alley is in the midst of the project area, yet city officials have denied or downplayed any plans that may impact the popular gathering area and its businesses, just as officials withheld conceptual designs from 2021—just four years removed from the multi-million dollar renovation that disrupted local businesses for more than a year.
For example, at the Aiken Municipal Development Commission’s (AMDC) April 20, 2022 public “design review” meeting, the following submitted question was read aloud by the meeting’s Zoom moderator:
How much more will the Project Pascalis footprint grow? In 2020 downtown redevelopment only included properties fronting Richland and the new municipal building. The most recent online map includes Newberry. Now with the addition of the (old) Municipal building the project (area) has grown threefold and an (private) ownership island occupies the middle. Are there any plans for this existing private property?
The answer from AMDC executive director and meeting moderator Tim O’Briant was: “there are none.” (1)
One of the earliest Project Pascalis documents is the Wyatt-Boudreaux Group letter of agreement, recently obtained from the City of Aiken via a Freedom of Information Act request.
On March 12, 2021 Boudreaux Group of Columbia President Heather Mitchell signed an agreement to complete “Downtown Development Project Conceptual Design Services” on behalf of Wyatt Development (GAC, LLC) (2) for an unnamed project involving a 100 room hotel, 125 unit apartment complex, conference center with a 450 seat capacity, upscale retail space, and a parking garage large enough to complement the development.
The Wyatt-Boudreaux agreement was finalized ten days after Weldon’s WTC Investments, LLC had signed a contract to purchase three downtown properties—collectively referred to later as the “Shah Property”—for $7.5 million. (3) WTC’s involvement came only one year after it backed out of a similar project at the “old hospital” and Aiken County office complex at 828 Richland Ave E. (4) Its “agent” in both the downtown Aiken deal and the failed old hospital venture was Aiken Attorney Ray Massey, whose law partner Gary Smith has served as Aiken City Attorney for more than twenty years.
The Wyatt-Boudreaux agreement described the project as encompassing everything from The Antique Mall on Laurens to the Hotel Aiken, wrapping east around Richland Avenue to Newberry Street, south to The Alley, and north up Bee Lane. The description clearly includes buildings in The Alley as well as the eastern portion of the Aiken Municipal Building on The Alley’s south side.
Aiken Antique Mall, Candidate for Demolition in March 2021
Three days after the agreement was signed by Boudreaux and sent to Wyatt for his signature and Tim O’Briant for his records, Ray Massey’s “Aiken Alley Holdings, LLC” moved forward on procuring a key portion of The Alley for the project. On March 15th his investment firm—registered with the SC Secretary of State only a month prior—closed on a $2.025 million deal for 200 The Alley and 214 The Alley, parcels housing TakoSushi, Aiken Taproom, and several other businesses. The deal also included a parking area behind 214 The Alley on Bee Lane.
Three days after the closing, the AMDC publicly announced Project Pascalis. Few details were announced beyond the news of a commission resolution allowing AMDC Chair Keith Wood and O’Briant to pursue an agreement with an “experienced and well-capitalized” private developer the commission had “recruited and identified.”
In a subsequent interview, Tim O’Briant told the Aiken Standard “transparency is key” and promised additional pubic information within a few months. The Boudreaux/Wyatt agreement specified a timeline of April 12, 2021 for a presentation to City Council and “invited stakeholders.” The terms “public meeting” and “public hearing” are absent from the agreement.
That schedule was never met. No public meetings or presentations to council were held in April, 2021. However, the AMDC did meet behind closed doors in Executive Session on April 13th; a habit the commission would undertake during more than sixty percent of its meetings in the next six months. (5)
(1) April 20, 2021 AMDC “Design Workshop,” 5:30 meeting to 7:00 pm meeting that extended into a scheduled City Council work session. Listen to question/answer at 2:56:07 in the video below.
(2) Weldon Wyatt signed the agreement on March 23. The words “Wyatt Development Company” are crossed out below the letterhead and on the signature page, and “GAC, LLC” is handwritten in their place. This typo may have foreshadowed Wyatt’s early exit from the project; as well as the general lack of attention to detail that has plagued the project. The last version of Wyatt Development, LLC was actually dissolved in April, 2013.
(3) From: “Resolution Authorizing Acceptance of Assignments
Adopted November 9, 2021” Aiken Municipal Development Commission:
“In anticipation of the Commission’s efforts to consolidate ownership of real property in connection with Project Pascalis, the Greater Aiken County Chamber of Commerce (the “Chamber of Commerce”) has entered into the following purchase and sale agreeme for the acquisition of such real property: (i) a Purchase and Sale Agreement by and between Myrtle H. Anderson, seller, and WTC Investments, LLC, as purchaser, dated April 15, 2021 (the “Anderson Agreement”), for the purchase ofreal property identified as TMS# 121-21-08-004(the “Anderson Property”) for the purchase price of $2,000,000; and (ii) a Purchase and Sale Agreement by and among Historic Hospitality, LLC, S&N Hospitality, LLC, Shah Enterprises, LLC, and Paresh Shah, LLC, collectively as sellers, and WTC Investments, LLC, as purchaser, dated March 2, 2021 (the “Shah Agreement” and together with the Anderson Agreement, the “Agreements”), for the purchase of real property identified as TMS# 121-21-09-002, 121-21-08- 001, 121-21-08-002, 121-21-08-003, 121-21-08-009, and 121-21-09-001 (the “Shah Property” and collectively with the Anderson Property, the “Properties”), for the purchase price of $7,500,000. (5) Pursuant to a bond ordinance of City Council enacted August 23, 2021, the City issued its $9,600,000 General Obligation Bond, Taxable Series 2021.”
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?
On Friday June 24 the City of Aiken posted 45 notices of a July 5th Design Review Board (DRB) hearing involving a proposal from the Aiken Municipal Development Association (AMDC) and RPM Development Partners, LLC to demolish the buildings on six properties in downtown Aiken, SC.
On Wednesday June 29 each of the 45 notices were prominently covered with a sign stating “withdrawn.”
Photos courtesy of Michael Aiken
Substantial confusion enveloped the issue, with the Aiken Standard reporting the hearings have been “postponed.” In a Zoom meeting at noon today to discuss Project Pascalis, Standard reporter Matthew Christian repeated the assertion the meetings were postponed; saying a city spokesperson cited proximity to the holiday weekend and undefined COVID-19 concerns for the postponement.
But according to DRB legal counsel Jim Holley, there are no pending applications, meaning the demolition requests are withdrawn—at least temporarily—and must be resubmitted for any hearing to take place. In an email addressing a related issue of possible ex-parte communications involving a Board member, Holley wrote:
“Based on my understanding, there are currently no pending applications before the DRB on the downtown project. Also, there are no work sessions currently scheduled on that subject.”
Mr. Holley served honorably as legal counsel for Aiken County Council for many years and presently is advising the Design Review Board during the most contentious downtown development plan of the century.
