How the Absence of an Inexpensive Safety Fence Led to a $250,000 Payout by the City of Aiken
by Don Moniak
January 2, 2023
On the afternoon of July 2, 2019, with temperatures in the mid 90’s (F), an eighteen month old child under the care of her mother stepped onto a grated metal hatch covering a mechanical equipment vault that sits ten to twelve feet away from the Splash Pad at the City of Aiken’s Citizens Park. The child suffered second degree burns on both feet.
Burn injury photos submitted in January 29, 2021 Court of Common Pleas complaint.
In a personal injury lawsuit filed January 29, 2021, on behalf of the minor child and mother, as guardian, Lexington Attorney Melissa Mosier wrote that the mother:
“turned around to check on the other two children with her at the splashpad when she heard a child cry out, and turned back to find her daughter H.N.P.M just a few feet away, standing on the metal hatch screaming. She ran to her child, who was stunned and crying out in agony, and a crowd gathered to try to assist this mother and child.
H.N.P.M. sustained serious injuries, including second degree burns (blistered burns) on the bottoms of both of her feet. This required her to be placed under general anathesia in an attempt to repair her wounds. See photographs of H.N.P.M.’s feet, noting the grate pattern.”
The claims made in the initial complaint included:
It was foreseeable that a child would wander to the nearby mechanical system and hatch, which posed “an attractive nuisance for children.”
The City of Aiken took no steps to “keep children away, protect them, or advise their parents of the dangers posed by the equipment vault or the hot metal surface concealing the mechanical equipment.”
“The City was on actual notice of the particular hazard posed by the unguarded and un protected equipment fault by virtue of a prior burn injury at the park – and despite this it failed to take any steps whatsoever to remedy the danger or even warn against it.”
In regard to the prior injury, Mosier contended the city was negligent for violating “its duty of reasonable care to fix known defects and hazardous conditions within a reasonable amount of time after notice;” and that the cost of fencing the hazard would be less than $1,000. That amounts to about 1/400th of the Splashpad site’s insured value. (1)
At the time, as seen in the photo below, there was no fenced area within the fenced splash-pad and grassy area. The metal hatch covering splash pad equipment, another grate, and an electrical juncture box had no signs indicating them as hazards, were not fenced separately, and were a part of the play area.
Citizen’s Park Splash Pad. Circled area shows location of metal grates in play area. (Photo from Google Earth)
In the response on behalf of the City of Aiken, Columbia attorney Daniel Plyler either denied all allegations or demanded more information; and offered a total of sixteen defenses. These included a standard, generic defense asserting full negligence by the mother, as well as Plyler’s standard “Fifth Defense” for personal injury negligence complaints against the city, the “natural disease process:”
“Defendant would allege, upon information and belief, that any injuries or damages sustained by Plaintiff were due to and caused by the natural disease process over which Defendant had no control and, as such, Defendant pleads such a natural disease process as a complete bar to this action.” (1)
In August, 2021, Plyler filed a Motion to Compel a response to submitted discovery requests regarding the mother’s life and work history, whether she had “ever received counseling or treatment for alcohol or drug addiction or use,” or used social media.
In October, 2021, Mosier answered with another Motion to Compel to answer Plaintiff’s discovery requests. Sometime between the lawsuit being filed and the latter Motion to Compel, the City’s Parks and Recreation Department had opted to fence the hazards that were in dispute, leading to question 21:
When was the fencing installed around the metal grate and who directed the installation of the fence?
Citizen’s Park Splash Pad with added interior fence around play area hazards. (Photo: Don Moniak)
“The City of Aiken denies any liability for the injuries but, through its insurance carrier, the South Carolina Municipal Insurance and Risk Financing Fund, respectively, proposes to compromise and settle the claims. The terms of the settlement of the sum of One Hundred and Seventy-Five Thousand Dollars ($175,000).”
The terms of the settlement involved a “payment directed to Independent Assignment Company for payment of periodic payments upon the minor child reaching maturity.”
The settlement also required the city to pay attorney fees:
“IT IS FURTHER ORDERED that attorneys’ fees of $70,000.00 and the costs incurred in handling this action are reasonable, and they are hereby approved.”
In total, the City of Aiken and its insurance fund paid out $245,000 for a settlement and for Plaintiff attorney costs. The cost of the city’s defense is presently unknown. The accident that led to the settlement was avoidable and preventable, but no action was taken to mitigate safety risks until after a lawsuit was filed. The settlement that may have doubled the city’s liability costs (3) over a one year period was not reported in Aiken’s newspaper of record.
Footnotes
(1) The Splashpad’s insured value, including the restroom, is $405,410. the City pays an annual insurance premium of $636 for the facility that includes liability coverage.
From City of Aiken 2022 Coverage Contract With the SC Municipal Insurance and Risk Financing Fund
(2) Thirteen of the defenses were generic in nature, word for word identical to the defense made in 2021 to another lawsuit involving a child’s injury at Virginia Acres park in 2019. In that case, a minor child fell over an electrical box and sustained unidentified injuries. The case was dismissed in February, 2022; and no settlement was noted in the available court records.
The same set of generic defenses were also made in the case of another personal injury/premises liability lawsuit against the city and SC Dot involving an adult who suffered an injury on Boardman Road.
(3) In terms of liability, according to the The City of Aiken Annual Comprehensive Financial Report for Fiscal Year Ended June 2022, the city “participates in two self-insurance plans whereby the self-insurance funds from other members of South Carolina local governments are pooled together for investment and administrative purposes. These pools accumulate assets and assume risks for the following: 1. Property and liability coverage with a limit of liability for the pool of one million dollars.” (Pages 83-84)
From City of Aiken Annual Financial Report for Fiscal Year Ending June 30, 2022.
The report also described litigation as a contingency in the budget, but did not address any underlying safety culture issues that might contribute to liability claims:
“The City is involved in several pending lawsuits. Liability, if any, which might result from these proceedings, would not, in the opinion of management and legal counsel, have a material adverse effect on the financial position of the City.”
$150,000 Jury Award in Owens vs Sheriff Michael Hunt et al.
by Don Moniak
November 30, 2022
The first general provision of Title 24 of South Carolina law—Corrections, Jails, Probations, Paroles, and Pardons—pertains to a Sheriff’s responsibility for managing county jails:
“The sheriff shall have custody of the jail in his county and, if he appoints a jailer to keep it, the sheriff shall be liable for such jailer and the sheriff or jailer shall receive and safely keep in prison any person delivered or committed to either of them, according to law.”
On November 4, 2022, an Aiken County jury in the Second Circuit Court of South Carolina returned a verdict finding Aiken County Sheriff Michael Hunt and three local government agencies grossly negligent in their supervision and confinement” of Aiken Detention Center inmate Otis Owens in January, 2017. The jury awarded $150,000 in damages.
Owens has a criminal record dating back to the late 1990’s for convictions ranging from receiving stolen goods and grand larceny to a variety of illegal drug possession charges. According to court records, at the time of the incident he was in pre-trial detention.
Sheriff Hunt was first elected in 2003, and since then has easily won five re-elections. Captain Nick Gallum is presently the Jail Administrator for the Aiken County Detention Center, but was not named in the lawsuit. The jail also has chronic understaffing issues—job openings for underpaid detention center officers are a fixture in the county’s jobs listings.
According to the sheriff’s office , the average daily population at the facility is 407 inmates. Around the time of the incident the jail reported to the Aiken Standardthat it had exceeded its official capacity—317 inmates at the time—sixteen times in 2016.
The case was filed in June, 2017; and the subsequent five years of litigation featured:
Sheriff Hunt and Aiken County declining an offer to settle, in 2018, for $75,000; and again in 2021 for $100,000.
Defense lawyers unsuccessfully preventing Sheriff Mike Hunt from being deposed.
Allegations emerging of pervasive mistreatment of inmates at Aiken County Detention Center; including another personal injury lawsuit in 2022.
The Aiken County Sheriff’s Office being accused of “gamemanship” and “nefariously colluding” to force a trial without Owens present.
Figure 1: Jury Verdict form, November 4, 2022.
Timeline of Owens vs Sheriff Michael Hunt et al(1)
June 20, 2017: On behalf of Otis Owens of Warrenville, SC, Greenville, SC Attorney Joshua Hawkins files a lawsuit against Sheriff Michael Hunt, the Aiken County Sheriff’s Office, the Aiken County Detention Center, and Aiken County, claiming:
“”On or about January 27, 2017, when the plaintiff was going in from the recreation yard, an Aiken County Detention Center corrections guard, in searching the plaintiff, probed the plaintiff’s belly button, ran his hands up the inside of the plaintiff’s legs, and grabbed and squeezed the plaintiff’s testicles. The guard maliciously and aggressively assaulted the plaintiff, going beyond anything necessary to search the plaintiff. The guard, while acting for the governmental defendants, acted in disregard for the plaintiff’s rights, and acted in a way that could only be construed as at least reckless and grossly negligent.”
The complaint went on to state that Owens requested and was denied medical treatment; but a month after the assault “ a sonogram revealed that the plaintiff had sustained injuries to his groin and that fluid had accumulated around his testicles, and was treated with Tylenol and antibiotics for ten days for the injuries he sustained as a direct and proximate result of the defendants’ tortious acts.”
The complaint asserted that “all governmental and non-governmental entities condoned and ratified the actions of guards, officers, employees, and agents acting on their behalf during the events related to this action.”
July 25, 2017: Attorney William Davidson, representing Sheriff Hunt, the Sheriff’s Office, and Aiken County, answers the complaint by denying all charges and claiming immunity for his clients.
June 15, 2018; Judge Keesley orders mediation, to be completed by October 1, 2018. The deadline is later extended to June 2019.
October 23, 2018: Owens offers to settle for $75,000, and defense declines offer.
October 23, 2019. Owens attorney Joshua Hawkins files a second lawsuit against individual Aiken County detention center guards. The complaint alleges that before assaulting Owens, Deputy Timothy Gibson “accused the plaintiff and other inmates of playing dice,” that no dice were ever found, and that Gibson had “violated another prisoner’s rights in the same way.” (2)
August 12, 2020: Following a separate incident, three Aiken County Detention Center guards are fired after an internal investigation into the beating of an inmate. (3)
December 21, 2021: Parties agree to a trial date the week of February 21, 2022.
February 5, 2022: “Due to unique circumstances,” the court orders a 90-day continuance of the case and the jury trial is postponed.
March 1, 2022: Attorney Hawkins files a Motion for Costs (4) describing the twist in the case leading to postponement. Before the trial date, Owens violated parole during house arrest and could not be located. Hawkins alleged that the Aiken County Sheriff’s office knew where Owens was located, chose not to apprehend him, and “nefariously colluded, deceived opposing counsel, and wasted the Court’s time for the purpose of attempting to force the trial without Owens present.
April 4, 2022: Attorney Davidson files a motion to quash to prevent Sheriff Hunt from being deposed, arguing that he had no firsthand knowledge and his position involves many responsibilities, and that being deposed would only serve to embarrass him:
“This witness, who is Sheriff of Aiken County, has little or no firsthand knowledge about the facts of this case. Any information he does have that is even arguably relevant can be gathered from other sources without burdening Sheriff Hunt for a deposition. Because of the demands of his position and the absence of any firsthand knowledge relevant to this case, requiring him to appear for a deposition would be a needless imposition on Sheriff Hunt and his many responsibilities and can only amount to an effort to harass, embarrass or cause undue burden on him in violation of the rules.”
An affidavit from Sheriff Hunt was also filed, in which he swore he was unaware of the facts in the case—even though the case also involved his overall management of the jail.
May 4, 2022: Judge Keesley orders a jury trial to begin October 31, 2022.
June 20, 2022: Circuit court judge William P. Keesley denies Davidson’s motion to quash the deposition of Sheriff Hunt, writing that because the allegations were part of a pattern in the Sheriff’s Department, that he could be deposed under oath:
“The Sheriff has filed an affidavit stating that he knows nothing about any issues related to this lawsuit, aside from what he has learned from staff. He argues that taking his deposition is a waste of time and that the Apex Doctrine prevents his being required to sit for a deposition because he is merely the head of the Department. The court finds that the plaintiff is entitled to depose Sheriff H. Without limiting the scope of the examination, there appears to be an ability to conduct this deposition based on the assertion that this alleged misconduct was a pattern in which members of the Sheriff’s Department engaged.”
Sheriff Hunt was deposed under oath and the deposition was entered into the court record. (5)
October 31 to November 4, 2022. After three previously schedule trials were postponed, a five day jury trial is held. Thirteen witnesses were listed for the Plaintiff, while the Defense called no additional witnesses.
The jury ruled in favor of the plaintiff that, based on the preponderance of evidence, the defendants were grossly negligent.
November 14, 2022. On behalf of the defense, attorneys Davidson and Andrew Lindemann file a motion for a new trial and to dismiss Aiken County from the case, arguing that:
The Sheriff is solely responsible for the management of the Aiken County Detention Center.
The Sheriff is a state officer and not a County officer; therefore Detention Center officers are employees of the Sheriff’s Office and not County employees, and therefore, “Aiken County is not liable under state law for any acts or omissions by an employee of the Sheriff working at the Detention Center.”
The verdict is “grossly excessive.”
There was no expert medical witness testimony.
The plaintiff failed to prove gross negligence in the hiring of employees.
The plaintiff should have filed a charge of assault instead of, or in addition to, gross negligence, against the guards.
In regard to the latter contention, Davidson and Lindemann argued that:
“ The gross negligence standard is not applicable to the intentional tort of assault and battery or any vicarious liability claim based on a sexual assault or sexual misconduct committed by Deputy Gibson. In other words, if the Plaintiff intended to bring a tort claim for the sexual misconduct alleged against Deputy Gibson, the proper cause of action would be for assault and battery – not for gross negligence.”
No date has been set to hear the motion for a new trial.
(2) Hawkins moved to consolidate the cases two months later, but it was instead transferred to federal court. On April 26, 2022, U.S. Magistrate Judge Molly Cherry granted a motion for summary judgement that dismissed all defendants in that case with the exception of detention Timothy Gibson. The case against Gibson is pending.
(3) The case was turned over to South Carolina Law Enforcement Division (SLED), which filed charges of “misconduct in office” against the three officers on January 15, 2021. Court records show a dismissal in one case; and the Aiken Standard reported the cases were diverted to alternative disposition routes.
On July 20, 2022 Neil Alger and Austin Crosby filed a civil suit against the Aiken County Sheriff’s Department on behalf of Clifford Beaudin, alleging gross negligence and claiming, in part, that:
“Additionally, ACSO has a practice and history of allowing violations of policies and procedures by employees pertaining to excessive force and the improper treatment of inmates.”
The case is pending.
(4) Three weeks after the case was continued for 90 days, Hawkins filed the March 1, 2022, Motion for Costs, which reads as follows:
“The plaintiff filed a motion for a day certain in this case, and this case was set for February 21, 2022. While preparing for trial, the undersigned learned that the plaintiff violated the terms of his parole and could not be located. Because the undersigned was unable to contact the plaintiff, the undersigned reached out to the defendants and indicated the plaintiff would resolve the case for the defendants’ last offer. The defendants instructed the undersigned to send power of attorney documents proving that the plaintiff’s mother had authority to settle the case, which the undersigned did. Then the defendants refused to settle the case.
When the defendants refused resolve the case for their last offer, the undersigned asked the defendants if they would agree to a strike the case pursuant to SCRCP 40(j) so that the undersigned could attempt to locate the plaintiff. The defendants refused. The undersigned then had to file a motion with the Court, which the defendants opposed and continued to oppose at a hearing on February 1, 2022.
After February 21, 2022, passed, Otis Owens was immediately arrested. A deputy told Owens that the Sheriff’s Office had known where Owens was for some time, but that Defendant Michael Hunt instructed deputies not to pick Owens up until after the trial date passed. This means that the defendants nefariously colluded, deceived opposing counsel, and wasted the Court’s time for the purpose of attempting to force the trial without Owens present. The defendants should have arrested Owens when they knew where he was instead of attempting to pull a fast one with the Court. Worse, is that the defendants are public servants and instead of doing the job tax dollars compensate them for, they engaged in gamesmanship, wasting tax payor resources with an unnecessary hearing in the process.
Based upon the conduct of the defendants, the plaintiff respectfully requests that the Court order the defendants to pay costs and fees associated with the previously filed Rule 40(j) motion and this motion.”
The motion to pay costs and fees was denied in the same order denying the defense motion to quash the deposition of Sheriff Hunt.
(5) The depositions of Sheriff Hunt, other ACSO officials, Owens, and other detention center inmates are not publicly available at sccourts.org because they are not scannable. At least one is a video deposition. The depositions have been requested from the Aiken County Clerk of Courts.
On May 22, 2022, during the same period an effort was made to prevent Sheriff Hunt from being deposed, The Aiken Standard publishes a major investigative story by reporter Alexandra Koch detailing a pattern of late night to early morning, warrantless searches on passenger buses on the Aiken County and Lexington County line. The only significant arrest for drug possession during years of routine, warrantless searches was later dismissed by the courts after a judge ruled there was no probable cause for the search, passenger civil rights were violated, and the pretext for the stop was not verified by dashcam video. Sheriff Hunt declined to comment on the issues or the story.
Following is an update since June 13, 2022 on various aspects of the City of Aiken’s $100 million plus demolition and redevelopment endeavor known as Project Pascalis. For information prior to that time, see A Project Pascalis Timeline.
Four developments and trends are notable:
A major lawsuit featuring nine plaintiffs and twenty-seven defendants was filed on July 5, 2022 seeking an injunction to halt the project.
The “Do It Right Alliance” amassed more than 2,000 signatures for a petition to overturn two City of Aiken ordinances; the 2022 ordinance allowing partial privatization of Newberry Street; and the 2019 ordinance establishing the AMDC.
Progress on Project Pascalis appeared to stall, and was likely in a process of reorganization prior to the lawsuit. A June 2022 billing invoice from the law firm of Pope-Flynn to the Aiken Municipal Development Commission (AMDC) indicated work on a new redevelopment plan, a new “omnibus ordinance,” and a project “pivot.” No final Master Development Agreement has been reached that would trigger demolition work and the privatization of a portion of Newberry Street.
Increased secrecy surrounded the project. Only closed-door meetings regarding the project occurred since June 21, documents containing basic information were partially redacted, an increase in denial of documents occurred, and officials have declined comment due to pending litigation—even when the issue is outside the scope of the litigation.
Timeline Since June 21, 2022
June 13: The AMDC and City Council spend two hours in a joint closed-door Executive Session to discuss “to discuss Project Pascalis with City Council and the developers.” City Council cites the following open meeting exemption to justify closing the doors “pursuant to Section 30-4-70(a)(2) for consideration and discussion of matters related to development of Project Pascalis regarding negotiations incident to proposed contractual arrangements related to Project Pascalis and receipt of related legal advice.”
Prior to the workshop, AMDC Attorney Gary Pope, Jr. meets with AMDC to “work on a new direction and how to get there.” (2)
The AMDC checking account has a balance of $101,195.30
June 22: AMDC Attorney Gary Pope, Jr. works on an “omnnibus ordinance,” and “revising the redevelopment plan,” for 3.0 hours. Details are unknown. (2)
Gary Pope, Jr. also spends two hours reviewing South Carolina’s “Community Development Corporation Act, schedule, and proposed revisions to Project Pascalis plan.” (Community Development Corporation Act allows for the creation of non-profit corporations with “a primary mission of developing and improving low-income communities and neighborhoods through economic and related development,” and community development financial institutions to assist with credit and capital.
Page 1 of June invoice to AMDC from Pope-Flynn. Click to view full size.Page 2 of June invoice to AMDC from Pope Flynn. Click to view full size.AMDC payment of June invoice. Click to view full size.
June 24: The City of Aiken posts forty-five Demolition Application notices for a July 5th hearing in front of Newberry Hall, Warneke Cleaners, the former State Farm building on Newberry Street; the McGhee Building (historic CC Johnson Drug Store, On Board Realty, Security Finance), Taj Aiken Restaurant, and the former Holley House motel on Richland Avenue.
Two of the 45 Demolition Application notices posted by the City of Aiken on 6/24/22
AMDC Attorney Gary Pope, Jr. works on “redevelopment plan and necessary items to pivot project” for 5.5 hours.
June 27: Pope-Flynn staff work 12.2 hours to “prepare for meeting at City of Aiken. Participate in Executive Session.”
Aiken City Council votes unanimously to enter into closed-door, Executive Session “to discuss negotiations incident to proposed contractual arrangements relating to Project Pascalis and receipt of related legal advice.” The closed-door session lasts one hour, and there is no further discussion of Project Pascalis during the subsequent open meeting.
June 29: Demolition Application from RPM Development Partners, LLC to the Design Review Board to demolish motel iswithdrawn Current status of demolition plans is unknown.
”Withdrawn” stickers applied to Demolition notices on 6/29/22. Click individual images to view full-size
July 5:Lawsuit filed on behalf of nine plaintiff’s seeking injunction to stop project; citing violations of City of Aiken ordinances and laws governing South Carolina community development, local government comprehensive planning, ethics and conduct of public officials, freedom of information, and local government planning.
Plaintiffs seek to stop Project Pascalis by asking for “a declaration from the Court that certain actions of the City and certain municipal bodies are null and void and incapable of being implemented, in whole or in part” and “injunctions preventing the continued implementation of the null and void acts.” Plaintiffs do not ask for damages.
Court Filings to date in Blake et al vs City of Aiken et al; from most recent.
July 9: The law firm of Pope-Flynn submits $20,546.03 bill to the AMDC for fifty-nine hours of work completed in June, 2022.
July 11: Aiken City Council meets in closed door executive session with Attorney Daniel Plyler for two hours to discuss legal matters related to the lawsuit, but a Joint executive session with the AMDC is cancelled.
Aiken City Counciltables amendmentto amend AMDC establishment ordinance to correspond to by-laws written by the AMDC that allows non-residents of the city who have “vested business interests” to serve as AMDC members. No questions pertaining to the tabled amendment are allowed by Presiding Officer Mayor Rick Osbon.
July 12: AMDC Property Manager On Board Realty deposits $11,205.00 in rent payments to the AMDC checking account.
AMDC cancels monthly meeting, reportedly due to quorum issues.
July 13-14. In response to a citizen alert to the City of Aiken, the AMDC removes dozens of files from its “Transparency Page” at aikenmdc.org. The files contained copies of AMDC checks and personal business information that was not properly redacted.
July 22: Historic Aiken Foundation sends letter to AMDC Chairman Keith Wood requesting increased safety and security measures at the Hotel Aiken.
July 25 to 31: City of Aiken code enforcement begin removing “Say No to Project Pascalis” signs from the right-of-ways in front of private residences, citing the city’s complex sign ordinance.
July 26: Chairman Wood replies to Historic Aiken Foundation, denying all issuesraised.
AMDC checking account has balance of $53,014.41
July 28: Aiken Public Safety conducts first fire inspection at Hotel Aiken since March, 2021.
August 4: City of Aiken begins to routinely triple the fees for some Freedom of Information Act (FOIA) requests; increasing the rate for document “search, retrieval, review, and redaction” from $16/hr to $48/hr.
August 9: AMDC cancels monthly meeting for second straight month due to lack of a quorum.
August 10-11 In response to a FOIA request, the AMDC reposts most of the invoices previously removed in mid-July, and invoices since April 1, 2022, within a file named “AMDC Financial Binder” is posted to the commission’s “Transparency Page,” https://aikenmdc.org/2022/03/29/project-pascalis-public-records/. The unannounced posting marks the first change to the AMDC website since the records were removed.
August 15: In Blake et al vs. City of Aiken et al, Attorneys for the City of Aiken file:
“Notice of Motion and Motion to Dismiss Defendants Osbon, Brohl, Diggs, Girardeau, Gregory, Price, and Woltz.”
“Answer on Behalf of Defendants City of Aiken, Osbon, Brohl, Diggs, Girardeau, Gregory, Price, and Woltz.” (3. Comments on Motion and Answer)
August 18: In Blake et al vs City of Aiken et al, Attorneys for the Plaintiff file discovery questions and requests for information:
First Set of Interrogatories to Defendant Rick Osbon
First Set of Requests for Production of Documents to Defendant Rick Osbon
First Set of Interrogatories to All Members of Aiken City Council
First Set of Requests for Production of Documents to all Members of Aiken City Council.
August 22: In Blake et al vs City of Aiken et al, Attorneys for the City of Aiken file: “Notice of Motion and Motion for Protective Order on Behalf of Defendants Osbon, Brohl, Diggs, Girardeau, Gregory, Price, and Woltz;” in response to August 18th discovery issuance.
August 23-26: AMDC adds thirteen pages of partially redacted documents to its “AMDC Financial Binder.” Four of the documents had been already disclosed by the AMDC prior to mid-July; those copies contained no redactions.
Project Time Sheet from December 2021, formerly posted on AMDC website (left image), now redacted (right image).
Status as of August 28, 2022
As of August 25, no answer has been forthcoming from attorneys representing the Design Review Board or the Aiken Municipal Development Association.
The Master Development Agreement (MDA) necessary for any future work appears to be still in negotiation, and time is running short. On December 3, 2021, the Aiken Municipal Development Commission (AMDC) wrote:
The initial Purchase and Sale Agreement (PSA) announced today gives the AMDC and RPM until no later than Summer 2022 to come to terms on a mutually beneficial Master Development Agreement. (4)
No such agreement has been announced, and the AMDC has not replied to a letter asking for the exact deadline date on the PSA, even though this date is not pertinent to the lawsuit.
No announcements on the status of the MDA, the second demolition application, or any other aspect of the project such the “omnibus ordinance,” a new redevelopment plan, or the possibility of a non-profit corporation to replace the AMDC has been forthcoming from the City of Aiken.
The tree growing out of the window on the second floor of the Berkman Building on Laurens Street, above Beyond Bijou, remains. A photo of this tree was first used by the AMDC on November 9, 2021 to illustrate the “blighted status” of its new downtown properties. The AMDC has not acted to remove the tree since that time.
A Tree Grows in Aiken, November 2021A Tree Grows in Aiken, August 2022LEFT: Photo of tree sapling growing out of the 2nd story window above the business, “Beyond Bijoux” — one of three AMDC tenants at 106 Laurens Street, a building targeted for demolition with Project Pascalis. This photo was featured in the AMDC’s Nov. 2021 montage: “Project Pascalis: The Bold Plan for Aiken’s Future!” https://aikenmdc.org/2021/11/08/293/
RIGHT: Photo of the same tree, August 2022, representative, perhaps, of the level of upkeep exercised by the Aiken Municipal Development Corporation (AMDC), the landlord of this property. (Photo courtesy of Jacob Ellis)
__________________
References and Notes
(1) This information is contained in the Pope-Flynn law firm’s June 2022 billing invoice to the AMDC, found on Page 161-162.
(2) Comments on August 15, 2022 motion and answer:
In the motion to dismiss Mayor Osbon and individual members of City Council, the city’s attorneys cited the South Carolina Tort Claims Act to argue that only a government entity must be named. They argue that individuals are “not proper parties” and “must be dismissed as they are already represented through defendant City of Aiken;” while admitting the City of Aiken was “correctly named the governmental entity” to which the Mayor and City Council belong. In other /words, they argue the City of Aiken can be sued in whole but individuals representing the city are exempt, under Tort law.
Torts are, by definition, “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”
Since the lawsuit is not a tort action and not a liability case, and no damages are being sought, it is unclear why the City’s attorneys are making this argument.
In the “answer on behalf of defendants,” City attorneys cite the motion to dismiss by arguing, “Defendants are simply the alter-ego of the City of Aiken, and therefore said Defendants must be dismissed.” The South Carolina Tort Claims Act is cited again, even though the word “Tort” is absent from the July 5th Summons and there is no request for damages, only injunctive relief.
In total, City attorneys offered sixteen defenses but provided minimal to zero substance for the various defenses; and denied nearly every allegation beyond the fact the City of Aiken is a municipality.
(3) Comments on “Requests for Production of Documents” and the “Motion for a Protective Order” to exclude individual defendants from discovery.
The requests for documents is the first basic phase of discovery. It is a request casting a wide net for documentation relating to the project, and includes a request for:
“Any and all documents and other things, including letters, e-mail, texts, entries in social media, journals, photos, recordings, sketches, videos, logs, diaries, notes, or other written material of any kind in any media in the possession, custody, or control of Defendant or its counsel which relate in any way to the claims or defenses alleged in this action. If Defendant is asserting a privilege, please provide a privilege log.”
The defendant’s lawyers responded to the plaintiff’s request for the production of documents by arguing that individual city council members and the Mayor
“should not have to respond to Plaintiff’s discovery requests until a ruling has been made on their pending Motion to Dismiss.”
If the Motion to Dismiss the individual council members and the Mayor is denied, then the individuals will be subjected to the rules of discovery. If the motion is approved, any official business conducted by city council members and the Mayor will remain subject to the rules of discovery, because the City of Aiken will remain a defendant.
(4) The AMDC announcement from December 3, 2021 also reads:
“The agreement will include complete designs, engineering and permitting required to move forward with Project Pascalis. Any such development agreement would establish, among other things, the price the developer would pay for the property, and the amount the developers would be required to invest in the proposed privately funded, owned/operated hotel and residential portions of the project. The AMDC also intends for the agreement to hold the project to strict completion deadlines that will ensure it moves at a deliberate pace and avoids potential delays. The Master Development Agreement being negotiated would also establish fixed pricing for the proposed conference center and parking facility that would be purchased by the City of Aiken upon completion.”
From: AMDC begins Development Agreement negotiations Dec 3, 2021
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.
This is “a timeline,” regarding the creation, promotion, and stealth of the $100 million dollar plus downtown Aiken demolition and redevelopment endeavor known as Project Pascalis from February 2019 through June 2022.
It is not “the timeline.” Due to the City of Aiken’s continued secrecy surrounding key aspects of Project Pascalis, gaps in knowledge remain. For example, the city still refuses to release its full May 2021 solicitation for a Request for Proposals.
Therefore, it is unknown whether any option to renovate the Hotel Aiken was offered to prospective developers; although the evidence to date strongly suggests the only option was demolition. The importance of this key issue cannot be overstated: if the solicitation dictated what the city wanted, then Project Pascalis is a homegrown project and its developers are mere contractors undertaking the wishes of its client.
February 2019
February 1: : Weldon and Tom Wyatt of “Wyatt Development” (which was dissolved in 2013) meets with Aiken Mayor Rick Osbon to discuss his $1.1 million offer to Aiken County to purchase the 9.3 acre “old hospital” and county administrative building property at 828 Richland Avenue, E. for $1.1 million
February 5: Mayor Osbon sends letter to Aiken County Chairman Gary Bunker describing his meeting with Wyatt executives and expressing his support for their vision for the old hospital property.
February 19: WTC Investments, LLC is registered as doing business in South Carolina with the Secretary of State. Attorney Ray Massey is the listed agent. (Unknown: presence of absence of Mr. Massey at February 1 meeting with Mayor.)
April 2019
April 16: WTC Investments, LLC enters into a purchase and sale agreement (PSA) with Aiken County to purchase the “old hospital” property at 828 Richland Avenue, E. for $1.1 million dollars.
WTC manager Tom Wyatt, son of Weldon Wyatt, announces plan to demolish existing historic structures and construct a new hotel, apartment complex, conference center, and parking garage.
August 2019
Ordinance establishing the Aiken Municipal Development Commission (AMDC) passed by Aiken City Council and governed by South Carolina Community Development Law. Citizens told Commission will enable increased public input and participation in planning process.
November 2019:
Aiken City Council passes rezoning ordinance approving the Wyatts’ concept plan for the old hospital/County complex site.
January 2020
January 12: WTC Attorney Ray Massey informs Aiken County officials they are withdrawing from the old hospital purchase contract.
May 2020
May 26, 2020 First meeting of the AMDC. Commissioners receive tutorials on the Freedom of Information Act, Ethics, and South Carolina Community Development Law. (In the next twenty four months the Commission, always meeting at 3:30 pm, would enter into closed executive sessions forty percent of their meeting time. During the Pascalis planning and negotiations this figure increased to more than sixty percent.)
July 2020
July 15: The Aiken Municipal Development Commission submits a “Redevelopment Plan for Downtown Aiken” to the City of Aiken. The plan does not include properties on Newberry Street currently inhabited by Newberry Hall and Warneke Cleaners. No public hearing is held by the Commission as required by community development law.
August 2020
August 31. Attorney General Alan Wilson announces a $600 million dollar settlement to more than four years of litigation with the Department of Energy regarding storage of surplus nuclear weapons plutonium at the Savannah River Site. Wilson states that after attorney fees of $75 million, $525 million remains for the legislature to allocate.
August 2020. Aiken City Council approves first reading of the downtown redevelopment plan.
September 2020
September 14: Aiken City Council amends the AMDC ordinance, replacing three City Council members with three new voting members, and reclassifying council members as ex-officio. Chamber of Commerce President J. David Jameson, former city councilperson Philip Merry, and Second Baptist Church pastor Douglas Slaughter are added as voting commissioners.
Second reading of minor redevelopment plan passes.
September 2020 to December 2020: AMDC discusses plutonium funding lobbying efforts. A letter requesting $30 million for redevelopment purposes is sent to the legislative delegation and other officials.
January 2021.
January 4: WTC Investments, LLC dissolves.
Unknown date in early 2021: WTC Investments, LLC signs contract to purchase Hotel Aiken, and the adjacent motel, 106 Laurens Street, the former Johnson Drug Store, and Warneke Cleaners from Shah Investments and other Shah family holdings.
March 2021:
March 15: Royal J. Robbins and Garnett Family Holdings sell 210 The Alley to Aiken Alley Holdings LLC for $2,025,000. Ray Massey is agent for Aiken Holdings LLC. (This property was adjacent to the original Project Pascalis footprint, but is now within it).
March 18, 2021: AMDC first announces the existence of Project Pascalis. City of Aiken Development Director Tim O’Briant tells the Aiken Standard “Transparency is key” and promises more pubic information within a few months. (Although details are not released, even the initial plan was to demolish Hotel Aiken and surrounding properties and construct a new hotel, apartments, parking garage, and conference center complex similar to that originally proposed at 828 Richland Ave. E, the old hospital).
O’Briant and Chair Keith Wood authorized by the Commission to execute an agreement with an unnamed, “experienced and well-capitalized” private developer that was “recruited and identified” by the AMDC. (public learns in 2022 that developer was Weldon Wyatt’s GAC LLC; and only in the November 4, 2021 meeting minutes is it revealed that WTC, Investments, LLC was involved with property purchases).
April 2021
April 13: Aiken Standard reports AMDC meeting behind closed doors to discuss Project Pascalis, indicating it involves downtown properties.
April 15: WTC Investments, LLC signs purchase and sale agreement with Newberry Hall property owner Myrtle Anderson to buy the property for $2 million. Modified lease agreement provides Newberry Hall business operators options to negotiate repurchase the new building, operate the new conference center, and receive compensation for lost income during construction stages.
Vampire Penguin opens for business at 106 Laurens Street, while planning to demolish the building proceeds in secrecy.
May 2021:
May 5: WTC Investments, LLC re-registered to do business in South Carolina. Agent: Attorney Ray Massey.
May ?? 2021. WTC Investments, LLC withdraws from its contracts to purchase downtown properties. The Chamber of Commerce takes “assignment” of the property contracts while the AMDC seeks funding to purchase them on behalf of the city. This all occurs behind closed doors.
May 19, 2021. The AMDC sends solicitations for Requests for Proposals to continue the new hotel/apartments/garage/conference center project to select developers. In the solicitation, the AMDC offers to privatize a part of Newberry Street. (The entire solicitation remains secret to this day, withheld under a FOIA exemption by the City of Aiken, despite fact that FOIA clearly states the city “may” release the documents. The AMDC does not deny the solicitation is only for demolition, not renovation of Hotel Aiken and surrounding properties.)
June 2021
June 8: Longtime State Farm agent Joseph Harrison sells his office property at 121 Newberry Street SW—adjacent to Newberry Hall—to Aiken Alley Holdings LLC (Ray Massey, agent) for $675,000.
July 2021:
July 12, 2021. AMDC Chair Keith Wood sends letter requesting $10 million in city funds from Aiken City Council to purchase “Parkway area properties” between Morgan and Williamsburg Street.
August 2021
August 25: City of Aiken approves $10 million in funding for the AMDC to purchase properties in the “Parkway District” bounded by Morgan Street, Hampton Avenue, Park Avenue, and Beaufort Street. Exact properties remain unspecified.
September 2021
September 20, 2021: AMDC announces it will conduct a fact finding trip to review the redevelopment of downtown Florence.
September , 2021: AMDC and several officials, joined by Attorney Ray Massey and representatives of Rainesco hold a “public meeting “ at a Florence restaurant. Meeting minutes are noticeably short.
October 2021
October , 2021. RPM Development Partners, LLC registers with the SC Secretary of State. Agent: Ray Massey. Key Players: Rainesco and Lat Purser (RPM likely to represent Raines, Purser, and Massey). Story not reported.
October , 2021: City of Aiken signs contract with Attorney Gary Pope for assistance with legal counsel. (This agreement cited in May 2021 as evidence of City Attorney Gary Smith’s “recusal” from all things Pascalis, but no such recusal is in document).
November 2021
November 5: In an Aiken Standard article, Development Director O’Briant again emphasized the need for transparency, and stated the AMDC would soon have a website to share information.
November 6: Project Pascalis is discussed at a Design Review Board meeting. Responding to a question about the future of Hotel Aiken, City Manager Stuart Bedenbaugh states a decision is still pending.
November 9: AMDC announces the purchase of several downtown properties for a total of $9.5 million, including Newberry Hall and Warneke Cleaners. The information is shared on the AMDC’s website, aikenmdc.org:
Aiken Standard fails to report involvement of the Chamber of Commerce.
According to County Records and the AMDC report, the purchases were:
106 Laurens St SW for $1 Million from Shah Enterprises.
235 Richland Ave (Hotel Aiken) and 112 Bee Lane/219 Richland Ave (The motel portion of Hotel Aiken) for $4.25 million from Historic Hospitality LLC (which had “purchased” the hotel in 2017 from Shah Enterprises for $5).
211 Richland Ave West, 203 Richland Ave West, and 113 Newberry Street (Warneke Cleaners) for $2.25 million from S & N Hospitality LLC (which had purchased the properties in 2018 for $ 1 million from Myrtle Anderson).
111 Newberry Street (Newberry Hall) for $2 million from Myrtle Anderson.
December 2021
December 3, 2021. RPM Development Partners announced as Project Pascalis developer. Purchase and Sale agreement made between RPM . Aiken Standard reports that AMDC owned properties scheduled to be “razed.” (Document released in April 2021 shows that one developer rejected in part for only offering $1 million for Hotel Aiken).
December 13 and 20; 2021. AMDC advertises for Requests for Proposals for Project Pascalis, as required by community development law, but after choosing a developer.
December 26-December 31: At the urging of the AMDC, Rainesco CEO Grey Raines hosts five private meetings organized by Aiken Chamber of Commerce President and AMDC Commissioner J. David Jameson. AMDC Director Tim O’Briant attends every meeting with Commissioner Jameston. (City of Aiken denies the meetings qualify under Open Meetings clause of FOIA).
January 2022
January 4: : Rainesco engineers conduct structural assessment of Hotel Aiken, even though decision to demolish building was made behind closed doors in early 2021.
January 22: Aiken Standard reports that “CTR, LLC, a group of local investors led by attorney Ray Massey, has offered $800,000” for two city-owned properties: the east half of the 214 Park Avenue municipal building and the parking lot across from the Hotel Aiken. Council meets in Executive Session to discuss the offer, no results are reported. Attorney Massey’s law partner, City Attorney Gary Smith, does not recuse himself from the proceedings.
February 2022
Feburary 17: DRB tours Hotel Aiken during a “special work session.”
March 2022
March 1: DRB approves demolition of Hotel Aiken and 106 Laurens Street by a vote of 6-1. Vice-Chair Lucy Knowles casts sole dissenting vote. (Councilperson Andrea Gregory withdraws support for Ms. Knowles within a month of the vote, and nominates non-resident Laura Blessing to the Board to replace Ms. Knowles at the end of her term).
March 28: Ten months after AMDC offered part of Newberry Street to interested developers, Aiken City Council conducts first public hearing (reading) of ordinance to privatize 0.6 acres of Newberry Street, in exchange for 123 Newberry St. SW and parking area behind 210 The Alley. Council unanimously approves first reading of ordinance despite nearly 100 percent of comments being against the proposal. City Attorney Gary Smith acts in usual parliamentarian role.
April 2022
April 15: Aiken Standard reports unilateral AMDC decision to repurpose soon to be vacated 214 Park Avenue municipal building into the new conference center. Tim O’Briant credits DRB Chairman McDonald Law with the suggestion. (Mr. Law later denies this was an “ex-parte” communication that violates FOIA Open Meetings law). Aiken County Chair Gary Bunker expresses concern about stalled negotiations with city to utilize the building for office space for county judicial functions.
April 20: AMDC holds first public meetings to discuss entirety of Project Pascalis. RPM Development Partners, LLC and City contractors devote 85% of the scheduled meeting time to presentations before accepting a single comment or question. Public comments at the first meeting is suspended after an hour due to “prior engagements” of Raines representatives. Two AMDC Commissioners, Keith Wood and Chris Verenes, speak in favor of the project without disclosing their affiliation.
Attorney Gary Pope sits at a city meeting for the first time, in place of City Attorney Gary Smith. Mr. Pope offers the information that Mr. Smith called him at “an early point in the project” to recused himself; but provides no date. (No written recusal documentation is offered in response to subsequent FOIA requests).
May 2022
May 9: Aiken City Council votes 6-1 on second reading 6-1 to approve Newberry StreetOrdinance, with councilperson Ed Woltz the lone dissenting vote. Among other falsehoods, Councilperson Kay Brohl supports her yes vote by describing The Alley as an unlively place prior to the city’s 2016 renovation. AMDC Commissioner Philip Merry speaks in favor of the proposal without revealing his affiliation. Attorney Gary Pope sits in place of City Attorney Gary Smith.
May 10: Lawsuit filed by area resident and Aiken property owner Drew Johnson documenting conflict of interest violations by City Attorney Gary Smith due to the role of his law partner Ray Massey in Project Pascalis. (In subsequent response, defendants do not deny the allegations but call for dismissal on jurisdictional grounds).
May 11, 2022: Formation of the Do It Right! Alliance is announced, with the goal of preserving historic properties and holding city officials accountable to the law.
May 15: AMDC releases “Just the Facts…,” revealing its intent to resell city properties to developers at a discounted price.
June 2022
June 7, 2022: Aiken Downtown Development Association sponsors public “design workshop” to solicit comments on modified design of Hotel Aiken facade. AMDC Director Tim O’Briant tells WJBF News in Augusta that appraisals were unnecessary because the property is like gold.
June 21, 2022. Design Review Board holds “design workshop.” Attendees not told until beginning of the meeting of a no public comment policy. City officials summon a police offer
June 24, 2022: City of Aiken posts 45 notices announcing DRB public hearing on proposed demolition of Newberry Hall, Warneke Cleaners, Motel portion of Hotel Aiken, Johnson Drug Store, Taj Aiken Restaurant, and adjacent businesses.
June 27: Historical Aiken Foundation, which is identified as a key city partner in its strategic development plan, releases fact sheet documenting concerns that support its opposition to Project Pascalis.
