May 22—A motion to dismiss the Aiken Design Review Board from the lawsuit filed to stop Project Pascalis is set to be heard June 14.
Judge J. Cordell Maddox Jr. will hear arguments from Design Review Board attorneys Andrew Lindemann and Jim Holly and plaintiffs' attorneys Andrew Gowder, Jim Carpenter and Mike Rose at 10 a.m. according to an Aiken County Court of Common Pleas roster.
Maddox is an at-large Circuit Court judge based in Anderson. The South Carolina General Assembly elected him to the bench Feb. 6, 2002.
Lindemann and Holly filed the motion to dismiss March 14 asking the court for an order dismissing the Design Review Board pursuant to Rule 12(b)(1) and (6) of the South Carolina Rules of Civil Procedure.
A motion to dismiss pursuant to Rule 12(b)(1) argues that the court does not have subject-matter jurisdiction to hear the case.
Subject-matter jurisdiction is the requirement that the court have the power to decide an issue in controversy.
Lindemann and Holly argue the court does not have subject-matter jurisdiction because the plaintiffs and their attorneys should have appealed the Design Review Board's March 1, 2022 conditional approval for the demolition of the Hotel Aiken rather than seek a declaratory judgement that the conditional approval was improper.
The plaintiffs are David Blake, Luis Rinaldini, Dick Dewar, Jenne Stoker, B.B. McGhee, Gail King, the Historic Aiken Foundation, the Green Boundary Foundation and the South Carolina Public Interest Foundation.
A motion to dismiss pursuant to Rule 12(b)(6) SCRCP argues that facts made in a claim do not give rise to a cause of action.
Specifically, Lindemann and Holly argue that the fourth cause of action in the 111-page amended complaint for attorney's fees should be dismissed because state law, S.C. Code Ann. § 15-77-300, provides when plaintiffs can recover attorney's fees in lawsuits against governmental defendants but does not create a separate cause of action allowing plaintiffs to do so.
In the alternative — i.e. if Maddux rules that the Design Review Board shouldn't be dismissed from the lawsuit — Lindemann and Holly ask for a more definitive statement of one paragraph in the amended complaint.
That paragraph, No. 173, alleges the defendants — the city of Aiken, the Design Review Board and the Aiken Municipal Development Commission — violated the South Carolina Freedom of Information Act in several ways but does not specify how each group violated the act.
Gowder, Carpenter and Rose filed the amended complaint Feb. 27 and the lawsuit July 5, 2022.