Preservation group files new complaint in Missoula Mercantile case

By Martin Kidston

A District Court judge on Tuesday delayed a scheduled hearing over the deconstruction of the Missoula Mercantile building after the attorney representing a preservation group filed an amended complaint at the last minute.

The new complaint, submitted by Michael Doggett on behalf of Preserve Historic Missoula and several other plaintiffs, alleges that the City Council’s decision to overturn the Historic Preservation Commission’s denial of the permit was “an abuse of discretion.”

It also added three new defendants to the case, including Mercantile LLC, HomeBase Montana LLC, and 110 North Higgins LLC. It retained the original defendants as well, including the Missoula City Council.

“I haven’t looked at this amended complaint – I just became aware of it myself a few minutes ago,” District Court Judge Robert L. “Dusty” Deschamps said Tuesday. “I wanted to move this thing along as rapidly as possible and figure out exactly what’s going to happen here. I know there’s a lot of interest and we don’t want it delayed if we can help it.”

The new complaint contends that the City Council must grant the Historic Preservation Commission the presumption of correctness after the commission votes to grant or deny a permit.

The HPC denied a deconstruction permit for the Mercantile in June on a unanimous vote, although the vote came amid accusations of bias and erroneous findings of fact. Based on those and other factors, Mercantile LLC appealed the commission’s decision to the City Council.

After hearing more than 16 hours of public testimony and weighing the facts over the course of a month, the City Council in August reversed the preservation commission’s decision and approved the partial demolition permit.

“The Missoula City Council did not grant a presumption of correctness to the HPC’s decision without specifying error in the HPC’s findings, substituted its own findings, and based its findings, in part, on evidence improperly determined through” a new review, Doggett’s amended complaint contends.

While the council approved the deconstruction permit, the agreement is contingent on the developers meeting certain requirements. Those include documenting the historic structure, preserving the pharmacy section of the building, and posting a $3 million bond as a guarantee that it will follow through with plans to construct a $30 million Marriott hotel on the downtown corner.

Given the requirements written into the development agreement, Doggett questioned the Missoula Redevelopment Agency’s decision this month to grant Mercantile LLC permission to begin abatement work on hazardous materials remaining in the vacant structure.

The amended complaint argues that the abatement process would require significant alterations to the Mercantile, likely resulting in damage to the integrity of the roof.

“A partial demolition permit has not yet been issued,” the complaint argues. “Allowing work to be completed on (the Mercantile) without all of the preconditions to the partial demolition permit being met compounds the error committed by the City Council, and would result in irreparable harm to (the Mercantile) if it is allowed to occur.”

Doggett and his clients asked the court to stay the partial deconstruction until the issue is resolved by the legal proceedings. In addition, they asked the court to vacate the City Council’s findings and readopt those reached by the Historic Preservation Commission.

City Attorney Jim Nugent said it will take time for his office to present an additional defense. Last week, the office submitted a substantial response to Doggett’s initial claim, which accused the City Council of acting “arbitrarily and capriciously” in approving the permit.

“We will need time to file an answer,” Nugent said. “This has been in the news media for half a year to seven months. The building has been vacant for nearly seven years. We do want to rapidly move it along.”

“I share those concerns,” Deschamps replied.

A new scheduling hearing was set for Oct. 11.

Plaintiffs in the case include Preserve Historic Missoula, Western Cultural Inc., David and Nancy Tyrell, Virginia Braun, and Midnight Development LLC.

Contact reporter Martin Kidston at