Briefs and more briefs filed in ongoing Missoula Mercantile saga

By Martin Kidston

The city used intimidation and coercion to influence the outcome of a permit issued to a developer who wants to replace the vacant Missoula Mercantile with a new downtown hotel, an attorney representing a preservation group argued in a court brief filed late Tuesday.

Attorneys for the city and the developers, however, contend in their own brief that Preserve Historic Missoula has failed more than once to meet the legal threshold needed to block the approved redevelopment of private property.

They also charge that members of the group have no legal standing in the case, but are simply meddling in another’s private property rights because they philosophically disagree with the project.

In his brief, Michael Doggett, representing Preserve Historic Missoula, said the city used intimidation and coercion to prompt the resignation of members of the Historic Preservation Commission in order to influence the City Council’s eventual approval of a demolition permit to the Mercantile developer.

Doggett also contends that demolition of the Mercantile “sets an unacceptable legal precedent that should not be followed” by Missoula District Court.

“Demolition of the Missoula Mercantile sets a horrendous precedent for the city of Missoula,” Doggett argues in his brief. “There is simply no reason to show the rest of Montana that Missoula does not value its own laws, and its own history.”

Doggett also argues that the Historic Preservation Commission was established under city code to preserve the city’s historic structures. The commission spent several weeks considering the Mercantile’s demolition permit before ultimately rejecting it based upon a long list of “facts,” as viewed by the commission.

But along the way, allegations of bias emerged. The charges were directed at several commission members who had signed a “Save the Merc” petition and taken to social media to advance their cause. One member also had a business interest that could only be realized if the demolition permit was denied.

The allegations led to an investigation and warning issued by the Missoula City Attorney’s Office. But Doggett contends the city attorney should have been preparing a defense for the commission’s denial of the permit, not scrutinizing the commission’s behavior.

“Instead, the city conducted an adversarial investigation of the entity that resulted in coercing several members of the commission to resign,” Doggett argues. “The investigation conducted by the city attorney violated the commission members’ rights to freedom of speech and freedom of association.”

Countering in their own brief filed this week, attorneys representing the city and the developer said the preservation group has continually failed to present any facts indicating the city abused its discretion.

They also contend that members of the group have no legal standing in the case since they have no financial interest in the Mercantile or in the property on which it sits.

“Plaintiffs are disgruntled with the results of the political process and are using the judicial system to continue pressing a cause they believe to be in the public’s best interest,” the brief states. “There can be no dispute the City Council’s decision was supported by a wealth of facts, because those facts were set forth in detail in its written findings.”


A hearing in the case has not been set, though attorneys believe that could happen next week.