City Attorney asks District Court to dismiss preservation group’s lawsuit over Mercantile


By Martin Kidston

The City Attorney’s Office on Tuesday asked District Court to dismiss a lawsuit filed by Preserve Historic Missoula, saying the group’s claims are vague and ambiguous, and lack the legal merits needed to challenge the City Council’s approval of a partial deconstruction permit for the Mercantile.

The city filed the summary judgment late Tuesday, roughly four days after filing a short response to the equally short lawsuit submitted by Preserved Historic Missoula on August 30.

The group’s three-page suit contends that the City Council’s approval of the deconstruction permit was made arbitrarily, capriciously and contrary to the regulations guiding the council. It offered no other details supporting the claims, something the City Attorney’s Office noted at length in a 22-page document filed this week.

“(Preserve Historic Missoula’s) petition is vague and ambiguous, totally lacking in specifics and detail with nothing plead in support of its few vague, ambiguous assertions,” the city’s summary reads. “(The) petition appears intended to merely obstruct and delay a private property owner’s partial preservation and development project.”

The city states that seven weeks have passed since the City Council approved the Mercantile’s partial deconstruction permit. It notes that Page Goode, president of Preserve Historic Missoula, was interviewed on TV and stated that her group would not sue the council to block the Mercantile project.

Preserve Historic Missoula and its attorney, Michael Doggett, have not responded to requests for comment. The attorney representing Mercanile, LLC, which is looking to build a five-story Marriott hotel on the property, said the developer is eager move forward.

“We’re evaluating that (lawsuit) to see if that should result in a change with our construction schedule,” Alan McCormick said Wednesday. “No decisions have been made yet.”

The city’s latest filing asking the court to dismiss the case details the claims it made last week. Preserve Historic Missoula is not an aggrieved party, owns no real-estate interest in the Mercantile or any nearby property, and failed to join the correct party – that being the actual property owner – to its suit.

“(Preserve Historic Missoula) is a nonprofit corporation and has no legal standing to pursue this lawsuit,” the city contends. “(The group) has failed to support its request for a stay with any facts or legal basis for such a request.”

The city also states that Preserve Historic Missoula’s lawsuit inappropriately identifies members of the City Council and Mayor John Engen as individual defendants, even while the mayor did not participate in the council’s vote.

City Attorney Jim Nugent said Preserve Historic Missoula cannot sue individual members of the City Council.

“The Montana Supreme Court has indicated that when the City Council performs actions as a City Council governing body, acting as members of the City Council, the members of the City Council are immune from civil lawsuits in their individual personal capacity,” Nugent stated.

While the permit plays out in court, the Missoula Redevelopment Agency on Wednesday granted Mercantile, LLC, permission to proceed with environmental abatement work in the century-old building.

“Last month, City Council approved the agreement between the Mercantile, LLC, and the city, that basically allows the developer to move forward with abatement that would not adversely impact the integrity of the building,” MRA Director Ellen Buchanan said.Mercantile rendering

The development agreement between Mercantile, LLC, and the city requires the developer to post a surety bond as a guarantee that it will follow through as promised once deconstruction of the Mercantile begins.

It also requires the developer to carry risk insurance to provide coverage against damage or loss to the pharmacy building – that portion of the historic Mercantile that will be incorporated into the new $30 million Marriott hotel.

The agreement did not prevent Mercantile, LLC, from beginning asbestos work.

“To meet the current construction schedule, we’d like to get the abatement started by October 3,” McCormick said. “An abatement contractor has been selected. Permitting is in process to do that and we’ve got a full abatement report that’s done.”

While much of the abatement work was completed several years ago by Octagon Capital Partners, a small portion of asbestos remains. McCormick said multiple roof layers still contain asbestos, along with the window glazing and what remains of the wallboard.

“There are multiple other compounds in that building that contain asbestos,” McCormick said. “Most of those items were removed when the initial abatement work took place, but there’s still a little bit here and there.”

Contact reporter Martin Kidston at info@missoulacurrent.com