Mercantile developer asks court to dismiss suit by preservation group

By Martin Kidston

Attorneys representing a Montana developer looking to deconstruct the Mercantile and replace it with a $30 million downtown hotel filed a motion in Missoula District Court on Friday, asking the judge to dismiss a case brought by a group of local preservation advocates.

Back in August, the preservation group filed suit seeking to stop a partial demolition permit for the Mercantile building, one granted by the City Council earlier that month. The suit has since triggered a flurry of filings from both sides, with the city and the developer asking the court to dismiss the case for lack of legal grounds.

In their motion filed Friday, attorneys with Boone Karlberg contend that Preserve Historic Missoula, along with a number of others plaintiffs listed in the case, have no ownership in the Mercantile property, no legal standing on which to file suit and, over the past two months, have failed to present a legitimate legal argument.

Like the city of Missoula’s motion to dismiss the case, which was filed last month, attorneys for the developer also contend that Preserve Historic Missoula and its allies are simply looking to scuttle a private owner’s right to develop the property, which is permitted under existing zoning regulations.

“The court should not allow the plaintiffs to continue to thwart (the developer) from exercising its right to alienate its own real property, particularly when the risk of derailing the entire project with the prospective buyer increases with each passing day,” the motion reads.

“As plaintiffs make speculative and hypothetical claims of potential injury as members of the general public, their lawsuit continues to cause real, significant, and quantifiable damages to the property owner and prospective buyer,” the motion adds.

The latest motion cites a number of plaintiffs who have joined the case, including Page Goode, president of Preserve Historic Missoula, David and Nancy Tyrell, who redeveloped the old Poverello Center, and Virginia Braun, a Missoula resident.

It also names Dan Hall, president of Western Cultural, Inc., and Richard Clemow, the registered agency of Midnight Development LLC.

Among other things, the plaintiffs argue that deconstructing the Mercantile would destroy the culture of downtown Missoula and decrease property values. However, attorneys for the developer counter that the plaintiffs cannot assert the property rights of nearby businesses, given their lack of ownership.

Braun also believes that traffic generated by the new hotel “will make it more difficult to attend cultural events, and make downtown more dangerous.” Goode also argues that deconstructing the Mercantile “would endanger the historic nature of downtown Missoula, and Missoula as a whole.”

In contrast, attorneys for the developer argue that such philosophical concerns don’t give the plaintiffs standing in the case.

“Of course, many citizens have concerns and, indeed, legitimate disagreements with the decisions of their City Council, but these concerns and disagreements do not, in themselves, create a civil or private property right sufficient to establish standing,” the motion states.

Last week, Michael Doggett, the attorney representing the plaintiffs, withdrew his request for a temporary restraining order and preliminary injunction, which sought to stop any work – including asbestos abatement – from taking place before the court could decide the issue.

In doing so, Doggett said the case’s expedited schedule would resolve the matter soon enough. Judge Dusty Deschamps will consider the motions to dismiss the case in Missoula District Court on Tuesday, Oct. 18, at 10:30 a.m.

If the case is dismissed, it essentially clears the way for the developer to begin deconstructing the Mercantile and replace it with a $30 million branded hotel on the downtown Missoula property. If the motion to dismiss isn’t granted, it would be up to the court to decide the project’s future.


Contact reporter Martin Kidston at info@missoulacurrent.com