A Missoula preservation group filed additional paperwork this week in Missoula County District Court asking a judge to stop the deconstruction of the Mercantile, which the city approved in August.
Attorneys for the developers countered Monday by filing a motion to dismiss the case, saying any further delays could scuttle plans to build a $30 million hotel on the downtown Missoula property.
They’re asking the court for an expedited ruling.
“The appropriate municipal process was followed,” attorneys for the developer argue in their latest brief requesting dismissal. “The (preservation group) cannot compel a ‘do over’ simply because they did not like the result the first time around.”
District Court Judge Dusty Deschamps already set a scheduling hearing on the case for next week. He was forced to delay an earlier hearing after Michael Doggett, representing Preserve Historic Missoula, filed an amended complaint at the last minute.
Doggett’s complaint alleged that the City Council abused its discretion by overturning an earlier decision by the Historic Preservation Commission, which denied the developer a permit to deconstruct the Mercantile back in July.
In making its decision, the City Council found that the preservation commission erred by denying the permit, and that it had violated the developer’s due process rights by failing to “fairly and objectively” consider the permit.
On Monday, Doggett asked the court to issue a temporary restraining order and an injunction to stop the developer from moving forward with deconstruction work. That work was set to begin later this year once asbestos abatement is complete.
If the court fails to stop deconstruction, Doggett claims, his case would become moot.
“At this time, there is nothing preventing the defendants from deconstructing the Merc,” Doggett claims in his brief, which names both the City Council and the developer as defendants.
Attorneys for the developer have countered, saying future delays could scuttle the project and jeopardize the property’s sale from Octagon Capital Partners to the developer.
Octagon attempted to sell the property for several years, and the building sat vacant for more than six years.
“Given the harm (the developer) will suffer if (the preservation group) is successful in causing further delay, including the loss of the sale of its real property, the Court should issue an expedited ruling,” attorneys for the developer argue.
While the City Council approved the deconstruction permit, it remains contingent on the developer meeting certain requirements in a contract agreed to by the parties.
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.
Alan McCormick, one of the attorneys representing the developer, said the current construction schedule showed abatement work beginning on Oct. 3. Deconstruction work was set to start shortly after, though the preservation group is seeking to stop that work.
In its own brief, the City Attorney’s Office has charged Preserve Historic Missoula of interfering with a private project on private property.
“(The) petition appears intended to merely obstruct and delay a private property owner’s partial preservation and development project,” a recent city summary reads in part.
Contact reporter Martin Kidston at email@example.com