Preservation attorney withdraws documents filed in Mercantile case

By Martin Kidston

An attorney representing a group of preservationists on Tuesday withdrew paperwork filed eight days earlier to stop a local developer from deconstructing the Missoula Mercantile, saying the court will decide the case before work actually begins.

Michael Doggett, an attorney representing Preserve Historic Missoula, withdrew his temporary restraining order and preliminary injunction in Missoula District Court, saying the case's expedited schedule would consider the case soon enough.

“With the scheduling order, the case is going to move along fairly quickly,” Doggett said after court on Tuesday. “The judge is not really concerned with asbestos abatement. That's what they're doing right now. He's concerned with knocking down bricks and things like that. Before, we didn't have the scheduling order. We've reached a good resolution.”

The opposing parties in the case have agreed to a schedule that will have Missoula District Judge Dusty Deschamps hear arguments on whether the case should be dismissed in its entirety, as petitioned by the city.

If he does dismiss the case, it clears the way for the developer, HomeBase Montana, to begin deconstructing the Mercantile and replacing it with a $30 million branded hotel on the downtown Missoula property.

“If he doesn't grant our motion to dismiss, we have to file and answer to proceed,” said City Attorney Jim Nugent. “I'm not going to speculate on what the judge will do.”

If the court lets the case move forward, those named as defendants, including the Missoula City Council, HomeBase Montana, Mercantile LLC, and 110 North Higgins LLC, will have five business days to file their answer.

The case would then be heard “as expeditiously as the court schedule will allow,” the scheduling order states.

In court on Tuesday, Alan McCormick – one of the attorneys representing the developer – said work to remove asbestos in the building was set to begin. Power was restored to the building on Tuesday.

“We have been very clear with Mr. Doggett that our agreement to the schedule is not an agreement to stop or stay any work on the building,” McCormick told the judge. “In fact, we're proceeding to do abatement work and anything else that's allowed by agreements associated with that building.”

The city has agreed to allow asbestos work to begin, and while it also has approved a deconstruction permit, that remains contingent upon the developer meeting certain requirements in a contract agreed to by the parties.

In earlier filings, Doggett had initially argued that asbestos abatement would damage the building's integrity, though the judge disagreed.

However, Deschamps did caution the developer to ensure the building is left intact while abatement work takes place – and as the court prepares to hear arguments on whether the case should be dismissed.

“The asbestos had to be dealt with no matter what, and I certainly don't have any problems with continuing with that,” Deschamps said. “But don't test my patience by bringing in a crane and start knocking down walls.”

Doggett said he was agreeable to the judge's position.

“You heard the judge's comments,” he said. “If that's what he believes, that's probably what's going to happen.”

Deschamps set a hearing for either October 18 or 19. The exact date has yet to be finalized and is contingent upon the court's schedule.

Contact reporter Martin Kidston at info@missoulacurrent.com