“Murky Merc” hearings continue as council sifts fact from fiction

Merc crop

By Martin Kidston

The city’s historic preservation officer dove into the detailed minutia Wednesday that prompted Development Services to grant HomeBase a demolition permit for the Mercantile earlier this year – a permit that was later denied by the Historic Preservation Commission after it reached competing conclusions.

HomeBase, the Bozeman-based developer, has since appealed the findings of the HPC, leaving it to the Missoula City Council to sift through the factual evidence.

“We’re going to be looking at the HPC’s decision and findings of fact, and we need to analyze that as the first step,” said Ward 3 council member Gwen Jones. “They’re correct until proven wrong. It’s a huge amount of information and it’s very complex.”

Wednesday’s hearing before the Land Use and Planning Committee continues what’s shaping up to resemble a trial, with members of the City Council adhering to strict rules governing the appeal process.

An attorney retained by Preserve Historic Missoula urged council members on Wednesday not to seek additional evidence but rather, work with what has already been compiled by the HPC.

“If it was relevant, it would have come up in the HPC’s deliberations,” argued Mike Doggett. “If it was needed by any of the parties, they would have asked for it. The review should be focused on the three issues they (HomeBase) brought up in their appeal.”

Attorney’s for HomeBase appealed the preservation commission’s findings on three fronts, saying the HPC violated the developers’ due process rights, ignored city ordinance and failed to consider the general facts when denying the permit.

While the City Council will spend the next month wading through the facts before rendering its own conclusion, several members disagreed with Doggett and said they would request whatever information they needed to reach an informed and factual decision.

“I don’t know if all the answers within those documents are in the public record or part of what was submitted to HPC, and I’m not going to be limited in asking for that information,” said Ward 1 council member Bryan von Lossberg. “I’m going to be looking through the mounds of information for these things, and if they’re not there, I’m going to be asking for the information.”

Alan McCormick, the attorney representing HomeBase, also took issue with Doggett’s suggestion and scolded him for speaking on behalf of his clients.

“I have not issued an opinion on our client’s behalf about what you can and cannot consider, and any suggestion that we’ve agreed and that’s the case is not true,” he said. “What we said is, we don’t anticipate introducing new evidence because we believe the record speaks for itself and that it proves that our permit should have been issued. That’s not the same thing as to say you’re not entitled to take new evidence or collect things however you see fit.”

Leslie Schwab, the historic preservation officer for the city of Missoula, said Development Services conducted its own complete report and submitted it to the HPC back in April when it found no legal ground on which to deny HomeBase a demolition permit.

Among other things, the report found that HomeBase had consulted with the HPC and State Historic Preservation Office, as required by law, and that it made a good-faith effort to find and alternative project to demolition.

The report also found that denying the demolition permit would deny the developers and property owners all reasonable economic use of the property. According to the permit application, three methods are used to generate an economic reuse of the property, including leasing the building after renovation is finished, replacing the building with a different project or selling the building to someone else.

While 20 credit-worthy buyers looked at the property, they all walked away after determining it wasn’t economically feasible to renovate the building and lease it at a reasonable rate. Other possibilities also proved unfeasible, the report found.

“The staff conclusion was that over a six-year period of time, no reasonable economic use has been found that would retain the historic structure and provide an economic return on investment,” Schwab said. “Denying the permit would appear to prevent all reasonable economic reuse of the property.”

Yet the Historic Preservation Commission reached an opposite conclusion when six members voted to deny the permit and reverse the decision of Development Services. The HPC also found that the developers failed to make a good-faith effort to find an alternative to demolition.

The HPC also added facts of its own, though in several instances it failed to cite the sources use to reach them.

“What the applicant cited as consultation was actually discussions with Development Services that appear to be meant to thwart and circumvent a meaningful consultation process,” Schwab said, reading the HPC’s findings. “The agent (Zilla State) states they considered alternatives but state ‘they did not work for them.’”