Judge rules in favor of preservation group, gives attorney “one last opportunity” in Merc case

By Martin Kidston

Despite arguments that it would run contrary to existing case law, a Missoula District Court judge granted the attorney representing a group of preservationists “one last opportunity” to amend his complaint on Tuesday afternoon, a decision that will likely give his clients their day in court.

District Judge Dusty Deschamps gave Michael Doggett, who’s representing Preserve Historic Missoula, one final chance to allege – and later prove – that his clients have a personal interest or will suffer personal injury if a developer proceeds with deconstruction of the Missoula Mercantile.

Doggett asked the court for time to file the amended complaint on Tuesday morning after attorneys representing the city of Missoula and a Montana developer who’s looking to build a $30 million downtown hotel claimed Doggett’s complaint, as filed, was fundamentally flawed.

Alan McCormick, an attorney representing the developer, said standing case law shouldn’t permit Doggett to “fix” his complaint to make it more appetizing for the court’s consideration.

For that and other reasons, they asked the court to dismiss the case.

“You can’t get to this point, realize you’re on your last gasp, and then say you’ll fix it,” McCormick told the court. “Case law is very clear in saying that’s too late. This is one of those rare cases where the complaint is so obviously defective, you can’t wait till you get to the hearing to fix it.”

During the morning hearing, Natasha Jones, an attorney representing 110 North Higgins LLC, said Doggett’s clients don’t have standing to file suit. She told the court that the case represents a political issue, not a judicial one.

“We have a group of citizens who have a clear political preference as to what happens to this particular building,” Jones said. “They participated fully in the political process. Unhappy with the result, they filed a lawsuit.”

Jones and City Attorney Jim Nugent both argued that Doggett’s clients don’t own the Mercantile property, nor any adjacent property. Nowhere in their complaint did they specifically argue any personal harm if the Mercantile were replaced with a new building.

Simply claiming a preservation interest wasn’t enough to allow the complainants to sue, Jones said, adding that Doggett’s case lacked concrete proof and was riddled with abstract arguments.

“A general concern about historic preservation, because you own property in downtown Missoula, is not sufficient,” said Jones. “What we have here is real damage being done to our clients on the basis of hypothetical, abstract damage that’s no different than any other property owner in downtown Missoula.”

Deschamps, who appeared sympathetic to Doggett’s case, suggested that citizens have little recourse if they disagree with a decision by the City Council, which approved a deconstruction permit for the Mercantile over the summer.

He asked Jones what other options were available to Doggett’s clients if the court dismissed their case without hearing their contention that the City Council erred by approving the permit.

“They do have a right, and that’s through the political process – that’s through their representatives,” Jones countered. “There are other ways in which folks could bring a claim, that being if they were denied the right to participate in the political process. This court is powerless to act unless that constitutional mandate is met.”

Deschamps said that at least one of Doggett’s clients has historic property in downtown Missoula, and that removing the Mercantile could damage them in some way. He also noted, however, that they failed to prove in their complaint that doing so would actually result in concrete damage.

While he said the argument was slender, it was still something the court could consider. Nugent disagreed, saying Doggett’s clients aren’t an aggrieved party as defined by city ordinance.

“They did not plead being an aggrieved party,” Nugent said. “They did not plead any harm. They haven’t met the threshold that is necessary. They haven’t even alleged a concrete harm.”

McCormick, also representing the Mercantile developer, said that while the law affords citizens a right to address issues though the court, this particular case wasn’t one of them.

He said Doggett’s complaint was defective – reason enough for the court to dismiss it.

“You can’t overlook the fact there’s no allegation of damage by any of these complainants,” McCormick said. “They don’t own the building, they have no interest in the building, and they don’t have anything at stake. They have to allege specific, personal harm in order to have the ability to petition this court.”

Deschamps agreed, suggesting the flaws in Doggett’s complaint did pose a problem.

“I searched for some allegation of injury and I couldn’t find it,” Deschamps said. “Where’s your allegation of damage? Can you point me to where that might be?”

Doggett said he could not, though he asked the court for more time to amend the complaint. He said the amended complaint would identify specific downtown property owners who have an interest in historical properties.

Deschamps afforded Doggett another try in amending his complaint on behalf of his clients – the plaintiffs in the case.

“It is the court’s decision that plaintiffs shall have one last opportunity to amend their complaint in order to ‘allege any personal interest or injury, beyond that common interest of all citizens and taxpayers,’ ” Deschamp wrote, citing separate case law.

The decision likely sets a court hearing for late November.

Contact reporter Martin Kidston at info@missoulacurrent.com