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Members of Missoula’s Historic Preservation Commission are facing a difficult decision. With so much at stake, it is entirely understandable that they would not want to rush a critical vote on whether to approve, approve with conditions, or simply deny a permit to deconstruct the Missoula Mercantile.

Unfortunately, recent actions on the part of commissioners do not inspire confidence that they are making the best possible use of their time.

A few weeks ago, the Missoula city attorney offered the commission sound counsel in advising four of its members to recuse themselves from voting on the permit. He cited evidence that these members had demonstrated bias or had an undisclosed personal interest in the fate of the Merc, in appearance at least if not in deed.

Rather than accept this guidance for the useful recommendation that it is, the members vehemently denied any bias and opted to delay their decision yet again. Their next regularly scheduled meeting will be held this week, on May 5.

In the meantime, only four of the commission’s 11 members attended last week’s meeting, which was scheduled ostensibly to allow them to gather more information. Now, not only is the commission operating under the suspicion of bias, it also appears as though it is postponing meaningful action merely for the sake of causing delay.

The commission was allowed 90 days to arrive at a decision, and that allowance will be up on June 7. Some members have previously expressed an intention to take the full 90 days, which would be perfectly acceptable if they were making better use of their time.

Lacking that, taking more time than is necessary is at best inconsiderate and at worst spiteful.

HomeBase, the development company based in Bozeman that is looking to turn the Mercantile into a five-story, $30 million Marriot hotel, has made it clear that in public meetings that is frustrated with the commision. Andy Holloran of HomeBase has repeatedly said his company is doing its best to follow the rules and doesn’t feel the commission has treated them fairly.

HomeBase is under contract to buy the building from Octagon Partners, a Virginia-based investment firm that bought the building in 2011. JP Williamson, founder and president of Octagon, told the commissioners during a recent meeting: "There's no way we're ever getting yes. I don't believe that's an option. If you already know your answer is no, why would you make me wait to hear it?"

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Members of the commission may not be aware of this, but Missoula has a reputation for being a bit of a bureaucratic black hole when it comes to economic development. Deserved or not, it’s an image the city has worked hard to overcome.

Of course, it isn’t the responsibility of historic preservation commissioners to concern themselves with Missoula’s economic image, but the city councilors whose responsibility it is to appoint commission members ought to be watching this process closely, and with growing concern.

What commissioners should be concerned with is the very real risk of legal liability they – and the city of Missoula – could face if they aren’t more careful to respect the limits of their authority and avoid the appearance of impropriety.

The Missoula History Preservation Commission is “charged with establishing a local historic preservation program, integrating historic preservation into local, state and federal planning and decision-making processes.”

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The 11 members of the commission, including alternates, are appointed by the city council and serve as volunteers. Missoula owes them a debt of gratitude for essentially donating their time, effort and expertise to protecting the community’s irreplaceable historic assets.

To qualify for a seat on the commission, candidates must “have a demonstrated interest, competence, or knowledge in historic preservation,” according to the city’s website. However, a general interest in historic preservation is not the same thing as a specific interest in “saving” the Missoula Mercantile.

The city attorney, Jim Nugent, is doing his job in trying to help the commission avoid embroiling the city in a potential lawsuit. Going forward, commission members should heed his advice in order to ensure their eventual decision is on solid footing.

This means commission members Steve Adler, Kate Kolwicz and Mike Monsos should recuse themselves, and their fellow commission members should move ahead with a vote on the permit application without further delay. Soloman Martin and Cheryl Cote have already recused themselves, so the commission would still have the six-member majority needed to hold a vote.

City staff are recommending the permit be approved. The state historic preservation office recommends that it be denied. We would like to see the commission approve the permit.

If the commission votes to deny the application, the developer may opt to appeal the decision to the city council. If the developer can prove bias, there may be legal grounds to void the commission’s decision.

The Historic Preservation Commission members must now take pains to ensure they are doing the job they were appointed to do, and doing it to the best of their ability. Otherwise, they could be opening the city and themselves to legal liability. Worse – or at least as bad – they could be jeopardizing both the Merc’s history and its future.

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Missoulian editorial board: Publisher Mark Heintzelman, Opinion Editor Tyler Christensen.

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