Hooven Bog is precious ground for both sides in legal struggle

MALTBY — As glaciers scraped a slow retreat through the Northwest some 10,000 years ago, they left a series of depressions that developed into a rare type of wetland.

That’s likely how Hooven Bog came to be.

Today, some biologists consider the peat bog northeast of Woodinville one of the best remaining examples of an environment mainly found in Snohomish and King counties.

What makes these habitats unusual is an acidic environment dominated by sphagnum moss, which floats in mats several yards thick. They’re home to stunted pine trees, a rare variety of bladderwort and other plants seldom found in the Puget Sound lowlands.

Now suburbia’s encroaching.

Developers want to clear woods to the south of Hooven Bog, which they think would make a nice backdrop for five new luxury homes.

If the development gets under way, a neighbor and his allies fear all is lost for the bog. They’ve waged a legal battle to prevent it from happening.

At issue is a grading permit that Snohomish County planners approved in 2012, before appeals put the development on hold.

“The bigger picture is we’re just picking away at them and we’re losing these unique habitats,” said Randy Whalen, 57, the neighbor leading the opposition. “The reality is this is one of the last that’s left of a type that we used to have a lot of. As a representative of what we’ve lost, this is almost like a museum piece.”

The developers who own most of the bog of 20-plus acres say they, too, appreciate the beautiful wetland setting.

Rodney Loveless, 88, and his development partner, Robert Dillon, 90, want to finish the project. They say they’ve been hampered by changing government regulations. They’re exasperated after spending years in the permitting process with little to show for it, except a Superior Court decision in their favor.

“We’ve spent a lot of money on the property in the past seven years, while we haven’t been able to build on it,” Loveless said.

Rich with life

Go to Hooven Bog today, and you’ll see the westernmost tip of a corridor of undeveloped and protected land that stretches to the Cascade Range. The bog waters flow to Crystal Lake and eventually to the Bear Creek stream system.

The surrounding forests are distinguished by Douglas fir and cedar. The trees around the bog are stunted pines and Western hemlock, which can survive in the nutrient-poor ground.

When it warms up, cattails teem with redwing blackbirds and Steller’s jays. Bobcats, coyotes, black bears, foxes — they’ve all been known to pass through.

“In the spring and the summer, everything is just moving here — it’s just moving,” said Whalen, a mechanical engineer who moved to a neighboring property 15 years ago. “Birds are the most obvious. It feels like all the brush is moving on you.”

Neither the current landowner or Whalen are sure where the bog’s name comes from. A possible clue comes from a family who lived nearby during the early 20th century. Thomas P. and Mary Hooven owned about 30 acres in the area, said Elsie Mann, a local historian who wrote a book called “Maltby and Neighbors.” Back then, the area was known as Grace, after a nearby railroad stop.

The Hoovens don’t turn up in local Census records until 1910, Mann said. By 1940, they’d disappeared from the records. Someone else owned their land.

Changing land, changing rules

Loveless bought the bog property in the 1970s.

“At one time, when I first bought the property, I thought about mining the peat,” he said.

He soon transferred it to Loveless &Dillon Inc., a partnership he formed with Dillon, with the idea of one day building houses there.

The two men have been in the development business together since 1963. Over the years, they have built entire neighborhoods, public storage facilities and other commercial developments throughout King County and beyond.

“We have done a lot for the public,” Dillon said.

Loveless is best known locally for building Country Village, the old-timey shopping center on the Bothell-Everett Highway. He said he remains active in projects in the San Juan Islands and in Mexico.

It wasn’t until 2007 that Loveless and Dillon applied for permits to build five homes within 100 feet or less of Hooven Bog. They submitted the application two weeks before new rules took effect governing what can be built near certain natural, or critical, areas. More current regulations impose stricter buffers of at least 190 feet from the bog. That would limit the developers to just one home on their approximately 30 acres.

Dillon and Loveless say the regulatory environment isn’t the only part of the landscape that’s changing. Part of the issue, they contend, are beaver dams, which have brought more standing water to the area during recent years. Aerial photographs over the decades prove it, Dillon said.

“You can walk on the bog with dry feet,” he said.

A legal tussle

A legal battle could determine what happens next. The state Court of Appeals is considering whether to review the case.

Whalen started the process by appealing the 2012 grading permit to the county hearing examiner.

“Since that, we’re in limbo,” said Gene Miller, a land-use consultant and former county permitting employee who’s working for the developers.

Building permits for the homes had expired. The developers say they were unable to move forward on the permits because they were trying to comply with the county’s other requirements.

“In the process of doing what they wanted us to do, they told us the permits had expired,” Miller said. “The county staff made the permits more complicated than they should have been.”

In December 2012, then-county hearing examiner Millie Judge, now on the Superior Court bench, mostly sided with the opponents. She ordered that the grading permit be reprocessed under the new critical areas rules with stricter buffers.

Last year, Superior Court Judge Eric Lucas reversed the examiner’s decision, declaring the underlying logic “arbitrary and capricious.” Lucas said Loveless and Dillon could continue to obtain a grading permit, which would allow them to start logging and building an access road.

In a separate part of the legal case, Loveless and Dillon are asking for monetary damages due to mistakes they claim the county made in processing their permits. That part of the suit must be resolved before they can obtain the grading permit.

A delicate ecosystem

Sarah Spear Cooke, a wetlands consultant with a master’s degree in botany and a doctorate in forestry, joined Whalen’s effort to save the bog. Initially hired as an expert, she soon volunteered for the cause.

“This to me is a no-brainer,” she said. “If there is a single wetland in Washington state that is worth preserving, this is it.”

Cook once performed an official survey of all bogs in King County.

“None of the ones I’ve seen are anywhere near as nice as Hooven,” Cooke said. “I’m not jumping on the bandwagon to preserve yet another wetland. I’m trying to protect this wetland.”

Hooven’s waters are home to two kinds of bladderwort, floating plants that use bladder-like structures to trap tiny aquatic animals. Cooke said the bladderworts found in the bog include the rare Utricularia intermedia.

The bog also is home to the shrubs Labrador tea and bog laurel, as well as the ground-hugging bog cranberry.

Cooke says invasive plants started to proliferate in 2009. That’s when Loveless and Dillon built a road through the west side of the bog. Cooke said crushed-concrete gravel used for the road altered the bog’s chemistry.

The U.S. Army Corps of Engineers and the state Department of Ecology ordered the road removed. The agencies signed off on the removal work the following year, though material remains. Cooke said the remnants continue to leach calcium carbonate, which neutralizes the bog’s acidity, allowing invasive plants that previously would not have survived.

She fears the ecosystem would be unable to survive another blow, as could happen if mature forest on the south shore is cleared and the ground excavated. There are already homes along the bog’s north shore.

“If you log that forest, you are basically going to kill what’s left of the bog,” she said.

Potential for compromise

Whalen’s goal is to conserve the land as a natural area.

Loveless and Dillon have suggested they’re open to selling the property — for the right price.

So far, the sides remain far apart.

On Thursday, Loveless said he’s been conferring with attorneys to tally up the value of the land, plus all the money invested on the project, including legal fees. For $1.9 million, he said, they might be willing to sell the bog and settle the lawsuit against the county.

Whalen called that price inflated.

Dillon, meanwhile, frets about the delays.

“And time goes on,” he said, “and you can’t add that to the price.”

Noah Haglund: 425-339-3465, nhaglund@heraldnet.com.

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