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Originally published Monday, February 10, 2014 at 9:04 PM

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Bog a battlefield for developer, neighbor in Snohomish County

The Court of Appeals will decide on Friday whether to take a case that could determine the fate of Hooven Bog, just north of Woodinville in Snohomish County. It’s a case pitting property-owner rights against environmental preservation.


Seattle Times staff reporter

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To Randy Whalen and environmental consultants who’ve seen the property, Hooven Bog and wetlands are a rare wonderland of unique plants and lofty trees and likely the last remaining sphagnum-moss bog of its kind in the Everett-to-Olympia corridor.

To Rod Loveless and Robert Dillon, who own 90 percent of the 30-acre site, the property is an investment that could bring $1.4 million if they put five homes on it and logged the wetlands.

Hooven Bog and wetlands, just north of Woodinville in Snohomish County, will be before the state Court of Appeals on Friday when that court will decide whether or not to take the case of Loveless & Dillon v. Snohomish County — which ultimately pits property-owner rights against environmental preservation.

What it comes down to is this: Can Loveless & Dillon legally build a road through the wetlands so they can develop or log their property — and in the process irreparably damage the headwaters to Bear Creek, which meanders through King County.

According to environmental consultant Sarah Spear Cooke, the case is an example of private citizens footing the bill as they ask the courts to enforce environmental regulations that government officials should have enforced. Cooke has taken on championing the cause of Hooven Bog pro bono. And Whalen, 57, a mechanical engineer who lives across from the forested wetlands, is privately financing his fight against the development.

He wants the Court of Appeals to uphold a hearing examiner’s decision that prevented Loveless & Dillon from building the road they need to log or develop. The Snohomish County Superior Court ruled in favor of Loveless & Dillon when they appealed the hearing examiner’s decision.

“I’m basically mad as hell,’’ Whalen said. “My kids’ world is not as clean, not as nice. It’s diminished from what I got as a kid. They are doing this to our children.”

Loveless, 88, from Kenmore, is frustrated at the delays. He’s developed many parcels over the years and owns shopping centers in Bothell and the San Juan Islands, but Hooven Bog has cost him money and caused plenty of aggravation.

The case is being closely watched by a number of groups, from the Washington Native Plant Society and Pilchuck Audubon Society to Sno-King Watershed Council.

“You cannot un-log or un-grade a piece of property,’’ Eric Adman, president of the Sno-King council, wrote to Snohomish County Planning and Development Services Director Clay White, urging him to consider the property’s “high ecological value ... as well as protecting the headwaters of Bear Creek, which supports a run of endangered chinook salmon.”

Cooke says sphagnum-moss bogs “are very rare and most in our state are found in Snohomish and King County. ... This one, in particular, is unique because of its size and the different species of rare plants.”

A 1958 state survey called the Peat Resources of Washington noted that Hooven was a “typical sphagnum bog’’ and still had some of the same flora from the time it was first surveyed in 1929 — multiple kinds of peat, hardhack, Labrador tea, bog cranberry and bladderwort.

Cooke said it was critical to preserve the rare remaining sphagnum bogs, not only for the rare plant species, but because sphagnum is a kind of super moss capable of absorbing a lot of water — unless it’s compromised. The bogs help, environmentalists say, with flood prevention.

New regulations

Loveless bought the 30-acre site and several other lots — including where Whalen lives — in the 1970s.

For more than 30 years the land remained with few changes. Then in 2007 Snohomish County made plans to change its Critical Areas Ordinance, making it stricter. Instead of requiring 100-foot setbacks between water and a building, the new setback would be 190 feet and 300 feet from septic drainfields.

Just before the regulations changed, Loveless hired Gene Miller, a former planning-department employee, to apply for building permits for five houses.

The county granted the permits, averaging the total setback footage. Because some lots had greater setbacks than others, the averaging made it possible to build with only a 75-foot setback on two of the lots, under the 2007 guidelines.

With the new regulations, at the most one or perhaps two residences could be built, said state Department of Ecology wetland specialist Paul Anderson, who first contacted Snohomish County in 2008 to caution that the planned development “poses significant adverse impact to the environment.’’

He also noted that the homesites would remove a mature forest with large conifers about 100 years old.

Last Wednesday, White said his department made the decision to grant the permits because Hooven Bog was not listed on the county’s Shoreline Master Program in 2007 when Loveless first applied. It is now.

After he got the building permits, Loveless let them expire. Later, the county gave him an extension, which would allow him to build under the old regulations.

Loveless says beavers as well as changing water levels and regulations complicated the project.

“The peat bog was dammed up by beavers and we tried to have the dam broken down or have the beavers removed, but the water table kept getting higher and the setbacks we needed kept getting bigger. We finally got this all worked out, now this,’’ he said.

More issues

One day Whalen was appalled to see road equipment working in the thickly forested area across from his house.

Because the only access Loveless had to his property was through a private road owned by the neighbors, they built a cyclone fence, blocking his access. But Loveless graded a road on the other side of the fence — without a permit — according to Snohomish County court documents. He also widened the road he had built across the bog in the 1970s to about 20 feet, raising its level with asphalt and crushed concrete rubble, which makes the bog more alkaline, causing the acid-loving bog plants to die.

Loveless & Dillon was ordered to stop work and remove the rubble until it could get a grading permit.

Whalen challenged the application before the Snohomish County Hearings Examiner and won. Loveless & Dillon (Dillon became a partner in 2009) sued Snohomish County for damages, claiming the hearing examiner was in error.

The partnership appealed the hearing examiner’s decision to Snohomish County Superior Court. That time, it won.

To Whalen and others’ dismay, the county’s planning department didn’t wait to see if the Court of Appeals would take the case before giving Loveless & Dillon a logging and grading permit.

Because Loveless & Dillon has sued the county, it’s a party to the motion asking the Court of Appeals to hear the case.

Loveless said he would sell the property to a nature conservancy like the county’s Conservation Futures program, which buys property to preserve it from development, but the fund would have to pay the $1.4 million appraised price, he said. That’s the price he’d get if he could develop five homes.

Whalen remains disheartened. “My generation is leaving a worse place than we inherited.’’

Nancy Bartley: nbartley@seattletimes.com or 206-464-8522



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