LITIGATION TIMELINE - DDOT DIGS IN TO TEAR DOWN A PERMITTED CHILD'S FORT:
July 2015: Ellen Psychas and Bing Yee,
longtime Hill residents, ask permiting officials which authorizations will be required to build a kids fort at their Archibald Walk SE property. The proposed tree house would project slightly
over the tree space abutting their lot off an historic pedestrian walkway/back alley. The creative design would enable the builders to use a wooden fence with posts laid in concrete as supports,
minimizing the drilling of 18-inch lag bolts into a rare American elm. They learn that there is no reference to play forts or tree houses in the DC Municipal Regulations (DCMR) or Historic Preservation
Rules. They show officials plans and are told that DC does not permit structures with footprints of less than 50 SQF.
The tree house is built for the two preschool-age Yee girls, by relatives and family friends. Immediate neighbors are left courtesy notes telling them that a non-permitted fort will
go up in the backyard elm tree, whose branches extend over alley space. None react. The 7' x 4' fort cannot be viewed from a street.
October-November 2015: One
Archibald Walk neighbor complains to DDOT that the fort was built in a public tree, and constitutes a public nuisance (both untrue). A senior public space management inspector visits the alley and directs the parents to
apply for a permit for the tree house to extend 20 inches into public air space over tree roots. The parents do as instructed right away, quickly securing the permit. The
DDOT City-wide permitting manager chooses the type and length of the authorization, which closes out on Nov. 20th. This is the parents' first public space permit in any jurisdiction.
December 2015-January 2016: A dozen alley neighbors and local supporters sign a tear-down petition addressed to Advisory Neighborhood Commission (ANC) 6B.
The ANC reviews a permit "renewal" application the parents did not submit for a "proposed tree house" that's stood for months. The "renewal" is of a "balcony construction" permit under a Dept. of Consumer and Regulatory Affairs
(DCRA) code. This is clearly a permanent permit, vs. a limited-duration "public space rental" permit, e.g. for a street party or temporary parking. The parents had not been instructed to submit to City
review before being issued their building permit, whose language does not state "temporary," or specify that the authorization would need to be renewed. Neither does the fine print state that the parents would need to apply for an applicable
A DDOT official goes into Ellen's permitting account to apply for the "renewal," unbeknown to her, and changes her password. He memorializes his hacking in an email. In
October 2017, the parents will lodge a complaint with the FBI Internet Crimes Center. The PSC denies the "renewal application," DDOT's crude attempt to take an administrative shortcut to revoking
a building permit after a group of neighbors had complained about the tree house. No permit revocation documents are ever served. At public hearings, ANC 6B commissioners and senior DDOT officials
dodge Bing's questions as to why the original closed-out permit is not being respected.
February 2016-November 2017: The parents
appeal the "permit application renewal" denial at the Office of Administrative Hearings (OAH) and, eventually, the DC Court of Appeals. DDOT ignores Bing's requests for clarification of the status
of the original permit, which the agency now refuses to recognize. DDOT fines the parents $8,000 for not "abating" the tree house from public space, with multiple Notices of Violation served in the wrong
homeowner's name, to a "Mr. Lee" vs. a "Mr. Yee" (because all East Asian immigrants must be, er, "Lees," like Kung Fu fighter Bruce Lee...?). The notices are served via certified mail, meaning that Post Office
staff will not release the fines.
November 2017-January 2018: DDOT refuses court mediation at OAH, even though the lead judge has lined up a mediator, and deemed
the tree house matter "small." The Office of the Attorney General of DC (OAG) begins representing DDOT. After two years of being on the receiving end of abusive administrative errors and shenanigans in
public space permitting, Bing, a lawyer but not a litigator, and Ellen countersue DDOT. They also sue the two senior DDOT officials most involved in permitting: Matthew
Marcou and John Stokes of the Public Space Regulation Division.
The parents represent themselves in the first complaint
they file in any court of law. The case is brought under the Federal Computer Fraud and Abuse Act (CFAA), and other causes of action right before the statute of limitations on various causes of action is to expire. The parents'
goal is simply to keep the tree house while their daughters remain in elementary school. Alternatively, they would like fair compensation from the City for tearing the play fort down, to build a replacement entirely
on their lot.
February 2018: DDOT/OAG argues that the parents' lawsuit is "not ripe" in US District Court, after having asserted that the
case "is moot" at the lower court, OAH. The DC Court of Appeals dismisses the City's motion to throw out the appeal and refers the case to mediation. OAG lawyers begin
to insist that there was never a "permit renewal process." They now claim that the parents actually applied for a 2nd permit, a mythical but mandatory "public space occupancy permit for
balcony construction," denied by the PSC. Evaluate DDOT's flip-flopping legal arguments at Castle Paper Trail.
2018: DDOT/OAG tries to get the Federal case dismissed. Mediation fails at the Court of Appeals after DDOT refuses to leave the tree house alone.
September 27th, 2018+: The DC Court of Appeals hears oral arguments regarding vacating a DDOT stop-work-order that was likely illegal. The panel moots the
apellate case. The Federal case, however, continues. END OF TIMELINE
We've stayed in litigation to protest
how we did what the City required of us to build a legal tree house. However, DDOT moved the goal posts on us as a result of internal dysfunction and administrative overreach. An arbitrary project screening system also set the
stage for litigation. A paternalistic ANC 6B had no business informing us that we should submit to City review to defend a closed permit, thereby abetting an unlawful permit revocation. Why not? Because DC Code 1-309.10(a),
spelling out ANC powers, states that the commissions “may advise…with respect to all proposed matters of DC government policy…” Completed construction projects authorized by
closed permits cannot be described as "proposed matters." If an ANC has an issue with a project covered by a closed building authorization the City hasn't lawfully revoked, the commissioners' quarrel is with the issuing
agency, not the homeowner.
The City's permitting games to demolish a legal kids fort have been enabled by a failed regulatory process in a jurisdiction supporting a byzantine construction permitting scheme.
The District's poorly explained and discretionary system for issuing and withdrawing ordinary homeowners' building authorizations set the stage for litigation in the tree house case. The arrangement is particularly problematic
for building projects overlapping public space and in the DC Historic Districts, where ANC project review is required. Thus, your homeowner is predisposed to have real difficulty defending rights under permits covering small projects, e.g.
sheds, fences, and play forts.
This narrative not only chronicles the evolution of a knock-down neighborhood fight over a tree house, it proposes measures the City could take to prevent history from repeating itself when a family sets out to build
a backyard play space. See Castle Paper Trail, Proposed Tree House Rules. The conflict hasn't been as much about a kids fort as lack of accountability to the public on the part
of the DC permitting agencies. The story also encapsulates an urban community's struggle to balance the needs and interests of the old guard with those of the droves of young families putting down roots in neighborhoods. What else
could explain why a kids fort a stone's throw from the Capitol Dome has attracted media attention? The story has not only appeared in the WaPo, it aired on four local TV stations in January 2016: NBC-4,CBS-7, ABC-9 and Fox-5. That
year, NBC affiliates broadcast footage of the castle from coast to coast.