11/1/18: FALL TREE HOUSE UPDATE
WTOP reported on a late September
Council of DC hearing at which DC Department of Transportation (DDOT) leaders were called to task by members of the Committee on Transportation and the Environment for failing to make adequate progress in implementing the "Vision Zero" initiative. The ambitious scheme
aims to reduce annual traffic deaths in the District to zero by 2024. There have been 31 road fatalities in DC in 2018, after increases each year since 2014.
We, the Capitol Hill tree house builders, believe that taxpayer funds allocated to DDOT should be spent to bolster public safety in the District. Agency leaders have lost persepctive on DDOT's core
mission in tasking a team of attorneys with getting a 7' x 4' child's fort off a back alley torn down, although the structure neither obstructs travel nor poses a threat to the public. In
2016, we faced off against a SINGLE DDOT lawyer in litigation. Since then, SIX MORE CITY LAWYERS have been given the job of ensuring the tree house is demolished, ending our challenge to DDOT's abuse
of authority in unlawfully revoking the closed construction permit authorizing the structure. At an inconsequential hearing at the Court of Appeals in September, DDOT and the Office of the Attorney General for DC jointly dispatched FOUR
SENIOR ATTORNEYS AND DC's TOP FORESTER to court where we, ordinary citizens, have been representing ourselves in litigation. It wasn't the first time the District had trained extraordinary legal firepower on our kids' fort. In April,
the City sent THREE LAWYERS AND TWO DDOT DIVISION CHIEFS to a day-long court-ordered mediation session. Yet DDOT could have ended tree house litigation at any point along the way simply by agreeing to let the fort alone
until our girls, ages 6 and 8, have outgrown it.
Labor Day Weekend marked the tree house's 3rd Anniversary. The play fort has stood for almost three years
since DDOT and the Chairman of the DC Public Space Committee (PSC) tried to tear up the valid, and closed, construction permit authorizing its presence in 20" of public air space over tree roots and mulch.
Ward 6 Cub Scout, Daisy Scout and Brownie Scout leaders, contact the Psychas-Yee family if you're interested in bringing your troupe to the tree house for a late fall birdwatching session. See Birding Activities for more information.
thanks to everybody in the 'hood who stopped by the 3RD ANNUAL JULY 4TH OPEN HOUSE, the best yet, on a scorching day. Around 200 people of all ages turned up for cake and lemonade after the Capitol Hill Community Parade on 8th St. More than 80 arboreal travelers, ages 3-10, collected stamps
in "tree house passports" in the elm, and many fired off nerf arrows on the south arm of Archibald Walk SE. The atmosphere was joyous - what a morning to remember! See Photo Gallery.
Did you hear? The tree house case landed in the US District Court of the District of Columbia in January.
The Washington Post Metro Section ran this surprising report, after finding the lawsuit via Pacer Legal Filings:
The story about the Federal lawsuit was scooped by none other than the DC Urban Turf blog. Their report emphasizes that the tree house builders are challenging DDOT's denial
of due process in construction permitting.
CASE TIMELINE: DDOT's GREATEST THREAT
IDENTIFIED IN A CHILD'S FORT
July 2015: Ellen Psychas and Bing Yee, longtime Hill residents, ask DC permiting officials which building authorizations will
be required to build a backyard tree house on their lot at Archibald Walk, near Eastern Market. The proposed kids fort would jut 20 inches over the mulch-covered public-private tree box
abutting their lot and a back alley from which vehicles have long been banned. The creative design would enable them to use a wooden fence with posts laid in concrete as supports, minimizing the drilling of 18-inch lag bolts
into their rare, century-old elm. They learn that there is no reference to play forts in the DC Municipal Regulations (DCMR) or Historic Preservation Rules. They show officials project
plans and are told that DC does not permit structures with footprints of less than 50 SQF.
August-September 2015: The tree house is built for the Yee girls, ages
3 and 5, by relatives and family friends. Immediate neighbors are left notes telling them that a non-permitted fort will go up in the tree. None react. The new structure does not extend over a paved surface and
cannot be viewed from a street.
October-November 2015: A neighbor complains to the City that the fort was built in a public tree, and constitutes a public nuisance
(both untrue). A senior DDOT inspector visits the alley and directs the parents to apply for a construction permit for the fort to extend slightly into public air space over tree roots.
The parents do as instructed right away, quickly securing the permit. DDOT chooses the type and length of the authorization, which becomes permanent on Nov. 20th. The parents are not real estate professionals
and this is their first public space permit.
December 2015-January 2016: A dozen neighbors sign a tree house tear-down petition, addressed to Advisory Neighborhood
Commission (ANC) 6B. The ANC and a top City zoning commission, the Public Space Commitee (PSC), review a permit "renewal" application the parents did not submit for a "proposed tree house" that has stood for months.
The "renewal" is of a closed "balcony" construction permit under a Dept. of Consumer and Regulatory Affairs (DCRA) code, clearly in a different category than a limited-duration "public space rental" permit, e.g. for a street festival or parking.
No DC official had advised that the family's original permit was temporary, or that City review was required, and nothing was put in writing.
A DDOT official goes into Ellen's
permitting account to apply for the "renewal," unbeknown to her, and changes her password. He memorializes the hacking in an email. Later, in October 2017, the parents lodge a complaint about the hacking with the FBI
Internet Crimes Center. Predictably, the PSC denies the "renewal application," the agency's crude attempt to take an administrative shortcut to revoking a closed permit after a small group of neighbors had complained about
the tree house. No permit revocation documents are served. At heated public hearings, DC officials dodge Bing's questions as to why the original permit is not being respected.
2016-November 2017: The parents appeal the permit application "renewal" denial at the Office of Administrative Hearings (OAH) and the DC Court of Appeals. DDOT ignores Bing's many requests for clarification of the
status of the original permit, which the agency now refuses to recognize. The City fines the parents $8,000 for not "abating" the tree house from public space, with half a dozen 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). The notices are served via certified mail, meaning
that US Post Office staff will not release them to Bing. He's unaware that he's being fined for a year after DDOT improperly serves the first fine.
November 2017-January 2018: DDOT refuses
court mediation at OAH, even though the lead judge has lined up a mediator. The agency withdraws the notices/fines, to re-serve them in the correct name. The Office of the DC Attorney General begins representing DDOT.
After over two years of being on the receiving end of abusive administrative errors and permitting shenanigans, threatening a homeowner's right to due process, Bing, a lawyer with the U.S. Dept. of Homeland Security (but not
a litigator), and Ellen sue DDOT. The parents represent themselves in the first complaint they file in any court of law. The case is brought in U.S. District Court under the Federal Computer Fraud and Abuse Act (CFAA), and other
causes of action. The parents sue pro se right before the statute of limitations on various causes of action is to expire, with the goal of simply keeping the tree house while their girls are young. See
the Federal complaint and related documents under Castle Paper Trail.
February 2018: DC
argues that the Federal lawsuit is "not ripe," illogically, after having asserted that the case "is moot" at OAH. The Court of Appeals dismisses DC's motion to throw out the appeal and refers the case to mediation.
City lawyers argue that there was never a "permit renewal" process. DDOT makes the inventive claim that the parents had actually applied for a 2nd permit, a (mythical but mandatory) "public space occupancy permit for
balcony construction," denied by PSC.
March-April 2018: The City files a motion get the Federal case dismissed. Mediation fails at the DC Court of
Appeals after DDOT feels the need to send a team of FIVE SENIOR OFFICIALS to a full day of mediation with Bing and Ellen. The Federal case is assigned to Amy Berman Jackson, the US District Court
judge who's hearing the DC Manafort case in the Mueller probe. Within the coming months, Judge Berman Jackson will decide if the Federal lawsuit survives in whole or in part.
27th, 2018: The DC Court of Appeals hears oral arguments regarding vacating a 2015 Stop-Work-Order. A judge delcares that the order was likely illegal, as it overreached in directing the parents to remove
the tree house. A 3-judge panel moots the apellate case. The Federal case, however, continues.
By now, SEVEN SENIOR CITY ATTORNEYS have authored tree house briefs. The lawyers include a Deputy AG and the DC Solicitor General. Although DC's legal
team has been unable to bring about the tree house's "abatement from public space," DDOT won't settle the case by simply ignoring the tree house. The wasteful campaign to wreck
a structure built for around $1,500, has already cost DC taxpayers six figures in staff time. Meanwhile, the Yee girls are growing up fast, as kids do, nearing the day when
they will no longer play in their fort. DDOT digs in on a trifling zoning matter to warn homeowners not to challenge permitting wrongdoing, the stuff of political farce. Kids age out of play forts,
irregardless of the public resources thrown at trying to destroy a particular one.