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
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
construction permit for the tree house to extend 20 inches into public air space over mulch. 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.
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 2nd permit.
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 to the Office of Administrative Hearings (OAH) court and, later, to 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 all six Notices of Violation served in the wrong homeowner's name,
to a non-existant "Mr. Lee" vs. a "Mr. Bing Yee" (because all East Asian immigrants must be, er, "Lees," like Kung Fu fighter Bruce Lee...?). The US Post Office will not release the notices of violation to Bing.
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 civil litigator with trial experience, and Ellen countersue DDOT in the US District Court of the District of Columbia (Federal court) to challenge the fines. They also sue the two senior DDOT officials most involved in
permitting at the agency's 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 in early 2018. The parents' goal is simply to keep the tree house until their daughters
have outgrown it. 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 Federal Court, after having asserted that the case "is moot" at the lower court,
OAH. The DC Court of Appeals dismisses the District'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. DDOT is forced to withdraw $8,000 in fines because none was served in a correct name.
March-April 2018: The Federal Court case is assigned to Amy Berman Jackson, the judge hearing the DC Mueller probe cases. DDOT/OAG files a motion to get the parents' lawsuit dismissed. Mediation
fails at the DC Court of Appeals, after a 7-hour session to which the District sends 5 senior staff, including several attorneys. DDOT refuses to agree to let the tree house alone until the Yee girls are done with elementary school.
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, on appeal by early 2020.
June-October 2020: The treehouse case goes to mediation at the US States Court of Appeals for the District of Columbia Circuit. The parties ask the Court to remove the case from the docket and the court concurs. END