10/10/18: FALL TREE HOUSE UPDATE!
WTOP reported on a recent Council of
DC hearing where the DC Department of Transportation (DDOT) was called to task by DC lawmakers for failing to make adequate progress in implementing "Vision Zero." This is an initiative to reduce annual traffic deaths in the District to zero by 2024. The WTOP report ran on 9/27.
We, the Capitol Hill tree house builders, believe that tax dollars funding DDOT should be committed to improving public safety in the District through vital initiatives like Vision Zero,
rather than paying a team of attorneys to get a permitted child's fort off a back alley torn down. For example, at an inconsequential hearing at the DC Court of Appeals in September, DDOT and the Office of the Attorney
General for the District of Columbia (AG's Office) jointly dispatched no less than FOUR SENIOR ATTORNEYS AND DC's TOP FORESTER to face off against us, ordinary citizens representing ourselves in litigation. We've been appealing orders
to demolish the tree house since late 2015, to challenge low-grade DDOT permitting dysfunction and malfeasance. It wasn't the first time that the City had trained extraordinary legal firepower on our homemade tree house. In April, the City sent
THREE LAWYERS AND TWO DDOT DIVISION CHIEFS to a six-hour-long court-ordered mediation session. DDOT could have ended tree house litigation at any point in the last several years simply by agreeing to leave the small structure alone
until our girls, ages 6 and 8, have outgrown playing in it.
Labor Day Weekend marked the tree house's 3rd Anniversary! The play fort has stood for more
than 2.5 years since DDOT and the Chairman of the DC Public Space Committee tried to tear up the 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 fall birdwatching session. See Birding Activities for more information.
Many thanks to everybody in the neighborhood who stopped by the 3RD ANNUAL
JULY 4TH COMMUNITY OPEN HOUSE, the best yet. Almost 200 people of all ages turned up for cake and lemonade after the
Capitol Hill Community Parade on 8th Street. More than 80 arboreal travelers, ages 3-10, collected stamps in "tree house passports" in the elm, and some fired off nerf arrows on the south arm of Archibald
Walk. 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
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: DC'S GREATEST THREAT
IDENTIFIED IN A CHILD'S FORT
July 2015: Ellen Psychas and Bing Yee, longtime Hill residents, ask permiting officials which building authorizations would
be required to build a backyard tree house on their lot at Archibald Walk SE, near Eastern Market. The proposed kids fort would jut 20 inches over the mulch-covered public-private tree box
abutting their lot and an alley from which vehicles have long been banned. The creative design would enable them to use a fence with posts laid in concrete as supports, minimizing the drilling of giant lag bolts into their century-old
American elm tree. They discover 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 like the proposed tree house.
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 or obstruct
travel, and cannot be viewed from a street.
October-November 2015: A neighbor complains to the permitting agencies 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, quickly securing the permit. DDOT chooses the permit type and length. The authorization 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 DC's top 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 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 neighbors had complained about
the tree house. No permit revocation documents are served. At heated ANC hearings and a PSC hearing, City officials dodge Bing's questions about the status of the original permit.
February 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 their 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 several Notices of Violation served in the wrong homeowner's name,
to a "Mr. Lee" vs. a "Mr. Yee" (because all East Asian immigrants to DC 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 already 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 more than 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
February 2018: The City argues that the Federal lawsuit is "not ripe," illogically, after having argued that the case "is
moot" at OAH. A 3-judge panel at the Court of Appeals dismisses the City's motion to throw out the appeal, and refers the case to mediation. DC lawyers argue that there was never a "permit renewal" process. DDOT
makes the inventive claim that the parents had actually applied for a second permit, a (mythical but mandatory) "public space occupancy permit," which the PSC denied.
2018: The City files a motion get the Federal case dismissed. Mediation fails at the DC Court of Appeals after the City feels the need to send a team of FIVE SENIOR OFFICIALS--several attorneys,
and two division chiefs--to a full day of mediation with Bing and Ellen. The Federal case is assigned to busy Judge Amy Berman Jackson, who is hearing the DC Manafort case in the
Mueller inquiry. Within the next few months, the judge will rule if the parents' Federal lawsuit survives.
September 27th, 2018: The DC Court of Appeals hears
oral arguments regarding vacating a 2015 Stop-Work-Order. The Order may have been 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.
October 2018: By now, SEVEN SENIOR CITY ATTORNEYS have worked on the tree house case since 2016. The lawyers include a Deputy
DC AG and the DC Solicitor General. The City's legal team has been unable to bring about the tree house's "abatement from public space," yet DC won't settle the case by simply leaving
the tree house alone. The wasteful campaign to wreck a structure built for around $1,500, has already cost taxpayers six figures in staff time. Meanwhile, the Yee girls are
growing up fast, as children do, nearing the day when they will no longer play in their little fort. The City digs in on a trifling 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.