The Family that Built this Capitol Hill Tree House in 2015 Got Every Government Authorization they were Told was Required. Yet their Play Fort is in Jeopardy. Why?

06/13/18.  JUNE UPDATE.  Welcome to the tree house site Families with children ages 3-10 are invited to visit the tree house for the upcoming 3rd Annual Independence Day open house.  The event follows the Capitol Hill Community Parade on 8th Street SE (two blocks east).  The parade starts on July 4th at 10:00.   We will be serving cake, lemonade and ice cream by the tree house from 11:00-12:30.  Join the fun on Archibald Walk!

The tree house case landed in the US District Court of the District of Columbia in January. The Washington Post Metro Section ran this report:

https://www.washingtonpost.com/local/after-a-three-year-neighborhood-dispute-the-case-of-a-capitol-hill-treehouse-lands-in-federal-court/2018/01/17/61229ec0-fb10-11e7-ad8c-ecbb62019393_story.html?utm_term=.fea5530b2d89

The story about the Federal suit was scooped by the DC Urban Turf real estate blog.  Their report emphasizes that the tree house builders are challenging DDOT's denial of due process in tree house permitting.  https://dc.urbanturf.com/articles/blog/hacked-accounts-and-improper-notices-the-saga-of-the-capitol-hill-treehouse/13455

Tree House Case Timeline: 

July 2015:  Ellen Psychas and Bing Yee, longtime Hill residents, ask DC permiting officials which building authorizations would be required to build a small backyard tree house at Archibald Walk SE, several blocks south of Eastern Market.  The proposed kids fort would jut a foot and a half into public air space over a tree box abutting an alley from which vehicles have been banned for decades.  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 tree houses or play forts in the DC Municipal Regulations (DCMR) or the Historic Preservation Rules.  They show officials plan documents and are told that DC does not permit kids forts with footprints of less than 50 SQF (the tree house is 30 SQF). 

August-September 2015:  The homemade tree house is built for the Yee girls, then ages 3 and 5.  Immediate neighbors are left notes telling them that a non-permitted fort will go up in the family's tree.  None react.  The structure does not obstruct any form of travel and cannot be seen from any street.  

October-November 2015:  One neighbor complains to the permitting agencies that the for tree house was built in a public tree and constitutes a public nuisance (untrue).  A senior DDOT inspector visits the alley and directs the parents to apply for a construction permit for the tree house to extend into public air space over a tree space.  The parents do as instructed right away, quickly securing the permit.  A DDOT City-wide permitting manager chooses the permit type and length.  The permit closes 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 living near the tree house sign a tear-down petition, addressed to Advisory Neighborhood Commission (ANC) 6B.  DC's preeminent zoning commission, the Public Space Commitee (PSC), then reviews a permit "renewal" application DDOT submitted 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 the parents that their 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.  Predictably, the PSC denies the "renewal," the agency's crude attempt to take an administrative shortcut to revoking the permit.  No permit revocation documents are ever served.  At the hearing, the PSC Chair dodges Bing's questions about the status of the original permit.

February 2016-November 2017:  The parents appeal the PSC permit application "renewal" denial at the Office of Administrative Hearings (OAH) and the DC Court of Appeals.  DDOT ignores the parents requests for clarification of the status of the original permit.  The City fines the parents $8,000 for not "abating" the tree house from public space, with the fines served in the wrong homeowner's name, a "Mr. Lee" vs. a "Mr. Yee."  The notices are served via certified mail, meaning that post office staff will not release them to Bing.  He's unaware that he's being fined for nearly a year after the first notice is (improperly) served.  

November 2017-January 2018:  DDOT refuses court mediation at the Office of Administrative Hearings (OAH), even though the lead judge has lined up a mediator.  The agency withdraws the fines, to re-serve them in the correct name. The Office of the DC Attorney General begins representing DDOT, with a current Deputy AG working on the case.  After more than two years of being on the receiving end of abusive administrative errors and permitting malfeasance threatening a homeowner's right to due process under the 5th Amendment, Bing, a lawyer with the U.S. Dept. of Homeland Securty but not a litigator, sues DDOT as a pro se litigant (representing himself).  The suit is the first complaint he files 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.  Bing sues before the two-year statute of limitations on various causes of action is to expire, with the goal of simply keeping the tree house for his girls.  You can read the Federal complaint and Court of Appeals filings under the Castle Paper Trail header.

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 DC Court of Appeals dismisses the City's motion to throw out the appeal and refers the case to mediation.  

March-April 2018:  The City files a motion get the Federal case dismissed.  Mediation fails at the Court of Appeals after the City sends a team of five senior officials to a full day of mediation.  The Federal case is assigned to Judge Amy Berman Jackson, the Obama appointee who is hearing the  Manafort cases in the Mueller inquiry.  

May 2018:  Office of the Attorney General attorneys and the parents take turns filing motions in the Federal suit.  By now, seven different senior City attorneys have been assigned to the tree house case.  None has been able to bring about the structure's "abatement from public space" (destruction).  The City's wasteful campaign to demolish a legal backyard child's fort, designed to dissuade other homeowners from challenging the permitting agencies, has already cost DC taxpayers tens of thousands of dollars.  

The parents have stayed in litigation to protest how they did just what the permiting agencies required of them to build the tree house, but DDOT moved the goal posts on them several times due to internal agency dysfunction.  The City's post-permitting crackdown on a child's backyard fort has been enabled by a failed regulatory process in a jurisdiction without a legal framework for tree house-building and a byzantine permitting scheme.  DDOT's poorly explained and highly discretionary permitting system sets up the homeowner to have great difficulty in defending construction rights. 

This site not only considers the evolution of a knock-down local fight over a tree house, it proposes measures the City government could take to prevent history from repeating itself elsewhere.  We point out that the struggle hasn't really been over the future of a child's fort.  Rather, it's about lack of accountability to the public on the part of the DC permitting agencies.  The story is also about a fast-changing 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 tree house a stone's throw from the US Capitol Dome has attracted considerable media attention?  The WaPo has run four articles on the story, which aired on local TV stations--NBC-4,CBS-7, ABC-9 and Fox-5--in early 2016. NBC affiliates even broadcast footage of the tree house from coast to coast.  See Castle in the News for an annotated list of media links. 

Capitol Hill Tree House Community Events, 2017-2018

Game of Capture-the-Castle for Neighborhood Children, June, 2018.  In the last several years,  Hill children have grown attached to the whimsical play fort, the scene of joyous celebrations,  community open houses, and birdwatching activities.  See Knights Parties  for pictures of kids enjoying visits to Archibald Walk.  We're concerned that, if this tree house is demolished prematurely, it will be the last built in a DC Historic District for a generation.  The local historic preservationists who came at the structure would do well to explain how backyard play spaces pose a threat to ongoing architectural restoration efforts.  Which old building is threatened by a child's fort?  We believe that the DC community can balance safety, heritage, public space and the need to promote outdoor play for children. When City leaders help make the DC Historic Districts child-friendly zones, they encourage the young families making their lives in them to thoughtfully invest in their classic properties, and to help the government maintain the public alleys providing access to backyard play spaces.    

 *POST-THANKSGIVING OPEN HOUSE:  TERRIFIC FUN IN THE ALLEY

The fall community open house was a wonderful time on a sunny November afternoon.  Neighborhood kids converged on the Walk, with (foam) sword fighting emerging as the most popular activity.  More than 60 people rocked in to chat over pie and hot cider.  A hard-working teen tree house monitor kept good order in the elm, giving the grown-ups below a chance to relax.  Visitors enjoyed filling the fort's pulley-and-rope-controlled bird feeders and bird bath.  Many thanks to all who turned out!  See Photo Gallery.

*MR. TONY'S CAPITOL HILL ADVENTURE CAMPERS VISIT THE TREE HOUSE:

What luck!  Seventy well-behaved knights from Mr. Tony's popular adventure camp, for ages 3-8, defended the castle on August 10th.  They had help from a dozen stellar camp counselors.  The decade-old camp is a popular program for local children, serving nearly 500 this past summer.  The adventure campers honed their archery skills on Archibald Walk (using nerf arrows) in the U-shaped alley, and made pine cone bird feeders to take home.  We enjoyed hosting the adventurers on their visit.  See Photo Gallery.

*2ND JULY 4th OPEN HOUSE IS PACKED:

On Independence Day 2017, neighborhood families again converged on the Walk after the Capitol Hill Community parade on 8th Street (two blocks east).  More than 150 Hill children, parents and grandparents turned out for last year's open house.  Most of the visitors were little kids eager to climb the castle-styled fort's ladder and explore inside. 

In 2016, Slate Magazine's Nora Caplan-Bricker called the tree house "a monument to freedom."  Each July 4th since, fast-changing neighborhood demographics have been on vivid display in the alley, as local families have celebrated the tree house's survival.  The anti-tree house movement had argued that the fort's builders had "dedicated public space for exclusively private purposes...with no benefit whatsoever to the public at large."  

Entry to the tree house was gained via an Archibald Walk castle hand stamp.  The newly installed rope-and-pulley bird feeder system proved popular.  Kids had fun playing knights on a nerf arrows archery range.  Inside the fort, they a blast banging a gong, ringing farm bells, peering through a toy telescope, blowing bubbles, having tea parties, trying out the fort's climbing rocks, raising a supplies bucket and drawing on a chalkboard.  Tree house frequent fliers mixed with first-time visitors, and the throng got through large quantitites of cake and lemonade.  Happily, neighbors who'd signed the tear-down petition joined the party.  See Photo Gallery.  

Thank you, Capitol Hill for reminding us of why we strive to preserve a unique urban play.  If you attended a July 4th open house, thanks for your interest in enjoying the tree house with us.  We hope that you and your family had fun on your visit, and that we can welcome you back this year.  We're looking forward to Independence Day 2018, thrilled that the tree house has survived to see another patriotic open house.   This year, young visitors can collect stamps in their "tree house passports" in the elm to win a prize.  

Digging Deeper into the Tree House Controversy

So why would neighbors, senior City permitting officials, and a team of lawyers at the Office of the DC Attorney General work hard to ensure that a child's tree house is destroyed?

In the summer of 2015, Ellen and Bing worked with friends and relatives to build a tree house in their elm tree off a narrow "U"-shaped back alley.  The solid fort, which encorporates elaborate safety and security features, was constructed in their SE property's back yard.  The tree house, painted blue and gray to match the house, stands off F St. Terrace, the alley behind Christ Church on G Street. 

The tree house was built in an environmentally-friendly manner.  The family hired a DDOT Urban Forestry Division-recommended private arborist to advise them on the care of the old host tree.  The family took great care in its treatment of the elm, including by using specialized hardware, because elms are relatively rare in DC: more than 80% of them succumbed to Dutch Elm Disease decades ago.  The tree is thriving.  In fact, the host elm is in far better circulatory health than when the tree house was built. 

The tree house platform extends over private land and a public-private tree space, meaning that it isn't in the way of anything.  See pictures under Photo Gallery.  The family maintains the small wood-enclosed area below the projection.  Nonetheless, DDOT got retroactive review of the family's closed "balcony" construction permit, in the form of a bogus "renewal" the parents hadn't requested, on the agenda of the Public Space Committee (PSC) in January 2016.  The PSC voted 4-0, with an abstention by DCRA Construction, to overrule the issuance of the permit, portending the tree house's destruction.  However, since the PSC lacks the legal authority to review or revoke any closed permit, the Committee was not within its rights to vote at all.  The parents didn't know this at the time, but have since researched the relevant legal issues.

At the hearing, we watched the PSC Chair strong-arm committee members to vote to tear down the fort, insisting that the parents should have gone through a (non-existent) process for permitting small DC tree houses.  The window DDOT had to require the tree house builders to submit to City review was the time before they were given a construction permit, versus after the permit had closed.  Find the PSC's unfathomable letter announcing the PSC's decision under the Castle Paper Trail header.  

The fact that the tree house is authorized by a closed construction permit explains why the family has made good progress in litigation.  After the PSC vote, Bing and Ellen thought in terms of inching the fort's overhang over their lot's boundary to save it.  By summer 2016, they'd reached the conclusion that the relocation project would be too hard on the elm, and that the shifted fort would be destabilized.  Moreover, the parents had their eyes opened to City review of the tree house plans after-the-fact as a cynical effort to fool and pressure them into altering or destroying a legal structure authorized by a pre-existing permit.  They prefer to stay in litigation than to acquiesce to DDOT's computer hacking-based permit revocation scheme.  They want the anti-consumer permitting trick used on them, which had a tried and tested feel to it, ended in DC. 

The authors of the tear-down petition, which some of the immediate neighbors refused to sign, argued that because the structure clashes with its surroundings, it should be demolished.  They asserted that the "castle-theme...is incompatible with the rest of the neighborhood and therefore antithetical to the historic nature and existing streetscape."  In supporting documents, made public by ANC 6B, neighbors expressed concern that the tree house would attract vagrants, prove unsafe for children, depress property values on the Walk, irreparably damage the host elm, fall into disrepair, hurt alley tourism, and compromise their privacy (with kids peering intently through neighbors' bedroom windows and into back yards).  Fortunately, none of this has happened, helping explain why the campaign to get the fort torn down petered out long ago.  

The backlash against what Slate Magazine's Norah Caplan-Bricker dubbed "DC Treehouse-gate" suggests that the public at large has not been swayed by the argument that a small tree house off a back alley should be destroyed.  Supporters have chipped in to raise funds to move the fort back, or build a new tree house, and to help with court filings.  The tree has been pruned by a professional tree care company without charge.  Donors have included kids offering allowance money, and local realtors who show the tree house to clients.  

In the fall of 2015, when a senior public space management DDOT inspector visited the alley, he stumbled across dozens of large potted plants and trees residents had been keeping in the alley for many years.  The agency cited the plant owners, mainly due to safety concerns (stemming from tall, heavy, wobbly potters standing mid-alley), a development for which the plant owners blamed the tree house builders.  In the weeks before the alley forest went, potted trees were knocked over and damaged by kids riding scooters in the alley.  The neighbors chose not to appeal the citations requiring them to move the plants.

The plant owners responded to the loss of the alley forest by collecting signatures on a tear-down petition.  Their spokesman explained the group's decision to the WaPo, saying that the tree house "encroaches on" and "overwhelms" the public space."  Curiously, none of the home owners who played an active role in pushing for play fort's destruction over the winter of 2015-16 has a view of the castle-styled facade from their lot.  

Creating a Process for Historic Preservation Review of Tree House Plans

The parents would not only like to preserve the tree house until their girls have grown up enough to have lost interest in playing in it.  They would like to see clear tree house rules enacted in DC.  To this end, in mid 2016, they petitioned the directors of DCRA, DDOT, and the Historic Preservation Office for rule-making related to tree house construction.  Read their petition, which the agencies ignored, here.  The rescue operation has been an opportunity to raise awareness that there is no niche for tree houses in the DCMR.  Strangely, the City considers them to be either non-permitted "playground equipment" or "accessory sheds," overly broad categorizations creating confusion for permitting officials and homeowners over structures going up in trees. 

Ellen and Bing's committment to preserving the banged-up historic alley the tree house overlooks was made clear in 2011, when they bought their SE property.  That year, they persuaded DDOT to repave the alley's badly degraded surface.  The paving project, the the first in over 60 years, improved alley conditions, particularly drainage.  Since buying the property, the family has upgraded it substantially, including by restoring the bricked-up 1888 facade with a DCRA permit.  The parents' contribution to preserving the neglected alley, which they sweep regularly, is apparent to long-time visitors. 

Without specific rules related to play fort or tree house building in DC, the door is left open to permitting adhocery.  The design of the tree house broke none of the tree space rules for the owners of adjoining lots, spelled out in Rule 24-109.3 of the DC Municipal Regulations.  The family's building permit references "the property owner's street box."  The rule was amended in 2017 to read that a "structure" cannot overhang a tree space, almost certainly as a reaction to the Capitol Hill Tree House War.  

The Family's Decision to Take the Case to Court:

The parents plan have gone to court to defend rights granted by a closed construction permit. DDOT came to regret issuing the permit, after neighbors complained about the tree house.  Agency oficials opted to harness PSC "review" of a closed construction permit to tear it up, without bothering to try to legally revoke the authorization. This type of casual malfeasance is detrimental to the workings of government.

DDOT's sham "review" of the tree house permit was government gone awry. The PSC Chair declared the fort illegal to the WaPo in advance of the hearing, without even the pretense of impartiality.  Fortunately, media attention has brought the parents advice from real estate professionals wise to City permitting games.  Local architects and contractors have reached out to the family, urging them to challenge DDOT's bad faith in court, because, under the law, a permit like theirs is a closed chapter.  If an ANC has an issue with a project covered by a closed construction permit that has not been lawfully revoked, the commissioners' quarrel is with the issuing admininistrative agency, not the homeowner. 

Public Access to the Play Fort - Local Children Welcome:

The tree house has become a community resource.  Look for announcements of upcoming open houses on the Moms on the Hill (MOTH) and the Nextdoor.com Eastern Market list servs.  In addition to holding open houses, the family has developed the fort as a bird-watching platform for local children's organizations.  DC Boy and Girl Scout groups can visit, to enable young naturalists to work on scout birding merit badges.  Youth group and day camp leaders can send the family requests for groups of kids to visit for bird watching purposes at: rescuetreehouse@gmail.com 

The Tree House on Capitol Hill Neighborhood Tours:

Come find the tree house!  The play fort has become something of a Hill landmark since the early 2016 media blitz - news coverage has attracted a good many GPS-guided tourists.  Ellen and Bing first opened the tree house to the public on Mother's Day Weekend 2016, during the Capitol Hill Restoration Society House & Garden Tour.  The family invited tour-goers to explore the fort, prompting several hundred CHRS event ticket holders to stop off at the family's red brick patio.  The local show of support for the tree house buoyed the parents in their appeals, helping persuade them to stay the course. 

The guided Capitol Hill Food Tour and the "Barrack's Row Tour of Duty" self-guided neighborhood walk bring tourists by the tree house regularly.  The authors of the tear-down petition argued that the struture "impairs the public use and enjoyment of this space...and the enjoyment of neighborhood tours which transit Archibald Walk and F Street Terrace" with the fort "disrupting the integrity and visual beauty of the alleyway."  Their view has not been universally shared.  If you talk to neighborhood tour guides, they'll tell you that visitors sometimes ask to be shown the sweet tree house they saw on TV news.  Tourists photograph the fort, and shout out encouragement to the tree house gang to "Defend the castle!"  This was the alley occupied by a large swarm of insects in warm weather before the family bought 516. 

Having trouble finding the tree house?  Try searching for Eastern Market on Google Maps, where a photo of "Tree House of Contention" may pop up at the bottom of your screen.  Plug in "East 516 Archibald Walk SE" into your GPS (vs. simply "Archibald Walk") to be directed to an alley entrance off F Street Terrace, the main alley, paved in gray asphalt pavers, running north to south between E & G Streets and 6th & 7th Streets SE. 

Contact Friends of the Capitol Hill Tree House:

If you took good pictures of the tree house at an open house, or at another time, consider sharing them with us by emailing digital attachments to rescuetreehouse@gmail.com.  Supporters who'd like to receive announcements of open houses, and occasional updates on legal proceedings, can ask to be put on our list serv.

DC residents seeking informal permitting advice on tree house-building are encouraged to contact Friends of the CH Tree House. We'd also like to hear from those interested in advocating to get tree house rules on the books in the District.  Local outdoor education enthusiasts, let's put pressure on the city bureaucracy to do the right thing by aspiring tree house builders seeking to promote fresh air adventures for DC kids.  

Going forward, the construction of tree houses should be regulated in the District, but in a way that encourages families to build them responsibly to promote outdoor play.  In a society where most urban youth spend too much time inside, the City should not be in the business of encouraging sedentary lifestyles for children by making backyard forts difficult to build, and even harder to preserve. 

Discouraging homeowners in the DC Historic Districts from building backyard tree houses is a losing strategy in a city with many large old trees in classic residential neighborhoods.  The unlawful revocation of closed construction permits by the government is another losing strategy in a municipality which has long struggled to rein in administrative corruption and dysfunction, dampening its statehood prospects.  

Kind regards

Friends of the CH Tree House

Photos courtesy of julieannwoodford.photoshelter.com

Thanks for stopping by!