TREE HOUSE HAPPENINGS:
Ward 6 Cub Scout, Daisy Scout and Brownie Scout leaders, please contact
us if you're interested in bringing your troupe to the tree house for an educational spring bird watching session. Click on Birding Activities for
Many thanks to everybody in the 'hood who stopped by our 3RD
ANNUAL JULY 4TH OPEN HOUSE, the best yet, on a scorching day. Around 200 Capitol Hill people of all ages turned up for cake and lemonade after the 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. The
atmosphere was joyous - what a morning to remember! See Photo Gallery for some fun pictures.
Post Metro Section ran this surprising report in mid January 2018, after finding our complaint via Pacer Legal Filings software:
The story about the Federal lawsuit was scooped by none other than the DC Urban Turf blog. Their report emphasizes
that we are challenging DDOT's denial of due process in construction permitting. Find a complete list of annotated tree house-related media links--four
dozen of them--under Press Coverage.
LITIGATION TIMELINE: DDOT's GREATEST THREAT IDENTIFIED IN A CHILD'S FORT
July 2015: Ellen Psychas and Bing Yee, longtime Hill residents, ask permiting officials which
authorizations will be required to build a tree house at Archibald Walk SE, several blocks south of Eastern Market. The proposed kids fort would project over the tree
box abutting their lot off an alley from which vehicles have long been banned. The creative design would enable the builders to use a tall wooden fence with posts laid in concrete as supports, minimizing the drilling
of 18-inch lag bolts into a century-old elm. They learn that there is no reference to kids 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.
The tree house is built for the Yee girls, ages 3 and 5, 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. None react. The structure does not extend over a paved surface and cannot be viewed from any 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 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.
December 2015-January 2016: A dozen alley neighbors 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" 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 temporary parking. DDOT had not advised the parents that either City review of project plans or a permit
renewal would be required. The language of the permit does not state that the authorization is temporary, or say anything about a renewal or applicable second permit. See Castle
Paper Trail for a list of four dozen media links.
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 closed 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 public space management officials dodge Bing's questions as to why the original building 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 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 "Lees," like Bruce Lee...?). The notices are served via certified mail,
meaning that post office staff will not release them to Bing.
November 2017-January 2018: DDOT refuses court mediation at OAH, even though the lead judge has
already lined up a mediator. The Office of the Attorney General of DC (OAG) begins representing DDOT. After more than two years of being on the receiving end of abusive administrative errors and shenanigans threatening
a homeowner's right to due process in public space construction permitting, Bing, a Federal lawyer, but not a litigator, and Ellen countersue DDOT and two of the agency's public space officials: Matthew Marcou, Director of the Public Space Regulation Administration, and John Stokes, the agency's City-wide Permitting Manager.
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 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 are in elementary school. Alternatively, they would like fair compensation
from the City for tearing the tree house down, so they can build a replacement entirely on their lot.
February 2018: DDOT/OAG argues that the parents' lawsuit is "not
ripe" in US District Court, 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 begin to insist that there was never a "permit renewal" process. OAG attorneys now claim that the parents had actually applied for a 2nd permit, a (mythical but mandatory) "public
space occupancy permit for balcony construction," denied by the PSC. Judge the quality of DDOT's legal arguments at Castle Paper Trail.
March-April 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 for a few more years. OAG lawyers seem confident that they will get the entire case thrown out.
September 27th, 2018+: The DC
Court of Appeals hears oral arguments regarding vacating a 2015 DDOT stop-work-order. A judge points out that the order overreached in directing the parents to remove the tree house.
A 3-judge panel moots the apellate case. The Federal case, however, continues as the parties wait for Judge Berman Jackson to rule on the status of the parents' countersuit.
END OF TIMELINE
We've stayed in litigation to protest how we did what permitting officials 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 had no business informing homeowners in its catchment area that they 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
projects authorized by closed permits cannot be described as "proposed matters." If an ANC has an issue with a project covered by a permit that hasn't been lawfully revoked, the commissioners' quarrel is with the issuing agency, not the homeowner.
The City's permitting games to try to demolish a backyard fort have also been enabled by a failed regulatory process in a jurisdiction supporting a byzantine construction permitting scheme. DC's poorly
explained and discretionary system for issuing (and withdrawing) homeowners' building authorizations, particularly those in public space and the DC Historic Districts, sets up a citizen to have real difficulty defending
rights under permits covering small projects, e.g. garden sheds, fences and play forts.