A Construction Permit Authorizes this Homemade Capitol Hill Tree House. Yet the DC Government has Spent 3 Years (and Paid 7 Lawyers) Trying to Tear it Down. Why?

07/12/18.  JULY UPDATE.  Welcome to the tree house web site.

Many thanks to everybody in the neighborhood who came to our 3rd Independence Day open house, the best yet.  Around 175 people of all ages stopped by 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" up 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 Community Events (below) and 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:

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 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 permittinghttps://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 construction authorizations would be required to build a backyard tree house on their lot at 516 Archibald Walk SE, near Eastern Market.  The proposed kids fort would jut a foot and a half into public air space over the public-private 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 Historic Preservation Rules.  They show  officials project plans and are told that DC does not permit kids forts with footprints of less than 50 SQF (the fort will be 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 new structure does not extend over a paved surface or obstruct any form of travel, and cannot be viewed from any street.  

October-November 2015:  One neighbor complains to the permitting agencies that the 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 tree house tear-down petition, addressed to Advisory Neighborhood Commission (ANC) 6B.  The City's preeminent zoning commission, the Public Space Commitee (PSC), reviews 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" or "occupancy 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.  Predictably, the PSC denies the "renewal application," the agency's crude attempt to take an administrative shortcut to revoking a closed construction permit after neighbors had complained about the tree house. No permit revocation documents are ever served.  At two heated ANC 6B 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 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, which DDOT refuses to recognize.  The City fines the parents $8,000 for not "abating" the tree house from public space, with all these Notices of Violation served in the wrong homeowner's name, to a "Mr. Lee" vs. a "Mr. Yee."  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 NOV.

November 2017-January 2018:  DDOT refuses court mediation at 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 Security (but not a litigator), and Ellen sue DDOT, representing themselves.  The suit is 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 two-year statute of limitations on various causes of action is to expire, with the goal of simply keeping the tree house while the kids are young.  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 Bing's 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--several attorneys, and two division chiefs--to a full day of mediation with Ellen and Bing.  The Federal case is assigned to busy Judge Amy Berman Jackson, the Obama appointee who's hearing the Manafort cases in the Mueller inquiry.  

May-June 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.  However, DDOT moved the goal posts on them several times due to internal agency dysfunction.  A flawed ANC project screening system also set the stage for litigation: DDOT and ANC 6B had no business informing homeowners they were required to submit to City review to "renew" a closed building permit to preserve a completed building project, when there was no legal reality to the assertion.  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 administrative agency, not the homeowner. 

DDOT's permitting shenanigans to try to wreck a roofless child's fort off a back alley have been enabled by a failed regulatory process in a jurisdiction without a legal framework for tree house-building along with a byzantine public space and construction permitting scheme.  The City's poorly explained and discretionary permitting system sets up the ordinary DC homeowner to have great difficulty defending rights under permits for small building projects like sheds, fences and tree houses.

This website not only considers the evolution of a knock-down local fight over a tree house, it proposes measures the DC government could take to prevent history from repeating itself elsewhere in the District when a young family sets out to build a backyard play space.  We point out that the struggle hasn't really been over the future of a child's fort.  Rather, it's about the lack of tree house rules and accountability to the public on the part of the permitting agencies.  The story is also about a fast-changing 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 DC neighborhoods.  What else could explain why a kids fort a stone's throw from the US Capitol Dome has attracted so much 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 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. 

Community Events at the Capitol Hill Tree House

MEMORIES OF INDEPENDENCE DAY OPEN HOUSES AT THE ELM: 2016, 2017 & 2018

 

For three years running, scores of neighborhood residents have come by the tree house after the local morning Indpendence Day parade (two blocks east).  In early 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 young families have celebrated the play fort's survival.  Hundreds of local children have had a chance to explore the tree house at these low-key celebrations.  Consider the irony of how, in 2016, the ANC 6B-03 commissioner for the property announced to the local media that the tree house builders had "dedicated public space for exclusively private purposes...with no benefit whatsoever to the public at large."  

Entry to the tree house at open house is gained via an Archibald Walk castle hand stamp.  Hill teenagers serve as monitors in the large elm, keeping young visitors safe.  A rope-and-pulley controlled bird feeder system lets kids fill feeders from the alley.  Children have fun playing knights on a make-shift archery range set up on the south arm of the Walk.  Inside the tree house, visitors bang a gong, ring farm bells, peer through a toy telescope, blow bubbles, have tea parties, try out the fort's climbing rocks, raise a supplies bucket and draw on a chalkboard. Tree house frequent fliers mix with first-time visitors, from babies to grandparents.  Happily, a few neighbors who once opposed the fort have joined in.  Each Independence Day that the tree house survives to see another neighborhood open house feels like a victory.

The nerf arrows archery range at the south entrance to the 10 foot-wide Walk is always a draw at the open houses.  Arrows fired on the range are trapped by the 15-foot-high walls of the 19th century Walker Hill Dairy warehouses on either side.  A new generation of Hill residents appreciates a little-visited alley network (historically, "Marks Alley") by making happy memories of participating in Independence Day celebration for local children.  

Thank you, Capitol Hill, for reminding us of why we strive to preserve a unique urban play space.  If you attended a July 4th open house with your family, we appreciate your interest in the tree house.  We hope that you and your children, or grandchildren, had fun on your visit, and that we can welcome you back after next year's local parade. 

Game of Capture-the-Castle for Neighborhood Children, June, 2018.  Hill children have grown attached to the whimsical tree house since it was built, not just through open houses, but at birthday parties and birdwatching events.  See Knights Parties  for pictures of kids' visits.  We're concerned that, if this singular tree house is demolished prematurely, it will be the last built in a DC Historic District for a generation.  The 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 kids 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 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 District maintain the public alleys providing access to 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 up 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 in August.  They had help from a dozen stellar camp counselors.  The decade-old camp is a popular program for local children, serving hundreds each summer. The adventure campers honed their archery skills on the Walk and made pine cone bird feeders to take home.  We really enjoyed hosting the adventurers on their epic visit.  Come again! See Photo Gallery.

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 play fort 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 extensively 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 old 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 revocation scheme.  They want the anti-consumer permitting trick used on them, which had a tried and tested feel, 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 tree, 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 group campaign to get the fort torn down petered out in 2016.  

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.  A plant owner responded to the loss of the alley forest (which was not appealed) by collecting signatures on a tear-down petition.  The neighbors' spokesman explained the group's decision to the WaPo, saying that the tree house "encroaches on" and "overwhelms" the public space."  Notably, none of the homeowners who played an active role in pushing for 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 tree houses to be either non-permitted "playground equipment" or "accessory sheds," overly broad categorizations creating confusion for City officials and homeowners over structures going up in trees. 

Ellen and Bing's committment to preserving the banged-up historic alley their fort overlooks has been made clear since 2011, when they persuaded DDOT to repave its badly degraded surface.  The paving project, the first in decades, improved alley conditions, particularly drainage.  The Walk was occupied by a large swarm of insects in warm weather before repaving.  In 2017, the family restored the house's bricked-up 1888 facade.  Their contribution to keeping up 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 problematic permitting adhocery.  The fort's design broke none of the tree space rules for owners of adjoining lots on the books in 2015, spelled out in Rule 24-109.3 of the DC Municipal Regulations.  The family's building permit references "the property owner's street box."  In 2017, the rule was amended to read that a "structure" cannot overhang a tree space, surely as a reaction to the treehouse war in an alley.  

The Treehouse Case in Court (Making Progress)

The parents plan have gone to court to defend rights granted by a permit DDOT had come to regret issuing after neighbors had complained to ANC 6B about the tree house.  Agency oficials opted to harness a bogus City "review" of the authorization post hoc to tear it up. This type of casual, low-grade permitting malfeasance is very seldom challenged in the Distirct. 

DDOT's "review" was government gone awry. The PSC Chair declared the fort illegal to the WaPo in advance of the treehouse hearing, without even the pretense of impartiality.  Fortunately, media attention has brought the parents advice from Hill real estate professionals wise to City permitting games.  Architects and contractors have reached out to the family, urging them to challenge DDOT's bad faith, because, under the law, a permit like theirs is a closed chapter.  The family is on the up and up in litigation because a closed permit authorizes the tree house.

Public Access to the Play Fort - DC Children Welcome:

The tree house has become a community resource in the several years since it was built.  Look for announcements of bi-annual open houses on the Moms on the Hill (MOTH), Brent Neighbors and the Nextdoor.com Eastern Market area list servs. 

In addition to holding open houses, the family has developed the fort as a bird-watching platform for children. Occasionally, DC Boy and Girl Scout groups visit, to enable young naturalists to work on scout birding merit badges.  Youth group, school group, and day camp leaders can send requests for small groups of children to visit the tree house 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!"  

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'd like to contact the tree house builders, email rescuetreehouse@gmail.comLocal 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 kids by putting tree house rules on the books in DC.  

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 local children by making backyard kids forts difficult to build, and even harder to preserve.  

Discouraging homeowners in the DC Historic Districts from building tree houses for children 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.  The DC consumer has a right to know exactly what they are, and aren't, allowed to build.  

To urban tree houses as places of joy and discovery!

Friends of the CH Tree House

Photos courtesy of julieannwoodford.photoshelter.com and Ellen Psychas of rescuetreehouse@gmail.com

Thanks for stopping by.  Capitol Hill visitors and residents who haven't seen the tree house, please come find it and draw your own conclusions.