2018 - BANNER YEAR FOR THE TREE HOUSE
Last year's joyful July 4th open house, the biggest yet, was great fun. Around 200 locals of all ages turned
out, with arboreal travelers, ages 3-10, collecting stamps in their "tree house passports" in the elm. Kids had fun firing
off nerf arrows at targets on the south arm of the Walk. See Photo Gallery for pictures of the event. We're taking a break from an Independence Day open house in 2019, but are planning a trick-or-treating
The Washington 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 countersuit was scooped by none other than the DC URBAN REAL ESTATE BLOG. Their report explores why we are challenging DDOT's denial of due process in construction
permitting. Find a complete list of annotated tree house-related media links--there are four dozen--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.
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 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' tree house cannot be viewed from a 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 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 festival or temporary parking. The parents had not been instructed to submit to City review before being issued the permit, whose language does not state "temporary," or specify that the authorization would
need to be renewed. Neither does the permit 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 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 senior DDOT 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, 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 litigator, and Ellen countersue DDOT. They also sue the senior public space management
officials most involved in tree house permitting, DDOT's Matthew Marcou and John
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 remain in elementary school. Alternatively, they would like fair
compensation from the City for tearing the fort down, to 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. They 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. Evaluate DDOT's weird legal arguments for yourself 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 DDOT stop-work-order that was likely illegal. The 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 us that we should submit to City review to defend a closed construction
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 closed building authorization the City hasn't lawfully revoked, the commissioners' quarrel is with the issuing agency, not the homeowner.
The City's permitting games to demolish a play fort unpopular
with a few neighbors has 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 homeowner to have real difficulty defending rights under permits covering small projects, e.g.
sheds, fences and play forts.