08/5/18: AUGUST TREE HOUSE UPDATE!
Many thanks to everybody in the neighborhood who stopped by our 3rd Independence Day 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 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:
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 permitting.
TREE HOUSE CASE TIMELINE:
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 Archibald Walk SE, near Eastern
Market. The proposed kids fort would jut a foot and a half into public air space over a 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 (their 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 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 (both untrue). A senior DC Department of Transportation (DDOT) inspector visits the alley and directs the parents to apply for a construction permit for the tree
house to extend slightly into public air space over tree roots. The parents do as instructed right away, quickly securing the permit. A DDOT 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 ANC and the City's preeminent 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 ever 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 the parents' 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 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 NOVs/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 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. The Federal complaint can be found under Castle Paper Trail, along with other
documents probing City construction permitting dysfunction.
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 now argue that there
was never a "permit renewal" process. DDOT makes the inventive claim that the parents had applied for a second permit, a (mythical but mandatory) "public space occupancy permit," which the PSC denied.
March-April 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, the Obama appointee who's hearing the DC Manafort case in the Mueller inquiry.
Office of the Attorney General-DC attorneys and the parents take turns filing motions in the Federal suit. By now, SEVEN DIFFERENT SENIOR CITY ATTORNEYS, one lawyer with DDOT and half a dozen with the
AG's office, have been assigned to the tree house case over a three-year period. None of the lawyers has been able to bring about the structure's "abatement from public space" (destruction). The District's
wasteful campaign to demolish a legal backyard kids fort has already cost taxpayers tens of thousands of dollars. The campaign has clearly been designed to dissuade other DC homeowners from challenging City permitting abuses.