LITIGATION TIMELINE - DDOT DIGS IN TO TEAR DOWN A PERMITTED CHILD'S FORT:
July 2015: Ellen Psychas and Bing Yee,
longtime Hill residents, ask permiting officials which authorizations will be required to build a kids fort at their Archibald Walk SE property, near Eastern Market. The
proposed tree house would project over the tree space abutting their lot off an alley from which vehicles are 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 rare old elm. They learn that there is no reference to play forts or tree houses in the DC Municipal Regulations
(DCMR) or Historic Preservation Rules. They show officials 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' fort 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 fine print 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 multiple 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, er, "Lees," like Bruce Lee...?). The
notices are served via certified mail, meaning that Post Office staff will not release the fines to Bing.
November 2017-January 2018: DDOT refuses court mediation at
OAH, even though the lead judge has 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 DDOT officials most involved
in tree house permitting: Matthew Marcou and John Stokes of the Public Space Regulation Division.
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 right 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 play 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, after having asserted that the case "is moot" at the lower court, OAH. The DC Court of Appeals dismisses the
City's motion to throw out the appeal and refers the case to mediation. OAG lawyers begin to insist that there was never a "permit renewal process." They now claim that the parents had applied for a 2nd permit, a
mythical but mandatory "public space occupancy permit for balcony construction," denied by the PSC. Evaluate DDOT's flip-flopping 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 fort alone.
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 the City 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 6B had no business informing
us that we 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 construction 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 kids fort have 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 your homeowner to have real difficulty defending rights under permits covering small building projects, e.g. sheds, fences and play forts.
This narrative not only chronicles the evolution
of a knock-down neighborhood fight over a tree house, it proposes measures the City could take to prevent history from repeating itself when a family sets out to build a backyard play space. See Castle
Paper Trail, Proposed Tree House Rules. The conflict hasn't been as much about a kids fort as lack of accountability to the public on the part of the DC permitting agencies. The story also encapsulates
an 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 kids fort a stone's throw from the Capitol Dome has attracted media attention? The story has not only appeared in the WaPo, it aired on four local TV stations in January 2016: NBC-4,CBS-7, ABC-9 and
Fox-5. That year, NBC affiliates broadcast footage of the castle from coast to coast.