12/15/18: END-OF-YEAR TREE HOUSE UPDATE
A year ago, the visitor counter on this blog had tallied fewer
than 10,000 hits. The number has mushroomed to almost 35,000 since. To quote Buffalo Springfield, iconic 60s rocker, "There's something happening here. What it is ain't exactly clear." Whatever
has brought you to the tree house web site, thanks for stopping by and happy holidays!
on a recent Council of DC hearing at which DC Department of Transportation (DDOT) leaders were called to task by members of the Committee on Transportation and the Environment for failing to make adequate progress
in implementing the "Vision Zero" initiative. The ambitious DC government scheme aims to reduce annual
traffic deaths in the District to zero by 2024. There have been at least 31 road fatalities in DC in 2018, after increases each year since 2012.
We, the Capitol Hill tree house builders, believe that taxpayer funds allocated to DDOT should be spent to bolster public safety. In the last several years, agency leaders have lost persepctive
on DDOT's core mission in tasking a team of attorneys with getting a 7' x 4' roofless kids fort off a back alley torn down. The DIY tree house, built during the summer of 2015, neither
obstructs travel nor poses a threat to the public. Even so, SEVEN DIFFERENT SENIOR CITY ATTORNEYS have been given the unenviable job of ensuring that our childrens' permitted, homemade play fort
is "abated" from 20 inches of public space over a public-private tree space (read demolished). See Castle Paper Trail for
a list of City lawyers who've authored tree house legal briefs.
DDOT's over-the-top reaction to our challenge to permitting abuse of authority, in
unlawfully withdrawing the "balcony" construction permit authorizing the tree house, clearly stems from Washington Post coverage of the story. The Post has
run several news stories and an op-ed piece on the tree house. The result? At an inconsequential hearing at the DC Court of Appeals this fall, DDOT and OAG turned up with FOUR SENIOR ATTORNEYS, and a senior DDOT-Urban Forestry Admiminstration official, to contend with us, ordinary citizens representing ourselves in litigation. The hearing wasn't the first time that DC had trained extraordinary legal firepower on the small structure. In April, DC sent THREE LAWYERS AND TWO DDOT DIVISION CHIEFS to a six-hour-long court mediation session. Yet DDOT could have ended litigation at any point along the way, freeing up City attorneys to do real work in the public interest, simply by
agreeing to let the tree house alone until our girls, ages 6 and 8, have lost interest in it.
Labor Day Weekend marked the tree house's 3rd Anniversary. The
play fort has now stood for nearly three years since DDOT and the Chairman of the DC Public Space Committee (PSC) tried to tear up the valid, closed, construction permit authorizing its presence in 20" of public air
space over tree roots and mulch. We look forward to celebrating three years with the tree house since the PSC decision, on 1/28/2019.
Ward 6 Cub Scout, Daisy Scout and Brownie Scout
leaders, can contact the Psychas-Yee family if you're interested in bringing your troupe to the tree house for a winter birdwatching session. Click on Birding Activities for more information.
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 people of all ages turned up for
cake and lemonade after the Capitol Hill 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 SE. The atmosphere was joyous - what a morning to remember! See Photo Gallery for some fun pictures.
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 lawsuit 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 to ordinary homeowners.
3 YEARS OF LITIGATION:
DDOT's GREATEST THREAT IDENTIFIED IN A CHILD'S FORT!
July 2015: Ellen Psychas and Bing Yee, longtime Hill residents, ask DC
permiting officials which authorizations will be required to build a tree house on their lot at Archibald Walk SE, near Eastern Market. The proposed fort would jut a foot-and-a-half over the tree
box abutting their lot and a back alley from which vehicles have long been banned. The creative design would enable them to use a wooden fence with posts laid in concrete as supports, minimizing the drilling of 18-inch lag bolts
into their rare, century-old elm. They learn that there is no reference to 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 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 notes telling them that a non-permitted fort will go up in their backyard elm tree. None react. The new structure does
not extend over a paved surface and cannot be viewed from any street.
October-November 2015: A
neighbor complains to DDOT that the fort 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 fort to extend slightly 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 becomes permanent 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 sign a tree house tear-down petition, addressed to Advisory Neighborhood Commission (ANC) 6B.
The ANC and a top City zoning commission, the DC 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 law, rule, or
DC official had advised that the original permit was temporary, or that City review of project plans was required, and nothing was put in writing by DDOT.
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 will 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
a small group of neighbors had complained about the tree house. No permit revocation documents are served. At heated public hearings, permitting officials dodge Bing's questions as to why the original 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 then the DC Court of Appeals. DDOT ignores Bing's various 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, er, "Lees," like Bruce Lee). 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 him the first fine.
November 2017-January 2018: DDOT rejects court mediation at OAH, even though the lead judge has already lined up a mediator. The
agency withdraws the notices of violation/fines. 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
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 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. See Castle Paper Trail to read the complaint.
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 now insist that there was never a "permit renewal" process.
They 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.
March-April 2018: DDOT/OAG files a motion get the Federal case dismissed. Mediation fails at the
DC Court of Appeals. The Federal case is assigned to Amy Berman Jackson, the US District Court judge who's hearing the DC Manafort case in the Mueller probe. Within the coming months, Judge Berman Jackson,
appointed by President Obama, will rule if the tree house lawsuit survives in whole or in part.
September 27th, 2018: The DC Court of Appeals hears oral arguments regarding vacating a 2015 DDOT Stop-Work-Order. One judge on the 3-judge panel declares that the order was likely illegal, as it overreached
in directing the parents to remove the tree house. The panel moots the apellate case. The Federal case, however, continues.
October 2018+: By now, SEVEN SENIOR CITY ATTORNEYS have authored tree house briefs. The lawyers include
a Deputy AG and the DC Solicitor General. Although the District's legal team has been unable to bring about the tree house's "abatement from public space," DDOT won't settle the case by simply
ignoring the structure. The wasteful campaign to wreck a kids fort built for $1,500 has already cost DC taxpayers SIX FIGURES IN STAFF TIME. Meanwhile, the Yee girls
are growing up fast, as kids do, nearing the day when they will no longer play in their fort. DDOT digs in on a trifling zoning matter to warn other homeowners not to challenge
permitting wrongdoing, the stuff of political farce. Kids age out of play forts, then families take them down, irregardless of the public resources thrown at trying to destroy a particular one.