02/02/19: EARLY 2019 TREE HOUSE UPDATE
This web site was created in the spring of 2016, four months after the DC Department of Transportation (DDOT) had issued us, Capitol Hill tree house builders, with a public space construction permit and let the authorization close out.
That spring, we realized that neither of the DC zoning commissions that had come at our girls' play fort over the winter--the Planning/Zoning Committee of Advisory Neighborhood Commission 6B and the Public Space Committee (PSC)--had the authority
to overrule permits. At that point--please excuse our gall--we decided to spread the word that the DC government is known to demand that ordinary homeowners like us demolish projects covered
by valid permits, or face large fines for failing to do so. Permit holder beware.
In early January 2018, the counter at the bottom of this page had tallied fewer than
10,000 hits. That was before the Washington Post reported that we'd countersued DDOT, in Federal court, to challenge the agency's denial of due process in tree house permitting. The page counter now records over 39,000
hits. Whatever has brought you to the this web site, thanks for stopping by - we appreciate your interest in our girls' homemade play fort. If you're a tourist heading to the Hill who
likes to get off the beaten path, come find the whimsical castle at 516 Archibald Walk SE, off F St. Terrace.
Remarkably, our Federal countersuit has been assigned to Amy Berman Jackson. She's the US District Court of the District of Columbia judge hearing the DC Manafort case in the Mueller
probe, and the criminal cases against Rick Gates and Roger Stone.
On 12/28, the popular DCist:
News, Food, Art & Events blog ran a feature on local Not-in-My-Back-Alley squabbles. Deane Madsen, architectural writer, brings readers up to date on the "Capitol Hill Tree House Affair," with the first
media report poking fun at DDOT's incompetent permitting work. The witty Madsen notes that DDOT sent citations to a "non-existent Mr. Lee," to fine him ($8,000) for failing to tear his tree house down.
This past fall, WTOP reported on a Council of DC hearing at which DDOT leaders were called to task
by the members of the Committee on Transportation and the Environment for failing to make adequate progress in implementing the agency's "Vision
Zero" initiative. The ambitious DDOT scheme has the goal of reducing annual traffic deaths in the District to zero by the year 2024. Sadly, there were at least 34 road fatalities in DC in 2018, after an increase in traffic deaths each year since 2012.
We believe that taxpayer funds allocated to DDOT should be spent to bolster public safety. In the last several years, the leadership of the agency's Public Space Regulation Division has lost persepctive
on the agency's core mission in tasking a team of attorneys with getting a backyard kids fort torn down. The DIY tree house, built in 2015 above our patio and a public-private
mulched tree box, neither obstructs travel nor poses a threat to the public. Nonetheless, SEVEN DIFFERENT SENIOR CITY ATTORNEYS have been given the unenviable job of ensuring that the small structure is "abated" (read demolished)
from slightly overhanging unpaved public space. See Castle Paper Trail for a list of DC lawyers who, embarrassingly, have
authored tree house briefs. We note that the attorneys list includes a current Deputy AG and the DC Solicitor General.
The District's ludicrous campaign to wreck a kids fort built for around $1,500 has already cost taxpayers SIX FIGURES, mainly in senior staff time. DDOT digs
in on a trifling zoning matter to warn homeowners not to challenge permitting wrongdoing, the stuff of political farce. Kids age out of play forts, and then families take them down, irregardless
of the public resources thrown at trying to destroy a particular structure.
DDOT's over-the-top reaction to our challenge to the agency's abuse of authority in unlawfully
withdrawing the permit clearly stems from from Washington Post coverage of the story: the newspaper has run four articles on the tree house since late 2015. The result? At an inconsequential
hearing at the DC Court of Appeals in September 2018, the City turned up with FOUR SENIOR ATTORNEYS to contend with us, ordinary citizens representing ourselves in litigation. The hearing wasn't the first time that the District
had trained extraordinary legal firepower on the small structure. In April, SEVERAL CITY LAWYERS, A DDOT DIVSION CHIEF, AND A SENIOR FORESTER all attended a dead-ended, six-hour-long court mediation session.
Yet DDOT could have ended litigation at any point along the way, freeing up City lawyers to do real work in the public interest, simply by agreeing to let the tree house alone while our girls are young.
Thus far, none of the D.C. Council members on the Committee
on Transportation and the Environment (with DDOT oversight authority) has indicated a willingness to address the nutty government waste in question, senior attorneys tasked with wrecking a play fort.
Nonetheless, we continue to invite our elected officials to visit the tree house.
1/28/19 marked the 3rd anniversary of the 2016 PSC meeting at which the Chair, a
DDOT official, tore up the closed permit authorizing the tree house in plain sight. Our message to the City has been that whenever permitting agencies unlawfully revoke a building permit like that, the District's investment climate takes
a hit. We hope that this bizarre zoning case has helped expose DDOT permitting incompetence and ingrained homeowner-hostile practices. If other homeowners are better able to defend rights
conferred by public space permits in the future as a result of our having challenged DDOT bumbling and wrongdoing, litigation will have been a small price to pay.
Ward 6 Cub Scout, Daisy Scout and Brownie Scout leaders, contact the Psychas-Yee family if you're interested in bringing your troupe to the tree house for
an educational spring 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.
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 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. Find a complete list of annotated tree house-related media links--four dozen of them--under the Press Coverage header.
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 a foot-and-a-half over the tree box 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 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 friends. Immediate neighbors are left notes telling them that a non-permitted fort will go up in the backyard elm tree. None react. The 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 (both 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 closes out on Nov. 20th. The parents are not real estate professionals and this is their first public space permit in any jurisdiction.
December 2015-January 2016:
A dozen alley neighbors sign a tear-down petition, addressed to Advisory Neighborhood Commission (ANC) 6B. The City 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" 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
temporary parking. DDOT had not advised the parents that their permit would need to be renewed, or that City review of tree house project plans would be required. The language of the
permit does not state that the authorization is temporary, or that either a "renewal" or additional permit will be required. View the permit at Castle Paper Trail.
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 out permit after
a small group of neighbors had complained about the tree house. No permit revocation documents are ever served. At several heated public hearings, ANC 6B commissioners and public space management 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, 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.
2017-January 2018: DDOT refuses court mediation at OAH, even though the lead judge has already lined up a mediator. 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 shenanigans threatening a homeowner's right to due process in public space construction permitting,
Bing, a Federal lawyer, but not a litigator, and Ellen sue DDOT and two of the agency's public space management officials. They are Matthew Marcou, Director of the Public
Space Regulation Administration, and John Stokes, the agency's City-wide Permitting Manager in 2015-16. 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. Ellen and Bing countersue right before the statute of limitations on various causes of action
is to expire, with the goal of simply keeping their homemade tree house while their two daughters are in elementary school.
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. OAG attorneys 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. Judge the quality of DDOT's legal 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 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 2015 DDOT Stop-Work-Order. A 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 as the parties wait for Judge Berman Jackson to rule on the status of the countersuit.