A Construction Permit Authorizes this Homemade, 30 SQF Capitol Hill Tree House. Yet the DC Government has Spent 3 Years (+ Paid 7 Lawyers) Trying to Tear it Down. Why?

09/12/18: LATE SUMMER TREE HOUSE UPDATE:

Ward 6 Cub Scout, Daisy Scout and Brownie Scout leaders, contact the Psychas-Yees if you'd like to bring your troupe to the tree house for fall Birding Activities! rescuetreehouse@gmail.com

Many thanks to everybody in the neighborhood who stopped by the 3rd annual 4th of July 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:

https://www.washingtonpost.com/local/after-a-three-year-neighborhood-dispute-the-case-of-a-capitol-hill-treehouse-lands-in-federal-court/2018/01/17/61229ec0-fb10-11e7-ad8c-ecbb62019393_story.html?utm_term=.fea5530b2d89

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

https://dc.urbanturf.com/articles/blog/hacked-accounts-and-improper-notices-the-saga-of-the-capitol-hill-treehouse/13455

TREE HOUSE CASE TIMELINE:

July 2015:  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, several blocks south of Eastern Market.  The proposed kids fort would jut 20 inches 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 (the 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: A 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 fort to extend slightly into public air space over tree roots.  The parents do as instructed, quickly securing the permit.  DDOT 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 several 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 actually 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.  

May-August 2018:  Office of the Attorney General-DC attorneys and the parents take turns filing motions in the Federal suit.  By now, SEVEN SENIOR CITY ATTORNEYS, one lawyer with DDOT and half a dozen with the DC 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 homemade fort was built for just $1,500, but DDOT's wasteful campaign to demolish a legal structure has already cost DC taxpayers tens of thousands of dollars.  The skunky campaign has been designed to dissuade other homeowners from challenging City permitting abuses.

September 27th, 2018:  An oral arguments hearing at the DC Appellate Court, before a 3-judge panel, is fast approaching.  Contact us for more information if you'd like to attend.  

The parents have stayed in litigation to protest how they did what the permiting agencies required of them to build the tree house, but DDOT moved the goal posts on them several times due to internal agency dysfunction.  An arbitrary ANC construction project screening system also set the stage for litigation.  ANC 6B had no business informing homeowners in its catchment area that they were required to submit to City review to defend a closed construction permit.  DC Code 1-309.10(a), which spells out ANC powers, states that the commissions “may advise…with respect to all proposed matters of District government policy…”  Completed building projects authorized by closed permits cannot be described as "proposed matters."  If an ANC has an issue with a building project covered by a closed permit that has not been lawfully revoked, the commissioners' quarrel is with the issuing administrative agency, not the homeowner. 

The City's permitting games to try to demolish a child's fort off a back alley have been enabled by a failed regulatory process in a jurisdiction supporting a byzantine construction permitting scheme.  The District's poorly explained and highly discretionary system for issuing (and withdrawing) building authorizations sets up the ordinary homeowner to have real difficulty defending rights under permits covering small construction projects, e.g. sheds, fences and tree houses.

This site not only considers the evolution of a knock-down local fight over a tree house, it proposes measures the City government could take to prevent history from repeating itself when a young 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 child's fort as lack of accountability to the public on the part of the permitting agencies.  The story also encapsulates a fast-changing 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 WaPo has run four articles on the story, which also aired on local TV stations--NBC-4,CBS-7, ABC-9 and Fox-5--in 2016. NBC affiliates broadcast footage of the tree house from coast to coast.  See Castle in the News for an annotated list of media links. 

Community Events at the Capitol Hill Tree House

MEMORIES OF INDEPENDENCE DAY OPEN HOUSES AT THE ELM: 2016, 2017 & 2018

 

For young Hill families have stopped by the tree house after the local Indpendence Day parade (two blocks away) in the last several years.  In January 2016, Slate Magazine's Nora Caplan-Bricker called the tree house "a monument to freedom."  Each July 4th of July since, fast-changing neighborhood demographics have been on vivid display in the alley, as Capitol Hill families have celebrated the tree house's survival.  Each patriotic open house has drawn 75-100 local children, giving kids the chance to explore in the elm at these low-key celebrations.  Consider the irony of how the ANC 6B commissioner for the property (who isn't runing for reelection in 2018) announced to the media that the parents had dedicated public space for exclusively private purposes...with no benefit whatsoever to the public at large."  

Entry to the tree house at open houses is gained via an Archibald Walk castle hand stamp.  Hill teenagers serve as monitors in the elm, helping keep young visitors safe.  A rope-and-pulley controlled bird feeder system lets the kids fill feeders from the alley.  Children have fun playing knights on a make-shift archery range set up on the south arm of the Walk.  Inside the tree house, visitors bang a gong, ring farm bells, peer through a toy telescope, blow bubbles, have tea parties, try out the fort's climbing rocks, raise a supplies bucket and draw on a chalkboard. Tree house frequent fliers mix with first-time visitors, from babies to grandparents.  Happily, a few neighbors who once opposed the fort have joined in.  Each Independence Day that the tree house survives to see another neighborhood open house feels like a victory.

The nerf arrows archery range on the south arm of the Walk is a draw at open houses.  Arrows fired on the range are trapped by the 15-foot-high walls of the historic Walker Dairy warehouse and red brick carriage house on either side.  A new generation of Hill residents appreciates a little-visited walkway (historically, "Marks Alley"), making happy memories of participating in July 4th celebrations by the tree house.

Thank you, Capitol Hill, for reminding us of why we strive to preserve a unique urban play space.  If you attended a July 4th open house with your family, we appreciate your interest in the tree house!  We hope that you and your children, or grandchildren, had fun on your visit, and that we can welcome you back after next year's parade. 

Game of Capture-the-Castle for Neighborhood Children, June, 2018.  Hill children have grown attached to the whimsical tree house since 2015, not just through open houses, but at birthday parties and birdwatching events.  See Knights Parties  for pictures of kids' visits.  We're concerned that, if this singular tree house is demolished prematurely, it will be the last built in a DC Historic District for a generation.  The historic preservationists who came at the structure would do well to explain how backyard play spaces pose a threat to ongoing architectural restoration efforts.  Which old building is threatened by a kids fort?  We believe that the DC community can balance safety, heritage, public space and the need to promote outdoor play for children.  When City leaders help make the Historic Districts child-friendly zones, they encourage the young families making their lives in them to thoughtfully invest in their classic properties, and to help the District maintain the public alleys providing access to play spaces.    

 *POST-THANKSGIVING OPEN HOUSE:  TERRIFIC FUN IN THE ALLEY

The fall community open house was a wonderful time on a sunny November afternoon.  Neighborhood kids converged on the Walk, with (foam) sword fighting emerging as the most popular activity.  More than 60 people rocked in to chat over pie and hot cider.  A hard-working teen tree house monitor kept good order up in the elm, giving the grown-ups below a chance to relax.  Visitors enjoyed filling the fort's pulley-and-rope-controlled bird feeders and bird bath.  Many thanks to all who turned out!  See Photo Gallery.

*MR. TONY'S CAPITOL HILL ADVENTURE CAMPERS VISIT THE TREE HOUSE:

What luck!  Seventy well-behaved knights from Mr. Tony's popular adventure camp, for ages 3-8, defended the castle in August.  They had help from a dozen stellar camp counselors.  The decade-old camp is a popular program for local children, serving hundreds each summer. The adventure campers honed their archery skills on the Walk and made pine cone bird feeders to take home.  We really enjoyed hosting the adventurers on their epic visit.  Come again! See Photo Gallery.

Digging Deeper into the Tree House Controversy

So why would alley neighbors, senior permitting officials, and a team of City lawyers come at a 30 SQF legal play fort off a back alley?

In the summer of 2015, Ellen and Bing worked with friends and relatives to build a tree house off the narrow "U"-shaped back alley.  The solid open fort, which encorporates elaborate safety and security features, was constructed in their SE property's back yard.  The tree house, painted blue and gray to match the house, stands off F St. Terrace, the alley behind Christ Church on G Street. 

The tree house was built in an environmentally-friendly manner.  The family hired a DDOT Urban Forestry Division-recommended private arborist, to advise them on the care of their century-old American elm.  Elms are relatively rare in DC, because more than 80% of them succumbed to Dutch Elm Disease decades ago.  The tree is thriving.  In fact, the host elm is in far better circulatory health than it was in 2015. 

Over the winter of 2015-2016, ANC 6B got retroactive review of the family's closed "balcony" construction permit, in the form of a bogus permit "renewal" the parents hadn't requested, on the agenda of the January 2016 meeting of the PSC.  The Committee voted 4-0, with a high integrity abstention on the part of DCRA-Construction, to overrule the issuance of the permit, portending the tree house's destruction.  However, since the PSC lacks the authority to review closed permits, the Committee was not within its rights to vote at all.  The Mayor's Order establishing the PSC in 2006 didn't grant the zoning commission the authority to overule permits.  The parents were unaware of ANC and PSC overreach at the time (having been told that post hoc City review was mandatory) but have since researched the relevant legal issues.

At the hearing, we watched the PSC Chair strong-arm committee members to vote to tear down the play fort, insisting that the parents should have gone through a (non-existent) process for permitting small DC tree houses.  The window DDOT had to require the tree house builders to submit to City review was the time before they were given a construction permit, versus after the permit had closed.  Find the PSC's unfathomable letter announcing the Committee's decision under the Castle Paper Trail header.  

The parents are making good progress in litigation.  After the PSC vote, they thought in terms of inching the fort's overhang over their lot's boundary to save it.  By summer 2016, they'd reached the conclusion that the relocation project would be too hard on the old elm, and that the shifted fort would be destabilized.  Moreover, Ellen and Bing had their eyes opened to post hoc City review of the tree house proposal as a cynical effort to fool and pressure them to alter or destroy a legal structure authorized by a pre-existing permit. They prefer to stay in litigation than to acquiesce to DDOT's computer hacking-based permit revocation scheme.  They want the anti-consumer permitting trick used on them, which had a tried and tested feel to it, ended in DC. 

The authors of the tear-down petition, which some of the neighbors refused to sign, argued that because the tree house clashes with its surroundings, it should be demolished.  They asserted that the "castle-theme...is incompatible with the rest of the neighborhood and therefore antithetical to the historic nature and existing streetscape."  In supporting documents, made public by ANC 6B, neighbors expressed concern that the tree house would attract vagrants, prove unsafe for kids, depress property values, irreparably damage the tree, fall into disrepair and hurt alley tourism.  They also complained that the structure would compromise their privacy, with kids peering intently through bedroom windows and into backyards.  None of this has happened, helping explain why the campaign to destroy the tree house petered out in 2016.  

The backlash against what Slate Magazine's Norah Caplan-Bricker dubbed "DC Treehouse-gate" suggests that the public at large has not been swayed by the argument that a small tree house off a back alley should be destroyed.  Local supporters have come forward to help the family in various ways.  The elm has been pruned by a professional tree care company without charge, and donations have been made.  Supporters have included kids offering allowance money and realtors who like showing the tree house to clients with young children.  

In the fall of 2015, when a DDOT inspector visited the alley, he stumbled across dozens of large potted plants and trees residents had been keeping in the alley for many years.  The agency cited the plant owners, due to safety concerns stemming from tall, heavy, wobbly potters standing mid-alley.  It was a development for which the plant owners blamed the tree house builders.  One plant owner responded to the loss of the alley forest, which neighbors did not appeal to OAH, by collecting signatures on a tear-down petition.  The neighbors' spokesman explained the group's decision to the WaPo, saying that the tree house "encroaches on" and "overwhelms" the public space."  Oddly, none of the homeowners who played an active role in pushing for fort's destruction over the winter of 2015-16 has a view of the castle-styled facade from their lot.  

Creating a Process for Permitting Tree Houses in the DC Historic Districts

The parents would not only like to preserve the tree house until their girls have grown up enough to have lost interest in playing in it.  They would like to see clear tree house rules enacted in the District.  To this end, in mid 2016, they petitioned the directors of DCRA, DDOT, and the Historic Preservation Office for rule-making related to tree house construction.  Read their petition, which the agencies ignored, here.  The rescue operation has been an opportunity to raise awareness that there is no niche for tree houses in the DCMR.  The City considers tree houses to be either non-permitted "playground equipment" or "accessory sheds," overly broad categorizations creating permitting confusion and promoting conflict over structures going up in trees. 

Ellen and Bing's committment to preserving the banged-up historic alley their fort overlooks has been made clear since 2011, when they lobbied DDOT to repave its badly degraded surface.  The paving project, the first in decades, improved alley conditions, particularly drainage.  The Walk was occupied by a large swarm of insects in warm weather before repaving.  The family's contribution to keeping up the neglected alley, which they sweep regularly, is apparent to long-time visitors. 

Without specific rules related to play fort or tree house-building in DC, unlike in many other US cities, the door is left open to permitting adhocery.  District officials took the position that the fort's design broke none of the street box/tree space rules for owners of adjoining lots, spelled out in DCMR Rule 24-109.3.  The permit references "the property owner's street box."  In 2017, the rule was amended to read that a "structure" cannot overhang a tree space, surely as a reaction to the tree house war in the alley.  

The Tree House Case in Court (Making Progress)

Ellen and Bing have gone to court to defend rights granted by a permit DDOT came to regret issuing, after neighbors complained about the tree house.  Agency oficials opted to harness a bogus retroactive "review" of the authorization to tear it up, rather than moving to legally revoke the permit. This type of casual, low-grade permitting malfeasance targetting ordinary homeowners is seldom challenged in DC. 

DDOT's "review" was government gone awry: the PSC Chair declared the tree house illegal to the WaPo in advance of the specious hearing, without even the pretense of impartiality. Afterward, media attention brought the parents advice from Hill real estate professionals wise to City permitting games.  Architects and contractors reached out to the parents, urging them to challenge DDOT's bad faith in court, because, under the law, a building permit like theirs is a closed chapter.  The strength of the family's legal case becomes clearer as several years of slow-burn litigation continues.  DDOT and the AG's Office pour staff time into litigation rather than settling the case simply by agreeing to leave the tree house alone.

Public Access to the Play Fort - DC Children Welcome:

The tree house has become a community resource.  Look for announcements of bi-annual open houses on the Moms on the Hill (MOTH), Brent Neighbors and the Nextdoor.com Eastern Market area list servs. 

In addition to holding open houses, the family has developed the fort as a bird-watching platform for children. Occasionally, DC Boy and Girl Scout groups visit, to enable young naturalists to work on scout birding merit badges.  Youth group, school group, and day camp leaders can send requests for small groups of children to visit the tree house at: rescuetreehouse@gmail.com 

The Tree House on Capitol Hill Neighborhood Tours:

Come find the tree house!  The play fort has become something of a Hill landmark since the early 2016 media blitz - news coverage has attracted GPS-guided tourists.  Ellen and Bing first opened the tree house to the public on Mother's Day Weekend 2016, during the Capitol Hill Restoration Society House & Garden Tour.  The family invited tour-goers to explore the fort, prompting several hundred CHRS event ticket holders to stop off at the family's SE patio.  The local show of support for the tree house buoyed the parents in their appeals, helping persuade them to stay the course. 

The guided Capitol Hill Food Tour, and the "Barrack's Row Tour of Duty" walk, bring tourists by the tree house almost every day.  The authors of the tear-down petition argued that the struture "impairs the public use and enjoyment of this space...and the enjoyment of neighborhood tours which transit Archibald Walk and F Street Terrace" with the fort "disrupting the integrity and visual beauty of the alleyway."  Their view has not been universally shared.  If you talk to tour guides, they'll tell you that visitors sometimes ask to be shown the charming kids fort they saw on TV news.  Tourists snap pictures and shout out encouragement to the tree house gang to "Defend the castle!"  

Having trouble finding the tree house?  Try searching for Eastern Market on Google Maps, where a photo of "Tree House of Contention" may pop up at the bottom of your screen.  Plug in "East 516 Archibald Walk SE" into your GPS (vs. simply "Archibald Walk") to be directed to an alley entrance off F Street Terrace, the main alley, paved in gray asphalt pavers, running north to south between E & G Streets and 6th & 7th Streets SE. 

Contact Friends of the Capitol Hill Tree House:

Local outdoor education enthusiasts, let's put pressure on the City bureaucracy to do the right thing by aspiring tree house builders seeking to promote fresh air adventures for kids by putting tree house rules on the books in DC.  

Going forward, the construction of tree houses should be regulated in the District, but in a way that encourages families to build them responsibly to promote outdoor play.  In a society where most urban youth spend too much time inside, the City should not be in the business of encouraging sedentary lifestyles for local children by making backyard kids forts difficult to build, and even harder to preserve.  

Discouraging homeowners in the DC Historic Districts from building tree houses for children is short-sighted in a city with many large old trees in classic residential neighborhoods.  The unlawful revocation of closed construction permits by the government is another losing strategy in a municipality that has long struggled to rein in administrative corruption and dysfunction, dampening its statehood prospects. 

Homeowners in the District of Columbia have a right to know exactly what they are, and aren't, allowed to build, no matter how large or small a construction project might be.   

To urban tree houses as places of joy and discovery!

Friends of the CH Tree House

Photos courtesy of julieannwoodford.photoshelter.com and Ellen Psychas of rescuetreehouse@gmail.com

Thanks for stopping by.  Capitol Hill visitors and residents who haven't seen the tree house, please come find it and draw your own conclusions.