01/11/19: EARLY 2019 TREE HOUSE UPDATE
In early January 2018, right before the Washington Post reported that we'd filed suit in Federal court to
challenge DDOT's denial of due process in tree house permitting, the counter at the bottom of this page had tallied fewer than 9,000 hits. That number now stands at over 37,000. In the words
of iconic 60s rocker Buffalo Springfield, 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 New Year.
On 12/28, the popular DCist: News, Food, Art & Events blog ran a feature on Not-in-My-Back-Alley squabbles in the District. Deane Madsen, architectural writer, brings readers
up to date on the "Capitol Hill Tree House Affair" with the first media report poking fun at incompetent construction permitting work on the part of the DC Department of Transportation (DDOT). Madsen notes
that the agency sent multiple citations to a "non-existent Mr. Lee," fining him 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 five 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 DC government scheme aims to reduce annual traffic deaths in the District of Columbia to zero by 2024. Sadly, there were at least 34 road fatalities in DC in 2018, after an increase in traffic deaths each year since 2012.
We, the Capitol Hill tree house-building parents 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 DDOT's core mission in tasking a team of attorneys with getting a permitted backyard play fort off an alley torn down.
The DIY tree house, built during the summer of 2015 nine feet above a private patio and a public-private mulched tree box, 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 little girls' fort is "abated" (read demolished) from overhanging unpaved public space by about 20 inches. See Castle Paper Trail for a list of DC government lawyers who've authored tree house briefs.
DDOT's over-the-top reaction to our challenge to the agency's abuse of authority in unlawfully withdrawing the permit authorizing the tree house clearly stems from from Post coverage of the story. The
result? At an inconsequential hearing at the DC Court of Appeals, DDOT recently turned up with FOUR ATTORNEYS and a senior City forester to contend with us, ordinary citizens representing ourselves
in litigation. The hearing wasn't the first time DC had trained extraordinary legal firepower on the small structure. In April, SEVERAL DC LAWYERS AND TWO DDOT DIVISION CHIEFS attended a six-hour-long
court mediation session. Yet DDOT could have ended litigation at any point, freeing up attorneys to do real work in the public interest, simply by agreeing to let
the tree house alone until our young daughters have outgrown it.
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 kids fort. Nonetheless, we will continue to invite our elected officials to visit the tree house.
Labor Day marked the tree house's 3rd anniversary, noteworthy because the Chair of the Public Space Committee (PSC), a senior DDOT official, had tried to
tear up the permit authorizing the structure back in early 2016. Our message to the City is that when the DC permitting agencies unlawfully revoke building permits, the District's investment climate takes a hit.
We hope that this bizarre case has served to highlight DDOT incompetence and consumer-hostile permitting practices. If any other DC homeowners are better able to defend rights granted under
construction permits as a result of our having challenged DDOT 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.
Did you hear? The tree house case landed in the US District Court of the District of Columbia in January 2018. The Washington Post Metro Section ran this surprising report, after finding the 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--more than 50--under the Press Coverage header.
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 off a back alley from which vehicles have long been banned. The creative design would enable the builders to use a wooden fence with posts
laid in concrete as supports, minimizing the drilling of 18-inch lag bolts into a 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.
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.
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 becomes permanent on Nov. 20th. The parents are not real estate professionals and this is their first public space permit.
2015-January 2016: A dozen alley neighbors sign a tear-down petition, addressed to Advisory Neighborhood Commission (ANC) 6B. The ANC and the DC Public Space Commitee then
review 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,
clearly in a different category than a limited-duration "public space rental" permit, e.g. for a street festival or temporary parking. In the fall, DDOT had not advised the parents that their permit would need to be renewed, or
that ANC or PSC review of tree house project plans would be required. Moreover, the language of the permit does not state that the building authorization is temporary and would need to be renewed.
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 ever 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, 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, er, "Lees," like Bruce Lee). The notices are served via certified mail, meaning that Post Office staff will not release them to Bing.
November 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 construction permitting, Bing, a Federal lawyer, 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 fort while their girls are young.
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. Judge the quality of DDOT's legal arguments for yourself at Castle Paper Trail.
March-April 2018: DDOT/OAG tries to get the Federal case dismissed. Mediation fails at the DC Court of Appeals, after DDOT refuses to leave the tree house alone for a few more years. 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. This year, Judge Berman Jackson will rule if the family's counter suit survives in whole
or in part. The OAG lawyers involved 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. 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.
2018+: Embarassingly, City attorneys who've authored tree house legal briefs include a current Deputy AG and the DC Solicitor General.
The City's ludicrous campaign to wreck a kids fort built for around $1,500 has cost taxpayers SIX FIGURES IN STAFF TIME. Meanwhile, the Yee girls are growing
up fast, nearing the day when they will no longer play in their little tree house. DDOT digs in on a trifling zoning matter to warn homeowners not to challenge low-grade permitting
wrongdoing, the stuff of political farce. Kids age out of their play forts, and then families take them down, irregardless of the public resources thrown at trying to destroy a particular structure.