The Family that Built this Capitol Hill Tree House in 2015 Got Every Government Authorization they were Told was Required. Yet their Play Fort is in Jeopardy. Why?
05/15/18. SPRING UPDATE. Welcome to the Capitol Hil tree house site!
The tree house case landed in the US District Court of the District of Columbia in January. A Washington Post Metro Section reporter found the lawsuit and contacted the tree house builders. See 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 the DC Urban Turf real estate blog. Their report emphasizes that the tree house builders have challenged DDOT's denial of due process in tree house permitting. https://dc.urbanturf.com/articles/blog/hacked-accounts-and-improper-notices-the-saga-of-the-capitol-hill-treehouse/13455
To DC residents stopping by for the first time, we encourage you to consider the permitting agencies' practice of running roughshod over the rights of ordinary homeowners when it suits them. See the timeline below to get up to speed on tree house basics:
July 2015: Ellen Psychas and Bing Yee ask permiting officials which building authorizations will be required to build a roofless tree house in their backyard at Archibald Walk SE. The proposed kids fort would jut about 20 inches over a public-private tree box abutting a back alley from which vehicles are banned. The creative design would enable them to use a fence with posts laid in concrete to support the tree house, minimizing the drilling of giant lag bolts into their century-old elm. They discover that there is no reference to tree houses or play forts in the DC Municipal Regulations (DCMR) or the Historic Preservation Rules. They show officials plan documents and are told that DC does not permit small kids forts.
August-September 2015: The homemade, 30 SQF tree house is built for the Yee girls, then ages 3 and 5. Neighbors are left notes telling them that a non-permitted fort will go up in the family's giant elm tree. None react. The new tree house does not obstruct any form of travel and cannot be seen from any street.
October-November 2015: A neighbor complains to the City permitting agencies that the fort was built in a public tree and constitutes a public nuisance (not the case). A DDOT inspector visits and directs the parents to apply for a post hoc construction permit for the tree house to extend into public space. The parents do as instructed, quickly securing the permit. A DDOT City-wide permitting manager choses 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 in any jurisdiction.
December 2015-January 2016: Advisory Neighborhood Commission (ANC) 6B and DC's preeminent zoning commission, the D.C. Public Space Commitee (PSC), review a "permit renewal application" the parents never submitted for a "proposed tree house" that has stood for months. The "renewal" is of a closed "balcony" construction permit under a DCRA code, clearly in a different category than a limited-duration public space rental permit, e.g. for a street festival or parking. No city official had advised the parents that their permit was temporary, or that a city review was required. The permitting manager 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. Predictably, the PSC denies the fake "renewal," an attempt to take an administrative shortcut to unlawfully revoke the permit. After the PSC hearing, DDOT ignores the parents' requests for clarification of the status of the permit.
February 2016-November 2017: The parents appeal the PSC permit denial at the Office of Administrative Hearings (OAH) and in the D.C. Court of Appeals. The City fines the parents $8,000 for not destroying the tree house, with the fines served in the wrong homeowner's name, to a "Mr. Lee" (the surname of all East Asian immigrants in DC?) vs. a "Mr. Yee." Notices are sent by certified mail, meaning that Bing cannot pick them at the local post office. He's unaware he's being fined for a year after the first notice is sent.
November 2017-January 2018: DDOT rejects mediation to settle the case, even though an OAH judge has appointed a mediator. DDOT withdraws the fines to re-serve them under the correct name. The Office of the Attorney General-DC begins representing DDOT in litigation, with the current Deputy AG signing off on briefs. After over two years of being on the receiving end of abusive administrative errors, incompetence, and DDOT permitting malfeasance directed at the ordinary homeowner, Bing, a lawyer at the US Dept. of Homeland Securty, sues the agency as a pro se litigant. The suit is the first complaint he files in any court of law. The case is brought in Federal court under the Computer Fraud and Abuse Act (CFAA), and other causes of action, after DDOT refuses mediation at OAH. Bing sues right before the two-year statute of limitations on the hacking is to expire.
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 DC Court of Appeals dismisses their motion to throw out the appeal and refers the case to mediation.
2018: The City files a motion get the Federal case dismissed. Mediation at the DC Court of Appeals is unsuccesful. The Federal case is assigned to Judge Amy Berman Jackson, the Obama appointee who is hearing
the Manafort cases in the Mueller probe.
May 2018: The Office of the Attorney General-DC and the parents take turns filing motions in the Federal suit. By now, SEVEN different senior City attorneys have worked on the tree house case. None has been able to bring about the fort's "abatement from public space" (destruction). The city's wasteful campaign to destroy a legal little tree house has already cost DC taxpayers tens of thousands of dollars, with no end in sight.
The family has stayed in litigation to protest how they did just what the permiting agencies required of them to build the tree house, but DDOT moved the goal posts on them several times due to agency dysfunction. The City's post-permitting crackdown on a child's fort has been enabled by a failed regulatory process in a jurisdiction without a legal framework for tree house-building and a byzantine public space permitting scheme.
This site not only considers the evolution of a knock-down neighborhood fight over a tree house, it proposes measures the City government could take to prevent history from repeating itself elsewhere in DC. We draw the reader's attention to sly permitting malfeasance directed at the average homeowner. But we also point out that the struggle hasn't really been over the future of two little girls' play fort on "the Hill." Rather, it's about 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 the area. What else could explain why a roofless play fort a stone's throw from the US Capitol Dome has attracted considerable media attention? The WaPo has covered the tree house story four times, and it aired on four local TV stations in early 2016. NBC affiliates aired footage of the play fort from coast to coast. See the Castle in the News header for links.
In the last several years, neighborhood kids have grown to love the whimsical fort, the scene of joyous celebrations, community open houses, and birdwatching activities. Click on the Knights Parties header to see shots of local families enjoying visits to the alley.
*POST-THANKSGIVING OPEN HOUSE REPORT: TERRIFIC FUN IN THE ALLEY
The fall community open house was a wonderful time on a sunny November afternoon. Neighborhood kids converged on Archibald Walk, with (foam) sword fighting emerging as the most popular activity. More than 60 people rocked in to chat over pie and hot cider on an afternoon when none of the alley neighbors was on hand. A hard-working teenage 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 bath. Many thanks to all who turned out. Pictures under Photo Gallery header.
*MR. TONY'S CAPITOL HILL ADVENTURE CAMPERS VISIT THE ALLEY IN AUGUST:
What luck! Seventy well-behaved knights and princesses from Mr. Tony's popular local adventure camp, ages 3-8, defended the castle on August 10th, with help from a dozen stellar camp counselors. The decade-old camp is a very popular program for local children, serving nearly 500 this past summer. The adventure campers honed their archery skills on Archibald Walk (using nerf arrows) in the U-shaped alley, and made pine cone bird feeders to take home. Expert fencing, with foam swords, rounded out their time in the alley. We really enjoyed hosting the adventurers on their epic visit to the tree house. Come again!
*ARCHIBALD WALK JAMMED WITH YOUNG FAMILIES FOR 2ND JULY 4th OPEN HOUSE:
On Independence Day 2017, young neighborhood families again converged on Archibald Walk in force after the Capitol Hill Community parade on 8th Street (two blocks east). At least 200 Hill children, parents and grandparents turned out for last year's open house. Most of the visitors were little kids eager to climb the castle-styled fort's ladder and explore inside.
In 2016, Slate Magazine's Nora Caplan-Bricker called the tree house "a monument to freedom." Each July 4th since, fast-changing neighborhood demographics have been on vivid display in the alley, as local families have celebrated the tree house's survival. The anti-tree house movement had argued that the fort's builders had "dedicated public space for exclusively private purposes...with no benefit whatsoever to the public at large." If this were true, what could explain the popularity the Independence Day open houses?
Entry to the tree house was gained via an Archibald Walk castle hand stamp. The newly installed rope-and-pulley bird feeder system proved popular with visitors. In the alley, kids had fun playing knights at a nerf arrows archery range set up on the Walk's south arm. Inside the fort, they a blast banging a gong, ringing farm bells, peering through a toy telescope, blowing bubbles, having tea parties, trying out the fort's climbing rocks, raising a supplies bucket and drawing on a chalkboard. Tree house frequent fliers mixed with first-time visitors, and the throng got through large quantitites of cake and lemonade. Happily, a couple neighbors who'd signed the tree house tear-down petition joined the party.
Thank you, Capitol Hill young families for reminding us of why we strive to preserve a unique urban play space, for the times they are a changin'. If you've attended our July 4th open houses, we appreciate your interest in the tree house. We hope that you and your family enjoyed your time in an interesting historic alley in the neighborhood, and that we can welcome you back after the 2018 parade.
Digging Deeper into the Archibald Walk Tree House Controvery
So why would neighbors and DDOT dig in to try to ensure that a child's beloved backyard play fort is destroyed?
In the summer of 2015, Ellen and Bing, longtime Hill residents, worked with friends and relatives to build a tree house in their American elm off a narrow "U"-shaped back alley. The solid 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.
Before building commenced, the parents did their due diligence at the city permitting center, where employees didn't know how to process a tree house proposal coming from a DC Historic District (the lot is in the Capitol Hill District). Permitting officials were unsure of what to make of the family's project plans in a city without tree house rules on the books, or even a legal definition of a tree space. Even so, the PSC Chair moved to get the fort torn down after a group of historic preservation-minded neighbors complained about it.
The tree house was built in an environmentally-friendly manner. The Psychas-Yee's hired a DDOT Urban Forestry Administration-recommended private arborist to advise them on the proper care of the century-old host tree, an American elm. They invested in specialized hardware to minimize damage to the giant elm. The family took great care in its treatment of the tree, because elms are relatively rare in DC: more than 80% of them succumbed to Dutch Elm Disease decades ago. The host elm is thriving. The old tree is in much better circulatory health than it was when the tree house was built.
The 20-inch tree house platform overhang doesn't extend over a paved surface, meaning that it isn't in the way of anything. See pictures of the overhang under the Photo Gallery. The family maintains the small wood-enclosed area below the projection. Nonetheless, ANC 6B got retroactive review of the permit in the form of a bogus "permit renewal" the family had not requested on the agenda of public hearings over the winter of 2015-2016. The PSC voted 4-0, with an abstention by DCRA Construction, to illegally overrule the issuance of the permit, portending the tree house's destruction.
At the hearing, we watched the PSC Chair strong-arm committee members to vote to tear down the 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, vs. months later, after the permit had closed. Find the PSC's unfathomable letter announcing the PSC's decision under the Castle Paper Trail header.
Supporters would like to see the tree house preserved, so that kids can continue playing in it. After the PSC vote, Bing and Ellen thought in terms of inching the tree house's overhang over their lot's rear land 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 tree house would be destabilized. If their appeals fail, they'd rather build a replacement entirely on their lot. Moreover, the parents have had their eyes opened to City review of a closed "balcony" construction permit as a cynical effort to fool and pressure them into altering or destroying a perfectly legal structure authorized by a pre-existing permit. They prefer to stay in litigation than to acquiesce to DDOT's unlawful permit revocation.
The authors of a tear-down petition, signed by a 11 residents living near the tree house (some of the immediate neighbors refused to sign), argued that the structure clashes with its surroundings, and therefore should be demolished. They argued 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 visitors, depress property values, kill the host tree, fall into disrepair, hurt alley tourism, and compromise their privacy (with the Yee girls peering intently through neighbors' bedroom windows, and into back yards). Fortunately, none of this has happened, helping explain why the campaign to destroy the tree house petered out long ago.
The backlash against what Slate Magazine's Norah Caplan-Bricker termed "DC Treehouse-gate"
suggests that the public at large has not been swayed by the argument that the cleverly designed play fort off a back alley does not belong in a DC Historic District. Supporters have chipped in to raise funds to move the fort back or build a new tree
house and to support court filings. Donors have included local kids offering allowance money, and Capitol Hill realtors who like showing the fort to clients with young children.
In the fall of 2015, when DDOT inspectors visited the alley, they stumbled across dozens of large potted plants and trees residents had been keeping in the alley for years. The agency cited the plant owners due to safety concerns (stemming from tall, heavy, wobbly pots standing mid-alley) a development for which the plant owners blamed the tree house builders. In the weeks before the alley forest went, potted trees were knocked over and damaged by little kids riding scooters in the alley. The neighbors could have appealed their citations at the Office of Administrative Hearings (OAH) but did not.
Plant owners responded to the loss of the alley forest by collecting signatures on a tree house tear-down petition, presented to ANC 6B. The spokesman for the neighbors, explained the group's decision to make the battle public to the WaPo, saying that the fort "encroaches on" and "overwhelms" the public space in the alley. Interestingly, none of the home owners who played an active role in pushing for tree house's destruction over the winter of 2015-16 has a view of the castle-styled facade from their lot.
Creating a Process for Historic Preservation Review of Tree House Plans
The Psychas-Yees would not only like to preserve the tree house until their girls have tired of it, but to see clear play fort and 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 and play fort 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 DC Municipal Regulations. Strangely, the city considers small tree houses to be either non-permitted "playground equipment" or "accessory sheds," overly broad categorizations creating confusion for permitting officials and the public over structures going up in large trees.
The parents were unlikely candidates to draw the ire of the local historic preservationists seeking their tree house's destruction. Ellen and Bing's committment to preserving the banged-up historic alley the tree house overlooks was made clear in 2011, when they bought their SE property. That year, they persuaded DDOT to repave the walkway's badly degraded surface. The comprehensive re-paving project, the first in over 60 years, improved alley conditions, particularly drainage. Since buying the property, the family has upgraded it substantially, including by restoring the bricked-up 1888 facade with a DCRA permit. The parents' contribution to preserving the neglected historic walkway, which they sweep regularly, is apparent to long-time visitors, mainly Capitol Hill dog walkers.
Without specific rules related to play fort or tree house building in DC, the door is left open to permitting adhocery, inviting a backlash from neighbors. The design of the tree house broke none of the tree space rules for the owners of adjoining lots, spelled out in Rule 24-109.3 of the DC Municipal Regulations. However, the rule was amended in 2017 to read that a "structure" cannot overhang a tree space, probably as a reaction to the Capitol Hill Tree House War. The family's permit references "the property owner's street box."
In a poll on the popular DC'ist Blog, nearly two-thirds of 900 respondents voted that the City should have left the tree house alone. Since that didn't happen, the parents have stood firm, sticking with a drawnout legal battle. We're concerned that, if the tree house is demolished prematurely, it will be the last built in a DC Historic District for a generation. The local historic preservationists who came at it would do well to explain how backyard play spaces pose a threat to architectural restoration efforts. Which old building is threatened by a child's 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 make historic districts kid-friendly zones, they encourage the families making their lives in them to thoughtfully invest in their classic properties.
The Family's Decision to Take the Tree House Case to Court:
The parents plan have gone to court to defend rights granted by a closed construction permit. DDOT came to regret issuing the permit, after neighbors complained about the tree house Cynically, the agency opted to harness PSC "review" of a closed permit to tear it up, without following legal procedures to revoke the authorization. This type of casual malfeasance is detrimental to the workings of government and should be challenged.
DDOT's sham review of the tree house permit was municipal government gone awry. The PSC Chair declared the fort illegal to the WaPo in advance of the PSC hearing, without even the pretense of impartiality. At the hearing, the ANC commissioner the parents had asked to review their plans, at DDOT's behest, provided testimony in support of the tree house's destruction. He was permitted to testify on behalf of the objecting neighbors as a "private citizen" despite a clear conflict of interest. Fortunately, media attention brought the parents advice from veteran real estate professionals wise to city permitting games. Builders and architects in the neighborhood reached out to the family, urging them to challenge DDOT's bad faith in court, because, under the law, a permit like theirs is a closed chapter. If an ANC has an issue with any completed building project covered by a closed construction permit that has not been lawfully revoked per City procedures, the commissioners' quarrel is with the issuing admininistrative agency, not the home owner.
Public Access to the Play Fort - Local Children Welcome:
The tree house has become a community resource. Look for announcements of upcoming tree house open houses on the Moms on the Hill (MOTH) and Nextdoor.com Eastern Market South list servs. In addition to holding open houses, the Psychas-Yees have developed the fort as a bird-watching platform for local children's organizations. DC Boy and Girl Scout groups can visit, to enable young naturalists to work on scout birding merit badges. Youth group and day camp leaders can send the family requests for groups of kids to visit for bird watching purposes at: firstname.lastname@example.org.
The Tree House on Capitol Hill Neighborhood Tours:
Come find the tree house! The fort has become something of a Hill landmark since the 2016 media blitz. News coverage has attracted GPS-guided tourists from all over the place. Ellen and Bing opened the tree house to the public on Mother's Day Weekend 2016, during the annual Capitol Hill Restoration Society House & Garden Tour. The Psychas-Yees invited tour-goers to explore the fort, prompting several hundred CHRS event ticket holders to stop off at the family's red brick patio. The local show of support for the tree house buoyed the family in their legal appeals, helping persuade them to stay the course.
The guided Capitol Hill Food Tour and the "Barrack's Row Tour of Duty" neighborhood walk bring tourists by the tree house regularly. The neighbors' tear-down petition argued that the fort at the back of U-shaped alley "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 tree house "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 tourists sometimes ask to be shown the sweet tree house. Visitors sometimes photograph the fort and shout out encouragement to the tree house gang to "Defend the castle!" The historic alley was often occupied by a large swarm of insects in warm weather before DDOT replaced its battered surface in 2011, after the parents had asked the city to repave it. Change in the neighborhood has brought new investment to the Walk, and a cleaner look.
Having trouble finding the tree house off an alley off another alley on Capitol Hill? Try searching for Eastern Market on Google Maps, where a photo of "Tree House of Contention" may pop up at the bottom of the screen. You need to plug "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 running between E and G Streets and 6th and 7th Streets SE.
Contact Friends of the Capitol Hill Tree House:
If you took good pictures of the tree house on a walking tour, at an open house, or at another time, please consider sharing them with us by emailing photographs as attachments to email@example.com.
Supporters who'd like to receive announcements of open houses, and very occasional updates on tree house legal proceedings, can email asking to be put on our list serv.
DC residents seeking informal permitting advice on tree house-building are encouraged to contact Friends of the CH Tree House. We'd also like to hear from those interested in advocating to get tree house rules on the books in the District. 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 DC kids.
Going forward, the construction of tree houses should be regulated in DC, but in a way that encourages families to build them responsibly to promote outdoor play. In a society where kids generally spend too much time inside, the City bureaucracy should not be in the business of encouraging a sedentary lifestyle for any demographic. Making backyard forts difficult to build in the DC Historic Districts, and even harder to preserve, is a losing strategy in a city with many large trees in classic residential neighborhoods.
To urban tree houses, places of joy and discovery for a generation of young city dwellers that spends too much time indoors!