Before Terry, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Petition for Review of a Decision of the District of Columbia Board of Zoning Adjustment
After the Zoning Administrator denied its application for a certificate of occupancy to run a solid waste handling facility, Waste Management of Maryland, Inc., waited three years before taking an appeal to the District of Columbia Board of Zoning Adjustment ("BZA"). The BZA dismissed the appeal as untimely. Seeking reversal of that decision, Waste Management argues that its delay in appealing was justified because the District directed it to pursue alternative administrative approaches in the interim to obtain an occupancy certificate. We agree with the District, however, that the BZA was without jurisdiction because Waste Management failed to note its appeal within a reasonable time. We take this opportunity to explicate the requirement of a "timely" appeal.
In November 1995, Waste Management applied for a certificate of occupancy (C of O) to operate a solid waste handling facility at 2160 Queens Chapel Road, N.E., in an area that is zoned C-M (Commercial-Light Manufacturing). *fn1 Waste Management contended that under the Zoning Regulations then in effect, it was entitled to this C of O as a matter of right. Alternatively, Waste Management asked the Zoning Division to reissue in its name a C of O for "processing" and other operations that had been issued in 1994 to a previous owner of the Queens Chapel Road facility.
The Zoning Administrator denied Waste Management's application on February 21, 1996. The Administrator concluded that the applicable Zoning Regulations did not permit solid waste handling operations at the Queens Chapel Road facility as a matter of right, and that Waste Management would therefore need to seek a variance *fn2 from the BZA. The Administrator denied Waste Management's alternative application for reissuance of the 1994 C of O because that C of O had since been revoked, "so there is no C of O to reissue." The Administrator stated that Waste Management could appeal this denial to the BZA.
Six days later, on February 27, 1996, the Solid Waste Facility Permit Act of 1995 went into effect. This Act, codified at D.C. Code §§ 6-3451 et seq. (1995), required all solid waste facilities in the District to apply for special permits as a condition of continued operation. Permits would be issued only upon a determination "that the solid waste facility is operating, or will operate, in full compliance with environmental, health, safety, and zoning laws, rules and regulations and that the solid waste facility will not endanger public health, safety, welfare, or the environment." D.C. Code § 6-3453 (e)(2)(C). The Act further provided that existing facilities, such as the one at Queens Chapel Road, could continue to operate under interim operating permits while their permit applications were pending. See D.C. Code § 6-3453 (b).
The responsibility for implementing the Solid Waste Facility Permit Act was delegated to the DCRA. On May 22, 1996, the DCRA sent a letter to Waste Management explaining what it needed to do to obtain an interim operating permit for its Queens Chapel Road facility. The DCRA advised that the interim operating permit would require Waste Management to apply for a "solid waste handling facility" C of O. Further, because the Zoning Administrator had already determined that solid waste handling facilities must be approved by the BZA, Waste Management's C of O application would be denied and the DCRA then would "advise Waste Management to apply to the BZA for a variance."
Thereafter, on August 2, 1996, the DCRA issued Waste Management its interim operating permit for solid waste handling at the Queens Chapel Road facility. The permit required Waste Management to apply for a C of O within 30 days, and to apply to the BZA for the issuance of a solid waste handling facility C of O after the application was denied. The permit stated that it would expire if, among other contingencies, the BZA denied the request for a C of O.
As of August 1996, Waste Management had not appealed the denial of its 1995 C of O application. *fn3 Instead of doing so at that time, Waste Management reapplied for a C of O on September 3, 1996, as its interim operating permit directed it to do. In May of 1997, the DCRA denied the reapplication. The DCRA did not, however, advise Waste Management to seek a variance. Rather, the DCRA said that the company should seek a special exception *fn4 in accordance with proposed amendments to the Zoning Regulations that the Zoning Commission was then considering. The proposed amendments would authorize the BZA to grant special exceptions for solid waste handling facilities in districts zoned M and C-M. Waste Management thereupon tendered a special exception application to the BZA. However, the BZA rejected the application because the proposed regulations had not yet been adopted.
Subsequently, in March of 1998, the Zoning Commission did adopt the proposed amendments. See 45 D.C. Reg. 1874 (1998). For whatever reasons, however, Waste Management did not resubmit a special exception application for its Queens Chapel Road facility. Rather, Waste Management advised the DCRA "that it was not going to proceed further with any action on a certificate of occupancy until DCRA worked out an appropriate procedure, process and rules that would not be changed and gave Waste Management explicit instructions." Waste Management asserts that the "DCRA never refused to acknowledge that position," though the DCRA did not furnish the company with written instructions on how to proceed.
Instead, beginning in April of 1998, the DCRA issued notices of infraction to Waste Management for operating a solid waste handling facility on Queens Chapel Road without a proper C of O. By January 1999, Waste Management claims, it was "becoming clear that the process mandated by DCRA was in fact little more than a `bait and switch' game where Waste Management could not obtain the requisite approvals." As a result, as Waste Management later told the BZA, the company "determined that it had no choice other than to resume seeking a C of O as a matter- of-right as set forth in its 1995 application."
Accordingly, on February 12, 1999, almost three years to the day after the Zoning Administrator denied its initial C of O application, Waste Management appealed that denial to the BZA. *fn5 The DCRA moved to dismiss the appeal for lack of jurisdiction on the ground that it was not timely, as required by the BZA's ...