E. Rylka & C. Rylka v. ZHB of Hamilton Twp. & Hamilton Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Rylka and Christina Rylka, :

Appellants :

:

v. : No. 1243 C.D. 2024

:

Zoning Hearing Board of Hamilton : Submitted: December 8, 2025

Township and Hamilton Township :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY JUDGE McCULLOUGH FILED: January 27, 2026

Eric Rylka and Christina Rylka (Landowners) appeal from the order

entered by the Court of Common Pleas of Monroe County (trial court) on July 23, 2024.

By that order, the trial court denied Landowners’ appeal from the December 6, 2022

decision and order of the Zoning Hearing Board of Hamilton Township (ZHB), which

denied Landowners’ appeal from an enforcement notice issued by Hamilton

Township’s (Township, together with the ZHB, Appellees) zoning officer on February

9, 2022. Therein, the zoning officer cited Landowners with, among other violations,

operating a multi-family use on their property, which is located in a zoning district

where such uses are not permitted.

In this Court, Landowners seek reversal of the trial court’s order,

contending that they are entitled to continue the multi-family use on their property

pursuant to vested rights, variance by estoppel, and equitable estoppel theories. They

also challenge the trial court’s order entered November 2, 2023, denying their motion

for a hearing to supplement the record from the ZHB (Hearing Motion).

After careful review, we affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

The pertinent facts, as found by the ZHB after several days of hearings,

may be summarized as follows.1 Landowners purchased the Property, a 13-acre parcel

in the Township, in 2018 from Mark H. and Nancy H. Brown. At the time of purchase,

the Property was improved with three structures: (1) a single-family dwelling; (2) a

detached garage (Garage) with two second-story apartment units (Apartments 1 and 2);

and (3) a detached building known throughout these proceedings as the “barn” (Barn),

which housed two additional, unfinished apartment units (Apartments 3 and 4). (ZHB

Findings of Fact (FOF) 7; Reproduced Record (R.R.) at 231.)2

Mark H. Brown, one of the former owners, testified before the ZHB that,

at the time the Garage and Apartments 1 and 2 were completed in 2000 and 2001, then-

Township Zoning Officer Jacqui Colabaugh (Colabaugh) came to the Property to

inspect them. At that time, Mr. Brown advised Colabaugh that Apartments 1 and 2

probably would be utilized by the Browns’ two teenage sons, who eventually resided,

to some degree, in the Apartments for six or seven years. (R.R. at 85-86, 96.)

Thereafter, the Browns’ two other sons resided in Apartments 1 and 2 for various

periods of time. After the last of the four sons moved off of the Property, the Browns

1

Where supplementation of the ZHB’s findings has been necessary to our analysis, we include

pertinent citations to the Reproduced Record.

2

Landowners’ Reproduced Record does not comply with Pennsylvania Rule of Appellate

Procedure 2173, which requires that the Reproduced Record be numbered with Arabic numerals

followed by a lowercase “a.” We nevertheless refer herein to pages of the Reproduced Record as

they have been numbered by Landowners.

2

leased Apartments 1 and 2 to third parties. (FOF 11-12.) At that point, Apartments 1

and 2 each had a labeled mailbox. (R.R. at 90.)3

Prior to its construction, the Browns obtained a construction permit for the

Barn, which was substantially completed in 2012 and had rolling garage doors and two

floors. The first floor had a kitchen and bathroom, and the upstairs had finished walls

and two bathrooms. Id. at 92. The Barn was inspected by a Township representative,

at which time the Barn contained plumbing and electric service. Id. at 93. Although

they substantially completed construction of the Barn, the Browns did not finish or rent

Apartments 3 or 4 prior to selling the Property.

The Agreement of Sale between the Browns and Landowners contained

multiple provisions authorizing Landowners to inspect the Property, but it contained

no representations that the Property complied with local zoning regulations,4 had been

issued necessary utility or occupancy permits for a multi-family use, or was outfitted

with adequate water or sewage lines for such a use. (FOF 1, 5-6; R.R. at 198-207; 230-

31.) The real estate listing for the Property contained the following description under

the “Remarks” section:

Exceptional opportunity to own this Victorian

Era [f]armhouse farmette! Expanded through

the years to accommodate a growing family,

this home offers beautifully finished bedrooms

and baths. . . . Be impressed with the extra[-]

large in[-]law suite over the garage! . . . . Five

3

At some point prior to or during its construction, Mr. Brown had conversations concerning

the Garage with then-Supervisor of the Township, Alan Everett, at the Township offices. Mr. Brown

did not remember the precise contents or timing of those conversations and thought they could have

been about another barn not involved to these proceedings. (R.R. at 99-100.)

4

The Agreement of Sale did contain a representation from the Browns that they had not

received any notices of violation of laws, ordinances, regulations, orders, or other legal requirements

concerning the Property. (Agreement of Sale, ¶ 10; R.R. at 201.)

3

[-]car detached garage has 2 apts above with

solid leases, good rents. Impressive finished

barn offers open concept first floor with extra

large modern kitchen, great for entertaining or

living quarters! Second floor offers 3 baths

w/multiple shower and commode stalls and four

bedrooms waiting for finishing touches. 2

stocked ponds, [P]roperty is bordered by a

babbling brook, all on over 13 pristine acres . .

..

(R.R. at 146, 212-13.) Under the “Agent Rmks” section of the listing, the real estate

agent stated:

[]Both apartments are occupied. The one

bedroom is $625/mo and the two[-]bedroom is

$825/mo., both have leases and security

deposits.

Id. at 146, 213.

The Seller’s Property Disclosure Statement (Seller’s Disclosure) indicated

that permits for construction of the Garage and the Barn were obtained and that

inspections of those buildings were performed “as required.” No permits were

introduced into the record before the ZHB, and nothing in the Seller’s Disclosure

indicated that occupancy or residential use permits were obtained for Apartments 1 and

2. The disclosure statement also represented that they were not aware of any violations

of federal, state, or local laws or regulations. (FOF 8-10; R.R. at 134, 141.)

Prior to closing, Landowners did not personally conduct any due diligence

as to the zoning requirements applicable to the Property or whether the Browns had, in

fact, obtained all necessary permits for the structures and multi-family uses on the

Property. (FOF 18.) Landowners instead engaged Joseph Hanyon, Esquire, who is a

member of the law firm MHK Attorneys, LLP. MHK Attorneys, LLP has an address

identical to that of Penn Realty Settlement Services, the settlement agent identified on

4

the Department of Housing and Urban Development (HUD) Settlement Statement.

Landowners believed that Attorney Hanyon would perform all services required for the

purchase of the Property, including checking for zoning compliance. Landowners did

not, however, introduce into the record any documents showing the scope of Attorney

Hanyon’s engagement, and the HUD Settlement Statement indicates only that Attorney

Hanyon prepared documents and conducted document review. It makes no mention of

additional components of the representation, including any investigation into the

Property’s compliance with local zoning laws. (FOF 27-29; R.R. at 208-09, 216-18.)

At the time of the purchase, Apartments 1 and 2 were occupied by paying

tenants, whose leases transferred to Landowners at closing. Attorney Hanyon

apportioned the rents from Apartments 1 and 2, arranged for the transfer of the security

deposits, and oversaw the assignment of the leases from the Browns to Landowners.

(R.R. at 115.) As of the date of sale, Apartments 3 and 4 were incomplete and required

additional plumbing and electrical work as well as flooring and kitchen cabinet

installation. The Barn was, however, insulated, drywalled, painted, and trimmed, and

had electrical and plumbing service. Landowners completed this work after the

purchase and commenced leasing Apartments 3 and 4 to third parties in 2019.

Landowners did not obtain any permits or approvals for the construction work

performed on Apartments 3 and 4 or to lease them to third parties. (FOF 13-15, 22-25;

R.R. at 88, 216, 220.) Mr. Rylka testified that Landowners purchased the Property

assuming that the rental income from the Apartments would continue. He indicated

that they could not afford the mortgage on the Property without the rental income.

(R.R. at 114.)

During Landowners’ early ownership of the Property, a serious sewage

malfunction caused raw sewage from the Apartments to back up into Landowners’

5

residence. At the time, all of the sewage lines from the Apartments ran directly to the

residence, from which they then ran with the residence’s line to a common septic field.

In response, Landowners re-routed the sewage lines from the Apartments directly to

the septic field but did not apply for or obtain any permits for the repair work. (FOF

at 16-17; R.R. at 221-22.) As to fresh water, the residence and all four apartments on

the Property are serviced by a common well. (FOF 21.)

Sometime after Landowners purchased the Property, but before the

leasing of Apartments 3 and 4 had commenced, then-Township zoning officer Robert

Rehman visited the Property on multiple occasions. Mr. Rehman had developed a

friendly relationship with Landowners and had stopped at the Property to talk about

various topics, including projects on other properties in the Township. On one

occasion, Mr. Rehman came to the Property to post a permit obtained by Landowners

to replace a roof on the Property. At the time, Apartments 3 and 4 were not completed,

and Mr. Rehman did not inspect the Property. Landowners nevertheless believed that

the leased apartments on the Property were obvious, in part because of the presence of

multiple mailboxes on the Property and its visibility from public roads. (R.R. at 121-

23.)

In early 2018, a neighboring property owner advised the Township that

people appeared to be living in detached buildings on the Property. (R.R. at 22.) Based

on the report, Township Zoning Officer Shawn McGlynn (Zoning Officer McGlynn)

went to the Property to investigate. Upon observing the Property from the road, Zoning

Officer McGlynn noticed that the accessory buildings had multiple electric meters, a

second-story deck with sliding doors, and dormers and double-hung windows, all of

which indicated that people were living in the Garage and Barn. He also saw what

appeared to be a parking lot for tenants. (R.R. at 11-16.)

6

On February 9, 2022, Zoning Officer McGlynn issued to Landowners an

enforcement notice (Enforcement Notice), citing them with (1) establishing a multi-

family residential use on the Property without first obtaining a zoning permit in

violation of Section 902.1 of the Hamilton Township Zoning Ordinance (Ordinance);5

(2) establishing a multi-family residential use on the Property, which is not a permitted

use in the “A” Zoning District; (3) the use and occupancy of multi-family residential

units without obtaining a Certificate of Use and Occupancy in violation of Section

902.5 of the Ordinance;6 and (4) the use and occupancy of multi-family residential units

without demonstrating septic capacity and water supply in violation of Section 103 of

the Ordinance.7 (FOF 2-3; R.R. at 230.)

Landowners did not deny that both the Garage and Barn contained the

Apartments. Landowners nevertheless appealed the Enforcement Notice to the ZHB,

which held hearings on June 7, 2022, September 20, 2022, and October 11, 2022.8 In

their appeal, Landowners did not dispute the lack of permitting or the fact that the

multi-family uses on the Property are not permitted in the “A” Zoning District. Instead,

they asserted their entitlement to continue the multi-family use on the Property based

on the theories of vested rights, variance by estoppel, and/or equitable estoppel.

5

Hamilton Township, Pa., Hamilton Township Zoning Ordinance (1985). Section 902.1 of

the Ordinance governs zoning permits and precludes a change in use of land without first obtaining a

zoning permit from the Township. (R.R. at 281.)

6

Section 902.5 of the Ordinance governs certificates of occupancy and requires the issuance

of a certificate by the Zoning Officer upon “completion of the erection, modification, expansion,

enlargement, alteration or conversion of any structure building or part thereof . . . .” (R.R. at 283.)

7

Section 103 of the Ordinance provides, in pertinent part, that it was established “to promote

the public health, safety, morality, and the general welfare . . . .” (R.R. at 284.)

8

No objectors or other members of the public appeared at the hearings either in support of or

against Landowners’ appeal.

7

The ZHB issued its decision and order on February 9, 2022, therein

making findings of fact and conclusions of law. After first concluding that the

Township established a prima face case of the violations cited in the Enforcement

Notice, the ZHB rejected all of Landowners’ equitable theories, concluding as follows:

30. Based upon the lack of specific evidence of the scope

of [Attorney] Hanyon’s services and/or the services of Penn

Realty Settlement Services or MHK Attorneys, LLP and Mr.

Rylka’s candid testimony that he did not personally review

the Ordinance or make inquiry to the Township with respect

to the zoning of the Property, the [ZHB] finds that

[Landowners] did not proceed in good faith [to] be

exercising appropriate due diligence before purchasing the

Property by making appropriate due diligence inquiries of

the Township and investigations of the Ordinance with

respect to the zoning regulations applicable to the Property.

The [ZHB] finds that the [Landowners] did not sustain their

burden of proof to establish a [v]ariance by [e]stoppel or a

[v]ested right or any elements of [e]quitable [e]stoppel.

31. There was minimal evidence that the Township ever

was aware that the detached [G]arage and [B]arn were

improved with four apartments and were being used and

leased to non-family[-]member third parties. In fact, Mr.

Brown testified that he informed Township [Zoning Officer]

[Jacqui] Colabaugh that the two apartments over the

[Garage] were being used as rooms for Mr. Brown’s

children. Mr. Brown did not testify that he informed any

Township official that Apartments 1 and 2 were being leased

to non-family members or that Mr. Brown applied for and

was issued a permit by the Township for such use.

32. [Landowners] have failed to prove their entitlement to

a vested right, variance by estoppel, or equitable relief . . . .

33. [Landowners] have not proved the requirement that

they proceeded in good faith with appropriate due diligence

to determine whether the existing or intended multi[-]family

uses of the Property comply with the provisions of the

Ordinance.

8

34. The serious sewage system malfunction suffered by

[Landowners] created a serious unsanitary condition by

flooding [Landowners’] home with raw sewage[,] which

could have adversely affected not only [Landowners] but

also the public health, safety, and welfare.

35. Since no permits or approvals of any type were

introduced into the record, such as sewage, zoning, and

occupancy permits, the only “evidence” that permits were

issued is the information disclosed in the Seller’s []

Disclosure [] . . . [,] which states that all permits were

obtained by Mr. and Mrs. Brown and that Mr. and Mrs.

Brown were not aware of any violations of any federal, state

or local laws . . . or [any] existing or threatened legal action

affecting the Property. These “representations” were made

to [Landowners] as purchasers[,] but [Landowners] did not

include those representations in the formal purchase

agreement nor did [Landowners] verify whether these

representations were true or correct. Therefore, the [ZHB]

finds and concludes that [Landowners] did not proceed with

the good faith required by all of the equitable doctrines

asserted by [Landowners].

36. [Landowners] have failed to sustain their burden of

proof and have failed to overcome the violations of the

Ordinance alleged by [ ] Zoning Officer [McGlynn] in the

Enforcement Notice.

(ZHB Decision, Findings/Conclusions 30-36; R.R. at 236-37.)

Landowners appealed to the trial court, where they filed the Hearing

Motion pursuant to Section 1005-A of the Municipalities Planning Code (MPC).9

(R.R. at 244.) Landowners therein sought to supplement the record from the ZHB

chiefly to include additional evidence regarding their purchase of the Property and their

relationship with Attorney Hanyon. The trial court denied the Hearing Motion by order

entered November 2, 2023, and proceeded to decide Landowners’ appeal on the record

9

Act of July 31, 1968, P.L. 805, as amended, added by the act of December 21, 1988, P.L.

1329, 53 P.S. § 11005-A.

9

as certified from the ZHB. The trial court ultimately affirmed, concluding that

Landowners had not established their entitlement to continue the multi-family use on

the Property under any of the theories of vested rights, variance by estoppel, or

equitable estoppel.

As to vested rights, the trial court concluded that Landowners failed to

establish that a permit authorizing a multi-family use was issued erroneously or at all.

As to variance by estoppel, the trial court concluded that Landowners failed to establish

that the Township had actively acquiesced in the multi-family use of the Property, that

Landowners had proceeded in good faith, that Landowners had made substantial

expenditures to improve the Property in reliance on the multi-family use, or that any

unnecessary hardship would be caused by strict compliance with the Ordinance. (R.R.

at 260-66.) Lastly, as to equitable estoppel, the trial court concluded that Landowners

failed to establish that the Township made a misrepresentation to Landowners

indicating that a multi-family use was permitted. Id. at 267.

Landowners now appeal to this Court.

II. ISSUES

Landowners present two overarching issues in this Court, the first of

which contains multiple subparts. Landowners first argue that the trial court erred in

affirming the ZHB because they established their right to continue the multi-family use

on the Property on grounds of vested rights, variance by estoppel, and/or equitable

estoppel. Landowners argue secondly that the trial court abused its discretion in

denying the Hearing Motion.

10

III. DISCUSSION

A. The Hearing Motion

We first address Landowners’ second issue regarding the Hearing Motion.

Section 1005-A of the MPC provides, in pertinent part:

If, upon motion, it is shown that proper consideration of the

land use appeal requires the presentation of additional

evidence, a judge of the court may hold a hearing to receive

additional evidence, may remand the case to the body,

agency or officer whose decision or order has been brought

up for review, or may refer the case to a referee to receive

additional evidence . . . . If the record does not include

findings of fact or if additional evidence is taken by the court

or by a referee, the court shall make its own findings of fact

based on the record below as supplemented by the additional

evidence, if any.

53 P.S. § 11005-A. A trial court has broad discretion in this respect:

It is a matter within the discretion of the trial court to

determine whether supplementation of the record is

appropriate under this statute. Only where the party seeking

the hearing demonstrates that the record is incomplete

because the party was denied an opportunity to be heard

fully, or because relevant testimony was offered and

excluded is a court compelled to open the record.

Therefore, where the court finds that the record was

sufficient to effectively review and address the appeal, it is

not required to hear additional evidence.

Piper Group, Inc. v. Bedminster Township Board of Supervisors, 992 A.2d 224 (Pa.

Cmwlth. 2010) (internal citations and quotations omitted) (emphasis provided).

Moreover, where a party seeks to introduce additional evidence in the trial court that

was available at the time of the hearing before the ZHB, the trial court may refuse the

evidence. Morris v. South Coventry Township Board of Supervisors, 898 A.2d 1213,

1217-18 (Pa. Cmwlth. 2006) (objector did not “have the right to constantly seek to

11

introduce new evidence either to overcome deficiencies in her original presentation of

the case” or to “have the additional documents or testimony lead to a different result”).

Landowners requested that the trial court re-open the record so that they

could present additional evidence regarding their purchase of the Property, the Seller’s

Disclosure, and the role that putative rental income played in Landowners’ decision to

purchase the Property. (Trial Ct. Op., 11/2/23, at 4 (unpaginated).) The trial court,

after reciting the correct standard of review, denied the motion, concluding that

Landowners did not establish any valid grounds justifying the trial court’s reception of

additional evidence. The trial court reasoned as follows:

[Landowners] do not assert in their motion or brief that the

record was incomplete because they were denied the

opportunity to be heard, or because testimony or evidence,

claimed to be relevant, was offered but excluded by the

[ZHB]. . . . [Without] these assertions, [the trial c]ourt is not

persuaded to accept the further evidence [Landowners] seek

to introduce . . . . Indeed, the record indicates the [ZHB] held

four separate hearings during which, upon a careful review

of the certified record, [Landowners] were afforded the full

opportunity to provide evidence and testimony on the matters

that they now assert. Additionally, [Landowners] have not

claimed any relevant evidence was excluded by the [ZHB].

Moreover, [Landowners] in their brief assert the [ZHB] in

rendering its decision miscomprehended or was confused by

certain evidence presented to it. However, determinations as

to the credibility of witnesses and the weight to be given to

evidence are matters left solely to the [ZHB] in the

performance of its factfinding role. Also, we are not inclined

to allow the record to be opened for [Landowners] to

introduce new evidence either to seek to overcome

deficiencies that may have existed in their original

presentation of the appeal to the [ZHB] or to somehow have

additional documents or testimony lead to a different result.

(Trial Ct. Op., 11/2/23, at 5 (unpaginated).)

12

We discern no abuse of discretion in the trial court’s reasoning or ruling.

Landowners argued in the Hearing Motion that supplementation of the record was

necessary to “clarify” certain issues regarding their relationship with Attorney Hanyon,

the financial aspects of their purchase of the Property, and the Seller’s Disclosure

Statement. Landowners insisted that the ZHB was confused on these issues and

incorrectly interpreted the Seller’s Disclosure. (Original Record (O.R.) Document

(Doc.) No. 25, at 3-4, 7-8.) Nowhere did Landowners argue that the ZHB excluded

relevant evidence or that they were otherwise denied the opportunity to present their

case. Instead, Landowners simply desired another opportunity to present evidence,

which was already in their possession during the multi-day hearing before the ZHB,

because they disagree with the ZHB’s findings and analysis. Those are insufficient

grounds to re-open the record, and the trial court appropriately exercised its discretion

under Section 1005-A to keep it closed. We accordingly affirm its order denying the

Hearing Motion.

B. Merits10

On the merits, Landowners argue that the ZHB erred in refusing to

recognize their right to continue the multi-family use on the Property on the theories of

vested rights, variance by estoppel, and/or equitable estoppel.11

10

Where the trial court does not receive additional evidence, our review is limited to

determining whether the ZHB erred in law or manifestly abused its discretion. The ZHB abuses its

discretion only where it makes findings unsupported by substantial evidence in the record, which is

relevant evidence that a reasonable mind might find adequate to support a conclusion. Delchester

Developers, L.P. v. Zoning Hearing Board of Township of London Grove, 161 A.3d 1081, 1085 n.1

(Pa. Cmwlth. 2017).

11

Regrettably, the argument section of Landowners’ brief does not separate by headings or

any other designations the applicable law and analysis for each theory of vested rights, variance by

estoppel, and equitable estoppel. We therefore have been left to sort through Landowners’ arguments

(Footnote continued on next page…)

13

To begin, we note that the theories of vested rights, variance by estoppel,

and equitable estoppel are

three labels assigned in Pennsylvania land use/zoning law to

the equitable remedy precluding municipal enforcement of a

land use regulation. Our courts have generally labeled the

theory under which a municipality is estopped: (1) a “vested

right” where the municipality has taken some affirmative

action such as the issuance of a permit[]; a “variance by

estoppel” where there has been municipal inaction

amounting to active acquiescence in an illegal use[]; or,

“equitable estoppel” where the municipality intentionally or

negligently misrepresented its position with reason to know

that the landowner would rely upon the misrepresentation[.]

Estoppel under these theories is an unusual remedy granted

only in extraordinary circumstances and the landowner bears

the burden of proving his entitlement to relief. Except for

the characterization of the municipal act that induces

reliance, all three theories share common elements of good

faith action on the part of the landowner: [(]1) that he relies

to his detriment, such as making substantial expenditures,[(]

2) based upon an innocent belief that the use is permitted,

and [(]3) that enforcement of the ordinance would result in

hardship, ordinarily that the value of the expenditures would

be lost.

In re: Kreider, 808 A.2d 340, 343 (Pa. Cmwlth. 2002) (citations omitted).12

1. Vested Rights

A property owner may acquire certain vested rights in property where a

municipality erroneously has issued the owner a permit. See Petrosky v. Zoning

Hearing Board of Upper Chichester Township, 402 A.2d 1385, 1388 (Pa. 1979).

and the cases they cite to discern which law and analysis applies to each of the elements for the various

theories. See Pa.R.A.P. 2119(a).

12

As to the analytical distinctions among the three theories of equitable relief, we explained

in In re Kreider that “the different labels impose an analytical rigidity that is not helpful. Municipal

action that may underpin estoppel often embodies more than one category[.]” 808 A.2d at 343 n. 5.

14

Although other factors are considered in determining whether such rights have vested,

the issuance of a permit is essential to the claim. Muth v. Ridgeway Township

Municipal Authority, 8 A.3d 1022, 1026 (Pa. Cmwlth. 2010); see also Chateau Woods,

Inc. v. Lower Paxton Township, 772 A.2d 122, 126 (Pa. Cmwlth. 2001) (“The vested

rights doctrine permits a landowner to use his property without obtaining a variance.

However, the doctrine only applies to those cases where the applicant, in good faith,

relies upon a permit issued in error and incurs significant non-recoverable costs.”)

(citation omitted).

Although Landowners’ arguments in this respect are difficult to follow, it

appears that Landowners contend, based on the Seller’s Disclosure and Zoning Officer

McGlynn’s testimony, that certain permits were issued for the construction, but not

occupancy or residential use, of the Garage and Barn. Landowners then argue that,

because those permits did not include authorizations for residential use, they were

issued in error but were then “validated” by Zoning Officer Jacqui Colabaugh’s

inspection and approval. (Landowners’ Br. at 20-21.). These arguments fail for at least

two reasons.

First, Landowners concede that no permits were ever issued, prior to or

after their purchase of the Property, authorizing a multi-family use. Although the

Seller’s Disclosure represents generically that construction permits and inspections

were issued and conducted for the Garage and Barn in 2000 and 2012, respectively, it

is clear that those permits and inspections had nothing to do with authorizing the rental

of Apartments 1 and 2 over the Garage or the construction and rental of Apartments 3

and 4 in the Barn. See R.R. at 28-29. Rather, the permits that were issued were for a

“garage/workshop with storage” and an “agricultural barn.” (R.R. at 31.)

15

Second, at the time Zoning Officer Jacqui Colabaugh inspected the garage

in either 2000 or 2001, it is undisputed that the space above the Garage was to be

occupied by the Browns’ teenage sons, who lived there for several years. (R.R. at 84-

87.) Mr. Brown testified that he told Colabaugh that his sons “probably” would be

living there. Id. at 86. There is no evidence indicating that Mr. Brown ever told

Colabaugh that the space above the Garage would be utilized as two apartments leased

for rent to third parties. Indeed, it was not until many years later that paying tenants

moved into that space, and it is undisputed that no permits for the leasing of those

Apartments (or Apartments 3 and 4 in the Barn) were ever issued. Thus, Colabaugh’s

inspection in no way “validated” a multi-family use of the Property.

Given that the theory of vested rights requires the issuance of a permit

authorizing the desired use, the absence of such permits here is fatal to Landowners’

vested rights claim. The trial court therefore did not err in affirming the ZHB’s

rejection of this theory.

2. Variance By Estoppel

Although not designated as such, Landowners’ variance by estoppel

argument appears to be at the center of their appeal. We recently summarized the well-

established requirements for a variance by estoppel:

[A] variance by estoppel is an unusual remedy under the law

and is granted only in the most extraordinary circumstances.

. . . [The factors to be considered are:]

1. A long period of municipal failure to enforce

the law, when the municipality knew or should have

known of the violation, in conjunction with some form

of active acquiescence in the illegal use. However, a

mere showing that a municipality has failed to enforce

the law for a long period of time is insufficient in itself

to support the grant of a variance. . . .

16

2. Whether the landowner acted in good faith and

relied innocently upon the validity of the use

throughout the proceedings. But in assessing whether

a landowner’s reliance upon municipal inaction is

reasonable, a landowner is duty bound to check the

property’s zoning status . . . .

3. Whether the landowner has made substantial

expenditures in reliance upon his belief that his use

was permitted.

4. Whether the denial of the variance would impose an

unnecessary hardship on the applicant, such as the cost

to demolish an existing building.

[The] mere passage of time does not, in itself, entitle a

property owner to a variance by estoppel. In those cases

where we have granted a variance by estoppel, the

municipalities have done more than passively stand by; they

have committed some affirmative act, such as granting a

building permit, which would reasonably lead a property

owner to conclude that the proposed use was sanctioned

under the law. . . .

In re: Wagner, 339 A.3d 582, 592-93 (Pa. Cmwlth. 2025) (quoting Skarvelis v. Zoning

Hearing Board of Borough of Delmont, 679 A.2d 278, 281-82 (Pa. Cmwlth. 1996))

(internal citations omitted). “[T]o prevail under the theory of variance by estoppel,

[applicants] must establish all of the essential factors by clear, precise[,] and

unequivocal evidence.” Id. at 593 (citation, quotations, and emphasis omitted).

a. Failure to Enforce/Active Acquiescence

As to the first factor, both the ZHB and trial court concluded that

Landowners did not establish that the Township took any affirmative acts to lead either

the Browns or Landowners to believe that a multi-family use was lawful. We agree

and discern no error. Landowners contend that the Township knew or should have

known of the multi-family use on the Property because (1) physical aspects of the

Property that were visible to the public did or should have indicated to the Township

17

that the Property was, or was intended to be, used for multi-family purposes; and (2)

conversations that Landowners and/or the Browns had with Township representatives

should have made the multi-family use obvious. We disagree.

At most, Landowners established that the Township had or could have

had some awareness that the Browns constructed the Garage and Barn with the intent

to either house family members, host events, or both.13 As to the Garage, Mr. Brown

testified that he told Colabaugh that his teenage sons probably would live in the space

above it, which they and their brothers after them did for many years. Other than

perhaps the installation of mailboxes at or on the Garage, nothing about the Garage

changed that would have notified the Township that the Browns (and then

Landowners) converted the second-floor Garage space to income-producing

apartments leased to third parties.

As to the Barn, it was not finally accommodated to house tenants until

after Landowners purchased the Property. Although Mr. Rylka testified that Mr.

Rehman was on the Property to issue a permit for an unrelated roof project, the mere

possibility that Rehman saw or became aware of any of the tenants is not established

in the record and, at most, is speculation.14 Landowners simply have not established

in the record any long period of acquiescence on the part of the Township during which

it knew or should have known of the multi-family use on the Property. The speculative

13

Mr. Brown testified that, when the Browns first constructed the Barn, they intended to have

meetings on the first floor and perhaps host a children’s summer camp. (R.R. at 91-92.)

14

Landowners assert that, when Mr. Rehman visited the Property, the mailboxes for

Apartments 1 and 2 were visible and the Barn contained unfinished living space that should have

alerted Rehman that it would be used for residential purposes. Landowners contend that, “[b]y not

revoking the permit[,] [Rehman] acquiesced to its use.” (Landowners’ Br. at 26.) The Township’s

failure to “revoke” a building permit does not constitute an affirmative act that would lead any

reasonable person to believe that the Township acquiesced in the Barn’s future residential use.

18

knowledge that Landowners suggest the Township had or should have had from

conversations with Colabaugh, Rehman, and Everett, and the fact that certain aspects

of the exterior of the Garage and Barn were visible from a public road, are not

sufficient. Landowners similarly have failed to establish any affirmative act on the

part of the Township during the relevant period that would have led either the Browns

or Landowners to believe that the Township permitted multi-family uses on the

Property. See Skarvelis, 679 A.2d at 282 (even where municipality had notice of

zoning violations for seven years, it nevertheless took no affirmative actions that would

constitute “active acquiescence,” which defeated variance by estoppel theory).

To save their argument, Landowners appear to rely on the definition of

“Family” in the Ordinance to argue that the residence of the Browns’ teenage sons in

the space above the Garage converted the Property into a “multi-family” use. “Family”

is defined in the Ordinance as “[o]ne or more persons, occupying a dwelling unit,

related by blood, marriage, or adoption, living together as a single housekeeping unit

and using cooking facilities and certain rooms in common.” (O.R. Doc. No. 13, Part

6, at Z-8.) Relatedly, “dwelling unit” is defined as follows:

A building or portion thereof consisting of one (1) or more

rooms arranged for living purposes together with separate

cooking and sanitary facilities used or intended to be used by

one (1) or more individuals living together and maintaining

a common household, and accessible from the outdoors

either directly or through an entrance hall shared with other

dwelling units.

Id. Landowners contend that the Browns’ teenage sons, while residing above the

Garage, were not occupying the same “dwelling unit” as their parents, would not be

using the same cooking facilities or other rooms in common with them, and therefore

constituted a separate “family” for zoning purposes. (Landowners’ Br. at 24-25.)

19

Landowners accordingly contend that a multi-family use of the Property was or should

have been obvious to Colabaugh when she initially inspected the Garage. We disagree.

First, Landowners’ argument in this respect is based on a strained reading

of the definitions of “family” and “dwelling unit.” To be a “family,” one or more

individuals must occupy a single dwelling unit, be related by blood or otherwise, live

together as a single housekeeping unit, and use common cooking facilities and other

common rooms. A dwelling unit, in turn, may be a building or any portion thereof in

which one or more individuals live together and maintain a common household and

that has separate cooking and sanitary facilities and outside access. Nothing in these

definitions requires that a family’s “dwelling unit” be confined to only a single

structure; it could instead be composed of portions of several buildings. Here, the fact

that the Browns’ teenage sons spent undetermined amounts of their time in the space

above the Garage does not necessarily remove them from their parents’ dwelling unit

or family under the definitions of those terms in the Ordinance.

More importantly, however, nothing in the record establishes how much

time the sons spent in the Garage, whether they ever cooked there, or whether they ever

established between themselves a common household or single housekeeping unit that

could itself constitute a “family” or “dwelling unit.” At the time Colabaugh inspected

the Garage, no one lived in it. Mr. Brown told Colabaugh that his two teenage sons

probably were going to reside there, but did not give any detail as to what that meant.

More basically, a common sense interpretation of the Ordinance would militate against

any conclusion that two teenage boys who potentially only slept in garage apartments

20

on the same property as their family home thereby established between themselves a

new “family” and “dwelling unit” that converts a property into a multi-family use.15

For these reasons, the ZHB’s finding that Landowners did not establish a

longstanding and active acquiescence by the Township in the multi-family use on the

Property is supported by substantial evidence in the record. The trial court accordingly

did not err in affirming the ZHB’s decision in this regard.

b. Good Faith and Innocent Reliance

Although Landowners concede that they personally performed no

investigation prior to purchasing the Property to determine whether it was zoning

compliant, they contend that they proceeded in good faith reliance on (1)

representations made by the Browns in the Seller’s Disclosure that certain permits were

issued and that the Browns were unaware of any violations of federal, state, or local

laws; and (2) the involvement of Attorney Hanyon in the transaction, who they believed

would “handle everything related to the purchasing of the [P]roperty,” including an

investigation as to whether it was compliant with local zoning laws and regulations.

(Landowners’ Br. at 21-22.) Landowners contend that these representations establish

their good faith belief that the Property was compliant with the Ordinance when they

purchased it. Id. at 21-24. We again disagree.

Landowners admit that they performed no investigation or reconnaissance

at all as to whether the Property as sold was in violation of any local zoning laws. They

relied entirely on the representations in the real estate listing, the representations in the

15

Mr. Brown’s testimony that his “kids” haphazardly would pay rent while living above the

Garage, see R.R. at 99, does not change our conclusion. Such payment of rent by family members

would not necessarily establish a lease and, more importantly, does not establish in any sense that the

two teenage boys who initially inhabited the space above the Garage ever paid any rent.

21

Seller’s Disclosure Statement, and the fact of Attorney Hanyon’s legal representation

to justify taking no steps to verify the Property’s status in this regard.

As we stated in in Skarvelis:

While we have no record evidence to doubt the veracity of

Skarvelis’ claim that at the time of purchase he believed that

the property’s use as a two-family dwelling conformed with

the [z]oning [o]rdinance, this is insufficient to establish good

faith. Absent a local ordinance provision to the contrary, the

law requires a prospective purchaser of real estate to make

certain the property is in compliance with local zoning

requirements, . . . and the purchaser may not rely on the

statements of others, including dishonest real estate agents,

to establish compliance. If this were not the law, the doors

would certainly open wide for unscrupulous individuals to

perpetrate a fraud on local municipalities.

In order to establish that he acted in good faith, a property

owner is required to show that he made a reasonable attempt

to ascertain the actual status of the property under the

[z]oning [o]rdinance. . . . If Skarvelis had searched the

[b]orough’s records here, he would have found that an

occupancy permit for the property as a two-family dwelling

had never been obtained. This would have put him on notice

that there was a problem with the property and would have

[led] a reasonable person to inquire further regarding

possible limitations on the use of the property. . . .

We also reject the contention of Skarvelis that he was

justified in his belief because of the representations of the

real estate agent who negotiated the sale of the property.

While we certainly do not endorse such conduct by members

of the real estate profession, even if such were true in this

case, a property owner simply cannot acquire a right to a

variance by estoppel through the actions or representations

of prior owners, real estate agents, or other third parties who

do not speak for the municipality. . . . One who purchases

property based on the representations of the seller, rather

than making an independent investigation of the true status

of the property, proceeds at his or her own risk, and cannot

22

later complain that a variance should be granted if those

representations prove to be false.

679 A.2d at 282-83.

Here, Landowners could not blindly rely on representations in a real estate

listing or a seller’s disclosure statement to satisfy their obligation to investigate the

zoning compliance of the Property. Moreover, although a settlement company or

attorney could perform such an investigation at a purchaser’s request, there is no

indication in the record either that any investigation of such matters was conducted at

all or that Attorney Hanyon was “retained” by Landowners to do such work. Instead,

the documentary evidence indicates that Attorney Hanyon performed only document

preparation and review and did not undertake to investigate the Property’s permitting

and conformity to the Ordinance. Mr. Rylka’s testimony was clear that Landowners

performed no search or investigation whatsoever and relied entirely on what they

observed on the Property and in the documents involved in the sale. Without more,

and without any evidence that they were justified in relying on Attorney Hanyon to do

their investigation for them, this factor is not satisfied. The ZHB’s findings in this

regard therefore are supported by substantial evidence in the record.

Because Landowners failed to establish before the ZHB the first two

elements of their variance by estoppel claim, the ZHB did not err or abuse its discretion

in rejecting it.16

3. Equitable Estoppel

Lastly, under the theory of equitable estoppel, a municipality may be

estopped from prohibiting an otherwise nonconforming use where (1) the municipality

intentionally or negligently misrepresented to a landowner that the use was permitted;

16

Because Landowners did not satisfy the first two elements of the variance by estoppel claim,

we need not address the last two elements, namely, substantial expenditures and unnecessary

hardship.

23

(2) the municipality knew or had reason to know that the landowner justifiably would

rely on the misrepresentation; and (3) the landowner was, in fact, induced to rely to his

detriment on the misrepresentation. Cicchiello v. Bloomsburg Zoning Hearing Board,

617 A.2d 835, 837 (Pa. Cmwlth. 1993).

Here, there is no evidence in the record that the Township made any

representations intentionally or negligently to either the Browns or Landowners

indicating that a multi-family use was permitted on the Property. Although

Landowners have pointed to certain physical aspects of the Property and conversations

with Township representatives about other permitted uses or structures to argue that

the Township both knew or should have known of the multi-family use and acquiesced

to it, those facts do not establish that the Township affirmatively represented to

Landowners or their predecessors that such use was authorized. Without such a

representation, Landowners’ equitable estoppel claim properly was rejected by the

ZHB.

IV. CONCLUSION

Having concluded that the ZHB did not err or abuse its discretion in

concluding that Landowners failed to establish their entitlement to continue the multi-

family use on the Property under any equitable theory, we affirm the trial court’s order

affirming the ZHB’s decision.

________________________________

PATRICIA A. McCULLOUGH, Judge

24

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Rylka and Christina Rylka, :

Appellants :

:

v. : No. 1243 C.D. 2024

:

Zoning Hearing Board of Hamilton :

Township and Hamilton Township :

ORDER

AND NOW, this 27th day of January, 2026, the order entered by the

Court of Common Pleas of Monroe County on July 23, 2024, is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge