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

> Commonwealth Court of Pennsylvania · January 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11246503

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** January 27, 2026
- **Precedential status:** Published
- **Opinion:** Opinion of the court by McCullough
- **Judges:** McCullough
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11246503. Public record. Not legal advice.