IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Granny N Pops, LLC, :

Appellant :

:

v. :

:

East Lampeter Township Zoning :

Hearing Board and East Lampeter : No. 278 C.D. 2019

Township : Argued: December 10, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: January 10, 2020

Granny N Pops, LLC (Applicant) appeals from the Lancaster County 

Common Pleas Court’s (trial court) February 14, 2019 order denying Applicant’s 

appeal from the East Lampeter Township (Township) Zoning Hearing Board’s 

(Board) June 22, 2017 decision upholding the Township zoning officer’s 

determination that Applicant’s boarding home violated the Township Zoning

Ordinance of 2016 (Zoning Ordinance) and denying Applicant a variance by 

estoppel. The issue before this Court is whether the Board1abused its discretion and 

committed an error of law by denying Applicant a variance by estoppel. After 

review, we affirm.

 

1 Applicant specifies the “trial court[’s]” errors with respect to the denial of the variance by 

estoppel. Applicant Br. at 3. However, “[w]here[, as here,] the trial court took no additional 

evidence, we are limited to determining whether the zoning hearing board abused its discretion or 

committed an error of law.” Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1209 n.1 

(Pa. Cmwlth. 2009) (emphasis added). Accordingly, herein, this Court shall address whether the 

Board erred in denying the variance.
2

Applicant is a limited liability company whose members are Darren 

Phillips (Mr. Phillips) and Vicki Lynn Phillips (Mrs. Phillips), husband and wife. On 

June 19, 2015, Applicant acquired the property located at 2939 Lincoln Highway East

in East Lampeter Township, Lancaster County (Property), from Clifton Stuckey 

(Stuckey). The Property includes a main building, garage and barn, and is used as a 

14-unit boarding house.2 At the time of Applicant’s purchase, the Property was 

marketed as a multi-family property with 13 units.3 The Property is a flag lot 

containing approximately 1.3 acres, located in the Village Commercial (VC) District,

as identified in the Township’s official zoning map. Applicant did not contact 

Township officials to determine the Property’s zoning status or the legality of its use 

before purchasing it.

On May 27, 2016, a Township zoning officer issued and served an 

enforcement notice (Enforcement Notice) charging that the Property’s use as a 

boarding house was not permissible in a VC District and, thus, violated the Zoning 

Ordinance. On June 24, 2016, Applicant filed an application (Application) with the 

Board appealing from the Enforcement Notice and seeking a variance by estoppel to 

permit Applicant to operate a boarding house at the Property. 

On February 23, April 13 and May 11, 2017, the Board conducted public 

hearings on the Application.4 Deborah Higgins (Higgins) appeared on Applicant’s 

behalf and explained that the Property had been used as a boarding house in the 

1990s and that she had been a tenant at the Property starting in 1999. However, in 

 

2 Although Applicant used the term “rooming house,” the Zoning Ordinance does not define 

that term, but rather defines “boarding house.”

There are 11 units in the main building, 2 units in the garage, and 1 unit in the barn.

3 After acquiring the Property, Applicant added an additional unit to the garage.

4 At the February 23, 2017 hearing, Applicant and the Township stipulated that a boarding 

house is not a permitted use in a VC District under the Zoning Ordinance, nor was it a permitted use 

under the prior 1990 Township Zoning ordinance, and that the Enforcement Notice was valid.
3

2001, she bought the neighboring property at 2937 Lincoln Highway East from Ross 

Rhoades (Rhoades), and moved there in 2004. 

Rhoades, who owns an auto body repair shop located at 2935 Lincoln 

Highway East, stated that he moved to 2937 Lincoln Highway East when he was 14 

years old, and that he lived and worked on properties surrounding the Property for 

over 40 years. He further reported that the Property had been used as a boarding

house since the 1980s, when Lynne Cole (Cole) owned it.

Stuckey testified that he became a tenant at the Property in 1997 after 

answering a “room for rent” newspaper advertisement. He represented that he began 

to hold an equitable ownership interest in the Property in approximately 1999 or 2000 

pursuant to an installment sale agreement with Cole. Stuckey explained that Cole 

operated the Property as a boarding house since the 1980s, and Stuckey purchased it 

because

[i]t was a [boarding] house before [he] got it. That’s what 

[his] interest was. [He] would have never bought it just for

a house because [he] didn’t want a house. And the previous

owners had tenants. And so that sparked [his] interest. 

Because, as [he] got older, retirement, [sic] it would have 

been a good thing for retirement, yeah.

Board Certified Record (C.R.) Item No. 19, Notes of Testimony, April 13, 2017 

(N.T.) at 24. Stuckey acknowledged that he did not know when he purchased the 

Property that the Zoning Ordinance prohibited its use as a boarding house. Stuckey 

also described that, in 1999 or 2000, he and Cole built an addition to the main 

building, thereby adding three rooms.5 With respect to Township approval for the

addition, Stuckey testified:

Q[.] All right. So during that time, did you add units to the 

[P]roperty?

 

5 Stuckey denied any knowledge that Cole filed a separate application in 1999 seeking 

Township approval for a four-unit motel on the Property. 
4

A[.] Yes.

Q[.] And did you get approval to do that?

A[.] Well, it was – it was in 2000, 1999. I didn’t do 

anything after that.

Q[.] All Right. So you expanded without ever coming to 

the [T]ownship and asking?

A[.] They told me I didn’t have to. And if I did, it was –

[Cole] was still there. [Cole and his wife (the Coles)] were 

still there. It was their property. That would have been – I 

couldn’t do anything without their approval. 

Q[.] So you got the Coles’ approval to expand but you 

never came to the [T]ownship and got approval?

A[.] No. I wouldn’t have to. Because it was [the Coles’] 

property. All I did was help [Cole].

Q[.] Okay. To the best of your knowledge, [the Coles]

never got approval from the Township?

A[.] I don’t know.

N.T. at 38-39 (emphasis added). Thereafter, when Stuckey was asked if the 

Township was aware of the expansion, Stuckey declared: “I would say, yes.” N.T. at 

42. Stuckey contradicted his earlier testimony, and testified that Cole applied to the 

Township for permits for the project, and he “believe[d]” the Township issued a 

building permit.

6

 Id. 

 

6 When Stuckey was again asked whether he applied for a permit, he responded:

[A.] I believe [Cole] did for the first initial [main building 

improvements in 2000]. And[, in the mid 2000s,] I had applied for, 

whenever I wanted to expand the garage area into [10] units, [8] or 10 

units, and got that plot plan or that blueprint that the engineer drew 

up.

[Q.] Were you given a permit?

[A.] No.

[Q.] Okay. But an application for a permit was submitted?
5

Stuckey further stated that Cole introduced him to (now) former 

Township zoning officer Lee Young (Young),

7

and that Cole informed Stuckey that 

Young would provide guidance relative to any work at the Property. Stuckey

recounted that, sometime in the early to mid 2000s, he met with Young at the 

Property on a couple of occasions because he wanted to add more rooms to the 

Property by modifying the garage, and expand the boarding house use with another 

building on the south side. According to Stuckey, pursuant to Young’s

recommendation, Stuckey commissioned an engineering plan and submitted it to the 

Township, which held a hearing. Stuckey further testified that although the Board 

liked Stuckey’s idea, it required certain conditions be met, including moving a pond, 

adding blacktop to the driveway area, and installing a sidewalk from the house to 

Route 30. Stuckey explained that he did not pursue the expansion because he did not 

want to add the sidewalk and make the other improvements.8

Stuckey also described that other Township officials, including fire 

company members, were aware of the Property’s boarding house use. Stuckey 

 

[A.] Probably an application, yeah.

[Q.] But you’re saying not necessarily, it wasn’t necessarily you, it 

wasn’t you that actually asked for the application? It wasn’t you? 

Was your name on the application for the permit?

[A.] Well, yeah. If I applied for it, yes. And that would have been in 

the mid 2000[]s.

N.T. at 47.

7 Significantly, neither party called Young as a witness. However, at the close of the April 

13, 2017 hearing, the Township’s counsel requested a continuance to “consult with [Young and one 

other witness] and to potentially have them testify.” N.T. at 110. Counsel explained: “I’m not sure 

that both of them will testify. But we will need to talk to them to find out what they do know about 

the situation.” Id. The continuance was granted, but the Township did not call Young as a witness 

at the following hearing. Further, as noted by the Board, at no time did Applicant request the Board 

to issue a subpoena to Young to secure his testimony.

8 The record reflects that there was some confusion at the hearings between the 2000 main 

house expansion project Stuckey engaged in with Cole, and Stuckey’s proposed expansion of the 

garage in the mid 2000s. See N.T. at 43-47.
6

claimed he did not hide the use, and even advertised for tenants in the newspaper. 

Stuckey stated, despite openly operating the boarding house for 16 years, he never 

received a complaint from the Township or anyone else. Stuckey admitted he did not 

contact the Township to confirm that a boarding house was a permissible use prior to 

advertising the Property as a multi-family dwelling.

Mr. Phillips testified that he has operated WD Dump Truck Service 

(WD) for over five years at 2931 Lincoln Highway East (WD property), which is 

contiguous to the Property. Mr. Phillips stated, when he first established WD, Young 

told him about certain Township requirements for the WD property. According to 

Mr. Phillips, during one of more than one-half dozen visits to the WD property,

[Young] kind of told [him] who was on both sides of [him]. 

[He] had [] Rhoades [] to the east of [him], of the [WD] 

property [sic]. His brother, Virgil Rhoades, was to the west 

of the [WD] property. And he said that on the other side 

of [] Rhoades was a [boarding] house. And he said that 

was [] Stuckey’s place. That’s all [he] ever knew him as. 

And he said, you know, no one here -- no one will bother 

you. You should be fine with what you’re doing as long as 

you’re, you know, in accordance with the zoning rules.

N.T. at 59-60 (emphasis added). Mr. Phillips recounted that, based on Young’s 

representations, he believed that the Township was aware of the Property’s boarding 

house use. Further, Mr. Phillips also reported that he relied on the realtor listing 

advertising the Property as a boarding house.

Mrs. Phillips testified that she was inexperienced in purchasing real 

estate, and the Property was only the second real estate purchase she had ever made.9 

According to Mrs. Phillips, Applicant purchased the Property for $450,000.00. She 

described that the Property included a main house, garage structure and pool house 

and explained that there are seven units and a kitchen on the main house’s first floor 

 

9 Mrs. Phillips noted that she had worked as a full-time phlebotomist for the last 36 years. 
7

and an additional four units and a kitchenette on the lower floor. She also noted there 

were two units in the garage structure and one unit in the pool house. Mrs. Phillips 

stated that Applicant had not changed the configuration of any buildings on the 

Property, but made improvements to the Property costing between $130,000.00 and 

$150,000.00.10

Mrs. Phillips explained that she had been aware of Stuckey’s boarding

house for approximately ten years before purchasing the Property, because she owned 

WD on the contiguous WD property for five years and, before that, her children 

attended school with Stuckey’s children. Mrs. Phillips admitted she did not research 

the Property’s zoning status before purchasing it. She declared that she did not 

discuss the Property’s zoning with Stuckey, because the Property had been an 

operating boarding house for years, and she considered the Property purchase as 

purchasing an ongoing business. She recounted that she also relied on the real estate 

broker’s representations that the Property was a boarding house. She further recalled:

I had to prove to the bank that [the Property] wasn’t a 

motel[,] [b]ecause the bank . . . would not loan me 

$450,000[.00, since] they don’t finance motels. I had to 

prove to them I had long term tenants there in order for 

them to give me the loan . . . for the [boarding] house.[11]

 

10 Applicant’s improvements to the main house included painting, replacing the sewer pump, 

central air-conditioning, a holding tank, light fixtures, outside lighting and some shower stalls, and 

installing new washers/dryers and carpet. The garage structure improvements included painting,

adding new doors, windows and rain gutters, and replacing siding, flooring and bathroom fixtures. 

The pool house structure improvements included replacing windows, siding, carpet and linoleum, 

refurbishing the porch, and adding gutters. Applicant also filled in an existing swimming pool.

11 Notably, the bank’s appraisal report provides: 

The subject’s current use as a rooming house is a special exception 

use under the C-2 [Z]oning [O]rdinance. Additionally, the 

[T]ownship [Zoning O]rdinance states that ‘not more than four rooms, 

excluding bathrooms, may be used for the boarding of registered 

tenants or overnight guests.’ However the subject has been utilized 

continuously at its current capacity for the last 15 years. The subject 
8

N.T. at 84-85. Mrs. Phillips further claimed she would not have purchased the 

Property if she had known that its use was prohibited, and she would have been 

unable to do so because the bank would not have lent her the money.

With respect to the hardship that would be incurred if the use was

prohibited, Mrs. Phillips stated: 

I was looking at this for a retirement. If this gets closed, I 

have none. . . . I would still have to pay back the bank for 

all the money that I borrowed and no means to do it. 

Because [if] my boarding house is closed, I have no income.

N.T. at 87. She expounded: “I can’t turn [the Property] into anything else. I have no 

road frontage. I have a driveway hitting Route 30. Nobody knows I’m back there. 

So I couldn’t turn it into anything [] other than a [boarding] house.” N.T. at 88. 

However, later, Mrs. Phillips asserted that prohibiting the Property’s use as a 

boarding house would not be a hardship for her, but for the residents. Specifically, 

she related: “So is it going to impact it? Yes, it will. Not so much my finances. I 

have my husband and his business. It’s these people that live there that I worry 

about. It’s just not fair.” N.T. at 90 (emphasis added).

On June 22, 2017, the Board upheld the Township zoning officer’s 

determination that Applicant’s boarding house violated the Zoning Ordinance, denied

Applicant a variance by estoppel and dismissed Applicant’s appeal. 

The Board found as a fact, inter alia, that Mr. and Mrs. Phillips did not 

contact Township officials before purchasing the Property to determine its status or 

the permissibility of its use. The Board further found: 

20. [] Higgins and [] Stuckey, witnesses for [] Applicant,

testified that they allegedly knew that the Property had been 

used as a boarding house in the mid-to-late 1990s because 

 

appears to be a non-conforming use that is most likely

grandfathered.

C.R. Item No. 8, Exhibit A-4, at 47 (emphasis added). 
9

they both had resided on the Property, and [] Stuckey 

subsequently acquired an equitable interest in the Property.

21. In 1999, the Property was involved in a zoning

application filed by [] Cole, the then-owner of the Property,

docketed as Case No. 99-37, in which [] Cole applied for a

variance to reduce the required front yard setback to allow a

four-unit motel on the Property.

. . . .

23. In Finding of Fact No. 11 in the decision in Case No. 

99-37, the Board described the Property as being 

improved with a single[-]family dwelling, garage and 

barn, not a boarding home.

. . . .

27. Although both Mr. and Mrs. Phillips claimed to have

relied on others, including real estate professionals and the

appraiser, to determine the status of the Property, neither 

person personally checked with the Township or made an 

inquiry as to the zoning for the Property and the legality of 

any use on the Property.

Bd. Dec. at 4-6 (emphasis added). The Board concluded, inter alia:

Notwithstanding contrary testimony from [] Stuckey and []

Higgins that the Property was used as a boarding house in

the mid-to-late 1990s, [] Cole, the then-owner of the 

Property, represented to the Board in 1999 that the 

Property was a single-family dwelling, as confirmed by 

the written decision in Case No. 99-37, of which this Board 

took administrative notice in this proceeding.

Bd. Dec. at 7, Conclusion of Law (COL) No. 8 (emphasis added). Further:

A property owner 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 a municipality. A person 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 later complain that a variance should be granted if 

those representations prove to be false.
10

Bd. Dec. at 9, COL No. 15 (emphasis added). Relying on Skarvelis v. Zoning 

Hearing Board of the Borough of Dormont, 679 A.2d 278 (Pa. Cmwlth. 1996), the 

Board explained that Applicant’s failure to ascertain the Property’s zoning status was 

fatal to its entitlement to a variance by estoppel, noting that “whether a landowner’s 

reliance upon municipal inaction is reasonable, a landowner is duty bound to check 

the property’s zoning status before purchase.” Bd. Dec. at 9, COL No. 16. The 

Board also concluded that Applicant had not established unnecessary hardship.12 

Applicant appealed from the Board’s decision to the trial court which, on February 

14, 2019, denied Applicant’s appeal. Applicant appealed to this Court.

Applicant challenges the Board’s denial of a variance by estoppel, 

arguing that it met the requirements for such a variance. 

Initially, “[a] variance by estoppel is an unusual remedy and is granted 

only in the most extraordinary of circumstances.” Springfield Twp. v. Kim, 792 A.2d 

717, 721 (Pa. Cmwlth. 2002). This Court has explained:

There are four factors relevant to whether a [zoning hearing 

board] should grant a variance by estoppel.

Such variances are appropriate when a use 

does not conform to the zoning ordinance and

the property owner establishes all of the 

following: (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; (2) 

the landowner acted in good faith and relied 

innocently upon the validity of the use 

throughout the proceeding; (3) the landowner 

has made substantial expenditures in reliance 

upon his belief that his use was permitted; and 

(4) denial of the variance would impose an 

unnecessary hardship on the applicant.

 

12 Board Chairman David Petrisek dissented.
11

Borough of Dormont v. Zoning Hearing Bd. of Borough of

Dormont, 850 A.2d 826, 828 (Pa. Cmwlth. 2004) (citations 

omitted).

Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1212 (Pa. Cmwlth. 

2009) (emphasis added). “For [a]pplicants to prevail under a variance by estoppel 

theory, they must prove the essential factors by clear, precise and unequivocal 

evidence.” Pietropaolo v. Zoning Hearing Bd. of Lower Merion Twp., 979 A.2d 969, 

980 (Pa. Cmwlth. 2009). 

In the instant matter, the Board denied the variance by estoppel, 

concluding that Applicant failed to satisfy two of the required factors.13 The Board 

determined that Applicant’s reliance was not reasonable, and that Applicant had 

failed to prove unnecessary hardship. 

With respect to Applicant’s reliance, Applicant argues that record 

testimony supports that the Property had been used as a boarding house for 

approximately 30 years, and that Applicant had long been aware of that use and 

believed the use was permissible. Applicant also contends that record evidence 

demonstrates that Young and other Township officials were aware of the boarding 

 

13 Although the Board did not directly address the first factor, i.e., “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,” Hafner, 974 

A.2d at 1212 (quoting Borough of Dormont, 850 A.2d at 828), the Board appeared to question the 

credibility of witness testimony that the Property had long been used as a boarding house, where 

such testimony contradicted the finding in Case No. 99-37 that the Property was a single-family 

dwelling. 

A zoning hearing board, ‘as fact finder, is the ultimate judge of 

credibility and resolves all conflicts of evidence.’ In re Appeal of 

Brickstone Realty Corp[.], 789 A.2d 333, 339 (Pa. Cmwlth. 2001). 

Indeed, a zoning hearing board ‘has the power to reject even 

uncontradicted testimony if [it] finds the testimony lacking in 

credibility.’ Constantino v. Zoning Hearing B[d.] of the Borough of 

Forest Hills, . . . 618 A.2d 1193, 1196 ([Pa. Cmwlth] 1992).

Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677, 688 (Pa. Cmwlth. 2018).
12

house use but failed to stop it, that the Township approved Cole’s application to add 

several units in the main house in 2000, and that, in the mid 2000s, the Board 

considered Stuckey’s plan to add units to the garage. Finally, Applicant asserts that 

the real estate listing described the Property as a multi-family property with 13 units.

However, “[m]unicipal inaction in enforcing an ordinance, without 

more, cannot support the granting of a variance.” Klanke v. Zoning Bd. of Adjustment 

of the City of Pittsburgh, 477 A.2d 907, 909 (Pa. Cmwlth. 1984). Therefore, 

Applicant’s reliance on Mr. Phillips’ conversation with Young, wherein Young 

allegedly acknowledged Stuckey’s use of the Property as a boarding house, does not 

establish active acquiescence since even municipal inaction “coupled with some 

knowledge of the violation by municipal officials” does not demonstrate such. In re 

Appeal of Crawford, 531 A.2d 865, 869 (Pa. Cmwlth. 1987). “While the evidence 

adduced by Appellants shows that municipal officials knew of the violation, it does 

not show that the [t]ownship ‘actively’ acquiesced in [a]ppellants’ use.”14 Id. Rather, 

 

14 In Green v. Zoning Board of Adjustment of the City of Pittsburgh, 490 A.2d 488, 491 (Pa. 

Cmwlth. 1985), this Court held: “Although one member of the zoning hearing board stated on the 

record that he knew [of the subject building’s use which violated the zoning code] that is not 

sufficient evidence to establish a ‘clear awareness and strong, long-term acquiescence on the part of 

the municipality.’” (quoting Draving v. Lower Southampton Twp. Zoning Hearing Bd., 397 A.2d 

54, 56 (Pa. Cmwlth. 1979)).

In Center Township v. Zoning Hearing Board of Center Township, 522 A.2d 673 (Pa. 

Cmwlth. 1987), the seller, a township supervisor, assured the purchaser that use of the property for 

a machine shop was permissible. After the township’s zoning officer notified the purchaser that his 

use was prohibited, the purchaser appealed to the township zoning hearing board which overruled 

the zoning officer. On appeal, the county common pleas court reversed the township zoning 

hearing board’s decision, holding that the purchaser did not demonstrate a right to a variance by 

estoppel. Affirming the lower court’s decision, this Court reasoned: 

Even if [the supervisor] knew of the illegal use, we cannot impute his 

knowledge to the [t]ownship. [The supervisor] was only one of three 

[t]ownship [s]upervisors and he had an apparent self-interest in telling 

[the purchaser] that he could use the land in any way he wanted. It 

was incumbent upon [the purchaser] to find out what the zoning law 

was; the zoning ordinance and map were certainly available to him.
13

active acquiescence requires an affirmative act by the municipality, such as 

“granting a building permit or reasonably leading a landowner to conclude his 

use was lawful.”

15 Pietropaolo, 979 A.2d at 981 (emphasis added).

Although evidence of the Township approvals Stuckey described might 

reveal the Township’s active acquiescence, the only evidence referencing any such 

applications or approvals thereof is found in Stuckey’s somewhat vague testimony.

16

 

Moreover, there is no record evidence that Mr. or Mrs. Phillips, as landowners, were 

even aware of the alleged aforementioned applications or approvals, let alone relied 

upon them. In fact, the only detailed documentary evidence reflecting past Board 

action with respect to the Property is the Board’s approval of a request to build a 

 

Ctr. Twp., 522 A.2d at 676.

15 In Pietropaolo, this Court affirmed the township zoning hearing board’s denial of a 

property owner’s appeal from an enforcement notice requiring the owners to cease use of their 

residentially zoned property for a landscaping business. The owners argued, inter alia, that the 

zoning hearing board had erred in denying their variance by estoppel request. In finding that the 

owner failed to demonstrate that the township actively acquiesced in the use, the Pietropaolo Court 

explained:

[I]n cases where this Court granted a variance by estoppel, the 

municipalities did not passively stand by. Rather, they committed an 

affirmative act, for example, granting a building permit or reasonably 

leading a landowner to conclude his use was lawful. See, e.g., Knake 

v. Zoning Hearing Bd. of Dormont, . . . 459 A.2d 1331 ([Pa. Cmwlth.]

1983) (variance by estoppel granted where borough failed to act for 

44 years, knew the use was impermissible for 27 years, and issued a 

building permit for the impermissible use); Three Rivers Youth v. 

Zoning Bd. of Adjustment of [the] City of Pittsburgh, . . . 437 A.2d 

1064 ([Pa. Cmwlth.] 1981) (inaction by municipality for seven years 

plus issuance of building permit by municipality and reliance by

landowner on zoning officer’s interpretation of regulation); Twp. of 

Haverford v. Spica, . . . 328 A.2d 878 ([Pa. Cmwlth.] 1974) (inaction 

by municipality for 36 years and issuance of building permit where 

municipality knew of intended construction).

Pietropaolo, 979 A.2d at 981 (emphasis in original).

16 Applicant did not offer documentary evidence of such applications or approvals.
14

four-room motel that described the Property’s use at the time as a single-family

dwelling with a garage and a barn. 

Importantly, there is no testimony or other record evidence that Mr. or 

Mrs. Phillips ever asked Young or inquired of anyone at the Township whether the 

boarding house use was permissible. In fact, Mrs. Phillips admitted that she did not 

ascertain the Property’s zoning status under the Zoning Ordinance prior to purchasing 

the Property. 

This Court has declared: “a landowner is duty-bound to check the 

zoning status of a property prior to purchase. Where a landowner fails to 

review the relevant zoning ordinance before purchasing a property, he may not 

advance the resulting ignorance in support of a variance by estoppel.” Hafner, 

974 A.2d at 1212 (emphasis added).17 Thus,

‘[o]ne who undertakes to make use of real estate for 

commercial purposes without inquiring as to whether the 

use is permitted by the municipality’s zoning ordinance, 

does so at his own peril.’ Mucy v. Fallowfield T[wp.]

Zoning Hearing B[d.] of Washington C[ty.], . . . 609 A.2d 

 

17 See also Skarvelis, wherein this Court stated:

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. 

See Moses [v. Zoning Hearing Bd. of the Borough of Dormont, 487 

A.2d 481 (Pa. Cmwlth. 1985)] (although owner determined that 

multi-family dwelling was a permitted use generally in the district and 

the subject property had previously been used for such use, owner 

found not to have acted in good faith since an inquiry with the zoning 

authority would have disclosed that an occupancy permit for that use 

had never been issued for the property); Schaefer v. Zoning B[d.] of

Adjustment of the City of Pittsburgh, . . . 435 A.2d 289 ([Pa. Cmwlth.] 

1981) (lack of knowledge is irrelevant where owner failed to make 

inquiry with zoning authority as to true status of property or ask for 

documentation demonstrating compliance from seller).

Skarvelis, 679 A.2d at 283 (emphasis added).
15

591, 594 ([Pa. Cmwlth.] 1992) (citation omitted). The 

purchaser’s duty to inquire is not limited to whether a 

particular use is permitted but, by implication, must also 

encompass an inquiry into the limitations placed on the 

manner in which the property may be used, e.g., a 

recreational vehicle park was a permitted use but not for 

permanent residences.

Kim, 792 A.2d at 722; see also Crawford, 531 A.2d at 868 (“[I]n assessing whether a 

landowner’s reliance upon municipal inaction is reasonable, a landowner is, absent 

some municipal validation of the use, ‘duty[-]bound to check the zoning status of the 

property before purchase.’”) (quoting Hasage v. Phila. Zoning Bd. of Adjustment, 202 

A.2d 61, 64 (Pa. 1964)). Here, Applicant did not do so.18 

Finally, Applicant’s reliance on the real estate listing describing the 

property as a boarding house does not support the grant of a variance by estoppel. 

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.

Skarvelis, 679 A.2d at 282-83 (emphasis added). Thus, Applicant’s reliance on the

real estate listing, conversations with the realtor, or conversations with Stuckey are 

misplaced. See Ctr. Twp. v. Zoning Hearing Bd. of Ctr. Twp., 522 A.2d 673 (Pa. 

Cmwlth. 1987). Based on these considerations, the Board properly concluded that 

Applicant failed to establish it “acted in good faith and relied innocently upon the 

 

18 Even in those instances where applicants have inquired of township officials whether an 

intended use was permitted, this Court has held that “[t]hese inquiries are not sufficient to establish 

good faith reliance where [the a]pplicant never reviewed the relevant zoning ordinances.” Hafner, 

974 A.2d at 1212; see also Moses, 487 A.2d at 485 (“While Appellants did make a minimum 

inquiry [into how the property was zoned without investigating whether the proposed use was 

permitted], we doubt that it was adequate to place them in the category of someone who innocently 

relied upon the validity of the existing use before buying the property.”).
16

validity of the use throughout the proceeding[.]”19 Hafner, 974 A.2d at 1212 (quoting 

Borough of Dormont, 850 A.2d at 828).

This Court is sensitive to the impact this decision will have on the 

Property’s vulnerable tenants who shall be forced to find other housing. Despite such 

concerns, the Court is bound to adhere to the well-established case law and precedent.

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

 

19 Because Applicant failed to satisfy one of the required factors for a variance by estoppel, 

this Court need not address whether the Board properly determined that Applicant failed to prove 

unnecessary hardship.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Granny N Pops, LLC, :

Appellant :

:

v. :

:

East Lampeter Township Zoning :

Hearing Board and East Lampeter : No. 278 C.D. 2019

Township :

O R D E R

AND NOW, this 10th day of January, 2020, the Lancaster County 

Common Pleas Court’s February 14, 2019 order is affirmed.

___________________________

ANNE E. COVEY, Judge