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GARY L. BABIN ET AL. v. CITY LANCASTER (05/29/85)

decided: May 29, 1985.

GARY L. BABIN ET AL., APPELLANTS
v.
CITY OF LANCASTER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Lancaster County in the case of City of Lancaster v. Gary L. Babin, Barbara N. Babin and TKC, Ltd., Inc., d/b/a The King of Clubs Health Spa, a/k/a The King of Clubs, Equity Docket No. 22, Page 74.

COUNSEL

Penn B. Glazier, for appellants.

Louis J. Farina, Blakinger, Grove & Chillas, P.C., for appellee.

Judges Doyle and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barbieri

[ 89 Pa. Commw. Page 528]

Gary L. Babin, Barbara N. Babin, and TKC Ltd., Inc.,*fn1 d/b/a The King of Clubs Health Club, a/k/a The King of Clubs, hereinafter referred to collectively as Appellants, appeal here an order of the Court of Common Pleas of Lancaster County which held that Appellants violated the Zoning Ordinance of the City of Lancaster (City) by operating a massage parlor in violation of the terms of a special exception granted by the Zoning Hearing Board (Board) of Lancaster. That order permanently enjoins Appellants from operating their present business at their present location, imposes fines of $1,000 each upon Gary Babin and Barbara Babin for past zoning violations, and imposes

[ 89 Pa. Commw. Page 529]

    additional fines of $200 per day if Appellants fail to comply with the zoning ordinance after October 15, 1983.

The pertinent facts of this case are as follows. The Babins desired to operate a business, which they represented to be a health club, in a portion of premises 1085 Manheim Pike in Lancaster. They applied for a special exception to continue a prior non-conforming use of this property by substituting their health club for an accountant's office. The Board approved the special exception on December 1, 1980 with the following express conditions: (1) that no massage services shall be provided except as ancillary to traditional health club exercise activities; and (2) the facility shall not be promoted or advertised for massage services nor be operated as a massage parlor. The Babins did not object to these conditions and opened their establishment in February of 1981.

Acting upon complaints received regarding the Babins' establishment, the Zoning Officer of Lancaster conducted an investigation of the establishment, called "The King of Clubs." As a result of his investigation, the Zoning Officer concluded that the King of Clubs was being operated primarily as a massage parlor and that few, if any, other health club activities were being undertaken. On February 12, 1982, he issued the Babins a written notice of the alleged violation of the Board's December 1, 1980 decision. When the Babins failed to correct their business practices to conform to the terms of their special exception, the City filed a complaint in equity seeking a permanent injunction to enjoin Appellants from operating a massage parlor as well as fines for their past violations of the Board's decision of December 1, 1980. At the hearing held before the trial judge, sitting as a chancellor in equity, Appellants attacked the validity of

[ 89 Pa. Commw. Page 530]

    the special conditions of the Board's December 1, 1980 order as well as denying they operated a massage parlor. In his adjudication the chancellor found that the King of Clubs was indeed operated as a massage parlor in violation of the Board's December 1, 1980 decision. The City was granted the requested injunction and the Babins were fined $1,000 each for past violations and the chancellor imposed additional fines of $200 per day if Appellants continued in violation of the Board's December 1, 1980 decision after October 15, 1983. Exceptions filed by Appellants to the chancellor's adjudication were dismissed by the chancellor for a court en banc and this appeal followed.

In this appeal, Appellants contend that a number of the chancellor's findings of fact are not supported by substantial evidence; that the chancellor committed several errors of law; and that the special conditions imposed by the Board amount to a taking of their property without due process or just compensation. We are cognizant, of course, that our scope of review in equity matters is limited to determining whether the chancellor's findings are supported by substantial evidence, an error of law was committed; or ...


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