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its only feasible use is for residential purposes and that it cannot, because of its configuration and other physical characteristics, be used for residential purposes unless the subject variance is granted,” Baumgardner reported in an April 5 letter to the Attorney General.
According to Baumgardner, the evidence before the BZA meets legal requirements for issuance of a variance “except for one possible exception. That exception relates to whether the property was acquired in 'good faith'.”
In his letter, the commonwealth’s attorney noted that Jenkins was fully advised and aware of the restrictions from which he is seeking a variance BEFORE he entered into the sales contract.
In addition, Jenkins may elect either to purchase or not purchase the property, depending on the BZA's action.
Citing legal precedents, Baumgardner wrote that he had advised the BZA that Jenkins' hardship was selfinflicted and would not meet the variance requirements that the property be purchased in “good faith".
Baliles in his May 25 answer confirmed Baumgardner's position. He ruled that the good faith acquisition requirement applies to "area" variances, such as that Jenkins is seeking, as well as to use variances and to contract purchasers as well as to record property ow ners.
Baumgardner failed.
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