Bath (Berkeley Springs) Town Council & Bath Ordinance Cmte. Discuss new ordinance proposals tonight

BERKELEY SPRINGS, WV - Tonight, Bath Town Council once again discusses proposed new ordinances, and amendments to existing code, that could affect property owners/tenants in various ways for properties in the municipal limits.  The Town of Bath’s Ordinance Committee and Landmark Commission representatives went into detailed discussions last week on proposed amendments to their Ch. 14 of the Town Code and a new Demolition Ordinance proposed by the Landmark Commission.

Ordinance Committee members Susan Webster (chair), Elizabeth Skinner, and Rose Jackson, all town council members, met with Landmark Commission President Larry Lower and members Tim Newton and David Abruzzi over questions raised at October Town Council meetings about the proposals.

The Ordinance Committee is responsible for the establishment of and/or any changes to existing town ordinances.  This committee is tasked to prepare and submit in writing proposed ordinances before the council for a first and second reading.  Webster said per West Virginia Code 8-11-4, municipalities can adopt, by ordinance, building codes, housing codes, etc. But, she said, before any code becomes law, it must be printed in pamphlet form presented to the town council and made available to the general public.

The existing Code Ch. 14 has Articles I through V and deals with a Building Code and Enforcement Agency, Building Inspector (not yet hired), and building permits for single-family dwellings or other structures.  Proposed is Article VI Certificate of Appropriateness for New Construction And/or Building Renovations Within the Historic District. 

Another was the proposed new Demolition Review Ordinance.


In a memo Oct. 3 to the council, the Landmark Commission said members had “identified two crucial areas of concern within the historic district: the demolition of properties and the construction of new structures.  The town currently has ordinances and processes that address these issues but in a rudimentary way.” 

The Town of Bath Historic District was created in 2005. Founding member Nancy Harvey and others, Larry Lower said, applied for a grant from the West Virginia State Historic Preservation Office to do a survey of the historic structures in the town founded over 200 years ago. The survey identified 236 qualifying historic structures. Determinations for the survey were 1) those listed on the National Register of Historic Places, of which Lower said there were three or four residences plus Berkeley Springs State Park; 2) “contributing” structures of a certain age or architectural value. He said there are 129 of them.

“That was quite a lot of buildings for a town that’s not very large,” said Lower. “The town was recognized as a state historic district. It was certified a National Historic District in 2009.”

The Historic District is approximately from most of Wilkes Street on the west to a curve on Fairfax Street east of the courthouse, north to Williams and Depot Streets, and south to Johnson Mill Road. 

In proposed Article VI, there are Design Guidelines for new construction and renovation affecting the exterior of “existing structures” within the historic district boundaries.

Any application for a building permit for new construction or renovation affecting or altering the exterior of an “existing facility” in the historic district would be submitted to the Landmark Commission for review. No work could begin until necessary documentation was submitted by the applicant as outlined in the Design Guidelines for the Historic District. The Landmark Commission would review and provide a recommendation to the Town Council and the “certificate of appropriateness.”

Those guidelines include suggestions for historical style (of which there are many like Neoclassical/Federal/Italianate, Gothic Revival, Queen Anne, Second Empire, Arts & Crafts), and consideration of distinctive surroundings, height, width, roof type, siding, color, etc.  It also requires an “accurate depiction of the design to be presented.” Sketches are not acceptable.


The Demolition Review Ordinance purpose is to “preserve and protect contributing buildings and structures in the Town of Bath which reflect the historical, architectural, and aesthetic value of the community. It is to encourage owners of deemed contributing properties and the Town of Bath landmark Commission to develop strategies to preserve, rehabilitate, and restore such properties rather than demolish them.”

A “Contributing Building or Structure” is any building or structure within the Town determined by the Landmark Commission to be listed on the National Register, within an area listed on the National Register, or is subject to a pending National Register application; any building that is at least 50 years old could qualify as a contributing structure. Criteria also include whether an important event took place at the structure or is associated with historic persons, architectural details, and other factors.

No contributing building could be demolished before the Landmark Commission reviewed it and made their report to Town Council. If it is contributing, the owner or applicant in the demo permit shall attend a final determination public hearing. Also notified are property owners that abut the property within 300 feet.

If the Landmark Commission determines the building’s demo would be detrimental to the historical, architectural, or aesthetic value of the town, they would recommend to Town Council it be preserved.  Then, the town would not issue a demo permit for one year, while a subcommittee of the Landmark Commission actively pursued “alternatives to demolition” with the owner, such as finding a buyer. If the building is eventually demolished, no building permit would be issued for construction on the site for three years after demolition.


The changes proposed to Ch. 14 talk about existing structures “within the historic district.” On the other hand, the Demolition Review Ordinance states contributing buildings and structures “in town.” 

Lower said, “Both draft ordinances apply to the entire Town in that applications for permits for new structures, changes to existing structures or demolition of existing structures, are received by the Town.  Under the draft ordinances, the application would be reviewed by the Landmark Commission along with other organizations which have to be consulted as an initial screening. If the permit request does not affect historic structures or the historic district, then the permit process continues its regular course.  If the application potentially affects historic structures or the historic district, then the views of the Landmark Commission must be considered by the Town in acting upon the application.”

He said the draft ordinances apply to all structures, for example, outbuildings, etc.

Lower said, “The review process would determine whether any outbuildings were historically of interest.”


Town of Bath Code Ch. 14: 20-22 states the Inspector or other authority or agent “shall have right and authority” to enter a dwelling or building to make inspection or exam for determining if it’s unfit for human habitation, unsafe, unsanitary, dangers or detrimental to the public welfare. 
West Virginia Code 8-12-16 has a 2017 amendment, passed in April.  West Virginia Code 8-12-16, 1K (e) 1-4 says when a code enforcement agency official enters a premises it is to be done with minimal inconvenience. It further states advance notice must be given to the owner and entry has to be requested. If the owner does not give permission or cannot be located, the official must apply for a search warrant through the court and show reasonable cause for wanting access such as legitimate safety concern. If a search warrant is granted, the official must provide the owner with it five days prior to entry. Entry is for the sole purpose of inspection of the structure, dwelling or building for unsafe or unsanitary conditions and not for the purpose of criminal prosecution or gathering evidence for use in any criminal charge or proceeding unrelated to the unsafe or unsanitary condition of the structure, dwelling or building.

Town of Bath Code Ch. 14 does not have this language but uses WV 8-12-16 as reference for the ordinance.

Webster said, “No code inspector can go into someone’s home, buildings, or business unless the owner allows it, or there is a warrant for probable cause. The police can’t do that unless in certain circumstances.  Charleston’s Ordinance says an official may enter when permission is granted. If they are not, the official may apply to the municipal judge for a warrant.”


“Many people don’t like being told what they can and cannot do with their properties,” Webster said to the Landmarks Commission representatives. “There’s expense involved if people have to have professional drawings. Some people are in a financial hardship. They’re stuck.”

Lower said the ordinance committee could look at any possible changes.  He mentioned a vacant lot on Fairfax where he hoped the new construction would fit in with the aesthetics and history of the other structures.

He said, “Many could qualify for state or federal tax credits. If it’s a commercial structure, there are additional tax credits. We want people to look for investment opportunity.”

Newton said there were rampant comments of concern when Cape May, New Jersey was designated a historic landmark.

“It’s a starting point,” said Newton. “People are scared of zoning and codes, but they’re there to protect people.”

There is no zoning currently in Morgan County.  It was on the ballot a few years ago but did not pass.

Abruzzi said if a person looks to paint or do work on a contributing building, or build a new building in the historic area, they have the architectural style and paint suggestions.

“Vinyl windows are a bad situation,” Abruzzi said as one example. “It destroys the historic character if all houses on the street have vinyl windows. There are other materials that replicate historic materials.”
Lower, Newton, and Abruzzi said the demolition and renovation/new construction guidelines are to preserve buildings and historic character.
Abruzzi said, “We make a review and make recommendations to Town Council who makes the decision on the permit. We might recommend not to allow the permit. But it was written so it doesn’t look like nine people who weren’t elected officials and some who don’t live in town are making all the decisions.”

Lower said, “Nothing says things can’t be looked at by the ordinance committee, or Town Council. There’s no regulation here except you can’t tear something down without a permit; if it meets all other requirements, you can do whatever you want. I’d have to have a hearing for a demolition permit if I wanted to tear down my Victorian.”


Skinner said she did not know her home was in the historic district until October 3.  Property owner Ira Manley came to find out more. He had not been made aware his property was within the historical boundaries.

 “What has been done to notify people in the historic district?” asked Webster.

There had been a brochure and informative forums in the past. But 9/11 addressing changes had affected their mapping and identification of buildings and owners. They do not have an accurate list of owners. Lower said they could improve their education to the public on the historic district.

Skinner asked if the county had a list post-9/11.  Apparently, it would take time to compare different lists and maps.

“We’re talking about how to notify everyone,” said Lower. “We’ve expanded our members from five to nine in the last three years who have skills in architecture, design, engineering, and historical preservation.”


The question arose whether properties in the historic district are assessed differently for tax purposes. Morgan County Assessor Ronald McIntire said it does not make a difference normally. Assessments are based on market value. However, if a person did renovations, improvements, or additions, that would change the assessment eventually.


Chapter 14 for Buildings and Building Regulations 2016-03 was passed Dec. 20, 2016. But the first reading that said it was added and “codifies” West Virginia Code 8-12-16 does not have a motion to accept the reading, second, or notation of passage in Minutes, in order to go on to a required second reading. The second reading was motioned, seconded, and listed as passed. But Webster said if the first reading was not done properly, she’s not sure if it was actually passed.

Skinner said she didn’t know if that was an issue for discussion until next Council meeting. “Members of council who’ve been there a while should know if there were two proper readings,” said Skinner. “I assume it was done and there’s an inadequacy in the Minutes.”

Lower said, “We know you have to take this back to the Council. We’re happy to have more discussions.”

Also, if a property needed work the owner could not or would not do, the town’s code states the town “shall” incur the cost. Nothing was allotted in the 2017-2018 budget. The Ordinance Committee agreed to take this matter to the Finance Committee.

Webster concluded, “Before the Council can amend Chapter 14 to add the Landmark Commission proposals, we need to be certain Chapter 14 was enacted correctly. And we should ensure the West Virginia Constitution (article 3-6) and Amendment VI of the U.S. Constitution are respected.”

Tonight’s meeting is 5:30 p.m. at Town Hall, 271 Wilkes Street.