Toomy triumphant: Ragged Mountain fire case fizzles
A man living near the infamous February wildfire that scorched hundreds of acres in Western Albemarle testified that he saw a distinctive male figure on a John Deere tractor ignite a ruinous blaze on a day when burning was not just illegal, but– with abnormally high winds– practically insane.
"I saw a person at the brush pile leaning over it and then backing off," testified Ivy resident Mitchell Sams at the trial of developer Alexander Toomy. "When I first saw it, it was just one little puff, as if you had just lit a small piece of paper."
That was as close as the prosecution could get to putting Toomy– a Drew Carey lookalike– at the scene of the pile in the Ragged Mountain Farm subdivision. But with Sams about 1,500 feet away and his view admittedly skewed by branches, it wasn't close enough to convince the judge.
In the six-hour, May 31 trial in Albemarle General District Court, Toomy produced a diverse array of witnesses and telephone records backing his claim that he was juggling hay deals and sipping a beer inside a barn while watching a televised UVA basketball game. Judge William Barkley required little time to rule that there was insufficient evidence to convict Toomy on the pair of misdemeanor reckless burning charges.
"Why did they ever prosecute him?" asks Andy Hord, another neighbor who testified to watching some of the fire's earliest moments– with nobody nearby. Hord has been saying from the outset that he thinks that a dormant bonfire simply released an errant spark into the high winds and dry conditions present on fire day, February 19.
"I'm sure that's what did happen," said Hord. "The prosecutor was chasing after something that was bad luck."
The prosecutor, however, claims this was news to her.
"The first time anyone heard that theory advanced," says Assistant Commonwealth's Attorney Darby Lowe in a post-trial interview, "was in court when you and I heard it."
Informed that a Hook article quoting Hord and another neighbor had posited such theory while the forest was still ablaze, Lowe offers this response: "I don't read your stories as part of my investigation."
If the prosecutor had a tough day, it's been a tougher year for Alexander Toomy. He stood accused of accidentally torching Ragged Mountain Farm subdivision, a place he developed during the real estate boom only to lose it last year in foreclosure.
Testimony indicated that Toomy's presence on the subdivision's outskirts made him the preferred contractor when the new owner wanted to tidy the property for the spring selling season. One of his employees, Patrick Wise, testified that in the weeks leading up to the blaze, Toomy directed him to conduct three bonfires to dispose of fallen limbs and trees– with the last one occurring on February 7.
"I tended the fire," said Wise, noting that he extinguished it not with water but by separating the burned wood and covering it with dirt. "When I brought the wood back together," Wise testified, "there was no smoke and no visible embers."
Neighbor Hord testified that he noticed the dirt embankment, and fire experts called by both the defense and prosecution agreed that a dirt-banked bonfire can smolder invisibly for days– or even weeks– only to erupt when high winds uncover and release a "fugitive" ember.
Will Lowe launch a new criminal prosecution based on this new theory? She declines to comment.
The prosecution produced a forester who testified that there were fresh arcs in the soil just 20 feet from the log pile. On a day when the fire should have been moving through the dry grass at a minimum rate of 359 feet per minute, those patterns suggested that someone had been present to try to hold the line.
"I didn't make the u-shaped patterns," Toomy testified. "The fire was advancing toward Colston [subdivision]. I was just moving up and down."
Suppression marks couldn't hold a candle to all the people who were interacting with Toomy, who presented a litany of phone calls to support his story of a day chock-full of activity.
It began with him tending a slow-cooking pig brisket just outside his horse barn, fielding phone calls from two men heading his way– one buying hay and the other selling it– and then sitting down to watch the second half of a University of Virginia vs. Virginia Tech basketball game.
"I noticed UVA was winning, so I sat down to watch," Toomy testified. "I had opened a beer, and the barn filled with smoke."
Melton McGuire, owner of a nearby farm called Verulam, testified that he drove over to buy three big round bales of hay. All was normal when he took the first bale, but when he returned for the next, Toomy was gone.
"There was a drink on the table, the television was on, and it looked like someone had left abruptly," McGuire testified.
Then there was Mike Herring, the Waynesboro man heading over to deliver 200 rectangular hay bales. He called en route.
"I could hear the television in the background," Herring testified. When he got there, he saw "a small amount of smoke" and discovered that Toomy had headed off to fight the fire. He too saw a half-full bottle of beer.
On Dick Woods Road, a neighbor named Ethel Keckley testified that she had a clear view of the fire and never saw Toomy until around the time of her 911 call, placed at 2:11pm, when Toomy was racing over with his tractor.
To believe the prosecution's portrayal of events, one had to envision that between his meeting with the hay buyer and his planned meeting with the hay seller that Toomy suddenly bolted away to ignite a nearly half-mile-away brush pile, fight the fire momentarily, then return to his barn to greet his landlord and act surprised. And then head back to fight the fire again.
Still, at least one resident contends that on the failure-to-extinguish theory Toomy and the company that owns the land, Ragged Mountain Partners LLC, ought to bear responsibility for the fire that blackened 609 acres and destroyed trees, fences, and a neighbor's antique boat-filled barn.
"The remedy now is in civil court," says Bob Huff, who estimates his total loss at just under $200,000.
"He can do what he feels he's got to do," says Ragged Mountain Partners representative Chris Sarpy. "That's his right."
One thing that Sarpy says has ended, however, is the practice of on-site burning. "Now we're a little gun shy," he says.